Kuk Kuli v The State (2004) N2592

• Jurisdiction: Papua New Guinea
• Judge: Manuhu AJ
• Judgment Date: 28 June 2004
• Citation: (2004) N2592
• Court: National Court
• Year: 2004
• Judgement Number: N2592

Full Title: Kuk Kuli v The State (2004) N2592

National Court: Manuhu AJ

Judgment Delivered: 28 June 2004

1 Practice and procedure—Pleadings—Cause of action—Parties to proceeding—Vicarious liability of the State.

2 Peter Nor v Iminic Ikamata and The Independent State of Papua New Guinea (Unreported and Unnumbered judgment of Davani J delivered on 12 December 2003), Mayame Epea v The State (Unnumbered and Unreported judgment of Davani J delivered on 12 December 2003), Dalin More v The Independent State of Papua New Guinea[1998] PNGLR 290, Puk Kum [or Puk Num] v The State (Unreported and Unnumbered judgment of Salika J handed down on 12 September 2003; WS 44 of 1996), John Wena v The Independent State of Papua New Guinea(2003) N2529, Kofowei v Siviri [1983] PNGLR 449 and Tobin v R (1864) 16 CB (NS) 310; 143 ER 1148 referred to

Ruling

___________________________

N2592

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE AT MOUNT HAGEN

WS. NO. 1236 OF 1999.

KUK KULI

Plaintiff/Respondent

V.

THE STATE

Defendant/Applicant

Mount Hagen: Manuhu, AJ

2004: June18&28

RULING

Practice and procedure – Pleadings – Cause of action – Parties to proceeding – Vicarious liability of the State.

Cases cited.

PeterNorv. Iminic Ikamata & The State, per Davani, J Unreported (12 December 2003); Mayame Epea v The State, per Davani, J., Unreported (12 December 2003); Dalin More v The State & Ors, per Injia, J., Unreported, N1736 (26 February 1998); Puk Kum v. The State, per Salika, J., Unreported, (12 September, 2003); John Wena v The State, per Sakora, J. Unreported, N2529 (1 December 2003); Kofowei v. Siviri & Ors [1983] PNGLR 449; and, Tobin v The Queen (1864) 143 ER 1148.

Counsel.

Ms. J. Nandape, for the Plaintiff.

Mr. J. Poya, for the Defendant.

28th June, 2004.

MANUHU, AJ: This is an application by the Defendant for the proceedings to be dismissed. The Plaintiff is suing the Defendant for damages arising out of alleged destruction and or misappropriation of the Plaintiff’s properties during a police operation in the Plaintiff’s village on 13th and 16th May 1995. The Defendant argues that, first, the statement of claim does not disclose a cause of action; and, secondly, that by not naming any policemen involved in the alleged police operation as a defendant, the Defendant is exonerated from liability under s. 1(2) of the Wrongs (Miscellaneous Provisions) Act.

1 Ch. No 297.

1 The two issues overlap but I prefer to discuss them separately.

Cause of action

The power of the court to dismiss a proceeding for failure to disclose a cause of action is prescribed under the National Court Rules Order 12 Rule 40 and also Order 8 Rule 27. However, what constitutes a cause of action is easy to define but difficult to apply to varying factual circumstances. For our purposes, however, and I do not wish to embark on an academic exercise, cause of action in tort simply means a duty usually conferred by law which when breached entitles the injured party to sue the person in breach for unliquidated damages. Duty, by the way, runs parallel with a right. The existence of a right under the underlying law or a statute imposes a duty on others not to violate that right.

In a statement of claim, therefore, sufficient particulars of the cause of action must be pleaded. The duty imposed upon a defendant must be sufficiently particularised. The nature of breach must be sufficiently particularised. The nature of injury suffered by the injured party must be sufficiently particularised. The nature of relief sought must also be specified. Where liability is based on the principle of vicarious liability, it will be necessary to establish, first, a cause of action against the principle defendant; second, the relationship between the principle defendant and the party vicariously liable; and, third, that the tort in question was committed in the course of employment of the principle defendant.

2 I am also of the view that since the survival of a proceeding depends also on compliance with s. 5 of the Claims By and Against the State Act, such must be pleaded as well.

2

In this case, it is pleaded that on the days in question, policemen wrongfully destroyed and or misappropriated a store, a service station and properties belonging to the Plaintiff. Particulars of the destroyed or misappropriated goods are in detail in the statement of claim. They include store goods stolen, stolen cash, misuse of petrol and diesoline by policemen, unlawful damage to trucks, and so on. The policemen were identified as members of Kerowagi Base Mobile Squad. Some of them were identified by names and rank. It is further pleaded that the policemen acted in the course of their employment when they conducted the raid. The statement of claim disclosed that certain named policemen were actually charged for assault and murder allegedly committed during the same operation.

From the pleadings, I am satisfied that there is a firm identification of the wrong doers as agents or servants of the State. It is sufficiently pleaded that the policemen were in breach of the duty to protect and prevent destruction and unlawful taking of private property. There are sufficient particulars of damage and loss suffered by the Plaintiff who is thus entitled to sue for unliquidated damages. I therefore find that the pleadings disclose a cause of action against the Defendant.

Vicarious Liability

The Defendant’s argument on vicarious liability is based on s. 1(2) of the Wrongs (Miscellaneous Provisions) Act but counsel for the Defendant has referred me to subss. (1) and (4) as well. I propose therefore to include subs. (1) and (4) in the discussions as well. The provisions referred to read:

“1. General liability of the State in tort.

(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; and

(b) in respect of any breach of duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and

(c) in respect of any breach of the duties attaching under the underlying law to the ownership occupation, possession or control of property.

(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.

(3) ……

(4) Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by a statute and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of that 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.”

I have also been referred to the cases of Peter Nor v. Iminic Ikamata & The State

3 per Davani, J., Unreported (12 December 2003).

3, Mayame Epea v. The State

4 per Davani, J., Unreported (12 December 2003).

4, and Dalin More v The State & Ors

5 per Injia, J., Unreported, N1736 (26 February 1998).

5. These cases, it is submitted, suggest that the agent or servant must be joined as a party before the State becomes vicariously liable for the tortuous act of its servant or agent. But I note that there are differences in opinions on the subject. In Puk Kum v The State

6 per Salika, J., Unreported, (12 September, 2003).

6 and John Wena v The State

7 per Sakora, J. Unreported, N2529 (1 December 2003).

7, for instance, the State was the only defendant. In this case, therefore, the choice to be made, that is, whether the former or latter route should be followed, must be justified

For that purpose, it is necessary, at the outset, to refresh our minds on the ordinary common law meaning of vicarious liability. In Mount Hagen, the only reference material I could locate and draw assistance from is Clark and Linsell on Torts

87th Edition, Sweet & Maxwell, p. 60, par. 1-94.

8, which describes vicariously liability in the following manner:

“A master is saddled with the responsibility to a third party in the event of his servant committing a tort in the course of his employment. The servant himself is also liable, and he and his master are joint tortfeasors, though in practice it is the master who is sued since he is better able to pay the damages. For vicarious liability to arise three things have to be established: a master-servant relationship; the servant committed a tort; and that he did so in the course of his employment.”

The common law principle of vicarious liability is very much a part of the underlying law and is therefore applicable in...