Seribu Daya (PNG) Limited v Tropicana Limited (2020) N8261

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 03 April 2020
• Court: National Court
• Citation: (2020) N8261
• Docket Number: WS NO.224 OF 2014
• Year: 2020
• Judgement Number: N8261

Full Title: WS NO.224 OF 2014; Seribu Daya (PNG) Limited v Tropicana Limited (2020) N8261

National Court: David, J

Judgment Delivered: 3 April 2020

N8261

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO.224 OF 2014

BETWEEN:

SERIBU DAYA (PNG) LIMITED

Plaintiff

AND:

TROPICANA LIMITED

Defendant

Waigani: David, J

2020: 3rd April

TORT – claim in negligence – plaintiff’s building burnt down – fire originated from a building on defendant’s property – defendant’s property leased out to third party – no proof of ownership of property by plaintiff – no application of strict liability - rule in Ryland v Fletcher – principles of negligence liability apply – application of nonfeasance rule – fire caused by electrical arcing therefore accidental – no fault on the part of the defendant - claim dismissed.

Cases Cited:

Papua New Guinea Cases

Board of Management, Holy Spirit Primary School v Moses Sariki (2013) N5446

Burns Philp (NG) Ltd v Maxine George (No 2) (1983) SC259

Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562

Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853

Damien Kora v Carol Pio (2018) N7434

Francis Wandaki v Wini Henao (2009) N3676

Galem Falide v Registrar of Titles and The State (2012) N4775

Kembo Tirima v Angau Memorial Hospital Board and The State (2005) N2779

Kolta Development Pty Ltd v PNG Defence Force [1997] PNGLR 585

Marshall Lagoon Investment Company Pty Ltd v Ding Company Ltd (2008) N3650

Micky Akai v John Stanley Reeves (2014) SC1393

Papua New Guinea Banking Corporation v Jeff Tole (2002) SC 694

Reference by the East Sepik Provincial Executive (2011) SC1154

Shaw v Commonwealth of Australia [1963] PNGLR 119

Sir Arnold Amet v Peter Charles Yama (2010) SC1064

Supreme Court Reference No 4 of 1980 [1982] PNGLR 65

The Government of Papua New Guinea v Elizabeth Lauwasi Uguna Moini (1978) PNGLR 184

Tony David Raim v Simon Korua (2010) SC1062

Wong v Lam (1980) N268

Overseas Cases:

Ryland v Fletcher (1868) LR 3 HL 330

Donoghue v Stevenson (1932) AC 562

Burnie Port Authority v. General Jones Pty Ltd [1994] 179 CLR 520

Caparo Industries PLC v Dickman (1990) 2AC 605

Treatises Cited:

JD Heydon, Cross on Evidence, Butterworths, Fifth Edition, 1996

Paul Vout, Torts, The Laws of Australia, Second Edition, 2007

Counsel:

George Kaore, for the Plaintiff

Belinda Sinen, for the Defendant

JUDGMENT

3rd April, 2020

1. DAVID, J: INTRODUCTION: The plaintiff, Seribu Daya (PNG) Limited’s action against the defendant, Tropicana Limited is in the tort of negligence. These proceedings were commenced by writ of summons filed on 20 March 2014 which was later amended by amended writ of summons filed on 7 November 2016. The plaintiff’s claim is pleaded in the amended statement of claim endorsed on the amended writ.

2. The plaintiff claims, among others, damages for loss of building in the sum of K2.5 million, damages for loss of company assets in the sum of K1 million and damages for loss of business to be assessed due to a fire which occurred in 2009. The fire originated from one of the buildings used as a warehouse (Building A) on the defendant’s property, Allotment 3 Section 55, Gordon’s, Port Moresby situated along Ume Street (the Property) which was leased out to Classic Trading Limited, a company involved in the sale of highly inflammable liquids and substances such as turpentine, oil lubricants and dangerous chemicals which were prone to catch fire easily. The fire spread to another building used as a residence (Building B) on the Property and then across to the plaintiff’s neighbouring property, Allotment 2 Section 55 Gordon’s (Adjacent Property) burning down its two-level building consisting of office spaces on the ground level and rented units on the top floor (Building C).

3. In its averments, the plaintiff claims that due to the close proximity of the parties’ properties, the defendant owed a duty of care to the plaintiff not to cause any harm to it which would result in unnecessary loss and damage especially when a tenant of the defendant’s was selling highly inflammable liquids and substances. The particulars of the defendant’s duty of care allegedly breached were:

1. It failed to build a brick wall separating the properties.

2. It failed to install fire alarms to warn the neighbourhood and tenants promptly of presence of fire.

3. It failed to deploy security personnel to work after hours who could offer assistance in case of fire.

4. It failed to control the activity of its tenant who was selling and storing dangerous chemicals in Building A.

5. It failed to install sufficient extinguishers in Building A and Building B to stop the fire from spreading.

6. It failed to install temporary barricades for use by tenants to block off fire from spreading.

4. The defendant denies the claim. Its defence is pleaded in the further amended defence filed on 6 September 2018. The defendant essentially avers that it is not liable in negligence as; it was not in possession or had supervisory control of the Property hence did not owe any duty of care to the plaintiff; if it owed a duty of care to the plaintiff, which was not admitted, that duty of care did not extend to that which was claimed by the plaintiff; the fire began accidentally as a result of electrical arcing notwithstanding all reasonable care taken by the defendant; and the fire was not caused by the negligence of the defendant.

EVIDENCE

5. Trial was conducted by affidavits. All affidavits for the parties were admitted into evidence without objection. No cross-examination was conducted by either party.

6. The plaintiff’s evidence comprises the:

1. Affidavit of Roger Hwong sworn on 18 April 2018 and filed on 19 April 2018 (Exhibit A); and

2. Affidavit of Jacob Kairi sworn on 18 April 2018 and filed on 19 April 2018 (Exhibit B).

7. The defendant’s evidence comprises the.

1. Affidavit of Didi Carlos sworn and filed on 4 March 2015 (Exhibit 1);

2. Affidavit of Chief Superintendent Kamea Mea sworn on 3 August 2015 and filed on 4 August 2015 (Exhibit 2); and

3. Affidavit of Didi Carlos sworn on 30 August 2018 and filed on 4 September 2018 (Exhibit 3);

SUMMARY OF PLAINTIFF’S EVIDENCE

Roger Hwong

8. He is the Managing Director of the plaintiff company. The plaintiff is a company duly incorporated under the Companies Act.

9. The plaintiff is the proprietor of the Adjacent Property. It owned the duplex building erected on the Adjacent Property.

10. Two buildings were erected on the Property. The parties’ properties were separated by a brick wall that was built by the plaintiff just enough to protect the office space on the ground level from flooding.

11. From the Fire Investigation Report and accounts of bystanders, on 29 April 2009, fire started from Building A, it spread to Building B and then spread to the Adjacent Property resulting in the burning down of Building C and loss of personal effects including three registered firearms. Annexure A to Exhibit A is an inventory of properties and valuables lost valued at K2,571,710.00 with interest at 8% accruing.

12. Building C accommodated the plaintiff’s Head Office, a transit lodge for the plaintiff’s associated companies that were involved in logging and lodging for clients and rented rooms for staff on the top floor.

13. Annexures B1, B2 and B3 to Exhibit A are copies of tenancy agreements with three different tenants. These agreements are not stamped.

14. Annexure C to Exhibit A is a copy of a Police Investigation Report dated 20 May 2009 authored by Detective First Constable Nicholas Kisok of CID General Squad, Boroko Police Station. His report was compiled following an investigation he conducted after a Crime Report No.149/09 was lodged by one Kok Boon Shin of the plaintiff company on 4 May 2009. His investigation included conducting interviews with eye witnesses and tenants residing in the Property and the Adjacent Property and obtaining their statements. Eye witnesses said on 29 April 2009 between 4:15 am and 5:00 am, fire originated from a building on the Property and spread to the Adjacent Property completely burning down the Building C with its contents. Two vehicles were also burnt. Prior to the fire, the Adjacent Property accommodated the plaintiff’s Head Office, a transit centre for associated companies engaging in logging activities, transit lodge and office spaces that were rented out. First Constable Kisok said that at the time of making his report, the cause of fire had not been established.

15. There were six office spaces on the bottom floor that were rented out to various tenants at K3,000.00 per month.

16. The defendant failed to install fire safety equipment in the buildings including fire alarms and fire sprinklers to prevent fire and to warn neighbours of the presence of fire.

17. The fire that started from the warehouse, Building A could be considered as an accident, but the fire from Building B was not and it was due to the defendant’s tenant’s failure to contain the fire from spreading to the Adjacent Property.

18. The Fire Investigation...