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Kuriti v The State [1994] PGLawRp 612; [1994] PNGLR 262 (9 September 1994)

PNG Law Reports 1994

[1994] PNGLR 262 - Peter Kuriti v The State�

[1994] PNGLR 262

N1271

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PETER KURITI

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen

Woods J

23 August 1994

9 September 1994

CONSTITUTIONAL LAW - Breach of constitutional rights by police.

DAMAGES - Vicarious liability - Wrongs by the State - Police operations against a village - Destruction and damage to buildings and property.

DAMAGES - Exemplary damages - Unconstitutional actions during police raid - Independent discretion rule - When individual officers not named in writ.

Facts

The plaintiff claimed damages from the State for himself and members of his village for loss and damage to property resulting from illegal actions of the police during the conduct of a raid on their village. The claims included loss suffered, violation of their constitutional rights, and exemplary damages. The State agreed on the quantum of damages for loss to property but denied liability for exemplary damages.

Held

N1>1.������ The actions of the police were illegal, and the state was vicariously liable for the property damaged and loss suffered by the people.

N1>2.������ Exemplary damages are a matter requiring special consideration. Generally, exemplary damages are regarded as a mark of public censure against excessive misconduct and not to unjustly enrich a party. They are symbolic of public indignation.

N1>3.������ Whilst the independent discretion rule does not apply for tortious damages, it can still apply when considering exemplary damages.

Counsel

P Kopunye, for the plaintiff.

P Takesi, for the defendant.

9 September 1994

WOODS J:� The plaintiff is claiming for himself and members of his village for damages for loss and damage done to property by actions of the police during the conduct of a raid at Bagl village in the Kagamuga area of the Western Highlands on 2 April 1990.

He alleged that early in the morning in question, a squad of police carried out a dawn raid and destroyed property, including burning down houses, killing pigs and chickens, and destroying items of personal and domestic property in the houses.

The plaintiff is claiming in the writ for the value of the property loss suffered, damages for violation of constitutional rights, and exemplary damages.

The State has agreed on the quantum of the claim for the value of the property loss suffered at K29,251.30. Also, the State has agreed to an amount of K1,000 for each of the 13 individual claimants, a total of K13,000. There has been no agreement to any amount for exemplary damages. Evidence has been presented to the Court on how the raid was carried out and the property damaged. Submissions have been made on the question of exemplary damages.

The plaintiff and other witnesses have said how they were woken up early on the morning of 2 April by police and ordered from their homes at gunpoint, how their homes were burned and they were then taken in the police vehicles to the Mount Hagen Police Station and locked in the cells. Two days later, after leaders from their church and village came and made representation to the police, they were released. The police apologised and said they were the wrong suspects in some trouble at the Hati Agriculture College. The witnesses said that they were not shown search warrants at the time of the police operation.

It is clear that the actions of the police had no authority in law and were, therefore, illegal, and the State is vicariously liable for the property damage and loss suffered by the people.

However, exemplary damages are a matter requiring special consideration. Generally, exemplary damages have been regarded as a mark of public censure against excessive misconduct. Exemplary damages are not to unjustly enrich a party but, rather, are symbolic of the public indignation.

In cases like this, where police have obviously acted too strongly, unless there is a clear government policy or directive for the police to so act, how can the People, as embodied in the State, be punitively responsible for conduct which is in the independent discretion of the individual police officers involved? This Court has no hesitation in finding that the State will be liable for the actual property loss, but how can we find that the State is also liable for the punitive aspect of the action, which is really action that came from the mind of the protagonists? So, whilst the independent discretion rule does not apply for the tortious damage, it can still apply when considering exemplary damages.

I realise that the Court has, in certain instances, awarded exemplary damages against the State for actions of State officers, but perhaps those awards have not considered properly the relationship of the independent discretion when it considers the punitive aspect of the awards. For some of those cases, the individual policeman was named as a party, so exemplary damages may have been appropriate. I will not award exemplary damages against the State in this case, because there is no evidence that this action was officially sanctioned by State policy or directives. And as there are no individual police officers named in the writ, I am unable to consider such an award against them.

I, therefore, order judgment against the State for the amounts as agreed to, namely K42,251.30 plus interest at 8% from 14 December 1993 to date, being K2,491.20. Total of the judgment is K44,742.50.

Further interest will run at 8% on that part of the judgment that is not paid after 21 days from the taking out of the order for judgment.

Lawyer for the plaintiff: Kopunye Lawyers.

Lawyer for the defendant: Solicitor General.