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

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

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

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 v Henry Tokam (1997) N1645; Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24

Lance Kolokol v The State (2009) N3571 Lance Kolokol v Constable George Amburuapi (2009) N3571

Latham v Henry Peni [1997] PNGLR 435; Peter Kuriti v The State [1994] PNGLR 262; Anton Johan Pinzger v Bougainville Copper Ltd [1985] PNGLR 160; Zita Seupain v Dongo Doro (2009) N3573; William Mel v Coleman Pakalia (2005) SC790

TRIAL

This is a trial on assessment of damages.

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...