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Kunnga v Independent State of Papua New Guinea [2005] PGNC 94; N2864 (28 July 2005)

N2864

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 392 OF 1997

PHILIP KUNNGA
Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

MT HAGEN: CANNINGS J
11, 12, 18, 19 OCTOBER 2004, 28 JULY 2005

POLICE – negligence – alleged police raid – representative action – multiple claimants – whether conduct of police officers negligent – whether police officers committed tort of negligence – Wrongs (Miscellaneous Provisions) Act, Section 1 – general liability of the State in tort – whether actions of police officers committed within the scope of police functions and responsibilities – whether tortious acts of police beyond scope of police authority.

EVIDENCE – competing and irreconcilable versions of facts by different groups of witnesses – relevant considerations to take into account when determining whose evidence to believe – onus of proof – standard of proof.

DAMAGES – special damages – damage and theft of property – exemplary damages – whether appropriate to award exemplary damages – plaintiff and 13 other claimants awarded various amounts of special damages, plus interest and costs.

A group of 20 to 30 police officers conducted a search of Kombulno village in the Minj District of Western Highlands Province. The plaintiff is a resident of that village. He and a number of other villagers claimed that the police unlawfully raided the village and went on a rampage, destroying and stealing property. He commenced proceedings, in a representative action, seeking damages for negligence. The defendant, the State, denied liability, saying that the police were not negligent and there was no raid. If, however, the court finds it liable, the State says that the claimants’ losses are overstated. A trial was conducted addressing issues of both liability and quantum of damages.

Held:

(1) The plaintiff proved on the balance of probabilities that the police operation was not a routine village search but a raid involving destruction and stealing of property and livestock.

(2) There was sufficient evidence to make findings as to which claimants had their property stolen or destroyed and the nature and value of the items of property.

(3) The police officers committed the tort of negligence.

(4) 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. Nogo Suzuke v The State WS 951 of 1994, unreported, 21.06.96; Eriare Lanyat and Another v The State [1997] PNGLR 253; Wama Kints v The State (2001) N2113 applied.

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

(6) The State is liable to pay special damages to each claimant but not exemplary damages as individual police officers were not named as defendants. Abel Tomba v The State (1997) SC578 applied.

(7) Fourteen claimants were awarded various amounts of special damages plus interest and costs.

Cases cited:
The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC578
Andale More and Another v Henry Tokam and The State (1997) N1641
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
David Kofowei v Augustine Siviri and Others [1983] PNGLR 449
Desmond Huaimbukie v James Baugen and The State (2004) N2589
Eriare Lanyat and Another v The State [1997] PNGLR 253
Jerry Goria v Sergeant Jeffery Simera and Others (2001) N2066
John Yama v The State (2002) N2198
Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779
Kinsim Business Group v Joseph Hompwafi and Others (1997) N1634
Nogo Suzuke v The State WS 951 of 1994, unreported, 21.06.96
Philip Kunnga v The State (2004) N2689
Steven Kirino v The State [1998] PNGLR 351
Tabie Mathias Koim v The State [1998] PNGLR 247
The State v David Wari Kofowei and Others [1987] PNGLR 5
Wama Kints v The State (2001) N2113

Counsel:
J Nandape for the plaintiff
K Sino and R Mai for the defendants

CANNINGS J:

INTRODUCTION

This is a case about an alleged police raid of Kombulno village, also known as Nondugl village, in the Minj District of Western Highlands Province. The plaintiff is a resident of that village. He and a number of other villagers claim that the police unlawfully raided the village and went on a rampage, destroying and stealing property. It is claimed that the police acted negligently.

The defendant, the State, denies liability. They say that the police were not negligent. There was no raid. If, however, the court finds the State liable, they say that the plaintiff’s damages are overstated. The case is therefore about both liability and quantum of damages.

BACKGROUND

The incident

On 12 February 1996 the police conducted a search of Kombulno village. Kombulno is sometimes known as Nondugl, as there is a police station of that name next to it.

The plaintiff, Philip Kunnga, says that the police operation at Kombulno was an illegal raid involving destruction and theft of property. The plaintiff claims that the police were negligent. Because of that negligence he and other villagers have suffered losses. The defendant, the State, should be held vicariously liable for the negligent conduct of the police officers. The villagers should be awarded damages.

Statement of claim

On 29 April 1997 D L O’Connor, Lawyer of Mt Hagen, filed a writ of summons on behalf of the plaintiff and 21 other persons (referred to in this judgment as "claimants"). The State was and is the sole defendant.

The statement of claim attached to the writ alleged that police officers employed by the defendant wrongfully and unlawfully destroyed and misappropriated livestock and property belonging to the plaintiff and the others, that the police officers were acting in the course of their employment and that the defendant is vicariously liable for their unlawful actions.

The plaintiff himself sought special damages of K4,478.60 (being for goods, trees or crops destroyed or stolen, damage to his house, livestock destroyed or stolen and household contents destroyed or stolen) plus exemplary damages. His was the biggest claim. The 21 others claimed various amounts ranging from K626.00 in the case of claimant No 13, Andrew Kondual, to K3,023.69 in the case of claimant No 21, Kangi Kunnga.

Events since filing of writ

On 7 October 1997 a consent and authority form was filed, by which the 21 other claimants authorised the plaintiff to bring proceedings on their behalf.

On 21 October 1997 a notice of change of lawyers was filed and Tamutai Lawyers commenced acting for the plaintiff.

On 13 February 1998 the defendant’s lawyer, the Solicitor-General, filed a notice of intention to defend.

On 29 April 1998 the Solicitor-General filed a defence, denying the allegations contained in the statement of claim and asserting that the defendant could not be held liable as alleged actions were by unidentified police officers and that if the alleged destruction of property took place, it was not authorised by the defendant.

On 10 September 2002 a bundle of affidavits by the claimants was filed, giving further details of each claim.

On 9 December 2003 the defendant filed a motion seeking to dismiss the proceedings on the ground of abuse of process. On 18 December 2003 Davani J dismissed that motion.

In October 2004 the trial was held at Mt Hagen.

PLAINTIFF’S EVIDENCE

On the first day of the trial Ms Nandape for the plaintiff called eight of the claimants, each of whom had sworn an affidavit, to give oral evidence:

1. Philip Kunnga;
2. Bii Wos;
3. Dambe Kunnga;
4. Benjamin Topo;
5. Kund Aipe;
6. Maria Ape;
7. Gispe Kal;
8. Paul Tunn.
   

A village councillor, Caspar Kombra, also gave evidence. He is not a claimant and did not swear an affidavit. He was not present when the police operation took place but gave evidence of what he saw afterwards.

Ms Nandape then made applications under Section 34 of the Evidence Act regarding the affidavits of five other claimants. She asked the court to make an order in relation to each affidavit that it could be tendered into evidence despite the deponent not being available for cross-examination. Mr Sino, for the State, objected. I heard submissions, then the next day made a ruling that two of the five affidavits could be tendered (Philip Kunnga v The State (2004) N2689). Those affidavits are by:

9. Elis Bol (a deceased claimant);
10. Philip Korokoi (a physically incapacitated claimant).
    

On the second day of the trial Ms Nandape called a further four claimants to give oral evidence:

11. Peter Opri;
12. Mim Siwi;
13. Gabriel Ape;
14. Akisa Peter.
    

Thus the court admitted the evidence of 14 claimants. Six claimants had sworn affidavits but were not present at the trial. Ms Nandape either did not tender their affidavits or unsuccessfully applied to have them admitted. They were: Andrew Kondual; Wos Korokoi; Kal Tai; Caspar Kaman; Ze Par; and Kambiye Korokoi. Two claimants, Kangi Kunnga and Wendy Alkan, did not swear affidavits. The case proceeded on the basis that there was no evidence to support any of those eight claims.

Philip Kunnga is the plaintiff. He swore an affidavit dated 4 September 2002, describing himself as aged 55, a village leader and the clerk of the local village court. He deposed that on Monday 12 February 1996 he was at the village court with many other people, next to the Nondugl police station. He saw three vehicles loaded with armed police officers drive into the police station: a blue Nissan double cab open back, a Mitsubishi 10-seater and a Toyota Landcruiser open back. He recognised the vehicles as belonging to the Nondugl, Banz and Minj police stations respectively. Five minutes later he heard gunshots coming from Nondugl police station. He met with the village court magistrates and they adjourned all cases. Then he walked to his village. On the way he met four police officers, one of whom he identified as Joe Ban Aipe, an auxiliary officer attached to Nondugl police station. Aipe was dragging a dead cassowary on the end of a rope. He recognised the cassowary as his own. He asked the officers what they were doing but they told him to shut up. They left the dead cassowary there and took off. He took the dead cassowary to his house, where he found the door smashed open and property scattered inside and outside. Food gardens around the house were destroyed. He noticed that his neighbours’ houses and properties had also been damaged and the neighbours were staring at their houses and counting their losses. He listed his property that was lost or destroyed. Things like: sugar cane, coffee bags, bush knives, axe, radio, towel, cutlery, coffee machine, door, clothing, mattresses and linen. He estimated the value of each item, which totalled K3,643.20. He annexed photos of the dead cassowary’s feathers and slashed sugar cane. He confirmed the contents of his affidavit in examination in chief. He stated that he did not know why the police raided his village. He asked them why but they did not respond.

In cross-examination he denied that the police had only conducted a search of the village. The values of the items, he said, that were lost or destroyed were only estimates. He did not get valuations done as he knows how much each item was worth. Some of the things were stolen, others destroyed. There were plenty of police officers involved in the raid. He confirmed that he had claimed for 24 x 60-kilogram coffee bags. These were not stolen but they were destroyed as the police cut the bags and threw the seeds on the ground. He denied that he recovered some of the seeds. His coffee machine, worth K480.00, was destroyed with a big stick. He could not take a photo of all these things as his camera was stolen. He stated that he did not see the police carrying away his mattresses and linen and things like that. He was in the courthouse and by the time he arrived at his home those things had gone. He could not say who stole or damaged his property. His house had been locked, so it must have been the police.

In re-examination Philip Kunnga stated that the estimates of the items were based on the value of his properties in 1996. The photos that he annexed to his affidavit were taken by somebody else on a day after the incident happened.

Bii Wos is a married woman. She swore an affidavit dated 5 September 2002, stating that she was at home with another woman, Tom Oro, when police arrived in fully armed gear. The police told them not to move, then damaged the door and cooking pots, beddings and household belongings. They killed two of her pigs. She listed the property that was lost or destroyed. Things like: cutlery, door, cooking and live pig. She estimated the value of each item, which totalled K510.10. She confirmed the contents of the affidavit in examination in chief.

In cross-examination she stated that the story in her affidavit was true. Somebody had held her hand and helped her to sign her affidavit. She saw the police fire several shots. She had not opened the door of her house to let the policemen come in. They just came in. Her pig was never returned. Nor were her cooking pots and other things. She denied that the police had just searched the village and went away.

Caspar Kombra is a village councillor. He is not a claimant and did not swear an affidavit. He stated in examination in chief that he was not present when the raid took place. He was at the police station. He saw a dead cassowary and a couple of live pigs. No dead pigs. He saw Mrs Bii crying. People were milling around and they did not know why the raid took place.

In cross-examination Caspar Kombra stated that he saw no houses burned down. They were just damaged. He saw about three pigs.

Dambe Kunnga is Phillip Kunnga’s wife. She swore an affidavit dated 5 September 2002, stating that she was at home when she heard gunshots and people talking outside her house. She went outside and saw policemen with guns. Four policemen approached her. She identified two of them as Joe Ban and Onda Kopon, who were attached to Nondugl police station. Three of the policemen walked to the back of the house and she heard a gunshot, then moments later they dragged her husband’s cassowary to the front of the house. It was dead. They also had two of her pigs, which they dragged away. Later more policemen came and smashed the door of the house and scattered everything in the house, then went to their garden and slashed crops. She wants to claim for her two pigs, which she estimates were valued at K600.00 each. She confirmed the contents of the affidavit in examination in chief.

In cross-examination she stated that her house is about 100 metres away from the police station. She confirmed that she was not claiming for the things that were covered by her husband’s affidavit. She just wanted compensation for her two pigs.

Benjamin Topo swore an affidavit dated 5 September 2002. He deposed that on the morning of the incident he had been admitted to Nondugl Health Centre. About midday he walked back to his house and fell asleep under a tree. His house is near the police station. He woke up, hearing gunshots and a vehicle driving into the police station. Then he heard the vehicle drive into the village. It was the Nondugl Police Station vehicle and it was being driven by Constable Akri, who he knows. Akri stopped the vehicle and told him to run away as there was going to be a police raid. He looked up and saw two other police vehicles speeding into the village, so he ran into a nearby tea plantation, from where he heard gunshots and the smashing of doors and destruction of property. When the noise cooled down he looked into the village while hiding behind buses. He saw a number of police officers he recognised, including Constable Parpar of Minj and Nondugl Police Station commander Raphael Kondape. The police loaded the vehicles with pigs, crops and other properties and drove back to the police station. Some went by foot dragging pigs and other items. When they had all left he went to his house, the door of which had been smashed. Some of his properties were stolen or destroyed. He listed his property that was lost or destroyed. Things like: door, clothing, crockery, mattresses and linen, tools. He estimated the value of each item, which totalled K1,764.40.

In cross-examination Benjamin Topo denied that the police had only conducted a search of the village. The value of the items he said were lost or destroyed were estimates. He did not get valuations done as he knows how much each item was worth. Some of the things were stolen, others destroyed. There were plenty of police officers involved in the raid. One of them broke into his suitcase and took the bilas he uses for sing-sings. He was wearing it when he came out of the house. He said that he did not get a valuer to value his items. He knows how much his property was worth and he put no false claims in his affidavit. He was asked whether he could be sure that the police stole the things that he claims went missing or whether maybe it was some bystanders. He replied that yes, it might have been bystanders, but when he came back to his house nothing was left. He stated that the police did not arrest anybody, they just stole or destroyed property.

Kund Aipe swore an affidavit dated 5 September 2002. She had gone to her garden to dig kaukau and came back around midday. She was sitting in her house eating kaukau when she saw policemen walking towards her house. They untied three of her pigs and dragged them towards the nearby Nondugl police station. She went after her pigs, crying. Some policemen were trying to load them into a police vehicle. But Senior Constable Nunz, of Nondugl, stopped them. She brought the pigs home with the assistance of Nunz’s wife. When she got back she was told that other policemen had come to her house when she was at the police station and stolen or destroyed property. She listed the property that was stolen. Things like: cutlery, door, cooking and a live pig. She estimated the value of each item, which totalled K1,073.00. She confirmed the contents of the affidavit in examination in chief.

In cross-examination she repeated that the police had broken the door of her house and stolen things. She lost one pig. It was stolen by the Banz Police. Her property inside the house was also stolen. If the police were now saying that they did not steal anything, they are telling lies.

Maria Ape swore an affidavit dated 5 September 2002. She had gone to Minj on the morning of the raid. She came back to the village in the afternoon and saw that the door of her house was wide open. Her sewing machine and other items were missing or destroyed. She was missing two piglets and two roosters. She listed the property that was stolen or damaged. Things like: door, cooking, sewing machine, mattress and linen, live pig(lets), and clothing. She estimated the value of each item, which totalled K1,238.10. She confirmed the contents of the affidavit in examination in chief.

In cross-examination she denied making false claims. She stated that she did not see the police taking or damaging her property. She believes that it was the police who did the damage. She does not believe it was anybody other than them.

Gispe Kal swore an affidavit dated 5 September 2002. She was in her house with two other girls making string bags when she heard gunshots and saw fully armed policemen walking towards the house. They ran away in fear leaving the door open. Some men ran after them, others went into the house and destroyed properties. Most of her belongings were smashed into small pieces. She listed the property that was destroyed. Things like: door, cooking utensils, bedding and clothing. She estimated the value of each item, which totalled K1,313.38. She confirmed the contents of the affidavit in examination in chief.

In cross-examination she stated that there were about 30 police involved in the raid. She does not know why they conducted the raid.

Paul Tunn swore an affidavit dated 4 September 2002. He was working in Port Moresby at the time of the raid. When he came home for a break, he found that many of his properties had been destroyed or stolen. He heard that the policemen had punched and kicked people and hit people with their gun butts and fired shots randomly. There was no warrant, summons or court order authorising the raid. He listed the property that was lost in the raid. Things like: cooking utensils, linen, tools and clothing. He estimated the value of each item, which totalled K300.92. He confirmed the contents of the affidavit in examination in chief.

In cross-examination he stated that he was told by his mother and father about what happened when he came back to the village from Port Moresby, to get married, in May 1997.

In re-examination he stated that he was claiming for the loss of his personal property, not family property. The amounts he is claiming are the amounts he had paid for those items.

Elis Bol swore an affidavit dated 5 September 2002. On the day of the incident she was at her garden near the river and came home late in the afternoon. She saw her properties scattered around the house. Her pigs and personal belongings were gone. She listed the property that was stolen or damaged by the police. Things like: three pigs, two piglets, one cat, cooking utensils, bedding, tools and clothing. She estimated the value of each item, which totalled K1,631.73. She died prior to the trial. Her affidavit was one of the two that were admitted into evidence without the deponent being available for cross-examination.

The other affidavit in that category was by Philip Korokoi, who is physically incapacitated. He swore an affidavit dated 5 September 2002. He is a village court chairman. He stated that the village court sitting was cancelled due to the raid. When he went home he found his house door had been smashed and some properties stolen or destroyed. He listed the property he lost. Things like: door, tools and cash. He estimated the value of each item, which totalled K742.50.

Peter Opri swore an affidavit dated 5 September 2002. He is a medical orderly and on the day of the incident was working at Nondugl health centre. He did not witness the raid but was told about it and went to his house to find that the door had been broken by the police and his properties scattered around, some of them smashed into pieces. He listed the property he lost. Things like: door, tools, cooking utensils and clothing. He estimated the value of each item, which totalled K557.60.

In cross-examination he stated that his wife and children were in the house when the police came. The values he estimated for his properties are the prices he paid for them.

In re-examination he stated that he had been told about the raid by his wife and other members of the community who witnessed it. A few days later all the village people talked about it with Philip Kunnga who said that they should take the police to court. They contributed money to get a lawyer.

Mim Siwi swore an affidavit dated 5 September 2002. She rents a tradestore next to Nondugl Police Station. On the day of the incident she was working in the store with her sister, Dire Siwi, when suddenly an axe was swung at them and hit the counter. They realised it was the police so they ran into another room to hide. She said her life was threatened and wants K500.00 compensation for that and K295.00 for the broken counter, a total of K795.00. She confirmed the contents of the affidavit in examination in chief.

In cross-examination she stated that a policeman had swung a big axe at her. It missed her by half an inch. There were other policemen too and they were wearing blue uniforms. She is no longer renting that store. She now has another store.

In re-examination she stated that the counter had never been repaired by the owner of the store that she was at the time renting.

Gabriel Ape swore an affidavit dated 5 September 2002. He has a house near Nondugl Police Station. On the day of the incident he had been to Mamne village, 3 or 4 kilometres away. When he came back he saw the door of his house wide open and broken plates, smashed pots and dishes everywhere on the ground and floor. Other property was stolen, damaged or scattered. Two pigs and some chickens were stolen. He listed the property lost or damaged. Things like: door, 35 chickens, two pigs, tools, coffee machine, cooking utensils and clothing. He estimated the value of each item, which totalled K2,657.40.

In cross-examination he stated that he did not have an independent valuation of the things he was claiming for. But he bought those things and he knows what they are worth. He listed the prices in 2002 when he swore his affidavit and he could remember how much they had cost in 1996. He did not get his two pigs back. Some of the chickens were taken away and cooked, some were shot. He did not see who did those things. He was not at Mamne when the raid took place. He was on his way back to Kombulno. He was told about the raid on Kombulno by his wife and children.

Akisa Peter swore an affidavit dated 5 September 2002. She had been to her kaukau garden early in the morning. She came home and rested for five minutes when she heard several gunshots then fully armed policemen came to her house. They went into the house and ransacked it. Later two policemen got two of her pigs and put them into their vehicle and took them to Banz Police Station. The next day she went with the Nondugl police station commander to Banz and retrieved one of the pigs. She listed the property that was destroyed or stolen during the raid. Things like: two pigs, tools, door, cooking utensils, bedding and clothing. She estimated the value of each item, which totalled K1,931.60. She confirmed the contents of the affidavit in examination in chief.

In cross-examination she stated that she had not been to school but she had signed her affidavit. She was not sure whether the police returned one of her pigs. She has no enemies in the Police Force.

The plaintiff’s case was then closed.

DEFENDANT’S EVIDENCE

Mr Sino, for the defendant, called two witnesses.

Senior Constable Nance Gua is the officer in charge of Nondugl Police Station. He swore an affidavit dated 7 October 2004. He states that he has 30 years experience in the Royal Papua New Guinea Constabulary. About midday on 12 February 1996 he learnt of a police operation at Mamne village. He did not take part. The officers who were involved in the Mamne operation then came to Kombulno and conducted a search as some members of the Mamne clan live there. The Kombulno search took about 30 minutes. He did not see any livestock or property destroyed. He did not see any policeman come back with the spoils of a raid. He is from the Kombulno area and he knows most of the claimants. He stated that, in relation to:

• Bii Wos – her house was never looted or her properties destroyed;
  
• Dambe Kunnga – she is Philip Kunnga’s wife and her claim is a duplication of her husband’s claim;
  
• Benjamin Topo – he is now a councillor and has a new house but his previous house was not looted and none of his livestock was destroyed;
  
• Kund Aipe – she is the same person as Maria Ape, she is from another village and has no house at Kombulno and therefore her claim is not true;
  
• Maria Ape – she is the same person as Kund Aipe, she is from another village and has no house at Kombulno and therefore her claim is false;
  
• Gispe Kal – his house is not at Kombulno and his property was not destroyed;
  
• Paul Tunn – he is Philip Kunnga’s son and has no house and sleeps with his parents;
  
• Elis Bol – she was a single lady from Wahgi, not Kombulno, and none of her properties or livestock were destroyed;
  
• Philip Korokoi – he is a village court chairman, his house is directly opposite the police station and it was never raided as he is a respected man in the community and in the eyes of the police, therefore his house and properties were not destroyed;
  
• Peter Opri – he is a medical officer but his house and properties were not destroyed;
  
• Mim Siwi – her house is not at Kombulno, it is further down from the police station but her house and properties were not destroyed;
  
• Gabriel Ape – he is an old man and his house and properties were not destroyed;
  
• Akisa Peter – her house is not at Kombulno, it is further down from the police station and it was never raided by the police as alleged.
  

Senior Constable Gua believes that this is a false claim, aimed at defrauding the State. The claimants never came to the police station to lay a complaint. He confirmed the contents of the affidavit in examination in chief.

In cross-examination he stated that he did not assist in the search of Kombulno village. He was on duty and stayed in Nondugl Police Station. Nondugl police assisted in the raid at Mamne but he did not go with them. When they came back from Mamne they went into Kombulno. He saw the police go into the village and they stayed for less than an hour and came back with empty hands. If any houses were burned down, he would have seen it. Most of the claimants’ houses are near the police station. If any damage were done, he would have seen it. The village is in clear space. The police officers did not touch anything. The police may have been looking for a suspect. He is not sure whether the police had guns. He denied that he was lying.

In re-examination Senior Constable Gua stated that after the police finished their business, they came back to the police station and he was there when they left. He bears no grudges against any of the claimants. He belongs to Kombulno village. They are his people. He is their man.

Joe Ban Aipe is an auxiliary policeman attached to Nondugl Police Station. He swore an affidavit dated 7 October 2004. He states that he is from the Nondugl area. About midday on 12 February 1996 he was on his way back to the police station from Nondugl Health Centre when he noticed three police vehicles from Minj and Banz police stations at Nondugl Police Station. He saw policemen walking back from Kombulno. They had nothing on them except their uniform and gear. They were not dragging any pigs or other livestock. He supports Senior Constable Gua’s statements in relation to each of the claimants. He believes that this is a false claim, aimed at defrauding the State.

In cross-examination he stated that the Banz Police Station Commander, Mr Kaseng, was in charge of the operation that went to Kombulno. Officers from Nondugl were not involved. When the police came back they only had their guns with them. They had no bushknives or axes. He stayed at Nondugl when the raid on Mamne was being carried out. The Mamne raid was done before the Kombulno operation. He denied dragging or seeing any dead cassowary. He does not know why Kombulno was raided. He is not a regular police officer. He did not ask those who conducted the raid what was the reason for it.

The defence case was then closed.

THE CAUSE OF ACTION

This is a common law action for negligence, brought within the statutory framework of the Wrongs (Miscellaneous Provisions) Act (Chapter 297). The common law of negligence has been adopted as part of the underlying law of Papua New Guinea. It continues to be applicable and appropriate to the circumstances of the country, except to the extent it is inconsistent with or has been modified by a written law. It applies in this case by virtue of Section 20 of the Constitution and Sections 3(1)(b), 3(3), 4(1), 4(3)(b), 4(4), and 5 of the Underlying Law Act 2000.

Common law

To establish liability a plaintiff needs to satisfy the basic elements of the tort of negligence:

• first, that the defendant, or a person or persons for whom it is vicariously responsible, ie the tortfeasor, owed a duty of care to the plaintiff and the other claimants;
  
• secondly that the tortfeasor breached that duty, ie by act or omission the tortfeasor’s conduct was negligent;
  
• thirdly that the tortfeasor’s negligent conduct caused injury to the claimants;
  
• fourthly that the claimants’ injuries were not too remotely connected to the tortfeasor’s conduct; and
  
• fifthly that the claimants did not contribute to their own injuries, eg by being contributorily negligent or voluntarily assuming the risk of injury.
  

(See Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779, National Court, Cannings J.)

Vicarious liability

Vicarious liability is a common law principle by which one legal person (such as the State) is held liable for the acts or omissions of another person or group of persons (such as police officers) over whom the first person has control or responsibility. The principles of vicarious liability have been codified by Section 1 (general liability of the State in tort) of the Wrongs (Miscellaneous Provisions) Act.

Section 1 states:

(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 the 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) Where the State is bound by a statutory duty that is binding also on persons other than the State and its officers, then, subject to this Division, the State is, in respect of a failure to comply with that duty, subject to all liabilities in tort (if any) to which it would be subject if it were a private person of full age and capacity.

(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 statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the 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.

(5) An Act or subordinate enactment that negatives or limits the amount of the liability of a Department of the Government or officer of the State in respect of a tort committed by the Department or officer applies, in the case of proceedings against the State under this section in respect of a tort committed by the Department or officer, in relation to the State as it would have applied in relation to the Department or officer if the proceedings against the State had been proceedings against the Department or officer.

(6) Proceedings do not lie against the State by virtue of this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in him, or responsibilities that he has in connexion with the execution of judicial process.

UNDISPUTED FACTS

There was a police operation conducted at Kombulno village around midday on Monday 12 February 1996. About 20 to 30 police officers from Minj and Banz police stations were involved. They were at Kombulno for 30 to 60 minutes, conducting a search. Before coming to Kombulno the same group had conducted an operation at nearby Mamne village. The police were armed and in uniform. They were travelling in at least three police vehicles.

DISPUTED FACTS

There are two aspects of the evidence in dispute:

• Was the police operation at Kombulno a routine village search? Or a raid involving destruction and stealing of property and livestock?
  
• If it was a raid, what was the value of property damaged or destroyed?
  

Plaintiff’s submissions re disputed facts

Ms Nandape submitted that it was clearly a raid and that the estimates of the value of the property were reasonable. The claimants’ evidence is consistent and is supported by the independent evidence of Caspar Kombra. Joe Ban Aipe’s evidence for the defence ought not to be believed as he was one of the main culprits. Philip Kunnga gave evidence that Joe Ban Aipe was the one who shot his cassowary. Kunga was not cross-examined on this crucial evidence, so it should be believed. This discredits Joe Ban Aipe’s evidence irretrievably and reveals him to be not a witness of truth. Nance Gua’s oral evidence contradicted his affidavit and this made him an unreliable witness. Gua and Aipe contradicted each other on several occasions. For example, Gua said that Nondugl police assisted the Minj and Banz police but Aipe said the opposite; Gua said he did not see the police carrying weapons but Aipe said some had guns; Gua said he was the only officer left at Nondugl Police Station but Aipe said that he was also there. Both Gua and Aipe said they did not know why the Banz and Minj police had come to search Kombulno and were not curious about it, which is difficult to believe and makes their evidence unreliable.

Defendant’s submissions re disputed facts

Mr Sino submitted that it was a routine police search, nothing was stolen or damaged and, if the court finds otherwise, the claims for damages are exaggerated. The claimants’ evidence is inherently unreliable. He submitted that, in relation to:

• Philip Kunnga – he was not present during the police operation so his evidence is not relevant to the question of liability;
  
• Bii Wos – she is an old and illiterate woman and the signature on her affidavit differs from that on the consent and authority form annexed to the plaintiff’s affidavit, raising the inference that her evidence has been manufactured;
  
• Caspar Kombra – he is not a claimant and he was not present at the incident so his evidence is not material;
  
• Dambe Kunnga – the signature on her affidavit differs from that on the consent and authority form annexed to the plaintiff’s affidavit, raising the inference that her evidence has been manufactured;
  
• Benjamin Topo – the signature on his affidavit differs from that on the consent and authority form annexed to the plaintiff’s affidavit, raising the inference that his evidence has been manufactured;
  
• Kund Ape – the signature on her affidavit differs from that on the consent and authority form annexed to the plaintiff’s affidavit, raising the inference that her evidence has been manufactured;
  
• Maria Ape – the signature on her affidavit differs from that on the consent and authority form annexed to the plaintiff’s affidavit, raising the inference that her evidence has been manufactured;
  
• Gispe Kal – the signature on her affidavit differs from that on the consent and authority form annexed to the plaintiff’s affidavit, raising the inference that her evidence has been manufactured;
  
• Paul Tunn – he was in Port Moresby at the time, so his evidence is hearsay and should be rejected;
  
• Elis Bol – the signature on her affidavit differs from that on the consent and authority form annexed to the plaintiff’s affidavit, raising the inference that her evidence has been manufactured and, in any event, she is deceased and she was not present at the incident, so her evidence is irrelevant;
  
• Philip Korokoi – he was not subject to cross-examination so his evidence must be treated with caution and, in any event, the signature on his affidavit differs from that on the consent and authority form annexed to the plaintiff’s affidavit, raising the inference that his evidence has been manufactured;
  
• Peter Opri – he was not present and, in any event, the signature on his affidavit differs from that on the consent and authority form annexed to the plaintiff’s affidavit, raising the inference that his evidence has been manufactured;
  
• Mim Siwi – the signature on her affidavit differs from that on the consent and authority form annexed to the plaintiff’s affidavit, raising the inference that her evidence has been manufactured;
  
• Gabriel Ape – he was not present and, in any event, the signature on his affidavit differs from that on the consent and authority form annexed to the plaintiff’s affidavit, raising the inference that his evidence has been manufactured;
  
• Akisa Peter – her oral evidence contradicted her affidavit evidence as orally she stated that she was sick and staying in her house whereas she deposed in her affidavit that she went to the garden before coming home and, in any event, the signature on his affidavit differs from that on the consent and authority form annexed to the plaintiff’s affidavit, raising the inference that her evidence has been manufactured.
  

Mr Sino submitted that the evidence of the two defence witnesses was clear and consistent: there was no raid and nothing was stolen, damaged or destroyed.

ASSESSMENT OF EVIDENCE

This is a case where it is impossible to reconcile the evidence of the plaintiff’s and the defendant’s witnesses. Two diametrically different versions of events were given. One group of witnesses was clearly not giving truthful evidence. To determine who it was, I considered the following matters:

• whether there were discrepancies between the signatures of the same witness on different court documents;
  
• whether there were inconsistencies between a witness’s oral evidence and affidavit evidence;
  
• whether there were inconsistencies amongst the evidence of the same group of witnesses;
  
• whether a witness’s demeanour in the witness box suggested that he or she was not telling the truth;
  
• whether the evidence given was vague;
  
• whether the evidence was or bordered on hearsay;
  
• whether the evidence, considered individually or collectively, seemed unrealistic or far-fetched.
  

I apply those considerations as follows:

• There are discrepancies between the signatures of the same witness on different court documents, as highlighted by Mr Sino. However it appears that many of the claimants are illiterate. They would not sign many documents. During the space of six years (between when the consent and authority form was signed in 1996, and when they signed their affidavits in 2002) their signatures or marks may change significantly. I was more concerned with being satisfied that the person in the witness box was, in fact, the same person in whose names the case is brought. There was nothing to suggest that any of them were bogus witnesses and each gave evidence, and gave the impression, that they were genuinely interested in the claim. So ultimately the discrepancies that were highlighted did not unduly concern me.
  
• There were no major inconsistencies between any witness’s oral evidence and affidavit evidence. That applies to both sides of the case.
  
• I consider that there were major inconsistencies in the evidence of Senior Constable Gua and Auxiliary Officer Aipe, as identified by Ms Nandape. I accept her submissions on that issue.
  
• I thought that generally the plaintiff’s witnesses appeared genuine. Assessment of demeanour is very much an intuitive process. Some of the claimants appeared quite elderly. Their way of answering questions manifested a genuine interest in this case. They seemed to have genuine grievances about what happened. It was hard to believe that they were not genuine. My assessment of the reliability of their evidence was reinforced by the demeanour of the two defence witnesses, neither of whom impressed me. They seemed evasive and they contradicted each other.
  
• I was impressed by the specific names of police officers that were provided by some of the plaintiff’s witnesses. Their evidence of the items that they were saying was lost or stolen was specific. By contrast neither of the defence witnesses were specific about the timing of events.
  
• I do not consider that the plaintiff’s case suffered unduly by some of the evidence being indirect or hearsay. Some of the claimants were not present when the incident took place and gave evidence of what they were told by others (which is strictly speaking hearsay) and what items they found lost or damaged or destroyed (which is not hearsay).
  
• I concluded that the plaintiff’s evidence, considered as a whole, was not unrealistic or far-fetched. To find as a fact that there was no raid at all – which was what both defence witnesses stated – would require the court to conclude that the commencement of these proceedings was a conspiracy involving more than 20 villagers. I have not dismissed that as a possibility. But having considered all the evidence and observed 15 individuals in the witness box I regard it as a remote possibility.
  

FINDINGS OF FACT RE RAID

I am satisfied that the plaintiff has proven on the balance of probabilities that the police operation at Kombulno was not a routine village search but a raid involving destruction and stealing of property and livestock.

FINDINGS OF FACT RE PROPERTY STOLEN, DAMAGED OR DESTROYED

I have examined the itemisation of the property of each claimant said to have been stolen, damaged or destroyed that is in each claimant’s affidavit, in light of their oral evidence. Each claimant was subject to vigorous cross-examination. I have taken into account that formal valuations have not been provided and receipts and invoices are not available. However the property that is being dealt with here – small household belongings, house fittings, livestock and crops – is not of the sort that village people would reasonably be expected to keep receipts or invoices for. I have also considered – as stated earlier – that in light of the nature of the events that took place the claims do not seem unreasonable, unrealistic or exaggerated.

I am satisfied that the plaintiff has proven on the balance of probabilities that, with one exception, the property of the claimants of the type and value shown in the tables below, was stolen, damaged or destroyed as a result of the police raid. The exception is Mim Siwi who gave evidence of damage to a tradestore that she was renting. The damage has not been repaired and she no longer uses the building that was damaged. The person who owns the building is not a claimant. I accept as a fact that the building was damaged but there can be no award of damages in favour of this claimant as the damage to the building was the only thing she claimed for.

TABLE 1: PHILIP KUNNGA

TABLE 2: BII WOS

TABLE 3: DAMBE KUNNGA

TABLE 4: BENJAMIN TOPO

TABLE 5: KUND AIPE

TABLE 6: MARIA APE

TABLE 7: GISPE KAL

TABLE 8: PAUL TUNN

TABLE 9: ELIS BOL

TABLE 10: PHILIP KOROKOI

TABLE 11: PETER OPRI

TABLE 12: MIM SIWI

TABLE 13: GABRIEL APE

TABLE 14: AKISA PETER

MAJOR ISSUES OF LAW

The plaintiff is attempting to fix liability for the losses he and the other claimants incurred on the defendant. To do that he relies on the tort of negligence. The defendant, the State, is not capable of being directly and personally negligent. So the plaintiff must first show that some person or persons were directly and personally negligent – in this case, that one or more police officers committed the tort of negligence. Then he must establish that the defendant is vicariously liable for the commission of that tort. If he succeeds in doing that, the issue of assessment of damages will arise.

The major issues of law therefore are:

• Did one or more police officers commit the tort of negligence?
  
• If yes, is the defendant vicariously liable?
  
• If yes, what amount of damages should be awarded?
  

I will summarise the submissions on these major issues, then address the issues in that order.

PLAINTIFF’S SUBMISSIONS ON ISSUES OF LAW

Ms Nandape submitted that the police officers at the scene of the incident acted deliberately and negligently.

The State was vicariously liable for what happened even though the plaintiff could not identify all the police officers involved in the raid. It can be inferred from the evidence that it was an authorised police operation. The State is therefore liable for the negligence of the officers involved.

As to damages, each claimant should be awarded:

• Special damages equal to triple the amount of the value of the property that he or she lost or had damaged. For example, for Dambe Kunnga the value of property lost or damaged was K1,200.00. She should be awarded that amount plus double that amount (K1,200.00 x 2 = K2,400.00), ie special damages of K3,600.00. The tripling of each amount is to take account of inflation.
  
• Exemplary damages of K800.00. The award of exemplary damages is permitted by Section 12(1) of the Claims By and Against the State Act in cases of severe or continuous breaches of constitutional rights. That provision was not considered by the Supreme Court in Abel Tomba v The State (1997) SC578. Therefore that case, to the extent to which it does not authorise the award of exemplary damages against the State, should be disregarded.
  

DEFENDANT’S SUBMISSIONS ON ISSUES OF LAW

Mr Sino’s submissions were focused on denying liability absolutely on the ground that the plaintiff’s evidence was fabricated. I have already rejected that submission by finding that there was a police raid involving destruction and stealing of property and livestock.

Mr Sino appeared to concede that if negligence is established the State would be vicariously liable as the police officers acted within the scope of their employment and functions.

As to damages, the amounts of special damages awarded should be considerably less than what is claimed because of inconsistencies in the evidence and the lack of corroboration. Exemplary damages can only be awarded against individual police officers, not against the State.

DID THE POLICE OFFICERS COMMIT THE TORT OF NEGLIGENCE?

The police officers who conducted the raid on Kombulno village were carrying out police functions. They owed a duty of care to the residents and property-owners of that village.

The police were negligent. They breached the standard of care required in the circumstances. They did not conduct themselves properly.

It has been established that it was the actions of about 20 to 30 police officers that led to the property losses of the claimants. Causation is established. The type of injuries sustained by the claimants was reasonably foreseeable. The claimants were not guilty of contributing to their own property losses.

I accordingly find that the plaintiff has established the tort of negligence against the police officers involved in the incident.

IS THE DEFENDANT VICARIOUSLY LIABLE?

There is no doubt that the police officers who committed the tort of negligence are servants, agents and officers of the State. Therefore the State is liable for their tortious acts or omissions if committed within the scope of their police employment or functions. (David Kofowei v Augustine Siviri and Others [1983] PNGLR 449, National Court, Ramage AJ; The State v David Wari Kofowei and Others [1987] PNGLR 5 Supreme Court, Kidu CJ, Kapi DCJ, Woods J.)

The powers, functions, duties and responsibilities of the Police Force and its members are prescribed by Constitutional Law, statute and the underlying law. Section 197 of the Constitution states that the primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament, to preserve peace and good order in the country and to maintain and, as necessary, enforce the law in an impartial and objective manner. Section 140 of the Police Act 1998 states (and Section 139 its predecessor, the Police Force Act Chapter 65 stated) that a member of the Force has the same powers, duties, rights and liabilities as a constable under the underlying law, except in so far as they are modified by or under an Act.

If it is established that police officers were acting within the scope of their functions, the State is liable for their tortious conduct unless the State discharges the onus of showing that what they did was totally removed from the domain of their authorised actions. (Nogo Suzuke v The State WS 951 of 1994, unreported, 21.06.96, National Court, Injia J; Eriare Lanyat and Another v The State [1997] PNGLR 253, National Court, Injia J; Wama Kints v The State (2001) N2113, National Court, Davani J.)

I now apply the above principles to the present case and find as follows:

• Police officers attached to the Banz, Minj and Nondugl police stations committed the tort of negligence on 12 February 1996 at Kombulno village.
  
• Their acts gave rise to a cause of action in tort against them by the plaintiff, Philip Kunnga and 13 other claimants.
  
• The tort was committed in the course of performing functions imposed on them as police officers, ie it was within the scope of their police functions.
  
• The State has not discharged the onus of showing that what the police officers did was totally removed from the domain of their authorised actions.
  

Therefore the State is vicariously liable for the actions of the police officers.

WHAT AMOUNT OF DAMAGES SHOULD BE AWARDED TO THE PLAINTIFF?

Overview

Each claimant is claiming two heads of damage:

• Special damages; and
  
• Exemplary damages.
  

No claims have been made for general damages. There was evidence of trauma and emotional shock suffered by the claimants but no claim for damages for such injuries was made. Therefore there will be no award of general damages.

Special damages

As stated earlier, I accept that the property of 13 of the 14 claimants, of the value attested, was stolen, damaged or destroyed as a result of the police raid. I accept Ms Nandape’s submission that account must be taken of the effects of inflation since 1996. But I reject the submission that each 1996 amount should be trebled. I consider that doubling each amount will lead to a just outcome.

I will award special damages as shown in table 15. Column 1 is the number of the claimant, column 2 the name, column 3 the 1996 value and column 4 the amount of special damages awarded.

TABLE 15: SPECIAL DAMAGES

Exemplary damages

Since the Supreme Court’s decision in Abel Tomba v The State (1997) SC578 the courts have been reluctant to award exemplary damages against the State for abuse of police powers. The question to ask is whether the breach of the law by police officers is a technical breach or whether it involves a significant and unwarranted departure from the proper exercise of police powers eg where a police operation is unauthorised and individual police officers are not named as defendants. If the facts fit into the first category, exemplary damages may be payable by the State. If the facts fit into the second category of cases, exemplary damages are not payable by the State; a plaintiff is expected to seek such redress from the individual police officers who breached the law.

Ms Nandape asked me not to follow Tomba and suggested that it was decided per incuriam (ie wrongly decided, without regard to all the relevant law). However, Tomba has been consistently followed by the National Court: Kinsim Business Group v Joseph Hompwafi and Others (1997) N1634, Bidar AJ; Andale More and Another v Henry Tokam and The State (1997) N1641, Injia J; Tabie Mathias Koim v The State [1998] PNGLR 247, Injia J; Steven Kirino v The State [1998] PNGLR 351, Sawong J; Jerry Goria v Sergeant Jeffery Simera and Others (2001) N2066, Sheehan J; John Yama v The State (2002) N2198, Kapi DCJ; Desmond Huaimbukie v James Baugen and The State (2004) N2589, Kandakasi J. I am bound to follow Tomba.

I consider that the facts of the present case fit into the second category outlined above. Exemplary damages are not appropriate in this case and I do not award them.

Total

Each claimant will receive a total award of damages equal to the amount of special damages awarded and nothing more, except interest.

Interest is not part of an award of damages and is assessed separately.

INTEREST

Relevant law

In the statement of claim the plaintiff claimed interest under the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Section 1 is the appropriate provision. It states:

(1) Subject to Section 2, in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

(2) Where the proceedings referred to in Subsection (1) are taken against the State, the rate of any interest under that subsection shall not exceed 8% yearly.

Discretion

As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on the Judge: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run.

Exercise of discretion

I exercise that discretion in the following way.

1. A plaintiff should in the normal course of events receive interest. There is nothing that takes this case out of the ordinary in that regard. The Court will order that interest be included in the sum for which judgment is given.
   
2. As this is a claim against the State, the maximum rate that can be awarded is, by virtue of Section 1(2), 8%. In view of current economic conditions in the country, 8% is, I think, the proper rate of interest.
   
3. Interest should be payable on the whole of the sum of damages for which judgment is given.
   
4. The appropriate period is the whole of the period between the date on which the cause of action arose and the date of the judgment. The cause of action arose on the day of the incident, 12 February 1996. The date of judgment is 28 July 2005. The appropriate period is therefore 9.45 years.
   

Calculation

I calculate the amount of interest by applying the following formula:

• D x I x N = A
  

Where:

• D is the amount of damages assessed;
  
• I is the rate of interest per annum;
  
• N is the appropriate period in numbers of years;
  
• A is the amount of interest.
  

For example, for Philip Kunnga, interest is calculated as follows:

• K7,286.40 x 0.08 x 9.44 = K5,502.69
  

I will order that there be included in the sum for which judgment is given, interest of the amounts shown in table 16 in respect of each claimant.

TABLE 16: INTEREST

COSTS

The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.

JUDGMENT

The Court directs entry of judgment in the following terms:

1. Damages and interest, payable by the defendant, the State, to the plaintiff, Philip Kunnga, and other claimants in the following sums, the total sum for each claimant to be paid separately within 30 days after the date of entry of this judgment:
   

2. costs to be paid by the defendant to the plaintiff on a party-party basis, to be taxed if not agreed.
   

Judgment accordingly.
_____________________________________________________________

Lawyers for the plaintiff : Tamutai Lawyers
Lawyers for the defendant : Paul Paraka Lawyers