Meronas Songkae, Raymond Fuave, Sarowas Kikara, Francis Nevaso, Sikman Fezamo & eight other persons named in the schedule to the Statement of Claim v Inspector Tony Wagambie Jnr, Police Task Force members and other policemen under his command and John Wakon, Commissioner of Police and The Independent State of Papua New Guinea (2012) N4807

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 24 September 2012
• Court: National Court
• Citation: (2012) N4807
• Docket Number: WS (HR) NO 1782 0F 2001
• Year: 2012
• Judgement Number: N4807

Full Title: WS (HR) NO 1782 0F 2001; Meronas Songkae, Raymond Fuave, Sarowas Kikara, Francis Nevaso, Sikman Fezamo & eight other persons named in the schedule to the Statement of Claim v Inspector Tony Wagambie Jnr, Police Task Force members and other policemen under his command and John Wakon, Commissioner of Police and The Independent State of Papua New Guinea (2012) N4807

National Court: Cannings J

Judgment Delivered: 24 September 2012

N4807

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 1782 0F 2001

MERONAS SONGKAE, RAYMOND FUAVE, SAROWAS KIKARA, FRANCIS NEVASO, SIKMAN FEZAMO & EIGHT OTHER PERSONS NAMED IN THE SCHEDULE TO THE STATEMENT OF CLAIM

Plaintiffs

V

INSPECTOR TONY WAGAMBIE JNR, POLICE TASK FORCE MEMBERS AND OTHER POLICEMEN UNDER HIS COMMAND

First Defendants

JOHN WAKON, COMMISSIONER OF POLICE

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Cannings J

2012: 27 April, 26 June, 24 September

DAMAGES – assessment of damages – general damages – special damages – exemplary damages – compensation for breach of human rights – unlawful actions of police – vicarious liability – plaintiffs shot in foot during course of apprehension – denial of medical treatment while in custody.

Members of the Police Force, while on police duty, shot ten men in the foot and arrested three others without good reason, then detained the 13 of them for 64 days before they were released from custody during which time they were denied medical treatment and criminal charges against them were struck out by the District Court. The plaintiffs sued the police officer in charge of the police squad which shot and detained them, the Commissioner of Police and the State, claiming damages for breach of human (constitutional) rights). Liability was established against the defendants by default judgment. This was a trial on assessment of damages. The plaintiffs claimed damages for: wrongful injury or trespass to the person (K540,000.00), false imprisonment (K832,000.00) and costs and out-of-pocket expenses (K744,000.00), a total claim of K2,116,000.00. The defendants argued that nothing should be awarded due to defects in the pleadings.

Held:

(1) The presumption arises on entry of default judgment that the judgment resolves all questions of liability on the matters pleaded in the statement of claim. The judge assessing damages should make only a cursory inquiry to be satisfied that the facts and causes of action are pleaded with sufficient clarity. If it is reasonably clear what the facts and causes of action are, liability should be regarded as proven.

(2) Here the facts and causes of action are clear: that the first defendants breached the plaintiffs’ human rights under the Constitution, Sections 32 (right to freedom), 36 (freedom from inhuman treatment), 37 (protection of the law), 41 (proscribed acts) and 42 (liberty of the person). The defendants’ argument that they are not liable for damages was rejected.

(3) In making an assessment of damages the court should be guided by the submissions of the plaintiff and the relief sought in the originating process (in this case the statement of claim). Here the plaintiffs sought three categories of damages: wrongful injury or trespass to the person, false imprisonment and costs and out-of-pocket expenses.

(4) Damages for wrongful injury or trespass to the person properly flowed from the causes of action in respect of breaches of the Constitution, Sections 32, 36, 37, 41 and 42. The circumstances of each plaintiff were individually considered, resulting in awards of damages in the range of zero to K50,000.00 each.

(5) Damages for false imprisonment properly flowed from the causes of action in respect of the breaches of the Constitution, Sections 32, 36, 37, 41 and 42. The circumstances of each of the first 10 plaintiffs were the same, resulting in awards of damages of K32,000.00 each; as for the other three plaintiffs, as they were arrested and detained in different circumstances K16,000.00 each was awarded to two of them and nothing to one of them (for whom no evidence was adduced).

(6) The claims for costs and out-of-pocket expenses were not supported by the statement of claim and the evidence was vague. Nothing was awarded.

(7) The total amount of damages awarded for all plaintiffs was K265,000.00 for wrongful injury or trespass to person + K352,000.00 for false imprisonment = K617,000.00. In addition, interest of K521,241.60 is payable, making the total judgment sum K1,138,241.60.

Cases cited

The following cases are cited in the judgment:

Kewakali v The State (2011) SC1091

Lance Kolokol v The State (2009) N3571

Luluaki v Pacific Star Ltd and The State (2011) N4360

William Mel v Coleman Pakalia (2005) SC990

TRIAL

This was a trial on assessment of damages.

Counsel

G Kubak, for the Plaintiffs

E S Geita, for the Defendants

24 September, 2012

1. CANNINGS J: This is a trial on assessment of damages following entry of default judgment. The plaintiffs are 13 men from Eastern Highlands Province. They say that on 9 October 1999 at Henganofi they were without good reason shot in the foot and/or detained by a police squad led by Inspector Tony Wagambie Jnr and that they were detained for 64 days before they were released from custody during which time they were denied medical treatment and criminal charges against them were struck out by the District Court. They commenced proceedings on 10 December 2001 against Inspector Wagambie as first defendant, the Commissioner of Police as second defendant and the State as third defendant, claiming damages for breach of human (constitutional) rights. The writ was served on 1 March 2002. Default judgment, due to the defendants’ failure to comply with a court order to supply names of all members of the police squad, was ordered on 17 June 2005.

2. Three of the plaintiffs have died since commencement of the proceedings and on 22 August 2011 the National Court granted leave for customary representatives of the deceased men to pursue their claims. The deceased plaintiffs and their customary representatives are:

· Plaintiff No 2 Raymond Fuave deceased: Doris Fuave;

· Plaintiff No 10 Inoiso Sukeo deceased: Gillian Sukeo;

· Plaintiff No 11 Uve Agive deceased: Roselyn Agive.

3. The present trial was conducted on 27 April and 26 June 2012. The delay in having the matter brought to trial appears to have arisen because of a number of changes in the plaintiffs’ lawyers and unsuccessful attempts to settle the claims out of court. The delay is not the fault of the parties or the court and is not relevant to the assessment of damages.

4. The plaintiffs are claiming three categories of damages: wrongful injury or trespass to the person (K540,000.00), false imprisonment (K832,000.00) and costs and out-of-pocket expenses (K744,000.00), a total claim of K2,116,000.00. The defendants argue that nothing should be awarded due to defects in the pleadings.

THE DEFENDANTS’ THRESHOLD ARGUMENT

5. The defendants argue that the pleadings are defective as none of the members of the police squad allegedly responsible for shooting and detaining the plaintiffs other than Inspector Wagambie were named as defendants contrary to the requirement that all alleged wrongdoers be named in the originating process (Kewakali v The State (2011) SC1091). Further, it was not pleaded that Inspector Wagambie issued orders to the police squad that resulted in the allegedly unlawful shooting and detention; therefore the basis of vicarious liability of the defendants was not established by the pleadings. Mr Geita for the defendants submitted that the entire proceedings should be dismissed and that nothing should be awarded to the plaintiffs.

6. I reject these submissions. Though a judge assessing damages following entry of default judgment may revisit the question of liability the discretion to do so must be exercised sparingly. The presumption arises on entry of default judgment that the judgment resolves all questions of liability on matters pleaded in the statement of claim. The judge assessing damages should make only a cursory inquiry to be satisfied that the facts and the cause of action are pleaded with sufficient clarity. If it is reasonably clear what the facts and cause of action are, liability should be regarded as proven. Only if the facts or cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability (William Mel v Coleman Pakalia (2005) SC990; Luluaki v Pacific Star Ltd and The State (2011) N4360). I have made a cursory inquiry and am satisfied that the facts and cause of action alleged against the defendants are pleaded with sufficient clarity.

7. The causes of action which have been established against the first defendants – Inspector Wagambie and members of the task force under his command – are breaches of the human rights enshrined in the following provisions of the Constitution:

· Section 32 (right to freedom);

· Section 36 (freedom from...