Lance Kolokol v Constable George Amburuapi and Constable Joshua Kass and The Independent State of Papua New Guinea (2009) N3571

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 27 January 2009
• Court: National Court
• Citation: (2009) N3571
• Docket Number: WS NO 1091 OF 2006
• Year: 2009
• Judgement Number: N3571

Full Title: WS NO 1091 OF 2006; Lance Kolokol v Constable George Amburuapi and Constable Joshua Kass and The Independent State of Papua New Guinea (2009) N3571

National Court: Cannings J

Judgment Delivered: 27 January 2009

N3571

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1091 OF 2006

LANCE KOLOKOL

Plaintiff

V

CONSTABLE GEORGE AMBURUAPI

First Defendant

CONSTABLE JOSHUA KASS

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Madang: Cannings J

2008: 12 September

2009: 27 January

JUDGMENT

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

The plaintiff was walking with friends near a public road. When he saw the police, he ran away. He was chased on suspicion of being involved in an armed robbery. He was caught, assaulted and shot in the leg and foot, then detained in custody for three days before being taken before a court, which granted him bail. He sued the police officers who assaulted and shot him, and the State, claiming general damages, compensation for breach of human rights, special damages and exemplary damages. Default judgment was entered against the defendants, 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 K25,000.00.

(3) The plaintiff’s human rights were breached on four distinct occasions:

· when he was shot the first time;

· when he was shot the second time;

· when he was assaulted;

· when he was denied medical treatment.

(4) On each of those occasions, three of his human rights were breached:

· protection from inhuman treatment (Constitution, s 36);

· right to the full protection of the law (Constitution, s 37(1));

· right to be treated with humanity and with respect for the inherent dignity of the human person (Constitution, s 37(17)).

(5) He was awarded K5,000.00 x 4 = K20,000.00 compensation.

(6) Special damages were assessed at K204.00.

(7) The breach of constitutional rights was so severe or continuous as to warrant an award of exemplary damages, of K10,000.00.

(8) The total amount of damages awarded was K55,204.00.

(9) In addition, interest of K16,782.00 is payable, making the total judgment K71,986.00.

Cases cited:

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

David Kofowei v Augustine Siviri and Others [1983] PNGLR 449

Latham v Henry [1997] PNGLR 435

Milia Yongole Kuri v Walter Kapty & NHC, WS No 1775 of 2004, 20.02.08

Ngants Topo v The State (2008) N3478

Pawa Kombea v Semal Peke [1994] PNGLR 572

Peter Kuriti v The State [1994] PNGLR 262

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160

Teine Molomb v The State (2005) N2861

William Mel v Coleman Pakalia and Others (2005) SC790

Abbreviations

The following abbreviations appear in the judgment:

CID – Criminal Investigation Division

J – Justice

K – Kina

Ltd – Limited

N – National Court judgment

NHC – National Housing Corporation

No – number

PNGLR – Papua New Guinea Law Reports

Pty – Proprietary

SC – Supreme Court judgment

v– versus

WS – Writ of Summons

TRIAL

This is a trial on assessment of damages.

Counsel

W Akuani, for the plaintiff

No appearance for the defendants

27 January, 2009

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

THE INCIDENT

2. His human rights were breached by members of the Police Force on the night of Friday 8 April 2005 in Madang town. The plaintiff was a 17-year-old grade 11 student at Tusbab High School. He was walking near Modilon Road with a group of friends. They were returning home after going for a walk to buy betel nut. It was 8.00 pm. Shortly beforehand there had been an armed robbery in town. The plaintiff was not involved in the robbery. A police unit was mobilised. It was cruising along the road looking for suspects. The plaintiff and his friends were about to turn on to the bush track that runs between Modilon Road and Kibilak Crescent in Newtown. The police saw the group, turned the vehicle in the direction of the track, flashed the vehicle lights on them and motioned them to stop.

3. The plaintiff saw that the police were armed. He was scared. He ran, with his friends, along the track. The police fired shots. The plaintiff kept running. He jumped into tall grass to hide, to no avail. The police caught him there. Constable Joshua Kass (the second defendant) shot him in the left thigh with a rubber bullet, then dragged him to Modilon Road. Three police vehicles were there. Constable Kass and other police officers interrogated him. They asked him where his gun was. He replied that he had no gun. They asked for the names of his friends. He refused to give their names. The police kicked and assaulted him. Constable George Amburuapi grabbed him by the trousers. He pulled him back along the bush track where he shot him in the left ankle with a live bullet.

4. The plaintiff lost blood and was in severe pain. He was taken back to the police vehicles. They went to the nearby Jomba police station. Then he was taken to Newtown. He was forced to tell the police where his friends’ houses were. His friends were rounded up. They were assaulted too. He was taken back to the police station. He witnessed his friends being kicked and beaten with pieces of rubber hose. He was not further assaulted because of the condition he was in.

5. He was detained overnight in the police lock-up. The wound continued to bleed. He remained in pain. He feared dying through loss of blood. He was given no medical treatment until 9.00 am Saturday when the police took him to Modilon General Hospital. After getting treated, he was taken to the CID office in town. Statements were taken, then he was taken back to Jomba. He remained there until Monday 11 April. He made a court appearance and was granted bail.

6. He went back to the hospital that day, and was admitted to the surgical ward. His leg was operated on and put in plaster. He remained there for four days.

7. He and his friends were told that they were under arrest for armed robbery. But the only thing they were charged with was being in possession of a dangerous weapon, a metal-handled axe. The case was struck out by the District Court three months later.

8. 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 INJURIES

9. The plaintiff says he is permanently disabled because of the shooting. He cannot play sports he used to enjoy, eg soccer, volleyball, touch rugby and basketball. He cannot even climb trees.

10. These claims are corroborated by a recent report by Dr Alex Peawi, officer-in-charge of the Emergency Department at Modilon General Hospital. He confirmed that the plaintiff, on admission to the surgical ward, was treated for a compound or open fracture of the left distal fibula [the outer and thinner of the two bones of the lower leg, extending from the knee to the ankle]. Dr Peawi notes:

He was seen by me recently and the following was noted:

· An ugly scar to the left lateral malleolus [the bony protuberances, one on each side of the ankle, at the lower end of the fibula and tibia respectively].

· Constant pain.

· Unsteady gait/walk.

· X-ray reveals a fragment of pellet embedded inside the fibula causing reaction around the fibula.

Current risk:

· Risk of re-fracture of fibula as it is a weight bearing bone.

· The bone (fibula) is under strain from the foreign body and risk of fracture is high as well as damage to the ankle joint.

· Requires adequate physiotherapy and analgesics or pain killers.

In view of the above he is awarded 20% loss of function and effective use of limb. 10% permanent loss of appearance including cosmetics, cost of analgesics and medical costs.

THE CLAIM

11. The plaintiff is claiming:

· general damages, K25,000.00; and

· compensation under Constitution, Sections 57 and 58, K10,000.00; and

· damages for breach of the Arrest Act, K3,000.00; and

· special damages, K204.00;

· exemplary damages, K9,000.00; being

· a total damages claim of K47,204.00, plus interest.

THE APPROACH TO ASSESSING DAMAGES

12. 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. A breach of a human right or constitutional right is properly regarded as a discrete cause of action. An alternative approach is to award just one, global, sum of damages or compensation for all causes of action.

13. The first approach is demonstrated by cases such as David Kofowei v Augustine Siviri and Others...