Exemplary damages punish. They are awarded not to compensate the plaintiff but to mark the court’s disapproval of the defendant’s conduct. Against the State in Papua New Guinea they are tightly restricted.
Section 12(1)
No exemplary damages may be awarded against the State unless it appears to the court that, regardless of the nature of the claim, there has been a breach of Constitutional rights so severe or continuous as to warrant an award of exemplary damages.
— Claims By and Against the State Act 1996, s 12(1)
“No … may be awarded … unless” — a prohibition with a single exception. The default position is that exemplary damages are not available against the State.
“Regardless of the nature of the claim” — the gateway is the same whether the claim is framed in negligence, trespass, breach of contract, or directly under the Constitution. Pleading the claim differently does not open a different door.
“A breach of Constitutional rights” — and not merely unlawful or high-handed conduct. There must be a breach of rights under the Constitution.
“So severe or continuous” — two alternative qualities. A single episode may qualify if severe enough; a course of lesser conduct may qualify if it continued.
Making the claim available
- Identify the constitutional right by section — typically section 36 (freedom from inhuman treatment), section 37 (protection of the law), section 41 (proscribed acts), section 42 (liberty of the person) or section 44 (freedom from arbitrary search and entry). See the Basic Rights.
- Plead the facts showing severity or continuity — what was done, over what period, to whom, and with what effect. Order 8 Rule 8 of the National Court Rules 1983 requires the facts to be pleaded, not the evidence.
- Claim exemplary damages expressly in the relief sought. They will not be awarded on a general claim for damages.
- Plead the statutory gateway — that the breach was so severe or continuous as to warrant an award of exemplary damages. Track the words of section 12(1).
Severity and continuity are questions of fact. Medical evidence, photographs, custody records, witness accounts of duration and repetition — these are what carry an exemplary damages claim. The plaintiff’s own affidavit asserting that the conduct was outrageous will not.
The constitutional entitlement
(2) A person whose rights or freedoms declared or protected by this Division are infringed is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.
(3) Subject to Subsections (4) and (5), damages may be awarded against any person who committed, or was responsible for, the infringement.
(4) Where the infringement was committed by a governmental body, damages may be awarded either against a person referred to in Subsection (3), or against the governmental body to which any such person was responsible, or against both, in which last case the court may apportion the damages between them.
Constitution section 58(2) confers the entitlement. Section 12(1) of the Claims Act conditions its exercise against the State.
Section 58(4) is therefore important: damages may be awarded against the individual officer, against the governmental body, or against both with apportionment. Section 12(1) speaks only of the State. A claim for exemplary damages against the officer personally is not caught by it.
That is a reason to join the individual officer as a defendant where the officer can be identified — see naming defendants. It also matters because execution does not lie against the State but does lie against an individual.
Section 58(5) provides that damages shall not be awarded against a person who was responsible to a governmental body if the action was an action made unlawful only by Section 41(1) (proscribed acts) and the action taken was genuinely believed by that person to be required by law — and the burden of proof of the belief … is on the party alleging it.
The protection is narrow. It applies only where section 41(1) is the sole source of unlawfulness, so it does not assist an officer whose conduct also breached section 36 or section 42.
Vicarious liability
Under the Wrongs (Miscellaneous Provisions) Act (Chapter 297), the State is subject to liability in tort in respect of the torts of its servants and agents in substantially the same way as a private person.
So a plaintiff injured by the conduct of a public officer ordinarily sues both: the officer, and the State as the party vicariously liable. The State is the defendant with the means to pay; the officer is the defendant against whom exemplary damages are not restricted by section 12(1).
Section 12(1) restricts exemplary damages only. Reasonable damages under section 58(2), and ordinary compensatory damages in tort or contract, are unaffected.
A plaintiff whose exemplary damages claim fails the section 12(1) threshold still recovers compensation in the ordinary way — see assessment of damages and compensation for breach of rights.
Where judgment is entered against the State in default, section 12(3) means that in most cases it is for damages to be assessed. The section 12(1) question is then for the assessment, and the evidence going to severity or continuity must be led there.
And whatever the award, section 14 governs payment: a certificate in Form 1, served on the Solicitor-General, endorsed within 60 days, then satisfied by the Departmental Head responsible for finance within a reasonable time out of moneys legally available.
Sources
- Claims By and Against the State Act 1996 — ss 12–14
- Constitution — ss 36, 37, 41, 42, 44, 57, 58
- Wrongs (Miscellaneous Provisions) Act (Chapter 297)
- National Court Rules 1983 — O 8 r 8; O 10 Div 3
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.