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Lome v Sele [2017] PGNC 184; N6854 (18 August 2017)

N6854

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 1087 OF 2011

JEFF JOE LOME
Plaintiff

V

KATU SELE
First Defendant

ANTHONY WAGAMBIE, COMMISSIONER OF POLICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2015: 19 November, 17 December,
2017: 18 August

HUMAN RIGHTS – enforcement – alleged Police brutality – trial on vicarious liability of Commissioner of Police and the State – whether vicarious liability of the State requires plaintiff to prove that a police officer was acting within the scope of his lawful police functions.

The plaintiff alleged that he was assaulted by a member of the Police Force (the first defendant) who was on duty and performing police functions at the time of the incident. He commenced proceedings against that person, claiming damages for breach of human rights. He joined the Commissioner of Police and the State as second and third defendants, claiming each was vicariously liable for the human rights breaches committed by the first defendant. The plaintiff secured default judgment against the first defendant, subject to assessment of damages. A trial was conducted on the issue of liability of the Commissioner and the State. They did not concede the factual allegations of the plaintiff, but nor did they present any evidence rebutting them. They conceded only that the first defendant was a member of the Police Force and therefore an employee of the State. Their principal defence was that the plaintiff had failed to prove that the first defendant committed any wrongful acts while on duty and acting within the lawful scope of his duty as a member of the Police Force.

Held:

(1) The plaintiff proved the factual allegations on which his claim was based: the first defendant, a member of the Police Force who was on duty at the time, assaulted him for no good reason, causing him injury.

(2) The plaintiff proved that the first defendant thereby breached his human rights under Sections 36(1) (freedom from inhuman treatment) and 37(1) (protection of the law) of the Constitution.

(3) It was not necessary for the plaintiff to prove that the first defendant committed the breach of human rights while on duty and acting within the lawful scope of his duty as a member of the Police Force. It was sufficient to prove that the first defendant was acting or purporting to act in the course of his police duty (Philip Nare v The State (2017) SC1584 applied).

(4) The plaintiff proved that the first defendant, at the time that he committed the human rights breaches, was on duty and purporting to act in the course of police duty. The State, as the first defendant’s employer, was therefore vicariously liable.

(5) The Commissioner of Police was not the first defendant’s employer and could not be vicariously liable for the unlawful actions of the first defendant. The Commissioner could not be personally liable unless he instructed or authorised the first defendant’s unlawful actions. That was not proven, so the Commissioner was not liable.

(6) Judgment on liability was entered against the third defendant, the State.

Cases cited

The following cases are cited in the judgment:

Application by Kunzi Waso [1996] PNGLR 218
Aquila Kunzie v NCD Police Mobile Squad (2014) N5584
Dalin More v The State (1998) N1736
Desmond Huaimbakie v James Baugen & The State (2004) N2589
Jack Pinda v Sam Inguba (2012) SC1181
Kelly Koi v Constable Anseni & The State (2014) N5580
Linda Kewakali v The State (2011) SC1091
Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807
Michael Wafi v Edward Christian (2015) N6056
Nathan Kandakasi v The State (2017) N6601
Philip Nare v The State (2017) SC1584
Vincent Kerry v The State (2007) N3127
William Pattits v The State (2006) N3088

STATEMENT OF CLAIM

This was a trial on liability of the second and third defendants, the cause of action being breach of human rights, liability having been earlier established against the first defendant by default judgment.

Counsel

S Japson, for the Plaintiff
G Akia, for the Second & Third Defendants

18^th August, 2017

1. CANNINGS J: The plaintiff, Jeff Joe Lome, alleges that he was assaulted by a member of the Police Force (the first defendant, Katu Sele) who was on duty and performing police functions. The incident took place between 1.30 and 2.00 am on Thursday 24 June 2010 outside the Penthouse nightclub at Gordons, National Capital District. The plaintiff commenced proceedings against Mr Sele, claiming damages for breaches of human rights. He joined the Commissioner of Police and the State as second and third defendants, claiming each was vicariously liable for the human rights breaches committed against him by the first defendant.
   
2. The plaintiff secured default judgment against the first defendant, subject to assessment of damages. A trial has been conducted on the issue of liability of the Commissioner and the State. They did not concede the factual allegations of the plaintiff, but nor did they present any evidence rebutting them. They conceded only that the first defendant was a member of the Police Force and therefore an employee of the State.
   
3. Their principal defence is that the plaintiff failed to prove that the first defendant committed any wrongful acts while on duty and acting within the lawful scope of his duty as a member of the Police Force. The following issues arise:
   
   1. Has the plaintiff proven the factual allegations?
      
   2. Has the plaintiff proven a cause of action against the first defendant?
      
   3. Has the plaintiff proven vicarious liability against the Commissioner and/or the State?
      
   4. What orders should be made?
      
1. HAS THE PLAINTIFF PROVEN THE FACTUAL ALLEGATIONS?
   
4. The plaintiff has set out his version of events in an affidavit that has been admitted into evidence. Two affidavits by persons who were with him and depose to what they saw happen, are also in evidence. The only evidence for the defendants was an affidavit by a legal officer with the Royal PNG Constabulary, Senior Inspector Luvi Florian, who was not present at the incident. His evidence was relevant only to the question of whether the actions of the first defendant were lawful, not whether the first defendant committed those actions.
   
5. I have been given no reason to think that the evidence for the plaintiff is suspect or questionable. In any event the factual issues have been resolved by the entry of default judgment against the first defendant. The plaintiff has proven the factual allegations on which his case is based. I make the following findings of fact:
   

• At about 1.30 am on 24 June 2010 the plaintiff and two male friends left the Country Club, Waigani Drive, where they had attended a social function. They proceeded along Waigani Drive in the plaintiff’s vehicle, which he drove, in the direction of Boroko.
  
• The plaintiff stopped the vehicle, as required, at a police road block on Waigani Drive, shortly after going through the tunnel beneath the Poreporena Highway.
  
• Amongst the police officers present at the road block was the first defendant. The police checked the plaintiff’s driver’s licence and vehicle registration and he was allowed to pass through.
  
• The plaintiff continued the journey along Waigani Drive for a short distance before turning left into a road which led to Penthouse nightclub.
  
• The plaintiff drove the vehicle into the nightclub’s carpark and he and his friends alighted from the vehicle. His friends stepped back to the main gate to buy cigarettes while he walked to the nightclub entrance where he was suddenly attacked by the first defendant.
  
• The first defendant punched the plaintiff in the face causing the plaintiff to lose consciousness for a few seconds. The first defendant then kicked and further punched the plaintiff and dragged him back into the car park. The first defendant was in full mobile squad uniform and armed with an M-16 rifle.
  
• The plaintiff’s friends were prevented by others from coming to the aid of the plaintiff.
  
• The first defendant, after dragging the plaintiff into the car park, kicked and punched the plaintiff again, and was assisted by other men, who the plaintiff believes were un-uniformed members of the Police Force (there is however, no corroboration of that belief, and I refrain from finding as a fact that the men who assisted the first defendant were members of the Police Force).
  
• The group of men of which the first defendant was a member shouted at the plaintiff things like ‘Yupela lawyer ya yupela sa acting tumas ya!’ [You lawyers think you are really smart!] and ‘U mas savi olsem Polis mipela raunim displa kantri.’ [You must know that the Police are all around the country.]
  
• When the first defendant committed the assault, he was in Police uniform and armed with an M16 rifle. He was at all relevant times on duty, purporting to carry out Police functions. He assaulted the plaintiff for no good reason.
  
• The plaintiff was again rendered unconsciousness due to the assault. He regained consciousness at about 5.30 am in the back seat of his vehicle, which was still parked in the nightclub carpark.
  
• He then drove his vehicle with his two friends to his office, which was nearby, and took photographs of himself using his laptop computer web-cam (the photographs are annexed to the plaintiff’s affidavit and corroborate his claim that he was bashed on the face and head).
  
• At 8.30 am the plaintiff drove to a medical clinic at Koki and was examined and treated by Dr Samuel Maima for the injuries and pain from the beating he was suffering.
  
• A medical report prepared by Dr Maima is evidence that as a result of the assault by the first defendant on the plaintiff, the plaintiff suffered various injuries, including:
  
  • lacerations to right eye, nose, cheeks and ears, accompanied by swollen eyes and bruises;
  • swollen nose with left lateral deviation of the nasal ridge;
  • buccal lacerations to mucosa of the mouth;
  • permanent loss of two upper teeth;
  • continuous bleeding from mouth;
  • straining of the intercostal muscles of ribs;
  • fracture dislocation of wrist joints.
    

2 HAS THE PLAINTIFF PROVEN A CAUSE OF ACTION AGAINST THE FIRST DEFENDANT?

6. Yes, the plaintiff has proven that two of his human rights (which were pleaded in the amended statement of claim) were breached by the first defendant. These are:
   
   • the right not to be submitted to treatment that is cruel or otherwise inhuman, under Section 36(1) (freedom from inhuman treatment) of the Constitution; and
     
   • the right to the full protection of the law under Section 37(1) (protection of the law) of the Constitution.
     
7. He has proven a cause of action in breach of human rights against the first defendant.
   
3. HAS THE PLAINTIFF PROVEN VICARIOUS LIABILITY AGAINST THE COMMISSIONER AND/OR THE STATE?
   
8. Vicarious liability is a common law principle by which one legal person (such as the State) is held liable for the acts or omissions of another person or group of persons (such as members of the Police Force, who are employed by the State) over whom the first person has control or responsibility.
   

The State

9. I deal first with the third defendant, the State, which is the first defendant’s employer. Mr Japson for the plaintiff submitted that the State is vicariously liable for torts and other civil wrongs committed by its employees if the wrong was committed within the course of the employee’s employment. Here the first defendant committed human rights breaches – civil wrongs – against the plaintiff, in the course of his employment as, at the time he assaulted the plaintiff, he was on duty and carrying out, or at least purporting to carry out, Police functions.
   
10. Mr Akia, for the State, submitted that the test for determining vicarious liability of the State is not as simple as that. He relied on a line of authority that suggests that a plaintiff must prove that the primary wrongdoer committed the wrong while on duty and acting within the lawful scope of his duty as a member of the Police Force. If the primary wrongdoer goes so far out of his authorised domain (for example by committing a criminal offence or going out on frolic of his own) as to be acting beyond the lawful scope of his duty, the State will not be vicariously liable. Cases supporting this approach include Jack Pinda v Sam Inguba (2012) SC1181, Application by Kunzi Waso [1996] PNGLR 218, Dalin More v The State (1998) N1736 and Desmond Huaimbakie v James Baugen & The State (2004) N2589.
    
11. Mr Akia submitted that there was evidence before the Court in the form of the affidavit of Senior Inspector Florian, that the actions of the first defendant in assaulting the plaintiff and breaching his human rights were not authorised by the Commissioner of Police, and that the Commissioner does not in any circumstance authorise actions or operations that are criminal or otherwise illegal in nature.
    
12. I uphold the last two points: the first defendant’s actions were not authorised by the Commissioner and the Commissioner does not normally authorise actions that are criminal or illegal. However, that does not advance the State’s defence. The issue remains whether the State is shed of vicarious liability because the first defendant’s conduct was so obviously unlawful that he acted outside the scope of his authorised actions.
    
13. I have long been discomfited by such an approach. In Kelly Koi v Constable Anseni & The State (2014) N5580 the plaintiff, a prison escapee, was shot in the leg by Police, despite being unarmed and in safe custody at the time. His leg was amputated. The State argued it should not be vicariously liable as, though the Police officer was on duty, the officer committed an obviously unlawful act outside the scope of his authorised actions. I rejected the argument:
    

If these decisions stand for the proposition that as soon as it can be established that a police officer, such as the first defendant, has done something obviously unlawful, it follows that he has acted outside the scope of his employment, therefore excusing the State from liability, I respectfully decline to follow them. I have a different view entirely.

Each case must be judged on its merits. The question always remains: was this officer acting within the scope of his employment? Was he on Police duty? Was it an authorised operation? If the answer to all these questions is yes, the State must, as a matter of logic, and most importantly justice, be liable.

It is the State which is responsible for recruiting and training Police officers. It is the State and in particular the Commissioner of Police and the upper echelons of the Force whose duty it is to educate the members of the Force on human rights. Police officers must understand that they have no right to shoot people who are unarmed and already in safe custody. If the State and the Commissioner of Police continue to be unable to get this message across to the members of the Force then they will continue to fail in their duty to the People. And for this institutional failure, the State must pay. It must as a matter of justice be liable.

The other thing I am concerned about, if the approach favoured in Waso and Huaimbakie is applied strictly, is that innocent plaintiffs who have managed to prosecute their cases through the National Court and perhaps the Supreme Court, will, if they succeed in proving that their human rights have been violated by a rogue police officer, be rewarded with a judgment – perhaps running into hundreds of thousands of Kina – against an individual who in all likelihood will have been dismissed from the Force, be unemployed and in no position to pay anything. A Pyrrhic victory for the plaintiff. Meanwhile, the State gets off scot-free. It’s created the mess. The State allowed that rogue officer to be trained in the art of Police brutality. But it has no responsibility. That is not justice. That is why I want no part in developing the law in that direction.

... I find that the first defendant committed negligence and breaches of human rights in the course of his employment. Therefore the plaintiff has established vicarious liability against the first defendant’s employer, the State.

14. I expressed similar sentiments in a number of other cases including William Pattits v The State (2006) N3088, Vincent Kerry v The State (2007) N3127, Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807 and Michael Wafi v Edward Christian (2015) N6056. In Nathan Kandakasi v The State (2017) N6601, a case in which the plaintiff was bashed in the head by Police, resulting in permanent loss of vision in one eye, I expressed misgivings about the spectre of human rights cases being dismissed on technicalities:
    

I cannot see the justice in refusing relief to an innocent plaintiff who is the victim of Police brutality or some other sort of wrong committed by employees of the State, simply because the plaintiff cannot identify by name the State employee who committed the wrong, or the plaintiff or his lawyer have not complied with the strict rules of pleadings developed in faraway parts of the common law world to deal with common law claims.

15. I retain the view I expressed in the above cases: it is not necessary, to establish vicarious liability against the State, for a plaintiff to show both that the police officer was on duty and acting within his authorised scope of operations. It is sufficient to show that the police officer was on duty and purporting to act in the course of Police duties. In support of that view, I refer to the recent decision of the Supreme Court in Philip Nare v The State (2017) SC1584. This was an appeal against the decision of the National Court to refuse a claim for damages, arising from an unlawful Police raid of a village. The Supreme Court noted that there was evidence of “an appalling display of Police brutality and abuse of power with serious wrongs being inflicted on the plaintiffs with bodily injuries and property damage being alleged”. The National Court refused the appellant’s claim as he did not name any of the police officers allegedly involved as defendants. The National Court applied the principles developed in the Supreme Court case of Linda Kewakali v The State (2011) SC1091: if a plaintiff is suing the State on the basis of vicarious liability for a tort or other civil wrong committed by members of the Police Force, the member of the Police Force who is alleged to have done wrong must be named as a party to the proceedings and named in the pleadings and must be identified in the evidence.
    
16. In Nare the Kewakali principles were thoroughly examined and regarded as not good law. Kewakali was overruled. The Court in Nare consisted of five Judges: Injia CJ, David J, Ipang J, Higgins J and Neill J. In Kewakali the Court consisted of three Judges (Davani J, Kariko J and Sawong J). Because Nare was a decision of a greater number of Judges than in Kewakali, and the Court in Nare was led by the Chief Justice and it is the more recent decision and it overruled Kewakali, it is the Supreme Court decision that must now be followed.
    
17. As well as settling the law on the question of whether the actual alleged police wrongdoers have to be named as parties, named in the statement of claim and identified by name in the evidence, the Court in Nare also dealt with the question of whether it is necessary for a plaintiff to prove that the police officer was acting within the lawful scope of his duties. It was clearly indicated that this is not necessary. It is sufficient to prove that the police officer was acting or purporting to act in the course of his duties.
    
18. The decision in Nare is very significant. It stands as authority for the following propositions in any case in which a person sues the State, claiming that it is vicariously liable for the torts or other civil wrongs including human rights breaches committed by members of the Police Force or any other employee of the State:
    
    1. it is not necessary to name the specific tortfeasor or wrongdoer as a defendant;
       
    2. it is not necessary to name the specific tortfeasor or wrongdoer in the statement of claim or other originating process;
       
    3. it is not necessary to name or identify the specific tortfeasor or wrongdoer in the evidence;
       
    4. it is not necessary to plead or prove that the tortfeasor or wrongdoer committed the breach of human rights while on duty and acting within the lawful scope of his or her duties as an employee of the State, eg as a member of the Police Force; it is sufficient to prove that the tortfeasor or wrongdoer was acting or purporting to act in the course of his or her duties.
       
19. The first three of those principles were not contentious in the present case as the plaintiff did in fact name the wrongdoer as first defendant, named him in the statement of claim and identified him in the evidence. The final one, however, has been very contentious.
    
20. The State’s principal argument has been that it could not be vicariously liable as the first defendant’s actions were clearly unauthorised and outside the scope of his authorised actions. I accept that his actions were clearly unauthorised. However that provides the State with no defence as the plaintiff has proven that the first defendant was at all relevant times on duty and purporting to carry out Police functions and duties. On the authority of Nare, the State is vicariously liable for the human rights breaches the first defendant committed against the plaintiff.
    

The Commissioner

21. The question of liability of a senior officer such as the Commissioner of Police for his junior officer’s unlawful conduct was also addressed in Nare. The Court cautioned against what has become the common practice of naming senior officers as defendants, in these terms, at paragraph 61:
    

Nevertheless, the naming of senior officers who may well have had no knowledge of their junior officers’ activities is not only otiose but contrary to principle. To be named as a defendant a person must be alleged to be a tortfeasor or a person or body vicariously liable for the acts of a principal tortfeasor. A senior officer is not vicariously liable for the acts of his or her subordinates. He or she can only be liable if directing or authorising the tortious conduct.

22. I find that the second defendant, the Commissioner of Police, is not liable as he is not the first defendants’ employer. And there is no evidence or suggestion that he actively participated in the incident or that he gave any instructions that resulted in the breach of human rights committed against the plaintiff.
    
3. WHAT ORDER SHOULD THE COURT MAKE?
   
23. As this was a trial on liability only, I will order that the third defendant is liable in damages, which will be subject to assessment. The question of costs will be determined later.
    

ORDER

(1) The third defendant is liable in damages for breaches of human rights committed by the first defendant, as pleaded in the statement of claim.

(2) The claim against the second defendant fails.

(3) The question of assessment of damages against the first and third defendants and costs shall be determined after a separate trial.

Judgment accordingly.
________________________________________________________________
Japson & Associates Lawyers : Lawyers for the Plaintiff
Solicitor-General : Lawyer for the Second & Third Defendants