The Independent State of Papua New Guinea and Others v Thomas Kei

• Jurisdiction: Papua New Guinea
• Judge: Batari,Mogish,Berrigan JJ
• Judgment Date: 05 April 2024
• Neutral Citation: SC2550
• Citation: SC2550, 2024-04-05
• Counsel: P. Ohuma, for the Appellants,D. Kipa, for the Respondent
• Docket Number: SCA NO 29 OF 2023
• Hearing Date: 28 March 2024,05 April 2024
• Court: Supreme Court

SC2550

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 29 OF 2023

The Independent State of Papua New Guinea

First Appellant

Constable Arimu Haro

Second Appellant

v.

Thomas Kei

Respondent

Waigani: Batari, Mogish and Berrigan JJ

2024: 28^th March & 5^th April

DAMAGES — VICARIOUS LIABILITY — Whether award for past economic loss supported by the pleadings — Whether award for medical and related costs reasonable — Whether State should be liable for exemplary damages.

The respondent, a 24-year old man, lost control of the vehicle he was driving whilst under the influence of alcohol late at night. Upon arrival at the scene the second appellant and fellow officers forced the respondent and his three passengers out of the vehicle. The second appellant then assaulted the respondent and took a mobile phone and K265 in cash from him. The respondent refused to get into the police vehicle as directed, in response to which he was punched and kicked by police and then deliberately shot by the second appellant with a police issue assault rifle at close range to both knees. He suffered permanent disability of 60% to his right leg.

The appellants challenged the damages awarded for past economic loss, medical and related expenses, and exemplary damages.

Held

(1) The appellants failed to demonstrate error on the part of the trial judge in the award of past economic loss which was supported by the pleading and the unchallenged evidence at trial.

(2) Considering the nature and extent of the injury and the need for ongoing treatment the appellants failed to demonstrate error on the part of the trial judge in the award of damages for medical and related expenses.

(3) There is no rule of law that prohibits the award of exemplary damages against the State for the conduct of one of its servants or agents. In considering whether to exercise the discretion the court must consider whether there has been a breach of constitutional rights so severe or continuous as to warrant exemplary damages: Abel Tomba v The State [1997] SC 518; Koimo v The State [1995] PNGLR 535; Kakipa v Nikilli (2002) N5689; Wiwa v State (2012) N5271; Namba v Naru (2011) N4396; s 12(1) Claims By and Against the State Act, 1996, considered.

(4) Considering the severe and egregious breach of constitutional rights by an agent of the State the first appellant failed to demonstrate error in the award of exemplary damages against it in the exercise of discretion.

Appeal dismissed.

Cases Cited

Papua New Guinea Banking Corporation v Tole (2002) SC694

Kumul Petroleum Holdings Ltd v Alina (2022) SC2253

Frontier Holdings Ltd v James Hariva Lohoro & Ors (2022) SC2334

Ume More v University of PNG (1985) SC310

Yakasa v Piso (2014) SC1330

Kuman v Digicel (PNG) Ltd (2013) SC1232

MVIT v John Etape [1994] PNGLR 596

Motor Vehicles Insurance (PNG) Trust v Pupane (1993) SC452

Covec (PNG) Ltd v Kama (2020) SC1912

Herman Sahale v Francis Karogo & Ors (2019) SC2129

Latham v Henry [1997] PNGLR 435

Peter Kuriti v the State [1994] PNGLR 262

Abel Tomba v The State [1997] SC 518

Andale More and Ors v Henry Tokam & The State (1997) N1645

Peter Kuriti v The State [1994] PNGLR 263

Wama Kints v The State (2001) N2113

Koimo v The State [1995] PNGLR 535

Kakipa v Nikilli (2002) N5689

Wiwa v State (2012) N5271

Namba v Naru (2011) N4396

Pade v Nangas (2018) N7073

References Cited

Section 12(1) of the Claims By and Against the State Act, 1996

Counsel:

P. Ohuma, for the Appellants

D. Kipa, for the Respondent

Solicitor-General: Lawyers for the Appellant

Wang Dee Lawyers: Lawyers for the Respondent

5^th April 2024

1. BY THE COURT: The State was found vicariously liable for negligence and breach of human rights by the second appellant, a police officer, following trial.

2. The respondent, a 24 year old man, lost control of the vehicle he was driving whilst under the influence of alcohol late at night. Upon arrival at the scene the second appellant and fellow officers forced the respondent and his three passengers out of the vehicle. The second appellant then assaulted the respondent and took a mobile phone and K265 in cash from him. The respondent refused to get into the police vehicle as directed, in response to which he was punched and kicked by police and then deliberately shot by the second appellant with a police issued assault rifle at close range. The respondent suffered injuries to both knees and was subsequently taken to hospital. At the time of the hearing on damages he was assessed as having suffered the following permanent injuries: ineffective use of the right lower limb and weakness of 60%; cosmetic disfiguration of his right knee of 10%; and osteoarthritis of the right knee with reduction in full flexion and extension movement of 20%.

3. The respondent was awarded total damages of K398,330 comprising: K131,770 for past economic loss; K196,560 for future economic loss; K5000 for medical expenses and loss of phone; K30,000 general damages; K20,000 exemplary damages; and K15,000 compensation for breach of constitutional rights.

4. There are multiple grounds of appeal. In short, the appellants contend that the learned trial judge erred in the exercise of discretion with respect to the damages awarded for: a) past economic loss; b) medical and phone expenses; and c) exemplary damages. They take no issue with the other amounts awarded.

Past Economic Loss

5. The appellants contend that the trial judge erred in awarding a sum of K131,770 for past economic loss when a sum of only K1,811.86 was particularised in the pleadings. It relies on the principles outlined in Papua New Guinea Banking Corporation v Tole (2002) SC694.

6. As the Supreme Court has since made clear, however, the emphasis now is on ensuring procedural fairness: Kumul Petroleum Holdings Ltd v Alina (2022) SC2253 at [16]; Frontier Holdings Ltd v James Hariva Lohoro & Ors (2022) SC2334 at [33] to [35]. As such, whilst the Court must usually confine itself to the issues raised in the pleadings (Ume More v University of PNG (1985) SC310) undue rigidity in the application of procedural requirements should not be allowed to compromise the substantive goal of the Court, which is “to do justice between parties according to law”: Yakasa v Piso (2014) SC1330. What is essential is that a party is put on notice as to the case it has to meet and that the issues for decision are defined: Kuman v Digicel (PNG) Ltd (2013) SC1232 at [14].

7. Where it is clear from the conduct of the parties that they have deliberately chosen some issue different from that disclosed in the pleading for the determination of their rights and liabilities, procedural fairness will have been achieved: Yakasa v Piso (supra) at [66]. Where evidence is led without objection a Court is entitled to make findings on the basis of such evidence provided it is within the general ambit of the plaintiff's claim: MVIT v John Etape [1994] PNGLR 596 applying Motor Vehicles Insurance (PNG) Trust v Pupane (1993) SC452. See also Covec (PNG) Ltd v Kama (2020) SC1912 and Herman Sahale v Francis Karogo & Ors (2019) SC2129 at [17] to [22].

8. The issues for determination in this case were clearly before the National Court. These included a claim for past and future economic loss – namely income — suffered by the respondent as a result of the second appellant's conduct.

9. The difference between the amount pleaded and the amount awarded for past economic loss is essentially a result of terminology. The pleading treated “past economic loss” as those monies to which the respondent was already entitled at the time of his termination, namely payment in lieu of notice and the amount of sick leave credits owing to him at that date. The loss of income following his termination was particularised under the claim for “future economic loss”. It included a claim for the loss suffered in the three years immediately following termination and a further claim assuming a working life of 30 years thereafter.

10. The claims for payment in lieu and sick leave were abandoned by the respondent as they had since been met by his former employer.

11. The trial judge awarded past economic loss from the date of the injury to the date of hearing on assessment of damages. No authorities were put before us as to the period for calculating past economic loss. In general terms we think it reasonable to calculate it from the date the loss is first incurred to the date of judgement of damages. Ultimately, it is not necessary for us to determine that matter and nothing turns on it in this case.

12. The appellants have failed to demonstrate any error on the part of the trial judge. The claim for past economic loss from the date...