Pike Dambe v Augustine Peri and The Independent State of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Amet J
• Judgment Date: 01 March 1991
• Citation: [1993] PNGLR 4
• Court: National Court
• Year: 1993
• Judgement Number: N1156

National Court: Amet J

Judgment Delivered: 1 March 1991

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PIKE DAMBE

V

AUGUSTINE PERI AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Amet J

14-15 July 1988

1 March 1991

NEGLIGENCE — Duty of care — Police officer in pursuit of suspect — Discharge of firearm — Wrongs (Miscellaneous Provisions) Act Ch 297.

VICARIOUS LIABILITY — Of State for negligence of police — Not in course of duty.

DAMAGES — Contribution by employed officer for negligence — Exemplary damages as punitive and deterrent measure.

Facts

The deceased was shot with a shotgun by the first defendant, a policeman, during the course of a police operation, and died as a consequence of the wounds. His widow claimed damages from the State for herself and three children of the marriage. The trial judge found that the policeman was negligent in discharging his firearm at the deceased, who he suspected of stealing beer, as the circumstances did not justify the use of firearms.

Held

1. Firearms should only be used in extreme situations of danger to life of the police or other persons, and only after all reasonable and other possible alternatives have been exhausted. In relation to pursuit of suspects or escapees from custody, similar conditions of last resort must be present. Every effort at pursuit must be made; failing that, every effort at warning and caution must be given by mouth, and if no heed is paid to that, again, warning shots should be fired above the head into the air. That failing, and only then, it might be lawfully justifiable to shoot at the body of a fleeing suspect or escapee. The purpose then must be only to maim in a non-vital area to prevent further escape.

2. The State is vicariously liable for the negligence of the first defendant, its employee. This is permitted under the Wrongs (Miscellaneous Provisions) Act 1 (a), which provides that:

" (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:

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

3. Exemplary damages also has a compensatory element. It is intended to punish the defendant and also to serve as moral retribution and deterrence. It serves to exact retribution for oppressive, arbitrary or unlawful action by servants of the Government. It also manifests the intention to deter the defendant and others who might act similarly from repeating the behaviour.

Counsel

DL O'Connor for the plaintiff.

L K Kari for the defendants.

1 March 1991

AMET J: This is a dependency action for damages brought under Part IV of the Wrongs (Miscellaneous Provisions) Act Ch 297. The plaintiff is the widow of Mek Dambe of Taimil Village in the Minj District of the Western Highlands Province. Mek Dambe was shot with a shotgun by Augustine Peri, a policeman, in the service of the State, during the course of a police operation near Taimil village on 21 December 1982, and died as a result of the shotgun wounds in Mount Hagen Hospital on 22 December 1982. The plaintiff claims damages for herself and three children of her marriage with the deceased.

The plaintiff claims that the policeman, Augustine Peri, unjustifiably and negligently aimed towards and discharged the firearm at the deceased, causing him injuries from which he later died. It is alleged that the second defendant the State, as the employer, is vicariously liable in damages for the negligence of the first defendant, its employee. It was admitted by the State that the first defendant is its employee, and was at all material times on duty as a policeman in its service.

UNCONTESTED FACTS

The uncontested facts are these. The first defendant was attached to Police Mobile Squad No 5 in Mount Hagen. At about 7.00 am on 21 December 1982, the police were returning to Mount Hagen from an operation at Baisu. They were advised by radio of a highway robbery at the junction of Minj and the main highway. All units involved in the operation were directed to the junction. The first defendant was in a vehicle with three other policemen. The scene of the alleged robbery was near the village of the deceased. The robbery involved theft of beer. The police units were directed to search the village and the surroundings for likely suspects, being any villager who was drinking or who appeared to have consumed beer or was drunk.

The first defendant and two other policemen, Mimba and Api, with their arms and ammunition left the village and followed a track away from the village for about 100 yards. The defendants only called the first defendant in their defence. His account of what he and the other policemen did continues uncontested. He said that they heard a noise, and he instructed the other two to wait on the track while he went to ascertain what the cause of the noise was. He saw three people: a boy, a young man, later found to be deaf and dumb, and the deceased. When these three saw him, they fled down the slope towards where the other policemen were but then changed direction and ran away from them. The police found six cartons of beer hidden in a small bush hut. They waited in the area in case the person who left the beer might return for it.

They then heard some noise up the track. Constable Mimba went to find out what it was and returned with two women. A third woman joined them shortly from off the track. The three women were questioned by the police if they knew anything about the highway robbery and what they were doing in the area. The first defendant said they remained in the area for one hour.

DISPUTED FACTS

The evidence as to the circumstances under which the deceased received the gunshot wounds, as can be imagined, are at variance between the plaintiff's witnesses and the first defendant. The defendants indicated they would call two other witnesses, being the two policemen present, but only called the first defendant in the end. It would be convenient to deal with his evidence first. I quote from his evidence in chief:

"Just as we were leaving, I saw the deceased running up the slope towards us with a bottle of beer in his hand. I told Mimba to hide on the track and grab him. Mimba grabbed him and I saw them struggling. He (the man) pushed Mimba backwards and he ran back down the slope. I raised my shotgun, aimed at his legs and fired, but the deceased was gone down the slope. I did not know that the shotgun pellets had hit him; I told the females to carry the beer and as we were leaving we heard a groaning sound coming from where the deceased had run down. I told Api to go down the slope and find out the sound while we waited. He came back with the news that the deceased had been wounded."

In further examination in his evidence in chief, the first defendant gave the following answers to questions asked of him:

Q. When you first went to the village, were there any suspects in mind or was the whole village under suspicion?

A. Yes, we were to look for villagers who were drunk.

Q. When shooting occurred, who was actually with you, aside from Constables Mimba and Api?

A. The three females I mentioned earlier.

Q. What part of slope did you shoot at deceased from?

A. I was on the top of the slope, slightly on the side.

Q. How far was the deceased running when you fired the shot?

A. About 10 yards.

Q. Mark the distance of 10 yards.

A. (Marks witness-stand to rear door — Mount Hagen Court No 1).

The first of the plaintiff's two women witnesses was Non Pou. Her preliminary evidence is substantially corroborated by the evidence of the first defendant. She and another woman, Kumap, were on their way to the garden when they were confronted by the police, who were armed with guns and pistols. She was quite naturally scared. She saw policemen drinking. She saw ten bottles of beer being consumed by the policemen. She saw the deceased walking up towards the police. He was very close when two police shot him. She marked the distance as approximately six metres. She and the other woman were behind the police when police shot at the deceased. She saw the deceased fall. In answer to some questions from the court, she said she saw the deceased running up the slope towards the village in the direction where she, the other two women, and the police were standing.

The second witness for the plaintiff was one of the other women, Kumap Wasman. Her preliminary evidence is similar to Non Pou's and also corroborated by the first defendant, and I do not repeat it. She saw them drink ten bottles of beer. After drinking the beer, the policemen told the women to carry two cartons of beer to the village. At that moment, she and all the others saw the deceased run up. She said:

"And at that moment the policeman took aim and when we were still watching, the policeman fired. And that moment they fired red flame into air .... After that the police went down, had a look at the deceased and then they left. So from what I saw, the firing was done to deceased's...