N6434
PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE]
WS No. 593 OF 2002

BETWEEN

DOUGLAS AIRE, BENSTEAD
BESUNA  & 132 ORS.
Plaintiffs

AND
SIMON TOGOI
First Defendant

AND
JACK PENERO
Second Defendant

AND
JOSEPH KUPO
Third Defendant

AND
THE STATE
Fourth Defendant

Popondetta: Toliken, J.
                        2015: 18th, 19th November
2016:  11th March

CIVIL LAW – Torts - Damages in trespass to land and chattels and livestock, conversion, negligence and breach of Constitutional rights – Police raid – Police and village youth in pursuits of suspects – Destruction of property, theft of chattels and livestock done by youths on order and encouragement of police officers in the course of.
CIVIL LAW – Vicarious liability – Whether State is vicariously liable for actions of police officers – Whether State is vicariously liable for actions of village youths – State vicariously liable for actions of its police officers and for actions of village youths who acted on orders and directions of police officers. 	

Papua New Guinea Cases Cited:
Jack v Karani [1992] PNGLR 391
Kuk  Kuli v The State (2004) N2592
Maku v Maliwolo (2012) SC1171 
More v The State [1998] PNGLR 290
Wango v Andakundi and The State [1992] PNGLR 45
Roka Coffee Estate Pty Ltd v Gerebi [1973] PNGLR 486 

Overseas Cases Cited:
Hill v Chief Constable of West Yorkshire (1987) UKHL 12 (Hill) (1989) AC 53 

Counsel:
L.B. Mamu, for the Plaintiffs.
Nil appearance for the Defendants.

JUDGMENT ON LIABILITY

11th March, 2016;
1.	TOLIKEN J:	The plaintiffs in this matter sued the defendants under several heads of damages. These are -
•	damages for trespass to land, chattels and for 	conversion. 
•	damages for negligence.
•	damages for breach of Constitutional rights.
2.	 The claim arose out of a raid on their village by the police and youths from a neighbouring village in pursuit of certain suspects.
BACKGROUND
3.	This matter has a very long history. So, it is instructive to briefly set out the pertinent historical facts. 
4.	The suit was first filed on 13th of May 2002 by Powes Parkop Lawyers on behalf of 423 persons from Harange Village, Oro Province. The State, through the Solicitor General, filed its Notice of Intention to Defend and Defence on 25th November 2002. On 17th March 2003, Paraka Lawyers, acting for the Defendants, filed a Notice of Change of Lawyers. On 26th May 2005, Paraka Lawyers filed for Better and Further Particulars. On 16th June 2003, Paraka Lawyers applied through a Notice of Motion for the matter to be dismissed for want of prosecution or alternatively for want of representative capacity. 
5.	On 26th September 2003, Parkop Lawyers filed for the dismissal of the defendant’s motion to dismiss, and for the substantive matter to be set down for trial. On 10th October 2003, the Defendant’s motion of 16th June 2003 to dismiss was withdrawn by consent and the matter was returned to the Registry for a trial date and venue to be fixed. 
6.	On 20th May 2004, the Plaintiffs filed an amended Statement of Claim pursuant to Order 8 Rule 51 of the National Court Rules (the Rules) and on 24th May 2004 filed for the withdrawal of 290 of the original Plaintiffs from the suit. On 11th June 2004 the Plaintiffs filed for Summary judgment. On 07th July 2004 the Defendants filed an amended Defence. The Plaintiffs filed their submissions on their Motion to dismiss on 19th July 2004. The Defendants filed their response on 16th July 2004. On 06th August 2004, the Plaintiffs motion for summary judgment was refused by Lay J. 
7.	By letter of 10th August 2004, Parkop Lawyers requested for the matter to be listed at the next caller-over. The Deputy Registrar, Mr.  Ian Augerea (as he then was) responded and advised that the matter was listed for the call-over on 31st August 2004. On 10th August 2006, Parkop Lawyers filed a Notice to Set Down for Trial. 
8.	The matter remained on the list without much activity after that. Then, on 17th February 2014, the Public Solicitor filed a Notice of Change of Lawyers and also filed their appearance for the Plaintiffs.  On the 04th of June 2014, I ordered the parties to attempt to settle out of Court and further ordered that they advise the court of the outcome at the October sittings. 
9.	On 16th of June 2014, the Plaintiffs filed, by Notice of Motion, pursuant to Order 5 Rule 12 (2)(a)(b) for the removal of  10 Plaintiffs who had passed away from the suit. These are, Faith Gambore, Onimus Ute, Gilpin Sambura, Rex Kaia, Douglas Andi, Albert Goviro, Taylor Pesasa, Clive Pesasa, Henkin Simonopa and Henry Herivo. This motion was never moved and remained on foot.
10.	On 22nd of September 2014, the Plaintiffs Lawyers wrote to the Solicitor General advising that their clients will accept K120,000.00 as total compensation for their loss and K20,000.00 for costs. The Solicitor General did not reply.
11.	On 14th of October 2014, I extended my orders for out of Court settlement and further directed that the Solicitor General replies to the Plaintiffs’ offer, and adjourned the matter to the December sittings. 
12.	The Defendants did not appear at any of the subsequent appearances after that until the matter finally was set down for ex parte hearing on liability for 18th of November 2015. For the purpose of the trial the Plaintiffs filed a Notice under Section 35 of the Evidence Act Ch. 48 that they will be relying on the following:
1.	Affidavit of Douglas Aire filed on 15th April 2015
2.	Affidavit of Blackford Ukambari filed 15th April 2015
3.	Affidavit of Dominic Hangiri filed on 16th April 2015   
13.	I conducted the hearing on liability only, on the 18th November 2015, and adjourned the matter tentatively for a decision for December 2015, subject to the Chief Justice approving my request for a special fixture for Popondetta. That request was denied.  
14.	As I noted above, the Plaintiffs’ motion dated 16th April 2015 for the removal of those Plaintiff who had died still remains on foot and must be heard first. I did so, and invited counsel to move the motion which counsel did. I granted the motion and ordered that the named deceased Plaintiffs are removed from the suit.
15.	The pertinent facts to this suit are these. The First and Second Defendants were, at the material time, members of the Royal Papua New Guinea Constabulary. They were attached to the Saiho and Popondetta Police Stations. The Second Defendant was the OIC of Saiho Police Station. The Third Defendant was the incumbent Commissioner of Police. All three defendants were officers in the employ of the State.
16.	Around late 2001, there was tension between villagers from Harange and Koropata No.2 over the theft of a pig owned by one Roland of Koropata No.2 by youths from Harange.
17.	On 01st of November 2001, Police officers Simon Togoi (Tongkoe) and Jack Pengoro, and two other policemen from Saiho Police Station entered Harange village in search of the suspects. They were accompanied by two Community Based Constables (CBCs) and youths from Koropata No.2 village. 
18.	They arrived at Harange in a police vehicle and met Dominic Hangiri. Constables Togoi and Pengoro asked Dominic to take them across the river to the main village and show them the houses of the boys who had stolen Roland’s pig. They crossed the river and Dominic took them to the end of the village and showed them the houses of three of the suspects namely Bornard Aneki, Thomas Bagiha and Gorden Tikori. Constable Togoi   and Pengoro then ordered the burning down of these houses and other houses in the village as well. 
19.	In all, a total of 7 permanent houses and 5 makeshift houses were destroyed. These belonged to Abraham Begahu, (permanent), David Andi (1permanent and 1 makeshift) Theresa Bagiha (1 permanent and 1 makeshift) Alenaus Goviro (1 permanent and 1 makeshift), Mina Aneki (1 permanent and 1 makeshift), Graham Besuna (1 permanent), Bonard Aneki (1 permanent bush material house) and Smith Kerari (1 makeshift). The Koropata youths also set about to breaking down houses and stealing properties in the presence of the Togoi and Pengoro. Pengoro was giving orders to the Koropata youth to do what they were doing.
20.	The policemen fired shots into the air and also shot dead some pigs belonging to Douglas Aire, Benstead Besuna, Spencer Ute, Livingston Beambu, John-hunt Kunjari, Justin, Ika, Theresa Bagiha, Peter Tigari, Albert Goviro, Alinaus Goviro and David Andi. Other villagers lost personal effects and had tree crops cut down by the Koropata youths. At no time did the policemen stop them as the youth continued with their spate of destruction.
21.	On the evidence before me, I am satisfied that Constables Pengoro, Togoi and other policemen, including the CBCs and youths from Koropata No. 2, committed the torts of trespass to land and chattels against the Plaintiffs and further that they stole properties from the plaintiffs. 
22.	The tort of conversion cannot, however, be sustained on these facts because those properties did not come lawfully into their possession in the first place. Conversion is the tort of using property that came lawfully or legitimately into one’s possession in a manner that is inconsistent with the right of the owner, which may, of course, include permanent deprivation.  The evidence establishes plain stealing and the suit should be allowed on that basis and not on conversion.

23.	The main issue at trial is -
1.	Whether the State is vicariously liable for torts 	committed by the first and second defendants and 	others including civilians acting in concert with 	them?
24.	The State's liability for tortuous acts is provided by Section 1 of the Wrongs (Miscellaneous Provisions) Act Ch. 297. Subsections (1) and (4) in particular provide:
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 the 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) ...
(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 statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the 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.
(5) ...
(6) ...
25.	For vicarious liability to attach to the State, though, the following elements must be proved by the Plaintiffs on the balance of probabilities: (1) there existed an employer/employee relationship, (2) the employee committed a tort and (3) the tort was committed in the course of the employee’s employment. (Roka Coffee Estate Pty Ltd v Gerebi [1973] PNGLR 486; Wango v Andakundi and The State [1992] PNGLR 45; More v The State [1998] PNGLR 290; Kuk Kuli v The State (2004) N2592) 
26.	The first and second elements have been clearly established. The First and Second Defendants were policemen in the immediate control of the Third Defendant. All were employees of the State. So there clearly existed an employer/employee relationship. It is also established that the First and Second Defendants committed various torts - trespass to land and goods and chattels when they ordered the burning down of houses belonging to the suspects they had been following. There was also trespass to animals (pigs) belonging to some of the plaintiffs. Much of the destruction and theft of chattels appears, though, to have been caused youths from Koropata No.2. This then raises the question of how far the State's vicarious liability extends. Does it extend to cover the torts of other persons who are not its employees or agents such the Koropata youths?
27.	Before I answer this question, though, I need to address the liability of the State (if any) for the actions of the First and Second Defendants. It is trite that vicarious liability can only attach if it can be shown that they were acting in the course of their employment. 
 28.	 The evidence clearly shows that the First and Second Defendants and other policemen had arrived armed with police issued firearms at Harange village in a police vehicle, and it can reasonably be inferred that they were in Police uniform. They were in pursuit of certain suspects from Harange who had stolen a pig from one Roland of Koropata No.2, and, hence, were in the course of their general duty to enforce the law and bring the suspects to justice. They were not "on a frolic of their own."  
29.	In Jack v Karani [1992] PNGLR 391, a Police Station Commander (the first defendant in a suit for damages), shot and killed a man for no apparent reason. He was in full police uniform armed with a police firearm and was returning from a sports function (where he had consumed alcohol) in a police vehicle with three other policemen. They came upon the deceased and others outside a church along the highway who, were waiting for a church fellowship meeting to start. They stopped and the Police Station Commander and another policeman approached the group and talked to them but then for no apparent reason the Police Station Commander shot the deceased on the head with a pistol from which he died. 
30.	On the question of whether or not the first defendant in that case was acting as a servant of the State, His Honour Woods J. held that he was in police uniform, carrying a pistol and driving a police car, and despite the fact that he may have been returning from a function and had consumed alcohol, this did not detract from his position as a senior police officer responsible for police duties and law and order. By stopping by the highway to question some people he was acting in his capacity as a police officer concerned about law and order and not "on a frolic of his own." The State was therefore vicariously liable for his actions.
31.	The facts of the current case are not entirely similar to those in Jack v Karani. Here the First and Second Defendants were in pursuit of suspects and, hence, were clearly acting in the course of their employment as police officers, enforcing the law and performing their police duties. The State is therefore vicariously liable for any torts or wrongs they committed in the course of their duty. 
32.	As I indicated above, they definitely were not on a frolic of their own. The fact that they may have stepped out of line by ordering the Koropata youths to burn down the suspects' houses does not detract from the fact that they were there in response to the call of duty - maintaining law and order and pursuing persons suspected of having committed an offence. So while they are personally liable per se, their employer the State is vicariously liable for their torts pursuant to Section 1 of the Wrongs Act. 
33.	But does the State's liability extend to the torts and wrongs committed by the Koropata youths who had accompanied the First and second Defendants  to Harange, and who obviously caused much of the damage and destruction and stole goods and chattels belonging to the Plaintiffs? 
34.	The point was not argued by counsel for the Plaintiffs, but where the Plaintiffs allege negligence on the part of the First and Second Defendants in failing to stop the Koropata youths from raiding, destroying and looting the properties of the Plaintiffs, for the defendants including the State to be liable vicariously for their actions, the Plaintiffs must show that they (particularly the First, Second and Third Defendants) owe them a duty of care.
35.	In Maku v Maliwolo (2012) SC1171, the appellants were a group of villagers who mounted a class action against two senior police officers and the Police Commissioner and the State, in negligence for damages done to their properties by enemy tribesmen. The plaintiffs alleged at the trial that the first, second and third respondents failed to attend and stop a tribal fight between them and an enemy tribe. As a result, the enemy tribe destroyed and looted properties of various descriptions, food gardens and livestock, and killed the principal appellant's son and nephew. Default judgment was entered by consent and the matter went for trial on assessment of damages. 
36.	The National Court, however, dismissed the action at the hearing for assessment of damages. It held, among other things, that the appellants failed to prove damages because their evidence was hearsay and not credible, and that they failed to establish a reasonable cause of action known to law for damages to be awarded.
37.	On Appeal the Supreme Court (Lenalia, Makail, Kariko JJ), in following the English case of Hill v Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53, held that at common law, the police owe no duty of care to the public at large and that there will be no duty of care if it is against wider policy issues, such as where it may adversely affect the way in which the police carry out their duties for fear of litigation. The Court further held that this position is consistent with Section 197 of the Constitution, which vests in the police the responsibility of maintaining law and order, but does not prescribe any specific requirement as to the way in which they do it. Therefore, the police owe no duty of care to the public at large, and there is no duty of care if it is against public policy.
39.	At first glance the action for negligence against the defendants in this case, based on the same grounds as those in Maku v Maliwolo, may fail for the same reason - that is that the police do not owe a duty of care to the Plaintiffs by ensuring or preventing the youths of Koropata from destroying or stealing the plaintiff's properties.
 40.	However, the evidence before me suggests that the First and Second Defendants not only ordered the burning of the suspects' houses. They went beyond that and actively encouraged, if not ordered, the youths of Koropata to destroy other houses in the village. The fact that they may not have ordered the youths to steal and slaughter the villagers' livestock does not detract from the fact that the youths acted on directions and wilful encouragements by the First and Second Defendants who were officers the State and were executing their duties as policemen. The fact that they may have acted unlawfully and beyond their powers is of no consequence as was held in Jack v Karani.
41. The facts in the current case can therefore be distinguished from those in Maku v Maliwolo. There, the claim for negligence failed because the plaintiffs sued on the basis that the defendants did not prevent their enemies from attacking them and causing damage to the properties. In the instant case, the First and Second Defendants allowed the youths of Koropata No. 2 to accompany them to Harange and ordered them to destroy properties belonging to the Harange villagers. They actively encouraged these youth to raid the village and in the process properties were also stolen and livestock were either slaughtered or carried off.
43.	So while the police owe no duty of care to the public at large, and that there is no duty of care if it is against public policy as was held in Maku v Maliwolo, where the police allow civilians to accompany them in pursuit of suspects which resulted in a raid of the suspects’ village, as was the case here, then in my opinion the police owed a duty of care to villagers of Harange by ensuring that those civilians are controlled so that they do not cause damage or injury to the Harange and  their properties and chattels.
44.	In the circumstances I find therefore that the First and Second Defendant are liable in negligence, and for the same reason advanced above, the State is vicariously liable for their torts in negligence as well.
45.	Finally, to the breach of Constitutional rights. For the same reasons I also find the defendants liable – the State again being vicariously liable.
46.	In conclusion I therefore find liability against the defendants, and in particular that the State is vicariously liable for the acts of the First, Second and Third Defendants.
47. My orders then are as follows:
1.	 The motion seeking to remove the deceased Plaintiffs namely faith Gambore, Onimus Ute, Gilpin Sambura, Rex Kaia, Douglas Andi, Albert Goviro, Taylor Pesasa, Clive Pesasa, Henkin Simonopa and Henry Heviro is granted;
2.	The State is vicariously liable for the torts committed by its agents Simon Togoi, Jack Penero and Joseph Kupo; and 
3.	The matter is adjourned to the next call over for directions for assessment of damages.

Ordered accordingly.

__________________________________________________
The Public Solicitor: Lawyer for the Plaintiffs:	
The Solicitor General: Lawyer for the Defendants