N6632
                                         PAPUA NEW GUINEA	
 [IN THE NATIONAL COURT OF JUSTICE]

WS No.703 OF 2012

BETWEEN
THERESA KAPERA
	Plaintiff	

AND
LEO OMAKAN
First Defendant

AND
TOM KULUNGA, Commissioner of Police
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Kariko, J
2015, 2nd October &
2016, 7th April, 

TORTS – NEGLIGENCE –  raid on house by relatives of deceased upon directions by a police officer  – proof – whether negligence properly pleaded – pleadings not supported by evidence – vicariously liability of Police Commissioner and the State for conduct of police officers 

Cases cited:
Eriare Lanyat v The State [1997] PNGLR 253
Ludger Mond v Jeffery Nape (2003) N2318	
Pamenda Ipi Pangu v Mak Korr (2015) N6069
The State v David Wari Kofowei and Ors [1987] PNGLR 5
Wama Kints v The State (2001) N2113

Legislation:
Criminal Code 
Wrongs (Miscellaneous Provisions) Act, Chapter 297 

Counsel:
Mr R Obora, for the Plaintiff
Mr G Akia, for the Third Defendant
No appearances for the First & Second Defendants

JUDGEMENT

7th April, 2016

1.	KARIKO J: On 10th March 2011, Sergeant Leo Omakan arrested the plaintiff Theresa Kapera (Kapera) and charged her with the willful murder of one John Hou (the Deceased) and detained in custody. 

2.	In her Amended Statement of Claim (ASOC) the plaintiff alleges that while she was in police custody on 16th March 2011, Sergeant Omakan directed relatives of the Deceased to raid the plaintiff’s house and seize her household goods.  The relatives carried out those directions taking away items valued at K15,900, destroying some of them in the process. Kapera also alleges that in issuing the directions for the raid, Sergeant Omakan acted negligently “while acting within the scope of his duty to arrest, charge, detain investigate and further prosecute the Plaintiff”. She claims for loss of the household items, special damages and general damages for suffering, stress and hardship she endured as a result of the Sergeant’s negligence.   

3.	The State’s Defence is that the alleged negligent act of Sergeant Omakan was an act done outside the scope of his lawful duties as a policeman and was not done to further the interest of the Police or the State, and therefore neither the Police nor the State can be found vicariously liable for alleged negligence.

4.	The matter has been tried on the question of liability and this is my decision.

Issues

5.	The relevant issues for my determination are:
(1)	Whether Sergeant Omakan was negligent in the discharge of his duties?
(2)	If so, are the Police Commissioner and the State vicariously liable for his negligence?  

Evidence

6.	The trial was conducted by way of affidavit evidence and only the plaintiff tendered the following affidavits, without objection:

(1)	Affidavit of Theresa Kapera filed on 3rd September 2012 (Exhibit “P1”);
(2)	Affidavit of Theresa Kapera filed on 30th May 2014 (Exhibit “P2”); and 
(3)	Affidavit of Mack Ambota filed on 30th May 2014 (Exhibit “P3”).

7.	Exhibit “P2” contained the only evidence adduced in support of the claim for negligence. However, that evidence does not support the plaintiff’s pleadings on a number of aspects but importantly in relation to the allegation of the raid.  In her ASOC she pleads that on 16th March 2011 while she was in custody, her house was raided by relatives of the Deceased, upon instructions by Sergeant Omakan, and her household properties seized. 

8.	Those pleadings contradict her affidavit evidence that she was at work at Air Niugini on 16th February 2011 when she received a call from her sister who advised her that Sergeant Omakan had gone to her house where he instructed relatives of the Deceased to seize goods from the house. Apart from the affidavit evidence on the raid being hearsay, it is inconsistent with the pleadings in relation to the date of the alleged raid and where she was at the time of the raid. The ASOC states that the raid occurred after she was arrested by the Police and detained whereas the affidavit suggests the raid occurred before the arrest and while she was at work. 

Findings
9.	Pleadings drive the evidence, meaning that for a plaintiff in a civil case, the facts pleaded in a statement of claim must be substantiated by credible evidence; Ludger Mond v Jeffery Nape (2003) N2318, Pamenda Ipi Pangu v Mak Korr (2015) N6069. In the present proceedings, the allegation of the raid is not supported by the evidence that incidentally is hearsay.

10.	Accordingly I am not satisfied on the balance of probabilities that the alleged raid upon which the plaintiff bases her claim for negligence, has been proved by the evidence. The proceedings must therefore be dismissed

Negligence

11.	However I consider I should also discuss these relevant questions: 

(1)	Has the tort of negligence been properly pleaded?; and
(2)	If it was proved that Sergeant Omakan was negligent, would the Police Commissioner and the State be vicariously liable for the Sergeant’s conduct?
	
12.	It is trite law that the law of negligence requires a plaintiff to prove:
 
(1)	The defendant owed him a duty of care,
(2)	The defendant breached that duty, and
(3)	As a result of that breach, the plaintiff has suffered loss.

13.	The plaintiff has not precisely spelt out in the ASOC the duty of care allegedly breached. She merely claims that Sergeant Omakan acted negligently “while acting within the scope of his duty to arrest, charge, detain investigate and further prosecute the Plaintiff”. The pleadings do not state what specific duty of care is alleged to have been breached and how it was breached. It is my view that the claim for negligence has not been properly pleaded. 

Vicarious liability
14.	It is also noted that the ASOC does not state how the Police Commissioner is vicariously liable for the alleged tortious conduct of Sergeant Omakan. Obviously, the Commissioner cannot be held liable simply because police officers are employees and servants of the State and not the Commissioner.

15.	Vicarious liability of the State is described in section 1 of the Wrongs (Miscellaneous Provisions) Act, Chapter 297  which requires a plaintiff to prove the alleged tort complained of was committed by a servant or employee of the State while acting within the scope of his employment; The State v David Wari Kofowei and Ors [1987] PNGLR 5. 

16.	I am unable to see how the State could be vicariously liable for the alleged raid when Sergeant Omakan’s duties as a policeman do not include committing a crime, let alone counseling, procuring or inciting others to commit a criminal offence. The alleged raid suggests two offences were committed – housebreaking and willful damage (under section 395 and section 444 respectively, of the Criminal Code). 

17.	The directions allegedly issued to the relatives of the Deceased were not given as part of or in the course of the Sergeant’s lawful duties. There is no basis to suggest that those directions were “within the scope of his duty to arrest, charge, detain investigate and further prosecute the Plaintiff”. Nor could it be said that the alleged conduct was to further the interests of the Police or the State. 

18.	In the circumstances, the State could not be found vicariously liable for such conduct, as the Sergeant was not acting within the scope of his duties and what he did was totally removed from the domain of his authorised actions; Eriare Lanyat v The State [1997] PNGLR 253; Wama Kints v The State (2001) N2113.

Orders

19.	I order as follows:

(1)	This action is dismissed in its entirety. 
(2)	The plaintiff shall pay the defendants’ costs, to be taxed if not agreed. 
                                           
_________________________________________________________
 Public Solicitor:   Lawyer for the Plaintiff 
Solicitor-General: Lawyer for the Third Defendant