Vincent Kerry v The Independent State of Papua New Guinea (2012) N4658

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 02 May 2012
• Court: National Court
• Docket Number: WS NO 1644 of 2001
• Citation: (2012) N4658
• Year: 2012
• Judgement Number: N4658

Full Title: WS NO 1644 OF 2001; Vincent Kerry v The Independent State of Papua New Guinea (2012) N4658

National Court: Cannings J

Judgment Delivered: 2 May 2012

N4658

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1644 OF 2001

VINCENT KERRY

Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

CANNINGS J

Waigani: 21 February 2012

Madang: 16 March 2012

Waigani: 2 May 2012

DAMAGES – assessment of damages – general damages – special damages – exemplary damages – compensation for breach of human rights – unlawful actions of police – vicarious liability – amputated leg.

A member of the Police Force, while on police duty, shot the plaintiff in the leg for no good reason. The injury was so severe the plaintiff’s leg had to be amputated above the knee. The plaintiff succeeded at an earlier trial in establishing a cause of action in negligence against the State, which was held to be vicariously liable for the conduct of the police. A separate trial on assessment of damages was conducted. The plaintiff claimed general damages (K350,000.00), special damages (K990.00), exemplary damages (K45,000.00) and compensation for breaches of human rights (K30,000.00), a total claim of K425,990.00.

Held:

(1) General damages were assessed at K200,000.00. Special damages were assessed at K990.00. The breach of constitutional rights was so severe as to warrant an award of exemplary damages, of K30,000.00. The plaintiff’s human rights were breached on three distinct occasions, so he was awarded K5,000.00 x 3 = K15,000.00 compensation for breach of human rights.

(2) The total amount of damages and compensation awarded was K245,990.00. In addition, interest of K212,928.94 is payable, making the total judgment sum K458,918.94.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518

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

Jessie Namba v Constable Moses Naru, Commissioner of Police & The State (2011) N3573

MVIL v Maki Kol (2007) SC902

Latham v Henry [1997] PNGLR 435

Peter Kuriti v The State [1994] PNGLR 262

Seupain v The State (2009) N3573

The State v Thomas Sange, Vincent Kerry, Kito Aso & Steven Kaumu (2005) N2805

Vincent Kerry v The State (2007) N3127

TRIAL

This was a trial on assessment of damages.

Counsel

B Takin, for the plaintiff

R Gelu, for the defendant

2 May, 2012

1. CANNINGS J: The plaintiff, Vincent Kerry, has successfully sued the State for negligence by members of the Police Force in an incident near Kimbe in which he was shot, as a result of which his right leg was amputated. Judgment was entered against the State following a trial. The plaintiff has come back to the court for an assessment of damages.

2. The following findings of fact were made in the earlier trial. On the night of Saturday 7 July 2001, the plaintiff, an East Sepik man who had been living in West New Britain since 1992 and who was then aged 27, was sleeping at a block near Dagi Double-Bridge, about 5 km from Kimbe. He was a suspect in a criminal investigation into the murder of a member of the Police Force, Chief Sergeant Henry Wartovo, that had taken place at Gigo, in Kimbe, three nights earlier. A group of three or four police officers came to the block late in the night to question the plaintiff over his involvement in the murder. The police forcibly removed him and another young man from the block, took them to the Kimbe-Hoskins Highway at Aling and questioned them as to their involvement in the murder. The plaintiff was not armed and did not resist arrest. He told them he had no involvement in the murder and did not know who killed the deceased. One of the police officers, First Constable Felix Rangit, then shot at him at close-range three times with a firearm. The first shot missed him, the second blew off his left thumb and the last one shattered his right leg above the knee. He was taken to Kimbe General Hospital and admitted to the emergency and accident ward where General Surgeon Dr Sammy Thomas examined him at 3.00 am on Sunday 8 July 2001, and at 4.30 am performed lifesaving surgery consisting of an above-knee amputation of the right leg. The plaintiff was hospitalised for three weeks and discharged on 29 July 2001. He filed the present proceedings in November 2001. The police later charged him, with at least three others, with the murder of Chief Sergeant Wartovo. In February 2005 he faced trial in the National Court at Kimbe and was acquitted. Further details of the incident are in the judgment on liability, Vincent Kerry v The State (2007) N3127.

THE CLAIM

3. The plaintiff is claiming:

· general damages, K350,000.00;

· special damages, K990.00;

· exemplary damages, K45,000.00;

· compensation for human rights breaches, K30,000.00; being

· a total of K425,990.00.

GENERAL DAMAGES

4. This is intended to compensate the plaintiff for the pain and suffering, inconvenience, loss of use of his leg and other losses that are endured by anyone who suffers this sort of injury. An award of general damages should also take account of the circumstances in which the injury was inflicted. In Seupain v The State (2009) N3573 I reviewed the amounts of damages awarded in negligence cases for an amputated leg. In that case the plaintiff was a three-month old baby who was negligently administered an inappropriate drug by an aid post orderly. General damages were assessed at K100,000.00. In Jessie Namba v Constable Moses Naru, Commissioner of Police & The State (2011) N3573 I assessed damages in a case in which the plaintiff was shot for no good reason by a member of the Police Force and had to have a leg amputated. The plaintiff was 23-years old at the time he was shot. He can remember the incident, which I considered would haunt him for the rest of his life. I said it was difficult to overestimate the trauma, distress and indignity caused and it was extremely difficult to quantify what he has lost. Because of the circumstances in which he was injured and because he was at an age at which he had a full appreciation of what happened to him and how unnecessary and callous were the actions of the police officer who shot him and because such an abrupt change to his life was wrought upon him a greater amount than that awarded in Seupain was warranted. I assessed general damages at K150,000.00.

5. My decisions in those cases have not been appealed against, which is interesting as the awards of K100,000.00 in Seupain and K150,000.00 in Namba were higher than awards for similar injuries in previous cases. Ms Gelu, for the State, has suggested that those awards are out of kilter with awards of general damages for the type of injury suffered by the plaintiff. She relies on the decision of the Supreme Court in MVIL v Maki Kol (2007) SC902, where it was confirmed on appeal that an award of K60,000.00 to a young man who had suffered serious injuries in a motor vehicle accident, rendering one of his legs almost useless, was not excessive. Ms Gelu submits that an appropriate award in the present case would be K60,000.00, and no more. I do not accept that submission. The decisions in Seupain and Namba have not been set aside and I will have regard to them, particularly Namba, in deciding on an award of general damages in this case. Furthermore, the Supreme Court decision referred to by Ms Gelu deals with an award of damages for a motor vehicle accident, which is an entirely different scenario to the circumstances of the present case.

6. There are obvious comparisons between the present case and Namba as the wrongdoer in each case was a policeman, neither plaintiff had done anything to warrant being shot and each plaintiff had to have a leg amputated. However, the plaintiff in the present case deserves a higher award than in Namba for five reasons.

7. Firstly, there was evidence at the trial of his being forced by the police to perform an act of sexual indignity in that before the police shot him, they forced him to suck the penis of another man in full view of the police; there was no evidence of similar degrading treatment in Namba.

8. Secondly, the plaintiff in the present case suffered an additional, permanent injury: his left thumb was shot off by the police, which has led to an even greater degree of physical incapacity. Ms Gelu submitted that no additional damages should be awarded for the thumb injury as there is no evidence of such an injury in Dr Thomas’s affidavit, which was the principal affidavit relied on to provide the medical evidence in support of the plaintiff’s case. I reject that submission. There was ample evidence at the trial on liability that the plaintiff’s thumb had been shot off. This is a self-evident fact. The plaintiff is a disabled man. You only have to look at him to see that he has one leg and one thumb. He has given evidence as to the cause of those injuries, which was accepted in the previous trial.

9. Thirdly, the manner in which the plaintiff was taken to the hospital – it appears that the...