Albert Airi v Constable Jack Tom

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 26 September 2016
• Citation: (2016) N6456
• Court: National Court
• Year: 2016
• Judgement Number: N6456

Full : WS (HR) No 851 of 2013; Albert Airi as Father and Customary Representative of Bruno Albert (Deceased) v Constable Jack Tom and Chief Sergeant Jerry Sivikel and Commissioner of Police and the Independent State of Papua New Guinea (2016) N6456

National Court: Cannings J

Judgment Delivered: 26 September 2016

N6456

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) No. 851 OF 2013

BETWEEN

ALBERT AIRI AS FATHER AND CUSTOMARY REPRESENTATIVE OF BRUNO ALBERT (DECEASED)

Plaintiff

AND

CONSTABLE JACK TOM

First Defendant

AND

CHIEF SERGEANT JERRY SIVIKEL

Second Defendant

AND

COMMISSIONER OF POLICE

Third Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Cannings J

2015.27th May, 27th August,

2016: 26th September

TORTS – negligence – Police shooting – death of plaintiffs’ son – identification of tortfeasor – vicarious liability of the State.

The plaintiff claimed that members of the Police Force unlawfully shot his 17-year-old son and detained him in a police lock-up for 19 hours, without taking him to hospital or arranging medical treatment. The plaintiff’s son died in the lock-up. The plaintiff sued the member of the Police Force (first defendant) who allegedly shot his son, the member who allegedly controlled the lock-up (second defendant), the Commissioner of Police (third defendant) and the State (fourth defendant), which was alleged to be vicariously liable for the conduct of the police. The plaintiff claimed damages for the tort of negligence. The first, second and third defendants failed to defend the case. The State was represented by the Solicitor-General, who conceded the vicarious liability claim against the State, but submitted that liability should be apportioned so that the State was only 20% liable and the other defendants, 80% liable. A trial was conducted on the issue of liability.

Held:

(1) The evidence supported most of the factual allegations. The first defendant, an on-duty member of the Police Force, deliberately shot the plaintiff’s son as he suspected he was involved in a car theft. The plaintiff’s son was mistreated by the first defendant, then taken to a nearby police lock-up, bleeding and in obvious need of urgent medical treatment. He was detained for 19 hours without treatment. He died there, the evident cause of death being hypovolaemic shock. There was no evidence that the second defendant was the member of the Police Force in charge of the lock-up. The case against him was dismissed.

(2) The first defendant and other members of the Police Force who came into contact with or were in a position to control how the plaintiff’s son was treated after he was taken into Police custody, including the Commissioner of Police, owed a duty of care to him, a detainee, to take reasonable steps to preserve his health and security. The first defendant breached that duty by shooting the plaintiff’s son without lawful justification, mistreating him and failing to take him immediately to hospital for medical treatment. The third defendant breached that duty by failing to have a system in place to ensure that a detainee showing obvious signs of serious and life-threatening injury would be taken to hospital for urgent medical treatment and by the negligent failure of members of the Police Force to secure such treatment for the deceased. Those negligent acts and omissions caused the death of the plaintiff’s son which was a type of injury that was reasonably foreseeable and not too remote. The plaintiff established the tort of negligence against the first and third defendants.

(3) The fourth defendant, the State, was vicariously liable for the negligence of the first and third defendants and by the members of the Police Force who failed to arrange urgent medical treatment for the plaintiff’s son, as such negligent acts and omissions were committed in the course of Police duties.

(4) There was no good reason to apportion liability in such a way as to minimise the responsibility of the State to compensate the plaintiff for the death of his son, which was caused by the negligence of officers of the State. Liability was accordingly entered against the first, third and fourth defendants, with damages to be assessed at a separate trial.

Cases cited:

The following cases are cited in the judgment:

Aquila Kunzie v NCD Police Mobile Squad (2014) N5584

Eriare Lanyat v The State [1997] PNGLR 253

London Association for the Protection of Trade v Greenlands Ltd [1916] 2 AC 15

Manuel Gramgari v Steve Crawford (2012) N4950

Rabaul Shipping Limited v Peter Aisi (2006) N3173

Re Fisherman’s Island [1979] PNGLR 202

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

Wama Kints v The State (2001) N2113

STATEMENT OF CLAIM

This was a trial on liability for negligence.

Counsel:

E Wurr, for the Plaintiff

T Mileng & G Puyume, for the Defendants

26th September, 2016

1. CANNINGS J: The plaintiff, Albert Airi, seeks damages against four defendants arising from the death of his 17-year-old son, Bruno Albert, who died in custody at Boroko police lock-up, National Capital District, on 21 February 2011. The defendants are:

· first defendant, Constable Jack Tom, the member of the Police Force who allegedly shot the plaintiff’s son, before the plaintiff’s son was taken into custody;

· second defendant, Sergeant Jerry Sivikel, the member of the Police Force allegedly in charge of the police lock-up;

· third defendant, the Commissioner of Police, who is under Section 198 of the Constitution responsible for the superintendence, efficient organization and control of the Police Force;

· fourth defendant, the State, which the plaintiff claims is vicariously liable for the wrongful acts and omissions of the first, second and third defendants.

2. The plaintiff claims that the first defendant unlawfully shot his son, who was detained for 19 hours in the police lock-up, which was allegedly controlled by the second defendant, and that his son died in the lock-up. The plaintiff claims damages for the tort of negligence, which is the sole cause of action pleaded in the statement of claim. No human rights breaches are expressly alleged against the defendants, who have offered no evidence.

3. The first, second and third defendants failed to defend the case. The State was represented by the Solicitor-General, but no evidence was presented. The vicarious liability claim against the State was conceded, but it was submitted that liability should be apportioned so that the State was only 20% liable and the other defendants, 80% liable.

3. A trial has been conducted on the issue of liability. Though substantial concessions have been made by the Solicitor-General, it is still necessary for the plaintiff to prove his claim.

ISSUES

4.

1 Has the plaintiff proven the factual allegations?

2 Has the plaintiff established a cause of action in negligence against the first, second or third defendants?

3 Is the State vicariously liable?

4 How should liability be apportioned?

5 What orders should be made?

1 HAS THE PLAINTIFF PROVEN THE FACTUAL ALLEGATIONS?

5. The plaintiff’s counsel, Ms Wurr, tendered four affidavits, which were all admitted into evidence without objection. The first affidavit is by the plaintiff, who gives his son’s personal details and provides an account of what he and his son were doing at their residence at Vadavada settlement, East Boroko, early on the morning of Sunday 20 February 2011. He also provides a record of death form and a medical certificate of death. The other affidavits are by other Vadavada residents, Joseph Kope, Tobias Karl and James Mavai, who depose that they heard gunshots and immediately afterwards saw the plaintiff’s son, who was bleeding heavily as he had been shot, taken into Police custody.

6. As no evidence was presented by the defendants, I invoke the fact finding principle that if one side of a case presents evidence on a fact and the opposing side presents no evidence to contradict it, the court is obliged to make a finding of fact that is supported by the evidence presented, unless that evidence is so incredible that it would not be reasonable to accept it (Re Fisherman’s Island [1979] PNGLR 202, Rabaul Shipping Limited v Peter Aisi (2006) N3173, Manuel Gramgari v Steve Crawford (2012) N4950).

7. I consider that the plaintiff has presented credible evidence. The defendants have had ample opportunity to rebut it. They have failed to do so. Therefore I generally accept the plaintiff’s evidence and make the following findings of fact.

8. The late Bruno Albert was born on 22 June 1993. He was 17 years old on 20 February 2011. He was the youngest of three children of the plaintiff, Albert Airi, and his wife. He lived with his family at Vadavada. He was a student, doing grade 8 at Kila Kila Primary School. On the night of 19 February he slept at the family’s house.

9. At 6.30 am on Sunday 20 February the plaintiff sent him on an errand. A few minutes later Bruno Albert was chased and shot by the Police. The plaintiff heard three gunshots and raced outside to see what had happened. He...