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Molomb v Independent State of Papua New Guinea [2005] PGNC 109; N2861 (28 July 2005)

N2861

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 328 0F 1998

TEINE MOLOMB

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

MT HAGEN: CANNINGS J
4, 8, OCTOBER 2004, 28 JULY 2005

JUDGMENT

DAMAGES – malicious prosecution – negligence – breach of constitutional rights – assessment of damages following entry of default judgment – merger of causes of action – award of K9,000.00 general damages – special damages of K892.00.

The police arrested, detained and charged the plaintiff, a villager, with possession of stolen property (45 day-old chickens) and possession of unlicensed firearms and ammunition. The plaintiff was acquitted in the District Court of one charge and the other charges were not pursued. He was required to attend court on seven occasions before all matters were resolved. He commenced proceedings against the State relying on malicious prosecution, negligence and breach of constitutional rights as causes of action. He claimed general damages for being locked up, mental distress and anxiety, inconvenience, damage to reputation, plus special damages. Liability had been established by entry of default judgment and a trial was held on assessment of damages.

Held:

(1) Once a default judgment is entered the factual elements of the causes of action as pleaded, and their legal consequences, are taken as proven. William Mel v Coleman Pakalia and Others (2005) SC790 followed.

(2) If it is convenient to clearly delineate how different causes of action have caused different injuries, damages should be assessed separately. However, if the same facts give rise to different causes of action, the causes of action are best regarded as merging, in which case damages should be assessed as a whole.

(3) The court assesses damages by checking, in relation to each head of damage being claimed at trial, that it has been claimed in the pleadings and that there is evidence to support it.

(4) General damages of K9,000.00 is assessed by comparison with previous cases on liability for malicious prosecution, bearing in mind the lack of evidence as to reputation and standing of the plaintiff before and after the malicious prosecution took place.

(5) Special damages of K892.00 is assessed on account of regular trips to consult a lawyer on the progress of the case.

(6) The defendants are also liable for interest and costs.

Cases cited:
The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
David Haluya v The State (2001) N2109
David Kofowei v Augustine Siviri and Others [1983] PNGLR 449
Jonathan Mangope Paraia v The State (1995) N1343
Justin Tkatchenko v National Capital District Commission and The State (2002) N2196
Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Lucas Roika v Peter Wama & Others (1995) N1373
Mahera Ignote v Abraham Hualupmomi and The State [1996] PNGLR 308
Michael Buna v The State (2004) N2696
MVIT v Pupune [1993] PNGLR 370
MVIT v Tabanto [1995] PNGLR 214
Obed Lalip and Others v Fred Sikiot and The State (1996) N1457
Pawa Kombea v Semal Peke [1994] PNGLR 572
Peter Wanis v Fred Sikiot and The State (1995) N1350
Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247
Tumunda Toropo v Jack Awabe and The State (2001) N2116
Waima v MVIT [1992] PNGLR 254
William Mel v Coleman Pakalia and Others (2005) SC790
Yange Lagan and Others v The State (1995) N1369
Yooken Paklin v The State (2001) N2212

STATEMENT OF CLAIM

This was an action in which the plaintiff claimed damages for mental distress and injury to reputation suffered because of malicious prosecution.

Counsel:
M Tamutai for the plaintiff
K Sino for the defendant

CANNINGS J:

INTRODUCTION

This is a case about assessment of damages. The plaintiff, Teine Molomb, has already obtained a default judgment, with damages to be assessed. He claims that he suffered damages as a result of a malicious prosecution brought against him by officers of the Police Force.

BACKGROUND

The plaintiff is a villager at Konduwil village in the Nondugl District of Western Highlands Province. He says that he is a poultry farmer, coffee buyer, planter and carpenter. In December 1995 he was questioned and arrested by the police and detained at Minj Police lock-up. The arresting officer was Senior Constable Tobia Mondia who charged the plaintiff with three offences:

• being in possession of 45 live day-old chickens, reasonably suspected of being stolen;
  
• unlawful possession of a firearm (a homemade gun); and
  
• unlawful possession of ammunition.
  

The plaintiff faced the District Court at Minj on the first charge. He was required to appear before the Court on six occasions before 5 February 1996. On the seventh occasion the charge was dismissed due to lack of evidence. The second and third charges were never pursued.

On 22 April 1998 Tamutai Lawyers of Mt Hagen filed a writ of summons on behalf of the plaintiff. The statement of claim attached to the writ pleaded that the police had arrested, detained and charged the plaintiff without good reason. The plaintiff relied on three alternative causes of action:

• the tort (ie civil wrong) of malicious prosecution, in that he alleged that the Police had used the criminal process against him and were motivated by malice;
  
• the tort of negligence, in that the defendant was negligent in the supervision and control of the police officers involved; and
  
• breach of Section 41 (proscribed acts) of the Constitution, in that the conduct of the Police was harsh and oppressive and not warranted by or disproportionate to the circumstances of the particular case.
  

The plaintiff claimed that the conduct of the police caused him mental distress, trouble, inconvenience and anxiety. His reputation as a law-abiding citizen and a good member of his community was injured. He also incurred legal expenses. He sought the following remedies:

• general damages for malicious prosecution;
  
• general damages for negligence; and
  
• a declaration that the conduct of the defendant’s agents and servants (ie the police officers involved) was unlawful.
  

The State is the sole defendant.

The defendant did not give notice of intention to defend the claim. Nor did it file a defence. The plaintiff then applied for default judgment. He was successful. On 30 June 1999 default judgment was entered for the plaintiff and the matter set down for assessment of damages.

Apparently it is alleged by the plaintiff in separate proceedings that around the time that the events giving rise to the present case took place, in December 1995, the police raided his village and destroyed properties. Those allegations have not been taken into account when dealing with the present case.

Eventually in October 2004, the case was argued and I reserved judgment on the assessment of damages.

PLAINTIFF’S EVIDENCE

The plaintiff himself gave evidence. He states that his arrest and detention happened in December 1995 shortly after the police raided his village and burned down his house and destroyed personal property. He was locked up in the cells. After he got bail, he had to go to and from the court on many occasions before the case was struck out. He spent a lot on bus fares. He made many return trips to Minj, costing K4.00 per trip. Because of all this trouble, his character in the community was defamed. Some people thought that he was a troublemaker. His character as a leader and businessman in the area was demeaned.

In October 1996 he approached Mr D L O’Connor, then a lawyer in Mt Hagen, for advice. Since then he has made one return trip to Mt Hagen each month. The bus fare for each return journey was K18.00. He also had to buy lunch at a cost of K10.00 each trip.

DEFENDANT’S EVIDENCE

The arresting officer, Senior Constable Tobia Mondia, gave evidence for the defendant. He was based at Minj Police Station in December 1995. He is now based at Jimi Rural Police Post. He recalls the incident. The plaintiff was arrested after a complaint was lodged by the Christian Leaders Training College (CLTC) at Banz. A CLTC vehicle transporting day-old chickens was held up and robbed of its cargo near the plaintiff’s village. Police conducted a search and villagers were asked to produce evidence of legitimate purchase of day-old chickens. Those with chickens but no receipts were arrested. They included the plaintiff. When police searched his premises they found a firearm and ammunition. He had no licences so he was charged with unlawful possession. The plaintiff was not the only person arrested. The police were acting on reasonable suspicion and were not motivated by malice.

PLAINTIFF’S SUBMISSIONS

Mr Tamutai asked the Court to disregard the evidence of Senior Constable Mondia as it was only relevant to the issue of liability, which has already been determined.

He submitted that the plaintiff should be awarded damages of K21,884.00, comprising the following components and amounts.

TABLE 1: PLAINTIFF’S CLAIM FOR DAMAGES

As to damages for negligence Mr Tamutai relied on David Kofowei v Augustine Siviri and Others [1983] PNGLR 449, National Court, Ramage AJ. In that case the plaintiff was apprehended by two police officers regarding his alleged possession of a stolen handbag. He was taken to Goroka police station and detained for four days, the first two being handcuffed. He was assaulted and subject to inhuman treatment. He sued the police officers involved and the State, claiming damages for false imprisonment, assault, negligence and breach of constitutional rights. He won the case. Ramage AJ awarded K3,800.00 for the assault; K3,500.00 for breaches of constitutional rights; and K1,000.00 for negligence (which consisted of the failure of the officer-in-charge of the police station to take the plaintiff promptly before a court contrary to the Arrest Act). The K1,000.00 on account of negligence consisted of general damages of K600.00 and exemplary damages of K400.00. Mr Tamutai submitted that as Kofowei was decided more than 20 years ago, I should take the sum awarded as a guide and increase it because of inflation to K2,000.00.

As to damages for malicious prosecution Mr Tamutai relied on Pawa Kombea v Semal Peke [1994] PNGLR 572, National Court, Kapi DCJ. The plaintiff was arrested, detained for four days and then charged with rape. He was prosecuted over a considerable period in which he had to make numerous court appearances. The plaintiff was a prominent member of the community and a long-serving member of the Southern Highlands Provincial Assembly. The complaint against him was false. He sued the person who made the false complaint, claiming damages for malicious prosecution, false imprisonment, and defamation. He won the case. Kapi DCJ awarded general damages of K15,000.00 for the malicious prosecution (comprising K2,500.00 for issue of a search warrant, K7,500.00 for criminal proceedings and K5,000.00 for civil proceedings); K4,000.00 for false imprisonment; and K10,000.00 for defamation. His Honour awarded special damages of K21,198.67. The total amount of damages was K50,198.67. Mr Tamutai submitted that the relevant amounts to extract from this case were K2,500.00 on account of the search warrant and K7,500.00 for the improper criminal proceedings. As Kombea was decided 10 years ago the sums awarded should be taken as a guide and increased to K4,000.00 (search warrant) and K10,000.00 (criminal proceedings).

As to damages for breach of constitutional rights Mr Tamutai urged me to again use Kofowei’s case as a guide. He conceded that the plaintiff in the present case was not subject to inhuman treatment to the same extent as the plaintiff in Kofowei. But he had been ‘taken for a ride’ by the Police who did not care about his human rights. He submitted that K2,500.00 would be an appropriate award of damages.

As to special damages Mr Tamutai submitted that this should include the costs of travel to Minj for the District Court and the costs of monthly return trips to Mt Hagen for legal consultation since 1996.

DEFENDANT’S SUBMISSIONS

Mr Sino asserted that the plaintiff had by the nature of his evidence invited the court to reconsider the elements of the causes of action pleaded in the statement of claim. The court should check whether reasonable causes of action are disclosed by the statement of claim and the evidence led in support of it.

Mr Sino submitted that when that was done it would be revealed that there was actually no cause of action in negligence. There was no authority to support that proposition that the tort of negligence applies to wrongly instituted criminal prosecutions. The claim for damages for negligence is misconceived. In the alternative, if the claim succeeded, only a nominal amount of K1,000.00 should be awarded.

Malicious prosecution is a more appropriate cause of action given the facts. But again the court should consider whether the elements of the tort were actually present. Mr Sino referred to two National Court decisions in support of the proposition that they were not established: Mahera Ignote v Abraham Hualupmomi and The State [1996] PNGLR 308, Akuram AJ and Justin Tkatchenko v National Capital District Commission and The State (2002) N2196, Salika J. In Ignote the plaintiff’s case failed as there was no evidence of malice. In Tkatchenko the arrest and charging of the plaintiff were regarded by the court as part of routine police duty. If, however, the court is inclined in the present case to award damages for malicious prosecution the sum awarded should be small as there was no evidence of the plaintiff’s purported high standing in the community. Also this was a relatively minor instance of malicious prosecution. The police had good reason to believe that the chickens were stolen. The pleadings asserted that only one of the three charges against the plaintiff had been maliciously prosecuted. Pawa Kombea’s case was a useful guide. But the facts are different as that plaintiff was a prominent member of the community and his arrest, charge and detention attracted widespread media coverage. The plaintiff, if he is to be awarded anything, should get less than K1,500.00

As to the alleged breach of constitutional rights Mr Sino submitted that this was not properly pleaded. The court should not make a declaration that the police breached the plaintiff’s rights and should not make any award of damages on that score.

Special damages, if any, should be capped at K752.00 and this should only cover the transport costs of the plaintiff seeing his lawyer. As he was seeing his lawyer concerning a related matter he should only get half of what he claimed. No lunch costs should be allowed as these would have been incurred irrespective of the visits to his lawyer.

RELEVANT LAW

In a recent Mt Hagen case, Michael Buna v The State (2004) N2696, I reviewed the general principles for assessment of damages, particularly as they apply to cases where default judgment has been entered and there is a trial on damages only. In that case the provincial works department did some river excavation work, changed the course of a river and flooded the plaintiff’s land. The plaintiff sued for damages, pleading negligence as his cause of action. Default judgment had been entered. I awarded the plaintiff K33,800.00 damages plus interest. The same principles for assessing damages apply, irrespective of the cause of action. They include the following:

• 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.)
  
• 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.)
  
• 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 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.)
  

FINDINGS OF FACT

Relevant considerations

All of the above principles have been taken into account in making findings of fact in the present case.

The most pertinent findings to make are those that indicate the actual injury or damage suffered by the plaintiff. I will make those findings on the presumption that the basic facts pleaded in the statement of claim that relate to the elements of the cause of action pleaded are true.

I am not persuaded by Mr Sino’s invitation to revisit those facts and determine whether they are supported by the evidence as part of a process of confirming that the elements of the causes of action have been made out. I also reject his submission that, because the plaintiff led some evidence relevant to the elements of the causes of action, I should embark on a fresh inquiry into those matters. Default judgment has been entered. That judgment has not been set aside. So the factual elements of the causes of action as pleaded, and their legal consequences, must be taken as proven (William Mel v Coleman Pakalia and Others (2005) SC790, Supreme Court, Los J, Jalina J, Cannings J).

The basic facts

• The plaintiff is a villager of Konduwil village. In December 1995 he was questioned, arrested and detained overnight by the Police at Minj Police lock-up.
  
• The plaintiff was not tortured or treated inhumanly during the period of his detention.
  
• He was charged with three offences. He faced the District Court at Minj on the first charge (being in possession of stolen property, the chickens). He was required to appear before the court seven times. On the seventh occasion the charge was dismissed due to lack of evidence.
  
• The second and third charges were never pursued.
  
• The conduct of the police – and the defendant’s failure to properly supervise them – was negligent. The police were guilty of maliciously prosecuting the plaintiff and their actions were harsh and oppressive and therefore unlawful under Section 41 of the Constitution.
  

What was the actual damage or injury?

I now turn to consider what the effect of those actions was. What damage or injury did the plaintiff actually suffer? Did he suffer mentally or physically? Did he lose business? Was his reputation tarnished? Was his prosecution publicised in the local community or the mass media?

It is at this point that Mr Sino’s submissions have some bite. The plaintiff presented no corroborating evidence of his standing in the community or how his reputation had suffered or losing business or the matter being given publicity. Mr Tamutai had no effective reply. There is little for the court to go on. In cases of this nature, much as in a defamation case, the court should receive evidence of (a) the reputation enjoyed by a plaintiff before the tortious act was committed and (b) evidence of how it was affected, perhaps destroyed, by that act. A ‘before and after’ picture should be presented, so that the court can assess the extent of the injury and therefore the amount of damages that should be awarded.

Here, the plaintiff gives evidence that he is a community leader and a businessman. But there is no corroboration. He states that some people thought he was a troublemaker. But he does not say who those people are. And none of them has given any evidence. His statement of claim pleads that he suffered anxiety and distress. But there is little evidence of that.

There is also a lack of corroboration of the plaintiff’s evidence that he has made a return trip to Mt Hagen every month since October 1996 to consult his lawyer. That may be true. But it is preferable for the court to make findings of fact based on corroborated testimony rather than bald assertions coupled with a hunch that what the plaintiff states is or is not true.

Having said that, it does not follow that I should find that the plaintiff in this case was a ‘small’ man with no reputation worthy of protection and that he was unaffected by what happened to him and that he is a liar. I am entitled to draw inferences from the evidence presented and I can assess the plaintiff’s demeanour and his creditworthiness as a witness. I can make findings based on what is reasonably regarded as the ordinary and natural consequence in a village environment of a person being arrested, detained and charged by the police. I can also consider how a reasonable person would be psychologically affected if he were harshly and oppressively arrested, detained and charged criminally without good reason. And what a reasonable person would have done to consult his lawyer.

I conclude that the plaintiff has proven the following matters on the balance of probabilities and therefore record them as findings of fact:

• The plaintiff was and is a man of moderate means, living in a village in Western Highlands.
  
• He is neither a prominent businessman nor a community leader.
  
• He was upset and distressed – to the same degree any reasonable person in his position would have been – when he was arrested and detained and then charged for no good reason.
  
• He did not suffer any physical harm.
  
• He was not tortured or inflicted any inhuman treatment when he was detained.
  
• He did not suffer any long-term mental or psychological disturbance as a result of what he went through.
  
• Some people in the village thought he had done the wrong thing. But his reputation was not significantly spoiled or, if it was, not for very long.
  
• His business did not suffer.
  
• His plight was not given wide publicity. Few people outside the village knew about what happened. It was not reported in the media.
  
• He has been inconvenienced by having to travel to Mt Hagen regularly since 1996 to sort things out with his lawyer. Due to the lack of corroboration I discount the plaintiff’s figures by 50% by concluding that he has made bi-monthly return trips to Mt Hagen since 1996 at a cost of K18.00 per trip. So he has spent 8 years x 6 trips x K18.00 = K864.00 on transport.
  

ISSUES OF LAW

In light of the above findings of fact the following issues of law arise:

• Should damages for each cause of action be assessed separately?
  
• What heads (ie categories) of damages have been claimed in the pleadings?
  
• Is there evidence to support each head?
  
• What amount of damages should be awarded for each head of damage?
  
• What amount of interest, if any, should the plaintiff receive?
  

DEALING WITH SEPARATE CAUSES OF ACTION

Mr Tamutai submitted that the three causes of action should be dealt with separately and an award of damages made for each. Mr Sino submitted that the only cause of action that lent itself to a proper assessment was malicious prosecution.

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. I accept Mr Sino’s submission that the case lends itself to being treated as a malicious prosecution case. That means that previous cases assessing damages for malicious prosecution will provide the most useful precedents.

HEADS OF DAMAGES CLAIMED

The plaintiff has properly claimed for two heads of damages:

• General damages. This was separately pleaded for negligence and malicious prosecution. But, as indicated above, they will be dealt with together.
  
• Special damages, which was particularised at the trial as being for transport and lunch costs.
  

I say that the plaintiff has ‘properly’ claimed only two heads of damages as Mr Tamutai in his submissions asked for two awards of damages that went beyond the pleadings. First, he submitted that an award should be made for breach of constitutional rights. However the statement of claim does not seek such relief. It only asks for a declaration that Section 41 of the Constitution was breached. It does not seek damages for the breach. Secondly Mr Tamutai submitted that exemplary damages should be awarded. However exemplary damages were not sought in the statement of claim.

It is therefore not open to the court to award amounts for general damages on account of breach of constitutional rights or exemplary damages.

EVIDENCE

There is sufficient evidence to make an award of damages under each of the heads of general damages and special damages.

AMOUNT OF DAMAGES

General damages

Sub-categories

I consider that plaintiff has adequately pleaded four sub-categories of damage:

• deprivation of liberty, by being in the police lock-up unnecessarily;
  
• general distress and anxiety resulting from being locked-up and then facing criminal charges;
  
• inconvenience of going to and from the court on seven occasions; and
  
• effect on his reputation.
  

Previous cases

In assessing damages I have considered four National Court decisions. In each case the court made an award of general damages for a malicious prosecution or, as in Kofowei, a related cause of action that could have been dealt with as malicious prosecution. The table below summarises the facts of each case, shows the amount of general damages awarded and makes an approximation of the value of that award in current prices. I accept Mr Tamutai’s submission that the effects of inflation have to be considered when comparing awards of damages in previous cases. (See Tumunda Toropo v Jack Awabe and The State (2001) N2116, National Court, Hinchliffe J.)

TABLE 2: DAMAGES IN MALICIOUS PROSECUTION
AND RELATED CASES

Comparisons

Of the above cases Kofowei is important as it was one of the first post-Independence cases to show how abuse of police powers would give rise to a right in the victim to damages. It is significant also in showing how a plaintiff can rely on various causes of action, some based on common law and others on enforcement of constitutional rights. But it is an old case. Even when converted to current values I consider the awards made to be very low. They are below the range of amounts that should these days be considered reasonable, given the degree of improper treatment meted out to that plaintiff.

I think the last three cases give the best guide to the amount of damages that should be awarded. It is a matter of comparing the facts of those cases with the nature and extent of the injuries suffered by the plaintiff.

Significant points of comparison are:

• Unlike in Kombea and Roika the plaintiff is not a prominent person in the community, at a local, provincial or national level. His plight did not attract much publicity. The damage to his reputation was not great. So this is a factor tending to lessen the amount of damages in comparison with those cases.
  
• In Kombea the victim of the malicious prosecution was detained for four days, which would have created more distress and anxiety than in the present case where the plaintiff was detained for only a day.
  
• In Roika and Haluya the victims faced trial twice for the same offence, which would have created more distress and anxiety than in the present case where the plaintiff faced trial only once.
  

Generally I accept Mr Sino’s submission that, though every case of malicious prosecution is serious, the court is obliged to make an assessment of the degree of seriousness of the breach of the rights of the plaintiff that has occurred. This is done as part of the process of assessing the extent of the injuries that has been suffered by the plaintiff. I conclude that the present case is in relative terms not as serious a case of malicious prosecution as Kombea, Roika or Haluya.

Conclusion re general damages

In light of the above I conclude that the plaintiff should be awarded general damages of K9,000.00.

Special damages

The claims for special damages and the amounts I have awarded are shown in the table below.

TABLE 3: AWARD OF SPECIAL DAMAGES

Total

The plaintiff will therefore obtain an award of damages comprising:

• general damages of K9,000.00; plus
  
• special damages of K892.00.
  

The total award of damages is K9,892.00.

INTEREST

Relevant law

In his statement of claim the plaintiff claimed interest under the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Section 1 is the appropriate provision. It states:

(1) Subject to Section 2, in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

(2) Where the proceedings referred to in Subsection (1) are taken against the State, the rate of any interest under that subsection shall not exceed 8% yearly.

Discretion

As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on the Judge: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run.

Exercise of discretion

I exercise that discretion in the following way.

1. A plaintiff should in the normal course of events receive interest. There is nothing that takes this case out of the ordinary in that regard. The Court will order that interest be included in the sum for which judgment is given.
   
2. As this is a claim against the State, the maximum rate that can be awarded is, by virtue of Section 1(2), 8%. In view of current economic conditions in the country, 8% is, I think, the proper rate of interest.
   
3. Interest should be payable on the whole of the sum of damages for which judgment is given.
   
4. The appropriate period is the whole of the period between the date on which the cause of action arose and the date of the judgment. The cause of action arose on the day that the case against the plaintiff was dismissed by the District Court, 5 February 1996. The date of judgment is 28 July 2005. The appropriate period is therefore 9.47 years.
   

Calculation

I calculate the amount of interest by applying the following 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.
  

Therefore:

• K9,892.00 x 0.08 x 9.47 = K7,494.18
  

I will order that there be included in the sum for which judgment is given, interest of K7,494.18.

COSTS

The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.

JUDGMENT

The Court directs entry of judgment in the following terms:

1. damages, payable by the defendant, the Independent State of Papua New Guinea, to the plaintiff, Teine Molomb, in the sum of K9,892.00; plus
   
2. interest, payable by the defendant, the Independent State of Papua New Guinea, to the plaintiff, Teine Molomb, in the sum of K7,494.18;
   
3. being a total judgment sum of K17,386.18 to be paid within 30 days after the date of entry of this judgment;
   
4. costs to be paid by the defendant to the plaintiff on a party-party basis, to be taxed if not agreed.
   

Judgment accordingly.

____________________________

Lawyers for the plaintiff : Tamutai Lawyers
Lawyers for the defendant : Paul Paraka Lawyers