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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS 185 OF 2015
BETWEEN:
ANDAPE ARALA
First Plaintiff
AND:
SOTI AGALIKO & TIMON KUNIYA
Second Plaintiffs
AND:
SAMSON KUA as COMMANDER IN-CHARGE OF OFFICERS BASED AT 9-MILE MACGREGOR POLICE BARRACKS
First Defendant
AND:
GEOFFERY VAKI as COMMISSIONER OF POLICE IN THE STATE OF PAPUA NEW GUINEA
Second Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Waigani: Bre, AJ
2023: 05th October, 15th December
NEGLIGENCE – duty of care – control and discipline of police – duty to maintain and enforce the law in an impartial and objective manner – properties burned to the ground.
VICARIOUS LIABILITY – performing or purporting to perform duties – policemen in police issued camouflage uniforms, guns and vehicles – raid and destruction of property – whether on a frolic of their own – onus of proof - disciplinary process of the police not followed – State vicariously liable.
STATEMENT OF CLAIM
Trial on Liability in which Plaintiff sought to prove a claim for vicarious liability and negligence and seek damages.
Cases Cited:
Papua New Guinean Cases
Geosite Management Ltd v Kavo [2020] PGNC 223; N8439
Kamuri v Pomoso [2021] PGSC 3; SC2071
Kelly v Yakasa [2020] PGNC 213; N8425
Maku v Maliwolo [2012] PGSC 5; SC1171
Nare v Independent State of Papua New Guinea [2017] PGSC 9; SC1584
Pinda v Inguba [2012] PGSC 13; SC1181
Wak v Kulunga [2018] PGNC 64; N7141
Overseas Cases
Donoghue -v- Stevenson [1932] AC 562.
Legislation
National Constitution s197, s198
National Court Rules, O10r9A(2)(c ); O12 r 25(a),(b), 27 and 32
Police Act 1998
Wrongs (Miscellaneous Provisions) Act Chapter 297 s1
Counsel
Mr Kup-Ogut, for the Plaintiff
Ms Ohuma, for the First, Second and Third Defendants
JUDGMENT
15th December 2023
1.BRE, AJ: INTRODUCTION: Andape Arala alleges that the Defendants were negligent in discharging their duties to control and discipline their employed policemen who form the Mobile Squad unit based at the MacGregor Barracks located at Nine Mile, NCD. On 12 and 13 October 2014, they allegedly looted and completely burnt to the ground Andape Arala's income earning buildings and his family residence on his property described as State Lease Vol 33 F 186 Allotment 21 Section 01, Bomana, located at Nine Mile, NCD.
2. On 02 March 2015, the Plaintiffs commenced this proceeding for wrongful damage and destruction to properties basing their cause of action on negligence and vicarious liability and seeking general, exemplary and punitive damages, interest and costs. The Writ of Summons was amended thrice, on 19 March 2015, to provide further particulars and include exemplary and punitive damages and, on 13 March 2015, to change the name of the Second Defendant.
3. Trial was conducted with the First Plaintiff and one of his witnesses giving oral evidence to which they were cross-examined. The State did not dispute the factual matters related to the presence of the policemen and looting and destruction of the Plaintiff’s properties on 12 and13 October 2014, The State disputes liability. The issues for determination relates to breach of duty and vicarious liability.
AMENDED STATEMENT OF CLAIM
4. The Plaintiffs amended Statement of Claim filed 13 March 2015 alleges negligence and pleads as follows:-
"Paragraph 5: The Third Defendant is sued vicariously in its capacity as the employer of the other two Defendants and those officers under their command and control at the material time in accordance with the Wrongs (Miscellaneous Provisions) Act 1975.
Paragraph 6: In or on 12 October, 2014 officers based at MacGregor Barracks investigated an assault arose from a drunken brawl on the adjacent piece of land described in the State Lease as Allotment 21 Section 01, Bomana in the National Capital District involving one of their officers.
Paragraph 7: The next day which was 13 December[1] (sic) 2014 upon mobilising and arming themselves with SLR and M16 rifles retrieved from the armoury and dressed up in warfare camouflage uniforms, those armed officers at MacGregor deployed themselves upon the Property and cause to be burnt out all four buildings with every whitegoods, furnishings, personal possessions, merchandise goods there and thereby they wrongfully caused damages to those properties and deprived their use, benefits and profits derived from use of the said buildings and items used for commercial and residential purposes by the Plaintiffs.
Paragraph 9: At all times the First Defendant as Commander of his armed unit at MacGregor owed a duty to the Plaintiffs to exercise all reasonable care, skill, diligence and competence to protect and safeguard properties owned by the Plaintiffs, particularly those that were destroyed and burnt down on 13 December[2] 2014 by his armed unit.
Paragraph 13: The Plaintiffs pleads the following particulars of negligence and breach of duty:
a) The assault to one of the officers on Allotment 21 Section 01 was criminal matter, and they should have lodged a complaint with the police to investigate and prosecute the matter.
b) instead, by omission or inaction the First Defendant allowed his officers to mobilise and armed themselves with SLR and M16 rifles from the armoury, and further failed to prevent them from leaving MacGregor Barracks,
c) When some members of the unit armed themselves with machine guns and moved out to the Plaintiffs Land, the First Defendant by omission or inaction failed to mobilise other members of the Unit to prevent them and/or further failed to turn up there to preserve and protect the Plaintiffs properties and possessions from them,
(d) Even after the destructions were done to the properties there is no know investigations conducted and none of the responsible officers were identified and prosecuted by the Defendants and their agents,
(e) The officers there easily mobilised and armed themselves with SLR and M16 rifles in response to an assault case involving one of their officers which is far removed from his line of duty. This indicates that the Defendants does not continuously train and discipline these officers to protect and preserve life and properties of the people, particular for the Plaintiffs, instead they are armed and left to police the law without any discipline.
(f) The Defendants negligently allowed these undisciplined armed officers to carry out police duty, which resulted directly in the destructions of the Plaintiffs properties.
(g) The inaction or lack of response to the complaint demonstrates that these officers are encouraged by the Defendants to breach their duty to preserve life and property of the Plaintiffs.
(h) By failing to investigate, identify and prosecute the offending officers is evidence enough of the Defendants’ negligence and breach of duty owed to the Plaintiffs.
Paragraph 14: Further by having in place such an armed but undisciplined force the Defendants were negligent in their duty in that they should have foreseen such officers were capable of these destructions to the Plaintiffs’ properties and possessions, which did occur in response to an assault case.
Paragraph 15: Even further the Defendants actions of wrongfully entering and burning constitute trespass against the properties of the Plaintiffs for which they suffered and continue to suffer loss and damages.
Paragraph16: Alternatively, the Defendants and their employees’ actions above constitute an unlawful act within the meaning of section 41 of the Constitution, and thereby the Plaintiffs are entitled to be compensated.
Paragraph17: Further to the alternative, by their failure in identifying and prosecuting the responsible offices the Defendants are strictly liable to pay for damages for the unlawful destructions caused to the Plaintiffs properties and possessions.
Paragraph 18: The First Plaintiff and his family have been displaced as a result of it and he has suffered and is taking medication for emotional, psychological and mental stress.
Paragraph 19: Notice of Claim under the provisions of Claims By and Against the State was given on 9 January 2015."
DEFENCE
5. The Second and Third Defendants filed their Defence on 20 July 2018, with leave of Court, to the Plaintiff's amended Statement of Claim denying the allegations and responding that the State is not vicariously liable for the actions or omissions of State employees who act outside the scope of their duties.
PLAINTIFFS' EVIDENCE
6. The Plaintiff relies on the following evidence:
DEFENDANTS EVIDENCE
7. The State relies on the Affidavit of Sergeant David Joel sworn on the 24 April 2019 and filed on 02 May 2019, tendered and marked as an exhibit 'D1'.
SUBMISSIONS
PLAINTIFF'S SUBMISSIONS
8. The Plaintiffs submits that the State is vicariously liable for the actions of the policemen who are a highly trained specialised unit of the Police Force which the Defendants are responsible for. Their actions on 12 and 13 October 2014 was criminal in nature which the Plaintiffs acted promptly to report to the Police hierarchy the next day, and several times after, but there was no disciplinary actions taken by the Defendants to discipline the policemen.
9. The Defendants have a duty to ordinary persons including the Plaintiffs to control the Police who are not ordinary employees or public servants of the State but specially trained to contain law and order situations in the Country and are governed by the Police Act to regulate their employment and behavior.
10. Mr Kup-Ogut, Counsel for the Plaintiffs relies on Philip Nare v Independent State of Papua New Guinea [2017] PGSC 9; SC1584 (28 April 2017) to submit that the State should be held vicariously liable for the damages suffered by the Plaintiffs.
DEFENDANTS' SUBMISSIONS
11. The Defendants do not challenge the facts but challenge liability on the grounds that the policemen’s action were outside the scope of their employment, that they on a frolic of their own, their actions are criminal in nature and not authorised. The State should not be held vicariously liable for their actions.
12. Ms Ohuma submits the State does not sanction the looting, burning and destruction of peoples properties. That the Police Commissioner issued instructions to all Police personnel to control and address unruly behavior of his members by condoning unauthorised actions of Police personnel.
13. Ms Ohuma, submitted that Philip Nare v State should be distinguished with the current case on the basis that the Police in that case where not identified and the pleadings did not plead vicarious liability of the First and Second Defendant that Police acted in the course of their duties.
FINDINGS OF FACT
14. The facts are not disputed by the Defendants, I accept the evidence of the Plaintiffs concerning the actions of the members of the Police Task Force unit based in MacGregor Police Barracks on the 12 and 13 October 2014, and the destruction to property as presented by the seven of five witnesses Affidavits relied on for the Plaintiff.
15. The uncontested evidence of the Plaintiff is that there was a drunken brawl on the 12th of October 2014 at his neighbour's property involving an off-duty policemen. This escalated into a gun battle at night when the policemen returned in the night with other policemen. In the process they looted the Second Plaintiff's store goods.
16. The next day a group of fully armed policemen dressed in combat gear armed with high powered semi-authomatic assault rifles descended on the Plaintiff's property looted it and completed razed it to the ground as the Plaintiff and his family, neighbours and the community stood by and watched helplessly. The Policemen had threatened to shot anyone who approached them or attempted to rescue the property.
17. The Plaintiff's property is on State land to which he has a registered title. He has a trade store which was rented by the Second Plaintiff and stocked at the time of the raid. He also had a house with four bedrooms upstairs which were rented out and two bedrooms downstairs. These buildings and all their contents were completely razed to the ground. Witnesses attest to the Plaintiffs having no time to save their goods or property in fear of their lives, and the community concerns and fears about the policemen's actions.
ISSUE
18. Whether the Defendants owed a duty of care to the plaintiffs and if so whether the State is vicariously liable for the actions of the policemen?
NELIGENCE
19. The tort of negligence in simple terms, concerns wrongs done due to careless acts or omissions from persons who owe a duty of care, to the wronged person that causes harm to him or her. Wrongs committed by State authorities and particularly by the Police, have been deliberated on in many cases in our jurisdiction.
20. The key elements of the tort of negligence to prove are set out in Michael Kuman v Digicel (PNG) Ltd (2019) SC1851 by the Supreme Court after discussing existing case authorities explained at [64],[65] and [66] as follows:
“...when a person is injured as a result of the careless or negligent act of another, the careless or negligent person will
be legally liable for any resulting harm or injury sustained by the other person.
To succeed in a claim of negligence, the plaintiff must prove that the defendant acted carelessly or negligently by adducing credible evidence showing that –
Duty of Care
21. Their duties which they failed to do. Section 1(4) WMPA vests the responsibility of wrongs committed by its employees exercising the functions imposed on them by Statute as if those functions were lawful instructions issued by the State where the employees are purporting to perform those functions.
22. The First and Second Defendant have failed to discharge their onus of proof that the Policemen’s actions were unlawful and unauthorised by failing to discipline them.
23. By virtue of Section 1 (1) WMPA the State is vicariously liable for the tortuous negligent acts of the Policemen.
24. The Court has held that the Police owe no duty of care to the public at large when carrying out their police duties. Maku v Maliwolo [2012] PGSC 5; SC1171 (2 March 2012)
25. This sets the perimeter of liability or otherwise, for the State. In this case, the Police entered the Plaintiffs private property, they were not dealing with the public in general but had specifically entered the Plaintiff's property to carry out investigations about the incident that occurred the night before concerning one of their colleagues.
26. The Plaintiffs evidence is that about 20 policemen from the Task Force unit based in MacGregor in camouflage police uniforms and three vehicles were involved in the raid. The Plaintiffs live approximately two kilometres from the MacGregor Barracks and I infer that they would be familiar with the uniforms and vehicle markings.
27. I accept the Plaintiffs evidence about the identity of the Police Task Force unit being located at MacGregor Barracks. I refer to the Supreme Court decision in Nare v the State which held that it is not necessary to identify and specifically name the policemen tortfeasors in the suit.
28. As to whether the number of policemen, vehicles and arms were proportionate to any suspected crimes they were to investigate and deal with, is a matter for the Police and the First and Second Defendants and is not an issue at trial.
29. The duty of care concept basis its origins in the neighbor principle enunciated in the English case of Donoghue -v- Stevenson [1932] AC 562 which has been adopted and applied in our Courts. I will refer to the legal framework that governs the Police to address whether the Police leadership owed a duty of care to the Plaintiffs to control and manage police personnel.
30. The State through the National Executive Council appoints the Police Commissioner and has enacted the Police Act 1998 to provide the governance and management of the Police Force. The Police Force is specially organised to protect the rights and freedoms of people in the Country by upholding the law and keeping the peace. The Police Force is a highly hierarchical structure where the chain of command is observed and respected. The Police Act spells out several disciplinary offences that its members can be charged with and vests the responsibility of disciplining the Police with the Police Commissioner, the Second Defendant. The Police Commissioner can delegate his powers of discipline to commissioned officers. See Section 19 Police Act.
31. The Police Standing Orders submitted into evidence by the Defendants, provides that a commanding officer must control and discipline the police personnel who report to him. The Defendant relied on a 1994 Circular issued by the then Police Commissioner titled ‘Police Misbehavior' which contained the following relevant instruction:
" Whenever Divisional Commanders, Metropolitan Superintendent or Provincial Commanders, suspect any misbehavior on the part of their staff, I expect them to begin an investigation appropriate to the circumstances. The investigation is to include the role played by supervisor of any staff who are found to have misbehaved. I will hold the Commanders responsible for the conduct of investigations within their command."
32. In Kamuri v Pomoso [2021] PGSC 3; SC2071 (5 February 2021), the Court did not hold the State vicariously liable for the wrongful actions of Pomoso and eight of his policemen who went on a rampage raiding a village in Enga Province resulting in the death of a villager. The distinguishing factor is that the Police leadership intervened to investigate the death of villagers and disciplined Pomoso as the officer in charge. Pomoso was criminally charged and convicted of manslaughter. The villagers claim for the State to be held liable for the wrongful damage to their property was denied.
33. At the time of this incident, the First Defendant was the Commander in Charge of police officers based at the MacGregor Barracks while the Second Defendant was the Police Commissioner ultimately in charge of all police personnel, their management and conduct.
Section 197 of the Constitution charges the Police to maintain law and order and ensure peace in the country. Section 197 Constitution reads:
" 197. Functions of the Police Force.
(1) The primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament –
(a) to preserve peace and good order in the country; and
(b) to maintain and, as necessary, enforce the law in an impartial and objective manner."
Section 198 Constitution creates the office of the Police Commissioner who is tasked with controlling the Police Force.
"198. Commissioner of Police.
There shall be, within the Police Force, an office of Commissioner of
Police, who shall be responsible for the superintendence, efficient
organization and control of the Force in accordance with an Act of the Parliament."
34. The Act referred to in Section 198 Constitution is the Police Act 1998.
The Police Act governs terms and conditions of employment of the Police Force including their discipline. Section 19 provides for the Police Commissioner
to appoint commissioned officers to discipline police personnel.
35. The Police Act contains an exhaustive list of minor and serious disciplinary actions that a member of the Force may be disciplined for.
36. The following sections of the Police Act contains the relevant provisions for discipline of responsible officers which respective commanders are to enforce
Section 19 Police Act reads:
19. Disciplinary Officers.
(1) The Commissioner may from time to time and at any time appoint commissioned officers to act as disciplinary officers for the purposes of this Part.
(2) Where the Commissioner acts as a disciplinary officer the provisions of this part shall apply with any necessary modifications.
20. Disciplinary Offences.
(1) A member of the Force who–
(a) wilfully disobeys or disregards a Standing or Special Order made or given by the Commissioner, or any lawful order given to
the member orally or in writing by a member of the Force who is senior to the member, or whose directions the member is required
to obey, or fails to carry out such order as soon as practicable; or
(b) fails to carry out any specified duty imposed on the member by this Act or any other Act or Regulation; or
(j) while on duty acts offensively towards any member of the public;
(n) unreasonably exercises his powers of arrest or search; or
(o) without good and sufficient cause discharges a firearm; or
(p) uses unnecessary force on any person in the execution of his duty
(ak) without lawful authority uses Government property for a purpose other than the execution of the member’s duty; or
(ay) commits an act or misconduct which may be a criminal offence, not being a purely indictable offence, under any Act, regulation,
or by-law; or
(az) acts in any manner, whether by word, conduct or omission which is prejudicial to good order and discipline in the Force, or which reflects discredit on the Force,
is guilty of a disciplinary offence and is liable to be dealt with and punished under this Division.
23. Dealing with serious offences.
(1) Where there is reason to believe that a member of the Force has
committed a disciplinary offence other than an offence that is or is intended
to be dealt with as a minor offence, it shall be dealt with as a serious offence.
(2) A member referred to in Subsection (1) may be charged by the Commissioner or by a commissioned officer authorized by the Commissioner to lay charges under Section 19.
26. Penalties for serious offences.
(1) Subject to Subsection (2), any one or more of the following penalties
may be imposed under this Division:–
(a) a fine not exceeding K200.00;
(b) reduction of the member’s salary;
(c) forfeiture of not more than four weeks’ pay;
(d) reduction of the member to a rank having a lower classification, and to a salary within that classification;
(e) in addition to or instead of a punishment specified in Paragraph (d), the transfer of the member to other duties;
(f) in addition to or instead of a punishment specified in Paragraph (d) or (e), the transfer of the member to some other locality;
(g) dismissal of the member from the Force.
37. The evidence of the Plaintiff is that he has raised complaints to the leadership of the Police including at the highest levels the next day and at other times but has not been approached to confirm the incident or scale of damage.
38. There is no evidence from the State to indicate if the Policemen were disciplined. This confirms that none of the policemen involved in the incident have been disciplined by their commanding officer.
39. The State’s evidence is from Sergeant David Joel based with the Legal Section of the Police Department who attaches copies of instructions issued by the former Police Commissioner in 1992 and1994 warning police personnel about disciplinary and criminal sanctions where unauthorized raids and property destructions are carried out by the Police. The evidence also attaches the Standing Orders on Human Rights Standards to which excerpts of clause 6.18.1 reads:
" Human rights standards are well defined and codified..they constitute a set of performance standards which duty-bearers such as police and all levels of society can be held accountable..."
40. The Police are governed by their Standing orders to observe people's constitutional rights when performing their duties. The Police entry to private property is justified when it is in hot pursuit or when a search warrant is obtained. There is no evidence of either of these matters.
41. Section 198 Constitution, the Police Act 1998 and Police Standing Orders places a legal responsibility on the Police to preserve peace and good order and enforce the law in an impartial and objective manner.
42. The State admits that the actions of the police are wrong and are criminal in nature. Sergeant Joel disposes that the Police Commissioner
never authorises unlawful actions by the Police.
43. The State has not discharged the onus of proof that the Police disciplinary process as outlined by the Police Force Act and Police Commissioner's Circulars have been complied with by the First and Second Defendants. It is one thing to make submissions but another to back that up with evidence.
44. Based on the Constitution and the Police Act as outlined, I find that the First and Second Defendants owed a statutory duty to discipline and deal with the behavior of their men which they failed to discharge. The policemen owed a statutory duty to the Plaintiffs to uphold the law and maintain peace, which they breached by their wrongful actions.
45. I find the Defendants and the concerned police personnel owed a statutory duty of care to the plaintiff in attending to his premises to respect his rights, observe the search and entry powers under the Search Act and use such reasonable force as is necessary in the circumstance to enforce the law and preserve peace and good order.
Whether the defendant breached that legal duty by acting or failing to act in a certain way
46. The Defendants breached their statutory duty of care by failing to control the policemen under their charge who deviated from their normal police responsibilities descended on the Plaintiff’s property looted and burnt the Plaintiffs buildings to the ground. They failed to maintain peace and good order, abused their police powers and were not disciplined by the First and Second Defendants as required by the Police Act.
Whether it was the defendant’s action, inaction or omission to act that in fact caused the plaintiff’s injury
47. The uncontested evidence, is that the First Defendant failed to take appropriate actions to restrain the Policemen before they left the Barracks and to discipline them after. The Defendants were notified about the incident and failed to act on the information to discipline the concerned Policemen. This failure caused the Plaintiff serious damage to his property and livelihood. The Plaintiffs evidence is uncontested that the Defendant's omissions or to exercise restrain and control caused the Plaintiff injury in the loss of his buildings that he used for commercial and residential purposes.
Whether the plaintiff was harmed or injured as a result of the Defendant’s action.
48. The Plaintiffs uncontested evidence is that he suffered greatly from the loss of income and was left without a home which had a toll on his family members as they had no building to sleep in and no means of income.
49. The Police did not observe their Standing Orders to observe human rights standards to the 'right to adequate food, housing and social security' per Standing Order 6.18.1 in the Affidavit of Sergeant David Joel.
50. The First and Second Defendant seem to have lost control or acquiesced in the policemen’s wrongful actions by not discharging their statutory responsibilities to discipline the Policemen involved in the raid.
51. Overall, I find the First and Second Defendant's filed to disclose their Statutory duty to discipline the policemen that duty is owed particularly to the Plaintiff whose property the Police entered.
52. The Policemen failed in observing their Constitutional duty to preserve peace and good order and enforce the law in an impartial and objective manner. The actions were negligent.
VICARIOUS LIABILITY
53. The State is in a similar position as any other employer who may be vicariously liable for the negligent actions of an employee while performing or purporting to perform his or her duties. The Wrongs (Miscellaneous Provisions) Act Chapter 297 ( ‘WMPA’) provides that the State can be sued in tort like any other person and may be vicariously liable for the actions or omissions or breaches of any duties or functions performed by employees or agents of any of its departments, agencies, or instrumentalities including the Police Force.
Section 1 WMPA reads:
“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.
(2) Proceedings do not lie against the State by virtue of Subsection (1)(a) in respect of an act or omission of a servant or agent of the State unless the act or omission would, apart from this Division, have given rise to a cause of action in tort against the servant or agent or his estate.”
...
(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.
(Emphasis mine)
54. Section 1(1),(2) and (4) WMPA makes the State vicariously liable for the tortious actions or omissions of State employees where the tortious actions or omissions occurred as a result of performing or purporting to perform their duties and functions.
55. Section 1(4) WMPA particularly translates statutory duties imposed on state officials to lawful instructions from the State. This provision is important in deciding negligence and vicarious liability as it concerns powers and functions of the Police under the Constitution and Police Act. The lawful instruction per Section 19 of the Police Act is to discipline Policemen who act unlawfully by virtue of Section (4) WMPA is a lawful instruction from the State. That instruction has been breached when the First and Second Defendant failed to discipline their concerned Policemen.
56. The State also raises the issue of insufficient pleadings in specifically not pleading that the policemen tortfeasors nor the Defendants were performing or purporting to perform duties in the scope of their employment to create a sufficient nexus between the tortfeasors and the State to discharge vicarious liability to the State.
57. In Pinda v Inguba [2012] PGSC 13; SC1181 (4 May 2012), the Supreme Court held at [10] that pleadings must plead the material facts on vicarious liability citing the jurisdictional
basis of the Wrongs (Miscellaneous Provisions) Act. The Plaintiffs original Statement of claim at paragraph 5 does allege the State to be vicariously liable under the WMPA. I find
this aspect has been sufficiently pleaded.
58. Despite Pinda v Inguba, the Supreme Court in Nare v the State clarified the position it was not necessary to pleade or prove that the tortfeasors were acting within the scope of their duties
so long as they were purporting to carry out their duties that was sufficient. The Supreme Court decision in Nare v the State was summarised in Wak v Kulunga [2018] PGNC 64; N7141 (5 March 2018) at [18], which I respectfully adopt:
"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:
it is not necessary to name the specific tortfeasor as a defendant;
it is not necessary to name the specific tortfeasor in the statement of claim or other originating process;
it is not necessary to name or identify the specific tortfeasor in the evidence;
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 approve that the tortfeasor was acting or purporting to act in the course of his or duties."
59. I find paragraphs 5, 6, 9 and 13 of the Amended Statement of Claim pleads sufficient scope of duty and nexus between Defendants and pleadings are sufficient to demonstrate nexus between the tortfeasor police officers and the State. The First Plaintiff principle claim for vicarious liability is that the First and Second Defendant failed in their statutory duty to control and discipline the Policemen tortfeasors. There is sufficient nexus between First and Second Defendant, with policemen and the Plaintiffs. The First Defendant would have known about the first incident and next day when a group of 20 policemen and 3 vehicles moves out of the barracks. He should restrain them.
60. A crucial issue for determination then arises as to whether the police were performing or purporting to perform out their functions on the 12th and 13th of October 2023.
Purporting to perform duties
61. I adopt with respect, the Supreme Court's decision in Nare v The State that the onus of prove rests on the State to prove that the tortious actions were unrelated to their normal duties. The Supreme
Court stated:
36. The key to the nexus required is in the words “performance or purported performance” by the wrongdoer of his or her duties or functions as delegated by the State. The onus is on the State to prove that the wrongful acts of the tortfeasors was so far removed from their ‘domain of authorised actions’ as to have no or no
purported connection therewith.
57. It follows that the cause of action against the State is established if:
Tortuous conduct is perpetrated by
Officers of the State, including police
Acting or purporting to act in the course of their duties.
The words “purporting to act” are of considerable significance.
62. In no other circumstance, industrial accidents or otherwise, is there any rule that it is mandatory for an employee or agent identified as a wrong doer to be cited as a defendant to establish that vicarious liability.
63. The primary duty of the Court is to give justice. It cannot be just to deny a remedy otherwise established against the State on the basis that another person may also be a tortfeasor. That result would reduce the
citizen’s protection against unlawful acts by agents of the State, and be in breach of s.37 of the Constitution (equal protection of the law).
62. The test to my mind in deciding whether an employee is purporting to perform a duty is an objective test based on the impressions of those who witness the purported duty being carried out or experience its performance. The act of purporting implies a process of appearing to act or looking like carrying out ones duties. The employer or the State in this case bears the onus of proving with the production of necessary standard operating procedures or written instructions that what the employee was purporting to do so in fact part of their authorized job description.
63. Where policemen are in police uniform, using police issued vehicles, carrying police issued firearms and purporting or looking like they are attending to an incident, in the eyes of the witnesses they are carrying out police duties.
64. In common law the police constable exercised independent discretion and responsibility stopped with him. That common law rule is no longer applicable to PNG with the enactment of the WMPA making the State ultimately responsible for State employees wrongful acts or omissions. See Nare v State at [18] [19],[22], and [56].
65. The State has the onus of proving that the Policemen's actions are unauthorised. In Kelly v Yakasa [2020] PGNC 213; N8425 (12 May 2020) after considering caselaw Kiele-Polume J held at [58] that:
" the tortious actions or omissions of police officers committed were within the scope of police employment and functions unless the State discharges the onus of proving that what they did was totally removed from the domain of their authorised actions."
66. In Kelly v Yakasa a group of policemen entered five-mile settlement at NCD and raided the residents' properties destroying food gardens and properties when searching for two suspects. The Court held the State was responsible for the tortious actions of the Police.
67. In Wak v Kulunga [2018] PGNC 64; N7141 (5 March 2018) unidentified policeman shot into the air to dispel a crowd in public when a stray bullet hit the leg of the Plaintiff. State was held vicariously liable even though the policemen could not be identified, and the gun shots were fired in public.
68. The case of Nare v The State and Guard Dog Security Services Ltd v Mathews [2019] PGSC 88; SC1861 (1 November 2019) on 'purporting to act' clarifies that the State is vicariously liable for the wrongful actions of the Police.
In Nare v The State at [56] the Court stated:- "The fact is that unlawful conduct by police in the course of a “police raid” renders the State vicariously liable for damages."
69. In Guard Dog v Matthews at [26] and [27] the Court explained:
" ... the guard’s conduct was closely connected with his employment... the guard acted negligently in seeking to restore order. Alternatively, even if he decided to attack a person he knew to be a match official, we agree that in the
circumstances that speaks to a failure of instruction or control on the part of the Appellant. There was no error of fact or law."
70. The Supreme Court in Guard Dog v Matthews at [20] cited Sir John Salmond in 1907 who formulated the test for vicarious liability as:
" ...whether the act: (a) is authorised by the employer; or (b) is an unauthorised mode of doing some other act authorised by the employer... that an employer would also be liable for unauthorised acts provided that they are "so connected" with authorised acts that they may be regarded as modes, although improper modes, of doing them."
71. The case of Guard Dog v Matthews provides a good example of an employee carry out his normal duties but acting beyond the scope of his authority when an unidentified static guard armed with a baton used that baton to strike the Plaintiff, causing serious medical issues. The Court held the employer was vicariously liable because the security was appropriately armed with a baton and discharged to his location at the stadium to maintain crowd control which he acted excessively when he struck the Plaintiff, the match referree. The Court held there was a nexus to the scope of duties and the incident. The Court held at [27] that there was a 'failure of instruction or control' on the part of the Security firm employer.
72. It is reasonable to presume that taking no action to discipline the police officers involved pursuant to the Police standing orders or disciplinary rules can mean acquiesce, acceptance or authorisation of the actions of the police by the Defendants and ultimate acceptance of responsibility of the consequence of their actions, which the Defendants will be estopped by conduct from liability denying. Geosite Management Ltd v Kavo [2020] PGNC 223; N8439 (30 April 2020)[3]
73. Disciplining the policemen will demonstrate their actions were not authorised by the Police leadership and discharge the burden of accordingly discharged.
74. A dated Police Commissioner Circular No 34/1992 of 20 October 1992 annexed to the Affidavit of Sergeant David Joel places the onus of disciplining Policemen with the commanding officers who destroy properties on relevant excerpts:-
" ...all Police who involve themselves in this type of activity are to be arrested, charged and brought before the Court. This action is to be taken by the local commanders of their own initiative. I do not expect them to wait for direction from their senior officers."
75. Again in 1994 the then Police Commissioner issued under Circular titled ‘Police Misbehavior' and had the following relevant instruction:-
" Whenever Divisional Commanders, Metropolitan Superintendent or Provincial Commanders, suspect any misbehavior on the part of their staff, I expect them to begin an investigation appropriate to the circumstances. The investigation is to include the role played by supervisor of any staff who are found to have misbehaved. I will hold the Commanders responsible for the conduct of investigations within their command."
76. They take it that the Circular applied in 2014 during the raid and is relied on by the State.
77. Clearly, the First and Second Defendants have lawful instructions from the Circulars and Section 198 Constitution to uphold the law and discipline the Policemen who were purporting to perform.
78. I find that the case of Nare v the State assists the Plaintiff and does provide that the State is responsible for the negligent actions of police and each member of the Police do not have to be named. I note then, the State has amended the CBASA law in 2022[4] to require tortfeasors to be named. This action was commenced in 2015 and the amendment does not apply to it but the action continues the action according to the Section 5 Notice issued to the State then[5].
79. I find that the police were ‘purporting’ to carry out their duties, turned rogue but were not disciplined by the First and Second Defendant contrary to the Statutory duty to discipline under Police Act and investigate per standing Order.
CONCLUSION
80. I find that the First Plaintiff has sufficiently adduced evidence to prove that the First, Second defendant breached their statutory duties to control and discipline the policemen under their charge, who in turn failed to uphold the law by wrongly looting and destroying the Plaintiffs properties on 12 and 13 October 2014.
81. Their actions were grossly negligent, careless and without due regard of their constitutional mandate to act in an impartial and objective manner to maintain law and order and preserve the peace.
82. the Third Defendant as the ultimate employer of the First and Second Defendants and their members and is vicariously liable for wrongful actions. It would be unfair and unjust to the Plaintiffs who appear to be innocent victims of police abuse for the State to deny liability. The State has a duty to the people to ensure its mechanisms to control, manage and discipline the Police are working and governed well in order to discharge the constitutional duty to maintain law and order and preserve peace in the country.
83. I find the police were carrying out their duties initially to justify their arrival to investigate the incident of the night before but under the guise of 'purporting to carry out their duties, turned rogue or exceeded their powers when they started looting and burning the Plaintiffs properties and threatening to shoot anyone who came to rescue the property.
84. The First and Second Defendant did not address their unruly conduct and failed to discharge their statutory responsibilities to control and manage the police under their supervision and command. The State ultimately bears the responsibility of these wrongful actions and omissions as the wrongful actions by virtue of the WMPA.
85. I therefore find that the Defendants are negligent and the Third Defendant, the State, is vicariously liable to the Plaintiffs for the negligent actions or omissions of its employees the policemen.
Costs
86. Costs are discretionary and are awarded against the State.
Order
86. The formal Judgement of the Court are:
Judgement accordingly.
Kup & Co Lawyers: Lawyers for the Plaintiffs
Solicitor General by his employed Lawyer: Lawyers for the Defendants
[1] The month appears to be an error, the evidence is that the incident occured in October 2014, not December 2014.
[2] Supra,
[3] On estoppel by conduct.
[4] Claims By and Against the State Act Amendment No 9 of 2022 clause 4 newe Section 5A
[5] Supra, Clause 6, new Section 23.
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