Alphonse Kopi v The State

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 09 September 1994
• Citation: [1994] PNGLR 475
• Court: National Court
• Year: 1994
• Judgement Number: N1270

National Court: Woods J

Judgment Delivered: 9 September 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ALPHONSE KOPI

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen

Woods J

18-20 July 1994

9 September 1994

DAMAGES — Liability of State for action of its servants — Assault of escaping prisoner by warders — Permanent injury — Achilles tendon cut — Exemplary damages — Assessment for general damages.

Facts

The plaintiff, a prisoner at a corrective institution, was apprehended by the warders whilst attempting to escape. He was seriously assaulted and sustained an axe wound to his right Achilles tendon which, because of the denial of medical treatment, led to a permanent disability in the use of his right ankle and foot. He claimed damages, including exemplary damages, from the State for unlawful assault by its servants.

Held

1. The State is liable in damages for the wrongful actions of its officers acting within the scope of their employment or functions.

2. General damages are awarded to cover the pain and suffering, temporary disability, and some long term disability.

3. Future economic loss from the injuries and disability is allowable.

4. Exemplary damages are not to unjustly enrich a party but, rather, are symbolic of the public's indignation.

Cases Cited

Kiak v Tora Enterprises [1986] PNGLR 265.

Kofowei v Siviri [1983] PNGLR 449.

Moia v PNG [1988] PNGLR 299.

Piam v PNG [1988-89] PNGLR 651.

Tambi v PNG [1988-89] PNGLR 648.

Counsel

DL O'Connor for the plaintiff.

L Manua for the defendant.

9 September 1994

WOODS J: The plaintiff is claiming damages for unlawful assault by servants of the State. At the time of the alleged incident, the plaintiff was a prisoner at Baisu Corrective Institution and was trying to escape. During the escape, he was caught by warders and, in the process, was seriously assaulted. Following the assault, he was denied medical treatment. The most serious aspect of the assault is an axe wound to the right Achilles tendon. Because of the failure to properly treat it, he now has a permanent disability in the use of his right ankle and foot.

The State has denied responsibility and the assault, alleging that during the escape, the plaintiff injured himself in attempting to climb over the security fence, and the wires on the fence cut his achilles tendon.

The evidence for the plaintiff is that he and another prisoner, Joseph Kerenga, were spending time in the detention cell at the gaol, and they managed to break out of the cell and were escaping. They had got over the first fence and then the second fence and were attempting to scale the third fence when they were apprehended by the warders, who had come to the alert when the alarm sounded. The plaintiff then alleges that the warders deliberately chopped his Achilles tendon saying, "Such men as these cause us a lot of problems, so we must chop their legs". He said that they then chopped him with an axe and he fell unconscious. He was brought to the administration block, where he and Joseph were put onto a vehicle and taken to the police station in Mount Hagen to be charged with escaping. The plaintiff agrees that, at the top of the second fence, there was some razor wire; however, he states that there was a small gap at one point where they could get over and avoid the razor wire, so suggesting that he was notcut by the razor wire. He suggests that they were running between the fences, but then he agrees that one of the warders who came to chase and apprehend them was in civilian clothes, thereby suggesting that he was called out to help when the escape was discovered. So this suggests that the plaintiff and Joseph could not have been moving so very fast.

Joseph gives a slightly different story of the actual escape, saying that they climbed the first fence and then the second fence, and did not get any injury, but that after the second fence, the plaintiff was about 30 metres ahead of him when he was apprehended by guards and chopped and fell onto the ground. Although he was far away, Joseph said there were security lights and he could see clearly. He said the person who cut Alphonse was a Correctional Institutions Service (CIS) warder with civilian clothes.

On this aspect of the story, the State gives no evidence. They do not call the warders who actually apprehended the plaintiff and the other prisoner. They just call warders, who confirm the fact of the escape and the apprehension of the plaintiff and other prisoner. Thus, the State does not contradict the assault on the plaintiff by warders, the State merely asks the Court to infer that the injury could have been caused by slipping whilst climbing the fence. I do not think that a court can act on hypotheses against sworn evidence. So, at this stage, I am left with a plausible story of the plaintiff about how he got the initial injuries. I am satisfied on the evidence that the plaintiff was unlawfully assaulted by officers of the CIS whilst being apprehended during an escape.

The evidence is then that the two escapees were taken to the administration centre at the compound. The evidence of Mr Kingall, the gaol commander, is that he came down to the compound and saw the plaintiff lying on...