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Nimbituo v Commissioner of the Correctional Service [2024] PGNC 208; N10875 (4 July 2024)

-N10875

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 7 OF 2023

ROGER BAI NIMBITUO
First Plaintiff

RONALD WAFIEHE
Second Plaintiff

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Cannings J
2024: 23^rd May, 1^st, 4^th July

DAMAGES – breach of human rights – right to full protection of the law (Constitution, s 37) and right to personal liberty (Constitution, s 42) – unlawful detention – prisoners detained in custody for 396 days after their due date of release from custody.

The plaintiffs were prisoners who spent 396 days in custody after their due date of release. They succeeded at a trial on liability in proving breaches of their human rights under ss 37 and 42 of the Constitution for their 396 days of unlawful detention. They claimed at a trial on assessment of damages that general damages should be assessed for each of them at a rate of K10,000.00 per day of unlawful detention and that exemplary damages should be assessed at the rate of K1,000.00 per day of unlawful detention, making the total claim K4.356 million.

Held:

(1) It was appropriate to assess general damages using a daily rate, but K10,000.00 per day was vastly excessive. The appropriate daily rate was K100.00, resulting in an award of K100.00 per day x 396 days of unlawful detention = K39,600.00.

(2) It was not appropriate to assess exemplary damages using a daily rate. Instead, it was better to award a fixed sum. The plaintiffs were awarded K5,000.00 each for exemplary damages.

(3) In addition interest was awarded under the Judicial Proceedings (Interest on Debts and Damages) Act 2015 of K838.48.

(4) The total amount of damages and interest awarded to each plaintiff was K45,438.48.

(5) It was not appropriate to award costs to the plaintiffs as they were represented by the Public Solicitor and the principal defendant was the State.

Cases Cited

Kogora v Kawi (2018) N7137
Wati v Gavera (2013) N5362

Counsel

J P Gene, for the Plaintiffs
A Kajoka, for the Defendants

4^th July 2024

1. CANNINGS J: This is an assessment of damages for two plaintiffs who were prisoners who spent 396 days in custody after their due date of release. They succeeded at a trial on liability in proving breaches of their human rights under ss 37 and 42 of the Constitution for their 396 days of unlawful detention.

2. They argue that general damages should be assessed for each of them at a rate of K10,000.00 per day of unlawful detention and that exemplary damages should be assessed at the rate of K1,000.00 per day of unlawful detention, making their total claim K4.356 million damages each.

GENERAL DAMAGES

3. Counsel for the plaintiffs, Mr Gene, relied on the case of Kogora v Kawi (2018) N7137, in which the plaintiff was awarded K6,000.00 damages for each of five days of unlawful detention. However, I was the trial judge in that case and the facts are very different from the present case as the plaintiff in Kogora was detained in deplorable conditions and he was an officer of the National Court who incurred multiple human rights breaches at a place in which he was seen to be an outsider. In the present case, there is no evidence that the conditions of detention were poor or that the plaintiffs were subject to harassment and intimidation and fear in the same way as the plaintiff in Kogora.

4. I think a far more relevant precedent is Wati v Gavera (2013) N5362, in which the plaintiff was arrested and charged with wilful murder and detained in custody for a period of seven years, seven months, three weeks, without being brought to trial, before being discharged by the National Court upon presentation of a nolle prosequi. The plaintiff commenced proceedings claiming damages for breach of human rights. Liability against the defendants was established by default judgment. He was awarded general damages for breach of human rights calculated at a rate of K50.00 for each day of unlawful detention. The amount awarded was 2,786 days x K50.00 per day = K139,300.00.

5. I uphold Mr Gene’s submission that it is appropriate to assess general damages using a daily rate, but I consider that K10,000.00 per day is vastly excessive. It is not in the interests of justice to award such a sum. It would look quite ridiculous to award persons who were convicted prisoners a windfall gain of millions of Kina for being detained in custody for a little over a year beyond their due date of release.

6. Using Wati as the best precedent and bearing in mind that it was decided ten years ago, the appropriate daily rate to use in the present case is K100.00. I award to each plaintiff the amount of K100.00 for each day of unlawful detention. Thus K100.00 per day x 396 days of unlawful detention = K39,600.00.

EXEMPLARY DAMAGES

7. It is not appropriate to assess exemplary damages using a daily rate. Instead, it is better to award a fixed sum, reflecting the evidence that the period of unlawful detention resulted from an administrative oversight and not from any deliberate acts or omissions by the defendants or any of their officers or employees. I award each plaintiff K5,000.00 for exemplary damages.

INTEREST

8. Interest is awarded at the rate of 2 per cent per annum on the total amount of damages under the Judicial Proceedings (Interest on Debts and Damages) Act 2015, calculated in respect of the period from the date of filing the writ (27 July 2023) to the date of this judgment (4 July 2024), a period of 0.94 years, by applying the formula D x I x N = A, where: D is the amount of damages, I is the rate of interest per annum, N is the appropriate period in numbers of years and A is the amount of interest. Thus: K44,600.00 x 0.02 x 0.94 = K838.48.

CONCLUSION

9. Each plaintiff is awarded a total amount of damages of K44,600.00 plus interest of K838.48, being a total judgment sum due to each plaintiff of K45,438.48.

10. In my view it is not appropriate to award costs to the plaintiffs as they were represented by the Public Solicitor and the principal defendant was the State.

ORDER

(1) The defendants shall pay to each of the plaintiffs a total amount of damages of K44,600.00 plus interest of K838.48, being a total judgment sum due and payable to each plaintiff of K45,438.48.

(2) The parties shall bear their own costs.

(3) The file is closed.

__________________________________________________________________
Public Solicitor: Lawyer for the Plaintiffs
Solicitor-General: Lawyer for the Defendants