N6561
		
	    PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

 WS NO. 259 OF 2001 

		BETWEEN  

SAMSON KISA     
Plaintiff
 
AND

SERGEANT MAJOR JAMES TALEOK,  
Surinki Police Station, Enga Province   
First Defendant
 
AND

JOHN WAKON, 
Police Commissioner of Papua New Guinea  
Second Defendant 

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA  
Third Defendant 

Mount Hagen:   Poole, J
	2016: 30th November		

EVIDENCE- Before expressing expert evidence on psychological issues a Medical Practitioner must be qualified as an expert in that field. 

PLEADING - If a Plaintiff would raise vicarious liability he must plead the necessary facts to bring the claim within the Wrongs (Miscellaneous Provisions) Act and specifically plead the statutory provisions. That plea must be supported by admissible evidence. 

PNG Authorities:	

Catherine Popo v PNG Electricity Commission (SC 1360)
Jack Pinda v Sam & Inguba (N4659)
Jacob Simbuakem v Neville Egari (N3824)  
Pamendi Ipi Pangu v Mark Korr (N6069)
PNG Banking Corporation v Tole (SC 694)

Overseas Authorities:
Read v Brown (1888) 22 QBD 128	

Counsel:

Mr Dowa, for Plaintiffs
Ms Mai, for the State

Background
30th November, 2016     
1.	POOLE J:	On the 7th of March 2001 the Plaintiff filed a Writ and Statement of Claim seeking damages – the basis of which is not clear.  The Statement of Claim, in its entirety, is as follows: 

1)	The Plaintiff is a public servant, a member of the Corrective Institutional Service, Wabag in the Enga Province, and is aged about 40 years old.
2)	The First Defendant is a Senior Policeman, attached to the Surinki Police Station, Wabag and is therefore an employee, agent and or servant of the State.
3)	The 2nd Defendant is the Police Commissioner of Papua New Guinea and as such is responsible for all police actions and in-actions under his command.
4)	On the 27th April 1999 at Malisos village, Upper Laiagam, the first defendant unlawfully shot the Plaintiff with a high powered shotgun.
5)	The shooting by the first defendant was unlawful and a reckless handling of the State issued gun.
6)	As a result, the Plaintiff sustained injuries to his person.
	Particulars
	(a)	pellet wounds at right upper arm
	(b)	pellet wounds at right chest wall
	(c)	pellet wounds at left forearm	
	(d)	pellet wound at the left poster lateral aspect of an abdominal
        (e)	pellet wounds at his lumber regions
7)	The Plaintiff was admitted and treated at Emmanuel Lutheran Hospital, Wabag.
	
	Particulars of Treatment
	(a)	Hospitalized for 2 months
	(b)	Removal of pellet wounds 
	(c)	Antibiotics and analgesics
	(d)	Best rest and observations 
8)	As a result of the injuries the Plaintiff was severally traumatised As a result, the Plaintiff now suffers severely and has fits of anger, loss of concentration, and loss of memory at time.

9)	The Plaintiff has also expended medical and released cost as a result, exceeded K14, 000.00, which the Plaintiff claim same.

10)	As the actions of the Defendants were unlawful, the Plaintiff claims exemplary damages.
	And the Plaintiff claims: - 
	(a)	General damages 
	(b)	Special damages 
	(c)	Exemplary damages 
	(d)	Interest
	(e)	Cost 	

2.	It is not for the Court to guess the basis upon which this claim seeks to proceed.  Indeed, it is symptomatic of the poor standard of legal service given to the State that the Statement of Claim has been permitted to proceed for so long without the Defendants moving to struck out, in part or in full, to seek particulars, to require facts to be admitted or to interrogate – any of which would have been prudent. 

3.	On the 15th of April 2001 the Defence was filed in this form;
1.	The Defendants do not know and thus deny particulars pleaded to in paragraph 1 of the Statement of Claim,
2.	The Defendants admit particulars pleaded to in paragraph 2 of the Statement of Claim.
3.	The Defendants admit the and defendant is responsible for all lawful police actions however, deny that he is responsible for all police inactions under his command.
4.	The Defendants do not know and deny particulars pleaded to in paragraph 4 of the statement of claim and state that on the said Date the first defendant was hospitalized at Laiagam Hospital, and did not shoot the plaintiff.
5.	The Defendants do not know and deny particulars pleaded to in paragraph 5,6,7,8,9,10 and 11 of the Statement of Claim.  The Defendants repeat particulars pleaded to in paragraph 4 of the defence herein.
6.	Except where specifically admitted the Defendants deny the entire claim.
7.	The Defendants plead that this claim is baseless and malicious and should be dismissed forthwith with costs.
   
4.	On the pleadings, therefore, the Defendants deny the shooting and, were a criminal trial would be relying on the defence of alibi.  Indeed, inappropriate though this may be, it appears to be the way in which learned counsel for the Defence conducted the case.

5.	Before considering the evidence filed, it is necessary to examine just what is the basis of the claim.

6.	Examination of the Statement of Claim shows the Plaintiff’s case pleaded to be; 
•	“The First Defendant is a Senior Policeman attached to the Surinki Police Station, Wabag and is therefore an employee, agent and or servant of the State”
•	The Plaintiff sustained injuries which required treatment when shot by the First Defendant;
•	The shooting was unlawful and a reckless handling of a State issued gun. 

7.	In this pleading I did see that the Plaintiff’s claim is intended to be for damages from the Third Defendant (State) on the basis it is vicariously liable for the actions of the First Defendant.  It is not stated whether the action is founded as damages for assault or negligence.  The Wrongs (Miscellaneous Provision) Act is not cited as source for the law upon which the claim is based.  A Court, as I have said, should not, indeed must not, speculate or guess the basis upon which a party bases a pleading – be it a Plaintiff’s Statement of Claim or a Defendant’s Defence.
	
8.	Examination of the evidence does not clarify this issue because, as I have said, although a civil case, it was apparently conducted as an “alibi case” and, although (improperly) the Defendants states that “this claim is baseless and malicious and should be dismissed forthwith with costs” in the Defence, they took not a single step to seek this end by motion, pre-trial direction, notices or any other procedures. 

9.	If the action is intended to proceed as one for damages for assault, the Plaintiff needs to have credible evidence to show that, on balance of probabilities, the First Defendant assaulted (i.e. applied force to the person without permission of the Plaintiff or lawful reason) the Plaintiff and the Plaintiff suffered compensable harm from that application of force. 

10.	If the actions is intended to seek damages on the basis that the Third Defendant (State) is vicariously liable for the negligence of its servant or agent, the Plaintiff must plead and show evidence of tortuous conduct of the First Defendant which was performed in the course of his acting as a servant or agent of the Forth Defendant and, in addition, acting in the scope of his duty.  The Plaintiff must plead, to enliven a plea of negligence that he was owed a duty of care and the actions of the tortfeasor were in breach of that duty. 

11.	So far as a claim for assault is concerned, there is no plea of this as a cause of action.  A party cannot recover for a claim not pleaded (see PNG Banking Corporation v Tole (SC 694)).

12.	The evidence that the Plaintiff produced in this case was apparently directed to a claim in negligence.  Para. 5 of the Statement of Claim, as noted, refers to the shooting being unlawful “and a reckless handling of the State issued gun.” 

13.	There is, however, no plea or evidence to support a plea that, at the time the Plaintiff was shot, the First Defendant was engaged in his duties as a servant of the Third Defendant and was acting in the course of his employment as a servant of the State within the scope of his duties.  

14.	Further, if, as I suppose, the Plaintiff’s lawyer would rely on the Wrongs (Miscellaneous Provision) Act (as stated in his submissions) as statutory basis for the Plaintiff’s action, he must not only plead the facts necessary to bring the claim within the statute but must also specifically plead the statutory previsions relied on.  (See Jacob Simbuakem v Neville Egari (N3824) and Pamendi Ipi Pangu v Mark Korr (N6069).            

15.	This question of pleading was analysed in some detail by Hartshorn J in Jack Pinda v Sam & Inguba (N4659) in the course of which, after an extensive review of authorities, His Honour stated; “to succeed in having the State held liable for the tort of a policeman, the Court has to be satisfied that
	(a)	The Policeman as servant of agent of the State, committed the tort during the course and within scope of his employment (section 1 (1) (a) Wrongs Act), or 
	(b)	The Policeman as an Officer of the State committed the tort while performing or purporting to perform functions conferred or imposed on him by statute or the underlying law.”

16.	So there are two main problems with the pleading of this Statement of 
Claim.  First, the Statement of Claim omits to specifically plead the statutory basis upon which a claim of vicarious liability rests by failing to specifically plead section 1 of the Wrongs (Miscellaneous Provision) Act.  This is mandatory (see Jacob Simbuakem v Egari – Supra).  In addition to this, the underlying law (Common Law) requires a party whose cause depends on statute to plead all the facts required to have the cause pleaded comply with the statute and also plead that statute.  The often quoted case of Read v Brown (1888) 22 QBD 128, is clear authority for this proposition and has been adopted and followed in a number of cases in Papua New Guinea, including by the Supreme Court in Catherine Popo v PNG Electricity Commission (SC 1360). 

17.	Secondly, the Statement of Claim, if it seeks to establish vicarious liability, must plead that the actions of which the Plaintiff complains were not only committed by a servant of agent of the nominal defendant (State) but, most critically, that at the time that he committed the actions complained of he was engaged in his duties as a servant or agent of the State and was acting in the scope of those duties.  There is no plea that when the First Defendant shot the Plaintiff he was acting in the scope of and pursuant to his duties as a servant or agent of the State. 

18.	The omission of these two vital requirements of the pleading of a claim in vicarious liability means that the action must fail.  Liability cannot be found on the basis of a pleading which is fatally flawed and I so find.  For the sake of completeness, however, I will briefly deal with the question of damages. 

19.	The evidence of injury comes from the Plaintiff, Dr Pinai Smith and Dr McKup.  The report from Dr Smith, director of Medical Services at the Wabag Hospital, written some 10 years after the injury complained of, notes that the Hospital record show the Plaintiff was in hospital from the 27th of April 1999 until discharged on the 17th of June 1999 (a period of approximately 7 weeks – although the Plaintiff, in his affidavit claims a longer hospitalisation.)  When admitted to Hospital the Plaintiff was diagnosed with multiple superficial wounds from shot gun pellets.

20.	Dr McKup’s report (also dated 10 years after the injury) is of absolutely no value as evidence – and especially is it no value on the question of what restrictions of the Plaintiff’s whole of body function arose from his wounding.  The report is hearsay and does not detail any tests administered as basis for any conclusion. 

21.	Both reports deal with psychological issues.  Neither doctor is, on the face of it, qualified to express such opinion and I am unable to base any findings on them.  I do note, however, that Dr Smith comments “Mr Kisa has no loss of function to his arms, legs nor spine area.  He has the possibility that psychological trauma sustained will affect his career.  As always, this will be alleviated by some form of compensation”.

22.	There is no evidence from the Plaintiff, at any stage, of any activity in his day to day life that has been diminished or restricted by his injury.  The whole case seems to have proceeded on a mistaken basis of the nominated tortfeasor having an alibi – with the Defendant saying he wasn’t there and the Plaintiff saying “he was, they are lying.”  No admissible evidence has been produced of any physical loss sustained to justify damages.  No admissible evidence being produced of psychological damage sufficient to justify any award of damages.  No proof has been tendered to show expenditure of the special damages claimed – in short, even were vicarious liability properly pleaded, there is no evidence the Plaintiff suffered hurt or injury of a type to warrant an award of  damages at all.  I dismiss the claim. 

23.	In exercise of my discretion of costs, I note that this action has been mishandled by both parties.  It was not a matter of alibi but of pleading of vicarious liability.  The Defendants could (and should) have taken action on the state of the pleadings and also have defended it competently.  The fact that the Plaintiff failed to obtain a verdict is not because of but in spite of the conduct of the Defence. 

24.	In light of the fore going I make the following Orders;

1)	The Plaintiff’s claim is dismissed;
2)	The parties are to bear their own costs
 ________________________________________________________________
Paulus M. Dowa Lawyers   : Lawyers for the Plaintiff		 
Solicitor General                 : Lawyers for the Defendant