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Samson v Varage [2021] PGNC 337; N9168 (28 September 2021)

N9168
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1138 OF 2009

BETWEEN
BRENDA SAMSON
Plaintiff

AND
NIGELVARAGE-NCDC RESERVE POLICE
First Defendant

AND
GLADSON AUMA-NCDC RESERVE POLICE
Second Defendant

AND
PETER KAVANAMUR-NCDC RESERVE POLICE
Third Defendant

AND
KEVIN-NCDC RESERVE POLICE
Fourth Defendant

AND
GARI BAKI as the Commissioner of Royal Papua New Guinea Constabulary
Fifth Defendant

AND
THE INDPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Makail, J
2021:22^nd June & 28^th September

LIABILITY – Entry of default judgment – Tort of trespass – Trespass to person and property – Assault – Injuries sustained from beating by members of reserve police – Damage to property by members of reserve police

DAMAGES – Award of damages – General damages – Special damages – Exemplary damages – Damages awarded for pain and suffering and loss of property

Cases Cited:
Andrew Moka v. MVIL (2004) SC729
Abel Tomba v. The State (1997) SC518
James Gunambo v. Sergeant Thomas John Upaiga & The State (2010) N3859
Michael Kunumb v. The State (2008) N3480
Thomas Jinamy v. The State (2008) N3481
Robin Martin v. Superintendent Andy Anderson Bawa & The State (2021) N8946

Counsel:

Ms. A. Aigilo, for Plaintiff
No appearances, for First, Second, Third and Fourth Defendants
Ms. N. Aiwara, for Fifth and Sixth Defendants

JUDGMENT

28^th September 2021

1. MAKAIL J: The pleadings in the statement of claim endorsed to the amended writ of summons filed 8^th April 2011 are so long and convoluted but sufficient enough to identify the cause of action as one of trespass to person and property.
   

2. The alleged tort was committed on Tuesday 20^th March 2007 at Waigani by members of the reserve police identified as the first, second and third defendants and other unidentified members who were engaged by the National Capital District Commission (“NCDC”) to execute instructions and command to remove street vendors in the city of Port Moresby.

3. In relation to trespass to person, the allegation is that, the defendants and other members of the reserve police arrived at the scene in a bus and one of the defendants removed the plaintiff’s string-bag with cash of K500.00 and fled into the bus. The plaintiff pursued him and entered the bus. The second defendant sped off with the plaintiff inside. The plaintiff lost balance and fell. She sustained injuries on her leg and back. She was then assaulted and threatened by the third defendant and other members of the reserved police that she would be thrown out of the bus. She sustained injury to her body including her left 5^th finger.

4. In relation to trespass to property, the named defendants along with other members of the reserved police destroyed the following items:

(a) 1 x Eskie.
(b) 1 x Umbrella.
(c) 1 x Table
(d) 4 x cartons of soft-drinks.
(e) 12 x can coke.
(f) 4 x packet of smoke.
(g) 1 x packet of spear smoke.
(h) Total cash of K500.00.

5. Contrary to the parties’ position, liability has been determined by entry of default judgment against the first, second and third defendants on 7^th March 2017 and against the sixth defendant (the State) on 22^nd June 2011, Further, the fourth defendant has been removed as a party by order of the Court of 9^th November 2017. See court orders of 22^nd June 2011, 7^th March 2017 and 9^th November 2017 in the Court file.

6. However, the entry of default judgment does not relieve the plaintiff from proving her damages. She relied on her affidavit sworn 28^thJanuary 2014 and filed 31^st January 2014 to prove her damages. The defendants did not file any responding affidavits to refute the assertions in her affidavit. According to the plaintiff’s affidavit, she sustained the following injuries from the assault and fall:

(a) Bruised tender swelling of left 5^th finger with associate deformity and loss of function.
(b) Tender bruises and laceration of the left sheen (leg).
(c) Tender bruised posterior trunk (back).
(d) Generalised aches and pains.

7. She annexed a medical report from Port Moresby General Hospital dated 12^th April 2007. There were two more medical reviews out of which reports were prepared and produced to establish the state of her recovery. She underwent a final review and a medical report dated 16^th December 2013 was produced which showed the following:

(a) Swollen and tender left 5^th finger.
(b) Swollen plus abrasionof left sheen.
(c) Bruised lower back.
(d) Generalised body aches.

8. Her loss of efficient use of 5^th left finger was assessed at 75%.

9. From the medical reports of 12^th April 2007 and 16^th December 2013 which is a period of more than six years, it is noted that the plaintiff did not recover from her injuries because she continued to experience swelling and tenderness to her left 5^th finger, swelling and abrasion of left sheen, bruised lower back and generalised body aches.

10. Her counsel submitted that given the nature of injuries and the awards in past cases as Michael Kunumb v. The State (2008) N3480, (K20,000.00 for 70% loss of use of right arm) Thomas Jinamy v. The State (2008) N3481 (K14,000.00 for 15% loss of use of left arm) and James Gunambo v. Sergeant Thomas John Upaiga & The State (2010) N3859 (K18,000.00 for back injury sustained from police assault) and inflation was awarded by the Supreme Court in Andrew Moka v. MVIL (2004) SC729, K50,000.00 is a fair and reasonable sum to award as general damages for pain and suffering.

11. The defendants’ counsel referred to the same cases cited by counsel for the plaintiff, but submitted that a sum of K10,000.00 is appropriate because the plaintiff did not suffer a fractured finger or arm to warrant a higher award.

12. I accept the defendants’ counsel’s submission. The awards in Kunumb and Jinamy were made because the plaintiffs suffered loss of use of arms. Here, the plaintiff suffered loss of use of left 5^th finger. However, accepting the recent medical report of 2013, I am further satisfied that she did not recover from the swelling and abrasion of her left sheen, bruised lower back and general body aches. For these reasons, a sum of K15,000.00 would be appropriate. Finally, I accept inflation should be taken into account and applying a rate of 30% on K15,000.00 gives K4,500.00. Add this sum to K15,000.00 gives K19,500.00. The plaintiff is awarded K19,500.00 as general damages for pain and suffering.

13. In relation to trespass to property, the plaintiff listed the following items and their values that were destroyed by the named defendants along with other members of the reserve police:

(a) 1 x Eskie – K250.00
(b) 1 x Umbrella – K 50.00
(c) 1 x Table – K 20.00
(d) 4 x cartons of soft-drinks – K156.00
(e) 12 x can coke –K26.00
(f) 5 x packets of smoke – K42.50

_________

Total K544.50

_________

14. I accept the items claimed by the plaintiff and the sum claimed for each item as reasonable and award the total sum of K544.50. Add and calculate inflation at rate of 30% gives K163.35 and add that to K544.50 gives a total sum of K707.85. I award this sum.

15. The plaintiff also lost a total sum of K500.00 cash money. I award this sum.

16. The plaintiff further claimed exemplary damages. Her counsel relied on the Supreme Court decision in Abel Tomba v. The State (1997) SC518 and submitted that each named defendant should be liable to pay exemplary in the sum of K1,000.00. The defendants counsel’s submission is in agreement with the plaintiff’s counsel.

17. The actions of the first, second and third defendants as described are inhumane and uncalled for. The destruction of the plaintiff’s market items and goods including removal of her string-bag with cash of K500.00 is a criminal act and should not go unpunished. These identified members of the reserve police must be personally held liable for the unlawful actions. For these reasons and consistent with Abel Tomba decision and submissions of each counsel, the first, second and third defendants shall each pay K1,000.00 to the plaintiff as exemplary damages. Total sum ordered is K3,000.00.

18. The next claim is special damages. The plaintiff claimed medical costs for her treatment and medical reviews at the Port Moresby General Hospital in the total sum of K962.30 which comprised of K363.30 for costs of medicines and K600.00 for costs of four medical reports. The defendants’ counsel agreed with the plaintiff’s submissions that medical costs should be allowed but submitted that as there are no receipts of payments tendered, a total sum of K900.00 should be awarded. In terms of receipts of payment, there are some produced to corroborate the costs of medication, but not all and none for medical reports. However, given the concession by the defendants and there being some, but not all receipts of payment tendered, I award a global sum of K900.00 as special damages.

19. Next, the plaintiff claimed interest at the rate of 8% from date of issue of writ to date of judgment. Defence counsel submitted that interest should run at rate of 2% from date of judgment under Section 4(1)&(2) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015.

20. The applicable rate of interest under the current legislation of 2015 is 2%. I will apply this rate. However, I am not satisfied that interest should be calculated from date of issue of writ to date of judgment. As I recently noted in Robin Martin v. Superintendent Andy Anderson Bawa & The State (2021) N8946:

“While it is noted that the State Claims Court Track One has a huge backlog of pending cases, there is no explanation by the plaintiff in relation to the long delay in getting this ligation to trial after close of pleadings. For this reason, pre-judgment interest is awarded from the date of trial to the date of judgment which shall be calculated by the parties. As to post-judgment interest, it is awarded at the rate of 2% from the date of judgment on liability until final settlement. The 2% pre-judgment interest and post judgment interest are awarded on part of the total sum of damages awarded which is K240,890.00”.

21. It is the same story here. The plaintiff has not explained the long delay of over twelve years since the filing of writ to bring this litigation to a close. For this reason, I award interest at the rate of 2% from the date of trial to the date of judgment and thereafter, until final settlement on the sum of K21,607.85 pursuant to Section 4(1) & (2) of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015. The sum of K21,607.85 is the total sum for general damages of K19,500.00 for pain and suffering, general damages for loss of property of K707.85 and K500.00 and special damages of K900.00. Exemplary damages are excluded.

22. Finally, the plaintiff sought costs of the proceeding. As the plaintiff has successfully proven her damages, she shall be awarded costs of the proceedings, to be taxed, if not agreed.

23. The final judgment and orders of the Court are:

1. Judgment is entered in favour of the plaintiff in the sum of K19,500.00 as general damages for pain and suffering.
   
2. Judgment is entered in favour of the plaintiff in the sum of K707.85 and K500.00 as general damages for loss of property.
   
3. Judgment is entered against the first, second and third defendants in the sum of K3,000.00 as exemplary damages.
   
4. Judgment is entered in favour of the plaintiff in the sum of K900.00 as special damages.
   
5. Interest at the rate of 2% from the date of trial to the date of judgment and thereafter, until final settlement on the sum of K21,607.85 pursuant to Section 4(1)&(2) of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.
   
6. The defendants shall pay the costs of the proceeding, to be taxed, if not agreed.

________________________________________________________________
Public Solicitor: Lawyers for Plaintiff
Solicitor General: Lawyers for Fifth and Sixth Defendants