Dorum v The State [1994] PNGLR 555 (23 May 1994)

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DAMAGES - Vicarious Liability of State for actions of police - Police shot deceased whilst in pursuit of suspects.

This was a dependency claim, including a claim for exemplary damages based on the fact that the deceased was negligently shot by police whilst they were apprehending criminals.

2. Where the police negligently shoot a member of the public, an award of exemplary damages is justified from the need to show the people at large, the police, and the State that appropriate care must be taken in the performance of police duties.

WOODS J: This is a claim for damages brought by the father of one Peter Kaingal Dorum, who died from gunshot wounds received on 8 August 1990. The claim is based on the loss suffered by the deceased wife, Helen, following the death of her husband and on the loss of dependency of the parents of the deceased.

There is also a claim for exemplary damages, based on the fact that the claim alleges that the deceased was shot by the police acting negligently in the performance of their duties.

There appears to be agreement on some liability in the State, and the State has agreed to settle the dependency loss at the figure of K15,528.64. I see nothing wrong with this figure, based on the dependency loss of the wife and parents of the deceased.

The claim for exemplary damages is based on the allegations that the deceased was shot by police whilst they were in the pursuit of some persons who may have broken and entered a nearby store.

The evidence was that the deceased was walking home when the police came searching for suspects who had broken into a nearby store. It is alleged that the police negligently shot the deceased, suspecting that he was one of the suspects they were looking for, or, alternatively, that they fired shots negligently in the area without regard to human life. It is submitted that exemplary damages should be awarded because of the outrageous and negligent conduct of the police officers in firing weapons in a public street where innocent passers-by were walking.

Exemplary damages have been awarded by the court in a number of cases involving actions by the officers of the State against innocent bystanders or persons in the custody of the State. Examples of such cases are Amaiu v Commissioner of Corrective Institutions [1983] PNGLR 87, where the plaintiff was assaulted by members of the Correctional Institutions Service (CIS) while he was in custody at the Bomana prison. In that case, there was an order of K2,000 for exemplary damages. In the case of Dambe v Peri [1993] PNGLR 4, which was a claim by the relatives of the deceased following his shooting by the police when they were in pursuit of suspects, the court awarded K30,000 in exemplary damages as part of the damages. In that case, the police officers were investigating a robbery and had visited a village. In attempting to apprehend the deceased, they took aim and fired at him. There was evidence that the police, although on duty, may have been drinking some beer before the shooting. In a more recent case, Jack v Karani [1992] PNGLR 391, there was the cold-blooded shooting of the deceased by a senior police officer for no apparent reason. In that case, the Court also awarded K30,000 in exemplary damages on top of the other claim for dependency. In the above cases, amounts for exemplary damages seem to be based on the deliberate shooting of the deceased by police officers. In one case, there was the cold-blooded shooting, without any reason whatsover. In Dambe case, it was gross negligence amounting to criminal culpability, with apparently no warnings given to the deceased. However, in the case before me now there is no evidence of a deliberate aiming and shooting. In this case, there was an inquiry held by a coroner, who is also a senior magistrate of the District Court, and looking at his findings, he says as follows:

"I am left to draw necessary inference that it could have been the police who upon seeing the fleeing of suspects from the scene of break and enter fired the shot in that general direction and mistakenly injured the deceased who was taken to the hospital where he died. There is no direct evidence to attach criminal liabilities on those in the party but in adopting civil standard of proof it is more probable than not it was the police party responsible for the shooting of the deceased."

So, on the basis of the coronial report and all the evidence before me, is there anything which allows me to find otherwise than that this appears to have been an extremely tragic accident? However, whilst the Coroner was not able to attach any criminal responsibility to any individual police, we are still left with the highly probable circumstance that the deceased was shot by a police gun. The police have not denied the likelihood that they fired shots. To fire shots into a public area without proper warning and careful consideration is nothing short of gross negligence, even for the police. There is no evidence, either before the Coroner or before this Court, that the police had given appropriate consideration to the pursuit and apprehension of a clearly identified suspect. Rather, they may have fired indiscriminately in a public street. That is behaviour that cannot be condoned.

I am not satisfied that this warrants exemplary damages of the amounts awarded in Jack's case, and the Dambe case where it was deliberate shooting; but I am satisfied that there was some negligence, which must warrant some amount of exemplary damages to show to the people at large, and to show to the police and the State, that appropriate care must be taken in the performance of police duties.

I would, therefore, assess the amount of K15,000 by way of exemplary damages in this case. This, therefore, adds to K30,528.64 damages against the State. I will allow interest at 8% on this amount from the date of issue of the writ to today, which assesses at K1,070.60.

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Papua New Guinea Law Reports

Dorum v The State [1994] PNGLR 555 (23 May 1994)

PNG Law Reports 1994