Kerry v State [2007] PGNC 25; N3127 (26 January 2007)

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POLICE – actions for wrongs – liability of the State – police as servants, agents and officers of the State – Wrongs (Miscellaneous Provisions) Act, Section 1 – general liability of the State in tort – whether actions of police officers committed within the scope of police functions and responsibilities – whether tortious acts of police beyond scope of police authority – vicarious liability.

EVIDENCE – conflicting evidence – alleged tortfeasors’ denial of involvement in alleged incident – identification evidence of plaintiff in civil case – countervailing alibi-style evidence of alleged tortfeasors – circumstantial evidence – inferences to be drawn – standard of proof in civil trial.

The plaintiff says he was assaulted and shot three times by police officers, who suspected him of involvement in the murder of another police officer. He claims that after they shot him the police dumped him at the local hospital, leaving him to die. He was given medical treatment and his right leg was amputated, just above the knee. He brought proceedings against the State, which he claimed was vicariously liable for the conduct of the police officers who assaulted and shot him. The trial concerned the issue of liability.

Re Fisherman’s Island [1979] PNGLR 202
The State v Jimmy Bellam (1979) N192
Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260 (L)
Wong v Lam (1980) N268
In re James Eki Mopio [1981] PNGLR 416
David Kofowei v Augustine Siviri and Others [1983] PNGLR 449
The State v David Wari Kofowei and Others [1987] PNGLR 5
Acting Public Prosecutor v Richard Saronduo [1988-89] PNGLR 17
Junior Steven Gawi and Toliman Jiki Viru v The State [1990] PNGLR 88
Edward Ramu Diro v Ombudsman Commission [1991] PNGLR 153
Nogo Suzuke v The State WS 951 of 1994, unreported, 21.06.96
Eriare Lanyat and Another v The State [1997] PNGLR 253]
The State v Ambros Soru (1997) N1622
Dalin More v The State & Others (1998) N1736
Justin Wayne Tkatchenko v Dessy Magaru (1999) N1956
Robert Lak v Dessy Magaru [1999] PNGLR 572
Wama Kints v The State (2001) N2113
Paulus Kei v Tony Hasu and The State (2004) N2743
Kembo Tirima and Others v Angau Memorial Hospital Board and The State (2005) N2779
The State v Thomas Sange, Vincent Kerry, Kito Aso and Steven Kaumu (2005) N2805
Linda Stanley v The State (2005) N2865
William Pattits v The State WS No 27 of 1999, 29.09.05
Luke Deukari v Danny Kuglam and The State WS No 615 of 1994, 29.09.06
Otto Benal Magiten v Rural Development Bank Ltd WS No 938 of 1999, 20.10.06
Eles Jay Clothing Ltd v The State WS No 858 of 1998, 29.09.06

1. CANNINGS J: Introduction: This case is about the alleged shooting of a person by police officers. The plaintiff says the police shot him in the leg and he had to have his leg amputated. The defendant is the police officers’ employer, the State.

2. The defendant denies that police officers shot the plaintiff. It is not disputed that his leg was amputated but everything else about how he was injured is denied. This judgment addresses the issue of liability.

3. When the writ was filed, and during the trial, there were two other defendants: Tom Wapipi, Provincial Police Commander, West New Britain, and John Wakon, Commissioner of Police. Mr Wapipi died and Mr Wakon ceased to be Commissioner of Police after the writ was filed. I have determined under Order 5, Rule 9 of the National Court Rules that they cease to be parties. As well as being inappropriate to have as defendants a deceased person and a person no longer holding the office referred to on the writ, there was no evidence that they or their legal representatives were served with the writ or any other notice of these proceedings.

5. In July 2001 a police officer, Senior Sergeant Henry Wartovo, was shot dead in Kimbe, West New Britain Province, while on duty. A police operation was mounted during the days after his death aimed at apprehending who was responsible. During that period the plaintiff, Vincent Kerry, was shot, taken to hospital and had his leg amputated. The plaintiff says the police shot him as they suspected he was involved in the murder of Senior Sergeant Wartovo. The police say that they had nothing to do with the shooting of the plaintiff.

6. The police later charged the plaintiff and a number of other persons with the wilful murder of Senior Sergeant Wartovo.

7. On 13 November 2001, B T Gobu & Associates Lawyers of Port Moresby filed a writ of summons on behalf of the plaintiff. The statement of claim endorsed on the writ claims that on 7 July 2001, the Kimbe police picked up the plaintiff and another person, Kenneth Miamba, at Dagi Bridge near Kimbe, tied their hands together, ordered them to run to a police vehicle, put them in the vehicle and drove to Aling, near Kimbe. The police assaulted the plaintiff, hitting him on his back with a stick, shooting off his left thumb and shooting him in the right leg. The police took the plaintiff to Kimbe General Hospital and left him unattended before he was operated on by a surgeon who had no choice but to amputate his leg, causing him permanent disability. It is claimed that the police actions were unlawful as they acted without reasonable justification in a democratic society having a proper respect for the rights and dignity of mankind. The plaintiff seeks damages.

8. In February 2005, the plaintiff was acquitted in the National Court of the wilful murder of Senior Sergeant Wartovo (The State v Thomas Sange, Vincent Kerry, Kito Aso and Steven Kaumu (2005) N2805, Cannings J).

9. The following glossary lists the names of individuals and places and defines medical terms referred to in the evidence.

Individuals
B T Gobu & Associates – the plaintiff’s lawyers
Betty Rangit – wife of First Const Felix Rangit
Catherine Ombul – wife of Sgt Thomas Ombul
Dr Sammy Thomas – the doctor who operated on the plaintiff
Felix Rangit – First Constable; defence witness No 1; the police officer who allegedly shot the plaintiff
Henry Wartovo – Chief Sergeant; now deceased; murdered on 4 July 2001 in Kimbe
Hilary Sirinjui – Senior Constable attached to Rabaul Police; defence witness No 3
John Wakon – the Commissioner of Police at the time of filing of the writ
Kenneth Miambinaka – aka Kenneth Miamba – the person the police allegedly picked up and assaulted, together with the plaintiff
Kito Aso – a co-accused of the plaintiff in the criminal trial concerning the death of Chief Sergeant Wartovo
Konge Orim – First Constable attached to Rabaul Police
Mr B Takin – counsel for the plaintiff
Mr N Tame – counsel for the defendant
Mr R Inua – junior counsel for the defendant
Paul Paraka Lawyers – the defendant’s lawyers
Steven Kaumu – a co-accused of the plaintiff in the criminal trial concerning the death of Chief Sergeant Wartovo
Thomas Ombul – Sergeant; defence witness No 2; one of the police officers allegedly present when the plaintiff was shot
Thomas Sange – a co-accused of the plaintiff in the criminal trial concerning the death of Chief Sergeant Wartovo
Tom Wapipi – the Provincial Police Commander for WNB at the time of filing of the writ; one of the police officers allegedly present when the plaintiff was shot; now deceased
Vincent Kerry – the plaintiff

Places
Aling – a place on the Kimbe-Hoskins Highway
Buvussi – oil palm settlement near Kimbe
Dagi – a place close to Kimbe
Dagi Bridge – a bridge on the Kimbe-Hoskins Highway
East Sepik Province – home province of the plaintiff and Sgt Thomas Ombul
Galai – oil palm settlement near Kimbe
Gigo – a suburb of Kimbe; aka Gigo settlement; plaintiff’s place of residence
Kimbe – place of trial, WNB provincial centre
Kokopo – town in ENB
Maprik – a district in East Sepik Province
McGregor Barracks – police barracks in Port Moresby
Popondetta – provincial centre of Oro (Northern) Province
Port Moresby – capital of PNG
Rabaul – town in ENB
Sepik – area of the country, comprising two provinces
West New Britain Province – province in the New Guinea Islands Region

Medical terms
artery – blood vessel delivering blood from the heart and lungs to the organs and tissues
conscious – awake, aware of and responding to one’s surroundings
cyanosed – a blue appearance of tissues, including skin, due to lack of oxygen in the blood
discharge – officially send a patient out of hospital
femur – the bone of the thigh, articulating at the hip and the knee
fibula – the outer and usually smaller of the two bones between the knee and the ankle, parallel with the tibia
gustillo type 3c – an open fracture of the tibia involving major blood vessel
haemorrhagic – pertaining to bleeding
incapacity – physical or mental inability to do something
intraoperatively – during an operation
intravenous – drugs or fluids administered directly into the veins
knee – the joint between the thigh bone and the lower leg bone (tibia)
leg – each of the limbs on which a person walks or stands
limbs – the arms and legs
muscle – tissues that effect movement of organs or limbs
nerves – tissues that transmit impulses from the central nervous system to muscles and tissues and from peripheral structures to the central nervous system
operating theatre – a room in a hospital in which surgical operations are performed
patient – a person receiving medical treatment
periphery – pertaining to distant or outside
popliteal – the artery serving the lower leg
resuscitate – revive someone from unconsciousness or apparent death
surgeon – a medical practitioner who practises surgery
surgery – the branch of medicine concerned with treatment of injuries or disorders of the body by incision or manipulation, especially with instruments
systolic – the maximal blood pressure reached when the blood beats (his was 30, very low, indicating he had lost a lot of blood)
thigh – the part of the leg between the hip and the knee
tibia – the inner and typically larger of the two bones between the ankle and the knee, parallel with the fibula
unconscious – not awake, aware of and responding to one’s surroundings
x-rays – a photographic or digital image of the internal composition of parts of the body

10. Two affidavits were admitted into evidence, the first by the surgeon who operated on the plaintiff and the second by the plaintiff. The plaintiff gave oral evidence and was subject to cross-examination.

11. The defence counsel, Mr Tame, objected to certain paragraphs of each affidavit. I set out my determination of those objections in tables 1 and 2, before summarising the affidavits in table 3.

12. In table 1 column 1 itemises the objection, column 2 identifies the paragraph objected against, column 3 summarises the objection, column 4 is the Court’s ruling and column 5 is the Court’s reason accepting or refusing the objection.

No	Par	Nature of objection	Result	Reasons
1	4	The deponent makes a statement about the plaintiff’s condition without being supported by medical records or treatment notes.	Refused	No rule of law that says a doctor’s assessment of a patient’s condition must be supported by hospital records.
2	5	The statement that the plaintiff was given life saving surgery was not pleaded in the statement of claim.	Refused.	The evidence of the doctor relates to the pleadings, which stated that the doctor had no choice but to amputate the plaintiff’s right leg.
3	6	The statement that the plaintiff was given treatment after his leg was amputated was not pleaded in the statement of claim.	Refused	The evidence of the doctor relates to the pleadings, which stated that the doctor had no choice but to amputate the plaintiff’s right leg and the plaintiff is now suffering from a permanent disability.
4	7, 8	The statements as to the date of the plaintiff’s discharge from hospital and his subsequent treatment were not pleaded in the statement of claim.	Refused	The evidence of the doctor relates to the pleadings, which stated that the doctor had no choice but to amputate the plaintiff’s right leg and the plaintiff is now suffering from a permanent disability.
5	11	This paragraph, which refers to an annexed medical report, purports to bring into evidence matters that were not pleaded in the statement of claim.	Refused	The evidence of the doctor relates to the pleadings, which stated that the doctor had no choice but to amputate the plaintiff’s right leg and the plaintiff is now suffering from a permanent disability.

13. In short, I refuse all objections to Dr Thomas’s affidavit. All of its contents are relevant to the matters pleaded in the statement of claim.

TABLE 2: DETERMINATION OF OBJECTIONS TO AFFIDAVIT OF
THE PLAINTIFF, VINCENT KERRY

No	Paras	Nature of objection	Result	Reasons
1	13	The deponent gives an opinion as to his past quality of life.	Refused	The plaintiff is in the best position to give an opinion as to his quality of life; and it is relevant.
2	19	The statement that the police bound the plaintiff’s and his friend’s hands together conflicts with the pleadings.	Refused.	This relates directly to par (7) of the statement of claim. It is a relevant issue of fact.
3	20	The statement that the plaintiff and his friend were ordered to walk ahead of some police officers conflicts with the pleadings.	Refused	This is evidence of the details of the incident that allegedly resulted in the plaintiff being shot. It relates directly to the pleadings.
4	22	The statement that the police led the plaintiff and his friend to Aling conflicts with the pleadings.	Refused	This is evidence of the details of the incident that allegedly resulted in the plaintiff being shot. It relates directly to the pleadings.
5	23	This paragraph gives the name of a police officer who was not mentioned in the pleadings.	Refused	This is evidence of the details of the incident that allegedly resulted in the plaintiff being shot. It relates directly to the pleadings.
6	26	This paragraph contains an allegation – that Tom Wapipi accused the plaintiff of trying to shoot him – that was not mentioned in the pleadings.	Refused	This is evidence of the details of the incident that allegedly resulted in the plaintiff being shot. It relates directly to the pleadings.
7	48	This paragraph contains an allegation – that someone tried to attack the plaintiff while he was in hospital – that was not mentioned in the pleadings and is irrelevant.	Refused.	The statement is of doubtful relevance, however it is not scandalous or oppressive or prejudicial to the defendant.
8	52	This paragraph annexes a medical report by another person, Dr Thomas, and is therefore hearsay.	Refused	The report may be hearsay but nothing would be gained by ruling it inadmissible as the same report is annexed to the affidavit of Dr Thomas.
9	53, 54, 55	These paragraphs, which state that the plaintiff was charged with wilful murder while in hospital and later discharged by the National Court, are irrelevant.	Refused	The fact that the plaintiff was charged with wilful murder of a police officer, that he was a suspect and that he has been acquitted, are all relevant to matters in so far as they are evidence of the conditions prevailing at the time of the alleged shooting, and in the subsequent period.
10	58	The statement that he has 100% functional loss of his right lower limb is a medical opinion that he is not qualified to give.	Refused	The statement is uncontroversial. A person whose leg has been amputated does not have to be a doctor to say that he has lost total use of his leg.
11	59	The statement that his future adulthood is shattered is mere speculation.	Refused	A person in the plaintiff’s position is entitled to give his opinion as to his future life prospects and how he feels about it.
12	60	This paragraph, which annexes a number of photographs, is objectionable as it claims that the plaintiff has visible scars, which was not pleaded in the statement of claim; and the photographs are hearsay, as the plaintiff did not take them, and should have been introduced into evidence by the person who took them.	Refused	The issue of whether the plaintiff has visible scars, while it may not be relevant to the issue of liability, is relevant to the pleadings as it gives further details of the plaintiff’s injuries. As to the hearsay point, it would have been preferable for the photographer to give evidence; however, the fact that that has not happened does not make the photographs inadmissible. They appear uncontroversial as the plaintiff gave evidence and he clearly has only one full leg. Any dispute over authenticity of the photographs could have been resolved during the course of the trial.
13	63, 64	The statement that the plaintiff believes that police officers under the control of the then PPC Tom Wapipi are responsible for his current situation, is mere speculation.	Refused	It is part of the plaintiff’s case that police officers shot him and that they were under the control of the PPC. The allegation is directly relevant to the matters in dispute.

14. In short, I refuse all objections to the plaintiff’s affidavit. All of its contents are relevant to the matters pleaded in the statement of claim.

15. Column 1 of the table below gives the exhibit number, column 2 describes the deponent and date of the affidavit and column 3 summarises the contents.

Exhibit	Description	Content
A	Dr Sammy Thomas, MBBS, MMED (Surg), Surgeon 03.10.05	He was general surgeon at Kimbe General Hospital in 2001, where he was based until recently transferred to Modilon Hospital, Madang. He clearly recalls 8 July 2001 when the plaintiff was presented to him at 3.00 am with a gunshot wound in his right thigh and right knee joint. The plaintiff was in severe pain and losing a lot of blood. The injury was serious and required life saving surgery. Further details are given in a medical report dated 23.04.02, which states: Vincent presented to me on 08.07.01, 0300 hours, with a gunshot wound through his right thigh and knee joint. He was diagnosed to have suffered Gustillo type 3c of his right thigh and right knee. He was bleeding from the wound, his periphery was cold and he was pale; thus was in haemorrhagic shock with a systolic blood pressure of 30. His injured lower limb was swollen, tense, pulseless, very cold and cyanosed. He was in severe pain and was confused. He was resuscitated with intravenous fluids and blood and was taken to the operating theatre. Lifesaving surgery was required promptly for him. Without his immediate relatives around to sign the consent for surgery, our Director Medical Services signed it. At 0430 hours, 08.07.01, surgery was performed on him. Intraoperatively he was found to have a nonviable shattered right knee and a shattered lower 1/3 of his right femur, shattered muscle around the site of injury and reaped popliteal artery and nerves. Thus a conclusion of an unsalvageable lower 1/3 femur and right leg was [made]. An above knee amputation was done, removing lower 1/3 of his right femur, his right knee and right leg. He was transfused two units of blood whilst on the operating table. During his admission in hospital, an unknown person walked into the surgical ward at night and further threatened his life with a superficial stab (knife) wound to his neck. The plaintiff was discharged on 29 July 2001 and attended regularly thereafter for consultation. He now has 100% anatomical and functional loss of his right lower limb.
B	Vincent Kerry, plaintiff, 07.09.06	Came to Kimbe to live in 1992. On the night of 7 July 2001 Kimbe police under the control of PPC Tom Wapipi picked him up and another man, Kenneth Miambinaka, at a block near Dagi Bridge. The police bound their hands at the back, took them to the Kimbe-Hoskins Highway and assaulted them. The police led them to Aling, and ordered them to jump on to a Nissan double-cab, where they were questioned by two police officers, Ombul and Yurant, about their involvement in various crimes. Another police officer forced him to suck Miambinaka’s penis. PPC Wapipi accused him of trying to shoot him (Wapipi). Another police officer ordered him to move away from the vehicle, then hit him with a stick. Then another police officer, Felix Rangit, called him and asked him three times who pulled the trigger of the gun used to kill another police officer three days earlier. The plaintiff said that he had no idea. Then Rangit told him it was his problem if he did not co-operate. Rangit then shot him, the plaintiff, three times. The first shot hit him underneath a toe of his right foot. The second shot blew off his left thumb. The third shot shattered his right leg above the knee joint. He fell down and begged the police to take him to the hospital. They took him to Kimbe General Hospital in a police vehicle and threw him out of the vehicle at the outpatients section. Dr Thomas discovered him and told him that he would have to amputate his leg. He was in hospital from 8 to 29 July 2001, during which time he was attacked by unknown persons. The police later charged him with wilful murder, of which he was acquitted on 16 February 2005.

16. The plaintiff, Vincent Kerry was the only witness. He adopted his affidavit in examination-in-chief.

17. In cross-examination Vincent Kerry stated that on the evening of 7 July 2001, the police picked up him and Kenneth Miambinaka at a block near Dagi Bridge. He and Kenneth were sleeping. It was around midnight. The police tied his hands to Kenneth’s, using a sling from a backpack he was carrying. They ordered them on to the road and told them to run. They walked them to Aling (a place on the Kimbe-Hoskins Highway). They were ordered to get on to a vehicle, then told to get off. Then the police started assaulting them.

18. The vehicle was a blue double-cab Nissan Navara. He recognised three police officers who were standing around the vehicle: Thomas Ombul, the PPC Tom Wapipi and Felix Rangit.

19. Felix Rangit called him over and asked three times ‘who pulled the trigger?’ He replied three times that he did not know. Then Felix Rangit moved away and a short time later shot at him (the plaintiff) three times. The first shot passed his right leg. The second blew off his left thumb. The third hit his leg. After the first shot, he called out "Aiyo Mama". He does not know where his thumb flew to. He could see the sparks from where the shot was coming from. They came from the place that Felix Rangit had moved to.

20. Defence counsel, Mr Tame, put it to Vincent Kerry that he was lying, which he denied.

21. In re-examination Vincent Kerry said that he was suffering no disability prior to his leg being amputated.

22. Answering questions from the bench, Vincent Kerry said that when he and Kenneth Miambinaka were told to get off the vehicle, Kenneth was taken to one side and he was taken to the other side of the vehicle. At that point he was shot. He does not know whether Kenneth was also shot. The police only picked up the two of them.

23. That ended Vincent Kerry’s evidence and marked the close of the plaintiff’s case.

24. Five affidavits were admitted into evidence and the deponents of three (3) of them were subject to cross-examination.

25. Column 1 of the table below gives the exhibit number, column 2 describes the deponent and date of the affidavit and column 3 summarises the contents.

Exhibit	Description	Content
D1	Catherine Ombul, teacher, wife of Det Sgt Thomas Ombul, 16.06.05	She recalls that on 7 July 2001 her husband was with her and their family almost all day – he must have been off duty then – when they were at home, two police officers arrived at their residence about 2.00 pm – they left, with her husband, who told her that they were going to Galai settlement to help resolve a dispute – the officers dropped off her husband at their residence around 8.15 pm and he remained there until the next morning – the next morning, Sunday 8 July 2001, she and her husband and other family members went to church – they returned home after church.
D2	Betty Rangit, teacher, wife of First Const Felix Rangit, 01.02.05	On 7 July 2001 her husband was with her and their two children at their home at Kimbe Police Barracks throughout the day and until the next morning – he was not on call-out duty and not on official duty.
D3	First Const Felix Rangit, Police officer, 22.10.03	Denies shooting the plaintiff in the presence of the PPC – he was not on police duty on the day in question – he was at his residence the whole day and has no knowledge of the plaintiff’s injuries.
D4	Det Sgt Thomas Ombul, Police officer, 16.06.05	He was not part of the incident in which the plaintiff was assaulted and shot – he knows the plaintiff’s family well as he and they come from Maprik District, East Sepik Province – he has been an officer of the Police Force for over 25 years and is not allowed to act in such a brutal manner as that alleged – at the time the plaintiff was allegedly shot, he was at his residence at Pamben Police Barracks, Kimbe – about 2.00 am [sic] that day, two Rabaul-based officers, Det Snr Const Hilary Sirinjui and First Const Konge Orim, asked him to accompany them to Det Snr Const Sirinjui’s block at Section 20, Galai 2 settlement to help settle a dispute involving his relatives, arising from a young girl being made pregnant by two youths – the three of them went to the block and stayed till about 7.00 pm – they returned about 8.30 pm – he remained at the house until the next morning, Sunday 8 July 2001, when he went to church – then returned to his house – stayed there until next morning, Monday 9 July 2001, when he returned to rostered duties at 8.00 am – says he is a religious and God fearing man and was not present at the alleged shooting and not responsible for the plaintiff’s injuries.
D5	Det Snr Const Hilary Sirinjui, police officer, 01.02.05	Based at Kokopo, ENB – at the beginning of July 2001 he and other Kokopo-based police officers were on call-out duty in WNBP following a lot of raskol activities that resulted in the death of a Kimbe police officer – they were called over to help contain and arrest the criminals – on 6 July 2001 he visited relatives at Section 20, Galai settlement and discovered that they were having a dispute with other people as a result of a young girl being made pregnant by two youths – the next day he asked his friend and colleague Det Sgt Thomas Ombul to help resolve the problem through mediation – picked up Det Sgt Ombul around 2.00 pm, went to Galai and engaged in mediation, with First Const Konge Orim – they left Galai about 7.20 pm – dropped off Det Sgt Ombul about 8.40 pm.

26. The first witness for the defendant was First Constable Felix Rangit. He adopted his affidavit in examination-in-chief.

27. In cross-examination First Const Rangit stated that he had been in the Police Force for 14 years, the last five of which he was based in Kimbe. He agreed with the plaintiff’s counsel, Mr Takin, that there were a lot of law and order problems in Kimbe in the middle of 2001. A lot of police officers were brought in, including ones from Rabaul. It was during that time that Chief Sergeant Henry Wartovo was killed. Only Kimbe officers were engaged in the operation to apprehend the suspects. There were two police operations going on, at that time.

28. He denied being near Dagi Bridge on the night of 7 July 2001. He was in his house at Kimbe Police Barracks. He denied taking the plaintiff, Vincent Kerry, anywhere that night or having a conversation with him. The plaintiff was lying when he said that he, First Const Rangit, was there.

29. Though there was an operation on, he was actually having a day off. Asked if there were a duty roster for July 2001, First Const Rangit said that because of the police operations, there was a call out, so all officers were supposed to be on the operation, 24 hours. "If there was an operation, it would come under the discretion of the PPC under the operation order, not the duty roster", he said.

31. Answering questions from the bench First Const Rangit explained that the two police operations were, first, involving the people from Mai village who were having a problem with the block-holders and secondly in regard to the death of Chief Sgt Wartovo. His day off was on a Saturday. After four continuous days of working, the PPC ordered them to take a rest during the weekend, on Saturday and Sunday. He was involved in both operations. He did not know the plaintiff until after he got the affidavit from Paraka Lawyers to sign. He did not know that the plaintiff was a suspect in the killing of Chief Sergeant Wartovo.

33. The second witness for the defendant was Detective Sergeant Thomas Ombul. He adopted his affidavit in examination-in-chief.

34. In cross-examination Det Sgt Ombul stated that he had been in the Police Force for 27 years, including 20 years based in Kimbe. He comes from Amom village in the Maprik District of East Sepik Province. He knows the plaintiff, Vincent Kerry, and all his family.

35. On 7 July 2001, he was not involved in any police operation. Nor was he involved in apprehending any suspects. An operation commenced on 4 July 2001, right after Chief Sergeant Wartovo was shot dead at Gigo. It was a big operation, involving reinforcements from the Rabaul police. However, he was not present at the place the plaintiff says he was. "He must have seen a ghost or something".

36. He is a wantok of the plaintiff. They come from neighbouring villages. He knows him very well and would not do such a terrible thing to him. He has never pressed the trigger on people while serving 20 years in West New Britain.

37. In re-examination Det Sgt Ombul said that he was not on duty on 7 July 2001. He explained his movements on that day as set out in his affidavit.

38. Answering questions from the bench, Det Sgt Ombul said he was not involved in the investigation into the death of Chief Sergeant Wartovo. He had plenty of other commitments so he was left out.

40. The third witness for the defendant was Detective Senior Constable Hilary Sirinjui. He adopted his affidavit in examination-in-chief.

41. In cross-examination Det Snr Const Sirinjui stated that he has been in the Police Force for 20 years. He was based in Popondetta for three years. Then he was attached to the mobile squad at McGregor Barracks before being stationed at Rabaul. He has never been stationed at Kimbe but has been there at times for operations. He did not know the plaintiff until very recently.

42. He was in Kimbe in July 2001 on a special operation as there was a breakdown in law and order in Kimbe and surrounding areas, including Buvussi and Buluma. The Kimbe police could not handle the situation so they got reinforcements from outside, including Rabaul. About 17 officers came from Rabaul; 15 mobile squad personnel and two CID officers, including himself. They were operating by themselves. He was involved in the investigation into the death of Chief Sergeant Wartovo.

43. On 7 July 2001 he went to Galai to mediate a dispute involving his relatives. He denied covering up the police officers involved in the shooting of Vincent Kerry. Seargent Ombul was with him until he dropped him at his home at 8.30 pm.

46. There are two sets of issues to be determined. First, the facts, which are hotly contested. Has the plaintiff proven that he was shot by the police at the time and place alleged and by the actual police officer he has named? Secondly, questions of law. The defendant argues that the pleadings are defective and that the plaintiff’s case can be defeated for that reason alone. If the plaintiff succeeds in proving that he was shot by the police, it does not follow that the State is liable. The plaintiff argues the opposite, of course.

47. In the next part of the judgment, I will set out the submissions on those two sets of issues. Then I will make findings of fact. Then I will address the questions of law, based on the findings of fact. Then I will draw a conclusion on whether the plaintiff has succeeded in establishing liability against the defendant.

48. Mr Takin submitted that the evidence established that the plaintiff was shot by police officer Felix Rangit at Aling late on the night of Saturday 7 July or early on the morning of Sunday 8 July 2001. The evidence of Dr Sammy Thomas supports such a finding. The plaintiff was shot in the leg and had to have his right leg amputated below the knee.

49. The evidence of the three police officers presented by the defendant was unconvincing. The defendant had not presented any alternative evidence to explain how the plaintiff came to be shot in the leg. The defendant had an obligation to present such evidence given the detailed evidence adduced by the plaintiff. However, the defendant’s evidence was simply a denial of involvement. There was no effective rebuttal of the plaintiff’s evidence. If the court concludes that there is insufficient evidence that First Const Rangit fired the shots, the court could nonetheless safely find that it was the police generally who shot the plaintiff and caused him injury.

50. Mr Takin suggested that once the court made findings of fact in the plaintiff’s favour, it was a simple matter of concluding that the defendant, the State, was vicariously liable for the wrongful conduct of the police officers, in particular First Constable Rangit. The police officers were on duty and carrying out the functions of the State. The State is liable for their wrongful conduct under the Wrongs (Miscellaneous Provisions) Act, Mr Takin submitted.

51. Mr Tame submitted that the plaintiff had failed to adduce credible, corroborated evidence that he was shot by the police. Furthermore, the defendant’s evidence established that neither Sgt Ombul nor First Constable Rangit were present at the scene of the alleged incident. They were both somewhere else at the time.

52. The plaintiff’s evidence consisted of (a) his affidavit and oral testimony and (b) the affidavit of Dr Thomas. Both sets of evidence were unreliable and insufficient. The plaintiff’s evidence was inconsistent with the facts pleaded in the statement of claim, it was not corroborated by any independent evidence and it was deficient as it failed to show that the police officers alleged to be present at the scene were actually agents or servants of the State or, if they were, that they were executing lawful duties. Dr Thomas’s evidence was not corroborated by evidence of initial treatment notes or a discharge summary. The medical report annexed to the affidavit is dated nine months after the alleged incident, so it cannot stand on its own.

53. By contrast, the evidence of Sgt Ombul and First Constable Rangit – that they were at their homes with their families on the night of 7 July 2001 – is corroborated by the evidence of their wives and, in the case of Sgt Ombul, by the evidence of Snr Const Sirinjui.

54. Mr Tame submitted that the plaintiff’s case was fatally flawed due to defects in the pleadings. As the plaintiff was seeking to make the State vicariously liable for the negligence of police officers, it was incumbent on him to:

57. Mr Takin submitted that the plaintiff had an open-and-shut case on the evidence: the plaintiff presented detailed evidence of how he was injured and all the defendant had done was to deny that the police were involved. I have difficulty with the thrust of those submissions in two respects.

58. First, it is not an open-and-shut case as there – as argued by Mr Tame – are some significant gaps in the plaintiff’s evidence. For example, there is no evidence to corroborate the plaintiff’s evidence as to how he was admitted into the hospital. The plaintiff says the police dumped him at the hospital. Presumably, if that were true, someone else found him. Someone took him into the emergency ward. Someone contacted Dr Thomas, who came, treated him, and performed emergency surgery. I would have thought that this sort of evidence would be readily available.

59. Secondly, Mr Takin was unable to provide any authority for the proposition that the burden of proof shifted to the defendant to show how the plaintiff was injured, given the detailed evidence for the plaintiff that was presented. I appreciate the argument – that once a plaintiff gives a detailed account of how he was injured, the defendant who wishes to deny that the plaintiff was injured in that way should be able to give evidence of an alternative way that he was injured. I can see as a matter of logic, the burden of proof might shift in a practical sense. However, I cannot elevate this process of reasoning to a principle of law, as Mr Takin seemed to want the court to do.

60. Mr Tame was right to seize upon the lack of corroboration as the principal weakness in the plaintiff’s case. Another person, Kenneth Miambinaka, was allegedly with the plaintiff when he was picked up and assaulted. He was an eyewitness, if the incident happened as alleged. However, he gave no evidence; and no satisfactory explanation was given as to why he did not, could not or would not give evidence. There was also, as indicated above, a lack of corroboration regarding the plaintiff’s admission to hospital.

61. As to Dr Thomas’s medical evidence, Mr Tame argued that it carried little weight, as it was not corroborated by admission notes and a full treatment record. I agree that this sort of evidence would ordinarily be expected. Indeed, it was surprising that the medical evidence was restricted to the treating doctor’s affidavit and a medical report prepared some months afterwards. The court should have had the admission notes and contemporaneous notes made at the time of the surgery. Surely, Dr Thomas did not perform the operation alone. Surely nursing staff at the hospital assisted the doctor. They could and should have given evidence, in particular to throw light on how the plaintiff came to be admitted. If a nurse or a security guard had given evidence about who brought the plaintiff to the hospital, a large piece of the jigsaw would have been in place.

62. However, I cannot agree with Mr Tame’s suggestion that the gaps in the evidence and the lack of corroboration meant that the plaintiff was running a hopeless case. The court is entitled to draw inferences from the available evidence. Just as in a criminal case, a plaintiff’s civil action can succeed on circumstantial evidence. In a civil case corroboration of a plaintiff’s evidence as to how he was injured is desirable but not necessary, provided that the plaintiff satisfies the court on the balance of probabilities that his version of events is truthful.

63. The effect of gaps in the plaintiff’s evidence will vary according to the strength of countervailing evidence presented by the defendant. I also have to take account of the gaps in the defendant’s evidence. By that, I do not mean that the defendant had the burden of proving how the plaintiff was injured. However, in assessing the defendant’s ‘alibi’ evidence – which was intended to show that two of the police officers named by the plaintiff as being present at the alleged incident were somewhere else at the relevant time – the thing that stands out, in a way highlighted by Mr Takin, was its lack of conclusiveness. There was corroboration of the two alibis, but none of it was independent.

64. These are few in number. Mr Tame was even unwilling to accord much credence to Dr Thomas’s affidavit, attesting to the plaintiff being operated on at 3.00 am on Sunday 8 July 2001 and having his leg amputated. This was not a very helpful approach to take. The non-contentious facts are therefore restricted to the plaintiff being a young man, with his right leg amputated above the knee and his left thumb missing.

65. I make the following initial assessment of the credibility of the different pieces of evidence.

66. The main piece of evidence in this category was the affidavit of Dr Sammy Thomas. Despite Mr Tame’s attempt to undermine its reliability, by arguing that it was not corroborated by treatment notes or a discharge summary, I can see no good reason to disregard or give little weight to this important piece of evidence. It shows that:

the plaintiff was presented to Dr Thomas, General Surgeon, at Kimbe General Hospital at 3.00 am on Sunday 8 July 2001;
he had a gunshot wound in his right thigh and right knee joint, was in severe pain and losing a lot of blood;
life-saving surgery, consisting of an above-knee amputation and removal of the lower one-third of his right femur, right knee and lower right leg, was performed at 4.30 am that morning;
the plaintiff was hospitalised for three weeks, being discharged on 29 July 2001;
a medical report regarding the above matters was prepared in April 2002, nine months after the date of surgery.

67. The plaintiff, Vincent Kerry, was the only witness who gave oral testimony. I thought he was a generally credible witness, for these reasons:

68. Five affidavits were presented for the defendant but I thought none of them carried much weight.

69. The first two were by the wives of Sgt Ombul and First Const Rangit respectively. Neither wife gave oral evidence and therefore I could not place much weight on what was said in the affidavits. Both affidavits were sworn more than three years after the date of the alleged incident. Yet each wife was able to recount where her husband was on 7 and 8 July 2001. I found this hard to believe. I thought the way the affidavits were drafted gave the impression that they had been manufactured for the purpose of the trial.

70. The next three affidavits were by the police officers who gave oral testimony: First Const Rangit, Sgt Ombul and Snr Const Sirinjui. These affidavits laid the platform for their oral testimony. Significantly, none of them contained any documentary evidence to support what was deposed to.

71. Defence witness No 1 was Snr Const Felix Rangit. I thought he was not clearly a reliable witness, for these reasons:

72. Defence witness No 2 was Det Sgt Thomas Ombul. I thought he was not clearly a reliable witness, for these reasons:

73. Defence witness No 3 was Snr Const Hilary Sirinjui. I thought he was not clearly a reliable witness, for these reasons:

74. It can safely be inferred from the medical evidence that the plaintiff was shot on his right leg on the night of Saturday 7 July 2001 or in the early hours of Sunday 8 July 2001. It is not clear exactly what time he was taken to Kimbe General Hospital, who took him, how he was taken there or how long he spent in the emergency and accident ward before he was presented to Dr Thomas. However, the fact that he was shot, wounded badly and the injuries he suffered necessitated life-saving surgery, involving an above-knee amputation, is clearly established by the medical evidence, notwithstanding the lack of other evidence that would have reasonably be expected to be produced to complement it.

75. The plaintiff has given evidence of the incident in which he was injured and who was involved and who actually shot him. Because of the way in which he gave his evidence and his demeanour in the witness box and by comparing his evidence with that of the defence witnesses, my initial assessment, as the tribunal of fact, is that I tend to believe his version of events.

FINDINGS OF FACT: WERE THE PLAINTIFF’S INJURIES CAUSED IN THE MANNER ALLEGED?

76. Having said that I tend to believe the plaintiff, I hasten to add that that does not mean that he necessarily wins the case or even that he is entitled to have findings of fact made in his favour. The task of the court, especially when diametrically competing evidence is presented, is not simply to decide who to believe but rather to determine whether the plaintiff has proven his case according to the relevant standard of proof.

77. I remind myself, as pointed out by the Supreme Court (Kidu CJ, Kearney DCJ, Andrew J, Miles J in In re James Eki Mopio [1981] PNGLR 416, that standards of proof are impossible of precise distinction by mere words. The law of Papua New Guinea recognises at least six standards of proof. The standard applicable depends on the type of legal proceedings in which issues of fact have to be determined. The table below is one way of appreciating the different standards, with the lowest standard of proof shown as category No 1 and the highest – beyond reasonable doubt – as category No 6.

No	Standard	Type of proceedings	Description	References
1	Reasonable suspicion	Applications for search warrants	Under Section 6 of the Search Act a court may issue a search warrant upon being satisfied that there are reasonable grounds for suspecting certain states of affairs.	Acting Public Prosecutor v Richard Saronduo [1988-89] PNGLR 17, National Court, Woods J
2	Reasonable belief	Applications for arrest warrants	Under Section 6 of the Arrest Act a court may issue an arrest warrant if there are reasonable grounds for believing a certain state of affairs exists.	Junior Steven Gawi and Toliman Jiki Viru v The State [1990] PNGLR 88, Supreme Court, Amet J, Woods J, Hinchliffe J
3	Prima facie	Committal proceedings in District Court; Ombudsman Commission investigations	Section 95 of the District Courts Act requires the District Court to determine whether there is a prima facie case against the defendant, ie whether the evidence is sufficient to put the defendant on trial. Section 29(1) of the Constitution obliges the Ombudsman Commission to refer a leader to the Public Prosecutor for prosecution before a leadership tribunal when "satisfied that there is a prima facie case that a person has been guilty of misconduct in office". This standard requires the court or other decision-maker to look only at the first impression or surface of the evidence and determine whether on the face of it, it could reasonably sustain the allegations.	Robert Lak v Dessy Magaru [1999] PNGLR 572, National Court, Sheehan J; Justin Wayne Tketchenko v Dessy Magaru (1999) N1956, National Court, Sevua J; Edward Ramu Diro v Ombudsman Commission [1991] PNGLR 153, National Court, Sheehan J
4	On the balance of probabilities	Civil trials	The preponderance of probabilities consistent with facts proven and facts inferred. Probable or likely – the balance of preponderance.	Wong v Lam (1980) N268, National Court, Narokobi AJ Re Fisherman’s Island [1979] PNGLR 202, National Court, Wilson J
5	Reasonable satisfaction as to the truth of the allegations, ie somewhere between the civil and criminal standard	Leadership tribunal or other disciplinary proceedings	Any allegation of misconduct in office is serious and can carry momentous consequences and the appropriate standard of proof must be a high one.	In re James Eki Mopio [1981] PNGLR 416, Supreme Court, Kidu CJ, Kearney DCJ, Andrew J, Pratt J, Miles J
6	Beyond reasonable doubt	Criminal trials	Much more than a mere suspicion of guilt or satisfaction that the accused is probably guilty – the court must be convinced of the facts – the evidence must not be open to any reasonable conclusion other than guilt. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt.	The State v Jimmy Bellam (1979) N192, National Court, Wilson J; The State v Ambros Soru (1997) N1622, National Court, Batari AJ

78. The present case is a civil trial aimed at determining whether the defendant is liable in damages to the plaintiff. The relevant standard of proof is No 4 in the table. In a civil trial in the National Court, the Judge, sitting without a jury, as the tribunal of fact, must be satisfied by the evidence that on the balance of probabilities the version of events contended for by the plaintiff is true. As to the precise degree of satisfaction to insist on, I also remind myself that within the civil standard of proof there are degrees of satisfaction. As the Supreme Court emphasised in Mopio’s case:

What amounts to satisfaction will vary with the issues involved. The more trivial the question the more easily and swiftly will satisfaction materialise. The more momentous the consequence the greater the amount of cogent evidence required.

79. Wilson J explained the same principle in Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260(L):

In proportion as the crime is enormous, so ought the proof to be clear. So also in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject matter. A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature; but still it does require a degree of probability which is commensurate with the occasion.

[Thus ...] the subject matter may cause variations in the amount of evidence required to tilt the balance or probability.

80. In the present case, the subject matter is very serious. The plaintiff alleges that a particular police officer shot him in the course of an interrogation. He alleges that the police officer shot him not accidentally but deliberately. The issue of fact to be determined is a momentous one. This is not a criminal trial, so I need not be satisfied beyond reasonable doubt that the allegation is true. However, given the nature and seriousness of the allegation and the consequences for the plaintiff and the person who is the subject of the principal allegation, I must insist on being satisfied to a large degree of the truth of the allegation.

81. The obstacles between my tending to believe what the plaintiff says and being satisfied to the necessary degree of the truth of his allegations and making findings of fact in his favour are:

82. Though the shortage of corroboration gives rise to niggling doubts – why, exactly has Aaron Miambinaka not given evidence if he, really, was an eyewitness? – I have ultimately been persuaded by Mr Takin’s submission that such evidence, though desirable, is not necessary.

83. As to the alibi evidence, it was, as I indicated earlier, far from watertight. There was no independent evidence to corroborate the movements of First Const Rangit and Sgt Ombul on the days in question, 7 and 8 July 2001. If Sgt Ombul really went to Galai to mediate a dispute involving Snr Const Sirinjui’s relatives, surely someone independent, eg a Village Court magistrate, could have verified that fact and produced some documentary evidence of resolution of the dispute. Surely the movements of particular police officers are recorded while two police operations are running concurrently. However, there was no documentary evidence at all. My tendency therefore remains, to believe the plaintiff.

84. I now return to the point highlighted by Mr Takin: the failure of the defendant to show how the plaintiff was shot. Earlier I rejected the argument that the defendant had an obligation to present this evidence. I reiterate that as a matter of law, it was not obliged to present such evidence. The burden of proof never shifted to the defendant during the course of the trial.

85. Nevertheless, in the process of sifting through and weighing the evidence and drawing rational inferences from what was presented, the question needs to be asked: if the plaintiff was not shot by police, who shot him and why? Was he shot during the course of an armed robbery? Did he accidentally shoot himself? Was a friend of his playing around with a firearm and shoot him? Was he shot in the course of a domestic dispute? Was there a dispute over land that got nasty? Was he involved in a drunken brawl? If any of these things happened, it is reasonable to expect that the incident would have been reported to the police, there would have been a police investigation and perhaps criminal charges laid. However, there is no evidence that any of those things happened. It is therefore reasonable to infer that none of them happened; and that what the plaintiff said happened, did, in fact, happen.

86. In his submission Mr Tame noted that there was no report or complaint to the police about the incident. That is true; but it is something that supports the plaintiff’s version of events. If he had been shot by the police he can be forgiven for not reporting his complaint to the police.

87. Further support for the plaintiff’s version would have been available if he had complained to some independent authority such as the Ombudsman Commission or the Public Solicitor. There is no evidence of such a complaint, so that does not assist accepting the plaintiff’s story. However, nor does it prevent accepting it.

88. On the other hand, there is one consequential action that was taken that does support the plaintiff’s evidence: he filed the writ and statement of claim in November 2001, only four months after the incident. The writ gives a version of events that is – despite the efforts of the defence counsel to expose defects in it – generally consistent with his affidavit and oral evidence: he was shot by police late on the night of 7 July 2001 then dumped at Kimbe General Hospital. The writ was filed by his present lawyers, B T Gobu & Associates; giving rise to the inference that in the months after his admission to hospital he took legal advice, explained to his lawyers what had happened and gave instructions to sue the State for what had been done to him by the police.

89. Though there were gaps in the plaintiff’s evidence, the evidence on behalf of the State was not strong, the medical evidence was consistent with the plaintiff’s version of events and the court was not presented with any viable alternative version of events.

90. It is therefore reasonably to be inferred that the police picked him up as he was a suspect in the death of another police officer, they interrogated him and shot him during the process of interrogation.

91. For all these reasons I am satisfied to the required degree that the plaintiff has proven on the balance of probabilities that his injuries were caused in the manner he has alleged. Therefore I make the following findings of fact:

92. Having decided the facts in favour of the plaintiff, I now move to a consideration of the relevant law. This requires an examination of the cause of action. What is it? Has the plaintiff proven its elements? Are the pleadings defective? Mr Tame has gathered an array of procedural arguments intended to defeat the plaintiff’s claim and they require careful consideration.

93. As to the cause of action, this fundamental part of the plaintiff’s case is poorly articulated in the statement of claim. Even when Mr Takin made his submissions, he did not make it clear what the cause of action was. Trespass to the person? Assault? Negligence? Breach of constitutional rights? The court was initially left guessing. Mr Tame was prepared to regard it as the common law tort of negligence, which was a generous but sensible concession.

94. In a number of recent cases I have been critical of the plaintiff’s lawyer to clearly plead and argue the appropriate cause of action (Luke Deukari v Danny Kuglam and The State WS No 615 of 1994, 29.09.06; Eles Jay Clothing Ltd v The State WS No 858 of 1998, 29.09.06; Otto Benal Magiten v Rural Development Bank Ltd WS No 938 of 1999, 20.10.06). Statements of claim seem to be drafted along the lines of stating the facts and then simply seeking damages or other remedies. There seems a widespread lack of understanding of the conceptual and jurisprudential significance of a ‘cause of action’; which is best understood as the equivalent in civil proceedings of an ‘offence’ in criminal proceedings.

95. In criminal cases the duty of the prosecutor is not simply to prove facts and seek a penalty. The prosecutor must state the elements and argue that the facts as proven fit into the elements. So it is with civil proceedings: the plaintiff’s counsel must prove a set of facts (which has happened already in the present case) and then prove the elements of the cause of action. If the cause of action is not stated, the elements are illusory.

96. Too often plaintiff lawyers are coming to court without a clear or any idea of how to establish – or finish off – their client’s case. It is as if they want the court to supply the answer. ‘These are the facts; the plaintiff has been done wrong; please award damages.’ That is the approach many plaintiff lawyers are taking. With respect, I have to be critical of the plaintiff’s lawyer, Mr Takin, who has taken that approach in this case. So, what do I do about it? Throw out the case because the pleadings are poorly drafted? Tell the plaintiff that though he has proven the facts he relies on, he cannot succeed due to this technical defect in his case? Tell him to sue his lawyer for negligence? No, I do not consider that that is an appropriate course of action. I do not think I would be dispensing justice if I did those things. Not in a case such as this where an individual citizen has proven the facts of his case and is pitted against the State. Provided that the general nature of the claim has been pleaded and the State is not unduly prejudiced, the court should proceed to deal with the claim.

97. I am going to proceed with this case as if the cause of action being relied on – as conceded by the defendant – is the common law of negligence. That still does not mean that the plaintiff necessarily succeeds. He still has to overcome the other procedural arguments the defendant has mustered.

See generally J G Fleming, The Law of Torts, 5th edition, LBC Information Services, © 1977, Chapter 6, Negligence: Introduction, pages 104-105 and Kembo Tirima and Others v Angau Memorial Hospital Board and The State (2005) N2779, National Court, Cannings J.

99. I will now consider whether those elements exist in the present case in light of the findings of fact made.

First, the police officers who picked up the plaintiff and questioned him as to his involvement in the murder of Chief Sergeant Wartovo owed him a duty of care. It does not matter whether they were on duty or off duty. They remained police officers, 24-hours a day. (Linda Stanley v The State (2005) N2865, National Court, Cannings J.)

Secondly, the police as a group, and First Const Rangit in particular who fired the shots at the plaintiff, were negligent. They breached the standard of care required in the circumstances. Shooting a criminal suspect is not an acceptable method of criminal investigation.

Thirdly, it has been established that it was the gunshot wound to the plaintiff’s right leg that necessitated the amputation of his leg. Causation is established.

Fourthly, the type of injury sustained by the plaintiff was reasonably foreseeable.

100. I accordingly find that the plaintiff has established the tort of negligence against the police officers involved in the incident.

101. Vicarious liability is a common law principle by which one legal person (such as the State) is held liable for the acts or omissions of another person or group of persons over whom the first person has control or responsibility. The principles of vicarious liability have been codified by Section 1 (general liability of the State in tort) of the Wrongs (Miscellaneous Provisions) Act.

102. Mr Tame argues that the plaintiff has failed to establish that the State should be vicariously liable, for various reasons that I will label as ‘procedural arguments’. The plaintiff did not, it is argued:

103. Mr Tame was not correct when he submitted that the statement of claim did not name the tortfeasors – the persons for whose conduct the State was claimed to be vicariously liable.

104. The statement of claim clearly pleaded that it was members of the Police Force at Kimbe under the command of the then PPC Tom Wapipi who picked up the plaintiff at Dagi, assaulted and then shot him. The statement of claim identifies the officers present as Tom Wapipi and Thomas Ombul. It also claims that Felix Rangit fired three shots at the plaintiff from close range.

105. Mr Tame was correct in pointing out that the principal tortfeasor, Felix Rangit, was not named as a defendant. However, he did not cite any authority to support the proposition that this amounted to a procedural error.

106. In a recent Buka case, William Pattits v The State WS No 27 of 1999, 29.09.05, I dismissed a similar argument – that the State could not be vicariously liable as the actual wrongdoer had not been joined as a party – which was based on Dalin More v The State & Others (1998) N1736, National Court, Injia J in which it was held that the State could not be held vicariously liable for rapes committed by unidentified police officers. Dalin More does not stand for the proposition that the particular tortfeasor must be named as a party to the proceedings; at least where a plaintiff identifies the wrongdoers in evidence.

108. Mr Tame correctly pointed out that it is incumbent on a plaintiff who seeks to make the State vicariously liable for the conduct of its servants or agents to plead that the actual wrongdoer is, in fact, such a servant or agent.

109. The statement of claim pleaded that the State is responsible for the appointment and employment of the Commissioner of Police, who has command, control and direction of the Police Force and is therefore responsible for the collective and individual activities of each member of the Police Force. The statement of claim did not expressly plead that the actual wrongdoer was a servant or agent of the State. But it was a proposition advanced by necessary implication. I am satisfied that the gist of the claim for vicarious liability was pleaded. As I indicated earlier, the National Court should be loathe to dismiss otherwise legitimate claims against the State simply because the pleadings have been poorly drafted.

110. This, I consider, is the strongest and most valid procedural argument raised. Actually, it is not just a procedural issue. It is a matter of substantive law. The plaintiff must not only plead that the tort complained of was committed by police officers within the scope of their police employment or functions, he must prove it as a fact. The State is liable for their tortious acts or omissions if committed within the scope of their police employment or functions. (David Kofowei v Augustine Siviri and Others [1983] PNGLR 449, National Court, Ramage AJ; The State v David Wari Kofowei and Others [1987] PNGLR 5, Supreme Court, Kidu CJ, Kapi DCJ, Woods J.)

111. As for the procedural issue, I agree with Mr Tame’s submission that the pleadings are deficient. Though there are a number of references to the actions of the police – implying that it was their actions in their capacity as police officers that was claimed to give rise to liability – there is no express reference to their acting within the scope of their police employment or functions. Mr Tame referred to the decision of Salika J in Paulus Kei v Tony Hasu and The State (2004) N2743 as an example of the court refusing to uphold a vicarious liability against the State due to the failure to plead that the tortfeasor, a police officer, was acting in the normal course of his employment. That case, however, can be distinguished on its facts as in addition to the procedural error of failing to plead that the police officer was acting within the scope of his employment the plaintiff failed to lead any evidence of that fact. In the present case, evidence was led that the police officers who picked up the plaintiff and started the chain of events leading to him being shot, did so as part of an investigation into the murder of a fellow police officer. I am therefore not inclined to dismiss the plaintiff’s case due to the defect in the pleadings.

As for the substantive issue of law, it is timely to note as I did in Linda Stanley’s case that the powers, functions, duties and responsibilities of the Police Force and its members are prescribed by Constitutional Law, statute and the underlying law. Section 197 of the Constitution states that the primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament, to preserve peace and good order in the country and to maintain and, as necessary, enforce the law in an impartial and objective manner. Section 140 of the Police Act 1998 states (and Section 139 its predecessor, the Police Force Act Chapter 65 stated) that a member of the Force has the same powers, duties, rights and liabilities as a constable under the underlying law, except in so far as they are modified by or under an Act of Parliament.

113. If it is established that police officers were acting within the scope of their functions, the State is liable for their tortious conduct unless the State discharges the onus of showing that what they did was totally removed from the domain of their authorised actions. (Nogo Suzuke v The State WS 951 of 1994, unreported, 21.06.96, National Court, Injia J; Eriare Lanyat and Another v The State [1997] PNGLR 253, National Court, Injia J; Wama Kints v The State (2001) N2113, National Court, Davani J.)

The tort was committed in the course of performing functions imposed on them as police officers, ie it was within the scope of their police functions. They were police officers in a police vehicle in a public place. They were engaged in a criminal investigation. That was why they picked up the plaintiff and assaulted him. During the course of interrogating him, one of them shot him.

The State has not discharged the onus of showing that what the police officers did was totally removed from the domain of their authorised actions. It could be argued that it is so obvious that a police officer is not authorised to shoot suspects in a criminal investigation, that that fact did not have to be proven in this case. However, in my view the principle of Nogo Suzuke, Eriare Lanyat and Wama Kints must be strictly applied, to avoid the spectre of the State escaping liability for the actions of police officers simply on the ground the police have acted well beyond their legitimate authority. The State is responsible for the training and development of individual officers and of responsible police culture – one that respects the human rights of individuals, especially of persons in custody, charged with offences or suspected of being an offender. The State must be held accountable for the conduct of police officers committed generally within the scope of their authorised functions – which in this case was a criminal investigation – even if, in the exercise of those functions, an individual police officer does something that is clearly unauthorised and unlawful.

115. I do not uphold any of the procedural arguments raised in defence of the State. I find that the State is vicariously liable for the actions of the police officers. The plaintiff has succeeded in establishing a cause of action against the defendant. The claim will proceed to trial for an assessment of damages.

116. The general rule is that a party that wins a civil case has its costs paid for by the other side. There were deficiencies in the plaintiff’s pleadings in this case that arguably warrant departure from that rule of thumb. However, the awarding of costs is at the discretion of the court. I dismissed the procedural arguments raised by the defendant so I will exercise my discretion as to costs in favour of the plaintiff.

B T Gobu & Associates: Lawyers for the plaintiff
Paul Paraka Lawyers: Lawyers for the defendant

National Court of Papua New Guinea

Kerry v State [2007] PGNC 25; N3127 (26 January 2007)