Dope v Malai [2012] PGNC 367; N4574 (10 February 2012)

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DAMAGES – assessment of damages – breach of human rights – unlawful actions of police – plaintiff assaulted by police and unlawfully detained in custody for six days – plaintiff suffered permanent injuries.

The plaintiff was assaulted by a police officer for refusing to pay a spot fine and detained in custody without charge for six days. He suffered permanent injuries as a result of the assault. He sued the police officer who assaulted him, the Commissioner of Police and the State, claiming general damages, compensation for breach of human rights, damages for breach of statutory duty, damages for unlawful assault, special damages and exemplary damages. Default judgment was entered against all defendants, with damages to be assessed. This was the trial on assessment of damages.

Abel Tomba v The State (1997) SC518
Andale More and Manis Andale v Henry Tokam and The State (1997) N1645
Jessie Namba v The State (2011) N4396
Lance Kolokol v The State (2009) N3571
John Pias v Michael Kodi & Ors (2006) N2972
Latham v Henry [1997] PNGLR 435
Losia Mesa v The State (2009) N3681
Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364
Nail Lamon & 4 Ors v Snr Const Zakang Bumai & 8 Ors (2010) N3920
Peter Kuriti v The State [1994] PNGLR 262
William Mel v Coleman Pakalia and Others (2005) SC790

1. CANNINGS J: The plaintiff, Wandi Dope, has successfully sued the defendants – a police officer based in Madang, the Commissioner of Police and the State – for breach of human rights. Default judgment has been entered. He has come to the court for an assessment of damages. His human rights were breached in Madang on Wednesday 9 April 2003. He was at the town market and the police alleged that he was unlawfully in possession of betel nut and ordered that he pay a fine on the spot. When he refused to pay, the police arrested him, took him to Yomba Police Station, detained him for six days without charging him or taking him before a court, assaulted him and denied him food and medical treatment. He has presented unchallenged medical evidence showing that he has, as a result of the assaults, suffered permanent damage to the head, mandible, teeth, thighs and knees and post-traumatic stress syndrome. As judgment has been entered against the defendants, the factual elements of the causes of action as pleaded are taken as proven (William Mel v Coleman Pakalia and Others (2005) SC790). The plaintiff claims:

2. Thus the total amount of damages and compensation claimed is K56,612.00, plus the unspecified amount claimed for breach of statutory duty. In addition the plaintiff seeks interest on the amount awarded.

3. This is intended to compensate the plaintiff for the pain and suffering, humiliation, distress and inconvenience caused by the unlawful actions of the police. The purpose of an award of general damages is to compensate a person; to put them as far as possible in the same position they would have been had they not suffered the injuries incurred because of another person's wrongful conduct. General damages are intended to be neither a reward nor a penalty (Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364). In assessing general damages I have considered my decisions in previous cases that bear some similarity to the present case, summarised in the following table.

ASSESSMENT OF GENERAL DAMAGES: ASSAULTS BY
MEMBERS OF DISCIPLINED FORCES

No	Case	Details	Amount
1	John Pias v Michael Kodi & Ors (2006) N2972 Mt Hagen	Three Defence Force soldiers unlawfully assaulted the plaintiff in a hotel – he lost the sight of one eye – general damages were assessed as representing the pain and suffering and loss of amenities of life associated with his loss of 100% vision in the right eye.	K60,000.00
2	Lance Kolokol v The State (2009) N3571 Madang	The plaintiff, an innocent man, was walking with friends near a public road – when he saw the police he ran away and was chased on suspicion of being involved in an armed robbery – he was caught, assaulted and shot in the leg and foot, then detained in custody for three days before being taken before a court, which granted him bail.	K25,000.00
3	Losia Mesa v The State (2009) N3681 Kimbe	The plaintiff was working in his office at a local-level government when the deputy mayor walked in accompanied by armed police officers and demanded that the plaintiff leave immediately and hand over the keys to his office and an official vehicle – when he refused to comply with the demand the police officers assaulted the plaintiff – forced him to the police station and on the way he was again assaulted – also assaulted on arrival at the station – suffered multiple soft tissue facial injuries and eye injury, leading to blurred vision and reduced visual acuity.	K25,000.00
4	Nail Lamon & 4 Ors v Snr Const Zakang Bumai & 8 Ors (2010) N3920 Madang	The police entered a village at 4.30 am and without lawful authority arrested and detained the plaintiffs on suspicion of involvement in a crime – the police subjected the plaintiffs to torture and inhuman treatment over a three-week period and unlawfully detained them.	K100,000.00 K100,000.00 K100,000.00 K70,000.00 K70,000.00
5	Jessie Namba v The State (2011) N4396 Madang	The plaintiff was shot in the leg by the police, for no good reason – he was detained in custody and then taken to hospital and his leg was amputated below the knee.	K150,000.00

4. After comparing this case with the above cases and having regard to the nature of the incident in which the plaintiff was injured, the period of unlawful detention and the nature and extent of the permanent injuries he suffered, I award general damages of K20,000.00.

5. The plaintiff seeks compensation for breaches of human rights that are argued to be conferred by the following provisions of the Constitution:

6. Not all of those provisions confer rights. Sections 38 and 39 are interpretative provisions. They do not provide for a cause of action, as such. Sections 36, 37, 42 and 52, by contrast, do confer discrete human rights, which were breached by the police on a number of different occasions:

7. On each of those occasions, one or more of his human rights were breached. I will allow K3,000.00 for each occasion so the amount awarded for breach of constitutional rights is K12,000.00.

8. The plaintiff relies on Section 197(1) (functions of the Police Force) of the Constitution, which states:

The primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament—

(b) to maintain and, as necessary, enforce the law in an impartial and objective manner.

9. It is argued that the police breached the statutory duty imposed by Section 197 and that the plaintiff should be compensated with damages. This part of the plaintiff's claim is misconceived. There is no doubt that in arresting, detaining and assaulting the plaintiff in the manner that they did, the police breached their duty of enforcing the law in an impartial and objective manner. However, Section 197 does not by itself create a cause of action so there is nothing for which the plaintiff is to be compensated.

10. The plaintiff claims K5,000.00 for unlawful assault. I refuse this claim as he is already being compensated for injuries and stress caused by the assaults through the award of general damages and compensation for breach of human rights. I am not finding that he was not unlawfully assaulted (as the tort of assault has been established), but simply saying that he cannot be doubly compensated for the same wrongful act.

11. 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 of cases, 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.

12. The present case did not involve an unauthorised police operation. An individual police officer has been named as a defendant. The case falls more within the first category than the second. Therefore the circumstances of the case do not exclude the awarding of exemplary damages. I must also 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.

13. 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? The purpose of an award of exemplary damages is to punish the defendant and vindicate the distinction between a wilful and an innocent act (Latham v Henry [1997] PNGLR 435). The purpose is not to unjustly enrich a plaintiff, but symbolise public indignation of the defendant's conduct (Peter Kuriti v The State [1994] PNGLR 262). I have also considered the view expressed by Judges in a number of cases that if exemplary damages are to be awarded for human rights breaches 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). Mr Mapiso, for the State, submitted that such an approach should be taken in this case. Too many police officers are misbehaving. When their wrongful conduct becomes the subject of court proceedings they hide under the cloak of the State. The People are being made to pay for the wrongs of individuals. Only when individual police officers are forced to pay out of their own pockets for their illegal practices will they learn that they must not commit such wrongs. I have seriously considered upholding that submission by making an award of exemplary damages against the police officer named as the first defendant, Const Michael Malai, who was principally responsible for assaulting and otherwise breaching the plaintiff's human rights. However, for two reasons I will not do so. First it is unlikely that that defendant will have the financial capacity to pay the award of damages and great hardship and inconvenience may be caused to the plaintiff if he is required to pursue the award of damages against an individual. Secondly, when a police officer commits human rights breaches this can be regarded as a product of inadequate training and education on the part of his employer, the State; so it is not unfair to expect the State to pay for his wrongs.

14. I consider that the breach of constitutional rights was so severe and continuous as to warrant an award of exemplary damages. I will award the amount claimed: K10,000.00.

15. The plaintiff claims K11,612.00 for medical bills and the cost of food, accommodation and transport connected with his pursuing this case. The problem with this part of the claim, exposed by Mr Mapiso, is that there is no mention of special damages in the statement of claim. I will uphold this argument as the proceedings have been commenced by writ of summons, so the rules of pleadings should be enforced. Nothing is awarded.

16. Interest will be awarded at the rate of 8 per cent per annum on the total amount of damages 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, 9 April 2003, to the date of this judgment, a period of 8.83 years, by applying the following formula:

17. 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 accordingly.
______________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendants

National Court of Papua New Guinea

Dope v Malai [2012] PGNC 367; N4574 (10 February 2012)