N11021

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 896 OF 2017

BETWEEN:
DENNY KELA for himself and his daughter JENITA KELA a Minor
Plaintiffs

AND:
CONSTABLE SAMUEL AMBO
First Defendant

AND:
CONSTABLE SAMUEL PETAYU
Second Defendant

AND:
CONSTABLE GABRIEL KINI, COMMANDER, SARAGA POLICE STATION
Third Defendant

AND:
GARRY BAKI THE COMMISSIONER OF POLICE
Fourth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani:   Bre, AJ
2024: 23rd August & 27th September

PERSONAL INJURY - assessment of damages – no recent medical report – onus on plaintiff to prove extent and impact of injuries at time of assessing damages – Court guided by comparable caselaw and to do the best it can – damages awarded accordingly with inflation considered at 5% per annum. 

Cases Cited

Coecon Ltd (Receiver-Manager Appointed) v National Fisheries Authority of Papua New Guinea (2002) N2182
George Chapok v James Yali [2008] N3474
Fowler v Fae [1977] PNGLR 501
Lewis v State [1980] PNGLR 219
William Mel v Coleman Pakalia & Ors [2005] SC790
Tom Amaiu v The State  [1999] N1932  
Wakalu, Wale & Haroli v The State [2017] N6600
Wani v Deflin [2024] N10818

Legislation

Claims By and Against the State Act 1997, s5 and s12(1).
Judicial proceedings (Interest on Debts and Damages) Act Chapter 52, ss4 and 6.

Statement of Claim

Trial by Affidavit on assessment of damages where the plaintiffs sought to prove damages on injuries sustained from Police negligence.	

Counsel

Mr D Wapu, for the Plaintiffs
Ms P Ohuma, for the Fourth and Fifth Defendants
No Appearance from the First, Second and Third Defendants

JUDGMENT

27th September 2024

1.BRE, AJ: Denny Kela and his daughter aged three were assaulted by policemen on 15 April 2016 at Erima in the National Capital District.  They suffered physical injuries of lacerations, a fractured skull and injured forearm. Liability was decided by default judgment on 7 July 2021. The plaintiffs are seeking damages of K270,202.20

2.	The State submitted that the medical report relied on by the plaintiffs are not current medical reports and would not assist the Court assess damages on the current impact of the injuries and based on comparable cases, the Court should award total damages of K118,000.00.

3.	The plaintiff seeks the following relief:-

a)	General damages 
b)	Breach of constitutional rights 
c)	Breach of Human Rights 
d)	Special damages 
e)	Exemplary damages 
f)	Interest on the judgement sum at 8% pursuant to the Judicial Proceedings Act 
g)	Costs of and incidental to the proceedings

4.	The Plaintiff tendered three affidavits of himself which were accepted into evidence, without objection, and marked as exhibits as follows: -

1)	The affidavit filed on 28 June 2021 marked 'P1'.
2)	 The affidavit filed on 21 March 2023 marked 'P2'.
3)	The further affidavit filed on 22 March 2023 marked 'P3'.

5.	 The Defendants did not tender any affidavits but made submissions on points of law.

6.	The plaintiff''s evidence are accepted as sufficient evidence of the incident and the injuries suffered at the time of the assault, given the default judgement as it is taken as resolving all questions of liability.  See Coecon Ltd (Receiver-Manager Appointed) v National Fisheries Authority of Papua New Guinea (2002) N2182.

7.	The issue for the Court's deliberation concerns whether the plaintiff is entitled to the damages sought. The primary issue affecting the amount of the various heads of damages to be awarded concerns the weight to be attributed to the medical report.

8.	The plaintiff relied on two medical reports obtained a year after the injuries sustained by him and his daughter. The reports were issued by the same doctor from the Port Moresby General Hospital both reports dated 24 November 2017 more than a year after the injuries sustained from the physical assault from the police on 15 April 2016.

9.	The plaintiffs has the onus of proving their injuries by corroborated evidence. See William Mel v Coleman Pakalia & Ors [2005] SC790.
The plaintiff produces contemporaneous medical reports of him and his daughter's injuries in 2016 and a medical review conducted a year later which I accept as sufficient evidence of  the police assault on him and his daughter and its impact a year later.
The issue taken by the State is the age of the medical review report and the extent of injuries at the time of assessment of damages which affects the quantum to be awarded.

10.	As to the State's submissions, I accept that a recent medical report will be relevant in deciding the awards for accruing damages such as interest and inflation, but I will be guided by comparable cases relied on by counsels. 

11.	It is the evidential burden of the plaintiff to produce a current medical report of whether there have been any nagging or long-term injuries persisting from the police assault for both the plaintiff and his daughter as the injuries were sustained in April 2016 and the damages hearing is in August 2024, some eight years later. In the absence of such evidence, I accept the State's submissions on quantum for general damages for pain, suffering and inconvenience subject to a few variations from me.

General damages for pain, suffering, humiliation and inconvenience  

12.	General damages are awarded to compensate a plaintiff for the pain, suffering, humiliation, distress and inconvenience caused by the unlawful actions of the defendants. It is not intended to be a reward or to penalize the defendants but as nearly as money can do, to restore the plaintiff to their original position. See Motor Vehicle Insurance Limited v Kol [2007] SC902.
This is difficult for physical injury cases, but it is the wrongful act suffered that is being remedied.

Denny Kela

Fractured skull 

13.	The 25 November 2017 medical review report (hereinafter called the 'review report') indicates 100% fractured skull with Denny not to perform any excessive jobs.

The plaintiff's counsel made assertions about the skull bone been broken but the medical review report does not support this assertion. The report says he had a concussion from soft tissue injuries to the head, neck and mouth. The x-ray indicated nothing remarkable meaning the skull was intact. The plaintiff did not testify as to the status of his current physical health. The comparable head injury cases are of a severe kind to that of the plaintiffs and would not be comparable as one resulted in brain injury (Lewis v State [1980] PNGLR 219) or a fractured skull resulting in lessening of the left leg (Fowler v Fae [1977] PNGLR 501. 

The medical report did not indicate whether Denny Kela suffered brain injury except to caution him from doing excessive jobs which I infer to be physical jobs but may entail intellectual work, either way the medical report indicates no long-term effects such as brain injury or physical deformity.

The plaintiff seeks K50,000.00 however, I accept the State's submission for K20,000.00 due to the lack of current evidence on the impact of the fractured skull to the brain or his cognitive abilities. I award K20,000.00 for injuries suffered to the skull.

Fractured rib bones

14.	The medical review report stated 85% loss of rib bones and that further operation is required. It does not say what the consequence of the loss or how soon the operation should occur. I accept the State's submissions for an award of K20,000.00 based on Wakalu, Wale & Haroli v The State [2017] N6600. I also accept the State's submission that it is logical to expect healing in the absence of a current medical report. I therefore award K20,000.00. 

Loss of right jaw

15.	The review report indicated loss of 100% lower jaw bones with Denny Kela advised to eat soft food. The plaintiff has not produced current evidence to clarify if that is still the case.  In the absence of current evidence about his condition, I accept the State's submission of the comparable case of Tom Amaiu v The State  [1999] N1932 and award of K20,000.00. 

Neck Injury

16.	The review report indicated 75% neck injury with the plaintiff advised  to undertake an operation. Again, there is no current evidence to clarify if an operation occurred or if the 75% neck injury persists, with the report not indicating what the consequences of the neck injury are.  For that reason, I accept the comparable award of K20, 000.00 in Toma Amaiu v The State. I award K20,000.00. 

Lacerations and Abrasions

17.	Lacerations and abrasions by its nature of soft tissue injury are expected to heal with the treatment sought and the passage of time. An award of K5000.00 for the injury sustained in 2016 is appropriate and awarded consistent with George Chapok v James Yali [2008] N3474.

I do not consider inflation applies to this type of injury as it is expected to heal    within the year. I find the absence of mention of this injury in the review report indicates the lacerations and abrasions have healed. Thus, I make no award for inflation to apply to this injury.

Daughter- Jenita Kela

Right forearm

18.	The review report indicated Jenita Kela lost 80% efficient use of her right forearm with the doctor explaining that the inner forearm bone had a crack, and she would be in pain for the rest of her life unless she is operated on to mend the cracked bone. It is difficult to assess if this outcome persists currently in the absence of a recent medical report or recent evidence from the plaintiff. 

Based on the comparable cases, the plaintiff seeks K30,000.00, the State submits K20,000.00 as the comparable award. Both counsels referred to several cases, though the lack of a current medical report does not assist this Court in assessing appropriate damages. The comparable case of Paul v Kare [1988] N659 was relied on by counsels amongst others. This was a motor vehicle personal injury case where a two-year-old girl was injured and as a result was hospitalised for six weeks and suffered a shortened arm as a result. The Court observed the plaintiff in Court and found that she seemed to fully recover at the time of trial except for the shortened arm. The Court ordered K10,866.00.

19.	Here, Jenita Kela was three years old at the time of the incident and sitted on her father’s lap when he was assaulted. The police ought to be aware of her presence and exercised caution, which they failed to do. The chances of the injury being fatal for her was high because of her fragile physicality as an infant. This is the main injury that was reviewed in 2017. It is 36 years after Paul v Kare times have changed, and the Police are expected to be more vigilant. I therefore exercise my discretion to award the higher amount sought of K30,000.00.

Lacerations, bruises and scratches

20.	This injury is expected to have healed within a short space of time from seeking treatment. The review report does not mention these injuries indicating healing had occurred. However, she did suffer these physical injuries as a three-year old infant and consistent with my views above, I award K10,000.00 as sought because of her age and the circumstance of her physical injuries. 
For the same reasons in Denny Kela's case for this injury, I consider inflation not to apply.

Inflation

21.	Inflation affects the value of money either positively or negatively depending on the cost of living at any given time. Inflation is awarded to cater for the net value of money at the relevant times throughout the case and the rate is an estimate. I have considered a reasonable amount to cater for inflation with reference to economic reports which indicate on average over a number of years covering the period of this proceeding to be at a rate of 5.1% per annum  but I apply a rate of 5% given its an estimation and there's a difference in the reports.

22.	Of the general damages awarded, I consider inflation applies to the injuries sustained by Denny Kela to the skull, rib bones, right jaw and neck injuries totaling K80,000.00 and the injury to the daughter Jenita Kela at K30,000.00 to have inflation apply because of the nature of the injuries. 

22.	Thus, I award inflation at the rate of 5% at K38,500.00   on the general damages award for pain and suffering of K110,000.00 (being K80,000.00 plus K30, 000.00) using the following formula D x R x Y = I with:-

D being the amount for damages awarded and considered for inflation to 
    apply,
R  the rate of inflation at 5% per annum,
Y  number of years from the date the writ was filed to the date of this 		      judgement,
I   the amount of inflation.
K110,00.00 x 0.05 x 7 = K38, 500.00

Total general damages awarded for pain, suffering, humiliation and inconvenience  

23.	The total general damages awarded to the plaintiff Denny Kela and his daughter Jenita Kela is K163,500.00 comprised of:-

1) Denny Kela: K 85,000.00
2) Daughter Jenitha Kela: K40,000.00 	
3) Inflation: K38,500.00

Constitutional Rights

24.	The assault by the police infringes on the plaintiff's constitutional rights to protection of the law, freedom from inhuman treatment, harsh and oppressive actions and deprivation of property, per Sections 36, 37, 41 and 53 of the Constitution. The plaintiff claims a total sum of K19, 549.00, which the State has no objections to. Compensation for breach of constitutional rights for personal injuries ranges from K1,000.00 to K5,000.00 per breach. See Wani v Deflin [2024] N10818. There are seven constitutional rights breached between the plaintiff and his daughter. I consider K2,500.00 per breach of the six personal injuries as appropriate, totaling K15,000.00 plus K1,000.00 for the lost phone (unjust deprivation of property) for which the plaintiff has deposed to its value. I therefore award K16,000.00 for constitutional rights breach to both Denny and Jenita Kela.

Special Damages

25.	Expenses incurred for medical treatment are expected given the nature of the injuries. Medical treatment was sought at Port Moresby General Hospital which is a public hospital and charges nominal fees. I consider the amount sought of K653.20 although without receipts, is within reason for costs of transport and purchase of medicines prescribed for two people and awarded to the plaintiff.
The plaintiff also deposed to losing his mobile phone during the attack on him and claims the phone cost K1,499.00. The claim has been factored under constitutional breach of deprivation of property and is not awarded as special damages to avoid duplication.

Exemplary Damages

26.	I accept Ms Ohuma's submission that the people should not be made to suffer financially for the actions of the negligent policemen. The Police have disciplinary processes which its command should implement to curb and change negligent behavior of police.
Parliament has restricted the award of exemplary damages against the State to only severe and continuous breaches of constitutional rights in section 12 (1) of the Claims By and Against the State Act 1997. The plaintiffs' rights were breached only in a one-off event and not on a continuous basis. As such, no award for exemplary damages is made.

Interest

27.	Claims against the State attract 2% interest, not the general interest rate of 8%. See Sections 4 and 6 Judicial proceedings (Interest on Debts and Damages) Act Chapter 52.

Section 4 (1) requires interest to be applied on the “whole or part of the….damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgement”, while section 6 requires interest to apply from time to time when the judgement remains unpaid.

28.	The award of interest is a discretionary remedy. I consider the duration of the case and the length of time the claim took to reach trial on assessment of damages a vital factor in deciding whether I apply interest and to what time span.
Default judgement was obtained on 7 July 2021. It has taken three years for the trial on damages. No submissions and evidence have been adduced to ascertain why it took three years. 

I also note that the injury to the plaintiffs occurred on 15 April 2016 with the proceeding filed on 7 September 2017, some 16 months later. Overall, I find the matter has not progressed expeditiously to trial.

Further, the lack of current evidence is also a factor I take into account in considering whether I should award post judgement interest.

29.	For these reasons, I award prejudgment interest at the rate of 2% from the date of the issue of writ, being 7 September 2017 to the date of this decision, 27 September 2024, with no award for post judgement interest.

30.	The writ of summons was filed on 7 September 2017 to the date of judgement, 27 September 2024,  is 2577 days or 7 years.  
Applying the interest calculation formula  D x I x N = A where:-
D  is the amount of damages assessed;
I  is the rate of interest per annum;
N  is the appropriate period in numbers of years;
A  is the amount of interest.
K163, 500.00 x 0.02 x 7 = K22, 890.00

I award pre-judgement interest on general damages only at the rate of 2% per annum for seven years on the general damages award of K163, 500.00 which is K22, 890.00.

Cost

31.	Costs follow the event and is a logical consequence of the judgement
Reasonable costs of this proceeding are awarded to the plaintiff to be paid by the fifth defendant on a party/party basis. Such costs are to be taxed, if not agreed to by the parties.

JUDGMENT

32.	It is therefore my judgement to award general and special damages to the amount of K203, 043.20 to the plaintiffs for the unlawful assault by the police for the tort of negligence causing physical harm and breach of constitutional rights to the plaintiff and his daughter. I hereby issue the following orders,.

ORDERS

33.     Judgment is awarded to the plaintiff for the sum of K203,043.20 plus costs comprised of the following awards: -

1)	General Damages for pain and suffering : K163,500.00

2)	Beach of constitutional rights: K16,000.00

3)	Special damages: K653.20

4)	Exemplary Damages:  No award

5)	Pre-Judgement Interest: K22, 890.00

6)	Post- Judgement Interest: No award

7)	Costs of the proceeding are awarded to the plaintiff to be paid by the defendants on a party/party basis to be taxed, if not agreed.

8)	Time for entry of the orders is abridged to the date of settlement by the Registrar of the National Court which shall take place, forthwith.

9)	The Court File be closed and archived.

Orders accordingly,

Don Wapu Lawyers:	Lawyers for the Plaintiff
Acting Solicitor General by his employed lawyer: Lawyers for the Defendants