N3681

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 731 OF 2007

LOSIA MESA
Plaintiff

V

GARI BAKI, COMMISSIONER OF POLICE
First Defendant

SYLVESTER EUGA, PROVINCIAL POLICE COMMANDER
Second Defendant

CLETUS KUMASI
Third Defendant

JOHN TAKAPAN
Fourth Defendant

ALOIS KUKISAL
Fifth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Kimbe: Cannings J

2009: 22 April, 26 June

JUDGMENT

DAMAGES – assessment of damages – trespass to the person – general damages – special damages – exemplary damages – unlawful actions of police.

The plaintiff was working in his office at a local-level government when the deputy mayor walked in accompanied by armed police officers and demanded that the plaintiff leave immediately and hand over the keys to his office and an official vehicle. When he refused to comply with the demand the deputy mayor and the police officers assaulted the plaintiff and forced him to a nearby police station and on the way he was again assaulted. He was also assaulted on arrival at the station. The plaintiff suffered multiple soft tissue facial injuries and an eye injury, which has led to blurred vision and reduced visual acuity. He sued the Commissioner of Police, the police officers involved and the State. The cause of action was trespass to the person. He secured default judgment against the Commissioner and the State. This was a trial on assessment of damages.

Held:

(1)	General damages were assessed at K25, 000.00.

(2)	Special damages were inadequately particularized. Hence nothing was awarded.

(3)	Exemplary damages were assessed at K7, 000.00.

(4)	The total amount of damages awarded was K32, 000.00.

(5)	In addition, interest of K9, 472.00 is payable, making the total judgment sum K41, 472.00.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518
Andale More and Manis Andale v Henry Tokam and The State (1997) N1645
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
David Michael v Dennis Marus (2008) N3374
George Chapok v James Yali (2008) N3474
John Pias v Michael Kodi & Ors (2006) N2972
Lance Kolokol v The State (2009) N3571
Latham v Henry [1997] PNGLR 435
Linda Stanley v Mathew Kawa & The State (2005) N2865
Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364
Peter Kuriti v The State [1994] PNGLR 262

TRIAL

This was a trial on assessment of damages.

Counsel

G Linge, for the plaintiff
F Cherake, for the 6th defendant

26 June, 2009 

1. CANNINGS J: The plaintiff, Losia Mesa, has successfully sued the Commissioner of Police and the State for assault and battery against him by members of the Police Force. The cause of action is trespass to the person (David Michael v Dennis Marus (2008) N3374; George Chapok v James Yali (2008) N3474).

2. Default judgment has been entered. The plaintiff has come to the court for an assessment of damages.

THE INCIDENT

3. Mr Mesa was in October 2005 the Manager of the Kimbe Urban Local-level Government. He was 46 years old at the time. He had been a public servant, working in various positions, mainly at the local and district level in both East New Britain and West New Britain, for 27 years. A dispute had been brewing within the LLG and some people, particularly the deputy mayor of Kimbe, wanted Mr Mesa removed from the office of Manager.

4. On the afternoon of Friday 21 October, Mr Mesa was working in his office when the deputy mayor and two police officers (the fourth and fifth defendants) and a number of other people entered. They kicked and punched Mr Mesa and forced him out of his office at gunpoint and into a waiting police car. He was taken to the nearby Kimbe police station and on the way he was assaulted again. He was assaulted a third time on arrival at the police station. He was not charged with anything. He was allowed to leave the station at 6.00 pm that day. He was taken in a police vehicle to his home at Galilo village in the Hoskins district. He arrived home at 7.30 pm and then went to Valoka health centre. He was treated with painkillers. He was told by the duty nurse that due to the seriousness of his injuries he should go to Kimbe General Hospital, which he did the next day.

THE INJURIES

5. A report by Dr Joseph Amos of the Accident and Emergency Department summarises the condition that Mr Mesa was in when he presented to the hospital:

On examination he was in severe pain, conscious and had obvious injuries especially the right black eye. Appetite was poor due to injuries sustained to the mouth region.

Local examination revealed:

1.	Right eye – black eye, swollen and inflamed, pupils were reacting to light. Has bloody anterior chamber and visual acuity was reduced on the right side.

2.	Mouth – mucous membranes had evidence of lacerations, cuts and was sore (inflamed).

3.	Head/face – swollen and very tender.

4.	Upper extremities – bruises/cut – elbow regiones, both sides.

5.	Lower extremities – bruises/scratches.

6.	Thigh region – tender and sore.

7.	Right lumber region – swollen and tender and interferes with his daily activities.

In summary he has sustained extensive soft tissue injuries. Should the injuries be on the vital organs, should have been in a critical state.

He was treated with Tet Tox 0.5 cc, Buscopan, Panadol and Amoxycillin.

6. He was treated and discharged without admission.

7. Eleven months later, in September 2006, he was examined by Dr Melvin Usita in Port Moresby, complaining of blurred vision. He was recommended for vision correction with eyeglasses.

8. In January 2009 he was re-examined by Dr Amos at Kimbe General Hospital, who reports:

A.	EYE EFFECTS

Still has blurry vision.
Visual acuity has also been reduced.
Seen by ophthalmologist and has refractive errors.
The bloody anterior chamber on the right eye has gone, no lens opacity noted.
Still has watery eyes and sunlight exposure not good.

B.	HEAD AND NECK

The buccal mucosa laceration has completely healed.
The facial scars are giving him problems especially when shaving it bleeds now and then.
Also had effects from the scarring tissue including the elbow and the lower limbs and thigh, including the lumber region.

C.	PSYCHOLOGICAL

Has post-traumatic stress disorder clinically (NB: has not been assessed by a psychiatrist).
Also has evidence of depression.

THE CLAIM

9. The plaintiff is claiming:

•	general damages, K597,000.00; and

•	special damages, K12,000.00;

•	exemplary damages, K6,000.00; being

•	a total damages claim of K615, 000.00.
 
GENERAL DAMAGES

10. This is intended to compensate the plaintiff for the pain and suffering, humiliation, distress and inconvenience caused by the unlawful actions of the deputy mayor and the police officers. He suffered bodily injury and also has to be compensated for the shock and distress caused by the incident. The purpose of an award of general damages is to compensate a person; to put them as far as possible in the same position they would have been had they not suffered the injuries incurred because of another person’s wrongful conduct. General damages are intended to be neither a reward nor a penalty (Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364).

11. In assessing general damages I have considered three of my decisions in previous cases that bear some similarity to the present case. They are summarised in table 1.

TABLE 1: ASSESSMENT OF GENERAL DAMAGES: ASSAULTS BY MEMBERS OF DISCIPLINED FORCES AND/OR EYE INJURIES

No	Case	Details	Amount 	
1	Linda Stanley v Mathew Kawa & The State
(2005) N2865	Members of a police mobile squad were travelling along a highway when they came upon an incident in which a drunken man was causing a disturbance – police tried to arrest him but there was a scuffle, shots were fired and the plaintiff, an innocent bystander, was hit in the eye by a stray bullet, losing 50% of her visual capacity in one eye.	K25,000.00
	
2	John Pias v Michael Kodi & Ors
(2006) N2972	Three Defence Force soldiers unlawfully assaulted the plaintiff in a hotel – he lost the sight of one eye – general damages were assessed as representing the pain and suffering and loss of amenities of life associated with his loss of 100% vision in the right eye.	K60,000.00
	
3	Lance Kolokol v The State (2009) N3571	The plaintiff, an innocent man, was walking with friends near a public road – when he saw the police he ran away and was chased on suspicion of being involved in an armed robbery – he was caught, assaulted and shot in the leg and foot, then detained in custody for three days before being taken before a court, which granted him bail.	K25,000.00

12. The present case is similar to both Stanley and Pias as in both of those cases the plaintiff suffered a serious eye injury. I examined the precedents on general damages for eye injuries in Stanley before arriving at the figure of K25, 000.00. I regard Mr Mesa’s eye injury as not as serious as in either Stanley or Pias. This means that if it were only the eye injury he was being compensated for, a lesser amount of damages than in those cases would be awarded.

13. Mr Mesa is, however, being compensated not just for the actual eye injury but also the other facial injuries he received. I must also take into account the manner in which he received those injuries. The actions of the police officers who assaulted Mr Mesa were reprehensible.

14. I also take into account that according to Dr Amos’s second report Mr Mesa is suffering from depression and a form of post-traumatic stress disorder.

15. After comparing this case with the three previous cases and having regard to the nature of the incident in which Mr Mesa was injured I award general damages of K25, 000.00.

SPECIAL DAMAGES

16. This category of damage was inadequately particularised in the statement of claim. Mr Cherake, for the State, successfully objected to the evidence that Mr Linge, for the plaintiff, attempted to lead on this issue at the trial. There is no evidence to support this claim, so I award nothing for special damages.

EXEMPLARY DAMAGES

17. Since the Supreme Court’s decision in Abel Tomba v The State (1997) SC518 the courts have been reluctant to award exemplary damages against the State for abuse of police powers. The question to ask is whether the breach of the law by police officers is a technical breach or whether it involves a significant and unwarranted departure from the proper exercise of police powers, eg where a police operation is unauthorised and individual police officers are not named as defendants. If the facts fit into the first category, exemplary damages may be payable by the State. If the facts fit into the second category of cases, exemplary damages are not payable by the State. A plaintiff is expected to seek such redress from the individual police officers who breached the law.

18. In the present case, it is not clear whether the raid on Mr Mesa’s office was an unauthorised police operation. It appears to have been unauthorised. However, individual police officers have been named as defendants (even though default judgment has not been awarded against them). The case falls more within the first category than the second. Therefore I consider that the circumstances of the case do not exclude the awarding of exemplary damages.

19. I have also considered Section 12(1) of the Claims By and Against the State Act 1996, which states:

No exemplary damages may be awarded against the State unless it appears to the court that, regardless of the nature of the claim, there has been a breach of Constitutional rights so severe or continuous as to warrant an award of exemplary damages.

20. So the question to be asked is: was the breach of constitutional rights so severe or continuous as to warrant an award of exemplary damages? At least three of Mr Mesa’s constitutional rights, or human rights, were breached:

•	right to protection from inhuman treatment (Constitution, s 36);

•	right to the full protection of the law (Constitution, s 37(1));

•	right to be treated with humanity and with respect for the inherent dignity of the human person (Constitution, s 37(17)).

21. The decision whether to award exemplary damages is a matter of discretion. The purposes of an award of exemplary damages are to:

•	punish the defendant and vindicate the distinction between a wilful and an innocent act (Latham v Henry [1997] PNGLR 435, per Doherty J);

•	not unjustly enrich a plaintiff, but symbolise public indignation (Peter Kuriti v The State [1994] PNGLR 262).

22. I have considered the view expressed by Judges in a number of cases that if exemplary damages are to be awarded for breaches of human rights by police officers, it is the individual police officers who should pay – not the State (eg Andale More and Manis Andale v Henry Tokam and The State (1997) N1645, per Injia J).

23. In this case, default judgment has been entered only against the first and sixth defendants, the Commissioner of Police and the State. The police officers who assaulted the plaintiff, some of whom were named as defendants, cannot be held to account through this judgment for their individual actions. I do not think it would be just to deny the plaintiff exemplary damages for that reason.

24. I am satisfied that this is a case where the defendants who have been found liable – the Commissioner and the State – have obviously failed in their duty to train and educate these police officers on proper and acceptable methods of policing. The State must be penalised for the wilfully unconstitutional actions of its officers. An award of exemplary damages will symbolise the indignation and disgust of this Court and the People of Papua New Guinea and in particular the People of West New Britain about what the police did to the plaintiff. They allowed themselves to become embroiled in an internal dispute in the local council and aided and abetted the deputy mayor in taking the law into his own hands.

25. The breach of constitutional rights was sufficiently severe and continuous – as there were three district occasions on which the plaintiff was assaulted – to warrant an award of exemplary damages. In Kolokol’s case, where the breach of human rights extended over three days I awarded exemplary damages of K10,000.00. In this case the breaches were not as severe and did not continue for as long as in Kolokol.

26. In these circumstances I award exemplary damages of K7, 000.00.

SUMMARY OF DAMAGES AWARDED

General damages 	= K25,000.00	
Special damages	= 0	
Exemplary damages 
	= K7,000.00	
Total damages 	= K32,000.00	

INTEREST

27. Mr Cherake submitted that the plaintiff cannot be awarded any interest as it was not sought in the statement of claim. Mr Linge conceded that interest was not expressly claimed but contended that the prayer for relief in the final paragraph of the statement of claim, which seeks "any other order as the court deems fit" covers a claim for interest.

28. I have decided to uphold Mr Linge’s submission as the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52, which is the law that allows the court to award interest, does not stipulate that interest must be expressly sought by a plaintiff. The relevant provision is Section 1, which states:

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.

29. 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.

30. I exercise that discretion in the following way:

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. The Court will order that interest be included in the sum for which judgment is given.

2 	The rate of interest commonly used is 8%. In view of current economic conditions in the country I think 8% is the proper rate of interest.

3 	Interest should be payable on the whole of the sum of damages for which judgment is given.

4	I will fix the commencement date for the appropriate period as the date on which the cause of action accrued, 21 October 2005. The end of the period is the date of judgment, 25 June 2009. The appropriate period is 3.7 years.

31. I calculate the amount of interest by applying the following formula:

•	D x I x N = A

Where:

•	D is the amount of damages assessed;

•	I is the rate of interest per annum;

•	N is the appropriate period in numbers of years;

•	A is the amount of interest.

Thus:

•	K32, 000.00 x 0.08 x 3.7 = K9, 472.00.

COSTS

32. The general rule is that costs follow the event, i.e. the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.

JUDGMENT

33. Although default judgment was entered against the Commissioner of Police as well as the State, I am not satisfied that the Commissioner was given proper notice of the trial. Therefore I will only enter judgment against the State. The judgment will be in the following terms:

1)	damages, payable by the sixth defendant, the State, to the plaintiff, of K32,000.00;

2)	interest payable by the sixth defendant to the plaintiff, of K9,472.00;

3)	being a total judgment lump sum of K41,472.00;

4)	costs of the proceedings shall be paid by the sixth defendant to the plaintiff on a party-party basis, to be taxed if not agreed.

Judgment accordingly.

_____________________________________________
Linge & Associates: Lawyers for the Plaintiff
Solicitor – General: Lawyer for the Sixth Defendant