Wiwa v State [2012] PGNC 308; N5271 (12 November 2012)

N5271

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 811 OF 2006

BETWEEN

JOHN WIWA

Plaintiff

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

Lae: Batari J
2010: 18 August
2012: 12 November

DAMAGES – dependency claim by parents after death of son at hands of unnamed members of police force - damages - assessment of after default judgment – human rights breaches – general damages for death of suspect – damages for breach of human rights: inhuman treatment, denial of full protection of the law, infringement of right to liberty – exemplary damages – whether State to pay

Cases Cited:

Papua New Guinea Cases

Abel Tomba v The State (1997) SC518
Collins v MVIT [1990] PNGLR, 580
Heden Jack v Marius Karani & The State [1992] PNGLR 391
MVIT v Pupune [1993] PNGLR 370
Peter Kuriti v The State [1994] PNGLR 262 at p. 263:
MVIT v Tobanto [1995] PNGLR 214
Andale More and Manis Andale v Henry Toka & Tthe State (1997) N1645
Abel Tomba v The State (1997) SC518
Kirino v The Independent State of Papua New Guinea [1998] PNGLR 351
Mumukrui Kopil v John Wakon & The State (2001) N2065
Tony Wemin & Ors v The State (2001) N2134
Dorothy Kumene v The State (2008) (unreported judgment dated 22/2/2008)
William Mel v Coleman Pakalia, The Police & The State (2005) SC 790

Overseas Cases Cited

Bonham Carter v Haydem Park Hotel [1948] 64 TLR 177
Hayward v Pulliger & Partners Ltd [1950] 1 ALL ER 581

Counsel

S. Tedor, for the Plaintiff

M. Kias, for the Defendant

DECISION

12 November, 2012

1. BATARI, J: This was a trial on assessment of damages, default judgment having been entered on 22 August, 2007. The trial was conducted by way of affidavit and cross-examination of the witnesses on their affidavits. Documentary evidence in the affidavits of the plaintiff John Wiwa and his wife Lissy Angory Wiwa included a document titled "Report of Death to Coroner", a Post Mortem Medical Report and a Medical Certificate of Death. These formed the extent of the evidence before the Court. The Court also had the benefit of both oral and written submissions from counsel.
   

Background

2. By Writ of Summons filed on 15 June, 2006 the plaintiff alleged that, on or about 31 July, 2005 between 12 midnight and 2.00 am at Bulolo Police Station, members of MS-15, a police unit of the Royal Papua New Guinea Constabulary, detained the plaintiff's son, Michael John (the deceased) for interrogation. He was assaulted upon apprehension and at the police station; he was subjected to further police atrocities before being shot on the leg with a firearm. The deceased died a short time later at Bulolo hospital due to blood loss from the gunshot injury.
   
3. The State is sued under the principles of vicarious liability for the unlawful and unconstitutional conduct of its employees, servants or agents. This action is brought under s 1 of the Wrongs (Miscellaneous) Act. The plaintiff also relies on s 12 of the Claims By And Against The State Act, 1996 and sections 35 and 37 of the Constitution.
   

Whether liability remains an issue after entry of default Judgment

4. The alleged employees, servants, or agents whose wrongs, torts and breaches of Constitutional rights the State defendant is allegedly responsible for as employer, are not named or included as parties to the proceedings. It is trite rule of practice, that where the employer is alleged to be vicariously liable for the actions and omissions of its employees, servants or agents the alleged wrong-doers must be identified and named in the proceedings. And it must be specifically pleaded that the tort was committed in the official capacity of the named employee, servant or agent and that it was committed in the course of her or his duties. The pleading of these facts is essential to inform the employer and for the employer to prepare its case. The employer can either admit or deny the employment or any connection with the person identified. Or it can admit or deny the alleged tort was committed in the course of the employee or agent's course of duty.
   
5. There are exceptional cases where the inclusion of the company officer or servant as a party in the proceedings will be unnecessary or inconvenient under O.5 of the National Court Rules.
   
6. In this case, it was forcefully submitted by Ms. Kias for the State that, the basis for assessment of damages is flawed as the claim is not based on a valid and legal procedure. Counsel relied on the case of William Mel v Coleman Pakalia, The Police & The State (2005) SC 790 where the Supreme Court endorsed the views of the Trial Judge, Gavari-Nanu, J that:
   

"... the claims must be valid and legal before any damages can be assessed and awarded to the plaintiff. The fact that the plaintiff had obtained a default judgment against the defendants does not mean that he is automatically entitled to damages against the defendants. He must first establish that his action is proper and legal and prove his case before any damages can be awarded to him. There should not be any gaps in the plaintiff's case if he is to claim the damages he seeks."

7. The question of validity and legality of a claim, viza viz a proceeding is in essence a question of jurisdiction and competence of the proceedings. Counsel for the plaintiff Mr. Tedor did not specifically address the failure to name the policeman or members of the police force involved in the alleged constitutional breaches that resulted in the unnecessary loss of life. Nor was the Provincial Police Commander of Morobe, the Police Station Commander of Bulolo Police Station or the Police Commissioner named as nominal defendants in their positions as principal officers or servants of the State.
   
8. This critical oversight can potentially, invalidate the whole proceedings. I have considered that eventuality. The liability of the State is adequately covered in the pleadings. It is pleaded with sufficient brevity and clarity in paragraphs 3 to 6 that members of the Police Force Unit identified as Mobile Squad 15 (MS15) detained and assaulted the deceased. They later shot him with a firearm.
   
9. Those pleaded facts are supported by the affidavit evidence of the plaintiff John Wiwa and his wife Lissy Angory Wiwa. Cross-examination of the deponents of the affidavits only strengthened the plaintiff's claim that policemen were responsible for the assault and death of the deceased. The consistency of these assertions is found in the medical reports which stated "police shooting" as the background information to the post mortem carried out on the deceased.
   
10. The State did not file any defence or refuted the claim against members of the Police Force based at Bulolo.
    
11. Although it may be technically correct that the members of the police force must be named, in practice, ordinary citizens cannot be expected to know the names of every police force members or for that matter, members of the disciplinary forces who beat them up. It is a known fact that ordinary citizens often suffer at the hands of members of the police force acting in excess of their constitutional powers. It is also common that most of those incidents go unreported or are not investigated. And most of the time, the victims do not know the identity of their assailants.
    
12. Cases of this nature are of great public interest as they raise questions of violation of universal human rights and the protection of individual rights under the Constitution. The wider public interest in human rights abuse by State agencies is such that cases or claims against the State should not be simply ignored or dismissed because of failure to identify and name the actual agent or servant perpetrators. In this case, those responsible for the assault and shooting of the deceased are described as members of the Police Force.
    
13. The evidence is incontrovertible, that the deceased was detained at a social party and taken to Bulolo police station. From the police station, he was admitted to the hospital with gunshot wounds and died a short time later. The cause of death was confirmed by the medical post mortem report as, due to bullet wound injuries to the left leg and neck dislocation.
    
14. Section 188 of the Constitution establishes "State Services" one of which is the Police Force. There is then no issue that the Police Force is part of the State and members of the Police Force are State employees, servants or agents. The State has not denied that claim. Furthermore, the State has not argued that its position is prejudiced by the failure to name the policemen or the nominal police head as party to the proceedings.
    
15. I will not dismiss the proceedings for the reasons given.
    

Whether or not the Plaintiff is entitled to Damages Claimed

16. The heads of claims the plaintiff seeks in his pleadings are; damages (dependency loss), damages for loss of expectation of life and exemplary damages. In relation to each of these heads of damages, assertions are made in the statements of claim and affidavits as to the basis and the amount claimed. But each head of the claim must be proved on an assessment of whether a pleaded claim is supported by credible evidence. The common law position adopted in this jurisdiction governing proof of claim is found in the case of Bonham Carter v Haydem Park Hotel [1948] 64 TLR 177, where Lord Gaddand, CJ stated at p. 178:
    

"The plaintiff must understand that if they bring actions for damages, it is for them to prove their damages. It is not enough to write down particulars and so to speak, throw them at the head of the Court saying... 'This is what I have lost, I ask you give me these damages, they have to prove it'."

17. This principle extends to default judgments. The claim for damages as pleaded in a statement of claim must be supported by sufficient credible evidence that stands the test of proof on the balance of probability. Conversely, the Court will not accept or entertain any evidence on facts that is not pleaded; MVIT v Tobanto [1995] PNGLR 214, MVIT v Pupune [1993] PNGLR 370.
    

Exemplary Damages

18. I will deal with this head first as it is the most contentious. The outcome of damages to be awarded also appears to be substantially reliant on this head.
    
19. The plaintiff's contention is that he is entitled to exemplary damages because the brutality and cruelty meted out to the deceased by the police satisfies the legal requirements for exemplary damages. The plaintiff relies on s 35 of the Constitution and s 12 of the Claims By And Against the State Act as forming the legal basis for his claim. These provisions authorize payment of exemplary damages where there has been "a breach of Constitutional rights so severe or continues as to warrant an award of exemplary damages."
    
20. Counsel Mr. Tedor submitted that the death of the deceased was a clear manifestation of excessive and brutal attack on a defenceless victim. The deceased was detained for no apparent reason and subjected to all manner of atrocities before being literally shot dead by police. Counsel argued that the attack on an unarmed un-provoking victim was excessive, cruel and inhumane. It was also contended that these police atrocities has been aggravated by the lack of police action to investigate and prosecute the perpetrators and hence, the more reason to punish the state with a hefty award in exemplary damages.
    
21. Counsel nominated K100,000 as the appropriate amount to award relying on the cases of Mumukrui Kopil v John Wakon & The State (2001) N2065 and Dorothy Kumene v The State (2008) (unreported judgment dated 22/2/2008). In the first mentioned cased of Mumukrui Kopik, the Court awarded K60,000 for exemplary in a dependency claim case where police indiscriminately shot into a crowd killing the deceased. In the second case of Dorothy Kumeme, prison warders indiscriminately fired into a heap of twigs killing a prison escapee who was hiding there. The mother and relatives of the deceased were awarded K60,000 in exemplary damages.
    
22. Award of exemplary damages is a discretionary matter. It is not an absolute entitlement. The award of exemplary damages may be determined by the Court as a mark of the courts' disapproval of excessive authoritative action resulting in substantive violation of the plaintiffs' constitutional rights. Exemplary damages, when awarded, is not to enrich a party as Woods, J put in Peter Kuriti v The State [1994] PNGLR 262 at p. 263:
    

"Exemplary damages are not to unjustly enrich a party but, rather, are symbolic of the public indignation."

23. The power to award exemplary damages is vested in the court under s 22 and s 155(4) of the Constitution to do justice in the circumstances of a case as necessary. As to whether it is just to make orders for exemplary damages depends on a consideration of all the relevant facts of the case.
    
24. The police atrocities which ended with the killing of the deceased resulted in excess use of police lawful and constitutional powers. There was gross violation of the constitutional rights of the individual. Those responsible ought to pay for their transgressions as a measure of retribution and deterrence. At the same time, relatives and dependents must be compensated for that wrong.
    
25. The individual policeman who instigated and actively commanded the detention, assault and shooting of the deceased has not been named as a party to this proceeding. He was the person who either actively led or participated in the apprehension, beating and shooting of the deceased. Or he authorised those unlawful acts which gave rise to constitutional breaches of the rights of the deceased. Those responsible including their squad leader, station commander or the police commissioner are not named in the Writ by the plaintiff.
    
26. The omission to name the individual policeman is crucial as there is no evidence that the apprehension and detention of the deceased resulted from lawful authority or direction or instructions of Bulolo Police Station Commander or the Police Commissioner. Because of that, any award of exemplary damages may be meaningless as there will be no particular authority or individual against which or whom exemplary damages may be ordered and enforced.
    
27. The question remains as to whether the State can be held liable for exemplary damages for the negligent and unlawful acts of its agents and servants. Ms. Kias, of counsel for the State has usefully set out a number of cases in which exemplary damages were not awarded where the individual police perpetrators of the constitutional breaches were not named. In Kirino v The Independent State of Papua New Guinea [1998] PNGLR 351 it was held that:
    

"1. Award of exemplary damages is discriminatory following award of general damages.

2. When the actions of policemen go beyond mere non-compliance with a statutory provision, the individual policeman, if identified and sued is personally liable to pay exemplary damages. The state is only liable to pay exemplary damages for technical breaches or indiscretions committed in the execution of the policeman's lawful functions, statutory or otherwise; Abel Tomba v The State (1997) unreported Supreme Court Judgment SC 578 adopted and applied.
   
3. In the circumstances of the present case, the actions complained of were not authorized or sanctioned by the state and none of the policemen have neither been identified nor mentioned as parties to the proceedings. Hence exemplary damages refused."
   
28. There is a strong persuasive view that, the failure to name or identify the erring policemen as parties to the proceedings is crucial against the plaintiff. The rationale is that the plaintiff has not shown justification for the award of exemplary damages against the State. If State agents or servants have acted in defiance of their legitimate powers under any legislation, policy direction or legitimate instructions, the state which represents the people of Papua New Guinea should not be held responsible on their behalf. In the words of Kirriwom, J in Tony Wemin & Ors v The State (2001) N2134 which I adopt:
    

"... I do not think the people of Papua New Guinea through the State be held punitively liable for the criminal acts of a few hooligans amongst a majority of good law abiding policemen."

29. In Abel Tomba v The State (1997) SC518 the Supreme Court per Los, J explained why the State should not be held liable for exemplary damages:
    

"...when Police exercise powers of search and arrest they do that on behalf of the people. The people must stand ready to support them for any breaches or indiscretions. But, how can the people be punished by ordering them to pay exemplary damages when they have done enough through legislative process by passing laws, rules and procedures under which police must operate yet they deliberately go beyond all expectations to commit wrongs? These considerations in my view must come into play when a Court is exercising its discretion. If there is evidence that the State is failing to properly train, fund and generally facilitate it's servant's performance then it is relevant consideration whether the State should pay for exemplary damages."

30. See also, Andale More and Manis Andale v Henry Tokam, and the Independent State of Papua New Guinea (1997) N1645.
    
31. The award of exemplary damages is a discretionary matter. The exercise of discretion will depend on the circumstances and justice of each case. In this case, a policeman was named in the affidavit evidence of the plaintiff. The policeman was not named as a party to this proceeding. Nor was his name and identity pleaded in the statement of facts. Hence, the naming of the policeman in the affidavit is inadmissible evidence. Furthermore, it would unfair to hold a lone policeman responsible for the atrocities that clearly involved many other policemen.
    
32. However, I am inclined to award exemplary damages against the oppressive, arbitrary or unconstitutional actions by the servants of the State. The behaviour of the policeman is an indication of the failing level of discipline within the police force, no doubt created by the failing in the top command of the police force and the State to properly train, fund and generally facilitate the performance of its servants. The award aims to punish the defendant so that it takes corrective measures to lift the disciplinary level of men and women of the police force and consequently, reduce and deter repeats of constitutional rights breaches.
    
33. The amount of award should however be reduced by the failure to name the erring servants. It will be unfair for the State to be wholly responsible and be punitively liable for the conduct of unnamed few law breakers who will continue to hide behind their uniforms. In appropriate cases, policemen and policewomen must be held wholly responsible for their excessive and illegal actions and deliberate violations of human rights laws. I will award K60,000.
    

Damages, Dependency

34. The plaintiff is claiming on behalf of himself and his wife. He also claims generally that he and other dependants and relatives of the deceased have not received from the dependant, any form of compensation payment for loss of expectation of life and loss of dependency on the deceased.
    
35. The deceased was about 22 years at the time of his death. He was the second born of nine children. The only evidence on his age came from the plaintiff. I accept that as probable in the absence of evidence to the contrary. He was not in formal employment. Both his parents stated in their affidavits that, the deceased did not do well in school and lived with them at Bulolo. They have a block for the purpose of alluvial gold mining and for most of the time; the deceased was involved in gold prospecting on the family block. He would earn an average of K400 a week from sale of gold. From this amount, he would give his parents K50 each and some to his two brothers. The family were also involved in subsistent gardening, piggery and poultry farming.
    
36. The plaintiff is not claiming any loss from these latter family activities. It is also not pleaded that the deceased was directly responsible for those activities for the dependency of his parents and other siblings on him. Although it may be reasonably expected in a traditional society for an active young single man to be involved in gardening for his parents, it is possible that the deceased's only interest was in alluvial gold mining. The evidence is clear on this. So, the only basis to calculate the damages is the loss of dependency from alluvial gold mining.
    
37. I accept that the plaintiff has lost some support from the son and that he and his wife would have expected additional support as they grow older. This is the usual expectation in a cultural Papua New Guinean society. The plaintiff was 54 years and his wife was 44 years at the time their son was killed.
    
38. The evidence is not clear that the parents were wholly depended on the deceased. They had their separate means of earning to support the family. The plaintiff was involved in gold prospecting while the mother was involved on roadside marketing. The parents also had pigs for consumption and sale for cash dependence. The deceased may be said to be virtually living with his parents. He not only was supported by them but he also depended on them. So, the parents' dependency on the deceased would be minimal at least for the time being that they remained active in their various subsistent activities.
    
39. I accept however that, the existence of strong social obligations required the deceased to give his parents some of his earnings from his sale of gold. The evidence suggests that whatever the deceased earned from his alluvial gold prospecting belongs to him. It was not a family affair. He had the exclusive right to share his profit. But the obligation is to look after his parents even into old age runs deep in a cultural society bounded by strong customary rules and practices. This expectation is rife and widespread despite the personal obligations to himself and to his own family if he got married.
    
40. The general claim for other relative and dependence has no supporting evidence. With respect, that claim is refused.
    
41. Mr. Tedor has included in his submission a claim for a child the deceased had allegedly fathered shortly before his death on 31/7/05. At the time of trial, in August, 2010 the child was 5 years old. The claim for that child is firstly not pleaded and secondly, neither the plaintiff nor his wife mentioned the existence of a child of the deceased in their affidavits. The claim is belated and there is no firm evidence that the deceased was the father of the child. That evidence is crucial as the child would have been born around the time the deceased died. The claim for child dependence is dismissed. The authorities are quite clear. In Hayward v Pulliger & Partners Ltd [1950] 1 ALL ER 581 it was stated per Devlin, J:
    

"It is conceded by counsel for the plaintiffs, and I think rightly, that he cannot recover in respect of any special damage unless that special damage is pleaded.... It is, of course, extremely common, when damage is alleged in general terms, for an application to be made to obtain particulars of the special damage, if any, relied on, but there can be no obligation to ask for such particulars, and I think the true position is that, unless they are contained in the statement of claim, evidence leading to damage in respect of which damages are claimed cannot technically be relied on at the trial."

42. In a similar case to the one before this Court, the Court disallowed a dependent child from recovering any damages where the pleading did not mention her name: see Collins v MVIT [1990] PNGLR,580.
    
43. The parents are claiming dependency loss of K50 each from a purported K400 weekly earnings of the deceased. There is a difficulty with this claim. The weekly claim earnings is not supported by any independent evidence. If gold were indeed found and sold, there is no evidence on the type, quality and value. Whether it was gold-dust or gold nugget, there is no evidence of the actual income derived or the productivity potential of the family leasehold. There is no evidence of the equipment used; there is no record of receipts or documentation issued by the gold-buyer. There is also no evidence that alluvial gold prospecting by the deceased was a formal occupation driven by profit and for which business documents including tax rebate forms would be rendered. I am prepared however to conclude that, the deceased did some gold prospecting and in return was paid.
    
44. In dependency claims involving support of parents in 1992 the figures of K2 to K5 a week had been used. See, Heden Jack v Marius Karani & The State [1992] PNGLR 391. This is 2012. We are now in the 20th Century and circumstances have changed and certainly the buying power of the Kina resulting in high inflation rates. I would use the range of K20 to K50. The plaintiff was 54 years old. His remaining life expectancy is 15 years. So, his dependency claim capitalised at 3% is (15x50x3% = K772.50). His wife was aged 41 years old. Her remaining life of dependency on the son is 26 years. So, her dependency claim capitalised at 3% interest is K50x26x3% = K1,339.00. Her claim is therefore K1,339.00.
    

Funeral and other Incidental Expenses

45. This head is claimed at K3,000.00. The amount is awarded.
    
46. I will allow 8% interest on the amount awarded from 15/6/06 to today being K1,538.41
    

Summary

47. The awarded claims in summary are:
    

Exemplary Damages	-	K60,000.00
Dependency by Father	-	772.50
Dependency by Mother	-	1,339.00
Funeral & Incidentals Expenses	-	3,000.00
Interest at 8%	-	1,538.41
TOTAL	:	K66,649.91

48. I order judgment for K66,649.91.
    
49. Cost is awarded to the plaintiff to be taxed if not agreed.
    

Sialis Tedor & Associates Lawyers: Lawyer for the Plaintiff

Solicitor-General: Lawyer for the Defendant