Kumiye v Independent State of Papua New Guinea [2018] PGSC 38; SC1693 (27 June 2018)

SC1693

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

SCA No. 99 OF 2014

BETWEEN:

GA KUMIYE & 5 OTHERS
Appellants

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
First Respondent

AND:

THE NATIONAL ROAD SAFETY COUNCIL
Second Respondent

AND:

THE NATIONAL ROADS AUTHORITY
Third Respondent

AND:

THE SECRETARY – DEPARTMENT OF WORKS
Fourth Respondent

WAIGANI: Gavara-Nanu & Pitpit JJ.

2016: 1^st September

2018: 27^th June

APPEAL – Damages – Statement of Claim – Pleadings – Reasonable cause of action – Notice of Intention to Defend and Defence not filed – Application for default judgment - Pleadings not disclosing a reasonable cause of action – Application for default judgment refused.

Cases Cited:

Jack Pinda v. Sam Inguba (2012) SC1181
Lambu v. Torato (2008) SC953
Rupundi Maku and Ors v. Steven Maliwolo and Ors and The State (2011) SC1170
The Government of Papua New Guinea and Richard Harold Davis v. Stanley Baker [1977] PNGLR 388; SC123
Thomas Andale v. Michael Suviro (2017) N6971

Counsel:
P. Kopunye for the appellants
T. Tanuvasa for the first, second and fourth respondents
M. Maitang for the third respondent.

27^th June 2018

1. BY THE COURT: The appellants appeal the whole of the decision of Poole J, given on 19 June, 2014, in proceeding WS No. 300 of 2012 between Ga Kumiye and 5 Others v. The Independent State of Papua New Guinea and 3 Others, in Mount Hagen National Court.
   
2. This judgment is of only two remaining members of the bench because the third member of the bench has since the hearing of this appeal retired. The two remaining members of the bench have put the requirements of s. 3 (1) of the Supreme Court Act, Chapter 37, to the parties and they have agreed for the remaining two members of the bench to give the judgment of the Court.
   
3. The appeal lies without leave as the decision dismissing the entire proceeding was final.
   
4. The grounds of appeal are:
   
   1. The learned judge erred in law and in fact when he ruled that

there was no cause of action disclosed in the plaintiffs’ amended statement of claim when in fact the cause of action was based on common law negligence as well a breach of statutory duties imposed on the defendants by the National Road Safety Councils Act of 1997, the National Roads Authority Act of 2003, and the Road Maintenance Act of 1971.

2. The learned judge after correctly finding that the defendants had defaulted in filing their defences within the legally prescribed time periods; wrongly ruled that the statement of claim did not disclose a reasonable cause of action; and thus ultimately erred in fact and in law in refusing to grant default judgement against the first, second and third defendants.
   
3. The learned judge erred in law in making a finding at the interlocutory stage, that the defendants did not owe a duty of care to the plaintiffs; when the issue of duty of care was substantive in nature which could only be properly determined upon evidence given at trial.
   
4. The learned judge erred in law and in fact when he made a finding on evidence or lack thereof to prove duty of care; such ruling was made prematurely and resulted in substantial miscarriage of justice being done to the plaintiffs.
   
5. The learned judge erred in law when it expressed at the pleading stage, a concluded view on the admissibility and weight of the evidence contained in the affidavits of the plaintiffs.
   
6. The learned judge erred in law when he failed to consider that the common law consistent with the Constitution on the duty of care applied specifically to the duty of policemen and could not automatically apply uniformly to the defendants in this action whose functions and duties were specifically outlined in the National Road Safety Councils Act of 1997, the National Roads Authority Act of 2003, and the Road Maintenance Act of 1971; and thus could only be safely determined after a full trial.
   
7. The learned judge erred in law in ruling that the plaintiffs claim was altogether unarguable that it ought to be summarily dismissed.
   

Orders sought:

1. In lieu of the decision appealed from the appellants pray for

orders that:

1. The appeal be allowed.
   
2. The judgment of his Honour Goodwin Poole J dated 19^th of June 2014, dismissing the proceedings in its entirety as disclosing no cause of action be set aside.
   

100. Judgement in default of defences be entered against the respondents in favour of the appellants.
     

4. The matter be remitted to the Mt Hagen National Court Listings for trial on assessment of all damages as is pleaded in the statement of claim.
   
5. Appellants legal and incidental costs of this proceedings and the National Court be paid by the respondents, to be taxed if not agreed.
   
6. Any other orders that this Honourable Court deems fit with liberty to apply.
   

Dated this 28^th day of July, 2014

(Signed)

__________________________

Kopunye Lawyers

By its employed Lawyer

AGATHA INIA

Lawyers for the Appellants
Background Facts

5. The principal appellant is a widow, her husband having been killed in a motor vehicle accident which occurred on 12 January, 2010, along Markham road of the Highlands Highway in Morobe Province. The accident was caused by a head-on collision between two 25 seater PMV buses which were travelling in opposite directions. In the accident, fifty two people died, only a few survived.
   
6. The appellants lodged a claim against the Motor Vehicles Insurance Limited (MVIL) and received K28,595.00. In proceedings WS No. 300 of 2012, they claimed damages against the State and its agents. The appellants’ claims were based on negligence. They claimed the poor road condition resulting from the respondents’ failure to maintain the road was the real cause of the accident.
   
7. It is not disputed that the two PMV buses collided when one of the buses tried to avoid potholes. Both buses were travelling at high speed. The appellants claimed the respondents had a common law duty to main the roads in good condition. The appellants claimed the respondents did not maintain the road in good condition, thus they were liable to pay damages to the appellants for their losses.
   
8. There is undisputed evidence that immediately before the collision, the two PMV buses were travelling at high speed.
   
9. The appellants placed much reliance on newspaper reports on the accident. Various cuttings of those reports were adduced in evidence. We give little, if any weight to the reports because apart from the images of the accident, they have no evidentiary value in regard to the cause of action.
   
10. The police report on the accident confirmed that the two PMV buses were travelling at “high speed”. The PMV bus travelling out of Lae tried to avoid potholes and went onto the wrong side of the road and collided head-on with the PMV bus travelling into Lae.
    
11. On 15 June, 2012, the appellants filed a notice of motion in WS No. 300 of 2012, seeking default judgment against the respondents for damages to be assessed after the respondents failed to file their Notice of Intention to Defend and Defence within the required time. The motion was moved on 14 March, 2014.
    
12. The learned trial judge held that default by the respondents to comply with the Rules relating to the filing of a Notice of Intention to Defend and a Defence may have been made out by the appellants but that was not the end of the matter. His Honour said the Court should not blindly enter a default judgment because the Court was still obligated to look at the pleadings and decide whether a valid judgement could be entered against the respondents.
    
13. In the Statement of Claim the appellants pleaded that the drivers of the PMV buses collided when trying to avoid potholes. Thus, they claimed the poor road condition was to be blamed for the accident. They claimed the drivers of the PMV buses were not responsible for the accident, thus they could not be held liable for their losses.
    
14. The learned trial judge after considering the pleadings said:
    

“The plaintiffs’ case proceeds on the basis, apparently, that the accident was caused by the state of the road, not by the manner in which the drivers conducted their vehicles on the road, and, rather than making a claim against the owners of the vehicles as vicariously liable for the manner in which their servants or agents drove the vehicles, the Plaintiffs seeks (sic.) to make the State, and various instrumentalities, vicariously liable because the road contained potholes which one driver decided would avoid by travelling on the wrong side of the road in the face of on-coming traffic. However poor state of the road, the law requires drivers to drive safely and take into account the conditions prevailing at that time; it does not relieve them of that obligation because of the presence of potholes in the road.

The question of various liability of the State for perceive neglect by servants or agents of the State to perform their duty (as distinct from carrying out their duties in a negligent manner) has been considered on a number of a (sic.) occasions and, among the more recent is the Supreme Court decision on of (sic.) Rupindia Maku and Ors v Maliwolo and Ors and the State (sc1171) – a case seeking damages on the basis of vicarious liability of the State for damage the plaintiffs claim to have suffered because police failed to attend and stop a tribal fight.

That case reviewed a considerable number of cases, both from overseas and from Papua New Guinea Courts, and analyzed in detail the underlying (common) law and the Constitution provision relevant to it. The Court, especially, adopted the reasoning used in the English decision of Hill v. Chief Constable of West Yorkshire [1989] AC53, which it found highly persuasive, and it reviewed the interpretation of that decision throughout the common law world.

...The Court, in Maku v Maliwolo, expressed the clear view that the underlying, Common Law is consistent with the Constitution and the principles instilled in the type of case following the Hill decision are sound.

The judgement noted, at paragraph 38 and 39:

“38. The 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.”

The consequence of this is that the priorities which are properly set by the Department of Works under which it carries out its duties are a matter solely within its power. I specifically follow Maku v Maliwolo on this point. The Defendants did not owe any duty of care to the plaintiffs in the manner in which they carried out their duties. nor are they are (sic.) answerable to one group of road users who maybe dissatisfied with the state of their road, in priority to another group of road users who are using roads in other parts of the nation.

To repeat earlier observation – an agent or servant employed by the Government of Papua New Guinea may be the proper defendant of an action for damages (personally) if a plaintiff suffers damage by reason of the agent or servant of the public authority acting outside the scope of his or her duties and ultra vires his or her powers.

The State may be vicariously liable, if, while acting in the capacity as a servant or agent of the State (ie within power or intra vires) a tortfeasor acts negligently or in such a way as to cause hurt to a Plaintiff – that is, the servant or agent has actively done something wrong.

But a member of the public will not, unless in the most extra ordinary circumstance, have a claim for negligence against a servant or agent of the State because that servant or agent has not carried out a function or performed a duty which a Plaintiff, to whom no duty of care is owned, (sic.) believes, subjectively, should have been performed unless the Plaintiff is able to establish that there had been a pre-existing and direct instruction to the alleged tortfeasor by his superior or superiors to perform a specific duty or function which the Plaintiff alleges wasn’t performed, to the Plaintiff’s detriment. The servant or agent is subject to direction by his or her proper departmental supervisor, not by dissatisfied members of the general public.

There is no such evidence in this case. Accordingly there is no cause of action under which the Plaintiffs’ can claim damages, since they were not owed any duty by the Defendants.”

15. We cannot find any error in his Honour’s exposition of the law and his finding that the appellants had no reasonable cause of action. In this case, the drivers of the PMV buses were fully aware of the bad condition of the road. The fact that there were potholes visible was enough reason for the drivers not to speed. Instead, they deliberately ignored the poor condition of the road and were travelling at “high speed” which resulted in their failure to negotiate the pot holes thus causing the accident. We are convinced that had both drivers reduced speed, and drove with due care and attention the accident could have been avoided. The drivers were carrying passengers, thus they owed a duty of care to the passengers and even other road users. Travelling at “high speed” was clearly negligent driving.
    
16. We respectful agree with his Honour that it would have been against public policy for him to ignore the manner in which the drivers drove the PMV buses and hold that there was a reasonable cause of action against the defendants simply because the road was bad. It is clear that the losses suffered by the appellants were a direct result of the careless and reckless manner in which the drivers drove the two PMV buses.
    
17. We agree with the learned trial judge that a case in point is Rupundi Maku and Ors v. Steven Maliwolo and Ors and The State (2011) SC 1170. We also agree with his Honour’s observation that a default judgment could not be validly entered against the respondents when the pleadings did not disclose a reasonable cause of action. We are also of the opinion that it was a case in which the respondents could have applied for the Statement of Claim to be struck out for not disclosing a reasonable cause of action; and for the same reason had the default judgment been entered, the respondents would have been entitled to have it set aside: The Government of Papua New Guinea and Richard Harold Davis v. Stanley Baker [1977] PNGLR 388; SC123, per Frost CJ. See also, Lambu v. Torato (2008) SC953; Jack Pinda v. Sam Inguba (2012) SC1181and Thomas Andale v. Michael Suviro (2017) N6971.
    
18. Consequently, we are in total agreement with his Honour’s decision to dismiss the proceeding.
    
19. The appeal is therefore dismissed with costs.
    

Kopuye Lawyers: Lawyers for the Appellants
Solicitor General: Lawyers for the First, Second and Fourth Respondents

In-house Counsel: Lawyers for the Third Respondent