N7344
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1659 OF 2011

BETWEEN:
SAMUEL ROMBIL
Plaintiff

AND
FRASER S. PITPIT – Public Solicitor of Papua New Guinea
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Mount Hagen:   Foulds, J
2018:   06th July

DAMAGES – claim for damages for breach of agreement – allegation of policeman failing to provide security over vehicle involved in accident- plaintiff engaged officer of second defendant to pursue mater in court - whether First Defendant owed a duty of care to Plaintiff  - whether police owned a duty of care to the plaintiff – no cause of action is disclosed in the Statement of Claim - Plaintiff's pleadings are defective -  an award of damages in favour of the Plaintiff against the Second Defendant is refused

Case Cited:

Jack Pinder v Sam Inguba & Anor (2012) SC1181 
Maku v Maliwolo SCA 43 of 2007
Rundi Maku v Steven Maliwolo & Anor (2012) SC1171 
Wapi v Iali (2014) PGSC 32; SC 1370 
William Mel v Coleman Pakalia & Ors (2005) PGSC 36; SC790

Authorities:

Professional Conduct Rules 1989
Wrongs (Miscellaneous Provisions) Act Ch 297("Wrongs Act")

Counsel:	

Mr. Piam, for the Plaintiff
Ms. Kapu, for the First Defendant
Mr. Rotep, for the Second Defendant
06th July, 2018

REASONS FOR JUDGMENT
1.	FOULDS J:  In this case, the Plaintiff, Samuel Rombil, by Writ of Summons dated 7 December 2011 and filed on 20 December 2011, sued the First Defendant for damages for breach of agreement arising from the breach of a partly oral and partly written agreement between the Plaintiff and the First Defendant to pursue and prosecute an appeal on behalf of the Plaintiff in SCA 43 of 2007 with due diligence and failure to discharge duties in accordance with section 8 of the Professional Conduct Rules 1989.

2.	The Plaintiff alleged that he was the owner of a 15 seater Toyota Hiace bus Registered Number P. 704Z (the Plaintiff's bus) he had bought for K66,000. 00. At paragraph 26 on page 7 of the Statement of Claim the Plaintiff alleged that the Plaintiff's bus had been involved in an accident at Korifegu Bridge, Eastern Highlands Province on 31 August 2005. And at paragraph 27, that the Policeman who attended the site following the accident failed to look after the Plaintiff's bus and consequently it was completely destroyed by the criminals at Korifegu Bridge. He further alleged that on 31 August 2005, that the Plaintiff's bus was only two months old. And at paragraphs 29 and 30 of the Statement of Claim the Plaintiff alleges that at the relevant time, the Policemen including Kope Junior based at Goroka were advised to look after the Plaintiff's bus while the Plaintiff was arranging for a tow truck, but due to the Policemen's failure in protecting the Plaintiff's bus the criminals destroyed it thereby causing the Plaintiff to suffer loss (the Plaintiff's loss).

3.	The  State is named as the First Defendant on the premise that it is the ultimate Master or Principal of the First Defendant and Grace Misina being lawyers for the Office of the Public Solicitor who had carriage of this matter making the State vicariously liable for their conduct. The Defendants filed their respective notices of intention to defend on 14 November 2013, but failed to file their defences within time resulting in the Court entering default judgement in favour of the Plaintiff against the Defendants for damages to be assessed (paragraph 14 on page 3 of the second defendant's submissions filed on 16 April 2018 (the second defendant's submissions)).

4.	At paragraphs 33 of the Statement of Claim, the Second Defendant alleged that the loss of the 15 seater bus was directly attributed to the negligence of the agents or servants of the Independent State of Papua New Guinea and at paragraph 34, that the dismissal of the appeal in SCA 43 of 2007 now puts an end to the Plaintiff's possible claim against the Independent State of Papua New Guinea. And, finally, at paragraph 35, the dismissal of the Supreme Court appeal puts an end to the Plaintiff's claim against the Third Defendant (sic) in the sum of K 66,000 plus the economic loss of K500 per day for three years. I note that no Third Defendant is named in the action and concluded that it results from a typographical error. VI Z, that references to "Third Defendant" in the Statement of Claim and the Second Defendant's submissions are meant to be read as "Second Defendant and Second Defendant's submissions"

5.	At paragraph 20, the Plaintiff alleges that in the alternative, the First Defendant owed a duty of care to the Plaintiff to take all necessary action to ensure that the appeal was prosecuted in a timely manner and that at all material times (sic), the First Defendant was negligent by breaching the duty of care which led to the dismissal of the appeal. I take the use of the description by the Plaintiff "Third Defendant" as a typographical error and it should be read as "Second Defendant".

6.	Finally, at paragraph 22, the Plaintiff alleges that further and/or in the alternative the First Defendant owed to the Plaintiff professional duty of care as stipulated under the Professional Conduct Rules 1989 (PCR) and at paragraph 23, at all material times the First Defendant breached the duties under Professional Conduct Rules.

7.	At this point, three issues loom large for the Court and they are:

1. 	Under the circumstances of the present case whether it is open to the Court to revisit liability.
2. 	In the event that the Court finds that the Second Defendant is vicariously liable for the acts and omissions of the First Defendant as alleged or at all what is the measure of damages?
3. 	In the event that the Court finds of the Second Defendant is not vicariously liable for the acts and omissions of the First Defendant is the Court still obliged to assess damages?

8.	It is now well-settled law that on an assessment of damages resulting from default judgement if the assessing judge concludes that:

i. 	The Plaintiff fails to sufficiently prove his loss; or
ii.	 No cause of action is disclosed in the statement of claim; or
iv. 	The claim is frivolous or vexatious; or
v. 	Claim amounts to abuse of the Court process;

The assessing judge may refuse to assess damages: Wapi v Iali (2014) PGSC 32; SC 1370 (04 July, 2014).

9.	In that case, the Supreme Court canvassed a series of cases including William Mel v Coleman Pakalia & Ors (2005) PGSC  36; SC790; Rpundi Maku v Steven Maliwolo & Anor (2012) SC1171; Jack Pinder v Sam Inguba & Anor (2012) SC1181 and finding at paragraph 12:
"Given the above, we are of the view that where a judgement, be it default or otherwise, has been entered, and a primary judge determines, after concluding a hearing to assess damages, that the Plaintiff has not sufficiently proved his loss or that no cause of action is disclosed in the Statement of Claim or that the pleadings are defective or that the claim is frivolous or vexatious or is an abuse of process, he is entitled to refuse to make an award." 

10.	Applying those principles to the present case leads me to conclude first, that no cause of action is disclosed in the Statement of Claim, secondly, the Plaintiff's pleadings are defective and thirdly, I refuse to make an award of damages in favour of the Plaintiff against the Second Defendant. I say that for the following reasons:

1. 	There is no evidence that any Policemen were present at the accident site or had been ordered to be so to protect the PMV bus and failed to protect the PMV bus when it was looted.
2. 	It is a long held common law principle, articulated in Maku v Maliwolo (supra) that the police do not owe a duty of care to the public at large and there is no cause of action in law for any action or claim against the Police for failure of a Policeman or Policemen to prevent this kind of destruction or loss of a private citizen's property under these or similar circumstances if the officers or officer was not present to prevent it. In this case the destruction of property was some kilometres away from Goroka town where the Police were stationed and there is no evidence that the Police were present when the destruction occurred. It follows, that the Police and therefore the state vicariously did not owe a common law duty of care to the Plaintiff. Consequentially, therefore, the Plaintiff had no common law cause of action against the Second Defendant.
3. 	Likewise, I conclude that the pleadings in the Plaintiff's Statement of Claim are defective.

11.	My reasons for thus concluding is best explained by reference to the Supreme Court in paragraphs 10, 11 and 12 of its judgement in Pinder's case (supra). viz:
"10. 	In this case, the cause of action was based on the tort of negligence. To succeed in having the second respondent held liable for the negligent actions or omissions of the Policemen, the National Court has to be satisfied that:
(a) 	The Policemen as servants or agents of the Second Respondent committed the tort of negligence during the course and within the scope of their employment; section 1 (1) (a) of the Wrongs (Miscellaneous Provisions) Act Ch 297 ("Wrongs Act"); and
(b)	The Policemen as officers of the Second Respondent committed the tort of negligence while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law: section 1 (4) of the Wrongs  Act. 
11. 	The Trial Judge found that the pleadings in the Amended Statement of Claim were lacking because while the Appellant pleaded that the Respondents were vicariously liable for the acts or omissions of their servants or agents and/or employees pursuant to section 1 (1) of the Wrongs Act, he did not plead that they committed the alleged negligent acts or omissions during the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law.
12.	We have perused the Amended Statement of Claim and find no statement alleging that the Policemen were acting in the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law under the principles of vicarious liability pursuant to section 1 (1) & (4) of the Wrongs Act.” This is a fundamental omission because its omission means that there is no nexus or connection between the Policemen and the First Respondent and ultimately the Second Respondent (State) to hold it vicariously liable in damages. (The underlining is mine).

12.	In this case there is no allegation in the Statement of Claim that the Policemen were acting in the course of and within the scope of their employment with the State or performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law under the principles of vicarious liability pursuant to sections 1 (1) & 1 (4) of the Wrongs Act. It follows that the Plaintiff has no cause of action against the Policemen or the State for damages in negligence or the underlying law and the action against them must fail. I therefore refuse to make an award damages.  The action against the State is therefore dismissed and there will be judgement for the Second Defendant against the Plaintiff.
 
13.	The action against the First Defendant is pleaded in breach of a contract as pleaded in paragraph 11 of the Statement of Claim and breach of statutory duty under the Professional Conduct Rules 1989 (PCR) as pleaded in paragraph 22 of the Statement of Claim. The Plaintiff's evidence in support of his claim is contained in two affidavits filed on 18 December 2013 and 12 December 2016. The defendants called no evidence and relied on submissions.

14.	In paragraphs 20 to 12 inclusive in pages 4, 5, and 6 of the Second Defendant's submissions filed on 16 April 2018,   Mr Rotep of counsel for the Second Defendant sets out by way of a table an analysis of the Plaintiff's evidence attached hereto is a copy of that table. I agree completely with that analysis and adopt and rely on it as part of these reasons for judgement. I would add, relating to the analysis of annexure C to paragraph 9 of the Plaintiff’s affidavit filed on 12 December 2016: "and adds, no more than confusion".

15.	In summary, the affidavits contain insufficient evidence to enable me to determine on the balance of probabilities whether the First Defendant was in breach of contract or statutory duty. Nor is there sufficient evidence to enable me to properly assess damages. 

16.	Under the circumstances, I refuse to make an award of damages. 

Order as follows:

1.	That the Plaintiff pay the Defendant’s costs of and incidental to the action.

Ruling and orders accordingly.
________________________________________________________________
Paulus M Dowa Lawyers: Lawyers for the Plaintiffs
Public Solicitor’s Office: Lawyers for the First Defendant 
Solicitor General’s Office: Lawyers for the Second, Third & Fourth Defendant   

Analysis of the Plaintiff’s Evidence

1.	After careful analysis of the Plaintiff’s evidence in both his affidavits, the Plaintiff’s evidence we have summarised the Plaintiff’s evidence in his respective affidavits in the tables below:
Affidavit filed on the 18th of December, 2013
Paragraph. No.	Statement deposed in affidavit	Evidence to substantiate	Analysis of Evidence	
				
4	Plaintiff was paid his POSF retirement savings of K76, 509.48 after May, 2005	Annexure A	Sufficient Evidence	
5, 6, 6, 7 & 8	Purchased a 15 seater Toyota Hiace bus from Ela Motors for K66, 000.00 on the 16th of July, 2005.	Annexure B, C, & D	Sufficient Evidence	
10	Was issued a PMV Licence	Annexure E	Sufficient evidence to confirm that the bus was registered as a PMV Reg. No. P7042 on the 19th of July, 2005. 	

Summary: There is sufficient evidence to proof that the Plaintiff bought a 15 seater Toyota Hiace bus from Ela Motors on the 16t of July, 2005 using his POSF retirement savings and registered the bus as a PMV on the 19th of July, 2005.

11	Vehicle was involved in an accident when it was two (2) months old	NIL	Insufficient Evidence	

Affidavit filed on the 12th of December, 2016
Paragraph. No.	Statement deposed in affidavit	Evidence to substantiate	Analysis of Evidence	
				
3	Default Judgment was granted on the 14th of November, 2013
	Annexure A	Sufficient Evidence	
4	Policemen failed to protect Plntf’s PMV bus when they were specifically ordered by their supervisor to do so.	NIL	There is no evidence to proof that policemen were ordered by their supervisors to protect the Plntf’s vehicle	
5	National Court refused to grant leave to Plntf to give section 5 Notice out of time in proceeding OS No. 833 of 2006 on 13th April, 2007	NIL	There is no evidence of the Court proceeding, no evidence of the Court order and reasons for the Court order.
	
6	Plntf appealed the N/Court’s decision in Supreme Court proceeding SCA No. 43 of 2007	NIL	There is no evidence of the Notice of appeal, whether he filed the appeal in person or was represented by a law firm.	
7 & 8	Plntf sought legal aid from the 1st Defendant on 27th/04/09  and was provisionally granted legal aid  	Annexure B	Annexure B is a legal aid application form. There is no evidence to proof that legal aid was provisionally granted. 	
9	Plnt gave section 5 Notice on 14th April, 2011.	Annexure C	The background facts contained in the Notice are inconsistent with the Statement of Claim 	
10 & 11	Plnt was instructed to deposit K200 and was formally advised  that Public Solicitor will take carriage of the matter	NIL	There is nothing to prove that the Plaintiff deposited K200 and there is no written confirmation or evidence to prove that the First Defendant agreed to take carriage of the appeal	
12 & 13	The 1st Defendant belatedly filed a Notice of Appearance on the 16th of November, 2010 and failed to take steps to progress the appeal to hearing	NIL	There is no evidence of a copy of the alleged Notice of Appearance to confirm that the 1st Defendant did formally file a Notice of Appearance for the Plaintiff.	
14	Supreme Court dismissed appeal on 10th October, 2010.	NIL	Insufficient evidence	
15, 16, 17	Initial claim was for PMV bus valued at around K66, 000.00 completely destroyed in an accident on the 31st of August, 2005	Refer to affidavit filed on 18th December, 2013	Insufficient evidence	
18	Plntf was injured during the accident and was taken to Goroka base Hospital	Annexure D & E	Sufficient evidence	
19	Plnt told policemen at Goroka Police Station to look after his bus and they promised to do that. 	NIL	Insufficient evidence	
20 & 21	Arranged for tow truck whilst at the Hospital. When tow truck went to the scene, bus was already vandalized and looted.	Annexure F	Annexure F confirms that tow truck went to the scene of the accident on Friday 02nd September, 2005, that is 2 days after the date of the accident which was 31st August, 2005.	
22	Policemen also did report	Annexure G	Annexure F confirms the Plaintiff as the driver and a victim of the accident and also owner of the bus.