Nathan Kandakasi v The State

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 20 January 2017
• Citation: (2017) N6601
• Court: National Court
• Year: 2017
• Judgement Number: N6601

Full : WS (HR) No 7 of 2015; Nathan Kandakasi v the Independent State of Papua New Guinea (2017) N6601

National Court: Cannings J

Judgment Delivered: 20 January 2017

N6601

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 7 OF 2015

NATHAN KANDAKASI

Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

Waigani : Cannings J

2015: 16, 19, 20 November,

2017: 20 January

DAMAGES – assessment of damages following entry of default judgment – breaches of human rights – false imprisonment – malicious prosecution – general damages – plaintiff lost sight in one eye due to Police brutality – other injuries incurred, including loss of teeth.

The plaintiff was assaulted, arrested, detained for two days, charged and prosecuted by Police for suspected involvement in a crime. As a result of the assault, he lost eyesight in one eye, lost four teeth and suffered other abrasions and bruising. The charges against him were dismissed in the District Court. He commenced proceedings against the State, claiming that it was vicariously liable for the civil wrongs committed by the Police: breach of human rights (Constitution, Section 36: freedom from inhuman treatment), false imprisonment and malicious prosecution, and seeking damages. The State failed to defend the matter and default judgment was entered against it. The State did not apply to set aside the default judgment and did not appeal against it. A trial on assessment of damages was set down. The plaintiff sought damages in seven categories: (a) general damages, K101,000.00; (b) breach of human rights, K10,000.00; (c) false imprisonment, K10,000.00; (d) malicious prosecution, K20,000.00; (e) exemplary damages, K35,000.00; (f) special damages (past and future loss of salaries, unspecified, and out of pocket expenses, K2,300.00), (g) cost of repair to his vehicle’s gearbox, 3,000.00, a total of K181,300.00 plus past and future salary losses. As a preliminary argument, the State asked the Court to revisit the issue of liability and dismiss the proceedings on grounds that the actual wrongdoers had not been named as defendants and the statement of claim was defective as it failed to plead the nexus between the wrongdoers and the State, and failed to plead that the wrongdoers were employed by the State and that the State was vicariously liable under Section 1(1) of the Wrongs (Miscellaneous Provisions) Act. The State argued, in the event that its preliminary argument did not succeed, that the plaintiff be awarded no more than K106,500.00.

Held:

(1) When assessing damages after entry of default judgment, the judge should make a cursory inquiry so as to be satisfied that the facts and 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 the 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.

(2) Here the facts and causes of action are clear. The preliminary argument of the State raised issues regarding the quality of the pleadings and might, if raised earlier, have resulted in judgment not being entered in favour of the plaintiff. But no application to set aside the default judgment had been made, no appeal was filed and the argument was made late, without notice. It was not appropriate to entertain it. Liability was not revisited.

(3) The seven categories of damages were assessed in the manner contended for by the State: (a) general damages, K85,000.00; (b) breach of human rights, K2,000.00; (c) false imprisonment, K500.00; (d) malicious prosecution, K9,000.00; (e) exemplary damages, zero; (f) special damages, K10,000.00, (g) cost of repair to gearbox, zero, a total award of K106,500.00.

(4) In addition, interest of K10,245.30 is payable, making the total judgment sum K116,745.30.

Cases cited:

The following cases are cited in the judgment:

Aquila Kunzie v NCD Police Mobile Squad (2014) N5584

Bolisa Figa v Willie Agong (2012) N4707

George Chapok v James Yali (2008) N3474

Jack Pinda v Sam Inguba & The State (2012) SC1181

Jessie Namba v The State (2011) N4396

John Pias v Michael Kodi & Ors (2006) N2972

Lance Kolokol v The State (2009) N3571

Lina Kewakali v The State (2011) SC1091

Losia Mesa v The State (2009) N3681

Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807

Michael Kondai v Gabriel Saul (2015) N5865

PNGBC v Jeff Tole (2002) SC694

Teine Molomb v The State (2005) N2861

Vincent Kerry v The State (2007) N3127

Wandi Dope v Constable Michael Malai (2012) N4574

William Mel v Coleman Pakalia (2005) SC790

William Pattits v The State (2006) N3088

ASSESSMENT OF DAMAGES

This was an assessment of damages for breaches of human rights, false imprisonment and malicious prosecution.

Counsel:

P H Pato, for the Plaintiff

G Akia & A Kajoka, for the Defendant

20th January, 2017

1. CANNINGS J: This is an assessment of damages for breaches of human rights and other civil wrongs committed by members of the Police Force against the plaintiff, Nathan Kandakasi, in and following an incident in the Vision City carpark, in the National Capital District on 29 March 2012. Liability has been established by default judgment.

INCIDENT

2. In his statement of claim the plaintiff alleged that he was assaulted, arrested, detained for two days, charged and prosecuted by Police for suspected involvement in a crime. He named the two members of the Police Force primarily responsible for the assault as Andrew Kassman and Paul Komboi. He alleged that they led about six other members on a brutal assault on him, and that as a result he lost eyesight in one eye, lost four teeth and suffered other abrasions and bruising. He alleged that the charges against him were dismissed in the District Court.

PROCEDURE

3. On 7 April 2015 the plaintiff commenced proceedings against the State, claiming that it was vicariously liable for the civil wrongs committed by the Police, pleaded as:

· breach of human rights (Constitution, Section 36: freedom from inhuman treatment),

· false imprisonment; and

· malicious prosecution.

4. He sought damages against the State, which was and remains the sole defendant.

5. The State failed to file a notice of intention to defend or a defence. On 27 August 2015 the Court upheld a motion by the plaintiff for default judgment, which was entered on 2 September 2015.

6. The State did not apply to set aside the default judgment and did not appeal against it. A trial on assessment of damages was held.

EVIDENCE

7. The plaintiff relies on three affidavits, the primary one being his own. He deposes to the circumstances of the incident, his detention in custody, his prosecution before the District Court on charges of resisting arrest and stealing (both of which were dismissed), his medical treatment and medical reports.

8. The most significant medical evidence is in the form of reports by Dr Simon Melengas, Chief Ophthalmologist, Port Moresby General Hospital, who confirms that the plaintiff has been his patient since 3 April 2012 when he presented at the Eye Clinic in relation to an alleged assault by several policemen at Vision City. Dr Melengas reported on 25 September 2015 that the plaintiff has lost 100% vision in the right eye and 33% binocular vision. Other medical reports are by Dr Sam Yockopua, Chief Emergency Physician, Port Moresby General Hospital and Dr Takovi Maga, Dental Officer, Division of Dentistry, Port Moresby General Hospital. Those reports show that the plaintiff presented at the Dental Clinic and the Emergency Department on 3 and 4 April 2012 respectively. They verify the plaintiff’s evidence that he lost four teeth in the incident and still, several days after the incident, was in severe pain, having a grossly swollen face and head and multiple bruises.

9. Other affidavits are by employees of Comfort Taxi Services, the firm that, the plaintiff claims, employed him as a taxi-driver before the incident of 29 March 2012. Their evidence is relevant to the wages and other benefits the plaintiff says he was earning as a taxi-driver. He claims that he has been unable to drive taxis since the incident and has lost the ability to earn an income from taxi-driving.

10. The State presented no evidence.

SUBMISSIONS

11. The plaintiff seeks seven categories of damages: (a) general damages, K101,000.00; (b) breach of human rights, K10,000.00; (c) false imprisonment, K10,000.00; (d) malicious prosecution, K20,000.00; (e) exemplary damages, K35,000.00; (f) special damages (past and future loss of salaries, unspecified, and out of pocket expenses, K2,300.00), (g) cost of repair to his vehicle’s gearbox, K3,000.00, a total of K181,300.00 plus past and future salary losses.

12. As a preliminary argument, the State, citing two Supreme Court decisions, Lina Kewakali v The State (2011) SC1091 and Jack Pinda v Sam Inguba & The State (2012) SC1181, asked the Court to revisit the issue of liability and dismiss the proceedings and award the plaintiff nothing, on grounds that:

· the actual tortfeasors (better...