Catholic Diocese Wabag Board of Trustees v Enga Provincial Government and Tedy Tei, Former Enga Provincial Police Commissioner and Gari Baki, Commissioner of Police and The Independent State of Papua New Guinea (2011) N4562

• Jurisdiction: Papua New Guinea
• Judge: Thompson AJ
• Judgment Date: 24 October 2011
• Court: National Court
• Citation: (2011) N4562
• Docket Number: WS 1416 of 2008
• Year: 2011
• Judgement Number: N4562

Full Title: WS 1416 of 2008; Catholic Diocese Wabag Board of Trustees v Enga Provincial Government and Tedy Tei, Former Enga Provincial Police Commissioner and Gari Baki, Commissioner of Police and The Independent State of Papua New Guinea (2011) N4562

National Court: Thompson, AJ

Judgment Delivered: 24 October 2011

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...