Thomas Wapi v Sergent Koga Ialy and Constable Robert Gafiye and Gari Baki, Police Commissioner and The Independent State of Papua New Guinea (2013) N5108

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 25 March 2013
• Court: National Court
• Citation: (2013) N5108
• Docket Number: WS 516 OF 2009
• Year: 2013
• Judgement Number: N5108

Full Title: WS 516 OF 2009; Thomas Wapi v Sergent Koga Ialy and Constable Robert Gafiye and Gari Baki, Police Commissioner and The Independent State of Papua New Guinea (2013) N5108

National Court: Kandakasi, J

Judgment Delivered: 25 March 2013

N5108

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 516 OF 2009

BETWEEN

THOMAS WAPI

Plaintiff

AND:

SERGENT KOGA IALY

First Defendant

AND:

CONSTABLE ROBERT GAFIYE

Second Defendant

AND:

GARI BAKI, POLICE COMMISSIONER

Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINE

Third Defendant

Waigani: Kandakasi, J.

2012: 13th August

2013: 25th March

CAUSE OF ACTION – Personal injuries – State servant and agents acting outside their lawful duty and responsibility – State not specifically authorizing such action - No liability against State.

CONSTITUTION – Breach of constitutional rights – Police actions or conduct not without duty and responsibility of - Servant on own frolic and detour of their own – State on liable for unlawful and unconstitutional actions of servants.

PERSONAL INJURIEIS – Assessment of damages – Police arrest - Holding without charge – Denial of bail – Personal assault – Breach of constitutional rights – Plaintiff obliged to prove damage, loss or injury – Only damages proven by evidence recoverable.

Cases Cited:

Coecon Limited (Receiver/Manager Appointed) v. National Fisheries Authority (2002) N2182

PNGBC v Jeff Tole (2002) SC694

William Mel v. Coleman Pakalia & The State (2005) SC790

Alex Awesa v. Southern Highlands Provincial Government (2013) N5107

Francis Kulunga v Michael Wandil (2010) N3910

In re James Eki Mopio [1981] PNGLR 416

Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260

Moip v MVIT [1993] PNGLR 485

Titus Kagl v. Peter Baki (2008) N3318

John Basil Ziporo v MVIL (2008) N3701

Michael Nikints v The Independent State of Papua New Guinea (1998) N1683

Pama Anio v. Aho Baliki (2004) N2719

Fred Angoman v. IPBC of PNG (2011) N4363

Grace Lome by her next friend Jack Lome v. Allan Kundi Western Highlands Provincial Police Commander (2009) N3791

Counsel:

J Nandape, for the Plaintiff

No Appearance, for the Defendant

25th March, 2013

1. KANDAKASI J: Thomas Wapi is seeking a K10,000.00 judgment with 8% interest for breach of his constitutional rights arising out of an arrest or detention for one day at the Boroko Cells in the National Capital District without charge, no opportunity to speak to his lawyer or a family member, being caused to clean a dirty toilet with his shirt and physical assault. These actions were allegedly committed by two policemen, Sergeant Koga and Constable Robert Gafiye, the First and Second Defendants respectively. Default judgment being entered against the defendants the matter came before me for assessment of damages.

Relevant Issue

2. The main issue to resolve is this. Is Thomas entitled to the damages he is claiming against each of the defendants? Of course there will be subsidiary questions in respect of each of the heads of damages Thomas is claiming, which we will consider when we come to them. These questions can be answered by reference to the principles governing the assessment of damages, what is pleaded and the evidence before the Court.

Relevant Principles

3. Turning first to the relevant principles I note that, in Coecon Limited (Receiver/Manager Appointed) v. National Fisheries Authority,

(2002) N2182

1 I summarized the relevant principles governing assessment of damages as follows:

“A survey of the authorities on assessment of damages after entry of judgment on liability mainly in default of a Defendant’s defence, clearly show the following:

1. The judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim.

2. Any matter that has not been pleaded but is introduced at the trial is a matter on which the Defendant can take an issue on liability.

3. In the case of a claim for damages for breach of contract as in this case, such a judgment confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach.

4. The Plaintiff in such a case has the burden to produce admissible and credible evidence of his alleged damages and if the Court is satisfied on the balance of probabilities that the damages have been incurred, awards can be made for the proven damages.

5. A Plaintiff in such a case is only entitled to lead evidence and recover such damages as may be pleaded and asked for in his statement of claim.”

4. This summation of the principles have been cited with approval, referred to, adopted and applied in a number of National and Supreme Court decisions. This includes the decisions in PNGBC v. Jeff Tole

(2002) SC694.

2 and William Mel v. Coleman Pakalia & The State.

(2005) SC790.

3 In the second case, the Supreme Court elaborated on the first principal and said, once default judgment is entered, the default judgment means the plaintiff has proven the matters pleaded together with their consequence. That means as I said in Alex Awesa v. Southern Highlands Provincial Government (2013) N5107:

“where a default judgment is entered with damages to be assessed, a plaintiff in whose favour the judgment has been entered, has the burden to adduce credible and admissible evidence at the trial establishing the damages claimed in his statement of claim.”

See also: Francis Kulunga v Michael Wandil (2010) N3910.

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Present Case and Effect of Default Judgment

5. In the present case, the entry of default judgment means, Thomas has established his claim has pleaded and the consequences which follows that. But this does not mean that, Thomas must get his alleged damages as a matter of course. Instead, he has the burden of demonstrating exactly the kind of damages he has suffered and the kinds of compensation he is entitled to receive in damages. This is what is left to be determined by this Court.

Matters for Proof and Standard of Proof

6. The relevant question then is, has Thomas established his claim on the required standard? That question can be answered first by reference to a clear statement of what the required standard of proof is and secondly the evidence Thomas has placed before the Court. In respect of the first part, I remind myself that the stand of proof required in civil cases such as the one before me is that, a plaintiff must establish through the calling and adducing of relevant and credible evidence his claim on a balance of probabilities. This means in a civil trial, the Court must be satisfied by the evidence that on a balance of probabilities, the version of events contended for by the plaintiff is true. At the same time, I note that, the precise degree of satisfaction that must be insisted upon varies with the kinds of issues involved. If the issue is trivial, the more easily and swiftly will satisfaction be reached. On the other hand, if the issues are serious as in a allegation of fraud, a greater amount of cogent evidence would be required.

See: In re James Eki Mopio [1981] PNGLR 416, for a more detailed discussion on the different standard s of proof and degree of satisfaction required.

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7. Wilson J., explained with some clarity the same principle in Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260 in the following terms:

“In proportion as the crime is enormous, so ought the proof to be clear. So also in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject matter. A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature; but still it does require a degree of probability which is commensurate with the occasion.

[Thus …] the subject matter may cause variations in the amount of evidence required to tilt the balance or probability.”

8. What all these means in my view is this. In order to succeed in a claim for damages for constitutional or other breaches of the type Thomas complains of here, there must be credible evidence establishing a plaintiff’s claim. I take this to mean that, the mere assertions by a plaintiff of harm or damage being done to him or her is not sufficient. Instead, the assertions must be properly supported by relevant, admissible and credible evidence in order for the claim to be sustained. In respect of claims that involve allegations against the State on account of its servants or agents’ negligence or other unlawful conduct, there must be evidence from independent sources such as hospitals, police or churches and or witnesses supporting the claim.

9. This is necessary for a simple but very important reason. Most of the claims against the State as in this case are often undefended not because there is no contest on the claim but because those employed to defend the state and those involved in the commission of...