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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS (HR) NO 26 OF 2020
KINDUS LARI FOR HIMSELF & SIX OTHERS
Plaintiffs
V
CONSTABLE NATHAN MANIKUMBU,
CONSTABLE AIDEN POSONG & GARRY KATAMOG
First Defendants
DAVID MANNING, COMMISSIONER OF POLICE
Second Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
&
WS (HR) NO 28 OF 2020
STORICK SIMON, MAX LARI RAMBO PETER & APPO ANIKI
Plaintiffs
V
CONSTABLE NATHAN MANIKUMBU,
CONSTABLE AIDEN POSONG & GARRY KATAMOG
First Defendants
DAVID MANNING, COMMISSIONER OF POLICE
Second Defendant
DEPARTMENT OF POLICE
Third Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant
Waigani: Cannings J
2024: 4th July, 4th October, 1st November
HUMAN RIGHTS – assaults on group of men by police – death of one man assaulted – whether death caused by assaults – claims for human rights breaches.
CLAIMS BY AND AGAINST THE STATE ACT – whether commencement of two separate proceedings arising from the same occurrence requires two separate notices under s 5 of the Claims By and Against the State Act.
POLICE – vicarious liability of the State for wrongful conduct of members of Police Force – whether express pleading that police were acting within course of performance of police functions required.
Three members of the Police Force who were on duty in a police vehicle chased and apprehended five men in a moving vehicle who had ignored directions to stop. In the course of apprehending the men, they assaulted them causing serious physical injuries. One of the men died three months after being assaulted. The three members of the Police Force were charged, convicted and sentenced to prison terms for offences under the Criminal Code. Two separate civil proceedings were commenced in relation to the assault incident. One was an estate claim brought by the father of the deceased on behalf of himself and other members of the deceased’s family. It was claimed that the deceased died as a result of the assault, which amounted to breaches of the deceased’s human rights, and that the defendants were liable in damages. The other proceeding was commenced by the four other men who were assaulted. They claimed damages for breaches of human rights. In the joint trial of both proceedings there was no appearance by or for the three members of the Police Force who committed the assaults. The remaining defendants presented no evidence but defended each claim on various grounds. The estate proceeding was defended on the grounds that: (a) it was a separate proceeding requiring a separate notice under s 5 of the Claims By and Against the State Act but here there was only one notice, which was in respect of the proceeding commenced by the group of four men; (b) the three members of Police Force who committed the alleged breaches of human rights committed a criminal offence, which was so far outside the scope of their authorised duties as to exclude any vicarious liability for their conduct; and (c) it was not proven that the deceased died as a result of the assault. The other proceeding was defended on grounds that: (a) the plaintiffs’ statement of claim did not expressly plead that the members of the Police Force committed the wrongful acts while acting within the scope of their employment; and (b) the three members of the Police Force who committed the alleged breaches of human rights committed criminal offences, which was so far outside the scope of their authorised duties as to exclude vicarious liability for their conduct; and (c) liability for any human rights breaches should be confined to the three members of the Police Force.
Held:
(1) As to the estate proceeding: (a) sufficient notice was given of the intention to make a claim within the six-month period after the occurrence (the assault incident) and the requirements of s 5 of the Claims By and Against the State Act were met; (b) though the commission of criminal offences by the three members of the Police Force was not within the scope of their authorised functions, they committed the offences during the purported performance of police functions and in the course of their employment, making their employer, the State, potentially vicariously liable for their wrongful conduct; (c) however, the plaintiff failed to prove that the deceased died due to the injuries received in the assault incident, therefore the proceeding was dismissed.
(2) As to the other proceeding: (a) though it was not expressly pleaded that the three members of the Police Force were acting in purported performance of police functions and within the scope of their employment, the statement of claim sufficiently pleaded that the State was being sued on the basis of vicarious liability and that the three members of the Police Force were constables employed by the State and impliedly pleaded that they were on duty; and (b) though the commission of criminal offences by the three members of the Police Force was not within the scope of their authorised functions, they committed the offences during the purported performance of police functions and in the course of their employment, making their employer, the State, vicariously liable for their wrongful conduct; (c) liability for breaches of human rights under ss 36 and 37 of the Constitution was pleaded and proven against the three members of the Police Force and the State.
(3) In summary, the estate proceeding was entirely dismissed while the plaintiffs in the other proceeding succeeded in establishing liability for human rights breaches against the three members of the Police Force and the State. A trial on assessment of damages will follow.
Cases Cited
The following cases are cited in the judgment:
Essy v Bomal (2021) SC2085
Kamuri v Pomoso (2021) SC2071
More v The State [1998] PNGLR 290
Nare v The State [2017] 1 PNGLR 366
Pinda v Inguba (2012) SC1181
The State v Manikumbu (2023) N10116
Counsel
J J Lome, for the Plaintiffs
M T Kopi, for the Second and Third Defendants in WS (HR) 26 of 2020
A Kajoka, for the Second, Third and Fourth Defendants in WS (HR) 28 of 2020
1st November 2024
1. CANNINGS J: This has been a joint trial of two separate proceedings arising from the same incident involving police.
2. The incident occurred in Port Moresby around 2.00 am on 8 September 2019. Five men were in a vehicle being driven along Korobosea Drive in the direction of Badili after a drinking session at Vadavada. They were heading home when they were intercepted by police. They were scared of the police as they had been drinking and had alcohol in the vehicle. They were directed to stop, but they did not stop. The police gave chase and eventually, after calling for reinforcements, caught up with them on the Poreporena Freeway. The police smashed the rear windscreen of the vehicle and dragged the men out of the vehicle and assaulted them badly. They were taken to Gordon Police Station where they were detained without medical treatment for several hours before being released without charge.
3. The men in the vehicle were Storick Simon (who owned and drove the vehicle), Max Lari, Rambo Peter, Appo Aniki and Nelson Lari.
4. Nelson Lari died on 28 December 2019. His biological father, Kindus Lari, has filed, as plaintiff, for himself and other family members, an estate claim, WS (HR) 26 of 2020, against the three members of the Police Force who were in the police vehicle and primarily involved in the assault incident, Nathan Manikumbu, Aiden Posong and Garry Katamog (first defendants), the Commissioner of Police (second defendant) and the State (third defendant). It is alleged in this proceeding that Nelson Lari died as a result of the injuries he received in the assault incident and that the defendants are liable in damages for the tort of negligence and breaches of human rights committed against him.
5. In the other proceeding, WS (HR) 28 of 2020, the four other men who were in the vehicle, Storick Simon, Max Lari, Rambo Peter and Appo Aniki, are the plaintiffs. They sue the three members of the Police Force who assaulted them (first defendants) the Commissioner of Police (second defendant), the Department of Police (third defendant) and the State (fourth defendant). They claim damages against all defendants for the tort of negligence and breaches of human rights committed against them.
6. The first defendants were charged, convicted (after pleading guilty) and sentenced to four years imprisonment each for offences under the Criminal Code of wilful damage to property (the motor vehicle) and doing grievous bodily harm to the five men in the vehicle (The State v Manikumbu (2023) N10116).
7. In this joint trial of both proceedings there was no appearance by or for the first defendants and they have not filed any defences.
8. The other defendants have filed a defence in each proceeding and have been represented by counsel from the office of Solicitor-General. Ms Kopi appears for the second and third defendants in WS (HR) 26 of 2020. Ms Kajoka appears for the second, third and fourth defendants in WS (HR) 28 of 2020. No evidence has been presented by the defendants. However, the defendants in each proceeding deny liability on various grounds.
9. The estate proceeding, WS (HR) 26 of 2020, is defended by the second and third defendants on the grounds that:
(a) it is a separate proceeding requiring a separate notice under s 5 of the Claims By and Against the State Act but here there was only one notice, which was in respect of the proceeding commenced by the group of four men;
(b) the three members of the Police Force who committed the alleged breaches of human rights committed a criminal offence, which was so far outside the scope of their authorised duties as members of the Police Force as to make the State not vicariously liable for their conduct; and
(c) it was not proven that the deceased died as a result of the assault.
10. The other proceeding, WS (HR) 28 of 2020, is defended by the second, third and fourth defendants also on three grounds:
(a) the plaintiffs’ statement of claim does not expressly plead that the members of the Police Force committed the wrongful acts while acting within the scope of their employment; and
(b) the three members of the Police Force who committed the alleged breaches of human rights committed criminal offences, which was so far outside the scope of their authorised duties as members of the Police Force as to make the State not vicariously liable for their conduct; and
(c) liability for any human rights breaches should be confined to the three members of the Police Force.
THE ESTATE PROCEEDING, WS (HR) 26 OF 2020
11. The following issues arise:
1 Was a separate s 5 notice required?
12. The second and third defendants acknowledge that notice of intention to make a claim against the State was given under s 5 of the Claims By and Against the State Act on 14 November 2019 on behalf of the five men who were victims of the police assaults on 8 September 2019. The notice gave sufficient details of the assault incident and was given within the prescribed six-month. However, it is argued that the notice can only be regarded as supporting the other proceeding, WS (HR) 28 of 2020. It was not a notice in respect of WS (HR) 26 of 2020. A separate notice is required for each proceeding.
13. It is argued that support for this proposition is provided by the Supreme Court decision in Essy v Bomal (2021) SC2085. A person gave a s 5 notice within the time prescribed and commenced a proceeding in the National Court, but then discontinued that proceeding and commenced a fresh proceeding that named additional defendants, pleading the same facts relied on in the discontinued proceedings. The Supreme Court by majority (Hartshorn J and Collier J, Logan J dissenting) held that there should have been a fresh s 5 notice given in respect of the fresh proceeding and because there was none, the fresh proceeding was dismissed.
14. I consider that the facts of the present case are different to those in Essy. Here, there was no discontinuance of either WS (HR) 26 of 2020 or WS (HR) 28 of 2020. Each proceeding was commenced in October 2020 and has been maintained to the date of trial. Sufficient details of the assault incident were given in the s 5 notice. There is no hard-and-fast rule arising from Essy that each court proceeding must be preceded by a separate s 5 notice. There was no prejudice to the State by there being only one s 5 notice. I dismiss the argument that the proceeding ought to be dismissed due to the absence of a separate s 5 notice.
2 Does the commission of criminal offences mean that the State cannot be vicariously liable?
15. Ms Kopi submitted that the fact that the first defendants committed criminal offences in the course of assaulting the deceased showed that they were one a “frolic of their own”, for which the State bears no liability. It is correct that there is a line of authority suggesting that if members of the Police Force act outside the scope of their lawful authority, particularly if they commit criminal offences, the State is not vicariously liable for their conduct (see eg More v The State [1998] PNGLR 290, Pinda v Inguba (2012) SC1181).
16. However, I consider that it has been superseded by the Supreme Court decision in Nare v The State [2017] 1 PNGLR 366, which requires a different approach. The Court was constituted by five Judges led by the then Chief Justice Sir Salamo Injia (Injia CJ, David J, Ipang J, Higgins J & Neill J). Its unanimous decision quashed the notion that the State could avoid vicarious liability for wrongful conduct of members of the Police Force if they went outside the scope of authorised police operations. The Court held:
... the cause of action against the State is established if:
• tortuous conduct is perpetrated by
• officers of the State, including police
• acting or purporting to act in the course of their duties.
The words “purporting to act” are of considerable significance.
It is not part of the cause of action that the offending officers be identified or be parties to the cause pleaded against the State.
17. Nare stands for the proposition that it is sufficient to plead and to prove that the wrongful actions of the police were committed while carrying out or purporting to carry out police functions.
18. In WS (HR) 26 of 2020 it is sufficiently pleaded and has been proven that the first defendants were on duty and purporting to act in the course of their duties in directing the vehicle in which the deceased was a passenger to stop and then giving chase when the vehicle did not stop and then apprehending the persons inside the vehicle including the deceased. I reject the argument that the State cannot be vicariously liable.
3 Did the police assault cause the death of the deceased?
19. To establish the estate claim the plaintiff must prove that it was the assault by police on 8 September 2019 that caused the death of the deceased on 28 December 2019. The autopsy report prepared by Dr Seth Fose is in evidence. Dr Fose reports:
In my opinion:
(1) The cause of death is bronchopneumonia due to chest infection due to infectious microbial organisms.
(2) The contributory factors are tear gas inhalation, physical police assault and fractured jaw.
(3) The evidence of injuries include fractured jaw, bruised upper lip, bruised upper gum and missing incisor teeth.
(4) The fractured jaw and incisor teeth are due to direct blunt force trauma to jaw and face due to blunt object. ...
Cause of death:
1 DIRECT CAUSE
Disease or condition directly leading to death:
(A) BRONCHOPNEUMONIA
2 ANTECEDENT CAUSES
Morbid conditions, if any, giving rise to the above cause, stating the underlying condition last:
(B) CHEST INFECTION (due to)
(C) INFECTIOUS MICROBIAL ORGANISMS
20. It is apparent that the direct cause of death was bronchopneumonia. The deceased had a chest infection due to infectious microbial organisms. It can be safely presumed that the fractured right jawbone was caused by the police assault on 8 September 2019 but it is noteworthy that this is regarded as a “significant condition contributing to the death but not relating to the disease or the condition causing it”.
21. It cannot be reasonably inferred from this autopsy report that the police assault on 8 September 2019 caused in any significant or operative way the death of the deceased. The report reveals that the deceased was 25 years old at the time of his death. I conclude that the police assault did not cause his death.
4 Does the estate claim succeed?
22. No. It must be dismissed. The plaintiff has not proven that the death of the deceased was caused by the police assault of 8 September 2019.
THE OTHER PROCEEDING, WS (HR) 28 OF 2020
23. The following issues arise:
1 Does the statement of claim adequately plead vicarious liability of the State?
24. The second, third and fourth defendants do not take issue with the part of the plaintiffs’ case that asserts that human rights breaches were committed against the plaintiffs by the first defendants, who were members of the Police Force. However, they argue that the part of the plaintiffs’ case that seeks to make the State vicariously liable for those breaches is without merit as it has not been properly pleaded.
25. It is argued that the statement of claim contains no express pleading that the first defendants committed the human rights breaches while acting within the scope of their employment. This is a fatal flaw in the plaintiffs’ case. The Supreme Court has stressed the importance of proper pleading of vicarious liability of the State in a series of cases including Pinda v Inguba (2012) SC1181, Kisa v Talok (2017) SC1650 and Kamuri v Pomoso (2021) SC2071.
26. This is a valid point. This statement of claim is not a model of clarity. It contains no express pleading that the first defendants committed the human rights breaches while acting within the scope of their employment. But is there an implied pleading to the same effect?
27. That the plaintiffs seek to make the State vicariously liable for the wrongful conduct of the first defendants is made fairly clear by the statement of claim:
28. Then, after pleading details of events leading up to the interception by the first defendants of the plaintiffs’ vehicle, the statement of claim pleads:
29. The only reasonable way to read the statement of claim is that it is being pleaded that the three members of the Police Force committed the assaults in the course of their employment while purporting to perform police functions. It meets the standards of pleading required.
30. When I say it meets those standards, I acknowledge that it barely meets them. But what is the alternative? I question whether in this country we should insist on standards of pleading imported from other jurisdictions. If I were to dismiss this vicarious liability claim due to poor pleading, the plaintiffs would be left without a remedy against the State. The plaintiffs would be left to pursue any damages awarded to them against the first defendants, who are in prison. The first defendants have probably been dismissed from the Police Force. It is likely that when they are released from prison, they will have no or little income or assets to meet a damages award against them. I must deal with reality. This is a Court of Justice. It is not in the interests of justice to dismiss the case against the State due to poor pleading and I decline to do so.
2 Does the commission of criminal offences mean that the State is not vicariously liable?
31. I refer to my determination of this issue in WS (HR) 26 of 2020. I follow Nare v The State [2017] 1 PNGLR 366 in which the Supreme Court quashed the notion that the State could avoid vicarious liability for wrongful conduct of members of the Police Force if they went outside the scope of authorised police operations.
32. I am satisfied that in WS (HR) 28 of 2020 it is sufficiently pleaded and has been proven that the first defendants were on duty and purporting to act in the course of their duties in directing the vehicle in which the plaintiffs were travelling to stop and then giving chase when the vehicle did not stop and then apprehending the plaintiffs and assaulting them. I reject the argument that the State is not vicariously liable.
3 Were human rights breaches committed against the plaintiffs?
33. Yes, it has been pleaded and proven that the first defendants treated the plaintiffs inhumanely and dealt with them harshly and arbitrarily and in a manner that denied them the full protection of the law. The plaintiffs should have been arrested and detained and charged with failing to stop when directed to do so by the police or some similar offence. Instead the vehicle in which they had been travelling was damaged and they were assaulted badly and detained for a few hours and then released without charge. The first defendants breached the plaintiffs’ rights to freedom from inhuman treatment and the full protection of the law under ss 36(1) and 37(1) of the Constitution.
34. There is a cause of action in negligence pleaded in the statement of claim. It is a separate cause of action to the breach of human rights causes of action. It is poorly articulated and I decline to uphold that part of the plaintiffs’ case.
4 Which if any defendants are liable?
35. The first defendants are directly liable for the injuries and damage incurred by the plaintiffs due to the human rights breaches committed against them by the first defendants. The fourth defendant is vicariously liable for the same injuries and damage.
36. There is no pleading or evidence that the second defendant, the Commissioner of Police, authorised or was involved in any way in the human rights breaches that occurred. He is not the employer of the first defendants and is not vicariously liable for their wrongful conduct. The third defendant, the Department of Police, is not a legal entity and has been unnecessarily joined as a defendant and is also not vicariously liable.
CONCLUSION
37. In this joint trial, the estate proceeding, WS (HR) 26 of 2020, has failed and the other proceeding, WS (HR) 28 of 2020, has succeeded in so far as liability has been established against the first and fourth defendants. A trial on assessment of damages will follow. Both sides of the joint trial have succeeded, so it is appropriate that they bear their own costs.
ORDER
(1) As to WS (HR) 26 of 2020: the proceedings are entirely dismissed.
(2) As to WS (HR) 28 of 2020:
(a) the plaintiffs have established liability against the first and fourth defendants for damages in respect of breaches of human rights under Constitution, ss 36 (freedom from inhuman treatment) and 37 (protection of the law) as pleaded in the statement of claim;
(b) other claims against the first and fourth defendants are refused;
(c) the proceedings against the second and third defendants are dismissed; and (d) there will be a trial on assessment of damages in relation to the liability established against the first and fourth defendants.
(3) The parties shall bear their own costs of the joint trial for WS (HR) 26 of 2020 and WS (HR) 28 of 2020.
________________________________________________________________
Jeffersons Lawyers: Lawyers for the Plaintiffs
Solicitor-General: Lawyer for the Defendants
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