N10748
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1716 OF 2015

BETWEEN:
MICHAEL NIKINTS OF
SURVIVOR TRANSPORT
Plaintiff

AND:
INSPECTOR BEN KUA &
CONSTABLE ROBIN MATALIK
First Defendants

AND:
JEFFREY VAKI as COMMISSIONER OF POLICE
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Bre, AJ
2023:10th November
2024: 19th April

NEGLIGENCE – Police detained plaintiff's PMV bus – whether policemen acted within scope of duties – elements of negligence considered.

VICARIOUS LIABILITY – State must produce evidence to discharge burden of proof that policemen acted outside normal course of duties– no evidence of scope of policemen’s normal duties - no evidence of any formal disciplinary action taken against policemen who committed the purported unauthorised actions and omissions– State is vicariously liable. 

Facts

The plaintiff claims his PMV bus was unlawfully detained by the Police  when they at Gordons Market in NCD on 22 February 2014 stopped the driver and crew and seized and detained the bus.

Held

1. The first defendants are negligent in detaining the plaintiff’s bus.

2. To discharge vicarious liability and shift liability to its employees, the 	State must prove that:-

	i) the officers acted outside the normal or usual course of their 		duties, and
	ii) the police hierarchy took formal disciplinary actions against the 	concerned officers.

3. The State did not adduce sufficient evidence to disprove vicarious 	liability and is vicariously liable for the actions and omissions of the first 	and second defendant.

Cases Cited:

Papua New Guinean Cases
Arala & Ors v Kua & Ors (2023) N10621
Eriare Lanyat v The State [1997] PNGLR 253 
Jobou v Kumasi (2012) N4607  
Michael Kuman v Digicel (PNG) Ltd (2019) SC1851
Kamuri v Pomoso (2021) SC2071 
Kunnga v Independent State of Papua New Guinea (2005) N2864 
Maku v Maliwolo (2012) SC1171
Rapura v Lingen (2023) N10319
Saka v Independent State of Papua New Guinea (2021) N9205
Wama Kints v The State (2001) N2113

Overseas Cases
Donoghue v Stevenson (1932) AC 526

Legislation
Constitution s197 (1)(b)
National Court Rules O22r11
Police Force Act 1998

Statement Of Claim

Trial by affidavits with no cross-examination where the plaintiff sought to prove negligence and vicarious liability.

Counsel

M J S Goava, for the Plaintiff
Ms A Kajoka, for the Defendants

JUDGMENT

19th April 2024

1.BRE, AJ: INTRODUCTION: The plaintiff, Michael Nikints, owns a 25-seater Toyota coaster public motor vehicle ('PMV') bus that services route 16 in the National Capital District. On 22 February 2014, the PMV bus was seized by the police at Gordons Market, NCD. The bus was detained in police custody for approximately eight months before it was released to the plaintiff. The plaintiff’s claim is that the police unlawfully detained his bus.

2.	The defendants deny liability on the basis that the concerned policemen acted outside the scope of their duties. 

PLAINTIFF'S CLAIM 

3.	The plaintiff filed his writ of summons and statement of claim on 02 December 2015 claiming negligence and vicarious liability by the defendants. The plaintiff alleges unlawful seizure, removal and detention of the PMV and financial loss as a result of the detention of the bus. The plaintiff's claim and particulars of negligence pleaded at paragraphs 11 and 12 of the Statement of Claim are reproduced below:-

" The first defendant were otherwise negligent in that they owed a duty of care to the plaintiff as the owner of the Toyota Coaster PMV Bus which they seized in the course of their duties as Police officers.

Particulars of Negligence

(a)	failing to establish a proper and lawful basis for the removal, seizure, detention of the Toyota Coster PMV bus before unlawfully removing, seizing, and detaining the bus.
(b)	failing to discharge their duties properly and professionally as Police 	Officers in the circumstances where a motor vehicle is required to be impounded.
(c)	failing to take reasonable and proper steps to avoid carrying out the unlawful removal, seizure, and detention of the Toyota Coaster PMV Bus.
(d)	failing to explain the cause of the removal, seizure, and detention of the 	Toyota Coaster PMV Bus and timely proactively resolving the cause of the matter.
(e) 	failing to obtain a warrant or a court order.
(f)	failing to return the Toyota Coaster PMV Bus to the plaintiff when it was or should have been apparent that there were no lawful bases to justify the removal, seizure, and detention of the bus.
(g)failing to secure the Toyota Coaster PMV Bus in the same, similar and working conditions whilst the bus was under their control

As a result of unlawful, seizure, detention, and or negligence of the defendants, the plaintiff has suffered the following losses and damages

Particulars of Losses and Damages

	(a) Damages to motor vehicles
		1. Loss of 7 x 750 tires
		2. Loss of 2 x batteries (N50)
		3. Loss of parts and materials require A, B, C, and D services
		4. Damage done to body
		5.Mechanical damage amounting to K8,682.92
	(b) Loss of Motor Vehicle K83,000.00
	(c ) Loss of Income and Earnings
	The plaintiff’s Toyota Coaster PMV Bus doing daily runs about K450.00 per day for 7 days a week.
In a week, the plaintiff generates an amount of about K3,150.00 (K450.00 x 7 days a week.
For the period from the day of the removal, seizure, and detention to the time 	of filling of the writ, 8 months have lapsed and that amount to K100,800.00 	(K3,150.00 x 32 weeks).
	(d) Out of the Pocket Expenses
The plaintiff incurred other expenses in pursuing this unlawful removal, seizure, and detention including costs such as quotation fee, phone cards of 	about K22,000.00.
	
(e) Stress, Shock, Trauma, Anguish, Mental Stress, & Frustration
The plaintiff suffered stress, shock, trauma, anguish, mental stress and frustration "

AND THE PLAINTIFF THEREFORE CLAIMS:
	1.The original value of the Toyota Coaster PMV Bus at K83, 000.00 or 	alternatively a replacement Coaster PMV Bus.
	2.Damages including the costs of repairs and all other maintenance.
	3.Loss of income and Earnings
	4.Punitive (Exemplary) (Damages)
	5.Special Damages 
6.General Damages for shock, trauma, anguish, mental stress and frustration.
	7.Cost of this proceeding.
	8.Interest pursuant to Statute
9.Such further and other Relief as the Honourable Court deems fit.”

DEFENDANT’S CLAIM

4.	The State filed a Defence for all the defendants, on 14 April 2016. The defendants deny liability on grounds that the concerned policemen acted outside the scope of their duties and the State is not vicariously liable and that the first defendants are personally liable. Paragraphs 2 (c ), (a) and 6 are reproduced below:

"2. The defendants admit to paragraphs 1 sub-paragraphs (b), (c), (d) and 2 of the (SOC) in so far as to say:
(c) The third defendants can only be held vicariously liable for the action or omissions of its servants and agents if those actions and omissions are done in the course and within the scope of their duties/employment within the ambit of Section 197 of the Constitution, Police Act, Arrest Act and Lawful Police Instructions; and 
(a) If the first defendants were not acting in the course or within the scope of their employment they will be personally liable for any damages, breaches or injuries they caused to the plaintiff.

6. The defendants do not know and therefore deny paragraphs 10, sub-paragraphs (a), (b), (c), (d), (e) and (f) and paragraph 11, sub-paragraphs (a), (b), (c), (d), (e), (f) and (g) of the “SOC” and say that:
(a) The damages done to the vehicle was caused partly by both the owner and 	Constable Matalik as they handle the situation outside from the Police Station 	Commander’s 	knowledge thus should be personally liable.
(b) Police officers owed no duty of care to the public at large and there is no 	duty of it if it is against the public policy. Police have a duty of maintaining law 	and order but are subjected to no specific requirement as to the way in which they do it.
(c) The alleged breaches of negligence under the Wrongs Miscellaneous Provisions Act are subjected to proof by evidence at trial
	(d) Repeat paragraph 2, 4 and 5 of this defence.
	(e) Except as above expressly admitted, the Defendants deny:
(a) Each and every allegation of fact made against them in the “SOC”, and 
		(b) That the cause of action exists against them; and
(c) That the plaintiff is entitled to any losses, injuries, damages or 	breaches in the “SOC”; and
(d) Any reliefs sough in paragraph 21, sub-paragraphs (a), (1), (2), (3), 	(4), and (5) and paragraph 9.
    
PARTIES EVIDENCE
Plaintiff's evidence

5.	The plaintiff relied on six affidavits which were all tendered into evidence and accepted as exhibits and are indicated as follows:-

	1) Affidavit of Jacob Peter filed 11 May 2017 marked “P1”.
	2) Affidavit of Paul Warap filed 11 May 2017 marked “P2”.
	3)Affidavit of Supt. Andy Bawa filed 11 May 2017 marked “P3”.
	4) Affidavit of Michael Nikints filed 11 May 2017 marked “P4”.
	5) Affidavit of Michael Nikints filed 29 July 2022 marked “P5”.
	6) Affidavit of Michael Nikints filed 07 November 2023 marked “P6”.
	
Paul Warap's evidence

6.	Paul Warap's evidence is that he is the bus driver of the PMV and had stopped at the route 16 bus stop at Gordons Market on 22 February 2014 when five policemen in a ten-seater land cruiser approached him to stop. He identifies one of the five as Inspector Ben Kua, the police station commander of Hohola Police Station.

He deposes to been ordered out at gunpoint into the ten-seater Police vehicle with the key of the PMV handed to one of the policemen. He states a policeman drove the bus to Hohola Police Station.  He collaborates the bus crew, Jacob Peter's evidence that Jacob Peter's pockets were searched by a plain clothes policeman who was amongst the five and the day's cash takings taken from Jacob Peter. He states further that he was brought to the Hohola Police Station, verbally harassed, and left there until the plaintiff arrived later in the afternoon.
  
Jacob Peter's evidence

7.	Jacob Peter is the crew or 'off-side' as is known colloquially, of the PMV driven by Paul Warap. Jacob Peter deposes to being ordered out of the bus at gun point and his pockets searched by a plain clothes policeman who was amongst the five, and the half day's takings of approximately K200-K250.00 taken. He was given K5.00 and told to contact the owner of the PMV to go to the Hohola Police Station to retrieve his bus. He then contacted the plaintiff.
Andy Bawa's evidence

8.	Andy Bawa is the Metropolitan Superintendent. He deposes to been informed by Senior Constable Petrus Mund of Boroko Police Station about the plaintiff’s PMV bus being illegally impounded at Hohola Police Station. He became concerned and instructed senior constable Mund to retrieve the bus to Boroko Police Station. He was later informed by Senior Constable Mund that he was unsuccessful. On or about 01 or 02 April 2014 he instructed the first defendants to see him and return the bus. He deposes that the plaintiff was with him. The first defendants arrived at his office that same day and in the presence of the plaintiff, he chastised them for their unlawful actions and instructed them to return the bus that day.  He states that Inspector Kua informed him that the bus was at ATS, eight mile, to which he instructed both officers to immediately bring the bus to Boroko Police Station and produce the Court Order directing its impound. At about 3pm, the defendants returned the PMV key to him without any Court order. That same day he handed the key over to the plaintiff to retrieve his bus. However, the plaintiff opted not to retrieve the PMV and asked him to keep the key because he was concerned about the legality of the first defendants' actions and intended to file a lawsuit.
 
The bus was parked at the Boroko Police Station.
 
On the same day, the plaintiff organised a press conference which he attended where he expressed his concerns and assured the public that some of the rogue police would be disciplined. 
He states that on 07 November 2014, the plaintiff saw him to inform him about his case and expressed concerns about the bus being exposed to the public while parked outside the Police Station. He informed the plaintiff to retrieve the bus. Superintendent Bawa condones the actions of the first defendants and provides a credible account of the decisive actions he took to resolve the matter for the plaintiff.

Michael Nikints evidence

9.	Michael Nikints is the owner of the detained PMV Bus registration number P037D. He deposes to registering Survivor Transport as a business name with the Investment Promotion Authority. He purchased the PMV, a toyota coaster bus for K83,000.00 on 20 November 2011. The payment receipt is annexure ‘B’ to his affidavit marked ‘P4’.  He registered the bus which was approved by the Department of Transport on 09 August 2012 to service  route 16 in the NCD. He states that the bus was in operation for two and a half years when it was detained by the police on 22 February 2014. He deposes to being distressed about the incident and taking steps to recover the vehicle including informing the Metropolitan Superintendent.

He deposes to writing a letter of complaint dated 26 February 2014 to Superintendent Andy Bawa. The letter is Annexure ‘D’ to his affidavit marked ‘P4’. In that letter he states that he attended to the Hohola Police Station on the afternoon of 22 February 2014 but was shut down by Constable Robin Matalik and others and told to pay K1,500.00 for the return of the bus. He refused to pay, and they made it difficult for him to liaise further with them.

He also explained in that letter that the reason given by Constable Robin Makalit for impounding his bus was that his mechanic owed money which they wanted him to pay, to which he had no knowledge of and refused.

10.	In his additional affidavits ‘P5’ and ‘P6’, he deposes to delay in the proceedings due to the court file missing for more than 12 or 24 months and his settlement proposal to the Solicitor General dated 28 September 2022 not been responded to. He deposes about himself and his family suffering financially due to the detention of their primary source of income, which was the PMV business.

Defendant's evidence

11.	The defendants relied on one affidavit, the affidavit of Inspector Ben Kua sworn on 26 June 2018 and filed on 28 June 2019 which was tendered into evidence and accepted as an exhibit marked "D1".
Inspector Ben Kua
12.	Inspector Ben Kua is the Hohola Police Station Commander. He deposes to been aware of the PMV bus been impounded at Hohola Police Station and that his instructions to Constable Robin Makalit to return the bus was disobeyed. He further deposes that the plaintiff had not approached him about his concerns and instead complained directly to the Metropolitan Superintendent. He does not mention any involvement on 22 February 2014 as indicated by Paul Warap’s evidence nor attending to the Metropolitan Superintendent to retrieve and return the bus. I find his evidence unreliable due to these vital missing information. 
PARTIES SUBMISSIONS

13.	Both counsels made oral submissions. Counsels were directed to file written submissions by 17 November 2023, of which only the plaintiff's counsel filed written submissions on 17 November 2023. The defendant's counsel did not file any written submissions. 

Plaintiff's submissions

14.	Counsel for the plaintiff submits that the first defendants were acting in the normal course of their duties when they approached the driver and crew when they impounded the plaintiff's bus on 22 February 2014. He relied on the evidence tendered and caselaw which includes  Rapura v Lingen (2023 ) N10319 to support his submissions.

Defendants Submissions

15.	Counsel for the defendants relied on the evidence tendered and submitted that the State should not be held vicariously liable for the actions or omissions of the first defendants as they acted outside the normal course of their duties on a personal matter. That they abused their powers. The first defendants should, instead, be held personally liable, and the onus of proof is on the plaintiff to prove his case. 

FINDINGS OF FACT

16.	I make the following findings of fact from the evidence and submissions of counsels:-

1)	The plaintiff is the owner of the 25-seater PMV bus toyota coaster registration number P0370D, which he purchased on 20 November 2011. The PMV bus is registered to service route 16 of the NCD and was in operation for two and a half years.
2)	The driver and crew of the 25-seater PMV bus Toyota coaster registration number P0370D were approached by five policemen on 22 February 2014 at Gordons market bus stop when the bus was seized and brought into police custody at Hohola Police Station.
3)	On or about 01 or 02 April 2014 the bus was parked at Boroko Police Station with its key left with Metropolitan Superintendent Andy Bawa.
4)	The plaintiff finally retrieved the 25-seater PMV bus Toyota coaster registration number P0370D on or about 07 November 2014. 

ISSUES

The issues for determining liability are:- 

1) whether the first defendants were negligent, and
2)  whether the second and third defendants are vicariously liable,

ANALYSIS

1) whether the first defendants were negligent

17.	The plaintiff must prove on a balance of probability that the first defendants owed him a duty of care which they breached, causing him loss or injury. 
The elements of the tort of negligence are outlined in Michael Kuman v Digicel (PNG) Ltd (2019) SC1851 at [64],[65] and [66]:-

"To establish a cause of action based on negligence, a plaintiff is 		required to prove four elements –
1. duty of care;
2. breach of the duty;
3. causation of the injury or harm;
4. damages or loss suffered.
Generally speaking, when a person is injured as a result of the careless or 	negligent act of another, the careless or negligent person will be legally 	liable for any resulting harm or injury sustained by the other person.

To succeed in a claim of negligence, the plaintiff must prove that the 	defendant acted carelessly or negligently by adducing credible evidence 	showing that -
1. the defendant owed a legal duty of care to the plaintiff in the 		circumstances of the case;
2. the defendant breached that legal duty by acting or failing to act 	in a certain way;
3. it was the defendant’s action, inaction or omission to act that in 	fact caused the plaintiff’s injury; and
4. the plaintiff was harmed or injured as a result of the defendant’s 	action.”

Duty of Care

18.	The legal duty of care supposes a relationship between the parties and is premised on the notion of neighbour as espoused by the famous case of Donoghue v Stevenson (1932) AC 526. In this case, the plaintiff alleges that the police owe him a duty of care to detain the PMV bus lawfully on good grounds.  The plaintiff's evidence is that no good reasons were provided by the defendants to explain why the plaintiff's driver and crew were stopped, harassed and his PMV detained for several months.

The State has not provided any evidence to disprove the standard of care that the policemen were acting in the normal course of their duties or that they deviated or exceeded their authority.

Mr Goava submits the police actions amounted to detinue or conversion or the tort of trespass to chattel and submitted for the Court to consider the decision in Rapura v Lingen. 

In  Rapura v Lingen the Court held that the police negligently acted in the course of their duties when they detained and impounded it for nearly a year. The Court discussed detinue and conversion but found that the case was more suited to trespass of chattel and on that basis ruled in favour of the plaintiff.  In terms of negligence, the Court held that the police owed no duty to the public in exercising its lawful powers of investigations and refused the claim based on negligence.  
Here, no lawful reason was given for the seizure and detention of the bus except some evidence of the detention occurring as a result of a personal or civil debt. I find evidence is lacking from Inspector Kua's evidence; however, it is clear from the plaintiff's complaint letter dated 26 February 2014 in annexure ‘D’ in his affidavit marked 'P4 ' that the civil debt matter related to an alleged debt by a mechanic of the plaintiff's. A third-party matter with no relevance to the plaintiff
These facts came to light after the PMV was detained. Regardless, the police must act on reasonable suspicion of a crime being committed or that a crime has occurred and to comply with laws that govern police powers such as the Arrest and Search Acts in an impartial and objective manner to absolve them from tortious claims.

19.	In terms of the police owing no duty of care to the public, that duty applies, when the Police are suppressing a crime or conducting investigations, good public policy reasons, they should not be restricted in their duties for good public policy reasons by potential negligence claims.  See Maku v Maliwolo (2012) SC1171. However, in this case, there is no evidence that the plaintiff's PMV was detained to investigate or suppress a crime. The court has held the police owed a duty of care when police actions or omissions are found to be unauthorised. See  Kunnga v Independent State of Papua New Guinea (2005) N2864 and Saka v Independent State of Papua New Guinea (2021) N9205

20.	 The plaintiff's evidence does not indicate that a crime was committed at Gordons market or elsewhere when the driver and crew were stopped, the daily takings taken, and the bus seized. It can be deduced from the evidence of the plaintiff that the bus was on its normal business runs of transporting the public commuters to and from their respective destination during a legitimate business activity when they were stopped, and the bus seized. 
After the bus was seized, there was evidence that the bus was detained without lawful reasons. This rendered the actions of the first defendants in initially seizing and detaining the bus unlawful and improper. The first defendants at all times owed a duty of care to uphold the law when stopping, seizing and detaining the bus. 
The police are charged by Section 197 (1)(b) of the Constitution to 
“…enforce the law in an impartial and objective manner.”

21.	I am satisfied that the first defendants owed a duty of care to the plaintiff to enforce the law impartially and objectively and the common law exclusion that they owed no duty of care to the public, in my view, with respect, does not apply as the police did not stop, seize and detain the bus to suppress a crime or carry out an investigation. The caselaw is that police owe no duty of care to the public to stop a crime  (Maku v Maliwolo) when acting in the course of their duties see (Rapura v Lingen).

Breach of duty of care

22.	In failing to observe the law and their duties as police officers to uphold the law, the first defendants breached their duty of care when they failed to exercise restraint and ensure they had a court order before seizing the vehicle.  Superintendent Bawa's evidence confirms there was no lawful basis to stop, seize and detain the bus. Inspector Kua breached his duties as a senior police officer and commander of the Hohola Police Station to ensure control over his officers and participating in unlawfully detaining the bus, or had knowledge about it and did noting wrong.

Causation and harm

23.	The breach of duty resulted in the unlawful detention of the plaintiff's PMV which affected his source of income as the bus was not in the plaintiff's possession. The plaintiff's evidence is that this caused financial hardship for him and his family including mental stress and anxiety. As to the duration of the detention of the bus the evidence is that it was detained from 22 February with the key returned initially on or about 01 or 02 April 2014 (about two months after detention) or on or about 07 November 2014 about eight months from 22 February 2014. I find the total period of detention is about eight months and is a material fact in deciding damages. There is no evidence of a discharge document on 01 or 02 April 2024 to release the police from liability when the keys were first returned to the plaintiff by Superintendent Bawa.

Vicarious liability

24.	The State's defence is that it is not vicariously liable for actions or omissions of its employees performed outside the scope of their duties. The State alleges the actions and omissions of the first defendants were outside the scope of their normal duties. The defence witness Inspector Ben Kua deposes to the other first defendant Constable Robin Matalik disobeying his instructions to return the bus. He deposes to being in charge of Constable Robin Matalik but does not provide any evidence of whether he formally disciplined Constable Matalik. 

Superintendent Bawa does not indicate whether any of the concerned policemen were formally disciplined. The evidence confirms on a balance of probabilities that no formal disciplinary actions were taken against any of the five policemen nor the first defendants. Formal discipline entails the laying of charges consistent with the Police Force Act 1993. Unauthorised Police action resulting in damages to the State and serious matters which must be dealt with is a serious disciplinary matter warranting formal charges to be issued against rouge police personnels.

25.	The State has the burden of proving that it is not vicariously liable for the wrongful actions of the rest of the defendants in order to shift liability to its officers or employees for their tortious conduct.
His Honour Cannings J in Jobou v Kumasi (2012) N4607 at [16] ably set out the evidentiary standard on vicarious liability as: -

 " If it is established that  police  officers were acting within the scope of 	their functions, the State is liable for their tortious conduct unless the 	State 	discharges the onus of showing that what they did was totally 	removed from the domain of their authorised actions (Eriare Lanyat 	v 	The State [1997] PNGLR 253; Wama Kints v The State (2001) N2113)."

(Emphasis added)

26.	The State through the actions of Superintendent Bawa, tried to remedy the situation by chastising the first defendants and arranging with the plaintiff to retrieve his bus. However, my view is that this is insufficient to discharge the burden of vicarious liability. I am of the view that in order to fully discharge its vicarious liability, the State as employer, must prove two important aspects: one, evidence of what the normal course of scope of duties are, and two, what if any formal disciplinary actions were taken against its employees who acted outside the scope of their duties as in the case of Kamuri v Pomoso (2021) SC2071 . 

27.	Simply denying vicarious liability on purely legal grounds not supported by evidence to my mind does not operate to absolve the State from vicarious liability. State organisations are governed by laws and rules to execute their duties and their leaders are vested with statutory powers to discipline unruly officers such as in the Police Force Act which grants wide powers to the second defendant and his authorised  delegates which would include Inspector Kua, to formally discipline policemen who execute their duties disgracefully or improperly. See Police Force Act 1998 and Arala v Kua (2023) N10621. 

28.	The defendants provided no evidence to clarify what the normal job descriptions or course of duties of the concerned police are nor any record of any formal disciplinary actions taken to support their submissions. To shift personal liability to the first defendants, the State through the second defendant must discharge its responsibility of formally discipling the individual police officers and point to internal rules that shift the blame to the individual officers.
In my judgment the defendants have not discharged their onus of proof on a balance of probabilities that they are not vicariously liable. The evidence does not support their defence. 

CONCLUSION

29.	On liability, my judgment is that the first defendants are negligent in the discharge of their duties in detaining the plaintiff’s PMV bus. Their actions were improper and not warranted in the circumstances. The State is vicariously liable for their actions and omissions as it has not been proven that the first defendants acted outside the scope of their duties on 22 February 2014.

30.	The plaintiff was earning a living running a small PMV business from a bus that he purchased, only two and a half years prior. In one instance of abuse of power, the first defendants jeopardised his means of income and livelihood. The State, through the police hierarchy, must protect small business activities of ordinary folks and act swiftly to discipline its rogue officers. The act of formal discipline of individual officers, in my view, clears the State from vicarious liability and renders the concerned officer personally liable for any damages incurred as a result of his/her negligent actions. Failing which the State bears the responsibility of their actions and omissions by virtue of their employment.   

31.	Both counsels did not make adequate submissions on damages and so I make an order that the matter be placed at the next available directions listing for directions to be issued for hearing on assessment of damages. The plaintiff must prove his losses at the assessment of damages hearing and is required to file appropriate documentary evidence before the hearing.

COST

32.	Costs are discretionary and usually follow the event. Costs are awarded on a party/party basis pursuant to Order 22 rule 11 NCR.

FORMAL JUDGEMENT

33.	The formal judgement of the Court are:-
1) 	Judgement on liability is entered against the defendants, in favour of the plaintiff.
2) 	The State is vicariously liable for the negligent actions of its 	employees, the first defendants.
3) 	The matter is to proceed to hearing on assessment of damages.
4) 	The plaintiff shall liaise with the Registrar to list this matter for directions at the next available listings.
5) 	Costs are awarded to the plaintiff, to be taxed, if not agreed.
6) 	Time for entry of the orders is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.

Judgment and Orders accordingly.
________________________________________________________________
Sannel Lawyers:	Lawyers for the Plaintiff
Solicitor General by his employed lawyer:	Lawyers for the Defendants