Kombra v Kali [1991] PGNC 24; N1020 (22 November 1991)

Unreported National Court Decisions

N1020

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 1165 OF 1990
KEVIN KOMBRA
V
GREG KALI & THE STATE

Mount Hagen

Woods J
22 August 1991
22 November 1991

NEGLIGENCE - Liability - Pedestrian walking into a policeman on patrol - struck by gun - Duty of care - civil disorder - no deliberate assault - no negligence.

Counsel:

D. Poka for the Plaintiff

R. Kisau for the Defendant

22 November 1991

WOODS J: The Plaintiff is claimamagDamages for injuries received on the 2nd July 1989 when he was struck by the 1st Defendant a policeman on duty. The Plaintiff alleges that the 1st Defendant while on duty on foot patrol at the China Town area of Mt Hagen struck the Plaintiff by hitting him on the right eye with the butt of a shotgun. The Plaintiff was hospitalised and lost his right eye. He is claiming damages for the loss of the eye.

The State alleges that the Plaintiff was part of a riotous crowd in the streets of Mt Hagen and the 1st Defendant was part of the police squad trying to control some looting and protect other shops and that the Plaintiff ran into the 1st Defendant’s rifle and thereby injured himself. The State submits that there is no deliberate act of striking the Plaintiff but that the injury was caused by accident and by the careless action of the Plaintiff.

The evidence as presented by the Plaintiff is that he was in Mount Hagen and he was going to China Town to catch a PMV out of Town. There was a disturbance in town and he was directed by Police and security personnel to take a side street through China Town to get to the Big Rooster shop. There he was directed by the First Defendant whom he knew and who was holding a rifle. He then said as he was walking along he heard the First Defendant behind him so he turned around and turned into the rifle. Whilst the Plaintiff uses the word hit he at no time in his evidence suggests that it was a deliberate attack on him by the First Defendant. The Plaintiff knew the First Defendant though seeing him at the Police Barracks when he visited a brother at the Barracks. There is only mention of the one ‘hit’ with the rifle, and the suggestion is that it was with the end of the barrel not with the butt consistent with the accidental walking into as he turned around into the gun. The Plaintiff felt half faint and was walking towards the Bowling Club and collapsed and was taken to hospital.

The evidence of the Plaintiff is that on that afternoon because of trouble in Town there were people looting stores and he was with other police guarding some stores, some tear gas had been thrown. He says the Plaintiff was near him when he turned around and the foresight of his rifle apparently struck the Plaintiff on the side of the head. He fell down and the First Defendant helped arrange to have him taken to hospital.

The only witnesses to the incident or the events at the time of the incident were the Plaintiff and the First Defendant. This is a pity as it would have been easy to bring other witnesses to confirm the State of confusion on the streets that day. It seems to be common that it was the weekend when there was some disturbance in town following a murder of a leading politician. However the Plaintiff is suggesting it was not the day when the main disturbance was. However there is a lack of corroborative evidence on both side as to the real state of the disorder.

The onus is in the Plaintiff to prove negligence. However even at its worst the Plaintiff’s evidence does not suggest any deliberate assault. The Plaintiff’s evidence agrees there was some tension in the town and there were extra police on duty with firearms. So if you walk into a policeman’s firearm who is to blame if there is no evidence of a deliberate assault. If it was an unintentional or unavoided act on a day of tension and there were extra armed police on lawful non-aggressive patrol is there any liability.

The Plaintiff makes much over the fact that there is no police report of the incident and that the first Defendant did not visit the Plaintiff in hospital. However, there is no evidence of any complaint to the Police of an unlawful assault or even of an accidental assault so what relevance can all this have to liability.

The law is that negligence does not entail liability unless the law exacts a duty in the circumstances to observe care. Duty is therefore defined as an obligation recognised by law to avoid conduct fraught with unreasonable risks of danger to others. Therefore in a state of tension when extra police were on duty on the streets because of actual or possible violence what obligations are there on respective parties. Members of the public are aware that police are patrolling on duty with weapons and they must take steps not to walk into such weapons. And police are under a duty to handle their weapons with care. There is no evidence that the first defendant was doing other than handling his weapon in the normal manner while on patrol, there is no evidence that he was deliberately poking it at people or putting it in their way, rather the evidence is that the Plaintiff ran or turned into it. This suggests an unfortunate accident, where the Plaintiff walked into the weapon and there was no neglect by anybody which led to that.

I therefore find that there was no liability.

I dismiss the claim.

Lawyer for the Plaintiff: Kopunye Lawyers

Lawyer for the Defendant: State Solicitor