N9167
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO.1236 OF 2017

BETWEEN
JONAH YAKOP YAKUMAN
Plaintiff
AND
CHIEF INSPECTOR GEDION KAUKE & FIRST CONSTABLE HOMES MOHA
First Defendant

AND
COMMISSIONER OF ROYAL PAPUA NEW GUINEA CONSTABULARY – GARI BAKI
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani:  Makail, J
2021:  22nd June & 24th September

LIABILITY – Tort of negligence – Negligent discharge of firearm by member of police – Whether tortfeasor acting in the course of employment – Vicarious liability – Tort of negligence occurred outside the scope of employment – Liability not established – Wrongs Miscellaneous (Provisions) Act, Ch 297 – Section 1 

Facts:

This is a case of negligent discharge of a firearm by a member of the police resulting in the wounding of the plaintiff.  The Solicitor General filed a defence for all the defendants and denied liability on the ground that one of the first defendants First Constable Homes Moha discharged the firearm outside the course of his duties although they do not deny the discharge of the firearm and wounding of the plaintiff.  

Held:

1.	The third defendant’s liability is not wholly independent from its servants and agents and the onus of proof is on the plaintiff to establish that the third defendant is vicariously liable for the actions and/or omissions of its servants and agents, in this case, the first defendants pursuant to Section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

2.	The evidence fell short of establishing that First Constable Homes Moha was on authorised or approved operation by the Commissioner of Police.  On the other hand, the evidence established that the latter provided an escort or security to Chief Inspector Gedion Kauke at the “Rausim Haus Krai” feast.  The “Rausim Haus Krai” feast was a private event and the shooting of the plaintiff by First Constable Moha occurred outside official duties or was not an operation approved by the second defendant.  

3.	 It follows that the third element of the tort of negligence namely, the tort was committed within the scope or course of the first defendants employment has not been proven and the action must be dismissed with costs to the defendants to be taxed, if not agreed.

Cases Cited:

Jack Walom Kanit t/a Citi Link Taxi Services v. National Airports Corporation Limited (2021) SC2084

Counsel:

Mr. B. Lakakit, for Plaintiff 
Ms. N. Aiwara, for Defendants
JUDGMENT

24th September, 2021

1.	MAKAIL J: This is a case of negligent discharge of a firearm by a member of the police resulting in the wounding of the plaintiff at Gerehu Stage 4 suburb in the city of Port Moresby on 1st August 2015.

2.	The Solicitor General filed a defence for all the defendants and denied liability on the ground that one of the first defendants First Constable Homes Moha discharged the firearm outside the course of his duties although they do not deny the discharge of the firearm and wounding of the plaintiff.  

3.	The third defendant’s liability is not wholly independent from its servants and agents and the onus of proof is on the plaintiff to establish that the third defendant is vicariously liable for the actions and/or omissions of its servants and agents, in this case, the first defendants pursuant to Section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

4.	In Jack Walom Kanit t/a Citi Link Taxi Services v. National Airports Corporation Limited (2021) SC2084 the Supreme Court stated:

“To establish vicarious liability at common law it is necessary to prove that: a tort has been committed; the tort was committed by an employee; and the tort was committed in the scope or course of his or her employment:  Guard Dog Security Services v Mathews (2019) SC1861”.

5.	The evidence of the plaintiff is consistent with the evidence of first constable Homes Moha that the latter discharged a firearm several times and two of the bullets struck the plaintiff on his right thigh and calf muscle during an altercation. As the Medical Report from the Port Moresby General Hospital and photographs show, the plaintiff sustained wounds to his right thigh and calf muscle.  

6.	The real issue is whether First Constable Homes Moha was acting in the course of his duties or on approved operation when he discharged the firearm and wounded the plaintiff such that the third defendant is vicariously liable.  

7.	The plaintiff described First Constable Moha as wearing a six pocket police-issued short and armed with a police-issued firearm.  He was providing security to Chief Inspector Gideon Kauke.  It may be so but there is no evidence from the plaintiff that First Constable Moha was on official duties or acting in the course of his duties at the material time.  For example, there is no evidence that First Constable Moha was in the company of the other first defendant Chief Inspector Kauke in pursuit of criminals when he discharged the firearm and wounded the plaintiff.  Similarly, there is no evidence that First Constable Moha and Chief Inspector Kauke were called to disperse a rowdy crowd when First Constable Moha discharged the firearm and wounded the plaintiff.  In essence, the evidence fell short of establishing that First Constable Moha was on authorised or approved operation by the Commissioner of Police.

8.	The evidence of the plaintiff which is consistent with the evidence of First Constable Moha is that, the latter provided an escort or security to Chief Inspector Kauke at the “Rausim Haus Krai” feast.  He and another member of the police by the name of Tony Getzo had earlier that morning accompanied Chief Inspector Kauke to Sogeri and picked up a cow and brought it in a motor vehicle to Gerehu Stage 4 where the feast was to be held.  While they were there, an altercation took place between First Constable Moha and one of the youths from the neighbourhood and the plaintiff was shot and wounded.

9.	The “Rausim Haus Krai” feast was a private event and the shooting of the plaintiff by First Constable Moha occurred outside official duties or was not an operation approved by the second defendant.  It follows that the third element of the tort of negligence namely, the tort was committed within the scope or course of the first defendant’s employment has not been proven and the action must be dismissed with costs to the defendants to be taxed, if not agreed.

Judgment and orders accordingly.
________________________________________________________________
Lakakit & Associates Lawyers:		Lawyers for Plaintiff
Solicitor General:				Lawyers for Defendants