Lewi v Dikin [2005] PGDC 112; DC418 (12 October 2005)

DC418

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 535 OF 2004

BETWEEN

Robert Lewi
Complainant

V

Patrina Dikin
First Defendant

Police Department
Second Defendant

The State
Third Defendant

Port Moresby: Bidar, Pm
2005: 12th October

Damages – claim for damages as result of Police assault - Requirement to prove both liability and loss

Case cited
Complainant appeared in person

Counsel
P. Ifina. Principal Legal Officer,
Police Department for Defendants

DECISION

12th October 2005

BIDAR, PM: On the 1st March 2004, Complainant filed summons upon complaint against the first defendant for assault on the complainant with a butcher knife which injured him on his right dorsal aspect of the have proximal to the wrist. The second and the third defendants are vicariously liable for action of the first defendant who is their agent and or servant.

Complainant’s case consists of three affidavits including the complainants. In his affidavit sworn and filed on the 3rd March 2004, the Complainant deposed that, on the morning of Tuesday 19th August 2003, he finished work at Boroko Food World was on his way home at Morata No. 2. As he waited at Waigani market to catch Morata No. 2 bus, police vehicle laden with duty policemen and women drove in and chased and scared the street vendors away, number of fleeing street vendors pushed him towards an area cleaner who held him by the collar of his shirt and argued with him. As they argued, a duty policewoman from Waigani Police station went in and saw that complainant had a butcher knife which was protruding out from under his shirt, which she pulled out of his trousers belt whilst he struggled to free himself from the cleaner.

The policewoman without saying anything swung the knife at the complainant. To protect himself he raised his right hand and the knife landed on his right hand between the fingers and the wrist, inflicting deep cut from which lot of blood was lost. Some bystanders helped him wrap his wound and took him to Waigani Police Station to report the matter.

At the Police Station the duty officer investigated the incident and found that the first defendant was responsible for the wound sustained by the complainant. As the complainant argued with the first defendant she was alleged to have allowed these words "You get a lawyer and take the matter to court, I have done my duty."

Complainant was directed to get medical attention, which he did at Port Moresby General Hospital.

Second witness John Gull disposed in his affidavit that he is from Mendi, Southern Highlands Province and resides at Morata No.1. On 19th August 2003 he was at Waigani bus stop to catch bus to town. He stood between TST and Waigani market. As he stood there, a group of policemen and women arrived and chased and scattered the street vendors, and on the fleeing vendors pushed complainant to another man standing next to him chewing betel nut and that man grabbed complainant’s shirt and they started arguing with each other, whilst complainant was arguing with the other man the first defendant went around complainants back and pulled a butcher knife from his belt and swung it at the complainant and cut complainant on his right hand and cut complainant between the wrist.

Complainant fell down and lost a lot of blood. The policeman and women left complainant bleeding and they drove off. He assisted with others and carried complainant to the Police Station to see the Station commander and lodge complaint at the Police Station, no one responded to the complaint. The first Defendant simply said "get a lawyer and take the matter to court and that she was only doing her job."

The third witness Cann Tom deposed to an affidavit sworn and filed on 18th April 2005. The matter be deposed to and very much the same as those deposed to by Jelen Gull.

For defence the first defendant sworn to an affidavit on 13th October 2004 and filed on 14th October 2004. Defendant deposed that, she is a police sergeant attached to Waigani Police station. On the 9th August 2003 she was on duty from 8:00am to 4:06pm and was in a Police uniform. Between 8:00am and 10am, some people from Waigani market ran to the Police Station and were shouting that members of public were fighting with police. She observed that the crowd from the market rushed towards TST shopping center. Crowds screaming and making all kinds of remarks against police, she ran towards the TST shopping center and at the scene crowd had increased. There were 100-200 people crowding Police uniformed vehicle, which was parked infront of TST shopping center. As she observed he saw sergeant Kilalong and Const. Toito struggling to apprehend a suspect and take him into the van. The suspected resisted arrest by placing his foot on the iron bar at the rear of Police vehicle and both hands on the side of the rear door forcing himself back and causing policemen to move back and causing policewoman to move back. The suspect was overpowering police and the same time crowd was calling out "Paitim ol polis, Paitim ol polis." The struggle went on for 10-20 mins. She went in to assist the policewomen and that the situation was tense and anything could have happened. She observed suspect shirt was sticking out, when she pulled the object, which was wrapped in a plastic bag, the suspect (complainant) resisted and there was a tug of war on the object. Eventually the suspect was subdued by police and taken to Waigani Police station. She observed the object to be a knife wrapped in a red plastic bag. She realized that the suspect hand was bleeding and she assisted suspect by tying a scarf on his hand and arrange for medical attention.

The suspect must have injured his hand during struggle with police, particularly tug-of-war on the object wrapped in red plastic bag. Suspect (complainant) was instructed to report back after treatment, he had not done so, until after 7 months, when he filed and served these proceedings.

There are two different versions of the facts, particularly the crucial facts. Basically, the complainant’s version of the facts is that, the first defendant pulled the knife from his trousers belt as he was arguing and struggling with another man and swung the knife at the complainant cutting him on his right palm. On the other hand, the defence version is that the first Defendant pulled out an object wrapped in a plastic bag and the complainant resisted and there was a tug-of-war on that object, which was found to a butcher knife. It was probable that as a result of the tug-of-war between the complainant and the first Defendant, the knife in the plastic bag cut defendant on his right palm and injured him. On their version of facts the complainant’s version is suspect. First of all the complainants witness John Gull and Cann Tom’s evidence becomes doubtful, particularly when the knife was wrapped up in a red plastic bag and there was no way they could tell that it was a knife. It was not their evidence that they inspected the object.

THE LAW

The relevant law, which this action appears to be based on, is the Wrongs Miscellaneous Provisions Act. The law regarding vicarious liability is clear where commissioner of Police and the State can be held liable for actions of omissions of their servants, such the policemen and women acting in their official capacity and in the performance of their official duties:

Several issues arise from this proceeding. First the procedural issue of naming parties in a proceedings. Actions should be against proper parties. In these proceedings the parties named as Defendants are, Patrina Dikin as First Defendant Police Department as second Defendant and the State as the third Defendant. The court’s view is that, if the complainant had a reasonable cause of action to pursue the proper parties should have been Patrina Dikin, Sam Inguba Commissioner of Police and the State.

Police Department is not an entity capable of suing or being sued. Police Department is improperly joined or named as a party. Section 198 of the Constitution creates office of the commissioner of Police.

Commissioner is responsible for superintendence, efficient organization and control of the Force in accordance with the Act of the Parliament. As I alluded to Police Department is not a legal entity to bring suit against and therefore was improperly named as a party.

SUBMISSION

The proceedings filed by complainant raises number of issues of both law and fact, some for which are mentioned by Mr. Ifina in his submissions.

Complainant also filed submissions, which I have considered as well.

In respect of the proceedings, filed first of all pleadings have not been properly done and it is difficult, to ascertain from the pleadings, whether the action is based on some tortuous act or omission or the action is based on the provisions of Wrongs Miscellaneous Provisions Act, based on the principle of Vicarious Liability as I alluded to. It appears to be an action based on vicarious liability.

Assessing the evidence, which the court has the most probable and sensible facts which support the manner complainant sustained injury to the right palm, is the version of facts deposed to by First Defendant, Patrina Dikin. As a result of a pull of tug-or-war over the object wrapped in a plastic bag between the complainant and the First Defendant, complainant injured himself with his own knife.

Court is not satisfied on the balance of probabilities that the first defendant swung the knife and cut complainant as he and his witnesses led the court to believe. In all the circumstances, I find defendants not liable.

I dismiss the proceedings with costs to the defendants

In Person: Complainant
Legal officer Police Headquarters: Defendant