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Kebean v Toba [2021] PGNC 436; N9301 (17 November 2021)

N9301

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 684 OF 2019

MARK KEBEAN
Plaintiff

V

CAPTAIN ELVIS TOBA,
OFFICER-IN-CHARGE, MILITARY POLICE,
PAPUA NEW GUINEA DEFENCE FORCE
First Defendant

BRIGADIER-GENERAL GILBERT TOROPO,
COMMANDER, PAPUA NEW GUINEA DEFENCE FORCE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2021: 3^rd, 12^th, 17^th November

HUMAN RIGHTS – alleged raid and destruction of residential property and assault of resident by members of Defence Force – whether plaintiff has sufficiently pleaded and proven that human rights breaches were committed by member of Defence Force who led alleged raid – whether Commander of Defence Force or the State are vicariously liable.

The plaintiff claimed that members of the Defence Force led by the first defendant raided his residence, adjacent to a military barracks, and set it alight and assaulted him in the process, in reaction to a stabbing attack on another member of the Defence Force that had occurred in the vicinity of the plaintiff’s residence earlier that day. The plaintiff claimed that the first defendant and the group he led committed various human rights breaches against him and that the first defendant is liable in damages. The plaintiff further claimed that the Commander of the Defence Force (second defendant) and the State (third defendant) are vicariously liable for the human rights breaches committed by the first defendant. A trial on liability was conducted.

Held:

(1) The plaintiff sufficiently pleaded and proved on the balance of probabilities that his residence was raided and set alight, and he was assaulted in the course of that incident, by members of the Defence Force under the command and control of the first defendant; and that human rights breaches under ss 36, 37, 44, 49 and 53 of the Constitution were committed against him, for which the first defendant is liable in damages.

(2) The plaintiff failed to adequately plead or prove that the Commander of the Defence Force was involved in the incident or played any role that would give rise to liability on his part. The proceedings against him were dismissed.

(3) To succeed in establishing vicarious liability of the State, qua employer, for human rights breaches committed by a member of the Defence 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.

(4) Vicarious liability of the State was neither adequately pleaded nor proven. There was no pleading that the human rights breaches by the first defendant and other members of the Defence Force were in the course of their employment while performing or purporting to perform Defence Force functions. The evidence did not support a finding that what they did was in the purported performance of Defence Force functions. The proceedings against the State were dismissed.

(5) The proceedings will continue with a trial on assessment of damages against the first defendant.

Cases Cited

The following case is cited in the judgment:

Nare v The State (2017) SC1584

Counsel

E Nalea, for the Plaintiff
V Balio, for the Defendants

17^th November, 2021

1. CANNINGS J: This was a trial on liability. The plaintiff, Mark Kebean, claims that on the night of Saturday 4 August 2018, members of the Papua New Guinea Defence Force from the nearby Murray Barracks raided his house in Silkwood Street, Hohola, National Capital District, set fire to it, damaged or destroyed other property including his motor vehicle and assaulted him. He claims that they did this because of an incident earlier that day in his street, in which a member of the Defence Force was stabbed and killed. He claims he had no involvement in that incident and he was entirely innocent but for some unknown reason the Defence Force members acted as they did towards him. They were led by Captain Elvis Toba, the first defendant.

2. The plaintiff claims that his human rights were breached by the first defendant and he seeks damages against him, and also against the Commander of the Defence Force (second defendant) and the State (third defendant) who, he claims, are vicariously liable.

3. There was some confusion about legal representation for the defendants. At the trial, counsel from the Office of Solicitor-General, Ms Balio, announced her appearance only for the State. However, according to a notice of intention to defend filed on 23 September 2019, the Solicitor-General acts for all defendants. Though another notice of intention to defend was filed on 4 October 2019 by Lieutenant-Colonel Rodney Yahamani, for the second and third defendants, the first notice has never been amended. In the pre-trial hearings only lawyers from the Office of Solicitor-General have appeared. In these circumstances I regard all defendants as being represented by the Solicitor-General.

4. Ms Balio made no submissions for the first or second defendants and effectively conceded that the facts as alleged by the plaintiff are truthful and that the first defendant (but not necessarily the second defendant) is liable for the human rights breaches pleaded by the plaintiff in his statement of claim. Ms Balio submitted, however, that the State should not be held vicariously liable.

5. These are the main issues:

1. Have the allegations of fact been proven?
   
2. Has liability of the first defendant been proven?
   
3. Has liability of the Commander of the Defence Force been proven?
   
4. Has liability of the State been proven?
   

1 HAVE THE ALLEGATIONS OF FACT BEEN PROVEN?

6. Yes, I am satisfied that the plaintiff has proven the essential facts as pleaded in the statement of claim. He has sworn an affidavit, which has been admitted into evidence, giving details of what happened. There is no contrary evidence.

7. I find that he has lived in his property, of which he is the registered proprietor, for many years. He operates a trade store there. There was an incident involving a few Defence Force members in the morning of 4 August 2018. There was an altercation of some sort between them and a couple of local residents. A few other things happened in which the plaintiff was not involved. He is a Seventh-Day Adventist. This was his Sabbath and after attending church in the morning he was resting in his house in the afternoon. He was an innocent victim of a raid on his property by Defence Force members led by the first defendants. The raid happened about 11.00 pm. He was assaulted and injured and taken to hospital for emergency treatment. His house was set alight. Other property was damaged or destroyed.

2 HAS LIABILITY OF THE FIRST DEFENDANT BEEN PROVEN?

8. I am satisfied that the plaintiff has proven that his human rights as conferred by the following provisions of the Constitution were, as pleaded in the statement of claim, infringed:

s 36: freedom from inhuman treatment;

s 37: protection of the law;

s 44: freedom from arbitrary search and entry;

s 49: right to privacy; and

s 53: protection from unjust deprivation of property.

9. I am satisfied that it has been proven that the person directly responsible for the commission of those human rights breaches against the plaintiff is the first defendant, Captain Elvis Bola. Captain Bola did not give evidence contradicting the evidence of the plaintiff that it was him who was the leader of the Defence Force members who committed those human rights breaches against the plaintiff. There was no evidence at all from the defendants. The evidence of the plaintiff is sufficient. He has established liability against the first defendant.

3. HAS LIABILITY OF THE COMMANDER OF THE DEFENCE FORCE BEEN PROVEN?
   

10. As a matter of law, the Commander of the Defence Force is not the employer of any member of the Defence Force. The Commander will not be liable for the unlawful actions of another member of the Defence Force unless the Commander authorised those actions. There is no evidence or suggestion that the Commander authorised the actions of those persons who breached the plaintiff’s human rights. Therefore the Commander is not vicariously liable.

4 HAS LIABILITY OF THE STATE BEEN PROVEN?

11. To succeed in establishing vicarious liability of the State, qua employer, for human rights breaches committed by a member of the Defence 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 (Nare v The State (2017) SC1584).

12. I find that the first defendant and the other unidentified members of the Defence Force who breached the plaintiff’s human rights were employees of the State. However, I find that vicarious liability of the State has not been adequately pleaded in the statement of claim. There is no pleading that the human rights breaches by the first defendant and other members of the Defence Force were committed in the course of their employment while performing or purporting to perform Defence Force functions.

13. Furthermore it must be inferred from the evidence that the first defendant and the members of the Defence Force he led were not performing any legitimate Defence Force functions. They were not even purporting to perform Defence Force functions. Their actions were entirely unauthorised, undisciplined and out of line. They took the law into their own hands. I find that the State is not vicariously liable.

CONCLUSION

14. The case against the first defendant will proceed to trial on assessment of damages. The case against the second and third defendants will be dismissed.

ORDER

(1) The plaintiff has established liability against the first defendant, for breaches of human rights under ss 36, 37, 44, 49 and 53 of the Constitution, as pleaded in the statement of claim.

(2) The plaintiff has failed to establish liability against the second or third defendants, against whom the proceedings are dismissed.

(3) There shall be a trial on assessment of damages against the first defendant.

(4) The question of costs of the proceedings is adjourned until the trial on assessment of damages.

________________________________________________________________
Kamen Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the Defendants