SC1861

PAPUA NEW GUINEA
[IN THE SUPREMECOURT OF JUSTICE]

SCA NO 155 OF 2018

BETWEEN
GUARD DOG SECURITY SERVICES LIMITED
Appellant

AND
RICHARD MATHEWS
Respondent

Waigani: Cannings J, Koeget J, Berrigan J
2019: 29th October, 1st November

TORTS – negligence – unidentified tortfeasor – whether sufficient evidence to find that unidentified tortfeasor was employee of defendant – vicarious liability of employer for employee’s negligence –whether employee’s negligence committed in the course of employment.

DAMAGES – assessment of damages for personal injury – whether sufficient evidence to warrant an award of K76,000.00. 

The respondent was the referee of a rugby league match. He was injured when spectators invaded the field. He commenced proceedings in the National Court, claiming damages for the tort of negligence against four defendants including the appellant, a security services company. The respondent claimed that he was seriously injured by a security guard (the tortfeasor), who was an employee of the appellant. Following a trial in which the alleged employee of the appellant was not identified and the appellant denied being engaged to provide security services for the match, the Court upheld the claim against the appellant (and dismissed the proceedings against other defendants). The trial judge found that the unidentified security guard was an employee of the appellant and, acting in the course of his employment, committed the tort of negligence against the respondent, and that the appellant was vicariously liable, and ordered it to pay damages of K76,000.00 to the respondent. The appellant appealed to the Supreme Court against both the finding of liability and the amount of damages, arguing that the trial judge erred in fact and law in three respects: (1) finding, in the absence of sufficient evidence, that the unidentified security guard was an employee of the Appellant and was on duty and injured the Respondent; (2) finding that the unidentified security guard acted in the course of his employment, despite evidence that that person (even if he was an employee of the Appellant) acted so far outside his authorised scope of employment as to be on a frolic of his own, making him personally liable for his actions, and excluding any vicarious liability the appellant would otherwise have had; and (3) awarding damages of K76,000.00 when there was no evidence adduced or submissions made regarding the quantum of damages.

Held:

(1)	Despite the absence of direct evidence identifying the tortfeasor there was sufficient evidence on which the trial judge could be satisfied on the balance of probabilities that in fact the tortfeasor was an employee of the appellant and was on duty when he committed the tort of negligence against the respondent. The first ground of appeal was dismissed. 

(2)	Though the unidentified security guard may have acted well outside the scope of his actual authority, the trial judge did not err in finding that he committed the tort of negligence in circumstances so closely connected with his employment as to be committed in the course of his employment. The second ground of appeal was dismissed.

(3)	There was sufficient evidence in a medical report showing that the respondent suffered “cerebellar dysfunction” having moderately severe consequences of a “permanent medical” nature, affecting balance and coordination of body movement, to warrant the award of K76,000.00 damages. The third ground of appeal was dismissed. 

(4)	The entire appeal was dismissed, with costs. 

Cases Cited:
Papua New Guinea Cases

Gibson Wak v Tom Kulunga(2018) N7141
Mathews v Kora (2018) N7446
Philip Nare v The State (2017) SC1584 

Overseas Cases

Bazley v Curry (1999) 174 DLR 
Lister and Ors v Hesley Hall Ltd [2001] 2 All ER 769 
Morris v C W Martin & Sons Ltd [1966] 1 QB 716 

Prince Alfred College Incorporated v ADC [2016] HCA 37 

Counsel

S Gor, for the Appellant
R Asa, for the Respondent

1st November, 2019 

1.	BY THE COURT: This is an appeal from the whole of the decision given by the National Court in WS No 399 of 2013 upholding a claim for liability and damages for personal injury (Mathews v Kora (2018) N7446). 

2.	On 6 May 2007 there was a semi-professional rugby league match played at the Lloyd Robson Oval in Port Moresby between Pagini Simbu Warriors and Wari Vele Raiders.  The Respondent was the match referee.

3.	The Respondent alleged that a few minutes before the match ended, he was told by another official that supporters of the Warriors team had broken down the barrier fence and were invading the field.  Whilst still within the field, he ran towards the entrance of the stadium where security was stationed.  As he did so he was punched in the face and neck by one of the players from the bench.  He attempted to escape the player by running towards a security guard, who then struck him on the back of the head with a wooden baton, causing him to fall down and lose consciousness. The Respondent was taken to Pacific International Hospital where he received treatment.

4.	The Respondent brought proceedings against the match organisers for failing to ensure adequate security at the ground. The Respondent also claimed that the security guard who assaulted him was employed by the Appellant, Guard Dog, and that the Appellant was vicariously liable for the negligent conduct of its employee.

5.	The learned trial judge dismissed the Respondent’s claims against the match organisers on the basis that there was no evidence that they failed to put in place reasonable measures to protect him.

6.	His Honour upheld the Respondent’s claim against the Appellant and awarded damages in the total amount of K76,000.00.

Grounds of appeal
7.	The Appellant relies on three grounds of appeal, which may be summarised as follows, such that the learned trial judge:

(a)	erred in law or mixed fact and law in finding that an unidentified security guard employed by the Appellant attacked the Respondent when the evidence adduced did not support such a finding;
(b)	erred in law or mixed fact and law in finding that the Appellant was vicariously liable for the attack by the unidentified security guard when the evidence adduced did not support such a finding; and
(c)	erred in law in assessing and awarding damages of K76,000.00 against the Appellant when there was no evidence adduced or submissions made regarding the quantum of damages.

(a): Finding that the Respondentwas assaulted by an unidentified Guard Dog employee

8.	The five-member bench of the Supreme Court in Philip Nare v The State (2017) SC1584 recently clarified the key principles governing vicarious liability of the State.  The Court held that it is not necessary that the alleged principal tortfeasor is joined as a defendant. Nor is it necessary for him to be identified in the pleadings or in the evidence.  It is not necessary for the plaintiff to plead or prove that the tortfeasor committed the breach of duty whilst on duty and acting within the lawful scope of his duties as an employee. It is sufficient to prove that the tortfeasor was acting or purporting to act in the course of his employment.  See also Gibson Wak v Tom Kulunga (2018) N7141.

9.	In doing so the Supreme Court overruled earlier authority which had required in proceedings against the State that the principal tortfeasor be joined as a party to the proceedings, named in the pleadings, and identified in the evidence.

10.	The Appellant submits that Nare may be distinguished in this case on two bases, firstly, that the primary judge erred in finding that the tortfeasor was an unidentified security guard under its employ, and on duty that day, and secondly,on the basis that Nare does not apply to private employers but only to the State.

11.	The Appellant’s principal argument is that the evidence upon which the primary judge made his findings was vague and unsatisfactory.   It points to a lack of direct evidence establishing both that the Appellant was engaged to provide services that day, and that the unidentified guard was one of its employees.

12.	The primary judge considered both these arguments in reviewing the evidence. His Honour had regard to evidence that the Appellant had provided personnel at other games, and was satisfied that the person who struck the Respondent was a person dressed in a Guard Dog security uniform, which “uniform was a distinctive one, down to the carriage of a wooden baton”.  Furthermore, he found that the tortfeasor was positioned at the stadium in a way that he appeared to be a genuine security guard. The judge specifically rejected as improbable the likelihood that the tortfeasor was an imposter, or that the guard fully armed with a baton, was not acting in the course of his employment as a Guard Dog security officer.  He was of the view that the Appellant’s evidence failed to establish the contrary.

13.	The primary judge was satisfied on the balance of probabilities that the unidentified tortfeasor was employed by Guard Dog.  He had the opportunity to hear and observe the Respondent in oral testimony. The finding was open to him on the evidence.  

14.	We do not accept the contention that Nare is confined to claims against the State.   On the contrary,it appears that the decision was intended to bring claims against the State in line with those against private persons.  At [62] the Court explained its reasoning for departing from prior authority (emphasis added):
“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”.
15.	There was no error of fact or law in this case. Ground (a) is dismissed.

(b): Vicarious liability  

16.	The Appellant submits that even if the unidentified tortfeasor was one of its guards, the primary judge erred in finding that it was vicariously liable for his actions as the guard was clearly acting on a “frolic of his own” in assaulting the Respondent.

17.	Nare was concerned with s. 1(4) of the Wrongs (Miscellaneous Provisions) Act 1975 which provides a cause of action in circumstances where an officer of the State commits a tort while “performing or purporting to perform” their duties.  At [35] the Court said (emphasis added):

“The key to the nexus required is in the words “performance or purported performance” by the wrongdoer of his duties 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.”

18.	Whilst the words “performance or purported performance” are taken directly from the statute, the principles guiding their implementation as set out by the Supreme Court are similar to those which apply at common law.

19.	It has long been established at common law that an employer will be vicariously liable for the torts of its employees that are committed “in the course of employment”.  The question of whether the conduct occurs in “the course of employment” has always been one of degree.

20.	In 1907 Sir John Salmond formulated the tests for determining whether an act was in the course of employment which have laid the foundation for the development of this area of liability in common law jurisdictions.  They were whether the act: (a) is authorised by the employer; or (b) is an unauthorised mode of doing some other act authorised by the employer. He went on further to explain that an employer would also be liable for unauthorised acts provided that they are "so connected" with authorised acts that they may be regarded as modes, although improper modes, of doing them.

21.	Like the Supreme Court in Nare, courts in other jurisdictions including Canada and the United Kingdom have increasingly focused on the question of whether there is a “sufficient connection” between the act or omission of the employee and the relationship between the employee and the employer in determining the question of vicarious liability.

22.	In Bazley v Curry (1999) 174 DLR the Canadian Supreme Court held that in determining this issue the court will examine: the opportunity that the enterprise afforded the employee to abuse his or her power; the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);  the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise; the extent of power conferred on the employee in relation to the victim; and the vulnerability of potential victims to wrongful exercise of the employee’s power.

23.	The United Kingdom House of Lords followed Bazley in Lister and Ors v Hesley Hall Ltd [2001] 2 All ER 769 to hold that the question was whether the employee’s conduct was “so closely connected with his employment that it would be fair and just to hold the employer vicariously liable”.  In that case a school was held liable for the sexual abuse of children committed by staff.

24.	Similarly, the High Court of Australia in Prince Alfred College Incorporated v ADC [2016] HCA 37 recently held that the “relevant approach” to take when considering the issue of vicarious liability requires a careful examination of the actual role that the employer assigns to the employee and the position in which the employee was thereby placed vis-à-vis the plaintiff.  That case also concerned liability for sexual abuse in an educational setting.

25.	The issue in this case is much more straightforward.His Honour was satisfied having regard to the evidence outlined above that the guard was acting in the course of his employment, albeit beyond his actual authority.  

26.	That finding was clearly open on the evidence.  The Appellant employed the guard and stationed him at the stadium to provide security services, “fully armed” with a baton.  The manner in which he conducted himself in doing that work was to assault the Respondent.  What he was doing, albeit beyond his authority, was clearly in the course of his employment.  (See the well-known formulation by Lord Diplock in Morris v C W Martin & Sons Ltd [1966] 1 QB 716 at 736-7 regarding the stealing of a fur coat by the employee of a dry cleaner.)  Or in other words, the guard’s conduct was closely connected with his employment.

27.	As his Honour found here, the guard acted negligently in seeking to restore order.  Alternatively, even if he decided to attack a person he knew to be a match official, we agree that in the circumstances that speaks to a failure of instruction or control on the part of the Appellant.There was no error of fact or law. Ground (b) is dismissed.

(c): Damages
28.	The Appellant submits that his Honour erred in law in assessing damages on the evidence available and in the absence of detailed submissions.

29.	It is the case that the evidence before the primary judge was limited on the question of damage.  Nevertheless, the medical report upon which his Honour relied reported “cerebellar dysfunction” having moderately severe consequences of a “permanent medical” nature, affecting balance and coordination of body movement. 

30.	In those circumstances it cannot be said that damages in the sum of K76,000.00 is unreasonable.  Ground(c) is dismissed. 

Conclusion 
31.	The Appellant has failed to show that the learned trial judge erred in law or in mixed fact and law.The appeal must therefore be dismissed, with costs.  

Order

1.	The appeal is dismissed.

2.	The order of the National Court in WS No 399 of 2013 of 21 August 2018 is affirmed.

3.	The Appellant shall pay the Respondent’s costs of and incidental to the appeal on a party-party basis, which shall, if not agreed, be taxed. 
_______________________________________________________________
Fiocco & Nutley:			Lawyers for the Appellant
Warner Shand: 			Lawyers for the Respondent