Babaifa v Leme [2008] PGDC 145; DC4096 (9 May 2008)

DC4096

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CIVIL JURISDICTION

PMDC NO 188 OF 2007

SONI BABAIFA
- Complainant -

CONTABLE FRANK LEME
- 1^st Defendant -

THE POLICE COMMISSIONER
- 2^nd Defendant -

THE STATE OF PNG
- 3^rd Defendant -

Port Moresby: Pupaka, PM
2008: 28^th April

The Complainant in person
No appearance by Defendants

9^th May 2008

PUPAKA, PM: This came before me on 28^th April 2008 for assessment of damages. It has been ready for an assessment of damages; inter partes or ex parte as the case maybe, for some time. Previously, due to the continued absence of the defendants, default judgment on liability was entered against them on the 1^st February 2008.

On 28^th April 2008 the complainant appeared alone as usual. Therefore he was granted leave to present his evidence ex parte. However, for his part, the complainant merely informed the Court that he would rely upon the affidavit evidence he filed previously. He declined to call further evidence when the opportunity was given to him by the Court.

The Independent State of Papua New Guinea (the State) is a party to this proceeding. It is the 3^rd defendant. The 2^nd defendant is the Police Commissioner of the Royal Papua New Guinea Constabulary (RPNGC). Apparently the 2^nd and 3^rd defendants have been included here because the 1^st defendant is a serving policeman in the RPNGC. There are certain orders sought that may need to be enforced by the 2^nd and 3^rd defendants. However the issue of the 2^nd and 3^rd defendants vicariously liability for the misconduct or negligence of the 1^st defendant seems not to have been actively asserted or sought, given the way the pleadings are structured and the type of relief sought.

Therefore it not strictly necessary to determine the question of whether the 2^nd and 3^rd defendants are vicariously liable. However, for whatever it is worth, it is necessary to say that where the State is sued as a 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, particularly 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
..............
.............
(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 has had to proceed by way of assessment of damages as a matter of law. 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 1^st defendant was acting in the “course of his employment” when he assaulted the complainant. If it turns out that his was a private activity, unconnected with any lawful or delegated function, the liability would be personal to the 1^st defendant. I say the 1^st defendant only because others who may have assisted him, including the woman complainant on whose behalf he most likely acted, have not been joined as co-defendants. That said, to set matters in their proper perspective I need to briefly outline the complainant’s case.

The Complainant’s Case

By a set of Complaint and Summons upon Complaint dated 3^rd September 2007 the complainant sought relief in the following way;

“1. The Complainant be compensated for the injuries he sustained.

2. The Defendant pay for the medical expenses incurred by the complainant as a result of the injuries he sustained.
   
3. The Defendant be disciplined by the appropriate authorities in the Police Force for failing act in his line of duty as an officer of State.
   
4. The Defendant pay costs of this proceeding.
   
5. Any other Orders this Court deems fit.” (sic)
   

I would refer to it again, if it becomes necessary later on, but it is immediately clear to me at the outset that the reference to “the Defendant” or “Defendant” in the pleadings recited above seem to be exclusive than inclusive. I consider that all the reliefs sought are exclusively against the 1^st defendant. That means the 2^nd and 3^rd defendants maybe bound and or compelled only so far as an order under paragraph No. 3 above needs to be enforced.

That said the complainant’s story is as briefly disclosed by an affidavit dated 28^th August 2007 and filed the same day as the Summons and Complaint. In the affidavit the complainant, in a generic sort of way, says the 1^st defendant punched him twice as a result of which he bled from the right ear and nose. The complainant further says his daughter was also assaulted. They were then taken to the Gordons Police Station. The complainant said he and his daughter were further threatened and his two year old grand daughter removed from him and given to the child’s mother. It seems the complainant has decided to sue for the reliefs referred to above as a result this event of 28^th August 2007.

The Evidence

As I said the complainant relies on his own affidavit dated 28^th August 2007. The affidavit is very brief. It consists of some annexures and a brief reference to the assault referred to in the pleadings. The affidavit contains a copy of a letter of notice to the State pursuant to Section 5 of the Claims By and Against the State Act 1996. It also contains a copy of a Medical Report from one Dr. P. Molumi of the Port Moresby General Hospital.

The Medical Report alludes to facial and external ear injuries that healed well as a result of conservative treatment with antibiotics at the outpatient. The doctor discovered that a complaint of hearing loss to be the result of old age, and not related to the assault. In order words the superficial injuries healed well with no lasting or significant damages. The report paints a picture of a person assaulted for pain and discomfort only. There is no other evidence apart from these.

Quantum

I mention in passing that the issue of liability was settled by entry of default judgment which is why I now proceed to quantum.

That said, for the purposes at hand I accept that there is no permanent or lasting disability or complications from the complainant’s injuries, but he did suffer pain and discomfort. Nevertheless I would think the complainant is entitled to some form of compensation for the pain and discomfort he suffered.

The complainant, under these ex parte hearing circumstances, has said nothing about any provocative conduct on his part or his daughter’s part, if any. It is left unsaid as to what the complainant’s daughter has done about her altercation with her sister-in-law and the police. As I said it is an ex parte hearing so the complainant is safe from a rigorous examination. Nevertheless the Court must be ever so mindful that there is always an explanation for everything. It therefore is much safer to err on the part of caution in this sort of situation.

The complainant has not offered any figures as an adequate or reasonable sum to be considered for compensation. Assessment has been left to the Court’s discretion. In the circumstances, being mindful that it is imperative to exercise caution under these ex parte hearing circumstance, I consider that a global and inclusive sum of K3000.00, is adequate compensation.

Issue of State’s Vicarious Liability

In the circumstances of this case, particularly the pleadings and the evidence available, I do not consider that the 2^nd and 3^rd defendants are liable, whether vicariously or otherwise. Therefore it is important that I fully explain why the 2^nd and 3^rd defendants are not liable for the acts of the 1^st defendant, even if the 2^nd and 3^rd defendants were actively sought to be made vicariously liable.

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 settled that taxpayers, through the State, cannot be liable for the torts of employees unless a tort is committed by such employees in the course of carrying out lawful functions delegated to them by the State.

State’s liability was discussed in the case of Kofowei –v- Siviri [1983] PNGLR 449. 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 the 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. On appeal the Supreme Court confirmed the National Court decision on both quantum and the notion of vicarious liability of the State. In so doing 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 not the case here. In this case before me the 1^st defendant is not accused of acting in the course of any legitimate business of the State. From the very brief facts disclosed it is hard to work out if the 1^st defendant was acting upon a legitimate complaint or he was progressing customary obligations in relation to a certain child’s mother who might be a relative. The complainant has simply failed to plead and or give evidence as to why or in what capacity the 1^st defendant was there at his premises. The problems are compounded by the fact that the complainant was never questioned or charged in relation to any offence.

Obviously the complainant considers that the 1^st defendant acted unlawfully. It is of course trite that the nation’s Police Commissioner or the State do not delegate unlawful tasks to their employees, including police personnel. Therefore it is not open for anyone, including tribunals like this Court, to presume that a servant or employee of the State, who is acting or has acted unlawfully, to have conducted him or her self in the course of discharging delegated functions.

It is always incumbent upon those who assert or contend that an employee of the State has acted unlawfully, whilst in the course of discharging delegated duties, to plead the assertion and then offer evidence that proves that assertion. Vicarious liability is established if there is connection between a delegated activity, in the course of which an unlawful act complained of was committed, and the unlawful activity. There is no presumption. For instance, a policemen in uniform, by the mere fact of his being a policeman and that he is in uniform at the relevant time, does not mean he is immediately engaged in the business of the State.

Let me expound further on this. In the case of Eriare Lanyat & Ors –v- George Wagulo & State N1481, Injia J discussed the notion of the State’s vicarious liability. In the head note of the judgement his honour 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 21^ST June, 1996). The latter case discussed what could amount to commission of a tort by a 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 the above two cases the State defended itself and argued to be exonerated from liability. The facts in the 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.

However in the case before me the complainant does not say or fully disclose why the 1^st defendant was there at his place doing what he did to him. Again I must iterate that the Court cannot presume. It is of course breaching rationality to presume policemen in uniform or driving police vehicles are always in the course of their lawful duties, regardless of what manner of torts they commit. That is not a lawful presumption. It matters not that this case is undefended. The point I make is that there is no allegation or argument offered as to in the course of what lawful duty of the 1^st defendant he assaulted the complainant.

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, but involving soldiers of the PNGDF and the tort therein was arson, not assault.

“Even if the people who committed the act of burning the house were members of the Defence force 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 & 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 1^st defendant, which he committed upon this complainant on 28^th February 2007. Therefore, even if the 2^nd and 3^rd defendants were sought to be made vicariously liable, I would find no cause on the evidence, however little evidence that is before me, to hold them vicariously liable. However, for his part, the 1^st defendant has already been found liable in the fore part of this judgment.

Conclusion

Consequently I order that judgment (inclusive of general, special, and exemplary damages) be entered in favour of the complainant against the 1^st defendant alone, in the sum of K3000.00. Interests shall be paid on the K3000.00 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.

As I already outlined above, certain other orders were sought as well. Firstly the complainant sought to have his medical expenses reimbursed. There is a Medical Report annexed to his single affidavit so I take it that the complainant paid for the report. However he has not produced the receipt. By law he cannot get an order for refund of special damages like medical costs without production of receipts, which is evidence of actual expenditure.

Secondly, the complainant seeks orders for the 1^st defendant to be disciplined for “failing act in his line of duty as an officer of State” (sic). One can understand why this order is being sought. Indeed undisciplined behaviour, or people who engage in such behaviour, have no place in the RPNGC.

However this Court cannot grant this particular order and here is why: Firstly the Police Commissioner has total discretion to determine whether a disciplinary charge ought to be laid. Secondly a court may recommend that an erring police officer be disciplined, but only as a consequential order when handing down a penalty in a criminal matter. Where a police officer is to be sentenced after conviction in relation to an offence, the Police Act 1998 grants power to the sentencing court to consider making the recommendation to the Commissioner.

The power to discipline or recommend disciplinary action does not lie with this instant Court. That however is not to say the complainant cannot take it up with the Police Commissioner as a separate disciplinary complaint if he wants to.

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