Makire Napiri v The State

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Cannings J
• Judgment Date: 21 February 2006
• Citation: (2006) N2976
• Judgment Number: N2976
• Year: 2006

Full : WS NO 1128 OF 1998; Makire Napiri v The Independent State of Papua New Guinea (2006) N2976

National Court: Cannings J

Judgment Delivered: 21 February 2006

N2976

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1128 OF 1998

MAKIRE NAPIRI

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mt Hagen: Cannings J

2004: 1, 10 November,

2006: 21 February

POLICE – actions for wrongs – liability of the State – police are servants, agents and officers of the State – Wrongs (Miscellaneous Provisions) Act, Section 1 – general liability of the State in tort – innocent bystander shot dead during civil disturbance – alleged police shooting – burden of proof –whether police officer fired shot negligently – vicarious liability.

DAMAGES – negligence – death of innocent bystander – dependency claim by parent of deceased – 16-year-old boy – whether a parent can be regarded as dependent on a child over the age of 16 years – whether dependency claim can be sustained – general damages for loss of support – plaintiff awarded total damages of K35,640.00 – plus interest.

Police officers on duty in a town in the Southern Highlands were attempting to apprehend a suspected criminal. He resisted arrest. There was a commotion and a large crowd was attracted to the scene. The crowd supported the suspect. One of the police officers fired shots from his police firearm to disperse the crowd. An innocent bystander, a 16-year-old boy, was shot dead. The boy’s mother, the plaintiff in these proceedings, claimed that the police negligently shot her son. She brought proceedings against the defendant, the State, arguing that it is vicariously liable for damages due to her son’s death. The State denied liability, arguing that there was insufficient evidence that the boy had been shot by the police or, if he had, that the police were negligent. As to damages the State argued that as a matter of law a parent could not be regarded as being dependent on a child over the age of 16 years.

Held:

(1) The police officers who were attempting to apprehend a suspect and to disperse a rowdy crowd owed a duty of care to members of the public in the immediate vicinity.

(2) The police officers fired shots in a public place in a dangerous and unnecessary way and committed the tort of negligence.

(3) The State is liable for the tortious actions or omissions of police officers committed within the scope of police employment and functions unless the State discharges the onus of proving that what they did was totally removed from the domain of their authorised actions.

(4) In the circumstances the State was vicariously liable for the negligence of the police officers.

(5) The court can in an appropriate case uphold a dependency claim by a parent who has lost the support of his or her child over the age of 16 years. The PNG family unit involves a much more complex and intricate set of interdependent relationships than in western societies, from where some of the principles about dependency claims have emerged.

(6) The best approach to take is to consider each case on its merits, free of the strictures of a western or common law prism, and ascertain whether, in fact, a parent who is a plaintiff was or was likely to be dependent on a child.

(7) The plaintiff was awarded damages comprising: loss of expectation of life of K3,000.00; solatium of K600.00; loss of support (the dependency claim) of K27,040.00; and funeral expenses of K5,000.00. The total award of damages is K35,640.00. The State is also liable for interest of K13,331.39, making a total judgment lump sum of K48,971.39.

(8) The parties will bear their own costs.

Cases cited

The following cases are cited in the judgment:

Andale More and Manis Andale v Henry Tokam and The State (1997) N1645

Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24

David Kofowei v Augustine Siviri and Others [1983] PNGLR 449

Eriare Lanyat and Another v The State [1997] PNGLR 253

Inabari and Another v Sapat and The State [1991] PNGLR 427

Jackson Koko and Elisha Koko v MVIT [1988] PNGLR 167

John Pias v Michael Kodi and Others (2004) N2690

Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779

Mathew Pok and Others v The State and Others (2001) N2210

Muna Uokare v The State [1988-89] PNGLR 655

MVIT v Reading [1988] PNGLR 236

Nogo Suzuke v The State WS 951 of 1994, 21.06.96, unreported

None v MVIT [1990] PNGLR 561

Pinzger v Bougainville Copper Ltd [1983] PNGLR 436

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160

Puk Kum v The State WS No 44 of 1996, 12.09.03, unreported

Reading v MVIT [1988] PNGLR 266

Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78

Simin Dingi v MVIT [1994] PNGLR 385

Tapi v MVIT [1990] PNGLR 568

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

Wama Kints v The State (2001) N2113

STATEMENT OF CLAIM

This was an action in which the plaintiff claimed damages for the death of her son allegedly caused by negligence of police officers.

Counsel

J Kiwai, for the Plaintiff

K Sino and R Kasito, for the Defendant

JUDGMENT

21st February, 2006

1. CANNINGS J: INTRODUCTION: This is a case about the alleged shooting of an innocent bystander, a 16-year-old boy, by the police. The boy’s mother claims that the police negligently discharged a firearm in a public place and shot her son, killing him.

2. The defendant, the State, denies liability, arguing that there is insufficient proof that the police were negligent, or even that it was a shot from a police firearm that killed the boy. If the court finds the State liable, it challenges the amount of damages being claimed by the plaintiff.

BACKGROUND

The incident

2. On Friday 20 February 1998 the police were attempting to apprehend suspected criminals in the vicinity of the Ialibu market, Southern Highlands Province. The police opened fire. A boy aged 16 years, Paga Napiri, was killed.

3. The plaintiff, Makire Napiri, is the deceased’s mother. She says that her son was hit in the eye by a police bullet, causing his death. She says that her son was killed by the negligent acts of the police officers present, particularly the one who fired the shot. The defendant, the State, should be held vicariously liable for the negligent conduct of the police. She should be awarded damages.

4. The defendant says that it is not clear that the plaintiff was hit by a police shot. If he was, the police did not act negligently. They acted reasonably in all the circumstances. They were faced with a difficult situation and did what was justifiable.

Statement of claim

5. On 13 November 1998 Tamutai Lawyers of Mt Hagen filed a writ of summons on behalf of the deceased’s father, Paru Lama. Paru later died and on 10 February 1999 was replaced as plaintiff by the boy’s mother, Makire Napiri.

6. The writ was served on 15 June 1999. The statement of claim endorsed on the writ claimed that the police were negligent in the discharge of their duties, by:

· shooting at a busy location where there was a risk of injuring or killing innocent members of the public;

· failing to stop shooting;

· failing to fire warning shots so as to disperse innocent members of the public;

· firing directly into a crowd of innocent members of the public.

7. It was also claimed that the defendant’s servants and agents had breached the deceased’s fundamental right to life and freedom from inhuman treatment.

8. The statement of claim was framed as a dependency claim. The plaintiff claimed that she and others were dependent on the efforts of the deceased. He was 16 years of age. He contributed to the welfare of his family prior to his death by undertaking the usual village activities of a young man, eg working in gardens, digging drains, building fences and houses.

9. The plaintiff sought the following remedies:

· general damages;

· exemplary damages;

· a declaration as to breach of the deceased’s constitutional rights;

· special damages (the particulars of which were to be provided at trial).

Events since filing of writ

10. On 20 October 1999 the Solicitor-General filed a defence on behalf of the defendant, denying the allegations contained in the statement of claim. The defence denied that any incident took place as alleged and asserted that, given the age of the deceased, the plaintiff could not be dependent on him. In the alternative it was claimed that if such an incident occurred the shooting of the deceased was unintentional and the deceased was himself negligent by failing to take heed of warning shots.

11. In January 2004 the Solicitor-General ceased acting for the defendant and Paul Paraka Lawyers of Mt Hagen commenced acting for the defendant.

12. In September 2004 Tamutai Lawyers ceased acting for the plaintiff and Jerry Kiwai Lawyers of Mt Hagen commenced acting for the plaintiff.

13. In November 2004 the trial was held at Mt Hagen.

PLAINTIFF’S EVIDENCE

Outline

14. Seven affidavits were admitted into evidence and the deponents were subject to cross-examination.

The affidavits

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