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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCM NO. 01 OF 2018
BETWEEN:
JIM KAMURI & SOWASON MANASAIAND 73 ORS
Appellants
AND:
INSPECTOR TIMOTHY POMOSO & 7 OTHER POLICEMEN
First Respondent
AND:
GARI BAKI
COMMISSIONER OF POLICE
Second Respondent
AND:
THE STATE
Third Respondent
Waigani: Makail, Collier & Logan JJ
2021: 5th February
PRACTICE AND PROCEDURE–appeal from part of decision of primary Judge concerning vicarious liability of second and third respondents for first respondents’ actions –where primary Judge found pleadings failed to disclose proper cause of action against second and third respondents – where appellants claimed sufficient nexus or connection in statement of claim for vicarious liability cause of action –requirements to properly plead cause of action for vicarious liability – whether appellants specifically pleaded ss 1(1) and 1(4) of the Wrongs (Miscellaneous Provisions) Act 1975 – whether appellants failed to plead the first respondents acted in the course of and within the scope of their employment – appellants failed to properly plead vicarious liability cause of action – appeal dismissed.
Cases Cited:
Papua New Guinea Cases
Guard Dog Security Services Ltd v Mathews [2019] SC1861
Kipahi v Nambos [2020] N8437
Kisa v Talok [2017] SC1650
Nare v Independent State of Papua New Guinea [2017] SC1584
Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] SC694
Pinda v Inguba [2012] SC1181
Yakasa v Piso [2014] SC1330
Overseas Cases
Deatons Pty Ltd v Flew (1949) 79 CLR 370; [1949] HCA 60
Morris v C W Martin & Sons Ltd [1966] 1 QB 716
Sprodbnf v Public Relations Oriented Security Pty Limited [2007] NSWCA 319
Thorp v Holdsworth [1876] UKLawRpCh 167; (1876) 3 Ch D 637
Legislation:
Claims By and Against the State Act 1996
National Court Rules 1983 O 12 r 40, 0 8 r 27
Wrongs (Miscellaneous Provisions) Act s 1
Counsel:
Mr A Benny, for the Appellants
Ms C Kuson, for the Respondents
5th February, 2021
1. BY THE COURT: Before the Court is an appeal against the decision of the National Court in consolidated proceedings (numbered WS 150 of 2007, WS 151 of 2007, WS 152 of 2007 and WS 181 of 2007) delivered on 1 December 2017. In that decision, the primary Judge found in favour of the appellants in respect of their claims against the first respondents, but dismissed the appellants’ claims against the second and third respondents as failing to disclose a proper cause of action. The appeal was conducted on the papers.
BACKGROUND FACTS
2. On or about 5 August 2004, a fuel transport owned by Mountain Fuel Freighters – which was contracted by Porgera Joint
Venture to cart fuel to its mine site – slid off the side of the road during its climb up the hills near Yakananda village
in Enga Province. Mountain Fuel Freighters hired ten village youths to guard the fuel tanker.
3. Some hours later, the first respondents (namely Inspector Pomoso, who was in charge of the Wabag Police detachment, and eight
other police officers, who were non-commissioned members of the Royal Papua New Guinea Constabulary), who were on their way to Sirunki
to serve preventative orders in relation to tribal fighting, arrived at the scene. The first respondents allegedly suspected that
the persons congregated there were stealing fuel from the tanker, rather than guarding it. A physical confrontation ensued, with
the respondents alleging the confrontation was a result of trying to remove weapons (bush knives and axes) from the persons remaining
around the fuel tanker.
4. The police appear to have left the scene following the confrontation. One of the police officers was allegedly taken by the villagers and had to be “rescued”. Sometime following the confrontation, the first respondents conducted a raid on the Yakananda village. It is not clear if this was linked to the alleged rescue of one of the officers. The raid was conducted in the absence of search or arrest warrants.
5. At some point in time, police reinforcements, which had been requested by the first respondents, arrived at Yakananda village.
6. The raid resulted in the destruction of property, including bush material houses, semi-permanent houses, permanent houses, sacred tribal places, cash, food crops, livestock, trade stores, goods, domestic animals, fruit trees and other plants. The destruction was assessed by a valuer and supported by photographic evidence.
7. The appellants contended that some of the villagers suffered physical harm and injuries at the hands of the police officers. It appears that, during either the confrontation or the raid, two of the appellants received gunshot wounds and one villager, Mr Luke Yagala, was killed.
8. An internal investigation into the loss of life was conducted by the Royal Papua New Guinea Constabulary. The internal investigation concluded that there had been “gross negligence” on the part of the raiding police in conducting the raid. Further, Inspector Pomoso, who was in command of the raiding party, was charged with murder, but subsequently found guilty of grievous bodily harm causing death.
9. The appellants commenced four proceedings in the National Court relating to the police raid of the Yakananda village, namely:
10. The four proceedings were consolidated by order of the National Court on 15 August 2014. The trial of those consolidated proceedings was completed on 24 November 2014. The appellants filed 71 affidavits in support of the proceedings, but at the hearing relied upon the evidence of only three witnesses.
11. On 1 December 2017, the primary Judge dismissed the consolidated proceedings.
DECISION OF THE NATIONAL COURT
12. Before the primary Judge, the State relied upon four main arguments to challenge the liability of the second and third respondents. The third and fourth arguments related to the alleged property damage suffered by the appellants and the appropriate damages to be awarded. The first and second arguments are of greater relevance in this appeal and were as follows:
(1) There was no nexus or connection pleaded in the statement of claim between, on the one hand, Inspector Pomoso and the eight members of the Constabulary (the first respondents) and, on the other hand, the Commissioner of Police and the State. Specifically, the statement of claim failed to plead that Inspector Pomoso and the eight accompanying officers acted in the course of their employment in conducting the raid and, further, that pleading s 1 of the Wrongs (Miscellaneous Provisions) Act 1975 (Wrongs Act) was insufficient to create the nexus or connection.
(2) The first respondents, in conducting the raid, acted in a manner that was not sanctioned, supported or authorised by the Commissioner of Police or the State, such that they could not be vicariously liable for the actions of the first respondents.
13. The primary Judge delivered an ex tempore decision on 1 December 2017. The reasons for his Honour’s decision can be found in the transcript of the delivery of judgment.
14. His Honour noted that it was unclear whether the raid was “for the purpose of arresting the perpetrators, the people who were interfering with the transport and stealing the fuel or [whether the raid was] for apprehending the alleged perpetrators and bringing them to justice”. His Honour observed that the reason for this lack of clarity was that the respondents provided no affidavit evidence to answer the allegations made against them.
15. His Honour further noted that the “usual conclusion” to be drawn from the absence of evidence on the part of a defendant or respondent is that “they do not dispute what is claimed”. However, Counsel for the respondents had cross-examined the appellants’ witnesses and, in the opinion of the primary Judge, such an exercise could not be done properly without counsel having “evidence in his arsenal of defence materials”.
16. The primary Judge stated that the applicable principle of liability was that an employer is vicariously liable for torts committed by the employee when the employer has authorised or ratified them, or when the tort was committed in the course of the employer’s work.
17. In relation to the first argument raised by the respondents, the primary Judge stated:
... I am satisfied that there was no nexus, no connection between the alleged servants of the State and the State itself, the ultimate employer. Law and procedural rules require that there be proper pleadings and from proper pleadings, it can be demonstrated to the court that there is indeed a proper cause of action. I have accepted the State’s argument on that absence of pleading as to establish the nexus, the proper nexus between the employer and the employee. (Transcript p 58 ll 11-17.)
18. In relation to the second argument of the respondents, the primary Judge relevantly found as follows:
... I am satisfied from the discussions on the doctrine of vicarious liability, on the principles of vicarious liability as enunciated in the various cases within the jurisdiction and outside the jurisdiction that what Inspector Timothy Pomoso and his eight members, his subordinate, the members of the Royal Papua New Guinea Constabulary did was outside the authority, outside the sanction of their proper employment. They had not been properly authorised. What they did whilst pretending to be in pursuit of people who might have been hijacking those fuel trucks and siphoning of fuel from them or stealing fuel from them as was claimed, they did completely unnecessary. They embarked upon a course of action that was not necessary, it was not required. It was not associated in any way with investigating any possible commission of criminal offence in relation to hijacking those trucks that were supposed to go to Porgera.
The Inspector himself was investigated and charged. The incident was subject of internal investigation such that it was characterised as amounting to gross negligence. So the official attitude towards the activities of Inspector Pomoso and his eight members suggest that they were in purported exercise of police powers in relation to the hijacking of those fuel transporters. They did something different and beyond. It was massive. The raid was massive in purported exercise of State powers.
To give support to this conclusion with respect is of course, the unchallenged evidence of the villagers and more particularly, the four witnesses who swore affidavits that had not been challenged, the depositions having not been challenged that there were breaches, breaches of the Search Act and breaches of the Arrest Act. There was an unauthorized entry into the villages in the first instance. They were not armed with search warrants, they were not armed with arrest warrants but they were armed with dangerous weapons and armed with an intent to destroy rather than in pursuance of their powers under the Police Act and their powers under the Search and Arrest Act to investigate who were the people who were hijacking these fuel transporters. Did these people come to those two villages that would have been the central focus of the police investigation?
Destroying personal, private properties as well as other properties such as dwellings, animals, domestic and farm and inflicting physical injuries, that was not investigating who the culprits were and if indeed, if they were culprits from that locality, did they belong or did they come to – or rather from the two villages, that would have been part and parcel of a police operation for the purpose of apprehending suspects. Apprehending suspects firstly and then continue with the investigation to find out whether or not these suspects were in fact the people who were committing those offences on the roads in relation to the Porgera Joint Venture’s fuel trucks.
On all of those bases, it is my respectful conclusion that the second and third defendants, that is the Commissioner for Police and the Independent State of Papua New Guinea cannot be held vicariously liable. The only people who were liable would be the police officer together with the eight members in their individual and joint capacity.
(Transcript pp 58-59.)
SUPREME COURT PROCEEDINGS
19. On 9 January 2018, the appellants filed a notice of appeal in this Court. On 31 August 2018, the appellants filed a supplementary notice of appeal in terms which did not differ materially from the first notice. The appellants rely on the following grounds:
(a) After having correctly found that, the First Respondents (8 Policemen) had illegally raided the Appellants’ Yakananda Village on the 05th August 2004 and unlawfully killed a person and injured the two (2) Principal Respondents and their personal properties including livestock of the Lalum and Lutipa clans of Wabili Tribe of Wabag District Enga Province, the learned trial judge erred in law in holding that the Second and the Third Respondents are not vicariously liable to the Appellants to pay damages;
(b) The learned trial judge erred in law in not holding that, at all material times on the 05th August 2004, the First Respondents were performing their official police duties as servants and agents of the Second and the Third Respondents and therefore, the Second and the Third Respondents are liable in damages to the Appellants as [respondeat] superior of the First Respondents;
(c) The learned trial judge erred in fact or in law in holding that the Appellants’ pleadings do not create a nexus between the First Respondents’ actions to the Second and the Third Respondents on vicarious liability basis without referring to which of the four (4) pleadings in WS No. 152 of 2007 and WS No. 181 of 2007 creates sufficient nexus between the Respondents to create vicarious liability arising for the Second and the Third Respondents as [respondeat] superiors. Further, the learned judge erred in law in raising the issue at the time of trial when such an issue should have been dealt with under Order 12 Rule 40 (1) (a) of the National Court Rules and or whilst this issue was not being raised by the Respondents in their defence. In any event, the pleadings do clearly show vicarious liability arising for the Second and the Third Respondents for the action or omissions of the First Respondents on the 05th August 2004 at the Appellants’ Yakananda Village of Wabag District. Enga Province, therefore; the learned trial judge erred in fact or law in holding the Appellants’ pleadings do not establish a cause of action against the Second and the Third Respondents.
(d) The learned trial judge erred in fact or in law in holding that the actions or omissions of the First Respondent on the 05th August 2004 at the Appellants’ Yakananda village were pretending to be in pursuit of criminals when there was no such evidence except there being evidence of the First Respondents in their capacity as policemen were acting as agents and servants of the Third Respondent clearing a road block and chasing out and running after supposed thieves who were accused to have stolen fuel tanker that was going to Porgera on that day.
20. The appellants sought the following relief in the supplementary notice of appeal:
(a) The Appeal is upheld
(b) The National Court Order dated the 01st December 2017 in the herein consolidated proceedings be set aside or quashed
(c) The Third Respondent is vicariously liable in damages to the 75 Appellants;
(d) All damages for 75 Appellants as pleaded in the (4) National Court proceedings numbered WS No. 150, 151, 152 and 181 of 2007 be assessed by the National Court by another Judge;
(e) The Appellants’ costs of the National Court proceedings and this proceedings be paid by the Third Respondent after tax, if not agreed; and
(f) Any other orders deem appropriate to this Honourable Court
SUBMISSIONS OF THE PARTIES
21. The appellants submitted, in summary:
22. The second and third respondents submitted, in summary:
CONSIDERATION
23. Ultimately, two key issues arise for consideration in this appeal:
(1) Whether the pleadings disclosed a cause of action in law for vicarious liability against the second and third respondents (ground of appeal (c)); and
(2) If yes – whether vicarious liability has been established against the second and third respondents (grounds of appeal (a), (b) and (d)).
24. Having made this point, if the appellants are unsuccessful in respect of the first issue, it follows that the pleadings will not support findings of vicarious liability against the second and third respondents. The result is that the appeal will be dismissed.
1. Whether the pleadings disclosed a cause of action in law for vicarious liability against the second and third respondents
25. Section 1 of the Wrongs Act relevantly provides:
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.
26. Relevant authorities addressing this section, particularly in circumstances where claims are made against the State for conduct of police, are Pinda v Inguba [2012] SC1181 and Kisa v Talok [2017] SC1650.
27. In Pinda, the relevant facts were set out at [1] as follows:
The appellant sued the respondents for negligent actions by members of the police force for conducting an alleged illegal raid in Wabag town. He alleged on 24th December 1997, a group of policemen from Wabag police station entered his two stores, destroyed and looted his store goods. As a result he suffered loss and sought damages against the respondents in the National Court. On 25th July 2003, default judgment was entered against the respondents with damages to be assessed.
28. The Court at first instance had dismissed the primary proceedings on the basis that the appellant failed to plead that the police were acting in the course of, and within the scope of, their employment, or while performing, or purporting to perform, functions conferred on them by law.
29. The Supreme Court relevantly noted at [7]:
The final ground is that, the finding of the trial judge in relation to the failure to plead the nexus or connection between the policemen and the second respondent was wrong because the pleadings in the amended statement of claim sufficiently established that the persons who conducted the raid were policemen from Wabag police station and that they 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.
30. In considering this ground, the Supreme Court relevantly observed:
(a) the policemen as servant or agents of the second respondent committed the tort of negligence during the course and within the scope of their employment: section 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act, Ch 297; and
(b) the policemen as officers of the second respondent committed the tort of negligence while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law: section 1(4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297.
31. Similarly, in Kisa, the Court at first instance had dismissed the proceeding partly because the statement of claim did not disclose a cause of action for vicarious liability against the State. This was in turn because the statement of claim in that case failed to plead s 1(1) and (4) of the Wrongs Act and failed to plead that the relevant employee injured the claimant whilst acting in the course of his duties.
32. It was contended in Kisa that Pinda was wrongly decided because there was no legal requirement to plead s 1 of the Wrongs Act or to plead that the relevant employee was acting in the course of his duties when he allegedly shot the claimant.
33. The Supreme Court determined this argument as follows:
34. Turning now to the present appeal, as we noted earlier, there were four proceedings which were consolidated in the National Court.
35. The statement of claim filed in proceeding WS 150 of 2007 relevantly pleaded:
...
36. The statement of claim filed in proceeding WS 151 of 2007 relevantly pleaded:
...
37. The statement of claim filed in proceeding WS 152 of 2007 relevantly pleaded:
...
38. The statement of claim filed in proceeding WS 181 of 2007 relevantly pleaded:
...
...
39. Only the statement of claim in proceeding WS 151 of 2007 pleaded the specific provision of the Wrongs Act, being s 1. However, the second and third respondents accepted in their closing submissions in the primary proceedings that the statements of claim pleaded s 1(1) of the Wrongs Act. This remains the position of the second and third respondents in this appeal.
40. To the extent that, before the primary Judge, the respondents submitted that the State could never be vicariously liable for a wrongful act committed by a police officer, this was clearly incorrect in light of the findings of this Court in Nare. However, a party which seeks to claim such vicarious liability must plead it.
41. The appellants submitted that, by pleading relevant facts in the respective statements of claim, a relevant nexus in each claim was established, connecting the actions of the first respondents to the second and third respondents. However, when examining the statements of claim in light of the principles explained in Pinda and Kisa, the following becomes apparent:
42. Historically, the Courts have, for good reason, emphasised the importance of the pleadings defining the issues between the parties. As Jessel MR observed in Thorp v Holdsworth [1876] UKLawRpCh 167; (1876) 3 Ch D 637 at 639:
The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules of Order XIX was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.
43. As Kandakasi J (Sheehan J agreeing) more recently observed in Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] SC694:
The law on pleadings in our jurisdiction is well settled. The principles governing pleadings can easily be summarized in terms of, unless there is foundation in the pleadings of a party, no evidence and damages or relieves of matters not pleaded can be allowed... As the judgement in Motor Vehicles Insurance (PNG) Trust v James Pupune (supra) at p 374 said in summary, pleadings and particulars have the object or functions of:
"1. they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it;
2. they define the issues for decision in the litigation and, thereby, enable the relevance and admissibility of evidence to be determined at the trial; and
3. they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. See Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664."
44. This principle was recently restated in Kipahi v Nambos [2020] N8437 at [33]. It underpins the decisions in Pinda and Kisa.
45. There has been authority in recent times in this Court emphasising that the rules of Court are the “handmaiden of justice, not its master”: Yakasa v Piso [2014] SC1330 at [60]. Their Honours in that case further observed:
The rules of court with respect to pleadings are directed to the end of achieving procedural fairness but, where it can be seen that, in the circumstances of a particular case, procedural fairness has been achieved, albeit without strict compliance with the rules of court, it would be to elevate form over substance to set aside the resultant relief. The true position is as stated by Mason CJ and Gaudron J in Banque Commerciale SA (EnLiqn) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286-287: “The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v. Mount Oxide Mines ltd. (In liq.), per Isaacs and Rich JJ. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. See, e.g., Browne v. Dunn; Mount Oxide Mines. Ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted. It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground such an inference.
46. The appellants strongly argue that the nature of their case was plain – namely that they claimed vicarious liability in the second and third respondents for the conduct of the first respondents. Notwithstanding the general observations of the Supreme Court in Yakasa, however, the flaws with this aspect of the appellants’ argument immediately become apparent.
47. First, the arguments of the appellants directly conflict with the principle explained in Pinda and Kisa that a claimant must specifically plead that relevant conduct was in the course of, and within the scope of, their employment (or while performing, or purporting to perform functions conferred on them by law) in order for vicarious liability to be attributed. Clearly this was not the case here.
48. Second, this is not a case where, for example, the matter proceeded on a certain basis with the consent of all parties irrespective
of the pleadings. That the appellants did not specifically plead vicarious liability was raised, and was the subject of reliance,
by the respondents at first instance. Insofar as we are aware, no application to amend the statements of claim was made by the appellants,
to regularise their pleadings in order to plead vicarious liability in the terms required by such authorities as Pinda and Kisa.
49. Third, the statements of claim seem to plead relevant evidence, however, pleading evidence is not the same as pleading material
facts. It is trite to observe that, in pleading a statement of claim, the plaintiff must allege enough material facts to disclose
a cause of action (see discussion in Bernard Cairns, Pleadings and case management (2017) 142 Precedent 4). Pleading that the first respondents engaged in conduct whilst in uniform, with police-issued weapons and police-marked cars, does
not plead material facts disclosing a cause of action against the second and third respondents for vicarious liability. Such a pleading
merely sets out the evidence upon which the material facts rely. As reiterated in Pinda and Kisa, vicarious liability can only be attributed to an employer for, inter alia, conduct of an employee in the course and scope of his or her employment, and such material facts must be specifically pleaded. A
claim that an employee had acted in the course of his or her employment could, for example, be countered by a defence that the employee
was “on a frolic of his own” as explained by Diplock LJ in Morris v C W Martin & Sons Ltd [1966] 1 QB 716 at 733-734. In the absence of a properly framed pleading by the appellants, however, there was no scope, nor reason, for the respondents
to put forward a defence to that effect.
50. In our view the primary Judge was correct to dismiss the proceedings against the second and third respondents.
51. In such circumstances, it is unnecessary for us to consider the question whether the second and third respondents were vicariously liable for the conduct of the first respondents.
CONCLUSION
52. The appropriate order is to dismiss the appeal, with costs.
____________________________________________________________________
Niu Age Lawyers: Lawyer for the Appellants
Solicitor General’s Office: Lawyer for the Respondents
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