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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO. 186 OF 2016
BETWEEN
SAMSON KISA
Appellant
AND
SERGEANT MAJOR JAMES TALOK
SURINKI POLICE STATION
First Respondent
AND
JOHN WAKON
POLICE COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent
Waigani: Gavara-Nanu J, Ipang & Lindsay JJ
2017: 30th October & 15th December
APPEAL – Appeal against whole of the decision of the National Court –Tort – Tortfeasor - Wrongs (Miscellaneous Provisions) Act, Chapter 297, s.1 – Statutory provision not pleaded in the Statement of Claim – Appellant not pleading that the first respondent as tortfeasor committed tort whilst acting in the course of his duties – Pleadings defective- No cause of action disclosed in the pleadings – Defective pleadings incurable on appeal – Appeal dismissed.
Facts
The appellant is an officer of the Correctional Service based in Wabag, Enga Province. The first respondent is a policeman based at Surinki Police Station, Enga Province. It was claimed that on 27 April, 1999, the first respondent shot and wounded the appellant resulting in the appellant sustaining pellet wounds to his body. The appellant claimed that at the time of the incident, the first respondent was in company of other policemen trying to clear a road block in his area. The appellant sustained pellet wounds to his right upper arm, right chest wall, left chest wall, left side of his abdomen and his lumber regions. He claimed that he was subsequently hospitalized for two months then went for further medical review in 2009 and 2013. He sued for damages for the negligence of the first respondent. On the 30 November, 2016, the National Court dismissed the proceedings.
Held
Cases Cited
Jack Pinda v Inguba [2009] PGNC 263; N4659
Jack Pinda v Inguba [2012] PGSC 13; SC1181
Philip Nare v Independent State of Papua New Guinea [2017] PGSC 9; SC1584
Rupundi Maku v. Steven Malivolo & The Independent State of Papua New Guinea (2012) SC1171
William Mel v. Coleman Pakalis, The Police & The State (2005) SC790
Legislation referred to
Wrongs (Miscellaneous Provisions) Act, Chapter No. 297
Supreme Court Act, Chapter No. 37
Counsel
D.K. Piam, for the Appellant
R.K. Gelu, for the Respondent
15th December, 2017
1. BY THE COURT: The appellant appeals against the whole of the decision of Poole J, handed down in Mt. Hagen on 30 November 2016, in which his Honour dismissed the proceeding in its entirety.
2. The decision was based on two fundamental findings. First, the appellant’s pleadings in the Statement of Claim did not disclose a cause of action and that he failed to plead s.1 (1) and (4) of the Wrongs (Miscellaneous Provisions) Act, in that he failed to plead that the first respondent shot and wounded him whilst acting in the course of his duties in order to establish vicarious liability against the State. Second, the appellant failed to adduce evidence to support and substantiate his claim that as a result of being shot by the first respondent he had to be hospitalized for two months then ten years later had a medical review.
3. The appeal lies without leave as the trial judge’s decision was a final decision and pursuant to s. 14 (3) of the Supreme Court Act, Chapter No. 37, the appeal raises questions of law and mixed fact and law.
Grounds of Appeal
4. The Notice of Appeal contains the following grounds of appeal;
Orders sought
In lieu of the judgment appealed from the appellants pray for orders;
(a) That the decision of His Honour Poole J. be quashed
(b) That this Appeal be upheld
(c) That an award for damages be made for the Appellants on evidence presented;
(d) Alternatively the matter be reassessed
(e) The Respondents pay the cost
(f) Such other or further orders as the court deems fit
5. Mr. Piam of counsel for the appellant submitted that the grounds of appeal may be summarised in the following two questions:
(i) Whether the pleadings disclosed a cause of action in law and whether
vicarious liability has been established against the State (Grounds 3a, b, c & d) and;
(ii) Whether there was evidence to warrant award of damages in favour of
the appellant? (Grounds e & f)
6. At the time of the alleged shooting the appellant was a Correctional Officer based in Wabag, Enga Province, and the first respondent was a policeman holding the rank of a Sergeant Major. He was also based in Wabag and was the Police Station Commander. The second and the third respondents are sued pursuant to the principle of vicarious liability. The appellant alleged that on the 27 April 1999 at Malisos Village, Upper Laiagam, in Enga Province, the first respondent unlawfully shot and wounded him and that the first respondent was reckless in handling his State issued firearm.
7. The statement of claim was in these terms:
Particulars
(a) Pellet wounds at right upper arm
(b) Pellet wounds at right chest wall
(c) Pellet wounds at left fore arm
(d) Pellet wounds at left posterolateral aspect of an abdominal
(e) Pellet wounds at his lumber regions
Particulars of Treatment
(a) Hospitalized for 2 months
(b) Removal of pellet wounds
(c) Antibiotics and analgesics
(d) Bed rest and observations
Issues
8. There are two pertinent issues before us. First, whether s.1 of the Wrongs (Miscellaneous Provisions) Act, which was not pleaded, should have been pleaded in the Statement of Claim by the appellant and claimed that the first respondent shot him whilst acting in the course of his duties, in order to establish vicarious liability against the State. Second, whether there was evidence to warrant awarding of damages to the appellant. The second issue is dependent on how we decide the first issue.
9. Mr. Piam submitted that the pleadings in the Statement of Claim disclosed a cause of action. He submitted that the relevant facts were pleaded in paragraphs 4 and 5 of the Statement of Claim where it was pleaded that on the 27 April 1999, at Malisos village, Upper Laiagam, the first respondent unlawfully shot and wounded the appellant with a high powered firearm. Further, that the shooting was unlawful and reckless and it resulted in the appellant sustaining injuries for which he had to be hospitalized for two months. He submitted that these latter facts were pleaded in paragraphs 6 and 7 of the Statement of Claim. Mr. Piam submitted that the pleadings were sufficient and they disclosed a cause of action in negligence.
10. Mr. Piam further submitted that the primary judge placed more reliance and emphasis on Jack Pinda v Inguba [2009] PGNC 263; N4659 and held that the pleadings were flawed because the appellant failed to plead s.1 (1) and (4) of the Wrongs (Miscellaneous Provisions) Act, and failed to claim that the first respondent shot the appellant whilst acting in the course of his duties.
11. Mr. Piam also submitted that the primary judge erred in law because it is not a legal requirement that s. 1 of the Wrongs (Miscellaneous Provisions) Act, be pleaded in a Statement of Claim. He also argued there is also no legal requirement to plead that the first respondent was acting in the course of his duties when he allegedly shot the appellant. Mr. Piam submitted that Pinda v Inguba (2012) SC1181 was wrongly decided. In that case, the Supreme Court in affirming the decision of the National Court held that:
12. Mrs. Gelu of counsel for the respondents argued that it was incumbent on the appellant to plead a clear cause of action, which includes pleading s.1 (1) and (4) of Wrongs (Miscellaneous Provisions) Act, but failed to so. It follows that the trial judge did not err in dismissing the proceeding.
13. We note that the trial judge also considered the two medical reports prepared by Dr Smith Pindi and Dr McKupo on the injuries allegedly sustained by the appellant. The trial judge rejected the reports because they were prepared some ten years after the injuries were allegedly suffered. Furthermore, the reports dealt with psychological issues which the trial judge said were outside the qualifications and expertise of the two doctors.
14. It is plain to us that Mr Piam has misconceived the law in arguing that it is not a legal requirement that s.1 (1) and (4) of the Wrongs (Miscellaneous Provisions) Act be specifically pleaded in a Statement of Claim. The Supreme Court in Jack Pinda v. Sam Inguba (supra), stated very clearly that the provision must be pleaded in a Statement of Claim. Mr Piam has placed reliance on the Supreme Court decision in Phillip Nare v Independent State of Papua New Guinea [2017] PGSC 9; SC 1584. However, we find that the decision has been misconceived. It is sufficient for us to state that the decision in Phillip Nare did not differ from what was said in Jack Pinda, let alone overrule the decision in Jack Pinda.
15. The appellant is bound by his pleadings and he cannot go outside of them on appeal viz; he cannot raise issues which he has not pleaded in the Statement of Claim. Furthermore, the failure to plead the relevant matters renders the pleadings defective and such defects cannot be cured by oral submissions during substantive hearing.
16. For the foregoing reasons, we affirm the decision of the National Court and dismiss the appeal.
17. The appellant will pay the respondent’s costs of and incidental to this appeal.
________________________________________________________________
Paulus M. Dowa Lawyers: Lawyer for the Appellant
Solicitor General: Lawyer for the Respondents
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