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Letaki v Kupo [2016] PGNC 291; N6493 (24 March 2016)

N6493

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

W.S No. 1747 OF 2001

BETWEEN:

JOHNSON LETAKI
Plaintiff

AND:
JOSEPH KUPO, POLICE COMMISSIONER OF PAPUA NEW GUINEA
First Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Mt Hagen: Poole, J
2016: 24^th March

PRACTICE: Court has power to vacate a default Judgment if entered without legal basis

DEFAULT JUDGMENT: Entered on basis of facts in Statement of Claim without support of any sworn evidence, going to facts pleaded is a nullity (PNGBC v Tole (SC692)) applied.

PLEADING: Necessary to plead a tortfeaser was acting in his capacity as servant or agent of nominal defendant at time of alleged wrongs to establish vicarious liability (Lina Kewakali v The State (SC 1091)) applied.

Cases Cited:

Jacob Simbuaken v Neville Egari (3824)

Lina Kewakali v The State (SC1091)

Obed Lalip & ors v Sikiot & The State (N 1457)

Papua New Guinea Banking Corporation v Jeff Tole (SC 692)

State v David Wari Kofowei and ors [1987] PNGLR 5)

Counsel:

Mr Paulus M Dowa, for Plaintiff
N/A for Defendants

24^th March, 2016
Background

1. POOLE J: On the 21^st of November 2001 the Plaintiff filed a Statement of Claim seeking damages for assault pleaded to have been inflicted on him on 18^th of April 2001 outside the Wabag Police station “by an unidentified member of Mobile Squad 7 from Mt Hagen in company of other policemen from the same group”. He pleads he was severely punched in the right eye. He says that the eye was so damaged it had to be removed at hospital and claims damages for assault, personal injuries, special damages and loss of income of K150.00 a fortnight from the 18^th of April 2001.
   
2. The Statement of Claim was served on a Policeman in Police Head Quarters – which is not the personal service of initiating process required by the rules – and on the State. The State gave a Notice of Intention to Defend for “The Defendant’s” but did not enter a Defence within the generous time extended to it under the Claims By And Against the State Act.
   
3. The law relating to pleadings, and especially to pleading claiming vicarious liability by the State, is clear. In this cause, the Plaintiff’s Statement of Claim is as follows:
   

1) The Plaintiff, John Letaki, 24, is from Tombaip, Laiagam, Enga Province. He was at all material times the crew of a Coaster Bus Registration P177W, operation along the Highlands Highway.

2) The First Defendant is the Commissioner for Police who is responsible for all police actions and in actions throughout Papua New Guinea.

3) The Second Defendant is the Independent State of Papua New Guinea and is responsible for the actions of its agents and or servants.

4) The Plaintiff brings this action under provisions of the Wrongs (Miscellaneous Provisions) Act Ch. 297 and Claims by and Against the State Act. Ch No. 30.

5) On the 18^th April 2001 outside the Wabag Police Station, an unidentified member of Mobile Squad Seven from Mt. Hagen in the company of other policemen from the same group wrongfully assaulted the Plaintiff. The Policemen involved were passengers of a Police vehicle, a Toyota land cruiser 10 seater, Reg No. ZGY 633.

Particulars of Trespass

1. Severely punched the Plaintiff in the right eye.
   

6) As a result of the trespass the Plaintiff received the following injuries.
Particulars of Injuries
a) deep cut right above the right eye
b) continuous loss of blood
c) the Plaintiff lost consciousness after losing a lot of blood
d) pain and swelling

7) As a result of the injuries the Plaintiff was taken to Wabag Hospital for treatment. Several days later he was admitted at Mt. Hagen General Hospital for further treatment.

Particulars of treatment
a) Dressing of wound
b) Right eye operated and removed

8) As a result of the aforesaid injuries the Plaintiff has permanent disabilities.

Particulars of disabilities

a) Permanent damage to the right eye whereby the eyeball has been smashed and damaged completely
b) 100% loss of the right eye

9) And further as a result of the aforesaid injuries the Plaintiff suffered loss and damage.

Particulars of loss/damage
a) Loss of the use and enjoyment of the right eye
b) Loss of dignity and pride.

10) The Plaintiff also suffered medical costs and costs of transport as a result of the aforesaid injuries.

Particulars of Costs

a) Medical costs which include dispensation and hospitalization – K50.00
b) Transport costs between Wabag and Mt. Hagen - K50.00

11. Prior to the injury, the Plaintiff was a PMV crew earning an average of K150.00 a fortnight. As a result of the injury his regular income ceased.

Particulars of Loss – both past and future
a) Past Loss – to be calculated at K150.00 per fortnight from 18^th April 2001 to the time of judgment.
b) Future Loss – to be calculated at K150.00 per fortnight from the date of judgment until Plaintiff reaches 55 years to be computed at with 3%.

12. Further the Plaintiff claims exemplary damages in that the aforesaid conduct of the policemen was arbitrary, oppressive and/or unconstitutional in the given circumstances.

Particulars
a) That the policemen did not allow the Plaintiff or give him a fair opportunity to be heard.
b) That the said policemen unfairly took advantage of his position of authority and assaulted the Plaintiff under circumstances that did not warrant such brutality.

And the Plaintiff claims
a) General damages including exemplary damages
b) Exemplary damages
c) Economic loss
d) Special damages
e) Cost
f) Interest at 8%

4. For a Plaintiff to establish vicarious liability he must satisfy the court, by admissible evidence, that, on the balance of probabilities, he suffered harm by the actions of a person (a tortfeasor) who was the servant or agent of third party (nominal defendant) who was, when he committed the action, acting in the course of his employment by or authority from the nominal defendant.
   
5. Any common law doctrine, insofar as it applies to the State, has been codified by the Wrongs (Miscellaneous Provisions) Act and, in particular, Section 1 (1). In this case the Plaintiff must establish that the tort of which he complains was committed by a servant or agent of the Defendant (s) when acting within the scope of their functions and duties as a servant or agent of the State. (See State v David Wari Kofowei and ors [1987] PNGLR 5) The Supreme Court in this case specifically stated,

“whether or not the State is vicariously liable for torts committed by its servant, agent, or officer depends first, on weather a policeman is either a servant, agent or officer of the State under the Wrongs Act. If he is either servant or agent or an officer of the State, then the next enquiry is as to whether the circumstances render the State liable vicariously for the tort committed by him.”

6. Clearly, the fundamental relationship between the unnamed tortfeasor and the defendants has not been pleaded and this means that the nexus required to attribute liability for the actions to the tortfeasor and the (nominal defendant) State has not been established. The pleading of the Statement of Claim fails to set forth the facts required to found liability even if satisfactory evidence is produced of those facts. The Statement of Claim does not plead that the assault of which the Plaintiff complains was sustained at the hands of a policeman who, at that time, was acting in course of his duty as a Policeman.
   
7. The Supreme Court has authoritatively set down in the case of Lina Kewakali v The State (SC1091) that, “where vicariously liability is claimed, the Plaintiff must name the servant or agent or alleged tortfeasor as Defendant and must also plead in the Statement of Claim the nexus or connection between the principal tortfeasor and the Nominal Defendant.” (my emphasis)
   
8. As I have noted, Default Judgment was entered on the 07^th of June 2002. But that does not mean it is inviolable. The Court has power, if there is a lack of legal basis for the Judgment, to revisit the Judgment (see Jacob Simbuaken v Neville Egari (N3824)) and the examination of the chronology of filing in this case makes it clear that Default Judgment was entered (in my view erroneously) on such facts as were pleaded in the Statement of Claim and not supported by any evidence whatsoever.
   
9. The file shows that, on the 16^th of April 2002, the Plaintiff made an Application by Motion for Default Judgment. At that stage the Plaintiff had filed;
   • Writ and Statement of Claim – 04^th of December 2001
   • Affidavit of Service – 14^th of December 2001
   • Notice of Motion – 16^th of April 2002
   • Affidavit of PM Dowa – 16^th of April 2002
   • Affidavit of Service – 16^th of April 2002

No evidence of the facts pleaded in the Statement of Claim had been filed.

10. This Court has stated on many occasions over many years that pleadings merely constitute an unsworn statement of facts, and are not, in themselves, evidence going to the proof of the facts pleaded.
    
11. In these circumstances, Default Judgment of liability should not have been entered because there was no evidence before the Court to justify any finding whatsoever. Further, when evidence was filed some years after the entry of Default Judgment, this consisted of Plaintiff’s Affidavits filed on the 30^th of November 2004 and 14^th of May 2010, an Affidavit by Dr George Jacob filled on the 22^nd of February 2011 (corroborating the injury). None of it addressed the legal nexus between the anonymous policeman who is said to have punched the Plaintiff and the State. As has been said on many occasions (see, for example, Obed Lalip v Fred Sikiot & The State (N1457)) that;
    
    • “just because the Plaintiff has obtained Default Judgment, does not mean that he is entitled as a right to receive damages.”
      
12. The Supreme Court, in the case of Papua New Guinea Banking Corporation v Jeff Tole (SC 692) set out the correct procedure to be followed by a Court after entry of Default Judgment and stated that this was:
    
    • The trial Judge make a cursory enquiry so as to be satisfied that the facts and cause of action are pleaded with sufficient clarity (my emphasis):
    • If it is reasonably clear what the facts and cause of action are, liability should be regarded as proven
    • Only if the facts or cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the Judge enquire further and revisit the issue or, liability.
      
13. Quite clearly the Statement of Claim does not set out how the Second Defendant is liable and on this basis, alone, Default Judgment cannot stand. Further, because it was entered on the basis only of a pleading and in the absolute absence of evidence it must be set aside. There was no evidence before the Court to constitute sufficient proof of liability.
    
14. In spite of the fact that the Plaintiff pleads that he sustained injuries at the hands of an unnamed violent policeman, there was no evidence of this before the Court and when, belatedly, evidence was filed, it did not go, in any way, to cure the defect in pleading which did not establish a sufficient nexus of liability to justify a finding of vicarious liability against the Second Defendant.
    
15. In the circumstances the Orders are as follows;
    

1. Default Judgment entered on the 07^th of June 2002 is set aside
2. The Plaintiff’s action is dismissed
3. Each party is to bear its own costs.

________________________________________________________________Paulus M Dowa Lawyers: Lawyers for the Plaintiff
N/A : Lawyers for the Defendant