N1106

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No 688 of 1986

HELEN JACK

V

MARIUS KARANI 

and

THE STATE

Mount Hagen: Woods, J
17 June, 22 July, 17, 19, 31 August 1992

Liability of State for action of its servants - Police shot deceased - in course of duty. Damages - dependency claim by parents - exemplary damages.

Cases Cited.
Dambe v Peri & The State Unreported (1991).
Kofewei v Siviri & Others & The State [1983] PNGLR 449.

D. L. O'Connor for the Plaintiff.
L. Kari for the Defendant.

31 August 1992

WOODS, J. This is an action for compensation for the death of Sandea Etape who died as a result of being shot by the first defendant on the 19th of November 1983. The claim is being made by the adopted mother of the deceased and she is bringing the action against the State because the first defendant was a policeman who was acting in the course of his employment with the State.

The facts as presented to this Court are that on the 19th November 1983 early in the evening the deceased was with others outside their church at Birip on the Enga Highway between Wabag and Wapenamanda. They were waiting for a church fellowship meeting to commence. A blue Suzuki police vehicle bearing 4 policemen came along the road and stopped when it saw the people outside the church. At least two of the Police were in uniform, one being the Police Station Commander from Wabag Marius Karani the first defendant. The first defendant and one other policeman got out of the vehicle and approached the deceased and the others and asked what they were doing. There was some conversation then for no apparent reason the first defendant shot the deceased with a pistol. The deceased died of gunshot wounds to the head.

The first defendant was subsequently charged with murder and duly convicted and imprisoned.

It is submitted on behalf of the Plaintiff that the first defendant was acting as a servant of the State at the time he shot the deceased. He was the Police Station Commander at Wabag on the time, he was in uniform and he was carrying a police pistol which he used. The fact that he may have been returning from some sporting function out of normal working hours and may have been drinking earlier that evening does not detract from his position as a senior Police Officer responsible for Police duties and Law and Order in the Province at all times. By stopping on the Highway to ask some people what they were doing when he was dressed in uniform and in a police vehicle he was clearly acting in his capacity as a Police Officer concerned for Law and Order. This was not therefore a 'frolic of his own' even though he may have been drinking and acting therefore contrary to Police regulations and normal behaviour. If he has acted in excess of Police regulations it is a disciplinary matter for the Police Force and the State and in this case it was already clearly more than that but a criminal charge for which he was convicted. However he still, in relation to the deceased and the people at the side of the road, was acting in his capacity as the Police Station Commander and the State must assume liability for the results of such action. Of course they could proceed separately against the First Defendant to seek his contribution for his excess of duty but as far as the Plaintiff and the deceased is concerned the State is initially liable. This liability is provided for under the Wrongs (Miscellaneous Provision) Act ch.297.

In the case KOFEWEI v SIVIRI & others and the State [1983] PNGLR 449 there is a detailed analysis of the role of Police as servants or agents of the State and the liability for acts of the Police for actions within the scope of their employment or functions. In the case it is emphasised that for the purposes of liability under the Wrongs (Miscellaneous Provision) Act the acts of the Police must be acts within the scope of their police employment or functions. In that case the acts on which the liability was based were acts that took place after the plaintiff had been arrested and taken into custody at the Police Station. However in the case before me now the incident took place in the evening along a Highway when the first defendant was returning from a social and sporting function.

I am satisfied that the first defendant as the Police Station Commander must be held to be acting in the course of his duties and responsibilities when he is driving along a Highway in his Province in uniform in a police vehicle and stops to enquire what people are gathering at the side of the road for and approaches them armed with a police pistol. I am satisfied that the State is liable to the Plaintiff for the action of the first defendant which led to the death of the adopted son of the plaintiff.

Damages

The deceased was aged about 22 years at the time of his death. He had employment at a timber yard which he had obtained through the assistance and instruction of his adoptive father who was also engaged in the timber industry. He was not married but he was providing financial assistance for his adoptive parents for the operation of a trade store. The plaintiff is claiming as part of the loss the parents have suffered is the loss of the profit from the running of the trade store which was set up with the deceased's support and run by the plaintiff. I fail to see how the death of the son has meant the loss of their business. The tradestore was operating, its operation did not rely on the efforts of the deceased, whilst he may have helped set it up surely its continued operation could have continued by the plaintiff and her husband. So I can find no basis to calculate the damages on the basis of the loss of profit of a business run by the plaintiff.

However I will accept that the plaintiff in particular has lost some support from the son, and she would have been entitled to have expected additional support as she and her husband got older and when her husband retired from work. It is very hard to come to a particular figure for such support of parents, especially when it would vary as they got older. The parents are aged in their forties now. In dependancy claims involving the support of parents figures of K2 to K5 a week have been used. If I allow a dependancy for 20 years at K5 a week I would get to a figure of around K4,000. However I find that I cannot use such exact method of calculating the loss. But bearing in mind this figure and including the usual figure for an estate claim I will assess a global figure for the loss of the son at K8,000.

I am also satisfied that this is a case that warrants exemplary damages. I refer to the Kofowei case above referred to and also to the case of DAMBE v PERI and The State. Amet J. March 1991 where exemplary damages were considered and awarded in cases where police have injured or killed people. Justice Amet awarded a sum of K30,000 exemplary damages in DAMBE'S case and I adopt his principles and see no reason why the same amount should not be awarded here.

I allow interest at 8% on the amounts awarded from 13th November 1986 to today being K17.623.68.

I order Judgement for K55,623.68.

Lawyer for the Plaintiff: D L O'Connor
Lawyer for the Defendant: Solicitor- General