Kandakasi v Independent State of Papua New Guinea [2017] PGNC 9; N6601 (20 January 2017)

N6601

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 7 OF 2015

NATHAN KANDAKASI
Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Waigani : Cannings J

2015: 16, 19, 20 November,

2017: 20 January

DAMAGES – assessment of damages following entry of default judgment – breaches of human rights – false imprisonment – malicious prosecution – general damages – plaintiff lost sight in one eye due to Police brutality – other injuries incurred, including loss of teeth.

The plaintiff was assaulted, arrested, detained for two days, charged and prosecuted by Police for suspected involvement in a crime. As a result of the assault, he lost eyesight in one eye, lost four teeth and suffered other abrasions and bruising. The charges against him were dismissed in the District Court. He commenced proceedings against the State, claiming that it was vicariously liable for the civil wrongs committed by the Police: breach of human rights (Constitution, Section 36: freedom from inhuman treatment), false imprisonment and malicious prosecution, and seeking damages. The State failed to defend the matter and default judgment was entered against it. The State did not apply to set aside the default judgment and did not appeal against it. A trial on assessment of damages was set down. The plaintiff sought damages in seven categories: (a) general damages, K101,000.00; (b) breach of human rights, K10,000.00; (c) false imprisonment, K10,000.00; (d) malicious prosecution, K20,000.00; (e) exemplary damages, K35,000.00; (f) special damages (past and future loss of salaries, unspecified, and out of pocket expenses, K2,300.00), (g) cost of repair to his vehicle’s gearbox, 3,000.00, a total of K181,300.00 plus past and future salary losses. As a preliminary argument, the State asked the Court to revisit the issue of liability and dismiss the proceedings on grounds that the actual wrongdoers had not been named as defendants and the statement of claim was defective as it failed to plead the nexus between the wrongdoers and the State, and failed to plead that the wrongdoers were employed by the State and that the State was vicariously liable under Section 1(1) of the Wrongs (Miscellaneous Provisions) Act. The State argued, in the event that its preliminary argument did not succeed, that the plaintiff be awarded no more than K106,500.00.

Held:

(1) When assessing damages after entry of default judgment, the judge should make a cursory inquiry so as to be satisfied that the facts and cause of action are pleaded with sufficient clarity. If it is reasonably clear what the facts and cause of action are, liability should be regarded as proven. Only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability.

(2) Here the facts and causes of action are clear. The preliminary argument of the State raised issues regarding the quality of the pleadings and might, if raised earlier, have resulted in judgment not being entered in favour of the plaintiff. But no application to set aside the default judgment had been made, no appeal was filed and the argument was made late, without notice. It was not appropriate to entertain it. Liability was not revisited.

(3) The seven categories of damages were assessed in the manner contended for by the State: (a) general damages, K85,000.00; (b) breach of human rights, K2,000.00; (c) false imprisonment, K500.00; (d) malicious prosecution, K9,000.00; (e) exemplary damages, zero; (f) special damages, K10,000.00, (g) cost of repair to gearbox, zero, a total award of K106,500.00.

(4) In addition, interest of K10,245.30 is payable, making the total judgment sum K116,745.30.

Cases cited:

The following cases are cited in the judgment:

Aquila Kunzie v NCD Police Mobile Squad (2014) N5584
Bolisa Figa v Willie Agong (2012) N4707
George Chapok v James Yali (2008) N3474
Jack Pinda v Sam Inguba & The State (2012) SC1181
Jessie Namba v The State (2011) N4396
John Pias v Michael Kodi & Ors (2006) N2972
Lance Kolokol v The State (2009) N3571
Lina Kewakali v The State (2011) SC1091
Losia Mesa v The State (2009) N3681
Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807
Michael Kondai v Gabriel Saul (2015) N5865
PNGBC v Jeff Tole (2002) SC694
Teine Molomb v The State (2005) N2861
Vincent Kerry v The State (2007) N3127
Wandi Dope v Constable Michael Malai (2012) N4574
William Mel v Coleman Pakalia (2005) SC790
William Pattits v The State (2006) N3088

ASSESSMENT OF DAMAGES

This was an assessment of damages for breaches of human rights, false imprisonment and malicious prosecution.

Counsel:
P H Pato, for the Plaintiff
G Akia & A Kajoka, for the Defendant

20^th January, 2017

1. CANNINGS J: This is an assessment of damages for breaches of human rights and other civil wrongs committed by members of the Police Force against the plaintiff, Nathan Kandakasi, in and following an incident in the Vision City carpark, in the National Capital District on 29 March 2012. Liability has been established by default judgment.

INCIDENT

2. In his statement of claim the plaintiff alleged that he was assaulted, arrested, detained for two days, charged and prosecuted by Police for suspected involvement in a crime. He named the two members of the Police Force primarily responsible for the assault as Andrew Kassman and Paul Komboi. He alleged that they led about six other members on a brutal assault on him, and that as a result he lost eyesight in one eye, lost four teeth and suffered other abrasions and bruising. He alleged that the charges against him were dismissed in the District Court.
   

PROCEDURE

3. On 7 April 2015 the plaintiff commenced proceedings against the State, claiming that it was vicariously liable for the civil wrongs committed by the Police, pleaded as:
   

• breach of human rights (Constitution, Section 36: freedom from inhuman treatment),
  
• false imprisonment; and
  
• malicious prosecution.
  

4. He sought damages against the State, which was and remains the sole defendant.
   
5. The State failed to file a notice of intention to defend or a defence. On 27 August 2015 the Court upheld a motion by the plaintiff for default judgment, which was entered on 2 September 2015.
   
6. The State did not apply to set aside the default judgment and did not appeal against it. A trial on assessment of damages was held.
   

EVIDENCE

7. The plaintiff relies on three affidavits, the primary one being his own. He deposes to the circumstances of the incident, his detention in custody, his prosecution before the District Court on charges of resisting arrest and stealing (both of which were dismissed), his medical treatment and medical reports.
   
8. The most significant medical evidence is in the form of reports by Dr Simon Melengas, Chief Ophthalmologist, Port Moresby General Hospital, who confirms that the plaintiff has been his patient since 3 April 2012 when he presented at the Eye Clinic in relation to an alleged assault by several policemen at Vision City. Dr Melengas reported on 25 September 2015 that the plaintiff has lost 100% vision in the right eye and 33% binocular vision. Other medical reports are by Dr Sam Yockopua, Chief Emergency Physician, Port Moresby General Hospital and Dr Takovi Maga, Dental Officer, Division of Dentistry, Port Moresby General Hospital. Those reports show that the plaintiff presented at the Dental Clinic and the Emergency Department on 3 and 4 April 2012 respectively. They verify the plaintiff’s evidence that he lost four teeth in the incident and still, several days after the incident, was in severe pain, having a grossly swollen face and head and multiple bruises.
   
9. Other affidavits are by employees of Comfort Taxi Services, the firm that, the plaintiff claims, employed him as a taxi-driver before the incident of 29 March 2012. Their evidence is relevant to the wages and other benefits the plaintiff says he was earning as a taxi-driver. He claims that he has been unable to drive taxis since the incident and has lost the ability to earn an income from taxi-driving.
   
10. The State presented no evidence.
    

SUBMISSIONS

11. The plaintiff seeks seven categories of damages: (a) general damages, K101,000.00; (b) breach of human rights, K10,000.00; (c) false imprisonment, K10,000.00; (d) malicious prosecution, K20,000.00; (e) exemplary damages, K35,000.00; (f) special damages (past and future loss of salaries, unspecified, and out of pocket expenses, K2,300.00), (g) cost of repair to his vehicle’s gearbox, K3,000.00, a total of K181,300.00 plus past and future salary losses.
    
12. As a preliminary argument, the State, citing two Supreme Court decisions, Lina Kewakali v The State (2011) SC1091 and Jack Pinda v Sam Inguba & The State (2012) SC1181, asked the Court to revisit the issue of liability and dismiss the proceedings and award the plaintiff nothing, on grounds that:
    

• the actual tortfeasors (better described, in my view, as wrongdoers) had not been named as defendants; and
  
• the statement of claim was defective as it failed to plead the nexus between the wrongdoers and the State, that the wrongdoers were employed by the State and that the State was vicariously liable under Section 1(1) of the Wrongs (Miscellaneous Provisions) Act.
  

13. The State argued, in the event that its preliminary argument did not succeed, that the plaintiff be awarded no more than K106,500.00.
    

PRELIMINARY ARGUMENT

14. I am not persuaded by the State’s preliminary argument. The effect of the default judgment is that the facts and causes of action pleaded in the statement of claim are presumed to have been proven, and are only revisited if they do not make sense or would make an assessment of damages a futile exercise. The judge assessing damages should make only a cursory inquiry to be satisfied that the facts and the cause of action are pleaded with sufficient clarity (William Mel v Coleman Pakalia (2005) SC790).
    
15. I have made that inquiry and am satisfied that the facts and causes of action are clear. This is an appropriate case for assessment of damages, the causes of action being breach of human rights, false imprisonment and malicious prosecution.
    
16. The preliminary argument of the State raised issues regarding the quality of the pleadings and might, if raised earlier, at the appropriate time, have resulted in judgment not being entered in favour of the plaintiff. But no application to set aside the default judgment was made, no appeal was filed and the argument was made late, without notice. It is not appropriate to entertain it.
    
17. Besides that, as I have said in cases such as William Pattits v The State (2006) N3088, Vincent Kerry v The State (2007) N3127 and Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807, I have grave misgivings about the spectre of human rights cases being dismissed on technicalities such as those being raised at this late stage by the State. I cannot see the justice in refusing relief to an innocent plaintiff who is the victim of Police brutality or some other sort of wrong committed by employees of the State simply because the plaintiff cannot identify by name the State employee who committed the wrong or the plaintiff or his lawyer have not complied with the strict rules of pleadings developed in faraway parts of the common law world to deal with common law claims.
    
18. We must remember that this is the National Court of Justice. Judges are duty-bound to dispense justice and enforce human rights. We are not examiners in pleading competitions.
    
19. Furthermore, as I held in Aquila Kunzie v NCD Police Mobile Squad (2014) N5584, the rules of pleadings, seemingly championed in cases such as Kewakali and Pinda, should be confined in their operation to cases in which the plaintiff’s action is based exclusively on the common law. If the plaintiff’s claim is based wholly or partly (as in the present case) on a breach of human rights, as defined by the Constitution, the Court’s approach is required to be much more flexible.
    
20. It would be a travesty of justice to dismiss the proceedings, at this stage, after default judgment has been entered and a trial has been conducted on assessment of damages, where the State has presented no evidence to counter the plaintiff’s fundamental claim that he was severely bashed by members of the Police Force without good reason and has been left blind in one eye as a result. I dismiss the State’s preliminary argument and will now proceed to assess damages in light of the evidence before the Court and submissions of counsel.
    

SUBMISSIONS

21. Set out in the following table are the seven categories of damages sought by the plaintiff and a comparison of the money amounts claimed by the plaintiff with the amounts that the State contends are appropriate. The final column contains the Court’s award.
    

No	Category	Plaintiff’s claim (K)	State’s response (K)	Award (K)
(a)	General damages	101,000.00	85,000.00	85,000.00
(b)	Breach of human rights	10,000.00	2,000.00	2,000.00
(c)	False imprisonment	10,000.00	500.00	500.00
(d)	Malicious prosecution	20,000.00	9,000.00	9,000.00
(e)	Exemplary damages	35,000.00	0	0
(f)	Special damages	2,300.00 +	10,000.00	10,000.00
(g)	Damaged gear box	3,000.00	0	0
	Total	181,300.00 +	106,500.00	106,500.00

22. It will be observed that I have assessed damages in the way contended for by the State. I have upheld the State’s submissions for the following reasons.
    

(a) GENERAL DAMAGES

23. I have compared and contrasted the circumstances of this case and the injuries incurred by this plaintiff with the circumstances and injuries incurred in other cases in which I have assessed general damages for physical assaults. These include cases in which the cause of action is other than for breach of human rights, such as the tort of trespass to the person. The details are in the following table.
    

ASSESSMENT OF GENERAL DAMAGES: ASSAULT CASES

No	Case	Details	Amount
1	John Pias v Michael Kodi & Ors (2006) N2972 Mt Hagen	Three Defence Force soldiers unlawfully assaulted the plaintiff in a hotel – he lost the sight of one eye – general damages were assessed as representing the pain and suffering and loss of amenities of life associated with his loss of 100% vision in the right eye.	K60,000.00
2	George Chapok v James Yali (2008) N3474 Madang	The plaintiff was summoned to a meeting at which the defendant, the provincial governor, was present – soon after the plaintiff entered the room, the defendant abused him and punched him to the floor – liability entered for trespass to the person – plaintiff suffered a bloodied nose and facial abrasions – no life threatening or permanent injuries and he was not hospitalised.	K5,000.00
3	Lance Kolokol v The State (2009) N3571 Madang	The plaintiff, an innocent man, was walking with friends near a public road – when he saw the police he ran away and 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 days before being taken before a court, which granted him bail.	K25,000.00
4	Losia Mesa v The State (2009) N3681 Kimbe	The plaintiff was working in his office at a local-level government when the deputy mayor walked in accompanied by armed police officers – the police officers unlawfully assaulted the plaintiff – also assaulted on arrival at the station – suffered multiple soft tissue facial injuries and eye injury, leading to blurred vision and reduced visual acuity.	K25,000.00
5	Jessie Namba v The State (2011) N4396 Madang	The plaintiff was shot in the leg by the police, for no good reason – he was detained in custody and then taken to hospital and his leg was amputated below the knee.	K150,000.00
6	Wandi Dope v Constable Michael Malai (2012) N4574 Madang	The plaintiff was a victim of human rights breaches committed by police officers who assaulted him when he refused to pay a spot fine for unlawful possession of betel nut – the police detained him for six days without charge, assaulted him and denied him food and medical treatment – suffered permanent damage to the head, mandible, teeth, thighs and knees and post-traumatic stress syndrome.	K20,000.00
7	Bolisa Figa v Willie Agong (2012) N4707 Madang	The plaintiff was unlawfully assaulted by the defendant and a group of police officers at a police station – general damages were awarded for the tort of trespass to the person – the plaintiff was badly shaken up, suffering 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 – but no life threatening or permanent injuries and he was not hospitalised.	K10,000.00
8	Michael Kondai v Gabriel Saul (2015) N5865	The plaintiff and the defendant had an altercation during the course of which the defendant deliberately rammed the plaintiff with the vehicle he was driving, causing permanent injury to the right shoulder, arm and hand.	K15,000.00

24. The case most similar to the present case is John Pias, in which the plaintiff was assaulted by members of the Defence Force for no good reason in a hotel. The plaintiff lost 100% vision in his right eye as a result of the unlawful assault and was awarded general damages of K60,000.00. The present plaintiff, Mr Kandakasi, also lost 100% vision in his right eye. He has also suffered a significant loss of binocular vision. He also suffered other injuries, including the loss of four teeth. In view of the more extensive injuries he suffered, compared with those suffered by Mr Pias, and taking into account that the decision in Pias was given ten years ago, I will award more than K60,000.00. The amount contended for by the defendants is reasonable. I award the plaintiff K85,000.00.
    

(b) COMPENSATION FOR BREACH OF HUMAN RIGHTS

25. I accept the State’s submission that an appropriate award for denial of the right to freedom from inhuman treatment under Section 36(1) of the Constitution, in circumstances where there is a substantial award of general damages, is K2,000.00.
    

(c) COMPENSATION FOR FALSE IMPRISONMENT

26. I accept the State’s submission that an appropriate award for false imprisonment, given that the plaintiff was only in custody for two days, is K500.00.
    

(d) COMPENSATION FOR MALICIOUS PROSECUTION

27. I accept the State’s submission that an appropriate award for malicious prosecution, comparing the facts of this case with those in Teine Molomb v The State (2005) N2861, is K9,000.00.
    

(e) EXEMPLARY DAMAGES

28. 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.

29. Since the Supreme Court’s decision in Abel Tomba v The State (1997) SC518 the courts have been reluctant to award exemplary damages against the State for abuse of police powers. The question to ask is whether the breach of the law by police officers is a technical breach or whether it involves a significant and unwarranted departure from the proper exercise of police powers eg where a police operation is unauthorised and individual police officers are not named as defendants. 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 a matter of discretion.
    
30. The facts of the present case fit into the second category. As the plaintiff has received a substantial award of general damages, I will, in the circumstances of this case, uphold the State’s submission. Nothing is awarded for exemplary damages.
    

(f) SPECIAL DAMAGES

31. Mr Pato, for the plaintiff, has incorporated in his submission on special damages a claim for economic loss, being the income lost by the plaintiff due to his being unable to earn a living as a tax-driver because of his poor vision. This is not the correct approach. Economic loss does not belong within the special damages category.
    
32. Special damages are intended to compensate a plaintiff for some sort of loss or damage incurred that is not presumed by law to have been incurred. It is a special sort of damage that must be expressly pleaded, particularised and proven (PNGBC v Jeff Tole (2002) SC694). Here, special damages have not been adequately pleaded. There is only a vague pleading for “special damages”, so I award nothing for special damages, as such.
    
33. However I will make an assessment for economic loss. It is separately pleaded in the statement of claim. It is only in Mr Pato’s submissions that the confusion has become apparent. I agree with the State’s submission that the evidence is deficient and warrants only a notional amount of K10,000.00, which is what I award.
    

(g) DAMAGE TO GEAR BOX

34. I agree with the State’s submission that this is a type of damage that is too remote. It has been inadequately pleaded and nothing is awarded.
    

SUMMARY

35. The total award of damages is K106,500.00.
    

INTEREST

36. Interest is awarded at the rate of 2 per cent per annum on the total amount of damages under Section 4(1) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015. Interest will be calculated in respect of the period from the date on which the causes of action first accrued (29 March 2012) to the date of this judgment, a period of 4.81 years, by applying the formula D x I x N = A, where: D is the amount of damages, I is the rate of interest per annum, N is the appropriate period in numbers of years and A is the amount of interest: K106,500.00 x 0.02 x 4.81 = K10,245.30.
    

COSTS

37. As the State’s primary submission was that the proceedings be dismissed and the plaintiff be awarded nothing, and despite the Court upholding the State’s submission on the quantum of damages, the plaintiff has succeeded substantially. Costs will follow that event.
    

ORDER

(1) The defendant is liable to pay to the plaintiff total damages of K106,500.00 plus interest of K10,245.30, being a total judgment sum of K116,745.30.

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

(3) The proceedings are thereby determined and the file is closed.

Judgment accordingly,
_____________________________________________________________
Parker Legal : Lawyers for the Plaintiff
Solicitor-General : Lawyer for the Defendants