Billy Bau v Mathew Bine

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 06 May 2016
• Citation: (2016) N6268
• Court: National Court
• Year: 2016
• Judgement Number: N6268

Full : WS (HR) NO 28 OF 2012; Billy Bau as father and customary representative of Ronnie Bau (Deceased) v Mathew Bine, Bomana Gaol Commander and Richard Sikani, Commissioner of the Correctional Service and The Independent State of Papua New Guinea (2016) N6268

National Court: Cannings J

Judgment Delivered: 6 May 2016

N6268

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 28 OF 2012

BILLY BAU AS FATHER AND CUSTOMARY REPRESENTATIVE OF RONNIE BAU (DECEASED)

Plaintiff

V

MATHEW BINE, BOMANA GAOL COMMANDER

First Defendant

RICHARD SIKANI,

COMMISSIONER OF THE CORRECTIONAL SERVICE

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Cannings J

2015: 27th May & 1st July

2016: 6th May

TORTS – NEGLIGENCE – whether Gaol Commander and/or Commissioner of Correctional Service owe duty of care to prisoners – whether defendants were negligent – whether negligent failure to accord proper medical care led to death of prisoner – whether death was a type of injury not too remote.

HUMAN RIGHTS – enforcement – protection from inhuman treatment – right to full protection of the law – right of detainees to be treated with humanity and respect for inherent dignity of the human person.

Fact:

The plaintiff’s son was a prisoner, detained at a correctional institution (a gaol). His son became ill while in custody, was taken to hospital and died two weeks after admission to hospital. The plaintiff claims that correctional officers at the jail failed to take his son to hospital in a timely manner, despite it being obvious that he was very ill and needed urgent treatment. He commenced proceedings against three defendants – the Gaol Commander, the Commissioner of the Correctional Service and the State – claiming damages for negligence and breaches of human rights: breach of his son’s rights to freedom from inhuman treatment (under Section 36(1) of the Constitution) and to the full protection of the law, in particular the right to be treated with humanity and with respect for the inherent dignity of the human person (under Sections 37(1) and 37(17) of the Constitution). The defendants denied liability. A trial on liability was conducted.

Held:

(1) The plaintiff adduced credible evidence that his son contracted tuberculosis and meningitis while he was imprisoned, and that he was very ill, that his son’s requests to be taken to hospital were declined, that by the time his son was admitted to hospital he was extremely ill and that he died of respiratory failure caused by TB and meningitis. The defendants failed to adduce any evidence. The court made findings of fact accordingly.

(2) The Gaol Commander and the Commissioner of the Correctional Service, and correctional officers at the correctional institution, owed a duty of care to all detainees, including the plaintiff’s son, to take reasonable steps to operate the correctional institution in such a way as to preserve the health and welfare of the detainees. They breached that duty by failing to have a system in place to ensure that a detainee showing obvious signs of serious and life-threatening illness would be taken to hospital for urgent medical treatment and by the negligent failure of correctional officers to secure such treatment for the plaintiff’s son. Those negligent omissions caused the death of the plaintiff’s son which was a type of injury that was reasonably foreseeable and not too remote. The plaintiff established the tort of negligence against the first and second defendants.

(3) The plaintiff’s son had a right under Section 36(1) of the Constitution not to be submitted to torture or to treatment or punishment that was cruel, inhuman or inconsistent with respect for the inherent dignity of the human person. This right affords protection against deliberate acts or omissions intended to inflict torture or cruel, inhuman or undignified punishment or treatment. No breach of this right was proven.

(4) The plaintiff’s son had a right under Sections 37(1) and (17) of the Constitution to the full protection of the law, which right was to be fully available to him as a person in custody, and to be treated with humanity and with respect for the inherent dignity of the human person. These rights afford protection against negligent or reckless acts or omissions. It was proven that the first and second defendants breached those rights through their failure to enforce provisions of the Correctional Service Act dealing with health and hygiene of detainees and to have a system in place to ensure that a detainee showing obvious signs of serious and life-threatening illness would be taken to hospital for urgent medical treatment and by the negligent failure of correctional officers to secure such treatment for the plaintiff’s son. The plaintiff established a cause of action for breach of human rights against the first and second defendants.

(5) The third defendant, the State, was vicariously liable for the negligence and breach of human rights committed by the first and second defendants and by the correctional officers for whose acts and omissions they were responsible.

PNG Cases Cited:

The following cases are cited in the judgment:

Application by R B Nimbituo & 4 Others (2015) N6156

Baisom Konori v Jant Ltd (2015) N5868

Government of Papua New Guinea v Elizabeth Moini [1978] PNGLR 184

Kembo Tirima and Others v Angau Memorial Hospital Board and The State (2005) N2779

Kofowei v Siviri [1983] PNGLR 449

Manuel Gramgari v Steve Crawford (2012) N4950

Otto Benal Magiten v William Moses (2006) N5008

Paul Perex v PNG Institute of Medical Research (2014) N5614

Rabaul Shipping Limited v Peter Aisi (2006) N3173

Re Fisherman’s Island [1979] PNGLR 202

Overseas case:

Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428.

Overseas Tankship (UK) Ltd. v. Morts Dock & Engineering Co. Ltd (“The Wagon Mound) [1961] AC388

Legislations:

Constitution (PNG)

Correctional Services Act

Correctional Services Regulations

Books & Articles

Article 5, Universal Declaration of Human Rights

Article 7, International Covenant on Civil & Political Rights

J.G, Fleming, The Law of Torts 5th Edition

STATEMENT OF CLAIM

This was a trial on liability for negligence and for breaches of human rights.

Counsel

S Ao, for the plaintiff

J Kerenge, for the defendants

6th May 2016:

1. CANNINGS J: The plaintiff, Billy Bau, seeks damages against three defendants arising from the death of his son, Ronnie Bau, a prisoner who died while he was serving a sentence at Bomana Correctional Institution. The defendants are:

· first defendant, Mathew Bine, who was at the time of Ronnie Bau’s death, the Commanding Officer of the Gaol, known generally as the Gaol Commander;

· second defendant, Richard Sikani, who at the relevant time was the Commissioner of the Correctional Service;

· third defendant, the State – which the plaintiff claims is vicariously liable for the wrongful acts and omissions of the first and second defendants (and correctional officers at the gaol, for whose acts and omissions they were responsible).

2. The plaintiff claims that his son became ill while in custody, was not taken to hospital until it was too late and died two weeks after admission. He is claiming damages for negligence and breaches of human rights: breach of his son’s rights to freedom from inhuman treatment (under Section 36(1) of the Constitution) and to the full protection of the law, in particular the right to be treated with humanity and with respect for the inherent dignity of the human person (under Sections 37(1) and 37(17) of the Constitution). The defendants deny liability. A trial on liability has been conducted.

ISSUES

3. These are the main issues:

1 Has the plaintiff established a cause of action in negligence?

2 Has the plaintiff established a cause of action for breach of human rights?

3 If yes, which parties bear liability?

4 What orders should be made?

FACTS

4. Two affidavits by the plaintiff, outlining how his son came to be imprisoned and his illness and annexing medical records, have been admitted into evidence. No evidence has been adduced by the defendants. In this situation I invoke the fact finding principle that if one side of a case presents evidence on a disputed fact and the opposing side presents no evidence to contradict it, the court is obliged to make a finding of fact that is supported by the evidence that has been presented unless that evidence is so incredible that it would not be reasonable to accept it (Re Fisherman’s Island [1979] PNGLR 202, Rabaul Shipping Limited v Peter Aisi (2006) N3173, Manuel Gramgari v Steve Crawford (2012) N4950).

5. I consider that the plaintiff has given credible evidence. The defendants have had ample opportunity to rebut it and have failed to do so. I generally accept the plaintiff’s evidence and make the following findings of fact.

6. In 2007 Ronnie Bau was 28 years old, married with one child and living at Sabama in the National Capital District. On 27 October 2007 he completed a five-week deckhand course at the National...