| Fiji Islands - Wartaj Seafood Products Ltd v The Ministry of Home Affairs - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction
CIVIL ACTION NO. 0129 00
Between:
WARTAJ SD PRODUCTS LTD.
Plaintiff
- and -
THE MINISTRY OF HOME AFFAIRS
THE ATTORNEY GENERAL OF FIJI
Defendants
Mr. G. O’Driscoll for the Plaintiff
Mr. K.T. Keteca for the Defendants
JUDGMENT
On the 24th March 2000 the plaintiff issued proceedings against the defts seeking special and gene general damages for the loss of its vessel which had
been towed to Levuka harbour on 21st September 1998 where it was grounded in shallow waters. The Levuka police iere informed of the whereabouts and state of the vessel and requested to `keep an eye on the said vessel to which they agreed’.
It is common ground that on the 22nd Sepr 1998 the vessel was systematically stripped by unknownknown individuals leaving `only the rudimentary structure, the engines and the freezer intact’. More particularly thentiffntiff’s claim is pleaded as follows :
p class=MsoNormal stal stylxt-align: justify; text-indt-indent: -36.0pt; margin-left: 72.0pt; margin-right: 36.0pt; margin-top: 1;
margin-bottom: 1"> `20. & THAT the said veid vesselessel was supposed to be under the watchful eye of the police in Levuka but despite that the same
had no salvageable value at all and as a result of the police’s negligence the said vessel was lost.
ass=MsoN=MsoNormal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> Particula Negligence
Failing to stop the ransacking of the vessel despite assurances that they would.’
The defendants now apply to strike oe plaintiff’s Statement of Claim on the ground that it discloses no reasonabsonable cause of action. More particy, defence coun counsel argued that the defendants
`did not owe a duty of care to the plaintiff’ and, even if they the loss of the plaintiff’s vessel was not due to the defendant’s negligence but was the dthe direct result of
the combined effects of the sea and the elements.
The correct approach to the defendants application is succinctly summarised in the judgment of Millett J. at first instance in Lonrho PLC v. Fayed (No.2) (1992) 1 W.L.R. where he said :
`The approach of the court on an application to strike out a Statement of Claim underOrd.18 r.19 (1)(a), on the ground that it discloses
no reas reasonable cause of action, is to assume the truth of the allegations contained in the Statement of Claim ; and evidence
to the contrary is inadmissible ... In sucase the court’s func function is limited to a scrutiny of the Statement of Claim. It
tests the culars which hich have been given of each averment to see wr they support it, and it examines the averments to see whee
whether they are sufficient to establish the cause of action.’
To this may be added the words of BrWilkinson V.C. in Lonrho v. Tebbitt (1991) 4 ALL E.R. 973 where hire his lordship said at p.979 :
/p>
`A claim should only be struck n a plain and obvious case. Theiculty arises where, ase, as in the present case, a cl a claim to strike
out depends upon the decision of one or more difficult points of law. In such a case, udge shoulshould normally refuse to entertain
such a claim to strike. But, if in a particular chse the judge is satisfied that the decision of the point of law at that stage
will either the necessity for trial alal altogether ..., he can properly determine such difficult point of law on the striking-out
application.’
Guided by the aprinciples I turn to consider the plaintiff’s claim which is plainly based on common law neaw negligence.
There can be little doubt that an unguarded shipwreck in shawaters and within easy reach of the shore is exposed to theo the risk
of being vandalised and/or of being stripped or looted by criminal opportunists and, as such, any loss or damage thereby caused might
be said to be foreseeable to someone who was aware of the existence of the shipwreck.
But as was said by Lord Keith in Hill v. Chief Constable of West Yorkshire [1987] UKHL 12; (1988) 2 ALL E.R. 238 at p.241 :
`... foreseeability of likely harmot in itself a sufficient test of liability in negligence. Someher ingredient isnt isnt is invariably
needed to establish the requisite proximity of relationship between plaintiff and defendant, and all the circumstances of the case
must be carefully consd and analysed in order to r to ascertain whether such an ingredient is present.’
Earlier his lordship said (at p.240) :
`By common law (and statute) police officers owe to tneral public a duty to enforce the criminal law : see : R. v. Metropolitan Police Commissioner ex-p Blackburn (1968) 1 ALL E.R.763. That dut be enforced by maby mandamus, at the instance of one having title to sue. But as that case sho chiefchief
officer of police has a wide discretion as to the manner in which the duty is discharged. It is for him tide hsw&nbvailable rese
resources should be deployed, whether particular lines of inquiry siry should or should not be followed, and wheth not certain crimes
should be prosecuted ... So the common law,e layinlayinlaying on g on chief officers of police an obligation to enforce the law,
makes no specific requirements as to the manner in which the obligation is to be discharged. That isa sitn where there here cane
can readily be inferred an intention of the common law to create a duty towards individual members of thlic.’
Nevertheless plaintiff’s counsel vigorously submitted that in this case there was the `requisite proximity of relationship’ between the plaintiff and the Levuka police who had not only been specifically informed of the condition and whereabouts of the plaintiff’s vessel but they had also `agreed to keep an eye on it’ (whatever that may mean).
Additionally, if the averments in the Statement of Cla> are accepted as true (as I am obliged to in this appl application), then the Levuka Police were informed of the stripping of the plaintiff’s vessel whilst it was actually occurribsp; The question iion is - do these
factors collectively give rise to a duty of care on the part of the Levuka police to ensure that no damage is caused to the plaintiff’s vessel ?
In deciding this fundamental issue I remyself that
`the three criteria for the imion of a duty of care (are) forseeability of damage, age, proximity of relationship, and the reasonableness or otherwise of imposing a duty. (andher) In > In determining whether there was a relationship of proximity between the parties, the court, guided by situations in which the
existence, scope and limits of a duty of care hadiously been held to exist rist rather than by a single general principle, would
determine whether the particular damage suffered was the kind of damage which the defendant was under a duty to prevent and whether
there were circumstances from which the court could pragmatically conclude that a duty of care existed.’
/b>
[see : the headnote in Caparo Industries P/C v. an (1990) 1 ALL ALL E.R. 568].
Even accepting all of the plaintiff’s averments, I am constrained by the weight of authority to reject the imposition of a duty of
care on the Levuka police in the given circumstances where no contractual obligation has been pleaded in the plaintiff’s Statement of Claim.
I begin my consideration of the authorities, with the leading case of Hill v. Chief Constable of West Yorkshire [1987] UKHL 12; (1988) 2 ALL E.R. 238 where the defendant was sued by the plaintiff for his negligence in failing to apprehend her daughter’s murderer before she was murdered
and the House of Lords in rejecting the plaintiff’s claim in negligence
`Held : ... the police did no a general duty of care to individual members of the public to c to identify and apprehend an unknown criminal, even though it was reasonably foreseeable that harm was likely to be caused to a member of the public ... furthermore,
even if such a duty did exist public policy required that the police should not be liable in damages for negligence.’
The next decision in chronologicalr is the judgment of Kennedy J. at first instance in Clough v. Bussan (1990) 1 ALL E.R. 431 where it was alleged that the police (as third parties) had contributed to a car accident by their failure to do anything about traffic
lights which they knew were out of order and his honour in striking out the claim
`Held : ... although the police were under a duty to preserve law and order androtect life and property, the fact that the station receiveceived
information that traffic lights at a particular junction were malfunctioning was not sufficient to impose on the police a duty of
care to every motorist who might thereafter use the junction ...’
Then there are the trilogy of cases reported in (1993) 4 ALL E.R. which followed and applied the decision in Hill’s case (op.cit), beginning with Alexandrou v. Oxford (ibid at p.328) where the plaintiff alleged that the police officers who attended a burglar alarm warning at the plaintiff’s business premises and
which was simultaneously activated at the officer’s police station, were negligent in taking their time in arriving at the scene
and, in wrongly assuming, when at the scene, that the alarm was a falarm andm and burglars got away a large arge quantity of items.
Slade L.J.p.344) :
`As things are I cannot see that the duty in tort (if any) owed by the police to this plaintiff can have been any greater than the duty in tort (if any) owed by them to any ordinary member of the public who by means of a `999' call warns them that a crime is being or is about to be
committed against his person or property. By common law police officers owe to the general public a duty to enforce the criminal
law ... In my judgment, however, on public policy grounds, ...is unthinkable that the police should be exposed to potential actions
for negligence at thet the suit of every disappointed or dissatd maker of a 999 call.’
Next is the decision of the Court of Appeal in Osman v. Ferguson (ibid at p.344) where a majority of the Court of Appeal whilst accepting that there was an arguable case that a very close degree of proximity amounting to a special relationship existed
between the plaintiff’s family and the investigating police officers, neverss, the Court unanimoanimously dismissed the plaintiff’s
claim as disclosing no reasonable cause of action on the basis that (at.345) :
`... the existence of a general duty of care on the police to suppress crime did not carry with it liability to individuals for damage
caused to them by criminals whom the police had failed to apprehend when it was possible to do so. It wbe against public poli policy
to impose such a duty as it would not promote the observance of a higher standard of care by the police and would result in the sicant
diversion of police resources from the investigation aion and suppression of crime.’
The final case in the trilogy is Ancell v. McDermott (id at p.355) a traffic hazard case, where the pohe police were aware of and did nothing to warn motorists of a spillage of diesel fuel on a road
whid to a fatal collision sion involving the plaintiff’s car, Beldam L.J. in dismissing the plaintiff’s claim said (at p.365) :
`... it is exceptional to find in the law a duty to control another’s actions to prevent harm to strangers and where they are found
they arise from special relationships. When it isended that such such special relationship arises out of duties carried out in the
performance of a public office, the court must have regard to the purpose and scope of the public duties, whethey are intended to
benefitnefit a particular section of the public e.g. investors or depositors, and whether such persons could reasonably place reliance
on the fulfilment of the duties.
Secondly, such a duty of care would impose upon the police force potential liability of almosimited scope. Not onlt only woue class
oass of persons to whom the duty was owed be extensive, but the activities of police officers which might give rise to the existence
of such a duty would be widespread.’
and later at p.366 his lordship said :
`The diversion of police resources and man power if such a duty were held to would, in my judgment, extensively hamper the performance
ance of ordinary police duties and create a formidable diversion of police manpower.’
Finally and as recently as December 1998, in Chief Constable of Northumbria v. Costello (1999) 11 Admin L.R. 81 (loose leaf) where the appellant was held vicariously liable in negligence at the suit of a woman police constable for injuries sustained by her
at the hands of a violent prisoner in a police cell and where a police inspector standing nearby failed to come to her assistance,
May L.J. after an extensive analysis of a range of decided cases relating to police officers and other public services including the fire
brigade and the coast guard said (at p.94) : `-GB>`I now summarise relevant strands drawn from the cases. For publlicy ns, the policpolice are under no general duty of care care
to members of the public for their activities in the investigation anpression of crime. But this is n absolute blae blanket immunity
and circumstances mays may exceptionally arise when police assume a responsibility, giving rise to a duty of care to a particular
member of the public. The pupolicy considerationations which prevailed in Hill may not always be the only relevant public policy considerations.
/b>
Neither the police nor other public rescue services are undy general obligation, giving rise to a duty of care, to reso respond to
emergency calls, (Alexandrou), nor, if they do respond, are they to be held liable for want of care in any attempt to prevent crime or effect a rescue.
For public policy reasons, a senior police officer is not generally to be held liable to a subordinate for operational decisions taken
in the heat of the moment and when resources may be inadequate to cover all possibilities. But a senior p officer mayr may be liable
to a subordinate for positive negligent intervention ... and for particular failure ... which result in injury.’
and later (at p.95) his lordship continuedspan>
<1">
`If a police officer tries to protect a memf the public from attack but fails to prevent injury to the member of the public, there
shoe should in my view generally be no liability in tort on the police officer for public policy reasons.’
and finally (at p.96) his lordship said :
`An ingredient of my conclusion (to hold the plaintiff liable) is the close relationship between Inspector Bior Bill and the plaintiff. They werece colleagues ands and he was in close attendance
for the specific purpose of coming to her help if she needed help. It woot fofrom this analysnalysis that I would also have found
a duty of care owed by a police oice officer to a member of the public in oise similar circumstances. The ce of public policy cocy
could depending on the circumircumstances, then be different.’
Hurst L.J. lang=EN-GB> for his part whilst agreeing with the judgment of May L.J. `... i... in the quite exceptional circumstances of the case ...’ was nevertheless sufficiently concerned to add in his judgment (at p.96) : `... our decision should not be interpreted in any shape or form as undermining the general principles laid down in Hill’s case.’
In the present cin addition to the numerous policy considerations referred to in the above-mentioned decisiecisions, it must be said,
that it lay within the plaintiff’s means and resources to hire a private security firm to guard its vessel against the possibility
of ransackers and looters but it did not do so for reasons best known to itself.
To impose a duty of care in such circumstances would tantamount to making police officers pal security providers and eand even insurers
against foreseeable loss, and all this, on a mere phone call. True, the plai claims that the dthe duty was voluntarily assumed
but, in my opinion such an undertaking, even if voluntarily assumed or given, not a special relationship of proximity, rather more,
it is necessarily inherent in t in the dthe duties that a police officer owes to the general public at large. This must be a further
factor against imposing a duty in the given circumstances and I decline to do so.
For the foregoing reasons tpplication succeeds, the plaintiff’s Statement of Claim as pleaded, disclosesloses no reasonably arguable cause of action against the defendants and is accordingly dismissed with costs
which are summarily fixed at $250.00.
D.V. Fatiaki
JUDGE
At Suva,
8th September, 2000.
HBC0129J.00S
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