Yarip v Terevor [2007] PGDC 152; DC837 (28 August 2007)

DC837

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
CIVIL JURISDICTION

PMDC NO: 03 OF 2007

KOSMAS YARIP
Complainant

LAPU TEREVOR
1st Defendant

PETER ILAU – PNGDF COMMANDER
2nd Defendant

THE STATE OF PNG
3rd Defendant

Port Moresby: M. Pupaka
2007: 28th August 2007

The Complainant in person
No appearance by Defendants

28th August 2007

M. M. PUPAKA: This comes before me for assessment of damages today. It was fixed for a inter partes or ex parte hearing today, as the case maybe, on 21st August 2007. The matter had to be fixed that way in the continued absence of the defendants. An assessment fixture had to be vacated on 21st August, due to the non appearance of the defendants. Default judgment on liability was entered against them on 20th July 2007.

Predictably the complainant appeared alone this morning and the defendants absent as usual. Therefore the complainant was granted leave to present his evidence ex parte. For his part, the complainant merely informed the Court that he would rely upon the affidavit evidence and submission he has already filed in advance. He declined to call further evidence when requested by the Court.

The Independent State of Papua New Guinea (the State) is a party to this proceeding. It is named as the 3rd defendant. The 2nd defendant is the Commander of the Papua New Guinea Defence Forces (PNGDF). Apparently the 2nd and 3rd defendants have been included here on the premise that they are vicariously liable for the misconduct or negligence of the 1st defendant. It seems the 1st defendant is a navy officer in the PNGDF.

Before the issue of whether the 2nd and 3rd defendants are vicariously liable is settled it is necessary to say that where the State is sued as a principal party, and the proceedings are not defended and judgment has to be entered in favour of the complainant, the law demands that the matter must be set down for assessment of damages.

The Claims By and Against the State Act 1996 regulates all claims against the State or where the State is more than a nominal party. Section 12 (3) thereof is the pertinent provision. It applies where no defence is filed and judgment has to be entered for the complainant, as is the case in this instant proceeding. Section 12 (3) reads:

"12. Judgements against the State

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(3) Where in a claim against the State the State is in default within the meaning of the National Court Rules, then notwithstanding that a plaintiff's claim for relief is for a liquidated demand, judgement shall not be entered against the State for the sum claimed unless the claim relates to a debt only, and in all other cases judgement shall be entered for damages to be assessed and, where appropriate, for costs."

This matter had to proceed by way of assessment of damages. However whether the State is actually liable is to be decided on the evidence when all the evidence is properly in. It will depend on whether the 1st defendant and his soldier friends were acting in the "course of their employment" when they proceeded to beat the senses out of the complainant. If it transpires that theirs was a private activity, unconnected with any lawful or delegated function, the liability would be personal to the 1st defendant. I say the 1st defendant only because the others who assisted him, including his own son, have not been joined as co-defendants.

That said I must now briefly outline the complainant’s case to set matters in proper perspective.

The Complainant’s Case

By a set of Complaint and Summons upon Complaint dated 9th January 2007 the complainant sought general damages (to be assessed) and special damages of K1102.00 plus interests and costs against the defendants alleging that he was assaulted and beaten. He pleaded that he had sustained injuries that needed medical attention and treatment.

The complainant started by pleading the general capacities of the defendants to be sued. He stated his own status in the Department of Defence (or PNGDF). He pleaded that on 28th April 2006 he followed up on a "false and malicious accusation against me by the 1st defendant’s wife who is also an employee of the Department, threw a pen stand at her in her office in retaliation of her false accusations." (sic). The complainant concluded by saying that 30 minutes later the 1st defendant came to his office with a number of his friends, who are his fellow soldiers, and beat him up occasioning "serious injuries" to him. The complainant therefore sues for the relief alluded to above.

The Evidence

The complainant relies on his own various affidavits and a few witnesses’ affidavits which he had filed for today’s purposes. In the circumstances these are naturally uncontested by the defendants, especially the first defendant so I shall accept and relay on them. In the circumstances I must accept that the complainant was assaulted and bashed up like he has asserted. There is no contradictory evidence at all available to this Court.

I have perused a medical report from the Port Moresby General Hospital, authored by the doctor who examined and treated the complainant. The report says that the complainant was first admitted at the Accident and Emergency department. The report notes that the complained was fairly severely beaten and booted which resulted in internal lacerations which caused the complainant to bleed from his nose, mouth and ears. The doctor in his report states that he administered and supplied adequate pain relief drugs and antibiotics and anti-tetanus drugs and discharged the complainant from emergency.

The report paints a picture of a person assaulted for maximum pain and discomfort. The complainant may not have sustained any fatal blows but nevertheless the beating was near fatal. Things could not have got any more critical or serious for the complainant than to be admitted into an emergency department of a hospital. It could have been even worse.

Quantum

The complainant has not provided a final medical report evidencing any permanent or lasting disability. In the circumstances I must accept that there is no permanent or lasting disability or complications from his injuries.

Nevertheless I would have no difficulty in assessing a general award, inclusive of the special damages sought, anywhere between K5000.00 and up to the limits of this Court’s jurisdiction – which is K10, 000.00. The evidence shows that this was a calculated gang attack by soldiers. The notion of being mobbed by trained soldiers is a scary one. The complainant needs to be adequately compensated.

Awarding an amount up to limits of this Courts jurisdiction, inclusive of special damages and exemplary damages (K10, 000.00), is not excessive in this day and age. However the complainant has not asked for that. And certainly, under these ex parte and undefended circumstances, there is a general need to be extremely cautious. I am mindful that not all relevant information that would otherwise be available is before this Court. I refer specifically to evidence that may show that the assault was not as serious as portrayed by the complainant. While that is due solely to the non appearance of the defendants, particularly of the 1st defendant not defending in any way shape or form, nevertheless caution in conducting an assessment is certainly imperative here.

All in all I consider a global figure of K5000.00 as sufficient and adequate compensation for the pain and injuries suffered by the complainant. This will be inclusive of special damages and exemplary damages. I consider this conservative assessment as an endeavour to be on the safer side of caution.

Contributory Negligence

As I said there is no evidence from the 1st defendant. He has simply failed to defend this suit. However the complainant has provided evidence of a scene in the 1st defendant’s wife’s office, only minutes prior to the assault on the complainant. The complainant and the 1st defendant’s wife had a heated argument which resulted in the complainant throwing a pen stand at her. Whether the object (pen stand) caused any injuries to the 1st defendant’s wife is unclear but the assault upon the complainant was a direct retaliation for his "throwing the pen stand" at the 1st defendant’s wife.

The complainant has said he confronted the 1st defendant’s wife because she provoked him. He adequately describes the provocation. I need not restate that though. All I need say is that it was always possible for the complainant to walk away and seek administrative redress for the attitude of the 1st defendant’s wife. The complainant had that option. He did not take it. He instead demonstrated his displeasure with the woman physically – he threw a pen stand at her – and thereby attracted the wrath and full force of her husband’s anger unto himself.

However, evidently the serious and near fatal assault by the 1st defendant upon the complainant, whilst in the company of a pack of like minded friends, was not commensurate or equal to any provocative conduct of the complainant. It now stands unchallenged that the 1st defendant and his mob overreacted.

Nevertheless the complainant’s earlier conduct cannot be ignored or excused. It led directly to the beating he took at the hands of the 1st defendant and his mob. Therefore the complainant will have to take some responsibility for his sufferings. In a legal context that, the act of the complainant taking some responsibility, is called contributory negligence. In law contributory negligence is usually taken into account by apportioning liability. That needs to be done here.

I consider apportioning liability at 25/75, as between the complainant and 1st defendant respectively. I consider that ratio to be fair and reasonable. In the circumstances I would therefore find that the 1st defendant is ultimately liable to the tune of 75% of the heretofore assessed award. Ergo the 1st defendant will actually pay the complainant 75% of the K5000.00. That works out to K3750.00.

Issue of State’s Vicarious Liability

It is important that I must fully explain why the 2nd and 3rd defendants are not liable for the acts of the 1st defendant in this case on the available evidence.

The legal basis for the notion of State’s liability is the Wrongs (Miscellaneous Provisions) Act 1975. Section 1 thereof sets out the scope and extend of the State’s liability for torts (wrongs) committed by its employees, representatives or agents. Subsections (1) to (3) sets out the nature of wrongs and circumstances under which the State may be liable. Subsection (4) thereof sets out specific qualification on the State’s liability. The whole of Section 1 is a lengthy provision and it is not overly necessary to reprint it. I need only restate subsection (4) of it to demonstrate the qualification or limitation I allude to. That provision reads:

"(4) Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government."

The issue of State’s liability has been litigated so often it is now trite. Therefore it is now well settled that taxpayers, through the State, cannot be liable for the torts of State employees unless a tort is committed by an employee in the course of carrying out lawful functions delegated to that employee by the State.

The complainant has identified the case of Kofowei –v- Siviri [1983] PNGLR 449 has being one such case were State liability was discussed. Therefore it is only fair to restate what the National and the Supreme Court stated in that case. The National Court found the following as proved facts in the first instance:

"In July 1979, the plaintiff was apprehended by two police officers in relation to a subsequent charge of being in possession of a handbag reasonably suspected of being stolen contrary to s. 6 of the Summary Offences Act, and taken to the Goroka police station where he was detained and left handcuffed for two days and subjected to treatment over a period of four days including being forced to stand on one leg with his arm raised for long periods, being kicked in the knee, being hit on the back of the neck, being burnt on the lips with a cigarette, being slapped on the face, punched in the chest and being hit with a stick on the penis. At no time was the plaintiff told that he was being arrested or the reason thereof as required by s. 18(1) (c) of the Arrest Act."

On the basis of these (above) facts the National Court decided that the State was vicariously liable for the injuries suffered by the victim. However the State appealed against the decision on the bases that the State was not liable for acts of unruly policemen.

Thereafter, on appeal, confirming the National Court decision on both quantum and the notion of vicarious liability of the State, the Supreme Court stated the following:

"There is indeed a distinction between the liability of the State under s 1(1) and s 1(4) of the Wrongs Act.

The provision in s 1(1) applies where a servant or an agent of the State commits a tort during the course and within the scope of his employment and s 1(4) is applicable in cases where an officer of the State performs functions or purports to perform functions conferred or imposed on him by statute or the underlying law. It is also to be noted that s 1(1) is made subject to s 1(4) so that the State’s liability for an officer’s tort committed whilst the officer is performing functions under a statute or the underlying law must be considered under s 1(4). The importance of the distinction between s 1(1) and s 1(4) is that not all officers of the State are its agents or servants nor are all its agents or servants also its officers. Because of this distinction the State’s liability under s 1 of the Wrongs Act must be properly considered under either the provisions of s 1(1) or s 1(4) and whether one provision or the other applies would be dependent on the facts of the case.

In this case the torts committed by the policemen were perpetuated in the course of the performance of their functions conferred on them by both statutory law and the underlying law. So properly the learned trial Judge should have found the State liable under s 1(4) and not s 1(1). Be that as it may no injustice has been done as on the facts and the law — both covered in his Honour’s judgment — the State was vicariously liable for the torts committed by the policemen."

Wrongly or rightly the policemen involved in the Siviri (supra) case were acting in the course of their employment. They went too far whilst in the course of arresting and detaining and charging an offender. That is why the Supreme and National Courts had to say that there was sufficient nexus between the acts of the foolish policemen and their duty to the State and the injuries sustained by the suspect in their custody, for the State to be held liable.

However it is far from being the case here. In this case before me neither the 1st defendant nor the other soldier friends of his, including his son, were acting in the course of any legitimate business of the State. The 1st defendant’s and his friends’ acts were pure retribution for the complainant’s earlier confrontation with the 1st defendant’s wife. It was private and personal between the parties involved. It is not a matter for which taxpayers, through the State, ought to be penalised.

Let me expound further on this. In another case, in the case of Eriare Lanyat & Ors –v- George Wagulo & the State N1481, Injia J (as he then was), had sufficient cause to discuss the proposition or notion of the State’s vicarious liability. In the head note of the judgement in that case His Honour, among other matters, stated:

"Pursuant to S.1 (4) of the Wrongs Act Ch. No.295, the State is only liable for torts committed by Policemen in the course of performing their functions "as if the functions had been solely conferred or imposed by the government"".

In the body of his judgment Injia J. expounds on the above by citing one of his own earlier judgements; the case of Nogo Susuke & Ors –V- The State (WS. No. 951/94, decided on 21ST June, 1996). The latter case discussed what could amount to commission of a tort by any policeman, whilst in the course of performing lawful functions. The aspect that stands out, in these two judgments by Injia J, is that the tort must have been committed whilst the policeman was performing or attempting to perform lawful functions. In the case of Nogo Susuke & Ors (supra) for instance Justice Injia found that an act of setting fire to an area of dry grass which put property at risk and did ultimately led to the destruction of property, though the act of setting fire would otherwise be a criminal act, was done in the course of carrying out lawful functions. I quote from an excerpt quoted in the Eriare Lanyat & Ors (supra) case.

"Could it be said that the policemen involved in this case committed a tort in the course of doing something which he (sic) was not empowered to do? It is clear that the operation was authorised. In the process of carrying out the operation, this policeman thought the best way to locate and apprehend the robbers was to set fire to the grass. How illogical or irrational he was in his judgment is not for this court to question, suffice it is that, that was a judgment he formed in the course of performing his duties."

In these two cases decided by Injia J, the State defended itself and argued to be exonerated from liability. The facts of these cases revealed how the torts complained of were committed. It was known just why the policemen were where they were doing what they were doing.

Similarly, in this case before me now the complainant does give evidence of why the soldiers did what they did to him. Nevertheless his own evidence shows that he was not assaulted because the 1st defendant and the soldiers suspected him of having done something for which the soldiers are employed to be responsible for. Soldiers are employed in the business of defending the country from foreign aggression or invasion and for the performance of other civic duties. That being the case, it could be argued for instance that the soldiers’ actions would give rise to or found the State’s liability if the soldiers had mistaken the complainant for being an alien spy for instance and beaten him up. The point I make is that there is no allegation or argument offered as to in the course of what lawful duty of the soldiers the assault on the complainant was occasioned.

It is of course breaching rationality to presume soldiers in uniform within the confines of the Barracks are always in the course of their lawful duties, regardless of what manner of torts they commit. That is not a lawful presumption.

To this end it is up to both the complainant and the State to prove under what sort of circumstance the tortuous act was committed. The State has failed to defend in this case. Does that mean that this Court is bound, as a matter of course, to presume "in the course of performing lawful function", the very aspect not proved or alleged by the complainant? I think not. Liability must lie where it falls. There is not one reason why the State should be vicariously liable for wrongs of persons on its payroll other than under Section 1 (4) of the Wrongs (Miscellaneous Provisions) Act 1975. Failure of the State to defend is no acknowledgment of liability. The complainant is always duty bound to prove what loss he has suffered and against whom.

The mistaken, but to an extend popular, view that the State is invariably liable for any and all torts committed by it’s employees, for no other reason than the fact that those who have committed such tort are employees of the State, was put to rest by Justice Sir Mari Kapi, DCJ, (as he then was) in the case of Hele Tupi –V- The State N1654. It was a case quite like this one, involving soldiers of the PNGDF, but there the tort was arson, not assault.

"Even if the people who committed the act of burning the house were members of the Defence force [as was indeed the case in the case] and that they are agents or servants of the state, the plaintiff must show that the members of the Force were acting within the scope of their functions".

The facts of this instant case can also be fairly distinguished from another case of Police brutality, the case of Jashihe Waniholo -V- Henry Tokam & The State N15663. In that case Salika J held the State liable, but then rightly so on the evidence disclosed. The facts revealed that the plaintiff there was a suspect in a break and enter complaint. The plaintiff was assaulted in the course of what amounted to an arrest of the plaintiff for breaking and entering.

In the final analysis, on the bases of the evidence before me, I find that Section 1 (4) of the Wrongs (Miscellaneous Provisions) Act 1975 does not allow or permit the State to be liable for the torts of the 1st defendant, which he and his friends committed upon this complainant on 28th April 2006. The 1st defendant has already been found liable in the fore part of this judgment.

Consequently I order that judgment (inclusive of general, special, and exemplary damages) be entered in favour of the complainant against the 1st defendant alone, in the sum of K5000.00, less 25% for the complainant’s contributory negligence. The 1st defendant shall be ultimately liable to pay K3750.00 to the complainant. Interests shall be paid on the K3750.00 from the date of summons to the date of payment. The Complainant shall have his nominal costs of litigation, the same to be taxed if not agreed.

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The Complainant in person
No appearance for or by the Defendants.