N9514
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 66 OF 2013 (CC1)

BETWEEN:
TOYAGA LIMITED
Plaintiff

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Defendant

AND:
MR ISAAC SILAS,
CHIEF COMMISSIONER OF THE NATIONAL FIRE SERVICE FOR PNG
Second Defendant

AND:
MR ALPHONSE KUNDI
MANAGER OF PNG FIRE SERVICE OF MT HAGEN
Third Defendant

AND:
MR WILLIAM KORUA
SUB OFFICER OF PNG FIRE SERVICE, MT HAGEN
Fourth Defendant

AND:
MR YANGO MALE
SUB OFFICER OF PNG FIRE SERVICE, MT HAGEN
Fifth Defendant

AND:
THE WATER BOARD OF PNG
Sixth Defendant
AND:
MR JACK MORO
IN HIS CAPACITY AS THE MT HAGEN BRANCH MANAGER OF WATER BOARD PNG
Seventh Defendant

Waigani: Tamade AJ
2021: 18th October
2022:  28th March

TORTS - Negligence – alleged breach of duty of care – alleged failure by PNG Fire Service to attend and stop fire – fire spread unto plaintiff’s property from adjacent property – resulted in the complete destruction of plaintiff’s property.
PRACTICE & PROCEDURE – trial on assessment of damages – revisit pleadings – prove existence of a breach of duty of care – no identifiable cause of action – failure to establish a cause of action – no damages awarded.

Cases Cited
Papua New Guinean Cases

Maku v Maliwolo (2012) SC1171
Awaparu v Commissioner of Police (2018) N7177
Wapi v Ialy (2014) SC1370  
Kaka Kopun v The State [1980] PNGLR 557
Baikisa v J & Z Trading Ltd [2016] PGNC 13; N6181
Rombil v Pitpit [2018] PGNC 244; N7344 

Overseas Cases

Donohue v Stevenson  [1932] UKHL 100; 1932] AC 562

Legislation

Constitution of the Independent State of Papua New Guinea 1975
Fire Service Act 1962

Counsels:	

Mr Moses Israel Saka, for the Plaintiff
Mr Max Tukuliya, for the Defendant

28th March, 2022

1. 	TAMADE AJ: This is a decision on a trial on assessment of damages after a finding of liability against the Defendants by way of summary judgment entered by Justice Sir Bernard Sakora (as he was then) against the Defendants on 10 December 2015. The Defendants had attempted to set aside the summary judgment however this was refused by His Honour Justice Oagile Key Dingake on 6 August 2018.

2. 	The Plaintiff claims that it is a company engaging in commercial property and is the registered proprietor of Section 22 Allotment 19 in Mt Hagen, Western Highlands Province.

3. 	On or about 20 September 2007, a fire started on a property in Mt Hagen described as Section 22 Allotment 18, however, the cause of the fire is not known as put forth by the Plaintiff. The fire then spread to the nearby property which is Section 22 Allotment 19 owned by the Plaintiff and completely destroyed the property. The Plaintiff claims as against the Defendants for their failure to manage, contain and put out the fire whereby his property was completely ravaged by the fire which had spread over from the nearby property.

4. 	Perusing through the pleadings in the Statement of Claim in this matter, the Plaintiff alleges that the Fire Service was negligent in its conduct in not maintaining proper equipment, machinery, and vehicles to attend at the fire scene and do everything necessary to contain and put out the fire to prevent it from spreading to the Plaintiff’s property. The Plaintiff had filed an Affidavit of Public Knowledge and Admission of Negligence by the State by a Tom Yalu on 20 June 2014. The Affidavit annexes several publications in the newspaper about the inadequacies of the PNG Fire Service and refers to several fire incidences in the country where the PNG Fire Service had failed to adequately carry out its statutory functions to contain these fires and maintain their duties. Perhaps this was the Affidavit relied on by the Plaintiff to seek summary judgement as the trial of this matter concentrated only on the assessment of damages aspect as the Plaintiff had strongly submitted that the issue of liability was resolved.

5. 	I am minded to make these observations as the State had made submissions that the issue of liability should be revisited even though liability was decided. The State relies on the case of Maku v Maliwolo (2012) SC1171 where the Supreme Court said that:

“As a general rule, a default judgment entered by consent or otherwise determines the issue of liability and the only issue for determination by the Court is assessment of damages. Therefore, it is not open to the Court to revisit or relook at the issue of liability. However, there is an exception in cases where the pleadings do not disclose a cause of action in law. William Mel -v- Coleman Pakalia, The Police & The State (2005) SC790; Titus Wambun -v- The Commissioner of Police & The State (2009) N3787 and Keith Reith -v- Murray Hallam and Allcad Pty Ltd (1995) N1337 referred to.”

6. 	The State through the Office of the Solicitor General implores me to find that even though summary judgement was entered, the Court should revisit the issue of liability as the Plaintiff has not properly pleaded an identifiable cause of action as against the State. 

7. 	The Court in the case of Awaparu v Commissioner of Police (2018) N7177, the Court held that:

“The State’s attempt to revisit liability was misconceived as liability had been established after a trial, not by default judgment, so the only avenues by which the question of liability could legitimately be revisited were by making a slip rule application to the National Court or appealing to the Supreme Court. Neither avenue was taken so the application to revisit the issue of liability was dismissed.”

8. 	The State also relies on the case of Wapi v Ialy (2014) SC1370 in regard to the Court’s powers pursuant to section 155(4) of the Constitution. This Supreme Court decision gives light as to when judge in the National Court can revisit a decision of another judge in the National Court given that liability was found either through default judgement application and or through summary judgement and or through other summary manner as opposed to a trial or hearing where all parties were present. It is accepted law that a decision of the National Court can be revisited when it was made ex parte through an application by the non-attending party, by way of a slip rule application and or by way of an appeal to the Supreme Court. 

9. 	The Court, therefore, has an inherent power to make such a decision in the control of proceedings before it pursuant to Order 12 Rule 1 of the National Court Rules and in order to dispense justice in each case as enshrined in section 155(4) of the Constitution.

10. 	This quote from the Supreme Court in the Wapi v Ialy case is applicable to this current case where the Court stated that:

“we are of the view that where a judgment, 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 of damages. This is in accord with him being able to consider the question of liability for the damages claimed. To dismiss the entire proceeding however, in the absence of any application to set aside, as in this case, the effect of which is to review the decision to enter judgment and to set such judgment aside, is in our respectful view, to fall into error.”

11. 	 I am therefore minded to take that route and revisit the issue of liability on submissions by the State that the summary judgement was entered ex parte however more on the basis that there is no cause of action as against the State based on the pleadings in the Statement of Claim in these proceedings. 

12. 	The State made submissions that the Plaintiff’s claim is founded on the tort of negligence where it alleges that the Defendants breached a duty of care owed to the Plaintiff. The State submits that the PNG Fire Service owe no duty of care to the Plaintiff or to the public at large. The State relies on the case of Maku v Maliwolo (supra). The facts of Maku v Maliwolo were that the appellants, villagers from the Mul District in Western Highlands Province alleged that the Police had failed to stop a tribal fight between them and an enemy tribe and as a result, the enemy tribe destroyed villages, gardens and livestock resulting in the death of one person. The Supreme Court decided that the decision on liability should be revisited on the exceptions that the pleadings do not disclose a cause of action in law. The Supreme Court said:

“At common law, the police owe no duty of care to the public at large. Further, there will be no duty of care if it is against wider policy issues, such as where it may adversely affect the way in which the police carry out their duties for fear of litigation. Hill -v- Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53 followed.
 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 a duty of care to the appellants to attend and stop the tribal fight, does not exist in law because police owe no duty of care to the public at large and it is against public policy”

13. 	The State had submitted that at common law, there is no duty of care as owed by the Police to the public based on public policy considerations and this also applies to the Fire Service. Holding the Fire Service liable on the tort of negligence for failing to put out fires will set a bad precedent as against public policy. I turn to the Fire Service Act 1962 particularly at section 14 which states that:
1.	LIABILITY FOR DAMAGE BY FIRE BRIGADE.
No liability attaches to the State or a member of a Fire Brigade, or to a person who, at the request or under the authority of an officer, lends assistance at a fire, in respect of damage to property occasioned by a member of a Fire Brigade or any such person in the bona fide exercise of his duty at a fire, but damage so occasioned shall be deemed to be damage by fire within the meaning of any policy of insurance against fire covering the damaged property.

14. 	Section 14 of the Fire Service Act exonerates the Fire Service and the State and any authorised person who lends assistance at a fire in respect to any damage to property occasioned by their conduct at the fire. There is no statutory duty of care imposed by the Fire Services Act on the Fire Service and the State.

15. 	The State, to my mind has correctly submitted that the Plaintiff only has a claim against their insurers if they are insured over their property. The Plaintiff has received a payment of K639 000 from Tower Insurance as the limit for the cover as a result of the loss of their property in the fire in October of 2008. The Plaintiff in this case is asking the Court for Damages for Excess Replacement Construction Costs and Incidental Cost Obligations in the sum of K915 500.27 which is after receiving the insurance payout which they say is the costs for the rebuilding of the new property. This is an extra cost outside of the insurance cover and to my mind, the Plaintiff is asking to be better off before the destruction caused by the fire and or borders on unjust enrichment. The principle of damages is to restore the Plaintiff to as nearly as possible the state or position he was in before the damage occurred. (See Kaka Kopun v The State [1980] PNGLR 557).

16. 	The Plaintiff also claims for loss of business in the sum of K468 000 plus the Excess Replacement Constructions Costs of K915 500.27, the total claim is K1 383 500.27. This cannot be tied in the hands of the Fire Service and the State and or all the Defendants as the direct cause of the Plaintiff’s loss is caused by the fire from the adjacent property. The fire caused the destruction. There is no exact science but logic that if the Fire Service had attended at the scene which they did and attempted to put out the fire with all that they can do in the circumstances, how does a Court find whether they could have saved the entire property and or how much of the property could have been salvaged as there are too many factors to consider when there is fire, the weather conditions on that day, were the winds very severe, whether there were flammable materials present at the scene etc etc, It is therefore unreasonable to hold the Fire Service accountable pursuant to a duty of care that does not exist to my mind and for good public policy reason.

17. 	Justice David Cannings in the case of Baikisa v J & Z Trading Ltd [2016] PGNC 13; N6181 (12 February 2016) stated that:

“To establish a cause of action in negligence, a plaintiff must prove the 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.”

18. 	A finding of duty entails that the duty is imposed by Statute or in common law that one is so close in proximity to the other that they ought to be mindful of their conduct which would result in injury to the other as set down in the famous case on negligence in the case of  Donohue v Stevenson  [1932] UKHL 100; 1932] AC 562. I find that there is no duty owed by the Defendants to the Plaintiff. 

19. 	 Having found that the Defendants and or the Fire Service does not owe a duty of care to the Plaintiff and therefore there is no cause of action as against the Defendants, it is not necessary for me to consider the State’s submissions that the Plaintiff failed to plead section 1(1) and (4) of the Wrongs (Miscellaneous Provisions) Act to hold the State liable for the acts and or omissions of the Defendants and or whether the pleadings are embarrassing because they state evidence rather than plead facts.

20. 	The Plaintiff in response to the State’s submissions on revisiting liability had only maintained that judgement on liability was decided and no further submissions were made on the specific points raised by the State.

21. 	I would therefore take the approach by the Court in Rombil v Pitpit [2018] PGNC 244; N7344 (6 July 2018) whereby the Court followed the Supreme Court case of Wapi v Ialy (supra) and refuse to make an award for damages for the Plaintiff. In this case, I also refuse to make any award of damages for the Plaintiff as I find that there is no duty of care owed by the Defendants to the Plaintiff and therefore there is no cause of action as against the Defendants.

22. 	I therefore make the following orders:

1)	The Plaintiff’s claim for damages is refused.
2)	Plaintiff shall meet the Defendant’s costs of these proceedings on a party/party basis.

Orders accordingly.
________________________________________________________________
M Saka Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants