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Buat v Kila [2021] PGNC 449; N9329 (3 September 2021)

N9329


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 935 OF 2011


BETWEEN
JUDITH BUAT
Plaintiff


AND:
CONSTABLE PHILIP KILA
First Defendant


AND:
GARI BAKI AS COMMISSIONER FOR POLICE
Second Defendant


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


Madang: Narokobi J
2021: 17th June; 3rd September

DAMAGES – assessment of damages – general damages – special damages – exemplary damages – breach of human rights – unlawful actions of police

Facts

The facts surrounding the clam was that the Plaintiff was raped at gun point whilst asleep in her father’s house at Garati village in Bogia District of Madang Province during a police raid. At that time the police were in pursuit of suspects. The First Defendant went into the house and ordered the plaintiff’s parents out, and sexually penetrated the Plaintiff without her consent. The Plaintiff was 15 years old at that time. The first Defendant has been found guilty of rape by the National Court in Madang (The State v. Kila (2008) N3687).


Held:

(1) This was a case where compensation for breaches of human rights should be assessed separately from general damages (Kolokol v Ambuuapi (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 K30, 000.00.

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

(5) On each of those occasions, four of her human rights were breached:

(6) She was awarded K55,000.00 compensation, composed of the following:
No
Occasion of Breach
Amount Awarded
1
Entered the Plaintiff’s room without just cause.
K5,000.00
2
Pointed the gun at the Plaintiff and told her not to scream or he will shoot her dead.
K10,000.00
3
Held the Plaintiff and removed her clothes and threaten her not to scream.
K10,000.00
4
Held the Plaintiff’s mouth shut from shouting and pulled her legs open and inserted his erected penis into the Plaintiff’s vagina without her consent.
K10,000.00
5
Holding the Plaintiff’s mouth shut during the act of penetration
K10,000.00
6
After raping the Plaintiff, the first defendant threatened her not to report the matter.
K10,000.00

(7) Special damages were assessed at K6,420.00.

(8) The breach of constitutional rights showed a wanton disregard of constitutional rights warrants an award of exemplary damages of K20, 000.00.

(9) The total amount of damages and interest awarded was K133,488.00, composed of the following:
Type of Damages and Interest
Amount Awarded
General damages
K30,000.00
Special Damages
K6,240.00
Damages for Breach of Constitutional Rights
K55,000.00
Exemplary Damages
K20,000.00
Interest
K 22,248.00.

Cases Cited:

Basse v. Yalamu (2021) N8707
Gaian v. Yawing (2018) N7099
Kolokol v Amburuapi (2009) N3571
Lome v Kundi (2009) N3791
The State v. Kila (2008) N3687

Statute Cited
Claims By and Against the State Act 1996
Constitution
Judicial Proceedings (Interest on Debts and Damages) Act 2015

TRIAL

This is a trial on assessment of damages.

Counsel

Mr Joseph Lai, for the Plaintiff
Mr Enoch Manihambu, for the First and Third Defendants


JUDGMENT


3rd September, 2021


  1. NAROKOBI, J: Liability was established in favour of the plaintiff on 3 July 2018 against the first and third defendant and the claim against the second defendant was dismissed.
  2. Trial on assessment of damages was conducted on 6 November 2020.
  3. This is the Court’s judgement on assessment of damages.
  4. The facts surrounding the claim was that the plaintiff was raped at gun point whilst asleep in her father’s house at Garati village in Bogia District of Madang Province during a police raid. At that time the police were in pursuit of suspects. The first defendant went into the house and ordered the plaintiff’s parents out, and sexually penetrated the plaintiff without her consent. The plaintiff was 15 years old at that time. The first defendant has been found guilty of rape by the National Court in Madang (The State v. Kila (2008) N3687).
  5. The Plaintiff tendered her own affidavit filed on 27 July 2019, marked as P1 and also relied on the affidavit of her father Charles Buat, filed 26 June 2019, marked as P2.
  6. The State offered no evidence.
  7. Judith Buat states in her affidavit that since the rape incident, she has suffered shame and humiliation and has left school. The incident still traumatizes her.
  8. She has spent a total of K6,240.00 pursuing this case.
  9. Charles Buat is the biological father of the plaintiff. At the time of this incident, he says that his daughter was doing Grade 8.
  10. The traumatic events in her life has forced her out of school and she dropped out at Grade eight.
  11. He states that he has spent K3,120.00 for PMV fares food and accommodation to Madang and back accompanying his daughter for her case.
  12. Charles Buat says further that his daughter has not recovered from the trauma and the indignity of being raped.
  13. I agree with the plaintiff’s submission that there are three (3) issues for the court to determine. They are:
  14. On the First issue, I have considered the statement of claim and the evidence tendered before the court. I have also taken judicial notice of the court’s decision in State v. Kila.
  15. I conclude that the Plaintiff has adduced credible evidence to pursue its case on the balance of probability on the assessment of damages. What follows now is to determine how much I should award for each category of damages claimed.
  16. There are two approaches to assessing damages. The first is to identify different causes of action and award damages for each of them, and the second is to award one global sum of damages for all causes of action. The two methods of assessing damages were referred to in Kolokol v State (2006) N3571.
  17. I uphold the plaintiff’s submission that damages for breach of constitutional rights should be assessed separately from the other heads of damages, since such an approach will highlight the significant constitutional safeguards awarded to human rights and freedom.
  18. I note that in Lome v Kundi (2009) N3791, a rape victim was awarded K20,000.00 general damages for pain suffering and loss of amenities.
  19. In this case, I note from the evidence that the plaintiff was traumatized and still faces mental anguish. She has become a recluse and left school because of the incident. There are no physical injuries, but she carries a deep scar in her emotional consciousness. She was 15 years old at that time.
  20. The plaintiff has submitted a claim for K30,000.00 for general damages. I consider that this is a reasonable sum, given that it is over 10 years since Lome v Kundi and I award K30,000.00 for general damages.
  21. For special damages, the plaintiff submit that she has spent a total of K6,240.00 pursuing this case. She lives some distance from Madang and bus fare costs K40.00 into town, and she has to spend money on accommodation and upkeep in Madang.
  22. This matter has gone on for some time, and I take special consideration of the type of injuries she suffered and award special damages for the amount claimed of K6, 240.00.
  23. As I said earlier, I will follow the approach in Kolokol v Amburuapi and identify the specific occasions in which the plaintiff’s rights have been breached. From the evidence, I determine the following were instances where the plaintiff’s rights have been violated:
  24. I consider that on each of these occasions, the following rights in the Constitution were breached:
  25. I have had regard to the case of Basse v. Yalamu (2021) N8707 where K10,000.00 was awarded for inhuman treatment contrary to s 36(1) of the Constitution.
  26. In Gaian v. Yawing (2018) N7099 human rights were breached including the right to privacy and a sum of K5,000.00 for each plaintiff was awarded.
  27. On the first occasion, following Gaian v Yawing, I award K5,000.00.
  28. For the other occasions, I follow Basse v. Yalamu, and award K10,000.00 for each occasion the Plaintiff’s rights were violated.
  29. The total amount of damages I award for breach of Constitutional rights is K55,000.00.
  30. Exemplary damages against the state is not permitted under s 12(1) of the Claims By and Against the State Act 1996 unless the breach is so severe.
  31. I accept the plaintiff’s submission that the plaintiff was in her house when she was violated at gunpoint. I further accept that the violation was by a police officer in uniform and on official duty during the scope of proper police operations. In Kolokol v Amburuapi K10,000.00 was awarded and in Basse v. Yalamu.
  32. The plaintiff submits that given the nature of the breach and that the tortfeasor has been imprisoned in hard labour for 15 years and the victim at the time of the offence was 15 years old, sleeping in her parent’s house, K20,000.00 in exemplary damages should be awarded. Although there are no physical injuries, the pain and the emotional scar are permanently etched in her emotional consciousness. K20,000.00 is a reasonable claim considering the severity of the violation, and I award K20,000.00 in exemplary damages as submitted.
  33. Total damages I award is K111,240.00, composed of the following:
Type of Damages
Amount Awarded
General damages
K30,000.00
Special Damages
K6,240.00
Damages for Breach of Constitutional Rights
K55,000.00
Exemplary Damages
K20,000.00

  1. For Interests, since the third defendant is the State and its agent, I award interest at the rate of 2% pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 as I see no reason against awarding interest.
  2. I will award interest on the total sum of damages awarded commencing from the date when the proceedings were filed on 16 August 2011 to the date of judgement, that is from 16 August 2011 to 3 September 2021, and calculate it as follows: Interest on Damages awarded to the nearest month brings it to 10 years: K111,240.00 x 0.02 x 10 = K 22,248.00.
  3. The plaintiff submits that it is entitled to costs. I do not see any special factors militating against the general rule that the winning party is entitled to costs. Considering that taxation does not occur regularly in Madang, I will order fixed costs in this matter. The proceedings have gone on for 10 years, and I consider it appropriate to award costs in the fixed sum of K30,000.00.
  4. Since the first defendant was acting in the scope of his duties, I hold the third defendant liable for the damages, interests, and costs.
  5. Considering my findings, I direct the entry of judgement in the following terms:
    1. Damages payable to the plaintiff by the third defendant of K111,240.00.
    2. Interest payable to the plaintiff by the third defendant of K22,248.00.
    3. Total judgement lump-sum payable to the plaintiff by the third defendant is K133,488.00.
    4. Cost of the proceedings shall be paid by the Third defendant to the plaintiff in the fixed sum of K30,000.00.
    5. Time is abridged.
    6. File is closed.

Judgment accordingly.
________________________________________________________________
Thomas More Ilaisa Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the First and Third Defendants


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