Kogora v Kawi [2018] PGNC 51; N7137 (28 February 2018)

N7137

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 632 OF 2013

CHARLIE KOGORA
Plaintiff

V

JUSTICE JOHN KAWI
First Defendant

NATIONAL JUDICIAL STAFF SERVICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

EXPRESS MAIL SERVICES POST PNG LIMITED
Fourth Defendant

Waigani: Cannings J
2018: 15, 20, 28 February

DAMAGES – assessment of damages for breaches of human rights – liability established after trial – court reporting officer detained in custody in inhumane, intimidating and threatening conditions for five days – denial of right to full protection of the law, to be treated with humanity, to be segregated from convicted prisoners.

The plaintiff succeeded at a trial in establishing a cause of action in breach of human rights against the State arising from the decision of a judge to remand him in custody for five days pending the hearing of a charge of contempt of court against him. He was detained in an overcrowded and unhygienic police lock-up in an intimidating, inhospitable and threatening environment, together with convicted prisoners, and he was traumatised and genuinely feared for his physical and mental well-being and his life. At the trial on liability, the court ordered that the State was liable in damages to the plaintiff in respect of breaches of human rights in three respects: he was denied the full protection of the law under Section 37(1) of the Constitution, not treated with humanity and respect (Constitution, s 37(17)) and not segregated from convicted prisoners (Constitution, s 37(18)). At the trial on assessment of damages the plaintiff claimed a total of K290,000.00. The State argued that the plaintiff should be awarded no more than K11,000.00.

Held:

(1) In assessing damages for breaches of human rights involving unlawful or unreasonable detention of a person over a number of days, it is appropriate to assess damages on a daily basis.

(2) In assessing an appropriate amount of damages for each day, it is relevant to consider precedent cases, the number of human rights breaches that have been identified and the nature and extent of the breaches, having regard to all the circumstances of the case.

(3) The amounts sought by the plaintiff were excessive and without precedent. However, his evidence of the deplorable conditions in which he was detained and the special and extraordinary circumstances in which his human rights were breached, justified an award of damages of K2,000.00 for each of three human rights breaches for each of five days. Thus: K2,000.00 x 3 breaches x 5 days = K30,000.00.

(4) In addition the plaintiff was awarded interest of K2,814.00. The total judgment sum was K32,814.00.

Cases cited

The following cases are cited in the judgment:

Ikipe Wakalu v The Police (2017) N6600
Lomot Chauka v Elthy Biang (2012) N4854
Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807
Steven Kuefa v George Sunku (2012) N4855

ASSESSMENT OF DAMAGES

This was an assessment of damages for breaches of human rights.

Counsel

B Geita, for the Plaintiff
R Kebaya, for the Third Defendant

28^th February, 2018

1. CANNINGS J: This is an assessment of damages for breaches of human rights. The plaintiff succeeded at a trial in establishing a cause of action against the State arising from the decision of a judge to remand him in custody pending the hearing of a charge of contempt of court against him.

2. The plaintiff was at the time a court reporting officer. He was detained at the Buka Police Lock-up for five days in July 2011. It was an overcrowded and unhygienic facility. It was an intimidating, inhospitable and threatening environment. Attention was immediately drawn to the plaintiff as he is a relatively light-skinned Northern Province man, compared to the bulk of the detainees who were dark-skinned Bougainvilleans. He was viewed with scorn as he was a court officer. He was detained together with convicted prisoners. He was traumatised and genuinely feared for his physical and mental well-being and his life.

3. After hearing the contempt charge, the judge discharged him without recording a conviction and warned him not to repeat the conduct that resulted in him being charged (failure to follow the judge’s instructions about organising a portable recording machine for a court circuit).

4. In determining the trial on liability in the human rights action, the court ordered that the State was liable in damages to the plaintiff for three human rights breaches:

• he was denied the full protection of the law under Section 37(1) of the Constitution;
  
• he was not treated with humanity and respect for the inherent dignity of the human person (Constitution, s 37(17)); and
  
• he was not segregated from convicted prisoners (Constitution, s 37(18)).
  

SUBMISSIONS

5. The plaintiff’s counsel, Mr Geita, claimed K5,000.00 for breach of Section 37(1), K135,000.00 for breach of Section 37(17) and K150,000.00 for breach of Section 37(18), a total of K290,000.00. He referred to my decision in Ikipe Wakalu v The Police (2017) N6600 in support of those amounts. Mr Kebaya, for the State, submitted that the plaintiff should be awarded no more than a total of K11,000.00 damages.

DETERMINATION

6. In assessing damages for breach of human rights involving unlawful or unreasonable detention of a person over a number of days, it is appropriate to assess damages on a daily basis, as each day that a person is unlawfully or unreasonably detained is a significant event, warranting a discrete award of damages. In fixing an appropriate daily amount of damages, it is relevant to consider precedent cases, the number of human rights breaches that have been identified and the nature and extent of the breaches, having regard to all the circumstances of the case.

7. In Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807 I awarded damages at the rate of K250.00 per day of unlawful detention to a group of men whose human rights were breached. I applied the same rate in Steven Kuefa v George Sunku (2012) N4855 and in Lomot Chauka v Elthy Biang (2012) N4854.

8. In view of that approach it can be seen that the amounts sought by the plaintiff are excessive and without precedent. The facts in Wakalu are quite different to those in the present case and in any event I cannot see how taking the approach in that case would warrant the daily rates for breach of human rights that Mr Geita has contended for.

9. However, I consider that the plaintiff’s evidence of the deplorable conditions in which he was detained and the special and extraordinary circumstances in which his human rights were breached, involving genuine fear on his part for his life, and the trauma that that inevitably involved, justifies an award of damages of K2,000.00 for each of three human rights breaches for each of five days. Thus: K2,000.00 x 3 breaches x 5 days = K30,000.00.

INTEREST

10. 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 of filing of the writ (21 June 2013) to the date of this judgment, a period of 4.69 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. K30,000.00 x 0.02 x 4.69 = K2,814.00.

COSTS

11. I will allow the parties to bear their own costs as the damages claim was excessive and so as far as the trial on assessment of damages is concerned there is no clear winner. Further, the plaintiff has not had private counsel for the bulk of the proceedings.

ORDER

(1) The third defendant is liable to pay to the plaintiff total damages of K30,000.00 plus interest of K2,814.00, being a total judgment sum of K32,814.00.

(2) The parties will bear their own costs.

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

Judgment accordingly.
_________________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Third Defendant