N9214
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 248 OF 2016

LOWAIYE MINDILI
Plaintiff

V

SERGEANT PHILIP KUIMO
First Defendant

GARI BAKI, COMMISSIONER OF POLICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2021:15th, 18th October

HUMAN RIGHTS – actions against the State for human rights breaches allegedly committed by a member of Police Force against plaintiff – whether the State bears vicarious liability – requirement for vicarious liability to be specifically pleaded and proven. 

The plaintiff succeeded in obtaining default judgment against the first defendant, a member of the Police Force, in relation to an alleged incident in which the first defendant went to the plaintiff’s house, verbally abused her, physically assaulted her, apprehended her, took her against her will to a police station, detained her for 24 hours without formal arrest or charge and in that time denied her medical treatment for the serious injuries she had incurred. A trial was then set down to determine the liability of the Commissioner of Police (second defendant) and the State (third defendant). At the trial the plaintiff abandoned the claim against the Commissioner, so the question of vicarious liability of the State was the only issue for determination. The State argued that it had no liability as it was neither adequately pleaded nor proven that it was vicariously liable

Held:

(1)	To succeed in establishing vicarious liability of the State, qua employer, for human rights breaches committed by a member of the Police, qua employee, the plaintiff is required to plead and then prove that the member committed the breaches (a) in the course of their employment and (b) while performing or purporting to perform functions conferred on them by law. 

(2)	The statement of claim was clumsily drafted in that there was no express pleading that the member committed the breaches in the course of his employment and while purporting to perform functions conferred on him by law. Nevertheless, the only reasonable inference to draw from the wording of the statement of claim, considered as a whole, was that those were the actual grounds on which vicarious liability was claimed against the State. Vicarious liability was sufficiently pleaded.  

(3)	The plaintiff adduced sufficient evidence, in the form of an affidavit of herself and affidavits of several bystanders, to verify her allegations, and the State presented no evidence to contradict that evidence. It was proven on the balance of probabilities that her allegations of fact were correct, including that the first defendant had committed human rights breaches against her in the course of his employment and while purporting to perform police functions. 

(4)	Vicarious liability was established against the State, subject to a trial on assessment of damages. 

Cases Cited

The following cases are cited in the judgment:

Kamuri v Pomoso (2021) SC2071
Kisa v Talok (2017) SC1650
Nare v The State (2017) SC1584
Pinda v Inguba (2012) SC1181

Counsel

L Tilto, for the Plaintiff 
N Aiwara, for the Second and Third Defendants 

18th October, 2021

1.     CANNINGS J: The plaintiff, Lowaiye Mindili, succeeded in obtaining default judgment against the first defendant, Sergeant Philip Kuimo, a member of the Police Force, in relation to an alleged incident in which the first defendant went to the plaintiff’s house at Komakul village, Imbonggu District, Southern Highlands Province in the early hours of 27 July 2010. He is alleged to have verbally abused her, physically assaulted her, apprehended her, took her against her will to Ialibu police station, detained her for 24 hours without formal arrest or charge and in that time denied her medical treatment for the serious injuries she had incurred. 

2.      A trial was then set down to determine the liability of the Commissioner of Police (second defendant) and the State (third defendant). At the trial the plaintiff’s counsel, Mr Tilto, abandoned the claim against the Commissioner, so the question of vicarious liability of the State was the only issue for determination. The State argued that it had no liability as it was neither adequately pleaded nor proven that it was vicariously liable.

3.     To succeed in establishing vicarious liability of the State, qua employer, for human rights breaches committed by a member of the Police Force, qua employee, the plaintiff is required to plead and then prove that the member committed the breaches (a) in the course of their employment and (b) while performing or purporting to perform functions conferred on them by law (Pinda v Inguba (2012) SC1181, Nare v The State (2017) SC1584, Kisa v Talok (2017) SC1650, Kamuri v Pomoso (2021) SC2071). 

HAS VICARIOUS LIABILITY BEEN ADEQUATELY PLEADED?

4.     The issue of vicarious liability of the State is addressed at paragraphs 2 to 9 of the statement of claim:

2.	The First Defendant at all material times, is a natural person, a serving member of the Police Force, at the material and relevant times was based at the Ialibu Police station, SHP, was and is a servant or agent of the 2nd and 3rd Defendants, can sue and be sued and be sued in her own name [sic]. The 3rd Defendant is vicariously liable for the tortuous acts or omissions of the 1st Defendant.

3.	The Second Defendant at all material times, is also a natural person, he is the Commissioner of Police for the Independent State of Papua New Guinea, at the material and relevant times is and was based at the Police Headquarters Konedobu, NCD and he is responsible for the management, superintendence and running of the rank and file of the Police Force and was and is a servant or agent of the 3rd Defendant, can sue and be sued in his own name and in his official capacity. The 3rd Defendant is vicariously liable for the tortuous acts or omissions of the 2nd Defendant.

4.	At all material times, the Third Defendant is the Independent State of Papua New Guinea and is the employer of the First and Second Defendants and the Third Defendant is thus vicariously liable for the acts and or omissions of the First and Second Defendants. The Third Defendant is therefore liable to be sued pursuant to Section 247(2) of the Constitution and Section 2 of the Claims By and Against the State Act Chapter 30.

5.	The Third Defendant is also liable for Human Rights Violations, Infringements or Abuses commitment [sic] by its servants and agents, pursuant to Sections 57 and 58 of the Constitution as pleaded in the following paragraphs of the Statement of Claim.

6.	At all material times the First and Second Defendants except the Third Defendant (State) were:

(a)	All servants or agents of the Fourth Defendant [sic] for the purposes of Section 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act Chapter 297, and

(b)	Were officers of the Third Defendant for the purposes of Section 1(4) of the Wrongs (Miscellaneous Provisions) Act Chapter 297.

7.	The Plaintiff’s claim is for damages for forceful and false arrest, false imprisonment, threatening, intimidation, swearing, physical brutal assaults causing grievous bodily injuries, abuse, breach and violation of her Constitutional Rights wrongfully and unlawfully occasioned on her by the First Defendant and in the pretext of making a purported arrest.

8.	The Plaintiff says that notice to make her claim against the State and the Defendants was given on the State on 29th October 2010 under cover of a letter dated 27th October 2010.

9.	The State through the Solicitor-General by letter dated 20th January 2011 acknowledged receipt of the Plaintiff’s notice and also acknowledged that the Plaintiff did meet the requirements under Section 5 of the Claims By and Against the State Act.

10.	In the early morning hours of 27th July 2010 at Komakul village, Imbonggu District, Ialibu, Southern Highlands Province, the Plaintiff was apprehended with force and threats and forced to come out of her house by the 1st Defendant who was in full uniform and on official duty. He was from the Highway Patrol Unit No 17 based at Kaupena, Imbonggu District, SHP.

5.     It must be said that that is rather clumsy drafting as there is no express pleading that the first defendant committed the human rights breaches in the course of his employment and while purporting to perform functions conferred on him by law. 

6.      Ms Aiwara has pointed out that the pleading in paragraph 7 that the first defendant committed various wrongs against the plaintiff “in the pretext of making a purported arrest”, if read literally, is actually an allegation that the first defendant was falsely purporting to arrest the plaintiff, the implication being that he was doing something outside authorised police action or that he was, in the jargon of such cases, ‘out on a frolic of his own’. 

7.     That is a valid point to make. The drafter of this pleading has certainly left it open to challenge. Paragraph 7 if read literally is indeed inconsistent with the obvious intention of the statement of claim: to plead a case of vicarious liability against the State. 

8.     Nevertheless, the statement of claim must be read as a whole. I highlight the following passages:

•	paragraph 2 pleads that the first defendant was “a serving member of the Police Force, at the material and relevant times was based at the Ialibu Police station, SHP, was and is a servant or agent of the 2nd and 3rd Defendants, can sue and be sued … The 3rd Defendant is vicariously liable for the tortuous acts or omissions of the 1st Defendant”.

•	paragraph 4 pleads that “the Third Defendant is the Independent State of Papua New Guinea and is the employer of the First and Second Defendants and the Third Defendant is thus vicariously liable for the acts and or omissions of the First and Second Defendants”.

•	paragraph 5 pleads that “the Third Defendant is also liable for Human Rights Violations, Infringements or Abuses [committed] by its servants and agents …”

•	paragraph 6 pleads that “the First and Second Defendants were … servants or agents of the Fourth Defendant [this must be read as Third Defendant] for the purposes of Section 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act Chapter 297, and were officers of the Third Defendant for the purposes of Section 1(4) of the Wrongs (Miscellaneous Provisions) Act Chapter 297.

•	paragraph 7 pleads that “the Plaintiff’s claim is for damages for forceful and false arrest … breach and violation of her Constitutional Rights wrongfully and unlawfully occasioned on her by the First Defendant and in the pretext of making a purported arrest”.

•	paragraph 10 pleads that “the Plaintiff was apprehended with force and threats and forced to come out of her house by the 1st Defendant who was in full uniform and on official duty”.

9.     The only reasonable inference to draw from the above wording of the statement of claim, considered as a whole, is that it is being pleaded that the first defendant committed the human rights breaches against the plaintiff in the course of his employment and while purporting to perform functions conferred on him by law, which renders the third defendant vicariously liable for those human rights breaches. 

11.	  I consider that vicarious liability of the State has been sufficiently, albeit poorly and barely adequately, pleaded.  

HAS VICARIOUS LIABILITY BEEN ADEQUATELY PROVEN?

12.	   The plaintiff adduced evidence, in the form of an affidavit of herself and affidavits of several bystanders, to verify her allegations. The State presented no evidence to contradict that evidence. Ms Aiwara submits that each of the four affidavits of the bystanders is a copy-and-paste of each of the others and is of no probative value. Whereas Mr Tilto submitted the deponents were eyewitnesses to the incident. They saw the same thing and recorded it in the same terms.

13.	    I am not too concerned by the affidavits being expressed in the same terms. It must be inferred from the interpretation clauses annexed to each affidavit that the affidavits were not drafted by the deponents. The affidavits have been drafted by a lawyer. The most significant thing is that four different persons have come forward and lent their signature or mark to an affidavit that supports the plaintiff’s allegations (at least as to the circumstances of her apprehension).

14.	  I find it proven on the balance of probabilities that the plaintiff’s allegations of fact are true, including that the first defendant committed human rights breaches against her in the course of his employment and while purporting to perform police functions. 

CONCLUSION

15.      Vicarious liability of the State for human rights breaches committed by the first defendant against the plaintiff has been sufficiently pleaded and proven. The State is liable. 

ORDER

(1)	The plaintiff has failed to establish liability against the second defendant, against whom the proceedings are dismissed.

(2)	The plaintiff has established liability against the third defendant, for breaches of human rights under ss 36, 37 and 42 of the Constitution, as pleaded in the statement of claim.

(3)	There shall be a trial on assessment of damages against the first defendant (against whom liability has been determined by default judgment) and the third defendant. 
________________________________________________________________
Kari Bune Lawyers: Lawyers for the Plaintiff		
Solicitor-General:	Lawyer for the Second & Third Defendants