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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO 177 OF 2010
BETWEEN
RUPUNDI MAKU FOR HIMSELF AND ON BEHALF OF THE ESTATE OF WILLIAM MAKU AND ISSAC PIK AND OTHERS (WHOSE NAMES ARE ANNEXED TO THE SCHEDULE
HERETO)
Appellants
AND
STEVEN MALIWOLO - RURAL ZONE COMMANDER
First Respondent
AND
WINNIE HENAO - PROVINCIAL POLICE COMMANDER
Second Respondent
AND
SAM INGUBA - COMMISSIONER FOR POLICE
Third Respondent
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
(Fourth Respondent
Waigani: Lenalia, Makail & Kariko, JJ
2011: 28th October & 2012: 02nd March
TORTS - Negligence - Alleged failure or inaction by police to attend and stop tribal fight - Tribal fight between two enemy tribes - Tribal fight resulted in destruction and looting of property by enemy tribe.
DAMAGES - Claim for general damages, special damages and exemplary damages - Loss of property - Entry of default judgment by consent - Assessment of damages.
PRACTICE & PROCEDURE - Dismissal of proceeding following trial on assessment of damages - Cause of action - Alleged negligence - Elements of - Duty of care - Existence of - Breach of duty of care - Failure to establish a cause of action - Effect of - No damages may be awarded - National Court Rules, 1983 - O 12, r 40(1)(a).
Facts
The appellants are a group of villagers from Kum village in the Mul District of Western Highlands Province. They commenced a class action against the respondents under section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297 for alleged negligent acts or omissions by the members of the police force. They alleged the first, second and third respondents failed to attend and stop a tribal fight between them and an enemy tribe. As a result, the enemy tribe destroyed and looted property of various descriptions, food gardens and livestock, and killed the principal appellant's son and nephew.
Default judgment was entered by consent and the matter went for trial on assessment of damages. Trial was by affidavits and parties elected not to cross-examined deponents of the affidavits. The National Court dismissed the action. It held first, the appellants failed to prove damages because their evidence was hearsay and not credible. Secondly, the appellants failed to establish a reasonable cause of action known to law for damages to be awarded.
Held:
1. 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.
2. 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.
3. 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. Therefore, the police owe no duty of care to the public at large and there is no duty of care if it is against public policy.
4. 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.
5. 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 are not liable for damages caused by the enemy tribe.
6. The learned trial judge did not err when he revisited the issue of liability following entry of default judgment as there was an issue in relation to the cause of action and correctly found that there was no cause of action for which damages can be awarded.
7. The appeal was accordingly, dismissed with costs.
Cases cited:
Papua New Guinea cases
Coecon Limited -v- National Fisheries Authority & The State (2002) N2182
William Mel -v- Coleman Pakalia, The Police & The State (2005) SC790
Keith Reith -v- Murray Hallam and Allcad Pty Ltd (1995) N1337
Simon Awaria & 20 Ors -v- Sam Inguba as Commissioner of Police, Electoral Commission & The State (2006) N3044
Catholic Diocese of Wabag Board of Trustees -v- Enga Provincial Government, Gari Baki Commissioner of Police & The State: WS No 1416 of 2008 (Unnumbered & Unreported Judgment of 24th October 2011)
Overseas cases
Tringali -v- Stewardson Stubbs & Collett Ltd [1965] NSWR 418
Cox -v- Journeaux (No. 2) [1935] HCA 48; (1935) 52 CLR 713
Donoghue -v- Stevenson [1932] AC 562
Hill -v- Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53
Crowley -v- Commonwealth of Australia, Australia Capital Territory and Pitkethly [2011] ACTSC 89
Kester Yee -v- Commissioner of the Fiji Police Force [2011] FJHC 38
Douglas Bamleett -v- Inspector Shailesh Kumar & Ors [2011] FJHC 37
Tiara Enterprises Ltd -v- Attorney General [2009] FJHC 155
Wargtaj Seafood Products Ltd -v- Minister of Home Affairs [2000] FJHC 213
Tio -v- Beengo [2003] KIHC 89
Jagroop -v- Sokai & Tonga [2001] TOCA 10
Knightly -v- Johns [1981] EWCA Civ 6; [1982] 1 All ER 851
Rigby -v- Chief Constable of Northamptonshire [1985] 2 All ER 985
R -v- Metropolitan Police Commander, ex parte Blackburn [1968] 1 All ER 763
R -v- Chief Constable of Devon and Cornwall Constabulary, ex parte Central Electrical Generating Board [1981] 3 All ER 826
Caparo Industries PLC -v- Dickman [1990] UKHL 2; [1990] 2 AC 605
Sutradhu -v- Natural Environment Research Council [2006] EWHC 3083; [2006] 4 All ER 490
Smith -v- Chief Constable of Sussex Police (2008) EWCA CIV 39
Legislations
Wrongs (Miscellaneous Provisions) Act, Ch 297
National Court Rules, 1983
Counsel
Mr C Narokobi with Mr S Tanei, for Appellants
Mr L Kandi, for Respondents
JUDGMENT
02nd March, 2012
1. BY THE COURT: This is an appeal against the decision of the National Court of 02nd November 2010 which dismissed the appellants' action for damages. The National Court held first, the appellants failed to prove their damages and secondly, failed to establish a cause of action known to law for damages to be awarded.
Brief Facts
2. The appellants are a group of villagers from Kum village in the Mul District of the Western Highlands Province. They commenced as class action against the respondents under section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297 for alleged negligent acts and/or omissions by the members of the police force. They alleged the first, second and third respondents failed to attend and stop a tribal fight between them and an enemy tribe. As a result, the enemy tribe destroyed and looted property of various description, garden crops and livestock, and killed the principal appellant's son and nephew.
3. Default judgment was entered by consent and the matter went before the National Court for trial on assessment of damages. The trial was conducted by affidavits and parties elected not to cross-examine deponents of the affidavits. The National Court dismissed the action holding that the appellants:
(a) failed to establish a cause of action known to law for damages to be awarded; and
(b) failed to prove their damages on the balance of probabilities because their evidence was hearsay and not credible.
Grounds of Appeal
4. There are 13 grounds of appeal. They are set out in full below:
"3.1 His Honour erred in law and fact in not making findings of assessment of Damages pursuant to evidence before him in the Affidavits of Jackson R. Yaku and Rupundi Maku and all other evidence as Judgment had been entered in favour of the Plaintiff.
3.2 His Honour erred in law and fact in failing to exercise His Judicial Powers pursuant to Order 10 Rule 19 of the National Court Rules to assess damages given in principles of Assessment in Coecon -v- NFA of PNG, law in Gaya Namgui -v- Administration of Territory of PNG, Kopung Brothers Business Group -v- Sakanun Kavieng and State, Aimon Aure & Ors -v- Captain Peter Boko and the State and Inabari & Anor -v- Sapate, The State and Make Keive -v- Thomas Kujip.
3.3 His Honour erred in law and fact in dismissing, the case as that the Plaintiffs had provided evidence discharging onus of balance of probabilities and Defendants have not and in any case there is evidence that the Defendants agents have admitted Plaintiffs claims through Affidavit of Sergeant Laki, First Defendant.
3.4 His Honour erred in law and fact in ruling that First Defendants witness Affidavit evidence was "highly suspect" and his ruling was wrong in Wednesbury sense as witness not competent and further that there was no evidence he relied on.
3.5 His Honour erred in law and in fact when refusing to accept evidence as hearsay when the evidence refused fall under the exceptions to hearsay rule of part of re geste, notorious, admission, agency, public information and in the interest of Justice facts and therefore admissible.
3.6 Had His Honour applied His mind to relief sought including nominal, general Damages and Costs of this proceeding His Honour would not have dismiss (sic) entire proceeding and would have properly exercise (sic) his discretion to at least granted orders for nominal or general damages and costs pursuant to Section 155(4) of the Constitution.
3.7 His Honour erred in law and in fact in applying standard of proof higher then (sic) that if balance of probability as applied in civil any civil case did not have discretion not to admit evidence of Plaintiffs.
3.8 His Honour erred in fact and law in failing to give weight or to admit Affidavit evidence lawfully admissible in these Affidavits of Jackson Yalu filed on 8th and 17th of September 2009; Affidavits of Rupundi Maku filed on 23rd October 2008, 10th June 2009 and 17th September 2009; Affidavit of Dan Paiga filed on 15 November 2005l Affidavit of Paul Goimba filed on 15th November 2005 (paragraph 2); Affidavit of Sergeant Laki filed on 15th November 2005 (Annexure A); Affidavit Aua Timbi filed on 16th November 2005; Affidavit of Albert Namb filed on 16th November 2005 (paragraph 4 came into our camp); Affidavit of Reve. Manda Talao filed on 21st November 2005 (paragraph 4 came into our camp).
3.9 His Honour erred in Law and fact in not accepting that Affidavit of First Defendant Steven Maliwolo Annexure A and Sergeant Laki as agent of Defendant amount to Admission and on this alone His Honour ought to have assessed damages as required under Order 14, Rule 17 of the National Court Rules.
3.10 His Honour erred in law and fact and ought to have taken Judicial Notice of the admission bearing Royal Papua New Guinea Constabulary and Mt Hagen Hospital Crest and contained in Annexure D2 and D4 of Rupundi Maku's Affidavit filed on 23rd October 2008.
3.11 His Honour erred in law and fact in not assessing Damages as Default Judgment was entered by consent and His Honour Kandakasi J. had ordered assessment and Plaintiffs to provide submission and Plaintiff evidence was not refuted and destroyed by any evidence or cross-examination: see Coecon Ltd -v- National Fisheries Authority and the State [2002] PNGLR 506 at 507.
3.12 His Honour erred in law and fact in refusing Plaintiff's damages as Plaintiffs have discharged the burden to establish its damages on balance of probabilities and their claim are not "bare assertions" and damages out (sic) to have been awarded.
3.13 His Honour erred in law and fact in deciding case on the wrong issue of whether Plaintiffs have proven negligence as Plaintiffs have judgment on negligence."
Issues
5. We consider the 13 grounds can be summarised into three main grounds. Grounds 3.1, 3.3, 3.4, 3.5, 3.7, 3.8, 3.9, 3.10, part of 3.11 and 3.12 raise the issue of proof of damages. Ground 3.2 and part of ground 3.11 raise the issue of whether the trial judge has discretion to revisit or relook at the issue of liability and grounds 3.6 and 3.13 raise the issue of cause of action.
Consideration of Grounds of Appeal
6. We deal first with the grounds relating to the issue of discretion of the trial judge to revisit or relook at the issue of liability and the issue of cause of action because in our view, their determination will decide whether the grounds relating to the proof of damages should also be considered.
7. In his submission, the appellants' counsel Mr Narokobi covered these two issues together. He submitted the cause of action is based on the common law tort of negligence. First, he submitted the first, second and third respondents as members of the police force owe a duty of care to protect lives and property of citizens of this country and that duty cover the appellants. Secondly, they breached that duty by failing to attend and stop the tribal fight between the appellants and the enemy tribe. Thirdly, he submitted, as a result, the enemy tribe destroyed and looted the appellants' property and killed the principal appellant's son and nephew and they suffered loss of which they are entitled to damages.
8. Mr Narokobi referred to the pleadings in the statement of claim and submitted the appellants have sufficiently pleaded the material facts giving rise to the cause of action in negligence and have set out the particulars of negligence as required by O 8, r 32 of the National Court Rules. He further submitted the pleadings established the respondents owed a duty of care to the appellants and such duty of care included:
9. The particulars of breach of the alleged duty of care were:
10. Mr Narokobi argued as the cause of action is in negligence, and that default judgment had been entered against the respondents, more importantly by consent, the learned trial judge was bound by the default judgment and had no discretion to revisit or relook at the issue of liability. He was obliged to do the best he could in assessing damages on the evidence before him. When his Honour revisited or relooked at the issue of liability, this was where his Honour fell into error. In support of these submissions, Mr Narokobi relied on a National Court decision of Coecon Limited -v- National Fisheries Authority & The State (2002) N2182 and a Supreme Court decision of William Mel -v- Coleman Pakalia, The Police & The State (2005) SC790.
11. Mr Narokobi further contended it was not open to his Honour to revisit the issue of liability because the respondents had not properly applied by way of notice of motion seeking to dismiss the proceedings.
12. The two cases referred by counsel for the appellant stand for the proposition that in a case where default judgment is entered, what is pleaded as the material facts establishing the cause of action is deemed as the facts of the case on which liability is determined. Therefore, it is not open for the Court to question them and must only assess damages.
13. However, this general principle is qualified. In Mel's case the Supreme Court further stated that if the facts or cause of action pleaded do not make sense or make assessment of damages a futile exercise, then the Court may revisit the issue of liability.
14. The proposition in Mel's case is that, following default judgment and upon a cursory inquiry into whether the facts and cause of action are pleaded with sufficient clarity and if it is reasonably clear what the facts and cause of action are, liability is regarded as proven. Only if the facts or cause of action pleaded do not make sense or would make assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability.
15. It is not correct for Mr Narokobi to submit that once default judgment is entered, it is not open to the Court to revisit the issue of liability. The facts pleaded in the statement of claim must disclose a cause of action known to law.
16. We believe the second point was the very point the then Deputy Chief Justice late Sir Mari Kapi was making in Keith Reith -v- Murray Hallam and Allcad Pty Ltd (1995) N1337, when commenting on the effect of a default judgment. This is what his Honour said:
"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 in the terms of the contract.
Where default judgment is entered in an unliquidated demand (as in this case) the fact which gives rise to the question of liability are settled. The effect of default 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." (Emphasis added).
17. From these cases, we consider 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. In other words, a writ of summons must disclose a cause of action in law in the statement of claim. Only then can a plaintiff maintain a claim against a defendant.
18. However, there is an exception in cases where the pleadings do not disclose a cause of action in law. If the cause of action is not known in law, then there is no legal basis to award damages following default judgment. This is the distinction between the Coecon's case and this case. We distinguish that case from this case because in our view, in this case, the facts supporting the cause of action does not disclose a cause of action known to law.
19. In our view therefore, consistent with the cases of Mel, Titus Wambun and Keith Reith, it was open to the learned trial judge in this case to revisit the issue of liability because there was an issue with the cause of action. The issue was whether the facts pleaded in the statement of claim disclosed a cause of action known in law and it does not matter whether the respondents had applied by way of a notice of motion seeking to dismiss the proceedings for failure to disclose a cause of action.
20. For the National Court is a Court of inherent jurisdiction and may in the exercise of its inherent jurisdiction raise and deal with an issue on its own motion. It is a jurisdiction which the Court has "to ensure that the pursuit of its ordinary procedures by litigants does not lead to injustice.....may be exercised at any stage of the proceedings where it appears to be demanded by the justice of the case." see Tringali -v- Stewardson Stubbs & Collett Ltd [1965] NSWR 418 at 418, per Else Mitchell, J and also Cox -v- Journeaux (No. 2) [1935] HCA 48; (1935) 52 CLR 713 at 720.
21. For this reason, we reject Mr Narokobi's submission that it was not open to his Honour to raise and deal with the issue of cause of action. In the exercise of the inherent jurisdiction, his Honour found that there was no cause of action in law and dismissed it. His Honour found that there was no cause of action in law and dismissed the proceedings. His Honour stated at paragraph 30:
"....... the court has the inherent powers to protect its processes from being abused such as claims which have no basis in law. In such situations, the court as I said has wide powers to dismiss claims even after entry of default judgment."
22. This leads us to the question of what was the cause of action. There is no dispute the appellants alleged negligence as the cause of action, but the question is, do the facts pleaded in the statement of claim support a cause of action in law?
23. The law of negligence is well established. It has developed since Donoghue -v- Stevenson [1932] AC 562 to the current position whereby in order to establish negligence, a plaintiff has to prove:
24. 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 public policy and contradicts wider policy issues, such as where it may adversely affect the way in which the police carry out their duties for fear of litigation. These principles were formulated in the leading House of Lords decision in Hill -v- Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53. As it is a post independence decision, it is does not have binding effect on this Court, but is of persuasive value.
25. The facts of the Hill's case are these, Peter Sutcliff committed 13 murders and 8 attempted murders between 1975 and 1980 in Yorkshire, United Kingdom. His last victim was Jacqueline Hill. Ms Hill's mother claimed that the police should reasonably have inferred that the previous 20 offences were committed by the same person and that, if not caught, he would re-offend. Accordingly, the police were argued to have owed a duty to use 'their best endeavours and exercise all reasonable care and skill to apprehend the perpetrator of the crimes and so protect members who might otherwise be his future victims'. Ms Hill alleged the police failed to properly collate information in their possession that would have identified Sutcliffe as a likely suspect, failed to give due weight to certain information and accorded excessive weight to other information.
26. Lord Keith delivered the leading judgment with which all other justices agreed. Lord Keith summarised the key question as being whether police officers "in the course of carrying out their functions of controlling and keeping down the incidence of crime, owe a duty of care to individual members of the public who may suffer injury to person or property through the activities of criminal, such as to result in liability in damages on the ground of negligence, to anyone who suffers such injury by reason of breach of that duty.
27. In upholding the decision of the Court of Appeal to strike out the claim as disclosing no cause of action, Lord Keith established the principle of immunity from negligence claims in the following terms which we find relevant in this case and respectfully quote thus:
"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 resultthat 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."
28. The Hill decision has been interpreted in other common law jurisdictions, including United Kingdom, Australia, Fiji, Kiribati and Tonga as establishing a common law immunity from negligence actions for police when they are involved in the suppression and investigation of crime. The immunity has been extended to cases where the claim is for police "inaction". see for example: Crowley -v- Commonwealth of Australia, Australia Capital Territory and Pitkethly [2011] ACTSC 89; Kester Yee -v- Commissioner of the Fiji Police Force [2011] FJHC 38; Douglas Bamleett -v- Inspector Shailesh Kumar & Ors [2011] FJHC 37; Tiara Enterprises Ltd -v- Attorney General [2009] FJHC 155; Wargtaj Seafood Products Ltd -v- Minister of Home Affairs [2000] FJHC 213; Tio -v- Beengo [2003] KIHC 89 and Jagroop -v- Sokai & Tonga [2001] TOCA 10.
29. The immunity is founded on public policy grounds in that, it should be an operation determination for the police force as to how, when and where it deploys is resources. The reasoning for this principle is that the deployment of police resources is constrained by many factors, some of which I cite as examples are:
30. The public policy reasons for the immunity and consequent non-existence of a cause of action for police inaction is that it is not appropriate for the Courts to dictate the circumstances when police should act to investigate or suppress crime. The Court is not in a position to deliberate on the range of operational matters that impact on the ability for the police to investigate, suppress or solve crime. But it should be made very clear that the immunity is not a blanket immunity for police from all liability.
31. Lord Keith in Hill's case acknowledged that there was "no question" police were liable to those injured as a "direct result" of negligent acts or omissions. He cited as examples a case in which a police motor cyclist caused a traffic accident in the case of Knightly -v- Johns [1981] EWCA Civ 6; [1982] 1 All ER 851, and another case in which police were found liable for a fire started when he fired a gas canister into premises under siege in the case of Rigby -v- Chief Constable of Northamptonshire [1985] 2 All ER 985. The immunity more readily applies where the "cause of action" comes from third parties who remain at large after alleged criminal activity.
32. In PNG, there is very little case authority on point. Apart from Catholic Diocese of Wabag Board of Trustees -v- Enga Provincial Government, Gari Baki Commissioner of Police & The State: WS No 1416 of 2008 (Unnumbered & Unreported Judgment of 24th October 2011) by Thompson, AJ, the case of Simon Awaria & 20 Ors -v- Sam Inguba as Commissioner of Police, Electoral Commission & The State (2006) N3044 appears relevant. In that case, the plaintiffs sued the police and the State for damages arising from destruction and looting of property at their village during the National-General elections during voting. The destruction and looting of the plaintiffs' property were done by third parties. The issue was, should the defendants be liable for damages because they were not there at that time and could have prevented the raid on the plaintiffs' village.
33. Davani, J noted the action was one of negligence and in order for the plaintiffs to succeed on the claim, not only must they plead the material facts establishing the elements of negligence such as the defendants owing a duty of care, breach of the duty and damages arising from the breach, but must also lead evidence in support of them. Her Honour held there was no reasonable cause of action and the proceeding was an abuse of process because, among other reasons, the defendants were not responsible for causing the fight, destruction and looting of the plaintiffs' property. This is how she reasoned it:
"........that a Tort should firstly be committed by a policeman or policemen or electoral official/s in compliance with a lawful order which would then make the State vicariously liable for their actions. This is where s. 1(4) of the Wrongs Act is especially relevant. The only time the State can assume liability is if its officer '......commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed by virtue of instructions lawfully given by the Government' (my emphasis). In this case, there is no nexus or connection between the government officials actions and the fight because the policemen and polling officials were not at the scene of the fight."
34. The case of Catholic Diocese of Wabag Board of Trustees -v- Enga Provincial Government, Gari Baki Commissioner of Police & The State was brought to the attention of this Court by counsel for the respondents and relied upon to support his submissions that there is no cause of action in law if the facts pleaded in the statement of claim disclose that a third party, namely an enemy tribe of the appellants had raided their village. Mr Kandi for the respondents in defending the appeal relied on the principles promulgated by the Hill's case which were approved in the Catholic Diocese of Wabag Board of Trustees' case. Mr Narokobi argued that as this point of law was not raised at the trial it could not be argued on the appeal. We accept that this specific point was not raised at the trial, but the Catholic Diocese of Wabag Board of Trustees' case was delivered later in time. More importantly however, we are of the opinion that these principles elaborate on the issue of whether there was a maintainable cause of action which was a question the trial judge dealt with.
35. In the Catholic Diocese of Wabag Board of Trustees' case, the plaintiff sued the defendants for damages arising from a tribal fight between two warring tribes. Although the alleged loss was caused by the opposing tribesmen, the plaintiff did not sue them, but instead sued the Enga Provincial Government, the Police and the State. The plaintiff alleged the defendants were negligent, and as a result, the property was destroyed.
36. Her Honour referred to Hill's case, R -v- Metropolitan Police Commander, ex parte Blackburn [1968] 1 All ER 763, R -v- Chief Constable of Devon and Cornwall Constabulary, ex parte Central Electrical Generating Board [1981] 3 All ER 826, Caparo Industries PLC -v- Dickman [1990] UKHL 2; [1990] 2 AC 605, Sutradhu -v- Natural Environment Research Council [2006] EWHC 3083; [2006] 4 All ER 490 and Smith -v- Chief Constable of Sussex Police (2008) EWCA CIV 39 and noted that these cases held that the police owe no duty to the public at large and so cannot be liable to a person who suffers loss by their failure to act. 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.
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 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.
40. For these reasons, we find the learned trial judge did not err when he found that there was no cause of action for which damages can be awarded.
41. For the foregoing reasons, we would dismiss the appeal.
42. Finally, as the learned trial judge was correct in dismissing the claim because it did not disclose a cause of action, there is no legal basis upon which the Court may award damages to the appellants. Therefore, it is not necessary to consider the issue of proof of damages in the remaining grounds of appeal. Cost of the appeal is awarded to the respondents to be taxed if not agreed.
Order
43. The orders are:
1. The appeal is dismissed.
2. The appellants shall pay the respondents' costs of the appeal to be taxed if not agreed.
_________________________________________
Narokobi Lawyers: Lawyers for the Appellants
Solicitor-General: Lawyers for the Respondents
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