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Salamon v The State, Wagulo, Kaugupe, Kua, and Keryal [1994] PGLawRp 613; [1994] PNGLR 265 (14 October 1994)

PNG Law Reports 1994

[1994] PNGLR 265 - John Tuink Salamon v The State, George Wagulo, Yepere Kaugupe, James Kua, and Essau Keryal�

[1994] PNGLR 265

N1272

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JOHN TUINK SALAMON

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA,

GEORGE WAGULO,

YEPERE KAUGUPE,

JAMES KUA, AND

ESSAU KERYAL

Mount Hagen

Woods J

6 September 1994

14 October 1994

CONSTITUTIONAL LAW - Breach of constitutional rights by police.

DAMAGES - Vicarious liability - Wrongs by the State - Police operation against a village - Destruction and damage to buildings and property - Loss of profits from trade store - Shared liability of named individual officers - Independent discretion rule.

DAMAGES - Exemplary damages - Unconstitutional actions during police raid - Liability of named individual officers - Independent discretion rule.

Facts

The facts and issues in this case are similar to those in Kuriti v PNG, reported on p 262 in this volume, except that individual officers are named as defendants. The case is reported on the issue of exemplary damages for breach of constitutional rights.

Counsel

A Manase for the plaintiffs.

No appearance for the defendants.

14 October 1994

WOODS J:� This is a claim for damages following a police raid on Kumbasakam village, Wapenamanda, Enga Province, on 5 July 1992. Houses and buildings were looted and destroyed and other property destroyed or damaged. The State and other defendants have not disputed the action nor given any legal arguments asserting a right to cause such damage and destruction, so the action must be deemed to be unlawful. Therefore, the State and the other defendants must be deemed to be liable for the loss and damage caused. Judgments were signed in default against the defendants, and the matter has come before the Court for the assessment of the damages. The claims have been presented and itemised by family groups. They are claims for loss and damage to property, damages for breaches of constitutional rights, and exemplary damages.

On the claim for breach of constitutional rights, I will consider that heading together with exemplary damages. Exemplary damages are a matter of special consideration and have generally been regarded as a mark of public censure against excessive misconduct. They are not to unjustly enrich a party but, rather, are symbolic of the public's indignation. In cases like this, where police have obvioulsy acted too strongly, unless there is clear Government policy or directive for the police to act, how can the People, as embodied in the Preamble to the Constitution as the State, be punitively responsible for conduct which is really conduct 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 caused by its officers, 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 and breach of constitutional rights. There are named police officers in this writ, who were also named in the evidence. Therefore, the awards for breaches of constitutional rights and exemplary damages will be made against those named police officers.

I will assess an amount of K2,000 per person against the second to fifth defendants for breaches of constitutional rights and exemplary damages for those persons who had houses destroyed or looted. I will assess an amount of K1,000 per person against the second to fifth defendants for these headings for those persons who only had pigs destroyed or taken. With respect to John Tuink Salamon and Dia Pindia, I will increase the award for them to K4,000 to cover the additional action against them, namely, assault and unlawful imprisonment.

I will allow interest at 8% on the amounts awarded from 21 April 1992 to date.

To summarise:

I order judgment against all five defendants in the sum of K65,697.53.

I order judgment for a further amount of K25,725.50, being the compensation for breaches of constitutional rights and for exemplary damages against the second, third, fourth, and fifth defendants.

Further interest will run at 8% on any of the judgment amounts that are not paid after 14 days from the service of the orders for judgment.

Lawyer for the plaintiffs: Pato Lawyers.

No appearance for the defendants.