N4562

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1416 OF 2008

BETWEEN:

CATHOLIC DIOCESE WABAG BOARD OF TRUSTEES
Plaintiff

AND:

ENGA PROVINCIAL GOVERNMENT
First Defendant

AND:

TEDY TEI, Former ENGA PROVINCIAL POLICE COMMISSIONER
Second Defendant

AND:

GARI BAKI, COMMISSIONER OF POLICE
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Thompson, AJ
Hearing: 6, 10 & 13 October
2011: 24 October

CIVIL – NEGLIGENCE – whether defendant owed plaintiff duty of care – whether defendants actions or inactions breached any duty of care – whether defendants inaction caused the plaintiff's loss – no duty of care owed by defendants to the plaintiffs – Police are not subject to direction or control by any person outside the Force - Plaintiff has neither pleaded nor proved a duty of care owed to it by the Defendants - Plaintiff's claim is dismissed – s197 Constitution, s5 Police Act

Counsel

Mr. L. Yandeken, for the Plaintiff 
Mr. B. Lakakit, for the First Defendant
Ms. R. Gelu, for the Second, Third and Fourth Defendants

DECISION

24th October, 2011

1. THOMPSON AJ: In early 2007, there was tribal fighting between the Ambulin and Wapukin tribes in Wapenamanda, which then spread to include the Sikin, Mangalya and Kumbakin tribes. The Plaintiff says that it owned a Mission Station, Girls Vocational School and Primary School which were on Mangalya and Sikin land. On 18 August 2007, the Plaintiff says that the Ambulin tribesmen completely looted and burned down the buildings and their surrounding gardens. The Plaintiff says that, as a result, it lost buildings worth nearly K7 million, and contents and personal effects worth about K700,000.00. 

Pleadings

2. Although the Plaintiff says that the loss was caused by the Ambulin tribesmen, they have not been sued. Instead, the Plaintiff has sued the Provincial Government, the Police and the State. The Plaintiff alleges that the Defendants were negligent, and that as a result, the property was destroyed. 

The Plaintiff also says that it relies on the principle of res ipsa loquitur to allege negligence by the Defendant. This demonstrates a misunderstanding of that principle, which is only applicable where the cause of a loss cannot be established. Here, the cause has clearly been established, and the Plaintiff has pleaded that the cause was the Ambulin tribesmen who looted and burned down the buildings. There is therefore no room for the application of that principle. 

The basis of the claim for negligence against the Defendants, is set out in paras 3, 4 and 25 of the Statement of Claim. In essence, the Plaintiff says that the First and Second Defendants had a duty to the Plaintiff to take various positive steps to intervene in and stop the tribal fighting, and provide security to protect the Plaintiff's property. The Plaintiff says that the Second Defendant had a further duty to arrest the tribesmen. The Plaintiff says that the Defendants did nothing, and that their failure to take these actions was negligence. In para 27 the Plaintiff says that as a result of this negligence, the property was destroyed, thereby causing the Plaintiff to suffer loss. 

Law

3. The law of negligence is well established. It has developed since Donoghue v. Stevenson (1932) AC562 to the current position whereby in order to establish negligence, a Plaintiff has to prove –

(a)	The Defendant owed him a duty of care,

(b)	The Defendant breached that duty, and

(c)	As a result of that breach, he has suffered loss.

(see generally cases starting from Government of PNG v. Elizabeth Moini (1978) PNGLR 184, through to Kembo Tirima & Ors v. Angau Memorial Hospital Board & Ors (2005) N2779 

4. A person who undertakes an activity or creates a situation which could reasonably harm another person, such as driving a car or giving financial advice, owes a duty of care to the other person. Conversely, where a person has not undertaken the activity or created the situation, he owes no duty of care. Broadly speaking, no duty of care exists to prevent harm occurring to others i.e. a pure omission to act (as opposed to the commission of an act) does not create a duty of care. This is known as the nonfeasance rule (see Fleming, The Law of Torts, Torts – the Laws of Australia Edited by Paul Vout, et al).The starting point, therefore, is the existence of a duty of care.

DUTY OF CARE

5. The Plaintiff has not pleaded the existence of, or any factual basis for, a duty of care owed to it by the Defendants. In relation to the First Defendant, the Plaintiff alleges that it was responsible for law and order in the Enga Province. There was no pleading or evidence of any statutory or other obligation imposed on the First Defendant in relation to the way in which it was to carry out that responsibility.

6. In relation to the Second, Third and Fourth Defendants, the Plaintiff alleges that they were responsible for the operation of the Police. There was no pleading or evidence of any statutory or other obligation imposed on the Defendants in relation to the way in which they were to carry out that responsibility. 

7. The Plaintiff has pleaded that the Defendants had a duty to take certain actions. However, it has not pleaded a statutory or factual basis for that duty. 

Under the Constitution, it is the Police and not the Provincial Governments, who have responsibility for maintaining law and order. The Police have a statutory obligation to enforce the law, but with the exception of other statutes such as the Arrest Act or Bail Act, are subject to no specific requirements as to the way in which they do it. Section 197 of the Constitution and Section 5 of the Police Act provide that the Police are not subject to direction or control by any person outside the Force. This refutes the Plaintiff's allegation that the Defendants had a duty to protect its property or arrest the tribesmen or to take any other steps as requested by the Plaintiff. 

8. As well as the Constitution, I have also considered the case law. There are many PNG cases concerning the liability of the State and the Police for their own wrongful actions, and concerning their vicarious liability for the wrongful actions of their employees. However, there do not appear to be any cases concerning their liability for other people's wrongful actions. It has been the subject of considerable case law overseas. The common law in England prior to Independence is applicable where appropriate in PNG as part of the underlying law, pursuant to Schedule 2.2 of the Constitution. England does not have a Constitution, but their common law is consistent with Section 197 of the Constitution. The common law does not generally create a duty of care owed by Police or Government bodies towards individual members of the public, as in: 

•	R v. Metropolitan Police Commander, ex parte Blackburn (1968) 1ALL ER 763.
where the Court rejected the Plaintiff's claim that the Police owed him a duty of care not to cause harm by omission i.e. by their failure to act. The Court found no one could tell the Police to protect this or that property, or to arrest or not arrest a person, or to take any specific action at all. 

Post-Independence cases confirm this position-

•	R v. Chief constable of Devon and Cornwall Constabulary, ex parte Central Electrical Generating Board (1981) 3 ALL ER 826.

where the Board had requested the Police to arrest and remove protesters from the site, but the Police had refused. The Court found that the Commanding Police Officer had a wide discretion as to the manner in which the Police carry out their duty to maintain law and order. It was for him to decide how available resources should be deployed, and what actions should be taken. The Court cannot tell the Police how and when their powers should be exercised. 

•	Hill v. Chief Constable of West Yorkshire Police (1989) AC 53
where the Court found that the Police owe no duty of care to the public at large, and so cannot be liable to a person who suffers loss by their failure to act. It is only where the Police (or other public bodies such as the Fire Brigade) make matters worse by positive intervention, that a duty of care may arise. In the absence of such positive intervention, there is no proximate relationship between the Police and a victim of crime as a member of the public, which is capable of giving rise to a duty of care. 

Further, there will be no duty of care if it is against public policy and contradicts wider policy issues, such as where it may adversely affect the way in which the police carry out their duties for fear of litigation. 

•	Caparo Industries PLC v. Dickman (1990) 2AC 605
where the Court found that generally no duty of care will arise in relation to pure omission i.e. a failure to do acts which if taken, would prevent or minimize harm to others. The law does not recognize a general duty of care to prevent others suffering loss caused by the deliberate wrong doing of third parties. 

•	Sutradhu v. Natural Environment Research Council (2006) 4ALLER 490
the Defendant could only be liable for its acts, not for its omissions, as there was no proximity and no duty of care. 

•	Smith v. Chief Constable of Sussex Police (2008) EWCA CIV 39
where the Plaintiff told the Police numerous times that his partner was threatening to kill him but the Police did nothing and the Plaintiff sustained injury when the partner subsequently tried to kill him. The Plaintiff had previously spoken to the Police Inspector as well as to the Police, asking for action on the threats, and the Police had said that they would investigate. The Court confirmed that no decided cases have allowed a member of the public who seeks the help of the Police, to sue without more if they fail to protect him. (the case went on to determine Police breaches of statutory obligations under the UK Human Rights Act.)

9. These cases are consistent with the Constitution, and are appropriate to the circumstances of PNG. They establish that the Police and Government bodies such as local Councils, owe no general duty of care to members of the public, in the absence of any prior special relationship between them. Even in non-public bodies, the test to determine whether or not there is a duty of care, is based on similar principles. They were set out in Caparo's case (supra), and followed in subsequent cases:

1.	The Plaintiff's loss must be a reasonably foreseeable result of the Defendant's conduct.

2.	There must be a prior sufficient relationship of proximity between the Plaintiff and Defendant.

3.	It must be fair, just and reasonable to impose liability on the Defendant.

10. In the case of Police and public bodies, there is generally no prior sufficient relationship of proximity between them and the Plaintiff, and it would not be fair, just or reasonable to impose liability on them, as being against public policy. If public bodies such as the Defendants take positive action, they are able to be found liable for their negligent or wrongful acts. If the Police intervene and discharge weapons, for instance, then a duty of care arises and they may be found liable for negligently shooting an innocent bystander. It is only where they do not intervene, that they will not be held liable.

11. The Plaintiff's Counsel has referred to the Intergroup Fighting Act 1977 and the Peace and Good Order Act 1991. These were not pleaded in the Statement of Claim as required by Order 8 Rule 32 of the National Court Rules. As stated by the Supreme Court in PNGBC v. Jeff Tole (2002) SC 694, the Plaintiff is only entitled to give evidence of matters which are pleaded in the Statement of Claim, and a departure from the cause of action alleged in the pleadings can only be done by amendment. Here, the statement of claim does not refer to the Acts or plead that the Defendants were in breach of any sections of these Acts. 

12. In any event, these Acts do not create a duty of care by the Defendants. For instance, the Plaintiff's counsel has referred to Section 17 of the Peace and Good Order Act, whereby a member of the Police Force "may take such action" as is reasonably necessary to prevent a breach of the peace. This does not create a "specific statutory duty of the Police to immediately take action" as submitted by the Plaintiff. Further, the Police do not need Section 17 of this Act to give them the power to take whatever action they consider reasonably necessary. They already have that power, and both the Constitution and the common law provide that the Police are not subject to direction as to how their powers are to be exercised.

13. The Plaintiff submits that there was a prior special relationship between the Plaintiff and the Defendants because "the Defendants were under the Constitutional and statutory obligations to protect the Plaintiff's property" and because "the Plaintiff has entered into an agreement with the Second Defendant" whereby the Plaintiff asked for assistance and the Second Defendant agreed to provide it. However, there is no Constitutional or statutory obligation on the Defendants to protect the Plaintiff's property, either pursuant to a request or otherwise, and there is no enforceable "agreement". Neither of those matters create a prior special relationship. 

14. The Plaintiff says it asked the Police to protect its property, but they did nothing. There is no evidence of the reason, except that the Second Defendant went to Porgera. There was no evidence of the availability of resources or how they were deployed in response to other requests for assistance. If every request created a duty in the Police to act as security guards, the Police Force would be unable to operate. A request for assistance does not create a prior special relationship. An agreement to provide assistance does not create an obligation or duty to provide it. The Police may decide what if any action to take, without outside direction.

15. The Plaintiff says further that there was a "fiduciary relationship" between the parties. A fiduciary relationship can only exist where there is a fiduciary duty owed by the Defendant. No such duty was pleaded, or established.

16. The citing of some passages by the Plaintiff from The New Law of Torts and from several English and Australian cases, appears to be based on a misconception. Those cases confirm that there is no liability for inaction in the absence of a prior special relationship, and a duty of care will not be found to exist where it would be against public policy.

17. The Plaintiff's submission that the First Defendant had the power to direct the other Defendants is not correct. Both under statute and the common law, the Police are not subject to direction from outside the Police force.

18. The Plaintiff has also submitted that it should be compensated by the Defendants under the Constitution for breaches "of the constitutional duty" and of their obligations under the Intergroup Fighting Act and the Peace and Good Order Act. No such duty, or obligations, or claims for damages were pleaded or proven, and so cannot be recovered.

19. The Defendants had no statutory or common law duty to take any specific actions. In the absence of a prior special relationship, the Defendants cannot be liable for omitting to take action, only for taking action, and then only if the action was negligent or wrongful. The Plaintiff was in no prior special relationship with the Defendants. It was simply a member of the public. It would also be against public policy to impose liability on the Defendants in such circumstances. 

20. The Plaintiff has not pleaded either the existence of or factual basis for a duty of care owed to it by the Defendants. For these reasons, the Plaintiff has failed to establish that it was owed a duty of care by the Defendants. 

BREACH OF DUTY OF CARE

21. As the Plaintiff has failed to plead or establish the existence of and factual basis for a duty of care, there cannot be a breach of that duty by the Defendants. 

CAUSATION 

22. It is therefore not necessary to consider the issue of causation between the alleged breach of duty and the Plaintiff's loss. However, it is necessary to record that the Plaintiff's own pleadings say that the loss was directly caused by the tribesmen. That does not pass the "but-for" test. 

23. The Plaintiff did not show that but for the Defendants conduct (in failing to do anything), the Plaintiff would not have suffered loss. On the contrary, it seemed from the evidence that the loss would very likely have happened anyway. Warring tribesmen are a fact of life in the Highlands. The Plaintiff's evidence was that the tribesmen were heavily armed with high powered guns. Police had been to the Plaintiff's property. The Police did not destroy the buildings – it was the Ambuli tribesmen who did that. The proximate cause of the loss was the action of the tribesmen, not the inaction of the Defendants.

PROOF OF LOSS

24. In relation to the loss itself, the Plaintiff produced no corroborating evidence. As the Court has said in PNGBC v. Jeff Tole (2002) SC 694 and Coecon v. National Fisheries Authority (2002) N 2182, and quoting from Bonham Carter v. Hayden Park Hotel (1948) 64TLR 177, 

"the Plaintiff must understand that if they bring an action for damages, it is not enough to write down particulars and, so to speak, throw them at the hand of the Court saying – this is what I have lost, I ask you to give me these damages. They have to prove it."

25. This is exactly what the Plaintiff has done here – just written down particulars and asked the Court to give them those damages. There were no invoices, receipts or other corroborating evidence for any of the property contents. There was no evidence of the age, condition or value of the buildings. The Plaintiff produced a document which it said was a valuation, but which was in fact an estimate of current construction costs. The plaintiff was not the author of that document, and did not call the author to identify it. It was only hearsay.

26. There was no evidence that the Plaintiff took any steps to prevent or mitigate the loss of the buildings, such as by engaging security guards, or arranging for the church members or local community people to protect the buildings.

27. In relation to the contents, the Plaintiff said that it took four or five days for the tribal fighting to reach their property. There was no explanation for why they did not use this time to remove items of value from the property, such as projectors and equipment. There was no evidence that the Plaintiff took any steps to prevent or mitigate the loss of the contents. 

28. The property consisted of buildings and contents which were made and used for the benefit of the people in the community. They were constructed on customary land which was owned by the people. Despite this, the property was destroyed by one section of the people, and not protected by any other section of the people, in the community. The Plaintiff has not taken any steps to hold these people legally liable. The Plaintiff cannot expect the Provincial Government and the Police to pay for the destruction of community assets, which they did not cause. It is difficult to conceive of any public policy consideration which would compel property which had been destroyed by the criminal conduct of part of the community, to be replaced by anyone other than the people in the community. 

29. As the Plaintiff has neither pleaded nor proved a duty of care owed to it by the Defendants, the Plaintiff's claim is dismissed. 

The Plaintiff is to pay the Defendants costs.
_______________________________________________

L Yandeken: Lawyer for the Plaintiff
Lakakit Lawyers: Lawyers for the First Defendant
Solicitor-General: Lawyers for the Second, Third and Fourth Defendants