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Wani v Kanol [2016] PGNC 341; N6559 (24 November 2016)

N6559

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 918 OF 2002

BETWEEN:

JOHN WANI
Plaintiff

AND:

SENEN KANOL & MARTIN KIGARE
First Defendants

AND:
ALLAN KUNDI, The Provincial Police Commander, Western Highlands Province
Second Defendant

AND:
SAM INGUBA, Police Commissioner of Papua New Guinea
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Mount Hagen: Poole, J

24^th November 2016

EVIDENCE - Medical Report expressing opinion about loss of body function must express loss as measured objectively by tests and state tests andresults – general expressions that a function was “greatly restricted” no evidence.

Medical Report stating “I award him _____ % loss” not evidence on which Court can act – loss must be expressed as percentage of whole body function of and be arrived at after recognised objective tests.

PNG cases cited:
Albright Ltd v Mekeo Hinteland Holdings (N5774)
Pamenda Ipi Pangu v Sgt Mak Korr & Ors (N6069)

Counsel:
Mr. Kak, for Plaintiffs
Mr. Akia, for the State

Background

24^th November, 2016

1. POOLE J: On the 15^th of July 2002 the Plaintiff filed a document entitled Statement of Claim. It seeks damages and pleads he was wrongfully imprisoned, unlawfully deprived of his property (a motor vehicle) assaulted by “an unspecified number of policemen” and, as a result “suffered injuries and disabilities” particulars of which were provided. He claims that his name, status and character as a good law-abiding citizen has been tarnished, he wrongfully spent 10 days in custody for a crime he did not commit, he suffered loss of his motor vehicle valued at more than K40, 000.00, he had to pay legal fees defending the charges amounting to more than K1, 000.00, he incurred monetary special costs and suffered loss of use of his motor vehicle.
   
2. On the 17^th of April 2003 the Solicitor General entered a Defence which, for the most part, instead of pleading a summary of material facts, as required by Order 8 rule 8, consists of a long rambling argument (in spite of Order 8 rule 9 which requires pleading to be as brief “as the name of the case admits”) and evidentiary allegation. That such a document should be filed in the name of the Solicitor General is a matter of shame to a statutory office charged with the important function (under section 13 of the Attorney General Act) of appearing as advocate for the State before the Courts of Papua New Guinea under instruction from the Attorney General.
   
3. The Plaintiff’s lawyer then amended the Writ and Statement of Claim and added the First Defendants as parties and inserted the names of the Provincial Police Commander and Commissioner of Police. Lawyers should not file pleadings unless they have checked that the documents do not contain patent pleading defects.
   
4. On the 10^th of July 2004 the Plaintiff, by leave, again amended the Statement of Claim – mostly adding particulars of injuries suffered. Thereafter nothing was done until the Plaintiff filed an affidavit by Dr John McKup which, as evidence, is of no value. It is hearsay and expresses opinions about psychological conditions without establishing his expertise to express an opinion on such matters. It contains such material as “spine movements were greatly restricted” without any evidence of what, if any, clinical tests he had administered to reach that view. He then proceeds to “award” percentage loss without any reference to proper tests or acknowledgment that such a loss must be measured as part of whole of body function. This “report” cannot be accepted as expert evidence.
   
5. Then, on the 30^th of August 2014, the Plaintiff filed another affidavit by Dr McKup which annexes A “Medical Report” of almost identical wording to the previous but, in his later affidavit, he states, “I am a very busy. I may not attend Court. The Court can use my affidavit. I have no reason to tell lies.” Neither this version of the Medical Report or his affidavit has any relevant evidentiary value.
   
6. On the 10^th of July 2014 the Plaintiff filed an affidavit of a different medical practitioner. This affidavit by the reviewing Doctor annexes a Medical Report which gives a more satisfactory expert assessment of the whole of the body impairment - including hearing, jaw impairment, shoulder impairment, lumbar spine impairment and arrives at a whole of body impairment of 25%. Is it notable, however, that this report contains the following:

REMARKS; His complaints are sequelae of the injuries sustained from the assault. Now and then, he experiences dizziness and headaches every time he remembers the harrowing experience he had with the assault. However, while the symptoms may be true, they do not affect his activities of daily living, his social and interpersonal function. (emphasis added)

7. The evidence at trial which took place on the second of July 2014 included the Plaintiff’s testimony and the affidavits of the two Doctors which were also admitted in evidence. The Defendant filed three affidavits; those of Paulus Babu, Jason Maio and Canute Gutok and Mr Gutok also gave oral evidence.
   
8. The Plaintiff’s claim may be conveniently summarised as;
   
   • On the 29^th of May 2001 the Plaintiff was charged with possession of a stolen motor vehicle, the motor vehicle was impounded and the Plaintiff released on bail.
   • On the 19^th of June 2001 he was again arrested by the Police, beaten up and taken to Baisu Correctional Institution where he was detained for 10 days.
   • He was seen by Dr McKup on a date unstated but the medical report is dated the 2^nd of July 2001 – two weeks after he says he was severely beaten.
   • He says the injuries he suffered left him with psychological defects (which he claims as 20% of an unspecified element – unstated to whether it is whole of body function or something else), 40% loss of function of the jaw, 20% loss of “effective chest wall functioning” and 40% loss of spinal function from the injuries he claims were inflicted on him by Police.
   • He seeks special damages, exemplary damages and general damages. The general damages are sought for loss of use of the motor vehicle, damages to “his name, status and character as a good law abiding citizen,” wrongful detention for “10 days in custody for a crime he did not commit.”
     
9. I shall deal with the claim for damages for wrongful detention. The Plaintiff’s evidence, unsubstantiated in any particular, was that he was confined in Baisu Correctional Institution for 10 days and 10 nights.
   
10. The Plaintiff was not in custody of the Police Department while in Baisu. He was in the custody and control of the Correctional Services. There was no evidence of wether he was committed there by Warrant or Order of a Court, or any other “competent authority” under a law in force at the time (as referred to in section 7 of the Correctional Service Act). There is no pleading that he was wrongfully detained by Police – to the contrary, it is pleaded “he was release on police bail of K200.00.” It is pleaded, and the Plaintiff’s evidence was, that he was taken to Baisu Correctional Institution and detained there for 10 days. I note, also, that he does not plead a claim for damages for wrongful arrest against the Police.
    
11. There is no clear evidence of whether, the Plaintiff was detained in Baisu by Warrant or by Order of a Court or a “competent authority” and, more critically, there is no claim against any Officer of the Correctional Service. The Claim for Damages for wrongful imprisonment must fail. There are no facts pleaded to substantiate such a claim, nor is there evidence to support such facts had they been pleaded.
    
12. The Plaintiff also claims “loss of his motor vehicle values (sic) at more than K40, 000.00.”
    
13. I listened carefully to the Plaintiff’s evidence of how he acquired the motor vehicle. His account of how and for how much he bought the motor vehicle varied. In his affidavit of the 8^th of August 2007 he says “I bought” the motor vehicle – no statement of where, when or from whom. But he does say he bought it for K19, 000.00 – which is far from the sum pleaded in the Statement of Claim.
    
14. I note, from Police evidence (both of Snr Constable Martin Kigare (23^rd of June 2004), Constable Paulus Babu, Police Constable Gutok and Senior Constable Jason Maio) that this motor vehicle was stolen on several occasions. The first was from the Forestry Department; the second time from where it had been locked up at the Kimininga Police Barracks. After the second theft Police recovered the vehicle from Madang where it was in the process of being resprayed a different colour. Two Police Constables interviewed a Mr P Ropa who was doing the work and he stated the motor vehicle had been brought to him by the Plaintiff.
    
15. I am unconvinced by the Plaintiff’s flexible account of how he acquired the vehicle – especially as he, who was presented to Court as an educated man and former school teacher – had not a single scrap of paper to verify his account of the purchase – no agreement, no receipt from the unnamed vendors for money received in the Pope Paul Park - nothing. I am entitled to take into account also, and I do, the fact that the vehicle was taken from Police custody and then driven to Madang and delivered to Mr Ropa by the Plaintiff with instructions to have it resprayed another colour. I consider that evidence in light of the fact (of which I am entitled to take judicial notice) that there are, in Mt Hagen, a number of motor works which can do lawful respray work for customers of their own vehicle. Why travel to Madang?

16. In short, I am not convinced, on the balance of probabilities that the Plaintiff was lawfully in possession of the motor vehicle. I find, that the Police were within their powers to arrest the Plaintiff because there was, on the face of it, “reasonable grounds” to believe (section 3 of the Arrest Act) or to have “reasonable suspicion” (section 42 (3) of the Constitution) that the Plaintiff had committed the offence of receiving stolen property.
    
17. In view of this finding, the Plaintiff has no valid claim for damages for loss of motor vehicle. For the sake of completeness I add that there is no sufficient credible evidence of the value of the motor vehicle and, in the absence of a quantified loss, there can be no finding of liability ( see Pamenda Ipi Pangu v Sgt Mak Korr & Ors (N6069) and Albright Ltd v Mekeo Hinteland Holdings (N5774))
    
18. I have already said that there is no evidence the Plaintiff was detained by Police or in Police custody. The detention, such as it was put before the Court, was by Correctional Institution Service staff – none of whom are parties. The claim for damages for wrongful detention must fail for lack of evidence.
    
19. There is one more fundamental problem with this claim. In order to establish vicarious liability in the State for the actions of its servants or agents, it is critical to plead and to show by evidence, that the actions the Plaintiff complained off were committed by alleged tortfeasor (s) in his capacity as a servant or agent of the principal and while acting within the scope of his duty as a servant or agent. There is no such plea in this matter. No vicarious liability can be attributed to the State unless it is pleaded that (police) tortfeasors were acting within the scope of their authority and carrying out their duty as servant or agent of the State when the acts of which the Plaintiff complains were committed.
    
20. Furthermore those facts (which, though pleaded are NOT evidence) are to be substantiated by sworn and admissible evidence sufficient to convince the Court, on the balance of probabilities, that the facts pleaded took place.
    
21. The final claim the Plaintiff makes is for damages for assault and personal injuries. He says were inflicted on him by an unspecified number of policemen attached to the Mt Hagen Police Station. Neither in his oral testimony or his affidavit evidence does the Plaintiff identify the Police who he says assaulted him. Indeed, I found the whole of his evidence on this aspect of his claim to be utterly unconvincing. Even had the pleadings alleged facts of an assault on him by police acting apparently in the course of their duty, the Plaintiff’s evidence would have fallen far short of convincing me, as the Tribunal of fact, that the evidence was reliable or credible.
    
22. For the forgoing reasons I find, and I am satisfied on the balance of probabilities, that the pleading of the claim has failed to establish the servants agency between the first three Defendants named on the one part and the fourth Defendant (State) on the other. I further find the Plaintiff has failed to discharge the evidentiary burden of convincing me, as the Tribunal of Fact;
    
    1. That his arrest was illegally carried out without reasonable cause or suspicion; or
    2. That he was unlawfully deprived of possession of a motor vehicle of which he was the lawful owner; or
    3. That he was unlawfully assaulted by persons who were identifiable as servants or agents of the State acting in accordance with their duty; or
    4. That there is satisfactory evidence of the identity of any individual that the Plaintiff claims assaulted him.
       
23. Accordingly, I dismiss the Plaintiff’s claim.
    

The Formal Orders of the Court are;

1. The Plaintiff’s claim is dismissed
2. The parties shall bear their own cost.

________________________________________________________________
Paulus M. Dowa Lawyers : Lawyers for the Plaintiffs
Solicitor General : Lawyers for the Defendant