Attorney-General v Tio [2003] KICA 10; Civil Appeal 04 of 2003 (16 August 2003)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Civil Appeal No. 4 of 2003

BETWEEN:

ATTORNEY GENERAL
IN RESPECT OF THE COMMISSIONER OF POLICE
AND THE 3RD, 4TH AND 5TH DEFENDANTS
Appellant

AND:

IOTEBWA TIO
Respondent

Coram: Hardie Boys JA, Tompkins JA, Penhngton JA

Counsel: Daniel Gorman for Appellant
Aomoro Amten for Respondent

Date of hearing: 13 August 2003
Date of judgment: 16 August 2003

JUDGMENT OF THE COURT

[1] In a judgment delivered on the 25^th July 2003, the Chief Justice held the appellants and others liable to the respondent in negligence and awarded him damages of $10,000, The appellants appeal against that judgment.

[2] The third, fourth and fifth appellants are police officers, and at the relevant time were the only officers stationed on the island of Butaritari. PC Tiaontin Tamaiti was the officer in charge of the island's police station. The appellant lived in a house near Tabonuea, a village of about 50 households which the respondent estimated to be the same distance from the police station as Betio is from the middle of the causeway.

[3] For reasons which were not disclosed, some at least of the villagers took exception to the respondent's presence nearby. On 20 November 1999 the police received information that prompted PC Tamaiti to instruct his two colleagues to go to the respondent and tell him to leave his house that night. They did so, arriving by motorbike. In the words of one of them "we told him that there was an information that came to the police telling us that Ioteba has to leave his house that evening for his safety otherwise anything may happen to him".

[4] The respondent's account was that he was told he had to leave by 6 o'clock that evening, and when he asked why, he was told that this had been decided from the village, and that the officers had been sent from the village to tell him to leave his house. The Chief Justice did not refer to this probably slight difference in recollection.

[5] The respondent's response was to ask the constables if they would look after the house for him. They said they were not sure, but would take instructions from their boss. They went away, but did not return that evening. However, on their way back to the station they called in at the village, where a meeting was in progress in the maneaba. They asked those there the purpose of the meeting, whether it was about the respondent. They were told it was not, it was about something else. They warned the people that they should not do anything about the respondent and then went back to the police station. They did nothing more that day about the matter.

[6] In the meantime, the respondent moved out of his house, to another some 300 metres away. Between 7 and 8 pm he heard a sound like an explosion, and went back to his house. He saw a group of people attacking his boat, which was lying next to the house. They "chopped it up" and made off with his motor, fuel tanks and fishing gear. It was the value of these that the Chief Justice awarded as damages.

[7] For the appellant to succeed on these facts, he had to overcome three legal hurdles. First, he had to show that the police owed him a duty of care, which they had breached. Secondly, he had to surmount the policy barrier to claims against the police formulated most authoritatively by the House of Lords in Hill v Chief Constable of West Yorkshire [1998] 2 All ER 238. As well, he had to show that if there had been negligence on the part of the officers, that negligence was causative of his loss. However, this last topic does not appear to have been canvassed in the High Court and it was not discussed in this Court, and so we say no more about it.

[8] Whether a duty of care is owed in a particular case will naturally depend on the circumstances of that case. Over the years courts have endeavoured to formulate a general over-arching principle, but as Lord Bridge of Harwich observed in Caparo Industries Plc v Dickman [1990] UKHL 2; [1990] 2 WLR 358 at 364, no single general principle has proved able to provide a practical test which can be applied to every situation. Nonetheless, a well known statement is that of Lord Keith of Kinkel in the Hill case at 241, which the Chief Justice cited in his judgment:

"It has been said almost too frequently to require repetition that foreseeability of likely harm is not in itself a sufficient test of liability in negligence. Some further ingredient is invariably needed to establish the requisite proximity of relationship between the plaintiff and defendant, and all the circumstances of the case must be carefully considered and analysed in order to ascertain whether such an ingredient is present. The nature of the ingredient will be found to vary in a number of different categories of decided cases".

[9] It may also be helpful to quote a similar, but more expansive, comment of Lord Bridge in Caparo, at 365:

"....in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterized by the law as one of "proximity" or "neighbourhood" and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other, But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope. Whilst recognizing, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorization of distinct and recognizable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes. We must now, I think, recognise the wisdom of the words of Brennan J. in the High Court of Australia in Sutherland Shire Council v. Heyman [1985] HCA 41; [1985] 60 ALR 1, 43-44, where he said:

"It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed.""

[10] It is therefore appropriate to consider cases where claims of negligence have been brought against police officers.

[11] A helpful general statement referable to such claims is in the judgment of Beldam LJ in Ancell v McDermott [1993] EWCA Civ 20; [1993] 4 All ER 355, 365 an unsuccessful attempt to claim damages in negligence against a police officer:

"....it is exceptional to find in the law a duty to control another's actions to prevent harm to strangers and where they are found they arise from special relationships. When it is contended that such special relationship arises out of duties carried out in the performance of a public office, the court must have regard to the purpose and scope of the public duties, whether they are intended to benefit a particular section of the public, e.g. investors or depositors, and whether such persons could reasonably place reliance on the fulfilment of the duties".

[12] This is yet another way of expressing what has variously been described as "proximity of relationship" and "neighbourhood".

[13] It has been held that there is the requisite proximity where the police acts or defaults have actually created the danger or caused the injury: Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985; Alcock v Chief Constable of North Yorkshire [1991] UKHL 5; [1992], AC 310, Home Office v Dorset Yacht Co. Ltd [1970] UKHL 2; [1970] AC 1004; Knightley v Johns [1981] EWCA Civ 6; [1982] 1 All ER 851; and where a police officer has assumed responsibility not to expose a person to injury or damage: Swinne v Chief Constable of the Northumbria Police [1996] EWCA Civ 1322; [1996] 3 All ER 449, Costello v Chief Constable of the Northumbria Police [1998] EWCA Civ 3536; [1999] 1 All ER 550; see too Brown v Heathcote County Council [1987] 1 NZLR 720 (a decision of the Privy Council).

[14] On the other hand, a number of cases have held against a duty of care on the part of the police. Probably the best known is Hill, in which the mother of a victim of a serial killer alleged that the police had failed to use their best endeavours and to exercise all reasonable care and skill in their investigation into the crimes, with the result that the daughter was killed before the offender was apprehended. Lord Keith observed (p. 240):

"The question of law which is opened up by the case is whether the individual members of a police force, 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 person or property through the activities of criminals, such as to result in liability in damages, on the ground of negligence, to anyone who suffers such injury by reason of breach of that duty".

[15] Distinguishing the Dorset Yacht case, where the damage was caused by boys absconding from borstal, Lord Keith's conclusion (in which the other Law Lords concurred) was that though there existed reasonable foreseeability of harm to women such as the appellant's daughter if the offender were not apprehended, that in itself was not enough to establish liability. There was no "additional characteristic" to make up for that deficiency (p. 243).

[16] In Alexandrou v Oxford [1993] 4 All ER 328, police officers answered a burglar alarm in a shop, but failed to inspect the rear of the shop where the burglars were probably present so that they were able to make off with the contents without further disturbance. On the general authority of Hill, the English Court of Appeal held that no duty of care was owed to the shop owner. Glidewell LJ, who delivered the leading judgment, said (p. 338):

"The communication with the police in this case was by a 999 telephone call, followed by a recorded message. If as a result of that communication the police came under a duty of care to the plaintiff, it must follow that they would be under a similar duty to any person who informs them, whether by 999 call or in some other way, that a burglary, or indeed any crime, against himself or his property is being committed or is about to be committed. 5o in my view if there is a duty of care it is owed to a wider group than those to whom the judge referred. It is owed to all members of the public who give information of a suspected crime against themselves or their property. It follows, therefore, that on the facts of this case it is my opinion that there was no such special relationship between the plaintiff and the police as was present in the Dorset Yacht case."

[17] Those observations apply equally to the present case. There is in our view no special characteristic to the relationship between the respondent and the police. The duty of care contended for is a general one owed to any member of the community. The position would doubtless have been different had the police officers undertaken to look after the respondent's property. For then this case might well have come within the recognised category of "special relationship" or "additional characteristic" illustrated by Swinney and the similar cases mentioned above. But the officers accepted or assumed no responsibility. They gave no commitment at all. We are disposed to agree with the Chief Justice that their inaction was morally indefensible, but we regretfully differ from his conclusion that it was legally actionable as well.

[18] The claim is in negligence. The Chief Justice saw a similarity between the present facts and those in Roytham [1979] 3 All ER 641, where a police officer had stood by while a man was beaten to death in a violent fight. But that was a prosecution for the common law offence of misconduct in a public office, to which quite different considerations apply.

[19] Whether or not a duty of care exists in a particular situation can be a difficult question, on which different views can be held. In this case, we differ from the Chief Justice's view, and hold, on the authorities mentioned, that the police did not owe the respondent a duty of care in these particular circumstances.

[20] In his judgment, the Chief Justice considered at some length whether considerations of public policy, propounded most notably by Lord Keith in Hill, precluded a finding of liability against the police even if (as he held) breach of a duty of care were established. The Chief Justice took the robust view that considerations relevant in England are not relevant in Kiribati, and so concluded that there was no public policy bar to the respondent's claim. The conclusion we have already expressed makes it unnecessary for us to embark on this topic, and we think it best that we should not do so, save to observe that once again much turns on the evidence in the particular case.

[21] For the reasons given, the appeal is allowed, the High Court judgment is vacated, and judgment is entered for the appellant in that Court. In the circumstances, we make no order as to costs.

Hardie Boys JA
Tompkins JA
Penlington JA