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Solmein v Lim [2020] PGNC 214; N8450 (12 August 2020)

N8450

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS (HR)NO 5 OF 2017


BETWEEN:
VANCE SOLMEIN
Plaintiff


AND:
SENIOR CONSTABLE OBERT LIM
First Defendant


AND:
CONSTABLE NATHAN KERRY
Second Defendant


AND:
CONSTABLE MMICHAEL MALAI
Third Defendant


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant


Madang: Narokobi J
2020: 9July, 12 August


DAMAGES – assessment of damages – general damages – special damages – exemplary damages – breach of human rights – unlawful actions of police – level of swearing denigrating the female gender.

The plaintiff was in the company of his brothers, driving to the market when they were stopped by the police. When his brother said he did not bring his driver’s licence with him, the first defendant started assaulting him. Seeing the seriousness of the assault, the plaintiff took his phone to take pictures, but the second defendant saw him and confiscated the phone saying he had to check it for pornography. The second defendant than proceeded to assault him, landing several blows all over his head and ears. No permanent injuries and hospitalisation was not required. Liability was determined by default and the matter is now before the court for assessment of damages.


Held:

(1) This was a case where compensation for breaches of human rights should be assessed separately from general damages (Kolokol v Amburuapi (2009) N3571 followed).

(2) The Kolokol approach is not universal and relevant considerations include the fundamental importance of human rights and freedom which have constitutional guarantee in Papua New Guinea, and in this particular case, the Kolokol approach will enhance the enforcement, protection and promotion of human rights and freedoms. But again, each case should be dealt with on its own merits.

(3) General damages were assessed at K5, 000.00.

(4) The plaintiff’s human rights were breached on four (4) distinct occasions:


(5) On each of those occasions, six (6) of his human rights were breached:


inherent dignity of the human person (Section 37(17);

(6) He was awarded K2, 000.00 x 4 = K8, 000.00 compensation.

(7) Special damages were assessed at K30.00.

(8) The breach of constitutional rights showed a wanton disregard of constitutional rights and the use of insulting and sexist words amidst a climate of escalating gender-based violence warrants an award of exemplary damages of K3, 000.00.
(9) The total amount of damages awarded was K16,030. In addition, interest of K1,522.85 is payable, making the total judgment of K17,552.85.


Cases Cited:
Chapok v Yali (2008) N3474.
Coecon Ltd (Receiver-Manager Appointed) v National Fisheries Authority of Papua New Guinea (2002) N2182
David Kofowei v Augustine Siviri and Others [1983] PNGLR 449
Felix Kua v. Clement Patiken (2010) N4103
Kolokol v Amburuapi (2009) N3571
Patai v Niugini Lumber Merchants Pty Ltd (1997) N1602
Pawa Kombea v Semal Peke [1994] PNGLR 572 Teine Molomb v The State (2005) N2861
TRIAL


This is a trial on assessment of damages.

Counsel

Felix Solmein Alai, with leave of the court for the plaintiff
No appearance for the defendants


JUDGEMENT

12th August 2020


  1. NAROKOBI J: On 7 February 2020, default judgement was entered against the defendants on liability with damages to be assessed pursuant to Order 12 Rules 25(b) and 28 of the National Court Rules. The trial was conducted on 9 July 2020. This is the court’s decision on assessment of damages.

A BACKGROUND

  1. The plaintiff claims damages for physical and verbal assault and breaches of his human rights and freedoms by the police.
  2. Initially the defendants were:- Senior Constable Orbert Lim, first defendant; Constable Nathan Kerry, second defendant; Constable Michael Malai, third defendant; Constable Cosmas Kafur, fourth defendant; Sergeant Willie Marita, fifth defendant; Constable Albert Pomat, six defendant; Constable Leroy Makel, seventh defendant; The Independent State of Papua New Guinea, Eight defendant.
  3. On 27 July 2019, the fourth, fifth, sixth and seventh defendants were removed as parties by the court on 27 July 2019. The first, second, third and eighth defendants remain as defendants.
  4. At the time of the incident on 4 November 2015 the plaintiff was a Chemical Engineering student at the University of Technology in Lae. The police assault and breaches of his rights and freedoms occurred in Madang. He relies on his statement of claim and his own affidavit filed on 21 April 2020 to support his claim for damages.
  5. The plaintiffs claim is corroborated by the affidavits of: Smaila Solmein (filed 21 April 2020); Daryl Solmein (filed 21 April 2020); Felix Solmein Alai (filed 21 April 2020) who commenced separate proceedings naming the same defendants (WS (HR) No 3 of 2017, WS No 4 of 2017 and WS (HR) No 7 of 2017, respectively). They were all present on the day when the violation of the plaintiff’s rights occurred, and they have filed proceedings separately claiming breaches of their rights too. Trials were argued on the same day and the affidavit materials were relied on to support each of the proceeding after notice under Section 35 of the Evidence Act 1975 was given. I consider these affidavits too, as I am permitted to do so pursuant to section 44(b) of the Evidence Act.
  6. After entry of default judgement, all issues of liability are considered to be determined (Coecon Ltd (Receiver-Manager Appointed) v National Fisheries Authority of Papua New Guinea (2002) N2182 and Patai v Niugini Lumber Merchants Pty Ltd (1997).
  7. I have examined the pleadings and am satisfied that there is a cause of action and so now I turn to determine the relevant damages based on the evidence provided to the court (Felix Kua v. Clement Patiken (2010) N4103).
  8. I have also been greatly assisted by Mr Felix Solmein Alai’s comprehensive submissions. He provided a good background of the proceedings, the evidence was credible and the case law cited in relation to assessment of damages for police brutality and breach of constitutional rights were relevant. The amount claimed was reasonable and were not exaggerated considering that it was not defended.
  9. In summary the plaintiff claims the following:
Type of damages claimed
Amount
General damages
K5,000.00
Constitutional breaches
K2,000.00
Special damages
K30.00
Exemplary damages
K2,000.00
Total claimed
K9,030.00

  1. The pertinent facts substantiating each claim will be discussed under each head of damage claimed.

B ISSUES


  1. In assessing damages, I have reviewed a number of cases and I settle with the approach of Cannings J in Kolokol v Amburuapi (2009) N3571. His Honour took the same course the court took in David Kofowei v Augustine Siviri and Others [1983] PNGLR 449 and Pawa Kombea v Semal Peke [1994] PNGLR 572.
  2. The following are the issues I will consider:
  1. LAW
  1. Following facts arose in Kolokol as recounted in the headnotes:

“The plaintiff was walking with friends near a public road. When he saw the police, he ran away. He 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. He sued the police officers who assaulted and shot him, and the State, claiming general damages, compensation for breach of human rights, special damages and exemplary damages. Default judgment was entered against the defendants, with damages to be assessed.”

  1. His Honour awarded damages for each separate cause of action pleaded, that is general damages, for each occasion the plaintiff’s rights were breached, special damages, exemplary damages and interests.
  2. The alternative approach is to award a global sum for all damages suffered as was what the court did in Teine Molomb v The State (2005) N2861. The plaintiff has urged the court to adopt the approach in Kolokol.
  3. As I said above, I take the approach in Kolokol. I do so bearing in mind that it is not a universal approach and each case ought to be considered on its own merits. I take the Kolokol approach as I consider the cause of action has been sufficiently pleaded, there is good evidence of the claim and that evidence is corroborated. All in all, considering the fundamental importance of human rights and freedom which have constitutional guarantee in Papua New Guinea, the Kolokol approach will enhance the enforcement, protection and promotion of human rights and freedoms, at least in so far as this case is concerned. But again, each case should be dealt with on its own merits.

D APPLICATION OF THE LAW TO THE ISSUES


  1. First Issue - General Damages for Assault, Pain and Suffering
  2. The plaintiff claims general damages for the actions of the defendants. In summary these are the acts of the defendants which resulted in their negligence and breach of the plaintiff’s constitutional rights. These facts are pleaded in the statement of claim and supported by the plaintiff’s own affidavit filed 21 April 2020 and the other corroborating affidavits I referred to above.
  3. On 4 November 2015, the plaintiff was in the company of his brothers, Smaila Solmein and Daryl Solmein. They were going to the local market to buy the family afternoon dinner. His brother Smaila Solmein was driving. The police shouted at them to stop, swearing at the same time. Out of fear of the police that they were rogue police, they drove on. When the police pursued them, they stopped. As soon as Smaila Solmein came out of the car, they continued swearing and the first defendant started assaulting him. Seeing that the assault was vicious, his other brother Daryl Solmein came out to ask the police to stop. The first defendant then turned on Daryl and also viciously assaulted him.
  4. Seeing all this unfolding, the plaintiff took out his mobile and started taking pictures. The second defendant spotted him and approached him, removing his phone in the pretext of checking it for pornographic material. The second defendant then proceeded to assault the plaintiff, punching him several times on his head and face, resulting in blood shot eyes.
  5. At the Jomba Police station in Madang, after repeated requests his mobile phone was returned.
  6. Throughout the ordeal on at least four occasions he and his brothers were sworn at by the first defendant, using the words “kaikaikan...” (“eat vagina...”). It began when they were stopped at the roadside, and then continued to the police station.
  7. At the police station he witnessed his father being assaulted and Sergeant Marita banging the bonnet of their car with his fist, causing a dent.
  8. For general damages for the nature of injuries the plaintiff sustained, in that it did not require hospitalisation, I take as the starting point the case of Chapok v Yali (2008) N3474. There, the National Court awarded K5,000 for the following incident:

“3. He was getting ready to tell them that the vote of no-confidence had been postponed. But before he started, Mr Yali verbally abused him. He called him a "bastard" and an "arsehole". He accused him of associating with the Ambenob LLG president the previous night. In response to the unfriendly atmosphere Mr Chapok got up to leave. Mr Yali stopped him. He punched him several times in the face, drawing blood and causing him to fall to the floor. Another member of the group, Fred Maliupa, the Usino LLG president, also punched Mr Chapok.”


  1. I take the present facts of the case, as a similar to the one in Chapok and there was also repeated use of insulting words. Although he did not suffer any permanent injuries, the viciousness of the attack, the continuous swearing and the fear instilled in the victim needs to be given some weight. There is no medical evidence of psychological harm, but no doubt, this cannot be discounted, such as post-traumatic stress disorder considering the viciousness of the attack and the way it was carried out through a pack mentality arrangement. I award K5,000 for general damages.
    1. Second Issue – Damages for Breach of Constitutional Rights
  2. At the scene of the assault on his brothers, when the plaintiff’s brothers were viciously assaulted and he wanted to use his phone to photograph the incident, the second defendant removed the phone from him in the pretext that the first defendant had to check if it had any pornographic material in it.
  3. The second defendant said (in pidgin) but translated as follows:

“East vagina! Bring your mobile here and I check for pornography.”


  1. After checking and finding nothing illegal, the second defendant returned his phone after throwing several heavy punches to his head, and saying (translated from pidgin):

“Eat vagina! You want to act smart, are you!? Be careful as you might end up being beaten as your brothers!”


  1. The plaintiff’s father arrived after he was informed by other persons when they were at the Yomba police station.
  2. The evidence also show that the first defendant threatened to charge them and kill him and his brothers and father if they took the matter to court. The first defendant said (in pidgin), but translated into English as follows:

“You eat your mother’s vagina! Your father wants to act smart and take us to court, is he? I will charge your father for obstructing police.”


  1. Later the first defendant said again (in pidgin) but translated as follows:

“You listen! Eat your mother’s vagina! We are policemen from Sisiak! Don’t get yourselves confused! Your father wants to act smart and take us to court, is he? Watch out! I will kill all of you! I will take all your lives.”


  1. From the facts provided above, I conclude that the following rights and freedoms were breached.
Constitutional Rights and Freedoms Breached
Facts
Evidence
1.Section 36, Freedom from Inhuman Treatment
The assaults and swearing by the first and second defendant.
Affidavit of the plaintiff and corroborated by the affidavits of Smaila Solmein, Daryl Solmein, and Felix Solmein Alai.
2. Section 37(1), Full protection of the law
The assault and also threat by the first defendant to be killed if he and his family took the matter to court.
Affidavit of Smaila Solmein, Daryl Solmein and Felix Solmein Alai.
3. Section 37(17), Right to be treated with humanity and with respect for the inherent dignity of the human person
The assault and swearing by the first and second defendant.
Affidavit of the plaintiff and corroborated by the affidavits of Smaila Solmein, Daryl Solmein and Felix Solmein Alai.
4. Section 41, Proscribed acts
The assault and swearing by the first and second defendant.
Affidavit of the plaintiff and corroborated by the affidavits of Smaila Solmein, Daryl Solmein and Felix Solmein Alai.
5. Section 44 – freedom from arbitrary search and entry.
The plaintiff’s mobile phone was confiscated by the second defendant when he tried to photograph the assault.
Affidavit of the plaintiff.

  1. I accept the plaintiff’s submission based on the corroborated evidence before the court, that these rights were breached on four (4) occasions:
  1. I further accept the plaintiff’s submission and follow the court’s ruling in Kolokol and award K2,000 for each of the occasions of the breach and award a total of K8,000.
    1. Third Issue – Special Damages
  2. Special damages is claimed for K30 being incidentals related to medical costs. It is reasonable and I award this sum.
    1. Fourth Issue – Exemplary Damages
  3. For exemplary damages, I take into account the requirement of Section 12 of the Claims By and Against the State Act 1996.

“12. Judgements Against the State.


(1) 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.”
  1. I also take into account the court’s ruling in Kolokol and consider the following circumstances as warranting an award of exemplary damages:
  2. The behaviour and language of the police were deplorable, and an award of damages for exemplary damages will demonstrate to him and his employer, that this will not be tolerated by the court. There was absolutely no reason for the first defendant to continuously use foul language in the exercise of his duties. In a time when society is concerned with escalating gender-based violence, where according to some studies, two out of every three women in Papua New Guinea are subject to violence (http://www.femilipng.org/wp-content/uploads/2018/10/PNG-GBV_Strategy-2016-2025_150816.pdf), the use of language objectifying the female gender as a symbol of denigration is uncalled for.
  3. Why policemen readily use the female genitalia as a term of insult while concurrently denigrating the sacrosanct societal and biological role of the mother, almost in automated response, without thinking how the words “eat vagina” and “eat your mother’s vagina,” is perceived by the public about their personal integrity and as officers of government, is a mystery. But it speaks to the mind of a cultural milieu that needs to change. There seems to be an endless sickening fascination with the female genitalia by the first defendant, prefacing his statements with “eat vagina...”. The repeated use of these words time and time again, can disturbingly plug the ears of society to the repulsive and shocking insinuations these words convey. Accordingly, their repeated use should not desensitize the court, much less society in general, each time they are uttered. It must stop. And it starts with the officers of the Independent State of Papua New Guinea.
  4. In light of these considerations I award exemplary damages to be paid by the State. The plaintiff submits that he should be entitled to K2,000. I accept the plaintiff’s submission as reasonable but add another K1,000 in light of the foregoing and award the sum of K3,000.
  5. The total damages I award are therefore as follows:
Damages claimed
Amount Awarded
General damages
K5,000
Constitutional breaches
K8,000
Special damages
K30
Exemplary damages
K3,000
Total awarded
K16,030

  1. Fifth Issue - Interest
  2. For interest, I note that it is a discretionary matter for me to consider. I do not see anything speaking against the awarding of interest. But I note that I am confined to a 2% maximum interest rate pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 for claims against the state.
  3. I will award interest on the total sum that is commencing from the date when the cause of action accrued to the date of judgment, that is from 4 November 2015 to 10 July 2020, and calculate it as follows:
  4. The total interest I award at 2% from the date the cause of action arose to the date of judgement is K1,522.85.

D CONCLUSION AND ORDERS


  1. Since the police who committed the illegal actions were acting in the course of duty, and the plaintiff has pleaded that their employer is vicariously liable, I hold the State responsible for the damages awarded.
  2. In consideration of the facts, the issues and the law, I make the following orders in relation to this matter:

1. Fourth Defendant (the State) pay the plaintiff a total judgement sum of K17,552.85 being total damages for general damages, breach of constitutional rights, special damages, exemplary damages and interest.

2. Interest is to accrue at the rate of 2% per annum for any amount not paid to the plaintiff within 30 days from this order.

3. Fourth Defendant (the State) pay the plaintiffs costs of the entire proceedings, such costs to be taxed if not agreed.

4. Time is abridged.

Judgment and Orders accordingly
___________________________________________________________________________


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