SC 1181

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 77 OF 2009

BETWEEN

JACK PINDA
Appellant

AND

SAM INGUBA, THE POLICE COMMISSIONER
First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Yagi J, Makail J & Kawi J,
2012: 30th April & 04th May

SUPREME COURT APPEAL - Negligence - Alleged police raid - Destruction and looting of property - Store goods - Damages - Assessment of - Proof of.

PRACTICE & PROCEDURE - Pleadings - Pleading of cause of action - Negligence - Pleading of elements constituting cause of action - Pleading of material facts on vicarious liability - Nexus or connection between employer and servant - Lack of - Effect of - Wrongs (Miscellaneous Provisions) Act, Ch 297 - Section 1(1) & (4).

Facts

The appellant sued the respondents for negligent actions by members of the police force for conducting an alleged illegal raid on his two stores in Wabag town. He alleged a group of policemen from Wabag police station entered his stores, destroyed and looted his store goods. As a result he suffered loss and sought damages against the respondents in the National Court. Default judgment was entered against the respondents with damages to be assessed. Following trial on assessment of damages, the National Court dismissed the proceedings, holding that the appellant failed to prove his damages on the ground that he failed to plead that the policemen were acting in the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law when they raided his stores so as to hold the respondents vicariously liable in damages. 

Held:

1.	In a case of illegal police raid, for the second respondent (the State) to be held vicariously liable in damages for the negligent acts or omissions of policemen, the appellant must plead that the policemen were acting in the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law when they conducted the raid: section 1(1) & (4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

2.	The failure to plead that the policemen were acting in the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law when they conducted the raid is a point of law and it was open to the trial judge to consider it, notwithstanding the entry of default judgment and trial on assessment of damages. Coecon Limited -v- National Fisheries Authority & The State (2002) N2182; William Mel -v- Coleman Pakalia, The Police & The State (2005) SC790 and Rupundi Maku -v- Steven Maliwolo & The State (2012) SC1171 referred to.

3.	In the present case, the trial judge was correct in holding that there was no pleading that the policemen were acting in the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law when they conducted the raid at the appellant's stores and dismissed the proceedings. 

4.	The appeal was dismissed.

5.	The appellant pay the respondents' costs of the appeal to be taxed if not agreed.

Cases cited:

Coecon Limited -v- National Fisheries Authority & The State (2002) N2182 
William Mel -v- Coleman Pakalia, The Police & The State (2005) SC790 
Rupundi Maku -v- Steven Maliwolo & The State (2012) SC1171
Paul Gigmai -v- Motor Vehicles Insurance Limited (2004) SC750

Counsel:

Mr M Philip, for Appellant 
No appearance for Respondents

04th May, 2012

JUDGMENT

1.	BY THE COURT: The appellant sued the respondents for negligent actions by members of the police force for conducting an alleged illegal raid in Wabag town. He alleged on 24th December 1997, a group of policemen from Wabag police station entered his two stores, destroyed and looted his store goods. As a result he suffered loss and sought damages against the respondents in the National Court. On 25th July 2003, default judgment was entered against the respondents with damages to be assessed. Following trial on assessment of damages, on 28th May 2009, the National Court dismissed the proceedings holding that the appellant failed to prove his damages on the ground that he failed to plead that the policemen were acting in the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law when they raided his stores. It is this decision that he asks the Court to quash in this appeal.

2.	At the trial on assessment of damages on 08th December 2008, the appellant presented evidence by way of affidavits in support of the claim. The respondents did not. Subsequently, the Court received written submissions from both sides. One of the grounds of appeal is that, the trial judge erred in taking issue with lack of pleadings in relation to the issue of capacity of the first respondent and the other was the identities of the policemen as the alleged tortfeasors. 

3.	In support of this ground, his counsel Mr Philip submitted as the respondents did not file a defence raising the issues of capacity of the first respondent and the identities of the policemen as the alleged tortfeasors, they are estopped from raising them in their submissions on assessment of damages. When they did, his Honour took them into account and found that the appellant failed to prove the claim for damages and dismissed the proceedings. This is where his Honour fell into error.

4.	This ground is misconceived. His Honour did not dismiss the proceedings for reasons of lack of capacity of the first respondent and identification of the policemen. His Honour in fact was referring to the capacity of the respondents in which they may be held liable for the actions or omissions of the policemen allegedly involved in the raid. We dismiss this ground.

5.	The second ground is that, the trial judge erred in finding that the appellant failed to prove his damages when there was clear and uncontroverted evidence establishing it. In support of this ground, Mr Philip submitted, as default judgment has been entered against the respondents, the issue of liability has been settled and the only issue before the National Court is how much the Court should award as damages. In that respect, the appellant's evidence in support of the claim was uncontroverted and the trial judge should have assessed damages based on the evidence before him. It was not open to him to revisit the issue of liability. Mr Philip relied on the cases of Coecon Limited -v- National Fisheries Authority & The State (2002) N2182 and William Mel -v- Coleman Pakalia, The Police & The State (2005) SC790 to support these submissions.

6.	The trial judge did not dismiss the proceedings on the ground that the appellant failed to produce appropriate evidence to prove his damages. He dismissed it because the appellant failed to plead that the policemen were acting in the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law when they raided his stores such that the respondents are vicariously liable. For this reason, this ground is also misconceived and we dismiss it.
 
7.	The final ground is that, the finding of the trial judge in relation to the failure to plead the nexus or connection between the policemen and the second respondent was wrong because the pleadings in the amended statement of claim sufficiently established that the persons who conducted the raid were policemen from Wabag police station and that they were acting in the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law.

8.	Mr Philip submitted the issue of lack of pleading is relevant to the issue of liability. As default judgment has been entered against the respondents, it is not open to the trial judge to revisit it. The two cases that he relied on in Coecon and Mel (supra) stand for the proposition that in a case where default judgment is entered, what is pleaded as the material facts establishing the cause of action is deemed as the facts of the case on which liability is determined. Therefore, it is not open to the Court to question them and must only assess damages. However, this general principle is qualified. In Mel's case the Supreme Court further stated that if the facts or cause of action pleaded do not make sense or makes assessment of damages a futile exercise, then the Court may revisit the issue of liability: see also Rupundi Maku -v- Steven Maliwolo & The State (2012) SC1171.

9.	In our view, the issue of lack of pleading is a point of law. When it was raised by the respondents' counsel in submissions, it was open to his Honour to consider it because "….. an assessment of damages is based on a judgment on liability. Damages cannot be assessed in a vacuum, so to speak. In turn, judgment on liability must be founded on a proper pleading of a cause of action in law ….." Paul Gigmai -v- Motor Vehicles Insurance Limited (2004) SC750.

10.	In this case, the cause of action was based on the tort of negligence. To succeed in having the second respondent held liable for the negligent actions or omissions of the policemen, the National Court has to be satisfied that:

(a)	the policemen as servant or agents of the second respondent committed the tort of negligence during the course and within the scope of their employment: section 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act, Ch 297; and

(b)	the policemen as officers of the second respondent committed the tort of negligence while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law: section 1(4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

11.	The trial judge found that the pleadings in the amended statement of claim were lacking because while the appellant pleaded that the respondents were vicariously liable for the acts or omissions of their servants or agents and/or employees pursuant to section 1(1) of the Wrongs (Miscellaneous Provisions) Act, Ch 297, he did not plead that they committed the alleged negligent acts or omissions during the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law.

12.	We have perused the amended statement of claim and find no statement alleging that the policemen were acting in the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law under the principles of vicariously liability pursuant to section 1(1) & (4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297. This is a fundamental omission because its omission means that there is no nexus or connection between the policemen and the first respondent and ultimately the second respondent (State) to hold it vicariously liable in damages. 

13.	In other words, if the appellant is alleging that the persons who raided his stores were servants, agents and/or employees of the State because they were policemen, it is not sufficient to only plead in the amended statement of claim that they were policemen but also plead that when they raided his stores, they were acting in the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law under the principles of vicariously liability pursuant to section 1(1) & (4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297. In our view, the trial judge was correct in dismissing the proceedings. We dismiss this ground.

14.	The orders are:

1.	The appeal is dismissed.

2.	The appellant shall pay the respondents' costs of the appeal to be taxed if not agreed.

_________________________________________

Korerua & Associates Lawyers:  Lawyers for the Appellant 
Solicitor-General: Lawyers for the Respondents