Kolta Development Pty Ltd, Great Happiness Seafood Pty Limited and Patrick K Kolta v Papua New Guinea Defence Force and The Independent State of Papua New Guinea (1996) N1470

• Jurisdiction: Papua New Guinea
• Judge: Salika J
• Judgment Date: 05 September 1996
• Court: National Court
• Citation: [1997] PNGLR 585
• Year: 1997
• Judgement Number: N1470

Full Title: Kolta Development Pty Ltd, Great Happiness Seafood Pty Limited and Patrick K Kolta v Papua New Guinea Defence Force and The Independent State of Papua New Guinea (1996) N1470

National Court: Salika J

Judgment Delivered: 5 September 1996

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 411 OF 1993

KOLTA DEVELOPMENT PTY LTD

And:

GREAT HAPPINESS SEAFOOD PTY LIMITED

And:

PATRICK K KOLTA

v

PNG DEFENCE FORCE

And:

THE STATE

Waigani

Salika J

5 September 1996

JUDGMENT

CIVIL SUIT — Claim for Damages — claim under customary laws of Papua New Guinea — Evidence of custom from two provinces only — Evidence of custom must be from at least the majority of the provinces.

DEFENCE FORCE AND THE STATE ARE NOT "INDIGENEOUS INHABITANTS OF THE COUNTRY" — Custom does not apply to the defendants in this case.

COMMON LAW — alternative claim for damages under Common Law negligence — whether defendants owe duty of care to the plaintiffs — Defendants owed no duty of care to the plaintiffs.

Counsel:

J Nonggorr for the Plaintiff

F Damem for the Defendants

5 September 1996

SALIKA J: The Plaintiffs by writ of summons have filed a claim for damages against the defendants. It was not contested that the plaintiffs are companies incorporated under the Companies Act.

HISTORY

The plaintiff was the lessee of the premises known as "The Germania Club" on Section 136 Allotment 9 Waigani along the Waigani Drive. It carried on business on the premises in the form of:

(a) a restaurant;

(b) a restaurant and beer garden;

(c) a club member bar.

The second plaintiff was the sublessee of part of the premises and operated a Chinese Restaurant. The Third plaintiff was the owner and a shareholder of the First and the Second plaintiff.

The plaintiffs claim that on the morning of the 3rd April 1993 between 5.00am and 7.00am the Germania Club was burnt to ashes. It is not disputed that the building was burnt on that morning. The plaintiffs claim that the building was set on fire by soldiers of the Papua New Guinea Defence Force. The defendants deny this allegation. The primary issue then is what was the cause of the fire that destroyed the building.

The evidence is that there was a fight in the club between one Richard Naringa and a group of soldiers. The fight was stopped and everyone was sent home. A group of Soldiers were walking along the Waigani Drive towards Boroko when one of the soldiers was killed in another fight with Naringa and his men along the Waigani Drive. News of the soldiers death spread to Murray Barracks and Taurama Barracks. A bus was allegedly used to transport soldiers to the Germania club where the soldiers set fire to the building.

The defendants have denied generally that soldiers set the building on fire.

The question is who was the cause of the fire that gutted the Germania club? The evidence of Wama Damba, Makam Kajona, Inspector Gabriel Yatapya and Brian Komane suggests that soldiers of the PNG Defence Force caused the fire although there is no real direct evidence of any soldier in particular setting the building on fire. There is also evidence from the defendants own witnesses Captain Monakakalau, Sergeant Gainabae and Corporal Meve that soldiers were taken in a bus to the Germania club. Corporal Meve drove the bus as admitted by him . Having considered all the evidence, direct and circumstantial as to how the fire might have started I am satisfied on the balance of probabilities that the soldiers of the PNG Defence Force set the building on fire in retaliation for the death of one of their comrades Private James Adam.

This action is founded on custom under the customary laws of Papua New Guinea and Common Law negligence. Part of the plaintiffs statement of claim alleges that:

11. The actions of the employees, servants or agents of the Defendants constituted a customary wrong in the customary laws of Papua New Guinea.

Particulars

(a) It is a wrong in the customs of Papua New Guinea to cause damage to persons and property of another.

(b) The custom stated in (a) is common throughout the country.

(c) Where damage is caused by one person, the individual wrongdoer as well as the other members of the person's social or political group are responsible for the individuals actions.

(d) The custom stated in (c) is common throughout the country.

(e) The individual and his or her group are liable to the injured person for the damage and loss sustained.

(f) The custom stated in (e) is common throughout the country.

(g) The liability is settled by the payment of compensation.

(h) The custom stated in (f) is common throughout the country.

12. In the alternative, the losses suffered by the Plaintiffs were a result of the negligence of the Defendants.

Particulars

(a) The Defendants owed a duty to the Plaintiffs to exercise due care and control of their employees, servants or agents which duty they failed to discharge.

(b) The Defendants owed a duty to the Plaintiffs to exercise reasonable care and control in the control and use of their equipment including uniforms, firearms and motor vehicles which duty they failed to discharge.

(c) The Defendants owed a duty to the Plaintiffs to properly discipline and control their employees, servants or agents which duty they failed to discharge.

And the Plaintiffs claim:

1. Compensation for the destruction and loss of their business enterprises and personal and mental suffering.

2. Damages in respect of destruction and loss of their business enterprises and personal and mental suffering.

3. Interest pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act.

4. Such further or other relief as the Court deems fit.

I have already found that the Papua New Guinea Defence Force soldiers set the building on fire although no one particular soldier can be identified. Corporal Meve could be said to have aided and abetted the other Soldiers depending on whether or not I accept his evidence. While no one has been individually identified I am satisfied on the evidence that those who were present were aiding and abetting each other in setting the building on fire and that their collective presence and participation encouraged each other to commit the acts of setting the building ablaze.

LIABILITY OF THE PNG DEFENCE FORCE AND THE STATE IN COMMON LAW

The Papua New Guinea Defence Force is a State Service established under s. 188 (1) (c) of the Constitution. Its superintendence and control is subject to the National Executive Council through the Minister for Defence. The commander of the Defence Force is the principal military adviser to the Minister for Defence. (See s. 201 of the Constitution) The functions of the Defence Force are as spelt out under s. 202 of the Constitution. By virtue of s. 203 of the Constitution the Defence Force and the members of the Defence Force are subject to all the laws in the same way as other bodies and agencies except to such an extent as is required by the nature of the force as a disciplined force and its particular functions, duties and responsibilities. S. 208 of the Constitution provides that because of the special nature of disciplined forces and their operations it is a primary duty of their members to obey lawful orders. In this instance members of the Defence Force are under a duty to obey lawful orders.

If members of the Defence Force were involved in the destruction of the Germania club then the Papua New Guinea Defence Force and the State may be vicariously liable for the acts of the members of the Force. I have found that members of the Defence Force set the Germania club on fire and that as a result of their actions the building was destroyed by fire. The general principle of law is that a master is liable for the negligence of his servant if committed in the course of his employment, but is not liable for negligence committed outside the scope of his employment. (See Charlesworth on Negligence at Page 922.) The master is even liable for acts which are not authorised provided they are so connected with the acts which he has authorised that they may be regarded as modes of doing those acts. Where an act is said to be an independent act, not connected with the authorised act, in such a case the servant will be said to have gone outside the course of his employment.

The Wrongs (Miscellaneous Provisions) Act Chapter 297 establishes the basis under which the State may be sued for vicarious liability. Section 1 (I) of the Act says that the State is liable for the torts committed by its servants and agents. As the Defence Force is a State service, members of the Defence Force would in my view be servants and agents of the State. I follow the ruling of the Court in David Wari Kofowei v The State (1983) PNGLR 449 later confirmed by the Supreme Court after an appeal in The State v David Kofewei (1987) PNGLR 5. In that case members of the police force were held to be servants and agents of the State. The same in my view applies to members of the...