Independent State of Papua New Guinea v Kofowei [1987] PNGLR 5 (26 February 1987)

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[1987] PNGLR 5 - The Independent State of Papua New Guinea v David Wari Kofowei and Others

POLICE - Action for wrongs - Liability of State - Police are servants, agents and offices of State - Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 1(1)(a), 1(4).

STATE SERVICES - Police force - Action for wrongs - Independent discretion rule not part of underlying law - Liability of State - Tort of police - Police are servants, agents and officers of State - Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 1(1)(a), 1(4).

(1) The Common Law Rule referred to as the independent discretion rule was not adopted pursuant to the Constitution, Sch 2, as part of the underlying law of Papua New Guinea on Independence, as it had been replaced by the Wrongs (Miscellaneous Provisions) Act 1962 prior to Independence.

(2) A policeman is both a servant and an agent of the State for the purposes of the Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 1(1)(a), and an officer for the purposes of s 1(4).

(3) Whether the State is liable for the acts of a policeman as a servant or agent committing a tort within the scope of his employment (s 1(1)) or as an officer performing functions conferred or imposed on him by statute or the underlying law (s 1(4)) is a matter to be determined on the facts of any particular case.

(4) In the circumstances a finding of liability under s 1(1) when a finding of liability under s 1(4) was the proper finding, had not resulted in any injustice warranting interference on appeal.

This was an appeal from a decision of Ramage AJ, namely, David Wari Kofowei v Augustine Siviri & Ors [1983] PNGLR 449. The grounds of appeal argued are set out below.

KIDU CJ KAPI DCJ WOODS J: Of the 45 grounds of appeal contained in the notice of appeal only grounds 7, 8, 9, 10 and 11 were pursued and these are:

“7. The trial Judge having found that the rule commonly referred to as the independent discretion rule was the common law as it existed in 1975 erred:

(b) in finding if his Honour did so (and this is not clear from his Honour’s reasons) such common law rule inconsistent with a statute namely Section 1(1) of the Wrongs (Miscellaneous Provisions) Act (Ch No 297);

(c) in finding such common law rule inconsistent with a statute namely Section 2 of the Claims By and Against the State Act (Ch No 30);

(d) in finding such common law rule inapplicable or inappropriate to the circumstances of Papua New Guinea;

(e) in finding without any grounds or basis, such common law rule inconsistent with the Constitution;

(f) in failing to appreciate that the reason such common law rule does not apply in other jurisdictions is that it being accepted as the common law rule it was altered by the appropriate legislation.

8. Having correctly set forth the tests imposed by Section 1(1)(a) of the Wrongs Act and having correctly made no finding that the second to fifth respondents were agents of the appellant the trial judge erred in finding that the second to fifth respondents were servants of the appellant within the meaning of such section.

9. The trial Judge erred in finding that Section 1(4) of the Wrongs (Miscellaneous Provisions) Act abolished the common law rule commonly known as the independent discretion rule.

10. The trial Judge erred in his consideration of Section 1(4) of the Wrongs (Miscellaneous Provisions) Act in that he did not consider whether or not the second to fifth respondents were ‘Officers’ of the appellant within the meaning of such section. His Honour approached the question on the basis of whether such respondents were ‘servants’ of the State thus applying an erroneous test as assumption.

11. The trial Judge erred in that he failed to distinguish the test of an ‘officer performing or purporting to perform functions’ conferred or imposed on him from the test of ‘an employee acting in the scope of his employment’.

In so doing his Honour failed to give effect to important distinctions between the two tests and erroneously applied law relating to the scope of employment of employees to extend the scope of functions conferred or imposed on an officer.”

The second, third, fourth and fifth respondents were sued by the first respondent for assault, breaches of constitutional rights, breaches of the Arrest Act (Ch No 339) and the Bail Act (Ch No 340), and for false imprisonment. They were, at the time the suit was filed, policemen attached to the Mt Hagen Police Station. They did not defend and judgment was entered against each of them. The appellant, then fifth defendant, denied liability. However, the National Court found against it and ordered that it pay damages amounting to K11,992.00 to the first respondent. It held that the appellant was vicariously liable for the actions of its servants — the second, third, fourth and fifth respondents (see David Wari Kofowei v Augustine Siviri & Ors [1983] PNGLR 449).

The rule referred to as the independent discretion rule, as it relates to policemen, is contained in the Australian case of Enever v The King [1906] HCA 3; (1906) 3 CLR 969 and stated by Griffith CJ at 977 as follows:

“A constable ... when acting as a peace officer, is not exercising a delegated authority, but an original authority, and the general law of agency has no application.”

In England the leading case is Fisher v Oldham Corporation [1930] 2 KB 364 which followed Enever’s case. So the Common Law of England in 1930 included this independent discretion rule. But was this rule in existence when Papua New Guinea became an independent country on 16 September 1975?

The law (ie, that a police authority is not vicariously liable for torts of a policeman) in England was rendered redundant in 1964 by s 48 of the Police Act 1964 (UK). This provision is as follows:

“48(1) The chief officer of police for any police area shall be liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their function in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor.

(a) any damages or costs awarded against the chief officer of police in any proceedings brought against him by virtue of this section and any costs incurred by him in any such proceedings so far as not recovered by him in the proceedings; and

(b) any sum required in connection with the settlement of any claim made against the chief officer of police by virtue of this section, if the settlement is approved by the police authority.

(3) Any proceedings in respect of a claim made by virtue of this section shall be brought against the chief officer of police for the time being or, in the case of a vacancy in that office, against the person for the time being performing the functions of the chief officer of police; and references in the foregoing provisions of this section to the chief officer of police shall be construed accordingly.

(4) A police authority may, in such cases and to such extent as they think fit, pay any damages or costs awarded against a member of the police force maintained by them, or any constable for the time being required to serve with that force by virtue of section 14 of this Act, or any special constable appointed for their area, in proceedings for a tort committed by him, any costs incurred and not recovered by him in any such proceedings, and any sum required in connection with the settlement of any claim that has or might have given rise to such proceedings; and any sum required for making a payment under this subsection shall be paid out of the police fund.”

Whatever the situation in England was before 16 September 1975 it has no relevance to Papua New Guinea for here the situation was governed by legislation as from 1962. This legislation was the Law Reform (Miscellaneous Provisions) Act 1962 (No 58 of 1962) as amended. It is now part of the Wrongs (Miscellaneous Provisions) Act (Ch No 297). Section 1 of this Act reads:

(1) Subject to this Division, the State is subject to all liabilities in tort to which if it were a private person of full age and capacity, it would be subject:

(b) in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and

(c) in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.

(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.

(3) Where the State is bound by a statutory duty that is binding also on persons other than the State and its officers, then, subject to this Division, the State is, in respect of a failure to comply with that duty, subject to all liabilities in tort (if any) to which it would be subject if it were a private person of full age and capacity.

(4) 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 officer 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.

(5) An Act or subordinate enactment that negatives or limits the amount of the liability of a Department of the Government or officer of the State in respect of a tort committed by the Department or officer applies, in the case of proceedings against the State under this section in respect of a tort committed by the Department or officer, in relation to the State as it would have applied in relation to the Department or officer if the proceedings against the State had been proceedings against the Department or officer.

(6) Proceedings do not lie against the State by virtue of this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in him, or responsibilities that he has in connection with the execution of judicial process.” (Our emphasis.)

It is quite clear from the foregoing that the learned trial Judge was wrong when he held that the Common Law rule of independent discretion was adopted as part of the underlying law of Papua New Guinea on Independence Day. But no harm came about as a result of this error as he then rejected the principle and applied the Wrongs (Miscellaneous Provisions) Act (the Wrongs Act).

The appellant (the State) has argued its case under this ground of appeal on the premise, at least that is how it appears to us, that Common Law rules, if in existence on 16 September 1975, automatically became part of the underlying law of Papua New Guinea. This is, of course, contrary to Sch 2 of the Constitution which, in the very clearest of terms, says that such principles only apply in Papua New Guinea if they are not inconsistent with constitutional or statutory law or are not inapplicable or inappropriate to the circumstances of the country from time to time or are not inconsistent with customary law which are not inconsistent with statute law or which are not repugnant to general principles of humanity. So in this case if the independent discretion rule still survived Independence then it would have to have been scrutinised under Sch 2 of the Constitution. But we do not have to trouble ourselves here with Sch 2 as the matter was covered by the Wrongs Act before Independence. There is no room under the Wrongs Act (s 2(1) and s 1(4)) for the independent discretion rule. Whether or not the State is vicariously liable for torts committed by its servants, agents or officers depends first, on whether a policeman is either a servant, agent or officer of the State under the Wrongs Act. If he is either a servant or an agent or an officer of the State, then the next inquiry is as to whether the circumstances render the State liable vicariously for the tort committed by him.

The crux of this ground is that the trial Judge erred in finding that policemen are servants of the State within the meaning of s 1(1) of the Wrongs Act. This Act does not define the term “servant” nor does it define the terms “agent” and “officer”. The Interpretation Act (Ch No 2) in s 3 thereof only defines “officer”. It provides as follows:

(a) an officer appointed to the Public Service under Section 57 or 58 of the Public Service Act; or

(b) a person employed to render temporary or casual assistance in the Public Service under the Public Service Act; or

(d) the Commissioner or an Associate Commissioner of the Teaching Service Commission; or

(g) a person who occupies an office (not being an office to which any of the preceding paragraphs apply) for the time being declared by notice under subsection (5); ...”

Policemen do not come under pars (a) to (c). They could come under pars (f) or (g). But this is of no assistance as there is no evidence that offices occupied by policemen have been declared under s 3(5) of the Interpretation Act.

The Police Force is a State Service established by s 188(1)(b) of the Constitution, which provides as follows:

So as a member of a State Service there cannot be any doubt that a policeman is both an officer and a servant of the State. The fact that some of his responsibilities are conferred on him by statute or the underlying law does not affect his status of being a servant and officer of the State.

Also under the Constitution of Papua New Guinea the State is the embodiment of the People. The preamble to the Constitution says, inter alia, “... WE, THE PEOPLE, do now establish this sovereign nation and declare ourselves, under the guiding hand of God, to be the Independent State of Papua New Guinea”. So it is explicit that the State stands for the People. In the Preamble again it is stated, that “... all power belongs to the people ...”. So the power exercised by the policeman whether under a statute or the underlying law belongs to the People or the State. And so it cannot be doubted that when a policeman exercises these powers he acts also as an agent of the People or the State.

We do not say any more than what we have said thus far. We would reject this ground of appeal as well.

We have already ruled that the Wrongs Act replaced the independent discretion rule in 1962. This ground therefore must fail.

This ground is clearly misconceived. It is very clear from the learned trial Judge’s judgment at [1983] PNGLR at 466 that he considered a policeman to be both a servant and an agent of the State (as indeed he is):

“The State is of course not liable for the tort of its employee unless the police constable as a ‘servant’ was acting in the course of his employment under s 1(1)(a) or whilst as an officer of the State he is performing or purporting to perform functions conferred on him by a rule of the underlying law or by statute. In my view both require me to be satisfied that the actions were within the scope of their police employment or functions. There is no dispute that the police here were so acting when the plaintiff was apprehended, and brought back to the police station. It also seems clear that though perhaps in defiance or ignorance of the instruction regarding handcuffs it cannot be said that restraining him in such a fashion was outside the scope of their employment.”

And the learned trial Judge then went on and decided the liability of the appellant on the basis that the second to fifth respondents were servants of the State — ie, determination of the liability under s 1(1) of the Wrongs Act. Thereafter there was no need for his Honour to decide whether or not the police were officers of the State.

There is indeed a distinction between the liability of the State under s 1(1) and s 1(4) of the Wrongs Act.

The provision in s 1(1) applies where a servant or an agent of the State commits a tort during the course and within the scope of his employment and s 1(4) is applicable in cases where an officer of the State performs functions or purports to perform functions conferred or imposed on him by statute or the underlying law. 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 agents or servants nor are all its agents or servants also its officers. Because of this distinction the State’s liability under s 1 of the Wrongs Act must be properly considered under either the provisions of s 1(1) or s 1(4) and whether one provision or the other applies would be dependent on the facts of the case.

In this case the torts committed by the policemen were perpetuated in the course of the performance of their functions conferred on them by both statutory law and the underlying law. So properly the learned trial Judge should have found the State liable under s 1(4) and not s 1(1). Be that as it may no injustice has been done as on the facts and the law — both covered in his Honour’s judgment — the State was vicariously liable for the torts committed by the policemen.

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Papua New Guinea Law Reports

Independent State of Papua New Guinea v Kofowei [1987] PNGLR 5 (26 February 1987)

Papua New Guinea Law Reports - 1987