Rambo Saa v Jeffery Yarra

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 31 July 2014
• Citation: (2014) N5700
• Court: National Court
• Year: 2014
• Judgement Number: N5700

Full : WS (HR) NO 393 OF 2010; Rambo Saa v Jeffery Yarra, First Constable and Gari Baki, Commissioner of Police and Mathew Bine, Gaol Commander, Bomana and Richard Sikani, Commissioner of the Correctional Service and The Independent State of Papua New Guinea (2014) N5700

National Court: Cannings J

Judgment Delivered: 31 July 2014

N5700

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 393 OF 2010

BETWEEN:

RAMBO SAA

Plaintiff

AND

JEFFERY YARRA, FIRST CONSTABLE

First Defendant

GARI BAKI, COMMISSIONER OF POLICE

Second Defendant

MATHEW BINE, GAOL COMMANDER, BOMANA

Third Defendant

RICHARD SIKANI, COMMISSIONER

OF THE CORRECTIONAL SERVICE

Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Waigani: Cannings J

2014: 22, 28, 30, 31 July

DAMAGES – assessment after entry of default judgment – limited circumstances in which question of liability can be revisited

DAMAGES – general damages claimed for malicious prosecution, assault, breaches of human rights – special damages – exemplary damages.

The plaintiff claimed that he was arrested and detained without good cause, subject to inhuman treatment while in Police custody, assaulted and was the victim of a malicious prosecution. Liability against the defendants was established through a default judgment. This was a trial held to assess damages. Three categories of damages were claimed: (1) general damages for malicious prosecution (K20, 000.00), assault (K2, 000.00) and breach of constitutional (human) rights (K20, 000.00); (2) special damages (K750.00); and (3) exemplary damages (K20, 000.00). The defendants argued that no damages should be awarded due to the elements of the various causes of action not being proven and the vagueness of the evidence and the lack of corroboration.

Held:

(1) When assessing damages after entry of default judgment the issue of liability should only be revisited if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise. Here, the issue of liability was not revisited.

(2) General damages were assessed, in respect of: malicious prosecution (K2, 000.00), assault (K2, 000.00) and breach of human rights (K6, 000.00), being a total award of general damages of K10, 000.00.

(3) The claim for special damages was vague and unsupported by the evidence. Nothing was awarded.

(4) The breach of human rights was severe and continuous as to warrant an award of exemplary damages of K2, 000.00.

(5) The total award of damages was thus K10, 000.00 + 0 + K2, 000.00 = K12, 000.00; and in addition interest was awarded on that sum at the rate of 8% per annum from the date of filing of the writ, 20 April 2010, to the date of judgment, 31 July 2014, a period of 4.28 years, ie K12, 000.00 x 0.08 x 4.28 = K4, 108.80, making the total judgment sum K12, 000.00 + K6, 163.20 = K16, 108.80.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518

Alphonse Kopi v The State [1994] PNGLR 475

Application for Enforcement of Human Rights by Batley Isaiah (2013) N5421

Application for Enforcement of Human Rights by Jacob Okimbari (2013) N5420

Gerard Pain v The State (2014) N5604

Helen Jimmy v Paul Rookes (2012) N4705

Lance Kolokol v The State (2009) N3571

Rabaul Shipping Limited v Peter Aisi (2006) N3173

Re Fisherman’s Island [1979] PNGLR 202

Regina v Holland [1974] PNGLR 7

Steven Kuefa v George Sunku (2012) N4855

Teine Molomb v The State (2005) N2861

William Mel v Coleman Pakalia (2005) SC790

TRIAL

This was a trial on assessment of damages for malicious prosecution, assault and breach of human rights.

Counsel:

J Kolkia, for the plaintiff

A Samol, for the second, third, fourth & fifth defendants

31st July, 2014

1. CANNINGS J: This is an assessment of damages for malicious prosecution, assault and breach of human rights following entry of default judgment.

2. The plaintiff, Rambo Saa, was arrested by the Police at his home at Gerehu, National Capital District, on 14 December 2008. He was suspected of being involved in an armed robbery and the Police were acting on a complaint by a victim of the robbery. The plaintiff was then 18 years of age. He was detained at the Boroko Police Lock-up on that day and then transferred to Bomana Correctional Institution on 17 December 2008. He was detained there until 22 January 2009. The plaintiff claims that in the period of a little over a month that he was in custody, he was assaulted by the Police, denied medical treatment, forced to stay in inhuman and degrading conditions, denied access to a lawyer, not afforded his rights as a detained person and maliciously prosecuted.

3. On 20 April 2010 he commenced proceedings by writ of summons against First Constable Jeffery Yarra (who is alleged to be the member of the Police Force primarily responsible for the plaintiff’s mistreatment) and other defendants, including the State, claiming damages for malicious prosecution, assault and breach of human rights.

4. The Solicitor-General filed a notice of intention to defend on behalf of the second, third, fourth & fifth defendants but failed to file a defence. Default judgment was ordered on 27 April 2012.

EFFECT OF DEFAULT JUDGMENT

5. The effect of the default judgment is that the facts and causes of action pleaded in the statement of claim are presumed to have been proven, and are only revisited if they do not make sense or would make an assessment of damages a futile exercise (William Mel v Coleman Pakalia (2005) SC790).

6. Ms Samol, who appeared for the second, third, fourth & fifth defendants, submitted that many of the facts and causes of action pleaded were not clear, so the issue of liability should be reconsidered.

7. I reject that submission. The statement of claim is rather well pleaded, in my view, so the assessment of damages will be carried out on the basis that three separate causes of action have been established:

· malicious prosecution (a tort),

· assault (a tort) and

· breaches of human rights (three separate human rights breaches have been established: unlawful arrest and detention (Constitution, s 42(1)), inhuman treatment (Constitution, s 36(1)) and denial of full protection of the law (Constitution, ss 37(1), (3), and 4(b) and 42(2))).

CLAIMS FOR DAMAGES

8. The plaintiff seeks three categories of damages:

(1) general damages for malicious prosecution (K20,000.00), assault (K2,000.00) and breach of constitutional (human) rights (K20,000.00), a total of K42,000.00;

(2) special damages (K750.00); and

(3) exemplary damages (K20,000.00).

9. The defendants argued that no damages should be awarded due to the elements of the various causes of action not being proven and the vagueness of the evidence and the lack of corroboration.

1 GENERAL DAMAGES

(a) Malicious prosecution

10. The claim for malicious prosecution is based on the fact that two days after arresting and detaining the plaintiff, the Police were advised by the complainant (the victim of the armed robbery) that they had the wrong man. The plaintiff was not the correct suspect. Nevertheless the Police continued to deal with and detain the plaintiff.

11. As for an appropriate award of damages to compensate the plaintiff, I have compared the facts of this case with those in Teine Molomb v The State (2005) N2861, where the plaintiff was awarded K9, 000.00. I consider that the degree of inconvenience and injury to the present plaintiff’s reputation was not as severe in this case as it was in Molomb. I award K2, 000.00.

(b) Assault

12. The plaintiff has given evidence that he was assaulted by the Police before being detained at Boroko Police Lock-up and he was denied medical treatment. His wounds healed with the effluxion of time. Ms Samol submitted that like all of the allegations made by the plaintiff there is no evidence to corroborate what the plaintiff has deposed to, and therefore he should be awarded nothing.

13. I do not think that that is a proper or reasonable approach to take. The plaintiff has sworn an affidavit that has been admitted into evidence and he has given oral testimony and been subject to cross-examination. So there is evidence before the court to support the claim for damages in respect of the tort of assault. The defendants have presented no evidence at all. I uphold the submission of Mr Kolkia for the plaintiff that the absence of any evidence by the defendants is a special consideration that needs to be taken into account in a case such as this, where all the events and allegations of fact arose in the National Capital District – not in a remote location. If this case had been based on what happened in a remote location there might be some justifiable difficulty for the defendants in being able to locate Police witnesses who would be able to give evidence challenging the plaintiff’s version of events. That is not the case, however. All the witnesses should be...