Peter John Nukunts v Koni Manu and Bruce Amos and Geoffrey Vaki and The Independent State of Papua New Guinea (2019) N7785

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 02 April 2019
• Court: National Court
• Citation: (2019) N7785
• Docket Number: WS. NO.965 of 2015 (CC2)
• Year: 2019
• Judgement Number: N7785

Full Title: WS. NO.965 of 2015 (CC2); Peter John Nukunts v Koni Manu and Bruce Amos and Geoffrey Vaki and The Independent State of Papua New Guinea (2019) N7785

National Court: Kandakasi, J

Judgment Delivered: 2 April 2019

N7785

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO.965 of 2015 (CC2)

BETWEEN

PETER JOHN NUKUNTS

Plaintiff

AND

KONI MANU

First Defendant

AND

BRUCE AMOS

Second Defendant

AND

GEOFFREY VAKI

Third Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Kandakasi, DCJ.

2016: 10th May

2019: 02nd April

NEGLIGENCE – Police inaction - Failing to protect a citizen – Whether valid cause of action – Duties of the police – Whether Police owe a duty of care to a member of the public who lodges a complaint - Public policy considerations – Police immunity - Against public policy to hold Police owe a duty of care - Police generally have a duty to protect people and properties but not to a particular member of the public – Duty of all members of the public or society to recognise and uphold the rule of law – Duty of the public to report criminal activities and not to take matters into their own hands to avoid retaliatory action – Reporting after provoking retaliatory action a factor against Plaintiff – Police not contributing to attack in any manner or form – Plaintiff has cause of action against his primary offenders or tortfeasors – No case made out to create an except to the principle of police immunity - No cause of action disclosed – Claim dismissed – Section 197 of the Constitution.

Cases Cited:

Papua New Guinea Cases

Abel Tomba v. The Independent State of Papua New Guinea (1997) SC518

Andrew Tony v. The State (2008) N3477

Catholic Diocese of Wabag Board of Trustees v. Enga Provincial Government,

Ekip Pade v. Albert Nangas (2018) N7073

Gari Baki Commissioner of Police & The State (2011) N4562 (2011) N4562

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

Rupundi Maku v. Steven Maliwolo (2011) SC1171

Seresa Kakipa v. Kai Nikilli (2002) N5689

Overseas Cases

Crowley v. Commonwealth of Australia, Australia Capital Territory and Pitkethly [2011] ACTSC 89

Douglas Bamleett v. Inspector Shailesh Kumar & Ors [2011] FJHC 37

Hill v. Chief Constable of Yorkshire (1987) UKHL 12 (Hill): (1989) AC 53.

Kester Yee v. Commissioner of the Fiji Police Force [2011] FJHC 38

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

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

Tio v. Beengo [2003] KIHC 89 and Jagroop v. Sokai & Tonga [2001] TOCA 10

Counsel:

N. A. Mawa, for the Plaintiff

T. Mileng, for the Defendants

02nd April, 2019

1. KANDAKASI J: Peter John Nukunts (Nukunts) is suing the Defendants (the State) for damages for Police inaction and protection. The Court raised the issue of whether this was a valid cause of action or in other words, whether the Police owe a duty of care to a member of the public who lodges a complaint with the Police. The Court then asked the parties to assist with submissions on the issue and they did.

Issue for resolution

2. Hence the single issue for the Court to resolve is this:

Whether the Police owe a duty of care to a member of the public who lodges a complaint?

Relevant facts

3. The relevant factual background from which the issue arises is straight forward and is not contested. On 11th September 2014, around 8:00pm Nukunts tried to stop three drunkards who were also taking drugs on a street where he resided then. Nukunts managed to chase away one of the men but, the remaining two turned against him and they had a fight. The next day, 12th September 2014, Nukunts asked the two men he had fought with the previous night as to who was the third person, who he managed to chase away. That gave rise to another fight between them. Nukunts then reported the incidents to the Police at Waigani Police Station on the same day.

4. On 13th September 2014, a day after the reporting around 8:00am, the same persons with whom Nukunts had fought on the previous two days, came to his property with one of them jumping over the fence and into his premises. Nukunts had him chased out. The same group of men shouted threats against Nukunts, had his gate kicked and dared him to come out of his house. Thereafter it seems they left him and his property.

5. Later the same day, Nukunts sought the assistance of the Waigani Police Station. However, the police there did not take any action. Nukunts therefore went to the Boroko Police Station for help from a Sergeant Henry Map. He then returned home, whereupon the same group of men verbally abused him and provoked him. This eventually led to an argument and a fight. The whole street turned against Nukunts, broke and entered his property and stole most of his and his family’s properties.

Relevant Law on the Issue

6. At common law, the law is eloquently stated in the case of Hill v. Chief Constable of Yorkshire (1987) UKHL 12 (Hill): (1989) AC 53. There, a Peter Sutcliff committed 13 murders and 8 attempted murders between 1975 and 1980 in Yorkshire, United Kingdom. His last victim was Jacqueline Hill. Ms Hill’s mother claimed that the police should reasonably have inferred that the previous 20 offences were committed by the same person and that, if not caught, he would re-offend. She therefore argued that, the police owed a duty to use ‘their best endeavours and exercise all reasonable care and skill to apprehend the perpetrator of the crimes and so protect members who might otherwise be his future victims”. She went on to argue that, the police failed to properly collate information in their possession that would have identified Sutcliffe as a likely suspect, failed to give due weight to certain other information as well and accorded excessive weight to other information.

7. Lord Keith who delivered the leading judgment with whom all other justices agreed, summarised the key question as being whether:

(a) police officers in the course of carrying out their functions of controlling and keeping down the incidence of crime, owe a duty of care to individual members of the public who may suffer injury to their person or property through the activities of criminals; and

(b) if so, whether they are liable in damages for any breach of that duty to anyone who suffers injury or loss.

8. In upholding the decision of the Court of Appeal to strike out the claim as disclosing no cause of action, Lord Keith established the principle of immunity from negligence claims in the following terms:

“Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying out of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time, they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances, the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure, for example that a police officer negligently tripped and fell while pursuing a burglar - others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policing and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and...