N2592

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT MOUNT HAGEN]

WS. NO. 1236 OF 1999.

KUK KULI
Plaintiff/Respondent

V.

THE STATE
Defendant/Applicant

Mount Hagen: Manuhu, AJ
2004: June 18 & 28

RULING

Practice and procedure – Pleadings – Cause of action – Parties to proceeding – Vicarious liability of the State.

Cases cited:
Peter Nor v. Iminic Ikamata & The State, per Davani, J Unreported (12 December 2003);
Mayame Epea v The State, per Davani, J., Unreported (12 December 2003);
Dalin More v The State & Ors, per Injia, J., Unreported, N1736 (26 February 1998);
Puk Kum v. The State, per Salika, J., Unreported, (12 September, 2003);
John Wena v The State, per Sakora, J. Unreported, N2529 (1 December 2003);
Kofowei v. Siviri & Ors [1983] PNGLR 449;
Tobin v The Queen (1864) 143 ER 1148.

Counsel:
Ms. J. Nandape, for the Plaintiff.
Mr. J. Poya, for the Defendant.

28th June, 2004.

MANUHU, AJ: This is an application by the Defendant for the proceedings to be dismissed. The Plaintiff is suing the Defendant for damages arising out of alleged destruction and or misappropriation of the Plaintiff’s properties during a police operation in the Plaintiff’s village on 13th and 16th May 1995. The Defendant argues that, first, the statement of claim does not disclose a cause of action; and, secondly, that by not naming any policemen involved in the alleged police operation as a defendant, the Defendant is exonerated from liability under s. 1(2) of the Wrongs (Miscellaneous Provisions) Act. The two issues overlap but I prefer to discuss them separately.

Cause of action

The power of the court to dismiss a proceeding for failure to disclose a cause of action is prescribed under the National Court Rules Order 12 Rule 40 and also Order 8 Rule 27. However, what constitutes a cause of action is easy to define but difficult to apply to varying factual circumstances. For our purposes, however, and I do not wish to embark on an academic exercise, cause of action in tort simply means a duty usually conferred by law which when breached entitles the injured party to sue the person in breach for unliquidated damages. Duty, by the way, runs parallel with a right. The existence of a right under the underlying law or a statute imposes a duty on others not to violate that right. 

In a statement of claim, therefore, sufficient particulars of the cause of action must be pleaded. The duty imposed upon a defendant must be sufficiently particularised. The nature of breach must be sufficiently particularised. The nature of injury suffered by the injured party must be sufficiently particularised. The nature of relief sought must also be specified. Where liability is based on the principle of vicarious liability, it will be necessary to establish, first, a cause of action against the principle defendant; second, the relationship between the principle defendant and the party vicariously liable; and, third, that the tort in question was committed in the course of employment of the principle defendant.
 
In this case, it is pleaded that on the days in question, policemen wrongfully destroyed and or misappropriated a store, a service station and properties belonging to the Plaintiff. Particulars of the destroyed or misappropriated goods are in detail in the statement of claim. They include store goods stolen, stolen cash, misuse of petrol and diesoline by policemen, unlawful damage to trucks, and so on. The policemen were identified as members of Kerowagi Base Mobile Squad. Some of them were identified by names and rank. It is further pleaded that the policemen acted in the course of their employment when they conducted the raid. The statement of claim disclosed that certain named policemen were actually charged for assault and murder allegedly committed during the same operation.

From the pleadings, I am satisfied that there is a firm identification of the wrong doers as agents or servants of the State. It is sufficiently pleaded that the policemen were in breach of the duty to protect and prevent destruction and unlawful taking of private property. There are sufficient particulars of damage and loss suffered by the Plaintiff who is thus entitled to sue for unliquidated damages. I therefore find that the pleadings disclose a cause of action against the Defendant.

Vicarious Liability 

The Defendant’s argument on vicarious liability is based on s. 1(2) of the Wrongs (Miscellaneous Provisions) Act but counsel for the Defendant has referred me to subss. (1) and (4) as well. I propose therefore to include subs. (1) and (4) in the discussions as well. The provisions referred to read:

"1.	General liability of the State in tort.

(1)	Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject –

(a)	in respect of torts committed by its servants and agents; and
(b)	in respect of any breach of duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and
(c)	in respect of any breach of the duties attaching under the underlying law to the ownership occupation, possession or control of property.

(2)	Proceedings do not lie against the State by virtue of subsection (1)(a) in respect of an act or omission of a servant or agent of the State unless the act or omission would, apart from this Division, have given rise to a cause of action in tort against the servant or agent or his estate.

(3)	……

(4)	Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by a statute and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of that tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the government."

I have also been referred to the cases of Peter Nor v. Iminic Ikamata & The State, Mayame Epea v. The State, and Dalin More v The State & Ors. These cases, it is submitted, suggest that the agent or servant must be joined as a party before the State becomes vicariously liable for the tortuous act of its servant or agent. But I note that there are differences in opinions on the subject. In Puk Kum v The State and John Wena v The State, for instance, the State was the only defendant. In this case, therefore, the choice to be made, that is, whether the former or latter route should be followed, must be justified. 

For that purpose, it is necessary, at the outset, to refresh our minds on the ordinary common law meaning of vicarious liability. In Mount Hagen, the only reference material I could locate and draw assistance from is Clark and Linsell on Torts, which describes vicariously liability in the following manner:

"A master is saddled with the responsibility to a third party in the event of his servant committing a tort in the course of his employment. The servant himself is also liable, and he and his master are joint tortfeasors, though in practice it is the master who is sued since he is better able to pay the damages. For vicarious liability to arise three things have to be established: a master-servant relationship; the servant committed a tort; and that he did so in the course of his employment."

The common law principle of vicarious liability is very much a part of the underlying law and is therefore applicable in this jurisdiction. 

In relation to the State, in its capacity as a master or employer, it is vicariously liable to third parties for the torts committed by its servants and agents - in respect of breach of duties that a person owes to its servants and agents; in respect of any breach of duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and, in respect of any breach of the duties attaching under the underlying law to the ownership occupation, possession or control of property. However, in respect of torts committed by its servants or agents, the State will not be liable unless the act or omission in question would have given rise to a cause of action in tort against the servant or agent or his estate. Thus, a breach of duty that does not fall under any of these three categories could not be held against the State. See Dalin More v The State & Ors. 

In relation to pleading one’s claim, counsel for the Defendant submits that the State is not vicariously liable for the tortuous act of its servant or agent unless the servant or agent is joined as a party to the proceeding and his liability in tort is thus established. 

The difficulty with this interpretation is that first, if the Act requires that a servant or agent be made a party, I have no doubt that the Act would have stated so. However, there is nothing in the Act requiring a servant or agent to be a party in claims by and against the State. And I am not prepared to read into the Act a matter that the legislators could not have missed. 

Secondly, the State is sued because it is better able to pay. The ability of a master to pay for the wrongs of his servant or agent; and the need for an injured party to be restored to the position he was in immediately prior to the tortuous act, justify the existence of the principle of vicarious liability. In this jurisdiction, I cannot imagine a policemen or group of them paying millions of Kina in compensation. Consequently, whether a servant or agent is joined with the State as a party should be of little significance. 

Thirdly, police operations and raids, in particular, are conducted in such manner already described, and rightly so, as "tropical cyclones or tornadoes (of mid-west USA)" with little opportunity for any reliable identification of anyone. Fleeing victims usually have little time to confront and identify the raiding policemen. Identities of raiding policemen, usually from units from other locations, sometimes come to light only through brave inquiries after the event. Very often, no one knows anyone. Even if they identify anyone, access to redress is hampered by technical rules, legal fees, and the people’s culture of simplicity, forgiving, forgetting and sheer helplessness. It is already common knowledge that many violations of rights in the hands of disciplined forces go uncensored. It would be worse if victims of police operations are subjected to the practically difficult task of identifying and including a policeman as a party. 

In all the circumstances, I am of the view that, in proceedings for and against the State, a servant or agent does not have to be joined as a party, and does not have to be identified by name. The minimum statutory requirements are:

(a)	the perpetrator of the tort is a servant or agent of the State.
(b)	the particular act or omission would have given rise to a cause of action in tort against the servant or agent.
(c)	the tort was committed by the servant or agent in the course of his employment.

These are matters that must first be properly pleaded and later proved against the State, which may be named as the only party to the proceeding. These are minimum requirements for grounding the State’s liability. It is better still if a servant or agent is named, but his absence does not fail the claim against the State.
 
I now turn to subs. (4), which is also relied upon by counsel. This provision states that where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by a statute and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of that tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the government. 

To facilitate a better understanding of this "ambiguous" provision, I propose to dismantle and assemble its major components. They are:

•	where functions are conferred or imposed by a rule of the underlying law or statute, 
•	the officer commits a tort while performing or purporting to perform the functions, 
•	the liabilities of the State in respect of that tort 
•	are as such as they would have been,
•	if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the government.

When assembled in this way, it appears clearer that the provision is primarily intended to protect this jurisdiction from the pitfalls of the common law control test or independent judgment test in the English case of Tobin v The Queen, which was discussed extensively in Kofowei v Siviri & Ors. That test is expressed simply thus:

"When the duty to be performed is imposed by law, and not the will of the party employing the agent, the employer is not liable for the wrong done by the agent in such employment." 

In practice, the control test would only do more harm than good. It would mean that an act or omission ultra vires a rule of the underlying law or a statute is the personal responsibility of the officer concerned and not the State. This would be no incentive for optimum performance of functions and responsibilities by officers of the State. In the converse, a victim of excessive use of "independent" power would be unable to seek adequate compensation for the wrong done to him. Essentially, the control test leaves a victim of abuse of power by an officer with no remedy. The control test would also be inconsistent with the various constitutional obligations upon the State to protect its citizens from personal and property rights breaches. 

The Australians, like the English and New Zealanders, boldly rejected the control test, thus:

"There is no justification for the State escaping responsibility for torts of its officers on the ground that the relevant functions of the officers are conferred or imposed not by the authority of the Executive Government but by the authority of Parliament or by the common law. Nor should the State escape liability because common law or the relevant statute requires an officer of the State to act in his personal judgment."

PNG did likewise by enacting subs. (4) and since then the control test, in so far as the State is concern, has no place in PNG. And rightly so because where there is a wrong, there must be a remedy. The State cannot escape responsibility for the tortuous acts of its servants or agents. Subs. (4) prevents the importation of the control test and ensures that as much as possible a victim of a tortuous act is not without a remedy. In particular, the State remains vicariously liable for the tortuous acts of its officers.

In practice, a Plaintiff does not have to plead whether someone is an officer or not. He will and should always plead that the person at fault is a servant or agent of the State. Where such servant or agent is indeed an officer, who would be carrying out his functions under the underlying law or statute; and therefore, seemingly independent of the State, the State is still vicariously liable. In other words, the State is prevented from raising lack of "control" over an "officer" as a defence. 

In the end, I am remain unable to appreciate the arguments that the statement of claim does not disclose a cause of action; and, secondly, that by not naming any policemen involved in the alleged police operation as a defendant, the Defendant is exonerated from liability under s. 1(2) of the Wrongs (Miscellaneous Provisions) Act. Accordingly, I dismiss both grounds and the application. The award of costs follows the event.

Orders accordingly.
__________________________________________________________________
Lawyer for the Plaintiff 	: 	Tamutai Lawyers.
Lawyer for the Defendant	: 	Paraka Lawyers.