Jackson Tuwi v Kenny Taiya & Blacky Kuglame and Joseph Kupo, Commissioner for Police and The Independent State of Papua New Guinea (2010) N3901

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 22 February 2010
• Court: National Court
• Citation: (2010) N3901
• Docket Number: WS NO 731 OF 2003
• Year: 2010
• Judgement Number: N3901

Full Title: WS NO 731 OF 2003; Jackson Tuwi v Kenny Taiya & Blacky Kuglame and Joseph Kupo, Commissioner for Police and The Independent State of Papua New Guinea (2010) N3901

National Court: Makail, J

Judgment Delivered: 22 February 2010

N3901

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 731 OF 2003

BETWEEN

JACKSON TUWI

Plaintiff

AND

KENNY TAIYA & BLACKY KUGLAME

First Defendants

AND

JOSEPH KUPO, COMMISSIONER FOR POLICE

Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Mount Hagen: Makail, J

2008: 12thJune &

2010: 22nd February

TORT - Liability - Trespass - Unlawful police assault - Head and facial injuries - Resultant effect of hearing, vision and jaw impairment - Whether policemen committed assault - Identification of - Whether policemen acting within scope of employment - Vicarious liability - Wrongs (Miscellaneous Provisions) Act, Ch 297 - Section 1.

DAMAGES - Assessment of damages - Head and facial injuries - Recent medical evidence of present medical condition - Relevance of - Lack of - General damages - Special damages - Aggravated damages - Exemplary damages - Breaches of constitutional rights.

PRACTICE & PROCEDURE - Pleading of damages - Specific heads of damages - Mandatory - Failure to plead damages - Effect of - No damages awarded - National Court Rules - Order 8, rules 29 & 33.

Cases cited:

Pius Pup -v- Joseph Kupo, Commissioner for Police & The State: WS No 28 of 2002 (Unnumbered & Unreported Judgment of 11th February 2010)

Martha Limitopa & Poti Hiringe -v- The State [1988-89] PNGLR 364

Losia Mesa -v- Gari Baki as Commissioner of Police & The State (2009) N3681

James Gunambo & Anor -v- Sergeant Thomas John Upaiga & The State: WS No 1321 of 2001 (Unnumbered & Unreported Judgment of 25th January 2010)

Desmond Huaimbukie & Ors -v- James Baugen & The State (2004) N2589

George Kala -v- Joseph Kupo as Commissioner of Police & The State (2009) N3677

Jack Topo -v- Kelly Kaman & The State (2009) 3773

Abel Tomba -v- The State (1997) SC518

James Liwa & Peter Kuriti -v- Markus Vanimo & The State (2008) N3486

Counsel:

Mr Peter Kak, for the Plaintiff

Mr Gaure Odu, for the Defendants

JUDGMENT

22nd February, 2010

1. MAKAIL, J: This is a case where the plaintiff, a 35 years old male from Paiakona village in the Tambul District of the Western Highlands Province is suing the defendants for trespass. In the statement of claim endorsed to the writ of summons filed on 7th July 2003, it is alleged that on 13th January 2003, the plaintiff was a crew of a Toyota Coaster bus bearing registration no: P718X traveling from Mt Hagen towards Lae on the Highlands Highway. At Gonbo village near Mindima in Chimbu Province, an unidentified number of policemen with the first defendants unlawfully assaulted him. As a result, he sustained bodily and head injuries. The defendants have generally denied the allegations in their defence filed on 26th August 2003. Trial was conducted to determine liability and also assessment of damages.

Liability

2. Despite the defendants denying liability, they have not produced evidence to establish their defence at trial. Hence, the un-controverted evidence of the plaintiff in his affidavit sworn on 08th September 2005 and filed on 26th September 2005, (exhibit “P1”) and his supplementary affidavit sworn on 21st September 2005 and filed on 26th September 2005, (exhibit “P2”) are these: on 13th January 2003, the plaintiff was a crew of a Toyota Coaster bus bearing registration no: P718X (“bus”) traveling from Mt Hagen towards Lae on the Highlands Highway. At Gonbo village near Mindima in Chimbu Province, a Toyota ten seater land-cruiser, white in colour was parked on the side of the road. As they were driving up, without warning, it took off by moving onto the road. In order to avoid colliding with it, the driver of the bus turned the bus to the right and overtook the Toyota ten seater land-cruiser.

3. Another Toyota ten seater land-cruiser, bearing registration no: EAD-666, white in colour with the first defendants and some unidentified policemen in it were traveling in the opposite direction and upon realizing that the bus had overtaken the other Toyota ten seater land-cruiser turned around and followed the bus. The first defendant and the other policemen stopped the bus at Gonbo village and the first defendants questioned the driver. In the process they attempted to assault the driver. Upon seeing that, the plaintiff intervened. He asked the first defendants why they wanted to assault the driver and they turned on him. They assaulted him by punching him all over his body with a pistol. They also hit him on his head with a stone and one of them fired a pistol over his head. As a result, he sustained bodily and head injuries.

4. Counsel for the defendants did very little in cross examination of the plaintiff to discredit him as he asked very few questions which did not go to the issue of identification of the first defendants and the assault of the plaintiff. The questions were irrelevant, in my view. Hence, I am left with the unchallenged evidence of the plaintiff and I accept his evidence in relation to how and who assaulted him on that day. I accept that he was assaulted by the first defendants because first, he properly gave the description of the motor vehicle that stopped them as white in colour, bearing a private registration number, EAD-666. Secondly, he saw one of the first defendants holding a gun and fired it over his head, although they were in civilian uniforms. In the circumstances, I am satisfied on the balance of probabilities that the men who assaulted the plaintiff were policemen. They were the first defendants in this case.

5. In relation to whether or not the first defendants were acting within the scope of their employment when they assaulted the plaintiff, I have no doubt in my mind that they were acting within the course of their employment when they assaulted the plaintiff. They were traveling on the road and when they saw the bus over take the other Toyota ten seater land-cruiser, they turned around and followed the bus. They stopped it and in the course of questioning the driver attempted to assault him. When the plaintiff intervened, they assaulted him.

6. I am therefore, satisfied on the balance of probabilities that the first defendants were acting within the scope of their employment when they assaulted the plaintiff. I find the second defendant as the principal and employer of the first defendants vicariously liable under the principles of vicarious liability under section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

Damages

7. In relation to damages, the plaintiff seeks general damages, exemplary damages and special damages including the usual 8% interest and legal costs. It is noted that, he also claims economic loss of K15,000.00 at pp 7 & 8 of his counsel’s written submission although he did not plead it in the statement of claim and asked for it in the prayer for relief. It is further noted that he claims aggravated damages of K15,000.00 at pp 11 & 12 of his counsel’s written submission even though he did not plead it in the statement of claim and asked for it in the prayer for relief. It is finally noted that he also claims damages for breaches of his Constitutional rights of K3,000.00 at p 10 of his counsel’s written submission although he did not plead the details of the alleged breaches in the statement of claim including seeking it in the prayer for relief.

8. It is trite law that, in assessment of damages, the plaintiff bears the onus of proving his or her damages. It is also trite law that only damages that are pleaded may be claimed upon proof by appropriate evidence. In other words, it is mandatory to plead the specific heads of damages in order to maintain and establish them at trial. A failure to plead them will result in no awards.

9. First, the claim for economic loss of K15,000.00 at p 9 of the plaintiff’s counsel written submission can also be disposed off quickly because the plaintiff did neither plead it in the statement of claim nor asked for it in the prayer for relief hence, going by the law on pleadings under Order 8, rule 33(g) of the National Court Rules, he is not entitled to lead evidence and make submissions on it. He has caught the defendants and of course, the Court by surprise by making this new claim. For this reason, this claim is dismissed. Secondly, the claim for aggravated damages of K15,000.00 at pp 11 & 12 of the plaintiff’s counsel written submissions can also be disposed off quickly because the plaintiff did not plead it in the statement of claim and also did not seek it in the prayer for relief. Again, going by the law on pleadings under Order 8, rule 29 of the National Court Rules, he is not entitled to lead evidence and make submissions on it as neither the defendants nor the Court have been made aware of it. For this reason, this claim is dismissed.

10. The third claim of the plaintiff is damages for breaches of Constitutional rights. His counsel makes this claim on his behalf at p 10 of his written submission in the sum of K3,000.00. Again, this is one of those claims which can be disposed off quickly because the plaintiff did not plead it in the statement of claim and also did not seek it in the prayer for relief. To be specific, I cannot find...