Philip Kunnga v The Independent State of Papua New Guinea (2005) N2864

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 28 July 2005
• Citation: (2005) N2864
• Docket Number: WS No 394 of 1997
• Court: National Court
• Year: 2005
• Judgement Number: N2864

Full Title: WS No 394 of 1997; Philip Kunnga v The Independent State of Papua New Guinea (2005) N2864

National Court: Cannings J

Judgment Delivered: 28 July 2005

N2864

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 392 OF 1997

PHILIP KUNNGA

Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

MT HAGEN : CANNINGS J

11, 12, 18, 19 OCTOBER 2004, 28 JULY 2005

Police – negligence – alleged police raid – representative action – multiple claimants – whether conduct of police officers negligent – whether police officers committed tort of negligence – 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.

Evidence – competing and irreconcilable versions of facts by different groups of witnesses – relevant considerations to take into account when determining whose evidence to believe – onus of proof – standard of proof.

Damages – special damages – damage and theft of property – exemplary damages – whether appropriate to award exemplary damages – plaintiff and 13 other claimants awarded various amounts of special damages, plus interest and costs.

A group of 20 to 30 police officers conducted a search of Kombulno village in the Minj District of Western Highlands Province. The plaintiff is a resident of that village. He and a number of other villagers claimed that the police unlawfully raided the village and went on a rampage, destroying and stealing property. He commenced proceedings, in a representative action, seeking damages for negligence. The defendant, the State, denied liability, saying that the police were not negligent and there was no raid. If, however, the court finds it liable, the State says that the claimants’ losses are overstated. A trial was conducted addressing issues of both liability and quantum of damages.

Held:

1 The plaintiff proved on the balance of probabilities that the police operation was not a routine village search but a raid involving destruction and stealing of property and livestock.

2 There was sufficient evidence to make findings as to which claimants had their property stolen or destroyed and the nature and value of the items of property.

3 The police officers committed the tort of negligence.

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 The State is liable to pay special damages to each claimant but not exemplary damages as individual police officers were not named as defendants. Abel Tomba v The State (1997) SC578 applied.

7 Fourteen claimants were awarded various amounts of special damages plus interest and costs.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC578

Andale More and Another v Henry Tokam and The State (1997) N1641

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

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

Desmond Huaimbukie v James Baugen and The State (2004) N2589

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

Jerry Goria v Sergeant Jeffery Simera and Others (2001) N2066

John Yama v The State (2002) N2198

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

Kinsim Business Group v Joseph Hompwafi and Others (1997) N1634

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

Philip Kunnga v The State (2004) N2689

Steven Kirino v The State [1998] PNGLR 351

Tabie Mathias Koim v The State [1998] PNGLR 247

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

Wama Kints v The State (2001) N2113

Counsel

J Nandape for the plaintiff

K Sino and R Mai for the defendants

CANNINGS J:

INTRODUCTION

This is a case about an alleged police raid of Kombulno village, also known as Nondugl village, in the Minj District of Western Highlands Province. The plaintiff is a resident of that village. He and a number of other villagers claim that the police unlawfully raided the village and went on a rampage, destroying and stealing property. It is claimed that the police acted negligently.

The defendant, the State, denies liability. They say that the police were not negligent. There was no raid. If, however, the court finds the State liable, they say that the plaintiff’s damages are overstated. The case is therefore about both liability and quantum of damages.

BACKGROUND

The incident

On 12 February 1996 the police conducted a search of Kombulno village. Kombulno is sometimes known as Nondugl, as there is a police station of that name next to it.

The plaintiff, Philip Kunnga, says that the police operation at Kombulno was an illegal raid involving destruction and theft of property. The plaintiff claims that the police were negligent. Because of that negligence he and other villagers have suffered losses. The defendant, the State, should be held vicariously liable for the negligent conduct of the police officers. The villagers should be awarded damages.

Statement of claim

On 29 April 1997 D L O’Connor, Lawyer of Mt Hagen, filed a writ of summons on behalf of the plaintiff and 21 other persons (referred to in this judgment as “claimants”). The State was and is the sole defendant.

The statement of claim attached to the writ alleged that police officers employed by the defendant wrongfully and unlawfully destroyed and misappropriated livestock and property belonging to the plaintiff and the others, that the police officers were acting in the course of their employment and that the defendant is vicariously liable for their unlawful actions.

The plaintiff himself sought special damages of K4,478.60 (being for goods, trees or crops destroyed or stolen, damage to his house, livestock destroyed or stolen and household contents destroyed or stolen) plus exemplary damages. His was the biggest claim. The 21 others claimed various amounts ranging from K626.00 in the case of claimant No 13, Andrew Kondual, to K3,023.69 in the case of claimant No 21, Kangi Kunnga.

Events since filing of writ

On 7 October 1997 a consent and authority form was filed, by which the 21 other claimants authorised the plaintiff to bring proceedings on their behalf.

On 21 October 1997 a notice of change of lawyers was filed and Tamutai Lawyers commenced acting for the plaintiff.

On 13 February 1998 the defendant’s lawyer, the Solicitor-General, filed a notice of intention to defend.

On 29 April 1998 the Solicitor-General filed a defence, denying the allegations contained in the statement of claim and asserting that the defendant could not be held liable as alleged actions were by unidentified police officers and that if the alleged destruction of property took place, it was not authorised by the defendant.

On 10 September 2002 a bundle of affidavits by the claimants was filed, giving further details of each claim.

On 9 December 2003 the defendant filed a motion seeking to dismiss the proceedings on the ground of abuse of process. On 18 December 2003 Davani J dismissed that motion.

In October 2004 the trial was held at Mt Hagen.

PLAINTIFF’S EVIDENCE

On the first day of the trial Ms Nandape for the plaintiff called eight of the claimants, each of whom had sworn an affidavit, to give oral evidence:

1 Philip Kunnga;

2 Bii Wos;

3 Dambe Kunnga;

4 Benjamin Topo;

5 Kund Aipe;

6 Maria Ape;

7 Gispe Kal;

8 Paul Tunn.

A village councillor, Caspar Kombra, also gave evidence. He is not a claimant and did not swear an affidavit. He was not present when the police operation took place but gave evidence of what he saw afterwards.

Ms Nandape then made applications under Section 34 of the Evidence Act regarding the affidavits of five other claimants. She asked the court to make an order in relation to each affidavit that it could be tendered into evidence despite the deponent not being available for cross-examination. Mr Sino, for the State, objected. I heard submissions, then the next day made a ruling that two of the five affidavits could be tendered (Philip Kunnga v The State (2004) N2689). Those affidavits are by:

9 Elis Bol (a deceased claimant);

10 Philip Korokoi (a physically incapacitated claimant).

On the second day of the trial Ms Nandape called a further four claimants to give oral evidence:

11 Peter Opri;

12 Mim Siwi;

13 Gabriel Ape;

14 Akisa Peter.

Thus the court admitted the evidence of 14 claimants. Six claimants had sworn affidavits but were not present at the trial. Ms Nandape either did not tender their affidavits or unsuccessfully applied to have them admitted. They were: Andrew Kondual; Wos Korokoi; Kal Tai; Caspar Kaman; Ze Par; and Kambiye Korokoi. Two claimants, Kangi Kunnga and Wendy Alkan, did not swear affidavits. The case proceeded on the basis that there was no evidence to support any of those eight...