Figa v Agong [2012] PGNC 56; N4707 (25 June 2012)

N4707

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 422 OF 2008

BOLISA FIGA
Plaintiff

V

WILLIE AGONG, DISTRICT ADMINISTRATOR
First Defendant

DOMINIC LIVAR, PATRICK GUALIP, MARK KEMBOL &
MATHEW KEPA
Second Defendants

COMMISSIONER OF POLICE
Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Madang: Cannings J
2012: 9, 23 March, 25 June

DAMAGES – assessment of damages – assault (trespass to the person) – negligence – unlawful actions of district administrator and police officers

The plaintiff was assaulted and injured by a district administrator and a group of police officers, after he had two days previously assaulted the district administrator. The plaintiff claimed that he suffered permanent injuries as a result of the assault. He sued the district administrator and the police officers who assaulted him, the Commissioner of Police and the State, claiming general damages, special damages and business losses which he says were caused by his inability to conduct his PMV business for a considerable period of time after the assault. Default judgment was entered against all defendants, with damages to be assessed. This was the trial on assessment of damages.

Held:

(1) General damages were assessed at K10,000.00; special damages, K1,000.00; business losses, zero; being a total award of damages and compensation of K11,000.00.

(2) In addition, interest of K4,444.00 is payable, being a total judgment debt of K15,444.00.

Cases cited

The following cases are cited in the judgment:

David Michael v Dennis Marus (2008) N3374
George Chapok v James Yali (2008) N3474
Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364
Wandi Dope v Constable Michael Malai and Others (2005) SC790
William Mel v Coleman Pakalia and Others (2005) SC790

TRIAL

This was a trial on assessment of damages.

Counsel

A Meten, for the plaintiff

25 June, 2012

1. CANNINGS J: The plaintiff, Bolisa Figa, has successfully sued the defendants – the Usino Bundi District Administrator, a group of four police officers, the Commissioner of Police and the State – for assault and negligence. Default judgment has been entered. He has come to the court for an assessment of damages. As to the assault allegations that are included in the statement of claim, the cause of action should properly be regarded as trespass to the person (David Michael v Dennis Marus (2008) N3374, George Chapok v James Yali (2008) N3474).

2. The plaintiff was assaulted at Walium police station on Thursday 7 June 2007. The incident followed an altercation between the plaintiff and the District Administrator, Willie Agong, two days earlier at Kawawar Market, in which the plaintiff punched Mr Agong, who, the plaintiff says, was drunk, causing a public nuisance and abusive. The plaintiff was charged over that incident and then went to Walium Police Station to try and sort out the matter. It was there that a confrontation took place with Mr Agong, who this time assaulted the plaintiff, and who was supported by the police officers who are named in these proceedings as second defendants. As judgment has been entered against the defendants, the factual elements of the causes of action as pleaded are taken as proven (William Mel v Coleman Pakalia and Others (2005) SC790). The plaintiff claims:

(A) general damages, K30,000.00;

(B) special damages, K2,314.92;

(C) damages for loss of business income, K48,500.00.

Thus the total amount of damages and compensation claimed is K80,814.92. In addition the plaintiff seeks interest on the amount awarded.

(A) GENERAL DAMAGES

3. This is intended to compensate the plaintiff for the pain and suffering, humiliation, distress and inconvenience caused by the unlawful actions of the first and second defendants. 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).

4. In assessing general damages I have considered my decision in the recent Madang case of Wandi Dope v Constable Michael Malai and Others (2005), an assessment of damages for human rights breaches committed by police officers who assaulted the plaintiff after he refused to pay a spot fine for unlawful possession of betel nut. The police detained him for six days without charging him or taking him before a court, assaulted him and denied him food and medical treatment. As a result of the assaults he suffered permanent damage to the head, mandible, teeth, thighs and knees and post-traumatic stress syndrome. After comparing the treatment meted out to the plaintiff and the injuries he received with a number of similar cases I awarded general damages of K20,000.00.

5. In the present case the statement of claim did not plead human rights breaches as the cause of action and although negligence is pleaded the effective cause of action is trespass to the person: the assault. How serious was it? A medical report by Lateg Hahuke, Registered Nursing Officer of Walium Health Centre, reveals that the plaintiff was treated on the night of the incident for a swollen nose and face, blood clots, breathing difficulty, painful jaws making eating difficult, sore tongue and gums, painful right and left ribs, painful hip joints and thighs. The plaintiff was treated with medication and permitted to leave.

6. The plaintiff has presented another affidavit by a registered nurse aimed at showing that he has suffered permanent injuries. However, I do not accept that evidence. It is not sufficiently detailed and the opinion provided is not that of a qualified medical practitioner. I conclude that the plaintiff was badly shaken up by the assault but did not suffer any life threatening or permanent injuries. Comparing this case with Dope, it is not as serious. I award general damages of K10,000.00.

(B) SPECIAL DAMAGES

7. I find insufficient evidence to support the claim of K2,314.93. However it is reasonable to expect that the plaintiff would have incurred out of pocket expenses for medical treatment and medical reports and the like. I allow K1,000.00.

(C) LOSS OF BUSINESS INCOME

8. The plaintiff claims that he lost two contracts for his PMV trucks because of his medical condition but the claim has been very vaguely pleaded and the evidence is not strong. I award nothing for this head of damage.

SUMMARY OF DAMAGES AWARDED

(A) general damages = K10,000.00;
(B) special damages = K1,000.00;
(C) loss of business income = 0

Total damages awarded = K11,000.00.

INTEREST

9. Interest will be awarded at the rate of 8 per cent per annum on the total amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest is calculated from the date the cause of action accrued, 7 June 2007, to the date of this judgment, a period of 5.05 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 K11,000.00 x 0.08 x 5.05 = K4,444.00.

COSTS

10. 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

11. I direct entry of judgment in the following terms:

(1) The defendants shall pay damages to the plaintiff in the sum of K11,000.00, plus interest of K4,440.00, being a total judgment debt of K15,444.00.

(2) The defendants shall pay the costs of the proceedings to the plaintiff on a party-party basis, to be taxed if not agreed.

Judgment accordingly.

_____________________________
Public Solicitor: Lawyer for the plaintiff