Waula v Hela [2020] PGNC 90; N8282 (14 April 2020)

N8282

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No.80 of 2004

BETWEEN:

SENIOR CONSTABLE STEVEN WAULA
Plaintiff

AND:
EMMANUEL HELA in his capacity as Metropolitan Superintendent,
National Capital District
First Defendant

AND:
THOMAS TAIAN in his capacity as Legal Officer, National Capital District
and Southern Region
Second Defendant

AND:
SAM INGUBA, COMMISSIONER OF POLICE
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: David, J
2020: 14 April

DAMAGES – assessment of damages after entry of default judgment – liability in tort of negligence revisited – police owe no duty of care to the public at large - cause of action does not make sense or would make an assessment a futile exercise.

Cases cited:
Banduwara Waranumbo v Hyper Construction Limited (2012) N4882
Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562
Fly River Provincial Government v Pioneer Health Services (2003) SC705
Kiee Toap v The State (2004) N2766
Macoes (PNG) Ltd v Allan Kundi (PPC) (2012) N4621
NCDC v Yama Security Services Pty Ltd (2003) SC707
Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694
Reid v Murray Hallam and Allcad Pty Ltd [1995] N1337
Rupundi Maku v Steven Maliwolo (2011) SC1171
Steven Naki v AGC (Pacific) Ltd (2006) N5015
Teddy Suan v Peter Dumba (2013) N5428
Tigam Malewo & Ors v Keith Faulkner, Ok Tedi Mining Ltd & 3 Ors (2009) SC960
Vailala Purari Investment Ltd v Papua New Guinea Forest Authority (2004) N2594
William Mel v Coleman Pakalia (2005) SC790

Overseas cases cited:
Livingstone v Rawyards Coal Co. [1880] UKHL 3; (1880) 5 App Cas 25
Bonham - Carter v Hyde Park Hotel (1948) 64 TLR 177
Hill v Chief Constable of West Yorkshire (1987) UKHL 12; (1989) AC 53

Counsel:
Steven Waula, self-represented Plaintiff
Emmanuel Tagu, for the Defendants

JUDGMENT

14. April 2020
1. DAVID, J: INTRODUCTION; This is a decision on a contested trial for assessment of damages.
   

PLEADINGS AND BRIEF BACKGROUND

1. The plaintiff, a Senior Sergeant in the Royal Papua New Guinea Constabulary (Police Force), commenced these proceedings on 10 February 2004 by way of a writ of summons endorsed with a statement of claim. A notice of intention to make a claim against the State pursuant to Section 5 of the Claims By and Against the State Act 1996 was given on 11 December 2003. He claims that he suffered loss and damage when allegations were made against him that he was involved in a conspiracy to defraud Police Association Credit Fund Limited which he was the Chairman of and which resulted in a police complaint being laid against him and registered in the Occurrence Book on or about 18 June 2003 and subsequently suspended from work on 3 July 2003 with partial pay. The plaintiff resumed work on or after 30 October 2003.
   
2. The plaintiff was charged for one count of abuse of office under Section 92(2) of the Criminal Code and a count of misappropriation of the sum of K1,550.00 under Section 383A of the Criminal Code: annexures A and B, Exhibit B and annexure A, Exhibit C. The count for abuse of office was dismissed by the Waigani District (Committal) Court on 30 October 2003: annexure D, Exhibit B and annexure B, Exhibit C. On 25 February 2005, on the presentation of an ex officio indictment by the Public Prosecutor after the charge for misappropriation was dismissed by the Waigani District (Committal) Court, the plaintiff was convicted by the National Court of that charge: see Exhibit B.
   
3. The plaintiff alleges that the defendants were guilty of negligence as:
   
   1. the first defendant, a commissioned officer authorised by the third defendant to suspend members of the Police Force, owed a duty of care which he breached when disciplinary procedures and processes under the Police Force Act 1998 were not observed when disciplinary action was taken against him pending investigation of the complaint;
   2. the first defendant denied him the protection of the law under Section 37 of the Constitution by failing to give him the opportunity to state his defence;
   3. the second defendant failed in his duty to provide sound advice to the first defendant with regard to observation of disciplinary procedures and processes under the Police Force Act 1998; and
   4. The third and fourth defendants failed in their duty to have effective oversight and supervision of their servants or agents in the course of performing their duties.
      
5. The plaintiff also alleges that the consequences of the actions or omissions of the defendants were; he suffered physically as a result of being suspended from work without pay; his children were forced to be absent from school for nine weeks; he lost his position as Chairman of the Police Association Credit Fund Limited; he lost respect, integrity and reputation as a Senior Constable of the Police Force and in the Public Service; and he lost respect, integrity and reputation as Senior Vice President of the Police Association of Papua New Guinea.
   
6. The main relief the plaintiff claims against the defendants are general and exemplary damages.
   

7. On 1 March 2004, the defendants, through the Solicitor-General, filed their notice of intention to defend the action. No defence was filed thereafter.

8. On 21 May 2004, default Judgment on liability was entered against the defendants with damages to be assessed.

9. Following negotiations between the parties, a Deed of Release was entered into between the plaintiff through his lawyer, Harvey Bill Nii and the Solicitor-General for and on behalf of the fourth defendant dated 29 June 2005 for the plaintiff to be paid the sum of K350,000.00 in full and final settlement of his claim (the Deed of Release) and for the plaintiff to discontinue the proceedings: annexure D to Exhibit A.

10. On 24 March 2006, a decision was made by the then Solicitor-General not to give effect to the terms of the Deed of Release.
    

EVIDENCE

11. Trial was conducted by affidavits. I admitted the affidavits into evidence despite objections from the opposing parties which I overruled.
    
12. The plaintiff relied on the following affidavits:
    
    1. Affidavit of Raymond Obora sworn and filed on 22 July 2014 (Exhibit A);
    2. Affidavit of Steven Waula sworn on 11 September 2014 and filed on 18 September 2014 (Exhibit B);
    3. Affidavit of Steven Waula sworn and filed on 13 January 2015 (Exhibit C);
    4. Affidavit of Steven Waula sworn and filed on 29 February 2016 (Exhibit D);
    5. Affidavit of Steven Waula sworn and filed on 3 May 2016 (Exhibit E).
       

13. The defendant relied on the affidavit of Johannes Yapi sworn on 20 March 2017 and filed on 21 March 2017 (Exhibit 1).

LEGAL ISSUES

14. The main legal issues that arise in the present case for my consideration and decision are:

1. Whether, despite the entry of default judgment, the issue of liability should be revisited?
2. If not, what are the plaintiff’s damages?

WHETHER, DESPITE THE ENTRY OF DEFAULT JUDGMENT, THE ISSUE OF LIABILITY SHOULD BE REVISITED?

Plaintiff’s submissions
15. The plaintiff representing himself contended that as the issue of liability was determined by the entry of default judgment, the Court was only required to assess the damages sought or in the alternative, pay to him the sum of K350,000.00 pursuant to the Deed of Release.

Defendants’ submissions
16. Mr Tagu for the defendants argued that it is settled law in this jurisdiction for the Court to revisit the issue of liability and dismiss the proceedings on the basis that the pleadings in the plaintiff’s statement of claim do not disclose a cause of action in law. Counsel referred the Court to the Supreme Court decisions in William Mel v Coleman Pakalia and Others (2005) SC790 and Rupundi Maku v Steven Maliwolo (2011) SC1171 to support the proposition.

17. In addition, it was argued that if the cause of action was founded in negligence, which the defendants did not admit, elements of negligence cannot be satisfied in the absence of any duty of care owed to the plaintiff. Counsel relied on Rupundi Maku v Steven Maliwolo (2011) SC1171 which referred to and followed Hill v Chief Constable of West Yorkshire (1987) UKHL 12, (1989) AC 53 where it was held that; at common law, the police owe no duty of care to individual members of the public to identify and apprehend a criminal; and as a matter of public policy, police were immune from actions for negligence in respect of their activities in the investigation and suppression of crime. The Supreme Court observed that the common law is consistent with Section 197 of the Constitution under which 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. It was therefore submitted that the police owed no duty of care to the plaintiff when a complaint laid against him was investigated and further action taken thereafter.

Reasons for decision

18. It is trite law that once a default judgment is entered, the facts as pleaded and their legal consequences in terms of establishing the cause of action as pleaded must be regarded as proven: William Mel v Coleman Pakalia (2005) SC790; Rupundi Maku v Steven Maliwolo (2011) SC1171.

19. A judge assessing damages following entry of default judgment may revisit the question of liability, but the discretion must be exercised sparingly. A judge assessing damages should make only a cursory inquiry to be satisfied that the facts and the cause of action are pleaded with sufficient clarity and if so, liability should be regarded as proven. Only if the facts or cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability: William Mel v Coleman Pakalia (2005) SC790; Rupundi Maku v Steven Maliwolo (2011) SC1171; Banduwara Waranumbo v Hyper Construction Limited (2012) N4882; Teddy Suan v Peter Dumba (2013) N5428.
20. In the event that this issue is considered in favour of the plaintiff, I will then decide what damages should be awarded.

21. So it is instructive that I set out at this juncture the general principles applying to assessment of damages. The general principle applicable when the Court is considering what damages to award which is a principle equally applicable to tort and contract was stated by Lord Blackburn in Livingstone v Rawyards Coal Co. [1880] UKHL 3; (1880) 5 App Cas 25 at 39, where he said:

Where an injury is to be compensated by damages, in settling the sum of money to be given for... damages you should as nearly as possible, get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting compensation..

22. The claimant has the burden of proving his damages. This follows from the general rule that he who alleges it must prove it. In Bonham - Carter v Hyde Park Hotel (1948) 64 TLR 177 at p 178, Lord Goddard, C.J stated:

Plaintiffs must understand that if they bring actions for damages, it is for them to prove their damages; it is not enough to write down the particulars, and, so to speak, throw them at the head of the court, saying: ‘This is what I have lost, I ask you to give me these damages.’ They have to prove it.

23. The Supreme Court in William Mel v Coleman Pakalia (2005) SC790 and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise or identify a number of legal principles that are applicable in assessing damages where liability is established either following a trial or after the entry of default judgment and these are:

• The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)
• Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)
• The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)
• The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)
• If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)
• Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)
• The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)
• The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)
• The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National Court, Kandakasi J.)

24. In William Mel v Coleman Pakalia (2005) SC790, the Supreme Court appears to have endorsed the observation of the trial judge, Justice Gavara-Nanu where his Honour said:

The plaintiff in this case obtained a default judgment against the defendants because the defendants failed to file a defence against the plaintiff’s claims. Thus the matter comes for assessment of damages. However, the claims must be valid and legal before any damages can be assessed and awarded to the plaintiff. The fact that the plaintiff had obtained a default judgment against the defendants does not mean that he is automatically entitled to damages against the defendants. He must first establish that his action is proper and legal and prove his claims before any damages can be awarded to him.

25. These sentiments were echoed in Reid v Murray Hallam and Allcad Pty Ltd [1995] N1337, where the then Deputy Chief Justice, late Sir Mari Kapi commented on the effect of a default judgment as follows:

What then is the effect of a default judgment? A writ of summons should disclose a cause of action in law. That is to say it should allege matters of fact which gives rise to a cause of action in law. In this case the statement of claim alleges a valid contract of employment, breach of that contract and claims damages based on the terms of the contract.

Where default judgment is entered in an unliquidated demand (as in this case) the facts which gives rise to the question of liability are settled. The effect of default of judgment in this case is that there was a valid contract of employment and that there was a breach of that contract. All the facts and legal issues relating to liability are no longer in issue.

Assessment of damages involves consideration of the terms of the contract and assessing the damages that flow from the breach of the terms of the contract. (my emphasis)

26. Here the facts pleaded appear to show that the cause of action is premised on the tort of negligence. There are four essential components of the tort of negligence and these are:

1. the defendant owed a duty of care in law to the plaintiff;

2. the defendant breached that duty;

3. there must be a causal connection between the conduct complained of and the damage, i.e., the negligent conduct of the defendant caused material injury to the plaintiff;
4. the kind of damage suffered by the plaintiff was not so unforeseeable as to be too remote.

27. Where a plaintiff satisfies the Court on the evidence on the balance of probabilities that these requirements have been made out, the defendant should be held liable in negligence.

28. The common law principle that the police owe no duty of care to the public at large and therefore had immunity from negligence claims was discussed in Hill v Chief Constable of West Yorkshire (1987) UKHL 12; (1989) AC 53 as follows:

Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure - for example that a police officer negligently tripped and fell while pursuing a burglar - others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted. I therefore consider that Glidewell L.J., in his judgment in the Court of Appeal in the present case [1988] Q.B. 60, 76, was right to take the view that the police were immune from an action of this kind on grounds similar to those which in Rondel v. Worsley [1969] 1 A.C. 191 were held to render a barrister immune from actions for negligence in his conduct of proceedings in court.

29. As correctly pointed out by Mr. Tagu for the defendants, the common law principle discussed in Hill v Chief Constable of West Yorkshire (1987) UKHL 12; (1989) AC 53 has been adopted and applied in this jurisdiction and it is consistent with Section 197 of the Constitution: Rupundi Maku v Steven Maliwolo (2011) SC1171, Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562, Macoes (PNG) Ltd v Allan Kundi (PPC) (2012) N4621 .

30. This principle was applied in Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562 when determining a claim for damages arising from destruction to the plaintiff’s schools in Wapenamanda caused by warring tribes engaged in a tribal fight.

31. His Honour, Makail, J also adopted and applied this principle in Macoes (PNG) Ltd v Allan Kundi (PPC) (2012) N4621 when dismissing a claim based on failure by policemen to stop an unlawful raid by villagers.

32. I am of the view that this is not an appropriate case to depart from the general immunity that is held by the police from negligence claims as I have alluded to above.
33. Consequently, I will adopt this common law principle and apply it in the present case to revisit the issue of liability noting that the discretion must be exercised sparingly. I do so because I am of the view that the circumstances of the present case warrant. I am of the respectful view that the cause of action founded on the tort of negligence does not make sense or would make an assessment a futile exercise given the police owe no duty of care to the public at large.

34. In case I might be wrong in arriving at the above conclusion (which I think I am not), I have also considered whether the pleadings in the statement of claim could found a claim in either the torts of misfeasance or malicious prosecution or false imprisonment or for unlawful termination of employment. My cursory inquiry has also revealed that the statement of claim does not clearly set out the legal ingredients or the elements of any of those causes of action and the facts to support them: Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694, Kiee Toap v The State (2004) N2766, Tigam Malewo v Keith Faulkner (2009) SC960. The upshot of this is that, and notwithstanding my earlier observations on the tort of negligence, I think the statement of claim is ambiguous and has left the defendants guessing as to what the plaintiff’s allegations really are.

35. For these reasons, I will dismiss the plaintiff’s claim.

CONCLUSION
36. Given the outcome of the first issue does not favour the plaintiff, it will not be necessary to address the second issue.

37. In closing, I make a brief observation about the Deed of Release. A copy of the Deed of Release is annexure D to Exhibit A. It is settled law in this jurisdiction that a deed of release is a contract and upon execution of a contract, a new cause of action arises: NCDC v Yama Security Services Pty Ltd (2003) SC707. The plaintiff was at liberty to file fresh proceedings to enforce the terms of the Deed of Release: NCDC v Yama Security Services Pty Ltd (2003) SC707, Vailala Purari Investment Ltd v Papua New Guinea Forest Authority (2004) N2594. This, from the evidence available, the plaintiff has not done.

COSTS
38. The awarding of costs is discretionary. Costs usually follow the event. However, taking into account the conduct of the parties as to how this claim has been progressed to trial since its inception including the entry of default judgment on liability and in the exercise of my discretion, I will allow the parties to bear their own costs of the proceedings.

ORDER
39. The formal orders of the Court are:

1. The plaintiff’s claim pursued by way of a writ of summons filed on 10 February 2004 is dismissed.
2. The parties shall bear their own costs of the proceedings.
   

Judgment and orders accordingly.

________________________________________________________________
Self-Represented Plaintiff
Solicitor-General : Lawyer for the Defendants