Ekip Pade v Albert Nangas

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 31 January 2018
• Citation: (2018) N7073
• Court: National Court
• Year: 2018
• Judgement Number: N7073

Full : WS (HR) No 314 of 2015; Ekip Pade and Bras Dos, Boni Kerowa, James Walua, Pora Mek & Michael Nema v Constable Albert Nangas and Inspector Ben Kua, Hohola Police Station Commander and the Commissioner of Police and the Independent State of Papua New Guinea (2018) N7073

National Court: Cannings J

Judgment Delivered: 31 January 2018

N7073

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 314 OF 2015

EKIP PADE

First Plaintiff

BRAS DOS, BONI KEROWA, JAMES WALUA,

PORA MEK & MICHAEL NEMA

Second Plaintiffs

V

CONSTABLE ALBERT NANGAS

First Defendant

INSPECTOR BEN KUA,

HOHOLA POLICE STATION COMMANDER

Second Defendant

THE COMMISSIONER OF POLICE

Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Cannings J

2016: 24 April, 25 May

2018: 31 January

DAMAGES – assessment of damages following entry of default judgment – negligence – breach of human rights – leg amputated due to police shooting – detention without charge.

Members of the Police Force raided an urban settlement occupied by the plaintiffs, apparently searching for suspects implicated in the death of a fellow member of the Force in an earlier incident. The first plaintiff was shot in the leg, apprehended and taken to a nearby police lock-up where he was detained for four days without charge and without medical treatment. He was taken to hospital upon his release from custody and his leg was amputated due to the life-threatening nature of the injury. Five other men (the second plaintiffs) were apprehended at the same time as the first plaintiff. They were assaulted, apprehended and taken to the same police lock-up that the first plaintiff was taken to. They were further assaulted in the lock-up and denied medical treatment for several days before being charged with murder. They spent four months in remand before the charge was dismissed for want of prosecution. All plaintiffs commenced proceedings against the members of the Force they alleged were responsible for what happened to them and the Commissioner of Police and the State, claiming damages for breach of human rights and negligence. Default judgment was entered against the Commissioner and the State. A trial on assessment of damages followed. The first plaintiff sought damages in nine categories, totalling K4 million. The other plaintiffs sought damages in four categories, totalling K130,000.00 each. The State asked the Court to revisit the issue of liability and dismiss the proceedings as the statement of claim was defective. The State argued, in the alternative, that the first plaintiff be awarded no more than K85,000.00 and that the other plaintiffs be awarded no more than K5,000.00 each.

Held:

(1) When assessing damages after entry of default judgment, the judge should make a cursory inquiry so as to be satisfied that the facts and cause of action are pleaded with sufficient clarity.

(2) Though the statement of claim was vague, poorly drafted and did not properly plead vicarious liability, the facts and causes of action were nonetheless clear. The State’s preliminary argument was rejected.

(3) The nine categories of damages sought by the first plaintiff were assessed as: (a) general damages, K200,000.00, (b) housing costs, 0, (c) future medical costs, 0, (d) “past gratuitous care”, 0, (e) “future gratuitous care”, 0, (f) economic loss, 0, (g) special damages, 0, (h) compensation for human rights breaches, K30,000.00, (i) exemplary damages, K50,000.00, a total award of K280,000.00.

(4) The four categories of damages sought by other plaintiffs were assessed as: (a) compensation for human rights breaches, K10,000.00, (b) damages for assault, 0, (c) damages for malicious prosecution and false imprisonment, 0, and (d) exemplary damages, K5,000.00, a total award of K15,000.00 each.

(5) The plaintiffs were awarded total damages of K355,000.00 and total interest of K43,169.00, making the total judgment sum K398,168.00.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518

Andale More and Manis Andale v Henry Tokam and The State (1997) N1645

Jessie Namba v The State (2011) N4396

Joe Kape Meta v The State (2012) N4745

Lance Kolokol v The State (2009) N3571

Philip Nare v The State (2017) SC1584

PNGBC v Jeff Tole (2002) SC694

Seupain v The State (2009) N3573

Vincent Kerry v The State (2012) N4658

William Mel v Coleman Pakalia (2005) SC790

ASSESSMENT OF DAMAGES

This was an assessment of damages for breaches of human rights and negligence, following entry of default judgment.

Counsel:

S Wanis, for the Plaintiffs

T Mileng, for the Third and Fourth Defendants

31st January, 2018

1. CANNINGS J: This is an assessment of damages for breaches of human rights and other civil wrongs committed by members of the Police Force against the plaintiffs, six adult men. Liability has been established by default judgment against the third and fourth defendants, the Commissioner of Police and the State.

INCIDENT

2. In the statement of claim the plaintiffs alleged that in the early hours of 27 December 2011 members of the Police Force under the command of the third defendant, Inspector Ben Kua, Hohola Police Station Commander, raided Morata 2 settlement in the National Capital District, where the plaintiffs were residing, apparently searching for suspects implicated in the death of a fellow member of the Force who had been killed while on duty several days earlier.

3. The first plaintiff, Ekip Pade, was shot in the leg, apprehended and taken to Hohola police lock-up where he was detained for four days without charge and without medical treatment. He was admitted to hospital upon his release from custody and on 6 January 2012 underwent an above-knee amputation of his left leg due to the life-threatening nature of the gunshot wound he had incurred.

4. Five other plaintiffs, Bras Dos, Boni Kerowa, James Walua, Pora Mex and Michael Nema (referred to collectively on the writ as “second plaintiffs”), were apprehended at the same time as the first plaintiff. They were assaulted, apprehended and also taken to Hohola police lock-up. They were further assaulted in the lock-up by police and denied medical treatment and food for several days before being charged with murder. They spent four months in remand at Bomana Correctional Institution before the charge was dismissed for want of prosecution.

PROCEDURE

5. On 24 March 2015 the plaintiffs commenced proceedings against the member of the Force they alleged was primarily responsible for what happened to them (the first defendant, Constable Albert Nangas) and the Hohola Police Station Commander (second defendant), the Commissioner of Police (third defendant) and the State (fourth defendant), claiming damages for breaches of human rights and negligence.

6. The defendants failed to properly defend the matter and on 8 February 2016 default judgment was entered against the Commissioner and the State. The default judgment has not been set aside and a trial on assessment of damages has been conducted.

7. Since default judgment was entered, the Supreme Court has in Philip Nare v The State (2017) SC1584 pointed to the futility of seeking or ordering judgment against the Commissioner of Police in cases such as the present, where the claim and the order should be made only against the State – unless the Commissioner is alleged or found to have been personally involved in the wrongful conduct giving rise to vicarious liability of the State. In this case there has never been any suggestion or finding of personal involvement by the Commissioner.

8. I have decided therefore on the own motion of the Court to set aside the default judgment against the Commissioner. I have also decided for the avoidance of doubt that the proceedings against the Commissioner and the other two defendants should be dismissed. These decisions, which do not materially prejudice the plaintiffs or the State, are reflected in the final order of the Court and ensure that there are no unresolved issues remaining after entry of judgment on assessment against the State.

EVIDENCE

9. Affidavits by each of the six plaintiffs, detailing the incident and its aftermath and in the case of the first plaintiff annexing medical records including a report on his leg amputation, have been admitted into evidence. The defendants presented no evidence.

PRELIMINARY ARGUMENT

10. Mr Mileng, counsel for the Commissioner and the State, asked the Court to revisit the issue of liability and dismiss the proceedings on the ground that the statement of claim is defective as it failed to plead:

· the names of the actual wrongdoers, and

· that they were employed by the State, and

· that they committed wrongful acts while performing functions imposed by them in the course of their employment, and

· that the State was vicariously liable under Section 1(1) of the Wrongs (Miscellaneous Provisions) Act.

11. I am not persuaded by this argument. The effect of the default judgment is that the facts and causes of action pleaded in the statement of claim are presumed to have been...