Yawau v Island Security Service Ltd [2009] PGDC 20; DC933 (2 April 2009)

DC933

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DC 20 of 2009

BETWEEN

JOE YAWAU
Plaintiff

AND

ISLAND SECURITY SERVICE LTD
Defendant

Wewak: D Susame
2009: April 02

CIVIL- None

Cases Cited:
None

Counsel:

In Person, For The Plaintiff
Mathew Kalsagai, For The Defendant

02 April 2009

DECISION

D Susame: The plaintiff claims damages for the loss of his bag containing his personal items and important documents. He attributes the loss to negligence of the security guards employed by the defendant. The defendant is being sued as the employer under the principle of vicarious liability.

FACTS

2. The uncontested facts are these. The plaintiff had gone to Chemcare Pharmacy on 27 June 2008. He left his bag at the security counter to see his wife who works at the pharmacy. Shortly after on his way out he told one of the security guards to keep an eye on his bag while he went to the nearby shops to purchase rice to take home. After some minutes he returned to the pharmacy. Again the plaintiff left his son and the shopping where his bag was and went to the market to purchase fish. After fifteen minutes or so he returned and discovered that his shopping was intact except for his bag which was missing. The plaintiff therefore blames the security guards for their negligence in failing to prevent his bag from being stolen or removed.

DISCUSSION

3. The defendant is rending security services to Chemcare pharmacy. I believe under a contract. The precise terms of the contract are not known. However, one of the security arrangements at the shop is that as every customer enters the shop they are required to leave their bags at the security counter. Number cards are issued against the bags which the bag owners will have to produce to the guard attending to retrieve their bags when leaving the shop.

4. The legal implication of such an arrangement I construe is that while the customers are in the shop the security guards take upon the responsibility for safe custody of the bags till the customers leave. The guards are relieved from such obligations when the customers retrieve their bags and leave the shop. Henceforth, safe keeping of the bags no longer becomes their duty. Hence, under the law of negligence the guards owe a duty of care to every owner of the bag to prevent bags from being stolen or mistakenly removed from the time the owner is in the shop until he retrieves his bag and leaves. Failure by the guards to ensure that would render their employer vicariously liable for damages in negligence.

5. I now apply the general principle of the law of negligence above to the facts of this case.

6. The guards owed a duty of care for safe custody of the plaintiffs bag while the guards were providing security at the pharmacy under a contract that was in place. However, there was no further obligation placed on the guards once the plaintiff left the pharmacy to do shopping in the nearby shops and the market. Safe keeping of the plaintiffs bag was no longer the guards concern simply because the plaintiff was no longer doing business or otherwise inside the pharmacy. So there was no duty of care owed to the plaintiff. It seems to me the plaintiff decided to leave without his bag thinking the guards would offer a kind gesture looking after it, after all the guards knew him through his wife who also works at the pharmacy.

7. The plaintiff caused his own loss and cannot blame the guards or their employer. Hence, the Court finds the defendant not liable and order the case is dismissed. I award no cost in the exercise of my discretion.

______________________

For the Plaintiff, In Person
For the Defendant, Mathew Kalsagai