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 heard Bruno’s name being called by his neighbours. He saw Bruno bleeding heavily, bearing what appeared to be a bullet wound to his upper right leg. He saw a policeman telling Bruno to take off his clothes and to wash himself in a puddle of muddy water and to get into a police vehicle. Bruno did as he was told. He could still walk that stage, though he was in pain.  

10.   The evidence of the other witnesses confirms the plaintiff’s evidence. I find, having regard in particular to the evidence of Tobias Karl, that Bruno was shot by the Police as he was suspected of being involved in the theft of a vehicle. A number of policemen entered the settlement and spotted three youths pushing what was thought to be a stolen vehicle. The police chased those youths and fired shots at them. Bruno was scared by the shots and ran away. The Police chased him and fired at him, thinking that he was one of the suspects. Bruno was shot at least once in the right abdomen. 

11.   The first defendant, Constable Jack Tom, a reserve member of the Police Force attached to Boroko Police Station, was the person who shot Bruno, using a Police-issued firearm. After Bruno was shot, the first defendant and other members of the Police Force mistreated him, forcing him to strip naked and wash in a puddle of water, despite him being in obvious pain and unable to escape. The Police then put Bruno into a Police vehicle, which was driven to Boroko police station, three kilometres away. Bruno was placed in the police lock-up at the station at about 7.00 am.

12.   There is no evidence that the second defendant was the member of the Police Force in charge of the lock-up. 

13.   The plaintiff and his wife and various friends and relatives from Vadavada went to the police lock-up soon afterwards. The plaintiff asked the police to take Bruno to hospital but his repeated requests were refused. Others made the same request and were given the same response and were told to go away. The plaintiff and his wife left the police station at 6.00 pm. 

14.   Bruno passed away at 2.00 am the next day, Monday 21 February 2011. He had been detained for 19 hours. He was in obvious need of medical treatment. He was not taken to hospital in that period. He was not given any medical treatment in the hospital.

15.   The medical evidence was not of a high standard. It consisted of:

•	a ‘record of death’ form for a DOA (presumably this means dead on arrival) situation, prepared by the sister-in-charge (unnamed) of the Accident and Emergency Department at Port Moresby General Hospital, dated 22/2/11, stating that the deceased, Bruno Albert, died of “cardiovascular arrest – cause unknown” and that “body sighted, oedematous [excess of watery fluid collecting in tissues of body] all over; there is x 2 wounds, 1 x 1 cm, in the right loin and 2 cm apart. Coroner’s case”;

•	a medical certificate of death, prepared by Dr P Golpak of Port Moresby General Hospital, dated 18/3/11, recording that the deceased, Bruno Albert, died of “bullet wound to abdomen”,

16.   There was no post-mortem report tendered in evidence. Despite the paucity and vagueness of the medical evidence I find it proven on the balance of probabilities that Bruno Albert died as a direct result of being shot by the first defendant at Vadavada on 20 February 2011. The reasonable inference to draw from the evidence is that the cause of death was hypovolaemic shock (a decreased volume of circulating blood in the body). He bled to death. 

2	HAS THE PLAINTIFF ESTABLISHED A CAUSE OF ACTION IN NEGLIGENCE AGAINST THE FIRST, SECOND OR THIRD DEFENDANTS?

17.   To establish a cause of action the plaintiff must prove the four elements of the tort of negligence, that: 

(a)	the defendant owed a duty of care to the plaintiff’s son;
(b)	the defendant breached that duty, ie by act or omission were negligent;
(c)	the breach of duty caused injury to his son;
(d)	the type of injury was not too remote. 

18.   See generally J G Fleming, The Law of Torts, 5th edition, LBC Information Services, © 1977, Chapter 6, Negligence: Introduction, pages 104-105. In some cases, I have said that there are five elements, the fifth being that the plaintiff rebut any defences such as contributory negligence and voluntary assumption of risk (eg Kembo Tirima and Others v Angau Memorial Hospital Board and The State (2005) N2779, Otto Benal Magiten v William Moses (2006) N5008, Paul Perex v PNG Institute of Medical Research (2014) N5614). On reflection I think it is better to treat such defences separately and not regard them as giving rise to an element of the tort that must be proven by the plaintiff. In the present cases no such defences were raised so it is not necessary to address the question of their rebuttal. 

19.   Each of the four elements is now addressed, in relation to the first and third defendants. No finding can be made against the second defendant as it was not proven that he was present at the police lock-up on 20 February 2011, let alone that he was in charge of it.

(a)	Duty of care

20.   The first defendant, owed a general duty of care to all members of the public in the vicinity of the place at which he was on duty, including the plaintiff’s son. Once he shot the plaintiff’s son, the first defendant owed a specific duty of care to the plaintiff’s son, whom he was obliged to regard as an innocent person. 

21.   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, also owed a duty of care to him, a detainee, to take reasonable steps to preserve his health and security. The first element of negligence is proven against the first and third defendants.

(b)	Breach of duty

22.   The question is whether the first or third defendants breached their duty of care to the plaintiff’s son. Did they act negligently? Did they fail to act, in such a way that their omissions were negligent? Did they fail to take reasonable care? Those are all different ways of describing the second element of the tort of negligence. 

23.  As to the first defendant, all those questions must be answered in the affirmative. When the plaintiff’s son was detained in the police lock-up, he was obviously in a bad way. He had just been shot, he was bleeding and in great pain. It would have been obvious to any reasonable member of the Police Force, even one with minimal training in first aid or just a reasonable person’s ability to observe obvious symptoms of injury and pain that the plaintiff’s son was in need of urgent medical examination and treatment. He should have been taken to hospital as a matter of urgency. Port Moresby Genera Hospital is two kilometres away from Boroko Police Station. If there was no Police vehicle available, an ambulance should have been called. That was the standard of reasonable care required in this case. It was not adhered to. 

24.   The first defendant, being the person who had shot the plaintiff’s son, had a special responsibility to see that the plaintiff’s son was properly cared for. Even if the first defendant genuinely believed that the plaintiff’s son was a car thief, he should not have lost sight of the fact that he was a human being, of no threat to anyone. I find that the first defendant was negligent.

25.  The third defendant, the Commissioner of Police, was also negligent. Protocols and procedures should be in place to deal with injured persons who are in police custody. There is no evidence of any; and if there were any, they were not adhered to. I find that the third defendant was also negligent. 

(c)	Causation

26.   This element can be proven by asking the simple question: would the plaintiff’s son have died but for the negligent conduct of the first and third defendants? (Kembo Tirima v Angau Memorial Hospital Board & The State (2005) N2779.) If the answer is ‘no’, the element of causation is established. If the answer is ‘yes’, causation is not established. The Court would be saying that, though the defendants were negligent, the plaintiff’s son would have died anyway. (That was the case in Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 where the court found that, though medical personnel at a hospital were negligent, their negligence did not cause the death of the patient, who had been poisoned with arsenic and would have died anyway.)

27.   There is no expert medical opinion before the Court stating that the plaintiff’s son died because of the failure to take him to hospital. However the standard of proof is not 100% certainty. This is a civil trial so the plaintiff must prove this issue on the balance of probabilities. The court is entitled to base its findings on reasonable inferences and common sense. 

28.   There is evidence that immediately after he was shot, the plaintiff’s son was able to walk, albeit with great difficulty. He was alive for 19 hours in the police lock-up before he died. I am satisfied on the balance of probabilities that:

•	if the first and third defendants had acted reasonably, by taking the plaintiff’s son to hospital immediately, and having a protocol in place to ensure that a person in such obvious need of treatment would be taken to hospital  immediately, it is highly likely that he would not have died; and 

•	the answer to the question ‘would the plaintiff’s son have died but for the negligent conduct of the first and third defendants?’ is no; therefore

•	the defendants’ breach of the duty of care (their negligent omissions) caused the death of the plaintiff’s son. 

29.   The third element of negligence is established. 

(d) Remoteness

30.  The plaintiff must establish that the type of injury for which he is claiming damages was reasonably foreseeable: not too remote. As Prentice CJ explained in Government of Papua New Guinea v Elizabeth Moini [1978] PNGLR 184:

This consideration flows from the judgment of the Privy Council in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (“The Wagon Mound”) [1961] AC 388. In that case the general principle laid down was that "the essential factor in determining liability for the consequence of a tortious act … is whether the damage is of such a kind as a reasonable man should have foreseen". 

31.   I consider that the death of the plaintiff’s son was a reasonably foreseeable consequence of the negligent omissions of the first and third defendants. The fourth element of negligence is established.

Conclusion

32.   The plaintiff has proven all elements of the tort of negligence against the first and third defendants. He has established a cause of action in negligence against them. He has failed to establish a cause of action against the second defendant. The whole case against him is dismissed.

3	IS THE STATE VICARIOUSLY LIABLE?

33.   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 members of the Police Force, who are employed by the State) 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, which 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.

34.  As the State is the ultimate employer of all members of the Police Force, it is vicariously liable for torts or other wrongful acts or omissions committed by a member of the Police Force, if the acts or omissions are pleaded, and proven, to have been committed:
•	while the member was on duty; and
•	within the scope of authorised police activities or operations.

35.  If those requirements are met, the State is liable for a member’s tortious or other wrongful conduct, unless the State discharges the onus of showing that the member’s actions (or inaction) was totally removed from the domain of their authorised actions (The State v David Wari Kofowei and Others [1987] PNGLR 5, Eriare Lanyat v The State [1997] PNGLR 253, Wama Kints v The State (2001) N2113).

36.  As to the present case, I find, in relation to the first defendant, that:

•	the first defendant was a member of the Police Force and while he was on duty, committed the tort of negligence in relation to the plaintiff’s son on 20-21 February 2011 at Vadavada and Boroko;

•	the first defendant committed the tort of negligence while acting within the scope of authorised police activities and operations, in that he was a member of a police squad that investigated an alleged stolen car offence and apprehended and detained a suspect (the plaintiff’s son); 

•	though the State has not pursued the defence that the first defendant was acting without authority, the first defendant’s acts and omissions were not totally removed from the domain of his authorised actions.

37.   I find, in relation to the third defendant, the Commissioner of Police, that he is, as head of the Police Force, which is a disciplined force, responsible under Section 198 of the Constitution, for the superintendence, efficient organisation and control of the Force. The Commissioner committed the tort of negligence in relation to the plaintiff’s son by failing to have in place proper protocols and procedures to deal with injured persons detained in custody. That tort was committed while the Commissioner was on duty and the Commissioner’s negligent omissions were committed in relation to authorised police activities. Therefore the State is vicariously liable for the negligence of both the first and third defendants.

4	HOW SHOULD LIABILITY BE APPORTIONED?

38.  The Solicitor-General submitted that the State should bear only 20% responsibility for the negligence of the other defendants. The argument is that it is the other defendants who actually committed the wrongful acts, so they should bear personal responsibility for their actions. 

39.   There is a certain logic in that submission but very little justice. The interests of justice are best served in a civil case by compensating the victim rather than by punishing the wrongdoer. The primary victim in this case is the plaintiff’s son, Bruno Albert. He is now deceased, so the law should step in to protect the interests of his personal representative, his father, the plaintiff, Albert Airi. How are his interests best protected? How is justice to be dispensed to him, the primary living victim of this tragedy? 

40.   Not by ordering that the State pay only 20% of the damages to be assessed. Not by ordering the first defendant, who can be safely presumed to have little money at his disposal to meet an award of damages likely to run into thousands of Kina. 

41.  The best ways I can see justice being dispensed is if:

•	the State is ordered to bear 100% liability (option 1); or 

•	the first, third and fourth defendants are ordered to be jointly and severally liable (option 2).

42.   I don’t think option 1 is appropriate as the first and third defendants have not co-operated with the Court. It would almost be a reward for their lack of cooperation if the Court were to order that the State is 100% liable. Option 2 is a fairer and more just outcome. It would mean the plaintiff can pursue satisfaction of the judgment against any one or more of the three defendants against whom liability has been established (London Association for the Protection of Trade v Greenlands Ltd [1916] 2 AC 15, Fuliva v Wagambie (2013) N5221). Judgment will be entered in terms of option 2.

5	WHAT ORDERS SHOULD BE MADE?

43.  The plaintiff is entitled to a finding of liability and an award of damages against the first, third and fourth defendants, who will be declared to be jointly and severally liable. Damages will be assessed at a separate trial unless the Court is notified that the parties have agreed on an appropriate amount. Normally costs follow the event, but as the plaintiff has been represented by the Public Solicitor, the parties will bear their own costs.

ORDER 

(1)	The plaintiff has established a cause of action in negligence against the first, third and fourth defendants, in relation to the death of his son, Bruno Albert, and those defendants are jointly and severally liable in damages.

(2)	The plaintiff has failed to establish a cause of action against the second defendant and the proceedings against him are dismissed. 

(3)	A directions hearing for a separate trial on assessment of damages against the first, third and fourth defendants shall be conducted forthwith. 

(4)	The parties will bear their own costs. 

Judgment accordingly.
_________________________________________________________________
Public Solicitor    : Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendants