The Independent State of Papua New Guinea v David Wari Kofowei [Kofewei] and Others [1987] PNGLR 5

• Jurisdiction: Papua New Guinea
• Judge: GROUND 7
• Judgment Date: 26 February 1987
• Court: Supreme Court
• Citation: [1987] PNGLR 5
• Year: 1987
• Judgement Number: SC322

Full Title: The Independent State of Papua New Guinea v David Wari Kofowei [Kofewei] and Others [1987] PNGLR 5

Supreme Court: Kidu CJ, Kapi DCJ and Woods J

Judgment Delivered: 26 February 1987

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

V

DAVID WARI KOFOWEI AND OTHERS

Waigani

Kidu CJ Kapi DCJ Woods J

24 June 1986

26 February 1987

POLICE — Action for wrongs — Liability of State — Police are servants, agents and offices of State — Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 1 (1) (a), 1 (4).

STATE SERVICES — Police force — Action for wrongs — Independent discretion rule not part of underlying law — Liability of State — Tort of police — Police are servants, agents and officers of State — Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 1 (1) (a), 1 (4).

Held

(1) The Common Law Rule referred to as the independent discretion rule was not adopted pursuant to the Constitution, Sch 2, as part of the underlying law of Papua New Guinea on Independence, as it had been replaced by the Wrongs (Miscellaneous Provisions) Act 1962 prior to Independence.

David Wari Kofowei v Augustine Siviri & Ors [1983] PNGLR 449, reversed.

(2) A policeman is both a servant and an agent of the State for the purposes of the Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 1 (1) (a), and an officer for the purposes of s 1 (4).

David Wari Kofowei v Augustine Siviri & Ors [1983] PNGLR 449, reversed.

(3) Whether the State is liable for the acts of a policeman as a servant or agent committing a tort within the scope of his employment (s 1 (1) ) or as an officer performing functions conferred or imposed on him by statute or the underlying law (s 1 (4) ) is a matter to be determined on the facts of any particular case.

(4) In the circumstances a finding of liability under s 1 (1) when a finding of liability under s 1 (4) was the proper finding, had not resulted in any injustice warranting interference on appeal.

Cases Cited

David Wari Kofowei v Augustine Siviri & Ors [1983] PNGLR 449.

Enever v The King (1906) 3 CLR 969; 12 ALR 592.

Fisher v Oldham Corporation [1930] 2 KB 364.

Appeal

This was an appeal from a decision of Ramage AJ, namely, David Wari Kofowei v Augustine Siviri & Ors [1983] PNGLR 449. The grounds of appeal argued are set out below.

Counsel

P Migile, for the appellant.

J Shepherd and D R Hartshorn, for the respondent.

Cur adv vult

26 February 1987

KIDU CJ KAPI DCJ WOODS J: Of the 45 grounds of appeal contained in the notice of appeal only grounds 7, 8, 9, 10 and 11 were pursued and these are:

"7. The trial Judge having found that the rule commonly referred to as the independent discretion rule was the common law as it existed in 1975 erred:

(a) in failing to apply such common law rule;

(b) in finding if his Honour did so (and this is not clear from his Honour's reasons) such common law rule inconsistent with a statute namely Section 1 (1) of the Wrongs (Miscellaneous Provisions) Act (Ch No 297);

(c) in finding such common law rule inconsistent with a statute namely Section 2 of the Claims By and Against the State Act (Ch No 30);

(d) in finding such common law rule inapplicable or inappropriate to the circumstances of Papua New Guinea;

(e) in finding without any grounds or basis, such common law rule inconsistent with the Constitution;

(f) in failing to appreciate that the reason such common law rule does not apply in other jurisdictions is that it being accepted as the common law rule it was altered by the appropriate legislation.

8. Having correctly set forth the tests imposed by Section 1 (1) (a) of the Wrongs Act and having correctly made no finding that the second to fifth respondents were agents of the appellant the trial judge erred in finding that the second to fifth respondents were servants of the appellant within the meaning of such section.

9. The trial Judge erred in finding that Section 1 (4) of the Wrongs (Miscellaneous Provisions) Act abolished the common law rule commonly known as the independent discretion rule.

10. The trial Judge erred in his consideration of Section 1 (4) of the Wrongs (Miscellaneous Provisions) Act in that he did not consider whether or not the second to fifth respondents were 'Officers' of the appellant within the meaning of such section. His Honour approached the question on the basis of whether such respondents were 'servants' of the State thus applying an erroneous test as assumption.

11. The trial Judge erred in that he failed to distinguish the test of an 'officer performing or purporting to perform functions' conferred or imposed on him from the test of 'an employee acting in the scope of his employment'.

In so doing his Honour failed to give effect to important distinctions between the two tests and erroneously applied law relating to the scope of employment of employees to extend the scope of functions conferred or imposed on an officer."

The second, third, fourth and fifth respondents were sued by the first respondent for assault, breaches of constitutional rights, breaches of the Arrest Act (Ch No 339) and the Bail Act (Ch No 340), and for false imprisonment. They were, at the time the suit was filed, policemen attached to the Mt Hagen Police Station. They did not defend and judgment was entered against each of them. The appellant, then fifth defendant, denied liability. However, the National Court found against it and ordered that it pay damages amounting to K11,992.00 to the first respondent. It held that the appellant was vicariously liable for the actions of its servants — the second, third, fourth and fifth respondents (see David Wari Kofowei v Augustine Siviri & Ors [1983] PNGLR 449).

GROUND 7

The rule referred to as the independent discretion rule, as it relates to policemen, is contained in the Australian case of Enever v The King (1906) 3 CLR 969 and stated by Griffith CJ at 977 as follows:

"A constable ... when acting as a peace officer, is not exercising a delegated authority, but an original authority, and the general law of agency has no application."

In England the leading case is Fisher v Oldham Corporation [1930] 2 KB 364 which followed Enever's case. So the Common Law of England in 1930 included this independent discretion rule. But was this rule in existence when Papua New Guinea became an independent country on 16 September 1975?

The law (ie, that a police authority is not vicariously liable for torts of a policeman) in England was rendered redundant in 1964 by s 48 of the Police Act 1964 (UK). This provision is as follows:

"48 (1) The chief officer of police for any police area shall be liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their function in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor.

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