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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO 382 OF 1997
LINDA STANLEY
V
MATHEW KAWA
1st Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
2nd Defendant
MT HAGEN: CANNINGS J
7, 19 OCTOBER 2004, 28 JULY 2005
POLICE – actions for wrongs – liability of the State – police are servants, agents and officers of the State – Wrongs (Miscellaneous Provisions) Act, Section 1 – general liability of the State in tort – whether actions of police officers committed within the scope of police functions and responsibilities – whether tortious acts of police beyond scope of police authority – vicarious liability.
DAMAGES – negligence – loss of 50% visual capacity in one eye – general damages for pain and suffering and loss of amenities of life – loss of earning capacity – need to plead and prove facts relied on – special damages – plaintiff awarded total damages of K25,725.00 – plus interest and costs.
Some off-duty members of a police mobile squad were travelling along the Okuk Highway in a police vehicle when they came upon an incident in which a drunken man was causing a disturbance. The police tried to arrest him but there was a scuffle, shots were fired and the plaintiff, a bystander, was hit in the eye by a stray bullet, losing 50% of her visual capacity in one eye. She commenced proceedings against the commander of the mobile squad and the State, claiming damages for negligence. She claimed that the commander of the mobile squad and the State were vicariously liable for the tortious conduct of the police officers.
Held:
(1) The police officers were off-duty but remained police officers 24 hours a day and, using a public road, they owed a duty of care to fellow road users.
(2) The police officers fired shots in a public place in a dangerous and unnecessary way and committed the tort of negligence.
(3) The first defendant had nothing to do with the incident and cannot be vicariously liable for his officers’ actions.
(4) The State is liable for the tortious actions or omissions of police officers committed within the scope of police employment and functions unless the State discharges the onus of proving that what they did was totally removed from the domain of their authorised actions. Nogo Suzuke v The State WS 951 of 1994, unreported, 21.06.96; Eriare Lanyat and Another v The State [1997] PNGLR 253; Wama Kints v The State (2001) N2113 applied.
(5) In the circumstances the State was vicariously liable for the negligence of the police officers.
(6) General damages of K25,000.00 were assessed; plus special damages of K725.00.
(7) The State is also liable for interest of K16,656.09 and costs.
Cases cited:
The following cases are cited in the judgment:
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
David Kofowei v Augustine Siviri and Others [1983] PNGLR 449
Dorothy Kesla Tuba v The State (1997) N1581
Eriare Lanyat and Another v The State [1997] PNGLR 253
Joseph Dikini v John Wamel (1997) N1562
Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779
Nogo Suzuke v The State WS 951 of 1994, unreported, 21.06.96
Pinzger v Bougainville Copper Ltd [1983] PNGLR 436
Pinzger v Bougainville Copper Ltd [1985] PNGLR 160
Reading v MVIT [1988] PNGLR 266
MVIT v Reading [1988] PNGLR 236
The State v David Wari Kofowei and Others [1987] PNGLR 5
Tumunda Toropo v Jack Awabe and The State (2001) N2116
Wama Kints v The State (2001) N2113
STATEMENT OF CLAIM
This was an action in which the plaintiff claimed damages for personal injuries caused by negligence of police officers.
Counsel:
P Kunai for the plaintiff
J Kolkia for the defendants
CANNINGS J:
INTRODUCTION
This is a case about the alleged shooting of an innocent bystander by the police. It is claimed that the police negligently discharged a firearm in a public place and hit the bystander, causing injury.
The defendants deny liability. They say that the police were not negligent and even if they were, there is no vicarious liability. If the court rejects those propositions and finds either or both of them liable, they say that the plaintiff's injuries are not very serious. The case is therefore about both liability and quantum of damage.
BACKGROUND
The incident
On 11 May 1995 there was an incident on the Okuk Highway, at the Kindeng junction, Western Highlands Province. Some members of the police mobile squad based at Kerowagi, Chimbu Province, were travelling along the highway in the direction of Mt Hagen. When they got to the junction, the highway was blocked. A man was in the middle of the road causing a disturbance. He was drunk and disorderly. The police tried to arrest him. But he did not co-operate. One of the police officers fired a shot from a firearm.
The plaintiff, Linda Stanley, says that at that time she was in her family’s trade-store, near where the incident took place. She claims she was hit in the left eye by a stray bullet. Blood came out of her eye. She fell to the floor. Her family rushed her to Mt Hagen General Hospital, 20 kilometres away. The plaintiff claims that she was injured by the negligent acts of the police officers present and particularly the one who fired the shot. The second defendant, the State, should be held vicariously liable for the negligent conduct of the police. She should be awarded damages.
The defendants say that it is not clear that the plaintiff was hit by a police shot. If she was, the police did not act negligently. They acted reasonably in all the circumstances. They were faced with a difficult situation and did what was necessary to prevent serious or fatal injury to the police officers who were trying to quell the disturbance.
Statement of claim
On 24 April 1997 Kunai & Co Lawyers of Mt Hagen filed a writ of summons on behalf of the plaintiff. Two defendants were named:
The writ was served on 24 May 1997. The statement of claim endorsed on the writ claimed that the first defendant, while acting in the course of his duties, ordered police officers under his command to carry out a raid at the Kindeng junction, resulting in the police officers firing a shotgun without lawful excuse or justification and the plaintiff sustaining severe injuries to her left eye from shotgun pellets. The second defendant was vicariously liable.
The plaintiff sought the following remedies:
Events since filing of writ
On 16 July 1998 the Solicitor-General filed a defence on behalf of the first and second defendants, denying the allegations contained in the statement of claim. They claimed that the actions of the police were voluntary and independent and not authorised commands. The case was set down for trial on several occasions over a number of years, but the trial dates were vacated. In April 2003 the Solicitor-General ceased to act for the defendants and Paul Paraka Lawyers of Mt Hagen commenced acting for the defendants. In October 2004 the trial was held at Mt Hagen.
PLAINTIFFS EVIDENCE
Mr Kunai, for the plaintiff, called six witnesses.
Linda Stanley is the plaintiff. She swore an affidavit on 2 December 1998, describing herself as then aged 26 and married. She deposed that at about 4 o’clock on the afternoon of Thursday 11 May 1995 she was working in her family’s trade store at Kindeng. She saw a young man fleeing from the police, who were in a police vehicle. The vehicle belonged to the Simbu police as it had a yellow insignia on the front bumper. She saw many people from the market running to the road to see what was happening. She saw the police vehicle stop and shortly after that heard a gunshot. She felt something solid hit her left eye. She fell to the floor. She was admitted to Mt Hagen General Hospital that day and stayed for 17 days. She confirmed the contents of her affidavit in examination in chief.
In cross-examination she stated that she did not see the first defendant, Mathew Kawa, at Kindeng on the day of the incident. She did not see any pellets. Her doctor had told her that he removed pellets from her left eye. She forgot to bring her receipts for the expenses she incurred. She had no documents to prove that she had been admitted to hospital. She purchased some spectacles on her doctor’s recommendation but they did not improve her vision.
Mike Soh is a village court magistrate who states that he was an eyewitness to the incident. He swore an affidavit on 2 December 1998. He deposed that at about 4 o’clock on the afternoon of Thursday 11 May 1995 he was standing at the market place at the Kindeng-Papene junction. He heard a commotion. There was a lot of noise coming from the general direction of Mt Hagen. He saw a police vehicle being driven in reverse. It was a Toyota Landcruiser 10-seater van. It was from Simbu as it had a yellow insignia on the bumper. The van eventually parked on the side of the highway next to the market, immediately in front of a store. At the same time a number of villagers ran onto the road to help the man, Soti, who was being chased by the police. The villagers were struggling with a policeman. A second policeman came out of the van to help the first policeman. While those two policemen and Soti and the others were still struggling a third policeman, who was in the back of the police van, fired a shot at short range and Soti fell to the ground. He and other bystanders ran for cover. At the same time Linda Stanley was injured in the eye. He saw that she was bleeding from the left eye and that she had sustained pellet wounds to the eye. Mike Soh confirmed the contents of his affidavit in examination in chief.
In cross-examination he stated that the first two policemen wore blue uniforms while the third, the one who fired the shot, was in civilian clothes. He was 40 metres away from the police vehicle. Soti was not killed. The bullet from the gun hit the ground and then went into the store and hit the plaintiff. He did not see Mathew Kawa at the scene of the incident.
Ronny Wokil gave oral evidence that he was also an eyewitness. He saw a policeman struggling with Soti. Then another policeman came out and fired one shot. The plaintiff was hit in the eye. He did not see Mathew Kawa at the scene of the incident.
In cross-examination he stated that the policemen came in a ten-seater van. Some were in uniform, some in plain clothes. He did not see which policemen fired the shot. Nor did he see what sort of gun it was.
Siri Pora gave oral evidence that he was also an eyewitness. There was a struggle between the policemen and Soti and the police fired a shot. Linda Stanley was injured and taken to hospital. He does not know whether Mathew Kawa was at the scene of the incident.
In cross-examination he stated that the plaintiff was bleeding, so she had sustained pellet wounds. He saw the police officer who fired the shot but does not know his name or the type of gun he used. He did not see Mathew Kawa. The policeman aimed the gun at Soti and fired.
Samuel Pawa gave oral evidence. He is a youth leader and he witnessed the incident. The police tried to arrest Soti but he resisted and another policeman came out of the van to assist. A third policeman then opened fire. The first two policemen were in uniform. The third policeman was in civilian clothes. When he fired the shot everybody ran away. He did not see Mathew Kawa there.
In cross-examination he stated that he was about 25 metres away from where the police van was parked. The third policeman aimed the gun at Soti and fired the shot. He did not know the third policeman and could not tell whether he was in uniform or plain clothes.
Dr George Jacob is an eye specialist at Mt Hagen General Hospital. He swore an affidavit on 3 December 2003. He states that on 11 May 1995 a patient by the name of Linda Stanley was given admission No 233767 following a pellet wound to her left eye. The pellet caused injury to her left eye with "perforation of sclera and prolapse of vitrious". She was operated on and the wound was sutured. She had vision of 6/36 in her injured eye. On 22 August 1995 he examined her again and her vision was 6/18. In his opinion she has 50% visual incapacity in her left eye as result of the injury. Annexed to his affidavit were medical reports dated 29 May and 22 August 1995.
In cross-examination he stated that he did not have a clear recollection of Linda Stanley’s admission. It was a long time ago and he sees many patients. He did not take an x-ray of the plaintiffs left eye. He cannot recall finding or removing any objects or pellets.
DEFENDANTS’ EVIDENCE
Mr Kolkia, for the defendants, called one witness.
Senior Constable Christopher Gale is one of the police officers who was present at the incident. He swore an affidavit on 15 December 2003. He states that about midday on 11 December 1995 he left Kundiawa Police Station with Sergeant Godfrey Kambania, Constable Jessie Amlakwin and Constable Alex Warren. They were travelling to Mt Hagen. The purpose of their trip was to take gifts to the outgoing mobile squad adviser. At around 2.30 pm they arrived at the Kindeng junction where there was a heavy traffic jam. He got out to investigate and saw a young man in the middle of the road holding a half full bottle of beer. He approached the man but the man ran away into the crowd at Kindeng market. He was in the process of returning to the vehicle when the man, supported by the crowd, ran towards him and tried to get the rifle that he was carrying. He tried to put the rifle in the vehicle but was hit on the head and fell down unconscious and someone got the rifle from him. Sergeant Kambania got a shotgun from the vehicle and fired at the man holding the rifle. The man fell down and the crowd ran away. Constables Amlakwin and Warren received pellet wounds to the head. They and Senior Constable Gale were admitted to Mt Hagen General Hospital. But it was not safe for them there so they came to Kundiawa Hospital for further treatment.
In cross-examination he stated that he got out of the police vehicle to remove the drunken man from the road. The trip from Kundiawa to Mt Hagen was nothing to do with official police duty. Their commander, Mathew Kawa, was not with them. He was on leave in Wau, Morobe Province.
THE CAUSE OF ACTION
This is a common law action for negligence, brought within the statutory framework of the Wrongs (Miscellaneous Provisions) Act (Chapter 297). The common law of negligence has been adopted as part of the underlying law of Papua New Guinea. It continues to be applicable and appropriate to the circumstances of the country, except to the extent it is inconsistent with or has been modified by a written law. It applies in this case by virtue of Section 20 of the Constitution and Sections 3(1)(b), 3(3), 4(1), 4(3)(b), 4(4), and 5 of the Underlying Law Act 2000.
Common law
To establish liability a plaintiff needs to satisfy the basic elements of the tort of negligence:
(See Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779, National Court, Cannings J.)
Vicarious liability
Vicarious liability is a common law principle by which one legal person (such as the State) is held liable for the acts or omissions of another person or group of persons over whom the first person has control or responsibility. The principles of vicarious liability have been codified by Section 1 (general liability of the State in tort) of the Wrongs (Miscellaneous Provisions) Act.
Section 1 states:
(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.
(2) Proceedings do not lie against the State by virtue of Subsection (1)(a) in respect of an act or omission of a servant or agent of the State unless the act or omission would, apart from this Division, have given rise to a cause of action in tort against the servant or agent or his estate.
(3) Where the State is bound by a statutory duty that is binding also on persons other than the State and its officers, then, subject to this Division, the State is, in respect of a failure to comply with that duty, subject to all liabilities in tort (if any) to which it would be subject if it were a private person of full age and capacity.
(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.
(5) An Act or subordinate enactment that negatives or limits the amount of the liability of a Department of the Government or officer of the State in respect of a tort committed by the Department or officer applies, in the case of proceedings against the State under this section in respect of a tort committed by the Department or officer, in relation to the State as it would have applied in relation to the Department or officer if the proceedings against the State had been proceedings against the Department or officer.
(6) Proceedings do not lie against the State by virtue of this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in him, or responsibilities that he has in connexion with the execution of judicial process.
FINDINGS OF FACT
Undisputed facts
All parties agree that there was an incident involving the police firing shots at the Kindeng junction on the afternoon of 11 May 1995.
Areas of dispute
There are four aspects of the evidence in dispute:
Mr Kolkia, for the defendants, argued that all those questions should be answered ‘no’. Mr Kunai, for the plaintiff, seems to concede that the answer to the first question is no but argues that it is not determinative of the issue of liability. As to whether the police were on official duty, Mr Kunai also seems to concede that the answer is no. However, again, he submitted that it did not matter from the point of view of liability. On the third issue Mr Kunai asserted that there was no version of events that gave a feasible explanation of the plaintiffs injuries, other than that she was struck in the eye by a stray pellet that had been fired by the police. On the fourth issue Mr Kunai argued that any inconsistencies were minor and inconsequential.
Findings
The incident involving the police at the Kindeng junction on the afternoon of 11 May 1995 was not a planned police operation, raid, or anything of the sort. It was an incident that happened by chance. Members of the police mobile squad based at Kerowagi were travelling in a blue Toyota Landcruiser 10-seater van along the Okuk Highway in the direction of Mt Hagen. There were about five officers in the van. There was only one police vehicle. Some of the officers were in uniform, others were in plain clothes. I accept that the purpose of their trip was to deliver gifts to an outgoing officer in Mt Hagen.
The squad’s commanding officer, Mathew Kawa, was not among them. On that day he was in Wau, Morobe Province on leave. I accept, and find, that he was not present and had no involvement in the incident. It emerged from the evidence that there was an incident at Kindeng a couple of days later. A police raid of some sort seems to have been carried out. Mathew Kawa may have been present then. However, in the present case the court is not concerned with the later incident.
As the van approached the junction the officers could see that there was a traffic disruption. One of the officers, Senior Constable Christopher Gale, got out of the van, carrying a rifle, and walked along the road to investigate. He discovered that there was a man, Soti, in the middle of the road, carrying a half-full bottle of beer, drunk. He moved towards Soti, who ran away.
Senior Constable Gale’s evidence is that he then returned to the police vehicle and the crowd set upon him. However, I do not accept that. The evidence of Mike Soh and Ronny Wakil is that there was a more aggressive move made by Senior Constable Gale towards apprehending Soti. I find that evidence more credible. There was a physical struggle between Gale and Soti. That is when some of the bystanders went to the aid of Soti. A second police officer came to assist Gale. Then a third police officer, Sergeant Kambania, got a shotgun from the van and fired a shot in the direction of Soti at close range. Mr Kolkia submitted that there were significant inconsistencies in the evidence at this point. Siri Pora said the third police officer was in uniform, while Samuel Pawa stated that he was in civilian clothes. I regard these as minor discrepancies, considering that the witnesses gave evidence of something that happened more than nine years ago. I regard their evidence as credible.
Two police officers were hit in the head by stray pellets. The plaintiff, who was working in a nearby trade-store, was also hit in the head. She was taken to Mt Hagen General Hospital and spent 17 days there. She suffered a 50% loss of vision in her left eye, which is a permanent disability.
MAJOR ISSUES OF LAW
The plaintiff is attempting to fix liability for the injuries she sustained on the defendants. To do that she relies on the tort of negligence. Neither of the defendants were directly and personally negligent. The first defendant, the mobile squad commander, was on leave and had no involvement. He did not order or authorise what happened. The second defendant, the State, is not capable of being directly and personally negligent. So the plaintiff must first show that some person or persons were directly and personally negligent – in this case, that one or more police officers committed the tort of negligence. Then she must establish that either or both defendants are vicariously liable for the commission of that tort. If she succeeds in doing that, the issue of assessment of damages will arise.
The major issues of law therefore are:
I will summarise the submissions on these major issues, then address the issues in that order.
PLAINTIFFS SUBMISSIONS
Mr Kunai submitted that the police officers at the scene of the incident acted negligently. Particularly Sergeant Kambania as he was the one who fired the shot that struck the plaintiff. He discharged a dangerous firearm in a public place without regard for the consequences.
The State was vicariously liable for what happened. Even if it is accepted that the police were not on official duty, they remain police officers 24 hours of the day. They were in a police vehicle and responded to an incident as police officers. The State is therefore liable for their negligence.
As to damages, the plaintiff should be awarded K30,500.00, comprising general damages of K20,000.00, economic loss of K10,000.00 and special damages of K500.00.
DEFENDANTS’ SUBMISSIONS
Mr Kolkia submitted that the plaintiff had neither pleaded the particulars of the alleged negligence nor proven negligence. Negligence must be established before the court can even consider making the State liable for what happened.
If negligence is established the State is not vicariously liable as the police officers acted outside the scope of their employment and functions.
As to damages, the only head of damage that has been properly pleaded is general damages and that should be capped at K10,000.00.
DID THE POLICE OFFICERS COMMIT THE TORT OF NEGLIGENCE?
The police officers who came upon the incident at Kindeng junction were off duty. Nevertheless they remained police officers, 24-hours a day. They were using a public road. They owed a duty of care to fellow road-users and any persons near the road on which they were travelling.
The police as a group, and Sergeant Kambania in particular who fired the shot, were negligent. They breached the standard of care required in the circumstances. They did not intend to harm anybody. They chanced upon a difficult situation. But I infer from the evidence that if they had handled the situation in a more careful and less heavy-handed way, the incident would not have developed in the way that it did. As stated earlier I had difficulty accepting Senior Constable Gale’s version of events. I do not accept that, having tried to apprehend the drunken man, Soti, he simply returned to the police van. I find that his actions were much more aggressive than that. As for the firing of the shot, the reasonable course of action would have been to fire a warning shot into the air. That was not done. The way in which the shot was fired in a public place was dangerous and unnecessary. Three people (two officers plus the plaintiff) were injured in addition to the target, Soti.
It has been established that it was pellets from the shotgun that hit the plaintiff in the eye. Causation is established. The type of injury sustained by the plaintiff was reasonably foreseeable. She was not guilty of contributing to her own injuries. She was an innocent bystander.
I accordingly find that the plaintiff has established the tort of negligence against the police officers involved in the incident.
ARE EITHER OR BOTH DEFENDANTS VICARIOUSLY LIABLE?
The first defendant had nothing to do with this incident. He was on leave. He was the commanding officer of the negligent officers. But he gave them no orders or commands. He was not their employer. So he cannot be vicariously liable.
The issue of vicarious liability of the second defendant, the State, requires careful consideration. There is no doubt that the police officers who committed the tort of negligence are servants, agents and officers of the State. Therefore the State is liable for their tortious acts or omissions if committed within the scope of their police employment or functions. (David Kofowei v Augustine Siviri and Others [1983] PNGLR 449, National Court, Ramage AJ; The State v David Wari Kofowei and Others [1987] PNGLR 5 Supreme Court, Kidu CJ, Kapi DCJ, Woods J.)
The powers, functions, duties and responsibilities of the Police Force and its members are prescribed by Constitutional Law, statute and the underlying law. Section 197 of the Constitution states that the primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament, to preserve peace and good order in the country and to maintain and, as necessary, enforce the law in an impartial and objective manner. Section 140 of the Police Act 1998 states (and Section 139 its predecessor, the Police Force Act Chapter 65 stated) that a member of the Force has the same powers, duties, rights and liabilities as a constable under the underlying law, except in so far as they are modified by or under an Act.
If it is established that police officers were acting within the scope of their functions, the State is liable for their tortious conduct unless the State discharges the onus of showing that what they did was totally removed from the domain of their authorised actions. (Nogo Suzuke v The State WS 951 of 1994, unreported, 21.06.96, National Court, Injia J; Eriare Lanyat and Another v The State [1997] PNGLR 253, National Court, Injia J; Wama Kints v The State (2001) N2113, National Court, Davani J.)
I now apply the above principles to the present case and find as follows:
Therefore the State is vicariously liable for the actions of the police officers.
WHAT AMOUNT OF DAMAGES SHOULD BE AWARDED TO THE PLAINTIFF?
Claim and response
I will set out in the following table what categories of damage the plaintiff is claiming and how the second defendant, the State, responds. I have already concluded that the first defendant, Michael Kawa, has no liability.
TABLE 1: PLAINTIFFS CLAIMS AND SECOND DEFENDANT’S RESPONSE
| No | Category | Amount claimed | Response |
| 1 | General damages | K 20,000.00 | K10,000.00 |
| 2 | Economic loss | 10,000.00 | 0 |
| 3 | Special damages | 500.00 | 0 |
| | Total | K 30,500.00 | K10,000.00 |
General damages
This head of damage was pleaded in the statement of claim and represents pain and suffering and loss of amenities of life associated with the plaintiffs loss of 50% vision in her left eye. Both counsel cited many previous cases to demonstrate what would be a fair figure. Most of them are more than ten years old. I accept Mr Kunai’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.)
Two of the more recent cases are:
In this case, having regard to the effects of inflation, I award general damages of K25,000.00. That is more than what was claimed but I am not restricted by counsel’s submissions, which I consider to have been too conservative.
Economic loss
Mr Kunai submitted that the plaintiff should be compensated for loss of earning capacity as a simple village woman in a highlands environment. However this head of damage has neither been pleaded nor proven. I accept Mr Kolkia’s submission that nothing should be awarded.
Special damages
This was particularised in the statement of claim as:
| Medical bills | K 500.00 |
| Medical report | K 100.00 |
| Police report | K 25.00 |
| PMV fares | K 100.00 |
Mr Kolkia rightly points out that there was no direct evidence of these items adduced at the trial. Against that, the amounts claimed are relatively small and in light of the nature of the injury suffered by the plaintiff and the circumstances in which she was injured, it can safely be inferred, and I find as a fact based on the other evidence adduced, that these costs were incurred.
I accordingly award special damages of K725.00.
Total
The plaintiff will therefore obtain an award of damages comprising:
The total award of damages is K25,725.00.
INTEREST
Relevant law
In her 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:
TABLE 2: PRE-JUDGMENT AND POST-JUDGMENT COMPONENTS OF CATEGORIES OF DAMAGES
| No | Category | Pre-judgment | Post-judgment | Total |
| 1 | General damages | K10,000.00 | K15,000.00 | K25,000.00 |
| 2 | Special damages | 725.00 | 0 | 725.00 |
| | Total | K10,725.00 | K15,000.00 | K25,725.00 |
Thus only two categories of damages will attract interest: general damages (K10,000.00) and special damages (K725.00).
Calculation
I calculate the amount of interest by applying, in relation to each category of damages attracting interest, the following formula:
Where:
Therefore:
I will order that there be included in the sum for which judgment is given, interest of K16,656.09.
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:
Judgment accordingly.
_________________________________________
Lawyers for the plaintiff : Kunai Lawyers
Lawyers for the defendant : Paul Paraka Lawyers
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