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Wai v Pokam [2024] PGNC 85; N10726 (17 April 2024)

N10726

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO. 16 OF 2018

BETWEEN:
KONI WAI
Plaintiff

V
CONSTABLE CHARLES POKAM
First Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Narokobi, J
2023: 4^th August
2024: 16^th April

ASSESSMENT OF DAMAGES – Revisiting liability after default judgement – General damages for negligence – Comparative Cases Considered for Personal Injuries – Adjustment for Inflation - Reasonable Damages Awarded

HUMAN RIGHTS ASSESSMENT OF COMPENSATORY DAMAGES - Compensatory damages for breach of human rights – Method of Assessment of Compensatory Damages - Breach of Constitution ss 37(1), 36(1), 41(1), 42)1), 53 – Award Made for Each Occasion of the Breach - Reasonable damages awarded for negligence and breach of human rights.

The plaintiff sued the defendants for negligence and breach of human rights. Liability was determined by default judgment on 13 February 2019. The facts of the case giving rise to liability of the defendants were that on 7 March 2018, around 5.30pm, the plaintiff with his wife, who sell garden produce at the Gordons market in Port Moresby, were confronted by the first defendant and other unidentified members of the police. They assaulted the first defendant by kicking, punching and assaulting him. He suffered serious injuries that required medical attention. The injuries included a broken arm and pains all over his body. The permanent injuries were assessed at 30% loss of the use of the right hand.

(1) On the question of whether the court should revisit the issue of liability, if a cursory glance of the statement of claim reveal that the pleadings are not clear and there is no cause of action (Kipahi v Numbos (2020) N8437) then the question of liability will be revisited. Here the pleadings are clear and raise cause of actions known to law. The defendants also raise no objections to the pleadings. The claim for negligence and breach of human rights as pleaded by the plaintiff is confirmed.

(2) To accept the submission of the defendant that there was no permanent injury does not accord with the medical report that there is 30% loss of the use of the right arm. The nature of the injuries accords with cases such as Pep v Yamba and The State [1987] PNGLR 485. In Pep’s case there was 50% loss of use of the arm and K15,000.00 was awarded. An award less than in Pep’s case is appropriate considering the loss of the use of the arm is at 30%. K15,000.00, is awarded after taking into account inflation.

(3) Since this was a case where the period of detention was not longer than in comparable cases such as Dope v Malai (2012) N4574, but there is nevertheless serious injuries, K2,000 for each right that was breached following the methodology on assessment of damages in Kolokol v Ambuarapi (2009) N3571 on human rights breaches is made:

• Freedom from inhuman treatment, s 36(1) – K2,000.00

• Full protection of the law, s 37(1) – K2,000.00

• Protection from harsh and oppressive acts, s 41(1) – K2,000.00.

• Liberty of the person, s 42(1) – K2,000.00

• Protection from unjust deprivation of property, s 53 – K2,000.00.

(4) The total amount awarded for breach of human rights is therefore K10,000.00, that is K2,000.00 for each occasion of the breach of the rights pleaded by the plaintiff and proven on the evidence.

(5) No award made for exemplary damages, as although the plaintiff was seriously assaulted and sworn at, he was not detained for an extended period. There was also some issue about how the plaintiff was released from custody on the evidence of the State. The breach of human rights should not be condoned; however, the extent of the breach does not justify an award for exemplary damages beyond what the plaintiff will now be compensated for.

(6) A judgment sum of K26,000.00 was made with interests and costs, to be paid by the State to the plaintiff, as the State is sued in a vicarious capacity.

Cases Cited:

Buat v Kila (2021) N9329
Dope v Malai (2012) N4574
Kaka Kopun v The State [1980] PNGLR 557
Kandapak v The State [1980] PNGLR 573
Kipahi v Numbos (2020) N8437
Kolokol v Ambuarapi (2009) N3571
Pep v Yamba and The State [1987] PNGLR 485
Posa v Aiga (2022) N10056
Shelley Kupo v. Motor Vehicles Insurance (2002) N2282
Toea v Motor Vehicles Insurance (PNG) Trust and The State [1986] PNGLR 294

Statute Cited:

Constitution

Counsel:

Ms Burain, for the Plaintiff
Ms Z Rekeken for the Defendants

DECISION

17^th April 2024

1. NAROKOBI J: The plaintiff sued the defendants for negligence and breach of human rights. Liability was determined by default judgment on 13 February 2019. The facts of the case giving rise to liability of the defendants were that on 7 March 2018, around 5.30pm, the plaintiff with his wife, who sell garden produce at the Gordons market in Port Moresby, were confronted by the first defendant and other unidentified members of the police. They assaulted the first defendant by kicking, punching and assaulting him. He suffered serious injuries that required medical attention. The injuries included a broken arm and pains all over his body. The medical doctor who attended to him, Dr Sonny Kibob, provided two medical reports. The first report was dated 7 May 2018 and the second one dated 15 April 2019.
   
2. In the report of 7 May 2018, where the plaintiff was assessed on 9 March 2018, Dr Kibob states that the injuries were the result of an assault that was excessive resulting in excessive soft tissue injury, and fractured right ulna. He is awarded 100% disability to the effective and efficient use of his right forearm. He was again assessed the following year, and he was seen by the Dr Kibob on 9 March 2019 (report dated 15 April 2019). This is what Dr Kibob said of the plaintiff in his report of 15 April 2019:
   
   1. Weakness of the left forearm now unable to lift weights and doing other laborious duties using his right forearm effectively 30%.
   2. Loss of gripping power with associated numbness of the right forearm 30%.
   3. Cosmetic disfiguration of the right forearm with deformity noted at the right wrist joint 20%.
      
3. On the question of whether the court should revisit the issue of liability, if a cursory glance of the statement of claim reveal that the pleadings are not clear and there is no cause of action (Kipahi v Numbos (2020) N8437) than the court will revisit the issue of liability. I have considered the pleadings, and they are clear and put-up cause of actions known to law. The defendants also raise no objections to the pleadings. I will therefore confirm the claim for negligence and breach of human rights as pleaded by the plaintiff. I will as a result go straight to consider the question of assessment of damages.
   
4. The plaintiff claims general damages for negligence, damages for breach of human rights, special damages, exemplary damages and interest and costs. With regards to human rights claims, the plaintiff claims breach of the following rights of the Constitution:
   
   • Freedom from inhuman treatment, s 36(1);
   • Full protection of the law, s 37(1);
   • Protection from harsh and oppressive acts, s 41(1);
   • Liberty of the person, s 42(1); and
   • Protection from unjust deprivation of property, s 53(1).
     
5. For negligence, the plaintiff submits he should be entitled to K20,000.00. He relies on the following cases for comparison:
   

6. The plaintiff submits that Pep’s case is similar to the present one, and the plaintiff should be awarded K15,000.00, but taking into account inflation, he should get K20,000.00.
   
7. The defendant on the other hand submits that there are no permanent injuries suffered and the plaintiff should be entitled to K1,000.00 general damages. The related case they submit the court should take into account include Alfred v Kapi (2020) N8467, where the plaintiff was assaulted but since he suffered no serious injuries he was awarded K1,000.00. A similar award of K1,000.00 was made in Asaba v Kalaut (2021) N8706, again on the basis that there is no permanent injuries.
   
8. I also have had regard to more recent cases such as Posa v Aiga (2022) N10056 (6 December 2022). In that case the plaintiff suffered injuries from a car accident. The injury caused the plaintiff great pain and discomfort and restricted his movement. He is unable to lift heavy objects and work as a result of the injuries. There are also permanent scars over the right arm and shoulder. The medical report assessed “...the combined anatomical and functional permanent impairment of the right upper limb at 60%. Following a review of the second plaintiff four years later, the doctor formed a view that the second plaintiff’s loss of use had slightly improved and in a further medical report of 6th June 2018, assessed the loss of use at 40%.” The court took into account the case of Shelley Kupo v. Motor Vehicles Insurance (2002) N2282 and awarded K60,000.00 from an initial K30,000.00 to take into account inflation.
   
9. To accept the submission of the defendant that there was no permanent injury does not accord with the medical report that there is 30% loss of the use of the arm. In my view the nature of the injuries accords with that in Pep’s case. But in Pep’s case there was 50% loss of use of the arm. I will therefore award something less than in Pep’s case. I award K10,000.00, but taking into account inflation, I settle with K15,000.00.
   
10. For breach of human rights the plaintiff relies on the case of Kolokol v Ambuarapi (2009) N3571 to make two submissions. Firstly for the court to award separate sums for each occasion of breach of human rights and secondly for comparison as to the sum that should be awarded for each of the breaches. This case stands for the proposition the courts can award general damages separately from compensation for breach of human rights. In that case, the plaintiff suffered severe injuries to one of his leg due to being shot by a policeman. The plaintiff relies on this case to claim, K7,000.00 for each occasion of the breach, a total of K28,000.00.
    
11. On the other hand, the defendants submits that injuries are not permanent, and the plaintiff was not detained for a long period of time, less than 12 hours in fact. The total damages they should get should be K2,000.00 all up.
    
12. I have had regard to the case of Dope v Malai (2012) N4574, where the plaintiff was awarded K3,000.00 for each occasion of the breach, that is:
    
    • When he was apprehended and forced to go to the police station.
    • When he was assaulted.
    • When he was denied food and medical treatment.
    • When he was detained for six days without being charged and without being taken to court.
      
13. Since this was a case where the period of detention was not longer than in Dope, but there were nevertheless serious injuries, I take the view that I should award K2,000 for each right that was breached, that is as follows:
    

• Freedom from inhuman treatment, s 36(1) – K2,000.00

• Full protection of the law, s 37(1) – K2,000.00

• Protection from harsh and oppressive acts, s 41 – K2,000.00.

• Liberty of the person, s 42 – K2,000.00

• Protection from unjust deprivation of property, s 53 – K2,000.00.

14. The total amount I award for breach of human rights is therefore K10,000.00, that is K2,000.00 for each occasion of the breach of the rights pleaded by the plaintiff and proven on the evidence.
    
15. The plaintiff also claims special damages for K1,920.00. The claim should be corroborated but is not. But I accept that the plaintiff did incur costs for medical treatment. I award a nominal sum of K1,000.00.
    
16. I make no award for exemplary damages, as although the plaintiff was seriously assaulted and sworn at, he was not detained for an extended period. There was also some issue about how he was released from custody on the evidence of the State. The breach of human rights should not be condoned, however, the extent of the breach in this case is not such as to award a specific sum for exemplary damages beyond what the plaintiff will now be compensated for, for negligence, breach of human rights and special damages.
    
17. I will award interests on the judgment sum at 2% from the date of filing of the proceeding to the date of judgment pursuant to ss 4 and 6 of the Judicial (Proceedings Interest on Debts and Damages) Act 2015.
    
18. Costs follow the event, being the general rule on costs. I will order costs in favour of the plaintiff. The plaintiff seeks costs in the fixed sum of K30,000.00. From my assessment, if the issue of costs goes to taxation, it may or may not return a higher amount for the plaintiff, but it will be a longer period, and the plaintiff, I gather, wishes not to prolong his case. Since the plaintiff has come this far through default judgment, and not a contested matter as such, I will award a sum less than what is sought. I will award fixed costs as in other cases I have dealt with such as Buat v Kila (2021) N9329 but in the sum of K20,000.00, having regard, to my consideration of the nature and complexity of the case.
    
19. The plaintiff sues the State in a vicarious capacity, I will therefore order that the State will pay the plaintiff the judgment sum of K26,000.00, interest and costs. The orders I make are as follows:
    
    1. The State pays the plaintiff a judgment sum of K26,000.00.
    2. The State pays the plaintiff interest on the judgment sum from the date of filing of the proceeding to the date of judgment at the rate of 2%.
    3. The State pays the plaintiff’s costs in the fixed sum of K20,000.00.
    4. Time is abridged.
       

Judgment and orders accordingly.
________________________________________________________________
Public Solicitor: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Defendants