Kisa v Talok [2017] PGSC 51; SC1650 (15 December 2017)

SC1650

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: 30^th October & 15^th 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

1. In order for the appellant to establish a cause of action and vicarious liability against the State, he had to specifically plead section 1 (1) and (4) of the Wrongs (Miscellaneous Provisions) Act, Chapter No. 297 in the Statement of Claim and plead that the first respondent (tortfeasor) committed the tort whilst acting in the course of his duties as policeman.
   
2. The failure by the appellant to plead section 1 (1) and (4) of the Wrong (Miscellaneous Provisions) Act, and allege that the first respondent committed the tort whilst acting in the course his duties rendered the pleadings defective: Kelly Lerro v. Phillip Stagg & Ors (2006) N3050 and Phillip Takori v. Simon Yagari & Ors (2008) SC905 adopted and followed.
   

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

15^th 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;

1. The learned trial judge erred in fact and in law in dismissing the entire claim on the basis that no clear cause of action was pleaded and vicarious liability against the State was not sufficiently pleaded and established in the Statement of Claim as against the weight of the evidence and the pleadings;
   
   1. When the pleadings clearly established a cause of action in negligence/unlawful shooting; and
      
   2. Those defects in the pleading were cured by the oral and written evidence particularly when the first respondent appeared in Court with the other police witnesses and testified at the witness box that he was a Policeman on routine Highway Patrol duties and was at the scene of the shooting and that there was a shootout between the police and criminals but denied shooting the appellant, which clearly shows he was an agent and servant to the State.
2. His Honour erred in fact and in law in failing to consider the evidence and submissions of the appellant because had he done so; His Honour would have found on the balance of probability that the first respondent, a policeman in uniform and with a Police issued firearm and on routine highway patrol;
   
   1. Was an agent and servant of the State acting in the course and within the scope of his employment; and
      
   2. Did shoot the appellant whilst acting in the course and within the scope of his employment as the respondents’ evidence clearly established that the first respondent and other Policemen were on their normal routine Highway Patrol duties and at Malisos Village, they encountered a road block and the first respondent open fired at them and they exchanged gun fire for about 20 minutes until the appellant was shot and he was taken to hospital.
      
   3. The first respondent was clearly identified by the appellant as the one who was liable for the shooting of the appellant.
      
   4. There was photograph tendered into evidence by the appellant at trial which clearly showed the entry and exit of bullet on his body consistent with the Medical Reports but his Honour failed to make a finding of fact and give weight to that evidence.
      
   5. The lacking in the pleadings would have been cured by the evidences, both written and oral, given at trial by both the appellant and respondents, where the first respondent was positively identified by the appellant’s witnesses at the scene of the unlawful shooting of the appellant.
      

100. His Honour erred in fact and in law in failing to consider the principles established in the case of David Kofewe .vs. Siviri [1983] PNGLR 449 which stands for proposition that members of Police Force in Papua New Guinea are servants and agents of the State and for purpose of liability, the acts of Police officers must be acts within the scope of their employment.
     

4. His Honour erred in fact and in law in holding that even where vicarious liability is properly pleaded there is no evidence that the Plaintiff suffered any hurt or injury of a type of (sic.) warrant an award of damages at all, when in fact the medical reports by Dr. Pinai Smith, Director of Medical Services, Wabag Hospital and Dr. John McKup of Family Medical Center Mt. Hagen did confirm that the appellant did sustain injuries from gunshots which warranted an award of damages.
   
5. His Honour erred in fact and in law by being too critical of the Medical Reports by Dr. Pinai Smith and Dr. John McKup to such an extent where he applied the criminal burden of proof of “beyond reasonable doubt” and holding the medical reports to be insufficient to proof any damages when in fact the Medical Reports as presented before his honour were sufficient to establish on the balance of probability and circumstantially that the appellant suffered damages.
   

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:

1. The Plaintiff is a public servant, a member of the Corrective Institutional Service Wabag in the Enga Province, and is aged about 40 years old.
   
2. The first defendant is a Senior Policeman, attached to the Surinki Police Station, Wabag and is therefore an employee, agent and or servant of the State.
   
3. The 2^nd defendant is the Police Commissioner of Papua New Guinea and as such is responsible for all police actions and in actions under his command.
   
4. On the 27^th April 1999, at Malisos village, Upper Laiagam, the first defendant unlawfully shot the Plaintiff with a high powered shotgun.
   
5. The shooting by the first defendant was unlawful and a reckless handing of the State issued gun.
   
6. As a result, the Plaintiff sustained injuries to his person.
   

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

7. The Plaintiff was admitted and treated at Emmanuel Lutheran Hospital, Wabag
   

Particulars of Treatment

(a) Hospitalized for 2 months

(b) Removal of pellet wounds

(c) Antibiotics and analgesics

(d) Bed rest and observations

8. As a result of the injuries the Plaintiff was severally traumatised apart from the physical loss.
   
9. As a result, the Plaintiff now suffers severely and has fits of anger, loss of concentration, and loss of memory at times.
   
10. The Plaintiff has also expended medical and released cost as a result, exceeded K14, 000.00, which the Plaintiff claim same.
    
11. As the actions of the Defendants were unlawful, the Plaintiff claims exemplary damages.
    

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:

1. In an illegal police raid, for the State to be held vicariously liable for the negligent acts or omissions of policemen, the Statement of Claim must plead that the policemen were pursuant to s. 1 (1) and (4) of the Wrongs (Miscellaneous Provisions) Act., acting in the course of their duties.
   
2. A failure to specifically plead that the policemen were acting in the course of their duties pursuant to s.1 (1) and (4) of the Wrongs (Miscellaneous Provisions) Act, (in order to claim vicarious liability against the State), may render a proceeding defective even after a default judgment had been entered for damages to assessed. See also William Mel –v- Coleman Pakalia, The Police & The State (2005) SC790 and Rupundi Maku –v- Steven Maliwolo & The State (2012) SC1171.

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