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Pembaro v Baki [2015] PGNC 281; N6224 (7 December 2015)

N6224

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 1259 of 2009

BETWEEN

PAGASA PEMBARO
Plaintiff

AND

GARRY BAKI AS COMMISSIONER FOR POLICE
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Kandakasi, J.
2014: 20th February
2015: 7th December

TORTS – Physical assault by unidentified police officers - Need to name and plead with sufficient particulars details of primary tortfeasor and basis for a case for vicarious liability against the State – Failure to – Claim must fail – Claim dismissed

Cases cited:

Andrew Daiva and Ome Ome Forests Ltd v. Lawrance Pukali & Anor;

Desmond Huaimbukie v. James Baugen (2004) N2589

Lina Kewakali v. The State (2011) SC1091
Ome Ome Forests Ltd v. Ray Cheong & Ors (08/10/02) N2289
Peter Aigilo v. Sir Mekere Morauta & Ors (2001) N2102
Revit Mangoi v. MVIT [1990] PNGLR 327
Ruben Bornright Gabien v. Watkins Toloup (2012) N5244
Stanley Magi Eremugom v. Daniel Tande - Acting Simbu Provincial Police Commander (2005) N2889
The Application of Miawe Andakundi (1992) N1087

Counsel:

M. Pokia, for the Plaintiff.
I. Mugugia, for the Defendants.

RULING ON PRELIMINARY ISSUE

7th December, 2015

1. KANDAKASI J: The Plaintiff is claiming for damages for physical assaults occasioned to him in the form of hits and punches by an unidentified policeman on 18th September 2005, outside the then Port Moresby Rugby League Oval. About two (2) years later on 07th October 2007, the Plaintiff issued this proceeding. In its defense, the State pleaded a failure by the plaintiff to identify the primary tortfeasor. On the basis of which the State claims there is no proper foundation for vicarious liability against it. Following a number of directions hearing, the parties agreed to address that point as a preliminary but determinative point for the Court to rule on first.
   

Issue for ruling

2. Thus the issue presented for the Courts consideration and determination is this:
   

Whether a claim against the State that fails to name and plead a claim against a particular policeman can be dismissed or struck out for being vague and too general a claim?

3. The parties were directed and they filed their respective written submissions. I am most grateful for the respective learned counsel's submissions' which have assisted me to come to a decision on the issue.
   

Cause for the issue

4. The issue arose in view of the recent Supreme Court decision in Lina Kewakali v. The State.[1] This was a unanimous decision of the Court. Relevantly, the Court said:
   

"...we view the provisions of s. 1(2) of the Wrongs Act provides by necessary inference that a servant or agent of the State who has been alleged to have committed the wrong, must be named as a party or a co-defendant. ... if a plaintiff does not name the alleged principal tortfeasor there is .. no nexus or connection so there will not be a cause of action against the nominal defendant (the State). Thus ...to do justice to all parties, the Plaintiff must name the servant or agent of the State or the alleged tortfeasor and must also plead in the Statement of Claim the nexus or connection between the principal tortfeasor and the nominal defendant. This is because to succeed in having the State held liable for the tort of a policeman, the Court has to be satisfied that:

(a) The policeman as a servant or agent of the State, committed the tort during the course and within the scope of his employment (s.1 (1) (a) Wrongs Act);

(b) The policeman as an officer of the State, committed the tort while performing or purporting to perform functions conferred or imposed upon him by statute or the underlying law (s.1(4) Wrongs Act; The Independent State of Papua New Guinea v. David Wari Kofowei and Ors [1987] PNGLR 5); David Wari Kofewei (supra) and Abel Tomba v. The Independent State of Papua New Guinea (1997) SC 518 did not say that vicarious liability automatically follows against the State as soon as the wrong doer is found as an employee of the State. That is only one-half of the consideration. They must have been found to have been acting within the scope of their employment."

5. The Court went on to say:
   

"Furthermore, if a plaintiff's cause of action or his entitlement to sue depends on a statute, he must plead all facts necessary to bring him within that statute ((Sear v. Lawson (1881) 16 ch. D. 121; Read v. Brown [1888] UKLawRpKQB 186; (1988) 22 Q.B.D 128) which also includes the specific pleading of the statute and the provision of that statute.

42. In saying so, we do not for the moment suggest that, for instance, if there is a police raid that all the policemen involved should be named. On the contrary it would be sufficient to name at least one or two of the policemen involved as co-defendants or follow what was done in Pyali's case, that is, name the immediate commander, so as to bring into play the principles of vicarious liability between the principal tortfeasor and the nominal defendant.

43. Even where the plaintiff is unable to identify the principle tortfeasor, for example if such a raid occurred in the dark and middle of the night, it would still be necessary to establish the nexus by naming the commander as in Pyali's case. The plaintiff may need to investigate to satisfy himself which station, unit or division the policemen came from to identify the commander of the station, unit or division and name him as a defendant. Otherwise a pleading claiming unlawful conduct by policemen not named as parties to the proceedings, could well be struck out as general and vague."

Discussion of relevant principles

6. The Supreme Court in this decision reinstated or if not, cleared the dust that has been allowed to bury the fundamental principles upon which the doctrine of vicarious liability works at common law, the source of the doctrine. In particular, the decision makes it clear for one of the three fundamentals that enables the doctrine to function. The principle in question is this. In order for an employer to be held vicariously liable for the actions or inactions of his servants or agents, the primary tortfeasor must be identified or established as the employer's employee. The remaining two fundamental principles are that at all relevant times the employee was:
   

(a) acting within the scope of his employment or the purpose for which he was employed; and

(b) in so doing, he was furthering the business or interest of the employer.

7. In Peter Aigilo v. Sir Mekere Morauta & Ors,[2] I referred to the doctrine generally in the context of determining what amounts to someone "acting in the best interest of Papua New Guinea." I answered that question in these terms:
   

"Whatever factors the decision maker or the State takes into account, they must be guided by the general principle. The principle is that the step to be taken is indeed and in fact for the benefit of Papua New Guinea or the State to the exclusion of the personal interest of those who are making the decision or taking the step.... A failure to ensure that the step taken is "for the benefit or in the best interest of Papua New Guinea" renders the person responsible for the action or inaction personally liable for any damages or loss that may arise."

8. I went on to observe that, the views thus expressed accorded well "with the well known principles governing the doctrine of vicarious liability" and said:
   

"There are numerous cases on this doctrine in Papua New Guinea, which need not be considered in any detail save only to refer to them. Examples of this line of cases include Pike Dambe v. Augustine Peri and The State [1993] PNGLR 4, Bogil Guma v. The State & Ors N262 and Dalin More v. The State & Ors N1736. These cases discuss the doctrine at some length including its reception into Papua New Guinea. Under this doctrine an employer or a principle can be found vicariously liable in some instances while in others an employer or a principal cannot be held liable.

It is an accepted principle that, an employer cannot be made liable for the acts of his servant, if the servant acted outside the scope of his employment. In other words, if an employee goes on a frolic and detour of his own and causes damages to a third party, the employer will not be liable for the acts of the employee. This principle has also been already applied in a number of cases in our jurisdiction: see for example Kolta Development Pty Ltd & Great Happiness Seafood Pty Ltd v. PNG defence Force and The State N1470..."

9. Later in a number of other cases as in Andrew Daiva and Ome Ome Forests Ltd v. Lawrance Pukali & Anor; Ome Ome Forests Ltd v. Ray Cheong & Ors[3] and Desmond Huaimbukie v. James Baugen[4] I emphasized the need to plead and prove an employee being in the course of his employment furthering the business or interest of the employer to attract liability against the employer.
   
10. Other judges in the context of exemplary damages have expressed similar views. Kawi J., in Ruben Bornright Gabien v. Watkins Toloup,[5] speaking of the subject said:
    

"Exemplary damages are awarded as measures of public indignation against excessive Police conduct, especially conduct involving unauthorized use of force. It is intended to ensure that individual Police officers are made to take stock of and be accountable for their individual conduct. Since the landmark decision of the Supreme Court in Abel Tomba-v- The State (1997) SC 518, the courts have been quite reluctant to award exemplary damages against the state for abuse of Police power.

11. Batari J in Stanley Magi Eremugom v. Daniel Tande - Acting Simbu Provincial Police Commander[6] summed up the position in these terms:
    

"If State agents or servants had deliberately exceeded their legitimate powers under any legislation, policy direction or instructions, the State and in the ultimate, the people of Papua New Guinea should not be held responsible on their behalf. In the words of Kirriwom, J in Tony Wemin & Ors v The State (2001) N2134:

'... I do not think the people of Papua New Guinea through the State should be held punitively liable for the criminal acts of a few hooligans amongst a majority of good law abiding policemen.'

The State is indeed protected from liability for exemplary damages under s. 12 of the Claims by and Against the State Act 1996 where there was no severe breach of a constitutional right as observed by Kapi, DCJ (as he then was) in John Yama & Ors. v Mathew Minok & Ors... N2198."

12. The above and other decisions on exemplary damages, amongst others highlight the point that, if any employee of the State conducts in a way that is clearly outside, the law and hence outside the purpose for which he or she was employed and that result in harm damage or injury to a third party, the employee becomes personally liable. Apart from the purpose for which exemplary damages can be awarded in certain cases, the principles governing it emphasises the point that, all action or inaction that that does not benefit or further an employer's business or interest and one which falls outside an employee's scope or purpose of employment, whether deliberate or inadvertent is clearly wrong. Such conduct or behavior attracts no liability against an employer but the employee personally.
    
13. The Supreme Court in its unanimous decision in Jack Pinda v. Sam Inguba, the Police Commissioner and The Independent State of Papua New Guinea,[7] finally endorsed this position of the law. There the Court said:
    

"10. In this case, the cause of action was based on the tort of negligence. To succeed in having the second respondent held liable for the negligent actions or omissions of the policemen, the National Court has to be satisfied that:

(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.

11. The trial judge found that the pleadings in the amended statement of claim were lacking because while the appellant pleaded that the respondents were vicariously liable for the acts or omissions of their servants or agents and/or employees pursuant to section 1(1) of the Wrongs (Miscellaneous Provisions) Act, Ch 297, he did not plead that they committed the alleged negligent acts or omissions during 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."

14. On its part the Supreme Court found:
    

"... no statement alleging that the policemen 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 under the principles of vicariously liability ... This is a fundamental omission because its omission means that there is no nexus or connection between the policemen and the first respondent and ultimately the second respondent (State) to hold it vicariously liable in damages.

13. In other words, if the appellant is alleging that the persons who raided his stores were servants, agents and/or employees of the State because they were policemen, it is not sufficient to only plead in the amended statement of claim that they were policemen but also plead that when they raided his stores, 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 .... In our view, the trial judge was correct in dismissing the proceedings."

Application of the principles to present case

15. Learned counsel for the Plaintiff Mr. M Pokia argues against the application of the decision in Lina Kewakali's case to his client's case by arguing that a claim should not be defeated merely because the primary tortfeasor has not be named. Instead, he tries to bring into play the principle of res ipsa loquitor in cases where it is difficult to pin point the torfeasor where for instance a poisonous substance is found in a canned tin of fish and is hard to tell who in the canning factory's production line may be responsible for such eventuality.
    
16. There are three (3) problems with this submission. Firstly, the decisions of the Supreme Court are binding on this Court. This Court cannot come to a contrary view from that of the Supreme Court following the hierarchy of Courts as set out in s. 155(1) and the other relevant provisions of the Constitution. Besides, the Supreme Court's decisions referred to above are sound in law. Counsel for the Plaintiff has not made any contrary submissions or demonstrated in any manner or form how the decisions could be wrong. Hence, unless the Plaintiff has clearly pleaded and named his primary tortfeasor, the State cannot be liable. It would therefore be a futile exercise for all concerned to let this matter proceed any further in the judicial process. Instead, it should be ended here to avoid the unnecessary further taking up of time and costs.
    
17. The second problem with the Plaintiff's submission is this. The Supreme Court did discuss cases in which it might be difficult to identify the primary tortfeasor and have him named as a party in the proceedings. In such cases, the Court did provide a way out for potential plaintiffs and that is for the plaintiffs to carry out investigations to establish the identity of the tortfeasor and failing that, name the commanding officer or the superior directly responsible for the alleged tortfeasor or tortfeasors at the relevant time. This is not such a difficult thing to do.
    
18. In this regard, I note that, it has been long established in formal judgments that people in PNG are very quick to compensation.[8] Hence, a person who claims to have been injured by another's negligence as in negligent driving, the victim or his relatives would be quick to do something about compensation. If they did that, it would be easy to establish the identity of the primary torfeasor when it is all fresh in the victim and the witnesses mind. This they would do by first doing everything they can to establish the identity of the person responsible promptly. If despite such efforts the offender cannot be identified, the victim could check for who might have been on duty from the duty rosters for the relevant police station or relevant State establishment or the relevant unit or section's commander or leader. Any lack of cooperation there could be overcome by an appropriate application to the Court for orders for the release of such information. If despite such best endeavors it is still not possible to establish the tortfeasor or his commander's identity, a victim of wrongful conduct may still be able to sue, pleading amongst others his inability to establish the identity of the offender, in addition to pleading all the other relevant essential elements of his claim.
    
19. Whilst on this point, I note that there is indeed, legislative provision recognizing such situations as is the case with s.54 (1) (c) of the Motor Vehicles (Third Party) Insurance Act. This provision allows a victim of a motor vehicle accident to sue the Motor Vehicles Insurance Limited "where the identity of the motor vehicle cannot after due inquiry and search be established." Case authority suggest that, the kinds of due search and inquiry undertaken needs to be pleaded and proven in addition establishing the other essential elements such, date, time, place and a description of what happened and how the plaintiff came to his injuries in order to succeed in such a situation.
    
20. The third problem with the Plaintiff's submission is this. Identifying and naming the primary tortfeasor is one of the three (3) essential elements as set out in paragraph six (6) above. The other two (2) elements also need to be properly pleaded with sufficient particulars. The pleadings merely suggest that the unidentified policemen were in the course of official duties as policemen. But the question is, were they acting within the scope of their employment and were they furthering the business or interest of the State in doing what they were alleged to have done?
    
21. The primary duty and responsibility of the States is amongst others, to provide a safe and secure living and working environment for their citizens and others within their respective territorial jurisdictions. An important element is the safety and security of everyone, which is usually vested in the nation's Police Force. It is certainly not the duty and responsibility of the any policeman or woman to destroy or otherwise cause any harm to one's person or property. Any policeman or woman engaging in any such activity would be clearly acting on a frolic and detour of his or her own, unless specifically and expressly authorized by law as in the case of confiscation of illegal substances and having them destroyed.
    
22. In this case, learned Counsel for the Plaintiff, Mr. Pokia concedes that, his client has not named the primary tortfeasor. Also, the Plaintiff has not pleaded anything that goes into his due search and inquiry to establish the identity of the person or persons who committed the torts against him. In these circumstances, counsel for the Plaintiff submits:
    

"If the Court rules that the plaintiff should have named the actual tortfeasors then the State will not be held vicariously liable for the torts and breaches of the Constitution committed by the unidentified policemen."

Alternative argument and its consideration

23. At the same time however, Counsel for the Plaintiff submits that his client is seeking to attach liability against the State on the basis that the State was negligent in the provision of appropriate levels of training for policemen. This claim of negligence he submits is directly directed against the State. Counsel goes on to argue that, this should prevent the Court from dismissing his clients claim.
    
24. With respect this argument fails to note that there must first be a person in the position of a policeman responsible of the actions or inactions that led to his clients harm or loss and damages. Not all policemen and women are involved in wrongful conduct or behavior. We have some good and dedicated police officers who are conducting or behaving themselves appropriately and are not attracting any vicarious liability situation against the State. That should be speaking in volumes against the suggestion that the State is generally careless in its training of police officers. Hence, it is inappropriate to make a general statement.
    
25. Instead, in accordance with well accepted principles of law, in our country, the plaintiff who is alleging negligence must be able to plead that with sufficient particulars. In particular, it would be fair and reasonable to expect the plaintiff to plead what are acceptable minimum police training standards and guidelines. Not only that, it would similarly be expected of the plaintiff to plead with particulars, the kind of training the State is providing for police officers in PNG and how that falls below any acceptable minimum training standards or level. Further, the plaintiff would be required to plead who were the police officers responsible for his harm or loss and damages and how the State failed to provide them with the minimum acceptable level of training, and how they were allowed to go on duty as police officers without having received the required level of training.
    
26. The end result of these few consideration is simple. The argument for the claim in negligence to survive without naming the police officers whom the State is alleged to have failed to properly train cannot be sustained. Instead it falls with the failure to properly identify, name and plead the primary tortfeasors.
    

Decision on the preliminary point

27. Naming the policeman who was the primary tortfeasor, pleading his particular conduct and such conduct or behavior coming with the scope of his employment and at the relevant time, he was furthering the business or interest of the State, his employer is fundamental and critical. The Plaintiff has failed in both identifying and naming the primary tortfeasor and pleading the basis for claiming vicarious liability against the State. The alternative argument that the claim in negligence in training police officers generally can survive against the state, is also flawed in that. Such a claim should be pleaded with sufficient particulars in terms of minimum or standard police training standards and guidelines, the primary tortfeasor who has not being properly identified did not receive such training and was deployed and that the lack of proper training directly led to the alleged negligent or torteous actions. There is no such pleading. In the circumstances, the claim is seriously flawed, by reasons of which it can not be allowed to proceed any further and must be dismissed.
    
28. Ultimately therefore, the issue raised is answered in the affirmative. Accordingly, I order a dismissal of the proceeding. Costs of the proceedings are awarded to the defendant to be agreed within 14 days if not taxed.

___________________________________________________________
Mirupasi Lawyers: Lawyers for the Plaintiffs
Solicitor General: Lawyers for the Defendants

¹ (2011) SC1091.
^[2] (2001) N2102
^[3] (08/10/02) N2289.
^[4] (2004) N2589.
^[5] (2012) N5244.
^[6] (2005) N2889.
^[7] (2012) SC1181, per Yagi, Makail and Kawi JJ.
^[8] See for example the decisions in: The Application of Miawe Andakundi (1992) N1087 and Revit Mangoi v MVIT [1990] PNGLR 327.