Yanopa v Doughty Ltd [2016] PGNC 147; N6333 (24 June 2016)

N6333

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 870 OF 2014

BETWEEN:

MARY KAI YANOPA
First Plaintiff

And:
KAI YANOPA
Second Plaintiff

And:
DOUGHTY LIMITED
First Defendant

And:
SIR JOSEPH NOMBRI MEMORIAL GENERAL HOSPITAL KUNDIAWA
Second Defendant

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Kundiawa: Liosi, AJ
2016: 24^th June

CIVIL - PRACTICE & PROCEDURE - National Court Rules Order 12 rule 40 - Dismissal of proceedings - No reasonable cause of action - Whether there is an arguable case for trial - The alleged tortfeasor must be identified and named - Vicarious liability not established - For the nexus to be established the wrong doers must be named - Statement of claim must plead nexus.

Case Sited:
Kuk Kuli v. The State (2004) N2592
Lina Kewakali v. The Independent State of PNG (2011) SC 1091
Mali Pyali v. Chief Inspector Leo Kabilo & the Independent State of PNG (2003) N2492
Philip Takori v. Yagari (2010) N3823

Counsel:

Mr M. Yawip, for the Plaintiffs
Mr. D. Pia, for the First Defendants
Mr. P. Kopunye, for the Second Defendants
Mr. J. Sagom, for the Third Defendants

RULING

24^th June, 2016

1. LIOSI AJ: This is a ruling on a motion filed by the second defendant. The motion was filed on the 7^th April 2015 and seeks to dismiss the proceedings on the grounds that;
   
1. It failed to give prior notice of claim pursuant to Section 5 of the Claims By and Against the State Act.
2. Pursuant to Order 12 Rule 40 of the National Court Rules, the proceedings be dismissed for disclosing no reasonable cause of action.
3. Alternatively, the proceedings be dismissed pursuant to section 1 of the Wrongs Miscellaneous Provisions Act for not naming the Principal Tortfeasor.
   
2. Similar motion has also been filed by the first defendant on 20^th March 2015, who has also filed submissions on 7^th April 2016.
   
3. The defendants’ argument on lack of Section 5 Notice was abandoned on 20^th April 2016 and will not be pursued.
   

Plaintiffs Claim

4. The plaintiffs in their Statement of Claim filed on 30^th July 2014, in summary allege that the first plaintiff whilst being a guardian of a female relative at Sir Joseph Nombri Hospital in Kundiawa was raped by an unknown male figure wearing a blue uniform shirt and trousers similar to the ones worn by the first defendant’s security guards. The plaintiffs plead the assailant was wearing a mask and could not be identified. He was not named as a party to the proceedings. The plaintiff therefore suspected that a security guard allegedly employed by the first defendant allegedly raped her.

Does a cause of action lie against the Second Defendant?

5. It is clear from the pleadings that the plaintiff is suing the defendants on the basis of vicarious liability as the negligent of the first defendant which was employed by the second defendant hospital to provide security to the hospital. For the second defendant to be liable the plaintiff must establish a nexus or connection between the second defendant with the first defendant and with the tortfeasor who raped the first plaintiff.
   

The Law

6. The law is well settled in this jurisdiction concerning vicarious liability. The plaintiff must name the servant/agent or the alleged tortfeasor as the defendant. The alleged tortfeasor must also be named as a defendant in the proceedings. Clearly a nexus must be established. In the Supreme Court case of Lina Kewekali v. The Independent state of Papua New Guinea (2011) SC 1091 (Davani, Kariko and Sawong JJ) held that:-
   

"39. In the text Australian civil procedure by Bernard C Cairns, 3^rd edition the learned author states at p. 236;

“Pleadings raise cause of action and defences only between the correct parties. In naming the wrong defendant the plaintiff fails to plead a cause of action”

And at p. 237 of the same text, it reads;

“As a generality, the principle as to naming of parties is that all parties who are necessary and proper for the resolution of the dispute must be before the Court. The jurdicature principle is that all matters of dispute shall be resolved and for to and for that to be achieved, the court must have before it all the disputing parties..............

40. In addition, we view the provisions of section 1 (2) of the Wrongs Act, provides by necessary inference that a servant or agent of the State who has been alleged to have committed the wrong, must be named as a party or a co-defendant.

In our view, if a plaintiff does not name the alleged principal tortfeasor, there is a nexus or connection so there will be a cause of action against the nominal defendant (the state), Thus, it is our opinion that to do justice to all parties, the plaintiff must name the servant or agent of the State or the alleged tortfeasor and must also plead in the statement of claim the nexus or connection between the principal tortfeasor and the nominal defendant ................... (emphasis ours)..."

7. In the case of Philip Takori –v- Yagari, N3823, her honour Davani J stated the law that:-
   

“To establish liability in a claim where vicarious liability is alleged, the person’s the plaintiffs claim to be involved in the illegal activity must be named (my emphasis). This is to enable or allow them to plead in the statement of claim the illegal activities or activity, done by the named defendants. Additionally, they would have to plead whether these named defendants performed these illegal activities whilst in the course of their employment with the State (my emphasis).

And of course the employer must be named as well. The pleading in relation to the named defendant employer will be that it had authorized the named employee’s actions that they were authorized to carry out these activities and were acting in the course of their employment with the state agency when the alleged incident occurred.”

8. The general principle of law is that, a master is liable for the negligence of his servant if committed in the course of his employment, but is not liable for negligence committed outside the scope of his employment. (See Charles Worth on negligence at p.922). The master is even liable for acts which are not authorised, provided they are so connected with the acts which he has authorized that they may be regarded as modes of doing those acts. Where an act is said to be an independent act, not connected with the authorised act, in such a case, the servant will be said to have gone outside the course of his employment. Kolta Development Pty Ltd v. PNG defence force [1998] PGNC 136; [1997] PNGLR 585 (5^th September 1996) Dalin More –v- State [1998] PGNC 13: N1736 (26 February 1998), State v. Kofowei [1987] PNGLR 5 (26 February 1987), Daniel Waiakali v. Bram Moea & the State N1484 [1996]
   

Application of Law to Facts

9. In the present case, the plaintiff has not pleaded the alleged principal tortfeasor with the first and second defendants respectively for vicarious liability to come into play. The first and second defendant did not commit the alleged rape offence. It was committed by a suspected unidentified employee of the first defendant. Without naming of pleading the tortfeasor, no nexus or connection is established hence the principle of vicarious liability does not come into play (Mali Pyali v.Chief Inspector Leo Kabilo & The State and Kuk Kuli v. The State... considered). I find therefore no cause of action lies against both first and second defendants.
   

Power of the Court

10. The court has power to dismiss proceedings which do not disclose a reasonable cause of action against any defendant pursuant to Order 12 Rule 40 of the National Court Rules. By reason of cause of action not been disclosed the proceedings against the first and second defendants are frivolous and vexatious and must be dismissed with costs.
    
11. It is not just a case of naming and pleading the tortfeasors. In this case the plaintiffs will also have to go another step further. That is that the plaintiffs must prove that the tortfeasor was authorised by the defendants to do what he did. That is that he must be acting in the scope of employment.
    
12. Having made that ruling I do not see any need to address other grounds in the ruling.
    

Orders

13. The Orders of the Court are that:
    
    1. The entire proceeding is dismissed for disclosing no reasonable cause of action.
       

2. Costs follow the event.

Ruling Accordingly,

______________________________________________________

Public Solicitor : Lawyers for the Plaintiff
Paulus Dowa Lawyers : Lawyers for the first Defendant
Kopunye Lawyers : Lawyers for the Second Defendant
Solicitor General : Lawyers for the Third Defendant