When police raid a village, the victims rarely know the names of the officers. For a time that was enough to defeat their claims. In 2017 the Supreme Court put a stop to it.
Philip Nare v The Independent State of Papua New Guinea [2017] PGSC 9; SC1584
Supreme Court, Waigani — Injia CJ, David, Ipang, Higgins and Neill JJ, 28 April 2017. SCA 93 of 2014.
What happened
A group of people in police uniforms, driving police vehicles and accompanied by a police helicopter, raided Teremanda village in Enga Province and caused damage. The residents sued the State alone, pleading that the loss was caused by police officers acting as its servants and agents. The State denied everything, including that the raiders were its servants or, if they were, that they acted in the course of their employment.
The trial judge, Poole J, found that damage had been caused by police officers conducting a raid, but dismissed the claim on procedural grounds, holding himself bound by Kewakali v The State (2011) SC1091 because the individual officers had not been named and joined.
What was argued
The appellant argued that section 1 of the Wrongs (Miscellaneous Provisions) Act makes the State liable as an employer for torts committed by its servants in the course of their functions, and that nothing in the Act requires the servant to be a party or to be identified. The State relied on Kewakali.
The National Court authority endorsed
The Court drew on the National Court’s treatment of police raids, in particular Lanyat v Wagulo, where Injia J (as he then was) held it “trite law that the State as their employer can be held responsible for the wrongful actions of unidentified policemen”, and that where an operation is authorised by the police hierarchy, the onus is on the State to show that what the officers did was “totally removed from the domain of authorised actions”. The Supreme Court adopted that allocation of the burden.
What the Supreme Court decided
The vicarious liability of the State for torts committed by police officers is established under sections 1(1) and 1(4) of the Wrongs (Miscellaneous Provisions) Act if the officers were acting or purporting to act in the course of their functions. There is no requirement to join the individual officers as defendants, and no requirement that they be identified in the pleadings or the evidence. Kewakali v The State (2011) SC1091 overruled.
The appeal was allowed and the matter returned to the National Court to be dealt with on the findings already made.
Did it make new law?
Yes. A five-judge bench overruled a three-judge Supreme Court decision and restored the approach the National Court had taken in cases such as Lanyat, Kofowei and Dambe v Peri. The Court surveyed Australian authority on the scope of employment, noting that the Papua New Guinea provisions are common to most Australian jurisdictions, and confirmed that the question is whether the wrongful conduct was sufficiently connected with the officers’ authorised functions, not whether it was itself authorised.
Why it matters
Plaintiffs may sue the State alone for a police raid, proving that the raiders were police acting in the course of an operation. Section 5 notice under the Claims By and Against the State Act is still required.
The State carries the burden of showing that the conduct was a frolic of the officers’ own, unconnected with their functions, as in the rape case the Court contrasted.
Pleading still matters. The Court in Kamuri v Pomoso held that Nare did not displace the requirement, from Pinda v Inguba (2012) SC1181, that vicarious liability under section 1(4) be properly pleaded.
What it does not decide
Nare does not make the State liable for every crime committed by a person in uniform. Conduct wholly unconnected with police functions, such as a sexual assault committed while on a search, falls outside section 1(4). Nor does it address the assessment of damages in raid cases, which is governed by separate authority.
Recent cases applying it
- Kanit v National Airports Corporation Ltd [2021] PGSC 22; SC2084 — an employer is liable even for unauthorised acts sufficiently connected with authorised ones; Nare and Guard Dog applied to a security guard’s assault.
- Kamuri v Pomoso [2021] PGSC 3; SC2071 — the onus lies on the State per Nare, but the claim failed because vicarious liability was not pleaded.
- Guard Dog Security Services Ltd v Mathews [2019] PGSC 88; SC1861 — Nare “clarified the key principles”: the tortfeasor need not be joined or identified.
Sources
- Nare v The State [2017] PGSC 9; SC1584 (Injia CJ, David, Ipang, Higgins and Neill JJ, 28 April 2017)
- Wrongs (Miscellaneous Provisions) Act (Chapter 297) — s 1(1), (4); Claims By and Against the State Act 1996 — s 5
- Lanyat v Wagulo [1996] PGNC 44; N1481; The State v Kofowei [1987] PGSC 10; [1987] PNGLR 5
- Kanit v National Airports Corporation Ltd [2021] PGSC 22; SC2084; Kamuri v Pomoso [2021] PGSC 3; SC2071; Guard Dog Security Services Ltd v Mathews [2019] PGSC 88; SC1861
Kewakali v The State (2011) SC1091 and Pinda v Inguba (2012) SC1181 are cited as they appear in the judgments and were not separately opened for this brief.
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