SC1584

PAPUA NEW GUINEA 
[IN THE SUPREME COURT OF JUSTICE]

SCA. NO. 93 OF 2014

BETWEEN: 

PHILIP NARE 
Appellant 

AND: 
THE INDEPENDENT STATE OF PAPUA NEW GUINEA 
Respondent 

Waigani:	 Injia CJ, David J, Ipang J, Higgins J & Neill J
2016:	 27th July
2017: 28th April

CLAIMS AGAINST THE STATE – Torts committed by police officers – Liability of the State – Vicarious liability of the State established if officers are acting or purporting to act in the course of their functions – No requirement to join individual officers as parties (defendants) – Kewakali v The State [2011] SC 1091 overruled – Wrongs (Miscellaneous Provisions) Act 1995 ss.1(1), 1(4).

Cases Cited:
Papua New Guinea Cases

Bob Kol v The State [2010] N3912
Dambe v Peri & The State (1991) PGNC31
Dorun v The State (1994) PNGLR 555
Enever v The King (1906) 3 CLR 696
Kei v Hasu [2004] PNGLR 415
Kuk Kuli v The State [2004] N2592
Lanyat v Wangalo (1996) PGNC 44
Lina Kewakali v The State [2011] SC1091
More v The State & Others [1998] PNGLR 290
Pyali v Kakilo and The State [2003] N2492
State v Kofowei & Ors [1987] PNGLR 5

Overseas Cases

NSW v Bryant [2005] NSWCA 393
New South Wales v. Lepore (2003) 212 CLR 511
Steviko v RSM Security Pty Ltd & Ors [2004] NSW CA 351

Counsel:

P. Tamutai, for the Appellant 
S. Piyanki, for the Respondent

JUDGMENT

28th Aril, 2017
1.	BY THE COURT:	This is an appeal from a decision of Poole, J dismissing proceedings on procedural grounds. 
2.	The substantive claim is in respect of damage caused by a group of people in police uniforms driving police vehicles accompanied by a police helicopter who raided Teremanda Village in Enga Province. 
3.	The residents of the Village who suffered loss have sued the State claiming the cause of the loss was the wrongful acts of police officers acting for and on behalf of the State as its servants and agents. 
4.	The State’s defence denied or put in issue everything alleged. In particular that the persons causing the loss and damage, if it occurred, were servants or agents of the State or, if they were, that they were acting in the course of their employment. In the Writ of Summons, the State was the only defendant named in the proceedings. By an amendment to the Statement of Claim of 30th September 2004, the plaintiff/appellant named three (3) Senior Police Officers as the commanders of the Police Officers who carried out the raid. They were not named as defendants in the proceedings. The particulars of three (3) police vehicles involved indicated they belonged to Wabag Police Station. There were eight (8) other police vehicles identified as originating from Western Highlands Province, including two (2) identified by registration numbers. 
6.	Numerous affidavits were filed outlining an appalling display of police brutality and abuse of power with serious wrongs being inflicted on the plaintiffs with both bodily injuries and property damage being alleged. The raid took place, it is further alleged, over two days on 21st and 22nd November 1995. 
7.	The case came before Poole, J on 6th May 2013. Evidence of the events of 21st and 22nd November 1995 was taken by the tender of affidavits. 
8.	The Statement of Claim had initially been filed on 15th April 1997. It did not identify any individual police officer as a tortfeasor or name any defendant other than the State. 
9.	The liability of the State can only be vicarious. The Claims by and Against the State Act 1996 provides in s.2(1) that a person taking action against the State in contract or in tort “may bring a suit against the State in respect of the claim, in any court in which such a suit may be brought as between other persons”.   Notice is required under s.5 but no suggestion is made that such notice was not given. Relevantly, there is a limit under s.12(1) in respect of exemplary damages. 
10.	Nevertheless, the State in the present matter submitted to Poole, J that the proceedings were incompetent because the offending police officers were not named and joined as parties. 
11.   In its reply to the defendant's request for further and better particulars, the plaintiff repeated the names of the police officers who commanded the raid that were supplied in the amended Statement of Claim.
11.	His Honour, in his judgment delivered on 17th June 2014 accepted the evidence of the Police rampage and in particular commented: 
“[7] whatever brought police to Teremanda, it cannot have been the whim of the men there or an accidental arrival”. 
12.	The Wrongs (Miscellaneous Provisions) Act 1995 provides in s.1(a): 
“(1)	subject to this Division, the State is subject to all liabilities in tort which, if it were to a private person of full age and capacity, it would be subject- 
	(a) in respect of torts committed by its servants and agents.”  

13.	Further; 
“(2) proceedings do not lie against the State by virtue of subsection (1)(a) in respect of an act or omission of a servant or agent of the State unless the act or omission would apart from this Division, have given rise to a cause of action in tort against the servant or agent or his estate.” 
14.  Also relevant is Section 2:
“(1) where the State is subject to liability by virtue of this Division, the law relating to indemnity and contribution is enforceable by or against the State in respect of the liability to which it is so subject as if the State were a private person of full age and capacity.”
15.	His Honour accepted that the facts alleged were not consistent with rogue police officers or persons pretending to be police officers “off on a frolic of their own”. As his Honour found: 
“[8]... the degree of organisation apparent and the reported presence on two separate days is utterly inconsistent with any claim of this being other than a well organized incident.” 
16.	Thus far liability seems to have been firmly established yet his Honour perceived an obstacle. That was the Supreme Court decision of Lina Kewakali v The State [2011] PGSC1.  His Honour took that case to mandate that: 
“[19)  if the offenders are not named as a party rather then (sic-than) just nominated in the text of the statement of claim, the plaintiffs have failed to establish the necessary nexus or link between the wrongdoing tortfeasor and the defendants pleaded as the vicariously  liable principle (sic-principal) tortfeasor. 
[20]...Kewakali v The State... requires, in claims based on vicarious liability, that they be pleaded in such a way that the alleged tortfeasors are named as parties so as to establish the nexus of liability with the principle.”
17.	The substantive liability of the State was not otherwise addressed. 
18.	In State v Kofowei & Ors [1987] PNGLR 5 the Supreme Court (Kidu, CJ, Kapi, DCJ, Woods, J) considered the basis for liability attaching to the State by reason of the wrongful acts of police officers. At common law, a constable exercises, not a delegated, but an original authority. As a result, he or she is not subject to direction in exercising authority as a peace officer – see Enever v The King (1906) 3 CLR 696, 977.
19.	That position so far as it relates to tortuous acts committed by constables was altered by s.1 of the Law Reform (Miscellaneous Provisions) Act 1962 (PNG) as the Court in State v Kefowei (supra) noted. 
20.	Subsection (4) of Section 1 is of most relevance, it provides: 
“where functions are conferred or imposed on an officer of The State whether by a rule of the underlying law or by statute and the officers commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.”
21.	That precise provision is continued in the Wrongs (Miscellaneous Provisions) Act 1975 s.1(4). 
22.	It is therefore, no defence for the State to claim that its officers were exercising an “independent discretion” in the course of which the wrongful acts occurred. In exercising police power an officer: (at 10)
	“acts also as an agent of the People or the State.” 
23.	The Court also noted the distinction between the liability imposed on the State by virtue of ss.1(1) and by ss.1(4):   
“(at 11).... It is also to be noted that s.1(1) is made subject to s.1(4) so that the State’s liability for an officer‘s tort committed whilst the officer is performing functions under a statute or the underlying law must be considered under s.1(4). The importance of the distinction between s.1(1) and s.1(4) is that not all officers of the State are its servants or agents nor are all its agents or servants also its officers.” 
24.	Thus the State’s liability was properly imposed by virtue of s.1(4) not s.1(1). However, it made no difference that the trial judge found liability to be imposed under s.1(1). That was an immaterial error. 
25.	Kei v Hasu [2004] PNGLR 415 was a case of a police officer driving a police vehicle whilst under the influence of alcohol. He collided with a PMV causing loss and damage to the owner. The State pleaded that the officer was on a frolic of his own. Salika, J (as he then was) found that the plaintiff, though he had pleaded that the State, also a defendant, was vicariously liable for the officer’s negligent act, had not pleaded that the officer was acting [or, in the words of s.1(4) of the Wrongs (Miscellaneous Provisions) Act (supra) “purporting” to act) in the normal course of his employment. The officer was also joined as a defendant. The damages awarded against him would however, have been paid by the State as the default insurer of the vehicle pursuant to s.4 of the Wrongs (Miscellaneous Provisions) Act (supra). 
26.	In Dambe v Peri & The State (1991) PGNC31, Amet, J (as he then was) found the State vicariously liable for damage caused when a police officer negligently fired upon the deceased whose dependants claimed damages for their loss.
27.	Dorun v The State (1994) PNGLR 555 is a similar case, though only the State was cited as a defendant. The claim also included exemplary damages. Woods, J awarded such damages on the basis that the police had engaged in seriously negligent conduct threatening the safety of the public. 
28.	By way of contrast in More v The State & Others [1998] PNGLR 290, Injia, J (as he then was) found the State not vicariously liable when, in the course of a police raid, two officers raped the plaintiff.
29.	In the final paragraph of the judgment, his Honour stated: 
“The evidence in this case is that the two policemen who raped the plaintiff departed from the main group and proceeded to rape the plaintiff after tying up her boyfriend. Although they were lawfully on the premises to conduct a search pursuant to the Search Warrant, it was not part of their lawful instructions to rape the plaintiff or any other woman for that matter. They went on a frolic of their own and committed a serious crime which was in no way associated with or related to the lawful instructions given to them. Therefore, even if the policemen involved were identified, the State cannot be held vicariously liable by virtue of s.1(4) of the (Wrongs Miscellaneous Provisions) Act. Until the policemen involved in the rape are identified and prosecuted in court for the crime, as well as for the tort, the plaintiff will have to go without a remedy.”
30.	In Lanyat v Wangalo (1996) PGNC 44, a police raid on a village for the purpose of quelling tribal violence caused wanton damage to property. 
31.	Injia, J (as he then was) also presided in that case. He noted....“it is trite law that the State as their employer can be held responsible for the wrongful actions of unidentified policemen.”
32.	His Honour found the State liable in that case for the following reasons: 
“In the present case there is no doubt that the operation was authorised by the police hierarchy. It was a normal part of their function to restore peace between warring clans and in turn preserve and maintain law and order and peace in the community. As to the modus operandi they employed to perform their function is a matter left in the discretion of the Police Force. 
It is correct to say that it may never be part of their functions to deliberately destroy properties, etc, as a means of restoring peace among warring clans because such instructions would never have been issued lawfully by the Government. But in a tribal fight situation, it may be that the categories of modus operandi open to the policeman may not be closed.  The onus is on the State as the nominal Defendant to produce evidence to show that what the policemen did was totally removed from the domain of authorised actions in a tribal fight situation so that the State will not be vicariously liable for their actions. That has not been done in this case.”  
33.	The provisions in PNG relating to civil wrongs is common to most, if not all, Australian jurisdictions, as is the imposition of vicarious liability upon the State (or the Crown) for the wrongful acts of its officers, servants or agents. 
34.	An example is the Law Reform (Vicarious Liability) Act 1983 (NSW). That Act, in similar words to the Wrongs (Miscellaneous Provisions) Act 1975 (PNG) provides: 
“Section 8
[1] notwithstanding any law to the contrary the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or the purported performance or the purported performance by the person of a function (including an independent function) where the performance or purported performance by the person of a function. 
(a) is in the course of the person’s service with the Crown or is an incident of the person’s service.” 
35.	Clearly both legislative provisions raise the question of the nexus between the tortuous conduct and the scope of the duties or functions the officers, servants or agents have to perform on behalf of the State. At one extreme it is plain that, if a police officer, not on duty or acting in the course of duty burgles a house alone or in company, the nexus with his or her duty to the State would be too tenuous for liability to be visited upon the State. On the other extreme, no wrongful conduct is ever lawfully directed by the State. If that be a requirement then, as no servant or agent or officer of the State can ever be lawfully instructed to commit a wrongful act, the State could never be liable. The key to the nexus required is in the words “performance or purported performance” by the wrongdoer of his or her duties or functions as delegated by the State. The onus is on the State to prove that the wrongful acts of the tortfeasors was so far removed from their ‘domain of authorised actions’ as to have no or no purported connection therewith.
36.	The terms of s.8 (supra) were considered by the New South Wales Court of Appeal in NSW v Bryant [2005] NSWCA 393. Basten, JA, with whom Beazley & McColl, JJ as agreed, found that the State was liable for the violent conduct of a police officer effecting an unlawful arrest, not only for compensatory damages but also for exemplary damages. 
37.	In numerous cases in this jurisdiction the State has been held liable for the violation by police officers of citizens’ rights.  Makail, J sets out a large number of them in Bob Kol v The State [2010] N3912. 
38.	It may also be noted that, pursuant to the Employees Liability Act 1991(NSW), an employee is not liable in the case of the commission of a tort for which the employer is vicariously liable to be sued. 
39.	Section 3 of that Act provides: 
“(1) if an employee commits a tort for which his or her employer is also liable: 
(a) the employee is not liable to indemnify, or to pay any contribution to the employer in respect of the liability incurred by the employer; and 
(b) the employer is liable to indemnify the employee in respect of liability incurred by the employee for the tort.”
40.	Of course the provisions of that Act are not replicated in Papua New Guinea but it does indicate that the public interest does not require that where an employer is vicariously liable for the tortuous act of an employee, the employee should be required to meet the claim without indemnity from the employer. 
41.	It suffices for present purposes to note that on the facts as found by the trial judge, the wrongful acts of the police officers, though unauthorized, were clearly a mode adopted, albeit gravely improperly, to carry out  a function of policing. See Steviko v RSM Security Pty Ltd & Ors [2004] NSW CA 351 - security guard head - butting a patron- employer vicariously liable. 
42.	Perhaps a more extreme case is New South Wales v. Lepore (2003) 212 CLR 511, a sexual assault by a teacher upon a pupil - the State was held vicariously liable. 
43.	It must, therefore, be apparent that in this case, the State was vicariously liable for the wrongful acts of the police members. The substantive justice of the case would seem to warrant an award of damages, perhaps even exemplary damages. 
44.	The obstacle that Poole, J found in this case was in the decision of this Court in Kewakali v The State [2011] SC1091.  In that case, the plaintiff alleged that she had been sexually abused by two police officers. It was alleged that the assault occurred in the course of their employment. There was no hearing on the merits. The case arose out of a refusal by the primary judge to enter default judgment for the plaintiff notwithstanding the failure of the State to file a defence. There had been duplicate proceedings erroneously commenced some seven months after the proceedings in question. They were withdrawn but clearly there were some grounds for genuine confusion on the part of the State. 
45.	There was some two (2) years and three months delay between the filing of the first writ and the application for default judgment.  There was also a defence clearly open to be relied upon under the Frauds and Limitations Act 1998, if so pleaded in defence. In the duplicate proceedings, a Defence had been filed. 
46.	The court did point out at [23] that even where there was default in the filing of a Defence the Court could refuse to enter judgment where there appeared to be good reason not to. One ground could well be that the alleged actions were of such serious misconduct that proof by evidence of that misconduct should be given before judgment is entered. 
47.	The appellants’ procedural defaults and delays also warranted a conclusion that there was an abuse of process as the trial judge had found. 
48.	Those observations sufficed to dismiss the appeal. It was then open to the appellant to have proceeded to a contested hearing before the trial judge. It was highly likely that the State would have pleaded the Frauds and Limitations Act 1998 defence and succeeded in opposing the claim on those grounds. 
49.	The Court went on, however, to consider the question of the proper joinder of parties to the proceedings. 
50.	That question arose because one of the reasons given by the trial judge for refusing default judgment was that the offending police officers were not named as co-defendants. Some were named in paragraph 3 of the Statement of Claim as servants or agents of the State so as to ground vicarious liability in the State. 
51.	Their Honours acknowledged a number of cases where, though the State was sued as employer of the relevant primary tortfeasors, the latter were not joined as parties. The examples chosen were Kuk Kuli v The State [2004] N2592 and Pyali v Kakilo and The State [2003] N2492, Their Honours continued at [40]: 
“In addition we view the provisions of s. 1(2) of the Wrongs Act provides (sic-as providing) by necessary inference that a servant or agent of the state who has been alleged to have committed the wrong, must be named as a party or co-defendant. In our view, if a plaintiff does not name the alleged principal tortfeasors, there is a (sic) no nexus or connection so there will not be a cause of action against the nominal defendant (the State). Thus, it is our opinion that to do justice to all parties, the plaintiff must name the servant or agent of the State or the alleged tortfeasor and must also plead in the statement of claim the nexus or connection between the principal tortfeasor and the nominal defendant.” 
52.	Their Honours then, at [40 (a) & (b)] and [41], pointed to the need for a plaintiff to plead facts material to the cause of action against the State. Namely, that the tortfeasor(s) is or they were relevantly servants, agents or officers of the State acting or purporting to act in the course of their employment and within the scope of their employment. 
53.	That does not, of course, qualify or limit the range of wrongful acts that may fall within that concept. 
54.	Least it be thought that the obligation to be imposed upon a plaintiff was unreasonable their Honours continued at [42]: 
“In saying so we do not for the moment suggest that for, instance, if there is a police raid that all the policemen involved should be named. On the contrary it would be sufficient to name at least one or two of the policemen involved as co-defendants or follow what was done in Pyali’s case, that is, name the immediate commander, so as to bring into play the principles of vicarious liability between the principal tort-feasor and the nominal defendant.” 
55.	But even that was further qualified in [43]: 
“Even where the plaintiff is unable to identify the principle (sic) tort-feasor, for example, if such a raid occurred in the dark and middle of the night, it would still be necessary to establish the nexus by naming the commander as in Pyali’s case. The plaintiff may need to investigate to satisfy himself which station, unit or division the policemen came from to identify the commander of the station, unit or division and name him [or her] as a defendant. Otherwise, a pleading claiming unlawful conduct by policemen not named as parties to the proceedings, could well be struck out as general and vague.” 
56.	The fact is that unlawful conduct by police in the course of a “police raid” renders the State vicariously liable for damages. The “independent discretion” rule has been abolished. 
57.	It follows that the cause of action against the State is established if: 
•	Tortuous conduct is perpetrated by 
•	Officers of the State, including police 
•	Acting or purporting to act in the course of their duties. 
The words “purporting to act” are of considerable significance. 
58.	It is not part of the cause of action that the offending officers be identified or be parties to the cause pleaded against the State. Indeed, there may be good industrial relations reasons why the State would not seek indemnity against an employee or agent who committed such a tort. 
59.	Nevertheless, if the State wished to pursue such a case, it could apply to join officers known to it who committed or were responsible for the commission of the tortuous acts. Indeed the State is better placed than the hapless victims to identify such persons. 
60.	The State is also not precluded from demanding by request for particulars or interrogatories that the plaintiffs disclose such knowledge as they had of the identity of the relevant officers, as has been done in this case. 
61.	The Court in Kewakali did acknowledge the difficulty of naming the perpetrators, particularly as they might well wish to avoid detection. Nevertheless, the naming of senior officers who may well have had no knowledge of their junior officers’ activities is not only otiose but contrary to principle. To be named as a defendant a person must be alleged to be a tortfeasor or a person or body vicariously liable for the acts of a principal tortfeasor.  A senior officer is not vicariously liable for the acts of his or her subordinates.  He or she can only be liable if directing or authorising the tortious conduct.
62.	In no other circumstance, industrial accidents or otherwise, is there any rule that it is mandatory for an employee or agent identified as a wrong doer to be cited as a defendant to establish that vicarious liability. 
63.	The primary duty of the Court is to give justice. It cannot be just to deny a remedy otherwise established against the State on the basis that another person may also be a tortfeasor. That result would reduce the citizen’s protection against unlawful acts by agents of the State, and be in breach of s.37 of the Constitution (equal protection of the law). 
64.	It follows that in so far as Kewakali decided that all known tortfeasors in an action against the State must be joined as defendants, that is not good law and this decision has the effect of overruling that decision on that point. 
65.	It further follows that the decision appealed from should be set aside and, on the facts found by the learned trial judge, judgment on liability is entered against the State with damages to be assessed.
66.	The State should pay the appellant’s costs, to be taxed if not agreed. 
      
  _____________________________________________________

Tamutai Lawyers:  Lawyers for the Appellant	
Office of the Solicitor-General:  Lawyers for the Respondent