Kei v Haro [2021] PGNC 652; N9966 (22 December 2021)

N9966

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) 3 OF 2018

BETWEEN:
THOMAS KEI
Plaintiff

AND:
CONSTABLE ARIMU HARO
First Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Narokobi J
2019: 11^th July
2021: 22^nd December

NEGLIGENCE – Breach of duty of care- Whether duty of care breached.

HUMAN RIGHTS – Constitution, Section 57 (Enforcement of guaranteed rights and freedoms) – Sections 36, 37, 44, 53.

LIABILITY – Whether vicariously liability of the State established.

The plaintiff sued the defendants for injuries he suffered at the hands of the first defendant when he was shot at the knees.

Held:

(1) The facts as alleged by the Plaintiff were proven on the balance of probability.

(2) The Plaintiff has proven on the balance of probability that the first defendant was negligent in the conduct of his duties.

(3) The plaintiff has also proven on the balance of probability that the following rights were breached:

1. Section 36, “Freedom from inhuman treatment,” when he was punched and kicked,
2. Section 36, “Freedom from inhuman treatment,” when he was shot in the knees,
3. Section 36, “Freedom was inhuman treatment,” when he was not assisted,
4. Section 53, “Protection from unjust deprivation of property,” when he had his phone and money taken away,
5. Section 44, “Freedom from arbitrary search and entry,” when he was unlawfully searched,
6. Sections 37, “Protection of the law,” and 42 “Liberty of the person,” when he was not informed of reasons for him being detained.
   

(4) The Plaintiff has established that the State is vicariously liable for the actions of the first defendant for negligence and breach of his human rights.

(5) Consequently, there shall be a trial on assessment of damages.

Cases Cited:
Guard Dog Security Limited v Mathews (2019) SC1861
In the matter of an application for enforcement of human rights pursuant to section 57 of the Constitution and in the matter of an application by Kunji Waso [1996] PNGLR 218
Kanit trading as Taxi Link Services v National Airports Cooperation Limited (2021) SC2084
Philip Nare v The State (2017) SC1584
Pinder v Igumba (2012) SC1181
Wak v Kulunga (2018) N7141

Statutes Cited:
Search Act, Ch 341

Counsel:
Mr. D. Kipa, for the Plaintiff
Ms. P. Ohuma, for the Defendants

JUDGMENT

22^nd December, 2021

1. NAROKOBI J: The plaintiff sued the defendants for injuries he suffered at the hands of the first defendant when he was shot at the knees. This is the court’s decision on liability. The plaintiff at the time was a 24-year-old male from Kimil in the North Wagi electorate, Jiwaka Province, employed as a transport coordinator with Vitis Industries Limited, single and lived at the 9 Mile Vitis compound.
   
2. The background to the claim is found in the affidavit of the plaintiff filed on the 27 of September 2018. Mr Kei says the following, on 23 March 2016 between 4 AM and 5 AM whilst driving, he lost control of the vehicle, he was driving along the Poreporena freeway, and the vehicle came to a stop. The vehicle was a Toyota Camry Sedan registration BDV 964. In the vehicle at that time with him was Wilson Dat, Collin Paul and Karl Buddy. No one suffered any injuries from the accident. Not long after that a Police Vehicle a Toyota Landcruiser ZPD 027 on regular Police patrol came to the scene of the accident. The Plaintiff and his passengers were still in the vehicle and were forced out of the vehicle. When the plaintiff came out of his vehicle, he was assaulted by the first defendant. Cash money of K265.00 and his mobile phone was taken off from him. Plaintiff was forced to get into the police vehicle but protested, saying he was not a criminal. His refusal caused the police to continue to punch and kick him. It was at this time that he says that he was shot at by the first defendant that is paragraph 17 and 18 of his affidavit. At that moment Constable Arima Haro who was also armed with a police issued firearm a Daewoo brand assault rifle serial number K000536 pointed the firearm directly at him and fired two shots at both his knees (paragraph 18). He was seriously wounded in both knees and fell to the ground. He was also bleeding heavily from the injuries sustained as a result of the shooting by Constable Arimu Haro. In paragraph 19 plaintiff states that – “I continued to plead for help with the policeman and called for an ambulance which arrived sometime after, and I was transported to the Port Moresby General for emergency treatment.”
   
3. At the hospital the plaintiff was attended to and had to undergo surgery, he continued to suffer disability from his knees as the medical report indicate.
   
4. The facts of this case present a number of legal issues I have to determine and they are:
   
   1. Whether the facts alleged have been proven on the balance of probability,
   2. If the facts alleged are proven, whether the first defendant was negligent,
   3. If the facts are proven, where there any breach of Human Rights?,
   4. Is the State vicariously liable for the actions of the first defendant?
      
5. Attending to the first issue, I note that the plaintiff has tendered into evidence his affidavit which was admitted into evidence and identified as exhibit P1 the plaintiff also relies on the affidavit of Carl Buddy filed on 3 December 2018. That affidavit was admitted into evidence and marked as exhibit P2. The State offered no evidence to contradict the claim of the plaintiff and as we now know after the application for mistrial was refused. After considering the evidence tendered before the court and the position of the State, I find that the facts stated in paragraphs 1 to 31 of the affidavit of the plaintiff has been proven on the balance of probability for the following reasons:
   
   1. The evidence of the plaintiff is logical and makes sense and accords with reality.
   2. There is evidence tendered of an ambulance attending to the plaintiff for gunshot wounds to his knees.
   3. There is evidence of being treated at the Port Moresby General Hospital for gunshot wounds on his knees.
   4. There is evidence corroborating the plaintiff’s evidence from Carl Badi.
   5. There is evidence of the first defendant being charged criminally for what he did to the plaintiff.
   6. The State does not seriously contest the facts but says that the State should not be vicariously liable.
      
6. Those are the reasons why I find the facts referred to from paragraph 1 to 31 of the affidavit has been proven on the balance of probability. For the purposes of the issues raised in these proceedings I find that the following has been proven on the balance of probability for the reasons stated above. The plaintiff was the driver of a vehicle BDV-964 that was involved in a car accident on 23 March 2016 between 4 AM and 5 AM. While they were stationary and, in the vehicle, a police patrol unit was also on duty and performing regular patrol of the designated area came upon the accident they arrive in a police vehicle Toyota Landcruiser registration ZPD-027 in the car with the plaintiffs were Wilson Dat, Collin Paul and Karl Buddy. They demanded the plaintiffs and the occupants of the vehicle to come out of the car so they could take them to the Police station.
   
7. The plaintiff was forcefully pulled out of the vehicle and was searched and punched by the Police. He was not cautioned or warned before he was searched nor was, he asked if he suffered any injuries from the accident. The first defendant Constable Arimu Haro of Port Moresby Police station then removed from the Plaintiff cash money of K265.00 as well as his mobile phone an Alcatel Once touch screen pixi model. Despite the Plaintiff’s protest he was continually kicked and punched. The Plaintiff was further punched and kicked by the policemen, and he was instructed to get into the Police vehicle that is Toyota Landcruiser ZPD-027. The plaintiff pleaded with the police to take it easy with them as they were not criminals, but they continued to be kicked and punched. At that moment the first defendant who was armed with the police issue firearm a Daewoo brand assault rifle serial number: K000536 pointed the firearm directly at the plaintiff and fired two shots at both his knees. The plaintiff was wounded in both his knees and fell to the ground. He was bleeding heavily. The police then called an ambulance to come and pick the plaintiff. The plaintiff was treated at the Port Moresby General Hospital and also underwent surgery to his knees.
   
8. Those are the facts that I find for purposes of the issues that have risen, so it is my view that the above facts are proven on the balance of probability. That is the first issue.
   
9. The second issue is whether, the proven facts show that the first defendant was negligent under the Common Law to establish law there are three main elements:
   
   1. Was there a duty of care?
   2. If there was there a duty of care, was it breached?
   3. If the duty was breached, did the Plaintiff suffer damages as a result of the breach?
      
10. In my view, the first defendant has a duty of care to the plaintiff to use reasonable force in the performance of his duties so there was a duty of care in this instance. The second question is whether that duty was breached, on the facts as I have found, that duty was breached. There was no justifiable reasons for the use of force on the plaintiff. He did not present any threat on the first defendant nor was there any attempt of escape. I find that the first defendant breached the duty of care he owed to the plaintiff. The third question relates to whether any injuries has been suffered caused by the actions of the first defendant. The answer obviously is yes- he was shot in both knees and suffers debilitating injuries to his knees so that is the second issue.
    
11. The third issue now is whether, any of the plaintiff’s rights were breached. The plaintiff says the following rights in the Constitution were breached in his Statement of Claim. Breach of s 36, Freedom from Inhuman Treatment when he was punched and kicked, breach of s 36, Freedom from Inhuman Treatment, when he was unlawfully searched and had his money K265.00 taken and mobile phone taken away from him, breach of s 36, Freedom from Inhuman Treatment when he was shot on both of his knees with a police issue firearm, breach of s 36, Freedom from Inhuman Treatment when he was not assisted when he was shot, breach of s 41 Proscribed Acts from the way he was treated, breach of s 37, Protection of the Law and s 44 Freedom from Arbitrary Search and Entry, ss 3 and 4 of the Search Act, Ch 341 when he was unlawfully searched and had his money and phone removed, and breach of s 37, Protection of the Law and s 42, Liberty of the Person. when he was not informed of the reasons he was detained.
    
12. From my findings of the facts as I have referred to, I find that the following rights in the Constitution were breached:
    
    1. Section 36, “Freedom from inhuman treatment,” when he was punched and kicked,
    2. Section 36, “Freedom from inhuman treatment,” when he was shot in the knees,
    3. Section 36, “Freedom was inhuman treatment,” when he was not assisted,
    4. Section 53, “Protection from unjust deprivation of property,” when he had his phone and money taken away,
    5. Section 44, “Freedom from arbitrary search and entry,” when he was unlawfully searched,
    6. Sections 37, “Protection of the law,” and 42 “Liberty of the person,” when he was not informed of reasons for him being detained.
       
13. I find that those rights were breached by the first defendant. The final issue of whether the second defendant the State should be vicariously liable for the actions of the first defendant as I have found that he was negligent and breached the first defendant’s human rights. Counsel for the State submits persuasively and strongly that when an employee of the State is criminally responsible the State should not be held liable for the actions of its’ employees. She further submits that what the first defendant did was not in the scope of his employment. Counsel further points the court to the case of Pinder v Igumba (2012) SC1181. That case stands for the proposition that in order to hold the state vicariously liable in damages for their negligent act and omissions of the police, the plaintiff must plead the facts that the policemen were acting in the course and within the scope of their employment and while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law when they conducted their illegal actions. I gather that, this authority used to rely on is to support the State’s submissions, that since, what the first defendant did was criminal in nature, it is not within the scope of their employment and the state should not be liable. Counsel further highlights the case of, In the matter of an application for enforcement of human rights pursuant to section 57 of the Constitution and in the matter of an application by Kunji Waso [1996] PNGLR 218 to stress her point. In the latter case, the court said that where breach of rights occur and the superior of the defendants have not authorised their action, the human rights offenders should pay a portion of the damages. Both counsels agreed that the critical question is whether the first defendant did is within the scope of their employment if it was, then the State would be vicariously liable.
    
14. In the case of Philip Nare v The State (2017) SC1584 at paragraph 57, the Supreme Court state that, it follows the cause of action against the State is establish if tortious conduct is perpetrated by officers of the State including Police, acting or purporting to act in the cause of their duties. The court said, “The word purporting to act are of considerable significance.”
    
15. I have regard to the case of Wak v Kulunga (2018) N7141 which highlighted that the Philip Nare case stands for the following propositions:
    
    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 in the 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 specific 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 cause of his duties.
       
16. In my view the critical factor here is whether, the tortfeasor was purporting to act in the cause of his duties, it is my further view that the facts of the case as I have found show clearly that the first defendant was purporting to act in the cause of his duties:
    
    1. He was on normal police duty at that time in a police vehicle.
    2. The first defendant attended a scene of a car accident and appeared to be apprehending the driver of the vehicle as part of normal police traffic investigations.
    3. The first defendant had issued instructions to the plaintiff in his capacity as a policeman to get on the police vehicle, the first defendant had in his possession an official issue police issue firearm and could use it if the circumstances warranted it, and finally,
    4. The official police issue firearm was used to shoot the plaintiff after he refused to follow the police’s instructions to board the police vehicle.
       
17. These factors in my view, show on the balance of probability that the first defendant was purporting to act in the cause of his duties. I therefore find the second defendant, the State vicariously liable for the actions of the first defendant. With regards to point of the State that should not be held responsible for criminal actions I note that in the case of Kanit trading as Taxi Link Services v National Airports Cooperation Limited (2021) SC2084, the Supreme Court held that even if, the actions complained for are criminal in nature that will not absorb the employer of vicarious liability, and also in the case of Guard Dog Security Limited v Mathews (2019) SC1861 the Supreme Court held that where the circumstances are so closely connected with an employee’s employment it will be deemed to be in the course of employment. So, taking the particular facts of this case and these two Supreme Court authorities into account, I deemed that, what the first defendant did was closely linked to his cause of employment and so the State would be vicariously liable for the actions of the first defendant.
    

Order

1. I therefore order that there’s shall be a trial on the assessment of damages.
2. The matter is adjourned to the first directions hearing in February 2022.

____________________________________________________________________
Kipa Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the Third Defendant