George Kala v Joseph Kupo, as Commissioner Of Police and The Independent State of Papua New Guinea (2009) N3677

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 19 June 2009
• Court: National Court
• Citation: (2009) N3677
• Docket Number: WS NO 1746 OF 2001
• Year: 2009
• Judgement Number: N3677

Full Title: WS NO 1746 OF 2001; George Kala v Joseph Kupo, as Commissioner Of Police and The Independent State of Papua New Guinea (2009) N3677

National Court: Makail, J

Judgment Delivered: 19 June 2009

N3677

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1746 OF 2001

BETWEEN

GEORGE KALA

Plaintiff

AND

JOSEPH KUPO, as COMMISSIONER OF POLICE

First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Mount Hagen: Makail, J

2009: 15th & 19th June

TORT - Trespass - Police assault and battery - Liability and assessment of damages - No evidence to refute allegations of assault and battery - Policemen acting in the course of their duties - Liability established.

DAMAGES - Injuries to face, right forearm and body - Verbal abuse and threats issued - Refusal of request for medical treatment - No permanent disabilities - Award of K5,000.00 as general damages for pain and suffering - Award of aggravated damages of K5,000.00 warranted - Award of K2,800.00 as economic loss.

PLEADINGS - No pleadings to support claim for other heads of damages - Malicious prosecution - Defamation of character - Special damages - Exemplary damages - No awards made.

Cases Cited:

Alex Latham & Kathleen Latham -v- Henry Peni (1990) N1463

Toglai Apa & Bomai Siune & Ors -v- The Police & The State [1995] PNGLR 43

Pawa Kombea -v- Semal Peke [1994] PNGLR 572

Motor Vehicles Insurance Trust -v- Salio Tabanto [1995] PNGLR 214

Abel Tomba -v- The State (1997) SC 518

Tabie Mathias Koim & Ors -v- The State & Ors [1998] PNGLR 247

Demba Kalo -v- Cornnie Akaya & The State (2007) N3213

James Liwa & Peter Kuriti -v- Markis Vanimo & The State (2008) N3486

Text:

The Law of Torts, Law Book Co (9th ed 1998), John G Fleming

Counsel:

Mr. P. Dowa, for Plaintiff

No appearances for Defendants

JUDGMENT

19 June, 2009

1. MAKAIL J: This matter proceeded as an ex parte trial on liability and assessment of damages at 9:30 am on 15th June 2009 even though I was informed by Mr. Dowa of counsel for the Plaintiff at the commencement of the trial that the Defendants were represented by lawyers from the Solicitor General’s office and would be attending that morning to defend the matter.

2. As there was no appearance by lawyers from that office and as time is a precious “commodity” at this day and age, I granted leave to the Plaintiff to proceed ex parte pursuant to his application, and proceeded to receive evidence from him which comprised of his Affidavit sworn on 1st September 2008 and filed on 8th September 2008 (Exhibit “P1”). The Plaintiff also gave brief oral evidence to reaffirm what he had already stated in his Affidavit and also to tell the Court that he has been a PMV driver for about 30 years now. He also said that the two traffic charges of dangerous driving and overloading of passengers laid against him by the police had been dismissed by the Mt Hagen District Court for want of prosecution. Finally, he denied committing these two offences or any wrong doing to warrant such retribution from the policemen that day.

3. After close of the Plaintiff’s case and as there was no representation by the Defendants to present their case, I directed the Plaintiff to file written submissions on the question of liability and also assessment of damages by or before close of business on 16th June 2009 and reserved my decision until 19th June 2009. This is my decision.

LIABILITY

4. In the Writ of Summons filed on 4th December 2001, the Plaintiff seeks general damages, aggravated damages, economic loss, 8% interest and legal costs against the Defendants for trespass. I have specifically listed these various heads of damages above because they will become relevant later on in the assessment of damages in the event that I find the Defendants liable in this case.

5. From the Affidavit of the Plaintiff (Exhibit “P1”), the facts are pretty much straight forward. The Plaintiff was aged 36 at the time he issued this proceeding against the Defendants, but at the date of trial, he is about 43 years old. At the material time, he was a PMV driver and on the relevant date of 21st December 1999, he was driving a PMV truck, a Mitsubishi truck, Registration No P-966 with passengers in it from Togoba to Mt Hagen town when he was intercepted by a police vehicle at Keltiga Primary School.

6. There were policemen in the police vehicle driven by Simon Kik. They accused him of driving dangerously and overloading passengers. They demanded his drivers licence and he produced it to them. They then ordered him out of the motor vehicle and onto the police vehicle. When he got inside the police vehicle, they assaulted him. They struck him on his face and ears several times with their hands. They also gun butted him with a M16 gun. They also struck him several times on his forearm with a wheel spanner. They also swore at him saying “Kan sting”. They even threatened to kill him by telling him, “Bai mipela kilim yu, nogat, yu stap isi”. He received a swollen face and eyes including loosing a lot of blood.

7. They drove him to Mt Hagen Police Station. His PMV truck was driven by one of the policemen to the Police Station. At the Police Station, his passengers saw his injuries as he was taken into the Police Station. The policemen again assaulted him. They also beat up the passengers. The Plaintiff was thrown into the cell and locked up. He was refused medical treatment. He was also charged by the police with two traffic offences of overloading and dangerous driving but these charges were struck out for want of prosecution by the District Court. He denies committing these offences or any wrong doing to warrant such retribution from the policemen.

8. As a result of the repeated assaults, he lost a lot of blood and suffered the following injuries:

1. Multiple bruises to his face and swelling of the face;

2. Paralyzed right ear;

3. Lacerations and paralyzed right forearm; and

4. General bruising and swelling of the body.

9. These injuries were confirmed by Dr Peter Bamul of the Mt Hagen General Hospital in his Medical Report dated 03rd January 2000 where the Plaintiff sought medical treatment. See Annexure “A” of the Affidavit of the Plaintiff (Exhibit “P1”). The report states the type of injuries suffered by the Plaintiff as follows:

“Clinical Findings: (Diagnosis):1. Massive Bilateral Periorbital Haemotoma.

2. Massive swelling of the face.

3. Soft tissue injury to the trunk.

4. Right Forearm – Posterior aspect dirty wound by blunt object.

5. Soft tissue injury to right ear.

Comments: Extensive injury to the body caused by blunt object. The injuries will take some time to heal”.

10. In my view, the injuries described by Dr Bamul are consistent with the two photographs of the Plaintiff’s injuries. See Annexure “B” of the Affidavit of the Plaintiff (Exhibit “P1”). Looking at these two photographs, I can see that the Plaintiff suffered injuries to his face and right forearm. One of the photographs shows the Plaintiff nursing his right forearm, wrapped in white bandage. Further, the injuries described by Dr Bamul are also consistent with the evidence of the Plaintiff that he was hit with a wheel spanner and gun butted on his right forearm and body. Fortunately though, he suffered no permanent disabilities although it took a while for him to fully recover from the injuries. But in my view, they are still serious injuries.

11. All the above evidence describes a typical case of police assault and battery. They also describe a case of brutality and use of excessive force against an innocent and defence-less man. Although the Defendants had filed a defence on 29th April 2002 denying any assault of the Plaintiff by policemen even though they admitted that the Plaintiff and his PMV truck were intercepted along the Okuk highway, after the Plaintiff almost ran into the police vehicle between Togoba and Keltiga, there was neither an appearance by the Defendants nor their lawyers at the trial to lead evidence to establish that defence. Hence, in the absence of evidence denying the assault and battery of the Plaintiff, I am satisfied on the balance of probabilities that the policemen assaulted and battered the Plaintiff in the police vehicle at Keltiga and also at the Mt Hagen Police Station on 21st December 1999. I am also satisfied that the Plaintiff was detained and refused medical treatment for the injuries sustained. I am further satisfied that there was no justification by the policemen to assault and detain the Plaintiff.

12. It is also clear from the evidence of the Plaintiff that he was intercepted by the policemen along the road for allegedly driving dangerously and overloading. It is also clear that the Plaintiff was brought to Mt Hagen Police Station were he was arrested and charged. To my mind, these events sufficiently establish that the policemen were acting in the course of their duties that day when they stopped the Plaintiff at Keltiga Primary School. Therefore, I am satisfied that the policemen were acting in the course of their duties when they assaulted and battered the Plaintiff. In the circumstances, I hold the Defendants liable for the injuries sustained by the Plaintiff as a result of the actions of the policemen that day.

DAMAGES

13. Having held the Defendants liable for the injuries...