McConnell v Neville [2023] PGNC 76; N10201 (6 April 2023)

N10201

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1067 OF 2003

BETWEEN:
WILLLIAM McCONNELL
First Plaintiff

AND:
DANAGI McCONNELL
Second Plaintiff

AND:
MARCO McCONNELL
Third Plaintiff

AND:
MICHAEL McCONNELL
Fourth Plaintiff

AND:
JULIET McCONNELL
Fifth Plaintiff

AND:
GABI RUBEN
Sixth Plaintiff

AND:
DULCIE McCONNELL
Seventh Plaintiff

AND:
LINDA McCONNELL
Eight Plaintiff

AND:
ELAINE McCONNELL
Ninth Plaintiff

AND:
DANAGI BRAY by his next friend JULIET McCONNELL
Tenth Plaintiff

AND:
JAMIE BRAY by his next friend JULIET McCONNELL
Eleventh Plaintiff

AND:
ISABELLE McCONNELL by her next friend DANAGI McCONNELL
Twelfth Plaintiff

AND:
INSPECTOR ABAIJAH NEVILLE,
WAIGANI POLICE STATION COMMANDER, NCD
First Defendant

AND:
SAM INGUBA,
POLICE COMMISSIONER OF PNG
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Tamade AJ
2022: 20^th July
2023: 6^th April

TORTS LAW –police brutality – plaintiffs suffered injuries – judgment on liability awarded against defendants

DAMAGES – trial on assessment of damages – damages awarded on comparable cases – damages awarded to each head of damage – exemplary damages refused as police officers involved in assault were not named in Amended Statement of Claim – inflation not considered as it applies to economic loss claims

Cases Cited

Basse v Yalamu [2021] PGNC 17; N8707
Huaimbukie v Baugen [2004] PGNC 191; N2589
Figa v Agong [2012] PGNC 56; N4707
Jolpuk v Kabilo [2022] PGNC 395; N9885
Mel v Pakalia [2005] PGSC 36; SC790
PNG Aviation Services Pty Ltd v Somare [2000] PGSC 18; SC658

Counsel:

Mr George Kult, for the Plaintiffs
Ms Natasha Aiwara, for the Defendants

6^th April, 2023

1. TAMADE, AJ; This is a decision on assessment of damages after the Court awarded judgment on liability against the Defendants on 24 January 2017.
   
2. The Plaintiffs claim that on 25 April 2002 at their residence at Allotment 4 Section 47, Cassowary Street, Waigani, NCD, between 1:00am and 1:30am, a group of unidentified policemen between fifteen and twenty police officers armed with guns from the Waigani Police Station attended at the residence of the Plaintiffs and seriously assaulted and traumatised the Plaintiffs including attempting to rape the Fifth and Ninth Plaintiffs.
   
3. At about 2am the same day, these same police officers after assaulting the Plaintiffs in their home then apprehended the Third, Fourth and Sixth Plaintiff and forcefully took them to the Waigani Police Station where they were seriously assaulted whilst being interrogated. The Plaintiffs were never charged but released after about an hour of gruelling interrogation.
   
4. About 9:30 am on the same day whilst the Plaintiffs were home at their residence, two police officers in uniform in the company of four others arrived again at the Plaintiffs’ home assaulted and terrorised the Plaintiffs who were at the front gate of their home.
   
5. The Plaintiffs therefore claim that they sustained injuries as a result of these serious assaults by the police and now claim damages as a result of the Court finding liability in their favour.
   

Principles of awarding damages

6. The principles for the awarding of damages are succinctly summarised in the Supreme Court case of Mel v Pakalia^[1] as follows:
   

“The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)

• Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)

• The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)

• The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible

evidence. (Yange Lagan and Others v The State (1995) N1369, National

Court, Injia J.)

• If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)

• Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)

• The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)”

Plaintiff’s physical injuries

7. I firstly will address the Plaintiffs who actually suffered physical injuries as submitted by Ms Aiwara of the State and Mr Kult of the Plaintiff.
   
8. Plaintiffs William McConnel, Danagi McConnell, Marco McConnell, Michael McConnell, Juliette McConnell and Gabi Ruben are the Plaintiffs who suffered physical injuries. These include lacerations to lip, swollen jaw, bruises and abrasions etc as a result of being kicked, punched and generally severely assaulted at the hand of the police. I find no permanent injuries from the medical reports attached to their affidavits.
   
9. In Huaimbukie v Baugen^[2], Figa v Agong^[3] and Basse v Yalamu^[4], the facts of these cases are similar to the present case with no serious permanent injuries. The award of general damages for pain and suffering or physical injuries were between K8, 000 and K10, 000. I therefore find and award a sum of K10, 000 each to these Plaintiffs for their physical injuries sustained as a result of the Police assaults. This is a total of K60, 000.00.
   

Mental distress and trauma

10. The other Plaintiffs named in these proceedings claim some form of trauma and mental distress from the ordeal they went through at the hands of the Police witnessing what had happened to their family members. Such incidents can be generally traumatic. The State has submitted that in the absence of any medical report verifying these mental trauma, that no award of damage be given. Having found in the case of Jolpuk v Kabilo[5], I said these:

“For mental distress and suffering, no person should be subjected to such agony and trauma. I am of the view that though Mr Mileng specifically sought that mental distress and or psychological trauma should be supported by medical evidence, I accept that just witnessing and or experiencing a traumatic event be it horrendous physical violence in this case a violent police raid and or sexual violence at the hands of the police is traumatic enough. A higher amount should be awarded to those who were involved and have experienced themselves the traumatic event and a lesser amount should be awarded to those who can be seen as being affected at arm’s length and or less severely affected.”

11. I am of the view that the facts, of this case is less serious to what happened in Jolpuk v Kabilalo, and therefore I will award K2, 000.00. to the remaining Plaintiffs who witnesses these serious assaults. That is a total of K12, 000.
    

Damages for breach of Constitutional Rights

12. Again, comparing this case to the more severe case I decided in Jolpuk v Kabilalo^[6] and taking into account other cases on breaches of Constitutional rights, I am minded to award a global sum of K3, 000.00. to each of the twelve Plaintiffs for breach of their Constitutional rights. That is K3, 000.00. times 12 Plaintiffs, which is K36, 000.00.
    

Aggravated Damages

13. In relation to aggravated damages, the Supreme Court said these in PNG Aviation Services Pty Ltd v Somare^[7]:
    

“...Aggravated damages differ from other types of damages and exemplary damages. They are not designed to punish a defendant or to act as a deterrent. They are compensatory in nature. There are the normal or ordinary compensatory damages but there are those which are aggravated: see ROOKS v. BARNARD [1964] UKHL 1; (1964) AC 1129. Lord Devlin in that case said an injury done to the plaintiff may be exacerbated by the conduct of the defendant, thereby attracting higher compensatory damages. Where the conduct of the defendant has been "high handed, malicious, insulting or oppressive" the award may be at the highest of the range "that could fairly be regarded as compensation." In this case it is my view that the circumstances of the publication of the statement in the newspapers as found by the trial judge established that the publication was high handed, insulting and oppressive and as such called for a high compensation award.

Furthermore aggravated damages are awarded where the defendants conduct has lacked bona fides or is somehow improper or unjustifiable: See WATERHOUSE v. BROADCASTING STATION 2GB Pty Ltd (1985) CCH AUSTRALIAN TORTS Reports Case No. 728 pp. 69, 220. In the instant case the learned trial judge found that:-

"The 1st Defendant was challenged on "wilful blindness" only to repeat his reliance on the statement prepared for him. I am satisfied the plaintiffs have shown that [the] 1st Defendant did not have an honest belief in the defamatory matter. In terms of S.11 [the Defamation Act] he believed it untrue.

The Defence submitted that the plaintiffs had failed to establish an absence of good faith on the part of the Defendants; [that] in fact the First Defendant had throughout the proceedings disavowed any malice or ill will towards any of the plaintiffs: that he didn’t intend to harm or discredit the plaintiffs. The intention is in fact irrelevant. It is the ordinary meaning of the words that count. The ordinary meaning and fact of assertion of cheating and criminal actions without basis belies the 1st Defendants claim that he bore no ill will. The first defendant acknowledged that he was angry with the plaintiffs and intended to harm them as Mr. Wingti had with their assistance harmed him. It was said in ROYAL AQUARIUM v. PARKINSON [1892] UKLawRpKQB 46; (1892) 1 QB 431 that where a person through anger makes aspersions of another [person] reckless whether they are true or false, publication will not be excused."

14. I am of the view that taking into account the number of times the police had attended at the residence of the Plaintiffs and seriously assaulted them has some elements of aggravation and therefore I will award K1, 000.00; for each Plaintiff which amounts to K12, 000.00; as aggravated damages.
    

Exemplary Damage

15. The Plaintiff has pleaded exemplary damages in their Amended Statement of Claim however they have not named each of the police officers involved in the assaults. In Jolpuk v Kabilalo, I found that each of the police officers should be liable personally for exemplary damage and the State as their employer should not bear the brunt of their negligence. I will therefore refuse exemplary damage as the individual police officers involved in the assaults are not named or identified.
    

Special Damages

16. Mr Kult and Ms Aiwara both agree in the submissions for a sum of K906.00 which are medical fees incurred for the Plaintiffs in getting treatment for their injuries and therefore those are granted.
    

Inflation

17. Mr Kult of the Plaintiff has extensively submitted that inflation should be considered on the awards on damages and the amounts sought should be increased based upon the inflation rates. I am of the view that inflation is a consideration and is relevant in economic loss claims however in these claims for general damages for pain and suffering, I refuse to consider inflation as a factor as my careful consideration of these awards are not economic gains, they are compensatory in nature.
    

Interest

18. Interest on the damage awarded by the Court shall be at 2 percent pursuant to the Judicial Proceedings (Interest on Debts & Damages) Act 2015.
    

Total Award of damages

19. The Court therefore awards the following in summary as damages for the Plaintiffs.
    
    1. Physical Injury pain and suffering- K60, 000.00
    2. Mental Trauma and Distress- K12, 000.00
    100. Breach of Constitutional rights- K36, 000.00
    4. Aggravated Damages- K12, 000.00
    5. Special damage- K 906.00

____________________

Total: K120, 906.00

____________________

20. The Court therefore makes the following orders:
    
    1. The Plaintiffs are awarded a total of K120, 906.00 in damages.
    2. Interest on the total judgment sum is at 2 percent post judgment pursuant to section 6 of the Judicial Proceedings (Interest on Debts & Damages) Act 2015.
    3. The Defendants shall bear the Plaintiffs costs of these proceedings to be taxed if not agreed.
       

Orders accordingly.
________________________________________________________________
Young & Williams Lawyers: Lawyers for the Plaintiffs

Office of the Solicitor General: Lawyers for the Defendants

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^[1] [2005] PGSC 36; SC790 (1 July 2005)

[2] [2004] PGNC 191; N2589 (16 July 2004)

^[3] [2012] PGNC 56; N4707 (25 June 2012)

[4] [2021] PGNC 17; N8707 (20 January 2021)
[5] [2022] PGNC 395; N9885 (12 September 2022)

^[6] Ibid

[7] [2000] PGSC 18; SC658 (1 December 2000)