Nii v Lilou [2022] PGNC 170; N9628 (4 May 2022)

N9628

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1410 OF 2016 (CC1)

BETWEEN:

PAEYO NII

Plaintiff

AND:

CONSTABLE BERNARD LILOU

First Defendant

AND:

GARI BAKI,

COMMISSIONER OF POLICE

Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Tamade AJ

2021: 18^th November

2022: 9^th February, 4^th May

VICARIOUS LIABILITY – tort - police conducted unlawful raid – confiscated store items and goods belonging to Plaintiff –Policemen converted the goods – raid was not authorized - Policemen acted outside the scope of their duties and not within the course of their employment – State is not vicariously liable.

Cases Cited:

Papua New Guinean Cases
Kanit (trading as Citi-Link Taxi Services) v National Airports Corporation Ltd [2021] PGSC 22; SC2084
Guard Dog Security Services v Mathews (2019) SC1861
Pembaro v Baki (2015) N6224
Kisa v Talok [2017] PGSC 51; SC1650

Overseas Cases
Morris v C W Martin & Sons Ltd [1966] 1 QB 716 at 733-734.

Counsels:

Mr Brian Lakakit, for the Plaintiff

Ms Natasha Aiwara, for the Second and Third Defendants

4^th May, 2022

1. TAMADE, AJ: The Plaintiff in these proceedings claims to be a businessman running a mini supermarket at Morata Stage 1 in the National Capital District. The Plaintiff alleges that on 31 March 2016, the First Defendant in the company of four other unidentified policemen in police uniform and with firearms conducted a police raid and attended the Plaintiff’s store confiscating items and store goods belonging to the Plaintiff.
   

2. The Plaintiff was informed that the First Defendant and the Policemen who confiscated his store goods had brought it to the Waigani Police Station and therefore the Plaintiff attended at the Waigani Police Station in an attempt to retrieve his store goods confiscated by the policemen.

3. After failing to retrieve the confiscated items from the policemen, the Plaintiff laid a formal complaint at the Boroko Police Station however no action was taken by the Waigani Police Station. The Plaintiff followed up on his complaint however on 2 April 2016, the First Defendant arrested the Plaintiff and charged him for the illegal sale of alcohol, the Plaintiff was locked up and later released on bail.

4. The case involving the Plaintiff went before the Boroko District Court however the Plaintiff was acquitted by the Boroko District Court on charges of unlawfully selling alcohol and the District Court ordered that the confiscated items belonging to the Plaintiff and used as exhibits in Court be released back to the Plaintiff.

5. The Plaintiff, therefore, claims that the First Defendant and other policemen however converted the store goods (used as evidence in the District Court) including cash taken from the Plaintiff’s store into their own use and therefore the Plaintiff now sues the Defendants for the loss of his store items as a result of the alleged unlawful raid.

6. The First Defendant did not attend the trial of this matter however the Second and Third Defendants were present through representation from the Office of the Solicitor General.

7. The Second and Third Defendants deny liability and state that the raid conducted by the First Defendant in the company of other police officers was not authorized and that the policemen had acted outside the scope of their duties.

8. The State made submissions that the First Defendant and other police officers should be personally liable for their conduct in the unlawful raid and in converting to their own use evidence from the store items belonging to the Plaintiff used in the case in the District Court. The State submitted that from evidence, the raid was not authorized. It can be seen from the evidence from the State containing the circulars from the head of Police in the Affidavit of David Joel that the Police leadership does not condone wilful destruction of property and misbehaviour by members of the Police Force.

9. The State has submitted that the conduct of the policemen involved in attending at the premises of the Plaintiff and confiscating his store goods without any formal arrest and returning two days later to arrest the Plaintiff after receiving calls from the Metropolitan Superintendent after the Plaintiff lodged his complaint at the Waigani Police Station was with the ill intent of ‘covering their tracks’ and or by arresting the Plaintiff, the confiscation of his store goods would have seemed lawful as they were carrying out their duties.

10. The State submitted that the lawful and primary function of the Police is to preserve peace and good order and to maintain and enforce the law in an impartial and objective manner.

Did the First Defendant and other officers act within the scope of their employment during the police raid and was the police raid lawful? Is the State vicariously liable for the actions of the said policemen?

11. Both the Plaintiff and the State submitted the case of Kanit (trading as Citi-Link Taxi Services) v National Airports Corporation Ltd [2021] PGSC 22; SC2084 (31 March 2021) in regard to the Supreme Court’s stance on vicarious liability.

12. The facts of the case in the Kanit v NAC case is that an employee of NAC was called out on a Saturday to attend to some emergency work including the clearing of a sewerage pipe near the airport. The employee was found to have been under the influence of alcohol when he caused an accident by colliding with the Appellant’s vehicle.

13. The Supreme Court held amongst others that;

(1)To establish vicarious liability at common law it is necessary to prove that: a tort has been committed; the tort was committed by an employee; and the tort was committed in the scope or course of his or her employment: Guard Dog Security Services v Mathews (2019) SC1861.

(2) A wrongful act is deemed to be done by an employee in the course of his or her employment if it is either: (a) authorised by the employer; or (b) is a wrongful and unauthorised mode of doing some act authorised by the employer. An employer will be liable even for acts which he has not authorised, provided they are sufficiently connected with acts which he has authorised: Guard Dog Security Services v Mathews (2019) SC1861; Nare v Independent State of Papua New Guinea (2017) SC1584.

(3) It is neither possible nor desirable to define precisely when conduct will fall within the course or scope of employment. Each case must be determined according to its own facts and circumstances. The critical question is whether the employee’s conduct was sufficiently connected with his or her employment. In determining the nature of employment, a broad approach should be adopted.

(4) Mere opportunity will not suffice. Nor will an employer be liable where the employee is on a frolic or detour of his own: Pembaro v Baki (2015) N6224.

(5) Prohibition will not necessarily exclude liability. Nor will the fact that the wrongful act is intentional, or even criminal: Guard Dog Security Services v Mathews (2019) SC1861.

14. In the case of Guard Dog Security Services v Mathews (2019) SC1861, the fact of that case was the Respondent in the Supreme Court was a referee in a rugby league match. He was injured when spectators invaded the sporting field, and he was assaulted. He ran towards the security guard at the scene however he was struck and assaulted by the security guard who was an employee of the Appellant. The Court found that though the identity of the tort feasor was not known, the Appellant was responsible for the conduct of the security guard which caused injury to the Respondent. The Supreme Court also held that:

“Though the unidentified security guard may have acted well outside the scope of his actual authority, the trial judge did not err in finding that he committed the tort of negligence in circumstances so closely connected with his employment as to be committed in the course of his employment.”

15. It is the Plaintiff’s argument that the conduct of the policemen in this case is the carrying out of their duty as policemen carrying out a police raid and arrest followed by the subsequent prosecution at the Boroko District Court.

16. The Plaintiff stated in evidence that the policemen attended at his mini supermarket and confiscated goods and cash on accusations that the Plaintiff was unlawfully selling liquor at his shop. Two days later, the policemen went back and arrested the Plaintiff for the illegal sale of alcohol. The Plaintiff was charged and later released on bail at the Boroko Police Station. The Plaintiff was acquitted by the Boroko District Court on 16 June 2016 with the Court issuing orders that the store goods belonging to the Plaintiff be returned however the policemen converted the store goods including cash and the phone flex cards into their own use.

17. Justice Kandakasi (as he then was) in the case of Pembaro v Baki (2015) N6224 stated that:

7. In Peter Aigilo v. Sir Mekere Morauta & Ors,[2] I referred to the doctrine generally in the context of determining what amounts to someone "acting in the best interest of Papua New Guinea." I answered that question in these terms:

"Whatever factors the decision maker or the State takes into account, they must be guided by the general principle. The principle is that the step to be taken is indeed and in fact for the benefit of Papua New Guinea or the State to the exclusion of the personal interest of those who are making the decision or taking the step.... A failure to ensure that the step taken is "for the benefit or in the best interest of Papua New Guinea" renders the person responsible for the action or inaction personally liable for any damages or loss that may arise."

8. I went on to observe that, the views thus expressed accorded well "with the well known principles governing the doctrine of vicarious liability" and said:

"There are numerous cases on this doctrine in Papua New Guinea, which need not be considered in any detail save only to refer to them. Examples of this line of cases include Pike Dambe v. Augustine Peri and The State [1993] PNGLR 4, Bogil Guma v. The State & Ors N262 and Dalin More v. The State & Ors N1736. These cases discuss the doctrine at some length including its reception into Papua New Guinea. Under this doctrine an employer or a principle can be found vicariously liable in some instances while in others an employer or a principal cannot be held liable.

It is an accepted principle that, an employer cannot be made liable for the acts of his servant, if the servant acted outside the scope of his employment. In other words, if an employee goes on a frolic and detour of his own and causes damages to a third party, the employer will not be liable for the acts of the employee. This principle has also been already applied in a number of cases in our jurisdiction: see for example Kolta Development Pty Ltd & Great Happiness Seafood Pty Ltd v. PNG defence Force and The State N1470..."

18. The Plaintiff, in this case, has therefore pleaded vicarious liability against the State. The common law principle of vicarious liability is therefore found in section 1 of the Wrongs (Miscellaneous Provisions Act) which imposes liability on the State for the acts, omissions or conduct of its’ employees, servants and agents. In the case of Kisa v Talok [2017] PGSC 51; SC1650 (15 December 2017), it was held that:

“In order for the appellant to establish a cause of action and vicarious liability against the State, he had to specifically plead section 1 (1) and (4) of the Wrongs (Miscellaneous Provisions) Act, Chapter No. 297 in the Statement of Claim and plead that the first respondent (tortfeasor) committed the tort whilst acting in the course of his duties as policeman.”

19. What is the standard then for the Court to assess whether the First Defendant in the company of other policemen were acting within the scope of their employment? Do we take a reasonable policeman or the yardstick policeman who exemplifies what a duty-bound, honest, and upright policeman is supposed to do in the circumstances if we place him on the scene of the incident, what would such a policeman have done to lawfully carry out his duties in the circumstances?

20. I adopt the words of Justice Kandakasi (as he was then) cited above in the case of Pembaro v Baki regarding the principle that, was the conduct by the First Defendant in the company of other policemen in the best interest of Papua New Guinea? If it is not, then the individual policemen should be personally liable for their conduct which caused loss to the Plaintiff.

21. If the employee and or in this case if the First Defendant in the company of other policemen had gone on a “frolic of their own” or “on a frolic of his own” as explained by Diplock LJ in Morris v C W Martin & Sons Ltd [1966] 1 QB 716 at 733-734, the State should not be held vicariously liable for such wrong, inapt, and criminal conduct by the alleged policemen.

22. I find based on the evidence and the State’s submissions that the conduct of the First Defendant in the company of other policemen was not authorized. The conduct of the First Defendant and other policemen was to benefit themselves and not in the due discharge of their duties as they were acting outside the scope of their employment, their conduct was criminal.

23. I, therefore, make the following orders:

1. The Plaintiff’s claim is therefore dismissed.
2. Plaintiff shall meet the Second and Third Defendant’s costs of these proceedings on a party/party basis.
   

Orders accordingly.

_____________________________________________________________

Lakakit & Associate Lawyers: Lawyers for the Plaintiff

Office of the Solicitor General: Lawyers for the Second and Third Defendants