Steven Kuefa and Ken Fundo Topa v George Sunku and Gari Baki, Commissioner of Police and The Independent State of Papua New Guinea (2012) N4855

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 31 October 2012
• Court: National Court
• Citation: (2012) N4855
• Docket Number: WS (HR) NO 80 of 2008
• Year: 2012
• Judgement Number: N4855

Full Title: WS (HR) NO 80 of 2008; Steven Kuefa and Ken Fundo Topa v George Sunku and Gari Baki, Commissioner of Police and The Independent State of Papua New Guinea (2012) N4855

National Court: Cannings J

Judgment Delivered: 31 October 2012

N4855

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 80 0F 2008

STEVEN KUEFA

First Plaintiff

KEN FUNDO TOPA

Second Plaintiff

V

GEORGE SUNKU

First Defendant

GARI BAKI, COMMISSIONER OF POLICE

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Cannings J

2012: 21, 28 June, 20 July, 31 October

DAMAGES – assessment of damages after entry of default judgment – human rights breaches – general damages for assault by police – damages for breach of human rights: inhuman treatment, denial of full protection of the law, infringement of right to liberty – exemplary damages – special damages.

The plaintiffs claimed that members of the Police Force, while on police duty, entered their home without a warrant, ordered them out at gunpoint, assaulted them and then detained them in a police lock-up for 13 days without charge before releasing them. The plaintiffs sued the police officer (first defendant) who allegedly led other police in entering the residence and assaulting and detaining them, the Commissioner of Police (second defendant) and the State (third defendant), claiming damages for assault and breach of human (constitutional) rights. Liability was established against the defendants by default judgment. This was a trial on assessment of damages. The first plaintiff was represented at the trial and adduced evidence in support of his claim for damages. The second plaintiff was not represented and no evidence was adduced on his behalf. The first and second defendants were not represented and no evidence was adduced on their behalf. The third defendant was represented but adduced no evidence. The first plaintiff claimed damages for assault (K3,000.00), breach of constitutional rights (K20,000.00), exemplary damages (5,000.00) and special damages (K13,200.00), a total claim of K41,200.00. The third defendant argued that nothing should be awarded due to defects in both the pleadings and the evidence but that if the court were inclined to make an award of damages it should be restricted to K500.00 for assault, K200.00 for breach of constitutional rights and K500.00 for special damages, a total of K1,200.00.

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 the facts and causes of action are reasonably clear liability should be regarded as proven.

(2) Here the facts and causes of action are clear: that the first defendant led a police operation that resulted in the first plaintiff being assaulted and his human rights under the Constitution, Sections 36 (freedom from inhuman treatment), 37 (protection of the law) and 42 (liberty of the person) being breached.

(3) The second plaintiff was awarded nothing as there was no evidence in support of his claim.

(4) The third defendant’s arguments that the statement of claim and the evidence were so defective and deficient to warrant a zero award of damages to the first plaintiff were rejected.

(5) Damages were assessed for the four categories of damages claimed by the first plaintiff: assault (K2,000.00), breach of constitutional rights (K5,250.00), exemplary damages (K2,000.00) and special damages (0), a total award of K9,250.00. In addition, interest of K4,595.40 is payable, making the total judgment sum K13,845.40.

Cases cited

The following cases are cited in the judgment:

Dempsey v Project Pacific Ltd [1985] PNGLR 93

Justin Bau & 60 Others v Paul Karl & The State (2010) N4123

Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807

Molin Chapau v The State (1999) N1933

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

Obed Lalip v Fred Sikiot (1996) N1457

William Mel v Coleman Pakalia (2005) SC990

Yooken Paklin v The State (2001) N2212

TRIAL

This was a trial on assessment of damages.

Counsel

J Javapro, for the first plaintiff

A Samol, for the third defendant

31 October, 2012

1. CANNINGS J: This is a trial on assessment of damages following entry of default judgment. The plaintiffs are two men who were on 16 August 2006 living in a house in Kanage Street, Five Mile, National Capital District. They allege that at 8.30 pm an armed police squad led by the first defendant George Sunku, a member of the Police Force, entered their house without a warrant, ordered them out at gunpoint, assaulted them and then detained them at the Boroko Police Lock-up for 13 days without charge before releasing them. The plaintiffs sued the first defendant and the Commissioner of Police (second defendant) and the State (third defendant), claiming damages for assault and breach of human (constitutional) rights. The defendants failed to comply with the directions of the court regarding the proposed trial on liability and default judgment was ordered on 18 February 2011 subject to an assessment of damages.

2. At the trial on assessment of damages the first plaintiff was represented by Mr Javapro of the Office of the Public Solicitor and adduced evidence (both affidavit and oral evidence) in support of his claim for damages. The second plaintiff was not represented and no evidence was adduced on his behalf. The first and second defendants were not represented and no evidence was adduced on their behalf. The third defendant was represented by Ms Samol of the Office of the Solicitor-General but adduced no evidence.

3. The first plaintiff claimed damages for assault (K3,000.00), breach of constitutional rights (K20,000.00), exemplary damages (K5,000.00) and special damages (K13,200.00), a total claim of K41,200.00. The third defendant argued that nothing should be awarded due to defects in both the pleadings and the evidence but that if the court were inclined to make an award of damages it should be restricted to K500.00 for assault, K200.00 for breach of constitutional rights and K500.00 for special damages, a total of K1,200.00.

THE SECOND PLAINTIFF’S CLAIM

4. As he has not been represented (for reasons unknown to the court) and no evidence has been adduced on his behalf, he will be awarded nothing.

THE ARGUMENT THAT NOTHING SHOULD BE AWARDED

5. The third defendant argued that nothing should be awarded to the first plaintiff due to defects in both the pleadings and the evidence. The pleadings were said to be defective as the claim for relief simply referred to the four categories of damages being sought without specifying the amounts claimed. This argument has no merit. The statement of claim was making a claim for “unliquidated” (ie unspecified) damages as distinct from a “liquidated” (specific) claim. This is permissible under Order 12, Rule 28 of the National Court Rules (Dempsey v Project Pacific Ltd [1985] PNGLR 93, Molin Chapau v The State (1999) N1933).

6. The evidence was argued to be deficient as it was uncorroborated and contradictory. Only the first plaintiff gave direct evidence of what allegedly happened and his oral evidence contradicted the pleadings and his affidavit in material respects, eg the statement of claim pleads that there was a blackout when the police entered the house, but in his affidavit the first plaintiff says that he was watching television; in his affidavit he deposes that he had no idea why the police would want to raid his house and drag him out but in his oral evidence he conceded that the police asked him if he was “SK” and he said yes, so he must have known that the police were after him. Ms Samol submitted that on many occasions the National Court has emphasised that a plaintiff who secures a default judgment still has the obligation of proving his losses and the Court will be vigilant against uncorroborated, suspicious or vague claims (Obed Lalip v Fred Sikiot (1996) N1457, Yooken Paklin v The State (2001) N2212) and this case can be described in those terms.

7. There is some merit in the argument that parts of the first plaintiff’s oral evidence were inconsistent with the statement of claim and the affidavit evidence and it is true that his evidence is uncorroborated. However, it is sworn testimony, it is unchallenged and the contradictions in it are in my view not material and are explicable in terms other than a conclusion that the evidence is fabricated. I reject the submission that deficiencies in the evidence warrant a zero award of damages.

8. It must be remembered that this is a trial on assessment of damages following entry of default judgment. 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...