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Solmein v Lim [2020] PGNC 288; N8448 (12 August 2020)

N8448

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR)NO 3 OF 2017

BETWEEN:
SMAILA SOLMEIN
Plaintiff

AND:
SENIOR CONSTABLE OBERT LIM
First Defendant

AND:
CONSTABLE NATHAN KERRY
Second Defendant

AND:
CONSTABLE MMICHAEL MALAI
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Madang: Narokobi J
2020: 9^th July, 12^th August

DAMAGES – assessment of damages – general damages – special damages – exemplary damages – breach of human rights – unlawful actions of police – level of swearing denigrating the female gender.

The plaintiff was driving his father’s car in the company of his two brothers, when he was stopped by the police. He was asked for his licence. When he said he left it at home, the first defendant, in full view of the other defendants started to assault the plaintiff. He punched him repeatedly, and when he fell down, he kicked him. He then got a rock and hit the plaintiff on his ears. He then threw the rock at the plaintiff, hitting him on his hip. Subsequent medical report did not show permanent injuries, nonetheless the attack was vicious. Throughout the ordeal he was sworn at, and then locked up for three (3) hours before being released on bail. The plaintiff and his father and brothers were threatened to be killed if they took the matter to court. His phone was confiscated when he wanted to call his father on the pretext that it was being checked for pornographic material. Liability was determined by default and the matter is now before the court for assessment of damages.

Held:

(1) This was a case where compensation for breaches of human rights should be assessed separately from general damages (Kolokol v Amburuapi (2009) N3571 followed).

(2) The Kolokol approach is not universal and relevant considerations include the fundamental importance of human rights and freedom which have constitutional guarantee in Papua New Guinea, and in this particular case, the Kolokol approach will enhance the enforcement, protection and promotion of human rights and freedoms. But again, each case should be dealt with on its own merits.

(3) General damages were assessed at K10, 000.00.

(4) The plaintiff’s human rights were breached on six distinct occasions:

• When he was assaulted;
• When he was sworn at several times;
• When he had his mobile phone confiscated and searched;
• When he was denied opportunity to speak to a relative;
• When he was locked up for three hours which was not

warranted under the circumstances; and

• When he was threatened to be killed if his family took the

matter to court.

(5) On each of those occasions, six (6) of his human rights were breached:

• Freedom from inhuman treatment (Constitution, s 36);
• right to the full protection of the law (Constitution, s 37(1));
• right to be treated with humanity and with respect for the

inherent dignity of the human person (Section 37(17);

• Proscribed acts (Section 41);
• The right of a detained person to be permitted whenever

practicable to communicate in private with a member of his family and a lawyer (Section 42(2)(b)); and

• Freedom from arbitrary search and entry (Section 44)

(6) He was awarded K2, 000.00 x 6 = K12 000.00 compensation.

(7) Special damages were assessed at K425.00.

(8) The breach of constitutional rights showed a wanton disregard of constitutional rights and the use of insulting and sexist words amidst a climate of escalating gender-based violence warrants an award of exemplary damages of K5, 000.00.
(9) The total amount of damages awarded was K27, 425. In addition, interest of K2,605.36 is payable, making the total judgment of K30,030.36.

Cases Cited:
Chapok v Yali (2008) N3474
Coecon Ltd (Receiver-Manager Appointed) v National Fisheries Authority of Papua New Guinea (2002) N2182
David Kofowei v Augustine Siviri and Others [1983] PNGLR 449
Felix Kua v. Clement Patiken (2010) N4103
Kolokol v Amburuapi (2009) N3571
Patai v Niugini Lumber Merchants Pty Ltd (1997) N1602
Pawa Kombea v Semal Peke [1994] PNGLR 572
Teine Molomb v The State (2005) N2861

TRIAL

This is a trial on assessment of damages.

Counsel

Felix Alai Solmien, with leave of the court for the Plaintiff
No appearance for the defendants

JUDGEMENT

12^th August, 2020

1. NAROKOBI J: On 7 February 2020, default judgement was entered against the defendants on liability with damages to be assessed pursuant to Order 12 Rules 25(b) and 28 of the National Court Rules. The trial was conducted on 9 July 2020. This is the court’s decision on assessment of damages.

A BACKGROUND

2. The plaintiff claims damages for physical and verbal assault and breaches of his human rights and freedoms by the police.

3. Initially the defendants were:- Senior Constable Orbert Lim, first defendant; Constable Nathan Kerry, second defendant; Constable Michael Malai, third defendant; Constable Cosmas Kafur, fourth defendant; Sergeant Willie Marita, fifth defendant; Constable Albert Pomat, six defendant; Constable Leroy Makel, seventh defendant; The Independent State of Papua New Guinea, eighth defendant.

4. On 27 July 2019, the fourth, fifth, sixth and seventh defendants were removed as parties by the court on 27 July 2019. The first, second, third and eighth defendants remain as defendants.

5. At the time of the incident on 4 November 2015 the plaintiff was a Grade 10 student at Madang Christian Academy in Madang. The police assault and breaches of his rights and freedoms occurred in Madang. He relies on his statement of claim and his own affidavit filed on 21 April 2020 to support his claim for damages.

6. The plaintiffs claim is corroborated by the affidavits of: Daryl Solmein (filed 21 April 2020); Vance Solmein (filed 21 April 2020); Felix Solmein Alai (filed 21 April 2020) who commenced separate proceedings naming the same defendants (WS (HR) No 4 of 2017, WS No 5 of 2017 and WS (HR) No 6 of 2017,respectively). They were all present on the day when the violation of the plaintiff’s rights occurred, and they have filed proceedings separately claiming breaches of their rights too. Trials were argued on the same day and the affidavit materials were relied on to support each of the proceeding. I consider these affidavits too, as I am permitted to do so pursuant to section 44(b) of the Evidence Act 1975. Notice was also given of the use of these affidavits pursuant to Section 35 of the Evidence Act.

7. After entry of default judgment, all issues of liability are considered to be determined (Coecon Ltd (Receiver-Manager Appointed) v National Fisheries Authority of Papua New Guinea (2002) N2182 and Patai v Niugini Lumber Merchants Pty Ltd (1997) (N1602).

8. I have examined the pleadings and I’m satisfied that there is a cause of action and so now I turn to determine the relevant damages based on the evidence provided to the court (Felix Kua v. Clement Patiken (2010) N4103).

9. I have also been greatly assisted by Mr Felix Solmein Alai’s comprehensive submissions. He provided a good background of the proceedings, the evidence was credible and the case law cited in relation to assessment of damages for police brutality and breach of constitutional rights were relevant. The amount claimed was reasonable and were not exaggerated considering that it was not defended.

10. In summary the plaintiff claims the following:

11. The pertinent facts substantiating each claim will be discussed under each head of damage claimed.

B ISSUES

12. In assessing damages, I have reviewed a number of cases and I settle with the approach of Cannings J in Kolokol v Amburuapi (2009) N3571. His Honour took the same course the court took in David Kofowei v Augustine Siviri and Others [1983] PNGLR 449 and Pawa Kombea v Semal Peke [1994] PNGLR 572.

13. The following are the issues I will consider:

• Whether the plaintiff is entitled to general damages and if so, for how much?;
• Whether the plaintiff is entitled to damages for breach of constitutional rights, and if so, for how much?;
• Whether the plaintiff is entitled to special damages and if so, for how much?;
• Whether the plaintiff is entitled to exemplary damages and if so, for how much?; and
• Whether the plaintiff should be awarded interest on any damages assessed and if so, at what rate and for what period?
• Whether the plaintiff is entitled to ]][[[bbvbvv
  

Following facts arose in Kolokol as recounted in the headnotes:

“The plaintiff was walking with friends near a public road. When he saw the police, he ran away. He 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. He sued the police officers who assaulted and shot him, and the State, claiming general damages, compensation for breach of human rights, special damages and exemplary damages. Default judgment was entered against the defendants, with damages to be assessed.”

1. His Honour awarded damages for each separate cause of action pleaded, that is general damages, for each occasion the plaintiff’s rights were breached, special damages, exemplary damages and interests.
   
2. The alternative approach is to award a global sum for all damages suffered as was what the court did in Teine Molomb v The State (2005) N2861. The plaintiff has urged the court to adopt the approach in Kolokol.
   
3. As I said above, I take the approach in Kolokol.I do so bearing in mindthat it is not a universal approach and each case ought to be considered on its own merits. I take the Kolokolapproach as I consider the cause of action has been sufficiently pleaded, there is good evidence of the claim and that evidence is corroborated. All in all, considering the fundamental importance of human rights and freedom which have constitutional guarantee in Papua New Guinea, the Kolokol approach will enhance the enforcement, protection and promotion of human rights and freedoms, at least in so far as this case is concerned. But again, each case should be dealt with on its own merits.
   

D APPLICATION OF THE LAW TO THE ISSUES

1. First Issue - General Damages for Assault, Pain and Suffering
   
4. The plaintiff claims general damages for the actions of the defendants. In summary these are the acts of the defendants which resulted in their negligence and breach of the plaintiff’s constitutional rights. These facts are pleaded in the statement of claim and supported by the plaintiff’s own affidavit filed 21 April 2020 and the other corroborating affidavits I referred to above.
   
5. On 4 November 2015, the plaintiff was driving his father’s car when he was shouted at by the police who were in another vehicle, to stop. In the vehicle with him were his brothers Daryl Solmein and Vance Solmein. After he stopped at Tusbab Beach Road in Madang at about 2.36pm, he was asked to produce his licence. When he told them that he did not have his licence on him as he forgot to bring it, the first defendant started to swear at him. Following that an intense period of assault ensued. The plaintiff was punched by the first defendant all over his head and face,and he fell down. After he fell, he was repeatedly kicked using the official police issue boots, and then hit with a stone on his ears when he stood up again. The same rock was thrown at him, hitting him on his hips.
   
6. There was a total of seven policemen including the first defendant. When the first defendant was assaulting the plaintiff, the police formed a ring around the first defendant and provided the security for the first defendant to continue his relentless attack.
   
7. The medical report from Dr Villa Watch dated 9 November 2015 provides the details of the assault:
   

“He was punched on his right eye once, then several times on his head, including both ears. After kicking him on his leg, he fell to the ground; the officer started kicking ng him with the police issued boots on his head and ear...blood started oozing from both his external ears sustained from the bruises. From about 2 metres away, the officer went to shoot him with a rock which measures about 14cam long and 5cm wide. The rock hit him on the right posterior hip. He did not lose consciousness and did not bleed from his nose. He was unable to open his mouth fully and was on a soft diet for a day. He was also unable to write using his dominant hand (left), because his third digit was injured while trying to protect his head using his hands.”

8. The conclusion of the medical examination reported the following:
   

“He appeared well kempt and seems to be in no obvious distress...This man sustained bruises to his right eye and left 3^rd digit. He also has abrasions to his ears, neck and right posterior hip. These findings are suggestive of a blunt force trauma and support his statement of being physically assaulted”

9. After he was assaulted, he was taken to the police station and charged. He had his mobile phone confiscated and checked without any warrant of search for pornography and it was later returned.
   
10. Throughout the ordeal on at least four occasions he was sworn at by the first defendant, using the words “kaikai kan...” (“eat vagina...”) to preface his statements to the plaintiff. It began when he was stopped at the roadside, and then continued to the police station.
    
11. At the police station he was not afforded an opportunity to speak in private with a family member, lawyer or friend before he was charged.
    
12. I turn now to assessing how much damages he should be awarded. I have had recourse to all the affidavits and the statement of claim. The statement of claim is adequately pleaded and the evidence supports what is pleaded. The evidence is also corroborated. I am satisfied that the plaintiff is entitled to general damages for pain and suffering for the assault on him.
    
13. For general damages for the nature of injuries the plaintiff sustained, in that it did not require hospitalisation, I take as the starting point the case of Chapok v Yali(2008) N3474. There, the National Court awarded K5,000 for the following incident:
    

“3. He was getting ready to tell them that the vote of no-confidence had been postponed. But before he started, Mr Yali verbally abused him. He called him a "bastard" and an "arsehole". He accused him of associating with the Ambenob LLG president the previous night. In response to the unfriendly atmosphere Mr Chapok got up to leave. Mr Yali stopped him. He punched him several times in the face, drawing blood and causing him to fall to the floor. Another member of the group, Fred Maliupa, the Usino LLG president, also punched Mr Chapok.”

14. I take the present facts of the case, as a little more serious than the one in Chapok as the assault was more prolonged, a rock was used twice and there was repeated swearing. Although he did not suffer any permanent injuries, the viciousness of the attack, the continuous swearing and the fear instilled in the victim needs to be given some weight.There is no medical evidence of psychological harm, but no doubt, this cannot be discounted, such as post-traumatic stress disorder considering the viciousness of the attack and the way it was carried out through a pack-mentality arrangement. I award K10,000 for general damages.
    
    2. Second Issue – Damages for Breach of Constitutional Rights
       
15. At the police station, when the plaintiff wanted to use his phone to contact his father, the phone was taken from him on the pretext that the first defendant had to check it for pornography. After checking and finding nothing illegal, the first defendant returned his phone. The plaintiff’s father arrived after he was informed by other persons.
    
16. The evidence also show that the first defendant threatened to charge them and kill him and his brothers and father if they took the matter to court. He said (in pidgin), but translated as follows:
    

“You eat your mother’s vagina! Your father wants to act smart and take us to court, is he? I will charge your father for obstructing police.”

17. Later the first defendant said again (in pidgin) but translated as follows:
    

“You listen! Eat your mother’s vagina! We are policemen from Sisiak! Don’t get yourselves confused! Your father wants to act smart and take us to court, is he? Watch out! I will kill all of you! I will take all your lives.”

18. The plaintiff was then locked up for three (3) hours with no good reason before he was released on bail.
    
19. From the facts provided above, I conclude that the following rights and freedoms were breached.
    

20. I accept the plaintiff’s submission based on the corroborated evidence before the court, that these rights were breached on six(6) occasions:
    • When he was assaulted;
    • When he was sworn at several times;
    • When he had his mobile phone confiscated and searched;
    • When he was denied opportunity to speak to a relative;
    • When he was locked up for three hours which was not

warranted under the circumstances; and

• When he and his brothers and his father were threatened be

killed if they took the matter toCourt.

21. I further accept the plaintiff’s submission and follow the court’s ruling in Kolokoland award K2,000 for each of the occasions of the breach and award a total of K12,000.
    
    3. Third Issue – Special Damages
       
22. Special damages is claimed for K425 being for medical costs. It is reasonable and it is substantiated by the evidence before the court and I award this sum.
    
    4. Fourth Issue – Exemplary Damages
       
23. For exemplary damages, I take into account the requirement of Section 12 of the Claims By and Against the State Act 1996.
    

“12. Judgements Againstthe State.

(1) 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.”

24. I also take into accountthe court’s ruling in Kolokol and consider the following circumstances as warranting an award of exemplary damages:
    
    • The police were in full uniform, performing normal duties;
    • There was no resistance from the plaintiff;
    • The assault also included being hit with a rock on his head;
    • The plaintiff was sworn at several times;
    • There were breaches of the plaintiff’s constitutional rights on at least six(6) occasions (referred to above); and
    • From the corroborated evidence, the first defendant threatened to kill the plaintiff and his brothers and father if they took the matter to court; and
    • The continuous use of vulgar, sexist and insulting language.
      
25. The behaviour and language of the police were deplorable, and an award of damages for exemplary damages will demonstrate to him and his employer, that this will not be tolerated by the court. There was absolutely no reason for the first defendant to continuously use foul language in the exercise of his duties. In a time when society is concerned with escalating gender-based violence, where according to some studies, two out of every three women in Papua New Guinea are subject to violence (http://www.femilipng.org/wp-content/uploads/2018/10/PNG-GBV_Strategy-2016-2025_150816.pdf), the use of language objectifying the female gender as a symbol of denigration is uncalled for.
    
26. Why policemen readily use the female genitalia as a term of insult while concurrently denigrating the sacrosanct societal and biological role of the mother, almost in automated response, without thinking how the words “eat vagina” and “eat your mother’s vagina,” is perceived by the public about their personal integrity and as officers of government, is a mystery. But it speaks to the mind of a cultural milieu that needs to change. There seems to be an endless sickening fascination with the female genitalia by the first defendant, prefacing his statements with “eat vagina...”. The repeated use of these words time and time again, can disturbingly plug the ears of society to the repulsive and shocking insinuations these words convey. Accordingly, their repeated use should not desensitize the court, much less society in general, each time they are uttered. It must stop. And it starts with the officers of the Independent State of Papua New Guinea.
    
27. In light of these considerations I award exemplary damages to be paid by the State. Theplaintiff submits that he should be entitled to K4,000. I accept the plaintiff’s submission as reasonable but add another K1,000 in light of the foregoing and award the sum of K5,000.
    
28. The total damages I award are therefore as follows:
    

5. Fifth Issue - Interest
   
29. For interest, I note that it is a discretionary matter for me to consider. I do not see anything speaking against the awarding of interest. But I note that I am confined to a 2% maximum interest rate pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 for claims against the state.
    
30. I will award interest on the total sum that is commencing from the date when the cause of action accrued to the date of judgment, that is from 4 November 2015 to 12August 2020, and calculate it as follows:
    
    • Yearly interest on K27,425 damages (general damages, damages for breach of constitutional rights, special and exemplary damages) = K2,194.00 (K24,425 x 0.02x4);
    • Monthly interest = K411.36 ((K548.50/12 x 9);
    • Weekly interest = nil (rounded off to the nearest month, ie 4 August 2020)
    • Total interest is K2,605.36(made up of: K2,194.00 (04November 2016 – 04 November 2019 – 4 years) + K411.36 (9 months, 04 November 2019 to 12August 2020).
      
31. The total interest I award at 2% from the date the cause of action arose to the date of judgement is K2,605.36.
    

D CONCLUSION AND ORDERS

32. Since the police who committed the illegal actions were acting in the course of duty, and the plaintiff has pleaded that their employer is vicariously liable, I hold the state responsible for the damages awarded.
    
33. In consideration of the facts, the issues and the law, I make the following orders in relation to this matter:
    
    1. Fourth Defendant (the State) pay the plaintiff a total judgement sum of K30,030.36 being total damages for general damages, breach of constitutional rights, special damages, exemplary damages and interest.
    2. Interest is to accrue at the rate of 2% per annum for any amount not paid to the plaintiffs within 30 days from this order.
    3. Fourth defendant (the State) pay the plaintiff’s costs of the entire proceedings, such costs to be taxed if not agreed.

4. Time is abridged.

Judgement and orders accordingly.
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