N4853

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 739 0F 2010

JOHN TINDAKA
Plaintiff

V

DAVID KAMBU
First Defendant

GARI BAKI, COMMISSIONER OF POLICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2012: 21, 28 June, 31 October

TORTS – human rights – alleged assault, malicious prosecution, breach of constitutional rights by members of Police Force – whether causes of action adequately pleaded – whether sufficient evidence of elements of cause of action – whether State vicariously liable.

DAMAGES – age of medical evidence – probative value of medical report prepared two years after injury.

The plaintiff claimed that he was arrested, detained and bashed without good reason by members of the Police Force at a police station and then charged, without a proper basis, with stealing, which resulted in him being remanded in custody for one month, three weeks before being granted bail and eventually having the criminal charge struck out by the District Court. He commenced proceedings against the police officer who laid the charge (first defendant), the Commissioner of Police (second defendant) and the State (third defendant), claiming damages for three causes of action: assault, malicious prosecution and breach of constitutional rights. A trial was set down to determine whether any of the defendants was liable and, if so, to assess damages. The plaintiff adduced affidavit evidence of the events and his injury. The defendants adduced no evidence but defended the matter by claiming that the statement of claim was so defective the entire proceedings should be dismissed and in the alternative that the court should decline to enter judgment against them as the plaintiff's evidence was unreliable and uncorroborated and even if it were accepted that the inference must be drawn that the police officers concerned acted so far outside their lawful duties as to prevent the State being vicariously liable for their wrongful actions. The defendants further argued that in the event that liability was established no damages should be awarded as there was no corroboration of the plaintiffs' evidence.

Held:

(1)	The statement of claim adequately pleaded the elements of each of the three causes of action.

(2)	The plaintiff's evidence was sufficient to sustain the assault (trespass to the person) action and part of the action for breach of constitutional rights but insufficient to sustain the malicious prosecution claim.

(3)	The plaintiff failed to establish liability against the first defendant (as it was not proven that the first defendant assaulted the plaintiff or breached any constitutional rights) or the second defendant (as it was not proven that he authorised or had a direct connection to the unlawful actions of police officers).

(4)	The plaintiff established liability against the State, which was vicariously liable for the unlawful actions of police officers as they were acting within the scope of their police employment and the State failed to discharge the onus of showing that what they did was totally removed from the domain of their authorised actions.

(5)	Damages were assessed at K5,000.00 and interest was awarded in the sum of K2,028.00, being a total judgment sum of K7,028.00.

 Cases cited

The following cases are cited in the judgment:

Daniel Yano Kapi v Kambang Holdings Ltd (2011) N4471
David Michael v Dennis Marus (2008) N3374
Eriare Lanyat v The State [1997] PNGLR 253
Losia Mesa v Commissioner of Police (2009) N3681
The State v David Wari Kofowei and Others [1987] PNGLR 5
Wama Kints v The State (2001) N2113

TRIAL

This was a trial on liability to determine the plaintiff's claims for assault, malicious prosecution and breach of constitutional rights and an assessment of damages.

Counsel

E Wurr, for the plaintiff
M Elisha, for the defendants
 
31 October, 2012 

1. CANNINGS J: The plaintiff, John Tindaka, claims that on 6 October 2007 he was arrested, detained and bashed by various police officers at Gordon Police Station, National Capital District, without good reason and then charged without a proper basis with stealing money from his wife. He says that he was remanded in custody at Bomana Jail for one month, three weeks before being granted bail and eventually having the criminal charge struck out by the Boroko District Court.

2. He commenced proceedings against the police officer who laid the charge (first defendant), the Commissioner of Police (second defendant) and the State (third defendant), claiming damages for three causes of action: assault, malicious prosecution and breach of constitutional rights. A trial has been held to determine whether any of the defendants is liable and, if so, to assess damages.

3. The plaintiff adduced affidavit evidence of the events. The defendants adduced no evidence but defended the matter by claiming that the statement of claim is so defective the entire proceedings should be dismissed and in the alternative that the court should decline to enter judgment against them as the plaintiff's evidence is unreliable and uncorroborated and even if it were accepted, the inference must be drawn that the police officers concerned acted so far outside their lawful duties as to prevent the State being vicariously liable for their wrongful actions. The defendants further argued that in the event that liability was established no damages should be awarded as there was no corroboration of the plaintiff's evidence.

4. There are four issues:

(1)	Should the proceedings be dismissed due to defects in the statement of claim?

(2)	Has the plaintiff proven the factual allegations?

(3)	Has the plaintiff established liability against any of the defendants?

(4)	What damages, if any, is the plaintiff entitled to?

1	SHOULD THE PROCEEDINGS BE DISMISSED DUE TO DEFECTS IN THE STATEMENT OF CLAIM?

5. I am not convinced that the statement of claim is defective. Quite the contrary, it is well drafted and clearly pleads three causes of action. There are two common law actions – assault (more correctly described as trespass to the person) and malicious prosecution – and one constitutional action.

6. The elements of trespass to the person (the defendant violated the plaintiff's body and acted intentionally and unlawfully: David Michael v Dennis Marus (2008) N3374) are clearly pleaded as are the elements of malicious prosecution (defendant was responsible for institution of proceedings against the plaintiff, without reasonable and probable cause, the defendant was motivated by malice or some other improper purpose and the criminal proceedings were resolved in the plaintiff's favour: Daniel Yano Kapi v Kambang Holdings Ltd (2011) N4471). As for the constitutional claim the provisions of the Constitution that are alleged to have been breached (Section 36(1) (freedom from inhuman treatment) and Section 37(1) (protection of the law) have been adequately pleaded. The defendants' arguments are without merit.

2	HAS THE PLAINTIFF PROVEN THE FACTUAL ALLEGATIONS?

7. Ms Elisha submitted that the plaintiffs' evidence should be rejected as it was vague, unreliable and uncorroborated. I will test the evidence in relation to the three causes of action.

Assault: trespass to the person

8. The evidence of the assault is problematic in that none of the police officers alleged to have been involved has been identified. However, the plaintiff's evidence is clear as to where and when the assault took place and the failure of the defendants to adduce any evidence means that the plaintiff's evidence is unchallenged. I find that he was assaulted by unidentified police officers at Gordon Police Station on 6 October 2007.

9. As to the injuries he received, I note Ms Elisha's point that the medical evidence, which consists of a report by Dr Sam Yockopua, Emergency Physician at Port Moresby General Hospital, is lacking contemporaneousness in that it is dated 25 January 2010, two years and three months after the alleged assault. However, it is clear from the report that Dr Yockopua is familiar with the plaintiff and his condition as he "has been seen and managed at least four times here at the Emergency Department since 6 October 2007 due to recurrent right shoulder dislocation" and that the doctor had been informed that the plaintiff's shoulder injury was due to him being assaulted by police on 6 October 2007. The doctor also stated that the plaintiff would be seeing an orthopaedic surgeon in March 2010 "for possible reconstructive surgery to fix the defect" and in the meantime he had a 40% loss of efficient use of his right shoulder and upper limb.

10. As in the case of the evidence concerning the assault, evidence of the plaintiff's injury, though rather scant, is unchallenged and does not appear to have been fabricated or exaggerated. I find that the plaintiff suffered a dislocated shoulder when he was assaulted and that this led to recurrent problems for a period of two years and three months after the assault.

Malicious prosecution

11. The plaintiff alleges that he was victimised by the first defendant as the stealing charge related to something that happened four years earlier and the first defendant is his wife's clansman and the charge was baseless. However, I find no credible evidence to support those allegations. The information (the charging document) signed by the first defendant alleges that the plaintiff stole K480.00 cash from a named person (presumably his wife) and that the offence was committed on 30 June 2007 at Erima. So the alleged offence was committed a little over two months before the date on which the plaintiff was charged. There is no evidence that the first defendant charged the plaintiff without reasonable and probable cause or that he was motivated by malice or some other improper purpose. Though the plaintiff was remanded in custody for more than a month and the case was eventually struck out by the District Court, those facts are not evidence of him being maliciously prosecuted. The plaintiff has not proven the factual allegations necessary to sustain an action for malicious prosecution.

Breach of constitutional rights

12. Evidence of the assault and the injury are sufficient to support part of his action for breach of constitutional rights, namely:

•	right to freedom from inhuman treatment (Constitution, Section 36(1));
•	right to the full protection of the law (Constitution, Section 37(1)).

13. The plaintiff claims that he was not informed of his right to see a lawyer and was denied other rights under Section 37(4) of the Constitution of a person charged with an offence. He also says that he was not taken before the District Court promptly after being detained contrary to Section 42(3) (liberty of the person) of the Constitution. However, I find no evidence to sustain these parts of the constitutional claim.

Summary

14. The plaintiff's evidence is sufficient to sustain the assault (trespass to the person) action and part of the action for breach of constitutional rights but insufficient to sustain the malicious prosecution claim.

3	HAS THE PLAINTIFF ESTABLISHED LIABILITY AGAINST ANY OF THE DEFENDANTS?

(a)	The first defendant, Sgt John Tindaka

15. It was not pleaded that the first defendant was involved in the assault and there is no evidence of his involvement in the assault or in the breach of the plaintiff's constitutional rights. The principal allegation against the first defendant is that he was the charging officer and responsible for the malicious prosecution. I have already found that there is insufficient evidence to sustain that cause of action. The result is that liability has not been established against the first defendant.

(b)	The second defendant, the Commissioner of Police

16. It was not pleaded that the second defendant was involved in the assault and there is no evidence of his involvement in the assault or in the breach of the plaintiff's constitutional rights or that he authorised or had a direct connection with the unlawful actions of police officers. The result is that liability has not been established against him.

(c)	The third defendant, the State

17. Ms Elisha submitted that if the court accepts the plaintiff's evidence of what happened and finds that any of the three causes of action have been established the State should not be held liable as the members of the Police Force acted so far outside their lawful duties as to prevent the State being vicariously liable for their wrongful actions.

18. I reject that submission. The State is vicariously liable for unlawful actions including assaults and breaches of constitutional rights by members of the Police Force within the scope of their police employment unless the State discharges the onus of showing that what they did was totally removed from the domain of their authorised actions (The State v David Wari Kofowei and Others [1987] PNGLR 5; Eriare Lanyat v The State [1997] PNGLR 253; Wama Kints v The State (2001) N2113). The State has failed to discharge that onus. I conclude that the police were on duty at Gordon Police Station when they assaulted the plaintiff and breached his constitutional rights. The State is not relieved of liability simply because the police officers acted outside the scope of legitimate police functions. The plaintiff has established liability for assault (trespass to the person) and breach of constitutional rights (Sections 36(1) and 37(1) of the Constitution) against the State.

Summary

19. The plaintiff has failed to establish liability against the first and second defendants, but has established liability against the third defendant.

4	WHAT DAMAGES, IF ANY, IS THE PLAINTIFF ENTITLED TO?

20. The statement of claim seeks four categories of damages:

(a)	general damages;
(b)	general damages under Section 58 (compensation) of the Constitution;
(c)	special damages; and
(d)	exemplary damages.

21. There is no evidence to support an award of (c) special damages and a proper case has not been made out for an award of (d) exemplary damages. That leaves (a) and (b). I don't think separate awards of common law damages (which appear to be sought under (a)) and constitutional compensation (which appears to be sought under (b)) are warranted, as this is a case where the two causes of action have 'merged' as the same facts relied on to establish each cause of action are the same. I will only make one assessment of damages, covering (a) and (b), which is intended to compensate the plaintiff for the pain and suffering and inconvenience he suffered by reason of being assaulted and treated inhumanely and denied the full protection of the law.

22. Ms Wurr submitted that I should compare and contrast the facts of this case with those in Losia Mesa v Commissioner of Police (2009) N3681, a Kimbe case in which a man was awarded damages of K25,000.00 following an unlawful assault and human rights breaches by the police, and award the plaintiff K15,000.00 to K20,000.00. Ms Elisha did not take issue with Mesa being used as a point of reference but maintained that the plaintiff should be awarded nothing due to deficiencies in the evidence. I agree that Mesa can be used as a precedent but I do not agree with Ms Elisha's submission that the plaintiff should be awarded nothing. But nor do I accept Ms Wurr's submission that the present case warrants an award of K15,000.00 to K20,000.00. The plaintiff in Mesa was assaulted on multiple occasions at different places in an ordeal lasting several hours. The medical evidence revealed that he suffered multiple soft tissue facial injuries and an eye injury, which has led to blurred vision and reduced visual acuity. His injuries were more serious than those of the present plaintiff and the evidence of pain, suffering and inconvenience was more detailed and cogent.

23. I reiterate that the evidence in this case has been rather scanty. Frankly speaking the plaintiff has only just managed to establish liability and that is because the defendants did not present any evidence. The medical evidence is not of high probative value: just one medical report that was prepared two years and three months after the incident and two years and five months before the trial. Having taken into account those considerations I award damages of K5,000.00.

INTEREST

24. I will award interest at the rate of 8 per cent per annum on the amount of damages. This is done under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. I will award interest from the date of the incident, 6 October 2007 to the date of judgment, a period of 5.07 years, 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:

•	K5,000.00 x 0.08 x 5.07 = K2,028.00.

COSTS

25. 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. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.

ORDER

(1)	Damages are payable by the third defendant to the plaintiff in the sum of K5,000.00;

(2)	Interest is payable by the third defendant to the plaintiff in the sum of K2,028.00;

(3)	Being a total judgment of K7,028.00;

(4)	Costs of the proceedings shall be paid by the third defendant to the plaintiff on a party-party basis, which shall if not agreed be taxed.

Judgment accordingly.
_____________________________
Public Solicitor: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendants