Losia Mesa v Gari Baki, Commissioner of Police and Sylvester Euga, Provincial Police Commander and Cletus Kumasi and John Takapan and Alois Kukisal and The Independent State of Papua New Guinea (2009) N3681

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 26 June 2009
• Court: National Court
• Citation: (2009) N3681
• Docket Number: WS NO 731 OF 2007
• Year: 2009
• Judgement Number: N3681

Full Title: WS NO 731 OF 2007; Losia Mesa v Gari Baki, Commissioner of Police and Sylvester Euga, Provincial Police Commander and Cletus Kumasi and John Takapan and Alois Kukisal and The Independent State of Papua New Guinea (2009) N3681

National Court: Cannings J

Judgment Delivered: 26 June 2009

N3681

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 731 OF 2007

LOSIA MESA

Plaintiff

V

GARI BAKI, COMMISSIONER OF POLICE

First Defendant

SYLVESTER EUGA, PROVINCIAL POLICE COMMANDER

Second Defendant

CLETUS KUMASI

Third Defendant

JOHN TAKAPAN

Fourth Defendant

ALOIS KUKISAL

Fifth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Sixth Defendant

Kimbe: Cannings J

2009: 22 April, 26 June

JUDGMENT

DAMAGES – assessment of damages – trespass to the person – general damages – special damages – exemplary damages – unlawful actions of police.

The plaintiff was working in his office at a local-level government when the deputy mayor walked in accompanied by armed police officers and demanded that the plaintiff leave immediately and hand over the keys to his office and an official vehicle. When he refused to comply with the demand the deputy mayor and the police officers assaulted the plaintiff and forced him to a nearby police station and on the way he was again assaulted. He was also assaulted on arrival at the station. The plaintiff suffered multiple soft tissue facial injuries and an eye injury, which has led to blurred vision and reduced visual acuity. He sued the Commissioner of Police, the police officers involved and the State. The cause of action was trespass to the person. He secured default judgment against the Commissioner and the State. This was a trial on assessment of damages.

Held:

(1) General damages were assessed at K25,000.00.

(2) Special damages were inadequately particularized. Hence nothing was awarded.

(3) Exemplary damages were assessed at K7,000.00.

(4) The total amount of damages awarded was K32,000.00.

(5) In addition, interest of K9,472.00 is payable, making the total judgment sum K41,472.00.

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

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

David Michael v Dennis Marus (2008) N3374

George Chapok v James Yali (2008) N3474

John Pias v Michael Kodi & Ors (2006) N2972

Lance Kolokol v The State (2009) N3571

Latham v Henry [1997] PNGLR 435

Linda Stanley v Mathew Kawa & The State (2005) N2865

Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364

Peter Kuriti v The State [1994] PNGLR 262

TRIAL

This was a trial on assessment of damages.

Counsel

G Linge, for the plaintiff

F Cherake, for the 6th defendant

26 June, 2009

1. CANNINGS J: The plaintiff, Losia Mesa, has successfully sued the Commissioner of Police and the State for assault and battery against him by members of the Police Force. The cause of action is trespass to the person (David Michael v Dennis Marus (2008) N3374; George Chapok v James Yali (2008) N3474).

2. Default judgment has been entered. The plaintiff has come to the court for an assessment of damages.

THE INCIDENT

3. Mr Mesa was in October 2005 the Manager of the Kimbe Urban Local-level Government. He was 46 years old at the time. He had been a public servant, working in various positions, mainly at the local and district level in both East New Britain and West New Britain, for 27 years. A dispute had been brewing within the LLG and some people, particularly the deputy mayor of Kimbe, wanted Mr Mesa removed from the office of Manager.

4. On the afternoon of Friday 21 October, Mr Mesa was working in his office when the deputy mayor and two police officers (the fourth and fifth defendants) and a number of other people entered. They kicked and punched Mr Mesa and forced him out of his office at gunpoint and into a waiting police car. He was taken to the nearby Kimbe police station and on the way he was assaulted again. He was assaulted a third time on arrival at the police station. He was not charged with anything. He was allowed to leave the station at 6.00 pm that day. He was taken in a police vehicle to his home at Galilo village in the Hoskins district. He arrived home at 7.30 pm and then went to Valoka health centre. He was treated with painkillers. He was told by the duty nurse that due to the seriousness of his injuries he should go to Kimbe General Hospital, which he did the next day.

THE INJURIES

5. A report by Dr Joseph Amos of the Accident and Emergency Department summarises the condition that Mr Mesa was in when he presented to the hospital:

On examination he was in severe pain, conscious and had obvious injuries especially the right black eye. Appetite was poor due to injuries sustained to the mouth region.

Local examination revealed:

1. Right eye – black eye, swollen and inflamed, pupils were reacting to light. Has bloody anterior chamber and visual acuity was reduced on the right side.

2. Mouth – mucous membranes had evidence of lacerations, cuts and was sore (inflamed).

3. Head/face – swollen and very tender.

4. Upper extremities – bruises/cut – elbow regiones, both sides.

5. Lower extremities – bruises/scratches.

6. Thigh region – tender and sore.

7. Right lumber region – swollen and tender and interferes with his daily activities.

In summary he has sustained extensive soft tissue injuries. Should the injuries be on the vital organs, should have been in a critical state.

He was treated with Tet Tox 0.5 cc, Buscopan, Panadol and Amoxycillin.

6. He was treated and discharged without admission.

7. Eleven months later, in September 2006, he was examined by Dr Melvin Usita in Port Moresby, complaining of blurred vision. He was recommended for vision correction with eyeglasses.

8. In January 2009 he was re-examined by Dr Amos at Kimbe General Hospital, who reports:

A. EYE EFFECTS

Still has blurry vision.

Visual acuity has also been reduced.

Seen by ophthalmologist and has refractive errors.

The bloody anterior chamber on the right eye has gone, no lens opacity noted.

Still has watery eyes and sunlight exposure not good.

B. HEAD AND NECK

The buccal mucosa laceration has completely healed.

The facial scars are giving him problems especially when shaving it bleeds now and then.

Also had effects from the scarring tissue including the elbow and the lower limbs and thigh, including the lumber region.

C. PSYCHOLOGICAL

Has post-traumatic stress disorder clinically (NB: has not been assessed by a psychiatrist).

Also has evidence of depression.

THE CLAIM

9. The plaintiff is claiming:

· general damages, K597,000.00; and

· special damages, K12,000.00;

· exemplary damages, K6,000.00; being

· a total damages claim of K615,000.00.

GENERAL DAMAGES

10. This is intended to compensate the plaintiff for the pain and suffering, humiliation, distress and inconvenience caused by the unlawful actions of the deputy mayor and the police officers. He suffered bodily injury and also has to be compensated for the shock and distress caused by the incident. The purpose of an award of general damages is to compensate a person; to put them as far as possible in the same position they would have been had they not suffered the injuries incurred because of another person’s wrongful conduct. General damages are intended to be neither a reward nor a penalty (Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364).

11. In assessing general damages I have considered three of my decisions in previous cases that bear some similarity to the present case. They are summarised in table 1.

TABLE 1: ASSESSMENT OF GENERAL DAMAGES: ASSAULTS BY MEMBERS OF DISCIPLINED FORCES AND/OR EYE INJURIES

No Case Details Amount

1 Linda Stanley v Members of a police mobile squad were K25,000.00
Mathew Kawa travelling along a highway when they
& The came upon an incident in which a drunken
State man was causing a disturbance – police
(2005) N2865 tried to arrest him but there was a scuffle,
shots were fired and the plaintiff, an
innocent bystander, was hit in the eye by a
stray bullet, losing 50% of her visual
capacity in one eye.

2 John Pias v Three Defence Force soldiers unlawfully K60,000.00
Michael Kodi assaulted the plaintiff in a hotel – he lost
& Ors the sight of one eye – general damages
(2006) N2972 were assessed as representing the pain and
suffering and loss of amenities of life
associated with his loss of 100% vision in
the right eye.

3 Lance Kolokol The plaintiff, an innocent man, was K25,000.00
v The State walking with friends near a public road –
(2009) N3571 when he saw the police he ran away and
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.

12. The present case is similar to both Stanley and Pias as in both of those cases the plaintiff suffered a serious eye injury. I examined the precedents on general damages for eye injuries in Stanley before arriving at the figure of K25,000.00. I regard Mr Mesa’s eye injury as not as serious as in either Stanley or Pias. This means that if it were only the eye...