Pakupa v Provincial Police Commander [2023] PGNC 302; N10442 (21 August 2023)

N10442

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1361 OF 2002

BETWEEN:
HURIAWA PAKUPA
Plaintiff

AND:
PROVINCIAL POLICE COMMANDER, SOUTHERN HIGHLANDS PROVINCE
First Defendant

AND:
POLICE COMMISSIONER OF PAPUA NEW GUINEA
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Mendi/Ialibu: Kassman, J
2014: 23^rd November
2023: 21^st August

DAMAGES – assessment of damages after liability established through entry of default judgment – plaintiff claims damages for personal injuries sustained in attack by policemen - claims for breach of constitutional rights including right to freedom from inhuman treatment, protection of law, freedom from arbitrary search and entry, freedom of expression, right to privacy and right to protection from unjust deprivation of property - claims also for costs on repairs to truck – principles applicable in assessment of damages – consideration of - value of the truck – Loss of use of the truck - General damages for personal injuries and trauma sustained - Special damages for loss of working tools –Special damages for the medical report fee - Damages for breaches of Plaintiff’s constitutional rights – damages awarded with costs to the plaintiff

Case Cited:

Kupo v MVIL [2002] PNGLR 49
Dir v MVIL (PNG) Trust [1991] PNGLR 433
Bonnie v MVIL (PNG) Trust [1994] PNGLR 393
Joseph v MVIL (PNG) Trust [1991] PNGLR 453
John Lucas Manda v Terry Akipe v The State WS No. 180 of 2000

Legislation Cited:

Constitution ss. 36, 37, 44 and 53
National Court Rules o. 22 r. 11
Judicial Proceedings (Interest of Debts and Damages) Act c. 52

Counsel:

Danny Gonol, for the Plaintiff
Jacinta Bamin, for the First, Second and Third Defendants

DECISION

21^st August 2023

1. KASSMAN J: The Plaintiff Huriawa Pakupa (“Pakupa”) filed his Writ of Summons in the National Court in Mount Hagen on 16 October 2002. Pakupa claimed he was the owner of a Daihatsu truck registration number P742R (“the truck”) which he operated as a PMV. Pakupa claimed on 15 August 2000, he was assaulted by policemen at his home at Teria Village, Koroba District and his motor vehicle was confiscated by those policemen without lawful authority. He identified those policemen as Peter Labu, Nelson Aiguba and Timin Piru who were all based at the Police Station in Tari. Pakupa says after he was treated for his injuries, he commenced his search for the truck which he eventually found in the custody of a Thomas Mola who refused to release the truck to him.
   
2. Pakupa then commenced civil proceedings in the District Court in Tari which found that Pakupa was the lawful owner of the truck and ordered on 29 December 2000 that Pakupa be given possession of the truck. After Pakupa took possession of the truck on or about 29 December 2000, the truck was then assessed to be beyond economical repair.
   
3. Pakupa claimed damages for the personal injuries he sustained in the attack on him by policemen on 15 August 2000 and for breach of his constitutional rights including his right to freedom from inhuman treatment, his rights to protection of the law, his right to freedom from arbitrary search and entry, his right to freedom of expression, his right to privacy and his right to protection from unjust deprivation of property. Pakupa also claimed the costs for repairs to the truck and damages for the loss of use of the truck in the period it was unlawfully confiscated by police on 15 August 2000 until it was recovered on or about 29 December 2000.
   
4. Default Judgement was entered with costs for Pakupa against the Defendants on 26 March 2004 by Justice Hinchliffe. The formal order was filed on 3 May 2004. That determined liability in favour of Pakupa against the Defendants.
   
5. An application by the Defendants to set aside default judgment, remove the First and Second Defendants as parties to the proceedings and to extend time for the Defendants to file their defences was filed on 14 July 2004. That application was considered by Justice Salika, now the Chief Justice, on 23 May 2004 but was withdrawn in court by consent and orders were then made for the matter to proceed to assessment of damages.
   
6. The proceeding was transferred from Mount Hagen to Mendi for assessment of damages. On 8 August 2013, I dismissed the proceeding for want of prosecution. By consent, I then set aside the orders of the court of 8 August 2013 and ordered reinstatement of the proceeding on 2 December 2013. I also issued directions to progress the matter.
   
7. The hearing on assessment of damages took place in Mendi on 23 November 2014. Pakupa relied on three affidavits. Two affidavits were sworn by Pakupa. The first was filed on 12 November 2009 and the second was filed on 12 May 2014, both of which were tendered and marked as Exhibits P.1 and P.2 respectively. The third affidavit was sworn by Labe Huriawa (“Labe”), the son of Pakupa. That affidavit was filed on 17 March 2014 and was tendered and marked as Exhibit P.3. Pakupa and Labe attended the hearing and gave evidence and were cross-examined by counsel for the Defendants.
   

Evidence for Pakupa

8. I set out in full the contents of the sworn affidavits for Pakupa. In the first affidavit of Pakupa sworn 30 June 2009 and filed 12 November 2009, he said:
   

“1. I am the Plaintiff named in this proceedings. I am the proprietor/owner and operator of a Public Motor Vehicle (PMV), a Daihatsu Truck Registration No. P742R. I come from Teria Pugwa Village, Koroba District, Southern Highlands Province.

2. To confirm, ownership of the said vehicle, I now produce the insurance and registration papers of the said vehicle.
3. I took the State, and the Defendants to Court in relation to my vehicle referred to above.
4. I have been advised by my lawyer, and I am aware that default judgement was entered against the Defendants. Attempts have been made to set aside the default judgement but did not succeed. My filing this affidavit is for assessment of damages.
5. I very well recall and it is fresh in my mind. On the morning of 15^th August 2000 at Teria Pugwa village, Tari, in the Southern Highlands Province, I was just getting ready to go an pick up passengers in Tangi village and then on to Tari, when I saw an unspecified number of policemen based at the Tari Police Station and in the company of policemen Peter Labu, Nelson Aiguba and Constable Steven Pakaya came on a police vehicle and asked me for the keys to my vehicle.
6. I demanded to know why I should give them the keys. They shouted me down and threatened to shoot me. I asked if they had a Warrant or Court Order. The policemen then became angry. Constable Steven Pakaya punched me to the ground and followed by other policemen.
7. After that the policemen drove my vehicle away with some of my properties worth about K7,500.00 including my working tools. After, I regained consciousness, I went to Koroba Police Station to know why my vehicle was taken of me. They told me, they had no idea about the vehicle.
8. The following day, I travelled to Tari and headed straight to the Police Station. I however, could not see the vehicle.
9. I then enquired with the policemen on duty. They told me, they gave the vehicle to a man called Thomas Mola, and he drove it away.
10. I then asked if there was a Court Order to confiscate my vehicle. He answered me, there was no Court Order in place. However, they followed orders of the Station Commander.
11. I then produced to them the insurance and registration papers of the subject vehicle and asked them to get the vehicle back to me.
12. They however, returned and said it is a civil matter. I could take the matter up in a Civil Court.
13. I immediately filed Court proceedings in the Tari District Court to get my vehicle against Thomas Mola who was given possession of my vehicle. I attended Court a number of times.
14. On 29^th December 2000 the District Court in Tari, following proceedings against Thomas Mola, determined the property rights of the Daihatsu Truck Registration No. P742R to be mine and accordingly made orders of repossession.
    
15. Based on the above said Order, I took repossession of my vehicle after nearly 5 months. Upon repossession, I discovered a lot of missing parts and vehicle not road worthy and not driveable. When the vehicle was taken off me, it was in good running condition. I then had photographs taken of me.
16. I am alleging that the loss and damage, pain and suffering, frustration and inconvenience that have suffered were caused by the negligence of the said policemen to which the State is liable as principal, master and or employer, of the police personnel which are as follows: I allege (a) Recklessly confiscating the motor vehicle from my custody and depriving me from use and possession thereof when they knew or ought to have known that the issue of ownership was not lawfully determined and that I was the prima facie owner, having shown and insurance and registration papers, (b) Confiscating the motor vehicle and depriving me from the use and possession thereof in the absence of a legitimate sanctioning such as a Court Order, (c) Recklessly assaulting me when they could or should have properly explained their actions to me.
17. Because of the unlawful actions of the policemen I suffered as follows:
    1. I was deprived from the use, possession and enjoyment of my motor vehicle for 5 months, (b) I received severe injuries, which are particularized in the medical report.
18. The injuries I sustained in the hands of the policemen were serious. I have over the years faced a lot of medical problems. On the 15^th November 2005, I attended on Dr Steven James of Mendi General Hospital, He examined me and did a report.

Business Loss

19. At all material times and prior to 15^th August 2000 the Daihatsu Truck which I operated as a PMV earned me about K500.00 per day in takings. It was licensed to operate on Routh 100 which covers all the Highlands Provinces including Madang and Morobe.
20. On the date of repossession, I was ferrying passengers between my village, Teria Pugwa, Tari, Mendi and Mt Hagen. The cost of travel from Koroba, Tari, Mendi and Mount Hagen all put together per trip per person was about K60.00. This has increased. My vehicle was licensed to carry 35 passengers. If I am traveling to Mt. Hagen from Koroba the average amount I collect would be K2,100.00. After deducting for fuel and other costs, I would be left with over a thousand kina per day. If to Mendi, I would be left with between K700.00 to K800.00. If between Koroba and Tari my average daily collections would be K500.00.
21. As a result of the policemen’s actions I suffered a loss of K500.00 per day which is to be computed from 15^th August 2000 to the date I took possession of the vehicle and claim a sum of K75.000.00.
22. I further state, the conduct of the Defendant’s agents or servants as set out in the proceeding paragraphs are in breach of my constitutional rights under the Constitution of Papua New Guinea which I state as follows (a) Section 36 - Freedom from inhuman treatment (b) Section 37 - Protection of the Law (c) Section 44 - Freedom from Arbitrary search and entry (d) Section 46 - Freedom of expression (e) Section 49 -Right to privacy (f) Section 53 - Protection from unjust deprivation of property.
23. Further, if the Defendants servants or agents were acting pursuant to a valid law which I do not know then in all the circumstances the conduct of the Defendant’s agents or servants as set out herein was harsh and oppressive and disproportionate to the particular circumstances and is an unlawful act under Section 41 of the Constitution.
24. By reason of the matters set out above I really suffered loss and damages as stated above.
25. I further suffered substantial anguish, economic hardship and inconvenience and distress in being deprived of the use of my motor vehicle.
26. Further I claim a sum of K10,000.00 in special damages being for transport, hospital and legal costs for the District Court proceedings, as well as this proceedings. This is the actual monies I lost. I don’t have any receipts but I produce before this Court few receipts, I can produce.
27. I am an innocent victim. The actions of the policemen have forced me out of business. I am aware, policemen are supposed to be conducting themselves as police officers, who are disciplined. In this case they acted contrary to their duty of call. I still feel the pains of injustice within my heart. I therefore must be compensated.”
    
9. In the second affidavit of Pakupa sworn 10 May 2014 and filed 12 May 2014, he said:

“1. This is additional to my affidavit I file on 12^th November 2009. In my earlier affidavit I stated I was assaulted by police on the same day my mother vehicle was confiscated as a result of which I sustained injuries. (see paragraphs 17,17 and 18 of the said affidavit)

2. Annexure “F” to my earlier affidavit is a medical report produced by Dr Steven James of Mendi General Hospital. That report was done many years ago in 2005. I decided to get a report of the current medical condition I am in. I approached a private medical practitioner in Mt Hagen by the name of Dr John Mckup of the Family Medical Centre. He thoroughly examined me and did a medical report. It is dated 09^th May 2014. I now produce that report in Court. It cost me K375.00.” Annexed hereto and marked with a letter “A” is a true copy of the said medical report. Annexed hereto and marked with a letter “B” is a true copy of the said receipt.
3. I asked if Dr McKup could produce this report in Court. He said he would not travel to Mendi on the dates fixed 27^th and 28^th May 2014 as it would be costly to miss many days from his medical practice. He is a very busy person in his clini. Even then I don’t have the monies to bring him over which would costs me more that K4000.00.
4. On my part I must confirm, I have many health problems, directly relating from the injuries I sustained in the hands of the policemen nearly 14 years back. A policeman named Steven Pokaya with a folded fist punch me on my face, nose and right eye, and more punches and I fell to the ground. I was then kicked and gun-butted all over my body, my head, my hands and fingers and my legs and I fell unconscious. I remember bleeding very heavily, my body very swollen.
5. Whilst I was on the ground my vehicle was pushed onto the main road, got it started and driven away. When I woke up I found myself to be bleeding heavily and I was escorted to Koroba Health Centre by village boys, and later to Koroba Police station. I now continue to have occasional headaches, back aches, right eye problems, my fingers become painful and stiff and my legs particularly in my knee area very painful. I cannot stand and also cannot carry heavy loads. These all started soon after I was assaulted. I have put up with these problems over the years and continue to do so as I am aging.
6. Initially I thought these were minor problems. However, as years pass by they really become a problem for me.
7. In paragraphs 13 and 14 of my earlier affidavit I made reference to Court proceedings in the Tari District Court in which I was found to be the owner of the subject motor vehicle and released the vehicle to me. That order was made on the 29^thDecember 2000. A Thomas Mola through the Public Solicitors office in Mt. Hagen lodged an appeal in the National Court of Justice. That appeal was struck out by late Justice Timothy Hinchliffe on the 07^th May 2022. I now produce the said Court order. Annexed hereto and marked with a letter “C” is a copy of the said order.
8. The policemen in Tari were interfering with the vehicle too much. The vehicle then remained unused all these years since year 2000. It naturally broke down through the natural process of tear and wear. I regret buying the vehicle in the fist place that subsequently got broke.
9. I have asked a motor mechanic Isaac Kaupa Hagen to assess the vehicle. He did a report. I now produce that report. Annexed hereto and marked with a letter “D” is a true copy of the said report.
   

Medical Reports

10. There were two Medical Reports annexed to Pakupa’s affidavits, the contents of which are set out in full. The first medical report was dated 15 November 2005 issued by Dr. Steven James of Mendi General Hospital and marked annexure “F” to exhibit P.1 which states:
    

“(A) Alleged incident dated 15 August 2000 at 900 hours.

(B) Medical examination and treatment at Koroba Health Centre – 15^th August 2000
(C) Confirmatory report- 14 November 2005

As per reference A, the said person was alleged to have been beaten up thus, sustaining a deep laceration to his right supraorbital area (2x4cm), snapped left fourth (4^th) and fifth (5^th) digits, distal flexor tendons and multiple other generalized soft issue injuries. Treatment was sought accordingly with undistinguished sequelae at that time. However, may concurrently need tendon repair of the digits.”

11. The second Medical Report was dated 9 May 2014 issued by Dr John McKup of The Family Medical Centre Ltd in Mount Hagen and marked annexure “A” to exhibit P.2 which states:
    

“To Whom It May Concern

Re: Huriawi Pakupa M/A

This is to certify that I have been consulted today 09/05/2014 for a medical assessment and report on the above for injuries he sustained from being assaulted suffering extension body injuries when based up by Police on 15/08/2000. He claims to have been punched up and hit with gun butt to his face and eyebrow suffering laceration on right eyebrow with injuries. He is also said to have suffered extensive back, shoulders, arms, head and facial injuries sustaining damaged jaws, extensive body injuries with lower back and knee injuries at that time too. He today, some fourteen (14) years later after the injuries presents for a medical review and this report on his various aftermath of his injuries. Our check today shows the following positive findings of the sustained injuries in this man being:

Head & Eyes

He has healed laceration scar over his right eyebrow. He has a laceration healing wound on his scalp. He has visual impairment in the right eye with visual acuity being 6/6 in left and 6/9 in right eye. He has difficulty in reading papers or entering flex as his vision has greatly been impaired following the assault injuries involving the eye. Functional loss awarding for eyes is ten (10%) percentage.

Hands & Legs

He has permanent stiffness of his left ring man and little fingers at the metaphalangeal joints. The both knees show fusiform swelling of both knee joints and joint crepitus elicited. He has osteo arthritis of both his knees. There is limitation in his flexion and extension movement at his knee joints of both legs. We award functional loss of forty (40%) percentage losses for knee deficits. Fingers loss due to stiffness is awarded forty (40%) percentage loss in his little and ring man fingers.

Spine

Spine shows no deformity in his spine’s contour such as scoliosis or kyphosis however he does show marked limitation to his spine’s flexion, extension and rotation movements. He has marked limitation in his spine’s movement. Spine losses is awarded twenty (20%) percentage losses. Other system findings are with in normal limits.

In conclusion we confirm that our medicals done today shows gross medical evidence to support his history of assault causing grievous body injuries as seen in our check. Our medical and his history of assault are consistent. He still shows some finds consistent to his beatings and sequelae.”

12. In the affidavit of Labe sworn 14 March 2014 and filed 17 March 2014, he said:
    

“1. I am an adult male. I come from Teria village, Koroba, formally SHP but now Hela Province. I am the elder son of the plaintiff. I am aware of this court proceedings and I am a witness to many events that unfolded giving rise to this Court proceedings. I file this to confirm what I know happened

2. I recall and it is very clear in my mind. I remember the plaintiff who is my father owned and operated a PMV truck from around 1996 to early 2000. It was a Daihatsu truck bearing Registration No. P742R and I recall it was red in colour. I remember my father had total control over this vehicle. Everyone of us including people in the community knew that my father owned the vehicle.
3. One day in the year 2000, month of August, on a Tuesday morning I was at our house. I was directed by my father to wash the vehicle. I was a student then. My father was busy doing other work before he drives out the vehicle to do daily PMV runs.
4. While I was washing the vehicle, I saw a vehicle pulled up. It was loaded with policemen from the Tari police station. One of the policemen signaled me to come. I felt frightened and hesitant seeing the policemen in full uniform and fully armed.
   
5. They then shouted “where is Huriawi”. I ran back. They waited at our gate for some time. They became angry and continued to shout. I got a shock of my life and became very scared as they continued to call my father’s name, and spoke very hard language and have heard about policemen assaulting and even shooting people dead.
6. Finally, my father came out of the house and walked to where the police were. I stood from a distance and watched. One of the policemen in uniform, I later came to know him as policemen Steven Pokaya ordered my father to give him the keys to his PMV truck. By this time many villages arrived to see what was going on.
7. My father refused to give they keys, demanding to know if anything was wrong repeatedly. He also asked if they had a Court Warrant. If not he said he won’t release the motor vehicle. This made them angry. They forcefully opened our gate and destroyed it. I saw one of the policemen, Steven Pokaya angrily moving towards Huriawi my father and punched him on the face with a folded fist, one other policeman joined in and more punches followed until he fell to the ground. Whilst he was on the ground a number of policemen joined in booting whilst others stood watching. By then my father was bleeding heavily.
8. The policemen turned on the crowd telling them to go away. When they could not move away fast they started swearing and belting and kicking the crowd. They ran in all directions.
9. The policemen pointed their guns at a number of young men standing and told them to push the vehicle in the yard onto the main road. They pushed the vehicle out, got it started and drove away. All of this I watched from a distance.
10. After the policemen left, we washed the blood stains off from my father and then we proceed onto Koroba health center where he received treatment. When we finished from the health center we proceed straight to Koroba police station and Huriawi enquired with police if they had any idea of what had taken place. The duty officer said he had no idea.
11. My father then asked if they could go to Tari Police station to enquire why his vehicle was taken. I remember them going to Tari police station the next day. However, my father returned without the vehicle.
    
12. I must confirm my father received severe injuries, particularly cuts, bleeding nose and ears, swollen fact etc when he was assaulted by Tari based policemen, who we later came to know as, Steven Pakaya, Dominick Heloria, Timon Puri, John Sally and others.
13. At this stage my father continues to have and experience health related problems following the assaults he received in the hands of the policemen. He occasionally complains of headaches, back aches, cannot lift heavy objects etc.
14. I will not forget this for the rest of my life because this happened to my father in front of our family. We were really traumatized and did not feel good for many days.
15. After the incident, my father said the vehicle could not be returned. He told us he was going to the Tari District Court. For nearly 5 months we did not see the vehicle. In the year 2001, my father brought back the vehicle stating he obtained an order from the Tari District Court to have the vehicle released to him.
16. I then saw the vehicle was not in good condition. Of the five month period the vehicle was in the custody of the police, many parts removed and the vehicle could not start with the key. It was push start. The vehicle was then developing many problems and finally broke down.
17. I must confirm when my father had the vehicle, we were a progressing family. We had regular income in the family. My father was on his way to becoming a self employed businessman. He had the monies to pay our school fees, money for clothes, food etc. Now we live in a very sorry state. I blame the policemen for the hardships my father and we his family members are going through.
    

Evidence by the defendants

13. The Defendants failed to file any affidavits and failed to call any witness to give sworn evidence in court. Counsel for the defendants just asked a few questions in cross-examination of Pakupa and his son Labe Huriawa.
    

Submissions for Pakupa and for the Defendants

14. Pakupa’s counsel relied on two submissions, one filed on 25 August 2014 before the hearing and the other filed on 22 October 2014 after the hearing. The Defendants relied on a submission filed on 10 November 2014. The court heard oral submissions on 13 November 2014 and reserved.
    

Findings on the evidence and submissions of the parties

15. Default judgement determined liability on Pakupa’s statement of claim in favour of Pakupa against the defendants. The key aspects of the claim were also supported by evidence adduced at the hearing. Pakupa particularized his claims in his statement of claim. Those assertions were determined in favour of Pakupa on the entry of default judgment. Those assertions of Pakupa were reaffirmed in favour of Pakupa when the Defendants withdrew their application to set aside default judgment entered against them. Furthermore, those assertions of Pakupa were not disputed with any counter evidence from the defendants although their counsel sought to raise issue with Pakupa’s claims during cross-examination of Pakupa and his son.
    
16. Pakupa’s evidence as to the assault was corroborated by the evidence of his son Labu. Pakupa said he was punched to the ground and other policemen followed and also physically attacked him as he fell unconscious to the ground. Labe was more graphic in his description of the incident. He said he was washing the truck in the driveway to the house when the police arrived yelling and shouting that they were searching for Pakupa. Labe said, “I got a shock of my life and became very scared as they continued to call my father’s name, and spoke very hard language and have heard about policemen assaulting and even shooting people dead.” Labe then went on to confirm Pakupa’s evidence that he was punched and physically assaulted by a number of policemen and as he fell to the ground and while lying on the ground, “a number of policemen joined in booting” Pakupa who was bleeding heavily. Labe also states “my father received severe injuries, particularly cuts, bleeding nose and ears, swollen face etc” and “My father continues to have and experience health related problems following the assaults he received at the hands of policemen. He occasionally complains of headaches, back aches, cannot lift heavy objects etc”.
    
17. The Medical Report of Dr Steven James, Service Registrar–Surgery referred to Pakupa’s treatment at Koroba Health Centre. The report states Pakupa “sustained deep cuts and abrasions to his left hand and that Pakupa’s fourth and fifth fingers and tendons were snapped and Pakupa required tendon repair of the fingers.” Pakupa was examined 14 years after the assault by Dr John McKup at The Family Medical Centre in Mount Hagen. I understand from that report that Pakupa’s injuries had healed substantially and Pakupa had 10% loss of functional use of his eyes, 40% loss of use of his knee, 40% loss of functional use of his fingers on his left hand and 20% loss of functional use of his spine. In the concluding remarks of both medical reports, they say, “Treatment was sought accordingly with undistinguished sequelae at that time” and “He still shows some findings consistent to his beatings and sequalae”. The Concise Oxford English Dictionary defines the term as a noun “sequela” and as a plural “sequelae” as “a condition which is the consequence of a previous disease or injury”. I accept those findings for the purpose of assessment of damages to be awarded to Pakupa.
    
18. Pakupa was from Teria Village, Koroba in the Hela Province. The District of Koroba was previously part of the Southern Highlands Province until 2012 when the Districts of Koroba-Kopiago, Komo Magarima and Tari Pori were separated from the Southern Highlands Province and formed to create Hela Province.
    
19. Pakupa was the owner of the truck. Pakupa produced documents confirming the truck was registered in his name. That was affirmed by a decision of the District Court in Tari when Pakupa sought to recover the truck from another person. That determination was further challenged on appeal to the National Court but was struck out by Justice Hinchliffe sitting in Mount Hagen on 7 May 2002.
    
20. The truck was purchased by Pakupa for a sum of K75,000.00. Pakupa operated the truck as a PMV ferrying passengers for a fee and for which he regularly earnt income. On average, after deduction of costs for fuel and other incidentals, he made a profit of K500.00 daily.
    
21. On 15 August 2000, Pakupa was assaulted by a large number of policemen. Pakupa identified three of those policemen as Peter Labu, Nelson Aiguba and Timin Piru who were all based at the Police Station in Tari. In the assault, Pakupa sustained serious injuries and was left momentarily unconscious. Labe also identified the policemen as Steven Pakaya, Dominick Heloria, Timon Puri, John Sally and others.
    
22. The medical reports confirmed the nature and extent of the injuries sustained by Pakupa. Fortunately, he was immediately assisted and obtained medical attention.
    
23. Pakupa was also traumatized by the direct threats and assault by the policemen who were at his private residence in large numbers, without lawful cause or purpose, and entered and assaulted him without lawful authority. It is common knowledge throughout the country that many people sustain injuries or even die from unlawful assaults by police. The fear for “the worst” was a real apprehension not only of Pakupa but also his son, as attested in evidence, and most of his family who witnessed the barbaric acts by the named policemen.
    
24. The truck was unlawfully taken by police from the possession and custody of Pakupa on 15 August 2000. The truck was recovered by Pakupa on 29 December 2000. The truck was removed from Pakupa a total of 136 days. The truck was found with substantial damage and parts were removed. The truck was inspected by a motor vehicle workshop and found to be beyond economical repair.
    

Assessment of damages – the principles applicable

25. The term “damages” is defined in McGregor on Damages 16^th Edition Sweet & Maxwell Limited 1997 at page 3 in these words. “Damages are the pecuniary compensation, obtainable by success in an action, for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum awarded at one time, unconditionally and generally, but not necessarily in English currency.” At page 8, the learned author states “The object of an award of damages is to give the plaintiff compensation for the damage, loss or injury he has suffered. The heads or elements of damage recognized as such by the law are divisible into two main groups: pecuniary and non-pecuniary loss. The former comprises all financial and material loss incurred, such as loss of business profits or expenses of medical treatment. The latter comprises all losses which do not represent an inroad upon a person’s financial or material assets, such as physical pain or injury to feelings. The former, being a money loss, is capable of being arithmetically calculated in money, even though the however, is not so calculable. Money is not awarded as a replacement for other money, but as a substitute for that which is generally more important than money: it is the best that a court can do. The statement of the general rule from which one must always start in resolving a problem as to the measure of damages, a rule equally applicable to tort and contract, has its origin in the speech of Lord Blackburn in Livingstone v. Rawyards Coal Co. [1880] UKHL 3; (1880) 5 App. Cas. 25 at 39. He there defined the measure of damages as “that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation.”
    

Assessment of damages

26. The truck was purchased for K75,000.00 and operated as a PMV until it was confiscated by police on 15 August 2000. Taking into account normal wear and tear, I will assess the value of the truck as at 15 August 2000 to be K50,000.00. Pakupa is awarded that sum.
    
27. Pakupa was denied the use of the truck for a period of 136 days. At a daily rate of K500.00, Pakupa lost income for the period of 136 days in the sum of K68,000.00. Taking into account contingencies for down time for rest and repairs and the occasional lower numbers of passengers, I will award 75% of the sum claimed which will be K51,000.00. Pakupa is awarded that sum.
    
28. For general damages for the injuries sustained and for pain and suffering and trauma, lawyers for Pakupa and the Defendants failed to assist the court with comparable assessments specific to the circumstances of this matter. Pakupa’s lawyer claimed K150,000.00. The Defendants’ lawyer submitted Pakupa did not suffer any permanent serious disability but proposed K5,000.00 as reasonable compensation. I have considered the following judgements of the National Court which were on the court file which may have been handed up in court or I may have had them printed following the hearing. Kupo v MVIL [2002] PNGLR 49, Dir v MVI (Insurance) Trust [1991] PNGLR 433, Bonnie v MVI (PNG) Trust [1994] PNGLR 393, Joseph v MVI (PNG) Trust [1991] PNGLR 453, John Lucas v Terry Akipe & The State WS No. 180 of 2000.
    
29. I consider those awards for general damages were for more serious injuries sustained. In the exercise of my discretion, I will award Pakupa K45,000.00.
    
30. Pakupa claimed he also lost working tools that were in the truck when it was confiscated by police. He claimed the value of those items was K7,500.00 but he failed to produce any receipts or other records as to this claim. In the exercise of my discretion, I will award Pakupa K3000.00.
    
31. I also award Pakupa the sum of K350.00 being the fee paid for the Medical Report dated 9 May 2014 issued by Dr John McKup of The Family Medical Centre Ltd in Mount Hagen, a receipt for which was issued the same day.
    
32. Police attended at Pakupa’s private residence without lawful authority. Police then entered Pakupa’s private residence without lawful authority. Police then assaulted Pakupa without lawful cause and authority. Police then confiscated the truck without lawful authority. Police then gave possession of the truck to another person without lawful authority. Police also failed to address Pakupa’s complaints and to assist Pakupa recover the truck. As asserted by Pakupa, he had the right to protection of the law provided by section 37 of the Constitution, he had the right to freedom from arbitrary search and entry to his private residence provided by section 44 of the Constitution, he had the right to freedom from inhumane treatment provided by section 36 of the Constitution, he had the right to protection from unjust deprivation of his property provided by section 53 of the Constitution. For these obvious breaches of Pakupa’s constitutional rights, I will award a global sum of K15,000.
    

Summary of damages to be paid

33. In summary, the sum payable as damages as at today (“the judgement sum”) is the amount of K164,350.00 which comprises:
    
    1. The value of the truck – K50,000.00.
    2. Loss of use of the truck for the period of 136 days – K51,000.00.
    100. General damages for personal injuries and trauma sustained by Pakupa – K45,000.00.
    4. Special damages for loss of working tools – K3,000.00.
    5. Special damages for the medical report fee K350.00.
    6. Damages for breaches of Pakupa’s constitutional rights – K15,000.00.
       

Interest

34. Interest is ordinarily awarded pursuant to the Judicial Proceedings (Interest of Debts and Damages) Act c. 52 on the judgment sum. Ordinarily, the judgement sum is payable either from the date the cause of action accrued being 15 August 2000 or from the date of filing of the writ of summons on 16 October 2002. To me, the filing and service of the writ of summons demonstrates the claimant is serious about his claim and is not just issuing letters of demand with no sanction. When the writ of summons is served, the defendants are liable to suffer sanction by default judgment if he fails to respond by filing a notice of intention to defendant and defence. The judgement sum will be payable from the date of filing of the writ of summons on 16 October 2002.
    
35. The Defendants shall pay the Plaintiff pre-judgment interest on the principal sum at 2% per annum pursuant to section 4(1) and (2) of the Judicial Proceedings (Interest on Debts and Damages) Act c.52 calculated from the date of filing of the Writ (16 October 2002) to today (21 August 2023) a total of 7,609 days [7,609 / 365 days x 2% x K164,350.00] in the sum of K68,522.70.
    
36. The Defendants shall pay the Plaintiff post judgment interest on the principal sum K164,350.00 at 2% per annum calculated from the date the certificate of judgment is served on the State until payment in full pursuant to section 6(5)(a) of the Judicial Proceedings (Interest on Debts and Damages) Act c.52 calculated to be K9.00 daily [K164,350.00 x 2 % /365].
    

Costs

37. Pursuant to Order 22 Rule 11 of the National Court Rules, costs shall follow the event. Pakupa has succeeded in his claim against the defendants on liability and quantum. I will award costs for Pakupa against the defendants on a party and party basis, to be taxed if not agreed.
    

Conclusion

38. The final judgment of this court in favour of Pakupa against the defendants is:
    
    1. Damages are assessed at K164,350.00.00.
    2. Pre-judgement interest is assessed at K68,522.70.
    100. Post judgement interest shall be assessed and calculated at K9.00 per day from the date the certificate of judgment is served on the State until payment in full.
    4. The Defendants shall pay Pakupa’s costs of the proceedings on a party and party basis, to be taxed if not agreed.
       

Formal orders

39. The formal orders of the court are:
    
    1. Damages are assessed in favour of the Plaintiff against the Defendants with interest and costs.
       
    2. The Defendants shall pay the Plaintiff damages in the sum of K164,350.00.
       
    3. The Defendants shall pay the Plaintiff pre-judgment interest in the sum of K68,522.70.
       
    4. The Defendants shall pay the Plaintiff post judgment interest calculated at K9.00 per day from the date the certificate of judgment is served on the State until payment in full.
       
    5. The Defendants shall pay the Plaintiff’s costs of the proceedings to be assessed on a party and party basis and to be taxed if not agreed.
       

Judgment accordingly:
____________________________________________________________________
Danny Gonol & Associates Lawyers: Lawyers for the Plaintiff
Office of the Solicitor-General: Lawyers for the First, Second & Third Defendants