DC84

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 195 OF 2004

BETWEEN

MATHEW RONI
Complainant

AND

KEVIN KAGURE
First Defendant

TAMAN GAB
Second Defendant

BANK OF SP
Third Defendant

Mt. Hagen

S W Seneka
2004

JUDGMENT

S W SENEKA. Defendants are negligent in failing to effect stop transactions to complainant's account from being fraudulently withdrawn by a person who found complainant save card over weekend.

They defied specific and unequivocal instructions from the complainant to effect stop payments.

As a result of negligent to or perhaps deliberate inaction complainant lost K5, 911.50 from withdrawals. 

Complainant had suffered damages and loss and seeks damages to K5,911.50, for distress, mental anxiety and interest and cost.

There are no dispute to the evidence that complainant has an account with Bank of South Pacific (former PNGBC) account No. 6284203. He had carried out some transactions with the staff at upstairs office on the 18/10/02 and left. 

Unfortunately he left without his save card. He must have dropped it and some one had picked it up. He realized that he had lost the card at the weekend and accepted responsibility for the weekend including 18/10/03 withdrawals of K1,408.00. 

The only evidence that both parties disputed are that withdrawals recorded after 10:00 am on 21st of October 2002. Complainant claim these withdrawals were made after 10:00am on 21/10/02. At 10:00 am complainant had reported the lost Save Card and defendant had put stop payment notice. 

Complainant disputed that after 10:00 am on 21/10/02 no transaction should have been made because there is a stop payment in force. 

The bank statements issued on 26/11/03 sent to complainant (attachment "A") of his affidavit date 18/12/03 and attachment "TGI" of defendant's affidavit dated 03/12/03 are the same bank statement. The Bank Statement to complainant is as follows:-

The Bank statement shows several withdrawals dated from 22nd October, 2002 to 1st November 2002. These transactions were initially rejected and recorded by the bank. REJECTED MONETARY TRANSACTIONS REPORTED (complainant's attachment 1 and defendant's attachment ("TG4") dated 21/10/02.

According to defendant these transactions were effected prior to placing of stop payment notice on 21/10/02 at 10:00 am. That is money withdrawn before 10:00 am on 21/10/02.

Analyzing this document carefully a number of withdrawals were made from Roni Mathew account No. 6284203 and these withdrawals were made from Goroka and Mt. Hagen. Timing is very crucial in these transactions. Any that are before 10:00am on 21/10/02 should be accepted but any after 10:00am on 21/10/02 should be rejected. By 10:00 am on 21.10.02 every terminals in PNG should be notified of the stop payment. I agree with complainant and defendant that transaction between 18/10/02 to 10:00am on 21/10/04 should be allowed but not after 10:00 am on 21/10/02.

According to defendant these transactions were allowed to be deducted from the complainant's account and these were effected before 10:00 am on 21/10/04. But as mentioned above half of the transaction were effected after 10:00 am on 21/10/02.

Another matter that both parties (complainant particularly) did not raised is that transactions were effected in Mt. Hagen and Goroka simultaneously. For example, within three hours after 6:00 am on 21/10/02 nine (9) transactions were effected, four (4) at Mt. Hagen and five (5) at Goroka. Mathew Roni account No. 6284203 on 21/10/02 were withdrawn as follows;-

Transaction Date	Transaction Time	Transaction No.	Amount	Location	
Oct 21	06. 02. 50
06. 03. 34
06. 15 . 36
06. 16. 27
06. 26. 28
06. 32. 21	7571
7572
6148
6150
7831
7833
	K500.00
K500.00
K500.00
K500.00
K193.00
K188.00	ATM - Hagen
ATM – Hagen
ATM – Goroka
ATM – Goroka
Bintangor Goroka
"	
	08. 07. 23
08. 22. 03
08. 23. 00	1878
7853 193
753301	K423.05
K500.00
K500.00	Best Buy -Goroka
BSP – Hagen
"	

From Mt. Hagen K2, 000.00 while from Goroka K1, 804.05. 

How could the person who stole complainant's Save Card on 18/10/02 withdraw K1000.00 from Mt. Hagen by 06:04 am on 21/10/04 and another K1000.00 from Goroka at 6:16 am same date. Then within 1 ½ hours later in Goroka at Bintangor and Best Buy used the card for K884.05. At about 8:30 am same date withdraw K1000.00 from BSP Mt. Hagen. Defendant has no explanation nor raised any to these transactions.

Of the nine (9) transactions on 21/10/02 Court could accept that because the card was lost in Mt. Hagen the withdrawals at 6:02 am to 8:27 am were from the lost card. But between that period the withdrawals made between 06:15 am to 8-07 am from Goroka defendant had no explanation.

On this point some light can be drawn from second defendant's affidavits filed on 28/11/03. In this affidavit there were two (2) pages of Attachment "C". These attachments are photocopies of six (6) customer's vouchers all dated 20/10/02 hours between 11:50 to 23: 24. All from Goroka lodge, P.O. Box 343, Goroka POS No. 2039909. These were entered on 30/10/02 as shown by his Bank Statement issued on 26/11/02. If this card was used on 20/10/02 at Goroka then it follows that the same was used on the 21/10/02 at Goroka. From the above explanation, I form the view that any transaction before 10:00am on 20/10/02 complainant must bear it. Any withdrawals after 10:00 am on 20/10/02 defendant must bear it.

There are two (2) reasons why. First no explanations why defendant should not bear them that there is no vouchers to confirm them and no explanation for the simultaneous withdrawals from Mt. Hagen and Goroka and secondly stop payment was posted and payments should be stopped and not override.

Was there any negligence. Though I agree with defendant's submission on law of negligence the common law position of a negligent has been defined as the omission to do something which a reasonable man guided upon those consideration which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. To success in an action for negligence three things must be proved by the complainant;-

1. That the defendant owed a duty to the injured person to exercise due care,
2. That the defendant failed to exercise due care, and 
3. That the defendant's failure was the cause of the injury or damage.

At common law defendant owes a duty of care to complainant. This duty of care has been further described in the case of Anns v Merton London Borough Council [1978] AC 728 Per Lord Wilberforce who said that in order to establish that a duty of care arises in a particulars situation the question has to be approached in two stages. First one has to ask whether as between the alleged wrong doer and the person who has suffered damage there is a sufficient relationship of proximity or neighbouring such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Second, if the first question is answered affirmatively, it is necessary to consider whether there are considerations which ought to negative, or to reduce, or to limit the scope of the duty or the class of persons to whom it is owed or damages to which a breach of it may give rise. Lord Keith in the case of Peabody Donation Fund Governors v Sir Lindsay Parkinson & Company [1984] 3 All ER 529 added further and said;-

"The true question in each case is whether the particular defendant owed to the particular Plaintiff a duty of care having the scope which is contended for and whether you were in breach of that duty with consequent loss to the Plaintiff. A relationship of proximity in Lord Atkins sense must exist before any duty of care can arise but the scope of the duty must depend on al the circumstances of the case is in determining whether or not a duty of a particular scope was incumbent on a defendant. It is material to take into consideration whether it is just and reasonable that is should be so."

The above cases cited are English common law cases which were decided after independence and are not authoritative but are persuasive in value.

Was defendant negligent?

When the lost card was reported to the defendant they immediately put stop payment after 10:00 am on 20/10/02 the computer then carried out the stop payment instruction. However, nine (9) transactions were made before 10:00 am on 20/10/04 while complainant insist they were after 10:00 am on 20/10/02. Even after letters of explanation and enclosing bank statements complainant still refused to agreed nor satisfied with defendant's explanations. Complainant was also requested to call into defendant's office for a clear explanation but complainant neglected or refused to comply.

If complainant had refused to come to office the defendant must send another explanation and in further details as to why those (9) transactions should be allowed. Explanation should also include date; time and location of withdrawals should be allow because withdrawals were before 10:00 am on 20/10/02.

Defendants have not done that and I have hold them being negligent. But I believe had complainant came to defendant for an explanation such matter would not have come to court. I should hold that complainant must be responsible for this case coming to court. On that basis, I will not order cost or interest against the defendant who must pay K3,664.79 to the complainant.