Tapu Construction Ltd v Moses [2017] PGNC 4; N6588 (11 January 2017)

N6588

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 606 OF 2013

BETWEEN
TAPU CONSTRUCTION LIMITED
Plaintiff

AND
PETER MOSES, STANLEY LAPE, PETER PAWEA & GIVSON LUKE
First Defendants

AND
GUARD DOG SECURITY SERVICES LIMITED
Second Defendant

Madang: Cannings J
2015:17^th June & 10^th August,

2017: 11^th January

TORTS – trespass to property – elements of tort – whether sufficient evidence of each element.

EVIDENCE – conflict in evidence of involvement of defendants in incident in which plaintiff’s property was damaged.

VICARIOUS LIABILITY – whether an employer can be vicariously liable for tortious actions of its employees if the actual employees who committed the tort cannot be identified.

There was an altercation between two groups of people, which led to one group destroying a guest house and damaging other properties in the vicinity, including the plaintiff’s truck. The plaintiff was not involved in the altercation. The plaintiff alleged that the first defendants were members of the group who damaged its truck, that the first defendants committed the tort of trespass to property, that the first defendants were employed by the second defendant and that the second defendant was vicariously liable for the tort committed by the first defendants. The plaintiff sought damages in trespass to property against both the first defendants and the second defendant. The defendants denied liability. The first defendants gave evidence that they were not involved in the incident and that they were not employed by the second defendant. The second defendant offered no evidence.

Held:

(1) It was proven that there was an altercation between two groups of people and that one group entered the area of a guest house, destroyed the guest house and in the process damaged the plaintiff’s truck, which was parked in the area.

(2) It was proven that the members of the group that damaged the plaintiff’s truck committed the tort of trespass to property in that: (a) they (the tortfeasors) interfered with (by damaging or destroying), (b) the plaintiff’s chattel (any property other than freehold land); (c) they acted intentionally, (d) they acted without lawful authority, and (e) the plaintiff had actual possession of the chattel.

(3) It was not proven that the first defendants were members of the group that damaged the plaintiff’s truck. The case against them failed.

(4) It was proven that the tortfeasors were employees of the second defendant and that they were on duty.

(5) As the tortfeasors were on duty and acting generally within the scope of their employment, the second defendant, as their employer, was vicariously liable for their tortious conduct, even though they could not be identified. Therefore the second defendant was liable in damages to the plaintiff.

Cases cited:

Kuk Kuli v The State (2004) N2592
Roka Coffee Estate Pty Ltd v Gerebi [1973] PNGLR 486
Sam Samoua v Aces Venture Ltd (2013) N5325
Wango v Andakundi [1992] PNGLR 45

STATEMENT OF CLAIM

This was a trial on liability for trespass to property.

Counsel:

B Lakakit, for the Plaintiff
M Maburau, for the Defendants

11^th January, 2017

1. CANNINGS J: On the night of 25 August 2011 there was an altercation between two groups of people at Komo, Hela Province, which led to one group destroying the Fear Guest House and damaging other properties in the vicinity, including the plaintiff’s truck, a Nissan dump truck, which was parked in the area of the guest house. The plaintiff, Tapu Construction Ltd, and its employees who were staying at the guest house, were not involved in the altercation.
   
2. The plaintiff sues the defendants in the tort of trespass to property (its truck) and seeks damages against them. The plaintiff’s head office is in Madang. The plaintiff filed the writ in Madang. With the consent of the defendants the trial was conducted in Madang.
   
3. The plaintiff claims that:
   
   • the first defendants – Peter Moses, Stanley Lape, Peter Pawea and Givson Luke – were members of the group who damaged its truck,
     
   • the first defendants committed the tort of trespass to property and are liable in damages to the plaintiff,
     
   • the first defendants were security personnel employed by the second defendant, Guard Dog Security Services Ltd,
     
     • the first defendants were on duty,
       
   • the second defendant is vicariously liable for the tort committed by the first defendants and is also liable in damages to the plaintiff.
     
4. The defendants deny liability. The first defendants gave evidence that they were not involved in the incident and that they were not employed by the second defendant. The second defendant offered no evidence. There are four issues:
   
   1. What are the facts?
      
   2. Was the tort of trespass to property committed?
      
   3. Which, if any, of the defendants is liable?
      
   4. What orders should be made?
      
1. WHAT ARE THE FACTS?
   

5. The defendants agree, and it has been proven, that an incident occurred at and in the vicinity of the Fear Guest House on the night of 25 August 2011. There was an altercation between two groups of people. One group, the first group, was constituted by local men from the Komo area who were connected with the people who owned the Fear Guest House. The second group was constituted by security guards and other security personnel employed by a security firm engaged to provide security for the ExxonMobil LNG Project, which was then in its construction phase. The second group entered the area of the guest house, destroyed the guest house and in the process damaged the plaintiff’s truck, which was parked in the area. Those are the undisputed facts.

6. These are the disputed facts:

(a) Were the first defendants involved in the incident and employed by the second defendant?

(b) Was the second defendant involved in the incident, by virtue of any of its employees or associates being involved?

As to (a), the plaintiff has adduced evidence by one of its employees, Dickson Etao, the driver of the truck, who had parked it in the area of the guest house. He testified that he witnessed the incident and that he was able to identify the first defendants as being present and involved. However, three of the first defendants, Messrs Moses, Pawea and Luke, have testified that they were not present, that they did work in that area but that they had gone home and were in their villages, and that they were employed, not by the second defendant, but by another security company called Hides Security Services Ltd. I accept the evidence of the first defendants. I am not persuaded by the evidence of Mr Etao as he does not indicate why and how he was able to identify the first defendants. I find that the first defendants were not involved in the incident and that they were not employed by the second defendant.

As to (b) I have considered the evidence of Mr Etao and Senior Sergeant Fomes Karona, acting Squad Commander of MS10, who was based at Komo at the time. Though I earlier rejected parts of Mr Etao’s evidence dealing with identification of the particular security personnel involved (as it was contradicted by specific evidence of three of the first defendants who said that they were not present), I see no reason to reject the general tenet of his eyewitness evidence, which was:

... a fight broke out between the local boys from where the guest house is situated and Guard Dog security guards. The security guards drove straight into where the guest house was, entered the premises and started destroying the properties including the dump truck parked in the premises of the guest house and later set fire on the guest house.

7. Senior Sergeant Karona’s evidence corroborates Mr Etao’s evidence. He deposed:

I am aware that on the 25^th August 2011 between 7.00 pm and 11.00 pm a fight broke out between the security guards of Guard Dog Security Services Ltd and locals within a guest house, namely Fear Guest House from Komo LNG development operation area in the Hela Province.
When the incident took place I was physically on the ground at the LNG development operations area at Komo with my squad members and witnessed what transpired and had it not been for our intervention many lives and properties would have been lost.

8. Also in evidence is a brief for the Provincial Police Commander authored by Senior Sergeant Karona, dated 26 August 2011, which states:

The incident took place at Komo Station on the 25/08/11 between 7.00 pm to 11.00 pm when security guards of the Guard Dog Security Service wilfully entered the guest house premises and destroyed a Nissan UD 10CM3, Reg AFT 384 owned by Tapu Construction Ltd.

9. Given that the brief was prepared the day after the incident, it is unlikely that Senior Sergeant Karona would be mistaken as to the general identity of the security guards involved in the incident. No good reason has been put forward to doubt the veracity of Senior Sergeant Karona’s evidence. I regard him as an independent witness whose evidence is of high probative value, which corroborates Mr Etao’s evidence.

10. Significantly, the second defendant did not present any evidence at the trial. The plaintiff’s evidence that the members of the second group were security guards employed by Guard Dog Security Services Ltd was left uncontradicted.

11. I find that the second defendant was involved in the incident in that some of its employees, engaged as security personnel, were members of the second group who were involved in the altercation with the Komo locals and who damaged the plaintiff’s truck.

2 WAS THE TORT OF TRESPASS TO PROPERTY COMMITTED?

12. Yes I find that the plaintiff has proven on the balance of probabilities that members of the second group committed the tort of trespass to property. The elements of the tort (as set out in Sam Samoua v Aces Venture Ltd (2013) N5325) have been proven to exist, in that:

(a) they (the tortfeasors, the members of the second group) interfered with (by damaging),

(b) the plaintiff’s chattel (any property other than freehold land)– the dump truck;

(c) they acted intentionally,

(d) they acted without lawful authority, and

(e) the plaintiff had actual possession of the chattel.

The plaintiff also proved that the tortfeasors were security personnel, who were employees of the second defendant and, by inference, having considered all the evidence and taking into account that the second defendant offered no evidence, that they were on duty at the time.

3 WHICH, IF ANY, OF THE DEFENDANTS IS LIABLE?

13. The first defendants are not liable as they were not members of the group that damaged the plaintiff’s truck.

14. For the second defendant to be vicariously liable for the conduct of its employees, three elements must be proven:

(a) an employer-employee relationship existed between it and the tortfeasors,

(b) a tort was committed by the tortfeasors,

(c) the tort was committed in the course of the employee’s employment (Roka Coffee Estate Pty Ltd v Gerebi [1973] PNGLR 486, Wango v Andakundi [1992] PNGLR 45, Kuk Kuli v The State (2004) N2592).

All elements of vicarious liability have been proven on the balance of probabilities. I conclude that, despite the failure of the case against the first defendants and the inability of the plaintiff to identify the actual tortfeasors, it has sufficiently been established that the tortfeasors were employees of the second defendant, and that they committed, in the course of their employment, in respect of the plaintiff, the tort of trespass to property. The second defendant is liable in damages to the plaintiff.

4 WHAT ORDERS SHOULD BE MADE?

15. As this trial was confined to the issue of liability, I will make the appropriate orders to reflect the court’s findings. Unless the parties agree to settle the matter, the case will proceed to an assessment of damages at a separate trial. The question of costs is deferred.

ORDER

(1) The plaintiff has failed to establish liability against the first defendants and the case against them is dismissed.

(2) The plaintiff has established a cause of action in trespass to property against the second defendant, and the plaintiff is entitled to damages which shall be subject, in the absence of agreement between the parties, to assessment at a separate trial.

(3) The question of costs is deferred to conclusion of the proceedings.

Judgment accordingly,
____________________________________________________________

Lakakit & Associates Lawyers: Lawyers for the Plaintiff

M Maburau: Lawyer for the Defendants