N7367

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 795 OF 2013

BETWEEN:
EMMANUEL HAIYOT
Plaintiff

AND:
NATASHA DAVID
First Defendant

AND:
FRASIER PITPIT AS THE PUBLIC SOLICITOR OF PNG
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Polume-Kiele J
2017: 21 June, 28 July
2018: 6 July

PRACTICE AND PROCEDURE- Claim for professional negligence – lawyer and client relationship - breach of duty of care – Professional Conduct Rules 

Cases cited

Martha Limitopa v. The State [1988-89] PNGLR 364)
PNG v Kofowei [1987] PNGLR 5
Smith Alvi v Andake Tepoka (2006) SC1151
Kopen Yanda and Others v Apostolic Church Properties Association of PNG Inc (2006) N3042)
Frank A Griffin v Westpac Bank (PNG) Ltd [1993] PNGLR 352
Maku v Maliwolo (2012) SC1171
MVIT v Viel Kampu (1998) SC587
Eaton Pakui v The State (2006) N3001
Otto Benal Magiten vs Bilding Tabai & Lawrence Acanufa trading as Acanufa and Associate Lawyers (2010) N3916

Overseas Cases:

Hill v Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53

Counsel:

Mr C Nidue, for the plaintiff
Ms C Kuson, for the defendants

RULING ON LIABILITY

6 July, 2018

1.	POLUME-KIELE J: Trial on liability was conducted on the 21st of June 2017 with submission being heard on the 28th of July 2017. This is my ruling on the issue of liability on a claim for professional negligence against the defendants.

Background

2.	The plaintiff, was formerly employed as a casual worker by Dekenai Construction Ltd was injured on 06th April, 2008 where he sustained injuries to his right arm when operating a conveyor belt. He claims that whilst operating the conveyor belt, his right arm got caught in the rotating wheel of the conveyor belt. This resulted in his right arm being severely damaged which arm was subsequently amputated. The plaintiff says that he has now lost the full use of his right arm.

3.	A claim for workers compensation was then lodged with the Workers Compensation Office by his former employer. However, the matter was not progressed as quickly as the plaintiff anticipated. So he sought assistance from the Office of the Public Solicitor to pursue this claim on his behalf. 

4.	However, the plaintiff now claims that the Public Solicitor (second defendant) and its lawyer (first defendant) failed in their duty to assist him and thus these proceedings claiming damages for professional negligence. The matter is in court because according to the plaintiff, two things were not done properly by the defendants:

(i)	Firstly, although he says that he applied for “legal aid” on the 15th of November 2010 with the Office of the Public Solicitor in Wewak. In his bundle of documents lodged with the first and second defendants and the court file, the application for legal aid was to pursue a Workers Compensation claim with the Office of the Workers Compensation; a claim which his former employer has submitted for determination on his behalf but the claim had been delayed for some reasons?

(ii)	Secondly, the first and second defendants failed in their duty to give him advice that under s 84 (2) of the Workers Compensation Act, he was at liberty to file a civil common law negligence against his former employer.  So, by having failed to give proper legal advice, his right to pursue a civil common law negligence claim is now time barred. He now claims that the first and second defendants breached their duty of care under the Professional Conduct Rules and therefore are they are negligent in their duty for which he seeks damages against the first and second defendants and alternatively against the third defendants on the principle of vicarious liability.

Issues for determination

5.	Here the plaintiff says that defendants owed him a duty of care and on that basis they had a duty to fairly represent his interest (see Martha Limitopa v. The State [1988-89] PNGLR 364). Seen from that angle, this court is of the view that to answer this issue, three factors are relevant for determination: 

(i)	Firstly, whether specific instructions were in fact given by the plaintiff to the Public Solicitor (second defendant) to pursue a civil common claim against his  former employer (Dekenai Construction Ltd) for negligence; and

(ii)	Secondly, depending on how the court determines issue (i) above, the next issue to consider is whether the first defendant owed a duty of care under the Professional Conduct Rules to the plaintiff?

(iii)	Finally, given all of the above considerations, whether the plaintiff has proven on the balance of probabilities his damages for this court to make an award?

Plaintiff’s evidence

6.	The plaintiff relied on a number of affidavits which had been tendered into evidence by consent of the parties. These were the affidavits of Dr Kawa sworn on the 6th of January 2014 and filed on the same day; affidavit of Mathew Kakota sworn on the 14th of June 2014 and filed on the 25th of July 2014; affidavit of John Urom also sworn on the 14th of June 2014 and filed on the 25th of July 2014; affidavit of Otto Davir sworn on the 23rd of March 2015 and filed on the 16th of June 2015, affidavit of Peter Hubert sworn on the 23rd of March 2015 and filed on the 16th  of June 2015 and his own his affidavit sworn on the 27th of May 2015 and filed on the 16th of June 2015. 

7.	In his affidavit, the plaintiff deposed to the fact that his right arm was severed by the conveyor to the power screen of the crusher machine and its rotating wheel on which the conveyor belt moved. He also states that his former employer, “Dekenai” had submitted the bundle of documents marked and referred to as annexure “L” in his affidavit to the Office of Workers Compensation Claim Form, particularly Form 11 with a supporting letter dated 08th April, 2008 containing statement of Johnson Kari the supervisor, statement of Peter Hubert and the Plaintiff’s own statement for determination by Office of Workers’ Compensation.  He also states that the Workers’ Compensation claim was eventually assessed and an offer of K22, 500.00 was arrived at but this was subsequently raised to K25, 000.00. This offer was however not accepted by the Plaintiff. The plaintiff says that this offer is in itself an admission of liability by the employer “Dekenai” was in fact negligent. 

Defendant’s evidence

8.	The first and second defendants on the other hand did not file any affidavits in relation to the claim. However, the State (third defendant) had filed a defence in which they raise issues with regard to the propriety of the proceedings. In their submissions, they say that the allegations here are raised against a private party not named in the proceedings. This private party is a company established under statute and therefore capable of being sued and suing under its own name and style.   Further, the defendants deny that they were negligent in the discharge of their duties and say that the plaintiff has no cause of action against them.  The application for legal aid was to pursue a workers compensation claim, which they say had been pursued and an initial offer of a sum of K22,500.00 made which was subsequently raised to a sum of K25,000.00. They say further that they cannot act beyond their instructions. Their retainer (if any) is confined to their specific instructions and that is to pursue a workers compensation claim. As such doing anything beyond their instructions would be illegal. 

The law 

9.	The relevant law applicable to the duty of a lawyer is that of the Professional Conduct Rules. Section 3 of the Professional Conduct Rules states:

“S 3- It is the duty of a lawyer … to be competent in all his professional activities”.

10.	Further, Section 8 of the Professional Conduct Rules assist to explains the duty of a lawyer to his or her client. It states:

(1)	A lawyer shall treat a client fairly and in good faith, giving due regard to—

(a)	the dependence by the client upon him and his special training and experience; and
(b)	the high degree of trust which the client is entitled to place in him.

(2)	A lawyer shall always be frank and open with his client and with all others so far as his client's interest may permit and shall at all times give his client a candid opinion on any professional matter in which he represents that client.

(3)	A lawyer shall take such legal action consistent with his retainer as is necessary and reasonably available to protect and advance his client's interests.

(4)	A lawyer shall at all times use his best endeavours to complete any work on behalf of his client as soon as is reasonably possible.

(5) 	If a lawyer receives instructions from a client and it is or becomes apparent to him that he cannot do the work within a reasonable time, he shall so inform his client.

(6)	A lawyer shall not—
(a)	take unnecessary steps or do his work in such a manner as to increase his proper costs to his client; or
(b)	accept instructions which are beyond his competence.

(7)	A lawyer shall, when in his client's best interests, seek his client's instructions to endeavour to reach a solution by settlement out of court rather than commence or continue legal proceedings.

11.	Section 84 of the Workers Compensation Act, Chapter … provides for Liability independently of Act.

Section 84 states: 

(1)	This Act, except as expressly provided in it, does not affect any liability which exists independently of it.

(2)	Where a worker or his dependants, as the case may be, has received or is entitled to receive, compensation under this Act or under the repealed Act, in respect of an injury, he shall not bring an action against the employer for damages in respect of the same injury unless he commences that action within three years from the day on which the injury occurred.

(3)	Where a worker has recovered judgement against an employer independently of this Act for damages in respect of an injury, he shall not commence or continue any proceedings for or in relation to compensation under this Act in respect of the same injury.

(4)	A worker shall not commence or continue any proceedings against his employer for damages independently of this Act in respect of any injury after he has obtained a final award against his employer, under which his employer is liable to pay compensation under this Act in respect of the same injury.

(5)	Any sum received by a worker from an employer by way of damages in respect of an injury shall be deducted from the sum recoverable by the worker from the employer by way of compensation under this Act in respect of the same injury.

(6)	Any sum received by a worker from an employer by way of compensation under this Act or under a law of any other country in respect of an injury shall be deducted from the sum recoverable by the worker from the employer by way of damages in respect of the same injury.

12.	General liability of the State in tort (Wrongs (Miscellaneous Provisions) Act Chapter 297 (‘Wrongs Act’).  

(1)	Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject –

(a) 	in respect of torts committed by its servants and agents; and
(b)	in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and 
(c) 	in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property...

	(2)	…

(4)	Proceedings do not lie against the State by virtue of Subsection (1) (a) in respect of an act or omission of a servant or agent of the State unless the act or omission would, apart from this Division, have given rise to a cause of action in tort against the servant or agent or his estate.”

(5)	Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government".

Consideration of the claim

13.	In the present case, an application for legal aid was made at the Office of the Public Solicitor, on the 15th November 2010 to pursue a workers compensation claim. I understand from the arguments presented before the court that this was done by the first and second defendants. As to when this was done; no particular reference is made to this by any of the parties. However, as to the time when instructions were issued to pursue a worker’s compensation claim, the plaintiff had only had three months left before time expired (under s 84 (2). 

14.	In any event, a claim under the workers compensation scheme had been lodged at the Office of Workers Compensation by the plaintiff’s employer. According to the arguments presented by the defendants, they had in fact pursued a workers compensation claim on behalf of the plaintiff with the Office of Workers Compensation.  At the time of trial, assessment had been completed and an offer of a sum of K25, 000.00 was made to the plaintiff. As to the decision whether to accept the offer of compensation assessed by the Office of Workers Compensation, that is a matter for the plaintiff.

15.	However, the plaintiff’s argument is that his right to sue Dekenai was lost because the first defendant after being instructed by the plaintiff to pursue the workers compensation claim failed to give advice to the plaintiff that under s 84 (2) of the Workers Compensation Act, he was at liberty to issue proceedings against Dekenai under the civil common law for negligence. Because the first defendant failed to give this advice, the time period allowed under s 84(2) has now lapsed.  Hence the Plaintiff lost his right to sue for common law damages. 

16.	The defendants say however, that the cause of action is misconceived as the application for legal aid submitted to the Office of the Public Solicitor was to pursue the Workers Compensation claim. The defendants say that the Public Solicitor did pursue the workers compensation claim. An offer to settle the claim for a sum of K25, 000.00 was made to the plaintiff. According to the evidence presented before the Court, the plaintiff has not accepted the offer. It is a decision of his own doing. The defendants cannot be liable for such a decision. They say further that they cannot be held liable for any action that they were not instructed to pursue on behalf of the plaintiff. They say further that there exist no reasonable cause of action against the defendants. 

Addressing the issues

17.	In relation to the application for legal aid, I now need to determine whether an application for “legal aid” can in fact be considered as “instruction to act for and on behalf of a client”. Perhaps this matter should be considered properly, as the Office of the Public Solicitor is a constitutional office which provides “free legal assistance to members of the public” who are marginally financially disadvantaged and are charged under the Criminal Code and in civil claims such as this present case where litigants are unable to secure the services of the high fee charging legal firms.

18.	Given that there are probably in existence, certain procedural requirements which the Office of the Public Solicitor has in place in processing applications for ‘legal aid’ however for purposes of this case, I consider it relevant that a process should be highlighted as a guide in determining claims for professional negligence against lawyers employed by the Office of the Public Solicitor, given the constitutional functions that it performs in serving the members of the public.

19.	Essentially, the functions of the Public Solicitor under s 176 (2) of the Constitution. Section 176(2) states: 

(2)	The functions of the Public Solicitor are to provide legal aid, advice and assistance for persons in need of help by him, and in particular—

(a)	to provide legal assistance to a person in need of help by him who has been charged with an offence punishable by imprisonment for more than two years; and

(b)	notwithstanding the provisions of Section 176(5) (establishment of offices) he shall provide legal aid, advice and assistance to any person when directed to do so by the Supreme Court or the National Court; and

(c)	in his discretion in any matter, whether of a criminal or civil nature provided that such assistance shall be—

(i)	limited to advice and preparation of documents in any proceedings in respect of which an Act of the Parliament prohibits legal representation of any party to the proceedings; and

(ii)	granted in accordance with an order of priorities relative to the resources of the Public Solicitor laid down by an Act of the Parliament. (Underlining mine)

(3)	A person aggrieved by a refusal of the Public Solicitor to provide legal aid may apply to the Supreme Court or the National Court for a direction under Subsection (2)(b).

(4)	For the purposes of this section the need of a person is to be interpreted in relation to each particular case and, without limiting the generality of this expression, account shall be taken of the means of the person to meet the probable cost of obtaining alternative legal assistance, the availability of such assistance and the hardship which might result to the person if compelled to obtain legal assistance other than by the Public Solicitor.

(5)		An Act of Parliament may make provision for the Public Solicitor to make a reasonable charge for services provided by him to persons in need of his help whom he considers are able to make a contribution towards the cost of these services.

(6)	An Act of the Parliament may confer, or may provide for the conferring of, additional functions, not inconsistent with the performance of the functions conferred by Subsections (1) and (2) … 

20.	However, I gather from the pleadings and the materials and submissions made for the plaintiff before this Court that the first and second defendants had been instructed by the plaintiff to pursue workers compensation claim under the Workers Compensation Act.  The Second Defendant was no instructed to pursue a civil common law action for negligence against the plaintiff’s former employer. 
 
21.	In the present case, the plaintiff has to prove that the defendants owed a duty of care to which is alleged to have been breached on the balance of probabilities. Here the plaintiff has lodged an application for legal aid. What transpired after the lodgement of the application, no evidence were introduced or adduced to confirm whether instructions were received by the second defendant and accepting instructions to act on behalf of the plaintiff to pursuing the plaintiff’s claim against his former employer for negligence or whether there had been any oral or written instructions from the plaintiff to the Public Solicitor instructing the second defendant to act on behalf of the plaintiff  and to institute proceedings for negligence.

22.	The other issue to consider is whether an application for legal aid is in fact, accepted or equates to mean or taken to meant “formal instructions to a lawyer to act for and on behalf of a paying client”?  Because this issue is crucial to the professional negligence against the Public Solicitor and lawyers employed within the Office of the Public Solicitor. Once this is explained, than I will discuss the issue of whether a duty of care is owed to the plaintiff in light of Sections 3 and 8 of the Professional Conduct Rules.

23.	In Re Alleged Brutal Treatment of Suspects (2014) N5512, his Honour Cannings J, made reference to the earlier decision of PNG v Kofowei [1987] PNGLR 5, on the principle of vicarious liability of the State where the Supreme Court relied on s 1 (4) to establish liability of the State for the wrongful actions of the police officers. However in making that statement, his Honour went on that say that:

“But damages in all cases of vicarious liability are referring to the compensatory damages due to an injured plaintiff, not penal or punitive damages. It is certainly not a general principle of vicarious liability that an employer (not himself at fault) may be fined for the wrongful or criminal acts of his servant, no more than it is a general principle of criminal law. 

Similarly in Vicarious Liability in the Law of Torts (Atiyah, Butterworths 1967) at p 435, the learned author, P S Atiyah, notes:

"There appears to be no English authority in which there has been any decisions on the question whether exemplary damages can be awarded against an employer who is vicariously liable for the tort of a servant committed in circumstances in which exemplary damages can be awarded against the servant".

In Re Alleged Brutal Treatment of Suspects (supra), Cannings J in his decision summarises that recent decisions have denied vicarious liability for exemplary damages on principle, except for cases where: 

1.	the principal authorised the damage and manner of the wrongful act, or 

2.	the agent was unfit and the principal reckless in employing him, or 

3.	the agent was employed in a managerial capacity and was acting within the scope of that capacity, or 

4.	as the principal or manager, he ratified or approved the actions causing damage. 

“In brief, vicarious liability for exemplary damages is reserved for those cases where the employer or superior can be said to be linked by some act of omission or commission as a participant in the wrongful action. I believe the courts in Papua New Guinea should, and do, endorse exemplary damages in such situations.”

24.	This present case involved allegations of the first and second defendants failing in their duty to act upon the instructions of the plaintiff. However, I find that no evidence have been introduced or adduced during trial as to the specific instructions given to the first and second defendants to pursue on behalf of the plaintiff. All that is disclosed in the application for “legal aid” is a request to pursue a workers compensation claim with the Office of the Workers Compensation Commissioner. 

25.	Further, given the standing instructions, the first and second defendants are under no obligation or duty to lodge or pursue a civil common claim for negligence as alleged by the plaintiff against his former employer.  If the first and second defendants had gone ahead to file a civil common law claim for negligence against the plaintiff’s former employer, their actions would be contrary to instructions and therefore illegal in the circumstances (see Smith Alvi v Andake Tepoka (2006) SC1151; Kopen Yanda and Others v Apostolic Church Properties Association of PNG Inc (2006) N3042); Frank A Griffin v Westpac Bank (PNG) Ltd [1993] PNGLR 352 amongst a number of case authorities on this point.

26.	So in the absence of such vital evidence, should this court be asked to make a determination on the issue of professional negligence? 

Duty of Lawyer to act only on instructions

27.	In Smith Alvi v Andake Tepoka (2006) SC1151, the Supreme Court stated: 

“Honest and professional conduct by lawyers is pivotal to the proper administration of justice in Papua New Guinea. The critical role of lawyers was highlighted in the case of Council of Legal Education v Awaita [1987] PNGLR 38 in which Sir Mari Kapi stated: We have adopted an adversarial court system, so everything that happens in the courtroom turns on how the lawyers conduct the case. Lawyers have an onerous responsibly to their clients and to the court of which they are officers to prepare and conduct their cases carefully and transparently. Things must be done ‘above board’. When a Judge hears a case, the Judge must be able to tell from looking at the documents who the parties are and what the dispute is about and who the lawyers are representing”. 

Further at paragraph 22, the Supreme Court stated: “A related and basic principle of the administration of justice and of a proper lawyer/client relationship is that lawyers act only on instructions of their clients. Instructions may be express or implied, oral or in writing; but there must be instructions in place. If there are no instructions, whatever the lawyer does must be regarded as being in excess of authority. Many PNG cases have highlighted this principle …”

28.	The Supreme Court in Smith Alvi v Andake Tepoka (2006) SC1151, went on to state further that:

“for a lawyer to institute proceedings in any court in the name of a person without obtaining instructions from that person is an abuse of the processes of the court and renders the proceedings a sham (Kopen Yanda and Others v Apostolic Church Properties Association of PNG Inc (2006) N3042). This case involved an application for leave to appeal against the judgment of the National Court filed by Paul Paraka Lawyers using the names of persons who had given no instructions to them. The application for leave to appeal was therefore a sham and an abuse of process and was dismissed. The Supreme Court in paragraph 20 stated: 

“20- Mr Tame, however, could not provide any evidence that Paul Paraka Lawyers had appropriate instructions. Nor did he give details of who specifically gave the instructions or when they were given. We are of the view that if the principal plaintiff, Mr Alvi, did not give instructions to file an application for leave to appeal against Davani J’s orders, it is unlikely that the other plaintiffs would give separate instructions. Mr Tame’s response was tantamount to an admission that Paul Paraka Lawyers had no instructions to file the application for leave. As a matter of law, a lawyer requires instructions to institute court proceedings in the name of a particular person. A lawyer who has instructions to act for someone in the National Court does not automatically have instructions to act for that person in the Supreme Court. We were not impressed with Mr Tame’s response and find as a fact for the purposes of determining the application now before the court that Paul Paraka Lawyers had no instructions, express or implied, to file the application for leave to appeal” (underlining mine)

29.	In Frank A Griffin v Westpac Bank (PNG) Ltd [1993] PNGLR 352, the Court (at paragraph 9) stated: 

“It is clear law that any lawyer admitted to practice law cannot act in a matter unless he has instructions to act in the matter. We need not refer to any authority to support this proposition” (underlining mine)

30.	In MVIT v Viel Kampu (1998) SC587; the Supreme Court stated: 

“But the most compelling ground in this appeal is that challenging the status of Counsel who made the application to the Court for extension of time. The challenge here is twofold. In the first place the Appellant asserts that s.54(6) specifically requires that the application for extension of time be made by the claimant. Secondly, Counsel in any event acted without instructions from a client and therefore had no authority to make the application to the Court. When submission was made in the National Court that the Respondent Counsel had acted without instructions, the Learned Trial Judge ruled that "such matters went to the Lawyer — client relationship which this Court should not interfere with, but trust the judgement of the lawyer and assume that he represents client."

31.	In Eaton Pakui v The State (2006) N3001 the Court (at paragraph 16) stated:

“There is, I consider, a fundamental principle underpinning the administration of justice in Papua New Guinea that is at stake in this matter and I think it provides the way out of the imbroglio that has developed: a person who brings proceedings in the courts is entitled to engage, at his own expense, a legal representative, duly admitted to practise as a lawyer, of his own choice. Put in plain language: a person has the right to choose his or her own lawyer. The client can hire and fire the lawyer at will” 

32.	So in situations where there is no evidence of approval in writing addressed to the plaintiff/applicant that “legal aid” has been granted, how can there be an inference that the Public Solicitor now has accepted instructions to act for the plaintiff and as a consequence is alleged to have breach a duty of care to the plaintiff on a lawyer- client relationship?

33.	First and foremost, the Office of the Public Solicitor is a constitutional office prescribed under s 176 and 177 of the Constitution.  Essentially, the Office of the Public Solicitor is a constitutional office tasked with the provision of “legal aid” to members of the public.

“s 177 (2) states:  The functions of the Public Solicitor are to provide legal aid, advice and assistance for persons in need of help by him, and in particular to provide legal assistance to a person in need of help by him; and in particular-

(a)	To provide legal assistance to a person in need of help by him who has been charged with an offence punishable by imprisonment for more than two years; and 

(b)	notwithstanding the provisions of Section 176(5) (establishment of offices) he shall provide legal aid, advice and assistance to any person when directed to do so by the Supreme Court or the National Court; and 

(c)	in his discretion in any matter, whether of a criminal or civil nature provided that such assistance shall be—

(i)	limited to advice and preparation of documents in any proceedings in respect of which an Act of the Parliament prohibits legal representation of any party to the proceedings; and

(ii)	granted in accordance with an order of priorities relative to the resources of the Public Solicitor laid down by an Act of the Parliament. (Underlining mine)

34.	Due to lack of representation by the first and second defendants, this Court did not have the benefit of hearing from them. However, the third defendant (State) was represented and had raised a defence of priorities in resource allocation including the issue of the constitutionality of the Office of the Public Solicitor. This is more so in line with the argument particularly where the Office of the Public Solicitor is tasked to provide “legal aid” to members of the public. These responsibilities alone are reasons that any resources allocated to the Office by the Government of the day which are not adequate to meet its full constitutional functions issues of public policy considerations must be given due consideration.  It is more so in cases such as this which does inhibit the performance of lawyers employed within the Office of the Public Solicitor from performing their constitutional functions for fear of litigation. Something similar as to how the police perform their constitutional functions.

35.	In my determination of the issues raised, I find that it is therefore a consideration that must be taken into account when determining negligence claims against its lawyers employed within the Office of the Public Solicitor. The fact that the Public Solicitor is tasked to provide “legal aid” to members of the public; this factor alone gives raise to issues of public policy consideration. 
This is because any litigation would inhibit lawyers employed within the Office of the Public Solicitor from performing their constitutional functions for fear of litigation. Such actions would be similar to actions against police performing constitutional functions. 

36.	A case on point in relation to issues of “public policy consideration is that of Maku v Maliwolo (2012) SC1171, in which the appellants, a group of villagers mounted a class action against two senior police officers and the Police Commissioner and the State, claiming damages done to their properties by enemy tribesmen. The plaintiffs during trial alleged that the first, second and third respondents failed to attend to and/ or stop a tribal fight between their enemy tribe and themselves. As a consequence of the defendants’ failure to stop the tribal fight, the enemy tribe destroyed and looted properties of various descriptions, food gardens and livestock. The principal appellant's son and nephew were killed by enemy tribe. This matter had proceeded to trial on assessment of damages following entry of default judgment which apparently had been entered by consent. At the hearing for assessment of damages, the National Court, dismissed the action. The National Court held among other things, that the appellants failed to prove damages because their evidence was hearsay and not credible. They failed to establish a reasonable cause of action known to law for damages to be awarded.

37.	On Appeal the Supreme Court (Lenalia, Makail, Kariko JJ), adopted and followed the principle established in the English case of Hill v Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53, in which the Appeal Court held that at common law, the police owe no duty of care to the public at large and that there will be no duty of care if it is against wider policy issues, such as where it may adversely affect the way in which the police carry out their duties for fear of litigation. The Court further held that this position is consistent with Section 197 of the Constitution, which vests in the police the responsibility of maintaining law and order, but does not prescribe any specific requirement as to the way in which they do it. Therefore, the police owe no duty of care to the public at large, and there is no duty of care if it is against public policy.

38.	In applying the principles held in Maku v Maliwolo (supra) to the facts in the current case, I find that the public policy considerations applied in Maku v Maliwolo (supra) should also apply here. This action must fail for the same reason - that is that the Public Solicitor owe no duty of care to the public at large and that there will be no duty of care if it is against wider policy issues, such as where it may adversely affect the way in which the Public Solicitor carry out its duties for fear of litigation. 

39.	This position is consistent with Sections 176 and 177 (2) of the Constitution, which vests in the Public Solicitor the responsibility of providing legal aid, advice and assistance for persons in need of help by him, and in particular to provide legal assistance to a person in need of help by him who has been charged with an offence punishable by imprisonment for more than two years; and notwithstanding the provisions of Section 177(4),(5) and (6) of the Constitution in which he shall provide legal aid, advice and assistance to any person when directed to do so by the Supreme Court or the National Court; and in his discretion in any matter, whether of a criminal or civil nature provided that such assistance shall be—

(iii)	limited to advice and preparation of documents in any proceedings in respect of which an Act of the Parliament prohibits legal representation of any party to the proceedings; and

(iv)	granted in accordance with an order of priorities relative to the resources of the Public Solicitor laid down by an Act of the Parliament. (Underlining mine)

40.	In that although, constitutional law bestows such functions and responsibilities, it does not prescribe any specific requirement as to the way in which do it. In the circumstances, I find that the Public Solicitor owe no duty of care to the public at large, and there is no duty of care if it is against public policy.

41.	Further, in Re Alleged Brutal Treatment of Suspects (2014) N5512, his Honour Cannings J states: 

“51 	The Public Solicitor is a constitutional office-holder. He is one of the three Law Officers of Papua New Guinea (the others are the principal legal adviser to the National Executive and the Public Prosecutor). He has an inherent and constitutionally recognised interest in the protection and enforcement of human rights. He is an integral part of the National Justice Administration. He has a great measure of independence. He cannot, except in limited ways provided for by the Constitution, be directed or controlled in the discharge of his constitutional functions, which are primarily “to provide legal aid, advice and assistance for persons in need of help by him” (see Constitution, Sections 57(2), 154, 156, 176(1), 176(2), 176(5), 177(2) to (6), 221(b)).

52	The best way for the Public Solicitor to provide legal aid, advice and assistance to needy persons whose human rights have been allegedly violated on a mass scale is to represent them in Court. To be the principal advocate for the needy. To be the country’s leading human rights lawyer. To provide leadership to the lawyers in his office whose duty it is also to protect and enforce human rights. … “

42.	Given the foregoing I find that the Public Solicitor in the performance of his functions and responsibilities when providing “legal aid” to members of the public, “there will be no duty of care if it is against wider policy issues, such as where it may adversely affect the way in which the Public Solicitor and lawyers employed with the Office carry out their duties for fear of litigation” (see Maku v Maliwolo (supra)). 

43.	Claims for professional negligence against the Public Solicitor or its lawyers would adversely affect the way in which the Public Solicitor and lawyers employed with the Office carry out their duties for fear of litigation”  Fear of litigation would greatly impede the Public Solicitor and lawyers employed within the Office of the Public Solicitor from performing its constitutionally recognised functions and responsibilities “to provide legal aid, advice and assistance for persons in need of help” (see Re Alleged Brutal Treatment of Suspects (supra).

44.	Having stated the above, it is however, incumbent upon the Public Solicitor to ensure that lawyers employed within the Office are adequately trained and are conscious of their responsibilities firstly as a lawyer and duties under the professional conduct rules and their constitutional responsibilities where (“legal aid”) is granted to members of the public). Their duties as lawyers is not diminished.

45.	Given the constitutional responsibilities bestowed upon the Public Solicitor and the purpose and objective of s 177 (2) of the Constitution and the rise in civil claims for professional negligence against lawyers employed within the Office of the Public Solicitor, I propose that a number of checklists be established when processing an application for “legal aid” from members of the public. The checklists that needs to be ticked off when accepting application to provide “legal aid” to members of the public. These checklists must show prove of:  

(i)	an application being lodged with the Office of the Public Solicitor for “legal aid”;

(ii)	grant of “legal aid” by the Public Solicitor to an applicant for “legal aid”;

(iii)	evidence of  nominated fees to be charged (if any);

(iv)	payment of the nominated fee for a retainer by an applicant charged by the Public Solicitor for taking instructions to act for the plaintiff; 

(v)	instructions given to the Public Solicitor to institute proceedings for and on behalf of an applicant

46.	Given the above guidelines, it is necessary for an applicant or party instituting proceedings pleading professional negligence or breach of duty of care, these five requirements be met. Even then, the issue of whether or not to grant any relief sought is discretional matter for the court.  

47.	In regard to the present case, it appears that only requirement (i) above has been met; that is, an application for legal aid being lodged at the Office of the Public Solicitor at Wewak, East Sepik Province. There is however no evidence of the requirements set out in (ii) to (iv) above being met. Given, this situation, the case on point in such is that of (Kopen Yanda and Others v Apostolic Church Properties Association of PNG Inc (2006) N3042) in which the national court in dealing with such situation have held that:

“For a lawyer to institute proceedings in any court in the name of a person without obtaining instructions from that person is an abuse of the processes of the court and renders the proceedings a sham” (Kopen Yanda and Others v Apostolic Church Properties Association of PNG Inc (2006) N3042).

48.	However, in a situation where all of the five requirements set out in paragraph 45 above have been met, and a lawyer employed in the Office of the Public Solicitor has failed to unable to take action for any reasons, s 8 of the Professional Conduct Rules requires that a Lawyer shall take reasonable care to ensure that:

(1)	…
(2)	…
(3)	A lawyer shall take such legal action consistent with his retainer as is necessary and reasonably available to protect and advance his client's interests.
(4)	A lawyer shall at all times use his best endeavours to complete any work on behalf of his client as soon as is reasonably possible.
(5) 	If a lawyer receives instructions from a client and it is or becomes apparent to him that he cannot do the work within a reasonable time, he shall so inform his client
(6)	…
(7) 	…

49.	In applying the evidence of the plaintiff, I note that the plaintiff says that the first defendant failed to advise him that apart from pursuing a workers compensation claim, the plaintiff does have the option of pursuing a civil common law claim for negligence which under s 84(2) of the Workers Compensation Act must be lodged within 3 years. Basically, s 84 (2) of the Workers Compensation Act provides that:  

“a worker or his dependents, as the case may be, has received or is entitled to receive, compensation under this Act or under the repealed Act, in respect of an injury, he shall not bring an action against the employer for damages in respect of the same injury unless he commences that action within three years from the day on which the injury occurred”  

50.	Section 84 (2) is meant to prevent a worker or their dependents from mounting multiple actions against their employers for damages. In this case, under the workers compensation scheme, the plaintiff may be entitled to receive some compensation. The issue of whether he has accepted any offer remains, his decision. 

51.	I understand from the materials presented before this Court that the accident occurred on or about the 06th April, 2008.  On the 15th of November 2010, the plaintiff attended at the Office of the Public Solicitor instructing him to pursue the claim for Workers Compensation which the employer had failed to facilitate. I gathered also that this was pursued by the Office of the Public Solicitor. Following an assessment of the claim, an offer of the sum of K25, 000.00 was made on the 27th of February 2013. The plaintiff however has refused to sign the Deed of Release accepting the offer of the sum of K25, 000.00. 

52.	The plaintiff has instead commenced civil action against the defendants in this action for professional negligence alleging that the first defendant failed in her duty to provide legal advice as to his rights to pursue a cause of action that will entitle him to an assessment of damages that is much higher than the offer made by the Workers Compensation Office.

53.	Given these circumstances, I find that this is case where the plaintiff has given instructions to the Public Solicitor to pursue a Workers Compensation Claim. The instruction were not to pursue a civil common law negligence claim against the former employer. Here the workers compensation claim processes have been completed. An assessment was concluded on or about the 27th of February 2013 and an offer for a sum of K25, 000.00 was made to the plaintiff. However, the plaintiff has refused the offer. He now says that his instructions were to pursue a civil action which he now finds, he cannot pursue because it is time barred. 

54.	In relation to issue of whether the first and second defendant owed a duty of care to the plaintiff as lawyers. The law on duty of care of lawyers is quite clear. Numerous case authorities on the issue of professional negligence claims against lawyers against officers of the Office of the Public Solicitor have established a number of standards upon which the duty of a lawyer is measured. The notable being that of the case of Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364 in which his Honour Brunton AJ stated:

“The duty of care that a lawyer has is not measured against standards that may be considered reasonable for labourers, or carpenters, or nurses, or community schoolteachers, or research biochemists”. The standard of care lawyers must exercise in dealing with their client’s case is measured in accordance with the standard of their profession. 

55.	Given these statement, the question to ask here is what are the standards that the legal profession expects of its members? How does a lawyer act skilfully and diligently? In Otto Benal Magiten vs Bilding Tabai & Lawrence Acanufa trading as Acanufa and Associate Lawyers (2010) N3916 his Honour Cannings J stated:

(i)	“First and foremost, lawyers must act in accordance with their client’s instructions, unless the instructions are unlawful”

(ii)	Secondly, lawyers must be aware of all statutory time limitations for commencement of civil actions and advise their clients of the risks associated with commencing actions outside limitation periods.

56.	In the present case, I find that the plaintiff has failed to introduce or adduced evidence that the defendants had failed to act with his instructions. In fact, the contrary has occurred. In that the first and second defendants had acted in accordance with the plaintiff’s instructions and that is to pursue a workers compensation claim. Here, the first, second defendants had acted within their instructions and did pursue a workers compensation claim on behalf of the plaintiff. Anything else that they could have done was beyond their professional duty of care as a lawyer to their clients. 

57.	Overall, the first and second defendants have met the reasonable professional standards required of them and pursued a workers compensation claim on behalf of the plaintiff. They did not ignore those instructions. I also find that this claim was finally assessed and an offer of K25, 000.00 made to the plaintiff on the 27th of February 2013. How the plaintiff responded to the offer, is of his doing. This is not claim of the first and second defendants failing to act skilfully and diligently as lawyers acting for their clients.

58.	Consequently, I find that the plaintiff has failed to make out a case of professional negligence against the first and second defendants for which the third defendant may be held liable on the principle of vicarious liability.

Orders of the Court are:

(i)	No cause of action in professional negligence is disclosed against the defendants. 

(ii)	Each party to bear their own costs. 

Orders accordingly.

Nidue & Associates Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyer for the Defendants