Philip Nare v The State

• Jurisdiction: Papua New Guinea
• Judge: Injia CJ, David J, Ipang J, Higgins J & Neill J
• Judgment Date: 28 April 2017
• Citation: (2017) SC1584
• Court: Supreme Court
• Year: 2017
• Judgement Number: SC1584

Full : SCA No 93 of 2014; Philip Nare v The Independent State of Papua New Guinea (2017) SC1584

Supreme Court: Injia CJ, David J, Ipang J, Higgins J & Neill J

Judgment Delivered: 28 April 2017

SC1584

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA. NO. 93 OF 2014

BETWEEN:

PHILIP NARE

Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Respondent

Waigani: Injia CJ, David J, Ipang J, Higgins J & Neill J

2016: 27th July

2017: 28th April

CLAIMS AGAINST THE STATE – Torts committed by police officers – Liability of the State – Vicarious liability of the State established if officers are acting or purporting to act in the course of their functions – No requirement to join individual officers as parties (defendants) – Kewakali v The State [2011] SC 1091 overruled – Wrongs (Miscellaneous Provisions) Act 1995 ss.1(1), 1(4).

Cases Cited:

Papua New Guinea Cases

Bob Kol v The State [2010] N3912

Dambe v Peri & The State (1991) PGNC31

Dorun v The State (1994) PNGLR 555

Enever v The King (1906) 3 CLR 696

Kei v Hasu [2004] PNGLR 415

Kuk Kuli v The State [2004] N2592

Lanyat v Wangalo (1996) PGNC 44

Lina Kewakali v The State [2011] SC1091

More v The State & Others [1998] PNGLR 290

Pyali v Kakilo and The State [2003] N2492

State v Kofowei & Ors [1987] PNGLR 5

Overseas Cases

NSW v Bryant [2005] NSWCA 393

New South Wales v. Lepore (2003) 212 CLR 511

Steviko v RSM Security Pty Ltd & Ors [2004] NSW CA 351

Counsel:

P. Tamutai, for the Appellant

S. Piyanki, for the Respondent

JUDGMENT

28th Aril, 2017

1. BY THE COURT: This is an appeal from a decision of Poole, J dismissing proceedings on procedural grounds.

2. The substantive claim is in respect of damage caused by a group of people in police uniforms driving police vehicles accompanied by a police helicopter who raided Teremanda Village in Enga Province.

3. The residents of the Village who suffered loss have sued the State claiming the cause of the loss was the wrongful acts of police officers acting for and on behalf of the State as its servants and agents.

4. The State’s defence denied or put in issue everything alleged. In particular that the persons causing the loss and damage, if it occurred, were servants or agents of the State or, if they were, that they were acting in the course of their employment. In the Writ of Summons, the State was the only defendant named in the proceedings. By an amendment to the Statement of Claim of 30th September 2004, the plaintiff/appellant named three (3) Senior Police Officers as the commanders of the Police Officers who carried out the raid. They were not named as defendants in the proceedings. The particulars of three (3) police vehicles involved indicated they belonged to Wabag Police Station. There were eight (8) other police vehicles identified as originating from Western Highlands Province, including two (2) identified by registration numbers.

6. Numerous affidavits were filed outlining an appalling display of police brutality and abuse of power with serious wrongs being inflicted on the plaintiffs with both bodily injuries and property damage being alleged. The raid took place, it is further alleged, over two days on 21st and 22nd November 1995.

7. The case came before Poole, J on 6th May 2013. Evidence of the events of 21st and 22nd November 1995 was taken by the tender of affidavits.

8. The Statement of Claim had initially been filed on 15th April 1997. It did not identify any individual police officer as a tortfeasor or name any defendant other than the State.

9. The liability of the State can only be vicarious. The Claims by and Against the State Act 1996 provides in s.2(1) that a person taking action against the State in contract or in tort “may bring a suit against the State in respect of the claim, in any court in which such a suit may be brought as between other persons”. Notice is required under s.5 but no suggestion is made that such notice was not given. Relevantly, there is a limit under s.12(1) in respect of exemplary damages.

10. Nevertheless, the State in the present matter submitted to Poole, J that the proceedings were incompetent because the offending police officers were not named and joined as parties.

11. In its reply to the defendant's request for further and better particulars, the plaintiff repeated the names of the police officers who commanded the raid that were supplied in the amended Statement of Claim.

11. His Honour, in his judgment delivered on 17th June 2014 accepted the evidence of the Police rampage and in particular commented:

“[7] whatever brought police to Teremanda, it cannot have been the whim of the men there or an accidental arrival”.

12. The Wrongs (Miscellaneous Provisions) Act 1995 provides in s.1(a):

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

(a) in respect of torts committed by its servants and agents.”

13. Further;

“(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.”

14. Also relevant is Section 2:

“(1) where the State is subject to liability by virtue of this Division, the law relating to indemnity and contribution is enforceable by or against the State in respect of the liability to which it is so subject as if the State were a private person of full age and capacity.”

15. His Honour accepted that the facts alleged were not consistent with rogue police officers or persons pretending to be police officers “off on a frolic of their own”. As his Honour found:

“[8]... the degree of organisation apparent and the reported presence on two separate days is utterly inconsistent with any claim of this being other than a well organized incident.”

16. Thus far liability seems to have been firmly established yet his Honour perceived an obstacle. That was the Supreme Court decision of Lina Kewakali v The State [2011] PGSC1. His Honour took that case to mandate that:

“[19) if the offenders are not named as a party rather then (sic-than) just nominated in the text of the statement of claim, the plaintiffs have failed to establish the necessary nexus or link between the wrongdoing tortfeasor and the defendants pleaded as the vicariously liable principle (sic-principal) tortfeasor.

[20]...Kewakali v The State... requires, in claims based on vicarious liability, that they be pleaded in such a way that the alleged tortfeasors are named as parties so as to establish the nexus of liability with the principle.”

17. The substantive liability of the State was not otherwise addressed.

18. In State v Kofowei & Ors [1987] PNGLR 5 the Supreme Court (Kidu, CJ, Kapi, DCJ, Woods, J) considered the basis for liability attaching to the State by reason of the wrongful acts of police officers. At common law, a constable exercises, not a delegated, but an original authority. As a result, he or she is not subject to direction in exercising authority as a peace officer – see Enever v The King (1906) 3 CLR 696, 977.

19. That position so far as it relates to tortuous acts committed by constables was altered by s.1 of the Law Reform (Miscellaneous Provisions) Act 1962 (PNG) as the Court in State v Kefowei (supra) noted.

20. Subsection (4) of Section 1 is of most relevance, it provides:

“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 officers 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.”

21. That precise provision is continued in the Wrongs (Miscellaneous Provisions) Act 1975 s.1(4).

22. It is therefore, no defence for the State to claim that its officers were exercising an “independent discretion” in the course of which the wrongful acts occurred. In exercising police power an officer: (at 10)

“acts also as an agent of the People or the State.”

23. The Court also noted the distinction between the liability imposed on the State by virtue of ss.1(1) and by ss.1(4):

“(at 11).... 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 servants or agents nor are all its agents or servants also its officers.”

24. Thus the State’s liability was properly imposed by virtue of s.1(4) not s.1(1). However, it made no difference that the trial judge found liability to be imposed under s.1(1). That was an immaterial error.

25. Kei v Hasu [2004] PNGLR 415 was a case of a police officer...