Wesley v Leonard [2018] PGNC 49; N7119 (6 September 2018)

N7119

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 574 OF 2013

KISI TROKOWA
Plaintiff

V

INSPECTOR KOIVE IPAI,
HOHOLA POLICE STATION COMMANDER
First Defendant

COMMISSIONER OF POLICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani : Cannings J

2015: 17 December

2016: 1 July

2018: 23 February

TORTS – negligence – whether members of Police Force owe duty of care to members of the public – whether a member of the Police Force or the State is liable for negligent failure of police to prevent crimes.

HUMAN RIGHTS – whether a member of the Police Force can be liable for a breach of human rights constituted by a negligent failure to prevent crime.

The plaintiff alleged that his house was destroyed and looted and that he suffered property losses due to the negligent failure of members of the Police Force to respond to his request for police assistance after he reported an ongoing ethnic clash (in which he was not involved) in the area of his house. He commenced proceedings against the commander of the police station at which he reported the matter, the Commissioner of Police and the State, relying on two causes of action: the tort of negligence and breach of human rights. The defendants’ primary defence was that the police do not owe a duty of care to members of the public as far as prevention of crime is concerned and therefore no liability could be established in negligence or for breach of human rights.

Held:

(1) Members of the Police Force owe no duty of care to members of the public as far as prevention of crime is concerned (Maku v Maliwolo (2012) SC1171 applied). Thus no action in negligence against the defendants could be established.

(2) Breach of human rights is a separate and distinct cause of action. It is conceivable that the negligent failure of members of the Police Force to respond to a reasonable request for assistance from a member of the public could amount to a breach of human rights, eg under Section 41 (proscribed acts) of the Constitution. However the alleged breach of human rights was not articulated clearly in the statement of claim and not strongly pursued at the trial, and the evidence fell short of demonstrating any breach of human rights.

(3) The plaintiff failed to establish any cause of action and the proceedings were entirely dismissed.

Cases cited

The following cases are cited in the judgment:

Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562
Douglas Aire v Simon Togoi (2016) N6434
Edward Etepa v Gari Baki (2015) SC1502
Rupindi Maku v Steven Maliwolo (2012) SC1171
Simon Yayonga v Anton Haniken (2012) N4876
Steven Kaipa v RD Tuna Canners Ltd (2017) N6650

APPLICATION

This was a trial on liability for negligence and breach of human rights.

Counsel:

E Ramatlap, for the Plaintiff
T Mileng, for the Defendants

23^rd February, 2018

1. CANNINGS J: The plaintiff Kisi Trokowa alleges that in November 2011 his house in Burn’s Peak settlement, Port Moresby, was destroyed and looted and that he suffered property losses due to the negligent failure of members of the Police Force at Hohola Police Station to respond to his request for police assistance after he reported an ongoing ethnic clash (in which he was not involved) at the settlement. He brings actions in negligence and breach of human rights against the commanding officer of Hohola Police Station, the Commissioner of Police and the State. He claims that the Commissioner and the State are vicariously liable for the conduct or lack of action of the police at Hohola. He seeks damages.

EVIDENCE

2. The plaintiff has given evidence of a clash between people from Goroka and Tari that proceeded over a period of three days. He was not involved as he is from Western Highlands. The Hohola police came to the scene on the first day and things quietened down but when the police left the fighting erupted again. He was caught up in it and physically attacked for no good reason, so he walked to the police station and his complaint was registered in the OB (Occurrence Book). He asked the police on duty to please come to his house and check what was happening as things were getting out of hand. The police responded that they did not have a vehicle with fuel and they lacked manpower, and advised him to go and stay elsewhere until the situation was brought under control. He did as they advised and went away. He returned the next day to find that his house had been destroyed and looted. His house was worth at least K15,000.00 and the value of lost property was K10,000.00.
DEFENCE

3. The defendants did not offer any evidence to rebut the plaintiff’s factual allegations. They have defended the claim on a question of law. Their primary defence is that the police do not owe a duty of care to members of the public as far as prevention of crime is concerned, relying on the Supreme Court decision in Rupindi Maku v Steven Maliwolo (2012) SC1171, and therefore no liability can be established in negligence or for breach of human rights.

NEGLIGENCE

4. Negligence is a tort, a type of civil wrong, emerging from the common law of England and adopted as part of the underlying law of Papua New Guinea. To establish a cause of action in negligence the plaintiff has to prove the existence of each of the following elements of the tort:

(a) the defendant owed a duty of care to the plaintiff;

(b) the defendant breached that duty (acted negligently);

(c) the breach of duty caused damage to the plaintiff; and

(d) the type of damage was not too remote (Steven Kaipa v RD Tuna Canners Ltd (2017) N6650).

5. In Rupindi Maku v Steven Maliwolo (2012) SC1171 the Supreme Court (Lenalia J, Makail J, Kariko J) held that under the common law, members of the Police Force owe no duty of care to members of the public as far as prevention of crime is concerned, the reasoning being that deployment of scarce police resources is a matter of discretion for police to consider and that to expose members of the Force to the risk of litigation as to the conduct of police operations would impair their ability to discharge the duties of the Police Force under Section 197 of the Constitution to “preserve peace and good order in the country [and] maintain and, as necessary, enforce the law in an impartial and objective manner”. The Court stated:

37. The common law is consistent with Section 197 of the Constitution where the police have a responsibility for maintaining law and order but are subject to no specific requirement as to the way in which they do it. The common law in England prior to Independence is applicable where appropriate in PNG as part of the underlying law pursuant to Schedule 2.2 of the Constitution. In our view, these principles developed in Hill’s case and adopted by the Courts of other common law jurisdictions such as Australia, Fiji, Kiribati, Tonga and very recently, PNG, are sound, appropriate and consistent with the Constitution and we would adopt and apply them in this case.

38. These principles are sound, appropriate and consistent with the Constitution because if the law were to impose or create a specific duty of care on the police in the discharge or performance of their duties, it will result in all manner of litigation against them and the State. It is common knowledge the Police Force has inadequate manpower and resources to maintain law and order in the country. Time and again, police manpower and resources have been stretched to the limit, and in our view, it would be unwise and inappropriate to impose or subject them to specific requirements as to the way they discharge or perform their duties.

39. In the present case, the destruction and looting of the appellants’ property was done by the enemy tribe. The police were not the ones who destroyed and looted the appellants’ property. The allegation that the police owed them a duty of care to protect their lives and property and should have attended and stopped the tribal fight does not exist in law because the police owe no duty of care to the public at large and it is against public policy. As the appellants have failed to establish the existence of a duty of care, there cannot be a breach of that duty by the respondents. It follows the respondents cannot be liable for the damages caused by the enemy tribe.

6. The decision in Maku was reinforced by the Supreme Court (Manuhu J, Kariko J, Murray J) in Edward Etepa v Gari Baki (2015) SC1502:

10. We are of the opinion that the question of whether the police breached a duty of care to provide law and order is answered by the relevant principles pronounced in Maku’s case. Where two tribes have by their own choice developed a dispute at a polling booth into a fully-blown tribal fight resulting in destruction of property belonging to a third party not involved in the fight, we find no legal basis for a claim for damages by that third party against the police for the inaction or the negligence of police in not providing adequate number of policemen to stop the tribal fight. Not only do the police not owe any duty of care to the public at large but clearly the loss suffered by the appellants was caused by the warring tribes and not the police. As Thompson AJ observed in the Catholic Diocese Wabag case: “The police did not destroy the buildings – it was the Ambuli tribesmen who did that. The proximate cause of the loss was the action of the tribesmen, not the inaction of the defendants.” Those remarks are similarly applicable to the present case. The element of causation in this claim is not established.

7. I am bound by those Supreme Court decisions, the principles in which have been applied in a number of National Court decisions including Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562 (Thomson AJ, whose decision pre-dated Maku and was endorsed as correct in Maku), Simon Yayonga v Anton Haniken (2012) N4876 (Kariko J) and Douglas Aire v Simon Togoi (2016) N6434 (Toliken J).

8. Members of the Police Force owe no duty of care to members of the public as far as prevention of crime is concerned. Proof of the existence of a duty of care is an essential element of the tort of negligence. Thus no action in negligence against the defendants can be established.

BREACH OF HUMAN RIGHTS

9. Breach of human rights is a separate and distinct cause of action. It is conceivable that the negligent failure of members of the Police Force to respond to a reasonable request for assistance from a member of the public might amount to a breach of human rights, eg under Section 41 (proscribed acts) of the Constitution.

10. In the present case the alleged breach of human rights was not articulated clearly in the statement of claim and has not been strongly pursued at the trial. In any event the evidence falls short of demonstrating any breach of human rights. The claim for breach of human rights is therefore dismissed.

CONCLUSION

11. The plaintiff failed to establish any cause of action and the proceedings must be dismissed. This appears to have been a genuine claim and in view of the presumed relative economic positions of the parties I will order that they pay their own costs.

ORDER

(1) The proceedings are entirely dismissed.

(2) The parties bear their own costs.

(3) The file is closed.

Judgment accordingly,

________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
Solicitor General: Lawyer for the Second and Third Defendants