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Dingle v Vamamberi [2021] PGNC 15; N8705 (20 January 2021)

N8705

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HR (WS) NO 43 OF 2018

BETWEEN:
ANDREW DINGLE
Plaintiff

AND:
CONSTABLE EPHRAIM VAMAMBERI
First Defendant

AND:
BEN NANOE as MADANG PROVINCIAL POLICE COMMANDER
Second Defendant

AND:
GARY BAKI POLICE COMMISSIONER OF PAPUA NEW GUINEA
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Madang: Narokobi J
2020: 9^th October
2021: 20^th January

DAMAGES – unlawful actions of police - assessment of damages – general damages – breach of human rights - special damages – exemplary damages

The plaintiff a resident of Madang, was driving his car at night when he was approached by the police from another vehicle who then directed him to go to the police station in town. At the station, he was assaulted and his vehicle impounded and had his personal information taken without being charged. After unsuccessfully requesting the police to release his vehicle, he obtained a court order, after which the car was released. Following the release of the car, the police continued to approach the plaintiff despite being informed on a number of occasions of the existence of the restraining order.

Held:

(1) The temporary orders issued on 18 December 2018 is made permanent.
(2) Claims for general damages, special damages and economic loss are dismissed as per the order on liability of 19 October 2019.

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

(4) 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.

(5) The plaintiff’s human rights and freedoms were breached on eight (8) distinct occasions:

• Compelling him to go to the station without any lawful reason, thereby depriving him of his liberty;
• Failing to charge the plaintiff within a reasonable period of time;
• Failing to inform him or his lawyer in a language he understands of the charges upon which he is arrested and brought to the police station;
• When he was physically assaulted;
• When he was verbally assaulted with insulting words;
• When he had his car unlawfully impounded for two (2) months without just cause;
• When he was directed to walk home in the night after his car was unlawfully impounded; and
• When he was intimidated by the police on several occasions to go to court despite the existence of the court order.
  

(6) 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 (Constitution, Section 37(17);
• Proscribed acts (Constitution, Section 41);
• Liberty of the person (Constitution, Section 42);
• Protection from Unjust Deprivation of Property (Constitution, s 53)
  

(7) He was awarded K3,000 each for the first three (3) occasions of the breach. He was awarded K5, 000.00 for the third occasion his rights were breached. For the fourth occasion, K3,000 is awarded. For the fifth occasion K10,000 is awarded. Another K1,000 is awarded for the sixth breach, and for the final breach K5,000 is awarded, therefore a total of K33,000 is awarded for breach of his constitutional rights.

(8) The breach of constitutional rights showed a wanton disregard of constitutional rights and warrants an award of exemplary damages of K10, 000.00.

(9) The total amount of damages payable was K43,000 plus interest of K1,863.33, gives a total judgement sum payable of K44,863.33.

Cases Cited:

Chapok v Yali (2008) N3474.
David Kofowei v Augustine Siviri and Others [1983] PNGLR 449
Dope v Malai (2012) N4574
Felix Kua v. Clement Patiken (2010) N4103
Kolokol v Amburuapi (2009) N3571
Latham v Peni [1995] PNGLR 435
Patai v Niugini Lumber Merchants Pty Ltd (1997) N1602
Pawa Kombea v Semal Peke [1994] PNGLR 572
Solmein v Lim (2020) N8450
Solmein v Lim (2020) N8448
Solmein v Lim (2020) N8449
Teine Molomb v The State (2005) N2861


TRIAL

This is a trial on assessment of damages.

Counsel

Mr B Wak, for the plaintiff
Mr Manihambu for the Defendants

JUDGEMENT

20 January 2021

1. NAROKOBI J: On 19 October 2019, default judgement on liability was entered against the fourth defendant, with damages to be assessed. The trial on assessment of damages was conducted on 9 October 2020. This is the court’s decision after the trial 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. At the time of the incident, the plaintiff who resides in Madang, was an employee of British American Tobacco. On 28 September 2018, around 10pm he was driving his vehicle, a Honda CRV, grey in colour, registration UAB 224, towards Kalibobo Road, Madang, when he was followed by the police in a Toyota Trooper (commonly known as a10 seater) vehicle. They sped up to him and directed him to go to the Madang town police station. He complied, and as soon as he came out of his vehicle at the station, he was assaulted and sworn at. His keys were confiscated by the police, and his vehicle impounded. After all his personal details were obtained by the police and entered in the Occurrence Book, he was not charged with any offence but told to leave his vehicle and walk home in the night. No reason was given for withholding his vehicle, and after two (2) months he obtained a court order in this proceeding for his vehicle to be released by the defendants.
   
4. The plaintiff obtained default judgement and is now before this court seeking damages.
   
5. The court order of 19 October 2019 was as follows:
   

“1.The plaintiff has established a cause of action in breach of human rights as pleaded in the statement of claim under Sections 36, 37, 41, 42 and 53 of the Constitution against the First and Fourth Defendant who are liable in damages and for that purpose there will be a trial on assessment of damages;

2. Other causes of action against the first and fourth defendants are dismissed;

3.The proceedings against the second and third defendants are dismissed...”

6. He relies on his two affidavits filed on 5 May 2019 and two other deponents. The defendants have not filed any defence nor any affidavits in response.
   
5. In summary the plaintiff claims the following:
   

6. The pertinent facts substantiating each claim will be discussed under each head of damages claimed.

B ISSUES

7. I consider the issues to be firstly, whether the interim orders made on 18 December 2018 should be made permanent?
   
8. Secondly, whether the plaintiff is entitled to damages, and if so, for what categories of damages and how much for each category, if any? Depending on how the issue is resolved whether interest should be awarded and at what rate and who should be liable for the judgement sum, if any?

C FACTS

9. The plaintiff’s statement of claim pleads breach of constitutional rights under Sections 36, 37, 41, 42 and 53 of the Constitution. On 19 October 2019, the court upheld the claim and found that those rights were breached and dismissed the other claims.
   
10. The relevant evidence is contained in the following affidavits, which I have tabulated and summarized what is deposed to in each affidavit.
    

11. I conclude from the evidence that the plaintiff’s human rights and freedoms were breached on eight (8) distinct occasions:
    
    • Compelling him to go to the station without any lawful reason, thereby depriving him of his liberty;
    • Failing to charge the plaintiff within a reasonable period of time;
    • Failing to inform him or his lawyer in a language he understands of the charges upon which he is arrested and brought to the police station;
    • When he was physically assaulted;
    • When he was verbally assaulted with insulting words;
    • When he had his car unlawfully impounded for two (2) months without just cause;
    • When he was directed to walk home in the night after his car was unlawfully impounded; and
    • When he was intimidated by the police on several occasions to go to court despite the existence of the court order.
      
12. I am bound by the orders of 19 October 2019, so I do not consider the claim for general damages, economic loss and special damages.
    
13. The facts of the case are therefore from the uncontested evidence of the plaintiff contained in the affidavits deposed to, that I referred to above.
    

D ADDRESSING THE ISSUES

Injunction

10. On 18 December 2018, the court made the following orders:
    

“1. The First and Second Defendants shall forthwith give possession of the Plaintiff’s motor vehicle described as CRV grey in colour, Registration Number UAB 224 pursuant to Order 14 Rule 10 and Order 12 Rule 1 of the National Court Rules.

2.The first and second defendants and all other members of the Police Force are restrained from interfering with the Plaintiffs use and enjoyment of the vehicle described in order number 1 without leave of the National Court.”

11. The issue is whether these orders should be made permanent. I have considered the affidavit material which shows that the vehicle is owned by the plaintiff’s father in-law and gifted to the plaintiff. There is no dispute as to ownership. The defendants offer no contest. As will be apparent below, there was no reason given by the police as to why they impounded the vehicle.
    
12. On the basis of the foregoing, I make the orders issued on 18 December 2018 permanent and order that the first and second defendants and all other members of the Police Force are restrained from interfering with the Plaintiffs use and enjoyment of the vehicle described as CRV grey in colour, Registration Number UAB 224, without leave of the National Court.
    

Damages

13. 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.
    
14. In Kolokol 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.
    
15. 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.
    
16. I take the approach in Kolokol. I do so bearing in mind that it is not a universal approach and each case ought to be considered on its own merits. I take the Kolokol approach as I consider the cause of action has been sufficiently pleaded, there is good evidence of the claim although that evidence is not 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.
    
17. The following are the heads of damages I will consider as I am required to do by the court of 19 October 2019:
    
    • Damages for breach of constitutional rights; and
    • Exemplary damages and if so, for how much.
      
18. I also determine whether the plaintiff should be awarded interest on any damages assessed and if so, at what rate and for what period?
    

E DAMAGES AND COMPENSATION

First Category of Damages – Compensation for Breach of Constitutional Rights

19. As the court has found breaches of specific provisions of the Constitution, I will award appropriate compensation for each of the separate occasions the breaches occurred.
    
20. For depriving the plaintiff of his liberty, I consider that the nature of the breach is somewhat similar to Dope v Malai (2012) N4574. In that case, the plaintiff was detained for six (6) days without any reason and was awarded K3,000. In this case, the plaintiff was forced to go to the station and had his particulars taken, yet he was not charged. Although he was not detained for any extended period, the actions of the police in harassing and intimidating a citizen in dictatorial fashion, requires an award in similar terms, so I award K3,000.
    
21. Since the breaches for failing to charge the plaintiff within a reasonable period of time and failing to inform him or his lawyer in a language he understands of the charges upon which he is purportedly arrested for and brought to the police station and subsequently having his car impounded is connected to the deprivation of his liberty, so I award K3,000 for each of these breaches;
    
22. For the physical assault, 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.”

23. I take the present facts of the case, as similar to the one in Chapok as there is evidence provided but not on the nature and extent of the injuries. l will therefore award K5,000 for the assault.
    
24. A disturbing reality I have dealt with in a number of police brutality cases, is the use of insulting language. I have observed this in Solmein v Lim (2020) N8450, Solmein v Lim (2020) N8448 and Solmein v Lim (2020) N8449. I will therefore award separate damages for verbal assault, and I do so in the sum of K3,000.
    
25. The plaintiff’s vehicle was impounded for two (2) months. The vehicle was not impounded in connection with the commission of a crime. No reasons were offered for depriving the plaintiff of his property. It was only released after he obtained a court order. The plaintiff was denied the use of his property for two (2) months. It caused him great inconvenience. On the basis of the foregoing I will award the plaintiff K10,000 for this breach.
    
26. After the plaintiff’s vehicle was impounded, and assaulted, he was not charged although his personal particulars were taken, he was forced to walk home. It was late at night. He could have been subjected to further attacks at the hands of criminals. I am of the view that there should at least be ann award to demonstrate such harsh treatment, so I award K1,000.
    
27. From the affidavit material, after the vehicle was released by virtue of a court order, the first defendant continued to intimidate and harass the plaintiff and his family. This is despite the existence of a court order. I am inclined to make an award to compensate the plaintiff for such treatment. I award K5,000.
    
28. The total damages I award for breach of the plaintiff’s constitutional rights is therefore K33,000.
    

Second Category of Damages – Exemplary Damages

29. For exemplary damages, I consider Section 12 of the Claims By and Against the State Act 1996.
    

“12. Judgements Against the 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.”

29. I also take into account the court’s ruling in Kolokol and consider the following circumstances as warranting an award of exemplary damages:
    
    • The police were performing normal duties; and
    • There were breaches of the plaintiff’s constitutional rights on at least eight (8) occasions (referred to above); and
    • Lack of respect for a court order.
      
30. In light of these considerations, I award exemplary damages to be paid by the State. The plaintiff submits that he should be entitled to K10,000. The breaches of the plaintiff’s rights were serious, he provided evidence to demonstrate the egregious conduct of the defendants. Of particular concern is the concern that the police can feel that they can without impunity take another person’s property without justifying any reason at all for doing this. I award K10,000 for exemplary damages.
    
31. The total damages I therefore award is as follows:
    

32. The total damages I award is therefore K43,000.
    
33. I proceed now to calculate interests on the total damages awarded at K43,000.
    

F INTEREST

34. 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.
    
35. I will award interest on the total sum of damages awarded commencing from the date when the proceedings were filed (as submitted by the plaintiff) on 23 November 2018 to the date of judgment, that is from 23 November 2018 to 20 January 2021, and calculate it as follows:
    
    • Yearly interest on K43,000 in damages (damages for breach of constitutional rights and exemplary damages) = K1,720 (K43,000x 0.02x2);
    • Monthly interest = K143.33. (K860/12 x 2);
    • Weekly interest = nil (rounded off to the nearest month, ie 20 January 2021);
    • Total interest is K1,863.33. (made up of: K1,720 (23 November 2016 – 23 November 2020 – 2 years) + K143.33 (2 months, 23 November 2020 to 20 January 2021).
      
36. The total interest I award at 2% from the date of filing of the proceedings to the date of judgement is K1,863.33.
    
37. I therefore award a total judgement sum of K43,143.33.

G LIABILITY AND COSTS

38. Since the court has entered liability against the fourth defendant ie the State, I hold the State responsible for the damages and compensation awarded.
    
39. Costs normally follow the event. I award costs in favour of the plaintiff in the fixed sum of K25,000 considering that the matter has taken some time to complete and that taxation does not regularly occur in Madang.

H ORDERS

40. In consideration of the facts, the issues and the law, I make the following orders in relation to this matter:
    
    1. The first and second defendants and all other members of the Police Force are restrained from interfering with the Plaintiffs use and enjoyment of the vehicle described as CRV grey in colour, Registration Number UAB 224 without leave of the National Court;
    2. Fourth Defendant (the State) pay the plaintiff a total judgment sum of K43,143.33., being compensation for breach of constitutional rights under sections 57 and 58 of the Constitution, exemplary damages and interest;
    3. Interest is to accrue at the rate of 2% per annum for any amount not paid to the plaintiff within 30 days from this order;
    4. Fourth Defendant (the State) pay the plaintiff’s costs of the proceedings, fixed at K25,000;
    5. File is closed;
    6. Time is abridged.

Judgment and Orders accordingly

Bradley Wak Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the State