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Nukunts v Manu [2019] PGNC 69; N7785 (2 April 2019)

N7785

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO.965 of 2015 (CC2)

BETWEEN
PETER JOHN NUKUNTS
Plaintiff

AND

KONI MANU

First Defendant

AND

BRUCE AMOS

Second Defendant

AND

GEOFFREY VAKI

Third Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Kandakasi, J.

2016: 10^th May

2019: 02^nd April

NEGLIGENCE – Police inaction - Failing to protect a citizen – Whether valid cause of action – Duties of the police – Whether Police owe a duty of care to a member of the public who lodges a complaint - Public policy considerations – Police immunity - Against public policy to hold Police owe a duty of care - Police generally have a duty to protect people and properties but not to a particular member of the public – Duty of all members of the public or society to recognise and uphold the rule of law – Duty of the public to report criminal activities and not to take matters into their own hands to avoid retaliatory action – Reporting after provoking retaliatory action a factor against Plaintiff – Police not contributing to attack in any manner or form – Plaintiff has cause of action against his primary offenders or tortfeasors – No case made out to create an except to the principle of police immunity - No cause of action disclosed – Claim dismissed – Section 197 of the Constitution.

Cases Cited:
Papua New Guinea Cases

Abel Tomba v. The Independent State of Papua New Guinea (1997) SC518
Andrew Tony v. The State (2008) N3477
Catholic Diocese of Wabag Board of Trustees v. Enga Provincial Government,
Ekip Pade v. Albert Nangas (2018) N7073
Gari Baki Commissioner of Police & The State (2011) N4562 (2011) N4562
Simon Awaria & 20 Ors v. Sam Inguba as Commissioner of Police, Electoral Commission & The State (2006) N3044
Rupundi Maku v. Steven Maliwolo (2011) SC1171
Seresa Kakipa v. Kai Nikilli (2002) N5689

Overseas Cases

Crowley v. Commonwealth of Australia, Australia Capital Territory and Pitkethly [2011] ACTSC 89
Douglas Bamleett v. Inspector Shailesh Kumar & Ors [2011] FJHC 37
Hill v. Chief Constable of Yorkshire (1987) UKHL 12 (Hill): (1989) AC 53.
Kester Yee v. Commissioner of the Fiji Police Force [2011] FJHC 38
Knightly v. Johns [1981] EWCA Civ 6; [1982] 1 All ER 851.
Rigby v. Chief Constable of Northamptonshire [1985] 2 All ER 985
Tio v. Beengo [2003] KIHC 89 and Jagroop v. Sokai & Tonga [2001] TOCA 10

Counsel:

N. A. Mawa, for the Plaintiff
T. Mileng, for the Defendants

02^nd April, 2019

1. KANDAKASI J: Peter John Nukunts (Nukunts) is suing the Defendants (the State) for damages for Police inaction and protection. The Court raised the issue of whether this was a valid cause of action or in other words, whether the Police owe a duty of care to a member of the public who lodges a complaint with the Police. The Court then asked the parties to assist with submissions on the issue and they did.

Issue for resolution

2. Hence the single issue for the Court to resolve is this:

Whether the Police owe a duty of care to a member of the public who lodges a complaint?

Relevant facts

3. The relevant factual background from which the issue arises is straight forward and is not contested. On 11^th September 2014, around 8:00pm Nukunts tried to stop three drunkards who were also taking drugs on a street where he resided then. Nukunts managed to chase away one of the men but, the remaining two turned against him and they had a fight. The next day, 12^th September 2014, Nukunts asked the two men he had fought with the previous night as to who was the third person, who he managed to chase away. That gave rise to another fight between them. Nukunts then reported the incidents to the Police at Waigani Police Station on the same day.

4. On 13^th September 2014, a day after the reporting around 8:00am, the same persons with whom Nukunts had fought on the previous two days, came to his property with one of them jumping over the fence and into his premises. Nukunts had him chased out. The same group of men shouted threats against Nukunts, had his gate kicked and dared him to come out of his house. Thereafter it seems they left him and his property.

5. Later the same day, Nukunts sought the assistance of the Waigani Police Station. However, the police there did not take any action. Nukunts therefore went to the Boroko Police Station for help from a Sergeant Henry Map. He then returned home, whereupon the same group of men verbally abused him and provoked him. This eventually led to an argument and a fight. The whole street turned against Nukunts, broke and entered his property and stole most of his and his family’s properties.

Relevant Law on the Issue

6. At common law, the law is eloquently stated in the case of Hill v. Chief Constable of Yorkshire (1987) UKHL 12 (Hill): (1989) AC 53. There, a Peter Sutcliff committed 13 murders and 8 attempted murders between 1975 and 1980 in Yorkshire, United Kingdom. His last victim was Jacqueline Hill. Ms Hill’s mother claimed that the police should reasonably have inferred that the previous 20 offences were committed by the same person and that, if not caught, he would re-offend. She therefore argued that, the police owed a duty to use ‘their best endeavours and exercise all reasonable care and skill to apprehend the perpetrator of the crimes and so protect members who might otherwise be his future victims”. She went on to argue that, the police failed to properly collate information in their possession that would have identified Sutcliffe as a likely suspect, failed to give due weight to certain other information as well and accorded excessive weight to other information.

7. Lord Keith who delivered the leading judgment with whom all other justices agreed, summarised the key question as being whether:

(a) police officers in the course of carrying out their functions of controlling and keeping down the incidence of crime, owe a duty of care to individual members of the public who may suffer injury to their person or property through the activities of criminals; and

(b) if so, whether they are liable in damages for any breach of that duty to anyone who suffers injury or loss.

8. In upholding the decision of the Court of Appeal to strike out the claim as disclosing no cause of action, Lord Keith established the principle of immunity from negligence claims in the following terms:

“Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying out of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time, they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances, the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure, for example that a police officer negligently tripped and fell while pursuing a burglar - others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policing and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted. I therefore consider that Glidewell L.J., in his judgment in the Court of Appeal in the present case [1988] Q.B. 60, 76, was right to take the view that the police were immune from an action of this kind on grounds similar to those which in Rondel v. Worsley [1969] 1 A.C. 191 were held to render a barrister immune from actions for negligence in his conduct of proceedings in court.”

9. In PNG, the Supreme Court found this principle sound in Rupundi Maku v. Steven Maliwolo (2011) SC1171. It therefore decided to adopt and apply the principle. In so doing, the Court noted that the decision in the Hill case has been adopted and applied in other common law jurisdictions. That included the United Kingdom, Australia, Fiji, Kiribati and Tonga. In particular, the Court noted that the immunity has been extended to cases where the claim is for police “inaction” and cited the relevant decisions on point, namely, amongst others: Crowley v. Commonwealth of Australia, Australia Capital Territory and Pitkethly [2011] ACTSC 89; Kester Yee v. Commissioner of the Fiji Police Force [2011] FJHC 38; Douglas Bamleett v. Inspector Shailesh Kumar & Ors [2011] FJHC 37; Tio v. Beengo [2003] KIHC 89 and Jagroop v. Sokai & Tonga [2001] TOCA 10.

10. On its part our Supreme Court commented:

“The immunity is founded on public policy grounds in that, it should be an operation determination for the police force as to how, when and where it deploys its’ resources. The reasoning for this principle is that the deployment of police resources is constrained by many factors, some of ... which are:

· the number of officers on shift;

· the conflicted (sic) interest of the available officers in the criminal activity and the need for independent investigators;

· the availability of equipment, such as handcuffs, batons, guns, and ammunitions, and the availability of resources such as motor vehicles and fuel for transportation; and

· the expertise of officers required to investigate or suppress crime.”

11. The Supreme Court went on to note that:

“The public policy reasons for the immunity and consequent non-existence of a cause of action for police inaction is that it is not appropriate for the Courts to dictate the circumstances when police should act to investigate or suppress crime. The Court is not in a position to deliberate on the range of operational matters that impact on the ability for the police to investigate, suppress or solve crime.”

12. At the same time, the Court noted correctly that “it should be made very clear that the immunity is not a blanket immunity for police from all liability”. Instead, as Lord Keith in the Hill case acknowledged, there was “no question” police were liable to those injured as a “direct result” of negligent acts or omissions. He cited as an example, a case in which a police motor cyclist caused a traffic accident in the case of Knightly v. Johns [1981] EWCA Civ 6; [1982] 1 All ER 851, and another case in which police were found liable for a fire started when he fired a gas canister into premises under siege in the case of Rigby v. Chief Constable of Northamptonshire [1985] 2 All ER 985. The immunity more readily applies where the “cause of action” comes from third parties who remain at large after alleged criminal activity.

13. In PNG, the Supreme Court noted the principle has been adopted in two cases, namely the decisions in Catholic Diocese of Wabag Board of Trustees v. Enga Provincial Government, Gari Baki Commissioner of Police & The State (2011) N4562 and the case of Simon Awaria & 20 Ors v. Sam Inguba as Commissioner of Police, Electoral Commission & The State (2006) N3044. In both cases, the Court decided in favour of no cause of action existing as against the police and hence the state for the actions of third parties. The respective third parties’ actions respectively were, a destruction of property and looting out of tribal war fare setting and another during the counting of votes in a National-General election. The actions primarily against the police were for their failure to prevent the destructions and lootings.

14. Having regard to the common law principle as developed in the Hill case and as adopted in Australia, Fiji, Kirribati, Tonga and recently by Papua New Guinea, the Supreme Court took the view that, the principle “is consistent with section 197 of the Constitution.” The Court noted that, under that provision, the “police have a responsibility for maintaining law and order but are subject to no specific requirement as to the way in which they do it.” The Court went on to hold that, the principle was sound, appropriate, consistent with the Constitution and therefore applicable in PNG as part of the underlying law pursuant to Schedule 2.2 of the Constitution. The Court explained:

“These principles are sound, appropriate and consistent with the Constitution because if the law were to impose or create specific duty of care on the police in the discharge or performance of their duties, it will result in all manner of litigation against them and the State. It is common knowledge the police force has inadequate manpower and resources to maintain law and order in the country. Time and again, police manpower and resources have been stretched to the limit, and in our view, it would be unwise and inappropriate to impose or subject them to specific requirements as to the way they discharge or perform their duties.”

15. Then applying the principle to the case then before it, which was a case arising out of destruction and looting of the appellants’ property done by the appellant’s enemy tribe, the Court observed:

“The police were not the ones who destroyed and looted the appellants’ property. The allegation that the police owed them a duty of care to protect their lives and property and should have attended and stopped the tribal fight does not exist in law because the police owe no duty of care to the public at large and it is against public policy. As the appellants have failed to establish the existence of a duty of care, there cannot be a breach of that duty by the respondents. It follows the respondents cannot be liable for the damages caused by the enemy tribe.”

16. In the present case, all the parties submit that the relevant applicable law is as stated and discussed above. Based on that law, the State argued that the police owed no duty of care to Nukunts, which was breached resulting in his alleged losses and damages. On the other hand, Nukunts argued that, he was not a member of the public at large. Instead, he argued that he went to the police more than once and laid his complaint highlighting the possible risks of harm and damage to him, his property and family. He also pointed out that, he identified the possible assailant and their addresses. In the circumstances, he argues he was owed a duty that was breached resulting in destruction, loss and damage to him and his properties.

Consideration and decision

17. With respect, the submissions of Nukunts are effectively seeking to create an exception to the principle developed in the Hill case as adopted and applied in several common law countries including Papua New Guinea. In my respectful view, this runs contrary to the statement of the principle as adopted and applied in a number of common law countries. The principle recognises only one except to the immunity granted to the police. That exception lies in cases where the specific actions of the police that result in injuries and or damages to individuals or corporate entities. Good examples of such cases include, unlawful police raid,^[1] unlawful and careless discharge of firearms,^[2] police brutality^[3] or unlawful arrest and detention.^[4] The enunciation of the principle first by Lord Keith in the Hill case, as followed, elaborated and as adopted and applied by the many subsequent cases deliberately allowed for that one exception principally because of the public policy considerations.

18. I venture to add to that, law and order and its enforcement is the duty not only of the police but every member of the society. It is in the interest of the public at large or the community to assist the police in maintaining law and order. This includes every member of the society or the public recognising the rule of law and refrain from taking matters into their own hands. Except in the very limited cases such as one acting in self-defence, or in cases where an offender can be restrained without attracting any personal injury or arm to oneself, all members of the society are required to refer all matters of criminal breach to the police. Once that duty is discharged, the matter then becomes a police matter. If, however, a member of the society decides to take matters into his or her own hands, he or she is attracting harm and danger to him or herself.

19. In this case, the Plaintiff decided to take matters into his own hands first. It all started with three men drinking alcohol and taking drugs. Instead, of reporting the matter to the police right away and let the police deal with it, he decided to chase one of them away. He then went further to ask the other two men as to the identity and the whereabouts of the person he had chased away. Usually drunks and druggies would have no capacity to reason with sober people. They would in most cases, end up in fights and destruction. The correct thing for the Plaintiff to have done at the first instance was to report the drinking and taking of drugs on the street by his later to become assailants to the police. He did not do that. He created a situation for him, his family or his property to be the target of attack by way of payback by his first attacking of the three drunkards. Later as things worsened again, the Plaintiff decided to end up in arguments and fights instead of restraining himself.

20. I also note with interest, the suggestion that the whole street turned on the Plaintiff which resulted in the break and entering of his home and the looting of his properties. Usually, neighbours in a street do not condone drunkards and druggies or for that matter bad people on their street. They become nuisances and usually the neighbour hood would rally against such persons. What the plaintiff claims in this case sound a little strange. He has failed to clearly plead and explain why the people had reason to turn against him instead of the drunks and the druggies. In the absence of any evidence, pleading or submissions to the contrary, I infer from the uncontested facts that Nukunts was either not liked in his street or that the story he has told per his pleadings misrepresents the truth and has told it in a way that favours him more.

21. Further, the police and therefore the State, did nothing to contribute to the chasing away of the drunks and druggies at the first instance. Similarly, the police and the State did nothing to contribute to the arguments and the fights that eventually developed and took place. Furthermore, the police and the State did not cause the arguments, the fights and the break and enter and stealing of Nukunts’ properties. The persons who are directly responsible are known to the Plaintiff and there is nothing preventing Nukunts from seeking compensation or damages from those who are directly responsible.

22. In these circumstances, I do not find a case has been made out to create an additional exception to the principle enunciated in the Hill case as adopted and applied in PNG by the Supreme Court decision in Rupundi Maku v. Steven Maliwolo and the other National Court cases. Accordingly, I find that the police and hence the State did not owe a duty of care to Nukunts and that, that duty was breached. Further, I find that Nukunts’ pleadings and submissions fail to disclose a cause of action known to law in order to succeed against the State. Hence, I find this claim fails to disclose a cause of action that is known to law. Hence, it ought to be dismissed to avoid further unnecessary costs to the parties and the Court.

23. Based on the foregoing and the agreement of the parties, I order a dismissal of this proceeding for a failure to disclose a cause of action that is known to law. Costs will follow the event to be taxed, if not agreed against the Plaintiff.
______________________________________________________________
Mawa Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Defendants

^[1] See for a case on point: Abel Tomba v. The Independent State of Papua New Guinea (1997) SC518.
^[2] For a case on point see Andrew Tony v. The State (2008) N3477.
^[3] See for an example of a case on point: Ekip Pade v. Albert Nangas (2018) N7073.
^[4] An example of a case on point is, Seresa Kakipa v. Kai Nikilli (2002) N5689