Gunambo v Upaiga [2010] PGNC 239; N3859 (25 January 2010)

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DAMAGES - Assessment of damages - Trespass to the person - Unlawful assault by members of police - Facial, back, groin and chest injuries - Post concussion syndrome - General damages - Special damages - Exemplary damages - Damages for breaches of constitutional rights - Constitution - Sections 36(1), 37(1), 57 & 58.

PLEADINGS - Special damages and out of pocket expenses - Pleading of and particularization of - Lack of - Mandatory to plead and particularize - National Court Rules - Order 8, rules 33(g) & 34.

Martha Limitopa & Poti Hringe -v- The State [1988-89] PNGLR 364
Losia Mesa -v- Gari Baki as Commissioner of Police & The State (2009) N3681
Darvl -v- Motor Vehicle Insurance Trust Limited [1908] PNGLR 49
Mathew John Westcott -v- Motor Vehicles Insurance Limited (2005) N3565
Timinti Guli -v- Motor Vehicle Insurance (PNG) Trust [1994] PNGLR 304; (1994) N1255
Brian John Lewis -v- The State [1980] PNGLR 219
Pose -v- The State [1981] PNGLR 556
Motor Vehicle Insurance Trust Limited -v- James Pupune [1993] PNGLR 370
Tom Amaiu -v- The Independent State of Papua New Guinea (1999) N1932,
Peter Nangain Kol -v- Shorncliffe (PNG) Limited (2001) N2121
Desmond Huaimbukie & Ors -v- James Baugen & The State (2004) N2589
Andrew Moka -v- Motor Vehicle Insurance Limited (2001) N2098
Andrew Moka -v- Motor Vehicle Insurance Limited (2004) SC729
Papua New Guinea Banking Corporation Limited -v- Jeff Tole (2002) SC694
Lance Kolokol -v- Constable George Amburuapi & The State (2009) N3571
Latham -v- Henry [1997] PNGLR 435
Peter Kuriti -v- The State [1994] PNGLR 262
Abel Tomba -v- The State (1997) SC518
Aina Mond & Ors -v- Robert Kalasim & Ors (2004) N2638
James Liwa & Peter Kuriti -v- Markus Vanimo & The State (2008) N3486
Tony Wemin & 227 Ors -v- Robert Kalasim, Provincial Police Commander of Simbu & The State (2005) N2134
Bale Karopo & 4 Ors -v- Provincial Police Commander of New Ireland Province & Ors (2003) N2474
John Tuik Salmon -v- The State [1994] PNGLR 265
Cheong Supermarket Pty Ltd -v- Pery Muro [1987] PNGLR 24

1. MAKAIL, J: The plaintiffs commenced proceedings on 12th September 2001 against the defendants for damages for unlawful assault and breaches of Constitutional rights. The first and second defendants are members of the police force and are being sued in their official capacity. All of them failed to file their notice of intention to defend and defence within the time prescribed by the National Court Rules and the Claims By & Against the State Act, 1996. The plaintiffs brought an application for default judgment which was granted on 07th July 2006. The case now before the Court is only for assessment of damages.

2. From the evidence of the first plaintiff, in his affidavit sworn on 1st June 2007 and filed on 5th June 2007, (exhibit "P1"), and supplementary affidavit sworn on 1st June and filed on 5th June 2007, (exhibit "P2") and the second plaintiff in his affidavit sworn on 4th June 2007 and filed on 5th June 2007, (exhibit "P3"), much of the facts giving rise to the action are not in dispute and they are these:

3. On 26th October 2000, at about 10 o'clock in the morning, the first defendant led a group of policemen to Tarangau community school grounds in Mt Hagen in a police motor vehicle, described as a Toyota land-cruiser, bearing registration no: HAG-221, to attend to an altercation between the plaintiffs and a male student. It is said that the male student is the son of the first defendant and had assaulted the daughter of the first plaintiff. Upon their arrival, they assaulted the plaintiffs by punching, kicking and booting them. They then put them in the motor vehicle and drove to Mt Hagen Police Station. On the way, they repeatedly assaulted them. At the police station, they repeatedly assaulted them until they fell unconscious.

4. The first plaintiff is a subsistent farmer. As a result of being unlawfully assaulted by the first defendant and his men, he suffered physical injuries. He provided a medical report by Dr John Mckup of Family Medical Centre Ltd dated 25th April 2007 which stated that:

"He is said to have multiple injuries to his body especially mouth, jaws, chest, and the back of which post injury symptoms still persists today. His current symptoms are multiple being:

Our medical findings show the following positive findings of the alleged injury which are as follows:

Mouth: Tender mandible joints with decicits in his mouth opening. Positive TMJ crepitus

Back/Lumber spine shows tenderness in the loin and restriction in his spine's flexion extension lateral bending which are all restricted.

His CNS assessment is within normal limits however, he does have post concussion symptoms to this day.

In conclusion I find that this man is still nursing his old injuries to this day as shown in our medicals above. His loin injury complicated with plyo nephritis."

5. The medical report was prepared some seven years after the assault because he had previously attended the Mt Hagen General Hospital on the day he was assaulted and was examined by a Health Extension Officer by the name of Mr Smee Rank. The medical report prepared by Mr Rank dated 31st October 2000 stated:

6. He says that, following the assault, he frequented Mt. Hagen General Hospital and Kudjip Nazarene hospital to receive medical treatment. He also frequented local pharmacies to purchase medicines to help him live with less pain. He was unable to produce the note book containing the medical notes as it was at home. He further says that as a result of injuries, he is unable to support his family of six children and wife because he is unable to perform manual duties and continues to experience severe body pain, bloody urine and vomit. He says that his life is now dependent on medication and he has been affected psychologically.

7. The second plaintiff is also a subsistent farmer. As a result of the unlawful assault by the first defendant and his men, he suffered physical injuries. On 26th October 2000, he attended at the Mt Hagen General Hospital and sought medical treatment. He was attended to by an Health Extension Officer by the name of Mr Smee Rank. He also obtained a medical report on 25th April 2007 from Dr. John Mckup after he was treated there by Dr Mckup. He incurred costs in receiving medical treatment and medical report. He attended to Dr. John Mckup's clinic only on one occasion in 2007. He also says that his condition of dizziness has improved. He did not provide particulars of his family, that is, the number of children, their ages and whether they are in school and depended on him. He also did not say if his wife is working.

9. The medical report by Dr John Mckup of Family Medical Centre Ltd dated 25th April 2007 stated that:

"He is said to have multiple injuries to his face especially in the mouth and jaws, copping lips, blow to nose and jaws knocked loose. His current symptoms are multiple being:

Our medical findings shows the following positive findings of the alleged injury which are as follows:

Mouth: Tender mandible joints with decicits in his mouth opening. Positive TMJ crepitus which denotes mandible joint damages."

10. I should also mention here that, there was a further affidavit which the plaintiffs sought to rely on to support their claims. This was the affidavit of Dr John Mckup sworn on 4th July 2007 and filed on 10th July 2007. The defendants objected to its reliance on the basis that the doctor was not present at trial for cross examination. The plaintiff's counsel made an oral application for an adjournment so that the doctor could attend for purposes of cross examination but I refused it. As a result, the said affidavit was not admitted into evidence. For purposes of assessment of damages, I shall not consider it. The defendants did not call any witnesses and instead proceeded to cross examine the two plaintiffs in relation to the contents of their affidavits.

11. From the physical injuries suffered by the plaintiff, they bring this action against the defendants for the following damages:

1. The sum of K250,000.00 in damages plus exemplary damages, interest and costs for the first plaintiff.

2. The sum of K50,000.00 in damages plus exemplary damages, interest and costs for the second plaintiff, and

12. The pertinent issue is the measure of damages under the different heads of damages. To determine this issue, it is also pertinent to determine whether the different heads of damages have been pleaded and proven on the balance of probabilities.

13. First, the plaintiffs claim general damages. Their counsel submits at p 8 of his written submission that the first plaintiff should be awarded K105,000.00 whilst the second plaintiff should be awarded K40,000.00 given the serious multiple injuries each had suffered at the hands of the first and second defendants. Counsel for the defendants submits at pp 16 and 17 of her written submission that the first plaintiff should be awarded K5,000.00 and the second plaintiff, K3,000.00 because whilst conceding that each of the plaintiff suffered multiple injuries to their face and body, there is no evidence to show that they have suffered either partial or permanent disabilities to warrant the kind of damages they seek.

14. A general damage is intended to compensate the plaintiff for the pain and suffering, humiliation, distress and inconvenience caused by the unlawful actions of the defendants. They suffered bodily injuries and have to be compensated for the shock and distress caused by the assaults. The purpose of an award of general damages is to compensate a person; to put that person as far as possible in the same position he or she could have been had he or she not suffered the injuries incurred because of another person's wrongful conduct. General damages are intended to be neither a reward nor a penalty: see Martha Limitopa & Poti Hiringe -v- The State [1988-89] PNGLR 364 and Losia Mesa -v- Gari Baki as Commissioner of Police & The State (2009) N3681.

15. In assessing general damages I have considered past cases referred by respective counsel in their written submissions. Most of them are not relevant to the present case as they are related to eye and limb injuries with either permanent or partial loss as in Darvl -v- Motor Vehicle Insurance Trust Limited [1980] PNGLR 49 and Mathew John Westcott -v- Motor Vehicles Insurance Limited & 2 Ors (2005) N3565. In Mathew John Westcott's case (supra), the plaintiff whilst driving a motorcycle was struck by a truck traveling in the opposition direction. The plaintiff sustained compound factures to his metacarpals. According to a medical report, the plaintiff suffered psychological trauma assessed at 40%.

16. Davani, J awarded K90,000.00 for permanent injuries, disabilities and loss of function of affected parts of his body such as right leg - 80% loss, right leg shortening - 100% change, scarring of skull and muscles - 50% loss; quality of life, pain and loss of full use of right leg - 60% loss Osteomyelitis (inflammation of the bone) - 25%; and Psychological trauma - 40%.

* Timinti Guli -v- Motor Vehicles Insurance (PNG) Trust [1994] PNGLR 304; (1994) N1255, where the plaintiff made a claim for damages for injuries received when he was knocked down by a motor vehicle. The plaintiff received injuries to his lower leg and head when he was knocked unconscious. There was some evidence of post concussion syndrome but it was not serious enough to warrant continued medical attention and a psychiatric examination. Woods, J awarded general damages for pain and suffering and loss of amenities at K11,000.00.

* Brian John Lewis -v- The State [1980] PNGLR 219, where the plaintiff sustained head injury from a motor vehicle accident. There was clear evidence of confusion and progressive memory disturbance. The Court awarded K25,000.00 as general damages.

* Pose -v- The State [1981] PNGLR 556, where the plaintiff sustained head injury and damaged his brain which resulted in minor loss of function of the right arm and leg. The Court awarded K9,000.00 as general damages.

* Motor Vehicle Insurance (PNG) Trust Limited -v- James Pupune [1993] PNGLR 370, where the plaintiff suffered head injury sustained in a motor vehicle accident. The plaintiff complained of headaches, defective memory, defective consideration, a persistent left facial nerve paralysis, excessive laceration from left eye, and a forehead scar. The Supreme Court awarded general damages of K11,000.00.

* Tom Amaiu -v- The Independent State of Papua New Guinea (1999) N1932, where the plaintiff, a policeman sustained physical injuries to his face and neck following a motor vehicle accident. The findings of the doctor showed that the plaintiff suffered severe head and neck injuries where his head injury was around the facial area. The doctor assessed the plaintiff's functional disability at 40%. When the plaintiff was admitted to the hospital, he had blood coming from his mouth and injuries to his face. He continued to have problems with his right jaw making it difficult to eat, backbone and parts of his body. Hinchliffe, J awarded general damages at K22,000.00.

* Peter Nangain Kol -v- Shorncliffe (PNG) Limited (2001) N2121,where the plaintiff in that case suffered injuries whilst driving a PMV at night, and drove into the rubbish and gravel (which was left by the defendant) and was injured. The trial in relation to assessment of damages as default judgment was entered against the defendant. The plaintiff suffered lacerations to his nose, left knee, as well as his chest. The evidence presented by the doctors showed that the plaintiff suffered a permanent injury to his nose which has left him with nasal speech and some problems with his breathing. Hinchliffe, J awarded K9,500.00 as general damages.

* Desmond Huaimbukie & Ors -v- James Baugen & The State (2004) N2589, was a case where the plaintiffs claimed damages, interests and costs arising out of a police raid resulting in destruction to property, assault and battery, unlawful detention and breaches of their Constitutional rights. The acts were allegedly committed by members of the police force based at Yangoru Rural Police Station in East Sepik Province on 12th December 2001. The matter came before Kandakasi, J for assessment of damages.

The plaintiffs were severely beaten and received severe injuries, namely, broken lips, mouth, swollen faces and body and they were detained in Maprik police cell without a charge for five weeks. Kandakasi, J assessed and awarded general damages for each of the plaintiffs at a range of K4,000.00 and K8,000.00.

* Andrew Moka -v- Motor Vehicle Insurance (2001) N2098, where the plaintiff claimed damages for physical injuries received from a motor vehicle due to a collision with another vehicle. The plaintiff sustained a fractured leg, cuts to his face, left hand, wrist and thigh. He sustained a fracture leg injury and other laceration injuries to some other parts of his body. The plaintiff complained of occasional episodes of severe headaches (migraine) associated with dizziness with a sensation of discomfort. The doctor found that the plaintiff has some head injury which is known as post traumatic syndromes. He then estimated the plaintiff's disability to be at 10% for that part of his body. Kandakasi, J awarded K23,000.00 taking into consideration the rise in inflation and the decrease in the purchasing power of the Kina.

The decision by Kandakasi, J was appealed by the plaintiff to the Supreme Court against the finding of contributory negligence and also the award of K23,000.00 as general damages. The Supreme Court upheld the appeal against the finding of contributory negligence and award of K23,000.00 and increased it to K35,000.00. One of the reasons for increasing the award was the high rate of inflation. The Supreme Court said:

"We are of the opinion that in the light of the high rate of inflation existing at the present time the Courts ought to consider that as a factor in considering awards for general damages for pain and suffering. We consider that due to inflation, the award for general damages for pain and suffering ought to be much higher now then what the Court was awarding in 1988 and 1998, when the above cases were decided. Accordingly, our view is that, general damages for pain and suffering should be higher than claimed in this case." see Andrew Moka -v- Motor Vehicles Insurance Limited (2004) SC729

18. In the present case, the facial and body injuries suffered by the plaintiffs are similar to the injuries sustained by the plaintiffs in Tom Amaiu's case (supra), Desmond Huaimbukie & Ors's case (supra), and Andrew Moka's case (supra) where general damages were assessed between K4,000.00 and K35,000.00. In my view, the facial and body injuries are serious. The description of the facial and body injuries of the plaintiffs are consistent with the description of the assaults, especially the repeated assaults by the first defendant and his men. The plaintiffs were punched, kicked with boots on their faces and body, that is why, they had swollen faces, bleed profusely from the wounds and noses and painful groin.

19. In respect of the first plaintiff, he was kept under close observation for 8 hours when he was admitted at the Mt Hagen General Hospital. To my mind, this depicts a very serious case of assault. In fact, it is noted that the first plaintiff suffers from bloody urine to date. He also suffers from a painful jaw which restricts his eating. I also accept his evidence that his is restricted in performing manual work like gardening due to back pain when bending or walking. As for the second plaintiff, he also suffers from a painful jaw which restricts his eating.

20. Added to that is the claim of post concussion syndrome. According to the medical report by Dr Mckup dated 27th April 2007, there is some evidence that the plaintiffs are suffering from post concussion syndrome, although the extent is not clear. Dr Mckup states that the first plaintiff and also the second plaintiff experience dizziness. This is confirmed by the plaintiffs in their own evidence. Although there is no further evidence from Dr Mckup as his affidavit was rejected by the Court due to his absence, I am satisfied that the plaintiffs are suffering from post concussion syndrome. But as I said, there is no further evidence in relation to the extent of the post concussion syndrome, so I do not know whether it is that serious in each plaintiff's case.

21. But what I do know is that, there is no evidence of confusion and progressive memory disturbance as suffered by the plaintiff in Lewis' case (supra) and frequent headaches, defective memory and defective consideration as suffered by the plaintiff in Pupune's case (supra). Hence, in my view, I can safely conclude that the post concussion syndrome suffered by the plaintiffs in this case is not as serious as those suffered by the plaintiffs in Lewis's case (supra) and Pupune's case (supra). This means that, the measure of damages for the post concussion syndrome suffered by the plaintiffs in this case will be less than those in Lewis's case (supra) and Pupune's case (supra).

22. Taking into account the facial injuries, back, chest, groin and post concussion syndrome and inflation in the first plaintiff's case, I would award a global sum of K18,000.00 as general damages. In the case of the second plaintiff, taking into account the facial injury, post concussion syndrome and inflation, I award a global sum of K14,000.00 as general damages.

23. In his written submissions at p10, counsel for the plaintiffs submits that the plaintiffs had incurred out of pocket expenses in seeking medical treatment. He submits that the total medical costs for the first plaintiff is K1,550.00, and K650.00 for the second plaintiff. The costs comprise of payment of medical fees, payment of medical reports and transportation.

24. There is one fundamental problem with this claim though, and that is, the plaintiffs have not pleaded the claim for special damages including out of pocket expenses in the statement of claim. Indeed, they have not particularized the special damages and out of pocket expenses as is required by Order 8, rules 33(g) and 34 of the National Court Rules. In my view, Order 8, rules 33(g) and 34, are in mandatory terms, that means, the plaintiffs are obliged to not only plead their claim for special damage and out of pocket expenses but also particularize them. If they do not, there is no foundation in the pleadings upon which the plaintiffs may bring the claim against the defendants. There is abundance of case authorities on pleadings in this jurisdiction.

25. In respect of assessment of damages, they say that, assessment of damages can only be for matters pleaded and awards can only be made for matters pleaded and proven. In Papua New Guinea Banking Corporation Limited -v- Jeff Tole (2002) SC694 the Supreme Court comprising of Amet, CJ (as he then was), Sheehan & Kandakasi, JJ highlighted the need for pleading of particulars in this way:

"The law on pleadings in our jurisdiction is well settled. The principles governing pleadings can easily be summarized in terms of, unless there is foundation in the pleadings of a party, no evidence and damages or relieves of matters not pleaded can be allowed."

26. In Desmond Huaimbukie & Ors' case (supra), Kandakasi, J emphasized the importance of pleadings as follows; "pleadings play a very significant role in first saying what evidence the parties can lead and secondly, the kind of damages a party can claim and be granted. It is also clear that, where the parties chose by their conduct to go outside their pleadings, the Court can award damages not claimed in the pleadings but established by the evidence."

27. That being the law and given the lack of pleadings and particularization of special damages and out of pocket expenses, I am afraid, I have to decline an award under head of damages, even though there appears to be some evidence establishing it. I dismiss it.

28. The plaintiffs also claim exemplary damages against the defendants. At p 9 of his written submissions, their counsel submits that the circumstances surrounding the assault and the resultant injuries warranted an award of exemplary damages. He submits K30,000.00 would be reasonable award for the first plaintiff and K20,000.00 for the second defendant. Counsel for the defendants on the other hand, argues that an award of exemplary damages is discretionary, hence should be awarded in cases where the breach is so severe and continuous. She submits that the circumstances of the present case do not warrant an award of exemplary damages against the State but against individual policemen.

29. She refers to the case of Lance Kolokol -v- Constable George Amburuapi & The State (2009) N3571 by Cannings, J to support her contention. There, the plaintiff 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 day before being taken before a Court, which granted him bail. He sued the police officers who assaulted and shot him, and the State, claiming general damages, compensation for breach of human rights, special damages and exemplary damages. Default judgment was entered against the defendants, with damages to be assessed.

30. Cannings, J emphasized in that decision that, 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 willful and an innocent act (Latham -v- Henry) [1997] PNGLR 435, per Doherty, J and not to unjustly enrich a plaintiff, but symbolize public indignation (Peter Kuriti -v- The State [1994] PNGLR 262).

31. His Honour referred to the Supreme Court's decision in Abel Tomba -v- The State (1997) SC 518, which has been consistently followed by the National Court in many of its decisions, where the Supreme Court was reluctant to award exemplary damages against the State for abuse of powers by members of the disciplined forces. His Honour further considered that the question to ask is, whether the breach of the law by such members is technical breach or whether it involves significant and unwarranted departure from the proper exercise of lawful powers eg, where a Police Force or Defence Force operation is unauthorized and individual members of the Force are not named as defendants.

32. He said that 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 members who breached the law. In the end, his Honour found that the facts of the case showed that it was not an unauthorized police operation as individual policemen have been named, that there had been an armed robbery and that, police had mobilized and went searching for suspects and in the process, committed breaches of the law. The State was ordered to pay exemplary damages of K10,000.00.

33. In Desmond Huaimbukie & Ors' case (supra), Kandakasi, J stated that Courts should exercise discretion when considering awarding exemplary damages. His Honour stated that the people and the State should not suffer because of the actions of a handful of policemen. It is also important to consider 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.

34. In Aina Mond & Ors -v- Robert Kalasim & Ors (2004) N2638, Manuhu J, stated that in light of section 12(1) of the Claims By & Against the State Act, 1996 as a general rule, no award of exemplary damages may be made against the State. The only exception to this general rule is where "there has been a breach of Constitutional rights so severe or continues as to warrant as award of exemplary damages." The breach in question must not only be "so severe" or continues", but must also warrant an award of exemplary damages. In practice, there requirements are inseparable. Where this situation exists, the Court should award exemplary damages against somebody, and the State, with the combined operation section 12(1) and the Wrongs (Miscellaneous Provisions) Act, is not exonerated from such liability. It should be held responsible, especially when identifying policemen is a difficulty in most police raids.

35. Similarly as alluded to above the real issue is whether there has been a "breach of the Constitutional rights so severe or continues as to warrant an exemplary damage." The severity of breach of Constitutional rights in question may be determined first, by examining the facts of the case, and secondly, by taking into account the level of disproval or acceptance by public at large in relation to the frequency of the nature of constitutional breach in question.

36. With those principles in mind, I turn to the present case. I have decided not to award exemplary damages against the State because the series of assaults of the plaintiffs appears to have originated from a personal dispute between the first plaintiff's daughter and the first defendant's son who were attending Tarangau community school. The first plaintiff's daughter was assaulted by the first defendant's son and that got the first plaintiff and the first defendant involved. In my view, there is no justification for the State to pay exemplary damages for the actions of the members of the police in a guise of performing their lawful duties.

37. I believe, where members of the police force are engaged in such behaviour, they should individually be penalized by an award of exemplary damages and in this case, the plaintiffs have named the first and second defendants in this proceeding, so really, this is not a case where they were unable to identify and name the tortfeasors. They have been identified and named and should have appeared at trial and defended the case but for some unknown reasons, they did not. If there is to be an award of exemplary damages, it should be against the first and second defendants as I do not think the State did approve or authorize such severe and harsh actions.

38. As I said above, I do see any justification for the State to pay exemplary damages for actions of the first and second defendants arising from a personal dispute in a guise of performing their police functions and duties. They must personally be responsible for the actions and an award of exemplary damages against them would not only be a lesson to them not to repeat such conduct or behaviour in future but also a reminder to other police officers out there not to engage in such conduct or behaviour. It is a symbol of the Court's disgust and disapproval of such conduct or behaviour by members of the police force.

39. In deciding the amount to be awarded as exemplary damages, I have had recourse to my own judgment in James Liwa & Peter Kuriti -v- Markus Vanimo & The State (2008) N3486, where I awarded K2,000.00 as exemplary damages against the first and second defendants who were members of the police force. In that case, the first and second defendants confiscated the plaintiffs' PMV licence and a driver's licence without any lawful reason. I found their actions unlawful and ordered them to pay exemplary damages. I declined to award exemplary damages against the State by following the decision of the Supreme Court in Abel Tomba's case (supra).

40. In my view, the amount of K2,000.00 is fair and reasonable and I would apply that amount in this case. Therefore, I order that the first and second defendants are to pay K2,000.00 each to the first plaintiff, and a further K2,000.00 each to the second plaintiff.

41. The plaintiffs also claim breaches of Constitutional rights against the defendants arising from the unlawful assault. However, at p 9 of his written submission, counsel for the plaintiffs indicated that the plaintiffs "do not claim any quantum under this heading". It is unclear from his submission if this head of claim is not pursued because it is covered or lumped up with the claim for general damages as was done in the case of Tony Wemin & 227 Ors -v- Robert Kalasim, Provincial Police Commander of Simbu & the State (2005) N2134. There, the Court awarded a lump sum and global sum of K850,000.00 at K2,000.00 per plaintiff which comprised of general damages and damages for breaches of Constitutional rights in a police raid case.

"Under this general heading further claims for physical and sexual assaults and deaths were also sought by the Plaintiffs but were not vigorously pursued at trial mainly because no evidence was led in each of those claim. On one hand, whilst these breaches raise separate and distinct heads of claims in common law for purposes of compensation, however, they could easily be merged and classified under one single heading of breaches of constitutional rights on the other, on the basis that their causes of actions are founded under the Constitution Sections 57 and 58, quite apart from the common law. In this respect one may argue that there is no impropriety in classifying breaches of constitutional rights as a cause of action per se in negligence or police raid cases where abuses of human rights guaranteed in the Constitution are pleaded.

I do not consider there to be any justification for any separate claim for damages for assault as distinct from the breach of constitutional rights in this particular case, which guaranteed rights have been pleaded as breached which include right to privacy (s.49), freedom from arbitrary search and entry (s.44), freedom from inhuman treatment (s.36), protection from unjust deprivation of property (s.53), right to life (s.35) and so forth that the police unquestionably violated and which ought to be compensated."

43. The other view is that, a claim for breaches of Constitutional rights may be enforced independently by way of an enforcement proceeding under section 57 of the Constitution, like in Bale Karopo & 4 Ors -v- Provincial Police Commander of New Ireland Province & Ors (2003) N2474. In that case, five applicants sought enforcement of their fundamental human rights following unlawful assaults by members of the police force in the course of searching of suspects of an offence. The applicants sustained multiple injuries to their head, face, limbs and body. The medical evidence provided by the applicants revealed the following injuries:

44. The applicants applied to the Court to enforce their rights under section 57(1) of the Constitution. Lenalia, J found that the actions of the police officers, who were named in the proceeding, were harsh and oppressive and were unwarranted and disproportionate to the circumstances of the case. His Honour found the five police officers liable and awarded K1,000.00 each to the applicants for breaches of their Constitutional rights. In making the award, his Honour emphasized that such damages may be awarded against person or persons who commit or are responsible for infringement of guaranteed rights and freedoms.

45. Kandakasi, J took a more liberal approach by also awarding separately an amount of K2,000.00 for breach of Constitutional rights for each plaintiff in Desmond Huaimbukie & Ors' case (supra), in addition to general damages. In John Tuik Salmon -v- The State [1994] PNGLR 265 Woods, J considered constitutional breaches together with the issue of exemplary damages and awarded a global sum of K2,000.00 each "for those person who had houses destroyed or looted". For two of the plaintiffs, Woods, J went further and awarded K4,000.00 each because they were allegedly assaulted and falsely imprisoned.

46. Given these two views, I am of the view that the decision to award damages for breaches of Constitutional rights is a discretionary one and should be exercised at the discretion of the Court. Where the circumstances of a case warrant an award of damages for breaches of the plaintiffs' Constitutional rights, damages may be awarded independently from general damages, regardless of whether it is sought in addition to the other reliefs or by way of enforcement under sections 57 and 58 of the Constitution. This is because I consider every citizen and non-citizen alike are entitled to the full protection of the law and nobody must be subjected to torture physically or mentally and not even to any form of cruel treatment or to be punished inhumanly inconsistent with the respect due to the inherent dignity of a human person, see sections 36(1) and 37 (1) of the Constitution. This Court has jurisdiction to enforce those guaranteed rights and freedoms and to make awards pursuant to sections 57 and 58 of the Constitution.

47. Turning to the present case, whilst there are no submissions by the plaintiff's counsel in respect of this claim, I am of the view that the Court should consider it because there is overwhelming evidence of clear breaches of the plaintiffs' fundamental human rights which I have alluded to above and that they have pleaded them in a general form in the statement of claim: see paragraph 8.5 of the statement of claim. It is therefore, only fair that they be compensate for breaches of their Constitutional rights.

48. In the light of Bale Karopo's case (supra) and Desmond Humaimbukie & Ors' case (supra), involving unlawful assaults by members of the police force, I consider K2,000.00 not only reasonable but also consistent with past awards like in those cases. I order that the defendants shall pay the first plaintiff K2,000.00 and the second plaintiff, K2,000.00.

49. In the statement of claim the plaintiff also claims interest under section 1 of the Judicial Proceedings (Interest on Debts and Damages) Act, Ch 52. Section 1 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.

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."

50. Awarding of interest is discretionary and its main purpose is to compensate the plaintiff for being kept out of the money. In this case, I feel compelled to award it because the plaintiffs have been kept out of the money since 26th October 2000. This is a period of more than nine years. It is a very long time. In calculating interest, Bredmeyer, J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24 that, section 1 cited above, confers a four fold discretion on the Court:

3. to grant interest on the whole or part of the debt or damages for which judgment has been given; and

51. I will in the exercise of my discretion award interest at 8% from the date of issue of writ of summons of 12th September 2001 to the date of judgment of 25th January 2010. It is calculated for each plaintiff as follows:

* Total damages, (General damages & breaches of constitutional rights)	- K20,000.00

* 8% interest x K20,000.00	- K 1,600.00

* K1,600.00/365 days	- K 4.38

* Total number of days is 3,421 x K4.38	- K14,938.98

* Total damages, (General damages & breaches of constitutional rights)	- K16,000.00

* 8% interest x K16,000.00	- K 1,280.00

* K1,280.00/365 days	- K 3.50

* Total number of days is 3,421 x K3.50	- K11,973.50

1. Judgment is entered for the first plaintiff in the sum of K18,000.00 as general damages for pain and suffering and loss of amenities

2. Judgment is entered for the second plaintiff in the sum of K14,000.00 as general damages for pain and suffering and loss of amenities.

3. Judgment is entered for the first plaintiff in the sum of K2,000.00 as damages for breaches of constitutional rights.

4. Judgment is entered for the second plaintiff in the sum of K2,000.00 as damages for breaches of constitutional rights.

5. The first and second defendants shall each pay a sum of K2,000.00 as exemplary damages to the first plaintiff.

6. The first and second defendants shall each pay a sum of K2,000.00 as exemplary damages to the second plaintiff.

7. There shall be 8% interest running from the date of the issue of the writ of summons to the date of judgment for the first plaintiff in the total sum of K14,983.98.

8. There shall be 8% interest running from the date of the issue of the writ of summons to the date of judgment for the second plaintiff in the total sum of K11,973.50.

9. The defendants shall pay the plaintiffs' costs of the proceeding to be taxed if not agreed.

10. The time for entry of these orders shall be abridged to the date of settlement by the Registrar which shall take place forthwith.
__________________________________________________________
Simon Norum & Co Lawyers: Lawyers for the Plaintiffs
Acting Solicitor General: Lawyers for the Defendants

National Court of Papua New Guinea

Gunambo v Upaiga [2010] PGNC 239; N3859 (25 January 2010)