Wak v Kulunga [2018] PGNC 64; N7141 (5 March 2018)

N7141

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 1 OF 2013

GIBSON WAK BY HIS NEXT FRIEND PAIAS WAK
Plaintiff

V

TOM KULUNGA, COMMISSIONER OF POLICE
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani : Cannings J
2016: 20 May, 28 July,
2018: 5^th March

PRACTICE AND PROCEDURE – State claims – Claims By and Against the State Act, Section 5 (notice of claims against the State) – whether Secretary for Justice or Solicitor-General have power to reject a notice.

TORTS – NEGLIGENCE – alleged shooting of plaintiff by unidentified member of the Police Force – shots sprayed in public place – whether plaintiff required to prove identity of member of Police Force who fired shot.

The plaintiff claimed that while he was in a public place waiting for a bus, he was shot in the foot by a stray bullet fired by members of the Police Force who were shooting in the vicinity of a public market to disperse an unruly crowd. He commenced proceedings against the Commissioner of Police and the State (each of which was argued to be vicariously liable for the wrongful acts of the member(s) of the Police Force who fired the shot). Two causes of action were pleaded in the statement of claim, negligence and breach of human rights, however at the trial on liability the human rights action was abandoned. A trial was conducted to determine whether either of the defendants was liable. The plaintiff gave evidence of the incident and presented medical evidence to verify that he had in fact been shot in the foot and hospitalised. Other witnesses gave evidence of the incident. The defendants adduced no evidence as to the shooting incident but defended the proceedings by arguing that the entire proceedings should be dismissed for (1) failure to comply with the notice requirements of the Claims By and Against the State Act, in that the purported notice given by the plaintiff’s lawyers had failed to identify the principal tortfeasor and been rejected by the Solicitor-General; and (2) failure to name the principal tortfeasor as a defendant and in the statement of claim and in the evidence, thereby failing to establish a sufficient nexus between the unidentified tortfeasor and the State to justify a finding of vicarious liability against the State.

Held:

(1) The plaintiff’s lawyers gave notice to the State within six months after the shooting incident and gave the date, time and place of the incident and the name of the nearest police station. The details were sufficient to meet the requirements of Section 5 of the Claims By and Against the State Act. The fact that the notice was “rejected” and declared “void” by the Solicitor-General had no bearing on whether it complied with the Act.

(2) The plaintiff proved, circumstantially, that it was a member of the Force who fired the shot. The defendants’ argument that it could have been a member of the public was rejected. The plaintiff proved that, by shooting recklessly in a public place, the member of the Police Force involved, though unidentified, had committed the tort of negligence against him.

(3) The fact that the member was not joined as a defendant, identified in the statement of claim or in evidence is of no consequence in light of the Supreme Court decision in Philip Nare v The State (2017) SC1584, which overruled an earlier Supreme Court decision on these issues in Lina Kewakali v The State (2011) SC1091.

(4) The State was vicariously liable for the negligence committed by its employee, the member of the Police Force who shot the plaintiff. Judgment was entered against the second defendant.

Cases cited

The following cases are cited in the judgment:

Jeff Joe Lome v Katu Sele (2017 N6854
Lina Kewakali v The State (2011) SC1091
Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807
Philip Nare v The State (2017) SC1584
Steven Kaipa v RD Tuna Canners Ltd (2017) N6650
Vincent Kerry v The State (2007) N3127
Wendy Cathy Ako v Mount Hagen General Hospital Board and The State (2013) N5260
William Pattits v The State (2006) N3088

Legislations:

Claims By and Against State Act

STATEMENT OF CLAIM

This was a trial on liability to determine an action in negligence.

Counsel

S Wanis, for the plaintiff
L Florian, for the defendants

5^th March, 2018

1. CANNINGS J: The plaintiff Gibson Wak claims that while he was at a bus stop near Gordon Market, National Capital District, between 2.00 and 3.00 pm on 7 March 2012, he was shot in the foot by a stray bullet fired by members of the Police Force who were shooting in the vicinity of the market to disperse an unruly crowd.
   
2. He commenced proceedings against the Commissioner of Police (first defendant) and the State (second defendant). Each of those parties is argued to be vicariously liable for the wrongful acts of the member of the Police Force who fired the shot. Two causes of action were pleaded in the statement of claim, negligence and breach of human rights, however at the trial on liability the human rights action was abandoned. A trial has been conducted to determine whether either of the defendants is liable.
   

EVIDENCE

3. The plaintiff gave direct evidence of the incident and presented medical evidence to verify that he had in fact been shot in the foot and hospitalised. Other witnesses also gave evidence of the incident. The defendants adduced no evidence as to the shooting incident.
   

DEFENDANTS’ POSITION

4. The defendants do not deny that the plaintiff was shot and injured at the time and place alleged. But they deny liability. They argue that the entire proceedings should be dismissed for:
   

(1) failure to comply with the notice requirements of the Claims By and Against the State Act, in that the purported notice given by the plaintiff’s lawyers had failed to identify the principal tortfeasor and been rejected by the Solicitor-General; and

(2) failure to name the principal tortfeasor as a defendant and in the statement of claim and in the evidence, thereby failing to establish a sufficient nexus between the unidentified tortfeasor and the State to justify a finding of vicarious liability against the State.

(1) NOTICE REQUIREMENTS OF CLAIMS BY AND AGAINST THE STATE ACT

5. The plaintiff’s lawyers, Warner Shand, gave notice in writing to the State, by a letter dated and served on 18 July 2012, of the plaintiff’s intention to make a claim against the State. The time, date and place of the incident and the nature of the plaintiff’s injury were stated, as was the allegation that the plaintiff had been shot by police. The identity of the member of the Police Force who fired the shot was not given, as it was not known.
   
6. The Solicitor-General replied to that letter, in a letter dated 28 August 2012, stating that the purported notice was void and rejected as the name of the principal tortfeasor was not provided. Despite that rejection Warner Shand proceeded to file the writ, amended on 8 April 2013, which is now before the Court for determination.
   
7. Counsel for the defendants, Mr Florian, submits that the notice of 18 July 2012 fails to meet the requirements of Section 5 (notice of claims against the State) of the Claims By and Against the State Act, which states:
   

(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section by the claimant to—

(a) the Departmental Head of the Department responsible for justice matters; or

(b) the Solicitor-General.

(2) A notice under this Section shall be given—

(a) within a period of six months after the occurrence out of which the claim arose; or

(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or

(c) within such further period as—

(i) the Principal Legal Adviser; or

(ii) the court before which the action is instituted,

on sufficient cause being shown, allows.

(3) A notice under Subsection (1) shall be given by—

(a) personal service on an officer referred to in Subsection (1); or

(b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 am and 12 noon, or 1.00 pm and 4.06 pm, or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).

8. Mr Florian argued that the plaintiff’s notice was, though given within six months after the shooting incident, ineffective in two respects. First, it was declared void by the Solicitor-General. Secondly, the details of the shooting incident were insufficient as the principal tortfeasor was not named.
   
9. As to the first argument, I am aware that there is National Court authority to support the proposition that if a purported Section 5 notice is rejected by the Secretary for Justice or the Solicitor-General, it is incumbent on the claimant (the potential plaintiff) to seek, and be allowed, a further period within which to comply with Section 5, before commencing proceedings. In Wendy Cathy Ako v Mount Hagen General Hospital Board and The State (2013) N5260, Davani J was dealing with a rejection scenario similar to the one in the present case. Her Honour stated:
   

If the State, when considering the purported letter giving notice, finds that it is not sufficient notice, the only alternative available to any plaintiff is to return to Court for a further extension of time, citing and referring to the State’s reasons for refusal and to seek orders for a further extension of time to pursue and correct whatever inadequacies or anomalies that were pointed out to him by the State.

10. I am not aware of any Supreme Court decision on the issue. I am not bound to follow National Court decisions of other Judges, and I respectfully decline to follow the approach in the above case. I uphold the submission of Mr Wanis for the plaintiff that Section 5 does not give any power to the Secretary for Justice or the Solicitor-General to reject a notice or declare it void. They can express an opinion on whether the notice is compliant with Section 5. But the opinion is not binding. It is expressed only as a matter of courtesy and fairness. It makes the author of the notice aware that there is an issue about the notice that might need to be remedied. It is an opinion that should be expressed promptly, unlike in this case where the Solicitor-General waited almost six weeks before telling the plaintiff’s lawyers that the notice was rejected.
    
11. If there is a dispute, as there is in the present case, about whether a notice is compliant with Section 5, the proper authority to determine the issue is the Court. The Court will determine the issue objectively, on its merits. The fact that the notice was “rejected” and declared “void” by the Solicitor-General has no bearing on whether it complied with the Act.
    
12. I find that the plaintiff’s notice gave sufficient and timely details of the occurrence out of which the claim was arising: the date, time and place of the incident and the name of the nearest police station: Gordon Police Station. These were sufficient details to enable the Solicitor-General to inquire into the incident and obtain instructions from the Police Force.
    

(2) FAILURE TO IDENTIFY ANY MEMBER OF THE POLICE FORCE IN THE ORIGINATING PROCESS, PLEADINGS OR EVIDENCE

13. Mr Florian submitted that, if a plaintiff is suing the State on the basis of vicarious liability for a tort committed by members of the Police Force, the member of the Police Force who is alleged to have done wrong must be named as a party to the proceedings and named in the pleadings; also that member must be identified in the evidence.
    
14. Mr Florian submitted that none of these requirements were met and that this alone justified dismissal of the entire proceedings. He referred to the decision of the Supreme Court in Lina Kewakali v The State (2011) SC1091 in support of those propositions.
    
15. I always had difficulty with that approach and I explained why in cases such as William Pattits v The State (2006) N3088, Vincent Kerry v The State (2007) N3127 and Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807. I could not see the justice in refusing relief to an innocent plaintiff who is the victim of police negligence or police brutality or some other sort of wrong committed by an employee of the State simply because the plaintiff cannot identify by name the State employee who committed the wrong.
    
16. I am pleased to say that, I am no longer in the invidious position of having to consider applying principles of law that I considered unjust. Kewakali has been overruled. That it was, with respect, bad law has been recognised by the recent five-judge decision of the Supreme Court in Philip Nare v The State (2017) SC1584.
    
17. As well as settling the law on the question of whether, the actual alleged police wrongdoer has to be named as a party, named in the statement of claim and identified in the evidence, the Court in Nare also dealt with the question of whether, it is necessary for a plaintiff to prove that the police officer was acting within the lawful scope of their duties. It was clearly indicated that this is not necessary. It is sufficient to prove that the police officer was purporting to act in the course of their duties.
    
18. The decision in Nare is very significant. It stands as authority for the following propositions in any case in which a person sues the State, claiming that it is vicariously liable for the torts or other civil wrongs including human rights breaches committed by members of the Police Force or any other employee of the State:
    
    1. it is not necessary to name the specific tortfeasor as a defendant;
       
    2. it is not necessary to name the specific tortfeasor in the statement of claim or other originating process;
       
    3. it is not necessary to name or identify the specific tortfeasor in the evidence;
       
    4. it is not necessary to plead or prove that the tortfeasor committed the breach of duty while on duty and acting within the lawful scope of his or her duties as an employee of the State; it is sufficient to prove that the tortfeasor was acting or purporting to act in the course of his or duties.
       
19. I therefore reject both arguments of the defendants.
    

HAS THE PLAINTIFF PROVEN LIABILITY?

20. The plaintiff must still prove his case. He must prove that a member of the Police Force committed the tort of negligence. And he must prove that the State is vicariously liable.
    

Negligence

21. Negligence is a tort, a type of civil wrong, emerging from the common law of England and adopted as part of the underlying law of Papua New Guinea. To establish a cause of action in negligence the plaintiff has to prove all elements of the tort:
    

(a) the defendant owed a duty of care to the plaintiff;

(b) the defendant breached that duty (acted negligently);

(c) the breach of duty caused damage to the plaintiff; and

(d) the type of damage was not too remote (Steven Kaipa v RD Tuna Canners Ltd (2017) N6650).

22. The plaintiff has proved, circumstantially, that, it was a member of the Force who fired the shot. The defendants’ argument that it could have been a member of the public is rejected.
    
23. As to the elements of negligence, I find that all have been established, in that:
    
    • (a) Every member of the Police Force discharging a firearm in public, even when it is done for good reason, owes a duty of care to members of the public, to take reasonable care.
      
    • (b) The member of the Police Force who fired the shot that struck the plaintiff failed to exercise reasonable care, ie the duty of care was breached. The facts speak for themselves.
      
    • (c) The breach of duty caused injury to the plaintiff. There was a direct causal connection between the negligent firing of the shot and the plaintiff’s injury.
      
    • (d) The type of injury suffered by the plaintiff was reasonably foreseeable: it was not too remote.
      

Vicarious liability

24. I am satisfied that the evidence is sufficient to warrant a finding of vicarious liability against the State, as:
    
    • an employer-employee relationship exists between the State and all members of the Police Force; and
      
    • the member of the Police Force who committed the tort of negligence, by recklessly firing a shot that struck the plaintiff, did so in the course of employment, in purported performance of police functions (Jeff Joe Lome v Katu Sele (2017 N6854).
      

CONCLUSION

25. The plaintiff has established a cause of action in negligence against the State. The Commissioner of Police is not directly or vicariously liable and the proceedings against him must be dismissed. The question of costs will be addressed later.
    

ORDER

(1) The plaintiff has established a cause of action in negligence against the second defendant.

(2) The plaintiff has failed to establish a cause of action against the first defendant and the proceedings against the first defendant are dismissed.

(3) There will be a separate trial, if necessary, on assessment of damages against the second defendant.

(4) The question of costs will be addressed at the conclusion of the proceedings.

Judgment accordingly
________________________________________________________________
Warner Shand Lawyers : Lawyers for the Plaintiff
Solicitor-General : Lawyer for the Defendants