Frederick Bauri By his next friend Felix Bauri v Constable Nelson Namo and Others

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Dowa J
• Judgment Date: 04 April 2025
• Neutral Citation: N11236
• Citation: N11236, 2021-03-28,2022-06-13,2020-03-31
• Docket Number: WS NO. 1484 OF 2019
• Date: 04 April 2025
• Counsel: R Geoctau for the plaintiff,S Maliaki for the defendants,Counsel

N11236

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 1484 OF 2019

Between:

Frederick Bauri By his next friend Felix Bauri

Plaintiff

v.

Constable Nelson Namo

First Defendant

and

Gari Baki Commissioner of Police

Second Defendant

and

The Independent State of Papua New Guinea

Third Defendant

LAE: Dowa J

5 October, 1 November 2022; 4 April 2025

CIVIL PROCEEDINGS — Unlawful and negligent shooting causing personal injuries — plaintiff has burden of proof — proof on balance of probability — whether State is vicariously liable-liability established.

DAMAGES — assessment of damages — necessity to prove damages with credible evidence-general damages — special damages — exemplary damages — breach of constitutional rights

Cases cited

Waranaka v Dusava (2009) SC940

Daniel Occungar v Luke Kiliso (2010) N4102

John Kul v The State (2010) N3898

Eton Pakui v The State (2006) N2977

Titus Banga v Madang Port Services Ltd (2011) N4302

Allen Anis v Dobon Taksey (2011) N4468

Kay Pure v Tonnesi Ewebi (2021) N9013

Tirima v Angau Memorial Hospital Board (2005) N2779

Kuima Security Services Ltd v Philip (2024) N11048

Yooken Paklin v The State (2001) N2212

Samot v Yame (2020) N8266

Kerr v Motor Vehicles Insurance (PNG) Trust (1979) PNGLR 251

Kerry v State (2012) N4658

Joe Kape Meta v State (2012) N4745

David v Marus (2011) N4912

Michael Kondai v Gabriel Saul (2015) N5865

Roth v Waironak (2011) N4452

Kunumb v State (2008) N3480

Oni v MVIL (2004) N 2767

Lance Kolokol v Constable George Amburuapi (2009) N3571

Teine v Molomb (2005) N2861

Papua New Guinea Banking Corporation Ltd v Jeff Tole (2002) SC694

Counsel

R Geoctau for the plaintiff

S Maliaki for the defendants

Lawyers for the plaintiff: Valorem Attorneys

Lawyer for the defendants: Solicitor General

DECISION

1. Dowa J: This is a decision on both issues of liability and damages.

2. The Plaintiff instituted proceedings claiming damages for personal injuries allegedly inflicted on him by the First Defendant in the company of other policemen at Bumbu River, Lae, Morobe Province on the morning of 5^th July 2019. The matter went to trial on both issues of liability and damages.

Facts

3. The Plaintiff is a young man, 16 years old student at the time of incident, is a PNG national and resident of Lae, Morobe Province. On the morning of 5^th July 2019 around 11 am, the Plaintiff along with other young boys were at the Bumbu River next to Bumbu Bridge when confronted by the first Defendant and other policemen. The policemen chased the Plaintiff and the other young boys suspecting them of being involved in criminal activities. During the chase, the first Defendant and other policemen who were armed with firearms shot at the Plaintiff and the boys. The Plaintiff received a gunshot wound on his right arm. He was rushed to Angau Memorial Hospital for emergency treatment and was hospitalized for some time. As a result of the gunshot wound, the Plaintiff, apart from the pain and suffering, is now left with a residual disability of 75% loss in the effective use of his right hand.

4. The Plaintiff alleges that the first Defendant was negligent in the discharge of his firearm. It is alleged that the first Defendant shot the Plaintiff in the course of his official duties and thus the State is vicariously liable for the first Defendant's actions.

5. The Plaintiff instituted this proceeding against the first Defendant seeking damages for personal injury and for pain and suffering as a result of the negligent and unlawful discharge of firearm. It is alleged the Second and third Defendants are vicariously liable for the actions of the first Defendant in the company of other employed policemen.

6. The Defendants denied liability and the matter proceeded to trial on both issues of liability and damages.

Trial

7. It was a contested trial. The Plaintiffs called four witnesses, and the defendants called the first Defendant only. The witnesses gave both oral and affidavit evidence.

Evidence-The Plaintiff

8. Both parties relied on their witnesses' affidavits and presented sworn oral testimonies and were subjected to cross-examination.

9. The Plaintiff, apart from oral evidence, relies on the following Affidavits:

a. Daniel Ronny sworn 24^th and filed 26^th February 2021-Exhibit P1.

b. Affidavit of Fredrick Bauri sworn 28^th March 2021 and filed 20^th April 2021-Exhibit P2

c. Affidavit of Fredrick Bauri sworn 13^th June 2022 and filed 29^th July 2022-Exhibit P3

d. Affidavit of Felix Bauri sworn 31^st March and filed 20^th April 2021-Exhibit P4

e. Affidavit of Felix Bauri sworn 1^st and filed 10^th November 2021-Exhibit P5

f. Affidavit of Gregen Bin sworn 31^st March and filed 20^th April 2021-Exhibit P6.

g. Affidavit of Janeta Ben Sworn 24^th February and filed 26^th February 2021-Exhibit P7

h. Affidavit of Valentin Ben sworn 24^th February and filed 26^th February 2021-Exhibit P8

10. The Plaintiff and the witnesses Gregan Bin and Daniel Ronny were together at Bumbu River when the Plaintiff was shot. Their evidence is identical. The Plaintiff in the company of three other boys, Daniel Ronny, Gregen Bin and one Ismael left Sipaia beach after a swim. They headed for their homes on the other side of Bumbu River. After reaching the Bumbu River, they took a rest. While resting, two unknown boys running towards them, shouting “police! police!” The boys, being apprehensive about what the police might do to them, started running away, in different directions but in proximity. Not very long, policemen appeared and gave chase. During the chase, one of the policemen, identified as the first Defendant, armed with a pump action gun, knelt, took aim at the direction of the boys and opened fire. The gunshot hit the Plaintiff on his right arm. The boys continued running and further shots were filed towards the direction of Bumbu Settlement. The three boys left the Plaintiff behind and ran for their lives. The Plaintiff was bleeding and felt dizzy and lost consciousness and collapsed under one Valentine Ben's house at Bumbu Compound. The three witnesses were cross-examined and the witness, Gregen Bin, remained steadfast that he positively identified the first Defendant as the policeman who fired the shot that hit the Plaintiff.

11. The Plaintiff gave evidence that because of the injuries he received, he lost consciousness and was hospitalized. He suffered a compound fracture of the right humerus and was treated at the surgical ward. He is now left with a 75% residual disability in the effective use of his right arm. He is mentally affected, resulting in Psychiatric assessment at the Psychiatric Centre in Port Moresby.

12. The witnesses, Valentine Ben and Janeta Ben, deposed that on the day of the incident, they saw the Plaintiff running towards Janeta Ben's house and collapsed. They noticed that he was shot in the right arm and was bleeding. They learnt that he was shot by the police. They brought the Plaintiff to the main road and stopped a police vehicle, a Toyota 5-Door, belonging to the Mobile Squad Unit which transported the Plaintiff to Angau Memorial Hospital for treatment.

13. Felix Bauri is the father of the Plaintiff. He is employed as Business Manager by PNG Ports Corporation based in Lae. He gave evidence that after his son was shot, apart from attending to the Plaintiff's medical needs, he took immediate steps, to identify the policeman who shot the Plaintiff. His initial investigations indicated Robin Noah, a policeman based at China Town Police Station, was responsible. After a complaint was lodged, it was revealed that it was Nelson Namo who pulled the trigger. Constable Nelson Namo is also based at China Town Police Station. Both Noah and Namo are look-alike with moustaches. The Plaintiff and other witnesses confirmed that it was Nelson Namo who pulled the trigger that shot the Plaintiff.

14. Felix Bauri deposes that his son has developed psychological problems. He is withdrawn and depressed. He cannot continue his education and has withdrawn from studies.

Defendants' Evidence

15. The Defendants' evidence is from Constable Nelson Namo, the first Defendant. Constable Namo is a policeman based in Lae and at the time of incident, he was attached to the Police Station at China Town. He gave evidence that on the day of the incident, police received information that there was an armed hold-up at Bumbu13A Market and that the suspects escaped towards Bumbu River. The first Defendant and five other policemen from China Town Unit drove through Biwat Compound to block the suspects from escaping. On arrival at Biwat Compound, the policemen walked towards the Bumbu River and noticed some young boys sitting under a tree. On seeing the policemen, the boys numbering up to 8, ran towards Bumbu River, crossed the river and went over to the Bumbu Settlement. The boys behaved suspiciously, and the policemen fired some shots towards Bumbu Settlement. The first Defendant gave evidence that, although he had a firearm with him, he did not discharge any shots at that time. He denies shooting the Plaintiff but says the Plaintiff may have been caught in a crossfire and was unintentionally shot during the hot pursuit of the criminals by police. Constable Namo was cross examined.

Issues

16. The issues for consideration are:

a) Whether the First Defendant and other members of the police force caused personal injuries to the Plaintiff

b) Whether the Second and Defendant are vicariously liable for the actions of the First Defendant and its employed police personnel.

c) Whether the Plaintiffs are entitled to damages, if any.

CONSIDERATION OF THE ISSUES

a) Issue No 1. Whether the First Defendant and other members of the police force caused personal injuries to the Plaintiff

17. The Plaintiff pleaded vicarious liability against the second and third defendants for the actions of its employed policemen especially the first Defendant. The Plaintiff alleges it is the first Defendant who shot him. The First Defendant denies...