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Dorum v State [1994] PGNC 91; N1223 (23 May 1994)

N1223

PAPUA NEW GUINEA
[In the National Court of Justice]

OS.55 of 1993

PAUL DORUM
Plaintiff

V

THE STATE
Defendant

Mt Hagen: Woods, J
1994: 4, 23 May

Liability - of State for actions of Police - vicarious liability - Police shot deceased whilst in pursuit of suspects.

Damages - exemplary damages.

Cases cited:
The following cases are cited in this judgment.
Amaiu v C.I.S. & The State [1983] PNGLR 87
Dambe v Peri & The State [1991] Unreported N1156
Jack v The State [1992] PNGLR 391

P. Kopunye for the Plaintiff.
No appearance by the State.

23 May 1994

WOODS, J: This is a claim for damages brought by the father of one Peter Kaingal Dorum, who died from gunshot wounds received on the 8th of August 1990. The claim is based on the loss suffered by the deceased wife Helen following the death of her husband and on the loss of dependency of the parents of the deceased.

There is also a claim for exemplary damages based on the fact that the claim alleges that the deceased was shot by the police acting negligently in the performance of their duties.

There appears to be agreement on some liability in the State and the State has agreed to settle the dependency loss at the figure of K15,528.64 and I see nothing wrong with this figure based on the dependency loss of the wife and parents of the deceased.

The claim for exemplary damages is based on the allegations that the deceased was shot by police whilst they were in the pursuit of some persons who may have broke and entered a nearby store.

The evidence was that the deceased was walking home when the police came searching for suspects who had broken into a nearby store. It is alleged that the police negligently shot the deceased suspecting that he was one of the suspects they were looking for, or alternatively that they fired shots negligently in the area without regard to human life. It is submitted that exemplary damages should be awarded because of the outrageous and negligent conduct of the police officers in firing weapons in a public street where innocent passers-by were walking.

Exemplary damages have been awarded by the court in a number of cases involving actions by the officers of the state against innocent bystanders or persons in the custody of the state. Examples of such cases are Tom Amaiu [1983] PNGLR 87 where the plaintiff was assaulted by members of the Correctional Institutional Service while he was in custody at the Bomana CIS. In that case there was an order of K2000 for exemplary damages. In the case of Dambe [1991]unreported N1156 which was a claim by the relatives of the deceased following his shooting by the police when they were in pursuit of suspects the court awarded K30,000 as part of the damages by way of exemplary damages to the relatives of the deceased. In that case the police officers were investigating a robbery and had visited a village and in attempting to apprehend the deceased they took aim and fired at the deceased. There was evidence in that case that the police at the time although on duty may have been drinking some beer before hand. In a more recent case namely Helen Jack v The State [1992] PNGLR 391 there was the cold blooded shooting of the deceased by a senior police officer for no apparent reason at all and in that case also an award of K30,000 was granted on top of the other claim for dependency. In the above cases amounts for exemplary damages seem to be based on the deliberate shooting of the deceased by police officers. In one case there was the cold blooded shooting without any reason whatsoever and in the Dambe case it was gross negligence amounting to criminal culpability with apparently no warnings given to the deceased. However in the case before me now there is no evidence of a deliberate aiming and shooting. In this case there was a coronial inquiry held by a coroner who is also a senior magistrate of the District Court and looking at his findings he says as follows:

"I am left to draw necessary inference that it could have been the police who upon seeing the fleeing of suspects from the scene of break and enter fired the shot in that general direction and mistakenly injured the deceased and was taken to the hospital where he died. There is no direct evidence to attach criminal liabilities on those in the party but in adopting civil standard of proof it is more probable than not it was the police party responsible for the shooting of the deceased."

So on the basis of the coronial report and all the evidence before me is there anything which allows me to find otherwise than that this appears to have been an extremely tragic accident. However whilst the Coroner was not able to attach any criminal responsibility to any individual police we are still left with the highly probable circumstance that the deceased was shot by a police gun. The police have not avoided the likelihood that they fired shots. To fire shots into a public area without proper warning and careful consideration is nothing short of gross negligence even for the police. There is no evidence either before the Coroner or before this Court that the Police had given appropriate consideration to the pursuit and apprehension of a clearly identified suspect but rather that they may have fired indiscriminately in a public street. That is behaviour that cannot be condoned.

I am not satisfied that this warrants exemplary damages of the amounts awarded in the Helen Jack case and the Dambe case where it was a deliberate shooting but I am satisfied that there was some negligence which must warrant some amount of exemplary damages to show to the people at large and to show to the police and the State that appropriate care must be taken in the performance of police duties.

I would therefore assess the amount of K15,000 by way of exemplary damages in this case. This therefore adds to K30,528.64 damages against the State. I will allow interest at 8% on this amount from the date of issue of the Writ to today which assesses at K1,070.60.

I order Judgement for K31,599.24.

Lawyer for the Plaintiff: Kopunye Lawyers