N11420
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO 97 OF 2022

BETWEEN
ALBERT WORINWANGU
 Plaintiff

AND
GUARD DOG SECURITY LTD
Defendant

 WEWAK: MAKAIL J
4 OCTOBER 2024; 4 AUGUST 2025    

LIABILITY – Trespass to property – Destruction and/or looting of property and personal items – Whether security guards of defendant were acting in course of employment – Vicarious liability – Proof of 

Cases cited
Phillip Nare v The State (2017) SC1584
Counsel

Mr L Kuaken, for plaintiff
Mr M Maburau, for defendant 

JUDGMENT

1.	MAKAIL J: This is trial on liability on the paper.  It arises from a trespass to property action whereby the plaintiff alleges that security guards in the employ of the defendant entered his premises, destroyed and/or looted his property and personal items on the morning of Sunday 31 October 2021 at Tangara village in Wewak LLG, East Sepik Province.

2.	The plaintiff alleges that the cause of the destruction and/or looting of his property and personal items was based on an unfounded allegation that his two sons started a fight in the defendant’s barracks at Yawasoro on the night of Saturday 30 October 2021, an allegation which he strongly denies.  He also alleges that his sons were mistakenly singled out as the instigators of the alleged fight.

3.	The defendant alleges that while it is correct that it operates a barracks at Yawasoro, its security guards did not enter and destroy or looted the plaintiff’s property and personal items.  If there was destruction and looting of property and personal items, they are committed by off-duty security guards of the defendant and the defendant is not vicariously liable for their actions and loss suffered by the plaintiff.

4.	The plaintiff reinforces these allegations in his affidavit sworn on 7 March 2022 and filed on 16 March 2022 and affidavit in support of Peter Namui sworn and filed on 20 March 2023 while the defendant relies on its Branch Manager Lionel Higgin’s affidavit sworn on 17 June 2022 and filed on 26 June 2022 to reinforce its defence that no destruction and/or looting of the plaintiff’s property and personal items took place.  

5.	Having read these affidavits, it is common ground that Mr Higgins and a group of security guards arrived in a total of five motor vehicles including a police vehicle at the plaintiff’s residence at about 7:40 am on 31 October 2021 to apprehend the plaintiff’s sons who were suspected of assaulting the defendant’s cook on the night of 30 October 2021.  It is also common ground that the two suspects fled when the defendant’s security guards arrived.  As Mr Higgin does not deny Peter Namui’s account that Peter Namui drove one of the defendant’s motor vehicles with some of the security guards to the plaintiff’s residence, it is established that Peter Namui drove one of the defendant’s motor vehicles with some of the security guards to the plaintiff’s residence.  

6.	Further, it is common ground that the security guards gave chase and were unsuccessful in apprehending the suspects and when they returned, they destroyed the plaintiff’s house and personal items.  They also set fire on one of the semi-permanent houses and later put it off with water and further, looted the plaintiff’s personal items and left.  

7.	At paragraph 13 of the plaintiff’s affidavit (supra) a table form the plaintiff lists items lost and items damaged by the security guards.  In addition, from annexures “A” to “J” to his affidavit the plaintiff annexed photographs of what asserts as old car wreaks, broken windscreen, engine missing tyres, scattered clothes and kitchen utensils, beddings, missing sawn timbers and damaged part of the house and traces of fire.  On the other hand, at paragraph 16 of his affidavit (supra), Mr Higgins asserts that the security guards “picked a Market Tent frame, a rusted bicycle rims and two laundry baskets” from “the veranda of the house that they had set fire”.    

8.	The plaintiff’s account is accepted because it is corroborated by photographs.  For these reasons, it has been established that plaintiff lost personal items listed at paragraph 13 of his affidavit (supra) which are set out in a table form as items lost and items damaged by the security guards.  

9.	However, it is disputed that Mr Higgin’s was armed with a pistol and discharged shots into the air and threaten the plaintiff with it. Given this, it has not been established that Mr Higgins discharged a pistol into the air or used the pistol to threat the plaintiff because the plaintiff and Peter Namui’s accounts are either contradictory or vague. 

10.	Given that the security guards of the defendant were present at the plaintiff’s residence, it is necessary for the plaintiff to prove that the security guards were acting in the course of their employment when they committed the trespass.  It follows that the issue is whether the plaintiff has proved that security guards of the defendant were acting in the course of their employment when they committed the trespass.   Each counsel referred to the Supreme Court judgment in Phillip Nare v The State (2017) SC1584 on the question of vicariously liability.

11.	Based on the above case, the plaintiff’s counsel submits that the defendant should be vicariously liable for the conduct of the security guards because:   

(a)	the security guards were employed by the defendant.
(b)	the security guards’ interest and purpose were to apprehend the suspects who allegedly assaulted the defendant’s cook.
(c)	 some of the security guards were wearing uniforms.
(d)	 Mr Higgins as the Branch Manager of the defendant led the security guards to the plaintiff’s residence in the defendant company motor vehicles.
(e)	one of the drivers of one of the motor vehicles was Peter Namui.

12.	On the other hand, the counsel for the defendant submits that the plaintiff failed to establish that the defendant is vicariously liable for the conduct of the security guards because:   

(a)	the act of confronting the suspects was not in furtherance of the employer’s interest.
(b)	the act of damaging the property was not in furtherance of the employer’s interest.
(c)	the act of damaging the property was a complete deviation scope of duty of the security guards which was not authorised by the defendant and outside the scope of duty of the defendant.

13.	However, the principles outlined in the Phillip Nare case (supra) were decided based on the vicarious liability of the State of its servant and agents under Section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297.  This case is not one brought against servants and agents of the State but between private persons and/or entities and so the common law principles of vicarious liability apply.  At common law an employer is responsible for the wrongful act of its employee occurring within the course of employment.  Thus, it must be established that the employee was authorised to perform the act, the act was closely connected to the employee’s duties and wrongful way of performing his or her work.  

14.	In the present case, first irrespective of the security guards being off duty, it is common ground that they are employees of the defendant.  Secondly, that Mr Higgins as the Branch Manager of the defendant led them to the plaintiff’s residence in motor vehicles owned and operated by the defendant to apprehend the plaintiff’s two sons who were suspected of assaulting the defendant’s cook the night before.  Thirdly, that some of the security guards wore uniforms.  By inference, the conduct by the security guards authorised by the defendant and within the scope of duty of their employment. 

15.	If follows that the plaintiff has established that the defendant is vicariously liable for the conduct of its security guards and is entitled to an award of damages, to be assessed.  Costs shall follow the event.

Judgment accordingly.
________________________________________________________________
Lawyers for plaintiff: Murray & Associates Lawyers	
Lawyer for defendant: Guard Dog Security Ltd In-house Counsel