Kolta Development Pty Ltd v PNG Defence Force and The State [1996] PGNC 23; N1470 (5 September 1996)

Unreported National Court Decisions

N1470

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 411 OF 1993
KOLTA DEVELOPMENT PTY LTD
And:
GREAT HAPPINESS SEAFOOD PTY LIMITED
And:
PATRICK K KOLTA
v
PNG DEFENCE FORCE
And:
THE STATE

Waigani

Salika J
5 September 1996

JUDGMENT

CIVIL SUIT - Claim for Damages - claim under customary laws of Papua New Guinea - Evidence of custom from two provinces only - Evidence of custom must be from at least the majority of the provinces.

DEFENCE FORCE AND THE STATE ARE NOT “INDIGENEOUS INHABITANTS OF THE COUNTRY” - Custom does not apply to the defendants in this case.

COMMON LAW - alternative claim for damages under Common Law negligence - whether defendants owe duty of care to the plaintiffs - Defes owes owed no duty of care to the plaintiffs.

Counsel:

J Nonggorr for the Plaintiff

F Damem for the Defendants

5 September 1996

SALI The Plaintiffs bffs by writ of summons have filed a claim for damages against the defendants. It was not contested that the plaintiffs are companies incorporated under the Companies Act.

HISTORY

The plaintiff was the lessee of temises known as “The Germania Club” on Section 136 Allotment 9 Waigani along thng the Waigani Drive. It carried on ess on the pthe premises in the form of:

(a) ;restaurant;rant;

(b) ټټ a restauranturant and beer garden;

(c) &ـ a club club memberember baer bar.

The second plaintiff was thlessepart e premises ases and opnd operated a Chinese Restaurant. Th0; The Third plaintis thas the owner and a shareholder of the First and the Second plaintiff.

The plaintiffs claim that on the morning of the 3rd April 1993 between 5.00am and 7.00am the Germania Club was to ashes. It is not not dispuhat that the building was burnt on that morning. The plaintiffsm that the bthe building was set on fire by soldiers of the Papua New Guinea Defence Force. Thendants deny this allegallegation. The primary issue ts what was the cause of the fire that destroyed the buildinilding.

The evidence is that there was a fight in the club between icharinga and a group roup of soldiers. The fight was stopped and everyone was sent home.&ome. A grf Soldiers were walkinalking along the Waigani Drive towards Boroko when one of the soldiers was killed in another fight with Naringa and his men along theani D News of thof the soldiers death spread to Murray Bary Barracks and Taurama Barracks. A bus waegedly used to trao transport soldiers to the Germania club where the soldiers set fire to the building.

The defendants have denied generally that soldiet the building on fire.

The question is who was the the cause of the fire that gutted the Germania club? The evidence oa Damba, Mak, Makam Kajona, Inspector Gabriel Yatapya and Brian Komane suggests that soldiers of the PNG Defence Force caused the although there is no real direct evidence of any soldier in particular setting the buildiuilding on fire. There is also eviderom them the defendants own witnesses Captain Monakakalau, Sergeant Gainabae and Corporal Meve soldiers wers were taken ins to the Germania club. Corporal Meve drove the bus as admitted by him . Having consiconsidered all the evidence, direct and citantial as to how the fire might have started I am satisfieisfied on the balance of probabilities that the soldiers of the PNG Defencce set the building on fire in retaliation for the death ofth of one of their comrades Private James Adam.

This action is founded on custom under the customary laws of Papua New Guinea and Common Law negligence. Parthe plaintiffs statementement of claim alleges that:

11. & The actions oons of the employees, servants or agents of the Defendants consti a customary wrong in the customary laws of Papua New GuineGuinea.

Particulars

(a) &##160;s a iro twro the ms e ms of Papua New GNew Guineauinea to cause damage to persons and property of another.

(b) ҈ use cedaateda) ison ison throughout the country.

(c)&#(c) &1600;#160;  Where e iagcaus d by one pone person, the individuongdo wellhe other members of the person’s 17;s sociasocial or l or political group are responsible for the individuals actions.

(d)҈&ـ The The custocustom stam stated in (c) is common throughout the country.

(e) &##160;; The inde individuavidual and his or her group are liable to the injured person for the damage and loss sustained.

(f) & &#160 custatedtated in (e) is common throughout the country.

.

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(g) ;&#16e liabilityility is seis settled by the paymf comtion.

(h) &##160;; Th0; Th0; The cust custom stated in (f) is common thro throughouughout the country.

12. ;&#16 the native, the losselosses suffered by the Plaintiffs were a result of the negligence of the Dthe Defendefendants.

Particulars

(a)&##160;; The Defendants owed a duty to the Plaintiffs to exercise due care aare and cond control of their employees, servants or agents which duty they failed to discharge.

(b) &&#160 Defendantndants owed owed a duty to the Plaintiffs to exercise reasonable care and control in the control and use of their equipment including uniforms, firearms and motor vehicles which theyed toharge.

(c)p>(c) The Defendants owed a duty to the Plaintiffs to properly discipline and control their employees, servants or agents which duty they failed to discharge.

And the Plaintiffs claim:

1.҈&ـ Compensation tion for tfor tfor the destruction and loss of their business enterprises and personal and mental suffering.

2.҈ Damages in re pectesf dctiruction and loss of their business eess enterprises and personal and mental suffering.

3. Interess pur tanthe tdiciudicial Proceedings (Interest on Debts and Damages) Act.

4. & S60; fuchher tr other relr relief as the Court deems fit.

I have already found that the Papua New Guinea Defence Force srs se builon fithougone particular soldier can be identified. Corporal oral Meve Meve couldcould be s be said taid to have aided and abetted the other Soldiers depending on whether or not I accept his evidence. no one has been individuavidually identified I am satisfied on the evidence that those who were present were aiding and abetting each other in setting the building on fire and that their colle presence and participatiopation encouraged each other to commit the acts of setting the building ablaze.

LIABILITY OF THE PNG DEFENCE FORCE AND THE STATE IN COMMON LAW

The Papua New Guinea Defence Force is a State Service established under s. 188 (1) (c) of the Constitution. Its superintendence ontrolntrol is subject to the National Executive Council through the Minister for Defence. The nder of the Defence Foce Force is the principal military adviser to the Minister for Defencee s. 201 of the Constitutiitution) unctions of the Defence Foce Force are as spelt out under s. 202 of the Constitution. By virtue. 203 of the Cons Constitution the Defence Force and the members of the Defence Force are subject to all the laws in the same waother bodies and agencies except to such an extent as is required by the nature of the forc force as a disciplined force and its particular functions, duties and responsibilities. S. 208 of tnstitution prov provides that because of the special nature of disciplined forces and their operations it is a primary duty of their members to obey lawful orders. In this instance membe the Defence Force are unde under a duty to obey lawful orders.

If members of the Defence Force were involved in the destructi the Germania club then the Papua New Guinea Defence Force and the State may be vicariouslyously liable for the acts of the members of the Force. I have found members of thof the Defence Force set the Germania club on fire and that as a result of their actions the building was destroyed by fire. The general principleaw isaw is that a master is liable for the negligence of his servant if committed in the course of his employment, but is not liable for negligence committed outside the scope of his employmen60; (See Charlesworth on Neon Negligence at Page 922.) The mast even liable for afor acts which are not authorised provided they are so connected with the acts which he has authorised that they may be regarded as modes of doing those acts. Where an s saibe an independependentndent act, not connected with the authorised act, in such a case the servant will be said to have gone outthe course of his employment.

The Wrongs (Miscellaneous Provisions) Act Chapter 297 297 establishes the basis under which the State may be sued for vicarious liability. Section 1 (I) e Act says tays that the State is liable for the torts committed by its servants and agents. AsDefence Force is a StateState service, members of the Defence Force would in my view be ser and agents of the State.&#te. I folhe ruling of the Cour Court in David Wari Kofowei v The State (1983) PNGLR 449 later confirmed e Supreme reme Court after an appeal in The State v David Kofewei (1987) PNGLR 5. In that case rs of the pole police force held to be servants and agents of the State. The same in my view ap to s to members bers of the Defence Force. They are nts and agof the the State.

Having found that the mthe members of the Defence Force are servants and agents of the State, wery actithin the scope oope of their employment? Burning down of a cluse, ise, it seems to m to me, does not fall within that scope of duties provided for under s. 202 (Functions of the Defence Force) of the Constitution. The actot be regarded as a as a mo carrying out their duties ties and responsibilities. It would have act independependent and not connected with the function o Defence Force. I find that the act e memb members ofrs of the Defence Force was an act not authorised and was outside the cour employment. Having fing found that,Pape Papua New Guinea Defence Force therefore cannot be vicariously liable for the actions of its members in common law. Similat follows that the Sthe State cannot be vicariously liable for the actions of its servants and agents because their acts are outside the normal scope of their employment and cannot be liable in common law. In any case the piffs clai claim is not that the soldiers were negligent and therefore the defendants are negligent. The plaintiffs claim it the PNG Defence Force and the State were negligent. No issue of vius liabilityilityility arises. is conceded by thintiffs Lffs Lawyer.

THE CLAIM

The Plaintiffs claim is that the defendants ants are liable for the losses suffered byplain in that the defe defendants were negligent or otherwise arse are liable under principles of customary law. The plaintiffs subm that that their claim based on custom is that the defendants are liable for the acts of destruction committed by its employees,ly the soldiers.

LIABILITY IN CUSTOM

The plaintiff submits that a caus cause of action is maintainable in custom. The Constitutional provi oons on the reception of custom as part of the underlying law and the Custom Recognition Act (Chapter 19) provide for custom to be pleaded and proved, in order for it to be applied as part of the underlying law.

Schedule 2.1 of the Constitution provides for the reception of custom:

“Sch.2.1. - Recognition, etc., of custom

(1) Subject to Suisect(2ns nd and (3), custom is adopted, and shall be applied and enforced, as part of the underlying law.

(2) & Subsection (1) does not anot apply in respect of any custom that is, and to the extent that it is, inconsistent with a Constitutional Law or a statute, or repugnant to the general principles of humanity.

(3) &#160Act f the Parliament ment may:

(a) ټ Provideovide for the proof and pleading of custom for any pu; and

(b0;҈ Reg the r in whin which, och, or the purposerposes fors for whic which, cuh, custom may be recognised, applied or enforced

c)҈ < Provide for the resoluti c of conflicts of custom.

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The pThe plaintiff has submitted that it has satisfied the four requirements under the Customs Recognition Act and that they are entitled to the relief they are seeking. The four requits the plainplaintiffs say they have met are, that:

(a) & They haey have pleaded in their Writ tha destruction of the Germania club premises was a wrong in custom and that according to that that custom, the Plaintiffs are entitled mpens to bd by the defendants.

(b) &#160 &#160 They They have proved xistexistence of a customary wrong (thus giving rise to the cause of action) for which compensation is payable.

(c) ـ They haey have proved that the soldiershe PNave committed thed the wron wrong ie that the soldiers were responsible for the losses the Plaintiffs have suffered.

(d) ;ټ&#They have proved oved the existence of custom tham that reqt requires that the Defendants, being the group to which the soldiers belo, are liable to compensate the Plaintiffs for their losses.

I agree that the Plaintiaintiffs have established these matters through the witnesses who gave evidence on custom.

The plaintiffs have also submitted that in order for their action in custom to succeed they must prove the existence in custom in respect of the following matters:

(a) &#The burning down of a buia building (for example, a house) is a customary wrong;

(b) & The perespoe mus compion pion to those who suffered loss arising from the fire;

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(c)&#(c) &160; ҈ Those whse who are liy nsay nsatie thodividuals who are primarily rily responesponsiblesible for for the arson but their group - the families, clans or tribes - also shar respilitymust cost contribntribute;

(d) 
h0; Wthre den ities of t of the individuals are not known, the group, whether this be the family, clan or tribe, is liable to pay compensation to those who have suffered loss.

They haveitted they proved all all thosethose matt matters above by evidence from the Mount Hagen area and from the Kairuku area in the Central Province. They submit that they have proved that:

(a) ҈& The bure burning ding down of a house or building is a customary wrong;

(b) ;&#16e people rele responsiponsible must pay compensation to those who have suffered lrisinm the fire;

(c)p>(c) &##160;e wos areo are liablliable to pay compensation are those individuals who were primarily responsible for the arson together with their groups, families, clans or tribes;

(d) ـ Where ni individualiduals have been identified, the group or family, clan or tribe is liable to pay compensation to those who have suffered loss.

The tiffsit thtnesses Jack Rombok and George Fabila hila have pave provenroven through their evidence the above matters. It is submitted by taintifintiffs that the customs evidenced by the 2 witnesses, if they meet the requirements of schedule 2.1 of the Constitution, d be applied in this case.

The defendants on the other hand argue that the plaintiffntiffs claim under custom should fail because it has not be established that the custom upon which they base their claims is prevalent in at least the majority of the provinces of Papua New Guinea. They submit that the customs of the two areas should not be made to be applied to the rest of the country because the other parts of the country may have different customary practices. They on the case of Re Pete Pet of MT Somare [1981] PNGLR NGLR 265 where Kidu CJ said at page 272:

“I consider that in a case such as this, for a custobe held to be applicable in Papua New Guinea, evidence that that at least the majority of the nineteen provinces have this custom would be required for this Court to hold that it applies in Papua New Guinea.”

Kapi J (as he was then) agreed with Kidu CJ in saying at page 289:

“In the instant case custom which is proposed to be adopted under schedule 2.1 in relation to Locus Standi must be a custom which is recognised through out Papua New Guinea and this must be proven as a matter of fact.”

The defendants submit that the position taken by the Court in the Somare Case on the application of custom still stands unchanged to date. The plaintiffs have admitted that evidence of custom was not adduced from all or at least from majority of provinces in the country. The Plaintiffs have howeubr submitted that in the absence of evidence to the contraat was an indication that that the custom was common throughout the country.

Having heard submission on whether a claim under m had been made out I am inam inclined to agree with the submissions of the defendants on this point. The position is that the tlaintiffs must establish that the custom upon which they base their claim is prevalent or commonly practiced in at least the may of the provinces in the country. There is before the court evidence of custom from from two provinces and not majority of the provinces as required by the Supreme court decision in the Somare case.

In this country there are 19 provinces and a Nat Capital District. Th0; The Somecision is a Ss a Supreme court decision and is binding on the National court which I am sitting as. I am thus bound by that decision because I am of the view that there is a lot of common sense in what the Supreme court said in the Somare Case in respect of adoption of custom from a majority of provinces for the whole of the country, especially when there are so many varying customs in the country.

Furthermore it is a general principal of Law of evidence that “he who asserts must prove”. To contend that while evidence adduced of custom is from only two provinces there was no evidence to the contrary is indication that the custom is common through out the country is in my view a mischievous contention.&#16e plaintiffs have a duty toty to prove that the custom is common through out the country. They t simply call witnesstness from only two provinces and assert that customs in those two provinces are common throughout the country. They must call evidenom at least a majority if not all the provinces in the coun country. They have not done that. I thee cannot apply thtomshtoms of 2 provinces to apply to all the 19 provinces nationwide.

DOES CUSTOM MEET MEET THE REQUIREMENTS OF SCHEDULE 2.1 ANDCUSTOCOGNITION ACT (CHAPTER 19)

I agree wite with theh the submissions of the defendant that custom as pleaded does not meet the requirements of Schedule 2.1 of the Constitution and Sections 3 and 5 of the Customs Recognition’s Act. Schedule 2ads:

&#82>“Sch.2.1. - Recognition, etc, of custom

(1) &#16bject to Subsections (dns (d (3), custom is adopted, and shall be applied and enforced, as part of the underlying law. law.

(2) &##160;se (1) no1) not ain ain respect of any custom that that is, is, and tand to theo the extent that it is, inconsistent with a Constitutional Law or a statur rept to the general principles of humanity.

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(3)&#13) &##160; An Act Act of the aarli ment may:

(a) ټ&#Provideovide for tfor the proof and pleading of custom for any purpose; and

(b) ⶌthner iner in whir whir the purposes for which, cus, custom mtom may be recognised, applied or enforcedorced; and; and

(c) &#Provir the resolution of conflicts of custom.”

The application of custom under the Constitution will not occur if tustomnconst witonstitutional law, or statute or repugnant to the general pril principlnciples ofes of huma humanity. The Customs Recognition A t is specific. S.3 of the Act as followsllows:

“3. Recognition of cust>m

(a)  Its recignition tr e or enor enforceforcement ment wouldwould result, in the opinion of the court, in injustice or would not be in the public interest; or

(b) ټ Ia a cffe affectingcting the welfare of a child under the age of 16 years, its recognition or enforcement would not, in the opinion of the court, be in the best interests of the child.

2)҈& &160; #160; Noth Nothing in Subonction (1) of itself empowers a Local Government Council to make a subordinate enactment affecting custom, but this subsection does not limit in any way the powers of a Local Government Council conferred by any other law.”

This provision essentially permits custom to be recognised applied and pleaded in all courts except where in the opinion of the courts its recognition or enforcement would result in injustice or would not be in the public interest. The Courts have a discreticretion not to apply custom in a given case.

Section 5 of the Customs Recognition Act reads:

̶#160; Civil C/ses

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(a) ҈ wne ohiprship of cuof custom of or of rights in, over or in connection with customary land or:

(i) aiy thn g ion r stomury lary land; or

#160;;ټ th0; the proe produc custocustomary land;

(b) The ownership by custom or rights ier oronnecwith the sea or a reef, or , or in orin or on the bed of the sea or of a river or lake, including rights of fisf fishing; or

(c) ـ;&#16e ownp by custocustom of waof water, ter, or ofor of rights in, over or to water; or

(d) eve dtioluof c stomary or y or of rights in, over or in connection with customary land land - whether:

(i) &##160; o60; on the d a on orthon/rson/p> <) #160;  on0the the the happeningening of a certain event; or

(e) & &#Trespy ani oani or

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(g) A transaction:that

i)&>(i) ; t60 pareies intended shou should be; or

(ii) justice requires shbe;wegu whol part custd not by law; or

(h)&#(h) ;&#16e reas reas reasonablonablonablenesseness or o or otherwtherwise of an act, default or omission byrson;p>

or wher where thee the cour court thinks that by not taking the custoo accinjuswill y be done to a person.

In civil cases where custom is m is involinvolved rved relatielating to the matters specified in s. 5 (a) to (i) the courts have a discretion whether or not to recognise, adopt or apply custom.

The principal reason in my view why custom as pleaded does not meet the requirements under the Constitution on the Customs Recognition Act is that in this case the plaintiffs customary law claim purports to establish no fault liability in that as long as someone who is from a particular organisation, social, political, tribal, clan or family group and who commits a civil wrong, his organisation, group, tribe, clan or family must pay compensation irrespective of whether or not the identity of the wrongdoer is known. In my view this cause grav grave injustice and is not in the best interest of the public. Furthermore whether ustomsstoms applicable to tdigenous people of Mount Hagen in the Western Highlands Province and the indigenous people ople of Kairuku in the Central province apo the defendants, the Papua New Guinea Defence Force orce and tde Independent State of Papua New Guinea is another complex matter. Schedule 1.2 of the Constitution defines custom as:

“‘Custom’ means the customs and usages ofgenous inhabitants of the cthe country existing in relation to the matter in question at the time when and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial.”

The Defence Force and the State are not “indigenous inhabitants of the country”. Thereforey view it can be n be concluded that the customs of the Mount Hagen and the Kairuku people cannot extend to the Defence Force and the State in this case because are not “indigenous inhabitant of the country”8221;. While it is accepted that customs do change over a period of time it has not been shown in this case that the customs of the Western Highlands and the Kairuku people in the Central Provincend to the defendants. If those ms are not used osed osed or practiced by the defendants, why should those customs apply to the defendants.

Having considered all the arguments in relation to the claim made under custom I dismiss the claim for the reasons I alluded to.

LIABILITY UNDER COMMON LAW - NEGLIGENCE

The plaintiff’s alternative cause of action is based on negligence. Negle is a common law caus cause of action and its principles are well established. In order to mai an action tion in negligence the plaintiffs must prove:

(a) The existence of a outyarc carch is owed by the defendants to the plaintiffs;

(b) Th0; The duty was breachet by the defendantsailinexerche std of required by law; anw; and

d

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(c)&#1c) <; Th0; The suffered injury or loss as a result of thendantach.

The plaintiffs iffs in thin this cais case allege that:

(a) efe dantndowed a duty of c of care to the plaintio contheironal anal and equd equipmenipment, that is to:

(i) Discipline and control thd soldiers;

(iii) ټ Control the uthe use of their motor vehicles; p>

(b)p>(b) & The defendants failed to d to exercise that conty all the ers to s to mobilise themselves into a force and to use firearms, motor vehicles cles and uand uniforms.

As a result of the fa to ese thndard of carf care in e in discidisciplining and controlling the solders the plaintiffs suffered loss in that the soldiers burnt down the Germania club building which housed the business activities of the plaintiff.

DUTY OF CARE

Lord Atkins famous statement in Donoghue v Stevenson [1932] AC 562 (at page 580) is now accepted as establishing the principle on duty of care in the law of negligence - Lord Atkins said:

“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyers question, ‘Who is my neighbour’ receives a restricted reply. You muke reasonable cure ture to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.&#1ho, then, in law is my neighbour? The answer seems to be persons. Who are so clso closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts and omissionch arled in question.&ion.”

Lord Wright four years ears later in Grant v Australian Knitting Mills [1936] AC 35 said:

“All that is necessary as a step to establish the tort of actionable negligence is to define the precise relationship from which the duty to take care is to be deduced. It is, howeessential in Enin English law that the duty should be established; the mere fact that a man is injured by another act gives in itself no cause of action; if the act is deliberate, the party in will have no claim in law law even though the injury is intentional, so long as the other party is merely exercising a legal right; if the act involves lack of due care, again no cause of actionable negligence will arise unless the duty to be careful exists.”

The plaintiffs in this case submit that the Defence Force and in turn, the State owed a duty of care to the plaintiffs to discipline and control their soldiers, who are trained to use aggression and are in possession of firearms, motor vehicles and uniform against causing destructions to neighbours such as the plaintiffs. The plais further submit tmit that as the soldiers are trained to be aggressive and that they have firearms and motor vehicles at their disposal that it created a risk ially to civilians and the defendants had the duty to contacontain the risk. The plaintiffs havmitted tted that the defendants have failed to contain the risks particularly in the light of evidence of past events like the Vadavada settlement and Lombrom rand Jackson Airport incident. Taintiff submitteditted thed that the defendants owed a duty of care to the plaintiffs to take care in relation to the discipline and control of their soldiers, the use of firearms, uniforms and vehicles. The plaintiffs submat they they were the defendants neighbours.

The defendants have submitted that in order to establish a duty of care in trcumstances of this claim the plaintiff must persuade the court to extend the boundaries ofes of common law negligence beyond the limits set in the case of Home Office v Dorset yacht Club [1970] UKHL 2; (1970) AC 1004. That case is a landcase whse which developed the law of negligence to the point where the law recognised that liability could arise for the wrongful act of a person under the contf another causing damage to a third party. In that caat case seoys deys detained in a juvenile institution on an island under the control of three custodians left the island at night and boarded, damaged and cast adrift the plaintiffs yacht which was moorf shore. The plaintifintiff broan a an action for damages against the Home Office who were responsible for the juvenile institution. The House of Lords in thae case held that the custodians:

“owed the plaintiff a duty to take such care as was reasonable in all the circumstances with a view to preventing the boys under their control from causing damage to the plaintiffs property if that was a happening of which there was a manifest risk if they neglected that duty.”

In that case the yacht was moored in close proximity to the juvenile institution and so it was not difficult for the court to find that it was reasonably foreseeable that such a risk existed for the custodians to exercise care and control. In this case it is more difficult. The court is being asked o in effect make the State to be liable for the consequences of every wrongful acts done b members of the Defence force. Here ourt is being asked tked to impose a duty on the the State to exercise control of the members of the Defence Force. I am of thw that the statestate already has that duty and has done and is fulfilling that duty by virtue of the Constitutional provisions and the Defence Force Act. Thera Military Conduct Codt Code in the Defence Force Act which members of the Defence Force are to abide by. Discipline is an intepart part of training of members of the Defence Force.&#160 State in my view already hady has discharged its duty to discipline and control the members of the Defence Force in its training.&#1he Defence Force for examplxample already has internal rules governing the use of firearms, uniforms and vehicles and it is expected that since its a disciplined organisation those rules governing the use of the facilities would be abided by. Anyone not ag by the rulesrules is expected to be dealt with and disciplined. Should the State and the Defence Force then be held resple for wrongful actions or omissions of those who do not abide by the Military Code of Cond Conduct. I do not think the State o Defence Force should be held responsible for every wrongfuongful acts or omissions of those members who do not abide by the Militaryuct Code and who step out of the line of their duty voluntarily.

In any case I am noam not satisfied that the plaintiffs come within the “neighbour” principle as being persons so closely and directly affected by actions of the members of the Defence Force. The plaintiave elected to d to run their case on the basis that the defendants were negligent and not on the basis of vicarious liability. The plaintiffs in my view have not established how the defendants on their own have been negligent. The defendants are organisations. They are run by people re are employed by them. They elves cannotnything.&ing. Therevis evidence before tore the Court that discipline forms part of the training in a soldier’s life. A soldis trato obders.&#16. What have the Defence Forde and and the State failed to do ? Evidenvidence is not clear as to what they failed to do. There is some evidence to suggest that the duty officers and those dute duty sentry men at Murray Barracks and Tauramrackshave been negligent in their duties hat that evidence would suld support a claim of v of vicarious liability of the defendants. I find that the duty officers and men at Murray Barracks and Taurama Barracks were negligent in their duties. Unfortunately the plafs clfs claim is not based on vicarious liability.

In the whole I am not satisfied on the balance of probabilities that tase falls into the “special relationship” or “neighbour” class of c of cases such that the duty of care exists.

I would dismiss the claim on the alternative ground as well.

The orders of the Court are that the whole of the claim is dismissed with costs. I consider that an ex gratia payment by the defendants would be in order in view of my findings that the Defence Force Soldiers were responsible for the burning down of the Germania club and that the duty officers and mre negligent in their dutieduties. I strongly recommend that the defendants make ex gratia payments to the plaintiffs.

Lawyer for the Plaintiff: Nonggorr & Associates

Lawyer for the Defendants: Solicitor General