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Tupi v The State [1997] PGNC 158; N1654 (10 December 1997)

Unreported National Court Decisions

N1654

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 270 OF 1993
BETWEEN: HELEN TUPI
PLAINTIFF
AND: THE STATE
DEFENDANT

Waigani

Kapi DCJ
8 December 1997
10 December 1997

CIVIL SUIT – Claim for damages against the State under Wrongs (Miscellaneous Provisions) Act (Ch 297), s 1 (a) – plaintiff must show members of the Defence Force were acting within the scope of their functions.

Counsel

M. Kouro for the plaintiff

J. Kawi for the Defendant

10 December 1997

KAPI DCJ: The plaintiff resides at the Vadavada Settlement in Port Moresby. The plaintiff was asleep in her house at the settlement when at about 4 am on the 5^th March 1992 a group of men arrived in a vehicle and set fire to her house. The house and all her belongings were destroyed by fire.

The plaintiff sued the State on the basis that the act of setting fire to the house was committed by the members of the Defence Force who are agents or servants of the State pursuant to s 1 (a) of the Wrongs (Miscellaneous Provisions) Act (Ch 29p>

Several issues sues arise for consideration in this action, namely, (1) whether the men who set fire to the house were memof the Defence Force (2) whether the members of the Defence Force are agents/or servants ofts of the State (3) whether, members of the Defence Force were acting within the scope of their duties or functions when they burnt down the house in question.

The plaintiff gave evidence on her own behalf and called her son to prove that the act of setting fire to the house was committed by the members of the Defence Force. Their evidence may be briefly summarised as follows. At about 4 am a group of men arrived in a six wheel vehicle. Some were in full army uniform and others were wearing army trousers with some kind of civilian shirts. They did not give a full description of the uniform but the men were described as wearing green uniform and were wearing boots. The two witnesses were unable to identify any of the men nor were they able to give the registration number of the vehicle in which the men came.

Counsel for the State did not call any evidence but simply suggested in submissions that anyone could have stolen the army uniform and committed the unlawful act. I find that I do not have to decide this issue as it will be apparent that this action cannot succeed in any case when I come to consider the third issue.

Lawyers for both parties appeared to have assumed that members of the Defence Force are agents or servants of the State. There is some authority for this proposition Kolta Development Pty Ltd & Great Happiness Seafood Pty Ltd & Patrick Kolta v PNG Defence Force & The State (Unreported judgement of the National Court dated 5^th September 1996, N1470).

Even if the people who committed the act of burning the house were members of the Defence Force and that they are agents or servants of the State, the plaintiff must show that the members of the Force were acting within the scope of their functions. In this regard counsel for the plaintiff conceded at the end of the plaintiff’s case that there was no evidence to show that the members of the Force were acting within the scope of their functions during the night in question. If anything, they were acting completely outside the scope of their functions. The same conclusion was reached in somewhat similar circumstances (see Kolta Development Pty Ltd & Great Happiness Seafood Pty Ltd & Patrick Kolta v. PNG Defence Force & The State (supra)). I therefore find that State cannot be vicariously liable for the actions of the members of the Force in the circumstances of this case. I would dismiss the action.

Lawyers for the Plaintiff: Public Solicitor

Lawyers for the Defendant: Solicitor General