Napiri v Independent State of Papua New Guinea [2006] PGNC 216; N2976 (21 February 2006)

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POLICE – actions for wrongs – liability of the State – police are servants, agents and officers of the State – Wrongs (Miscellaneous Provisions) Act, Section 1 – general liability of the State in tort – innocent bystander shot dead during civil disturbance – alleged police shooting – burden of proof –whether police officer fired shot negligently – vicarious liability.

DAMAGES – negligence – death of innocent bystander – dependency claim by parent of deceased – 16-year-old boy – whether a parent can be regarded as dependent on a child over the age of 16 years – whether dependency claim can be sustained – general damages for loss of support – plaintiff awarded total damages of K35,640.00 – plus interest.

Police officers on duty in a town in the Southern Highlands were attempting to apprehend a suspected criminal. He resisted arrest. There was a commotion and a large crowd was attracted to the scene. The crowd supported the suspect. One of the police officers fired shots from his police firearm to disperse the crowd. An innocent bystander, a 16-year-old boy, was shot dead. The boy's mother, the plaintiff in these proceedings, claimed that the police negligently shot her son. She brought proceedings against the defendant, the State, arguing that it is vicariously liable for damages due to her son's death. The State denied liability, arguing that there was insufficient evidence that the boy had been shot by the police or, if he had, that the police were negligent. As to damages the State argued that as a matter of law a parent could not be regarded as being dependent on a child over the age of 16 years.

Andale More and Manis Andale v Henry Tokam and The State (1997) N1645
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
David Kofowei v Augustine Siviri and Others [1983] PNGLR 449
Eriare Lanyat and Another v The State [1997] PNGLR 253
Inabari and Another v Sapat and The State [1991] PNGLR 427
Jackson Koko and Elisha Koko v MVIT [1988] PNGLR 167
John Pias v Michael Kodi and Others (2004) N2690
Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779
Mathew Pok and Others v The State and Others (2001) N2210
Muna Uokare v The State [1988-89] PNGLR 655
MVIT v Reading [1988] PNGLR 236
Nogo Suzuke v The State WS 951 of 1994, 21.06.96, unreported
None v MVIT [1990] PNGLR 561
Pinzger v Bougainville Copper Ltd [1983] PNGLR 436
Pinzger v Bougainville Copper Ltd [1985] PNGLR 160
Puk Kum v The State WS No 44 of 1996, 12.09.03, unreported
Reading v MVIT [1988] PNGLR 266
Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78
Simin Dingi v MVIT [1994] PNGLR 385
Tapi v MVIT [1990] PNGLR 568
The State v David Wari Kofowei and Others [1987] PNGLR 5
Wama Kints v The State (2001) N2113

This was an action in which the plaintiff claimed damages for the death of her son allegedly caused by negligence of police officers.

1. CANNINGS J: INTRODUCTION: This is a case about the alleged shooting of an innocent bystander, a 16-year-old boy, by the police. The boy's mother claims that the police negligently discharged a firearm in a public place and shot her son, killing him.

2. The defendant, the State, denies liability, arguing that there is insufficient proof that the police were negligent, or even that it was a shot from a police firearm that killed the boy. If the court finds the State liable, it challenges the amount of damages being claimed by the plaintiff.

2. On Friday 20 February 1998 the police were attempting to apprehend suspected criminals in the vicinity of the Ialibu market, Southern Highlands Province. The police opened fire. A boy aged 16 years, Paga Napiri, was killed.

3. The plaintiff, Makire Napiri, is the deceased's mother. She says that her son was hit in the eye by a police bullet, causing his death. She says that her son was killed by the negligent acts of the police officers present, particularly the one who fired the shot. The defendant, the State, should be held vicariously liable for the negligent conduct of the police. She should be awarded damages.

4. The defendant says that it is not clear that the plaintiff was hit by a police shot. If he was, the police did not act negligently. They acted reasonably in all the circumstances. They were faced with a difficult situation and did what was justifiable.

5. On 13 November 1998 Tamutai Lawyers of Mt Hagen filed a writ of summons on behalf of the deceased's father, Paru Lama. Paru later died and on 10 February 1999 was replaced as plaintiff by the boy's mother, Makire Napiri.

6. The writ was served on 15 June 1999. The statement of claim endorsed on the writ claimed that the police were negligent in the discharge of their duties, by:

7. It was also claimed that the defendant's servants and agents had breached the deceased's fundamental right to life and freedom from inhuman treatment.

8. The statement of claim was framed as a dependency claim. The plaintiff claimed that she and others were dependent on the efforts of the deceased. He was 16 years of age. He contributed to the welfare of his family prior to his death by undertaking the usual village activities of a young man, eg working in gardens, digging drains, building fences and houses.

10. On 20 October 1999 the Solicitor-General filed a defence on behalf of the defendant, denying the allegations contained in the statement of claim. The defence denied that any incident took place as alleged and asserted that, given the age of the deceased, the plaintiff could not be dependent on him. In the alternative it was claimed that if such an incident occurred the shooting of the deceased was unintentional and the deceased was himself negligent by failing to take heed of warning shots.

11. In January 2004 the Solicitor-General ceased acting for the defendant and Paul Paraka Lawyers of Mt Hagen commenced acting for the defendant.

12. In September 2004 Tamutai Lawyers ceased acting for the plaintiff and Jerry Kiwai Lawyers of Mt Hagen commenced acting for the plaintiff.

14. Seven affidavits were admitted into evidence and the deponents were subject to cross-examination.

15. Column 1 of the table below gives the exhibit number, column 2 describes the deponent and date of the affidavit and column 3 summarises the contents.

Exhibit	Description	Content
A	Samuel Nandape, villager, 14.09.01	He comes from Mugumapu village, Southern Highlands Province – recalls the incident of 20 February 1998 – on that day he and other villagers, including the deceased, came from the village to Ialibu station – it was raining heavily so they took shelter at Rika Trade Store where they stayed for one hour until the rain stopped – they heard that a fight had broken out and a big crowd gathered outside Parau Trade Store – they rushed there and saw two police officers, Kevin Ekare and Nelson, struggling to arrest a drunkard – the magazine of Ekare's gun fell to the ground and Nelson quickly picked it up and put it in his coat pocket – the drunkard approached and tried to pull away the magazine – Ekare saw this and put his hand into Nelson's pocket, got the magazine and put it in his gun – Ekare fired a warning shot into the air – everyone, including the drunkard, fled. The witness, Samuel Nandape, states that he heard several more shots – he was hiding behind a police car – people were scared, confused, and running in all directions – he then heard someone shouting that someone had received a bullet and was dying. The police officers stopped shooting, got into the police vehicle and drove off. The witness ran 20 metres to see who had been shot and realised it was one of the guys from his village. The bullet had gone through his left eye and come out at the back – he was already dead. They took the deceased to Ialibu Hospital.
B	Alo John, villager, 14.09.01	He comes from Mugumapu village – recalls the incident of 20 February 1998 – on that day at about 2.00 pm, he was inside Rika Trade Store as it was raining very heavily – when the rain stopped, he saw people running around in all directions so he went out of the store to see what was happening – he ran towards Walter's Trade Store, where a big crowd had gathered – he saw two police officers, Kevin Ekare and Nelson, talking to a drunk man, Aita Undi – he heard Undi say that the Southern Highlands Provincial Government had banned the sale of liquor so it was right for him to steal the Gold Cup and that he would not go with them to the police station – Ekare told Undi that they must go to the police station but Undi refused and put his hands up in the air and said "shoot me, kill me" – the police officers said that they were not there to shoot him. Then Undi grabbed the gun from Ekare and the magazine came off and fell to the ground and Nelson got it and put it in his pocket – then Ekare got the gun off Undi and put his hand into Nelson's pocket, got the magazine and put it in the gun – Ekare fired a shot into the air. The witness, Alo John, states that he was hiding behind the police car. Then Ekare went to higher ground and pointed at the general public. The witness heard two shots come from where Ekare was standing. He later learned that Paga Napiri had been killed.
C	Prophet Mapo, villager, 08.10.01	He comes from Mugumapu village – recalls the incident of 20 February 1998 – on that day at about 3.00 pm, he was inside Rika Tradestore with the deceased and many others – he saw people running towards the Kagua-Erave bus stop so he ran there with the others to see what was happening – he heard from bystanders that the police were trying to arrest two suspects who had stolen beer and tried to escape – he and the deceased were on the road together watching the police forcing the suspects into the police vehicle – he saw police officer Kevin Ekare holding a gun – then one of the suspects, Aita Undi, tried to pull the gun from Ekare – the magazine came off – Nelson got it and put it in his pocket – then Ekare got the gun off Undi and put his hand into Nelson's pocket, got the magazine and put it in the gun – Ekare fired a shot into the air. The witness, Prophet Mapo, states that he and the deceased ran towards the community school – the suspect escaped towards Yamyame village. The witness was running with the deceased in front of him and another boy behind. He heard a second shot. He bent down his head and told the deceased to bend low as well and run; the deceased turned around to hear what he was saying, then the bullet from the third shot went straight through his left eye. He saw the deceased fall to the ground.
D	Dr Jacob Kisambo, medical superintendent, 11.10.04	States that he is in charge of all medical records at Ialibu Hospital – has searched the records and found that on 20 February 1998 the then medical superintendent, Dr Gregory Law, conducted a post-mortem re Paga Napiri and on 23 February 1998 compiled a post-mortem report and a medical certificate of death, both of which are annexed: A – post-mortem report: Paga Napiri was carried into the outpatients department on 20.02.98 at 2.45 pm and pronounced dead on arrival – a fresh wound was present to the upper left eyelid – cause of death was massive damage to the brain from a metal projectile which entered through the left eye and mushroomed inside the brain, destroying the left side of it. B – medical certificate of death: the deceased died of massive brain damage caused by a gunshot wound to the head.
E	Paru Lama, health worker, 11.11.01	He is the deceased's uncle, currently employed at Ialibu Hospital and the only member of the family with a paid job. States that he took the lead in arranging the funeral and instituting court proceedings – incurred funeral and legal expenses, itemised in an annexure to his affidavit, totalling K12,975.00.
F	Damien Ipuke, District Court Magistrate and Coroner, 13.02.02	States that on 13 August 1999 he presided in a Coroner's Court hearing re a police shooting at Ialibu on 20 February 1998. On 11 October 1999 he handed down his decision. Two documents were annexed: A – summary of findings: It was a police shooting for the purposes of dispersing the crowd. Police officer Kevin Ekare did the shooting. No evidence that anyone disturbed him. Medical report consistent with gunshot wound to head. Kevin Ekare is charged with manslaughter and committed to stand trial. B – decision: Alleged shooting was done by police officer Kevin Ekare who is now charged under Criminal Code, Section 302 (manslaughter).
G	Makire Napiri, plaintiff, 08.10.01	States that she is the deceased's mother – the deceased was the fourth of five children – he was a hardworking son who could build houses and gardens and do most of the jobs a village man does – he was very healthy – his death is a great loss to her and her family especially as her husband has also died.

16. The first witness for the plaintiff was Samuel Nandape. He adopted his affidavit in examination-in-chief.

17. In cross-examination Samuel Nandape stated that he saw two policemen trying to arrest a drunken man. There were plenty of people present, more than 100. The crowd was standing around the police officers and the drunkard. He was only about four metres away when he heard the shots fired.

18. In re-examination Samuel Nandape repeated that there were many people observing the incident that took place.

19. The second witness for the plaintiff was Alo John. He adopted his affidavit in examination-in-chief.

20. In cross-examination Alo John stated that there were plenty of people present, more than 100. He does not know how long the struggle between the police officers and the drunkard had been going on before he arrived on the scene. There was one police officer in the police vehicle in addition to the two who were dealing with the drunkard. He did not see the shots being fired, he only heard them. The second shot was fired not long after the first. He saw the police officer taking aim at the public.

21. In re-examination Alo John stated that after hiding behind the police car he after a while started running.

22. The third witness for the plaintiff was Prophet Mapo. He adopted his affidavit in examination-in-chief.

23. In cross-examination Prophet Mapo explained that Mugumapu village is about six kilometres from Ialibu. He and many other people from his village were at Ialibu when the shooting incident took place. Mr Sino put it to him that he was not present. He replied that he was there. There were people from other villages also present. There was a lot of noise when the police officer was struggling with the drunkard. He affirmed the statement in his affidavit that he was running away from the scene with the deceased after the first shot was fired. He did not see who shot the deceased. He was about 40 metres away from the deceased when he was shot. The police only had one firearm, a SIG rifle. That was the firearm the police officer and the drunkard were fighting over.

24. The fourth witness for the plaintiff was Dr Jacob Kisambo. He adopted his affidavit in examination-in-chief. Mr Sino objected to the post-mortem report and medical certificate that were annexed to Dr Kisambo's affidavit being admitted into evidence. However, I overruled the objection.

25. In cross-examination Dr Kisambo said it was standard practice for documents such as the post-mortem report and the medical certificate to be maintained by the hospital at which they were prepared. The documents suggest that the deceased was hit in the left eye by an object entering from the front of his head.

27. The fifth witness for the plaintiff was Paru Lama. He adopted his affidavit in examination-in-chief. He is the deceased's uncle. He works at Ialibu Hospital.

28. In cross-examination Paru Lama stated that his affidavit gave an account of the money spent in connection with the death of his nephew. There were many customary obligations he had to perform.

29. The sixth witness for the plaintiff was Damien Ipuke. He adopted his affidavit in examination-in-chief. He is now a villager. When he swore his affidavit he was a District Court Magistrate. He held office as a magistrate for 21 years. Ten years of that was in Ialibu. He conducted a coronial inquiry into Paga Napiri's death. The results are annexed to his affidavit.

30. In cross-examination Damien Ipuke said he does not know what happened with the criminal proceedings against Kevin Ekare. He was committed for trial for manslaughter. That is all he knows.

31. The seventh and last witness was the plaintiff, Makire Napiri. She adopted her affidavit in examination-in-chief. Her son was a hard-working boy. She depended on him a lot and life is very hard without him. Her first-born son is disabled. Another son is a student. She concluded her evidence by saying:

My son was innocent and I wish to bring the State to court for murdering an innocent person. My son was not involved in any criminal activity.

32. In cross-examination Makire Napiri stated that she is still living in the village, with her two daughters. One is single and one is married. One of her sons had a car accident. His right hand is paralysed and he cannot move his arms.

34. Two affidavits were admitted into evidence and the deponents were subject to cross-examination.

35. Column 1 of the table below gives the exhibit number, column 2 describes the deponent and date of the affidavit and column 3 summarises the contents.

Exhibit	Description	Content
D1	Kevin Ekare, Senior Constable, 30.06.04	States that he is a member of the Highway Patrol unit based at Kaupena, Imbonggu District, Southern Highlands Province. On 20 February 1998 he was on the duty counter at Ialibu Police Station. At 2.00 pm a woman complained that two suspects had stolen her string bag containing K350.00 cash. He and Chief Sergeant Nelson Mongea jumped into a police vehicle and headed to the Kagua-Erave bus stop. They spotted one of the suspects but he ran away. Then they saw the other suspect, Aita Undi. They tried to apprehend him but he struggled and that attracted his relatives and friends who threw stones and sticks at the police. They were in great danger so he fired a few shots into the air to disperse the crowd. There were 300 or 400 young men surrounding them. He did not aim the firearm at anyone. He ran towards the police station and was surprised to be told that a bystander, Paga Napiri, had died. The deceased's relatives later converged on his house at Ialibu Police Barracks and destroyed it and everything in it. The deceased's relatives later demanded bel kol, so he paid them pigs and other goods worth K5,900.00. The relatives were happy with that and assured him they would not demand more compensation or charge him. He does not agree with the Coroner's finding that there was no one disturbing him.
D2	Nelson Mongea, villager, 30.06.04	States he has retired from the Police Force. In 1998 he was the station sergeant at Ialibu Police Station. He recalls the incident of 20 February 1998 when he and Snr Const Kevin Ekare attended a robbery complaint. They tried to arrest the suspects but they and their friends retaliated. They were in danger and Snr Const Ekare fired warning shots into the air. The deceased's relatives later ransacked Snr Const Ekare's house.

36. The first witness for the defendant was Senior Constable Kevin Ekare. He adopted his affidavit in examination-in-chief.

37. In cross-examination Snr Const Ekare stated that he had been an officer of the Police Force for more than 20 years. He repeated what he stated in his affidavit: he and Chief Sgt Mongea were surrounded by 300 or 400 young men. He tried to disperse them by firing shots into the air. The young men were trying to get his gun. The only police officers present were himself and Chief Sgt Mongea. The crowd was angry. Some came from the back. They smashed the windscreen of the police vehicle. He is an experienced police officer. During the course of the struggle he moved to higher ground. It was not very high but he was able to stand a bit above the crowd. The standard practice in this situation was not to point the gun at the crowd but point the barrel into the air. It was a SIG rifle. It fires one bullet at a time. Normally there are 20 rounds in a magazine but he did not count how many bullets there were. A single bullet can be shot straight for 10 or 20 metres. He fired seven or eight shots.

38. Mr Kiwai pressed Snr Const Ekare about where he was standing when he fired the shots. Snr Const Ekare conceded that the spot he stood on was not flat. It was a slope. It had been raining and it was a slippery slope. Many people were following him. He slipped a bit. He did not fall but the barrel of the gun must have gone down. He did not see the deceased. He did not know anyone had been hit until a few minutes later when he was told that someone had died. Snr Const Ekare would not, however, concede that anybody died as a result of his discharging the firearm. This is not clear, he said.

39. He paid the bel kol as the deceased's relatives thought he had caused the death of the boy. It was part of customary practice to pay.

40. In re-examination Snr Const Ekare repeated that when he was discharging the rifle he did not fall down. He was off balance as the ground was slippery. The crowd was rowdy. He felt that his life was in danger. He became aware that someone had died after he came back to the police station. Then he took off in the police vehicle as the crowd was hostile.

41. The second witness for the plaintiff was Nelson Mongea. He adopted his affidavit in examination-in-chief. He was the other police officer present with Snr Const Ekare. He resigned from the Police Force in 1999. He is now a pastor with the Christian Outreach Centre.

42. In cross-examination Nelson Mongea stated that he and Snr Const Ekare were trying to arrest two suspects. One fled and the other was drunk. The drunkard was a tough young guy. He managed to get the magazine of the gun. There were many others surrounding them. The crowd was threatening them, calling them chickens. Nobody came forward to help them. Nobody in the crowd actually fought with them apart from the drunken suspect.

43. Nelson Mongea said that he saw Snr Const Ekare fire shots in the air but he cannot recall exactly the place he was firing from. Snr Const Ekare was not firing at the suspect. He may have shot the deceased but he, Nelson Mongea, only saw him fire shots in the air.

44. In re-examination Nelson Mongea said he was not far away from Snr Const Ekare when the shots were fired.

46. Aside from the part of the claim that sought a declaration about breach of constitutional rights (which was not pursued at the trial), this is a common law action for negligence brought within the statutory framework of the Wrongs (Miscellaneous Provisions) Act (Chapter 297). Specifically the action arising out of the deceased's death falls into two parts:

(For an explanation of the distinction between the two parts of an action arising from the death of a dependant see Jackson Koko and Elisha Koko v MVIT [1988] PNGLR 167, National Court, Bredmeyer J, at p 168 and Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78, Supreme Court, Los J, Brown J, Sakora J, at pp 88-89.)

47. Part IV of the Wrongs (Miscellaneous Provisions) Act ensures that if a person causes the death of another person, by wrongful act, neglect or default, the first person, the 'wrongdoer', has a continuing liability to the relatives of the second person, the deceased. These provisions preserve the cause of action that the deceased would have had against the wrongdoer, if the deceased had not died. Part IV is a standard piece of legislation found in many common law jurisdictions. It overcomes the position of the common law, which was that a person's cause of action dies with the person. The key provisions of Part IV for the purposes of the present case are Sections 25, 26, 28 and 29.

48. Section 25 imposes liability on the wrongdoer or the person (in this case, the State) vicariously liable for the wrongdoer's actions. Section 26 prescribes the relatives to whom there is liability. Other provisions of Part IV, which consists of Sections 24 to 33, regulate that liability.

Where the death of a person is caused by a wrongful act, neglect or default and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect of it, the person who would have been liable if death had not ensued is liable to an action for damages notwithstanding the death of the person injured and notwithstanding that the death has been caused under such circumstances as amount in law to an offence.

(1) An action referred to in Section 25 shall be for the benefit of the wife, husband, parent and child of the deceased person, and a person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased person, and shall be brought by and in the name of the executor or administrator of the person deceased.

(2) In the case of the death of a native within the meaning of the Interpretation Act 1975, an action referred to in Subsection (1) may be for the benefit of the persons who by custom were dependent on the deceased immediately before his death, in addition to the persons specified in that subsection.

(1) In an action referred to in Section 25, the court may award such damages as it thinks proportioned to the injury resulting from the death to the respective parties for whom and for whose benefit the action is brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst those parties in such shares as the court directs.

(2) In an action referred to in Section 25, damages may be awarded in respect of medical expenses incurred as a result of the injury causing the death, together with reasonable expenses of the funeral or cremation of the deceased person (including the cost of erecting a headstone or tombstone over the grave of the deceased person), if those expenses have been incurred by one or more of the parties for whose benefit the action is brought.

(a) where the child has been adopted, the adopted father or mother of the child; and

(b) where the child has not been adopted, the father or mother of a legitimate child and the mother of an illegitimate child.

(2) In an action referred to in Section 25 in relation to the death of a child after 25 July 1968 (being the date of commencement of the pre-Independence Law Reform (Miscellaneous Provisions) Act 1967) the court may award such damages, not exceeding K600.00 in the aggregate, as the court thinks just, by way of solatium for the suffering caused to a parent by the death of the child.

(3) When both parents bring an action to recover the sum of money payable under this section, the amount recovered, after deducting the costs not recovered from the defendant, shall be divided between the parents in such shares as the court directs.

(4) Where both parents survive the child and one of them does not join in bringing an action under this section, the other may bring an action for such amount as he claims to be due to him.

(5) In an action brought to enforce a right conferred by this section the court may, in its discretion, refuse to order the payment of any sum by way of solatium if, having regard to the conduct of the plaintiff in relation to the deceased person, or to the relations that existed between the plaintiff and the deceased person, or for any other sufficient reason, it thinks that no such payment should be made.

(6) The rights conferred by this section are in addition to, and not in derogation of, any rights conferred on a parent by any other provision of this Act.

(7) The cause of action conferred on a person by this section does not, on his death, survive for the benefit of his estate.

53. Part V of the Wrongs (Miscellaneous Provisions) Act ensures that if a person dies his or her estate can be sued or can sue, as if the person had not died. Part V consists of just one section, Section 34 (effect of death on certain causes of action). It has six subsections, the most important one for the present case being subsection (1).

Subject to this section, on the death of a person ... all causes of action subsisting against or vested in him survive against or for the benefit of, as the case may be, his estate. [Emphasis added.]

55. The common law of negligence has been adopted as part of the underlying law of Papua New Guinea. It continues to be applicable and appropriate to the circumstances of the country, except to the extent it is inconsistent with or has been modified by a written law. It applies, generally, in this case by virtue of Section 20 of the Constitution and Sections 3(1)(b), 3(3), 4(1), 4(3)(b), 4(4), and 5 of the Underlying Law Act 2000.

56. To establish liability a plaintiff needs to satisfy the basic elements of the tort of negligence, which in this case mean:

(See Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779, National Court, Cannings J.)

57. Vicarious liability is a common law principle by which one legal person (such as the State) is held liable for the acts or omissions of another person or group of persons (such as police officers) over whom the first person has control or responsibility. The principles of vicarious liability have been codified by Section 1 (general liability of the State in tort) of the Wrongs (Miscellaneous Provisions) Act.

(1) Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject—

(b) in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and

(c) in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.

(2) Proceedings do not lie against the State by virtue of Subsection (1)(a) in respect of an act or omission of a servant or agent of the State unless the act or omission would, apart from this Division, have given rise to a cause of action in tort against the servant or agent or his estate.

(3) Where the State is bound by a statutory duty that is binding also on persons other than the State and its officers, then, subject to this Division, the State is, in respect of a failure to comply with that duty, subject to all liabilities in tort (if any) to which it would be subject if it were a private person of full age and capacity.

(4) Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.

(5) An Act or subordinate enactment that negatives or limits the amount of the liability of a Department of the Government or officer of the State in respect of a tort committed by the Department or officer applies, in the case of proceedings against the State under this section in respect of a tort committed by the Department or officer, in relation to the State as it would have applied in relation to the Department or officer if the proceedings against the State had been proceedings against the Department or officer.

(6) Proceedings do not lie against the State by virtue of this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in him, or responsibilities that he has in connexion with the execution of judicial process.

59. The police fired shots at Ialibu Market on the afternoon of 20 February 1998. Two police officers, Chief Sgt Nelson Mongea and Snr Const Kevin Ekare, were present. They were on duty. They went to the market after receiving a complaint that two men had stolen a lady's bilum. When they got to the market one of the suspects ran away. They tried to apprehend the other one, Aita Undi, but he resisted arrest.

60. There was a commotion and a crowd of onlookers surrounded them. They were supporting Undi, not the police. They were giving the police a hard time and abusing them. Undi got hold of the SIG rifle that Snr Const Ekare was carrying. The magazine fell to the ground. Chief Sgt Mongea picked it up and put it in his pocket. Undi tried to get the magazine, so Snr Const Ekare got it himself, put it on the rifle and fired shots in the air. Until he fired the first shot the crowd was rowdy. When the first shot was fired the crowd fled. Kevin Ekare fired another six or seven shots. Immediately after he stopped firing it was discovered that a 16-year-old boy from Mugumapu, Paga Napiri, had been shot dead. Paga Napiri was not connected with the suspects. He had done nothing wrong. He was an innocent bystander. He died from a bullet that entered through his left eye.

62. Mr Sino, for the defendant, argued that both questions should be answered no. Mr Kiwai, for the plaintiff, argued that the answer to the first question is yes but did not make clear submissions on the second.

63. I consider that there is ample evidence to establish on the balance of probabilities that it was a shot fired by Snr Const Ekare that hit Paga Napiri in his left eye, causing instant death. Three witnesses for the plaintiff gave eyewitness accounts of what happened. The two defence witnesses also gave eyewitness accounts. None of the witnesses for either side suggested that shots were fired by anybody other than Snr Const Ekare. Mr Sino pointed out that the evidence was that the deceased was, like the other onlookers, running away from the scene after the first shot was fired. Yet he was shot in the face. This is not physically possible, he submitted. I do not agree with that. Prophet Mapo's evidence was that Paga was running in front of him. He called out to Paga to tell him to bend down. Paga turned around to hear what Prophet was saying. That is when he was shot – when he was facing the bullet.

64. There is insufficient evidence to prove that Snr Const Ekare took aim at the deceased or any other person. The second witness for the plaintiff, Alo John, said in his affidavit that he saw Snr Const Ekare take aim at the general public. This is a startling allegation, which was not supported by his oral evidence. Snr Const Ekare stated in cross-examination that he went to higher ground before firing the shots. It had been raining. The ground was slippery. He slipped but did not fall. He was off-balance. This is a much more probable explanation of how it came about that one of the shots he fired was lateral, not up in the air.

66. The plaintiff is attempting to fix liability for the death of her son on the defendant, the State. To do that she relies on the tort of negligence. The State is not capable of being directly and personally negligent. So the plaintiff must first show that some person or persons were directly and personally negligent – in this case, that one or more police officers committed the tort of negligence. Then she must establish that the State is vicariously liable for the commission of that tort. If she succeeds in doing that, the issue of assessment of damages will arise.

68. I will summarise the submissions on these major issues, then address the issues in that order.

69. Mr Kiwai submitted that the police officers at the scene of the incident acted negligently. Particularly Snr Const Ekare as he was the one who fired the shot that struck the plaintiff's son. He discharged a dangerous firearm in a public place without regard for the consequences.

70. The State is vicariously liable for what happened, pursuant to Section 2 of the Wrongs (Miscellaneous Provisions) Act. The police officers were on official duty. They responded to an incident as police officers. The State is therefore liable for their negligence.

72. The claim for exemplary damages was not pursued. Likewise with the declaration regarding breach of constitutional rights was not pursued at the trial.

73. Mr Sino submitted that the plaintiff had not proven negligence by the police. Even if the court finds that it was Snr Const Ekare that fired the shot that struck the deceased, it did not follow that he acted negligently. The two police officers were doing their job. They responded to a complaint. Then a suspect resisted arrest. An angry mob surrounded them. There was a scuffle. Snr Const Ekare acted reasonably by firing the shots in an attempt to disperse the crowd. The discharge of the firearm was justifiable.

74. Mr Sino relied on the decision of Jalina J in Mathew Pok and Others v The State and Others (2001) N2210 to support the proposition that the police are entitled to take swift and stern action when faced with a lawless mob. In that case his Honour refused a claim for damages by a group of villagers who claimed that they had been assaulted and their properties destroyed by police when the villagers went to a plantation to voice their concerns about a land dispute. His Honour stated:

When people in large numbers decide to take the law into their own hands how can police discharge their duties effectively if they are forced by the decisions courts make to just turn around and let a person who is acting in breach of the law and in total disrespect for the life and property of others to go.

In the circumstances of this case I am of the opinion that the principle of volenti non fit injuria [voluntary assumption of risk] should apply. In other words, the plaintiffs have brought the destruction and injuries upon themselves by their own unlawful actions.

I accordingly find the defendants not liable. The entire claim is therefore dismissed with costs to the defendants.

75. Mr Sino submitted that there is no time to properly think in the sort of situation the police officers were faced with. What happened was an accident.

76. Mr Sino conceded that if the plaintiff succeeds in establishing negligence on the part of the police officers the State will be vicariously liable.

77. As to damages, Mr Sino argued that there is nothing to assess in respect of the plaintiff's dependency on the deceased as he was only 16 when he died. He was dependent on the plaintiff, his mother. Not the other way around.

78. As to the solatium, nothing has been pleaded. So nothing can be awarded. Likewise with the claim for loss of expectation of life. Nothing was pleaded so nothing can be awarded.

79. There can be no award for exemplary damages as the individual police officers involved had not been named as defendants.

80. As for the funeral expenses that are claimed as special damages, the evidence has not been sufficiently corroborated, so the award should be restricted to K4,000.00.

FIRST MAJOR LEGAL ISSUE: DID THE POLICE OFFICERS COMMIT THE TORT OF NEGLIGENCE?

81. The police officers who attempted to apprehend the two suspects at Ialibu Market were on duty. They owed a duty of care to everyone at the market, whether they were suspects or bystanders.

82. The police as a whole, and particularly Snr Const Kevin Ekare who fired the shots, were negligent. He breached the standard of care required of a police officer in the circumstances. I cannot accept that he intended to harm anybody. He and Chief Sgt Mongea were in a very difficult situation. But I infer from the evidence that if they had handled the situation in a more careful and less heavy-handed way, the incident would not have developed in the way that it did. It was not necessary for Snr Const Ekare to fire seven or eight shots to disperse the crowd. The evidence points to the crowd fleeing immediately after he fired the first shot.

83. The ground was wet. It had been raining heavily. He went to higher ground. He should have appreciated the risks of doing that and the need to take extra care. If he was to fire more shots he should have been on solid ground. He in effect conceded in cross-examination that he was off-balance when he fired at least one of the shots. In all probability this was the fatal shot. He slipped but did not fall. In the process of correcting himself he fired the rifle while the barrel was in a near-lateral position.

84. The way in which the shots other than the first one were fired in a public place was dangerous and unnecessary. I accept Mr Sino's submission that the police were in a difficult position. They had to think and act quickly. They felt that their lives were threatened. I accept all that. Snr Const Ekare acted justifiably by firing the first shot. But the other shots were not justifiable. The police were negligent.

85. It has been established that it was a bullet from Snr Const Kevin Ekare's rifle that hit the deceased in the head. Causation is established. The type of injuries suffered by the deceased were reasonably foreseeable. The deceased was not guilty of contributing to his own death. The facts of this case are vastly different from those that gave rise to the defence of volenti non fit injuria in Pok's case. The deceased was an innocent bystander.

86. I accordingly find that the plaintiff has established the tort of negligence against the police officers involved in the incident, in particular Snr Const Kevin Ekare.

87. There is no doubt that the police officers who committed the tort of negligence are servants, agents and officers of the State. Therefore the State is liable for their tortious acts or omissions if committed within the scope of their police employment or functions. (David Kofowei v Augustine Siviri and Others [1983] PNGLR 449, National Court, Ramage AJ; The State v David Wari Kofowei and Others [1987] PNGLR 5, Supreme Court, Kidu CJ, Kapi DCJ, Woods J.)

88. The powers, functions, duties and responsibilities of the Police Force and its members are prescribed by Constitutional Law, statute and the underlying law. Section 197 of the Constitution states that the primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament, to preserve peace and good order in the country and to maintain and, as necessary, enforce the law in an impartial and objective manner. Section 140 of the Police Act 1998 states (and Section 139 its predecessor, the Police Force Act Chapter 65 stated) that a member of the Force has the same powers, duties, rights and liabilities as a constable under the underlying law, except in so far as they are modified by or under an Act.

89. If it is established that police officers were acting within the scope of their functions, the State is liable for their tortious conduct unless the State discharges the onus of showing that what they did was totally removed from the domain of their authorised actions. (Nogo Suzuke v The State WS 951 of 1994, 21.06.96, unreported, National Court, Injia J; Eriare Lanyat and Another v The State [1997] PNGLR 253, National Court, Injia J; Wama Kints v The State (2001) N2113, National Court, Davani J.)

Therefore the State is vicariously liable for the actions of the police officers.

THIRD MAJOR LEGAL ISSUE: WHAT AMOUNT OF DAMAGES SHOULD BE AWARDED TO THE PLAINTIFF?

91. Assessing damages in this case is not straightforward as the statement of claim is not well drafted and the submissions do not match the remedies sought in it. The statement of claim ought to have distinguished clearly between the dependency claim and the estate claim. Part of the confusion might be due to the trial being conducted by a different law firm to the firm that drafted the statement of claim. The new law firm should have addressed that practical difficulty before the trial. Leave to amend the statement of claim could have been sought, even during the trial (John Pias v Michael Kodi and Others (2004) N2690, National Court, Cannings J). If an inadequate statement of claim is not amended the lawyers with carriage of the trial must do the best they can with what they have. The evidence and the submissions – particularly those on assessment of damages – must always dovetail into the statement of claim. That did not happen in this case. This is apparent from table 3, which is a comparison of the categories of damages sought in the statement of claim and the categories of damages claimed in Mr Kiwai's submission.

TABLE 3: COMPARISON OF CATEGORIES OF DAMAGES
SOUGHT IN STATEMENT OF CLAIM AND SUBMISSION

92. If the submission had been well structured the categories of damages claimed by it would have been the same as those pleaded in the statement of claim. The inadequacies of the submission have exacerbated the inadequacies in the statement of claim. This does not mean that the plaintiff gets nothing. The court should exercise a certain amount of flexibility in dealing with shortcomings in the way a plaintiff's case has been put together. This is a court of justice, not a court of perfection of legal niceties. However, an integral part of the concept of justice is that a person against whom court action is taken – in this case, the State – must know the case they must meet. In practical terms this transposes into one of the basic rules of pleadings: a plaintiff cannot be awarded something that has not been pleaded.

93. All the above principles have been considered when assessing damages in this case. I will use the plaintiff's submission (not the statement of claim) as the basis of the assessment. I will summarise the four categories of damages claimed in the submission and the defendant's response. Then I will assess the four categories and indicate an award for each.

94. Table 4 sets out the categories of damages the plaintiff is claiming and how the defendant, the State, responds.

95. Mr Sino submitted that this head of damage was not pleaded in the statement of claim. I agree that it should have been separately claimed as it is part of the estate, as distinct from the dependency, claim. However, I will treat it as having been pleaded under the category of general damages. The amount of K3,000.00 is the conventional sum awarded for this head of damage (Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78 at p 88.) The claim is reasonable.

"Solatium" means 'a thing given to someone as a compensation or consolation'. It is a word of French and Latin origin, related to the word "solace", which means 'comfort or consolation in a time of great distress or sadness'. (The New Oxford Dictionary of English, Oxford University Press © 1998, pp 1770-1771.) The concept of a solatium for the parents of a child who has been wrongfully killed is referred to in Section 29 of the Wrongs (Miscellaneous Provisions) Act. Section 29(2) states:

... the court may award such damages, not exceeding K600.00 in the aggregate, as the court thinks just, by way of solatium for the suffering caused to a parent by the death of the child.

96. This is a lousy sum. But it is the law. The most that can be awarded to the plaintiff for the suffering endured for the death of her son is K600.00. This is distinct from the amount of damages that can awarded for the loss of his financial support, which is dealt with below under the heading 'dependency claim'. Because a solatium is a distinct category of damage, Mr Sino pointed out that it should have been expressly pleaded in the statement of claim.

97. I agree that it should have been separately claimed. However, I will treat it as having been pleaded under the category of general damages. The amount of K600.00 is the statutory limit. The claim is reasonable.

98. Mr Kiwai submitted that the plaintiff should be compensated for the loss of her son's help in running the household. The court should deem her dependency on him to be worth K20.00 per week, then work out the number of weeks from the date of filing of the writ (13 November 1998) until the deemed date of the plaintiff's death. He estimates that the plaintiff will live for 20 years after the date of trial, on the presumption that she was 50 years old at the date of trial and will live to the age of 70. That is how he came up with the figure of K48,800.00. I do not think the calculations in his submission are correct, but I think that I have summarised his argument fairly.

99. Mr Sino argued that the plaintiff should get nothing for the dependency claim. He relied on the judgment of Injia J, as he then was, in Andale More and Manis Andale v Henry Tokam and The State (1997) N1645. In that case the 18-year-old son of the plaintiffs was shot dead by police. Default judgment was entered against the defendants. As to assessment of 'dependency loss' his Honour allowed nothing, for various reasons. First, neither the pleadings nor the evidence indicated how old the parents were. (These details are required by Order 8, Rule 33 of the National Court Rules.) Secondly, particulars of the economic support lost by the parents were not pleaded, contrary to Section 32 of the Wrongs (Miscellaneous Provisions) Act. Thirdly, the deceased was under the age of majority (21 years) and a dependant himself and not in a position to support anyone else, including his parents. The present case has the same flaws, Mr Sino argued.

100. If I were to take the same approach as in Andale More I would probably reach the same conclusion: the plaintiff would get nothing. However, I have difficulty with that approach. It is a decision of the National Court, and I am also making a decision of the National Court, so I am, by the rules of precedent, not bound to follow it (Underlying Law Act, Section 19(2)).

101. The first two reasons for rejecting the claim in Andale More related to defects in the pleadings. The first related to Order 8, Rule 33(1)(a) of the National Court Rules. It provides that where a claim is made for damages for breach of duty and includes damages in respect of the death of a person the statement of claim must give the date and place of birth of the plaintiff. I agree with Mr Sino that that requirement has been breached in this case. The second defect related to Section 32 of the Wrongs (Miscellaneous Provisions) Act. It provides that the plaintiff must give the defendant full particulars of the person on whose behalf the action is brought and of the nature of the claim in respect of which damages are sought to be recovered. I agree that that requirement has also been breached. Therefore the pleadings are defective in this case.

102. However, I do not agree that it follows that the claim is wholly defective and that the plaintiff should get nothing. A defendant served with a vague or otherwise deficient statement of claim can request further and better particulars (see, eg National Court Rules, Order 8, Rules 33(5), 13(3), 13(4) and 13(5)). The deficiencies can also be cured by evidence at the trial. As stated earlier, the purpose of court proceedings is to dispense justice. The National Court is inevitably a forum for rigorous debate of legal principles and niceties. But the niceties should not get in the way of justice. The court must adhere to Section 158 of the Constitution, which states:

(1) Subject to this Constitution, the judicial authority of the People is vested in the National Judicial System.

(2) In interpreting the law the courts shall give paramount consideration to the dispensation of justice. [Emphasis added.]

103. I do not think I would be giving effect to that constitutional imperative if I were to allow a dependency claim to be defeated simply because the plaintiff's lawyers had failed to plead the claim correctly. That is not the way the law should be interpreted, in my view. It is cold comfort for an unsuccessful plaintiff who has lost their case because of the negligence of their lawyer to be told that things will be okay as they can now sue their lawyer. Justice demands that the court allow some flexibility. I am satisfied that the plaintiff's claim has been sufficiently particularised to give the defendant a fair chance of responding. I have not been provided with, nor have I found, any Supreme Court decision that would prevent me from departing from what I respectfully consider the overly strict approach to the pleadings taken in Andale More. Therefore I will not reject the present claim on the grounds that the pleadings were defective.

104. The third reason for rejecting the claim in Andale More was a substantive, not a procedural, one: the parents of a young man negligently shot dead by police when he was 18 years old could not succeed as, the court held, they were not dependent on him. He had not reached the age of majority (21 years of age). If there were any relationships of dependency, it was the deceased who was dependent on his parents, not the other way around.

105. This view of the world is a conventional one, demonstrated by cases such as Jackson Koko and Elisha Koko v MVIT [1988] PNGLR 167. Children of a marriage are regarded as dependants of their parents up to the age of 16 or 18. After that they are treated as independent. In that case two children lost their mother in a car accident. The children were aged four and two when she died. A dependency claim was brought on their behalf against MVIT (as insurer of the negligent driver who caused the accident, the children's father). When calculating the dependency claim Bredmeyer J held that the children were entitled to damages for the loss of any pecuniary benefits that they might reasonably have expected to enjoy had their mother not died plus the loss of their mother's extra services, eg instruction on essential matters to do with upbringing and help with homework, over and above those that could be provided by a housekeeper. These losses were assessed to be worth K3.50 per week, which was multiplied by the number of weeks from the date of death to the date on which each child would turn 16 years of age. In more recent National Court cases the age of independence was lifted to 18 years (eg None v MVIT [1990] PNGLR 561, Brunton AJ; Tapi v MVIT [1990] PNGLR 568, Woods J). Those two cases fine-tuned the general principle applied tacitly in Koko and expressly in Andale More: children are dependent on their parents; parents are not dependent on their children.

106. That, in my opinion, is not necessarily the case. It might represent the way things are meant to work in a western, nuclear family. But I do not think it is a true reflection of the way that families operate in Papua New Guinea. Extended families are the norm and the wantok system holds sway. From the date of birth, a child in PNG is an investment. In the village environment he is an investment for both the father's side and the mother's side of the family. A boy can be a warrior for his tribe. As he grows older, he will provide food and security to his mother and sisters. He will be a provider not only to his parents, brothers, and sisters but also for his uncles, particularly on his mother's side. A girl is also very much cherished and protected. She will typically help her mother greatly while she is growing up. She will fetch a bride price and bring peace if she marries into another tribe. When the child is growing up, he or she will help the mother look after pigs, chickens and help generally in the garden with cleaning, planting and harvesting. There is no doubt that in PNG any child is an investment unit to the parents as well as the extended family. I consider that the death of a 16-year-old boy would, in addition to the tragedy and trauma associated with the death, cause an economic loss to his parents, brothers and sisters and to the extended family. Furthermore, many children continue to live at home after they turn 16 or 18. When they marry they often still live at home. If they get a paid job they are expected to contribute to the maintenance of the extended family unit. If they are living a predominantly subsistence lifestyle in the village environment they are still expected to contribute to the maintenance of the family. The PNG family unit involves a much more complex, intricate set of interdependent relationships than in western societies, from where the principles that have been applied in the cases referred to above seem to have emerged.

107. The best approach to take, in my view, is to consider each case on its merits, free of the strictures of a western or common law prism, and ascertain whether, in fact, a parent who is a plaintiff was or was likely to be dependent on a child. Support for that approach is found in two National Court decisions of Woods J and a decision of Salika J.

108. In Muna Uokare v The State [1988-89] PNGLR 655 Woods J upheld a dependency claim by the parents of a young man aged 18 years who died following a motor vehicle accident. The defendant admitted liability and the case was about assessment of damages. The deceased was in good health prior to his death. He was a village man who cultivated traditional crops and coffee and assisted with the support of his parents. The parents were aged 45 and it would be expected that as they got older they would rely more and more on support from their children. His Honour considered that each parent had a life expectancy of 65 years. He awarded damages of K4.00 per week for each parent for the second 10 years of the remaining part of their lives with a deduction for early payment of 10 per cent.

109. In Simin Dingi v MVIT [1994] PNGLR 385 the deceased was a young woman aged 18 years, killed in a motor vehicle accident. The plaintiff, her father, claimed for bride-price the family would have received in due course from the marriage of the deceased. The evidence was that the deceased was healthy prior to her death and her father expected her to get married in the ordinary course of custom. The family would be expected to receive a bride-price payment. Woods J held that this was a legitimate claim and awarded K5,000.00 damages for lost bride-price.

110. In Puk Kum v The State, WS No 44 of 1996, 12.09.03, unreported, the deceased was a 25-year-old man, killed by police in a raid of Papen village, Western Highlands Province. The plaintiff, his father, brought an action on behalf of his wife and children claiming damages for the loss of dependency support due to the unlawful death of his son. The deceased was a mechanic who assisted his family financially as well as doing manual labour required of a son in a village environment. Salika J held that the State was vicariously liable for the unlawful conduct of the police officers involved, even though the individual officers were not named as defendants. His Honour considered that the plaintiff's wife (ie the deceased's mother) had a life expectancy of 55 years. Having regard to her age, she was awarded damages of K20.00 per week for 15 years.

111. Having considered all the matters outlined above and particularly the decisions in Uokare, Dingi and Kum, I reject Mr Sino's submission (based on the third leg of the reasoning in Andale More) that the plaintiff cannot, as a matter of law, establish any dependency on her deceased son. I find, on the facts, that the plaintiff was dependent on him and would have continued to be dependent on him had he not been killed. I will calculate the amount of damages using the following parameters:

In any legal proceedings, if the court does not consider that there is evidence or sufficient evidence to determine the age of a person the court, having seen the person, may itself determine the question.

I determine that the plaintiff was aged 45 at the date of trial. This means she was aged 39 on the date of her son's death. The end date of the period of dependency is the year 2024.

112. Section 25 of the Wrongs (Miscellaneous Provisions) Act specifically provides for funeral expenses. In Inabari and Another v Sapat and The State [1991] PNGLR 427 Salika J explained how a reasonable figure should be assessed, having regard to the normal costs and customary obligations that are generated by a death in PNG. The affidavit of the deceased's uncle, Paru Lama, itemises the funeral-related expenses that were incurred. The trouble with his evidence is that it mixes up funeral costs with legal costs. The total of K12,975.00 in his affidavit is too much. Mr Kiwai's submission itemises K20,450.00. But that is not supported by the affidavit evidence. Mr Sino submits that K4,000.00 is sufficient.

116. The Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52 is the governing law. Section 1 (interest on certain debts and damages) is the appropriate provision. It states:

(1) Subject to Section 2, in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

(2) Where the proceedings referred to in Subsection (1) are taken against the State, the rate of any interest under that subsection shall not exceed 8% yearly.

117. As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on the Judge: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run.

1 A plaintiff should in the normal course of events receive interest. There is nothing that takes this case out of the ordinary in that regard. Interest will be included in the sum for which judgment is given.

2 The standard rate of interest being used these days by the courts is 8%. It has been decided in some cases that awards of special damages should attract interest at only half of the proper rate (eg Pinzger v Bougainville Copper Ltd [1983] PNGLR 436, National Court, Bredmeyer J; approved on appeal in Pinzger v Bougainville Copper Ltd [1985] PNGLR 160, Supreme Court, Pratt J, Amet J, Woods J). I will follow that approach.

3 Interest should be payable on the total of the pre-judgment components, if any, of the various categories of damages that have been assessed. The governing principle is that interest is not intended to be compensation but an award of money paid to the plaintiff for being kept out of money that ought to have been paid to her. In Pinzger the Supreme Court acknowledged the sound arguments in favour of dividing up damages for pain and suffering and loss of amenities of life into components for past and future and confining interest awards to the component for past pain and suffering and loss of amenities. It follows that if a head of damage is compensation for future losses it will not attract any interest. I identify the pre-judgment and post-judgment components of the various categories of damages in the following table.

Thus the following amounts of damages will attract interest: loss of expectation of life (K3,000.00), solatium (K600.00), loss of support (K18,720.00); and funeral expenses (K5,000.00).

119. I calculate the amount of interest by applying, in relation to each category of damages attracting interest, the following formula:

120. I will order that there be included in the sum for which judgment is given, interest of K13,331.39.

121. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. However, the question of costs is a discretionary matter and the court has to have regard to other factors in addition to who wins the case. This trial commenced on 1 November 2004 and was adjourned a couple of times after the plaintiff's counsel wanted more time to prepare submissions. The statement of claim was not clearly drafted and, as indicated above, the submissions did not dovetail into it. This made the court's task of identifying and resolving the issues unduly time consuming. For these reasons, the plaintiff will not be awarded costs. The parties will bear their own costs.

____________________________________________________________
Jerry Kiwai Lawyers: Lawyers for the Plaintiff
Paul Paraka Lawyers: Lawyers for the Defendant

Statement of claim	Submission
General damages	Loss of expectation of life
Exemplary damages	Solatium
Declaration as to breach of rights	Dependency claim
Special damages	Reasonable funeral expenses

No	Category	Amount claimed (K)	Response (K)
1	Loss of expectation of life	3,000.00	0
2	Solatium	600.00	600.00
3	Dependency claim	48,800.00	0
4	Funeral expenses	20,450.00	4,000.00
Total		77,290.00	4,600.00

No	Category	Pre-judgment (K)	Post-judgment (K)	Total (K)
1	Loss of expectation of life	3,000.00	0	3,000.00
2	Solatium	600.00	0	600.00
3	Loss of support (dependency)	18,720.00	8,320.00	27,040.00
4	Funeral expenses (sp damages)	5,000.00	0	5,000.00
Total		27,320.00	8,320.00	35,640.00

National Court of Papua New Guinea

Napiri v Independent State of Papua New Guinea [2006] PGNC 216; N2976 (21 February 2006)