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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 1128 OF 2017
BETWEEN:
THOMAS PISIMI
as next of kin of Late Moanna Pisimi and for and on behalf of 12 Others
Plaintiffs
AND:
JACK BARIA
First Defendant
AND:
GARI BAKI
As Commissioner of Police
Second Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Waigani: Tamade AJ
2022: 28th September, 4th November
JUDGMENT- pleadings and inference from pleadings- State not prejudiced- police officer not acting within scope of employment- timing involved in discharging firearm- experienced officer should be held to a higher standard of care- State not vicariously liable for an unlawful act
Cases Cited:
Anthony Polling v Motor Vehicle Insurance (PNG) Trust [1986] PNGLR 228
Gogla v Jonathan [2019] PGNC 19; N7682
Huaimbukie v Baugen [2004] PGNC 191; N2589
Kisa v Talok [2017] PGSC 51; SC1650
Lanyat v Wagulo [1996] PGNC 44; N1481
Maku v Maliwolo (2012) SC1171
Pinda v Inguba [2012] PGSC 13; SC1181
Napiri v Independent State of Papua New Guinea [2006] PGNC 216; N2976
Counsel:
Mr. Jimmy Apo, for the Plaintiff
Ms. Sharon Vate, for the Second, Third and Fourth Defendants
4th November, 2022
1. TAMADE, AJ: I had the privilege of reading the decision of Justice Frazer Pitpit in CR 637 of 2015 wherein the Court found the First Defendant/Accused guilty of murder pursuant to section 300 of the Criminal Code and I elicit the pertinent facts and His Honours observations and findings in the criminal matter. The Criminal Court had therefore refused to convict the First Defendant on the charge of wilful murder pursuant to section 299(1) of the Criminal Code and instead found the First Defendant guilty of murder pursuant to section 300 of the Criminal Code.
2. This is therefore a dependency claim by the Plaintiff as the husband of the deceased and his children claiming damages for negligence as against the First Defendant and claiming that the State is vicariously liable for the conduct of its employees, servants, and agents.
3. At 4:30 am on 1 January 2015, the First Defendant and a team of policemen were on duty that New Year’s morning in Lae when he received a report of a high-speed car chase that was believed to be a stolen vehicle. Whilst stationed at China Town in Lae, the First Defendant and his team saw the high-speed vehicle in hot pursuit by a Guard Dog Security vehicle speeding past.
4. The First Defendant and his team then got in their vehicle and got engaged in the chase which eventually ended at Malahang Majesty Seafood Factory at the Back Road in Lae. The deceased Late Moanna Pisimi at the time of the tragic incident was driving a white Ten-Seater Land Cruiser with dark tinted windows.
5. The Court had found that the deceased died as a result of gunshot wounds and that the First Defendant was the offender that fired those shots. What is of significance to this claim is the finding of the Criminal Court in regard to the verdict of murder pursuant to section 300 of the Criminal Code and as it gives a bearing to the question, of whether or not the First Defendant was acting within the course of his duties in order to sustain the claim of negligence as against the State, finding the State vicariously liable for the conduct of the First Defendant.
6. I, therefore, restate the pertinent finding of the Criminal Court by Justice Pitpit on pages 137 and 138 of the Transcripts of CR 637 containing the decision of the Court as follows:
“So, from those scenarios, we are able to find that the accused, I am satisfied, have a genuine belief that the vehicle was a stolen vehicle, and that the driver was probably a criminal and that they are probably armed and dangerous.
I find that there was a certain degree of apprehension before the fatal shot was fired. That certain degree of apprehension is contained in his answer in his record of interview that this place where the vehicle had come to a stop is a dangerous place and that given the information that they had received earlier that morning that it is believed the vehicle was a stolen vehicle and it was on a high speed, that apprehensive feeling of that place as a dangerous place was reinforced. And I find that yes, he did have a genuine degree of apprehension before he discharged that fatal shot.
I find that following the three warning shorts and then shortly thereafter the two shots to the tyre, this apprehensiveness must begin to dissipate, meaning, normally if there are criminals or if there are people that have stolen that vehicle, after three warning shots, I am sure some of the occupants in the vehicle if there were any, would by then feel very uneasy and try to scramble out of the vehicle to escape from being shot by the police.
I also find that after the two shots to the tyre, if there were criminals in the vehicle at this time, they would begin to really looking, scatter themselves, and trying to look for ways to escape from the vehicle because it was under fire. There was not any, therefore I find that the apprehensiveness must by now be dissipated. The degree of apprehensiveness must by now be dissipated especially after three warning shots and the two shots to the tyre, when no one was coming out of the vehicle, one would have wondered, are there any people in the vehicle? And if nobody was responding or reacting by returning fire, again, one would wonder whether there was anybody at all that was armed in that vehicle. If nobody was making to escape, then you know that maybe there are no other people apart from the driver.
They would have been scrambling out of fear of being shot. So, this ought to have decreased the level of anxiety or apprehension that one must have and at that point, I find that there must- the accused must now become more cautious.
He must now become more careful before hurting somebody unnecessarily. So, I find that in the period before he decided to fire that fatal shot, he must know that he had a duty of care.
The accused is a very experienced policeman. He is trained and has no doubt use the firearm and knows the capacity and capability and the caliber of that firearm and the rounds that it contained. He knows the devastation and the effect of those rounds that the gun contained, and he knows that the gun was in his care, and he has a duty to control that particular weapon. He has the option to have resorted to another course.
So, I find that the accused, at the point when he discharged the fatal firearm, the degree of apprehension that he has, has dissipated
and I find that he had discharged the firearm at that point.
However, I am not convinced that he had the intention to kill...”
7. Mr. Apo for the Plaintiff has made submissions to the effect that the Criminal Court has already made a finding as to the First Defendant being criminally culpable and therefore the First Defendant is already liable as he carried out the murder during the course of his employment and therefore the State should be liable.
8. Ms. Vate of the Solicitor General’s Office has raised the issue that there is no cause of action as against the State as the First Defendant had acted outside the scope of his duties and “went on a frolic of his own” thereby departing from the normal cause of his duties and he should be personally liable for his conduct.
9. Ms. Vate also argues that the Plaintiff has failed to plead the correct provisions of the Wrongs (Miscellaneous) Provisions Act Chapter 297 to establish a cause of action against the Defendants. I will therefore address these objections separately.
Is there a cause of action as against the State as pleaded in the Plaintiff’s Statement of Claim?
10. In the case of Pinda v Inguba[1], the Supreme Court held that:
1. In a case of illegal police raid, for the second respondent (the State) to be held vicariously liable in damages for the negligent
acts or omissions of policemen, the appellant must plead that the policemen were acting in the course and within the scope of their
employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law
when they conducted the raid: section 1(1) & (4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297.
2. The failure to plead that the policemen were acting in the course and within the scope of their employment or while performing
or purporting to perform functions conferred or imposed upon them by statute or the underlying law when they conducted the raid is
a point of law and it was open to the trial judge to consider it, notwithstanding the entry of default judgment and trial on assessment
of damages. Coecon Limited -v- National Fisheries Authority & The State (2002) N2182; William Mel -v- Coleman Pakalia, The Police & The State (2005) SC790 and Rupundi Maku -v- Steven Maliwolo & The State (2012) SC1171 referred to.
11. In the case of Kisa v Talok[2], the Supreme Court held that:
12. Mr. Apo of the Plaintiff has not specifically addressed these objections raised by the State only to submit that the pleadings sufficiently plead the vicarious liability of the State.
13. A perusal of the Writ of Summons and the Statement of Claim filed by the Plaintiff on 26 October 2017 reveals that the Plaintiff has pleaded in paragraph 4 of the Statement of Claim that the Third Defendant is responsible for the appointment, training, and employment of the First and Second Defendants and is vicariously liable for their action pursuant to Section 2 of the Wrongs (Miscellaneous) Provisions Act, etc. After this pleading, the Plaintiff pleads extensively on the conduct of the First Defendant and the dependency claim by the Plaintiff. It is only towards the end of the pleadings in paragraph 29 that the Plaintiff claims that the third Defendant is vicariously liable for the negligence of the First Defendant.
14. I find that the Plaintiff has not expressly pleaded in the Statement of Claim that the First Defendant was acting within the course of his employment when he shot the deceased though there is an inference from the pleadings that the First Defendant was acting within the course of his employment. The facts are stark and can be contrasted to a case of illegal police raid as in the Pinda v Inguba[3] case as, in this case, the First Defendant was in hot pursuit of what he believed to be a stolen car.
15. In regard to the principle in Kisa v Talok[4], I find that the Plaintiff has not pleaded sections 1(1) and (4) of the Wrongs (Miscellaneous Provisions) Act. The Plaintiff has relied on section 2 of the Wrongs (Miscellaneous Provisions) Act, and I can see the intention of the Plaintiff to make his claim reliance on the statute on the relevant legislation however his lawyers have not served him well to correctly plead the law. The submissions by Ms. Vate should be upheld because the principle set by the Supreme Court in Kisa v Talok has not been complied with by the Plaintiff’s lawyers in this case. It is the State’s case that there is therefore no reasonable cause of action then against the State.
Acting within the scope of employment
16. If exercising the discretion of the Court that the evidence presented in the Judgement of the Criminal Court regarding the verdict against the First Defendant for murder pursuant to section 300 of the Criminal Code, there is overwhelming evidence to show the nexus between the conduct of the First Defendant and the tort, the Court should in my view still consider the pertinent question of whether the First Defendant acted within the course of his duties in the discharge of his firearm which tragically killed the deceased. The interest of justice considerations comes into play to consider whether the State is worse off or is in a good of a position if the Rules of pleadings were complied with.[5] I find that given the Criminal Court judgment on the First Defendant on a verdict of guilty on the charge of murder pursuant to section 300 of the Criminal Code, the State is fully aware of the claim and is not disadvantaged by the manner of the pleadings, the interest of justice considerations far outweigh the State’s complaints of pleadings to my mind.
17. If there is no claim as pleaded in Statute pursuant to sections 1(1) and (4) of the Wrongs (Miscellaneous Provisions) Act, the fallback is a claim in tort in common law as against the State on the tort of negligence.
18. I find the pertinent question for this Court to consider is:
“Did the First Defendant act within the course of his duties when he shot the deceased?”
19. The Plaintiff’s contention is the First Defendant was clearly carrying out his police duties when he was in pursuit of the deceased’s vehicle when he shot the deceased thinking the driver of the subject vehicle was getting away with a stolen vehicle.
20. The Plaintiff, therefore, has the onus to prove on the civil standard on the balance of probability that the First Defendant was acting within the scope of his duties when he acted negligently by killing the deceased. It is accepted that a court of competent jurisdiction has found the First Defendant guilty of murder. The State however submits that the actions of the First Defendant is unlawful to kill a person and therefore the State should not be held liable for an unlawful act.
21. The principles of the tort of negligence have been summarised by Justice Cannings in the case of Napiri v Independent State of Papua New Guinea[6] in the following:
“55. The common law of negligence has been adopted as part of the underlying law of Papua New Guinea. It continues to be applicable and appropriate to the circumstances of the country, except to the extent it is inconsistent with or has been modified by a written law. It applies, generally, in this case by virtue of Section 20 of the Constitution and Sections 3(1)(b), 3(3), 4(1), 4(3)(b), 4(4), and 5 of the Underlying Law Act 2000.
56. To establish liability a plaintiff needs to satisfy the basic elements of the tort of negligence, which in this case mean:
(See Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779, National Court, Cannings J.)”
22. It has also been decided by the Supreme Court that the police owe no duty of care to the public at large and this is in regard to cases where the Plaintiff’s claimed that the police were responsible for not stopping a tribal fight. The Court took into account public policy considerations on the wide spectrum of police duties in general.[7] Where a policeman or policewoman is participating in a conduct in the due discharge of his duties, the duty of care is attached to that police officer to act in a manner that is reasonable, foreseeable, and lawful.
23. The phrase “acting on a frolic of their own” in regard to when an employee acts outside the scope of his duties, Justice Kandakasi (as he then was) in the case of Huaimbukie v Baugen[8] said this which I adopt accordingly:
“It is settled law that, at common law, before there could be a successful claim against an employer, there must be evidence or proof of the offending employee being in the course of his duty advancing or pursuing the interest of his employer and not going on a frolic and detour of his own.
I alluded to this principle in Andrew Daiva and Ome Ome Forests Ltd v. Lawrance Pukali & Anor; Ome Ome Forests Ltd v. Ray Cheong & Ors (08/10/02) N2289. There in the context of the liability of a company, I said on pp.27-28:
"The company can only be liable for the acts of its employees if they act in the course of their employment pursuing their employers (the company’s) interest. If they are out on a frolic and detour of their own, they could become personally liable. There is clear law on this but for a recent example of an authority on this see Peter Aigilo v. The Independent State of Papua New Guinea & Ors (unreported judgment) N2102.
In the Peter Aigilo v. The Independent State of Papua New Guinea & Ors (unreported judgment) N2102 case, I discussed in some detail the doctrine of vicarious liability. I then said on pp.27-28 of the judgment:
There are numerous cases of 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 in 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 and Dalin More v. The State & Ors (supra).
In the context of the concept of "in the best interest of Papua New Guinea" it follows therefore that, where a servant, an agent or an arm or instrumentality of the State conducts in a way that is not for the benefit or in the interest of the State, it would amount to an act outside his scope of employment and would be out on a frolic and detour of his own. The State would not be liable in such a situation and a plaintiff may only have a cause of action against the person responsible for the damage, loss or injury."
24. Mr Apo has referred the Court to the case of Gogla v Jonathan[9] which involved the police dispersing a crowd from looting a distressed semi-trailer truck when one of the police officers armed with a pump action shot gun shot the deceased. Justice Makail found in that case that there was sufficient evidence that the police officer was acting within the scope of his employment and wounded the deceased and therefore the State was vicariously liable for their conduct. Mr Apo implores the Court to also find in a similar vein against the First Defendant that he was acting within the course of his employment by being in hot pursuit after the deceased on the assumption that it was a stolen vehicle and taking that shot to the windscreen of the vehicle that killed the deceased in order to in Mr Apo’s words “flash out possible criminals except that he did not know the occupant was a young mother, wife, sister in-law to those who depended on her”. I am of the view that the fact that the deceased is a woman, and a young mother is tragic, but it should not be said that she is a woman and a mum etc, she is first of all a human. Regardless, of whether she was a woman, or a man driving that vehicle and being chased by the police, the First Defendant owed that driver of the vehicle irrespective of their gender a duty of care to act appropriately whether it was to cause the vehicle to come to a complete stop and beckon the driver to alight from the vehicle etc, those measures were within the control of the First Defendant.
25. Mr Apo has also relied on the case of Lanyat v Wagulo[10] which the Court held that:
(2) In a tribal fight situation, the policemen were lawfully authorised to stop the war and restore peace and the modus operandi
options to perform their job would have been left to the policemen on the field to determine. The categories of modus operandi options
may be never closed.
(3) In order for the State to exonerate itself from vicarious liability, the onus is on the State to produce evidence showing that the modus operandi employed by the policemen on the field would not have been or was not lawfully authorised by the State.
26. It is at this juncture that I turn to the decision of Justice Pitpit in the criminal Court’s decision of finding the First Defendant guilty of murder and not wilful murder. The Criminal Court clearly found that the First Defendant had no intention to kill. What is intriguing is the Court’s finding that at the material time when the First Defendant had fired the warning shots to the tyres of the vehicle, Justice Pitpit found that there was a real apprehension by the First Defendant when he fired the warning shots as the location was a dangerous place. The First Defendant was acting in an apprehensive manner. However, the Court found that after the warning shots when no one else emerged from the vehicle or there was no return fire, the First Defendant’s apprehension had dissipated. He had other options as a trained police officer, he could have resorted to control the situation and or approach the driver in a careful manner as at that point in time be it a couple of minutes, he was in no real risk in my opinion after he fired the warning shots and after there was no response from the driver of the subject vehicle.
27. I agree with Justice Pitpit in his decision that at the time the First Defendant fired that fatal shot at the deceased, his apprehension had dissipated. He had a duty as pointed out by Justice Pitpit. He could have carefully calculated his next move, he had fired the warning shots, he could have approached with caution still armed however the fatal shot through the back windscreen I find was not in the line of duty, that fatal shot was not in the scope of his duty, that fatal shot was negligent, but it was more than that, it was unlawful. The State should not be held liable for the conduct that is careless. The First Defendant was an experienced policeman, he should be held to a higher standard of discharging his duties. In a matter of minutes, he executed an unlawful act. I am of the view that he had minutes if not some split timing to consciously calculate his move after he fired the warning shots. This comes with experience in the field. I am convinced by the detailed decision of His Honour Justice Pitpit that the First Defendant acted negligently resulting in a verdict of murder and the loss of a woman, a wife and a young mother is entirely on the shoulders of the First Defendant and not the State. The State should not be held vicariously liable for a conscionable conduct of an experienced police officer.
28. The Court therefore makes the following orders:
Orders accordingly.
________________________________________________________________
Apo & Co Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Second, Third and Fourth Defendants
[1] [2012] PGSC 13; SC1181 (4 May 2012)
[2] [2017] PGSC 51; SC1650 (15 December 2017)
[3] Supra N1
[4] Supra N2
[5] Anthony Polling v Motor Vehicle Insurance (PNG) Trust [1986] PGNC 47; [1986] PNGLR 228; N564 (20 October 1986)
[6] [2006] PGNC 216; N2976 (21 February 2006)
[7] Maku v Maliwolo (2012) SC 1171
[8] [2004] PGNC 191; N2589 (16 July 2004)
[9] [2019] PGNC 19; N7682 (12 February 2019)
[10] [1996] PGNC 44; N1481 (24 October 1996)
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