Bau v Karl [2010] PGNC 133; N4123 (31 August 2010)

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DAMAGES – assault, trespass, breach of human rights – unlawful destruction of properties by police – police raid – plaintiffs claim general damages for assault; special damages for destruction of properties, gardens and livestock; damages for breach of human rights; exemplary damages.

A group of police officers (the first defendants) raided a block of land on the edge of a provincial capital, occupied by the plaintiffs and their families. The police officers and their supporters assaulted the plaintiffs, destroyed their houses and other properties, gardens and livestock, and chased them off the block, which resulted in them living in a care centre for 18 months. The plaintiffs sued the police officers and the State (the second defendant), claiming damages for assault and breach of human rights. The defendants were found liable by entry of default judgment. A trial was held to assess damages. The plaintiffs sought four categories of damages: (1) general damages for assault; (2) special damages for property losses; (3) general damages for breach of human rights; (4) exemplary damages.

Abel Tomba v The State (1997) SC518
Andale More and Manis Andale v Henry Tokam and The State (1997) N1645
Eton Pakui v The State (2006) N2977
Joe Tipaiza v James Yali (2008) N3472
Latham v Henry [1997] PNGLR 435
Nail Lamon v Zakang Bumai (2010) N3920
Peter Kuriti v The State [1994] PNGLR 262
Wama Kints v The State (2001) N2113

1. CANNINGS J: This is an assessment of damages against three police officers (the first defendants, Paul Karl, Thomas Nangu and Francis Moni) and their employer (the second defendant, the State), who have been found liable for the unlawful actions of the police in carrying out a raid at Mule Dami, on the edge of Kimbe, the provincial capital of West New Britain.

2. Mule Dami is a residential block on customary land in the mountains behind the suburb of Section 10. The 61 plaintiffs and their ancestors, who are mainly from Morobe Province, have lived there over the last 40 years. The plaintiffs say that their ancestors were originally plantation workers who settled on Mule Dami by agreement with the customary landowners.

3. An armed police squad led by the first defendants went to Mule Dami at 6.00 am on Sunday 26 August 2007 and entered, searched, damaged and destroyed the plaintiffs' houses and other property including household property, food gardens and livestock. The police assaulted and intimidated the plaintiffs and chased them off the block, which resulted in them living in a care centre at Gigo in Kimbe for 18 months.

4. The motive for the actions of the police is evidently that a man had been killed in Kimbe and the police believed that one or more of the plaintiffs or people associated with them were responsible for the death and were not co-operating with the police.

5. On 19 February 2008 the plaintiffs commenced proceedings against the defendants, claiming damages for assault and breach of human rights. The defendants failed to file a defence and on 21 November 2008 were found liable by an order for default judgment.

6. A trial has been held to assess damages. The plaintiffs seek four categories of damages:

7. Each plaintiff has sworn an affidavit (and some swore supplementary affidavits) setting out what happened, detailing their property that was lost or destroyed and explaining what happened in the 18-month period after the raid. A total of 69 affidavits were admitted into evidence. In addition the court (the Judge, lawyers from both sides and other officers of the court, plus some of the plaintiffs) made the trek by foot (there being no vehicular access) from Section 10 to Mule Dami on the afternoon of Friday 11 September 2009 and inspected the site of the raid.

8. The plaintiffs claim K5,500.00 each for the tort of assault. There is evidence that the raid started with the police entering the block, firing shots into the air, brandishing their weapons and terrorising the plaintiffs and their families, including women and children. There is little doubt that it was a terrifying experience for the plaintiffs and that they were in genuine fear of their lives. I award K2,000.00 damages to each plaintiff as general damages for assault.

9. Each plaintiff has set out in detail their alleged property losses and many of the claims are quite substantial. For example, plaintiff No 33, Mati Male, claims he suffered the following property losses:

10. The State's counsel, Mr Cherake, strenuously challenged the veracity of that and every other claim. In a meticulously prepared submission he has subjected each affidavit to critical analysis, exposing the defects in each claim and the lack of supporting evidence. Having carefully considered his submission and taking into account the impressions gained from the court's site visit, I find myself in agreement with the thrust of his submission that the plaintiffs' claims are exaggerated.

11. The greatest deficiency in the plaintiffs' case is that there is no independent corroboration of the details of the incident and the extent of each plaintiff's losses. If there had been an investigation of the incident, soon after it occurred, by an independent body such as the Ombudsman Commission, or perhaps a local church, it would be easier to accept the claims at face value. Some independent person or agency should have been involved and taken down the names of everyone affected and interviewed them.

12. It does not follow from this, however, that I should regard the claims as bogus or award the plaintiffs nothing. The plaintiffs have proven that the police acted unlawfully, and I accept that the plaintiffs were terrorised and traumatised and I also accept that the plaintiffs suffered property losses. So, what should they be awarded?

13. Faced with this scenario in previous cases the court has sometimes discounted each claim to take account of deficiencies in evidence. For example, in Joe Tipaiza v James Yali (2008) N3472 the 220 plaintiffs claimed property losses of K3.9 million following an unlawful squatter eviction exercise by police and the provincial government in Madang town. I discounted each of the claims by 50% in view of deficiencies in the evidence. In Eton Pakui v The State (2006) N2977, a case involving an unlawful police raid of Tulipato village in Enga Province, I discounted the 16 claims by 90%.

14. I considered doing something similar in this case but ultimately I have been persuaded by Mr Cherake's submissions that it would not be proper to do so. I must also say that Mr Pokia has not put his submissions to the court in an arithmetically friendly manner. Nowhere in his submission is it stated clearly and coherently what each plaintiff is claiming. Figures have been jumbled together and nothing has been added up. What I am going to do is award each plaintiff what I consider to be a fair figure for their property losses. Each plaintiff will get the same amount: K5,000.00.

15. The plaintiffs claim K25,000.00 each for breach of the following human rights:

16. To some extent these claims have been accommodated by the award of K2,000.00 general damages for the tort of assault in that the actions of the police that constituted the elements of the tort of assault were the same actions that gave rise to the human rights breaches. However, the human rights breaches were pleaded as separate causes of action. When Mr Pokia made his submission, he argued that the plaintiffs should be compensated for the 'after-effects' of the human rights breaches (the plaintiffs being forced to live in care centre conditions for 18 months), as well as for the immediate fear and trauma caused by the assaults. I see merit in the argument, so I will award damages for the human rights breaches separately and in addition to the damages for assault.

17. I award K2,000.00 damages to each plaintiff as general damages for human rights breaches.

19. Since the Supreme Court's decision in Abel Tomba v The State (1997) SC518 the courts have been reluctant to award exemplary damages against the State for abuse of police powers. The question to ask is whether the breach of the law by police officers is a technical breach or whether it involves a significant and unwarranted departure from the proper exercise of police powers eg where a police operation is unauthorised and individual police officers are not named as defendants. If the facts fit into the first category, exemplary damages may be payable by the State. If the facts fit into the second category exemplary damages are not payable by the State. A plaintiff is expected to seek such redress from the individual police officers who breached the law.

20. In this case individual police officers have been named as defendants. There is evidence that there had been a killing and the police had mobilised and were searching for suspects. The reasonable inference to draw is that this was an authorised police operation. The State has failed to bring evidence to rebut that presumption. I conclude that breaches of the law were committed by the police but within the scope of a police operation. The case falls within the first category. Therefore the circumstances of the case do not exclude the awarding of exemplary damages.

21. I must consider Section 12(1) of the Claims By and Against the State Act 1996, which states:

No exemplary damages may be awarded against the State unless it appears to the court that, regardless of the nature of the claim, there has been a breach of Constitutional rights so severe or continuous as to warrant an award of exemplary damages.

22. So the question to be asked is: was the breach of constitutional rights so severe or continuous as to warrant an award of exemplary damages? In determining that, I remind myself that the decision whether to award exemplary damages is a matter of discretion. The purposes of an award of exemplary damages are to:

23. I have also considered the view expressed by Judges in a number of cases that if exemplary damages are to be awarded for breaches of human rights by police officers, it is the individual police officers who should pay – not the State (eg Andale More and Manis Andale v Henry Tokam and The State (1997) N1645, per Injia J; Wama Kints v The State (2001) N2113, Davani J). However, as I stated in a recent Madang case, Nail Lamon v Zakang Bumai (2010) N3920, in which exemplary damages were awarded against the State for a disgusting series of human rights breaches committed by the Police against five young Rai Coast men, I query whether that is a realistic approach to take.

24. I am satisfied that this is a case where the second defendant – the State – has obviously failed in its duty to train and educate these police officers on proper and acceptable methods of policing. It would serve the interests of justice for the State to be penalised for the wilfully unconstitutional actions of its officers. The breaches of human rights were sufficiently severe and continuous to warrant an award of exemplary damages. I will award one-quarter the amount in exemplary damages as for the total damages for assault (K2,000.00) and breach of human rights (K2,000.00). The amount of exemplary damages for each plaintiff is:

25. I will award interest at the rate of 8 per cent per annum to each of the plaintiffs, on the amount of their damages. This is done under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest is calculated from the date on which the cause of action accrued, 27 August 2007, to the date of this judgment, a period of three years.

27. 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.

Plaintiff No	Plaintiff name	Total damages (K)	Interest (K)	Judgment sum (K)
	Aisak Kuman	10,000.00	2,400.00	12,400.00
	Alep Sam	10,000.00	2,400.00	12,400.00
	Ari Gop	10,000.00	2,400.00	12,400.00
	Asing Toki	10,000.00	2,400.00	12,400.00
	Bembe Yawi	10,000.00	2,400.00	12,400.00
	Bill Somilong	10,000.00	2,400.00	12,400.00
	Dobie Kewayong	10,000.00	2,400.00	12,400.00
	Demas Oseth	10,000.00	2,400.00	12,400.00
	Gemi Mungep	10,000.00	2,400.00	12,400.00
	Gibson Peni	10,000.00	2,400.00	12,400.00
	Gima Gop	10,000.00	2,400.00	12,400.00
	Marshall Jerry	10,000.00	2,400.00	12,400.00
	James Oseth	10,000.00	2,400.00	12,400.00
	James Vito	10,000.00	2,400.00	12,400.00
	Jepe Suvi	10,000.00	2,400.00	12,400.00
	Jimsy Suwing	10,000.00	2,400.00	12,400.00
	Joe Suvi	10,000.00	2,400.00	12,400.00
	Justin Bau	10,000.00	2,400.00	12,400.00
	Kaidy Mungep	10,000.00	2,400.00	12,400.00
	Kepas Renzer	10,000.00	2,400.00	12,400.00
	Kepas Songoriog	10,000.00	2,400.00	12,400.00
	Keram Yanzi	10,000.00	2,400.00	12,400.00
	Kevin Ugi	10,000.00	2,400.00	12,400.00
	Korry Oseth	10,000.00	2,400.00	12,400.00
	Kumbu Moris	10,000.00	2,400.00	12,400.00
	Lindy Jim	10,000.00	2,400.00	12,400.00
	Maiti Mungep	10,000.00	2,400.00	12,400.00
	Male Munding	10,000.00	2,400.00	12,400.00
	Mang Morros	10,000.00	2,400.00	12,400.00
	Martin U Eric	10,000.00	2,400.00	12,400.00
	Matang Oseth	10,000.00	2,400.00	12,400.00
	Maria Eyong	10,000.00	2,400.00	12,400.00
	Maty Male	10,000.00	2,400.00	12,400.00
	Mekenang Busak	10,000.00	2,400.00	12,400.00
	Mevuk Mambang	10,000.00	2,400.00	12,400.00
	Michael Kambo	10,000.00	2,400.00	12,400.00
	Muke Mambang	10,000.00	2,400.00	12,400.00
	Munge Angu	10,000.00	2,400.00	12,400.00
	Muzeri John	10,000.00	2,400.00	12,400.00
	Nangi Nukum	10,000.00	2,400.00	12,400.00
	Nobak Gemi	10,000.00	2,400.00	12,400.00
	Ogas Songe	10,000.00	2,400.00	12,400.00
	Oseth Ngret	10,000.00	2,400.00	12,400.00
	Pala Ningi	10,000.00	2,400.00	12,400.00
	Paul Geyong	10,000.00	2,400.00	12,400.00
	Quanding Oseth	10,000.00	2,400.00	12,400.00
	Ranza Silas	10,000.00	2,400.00	12,400.00
	Robin Asing	10,000.00	2,400.00	12,400.00
	Teky Silo	10,000.00	2,400.00	12,400.00
	Sago Leni	10,000.00	2,400.00	12,400.00
	Songe Munding	10,000.00	2,400.00	12,400.00
	Sony Duma	10,000.00	2,400.00	12,400.00
	Steven Toki	10,000.00	2,400.00	12,400.00
	Tanny Kuvin	10,000.00	2,400.00	12,400.00
	Teky Billy	10,000.00	2,400.00	12,400.00
	Tunny Kero	10,000.00	2,400.00	12,400.00
	Usit Shangary	10,000.00	2,400.00	12,400.00
	Wike Kero	10,000.00	2,400.00	12,400.00
	Yamina Kuwin	10,000.00	2,400.00	12,400.00
	Berevi Suvi	10,000.00	2,400.00	12,400.00
	Isaac Bonife	10,000.00	2,400.00	12,400.00
Total		610,000.00	146,400.00	756,400.00

Mirupasi Lawyers: Lawyers for the Plaintiffs
Solicitor-General: Lawyer for the Second Defendant

Permanent house	K 17,759.35
Clothing	8,824.05
Bedding	1,613.95
Kitchenware	1,539.20
Garden tools	630.50
Stationery	571.50
Cash	1,800.00
Other effects	2,700.00
Cash crops	38,558.20
Livestock	2,260.00
Total	K 76,256.75

National Court of Papua New Guinea

Bau v Karl [2010] PGNC 133; N4123 (31 August 2010)