John Pias v Michael Kodi, and Bernard Pregwart and August Tiona (First Defendant) and Leo Nuia, the Papua New Guinea Defence Force Commander (Second Defendant) and The Independent State of Papua New Guinea (Third Defendant) (2006) N2972

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 21 February 2006
• Court: National Court
• Citation: (2006) N2972
• Docket Number: WS NO 171 OF 1998
• Year: 2006
• Judgement Number: N2972

Full Title: WS NO 171 OF 1998; John Pias v Michael Kodi, and Bernard Pregwart and August Tiona (First Defendant) and Leo Nuia, the Papua New Guinea Defence Force Commander (Second Defendant) and The Independent State of Papua New Guinea (Third Defendant) (2006) N2972

National Court: Cannings J

Judgment Delivered: 21 February 2006

N2972

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 171 OF 1998

JOHN PIAS

Plaintiff

V

MICHAEL KODI, BERNARD PREGWART

AND AUGUST TIONA

First Defendant

LEO NUIA, THE PAPUA NEW GUINEA

DEFENCE FORCE COMMANDER

Second Defendant

THE INDEPENDENT STATE OF

PAPUA NEW GUINEA

Third Defendant

Mt Hagen: Cannings J

2004: 5, 7, 13, 18 October

2006: 21 February

JUDGMENT

DEFENCE FORCE – soldiers committing unlawful assault against civilian – liability established by entry of default judgment – Wrongs (Miscellaneous Provisions) Act, Section 1 – general liability of the State in tort.

DAMAGES – general damages for eye injury – damages for lost income – special damages – exemplary damages – whether appropriate to award exemplary damages.

Three Defence Force soldiers unlawfully assaulted the plaintiff in a hotel. He lost the sight of one eye. The plaintiff commenced proceedings against them, plus the Commander of the Defence Force and the State. He secured a default judgment. A trial was conducted on assessment of damages.

Held:

(1) The default judgment resolved all questions of liability in respect of the matters pleaded in the statement of claim.

(2) Therefore the Defence Force soldiers unlawfully assaulted the plaintiff and breached his constitutional rights. The State is vicariously liable to the plaintiff for the consequences of their unlawful conduct.

(3) The plaintiff was awarded general damages for the pain and suffering associated with the loss of vision in his right eye (K60,000.00); special damages (K45,000.00); past economic loss for lost salary in the period from the date of the incident to the date of judgment (K67,548.00); and damages for distress and mental suffering arising from the trauma associated with the manner and circumstances in which he was injured (K30,000.00). The total award of damages was K202,548.00.

(4) The plaintiff’s claims for substantial sums in respect of future economic loss and lost business income were refused due to lack of evidence.

(5) The plaintiff’s claims for additional damages for breach of constitutional rights and trespass were refused as a plaintiff is only compensated once and does not obtain a higher award of damages by establishing multiple causes of action.

(6) Interest was awarded in addition to the total award of damages.

(7) Costs were awarded to the State because the plaintiff was granted leave to amend the statement of claim during the trial.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518

Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260(L)

Albert Baine v The State (1995) N1335

Browne v Dunn (1893) The Reports 67

Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24

Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182

Dorothy Kesla Tuba v The State (1997) N1581

Haiveta v Wingti (No 1) [1994] PNGLR 160

James G Koimo v The State [1995] PNGLR 535

John Pias v Michael Kodi and Others (2004) N2690

Jonathan Mangope Paraia v The State (1995) N1343

Joseph Dikini v John Wamel (1997) N1562

Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274

Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331

Linda Stanley v Mathew Kawa and The State (2005) N2865

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

MVIT v Pupune [1993] PNGLR 370

MVIT v Reading [1988] PNGLR 236

MVIT v Tabanto [1995] PNGLR 214

Obed Lalip and Others v Fred Sikiot and The State (1996) N1457

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

Peter Wanis v Fred Sikiot and The State (1995) N1350

Pinzger v Bougainville Copper Ltd [1983] PNGLR 436

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160

Reading v MVIT [1988] PNGLR 236

Sale Dagu v The State (1995) N1316

Sidi Adevu v MVIT [1994] PNGLR 57

Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247

Takie Murray v Norman Kinamur [1983] PNGLR 446

The State v Kevin Anis (2003) N2360

The State v Michael Kodi, CR No 1170 of 1997, 20.03.98, unreported

The State v Pennias Mokei (No 1) (2004) N2606

The State v Peter Oh Piom Mo [1998] PNGLR 66

Tumunda Toropo v Jack Awabe and The State (2001) N2116

Waima v MVIT [1992] PNGLR 254

William Mel v Coleman Pakalia and Others (2005) SC790

Yange Lagan and Others v The State (1995) N1369

Yooken Paklin v The State (2001) N2212

Abbreviations

The following abbreviations appear in the judgment:

AJ – Acting Justice

CJ – Chief Justice

DCJ – Deputy Chief Justice

Dr – Doctor

J – Justice

kg – kilogram

Ltd – Limited

Mt – Mount

MVIT – Motor Vehicles Insurance (PNG) Trust

N – National Court judgment

No – number

pf – per fortnight

PNG – Papua New Guinea

PNGBC – Papua New Guinea Banking Corporation

PNGDF – Papua New Guinea Defence Force

PNGLR – Papua New Guinea Law Reports

Pty – Proprietary

SC – Supreme Court judgment

UPNG – University of Papua New Guinea

% – percentage

Tables

The following tables appear in the judgment:

1	–	summary of documentary evidence.
2	–	plaintiff’s claims and defendants’ response.
3	–	comparison of categories of damages sought in statement of claim and submission.
4	–	award of damages.
5	–	pre-judgment and post-judgment components of categories of damages.

ASSESSMENT OF DAMAGES

This was a trial on assessment of damages for assault and breach of constitutional rights following the entry of default judgment in favour of the plaintiff.

Counsel

A Manase, for the plaintiff

J Poya, for the 2nd and 3rd defendants

No appearance for the 1st defendant

21 February, 2006

1. CANNINGS J: INTRODUCTION: This is a case about assessment of damages. The plaintiff, John Pias, has already obtained a default judgment on the issue of liability, with damages to be assessed.

BACKGROUND

2. The plaintiff was assaulted and injured by three Papua New Guinea Defence Force soldiers at the Plumes and Arrows Hotel, Mt Hagen, on 5 July 1997. He claims that they committed a common law assault on him and submitted him to torture, inhuman treatment and/or treatment inconsistent with respect for his inherent dignity as a human person, contrary to his Basic Rights under Section 36 of the Constitution.

3. On 24 February 1998 a writ of summons was filed. The main relief sought by the plaintiff was damages. At that time the plaintiff was represented by Dowa Lawyers.

4. In March 1998 one of the first defendants, Michael Kodi, was convicted by Sawong J of the offence of unlawfully causing grievous bodily harm to the plaintiff, contrary to Section 319 of the Criminal Code. He was sentenced to four years imprisonment. (The State v Michael Kodi, CR No 1170 of 1997, National Court, 20.03.98, unreported.) Sawong J explained the circumstances of the assault as follows:

The accused was one of the soldiers called out to assist the police in providing security in the 1997 general election. At that time he was a commissioned officer of the PNGDF. On their way to Mt Hagen they bought and consumed some alcohol. When they left Wabag the accused and his solider colleagues were in uniform and were carrying their firearms with them. They arrived in Mt Hagen and went to the Juma Lodge. There they consumed some more alcohol. Thereafter they left that lodge and drove to the Plumes and Arrows Hotel at Kagamuga Airport just outside of Mt Hagen city. When they arrived at that hotel they were in a drunken state. When they arrived at the gate of the hotel, the security men refused entry. The accused and his accomplices then became more aggressive and they used their firearm to and threaten the security guards. The security guards in fear of their lives opened the gate and the accused and his accomplices entered the hotel premises. Upon entering the said premises they wanted to go into the bar but once again, because of their drunken state and behaviour the security guards once again refused them entry into the bar and pokies area. Once again the accused and his accomplices threatened the security guards with their weapons whereupon the door was opened and the accused and his accomplices went into the bar area. As soon as they entered the bar they started assaulting people who were already in that part of the hotel premises and damaged some poker machines. In the course of the turmoil inside the bar, the victim was shot at, but the shot missed him. However, the accused using his firearm assaulted the victim on his face. The victim was rendered unconscious by the assault. He suffered a very severe injury to the right eye, it being completely damaged. The victim lost his right eye completely. The victim also suffered some other injuries on his face.

5. On 19 June 1998 the second defendant, who was but is no longer the Commander of the Defence Force, and the third defendant, the State, filed a notice of...