Ernest Pokau v Gordon Wettie and Jacob Temo and Frank Leme and Sam Inguba as the Police Commissioner and The Independent State of Papua New Guinea (2010) N4086

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 27 July 2010
• Court: National Court
• Citation: (2010) N4086
• Docket Number: WS NO. 93 OF 2006
• Year: 2010
• Judgement Number: N4086

Full Title: WS NO. 93 OF 2006; Ernest Pokau v Gordon Wettie and Jacob Temo and Frank Leme and Sam Inguba as the Police Commissioner and The Independent State of Papua New Guinea (2010) N4086

National Court: Davani J

Judgment Delivered: 27 July 2010

N4086

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 93 OF 2006

BETWEEN:

ERNEST POKAU

Plaintiff

AND:

GORDON WETTIE

First Defendant

AND:

JACOB TEMO

Second Defendant

AND:

FRANK LEME

Third Defendant

AND:

SAM INGUBA AS THE POLICE COMMISSIONER

Fourth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Waigani: Davani .J

2010: 24th June

27th July

EVIDENCE - What is primary evidence – evidence of treatment rendered, injuries sustained as at the date of incident – medical evidence – primary evidence is good evidence – secondary evidence or evidence of disabilities suffered must be based on primary evidence.

PLEADINGS - Matters pleaded, must not contradict evidence, vice versa – existing contradictions – failure of claim.

Facts

Default judgment was entered for damages to be assessed. The claim is one for damages for injuries allegedly sustained as a result of beatings received from policemen. The plaintiff relied only on Discharge Summary to prove the injuries received at the date of the incident. The other medical report was prepared about a year later and which described injuries sustained as at the date of the incident.

Issues

1. Whether the Court can assess damages on secondary evidence, i.e evidence or report describing injuries sustained at the date of the incident without the benefit or assistance of primary medical reports.

2. Whether the Court can assess damages on documentary evidence which contradict each other and contradict also, facts pleaded in the Statement of Claim.

Held

1. When deciding on damages to be assessed, the affected party must produce primary evidence of injuries sustained i.e the admission records, the treatment records, information that will go towards determining the injuries sustained at the date of the accident and treatment rendered. It is not sufficient for a party to produce medical reports prepared some years after the incident describing injuries received at the date of the incident.

2. Evidence produced by the affected party that contradicts particulars pleaded in the Statement of Claim, will not be accepted as good evidence because the pleadings lay the foundation of a claim.

List of authorities

Papua New Guinea cases

· Het Pakena v. The State and Ors (N1369)

· Ume More, Fabian Pok, Levi Tilto, Wandi Oscar Yamuna, Paul Piru, Powes Parkop and Members of the Student Representative Council and all those students now enrolled at the University of Papua New Guinea who have National Scholarships other than Medical Students v. The University of Papua New Guinea [1985] PNGLR 401

· Obed Lalip for himself and on behalf of Marae Kulap and Francis Minalo v. Fred Sikiot and The State (1996) N1457

· Madiu Andrew v. Mineral Resources Development Company Ltd, Koiari Tarata, Chairman – Board of Directors and Sir Mekere Morauta, Kt, MP, Prime Minister (2004) N2601

· William Mel v. Coleman Pakalia & Ors (2005) SC990

· Galo Lodge Limited and Barunke Kaman v. Constable Richard Kini and 4 others, WS 1477 of 2006 dated 14th June, 2007

· Steven Charles Pickthall v. Lae Plumbing Pty Ltd [1994] PNGLR 363

· Papua New Guinea Banking Corporation v. Jeff Tole [2002] SC 694

· Jacob Simbuaken v. Neville Egari and the Independent State of Papua New Guinea, WS 512 of 1994 dated 29th September, 2009

· Wama Kints & 3 Ors v. Senior Constable Pius Kundi, Sergeant Vonomo Makis, Commissioner for Police & The Independent State of Papua New Guinea (2001) PGNC 88, N2113

· Yange Lagan & 58 Ors v. The State [1995] N1369, WS 419 of 1995

Overseas cases:

· Subramaniam v. Public Prosecutor [1956] 1 WLR 965

Other References

· McGregor on Damages, (Sweet & Maxwell), 13th Edn, 1972, London

Counsel

W. Hagahuno, for the Plaintiff

T. Tanuvasa, for the fifth defendant

No appearance, for the first, second, third and fourth defendants

27th July, 2010

DECISION

1. DAVANI .J: This matter is before me for hearing on assessment of damages, default judgment having been entered against “the defendants” on 7th November, 2007 (Court Order of 7th November, 2007 and entered on 20th November, 2007).

Background

2. The plaintiff’s Writ of Summons and Statement of Claim was filed on 10th February, 2006 by Williams Attorneys. The Statement of Claim pleads that the plaintiff was shot by policemen and severely wounded. That this incident occurred on 26th January, 2004 at Waigani Drive in Port Moresby. The Statement of Claim pleads that the plaintiff was in a Toyota Corolla Sedan Registration No. BBM-671 with one other male person, when the vehicle was shot at by policemen after which the victim was dragged out of the police vehicle and severely beaten up by policemen. He claims that he received gun shot injuries to his right elbow region as well as over the right lower thorax region of his back.

3. Par.14 of the Statement of Claim pleads that the plaintiff was admitted to the Port Moresby General Hospital whilst unconscious, later regained consciousness the next day, was treated and was then discharged.

Analysis of evidence and the law

(i) The plaintiff’s claim

4. The Statement of Claim pleads that the first to the third defendants were at that time policemen and were acting in the course of their employment with the fifth defendant State when they shot and beat up the plaintiff. He pleads that the fourth defendant, then Police Commissioner, is vicariously liable for the acts and omissions of the first, second and third defendants. The Statement of Claim also pleads that the fifth defendant State, as the first, second, third and fourth defendants’ employer, is liable for the acts and omissions of the first, second and third defendants under the Wrongs (Miscellaneous Provisions) Act (‘Wrongs Act’).

5. In relation to liability, although, vaguely pleaded in par.6 of the Statement of Claim, the Statement of Claim does not plead;

- That the policemen were acting in the course of their employment with the State when the incident/shooting allegedly occurred;

- Par.6 is also not supported by evidence that;

(i) The policemen were on duty that fateful night.

(ii) That it was whilst on duty that they were told or authorised by their superiors to attack the plaintiff.

(iii) That their actions were authorised by the fourth defendant Commissioner and ultimately, the State.

6. Obviously, the nexus between the plaintiff and the third and fourth defendants, as required by s.1 of the Wrongs Act, more particularly the aspect of vicarious liability, is not properly pleaded. Although, default judgment was entered, it can be revisited (William Mel v. Coleman Pakalia & Ors (2005) SC990), I can dismiss the claim on that basis alone. Which is why it is incumbent on the Judge entering default judgment, to always carefully screen the Writ of Summons and Statement of Claim because where there are serious anomalies in the Statement of Claim, as in this case, default judgment should not be entered and the application should be dismissed (see Galo Lodge Limited and Barunke Kaman v. Constable Richard Kini and 4 others WS 1477 of 2006 dated 14th June, 2007). Notwithstanding, I will proceed to consider the damages component of this claim.

(ii) Damages

7. The plaintiff claims to have suffered serious injuries as a result and pleads it in the Statement of Claim.

8. The particulars of injuries alledgly suffered are pleaded at pars. 20 to 23 of the Statement of Claim and read as follows;

“20. On examination, it was revealed that the plaintiff received gun shot injuries to his right elbow region as well as over the right lower thorax region of the back.

21. Immediately after the shooting the elbow was bleeding profusely whilst the plaintiff felt uncomfortable and breathless due to the thoracic penetrating injury from the bullet.

22. Radiograph of the elbow reveals that the plaintiff suffered a communicated fracture of the elbow region of the olecranon with multiple bullet remnants in situ. The facture was multifragmented and extended proximally, traversing the articular surface of the elbow joint.

23. The thorax wound was oozing blood and was tender with swelling. The right thoracic wall was splinted.”

9. Par.24 of the Statement of Claim pleads particulars of permanent injuries. It reads;

“PARTICULARS OF PERMANENT INJURIES SUFFERED

24. Dr Ikau Kevau reviewed the plaintiff on the 14th November, 2005 noted the permanent injuries suffered by the plaintiff as follows;

A. Elbow Injury

(b) Right elbow in a fixed flexion position restricting and seriously affecting movement ranges. Being the dominant hand, he is now restricted with all functions of the dominant hand.

(c) The scars of split graft are completely healed, but tend to be adherent, thus enhancing mobility restrictions.

(d) Underlying fracture healed in a fixed bony mass, contributing significantly to limb immobility and functions restrictions.

(e) Finger gripping and grasping functions are very poor whilst pain is constant and activities turn to aggravate it.

(f) All rotary movement around the elbow are restricted and the plaintiff has numbness and paraesthesis distally...