N11236
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 1484 OF 2019

BETWEEN:
FREDERICK BAURI By his next friend Felix Bauri
Plaintiff

AND:
CONSTABLE NELSON NAMO
First Defendant

AND:
GARI BAKI
Commissioner of Police
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

LAE: DOWA J
5 OCTOBER, 1 NOVEMBER 2022; 4 APRIL 2025

CIVIL PROCEEDINGS-Unlawful and negligent shooting causing personal injuries-plaintiff has burden of proof-proof on balance of probability-whether State is vicariously liable-liability established.

DAMAGES – assessment of damages – necessity to prove damages with credible evidence-general damages – special damages – exemplary damages – breach of constitutional rights 

Cases cited
Waranaka v Dusava (2009) SC940
Daniel Occungar v Luke Kiliso (2010) N4102
John Kul v The State (2010) N3898
Eton Pakui v The State (2006) N2977
Titus Banga v Madang Port Services Ltd (2011) N4302 
 Allen Anis v Dobon Taksey (2011) N4468 
 Kay Pure -v- Tonnesi Ewebi (2021) N9013
Tirima -v- Angau Memorial Hospital Board (2005) N2779 
 Kuima Security Services Ltd v Philip (2024) N11048
 Yooken Paklin v The State (2001) N2212
 Samot v Yame (2020) N8266
Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251
 Kerry v State (2012) N4658 
Joe Kape Meta v State (2012) N4745 
David v Marus (2011) N4912 
Michael Kondai v Gabriel Saul (2015) N5865
Roth v Waironak (2011) N4452	
 Kunumb v State (2008) N3480	
 Oni v MVIL (2004) N2767 
Lance Kolokol v Constable George Amburuapi (2009) N3571 
Teine v Molomb (2005) N2861 
Papua New Guinea Banking Corporation Ltd v Jeff Tole (2002) SC694

Counsel
R Geoctau for the plaintiff 
S Maliaki for the defendants

DECISION

1.	DOWA J: This is a decision on both issues of liability and damages.

2.	The Plaintiff instituted proceedings claiming damages for personal injuries allegedly inflicted on him by the First Defendant in the company of other policemen at Bumbu River, Lae, Morobe Province on the morning of 5th July 2019. The matter went to trial on both issues of liability and damages.

Facts

3.	The Plaintiff is a young man, 16 years old student at the time of incident, is a PNG national and resident of Lae, Morobe Province. On the morning of 5th July 2019 around 11 am, the Plaintiff along with other young boys were at the Bumbu River next to Bumbu Bridge when confronted by the first Defendant and other policemen. The policemen chased the Plaintiff and the other young boys suspecting them of being involved in criminal activities. During the chase, the first Defendant and other policemen who were armed with firearms shot at the Plaintiff and the boys. The Plaintiff received a gunshot wound on his right arm. He was rushed to Angau Memorial Hospital for emergency treatment and was hospitalized for some time. As a result of the gunshot wound, the Plaintiff, apart from the pain and suffering, is now left with a residual disability of 75% loss in the effective use of his right hand.

4.	The Plaintiff alleges that the first Defendant was negligent in the discharge of his firearm. It is alleged that the first Defendant shot the Plaintiff in the course of his official duties and thus the State is vicariously liable for the first Defendant’s actions.

5.	The Plaintiff instituted this proceeding against the first Defendant seeking damages for personal injury and for pain and suffering as a result of the negligent and unlawful discharge of firearm. It is alleged the Second and third Defendants are vicariously liable for the actions of the first Defendant in the company of other employed policemen.

6.	The Defendants denied liability and the matter proceeded to trial on both issues of liability and damages.

Trial

7.	It was a contested trial. The Plaintiffs called four witnesses, and the defendants called the first Defendant only. The witnesses gave both oral and affidavit evidence. 

Evidence-The Plaintiff
8.	Both parties relied on their witnesses’ affidavits and presented sworn oral testimonies and were subjected to cross-examination.

9.	The Plaintiff, apart from oral evidence, relies on the following Affidavits:

a.	Daniel Ronny sworn 24th and filed 26th February 2021-Exhibit P1.
b.	Affidavit of Fredrick Bauri sworn 28th March 2021 and filed 20th April 2021-Exhibit P2 
c.	Affidavit of Fredrick Bauri sworn 13th June 2022 and filed 29th July 2022 -Exhibit P3
d.	Affidavit of Felix Bauri sworn 31st March and filed 20th April 2021 -Exhibit P4
e.	Affidavit of Felix Bauri sworn 1st and filed 10th November 2021 -Exhibit P5
f.	Affidavit of Gregen Bin sworn 31st March and filed 20th April 2021-Exhibit P6.
g.	Affidavit of Janeta Ben Sworn 24th February and filed 26th February 2021-Exhibit P7
h.	Affidavit of Valentin Ben sworn 24th February and filed 26th February 2021-Exhibit P8

10.	The Plaintiff and the witnesses Gregan Bin and Daniel Ronny were together at Bumbu River when the Plaintiff was shot. Their evidence is identical. The Plaintiff in the company of three other boys, Daniel Ronny, Gregen Bin and one Ismael left Sipaia beach after a swim. They headed for their homes on the other side of Bumbu River. After reaching the Bumbu River, they took a rest. While resting, two unknown boys running towards them, shouting “police! police!” The boys, being apprehensive about what the police might do to them, started running away, in different directions but in proximity. Not very long, policemen appeared and gave chase. During the chase, one of the policemen, identified as the first Defendant, armed with a pump action gun, knelt, took aim at the direction of the boys and opened fire. The gunshot hit the Plaintiff on his right arm. The boys continued running and further shots were filed towards the direction of Bumbu Settlement. The three boys left the Plaintiff behind and ran for their lives. The Plaintiff was bleeding and felt dizzy and lost consciousness and collapsed under one Valentine Ben’s house at Bumbu Compound. The three witnesses were cross-examined and the witness, Gregen Bin, remained steadfast that he positively identified the first Defendant as the policeman who fired the shot that hit the Plaintiff.
 
11.	The Plaintiff gave evidence that because of the injuries he received, he lost consciousness and was hospitalized. He suffered a compound fracture of the right humerus and was treated at the surgical ward. He is now left with a 75% residual disability in the effective use of his right arm. He is mentally affected, resulting in Psychiatric assessment at the Psychiatric Centre in Port Moresby. 

12.	The witnesses, Valentine Ben and Janeta Ben, deposed that on the day of the incident, they saw the Plaintiff running towards Janeta Ben’s house and collapsed. They noticed that he was shot in the right arm and was bleeding. They learnt that he was shot by the police. They brought the Plaintiff to the main road and stopped a police vehicle, a Toyota 5-Door, belonging to the Mobile Squad Unit which transported the Plaintiff to Angau Memorial Hospital for treatment. 

13.	Felix Bauri is the father of the Plaintiff. He is employed as Business Manager by PNG Ports Corporation based in Lae. He gave evidence that after his son was shot, apart from attending to the Plaintiff’s medical needs, he took immediate steps, to identify the policeman who shot the Plaintiff. His initial investigations indicated Robin Noah, a policeman based at China Town Police Station, was responsible. After a complaint was lodged, it was revealed that it was Nelson Namo who pulled the trigger. Constable Nelson Namo is also based at China Town Police Station. Both Noah and Namo are look-alike with moustaches. The Plaintiff and other witnesses confirmed that it was Nelson Namo who pulled the trigger that shot the Plaintiff.

14.	Felix Bauri deposes that his son has developed psychological problems. He is withdrawn and depressed. He cannot continue his education and has withdrawn from studies. 

Defendants’ Evidence

15.	 The Defendants’ evidence is from Constable Nelson Namo, the first Defendant. Constable Namo is a policeman based in Lae and at the time of incident, he was attached to the Police Station at China Town. He gave evidence that on the day of the incident, police received information that there was an armed hold-up at Bumbu13A Market and that the suspects escaped towards Bumbu River. The first Defendant and five other policemen from China Town Unit drove through Biwat Compound to block the suspects from escaping. On arrival at Biwat Compound, the policemen walked towards the Bumbu River and noticed some young boys sitting under a tree. On seeing the policemen, the boys numbering up to 8, ran towards Bumbu River, crossed the river and went over to the Bumbu Settlement. The boys behaved suspiciously, and the policemen fired some shots towards Bumbu Settlement. The first Defendant gave evidence that, although he had a firearm with him, he did not discharge any shots at that time. He denies shooting the Plaintiff but says the Plaintiff may have been caught in a crossfire and was unintentionally shot during the hot pursuit of the criminals by police. Constable Namo was cross examined.

Issues

16.	The issues for consideration are:

a)	Whether the First Defendant and other members of the police force caused personal injuries to the Plaintiff

b)	Whether the Second and Defendant are vicariously liable for the actions of the First Defendant and its employed police personnel.

c)	Whether the Plaintiffs are entitled to damages, if any.

        CONSIDERATION OF THE ISSUES

a)	Issue No 1. Whether the First Defendant and other members of the police force caused personal injuries to the Plaintiff

17.	The Plaintiff pleaded vicarious liability against the second and third defendants for the actions of its employed policemen especially the first Defendant. The Plaintiff alleges it is the first Defendant who shot him. The First Defendant denies liability. There are two competing versions. The Supreme Court in Waranaka v Dusava (2009) SC940 held that where there are two versions in evidence, it is important to assess and analyse the credibility of the witnesses and their evidence and point out any aspect of the performance of each witness before accepting the evidence. 

18.	The undisputed facts are these. On the morning of 5th July 2019, the first Defendant and five other policemen attached to the China Town police station received information from Central Command, Lae Police Station, that there was an armed hold-up at Bumbu 13A Market and the criminals have escaped towards Bumbu River. The first Defendant and his Unit drove to Biwat Compound near Bumbu River and set out on foot patrol. As the police were heading towards the river, two boys who were running away from the police called out to the Plaintiff and his friends that police were pursuing them. The Plaintiff and his friends, being afraid of being targeted by the police, started to run away. It was at this stage that the police noticed the boys numbering up to 8 were acting suspiciously and fired warning shots towards Bumbu Settlement. One of these shots hit the Plaintiff on his right arm, causing a compound fracture to his humerus.

19.	The disputing facts relate to the identity of the person who shot the Plaintiff. 

20.	The Plaintiff’s evidence comes from himself and his witnesses, Daniel Bonny, Gregan Bin and Felix Bauri. The Plaintiff, Daniel Bonny and Gregen Bin have all testified that a policeman armed with a pump action shotgun, knelt and took aim at their direction and fired a shot which hit the Plaintiff. The Plaintiff stated in his affidavit that it was the first Defendant who shot him. Although he was not able to confirm the first defendant’s identity at the scene during the cross examination, he was able to identify the first Defendant when he was shown a photograph of the first Defendant after the incident. The witness Daniel Bonny recognized the first Defendant as a policeman with a moustache and equipped with a pump action shotgun, although he could not confirm the identity during cross examination. The witness Gregen Bin positively identified the first Defendant as the policeman responsible for shooting the Plaintiff. He said he is familiar with the first Defendant who was attached to China Town Police Station at the relevant time. He had a moustache and armed with a pump action shot gun. After the incident, he confirmed the identification of the first Defendant at the China Town Police Station and informed Mr. Felix Bauri accordingly. Mr. Felix Bauri, who did his own investigations, first wrote to the Central Command of Police. The initial complaint was against one Robin Noah who had similar physical features like the first Defendant. The Police did their investigations, ruling out Robin Noah from being responsible. Rather, it was pointed out that it was the first Defendant who was responsible. This was further confirmed from face book photos as well as physical identification from Gregen Bin who positively identified the first Defendant.

21.	Although the first Defendant denies being responsible for the shooting, I accept the evidence of the Plaintiff and his witnesses that it was the first Defendant who shot the Plaintiff. This is because he was positively identified by Gregen Bin and other witnesses from 25 to 30 meters. He was present at the time and scene of the incident, armed with a short action pump gun. He was in hot pursuit of criminals in the direction of where the Plaintiff and his friends were. According to the first Defendant, the Plaintiff and his friends acted suspiciously and became suspects of the alleged armed hold-up that took place earlier at Bumbu 13A Market. The first Defendant also conceded that policemen did fire shots at the general direction of the Plaintiff and other boys and that the Plaintiff may have been accidently shot in the crossfire. The first Defendant’s evidence was not supported by any witnesses of his own, although not legally required. In these circumstances, I prefer the evidence of the Plaintiff and his witnesses and reject the denial evidence of the first Defendant. It is more probable than not that the first Defendant shot the Plaintiff, and I find the first Defendant liable.

Was the first Defendant negligent in the discharge of his firearm causing injury to the Plaintiff.

22.	The Plaintiff’s cause of action is based on the tort of negligence. The burden of proving the elements of the tort of negligence is upon the party alleging it, not the party who denies it. Daniel Occungar v Luke Kiliso (2010) N4102, John Kul v The State (2010) N3898, Eton Pakui v The State (2006) N2977, Titus Banga v Madang Port Services Ltd (2011) N4302 and Allen Anis v Dobon Taksey (2011) N4468 and Kay Pure -v- Tonnesi Ewebi (2021) N9013.

23.	The elements of the tort of negligence particularly set out in the case Anis v Taksey (Supra) are:

(1)	Tortfeasor or his principal owed a duty of care to the plaintiff and/or victim.
(2)	Tortfeasor breached that duty, i.e. by act or omission the tortfeasor's conduct was negligent;
(3)	Tortfeasor's negligent conduct caused injury to the plaintiff and/or victim;
(4)	Plaintiff and/or victim’s injuries were not too remotely connected to the tortfeasor's conduct; and
(5)	Plaintiff and/or victim did not contribute to his own injuries, e.g. by being contributorily negligent or voluntarily assuming the risk of injury.

24.	The first Defendant is a member of the Police Force.The primary functions of the Police Force under Section 197 of the Constitution are, “(a) to preserve peace and good order in the country; and
(b) to maintain and, as necessary, enforce the law in an impartial and objective manner.”

25.	The first Defendant in the company of other members of the Police Force carried on their Constitutional functions when the Plaintiff was shot. They were in pursuit of criminals. The evidence shows the first Defendant was not chasing the Plaintiff and his friends immediately in the act of any crime. The evidence shows the Plaintiff, and his friends were seated under a shade tree and fled when the first Defendant and other members of the Police Force appeared. The first Defendant and the members of his Unit became suspicious and gave chase. The Plaintiff and his friends were moving away from the members of the police force. The Plaintiff and his friends did not present an immediate danger to the first Defendant and the members of his Unit or any other person in proximity.   

26.	The first Defendant and some members of the police were armed with firearms. The first Defendant had a duty of care in the use and discharge of the firearm. The evidence shows the first Defendant knelt, took aim and discharged his gun from 25 to 30 meters in the direction of the Plaintiff. According to the evidence, the Plaintiff was trailing behind his friends when he was shot. There is no evidence that the Plaintiff was involved in any criminal activities. The Plaintiff posed no immediate danger to the first Defendant. It appears, the first Defendant made a deliberate decision to shoot, perhaps out of frustration, due to continuous criminal activities in the area. It was a careless discharge of the firearm. It could have been fatal. The first Defendant owed a duty of care to the Plaintiff. The first Defendant was armed with a dangerous weapon, and if not handled with care it could harm people as it did in this case. This negligent act resulted in serious injury to the Plaintiff. It is a direct result of the negligence discharge of the firearm by the first Defendant. There is no evidence that the Plaintiff contributed to the injuries he sustained.

27.	For the foregoing findings of fact, I am satisfied that the first Defendant was negligent in causing injury to the Plaintiff. 

Vicarious Liability

28.	The Plaintiff pleaded that the second and third defendants are vicariously liable for the actions of the first Defendant under the Wrongs (Miscellaneous Provisions) Act. Vicarious liability is a common law principle by which one legal person is held liable for the acts or omissions of another person or group of people over whom the first person has control or responsibility.  Refer Tirima -v- Angau Memorial Hospital Board (2005) N2779 and Kuima Security Services Ltd v Philip (2024) N11048.

29.	In this jurisdiction, the Wrongs (Miscellaneous Provisions) Act makes provision for vicarious liability in respect of claims against the State and State entities for torts committed by its servants. Section 1 subsections (1) and (4) of the Act are relevant and they read: 

“1 GENERAL LIABILITY OF THE STATE IN TORT.
(1) Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject–
(a) in respect of torts committed by its servants and agents; and
(b) in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and
(c) in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.
..........
(4) Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.”
30.	Generally, the State is subject to all liabilities in respect of torts committed by its employees and servants pursuant to Section 1 (1) and (4) of the Act. In the present case the Plaintiff has sufficiently pleaded vicarious liability against the third Defendant for the actions of the first Defendant in that the tortfeasor committed the tort whilst performing or acting in the course of his duties as required by Section 1(1) and (4) of the Wrongs (Miscellaneous Provisions) Act.

31.	The evidence is clear and is not disputed that the first Defendant shot the Plaintiff whilst performing or acting in the course of his duties. I find the third Defendant, the employer of the first Defendant, is vicariously liable for the actions of the first Defendant.

Conclusion
	
32.	The law on burden of proof in civil matters is settled.  The Plaintiffs have the burden of proof.  They must discharge that burden on the balance of probabilities.  I am satisfied that the Plaintiffs have satisfactorily discharged that duty. I am satisfied that the third Defendant’s employed policeman, the first Defendant wounded the Plaintiffs on the morning of 5th July 2019. The first and third Defendants are therefore jointly and severally liable to pay damages.

Damages: 	How much are the Plaintiffs entitled to.

33.	The next issue is to be determined is damages. The Plaintiff claims the following heads of damages:

a)	General Damages for pain and suffering
b)	Damages for breach of constitutional rights
c)	Economic loss
d)	Exemplary Damages
e)	Special Damages
f)	Interest
g)	Costs

34. 	In respect of damages, the law is clear.  Whilst the issue of liability is settled, the Plaintiff is still required to prove his damages with credible evidence.  Ref:  Yooken Paklin v The State (2001) N2212, and Samot v Yame (2020) N8266.

35.  	In Samot v Yame (Supra), His Honour, David J referring to legal principles to be applied in assessing damages said this at paragraph 46 of his judgment:

“The Supreme Court in  William Mel v Coleman Pakalia (2005) SC790 and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise or identify a number of legal principles that are applicable in assessing damages where liability is established either following a trial or after the entry of default judgment and these are:

•	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 [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [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.)

•	The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)

•	The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182 

A.	General Damages

36.  	The first head of damages is general damages. General damages are for pain, suffering and loss of amenities.  In Kerr v Motor Vehicles Insurance (PNG) Trust (1979) PNGLR251, the Supreme in providing a guide on assessment of general damages, held that:

“In assessing general damages for personal injuries under the heading, pain and suffering, loss of amenities etc., the assessment should be made having regard to the prevailing condition of the plaintiff at the time of the injury, and the general standards prevailing in the community.”

37.	In Livingstone v Rawyards Coal Co. (1908) 5App. Cas25(HL), Lord Blackburn said:

“where injury is to be compensated by damages, in settling the sum of money to be given for damages, you should as nearly as possible get at that sum of money which will put the injured party 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” 

38.	Turning to the present case, the Plaintiff was shot in the right arm. He sustained a compound fracture of the humerus. He lost conscious immediately after being shot. He was bleeding heavily and required surgery at the Angau Memorial Hospital. He was hospitalised for some time in the hospital. He suffered great pain and inconvenience. He is now left with residual disability of 75% in the effective use of his right hand. 

39.	Apart from the physical pain and suffering, the Plaintiff was gravely traumatised and suffered psychological depression and distress. This affected his education and general outlook of life. He has been sent to Port Moresby General Hospital for Psychiatric assessment and treatment. 
  
40.	Counsel for the Plaintiff submits an amount of K 150,000.00 for the diminished function of the right hand and K 150,000.00 for the psychological pain and suffering totalling K300,000.00. Counsel relies on several comparable cases listed in his submissions, taking into account inflation. The Plaintiff relies on the cases Kerry v State (2012) N4658 (leg injury with above knee amputation awarded K 200,000), Joe Kape Meta v State (2012) N4745 (leg injury with amputation was awarded K 175,000) and David v Marus (2011) N4912 (loss of right hand at 100% was awarded K 50,000).

41.	Counsel for the State submits that the Plaintiff be awarded K 20,000.00 for general damages, relying on the case authority in Michael Kondai v Gabriel Saul (2015) N5865 and K5,000, for psychological depression relying on the case of Roth v Waironak (2011) N4452. 

42.	I note the Plaintiff pleaded general damages for psychological trauma and mental anguish and apart from physical pain and suffering. I will therefore assess them separately.

43. 	For the physical pain and suffering, the Plaintiff’s injury is comparable to the following cases:

	a. David v Marus (2011) N4912 (loss of right hand at 100% was awarded K 50,000).
	b. Kunumb v State (2008) N3480 (loss of 70% effective use of right Hand was awarded K 20,000).
	c. Oni v MVIL (2004) N 2767 (loss of 70% effective use of right hand was awarded K 32,000).

Physical Pain and Suffering

44.	The recent award in David v Marus was made more than 14 years ago. No amount of money can accurately compensate for the pain and suffering the Plaintiff endured, and the inconvenience associated with the residual disability the Plaintiff has. This was a reckless discharge of a very dangerous weapon without regard for the sanctity of human life. His right to enjoy life has been curtailed to the extent of the disability. Given inflation and the weakening buying power of kina over the years and considering the fact that the Plaintiff can no longer use his right hand for sports, social events and even earn his living, it makes it even more compelling for an increase in the award. That is, the amount for damages must be that sum of money which will put the injured party 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 (Livingstone v Rawyards Coal Co.) In my opinion, the reasonable amount is K 70,000.00 for the physical pain and suffering, considering breaches of Constitutional and human rights. I will award K 70,000.00 under pain and suffering.

Psychological pain and suffering

45.	As for the claim for psychological depression, there is evidence that the Plaintiff did sustain trauma, distress and anxiety. He was referred to Port Moresby General Hospital for Psychiatric assessment. According to Dr. Kura David-Ravu, a consultant Psychiatrist, the Plaintiff was diagnosed with depression with comorbid Post-Traumatic Stress Disorder. The Plaintiff has since withdrawn from school. He is withdrawn and no longer cheerful as he used to be. In my view, a reasonable amount for psychological depression would be K 10,000.00.

Special Damages 

46.	The Plaintiff claims K 45,000.00 for special damages. This claim is for out-of-pocket expenses necessarily incurred as a direct result of the unlawful shooting. I note the claim for special damages was not particularised in the statement of claim and no evidence been produced in support of the claim. While it is a fact that the Plaintiff incurred expenses in the medical treatment and reports and airfares for the travels to see specialist doctors in Port Moresby, the particulars of claim were not pleaded, and no evidence was brought to prove them. I will not make an award under this head of damages in the absence of pleading and evidence.

b.  Breach of Constitutional rights

47. The Plaintiff claims damages for breach of Constitutional rights. In his submission, the Plaintiff did not submit for a separate award. I note the Plaintiff incorporated the claim for damages for breach of Constitutional rights to be subsumed in his claim for exemplary damages. On the other hand, counsel for the Defendants submits that the award for damages under this head be limited to K 8,000.00 

48. 	Should the Plaintiff be awarded damages for breach of Constitutional rights separately from that of negligence. That will depend on the facts. The Plaintiff has pleaded two basic causes of action in the statement of claim, that is negligence and breach of constitutional rights. In the case Lance Kolokol v Constable George Amburuapi (2009) N3571, Cannings J discussed the approach to be taken at paragraph 12 of his judgment where his Honour said:

           “ 12. There are at least two ways of assessing damages in human rights cases. The first is to identify the different causes of action and award damages or compensation for each cause of action. A breach of a human right or constitutional right is properly regarded as a discrete cause of action. An alternative approach is to award just one, global, sum of damages or compensation for all causes of action.”

49. 	 In Teine v Molomb (2005) N2861, in applying the alternative approach, Cannings J said this at page 10 of his judgment:

“There is authority for dealing with each one separately. That is what happened in Kombea. On the other hand in Kofowei the court was careful not to award double claims for the same cause of action. For example holding the plaintiff in the cell for three days before taking him before a court constituted two torts – negligence and false imprisonment – but only gave rise to one award of damages.

Each case must be treated on its merits. If it is convenient to clearly delineate how different causes of action have caused different injuries, damages should be assessed separately. But if the same facts give rise to different causes of action it will be difficult, and a rather artificial forensic process, to allot different categories of injury to each one; so the causes of action are best regarded as merging, in which case damages should be assessed as a whole. That is what I consider is appropriate in the present case. The facts that established the three causes of action (negligence, malicious prosecution and breach of Section 41 of the Constitution) were essentially the same. They should be dealt with together…”

50.	In my considered view, the facts giving rise to the two causes of action cannot be easily delineated as they are one and the same. The two causes of action have been merged. I am prepared to award just one, global, sum of damages to cover both causes of action. In reaching this conclusion, I will not make a separate award of damages for breach of Constitutional/human rights. The award given for general damages for pain and suffering is sufficient to cover this cause of action as well.

        	 Future Loss of Income

51.   	Counsel for the Plaintiff submits that the Plaintiff be awarded K 50,000 for future economic loss, despite this head of damages or claim not being pleaded in the statement of claim. There is no doubt that the Plaintiff’s earning capacity is reduced to the extent of his disability. However, this important aspect of the claim was not specifically pleaded, and no amendment was sought to include same. The law on pleadings is settled in the case Papua New Guinea Banking Corporation Ltd v Jeff Tole (2002) SC694 that …unless there is foundation in the pleadings of a party, no evidence and damages or relief of matters not pleaded can be allowed. The Plaintiff will only be entitled to what he has pleaded and not otherwise. In the absence of pleading and evidence, I am reluctant to award any damages, and no award shall be made.

Exemplary Damages 

52.	The Plaintiff claims exemplary damages. Exemplary damages are punitive in nature.  The first defendant in the company of the third defendant’s employed policemen failed to exercise restraint. The first Defendant was negligent in the discharge of his firearm in circumstances where it was unreasonable and unnecessary, although in the normal course of his official duties. The Plaintiff is therefore entitled to exemplary damages. The Plaintiff submitted a sum of K90,000.00 for exemplary damages to be awarded. This figure is high.  In my view the appropriate amount is K20,000.00 and I will make an award of K20,000.00 for exemplary damages. 

53.	Who should pay the exemplary damages. Section 12 (1) of the Claims by and Against the State Act provides that “(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. The Supreme Court in Abel Tomba v State (1997) SC518, reinforces the statement of law that the State will only be liable in exemplary damages where there is clear breach that so severe or continuous. 

54.	In Kolokol v Amburuapi (supra), Cannings J addressed the issue of exemplary damages in his judgment at paragraphs 28-29: 

“28. Since the Supreme Court’s decision in Abel Tomba v The State (1997) SC518 the courts have been reluctant to award exemplary damages against the State for abuse of police powers. The question to ask is whether the breach of the law by police officers is a technical breach or whether it involves a significant and unwarranted departure from the proper exercise of police powers eg where a police operation is unauthorised and individual police officers are not named as defendants. If the facts fit into the first category, exemplary damages may be payable by the State. If the facts fit into the second category of cases, exemplary damages are not payable by the State. A plaintiff is expected to seek such redress from the individual police officers who breached the law.

29.The present case did not involve an unauthorised police operation. Individual police officers have been named as defendants. There had been an armed robbery and the police had mobilised and were searching for suspects. Breaches of the law were committed by police but within the scope of a proper police operation. The case falls more within the first category than the second. Therefore I consider that the circumstances of the case do not exclude the awarding of exemplary damages.”

55.	His Honour concluded in that case that the tortfeasors breached the law in the normal course of duty and ordered exemplary damages against the State. 

56.	In the present case, it is clear the first Defendant and his colleagues were on official duties. There was an armed robbery, and the police were in pursuit of the criminals. The Plaintiffs actions were suspicious, and the first Defendant discharged his firearm, though reckless, in the course of his duties to catch criminals. This was a severe breach of the Plaintiff’s Constitutional rights. I am therefore of the view that the State is liable to pay exemplary damages.

Summary

57.	In conclusion, I am satisfied that the Plaintiff has proved liability on the balance of probability that the Defendants are liable. As for damages, the Plaintiff is entitled to an award of K 100,000.00 which comprise of the following:

		a. K 70,000.00-General Damages-physical pain and suffering 
		b. K 10,000.00 -General Damages for Psychological depression
		c. K 20,000.00-exemplary damages-
		  K 100,000.00-Total

58.	The total award for the different heads of damages is K 100.000.00.

59.	The Plaintiff claims interest at 8%. The Court has a discretion to award interest on the rate claimed or lesser sum. Section 4 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 provides that interest in claims against the State and State entities be charged at 2 %. I will award interest at 2% per annum. Interest at 2% on K 100,000.00 from date of filing of writ (18th November 2019) to date of Judgment (4th April 2025), for 1,962 days, is K10,751.76. Interest is calculated as follows:
•	K100,000,000.00 x 2% 	=K 2,000.00 per annum
•	K 2,000 ÷ 365 days 	= K   5.48 per day
K 5.48 x 1,962 days	=K   10,751.76	 

60.    The total award for the Plaintiff shall be is K110,751.76.

         Cost

61.	Cost is a matter of discretion. The Plaintiff has succeeded in his claim and thus, he is entitled to cost, to be taxed, if not agreed.

         Vicarious Liability

62.	The First Defendant and his colleague policemen were on duty on the day of incident. They were carrying out lawful instructions. In the circumstances, the third Defendant, being the employer of the of the first defendant is vicariously liable and shall pay the judgment debt.

Orders

63.     The Court orders:

a)	Judgment is entered for the Plaintiff, in the sum K110,751.76 inclusive of interest.

b)	The first and third Defendants are jointly and severally liable to pay the judgment sum.

c)	Post judgment interest shall accrue at the rate of 2% on the judgment sum after 30 days from date of order.

d)	The Defendants shall pay the cost of the proceedings to be taxed, if not agreed.

e)	Time be abridged.
________________________________________________________________
Lawyers for the plaintiff: Valorem Attorneys 
Lawyer for the defendants: Solicitor General