David Wari [Wali] Kofowei [Kofewei] v Augustine Siviri, Iopave Kero, Joseph Seki, James Nanatsi and The Independent State of Papua New Guinea [1983] PNGLR 449

• Jurisdiction: Papua New Guinea
• Judge: Ramage AJ
• Judgment Date: 21 December 1983
• Court: National Court
• Citation: [1983] PNGLR 449
• Year: 1983
• Judgement Number: N467

Full Title: David Wari [Wali] Kofowei [Kofewei] v Augustine Siviri, Iopave Kero, Joseph Seki, James Nanatsi and The Independent State of Papua New Guinea [1983] PNGLR 449

National Court: Ramage AJ

Judgment Delivered: 21 December 1983

1 Police—liability of State for wrongs of policemen during course of employment—abuse of constitutional rights—development of underlying law—common law—Crown immunity—independent discretion rule—inappropriate of circumstances of PNG

2 Damages—assessment for assault

3 Constitutional law—rights—breaches—Arrest Act—Bail Act—wrongful imprisonment—breach of constitutional rights

4 POLICE—Action for wrongs—Liability of State—Servants, agents or officers of State—Wrongs (Miscellaneous Provisions) Act (Ch279), s1(1)(a) and (4).

5 POLICE—Action for wrongs—Assault—Liability for of State—Scope of employment or functions—Apprehension—Restraint—Interrogation—Damages—Quantum.

6 POLICE—Action for wrongs—False imprisonment—Nature of tort—Detention in breach of Arrest Act—Damages—Quantum—Liability of State—Gross negligence of police officers—Liability of State limited—Arrest Act (Ch340), s29(2)(a).

7 POLICE—Action for wrongs—Breach of constitutional rights—Detention in breach of Arrest Act—Inhuman treatment—Assaults—Holding in handcuffs—Liability of police force—Damages—Quantum—Constitution, s36(1), s58, Sch1.2.

8 STATE SERVICES—Police force—Action for wrongs—Liability of State—Police as servants, agents or officers of State—Wrongs (Miscellaneous Provisions) Act (Ch279), s1(1)(a) and (4).

9 HUMAN RIGHTS—Breach of constitutional rights—Inhuman treatment—Detention contrary to Arrest Act—Assault by police officers—Holding in handcuffs—Liability of police force—Liability of State—Damages—Quantum—Constitution, s36(1) s58, Sch1.2.

In July 1979, the plaintiff was apprehended by two police officers in relation to a subsequent charge of being in possession of a handbag reasonably suspected of being stolen contrary to s6 of the Summary Offences Act, and taken to the Goroka police station where he was detained and left handcuffed for two days and subjected to treatment over a period of four days including being forced to stand on one leg with his arm raised for long periods, being kicked in the knee, being hit on the back of the neck, being burnt on the lips with a cigarette, being slapped on the face, punched in the chest and being hit with a stick on the penis. At no time was the plaintiff told that he was being arrested or the reason therefor as required by s18(1)(c) of the Arrest Act (Ch339).

In proceedings seeking damages from:

(a) three police officers involved for assault and breaches of constitutional rights;

(b) the officer in charge of the police station for breaches of s18(1) of the Arrest Act (Ch339), s5 of the Bail Act (Ch340) and breaches of constitutional rights and false imprisonment and;

(c) the State as respondeat superior pursuant to s1 of the Wrongs (Miscellaneous Provisions) Act (Ch279).

Held:

(1) The members of the police force of Papua New Guinea are servants or agents of the State for the purposes of s1(1)(a) of the Wrongs (Miscellaneous Provisions) Act (Ch279).

Enever v R (1906) 3 CLR 969, not followed.

(2) The members of the police force of Papua New Guinea may be officers of the State in certain circumstances for the purposes of s1(4) of the Wrongs (Miscellaneous Provisions) Act (Ch279).

Ellis v Frape [1954] NZLR 341, considered.

(3) For the purposes of liability under s1(1) and s1(4) the acts of the police officers must be acts within the scope of their police employment or functions.

(4) In the circumstance the police officers were acting within the scope of their employment or functions in:

(a) apprehending the plaintiff and taking him to the police station;

(b) restraining the plaintiff in handcuffs; and

(c) conducting themselves as they did in the course of interrogation of the plaintiff.

(5) Damages for assault should be assessed at K600 against each police officer.

(6) Exemplary damages should be awarded in the sum of K1,000 against each of the two police officers who had actually assaulted the plaintiff.

(7) Damages for the assault should be paid by the State.

(8) The tort of false imprisonment consists in the act of arresting or imprisoning any person without lawful justification and preventing him from exercising his right to leave the place of detention and continues from apprehension until being dealt with judicially or being released.

(9) Holding the plaintiff in breach of the provisions of the Arrest Act for three days amounted to false imprisonment.

(10) Damages for breach of the provisions of the Arrest Act should be assessed at K600 and as liberty of the subject is to be viewed as a matter of grave importance exemplary damages should be awarded of K400.

(11) Damages for both breach of the provisions of the Arrest Act and false imprisonment would be inappropriate.

(12) The failure of the officer in charge to take the plaintiff before a court promptly amounted to "gross negligence" in the performance of his duties within s29(2)(b) of the Arrest Act and in the exercise of the court's discretion the contribution of the State to the payment of the damages assessed should be limited to K500.

(13) For the purposes of assessing damages for breaches of constitutional rights in respect of s42, s36(1), s37(6) and s37(17) of the Constitution, the actions of all of the police officers from the time of entry into the police station should be taken into account.

(14) As s42 of the Constitution and s18(1) of the Arrest Act cover the same situations damages for both would be inappropriate.

(15) The treatment inflicted on the plaintiff was inhuman and inconsistent with respect for the inherent dignity of the human person within the meaning of s36(1) of the Constitution.

(16) Damages for breaches of constitutional rights should be assessed at K2,500 and exemplary damages of K1,000 awarded.

(17) Pursuant to s58 of the Constitution damages for breaches of constitutional rights should be payable by the police force as a governmental body within the meaning of the term "governmental body" in Sch1.2.

(18) Interest pursuant to s1 of the Judicial Proceedings (Interest on Debts and Damages) Act (Ch52) should be allowed at eight per cent.

Aundak Kupil v The Independent State of Papua New Guinea [1983] PNGLR 350, followed.

Attorney–General for New South Wales v Perpetual Trustee Company Ltd (1952) 85 CLR 237 (at 283); (1952) 25 ALJ 762; [1952] ALR 125, Attorney–General for New South Wales v Perpetual Trustee Company Ltd [1955] AC 457; [1955] 2 WLR 707; [1955] 1 All ER 846, Aundak Kupil v The Independent State of Papua New Guinea [1983] PNGLR 350, Austin v Dowling (1870) LR 5 CP 534, Bales v Parmeter (1935) 35 SR (NSW) 182; (1935) 52 WN 41, Beard v London General Omnibus Company [1900] 2 QB 530, Campbell v Cosans and United Kingdom (1982) 4 EHRR 25, Canadian Pacific Railway Company v Lockhart [1942] AC 591; [1942] All ER 464, Cassell & Co v Broome [1972] AC 1027; [1972] 2 WLR 645; [1972] 1 All ER 801, Century Insurance Company Ltd v Northern Ireland Road Transport Board [1942] AC 509; [1942] 1 All ER 491, Cleland v R (1982) 57 ALJR 15; 43 ALR 619, Commonwealth of Australia v Quince (1944) 68 CLR 227; (1944) 17 ALJ 370; [1944] ALR 50, Cyprus v Turkey (1976) 4 EHRR 482, Daniels v Whetstone Entertainments and Allender [1962] 2 Lloyd's Rep 1, Darling Island Stevedoring and Lighterage Company Ltd v Long (1957) 97 CLR 36; 31 ALJ 208; [1957] ALR 505, Ellis v Frape [1954] NZLR 341, Enever v R (1906) 3 CLR 969; 12 ALR 592, Fisher v Oldham Corporation [1930] 2 KB 364, Bogil Guma v The Independent State of Papua New Guinea (1980) N262, Griffiths v Haines (Unreported New South Wales Supreme Court judgment dated 20 May 1982), Groves v Commonwealth of Australia (1982) 150 CLR 113; 40 ALR 193, Harrison v National Coal Board [1951] AC 639; [1951] 1 All ER 1102, Haynes v Harwood [1935] 1 KB 146,...