Wafi v Christian [2018] PGNC 63; N7136 (28 February 2018)

N7136

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 258 OF 2010

MICHAEL WAFI, EFETE MAX, PETRUS MAGABE, SAMUEL ARAWE, KAIME MAI, HAME HOGOTE & PETER TENAPE
Plaintiffs

V

SENIOR CONSTABLE EDWARD CHRISTIAN, VINCENT FRIDAY & JOE NANE, POLICE OFFICERS OF GEREHU POLICE STATION
First Defendants

GARI BAKI, COMMISSIONER OF POLICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J

2016: 1, 27 July,

2018: 28 February

DAMAGES – assessment of damages for breaches of human rights – liability established after trial – public market in which the plaintiffs were traders raided by police – property damage and minor bodily injuries due to assaults.

This was an assessment of damages. The plaintiffs were traders at a public market that was raided by members of the Police Force. The police targeted four of the plaintiffs and damaged or confiscated their trade items and physically assaulted two of them. Four plaintiffs obtained judgment against the State for breaches of human rights following a trial on liability. The State was held vicariously liable for breaches of human rights committed against the plaintiffs, in particular the rights in Sections 37(1), 41(1) and 53(1) of the Constitution. The plaintiffs claimed four categories of damages, totalling K102,971.50. The State argued that the plaintiffs should be awarded nothing due to lack of corroboration of their evidence.

Held:

(1) The plaintiffs validly claimed damages in four categories in accordance with the statement of claim: (a) property losses; (b) general damages for breach of human rights; (c) damages for personal injuries; and (d) exemplary damages.

(2) The claims were generally excessive due to the lack of corroboration. However, there was sufficient evidence to defeat the State’s proposition that nothing should be awarded, and the court proceeded to make an assessment in respect of each category of damages for each plaintiff.

(3) The four plaintiffs were awarded total damages of K9,000.00, K11,000.00, K11,000.00 and K8,000.00 respectively, being a grand total of K39,000.00, plus interest and costs.

Cases cited

The following cases are cited in the judgment:

George Chapok v James Yali (2008) N3474
Michael Wafi v Edward Christian (2015) N6056

ASSESSMENT OF DAMAGES

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

Counsel:

Y Awi, for the Plaintiffs
I Mugugia, for the Second and Third Defendants

28^th February, 2018

1. CANNINGS J: This is an assessment of damages for breaches of Human Rights committed by members of the Police Force against the plaintiffs in an incident at Gerehu Market, National Capital District, on 5 April 2009. The police raided the market, looking for people who had earlier started a fight in the market. The police were armed with firearms and bushknives and proceeded to destroy the plaintiffs’ market stalls and remove the plaintiffs’ betel nuts, mustard, cash, cigarettes, playing cards, cigarette lighters, prepaid mobile phone cards, lollies, matches, umbrellas and other trade items. Two plaintiffs were assaulted by the police and suffered bodily injury. Four of the seven plaintiffs obtained judgment against the third defendant, the State, after a trial on liability (Michael Wafi v Edward Christian (2015) N6056).

SUBMISSIONS

2. The plaintiffs’ counsel, Mr Awi, submitted that the plaintiffs should be awarded four categories of damages, totalling K102,971.50. Counsel for the State, Ms Mugugia, submitted that the plaintiffs should be awarded nothing due to a lack of corroboration of their evidence.

DETERMINATION

3. The plaintiffs have validly claimed damages in four categories in accordance with the statement of claim: (a) property losses; (b) general damages for breach of human rights; (c) damages for personal injuries; and (d) exemplary damages.

4. I consider that the claims are generally excessive due to lack of corroboration and believability. However, the State’s argument that they should be awarded nothing is unrealistic. The plaintiffs have secured a judgment on liability after trial. They have proven that the police raided the market and that their human rights were breached. The State has not presented any evidence to rebut the plaintiffs’ evidence.

5. As to (a) property losses, Michael Wafi makes the biggest claim. He gave evidence that he lost property worth K18,643.00, including cash of K557.00. He has itemised his losses but it remains very difficult to believe that a simple trader in an urban market, carrying on business on a makeshift table beneath an umbrella, would have stock of that value on hand. I have awarded him K3,000.00 for property losses. I have awarded the three other plaintiffs K2,000.00 for loss of property as their claims were less than that of Michael Wafi.

6. As to (b), general damages for breach of human rights, I take into account that the plaintiffs proved at the earlier trial that three of their human rights were breached:

• right to the full protection of the law (Constitution, Section 37(1));
  
• protection against harsh or oppressive acts (Constitution, Section 41(1)); and
  
• protection against unjust deprivation of property (Constitution, Section 53(1)).
  

7. I award them K1,000.00 compensation for each right breached, ie K3,000.00 for each plaintiff.

8. As to (c), general damages for assault and bodily injury, two plaintiffs were physically assaulted so only they are awarded anything. The injuries were relatively minor (soft tissue injuries and abrasions) and did not require hospitalisation. I have compared the facts with previous cases and find some similarity with the case of George Chapok v James Yali (2008) N3474. I award K3,000.00 each to the two plaintiffs who were assaulted.

9. As to (d), exemplary damages, I find for the purposes of Section 12(1) of the Claims By and Against the State Act 1996 that the breach of constitutional rights was sufficiently severe as to warrant an award of K3,000.00 each.

10. The award of damages for each of the four plaintiffs is shown in the following table.

AWARDS OF DAMAGES

No	Name	Damages for property losses (K)	Damages for breach of human rights (K)	General damages for assault, distress etc (K)	Exemplary damages (K)	Total (K)
	Michael Wafi	3,000.00	3,000.00	0	3,000.00	9,000.00
	Efete Max	2,000.00	3,000.00	3,000.00	3,000.00	11,000.00
	Petrus Magabe	2,000.00	3,000.00	3,000.00	3,000.00	11,000.00
	Samuel Arawe	2,000.00	3,000.00	0	3,000.00	8,000.00
	Total	9,000.00	12,000.00	6,000.00	12,000.00	39,000.00

INTEREST

11. 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 (20 October 2013) to the date of this judgment, a period of 4.36 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. Interest has been calculated accordingly and is shown in the Schedule below.

COSTS

12. The plaintiffs have engaged a private law firm and have succeeded in obtaining an award of damages after a trial on liability. In these circumstances it is appropriate that the State be ordered to pay their legal costs on a party-party basis.

ORDER

1. Damages are payable by the third defendant to each plaintiff whose name appears in the Schedule, in the amount shown for each plaintiff.
   
2. In addition, interest is payable by the third defendant to each plaintiff whose name appears in the Schedule, in the amount shown for each plaintiff.
   
3. The case of each plaintiff whose name does not appear in the Schedule is dismissed.
   
4. The proceedings against the first and second defendants are dismissed.
   
5. Subject to any particular costs order to the contrary, costs of the entire proceedings shall be paid by the third defendant to the plaintiffs who have been awarded damages and interest, on a party-party basis, to be taxed if not agreed.
   

SCHEDULE

No	Name	Total damages (K)	Interest (K)	Total award of damages + interest (K)
	Michael Wafi	9,000.00	784.80	9,784.80
	Efete Max	11,000.00	959.20	11,959.20
	Petrus Magabe	11,000.00	959.20	11,959.20
	Samuel Arawe	8,000.00	697.60	8,697.60
	Total	39,000.00	3,400.80	42,400.80

Judgment accordingly,
_____________________________________________________________
Narokobi Lawyers: Lawyers for the Plaintiffs
Solicitor-General: Lawyer for the Second & Third Defendants