IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL APPEAL 2 OF 2023

BETWEEN:	
ATTORNEY GENERAL IRO COMMISSIONER OF POLICE
Appellant

AND:	
ERETIA BETERO
Respondent

Date of Hearing:			21 NOVEMBER 2023
Date of Judgment:			22 DECEMBER 2023

Appearances:				Mr. Mikaere Kakiarerei for the Appellant
                                                             Mr. Birimaka Tekanene for the Respondent 

JUDGMENT

Brief fact of the case;

1.	This is an appeal against the magistrate court decision in BetCiv 12 of 2022, delivered on 22 September 2022. 

2.	In BetCiv 12/22, the claim of the Respondent against the Appellant in vicarious liability for the damages caused by his employee’s negligent driving, the Second Respondent (Sgt Bio Tawaia) in the court below, was granted. The magistrate court awarded damages in the sum of $1000 plus $150 (court fee).

Grounds of Appeal;

3.	The Appellant filed an appeal against the above decision on the ground that the magistrate court erred in law in not considering the evidence that the second respondent, Sgt Bio Tawaia, driver’s license was not valid when he drove the police vehicle at the time of the incident; and the duty roster indication that the second respondent was not authorised to drive the police’s vehicle at that time. 

Analysis 
4.	The Appellant’s appeal is based on the fact that the second respondent, Sgt Bio Tawaia, acted outside his scope or course of employment when the accident happened and the magistrate court had failed to see this since it did not consider the critical evidence that Sgt Bio Tawaia had no valid driver’s license and was not an authorised driver at the time of the incident as shown on the designated driver’s duty roster. He was only the supervisor at the Station during that shift but had no control over the use of the vehicles.

5.	Counsel for the Respondent submitted that not every matter raised before the court must be referred to, evaluated and made the subject of the explicit acceptance or rejection by the court unless it is central or important. The case of PMI 061 v The Republic, Supreme Court of Nauru, Unreported 14 December 2018, was cited to support this contention.

6.	Counsel for the Respondent accepted that the minutes of the proceeding indicated the submission by the Appellant regarding the fact that the second Respondent, Sgt Bio Tawaia, had an invalid driver’s license at the time of the incident. Counsel further stated that the magistrate court did not consider this in its judgment, indicating that this was not considered an important element in this case against the Appellant. 

7.	As for the duty roster, the respondent submitted that there was no record that the duty roster was ever submitted, but they are happy to have it re-submitted. They contend that the duty roster is only provided for designated drivers instead of authorized ones. Thus, the respondent argues that the duty roster does not prove that the second respondent, Sgt Bio Tawaia, had acted outside the scope of his employment.  

8.	After reading the decision on appeal, it is true that there is no mention or discussion of the invalid driver’s license and the duty roster. In the last paragraph on the second page of the judgment, the magistrate ruled that the second respondent committed the act of negligence during the course of his employment since there was evidence to show that he was working at that time as he was wearing a police uniform together with the other police officers who were with him on the vehicle. The magistrate did not discuss any other reason to support this finding. 

9.	In my view, the magistrate had not properly applied the test to determine whether or not the second respondent, Sgt Bio Tawaia, had committed the tort in the scope or course of his employment. The mere fact that the second respondent, Sgt Bio Tawaia, was working at the time of the incident does not prove that he had acted within the scope of his employment. It only showed that he was on duty when the accident happened. The duty roster and the invalid driver’s license should be discussed as they are important pieces of evidence brought before the magistrate court, and whether or not these two pieces of evidence would make the appellant liable is a matter for the magistrate court to decide. 

Summary;

10.	For the reasons stated above, the appeal is allowed.

11.	The magistrate court's decision in BetCiv 12/22 is quashed and the matter is returned to the same magistrate court to be re-considered.

12.	 The circumstances of the appeal warrant that parties should bear their own cost. No order as to cost.

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice