Wandi Dope v Constable Michael Malai

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 10 February 2012
• Citation: (2012) N4574
• Court: National Court
• Year: 2012
• Judgement Number: N4574

Full : WS NO 1195 OF 2007; Wandi Dope v Constable Michael Malai and Commissioner of Police and The Independent State of Papua New Guinea (2012) N4574

National Court: Cannings J

Judgment Delivered: 10 February 2012

N4574

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1195 OF 2007

WANDI DOPE

Plaintiff

V

CONSTABLE MICHAEL MALAI

First Defendant

COMMISSIONER OF POLICE

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Madang: Cannings J

2011: 23 September, 11 November,

2012: 10 February

DAMAGES – assessment of damages – breach of human rights – unlawful actions of police – plaintiff assaulted by police and unlawfully detained in custody for six days – plaintiff suffered permanent injuries.

The plaintiff was assaulted by a police officer for refusing to pay a spot fine and detained in custody without charge for six days. He suffered permanent injuries as a result of the assault. He sued the police officer who assaulted him, the Commissioner of Police and the State, claiming general damages, compensation for breach of human rights, damages for breach of statutory duty, damages for unlawful assault, special damages and exemplary damages. Default judgment was entered against all defendants, with damages to be assessed. This was the trial on assessment of damages.

Held:

(1) General damages were assessed at K20,000.00; compensation for human rights breaches, K12,000.00; breach of statutory duty, zero; unlawful assault, zero; exemplary damages, K10,000.00; special damages, zero; being a total award of damages and compensation of K42,000.00.

(2) In addition, interest of K29,668.80 is payable, being a total judgment debt of K71,668.80.

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 The State (2011) N4396

Lance Kolokol v The State (2009) N3571

John Pias v Michael Kodi & Ors (2006) N2972

Latham v Henry [1997] PNGLR 435

Losia Mesa v The State (2009) N3681

Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364

Nail Lamon & 4 Ors v Snr Const Zakang Bumai & 8 Ors (2010) N3920

Peter Kuriti v The State [1994] PNGLR 262

William Mel v Coleman Pakalia and Others (2005) SC790

TRIAL

This was a trial on assessment of damages.

Counsel

A Meten, for the Plaintiff

W Mapiso, for the Defendants

10th February, 2012

1. CANNINGS J: The plaintiff, Wandi Dope, has successfully sued the defendants – a police officer based in Madang, the Commissioner of Police and the State – for breach of human rights. Default judgment has been entered. He has come to the court for an assessment of damages. His human rights were breached in Madang on Wednesday 9 April 2003. He was at the town market and the police alleged that he was unlawfully in possession of betel nut and ordered that he pay a fine on the spot. When he refused to pay, the police arrested him, took him to Yomba Police Station, detained him for six days without charging him or taking him before a court, assaulted him and denied him food and medical treatment. He has presented unchallenged medical evidence showing that he has, as a result of the assaults, suffered permanent damage to the head, mandible, teeth, thighs and knees and post-traumatic stress syndrome. As judgment has been entered against the defendants, the factual elements of the causes of action as pleaded are taken as proven (William Mel v Coleman Pakalia and Others (2005) SC790). The plaintiff claims:

(A) general damages, K10,000.00;

(B) compensation under the Constitution, K20,000.00;

(C) damages for breach of statutory duty, unspecified;

(D) damages for unlawful assault, K5,000.00;

(E) exemplary damages, K10,000.00;

(F) special damages, K11,652.00.

2. Thus the total amount of damages and compensation claimed is K56,612.00, plus the unspecified amount claimed for breach of statutory duty. In addition the plaintiff seeks interest on the amount awarded.

(A) GENERAL DAMAGES

3. This is intended to compensate the plaintiff for the pain and suffering, humiliation, distress and inconvenience caused by the unlawful actions of the police. The purpose of an award of general damages is to compensate a person; to put them as far as possible in the same position they would have been had they not suffered the injuries incurred because of another person’s wrongful conduct. General damages are intended to be neither a reward nor a penalty (Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364). In assessing general damages I have considered my decisions in previous cases that bear some similarity to the present case, summarised in the following table.

ASSESSMENT OF GENERAL DAMAGES: ASSAULTS BY

MEMBERS OF DISCIPLINED FORCES

No	Case	Details	Amount
1	John Pias v Michael Kodi & Ors (2006) N2972 Mt Hagen	Three Defence Force soldiers unlawfully assaulted the plaintiff in a hotel – he lost the sight of one eye – general damages were assessed as representing the pain and suffering and loss of amenities of life associated with his loss of 100% vision in the right eye.	K60,000.00
2	Lance Kolokol v The State (2009) N3571 Madang	The plaintiff, an innocent man, was walking with friends near a public road – when he saw the police he ran away and was chased on suspicion of being involved in an armed robbery – he was caught, assaulted and shot in the leg and foot, then detained in custody for three days before being taken before a court, which granted him bail.	K25,000.00
3	Losia Mesa v The State (2009) N3681 Kimbe	The plaintiff was working in his office at a local-level government when the deputy mayor walked in accompanied by armed police officers and demanded that the plaintiff leave immediately and hand over the keys to his office and an official vehicle – when he refused to comply with the demand the police officers assaulted the plaintiff – forced him to the police station and on the way he was again assaulted – also assaulted on arrival at the station – suffered multiple soft tissue facial injuries and eye injury, leading to blurred vision and reduced visual acuity.	K25,000.00
4	Nail Lamon & 4 Ors v Snr Const Zakang Bumai & 8 Ors (2010) N3920 Madang	The police entered a village at 4.30 am and without lawful authority arrested and detained the plaintiffs on suspicion of involvement in a crime – the police subjected the plaintiffs to torture and inhuman treatment over a three-week period and unlawfully detained them.	K100,000.00 K100,000.00 K100,000.00 K70,000.00 K70,000.00
5	Jessie Namba v The State (2011) N4396 Madang	The plaintiff was shot in the leg by the police, for no good reason – he was detained in custody and then taken to hospital and his leg was amputated below the knee.	K150,000.00

4. After comparing this case with the above cases and having regard to the nature of the incident in which the plaintiff was injured, the period of unlawful detention and the nature and extent of the permanent injuries he suffered, I award general damages of K20,000.00.

(B) COMPENSATION UNDER THE CONSTITUTION

5. The plaintiff seeks compensation for breaches of human rights that are argued to be conferred by the following provisions of the Constitution:

· Section 36, protection from inhuman treatment;

· Section 37, right to the full protection of the law;

· Section 38, general qualifications on qualified rights;

· Section 39, “reasonably justifiable in a democratic society” etc;

· Section 42, liberty of the person;

· Section 52, right to freedom of movement.

6. Not all of those provisions confer rights. Sections 38 and 39 are interpretative provisions. They do not provide for a cause of action, as such. Sections 36, 37, 42 and 52, by contrast, do confer discrete human rights, which were breached by the police on a number of different occasions:

· when he was apprehended and forced to go the police station;

· when he was assaulted;

· when he was denied food and medical treatment;

· when he was detained for six days without being charged and without being taken before a court.

7. On each of those occasions, one or more of his human rights were breached. I will allow K3,000.00 for each occasion so the amount awarded for breach of constitutional rights is K12,000.00.

(C) BREACH OF STATUTORY DUTY

8. The plaintiff relies on Section 197(1) (functions of the Police Force) of the Constitution, which states:

The primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament—

(a) to preserve peace and good order in the country; and

(b) to maintain and, as necessary, enforce the law in an impartial and objective manner.

9. It is argued that the police breached the statutory duty imposed by Section 197 and that the plaintiff should be compensated with damages. This part of the plaintiff’s claim is misconceived. There is no doubt that in arresting, detaining and assaulting the plaintiff in the manner that they did, the police breached their duty of enforcing the...