Linda Stanley v Mathew Kawa and the Independent State of Papua New Guinea (2005) N2865

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 28 July 2005
• Court: National Court
• Citation: (2005) N2865
• Docket Number: WS No 382 of 1997
• Year: 2005
• Judgement Number: N2865

Full Title: WS No 382 of 1997; Linda Stanley v Mathew Kawa and the Independent State of Papua New Guinea (2005) N2865

National Court: Cannings J

Judgment Delivered: 28 July 2005

N2865

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 382 OF 1997

LINDA STANLEY

V

MATHEW KAWA

1st Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

2nd Defendant

MT HAGEN : CANNINGS J

7, 19 OCTOBER 2004, 28 JULY 2005

Police – actions for wrongs – liability of the State – police are servants, agents and officers of the State – Wrongs (Miscellaneous Provisions) Act, Section 1 – general liability of the State in tort – whether actions of police officers committed within the scope of police functions and responsibilities – whether tortious acts of police beyond scope of police authority – vicarious liability.

Damages – negligence – loss of 50% visual capacity in one eye – general damages for pain and suffering and loss of amenities of life – loss of earning capacity – need to plead and prove facts relied on – special damages – plaintiff awarded total damages of K25,725.00 – plus interest and costs.

Some off-duty members of a police mobile squad were travelling along the Okuk Highway in a police vehicle when they came upon an incident in which a drunken man was causing a disturbance. The police tried to arrest him but there was a scuffle, shots were fired and the plaintiff, a bystander, was hit in the eye by a stray bullet, losing 50% of her visual capacity in one eye. She commenced proceedings against the commander of the mobile squad and the State, claiming damages for negligence. She claimed that the commander of the mobile squad and the State were vicariously liable for the tortious conduct of the police officers.

Held:

1 The police officers were off-duty but remained police officers 24 hours a day and, using a public road, they owed a duty of care to fellow road users.

2 The police officers fired shots in a public place in a dangerous and unnecessary way and committed the tort of negligence.

3 The first defendant had nothing to do with the incident and cannot be vicariously liable for his officers’ actions.

4 The State is liable for the tortious actions or omissions of police officers committed within the scope of police employment and functions unless the State discharges the onus of proving that what they did was totally removed from the domain of their authorised actions. Nogo Suzuke v The State WS 951 of 1994, unreported, 21.06.96; Eriare Lanyat and Another v The State [1997] PNGLR 253; Wama Kints v The State (2001) N2113 applied.

5 In the circumstances the State was vicariously liable for the negligence of the police officers.

6 General damages of K25,000.00 were assessed; plus special damages of K725.00.

7 The State is also liable for interest of K16,656.09 and costs.

Cases cited

The following cases are cited in the judgment:

Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24

David Kofowei v Augustine Siviri and Others [1983] PNGLR 449

Dorothy Kesla Tuba v The State (1997) N1581

Eriare Lanyat and Another v The State [1997] PNGLR 253

Joseph Dikini v John Wamel (1997) N1562

Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779

Nogo Suzuke v The State WS 951 of 1994, unreported, 21.06.96

Pinzger v Bougainville Copper Ltd [1983] PNGLR 436

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160

Reading v MVIT [1988] PNGLR 266

MVIT v Reading [1988] PNGLR 236

The State v David Wari Kofowei and Others [1987] PNGLR 5

Tumunda Toropo v Jack Awabe and The State (2001) N2116

Wama Kints v The State (2001) N2113

STATEMENT OF CLAIM

This was an action in which the plaintiff claimed damages for personal injuries caused by negligence of police officers.

Counsel

P Kunai for the plaintiff

J Kolkia for the defendants

CANNINGS J:

INTRODUCTION

This is a case about the alleged shooting of an innocent bystander by the police. It is claimed that the police negligently discharged a firearm in a public place and hit the bystander, causing injury.

The defendants deny liability. They say that the police were not negligent and even if they were, there is no vicarious liability. If the court rejects those propositions and finds either or both of them liable, they say that the plaintiff’s injuries are not very serious. The case is therefore about both liability and quantum of damage.

BACKGROUND

The incident

On 11 May 1995 there was an incident on the Okuk Highway, at the Kindeng junction, Western Highlands Province. Some members of the police mobile squad based at Kerowagi, Chimbu Province, were travelling along the highway in the direction of Mt Hagen. When they got to the junction, the highway was blocked. A man was in the middle of the road causing a disturbance. He was drunk and disorderly. The police tried to arrest him. But he did not co-operate. One of the police officers fired a shot from a firearm.

The plaintiff, Linda Stanley, says that at that time she was in her family’s trade-store, near where the incident took place. She claims she was hit in the left eye by a stray bullet. Blood came out of her eye. She fell to the floor. Her family rushed her to Mt Hagen General Hospital, 20 kilometres away. The plaintiff claims that she was injured by the negligent acts of the police officers present and particularly the one who fired the shot. The second defendant, the State, should be held vicariously liable for the negligent conduct of the police. She should be awarded damages.

The defendants say that it is not clear that the plaintiff was hit by a police shot. If she was, the police did not act negligently. They acted reasonably in all the circumstances. They were faced with a difficult situation and did what was necessary to prevent serious or fatal injury to the police officers who were trying to quell the disturbance.

Statement of claim

On 24 April 1997 Kunai & Co Lawyers of Mt Hagen filed a writ of summons on behalf of the plaintiff. Two defendants were named:

Mathew Kawa, who was at the time the commander of the mobile squad at Kerowagi; and

the State.

The writ was served on 24 May 1997. The statement of claim endorsed on the writ claimed that the first defendant, while acting in the course of his duties, ordered police officers under his command to carry out a raid at the Kindeng junction, resulting in the police officers firing a shotgun without lawful excuse or justification and the plaintiff sustaining severe injuries to her left eye from shotgun pellets. The second defendant was vicariously liable.

The plaintiff sought the following remedies:

general damages for loss of sight, in particular 50% loss of visual capacity of the left eye;

special damages of K725.00.

interest; and

costs.

Events since filing of writ

On 16 July 1998 the Solicitor-General filed a defence on behalf of the first and second defendants, denying the allegations contained in the statement of claim. They claimed that the actions of the police were voluntary and independent and not authorised commands. The case was set down for trial on several occasions over a number of years, but the trial dates were vacated. In April 2003 the Solicitor-General ceased to act for the defendants and Paul Paraka Lawyers of Mt Hagen commenced acting for the defendants. In October 2004 the trial was held at Mt Hagen.

PLAINTIFF’S EVIDENCE

Mr Kunai, for the plaintiff, called six witnesses.

Linda Stanley is the plaintiff. She swore an affidavit on 2 December 1998, describing herself as then aged 26 and married. She deposed that at about 4 o’clock on the afternoon of Thursday 11 May 1995 she was working in her family’s trade store at Kindeng. She saw a young man fleeing from the police, who were in a police vehicle. The vehicle belonged to the Simbu police as it had a yellow insignia on the front bumper. She saw many people from the market running to the road to see what was happening. She saw the police vehicle stop and shortly after that heard a gunshot. She felt something solid hit her left eye. She fell to the floor. She was admitted to Mt Hagen General Hospital that day and stayed for 17 days. She confirmed the contents of her affidavit in examination in chief.

In cross-examination she stated that she did not see the first defendant, Mathew Kawa, at Kindeng on the day of the incident. She did not see any pellets. Her doctor had told her that he removed pellets from her left eye. She forgot to bring her receipts for the expenses she incurred. She had no documents to prove that she had been admitted to hospital. She purchased some spectacles on her doctor’s recommendation but they did not improve her vision.

Mike Soh is a village court magistrate who states that he was an eyewitness to the incident. He swore an affidavit on 2 December 1998. He deposed that at about 4 o’clock on the afternoon of Thursday 11 May 1995 he was standing at the market place at the Kindeng-Papene junction. He heard a commotion. There was a lot of noise coming from the general direction of Mt Hagen. He saw a police vehicle being driven in reverse. It was a Toyota Landcruiser 10-seater van. It was from Simbu as it had a yellow insignia on the bumper. The van eventually parked on the side of the highway next to the market, immediately in front of a store. At the same time a number of villagers ran onto the road to...