Jessie Namba v Constable Moses Naru and Commissioner of Police and The Independent State of Papua New Guinea (2011) N4396

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 23 September 2011
• Court: National Court
• Docket Number: WS No 564 Of 2009
• Citation: (2011) N4396
• Year: 2011
• Judgement Number: N4396

Full Title: WS No 564 Of 2009; Jessie Namba v Constable Moses Naru and Commissioner of Police and The Independent State of Papua New Guinea (2011) N4396

National Court: Cannings J

Judgment Delivered: 23 September 2011

N4396

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 564 OF 2009

JESSIE NAMBA

Plaintiff

V

CONSTABLE MOSES NARU

First Defendant

COMMISSIONER OF POLICE

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Madang: Cannings J

2010: 18 December,

2011: 17 June, 23 September

JUDGMENT

DAMAGES – assessment of damages – general damages – special damages – exemplary damages – breach of human rights – unlawful actions of police – vicarious liability – amputated leg

A member of the Police Force, while on police duty, deliberately shot the plaintiff in the leg, for no good reason. The injury was so severe his leg had to be amputated below the knee. The plaintiff sued the police officer who shot him, the Commissioner of Police and the State, claiming general damages, compensation for breach of human rights, special damages and exemplary damages. Default judgment was entered against the Commissioner and the State, with damages to be assessed. This is the trial on assessment of damages.

Held:

(1) This was a case where compensation for breaches of human rights should be assessed separately from general damages (covering pain and suffering, loss of functionality of the plaintiff’s leg etc).

(2) General damages were assessed at K150,000.00; and special damages at K20.00.

(3) The breach of constitutional rights was so severe as to warrant an award of exemplary damages, of K30,000.00.

(4) The plaintiff’s human rights were breached on three distinct occasions:

· when the first shot was fired, which missed;

· when the next two shots were fired, which struck him;

· when he was denied medical treatment.

(5) He was awarded K5,000.00 x 3 = K15,000.00 compensation for breach of human rights.

(6) The total amount of damages awarded was K195,020.00. In addition, interest of K67,086.80 is payable, making the total judgment K262,106.80.

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

Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24

Lance Kolokol v The State (2009) N3571

Latham v Henry [1997] PNGLR 435

Peter Kuriti v The State [1994] PNGLR 262

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160

Seupain v The State (2009) N3573

William Mel v Coleman Pakalia and Others (2005) SC790

TRIAL

This is a trial on assessment of damages.

Counsel

W Akuani, for the plaintiff

No appearance for the defendants

23 September, 2011

1. CANNINGS J: The plaintiff, Jessie Namba, has successfully sued the State for breach of his human rights by the Police Force. Default judgment has been entered. The plaintiff has come to the court for an assessment of damages.

2. His human rights were breached on Saturday 2 June 2007 at Sisiak 2 on the outskirts of Madang town. The plaintiff was 23 years old at the time. At 2.00 am he was with a group of other young men in a truck, which was pulled over by a police patrol on the road leading to Beon Jail. The police and the State have not made an appearance in this case despite being given adequate opportunity to do so, so the court has only the evidence of the plaintiff to go on. No reason has been provided not to believe his story. There is no evidence that he or any member of his group committed an offence or did anything wrong or did not cooperate with the police. The plaintiff got out of the truck but the police, angry for some reason with the occupants, fired shots in the air and assaulted those members of the group who had not got out immediately. The plaintiff, being afraid of what might happen to him, ran off in the direction of his home. He got only part of the way before being intercepted by the first defendant, Const Moses Naru, of Madang Police. Const Moses shouted at him to stop, which he did, and the plaintiff put his hands in the air as a sign of surrender. Const Moses, however, swore at him and fired a shot at his legs, which missed. Two other shots were then fired into his leg, hitting him in the left leg, causing severe pain and loss of blood. He was taken back to the police vehicle and then to the nearby Jomba police station where he was detained. He continued to lose blood. Later that day the police took him to Modilon General Hospital. He was admitted to the surgical ward. His injured leg was amputated below the knee. He remained in hospital for 54 days. He is permanently disabled.

3. Default judgment has been entered. That judgment has not been set aside. So the factual elements of the causes of action as pleaded and summarised above, and their legal consequences, are taken as proven (William Mel v Coleman Pakalia and Others (2005) SC790).

THE CLAIM

4. The plaintiff is claiming against the State:

· general damages, K200,000.00;

· special damages, K20.00;

· exemplary damages, K30,000.00;

· compensation under Constitution, Sections 57 and 58, K50,000.00; and

· damages for breach of the Arrest Act, K10,000.00.

5. He also claims against the Commissioner:

· punitive damages, K50,000.00.

Thus the total amount of damages and compensation claimed is K340,020.00, plus interest.

THE APPROACH TO ASSESSING DAMAGES

6. As I indicated in Lance Kolokol v The State (2009) N3571, there are at least two ways of assessing damages in human rights cases. The first is to identify the different causes of action and award damages or compensation for each cause of action. An alternative approach is to award just one, global, sum of damages or compensation for all causes of action. In the present case the plaintiff’s counsel, Mr Akuani, has submitted that the court should take the first approach: compensation for breaches of human rights should be assessed separately from general damages (covering pain and suffering, loss of functionality of the plaintiff’s leg etc). I agree, generally, that, in this case, that is the best approach to take. General damages should be assessed to compensate the plaintiff for the actual shooting injury and its after-effects. Then a separate sum will be assessed, which will be compensation for the breaches of human rights committed by the police. Special damages and exemplary damages will be considered separately. As for the alleged breach of the Arrest Act, this aspect of the case has not been well articulated and is subsumed by other causes of action, so there will be no separate award of damages for it. Likewise with the claim for punitive damages against the Commissioner of Police. This has not been properly pleaded and besides that there is no head of damages known as ‘punitive damages’ in the laws of Papua New Guinea. I will therefore assess damages in the following categories:

· general damages;

· special damages;

· exemplary damages; and

· compensation under Constitution, Sections 57 and 58.

GENERAL DAMAGES

7. This is intended to compensate the plaintiff for the pain and suffering, inconvenience, loss of use of his leg and other losses that are endured by anyone who suffers this sort of injury. In Seupain v The State (2009) N3573 I reviewed the amounts of damages awarded in negligence cases for an amputated leg. In that case the plaintiff was a three-month old baby who was negligently administered an inappropriate drug by an aid post orderly. General damages were assessed at K100,000.00. In the present case, the plaintiff was 23-years old at the time he was shot. He can remember the incident, which will no doubt haunt him for the rest of his life. It is difficult to overestimate the trauma, distress and indignity caused to this young man. It is extremely difficult to quantify what he has lost. Because of the circumstances in which he was injured and because he was at an age at which he had a full appreciation of what happened to him and how unnecessary and callous were the actions of the police officer who shot him and because such an abrupt change to his life was wrought upon him a greater amount than that awarded in Seupain is warranted. I assess general damages at K150,000.00.

SPECIAL DAMAGES

8. The plaintiff claims just K20.00 for cost of a medical report. I award that sum.

EXEMPLARY DAMAGES

9. Since the Supreme Court’s decision in Abel Tomba v The State (1997) SC518, the courts have been reluctant to award exemplary damages against the State for abuse of police powers. The question to ask is whether the breach of the law by police officers is a technical breach or whether it involves a significant and unwarranted departure from the proper exercise of police powers; eg where a police operation is unauthorised and individual police officers are not named as defendants. If the facts fit into the first category, exemplary...