Pain v State [2014] PGNC 70; N5604 (16 May 2014)

N5604

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP (HR) NO 171 OF 1997

GERARD PAIN
Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Madang: Cannings J
2014: 23 March, 24 April, 16 May

DAMAGES – assessment of damages for breaches of human rights – liability established at trial – Police shooting – general damages – freedom from inhuman treatment – denial of full protection of the law – protection against proscribed acts – denial of right to freedom of movement.

The plaintiff, an innocent man, was shot in the back by a police officer for no good reason. He was hospitalised for 11 days. The bullet was surgically removed and he suffered no permanent, serious injury or disability. He succeeded at a trial in establishing liability against the State for breaches of four human rights: freedom from inhuman treatment, full protection of the law, protection from proscribed acts and protection of freedom of movement. The case returned to Court for an assessment of damages and compensation. The Court determined that it was in the interests of justice to assess damages and compensation in three categories: (1) general damages including pain and suffering and inconvenience; (2) compensation in respect of the four types of human rights breaches; and (3) exemplary damages.

Held:

(1) General damages, taking into account that the plaintiff spent a relatively short time in hospital and that the injury was not permanent and serious, were assessed at K20,000.00.

(2) Compensation was assessed at K5,000.00 for each of the four human rights breaches, a total of K20,000.00.

(3) Exemplary damages were assessed at K10,000.00.

(4) The total amount of damages and compensation was therefore K50,000.00.

(5) Interest was awarded on that amount, calculated at the rate of 8% per annum from the date on which the causes of action accrued, 24 May 1993, to the date of judgment, 16 May 2014, a period of 20.98 years: K50,000.00 x 0.08 x 20.98 = K83,920.00.

(6) The total judgment sum was K50,000.00 + K83,920.00 = K133,920.00.

Cases cited

The following cases are cited in the judgment:

Application for Enforcement of Human Rights by Batley Isaiah (2013) N5421
Application for Enforcement of Human Rights by Jacob Okimbari (2013) N5420
Gerard Pain v The State (2012) N4708
Lance Kolokol v The State (2009) N3571

TRIAL

This was a trial on assessment of damages and compensation for breaches of human rights.

Counsel

G Pain, the plaintiff, in person
S Phannaphen, for the defendant

16th May, 2014

1. CANNINGS J: This is an assessment of damages and compensation for human rights breaches committed by members of the Police Force against the plaintiff Gerard Pain at Wewak in 1993. The long delay in having the matter dealt with was satisfactorily explained when the matter was brought to trial in Madang in 2012. The delay was not the fault of the plaintiff.

2. The claim was dealt with on its merits, resulting in a judgment in favour of the plaintiff on 25 June 2012 (Gerard Pain v The State (2012) N4708). The Court determined that the State, as employer of the members of the Police Force who were the wrongdoers, was vicariously liable for the human rights breaches. The case was referred to mediation but the mediation failed, so the case has come back to Court for an assessment of damages and compensation.

THE INCIDENT

3. At the trial on liability the Court made the following findings of fact. Between 8.00 and 9.00 pm on 24 May 1993 the plaintiff and two friends were dropped off at the Nuigo bus stop, Wewak, and walked towards the Wirui Catholic Mission. On the way they were attacked by a pack of aggressive dogs so they defended themselves by throwing stones at them. The stones hit the walls of nearby houses. Soon afterwards a police vehicle sped towards them, with its siren on. A shot was fired from that vehicle, so the plaintiff and his friends ran and hid in the nearby kunai grass. The plaintiff then emerged and walked towards the police vehicle, attempting to explain that he and his friends had done nothing wrong.

4. However, he was assaulted with a baton by one of the police officers, identified as Sergeant Timothy Wani. While he was being assaulted another vehicle arrived on the scene and its headlights were trained on him. A police officer, identified as Constable Gregory Andi, emerged from the vehicle, carrying a pistol, which he then held against the plaintiff's back and fired one shot. The plaintiff collapsed, unconscious, and the police took him to Boram Hospital. The bullet was removed from his back 11 days after admission and he was discharged the next day, 12 June 1993.

LIABILITY

5. The Court determined that the plaintiff had established a cause of action for breach of four human rights:

• freedom from inhuman treatment (Constitution, s 36(1));
• protection of the law (Constitution, s 37(1));
• protection from proscribed acts, including harsh or oppressive acts (Constitution, s 41(1));
• freedom of movement (Constitution, s 52(1)).
  

APPROACH TO ASSESSMENT OF DAMAGES AND COMPENSATION

6. This was an action commenced by the plaintiff himself without legal assistance by the filing of a pro-forma application form for enforcement of human rights. There is still no formal statement of claim before the Court. The plaintiff has had legal assistance in recent years and Tabai Lawyers of Madang are now the lawyers on the record for the plaintiff. However, when the time came for submissions to be made Mr Tabai was not present and the plaintiff insisted on making his own submissions. He presented what seems to be his own "home-made" written submission, which does not set out clearly what categories of damages and compensation are being sought; although I gather that he is seeking something like K500,000.00 damages.

7. Mr Phannaphen, for the State, did not object to the Court hearing the plaintiff's submissions and the Court is thankful for his taking that approach. Obviously it is in everybody's interests to get this long drawn out matter resolved as soon as possible. Mr Phannaphen submitted that the Court should adopt the same approach to assessment of damages taken in two recent Police shooting cases – Application for Enforcement of Human Rights by Jacob Okimbari (2013) N5420 and Application for Enforcement of Human Rights by Batley Isaiah (2013) N5421 – and award a sum of K3,000.00 for each breach of human rights and in addition, if necessary, a modest amount of exemplary damages of K4,000.00. The total amount of damages would therefore be K16,000.00.

8. I agree generally with that approach with one significant qualification. In addition to awards for the various human rights breaches and the award for exemplary damages, I think this is a case that warrants an award of general damages. That was the approach I took in Lance Kolokol v The State (2009) N3571, a case in which the plaintiff was an innocent man wrongly suspected of involvement in a crime, who was chased and shot by the Police and suffered a significant injury. The plaintiff's case has a lot of similarity with Kolokol. The plaintiff was innocent and shot without good reason. His case can be distinguished from both Okimbari and Isaiah; in those cases the plaintiffs were not entirely innocent.

9. I consider that in the special circumstances of the case it is in the interests of justice to assess damages and compensation in three – not just two – categories: (1) general damages including pain and suffering and inconvenience; (2) compensation in respect of the four types of human rights breaches; and (3) exemplary damages.

1. GENERAL DAMAGES
   

10. The plaintiff was shot in the back. It was a very traumatic event. He is very lucky not to have sustained a more serious injury. He spent a relatively short time in hospital and the injury was not permanent and serious. In Kolokol the plaintiff suffered a more serious and permanent leg injury. Comparing this case with Kolokol I award K20,000.00 for general damages.

2 COMPENSATION FOR HUMAN RIGHTS BREACHES

11. In both Okimbari and Isaiah the plaintiffs were awarded K3,000.00 in respect of each of four distinct human rights breaches. They were awarded what they sought. In Kolokol the plaintiff was awarded K5,000.00 in respect of each breach. The facts in the present case have more similarities with those in Kolokol than those in Okimbari and Isaiah. I follow the approach in Kolokol and award K5,000.00 x 4 = K20,000.00.

3 EXEMPLARY DAMAGES

12. The question of whether to award exemplary damages must be considered in light of 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.

13. The question to be asked is: was the breach of constitutional rights so severe or continuous as to warrant an award of exemplary damages? I have no hesitation in answering this question in the affirmative. This was a very serious breach of human rights. The plaintiff, an innocent man, was shot in the back for no good reason. He clearly deserves exemplary damages. I award the same amount as in Kolokol: K10,000.00.

SUMMARY OF DAMAGES AND COMPENSATION ASSESSED

General damages = K20,000.00
Compensation for human rights breaches = K20,000.00
Exemplary damages = K10,000.00
Total = K50,000.00

INTEREST

14. Interest will be awarded at the rate of 8 per cent per annum on the 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 of the incident, 24 May 1993, to the date of judgment, a period of 20.98 years, by applying the formula D x I x N = A, where:

• D is the amount of damages and compensation 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:

• K50,000.00 x 0.08 x 20.98 = K83,920.00.
  

COSTS

15. Mr Phannaphen has submitted that the parties should bear their own costs as the plaintiff has made an exaggerated claim. However, I have considered a lot of material that has been admitted into evidence that shows that the plaintiff has made genuine efforts to negotiate and settle this claim over many years. It is the State that has unnecessarily prolonged this matter. The plaintiff will get his costs.

ORDER

(1) The defendant is liable to pay to the plaintiff total damages of K50,000.00 plus interest of K83,920.00, being a total judgment sum of K133,920.00.

(2) The defendant shall pay the plaintiff's costs on a party-party basis which shall if not agreed be taxed.

Judgment accordingly.
____________________________________________________________

Tabai Lawyers : Lawyer for the plaintiff
Solicitor General : Lawyer for the defendant