Joe Kape Meta also known as Benedict Wakore v The Independent State Of Papua New Guinea (2012) N4745

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 20 July 2012
• Court: National Court
• Citation: (2012) N4745
• Docket Number: MP (HR) NO 171 of 1999
• Year: 2012
• Judgement Number: N4745

Full Title: MP (HR) NO 171 of 1999; Joe Kape Meta also known as Benedict Wakore v The Independent State Of Papua New Guinea (2012) N4745

National Court: Cannings J

Judgment Delivered: 20 July 2012

N4745

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP (HR) NO 171 0F 1999

JOE KAPE META

ALSO KNOWN AS BENEDICT WAKORE

Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

CANNINGS J

Waigani: 21, 22 February 2012

Madang: 16 March 2012

Waigani: 8 June, 20 July 2012

DAMAGES – assessment of damages – general damages – special damages – exemplary damages – compensation for breach of human rights – unlawful actions of police – vicarious liability – amputated leg.

Members of the Police Force, while on police duty, shot the plaintiff in the leg for no good reason. The injury was so severe the plaintiff’s leg had to be amputated above the knee. The plaintiff succeeded at an earlier trial in establishing a cause of action for breach of human rights against the State, which was held to be vicariously liable for the conduct of the police. A separate trial on assessment of damages was conducted. The plaintiff claimed general damages (K175,000.00), special damages (K250.00), exemplary damages (K30,000.00) and compensation for breaches of human rights (K20,000.00), a total claim of K225,250.00.

Held:

(1) General damages were assessed at K175,000.00. Special damages were assessed at K250.00. The breach of constitutional rights was so severe as to warrant an award of exemplary damages of K30,000.00. The plaintiff’s human rights were breached on three distinct occasions, so he was awarded K5,000.00 x 3 = K15,000.00 compensation for breach of human rights.

(2) The total amount of damages and compensation awarded was K220,250.00. In addition, interest of K257,075.80 is payable, making the total judgment sum K477,325.80.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518

Andale More and Manis Andale v Henry Tokam and The State (1997) N1645

Jessie Namba v Constable Moses Naru, Commissioner of Police & The State (2011) N3573

Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598

Lance Kolokol v The State (2009) N3571

Latham v Henry [1997] PNGLR 435

Peter Kuriti v The State [1994] PNGLR 262

Vincent Kerry v The State (2012) N4658

TRIAL

This was a trial on assessment of damages.

Counsel

B Takin, for the plaintiff

A Samol, for the defendant

20 July, 2012

1. CANNINGS J: The plaintiff, Joe Kape Meta, has successfully sued the State for breach of human rights by members of the Police Force in an incident near Kimbe, West New Britain, in 1997. He was shot by the police and his right leg was amputated. The case took a long time to be heard for various reasons and judgment was entered against the State following a trial earlier this year. The plaintiff has come back to court for an assessment of damages.

2. The following findings of fact were made in the earlier trial. At 3.00 am on 17 December 1997 a group of about six police officers from Kimbe Police Station arrested the plaintiff at Balabolo village on the Kimbe-Hoskins Highway as he was a suspect in an armed robbery investigation. He was ordered into a police vehicle, and did as he was told, not offering any resistance. Some of the police officers had been drinking alcohol. They questioned him about his involvement in a robbery. The vehicle was driven in the direction of Kimbe and on the way some of the police officers assaulted the plaintiff. At Kumbango Plantation (which is about 9 km from Kimbe) the vehicle was stopped. The plaintiff was ordered out. One of the policemen pointed a police-issued firearm at him. The plaintiff got out of the vehicle and was ordered to run. He was scared and reluctant to run. He begged for mercy but was assaulted and in the process he moved three metres away from the policemen. Four shots were then fired by the police in the direction of the plaintiff. The first shot missed. The second shot struck him in the upper right thigh. The third shot struck him on the right foot, causing him to fall into a roadside drain. By then he was in great pain. The final shot was fired at point-blank range into his right thigh, causing him to lose consciousness.

3. The plaintiff was taken to Kimbe General Hospital, it is not clear by whom or when. He regained consciousness the next day, 18 December 1997. Two days later he was transferred to Nonga Base Hospital, East New Britain, where his right leg was amputated and he remained until discharged on 25 February 1998. Further details of the incident are in the judgment on liability, Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598, which established that the police infringed the plaintiff’s human rights in four ways:

· treating him inhumanely contrary to Section 36(1) (freedom from inhuman treatment) of the Constitution;

· failing to afford him the full protection of the law and not treating him with humanity and respect for the inherent dignity of the human person contrary to Section 37 (protection of the law) of the Constitution;

· committing acts against him that were harsh and oppressive and otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind contrary to Section 41 (proscribed acts) of the Constitution;

· not informing him properly and formally of the reasons for his arrest and detention and of any charge against him and not affording him other rights of a detained person under Section 42 (liberty of the person) of the Constitution.

4. Judgment was entered against the State which was held vicariously liable for the conduct of the police. Judgment was not entered against the two police officers the plaintiff alleged were primarily responsible for the human rights breaches that occurred as the evidence was not sufficiently cogent to warrant a finding of liability against them. Hence they are removed as defendants and the State is the sole defendant.

THE CLAIM

5. The plaintiff is claiming:

· general damages, K175,000.00;

· special damages, K250.00;

· exemplary damages, K30,000.00;

· compensation for human rights breaches, K20,000.00; being

· a total of K225,250.00.

GENERAL DAMAGES

6. Ms Samol, for the State, submitted that the claim for K175,000.00 was excessive and not warranted by the pleadings or the evidence. Order 8, Rule 33 of the National Court Rules requires that any claim in respect of personal injuries contain full particulars of 12 matters, including the plaintiff’s average weekly earnings during the months previous to the injury and the period employed during those months. Very few of those particulars are provided here, Ms Samol submitted, and there is little evidence to corroborate the claims about the plaintiff’s losses.

7. I reject these submissions. Order 8, Rule 33 of the National Court Rules applies (by virtue of Order 8, Rule 1) only to proceedings commenced by writ of summons. These proceedings were commenced by the plaintiff filling out and filing a pro-forma human rights enforcement application form, not by writ of summons, so the rules of pleadings do not apply. As for the evidence, there is little corroboration required in a case such as this. It is not disputed that the plaintiff’s leg has been amputated. The plaintiff and his wife have given evidence about the hardships they have endured since the plaintiff was shot. They have four school-age children and life has been tough for them as their father is permanently disabled. The facts speak for themselves.

8. An award of general damages is intended to compensate the plaintiff for the pain and suffering, inconvenience, loss of use of his leg and other losses endured by anyone who suffers this sort of injury. In two recent cases I have assessed general damages for plaintiffs who have had a leg amputated after being unlawfully shot by police. In Jessie Namba v Constable Moses Naru, Commissioner of Police & The State (2011) N3573 the plaintiff was awarded K150,000.00 for a below-knee amputation. In Vincent Kerry v The State (2012) N4658 the plaintiff was awarded K200,000.00 for an above-knee amputation, which is a more serious injury as even with a prosthetic limb, mobility is significantly more impaired than in the case of a below-knee amputation. There were other distinguishing features of Kerry that led to a higher award than in Namba, eg the police forced the plaintiff to perform an act of sexual indignity, the plaintiff suffered an additional, permanent injury as his left thumb was shot off, the manner in which he was taken to hospital was especially inhumane and the police insisted on charging him with wilful murder, despite there being hardly a shred of evidence against him. Having compared this case with Namba and Kerry I accept the submission of Mr Takin, for the plaintiff, that general damages should be more than in Namba, as this is a case of an above-knee amputation, but less than in Kerry as...