Yama v Omake [2022] PGNC 328; N9818 (18 March 2022)

N9818

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 118 OF 2012

BETWEEN:
DR. PETER YAMA
-Plaintiff-

AND:
CONSTABLE LUPEN OMAKE
of Kimbe Police Station
- First Defendant-

AND:
CONSTABLE MARK BANO
of Kimbe Police Station
- Second Defendant-

AND:
VICTOR ALLAN
Police Reservist
of Kimbe Police Station
- Third Defendant-

AND:
STEVEN BUNGA
Buluma Rural Police Station Commander
- Fourth Defendant-

AND:
RICHARD MULOU
Kimbe Provincial Police Commander
- Fifth Defendant-

AND:
GARRY BAKI
Police Commissioner
- Sixth Defendant-

AND:
THE STATE
- Seventh Defendant-

Kimbe: Batari J
2017: 25^th October
2022: 18^th March

CIVIL – claim for personal injuries – plaintiff assaulted by off duty policemen – vicarious liability – whether policemen assaulted plaintiff in course of duty – policemen who assaulted plaintiff personally liable.

Cases Cited:

The State v David Kofowei & Ors [1987] PNGLR 5
Linda Stanley v The State of Papua New Guinea [2005] N2865
Roka Coffee Estate Pty Ltd v Gerebi [1973] PNGLR 486
Wango v Andakundi and The State [1992] PNGLR 45
More v The State [1998] PNGLR 290
Kuk Kuli v The State (2004) N2592
Dalin More v The State & 3 ors. (1998) N1736
Kipahi v Nambos (2020) N8437
Jack Pinda v Sam Inguba [2012] SC1181
Application by Kunzi Waso [1996] PNGLR 218
Linda Kewakali v The State [2011] SC1091
Philip Nare v The State [2017] SC1584

Counsel:

Mr. Felix Kua, for the Plaintiff
No Appearance, for the Defendants

18^th March, 2022

1. BATARI, J: This is a trial on liability. Members of the Police Force assaulted Dr. Peter Yama, a medical practitioner, resulting in bodily injuries. His claim is based on negligence and breaches of constitutional rights by members of the Police Force. The claim is contested by the nominal defendants on the issue of vicarious liability.
   
2. The trial is held ex parte, having been satisfied, that the Solicitor General and the other defendants were informed of the hearing date that was rescheduled to 25/10/2017. The defendants did not appear in person or by counsel on both occasions and have not, individually, or severally provided any explanation for their absences. By inference, none of the defendants is interested in defending the allegations against him/it.
   

Background

3. At the pokies bar at Bayside Inn in Kimbe on 16/6/2010 and shortly before closing time following the NRL State of Origin game, policemen Lupen Omake (first defendant) and Mark Bano (second defendant) entered the pokies bar. They accosted the plaintiff, Dr Peter Yama who was then engrossed in a conversation with his colleague, Dr Golpak. When his companion, Cletus Mautu intervened, the two men assaulted him. Dr. Yama stopped them, and they left. While trying to leave, Dr Yama and Cletus were attacked by the two policemen and others at the carpark. Mr Steven Bunga, (fourth defendant), stopped the fight and personnel from the Guard Dog Security Firm escorted the plaintiff back to his residence. The two policemen and others followed Dr Yama to his residence where they dragged him out to the road and continued to assault him.
   
4. Dr. Yama suffered numerous bodily injuries, the most serious being an injury to his right eye. Consequently, he attended different in-country and overseas hospitals for the treatment of his eye injury.
   
5. The Solicitor-General has on record, filed an amended Defence for and on behalf of the fourth, fifth, sixth and seventh defendants, denying vicarious liability for the actions of the first, second and third defendants. This is supported by the Affidavit of Steven Bunga of Kimbe Police Station. The first, second and third defendants have not filed any defence, nor has any one of them filed an affidavit.
   
6. Mr Steven Bunga held the rank of Chief Inspector of Police at the time of the incident. He was based at Buluma Rural Police Station as Station Commander. He confirmed, the first and second defendants were members of the Police Force, based at Buluma Rural Police Station.
   

Issues

7. The issues for trial formulated by the parties are thus:
   
   1. whether or not the first, second, third and fourth defendants acted in the course of their duties.
   2. whether or not the plaintiff was assaulted.
   3. whether or not the assault on the plaintiff at his house was unlawful, thereby amounting to vicarious liability.
      
8. The first and third issues presupposed existence of a fact of the assault which in essence, is pivotal to the whole claim. Whether the first, second, and third defendants acted within the scope of their police duties and functions and whether their actions were unlawful and thereby amounted to vicarious liability depended on the findings of whether the plaintiff was assaulted. The two secondary issues are concerned with vicarious liability. They will be dealt with together.
   

Whether the plaintiff was unlawfully assaulted

9. The fact of the assault and the ensuing bodily injuries Dr Yama sustained is substantially uncontested. Lupen Omake and Mark Bano initially harassed Dr Yama with no apparent reason. He was then, minding his own business, chatting with his colleague, Dr Victor Golpak. The two men assaulted Cletus Mautu when he intervened.
   
10. At the carpark, Lupen Omake and Mark Bano assaulted both Dr Yama and Cletus. They continued to attack and beat the plaintiff up with fists and gun barrel in front of his family and members of the public at his residence. There was presence of other policemen throughout the ordeal, aiding in committing the atrocities against the plaintiff.
    
11. These facts based on the affidavits of the plaintiff and Cletus Mautu are not disputed by the defendants. The fourth defendant, Steven Bunga also conceded in his Affidavit, that policemen led by Lupen Omake and Mark Bano assaulted Dr. Yama and Cletus at the car park. The Defence also conceded the assault on Dr. Yama at his home.
    
12. So, the assault committed against the plaintiff is clear on the evidence. As there has been no reason or explanation for the assault, the inescapable conclusion is that Dr. Yama was unlawfully assaulted at the Bayside Inn premises and again at his residence.
    

Who were those responsible for assaulting the plaintiff?

13. The statement of facts alleged, that the third defendant was also present, and he participated in assaulting the plaintiff at the pokies. The pleading asserted, that Dr Yama intervened to stop the first, second and third defendants from harassing and assaulting Cletus Mautu.
    
14. In his affidavit Dr Yama named Victor Allan as one of the three policemen who accosted him at the pokies bar. He did not give any detail on the presence of Victor at the scene or clarify the role Victor played or how he was involved in attacking him or Cletus Mautu.
    
15. Cletus stated in his affidavit, that when the pokies bar was about to close after 12 midnight, two drunken policemen from the Buluma Rural Police Station he named as Mark Bano and Lupen Omake entered the bar. He did not mention a third person or policemen. Only two men assaulted him inside the pokies bar. At the car park, others also assaulted him. He mentioned a third policeman he named as Steven. He said Steven discharged shots from an M16 rifle at the carpark. That Steven is not a party to these proceedings, and it is not clarified who that policeman was. And he did not mention Victor Allan’s name.
    
16. Chief Inspector Steven Bunga who witnessed the fight at Bayside Inn carpark did not mention Victor Allan, the third defendant, as one of the policemen who assaulted the plaintiff.
    
17. I am not satisfied, that Victor Allan has been positively identified as one of the three policemen who was present at the scene and aided in the attack on the plaintiff. The evidence is so scanty I am not prepared to hold on the balance of probability, Victor was present and participated in the brutal attack on Dr Yama.
    
18. That leaves the first and second defendants as the persons who have been positively identified as the policemen who assaulted the plaintiff and caused him the bodily injuries that he sustained.
    

Vicarious Liability: Whether the assault by policemen was done in the course of duty: Principles applied

19. The legislative intent and principles on vicarious liability adopted by the Courts in this jurisdiction have their genesis in the common law principle which states that an employer can only be liable for the actions of his employees if it can be shown, that the employee was acting within the scope of his employment, advancing the employer’s cause, business, or interest and not out on a frolic and detour of his own: Dalin More v The State & 3 ors. (1998) N1736.
    
20. As this case involved policemen, the liability of the State for the tortious conduct of its servants, agents and officers is set out in the Wrongs (Miscellaneous Provisions) Act 1975 (the Act). Section s. 1(1) and (4) provides as follows:
    

“1. General liability of the State in tort.

(1) Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject—

(a) in respect of torts committed by its servants and agents; and

(b) in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and

(c) in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.

....

(4) Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.”
(Underlining added)

21. From these provisions, the three important elements of vicarious liability the plaintiff must prove on the balance of probabilities are that:
    • (i) there existed an employer/employee relationship;
    • (ii) the employee committed a tort or wrong; and
    • (iii) the tort or wrong was committed in the course of the employee’s employment. (The State v David Kofowei & Ors [1987] PNGLR 5; Roka Coffee Estate Pty Ltd v Gerebi [1973] PNGLR 486; Wango v Andakundi and The State [1992] PNGLR 45; More v The State [1998] PNGLR 290; Kuk Kuli v The State (2004) N2592).
      
22. The legislative intent also clearly implies, that the identity of the State agent and servant or “an officer” under Sub-section (4) responsible for the tort must be named and his wrongful conduct spelt out. The plaintiff must plead that the named officer committed the tort while performing or purporting to perform the duties and functions of his office as servant and agent or officer of the State and call evidence in support of the claim. It is common that, public officer-holders, Department heads and heads of Statutory bodies are named together with the State as nominal defendants. Where the identity or name of the individual officer is not easily ascertainable, it is sufficient to name the incumbent officeholder, Department head or any person for the time being, occupying the office the officer is employed with.
    
23. In, The State v David Kofowei & Ors [1987] PNGLR 5 it was held, that if upon a careful assessment of the evidence it leaves no doubt, the tort of negligence was committed by police officers who by virtue of their employment in the Police Force are State employees, servants or agents, the State is liable for their tortious acts and omissions if committed within the scope of their police employment and functions. See also, Linda Stanley v The State of Papua New Guinea (2005) N2865.
    
24. To avoid liability, the onus is on the State to show the tortious conduct of the police officers were outside the scope of their authorized police function. In Linda Stanley v The State (supra), Cannings J made these observations which I adopt:
    

If it is established that police officers were acting within the scope of their functions, the State is liable for their tortious conduct unless the State discharges the onus of showing that what they did was totally removed from the domain of their authorised actions. (Nogo Suzuke v The State WS 951 of 1994, unreported, 21.06.96, National Court, Injia J; Eriare Lanyat and Another v The State [1997] PNGLR 253, National Court, Injia J; Wama Kints v The State (2001) N2113, National Court, Davani J.)”

25. In Linda Kewakali v The State (2011) SC1091, it was held that the State could only be vicariously liable if the plaintiff proved that the primary wrongdoer committed the wrong while on duty and acting within the lawful scope of his duty as a member of the Police Force. Conversely, if the principal wrongdoer exceeded his assigned domain by acting beyond the lawful scope of his duty, the State should not be held vicariously liable. Examples from the many cases following this approach include: Jack Pinda v Sam Inguba (2012) SC1181, Application by Kunzi Waso [1996] PNGLR 218 and Kipahi v Nambos (2020) N8437.
    
26. Most recently in Philip Nare v The State (2017) SC1584, a five-member Supreme Court Bench reconsidered the principles of vicarious liability and determined that a more liberal approach be applied in deciding the liability of the employer. In Alua Sipi v Constable Nelson Dauwau (2018) N7178 Cannings J explained it this way:
    

“The Court (Injia CJ, David J, Ipang J, Higgins J and Neill J) reconsidered many of the principles, including the argument that to prove vicarious liability of the State it must be proven that the member of the Police Force was involved in a lawful police operation. It was clearly indicated that this is not necessary. It is sufficient to prove that the police officer was acting or purporting to act in the course of carrying out police duties and functions.”

Considerations and findings

27. I am satisfied, that at all relevant times, the first and second defendants were members of the Police Force and hence, officers of the State. There existed between them and the State, a relationship of employer/employee. The tortious conduct of the two named policemen occurred while they were officers of the State. These satisfies the first two elements of vicarious liability.
    
28. The third element requires proof that the tort or wrong was committed during the employee’s employment or in this case, it must be proved that the tortious acts and omissions of the policemen was committed within the scope of their police employment and functions. This is ascribed to under s 1 (4) of the Act as, “while performing or purporting to perform the functions” of the employee’s employment.
    
29. The phrase, “while performing or purporting to perform the functions” in s 1 (4) of the Act and invariably stated by the Courts as, “acting or purporting to act” is crucial to the plaintiff’s case in alleging vicarious liability for the tortious behavior of the employee.
    
30. In essence, there must be proof that the policemen committed the tort or wrong in carrying out or purporting to carry out due functions and duties of his employment. The two elements, the plaintiff must prove regarding the conduct of the employee is, “performing” and “purporting to perform.” These are stand-alone elements. The term, “performing”, denotes the actual performance of or carrying out police duties and functions. “Purporting to perform” on the other hand will include acts or omissions in trying or attempting to carry out the duties and functions of employment.
    
31. So, it is imperative that the plaintiff is required to sufficiently plead and adduce appropriate evidence on the background, purpose and nature of police duties and functions to be carried out and the name of officer involved, to show the police officer committed the tortious conduct while “performing or purporting” to perform police duties and functions and leave it to the State to show that what the policeman did was totally removed from the domain of his authorised actions.
    
32. In this case, the policemen who assaulted the plaintiff are named. They are Lupen Omake, and Mark Bano. There is also evidence that other policemen were involved. They are not named. Nominal defendants are on the other hand, named. The evidence strongly points to the assault by servants, agents, employees of the State, being unlawful.
    
33. Whether Lupen Omake, and Mark Bano with others, committed the tort while performing or purporting to perform the duties and functions of their office as servants and agents of the State depends on the evidence in support of the claim against them and their defence.
    
34. There is not an iota of evidence from the first and second defendants, they were acting within the scope of their primary duty to uphold the rule of law, during which the tort against the plaintiff was committed. There is no evidence the two men were acting on instructions, directions or commands from their superiors or were responding to any complaint or were investigating an allegation or were to make an arrest.
    
35. The uncontested evidence is, that the two policemen entered the premises when the pokies club was about to close. They were drunk. For no apparent reason, they accosted the plaintiff and Dr. Victor Golpak and assaulted Cletus Mautu. The two men waited at the carpark and with the help of other policemen they assaulted Cletus and Dr. Yama and pursued Dr Yama to his home where they continued to assault him.
    
36. Chief Inspector Steven Bunga said the first and second defendants were dressed in civilian clothes. He also confirmed the two men were drunk when they entered Bayside Inn premises. Mr Bunga did not say the defendants were on the premises carrying out their lawful duties.
    
37. I have some difficulty concluding on the evidence that the two policemen assaulted the plaintiff while carrying out or purporting to carry out their police duties and functions. They were in civilian clothes and there is no evidence they were on duty. There is also no evidence they came in a police vehicle.
    
38. It is more likely, and I find, that Lupen Omake and Mark Bano assaulted Dr Yama whilst out on a frolic and detour of their own. I am not satisfied; they were acting within the scope of their employment and function as police officers in advancing their constitutional duties to maintain law and order when they unlawfully assaulted the plaintiff.
    
39. I conclude that liability should not attach to the fourth to seventh defendants in the circumstances of this case.
    
40. I find the first and second defendants personally liable for the assault and injuries caused to the plaintiff and that they did not commit the unlawful act while performing or purporting to perform their duties and functions as police officers. I find the case against the third to the seventh defendants not proven. The claim against those defendants are dismissed.
    

Orders

41. It is ordered that:
    
    1. The first and second defendants are liable for the assault and injuries caused to the plaintiff.
    2. The claim against the third, fourth, fifth, sixth and seventh defendants is dismissed.
    3. Damages be referred to directions hearing for listing.
       

Felix Kua Lawyers: Lawyers for the Plaintiff
Solicitor – General: Lawyers for the Defendants