SC2755
PAPUA NEW GUINEA
[ IN THE SUPREME COURT OF JUSTICE]

SCA No.  103 of 2023 (IECMS)

BETWEEN:

SAMUEL RAPURA
Appellant

AND:
DAVID LINGEN
First Respondent
 
AND:
GARI BAKI, IN HIS CAPACITY AS THE COMMISSIONER OF ROYAL PAPUA NEW GUINEA CONSTABULARY
Second Respondent   

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent
 
Waigani: Frank J, Dingake J & Carey J
2025: 28th July 

SUPREME COURT – Appeal against judgment– Whether the Police owe a duty of care – Whether trial judge erred in fact and law.

Facts

The Appellant appealed against part of the decision of the National Court on the basis that the trial judge erred in fact and law thereby creating an identifiable error which should necessitate the appeal being allowed. The Respondents submitted that the trial Judge did not err in law or fact in relation to the matter and appropriately arrived at the decision. 

Held:
1.	 The Police do not owe a duty of care to the general public. Rupundi Maku & Others v Steven Maliwolo & State (2012) SC1171 followed.
2.	The appeal is dismissed in its entirety.
3.	 The Appellant shall pay the Respondent’s costs of and incidental to this appeal, to be taxed if not agreed.

Cases Cited
The following cases are cited in the judgment.
Curtain Bros (PNG) Limited and Curtain Bros (Qld) Pty Limited v University of Papua New Guinea (2005) SC788
Issac Minicus v Telikom (PNG) Ltd [2017] SC1652
Rupundi Maku & Others v Steven Maliwolo & State (2012) SC1171

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

Counsel:
Mr. Louis Yandeken, for the Appellant
Ms. Priscilla T Ohuma, for the Respondents

28th July 2025

JUDGMENT

1.	BY THE COURT: This is an appeal against part of the decision of the National Court made on 12th June 2023 styled as WS No. 999 of 2017. 

2.	There were initially six appeal grounds, however the appellant abandoned two and this court is to consider four appeal grounds.

3.	They are summarised as follows:

i.	Whether the trial judge erred in finding that the First Respondent owed no duty of care to the Appellant for taking his PMV Bus into police custody and impounding it at the Goroka Police Station for Criminal Investigation.

ii.	Whether the First Respondent’s conduct in detaining the PMV bus from 28th September 2014 until 15th October 2015 was justified because it was investigating the commission of an alleged offence.

iii.	If not, then whether the assessment for the loss of business earnings from operation of the PMV bus should run from the 28th September 2014 to the 12th July 2016.

iv.	If yes, then whether this Court should assess and make an award for loss of business earnings from 28th September 2014 to 12th July 2016. 

BACKGROUND

4.	A man was murdered inside the Appellant’s PMV Bus while it was travelling from Mt. Hagen to Lae on 12th September 2014. 

5.	An initial investigation was done in Lae by the Police and then the bus was released to the Appellant. 

6.	On 28th September 2014 the bus was impounded by the First Respondent at Goroka Police Station.

7.	The driver and crew were arrested and charged with the unlawful killing and pleaded guilty and sentenced, 24th December 2015 and 13th April 2016, respectively.

8.	While the bus was in custody of the police parts from the bus were stolen.

9.	The bus was released on 12th July 2016. 

10.	The Appellant sued the Respondents alleging a duty of care was owed to him by the Respondents for loss of business earnings and damages caused as a result of breach of duty of care. 

DETERMINATION

11.	The Trial judge correctly determined that as a matter of public policy the First Respondent owed no duty of care for impounding and detaining the PMV bus to investigate the commission of an alleged offence. 

12.	In Rupundi Maku & Others v Steven Maliwolo & State (2012) SC 1171 it was held that,  
“2. At common law, the police owe no duty of care to the public at large. Further, 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. Hill -v- Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53 followed.
3. The common law is consistent with section 197 of the Constitution where 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. 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.”

13.	 None of the Common law exceptions which are based on the United Kingdom persuasive case law apply in this case. 

14.	As such we find no identifiable error and this ground of appeal fails. 

15.	The question of whether the First Respondent’s conduct in detaining the PMV Bus from 28th September 2014 until 15th October 2015 was justifiable in view of the fact that it was a crime scene. 

16.	Further, the investigation process would have been ongoing and this would have been reasonable to conclude that detaining the bus for such purpose was lawful, administratively correct and reasonably justifiable. 

17.	The Appellant fails to persuade this court that there is no identifiable error in the reasoning of the trial on this ground of appeal.  

18.	In Curtain Bros (PNG) Limited and Curtain Bros (Qld) Pty Limited v University of Papua New Guinea (2005) SC788, it states,

“The appellate Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of the discretion is clearly wrong. A discretionary judgement may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is “unreasonable or plainly unjust” and such that an error can be inferred…”

19.	In this Court’s view it would not have been unreasonable to detain the bus until the conclusion of the trial as the trial judge concluded and therefore this ground of appeal by the appellant fails. 

20.	As such, it follows that we need not consider whether the assessment for the loss of business earnings from operation of the PMV should have started from 28th September 2014 to the 12th July 2016 as we affirm that the trial Judge exercised his discretion without any identifiable error. 

21.	It also therefore follows that this Court will not assess or make an award for loss of business earnings that is inconsistent with what the trial judge has determined.

22.	In Issac Minicus v Telikom (PNG) Ltd [2017] SC1652 it states, 

“18. It is also trite law that an appeal may be allowed under two broad principles, first; where there is a clear or identifiable error by the trial judge, second; although there is no clear or identifiable error, the judgment is so unreasonable or plainly unjust on the facts that the appellate court may infer that a substantive error had occurred in the exercise of discretion by the trial judge.”

23.	All of the grounds of appeal in this case fail because there has been no identifiable error of the decision of the trial judge that would support allowing an appeal.

24.	Therefore, this appeal must fail.  

CONCLUSION 

25.	It must be noted that this proceeding emanated from actions of the driver and crew of the Appellant’s PMV bus. 

26.	The actions of the driver and crew resulted in the unlawful killing of a man on 12th September 2014.

27.	In some respects, it seems unconscionable that the Appellant would seek to claim damages above and beyond what has already been determined in the National Court on the basis that the driver and crew of the Appellant’s PMV Bus killed a man on this bus. 

28.	Notwithstanding the Appellant exercising his right to appeal, it is instructive that the sanctity of life takes second place to monetary benefits as this case is a testimony to. 

29.	The appeal fails on all grounds. 

ORDERS OF THE COURT:

1.	The appeal is dismissed in its entirety.

2.	The Appellant shall pay the Respondent’s costs of and incidental to this appeal, to be taxed if not agreed.

Ordered accordingly.
___________________________________________________________________________
Yandeken Lawyers: Lawyers for the Appellant
Office of the Solicitor General: Lawyers for the Respondents