Rupundi Maku for Himself and on behalf of the Estate of William Maku and Issac Pik and Others (whose names are annexed to the Schedule hereto) v Steven Maliwolo - Rural Zone Commander and Winnie Henao - Provincial Police Commander and Sam Inguba - Commissioner for Police and the Independent State of Papua New Guinea (2011) SC1171

• Jurisdiction: Papua New Guinea
• Judge: Lenalia, Makail & Kariko, JJ
• Judgment Date: 02 March 2011
• Court: Supreme Court
• Citation: (2011) SC1171
• Docket Number: SCA NO 177 OF 2010
• Year: 2011
• Judgement Number: SC1171

Full Title: SCA NO 177 OF 2010; Rupundi Maku for Himself and on behalf of the Estate of William Maku and Issac Pik and Others (whose names are annexed to the Schedule hereto) v Steven Maliwolo - Rural Zone Commander and Winnie Henao - Provincial Police Commander and Sam Inguba - Commissioner for Police and the Independent State of Papua New Guinea (2011) SC1171

Supreme Court: Lenalia, Makail & Kariko, JJ

Judgment Delivered: 2 March 2011

SC1171

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 177 OF 2010

BETWEEN

RUPUNDI MAKU FOR HIMSELF AND ON BEHALF OF THE ESTATE OF WILLIAM MAKU AND ISSAC PIK AND OTHERS (WHOSE NAMES ARE ANNEXED TO THE SCHEDULE HERETO)

Appellants

AND

STEVEN MALIWOLO - RURAL ZONE COMMANDER

First Respondent

AND

WINNIE HENAO - PROVINCIAL POLICE COMMANDER

Second Respondent

AND

SAM INGUBA - COMMISSIONER FOR POLICE

Third Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

(Fourth Respondent

Waigani: Lenalia, Makail & Kariko, JJ

2011: 28th October & 2012: 02nd March

TORTS - Negligence - Alleged failure or inaction by police to attend and stop tribal fight - Tribal fight between two enemy tribes - Tribal fight resulted in destruction and looting of property by enemy tribe.

DAMAGES - Claim for general damages, special damages and exemplary damages - Loss of property - Entry of default judgment by consent - Assessment of damages.

PRACTICE & PROCEDURE - Dismissal of proceeding following trial on assessment of damages - Cause of action - Alleged negligence - Elements of - Duty of care - Existence of - Breach of duty of care - Failure to establish a cause of action - Effect of - No damages may be awarded - National Court Rules, 1983 - O 12, r 40(1)(a).

Facts

The appellants are a group of villagers from Kum village in the Mul District of Western Highlands Province. They commenced a class action against the respondents under section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297 for alleged negligent acts or omissions by the members of the police force. They alleged the first, second and third respondents failed to attend and stop a tribal fight between them and an enemy tribe. As a result, the enemy tribe destroyed and looted property of various descriptions, food gardens and livestock, and killed the principal appellant’s son and nephew.

Default judgment was entered by consent and the matter went for trial on assessment of damages. Trial was by affidavits and parties elected not to cross-examined deponents of the affidavits. The National Court dismissed the action. It held first, the appellants failed to prove damages because their evidence was hearsay and not credible. Secondly, the appellants failed to establish a reasonable cause of action known to law for damages to be awarded.

Held:

1. As a general rule, a default judgment entered by consent or otherwise determines the issue of liability and the only issue for determination by the Court is assessment of damages. Therefore, it is not open to the Court to revisit or relook at the issue of liability. However, there is an exception in cases where the pleadings do not disclose a cause of action in law. William Mel -v- Coleman Pakalia, The Police & The State (2005) SC790; Titus Wambun -v- The Commissioner of Police & The State (2009) N3787 and Keith Reith -v- Murray Hallam and Allcad Pty Ltd (1995) N1337 referred to.

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.

4. In the present case, the destruction and looting of the appellants’ property was done by the enemy tribe. The police were not the ones who destroyed and looted the appellants’ property. The allegation that the police owed a duty of care to the appellants to attend and stop the tribal fight, does not exist in law because police owe no duty of care to the public at large and it is against public policy.

5. 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 are not liable for damages caused by the enemy tribe.

6. The learned trial judge did not err when he revisited the issue of liability following entry of default judgment as there was an issue in relation to the cause of action and correctly found that there was no cause of action for which damages can be awarded.

7. The appeal was accordingly, dismissed with costs.

Cases cited:

Papua New Guinea cases

Coecon Limited -v- National Fisheries Authority & The State (2002) N2182

William Mel -v- Coleman Pakalia, The Police & The State (2005) SC790

Keith Reith -v- Murray Hallam and Allcad Pty Ltd (1995) N1337

Simon Awaria & 20 Ors -v- Sam Inguba as Commissioner of Police, Electoral Commission & The State (2006) N3044

Catholic Diocese of Wabag Board of Trustees -v- Enga Provincial Government, Gari Baki Commissioner of Police & The State: WS No 1416 of 2008 (Unnumbered & Unreported Judgment of 24th October 2011)

Overseas cases

Tringali -v- Stewardson Stubbs & Collett Ltd [1965] NSWR 418

Cox -v- Journeaux (No. 2) (1935) 52 CLR 713

Donoghue -v- Stevenson [1932] AC 562

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

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

Tiara Enterprises Ltd -v- Attorney General [2009] FJHC 155

Wargtaj Seafood Products Ltd -v- Minister of Home Affairs [2000] FJHC 213

Tio -v- Beengo [2003] KIHC 89

Jagroop -v- Sokai & Tonga [2001] TOCA 10

Knightly -v- Johns [1982] 1 All ER 851

Rigby -v- Chief Constable of Northamptonshire [1985] 2 All ER 985

R -v- Metropolitan Police Commander, ex parte Blackburn [1968] 1 All ER 763

R -v- Chief Constable of Devon and Cornwall Constabulary, ex parte Central Electrical Generating Board [1981] 3 All ER 826

Caparo Industries PLC -v- Dickman [1990] 2 AC 605

Sutradhu -v- Natural Environment Research Council [2006] 4 All ER 490

Smith -v- Chief Constable of Sussex Police (2008) EWCA CIV 39

Legislations

Wrongs (Miscellaneous Provisions) Act, Ch 297

National Court Rules, 1983

Counsel

Mr C Narokobi with Mr S Tanei, for Appellants

Mr L Kandi, for Respondents

JUDGMENT

02nd March, 2012

1. BY THE COURT: This is an appeal against the decision of the National Court of 02nd November 2010 which dismissed the appellants’ action for damages. The National Court held first, the appellants failed to prove their damages and secondly, failed to establish a cause of action known to law for damages to be awarded.

Brief Facts

2. The appellants are a group of villagers from Kum village in the Mul District of the Western Highlands Province. They commenced as class action against the respondents under section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297 for alleged negligent acts and/or omissions by the members of the police force. They alleged the first, second and third respondents failed to attend and stop a tribal fight between them and an enemy tribe. As a result, the enemy tribe destroyed and looted property of various description, garden crops and livestock, and killed the principal appellant’s son and nephew.

3. Default judgment was entered by consent and the matter went before the National Court for trial on assessment of damages. The trial was conducted by affidavits and parties elected not to cross-examine deponents of the affidavits. The National Court dismissed the action holding that the appellants:

(a) failed to establish a cause of action known to law for damages to be awarded; and

(b) failed to prove their damages on the balance of probabilities because their evidence was hearsay and not credible.

Grounds of Appeal

4. There are 13 grounds of appeal. They are set out in full below:

“3.1 His Honour erred in law and fact in not making findings of assessment of Damages pursuant to evidence before him in the Affidavits of Jackson R. Yaku and Rupundi Maku and all other evidence as Judgment had been entered in favour of the Plaintiff.

3.2 His Honour erred in law and fact in failing to exercise His Judicial Powers pursuant to Order 10 Rule 19 of the National Court Rules to assess damages given in principles of Assessment in Coecon -v- NFA of PNG, law in Gaya Namgui -v- Administration of Territory of PNG, Kopung Brothers Business Group -v-...