Tebano v Attorney General iro The Republic [2024] KIHC 8; Civil Case 43 of 2015 (14 February 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 43 OF 2015

BETWEEN:
TERETIA TEBANO SUING BY SISTER KIRARA IOANE HER AUNT AND NEXT FRIEND
Plaintiff

AND:
ATTORNEY GENERAL IRO THE REPUBLIC (FOR AND ON BEHALF OF THE PRISON DEPARTMENT
Defendant

Date of Hearing: 30 NOVEMBER, 4 DECEMBER 2023, 16 JANUARY 2024
Date of Judgment: 14 FEBRUARY 2024

Appearances: Ms. Elsie Karakaua for the Plaintiff
Mr. Monoo Mweretaka for the Defendant

JUDGMENT - LIABILITY

Introduction:

1. By Writ of Summons dated 1 July 2015, the plaintiff sued the defendant for negligence, which caused one inmate, Komati Uera, to escape supervision while attending the work parade outside the prison and attacked Rosalie Ioane (wife) several times with the knife, which resulted in her death. The plaintiff is a dependent of the late Rosalie Ioane, being her daughter.
   
2. The action was filed in July 2015 by Sister Kirara, the aunty of the plaintiff, Teretia Ioane, and her next friend. At that time, Teretia Ioane was a minor. The claim was brought under the Fatal Accident Act 1846 and 1903 and for the benefit of the deceased's estate under the Law Reform (Miscellaneous Provisions) Act 1934.
   
3. The defendant is sued under section 4 of the Proceedings By and Against The Republic Act Cap 76A.
   

Issues:

4. Whether or not the claim is statute-barred under the Government Liability Act.
5. Whether or not the plaintiff lacks locus standi to bring this case.
6. Whether or not the death of the Plaintiff’s mother was a result of the Defendant’s negligence.
   

Evidence and Analysis

7. Before considering the negligence issue, dealing with the issues of out of time and locus standi is most proper.
   
8. Section 7 of the Government Liability Act 2010 reads as follows;
   

“7. Notwithstanding any provisions of the Limitation of Actions Act, any claim for torts against the Government must be instituted within one year from the date such claim arises.”

9. The plaintiff filed her claim on 4 June 2015. The claim arose on 12 June 2014 when the victim died after being stabbed several times by the inmate. Therefore, the application was deemed to be filed within time.
   
10. The issue on locus standi was raised as a miscellaneous application in case number Misc App 103 of 2020. The records in the casefile did not show that this miscellaneous application had been dealt with, only a note by my predecessor, Justice Sir Muria, when the case was called on 22 June 2020 for this miscellaneous application that the matter was adjourned to 21 August 2020 for another mention due to the unavailability of the plaintiff’s lawyer. Nothing happened after that until July 7 last year (2023), when I first presided over the case.
    
11. The actual hearing of the case started on 30 November and 4 December 2023. While I prepared my judgment, I realized that Miscellaneous Application 103/2020 has not been finalized. I invited both Counsels again on 16 January 2024 to address the court on this locus standi issue, but both Counsels submitted that the defendant, through Counsel, had dealt with this issue during his cross-examination of the plaintiff; therefore, there is no longer a need for this miscellaneous application to be fixed for hearing.
    
12. The evidence from the plaintiff, when cross-examined, is that her aunty, Sr. Kirara, was the first administrator of her mother’s estate as she was a minor when the case was filed. She was appointed the administrator after her aunt very recently in August 2023. In support of her appointment, the plaintiff submitted a copy of the court judgment in case number Betlan 359 of 2023. The defendant’s Counsel did not press further on this issue. It would have been a different story had the aunt not been the appointed administrator when the case was filed, as the case would not have been completed. See Angiraoi v Attorney General [2018] KIHC42; Misc App 81 of 2018, 14 December 2018 and Raurenti v Attorney General IRO Ministry of Health and Medical Services [2016] KIHC 12; Civil Case 69 of 2015 (2 September 2016).
    
13. The plaintiff was not present at Kiritimati Island when her mother was killed, but she relied on the facts provided in the criminal case of Republic v Uera [2015] KIHC 76; Criminal Case 10 of 2014. The facts are as follows:
    
    • - On 12 June 2014, the plaintiff’s mother was stabbed several times to death by an escaped prisoner who was the deceased’s former husband, Komati Uera.
    • - The prisoner, Komati Uera, was imprisoned at that time for causing injury to his wife’s sister.
    • - At the time of the incident, the prisoner was in a work parade outside the prison in London, Kiritimati.
    • - The prisoner had in his possession for a long time a knife, unknown to the wardens.
    • - In seeing his former wife walking on the main road on her way to the maneaba where the bingo game was held, he told the warder that he needed to get something, and he ran off with his knife. The warder followed and shouted at him to return the knife; he threatened the warder. The warder ran off to the police station to report the matter.
    • - The prisoner ran off and stabbed the victim, causing her to die instantly.
      
14. Both parties assumed the prisoner was given the knife as a cleaning tool, contrary to the fact stated in the High Court Criminal Case 10 of 2014 mentioned in the preceding paragraph.
    
15. The evidence of the defendant’s only witness, the Assistant Superintendent, did not help with the facts as he was not at the scene when the incident happened. His only relevant evidence was the Standing Order issued under the Prisons Ordinance Cap 76 concerning the prisoners working outside the prison. He explained that the Standing Order requires no warder to be in charge of more than five prisoners in an isolated working party outside the prison. The witness could not state the number of prisoners supervised with prisoner Komati Uera by the same warder at the time of the incident. The actual wording of the Standing Order is as follows:

“ 7(2) Where sufficient warder staff is available, no warder shall be given charge of more than 5 prisoners in an isolated working party outside the prison. When prisoners are working in large parties the proportion of warders to prisoners shall be at the discretion of the officer in charge.”

16. The plaintiff claimed the defendant had knowledge of Komati Uera’s intention and propensity to attack his wife as Kiritimati is a small community; he was a threat to his wife, and he was likely to attack her. The plaintiff relied on Thorme v Western Australia [1964] WAR 147, where the prisoner escaped prison and assaulted his wife, but the warden and goaler were not liable because they did not have sufficient knowledge of the prisoner’s background in posing threats to the wife.
    
17. Relying on the above case, the plaintiff submitted that the defendant had failed to exercise due care by the actions of the warder in failing to keep proper and close supervision upon the prisoner, Komati Uera when he was allowed to use the knife for cleaning outside the prison. Again, this fact was not true. The plaintiff submitted that there was common knowledge by the general public that the prisoner Komati Uera posed a threat to his wife, the victim, who also lived in the same village where the prison facility was located and that he was likely to attack her. They argued that Komati was imprisoned for injuring his wife’s sister, so he was also a threat to the wife, see High Court Criminal Case 36 of 2013. The facts provided in that case are that Komati Uera stabbed his wife’s sister after asking the wife’s sister for the whereabouts of his wife when the wife left him for five days. The prisoner argued with the wife’s sister; he bashed her head several times with the brick, went to get the knife, and stabbed her neck. The Court in that case stated that “...the accused was, in fact, already filled with anger about his wife running away from him for five nights...” but this was no excuse to bash up his wife’s sister.
    
18. For the defendant, they argued that the prisoner was well supervised, the same way as every other typical day when the prisoners did their work outside the prison. The questions of whether the defendant has a duty of care to the victim and whether they had breached that duty must be properly considered.
    
19. In Dorset Yacht Co Ltd v Home Office [1970] UKHL 2; [1970] 2 ALL ER 294, six young trainees escaped while working at the harbor when they were left unsupervised by their borstal officers. They escaped using the plaintiff’s yacht and caused damage to the yacht. The Court of Appeal ruled that the borstal officers owed a duty to take such care as was reasonable in all the circumstances to prevent the persons under their control from causing damage if there is a manifest risk if this duty is neglected. The borstal officers owed a duty of care to the yacht owners as it was foreseeable for the trainees to interfere with one of the yachts at the harbor; the risk was obvious.
    
20. In the case at hand, the prisoner hid the fact that he possessed the knife, so this should not be held against the defendant. Was there evidence to prove that the prisoner, given the fact that he was imprisoned for injuring his wife’s sister, made him a risk to his wife? Was it obvious or foreseeable for the prisoner to attack his wife?
    
21. There was evidence from cross-examining the defendant’s witness that there might be a risk of a threat toward the sister of the wife, given the fact that the prisoner was sentenced to imprisonment after causing injury to that sister. I agree. However, the defendant’s witness denied that there was also a risk to the wife (deceased) because of the existence of a risk to the sister. I also agree. The risk was not obvious. The plaintiff did not call any witnesses from the public or warders to prove that there was a risk to the wife, or that the warder knew of the risk, or that it was foreseeable. It would have been different if these assertions were established.
    
22. The defendant was correct in saying that, like any other ordinary day when the prisoner Komati Uera was in the working party cleaning the field outside the prison, the prisoners, through the warder, were afforded standard supervision. It would have been different had it been established that the number of prisoners supervised by the warder exceeded the capacity of one warder, which resulted in the prisoner’s escape.
    
23. The defendant also raised another defence concerning the warder’s omission to blow the whistle when the prisoner Komati Uera ran off. The defendant argued that they should not be liable for this omission pursuant to section 6(2)(a) of the Government Liability Act. Such provision states as follows;

“The Government is not liable for the following acts or omissions of its officers, agents or employees- (a) an act or omission of an officer, agent or employee exercising the care in the execution of a valid or invalid statute, regulations or Cabinet orders.”

24. Section 4(n) of the Standing Order requires that;

“if the prisoner escapes, the warder will raise the alarm by blowing the whistle or in his best way possible in the circumstance. He will immediately return to the prison with the remaining prisoners.”

25. Counsel for the plaintiff submitted that the defendant’s witness failed to show that the warder on duty at that time raised the alarm in the best way possible when the prisoner Komati Uera ran off. The fact shows that when the prisoner ran off, the warder called after him to come back. There was no whistle blown to raise the alarm. Through their witness, the defendant indicated that that was the only way the warder could raise the alarm as he had no instrument for this purpose. When the prisoner did not return, the warder had to return the other prisoners first in accordance with section 4(n) stated above. The determining factor of provision 6(2)(a) is that an agent or employee must have exercised care in the execution of section 4(n) of the Standing Order. In my view, this was achieved by the defendant’s agent, the warder on duty, when he called and ran after the prisoner and immediately returned the other prisoners to custody. He had done his best to exercise care; otherwise, the other prisoners might escape or cause further damage.
    

Summary

26. As explained in the above paragraphs, I find no foreseeable risk that the prisoner Komati Uera might attack his wife. Therefore, the defendant did not owe a duty of care to the deceased wife or the plaintiff’s deceased mother.
    
27. Even with the above ruling, I also accept the second defence.
    
28. The defendant is not liable for negligence. The case is dismissed with cost to the defendant, to be taxed if not agreed.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice