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Luai v Tela [2021] PGNC 95; N8743 (2 February 2021)

N8743

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 852 OF 2011

BETWEEN:
WILLY LUAI
Plaintiff

AND:
ROBERT TELA
(Enga Provincial Works Manager)
First Defendant

AND:
THE SECRETARY, DEPARTMENT OF WORKS
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Wabag & Waigani: Makail J
2020: 19^th & 21^st October & 2021: 2^nd February

TORT –Negligence – Duty of care – Breach of duty of care – Duty to prevent access water from flowing onto land – Destruction of food crops and general vegetation by over-flow of water – Proof of – No expert report on cause of access water – Proof of cause not established – Liability not established- Proceeding dismissed

Cases Cited:

Pen Rumints v. The State & Western Highlands Provincial Government [1993] PNGLR 94

Counsel:

Plaintiff in person
Ms. N. Balen, for the Defendants

JUDGMENT

2^nd February, 2021

1. MAKAIL J: This is a negligence action against the Defendants for damages arising out of damage caused to the Plaintiff’s customary land at Tambai waterway along the Warumanda- Okuk Highway of Enga Province on an unspecified date.

2. The first issue is liability. If liability is established, the next issue is damages. The Plaintiff alleged that by an agreement the Defendants engaged a third party to construct a bridge in the form of a culvert over a waterway on his customary land. The Defendants owed a duty of care to prevent excess water from flowing onto his customary land. The Defendants breached the duty when:

(a) They failed to divert the flow of water away from the customary land.

(b) Failed to build a wall to prevent water from flowing onto the customary land.

3. The Defendants denied the allegations and contended that it was the third party who was responsible for the loss suffered by the Plaintiff, if any.

4. In any case, the construction of the culvert did not cause the excess water on the Plaintiff’s land. Alternatively, the Plaintiff was paid a sum of K7,386.00 for loss of property (food-crops and general vegetation) and they owe no money to him.

5. Finally, they alleged that the Plaintiff did not give the requisite notice of claim under Section 5 of the Claims By and Against the State Act, 1996. However, at trial, the Defendants did not pursue it. It will not be considered.

6. To prove negligence, it must be established that first, the Defendants owed a duty of care to the Plaintiff, second they breached it and third, the Plaintiff suffered loss and damage. The Defendants do not contest the element of owing a duty of care to the Plaintiff. It is therefore, established. However, they contest the element of breach and element of loss and damage. The onus of proof is on the Plaintiff to establish these elements.

7. The evidence of the Plaintiff and his brother James Luai and uncle Tamus Luai do not establish the cause of the excess of water onto their land. There must be an expert witness to provide that evidence.

8. All the Plaintiff and his witnesses said is that, previously there was a small cement culvert placed across the road for water to flow through to the other side. When the road construction and sealing occurred, it was replaced with a huge iron-culvert to cater for the speed and volume of rain-water.

9. It was built purposely to direct the flow of rain-water within the area when permanent drainage was also built along this part of the highway. As more water was redirected through the culvert and exited from the other end, it overflowed onto his customary land downstream, causing soil erosion, landslide and flooding and destruction of food-crops and general vegetation.

10. Added to that, the Defendants failed to build a drainage system to stop the over-flow of rain-water with stone-baskets and concrete water path.

11. What the Plaintiff has deposed appears to suggest that prior to the replacement of the smaller sized cement culvert, there was no over-flow of water onto his land. After it was replaced with a bigger sized one, there was over-flow of water onto his land. This is his explanation for the cause of flooding of his land.

12. The Plaintiff further deposed that a consultant engaged by the Defendants had done an independent assessment of the cause of over-flow of water and recommended that the Defendants compensate him for the damage at 50% of his claim at K25,000.00.

13. The recommendation was supported by the then acting Provincial Works Manager for Enga Province Mr David Wereh as noted in his letter dated 10^th April 2007: see Affidavit of Plaintiff sworn on 14^th September 2020 and filed 17^th September 2020 (exhibit “P1”).

14. However, there is no evidence of an independent assessment report tendered to support the Plaintiff’s assertion that the replacement of the smaller sized cement culvert with a bigger sized one was the cause of over-flow of water into his land. Even the Plaintiff’s assertion that a consultant was engaged to assess the cause of the over-flow of water is uncorroborated and must be rejected.

15. Furthermore, the letter by Mr Wereh dated 10^th April 2007 is uncorroborated. Mr Wereh was not called by the Plaintiff to verify it. It is critical to verify it because there is no admission by the Defendants that Mr Wereh wrote this letter or were aware of its existence.

16. The Defendants’ evidence is straight forward and logical and will be accepted as explanation for the excess water on the Plaintiff’s land. According to Kerry Kefu the Project Engineer of Enga Provincial Works office, a 900 cubic mm culvert was put in place of a smaller sized culvert to contain surface run-offs and storm water during rainy seasons and flood hours. There is no evidence of blockages at in-let and out-let to cause over-flow into food gardens and residential areas.

17. Even during construction and installation no alteration or diversion was made either upstream or downstream to change the course of flow into customary land and property areas to cause damage as alleged by the Plaintiff.

18. It must be found that destruction of the Plaintiff’s food-crops and general vegetation, if any, is not a result of the bigger sized culvert but if natural cause due to the land being water-logged and water flowing from a higher gradient to a lower one. This possibility has not been ruled out by the Plaintiff.

19. As the Court observed in Pen Rumints v. The State & Western Highlands Provincial Government [1993] PNGLR 94:

“(1) The law has always recognised that, in the case of water coming onto the lower land from land high up, consideration must be given to what is the normal flow and normal expectations. A flood of water from higher up, cannot lead to any liability. (2) This case is not a situation where a defendant has introduced onto his land something which has escaped and done damage, such as an artificial obstruction like a dam which breaks and causes an artificial flood. It is a case where the State exercised its natural right to drain the land for productive farming and to tidy up the flow of a river by digging better drains and ensuring the free flow of the river. Where the water would naturally flow down the rivers. There is nothing artificial or unusual about the draining of a swamp or repairing the banks of a river to ensure a safer flow”.

20. The evidence of Andrew Waralyo, the Accountant of Enga Provincial Works office confirmed that the Plaintiff was paid a sum of K7,386.00 by way of a cheque dated 28^th August 2008 for loss of improvement. The Plaintiff also signed a deed of release and undertook not to lay any claim in future against the Defendants.

21. However, a copy of the deed of release was not tendered and it is unclear if it included a claim for damage caused by the overflow of water onto the Plaintiff’s land. In the absence of the deed of release, it must be found that the claim for damage caused by the overflow of water is not included and does not operate as a bar to the Plaintiff’s cause of action in this proceeding.

22. That said, the Plaintiff’s claim must fail because the evidence is insufficient to establish that the actions and/or omissions of the Defendants in replacing the smaller sized culvert with a bigger one caused water to overflow into the Plaintiff’s land.

23. Liability is not established. It follows that it is not necessary to address the issue of damages. The order is, the proceeding is dismissed and the Plaintiff shall pay the Defendants’ costs of the proceeding, to be taxed, if not agreed.

Judgment and orders accordingly.
_______________________________________________________________
Solicitor General: Lawyers for the Defendants