N2293

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 1782 OF 2000

BETWEEN:

WESLEY TAWII & GWALE DAU for and on behalf of
510 POLICE PERSONNEL and SUPPORT STAFF engaged in
Operation Unity Rabaul 1994
Plaintiffs

AND:

DEPARTMENT OF NATIONAL DISASTER & EMERGENCY
SERVICES
First Defendant

AND:

DEPARTMENT OF POLICE
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

WAIGANI: KANDAKASI, J.
2002: 5th and 8th August
18th October

STATE SERVICE - Employment with the State of the Police Force matter of contract subject to relevant Statutory provisions – Claim for high risk allowance in context of the twin volcano eruptions in East New Britain Province by policemen, support staff and reservist – No determination in accordance with s. 57 of the Police Act in favour of such allowances – No clear offer and acceptance – Claim without basis – Action dismissed.

STATUTORY INTERPRETATION – s. 57 Police Act 1998 – Requirements of – Commissioner of Police must make a determination for such allowances and its rate on such conditions he considers appropriate before making such a determination - The Commissioner must consult the Public Service Commission to publish it in an Official Police Publication as soon as it has been made; the determination does not come into effect until published; and the determination is subject to any general directions of the Head of State acting with and in accordance with advice –Purpose of this requirement is to control expenditure and maintain relativity and expenditure within budget – No determination in accordance with s. 57 – No basis for action.

CUSTOM – Tradition or practice of Papua New Guineans - Good practice or tradition of helping one another without demanding anything in return, although some reciprocity in some form expected – Founding fathers expected this practice to continue - Practice of people already on State payroll demanding extra allowance running contrary to that and amounts to holding the State to ransom - True independence means doing what one can for his country and not the opposite and taking away from the State. 

Cases Cited:
Motor Vehicles Insurance (PNG) Trust v. Job Builders Pty Ltd [1993] PNGLR 272.
Tau Gumu v. Papua New Guinea Banking Corporation (unreported judgement) N .
Adevu v Motor Vehicles Insurance Trust [1994] (unreported judgement) SC478.
Motor Vehicles Insurance (PNG) Trust v. Nand Waige, Wagbie Jack and Kawage Gedua [1995] PNGLR 202.
Edwards -v- Jordan Lighting & Anor [1987] PNGLR 273.

Counsel:
Mr. A. David for the Plaintiffs
Mr. J. Bonner for the Defendants

18th October 2002

KANDAKASI, J:	This is a claim for unpaid high risk allowance by the plaintiffs for their engagement in emergency operation during the September 1994, twin volcanic eruptions in Rabaul, East New Britain Province (the Rabaul operations). At the relevant time the plaintiffs were substantively employed as policemen based in that province. 

The defendants deny the claim on the basis that the plaintiffs are not entitled to any higher risk allowance because the National Executive Council (NEC) which has the ultimate power to approve such allowance did not approve any such allowances for the plaintiffs. 

Issue

The parties agree there is only one issue for this Court to determine. That is, whether the plaintiffs are entitled to claim and receive high risk allowances under the common law, Public Service (Management) Act and Orders, the PNG National Constitution and any other law? 

I agree with the plaintiffs’ counsel that there are two parts to this issue. The first is whether the plaintiffs are entitled to any high-risk allowance at all as part of the terms and conditions of their employment? The second is whether there was a specific determination or agreement for the payment of such allowances to the plaintiffs.

The second part of the issue raised is a factual issue and that can be determined by reference to the facts. 

There is another issue raised by the defendants apart from the main issue. The defendants argue that this action is statutory time barred in terms of s. 20 of the Fraud and Limitations Act 1988. This gives rise to the issue of whether this action is statutory time barred?

All of the issues raised here will be resolved by reference to the relevant facts. I therefore go into the facts first. Thereafter, I will deal with the time bar issue first, as it can be disposed of easily.

Facts

Following directions by me on the 5th of August 2002, the parties have agreed to the relevant facts in this case. Those facts are set out in the Statement of Facts handed up in Court by the plaintiffs’ lawyers and dated the 8th of August 2002. From that statement, the facts are straightforward. 

On 19th September 1994, following the twin volcano eruptions of Mounts Tavuvur and Vulcan in Rabaul, the NEC by decision No.8/94 declared a State of Emergency, pursuant to the provisions of the Disaster (Management) Act for an indefinite period. The NEC also approved and engaged the plaintiffs to perform the tasks and duties of evacuating people and property from the danger zone areas to safer areas and protect lives and properties in the danger zone areas. There is no mention of high-risk allowance in the decision.

The plaintiffs were engaged in various groups or lots numbering between 148 at the highest and 3 at the lower end from their respective postings or establishments. The total hours of their engagement also varied with the highest at 438 days and 62 days at the lower end.

As a consequence of being engaged in this manner, the plaintiffs were open to the risk of inhaling of volcanic dusts. That had the potential of causing serious health problems for them. 

The plaintiffs claim that it was a term of their engagement that they would be paid higher risk allowances, who were engaged in the emergency operations were paid higher allowances. There is no dispute that other policemen who were engaged in the Rabaul operations were paid their higher risk allowances. The defendants say members of the Police Force who were properly identified and selected by the Commissioner of Police and engaged during operations were entitled to receive their normal allowances such as overtime, shift & on call, camping and travel allowances only. But there was no authorization from the Police Commissioner, Controller of the National Emergency and Disaster or the NEC for higher risk allowances.

The amounts claimed adds to a total of K3 million. That is made up of a claim of K25.00 per day for regular police personnel, while K10.00 per day is claimed for support staff, reservists and casuals. A claim in those terms was lodged by the plaintiffs and was received by the defendants. But the defendants refused to accept the claim and settle because no higher risk allowance was approved for the plaintiffs. 

From other evidence before this Court such as the affidavit of Mr. Sam Bonner sworn on the 25th of July 2002, it is clear that the NEC had established a practice of deploying police and military personal for the operations relative to that crisis. That was in the context of the Bougainville crisis. A relevant determination of the NEC, is NEC decision No.66/92 dated 20th March 1992. That Determination does not have any provision approving higher duty allowance. Instead there is specific direction for the departments involved to pay there own personnel involved in the operations out of their own allocations. It also made provision for an ex gratia payment of a maximum of K25, 000.00 for deaths and permanent impairments occasioned to those engaged in the operations.

The parties also agreed to only four documents going into evidence as exhibits. These are affidavits by:

1.	Mr. K. A. David sworn on the 21st of September 2001 (exhibit "A");
2.	Mr. K. A. David sworn on 12th February 2002 (exhibit "B"); 
3.	Mr. W. Tawi sworn on 1st November 2001 (exhibit "C");
4.	Mr. R. Huafolo sworn on 7th August 2001 (exhibit "D1"); and
5.	Mr. S. Bonner filed on 7th August 2002 (exhibit "D2").

STATUTORY TIME BAR

The defendants reason that since the decision on the Rabaul operations was taken on 19th September 1994, the plaintiffs cause of action accrued on that date. The plaintiffs therefore had until the 19th September 2000 to file their action. However, the proceedings were actually taken out on the 27th of December 2000, which is outside the six years limit under s. 20 of the Fraud and Limitations Act 1988. The plaintiffs are therefore out of time. 

There is no dispute that the position on whether the plaintiffs were entitled to high risk allowances was not settled as far as the defendants were concerned, until mid June 2000 and running into the following year. The wording in s.16 is in terms of the time limit running from the date when the cause of action accrued. The authorities say that a cause of action accrues when all that needs to be done for a cause of action to crystallize as occurred. 

The Supreme Court held in the case of Motor Vehicles Insurance (PNG) Trust v. Job Builders Pty Ltd [1993] PNGLR 272, that the cause of action which was a claim in indemnity was not statutory time bared under the then Workers Compensation Act 1958. It reasoned that, the claim in indemnity did not accrue until there was payment under an insurance cover.

Recently, I found the plaintiff’s action was not statutory time barred in Tau Gumu v. Papua New Guinea Banking Corporation (unreported judgement) N. I so found despite the actual accident or incident leading to the claim occurred well outside six years in terms of the provisions of s.16 of the Fraud and Limitations Act 1988. The main reason behind this was that, the defendant which was the plaintiff’s employer failed to give the required notice under the Worker Compensation Act (Chp. 179) for compensation purposes for the plaintiff who was injured in the course of his employment. The plaintiff was under the impression that his employer was doing all that it was required to do for his compensation. The defendant did not tell the plaintiff about the failure until well after the time period had expired. In those circumstances, I considered it inequitable that the defendant should benefit from its own negligence by securing a dismissal of the action against it on the basis of the matter being time barred.

In this case, the plaintiffs thought they were entitled to high-risk allowance by reason of their engagement in the Rabaul operations. They then lodged a claim against the defendants. The defendants did no give a definite indication until middle of the year 2000. I find that, that is the time when the plaintiffs’ cause of action accrued or crystallized and they could sue upon. The proceedings were issued in December 2000, which was well within the 6 years time limit under s.16 of the Frauds and Limitations Act 1988. I therefore dismiss the defendants’ argument that this claim is statutory time barred. 

I now proceed to deal with the substantive matter or the main issue in this trial. 

SUBSTANTIVE CLAIM

In any case before the Courts, a plaintiff always has the burden to prove his claim, before he could be granted any relief claimed. See Adevu v Motor Vehicles Insurance Trust [1994] (unreported judgement) SC478 and Motor Vehicles Insurance (PNG) Trust v. Nand Waige, Wagbie Jack and Kawage Gedua [1995] PNGLR 202 for authorities on point.

The facts do not disclose any agreement or approval for a payment of higher duty allowance for the plaintiffs in this case. The plaintiffs had the burden to establish before this Court with appropriate evidence what they claim, in the absence of any agreement on the matter in issue. But they failed to discharge that burden. 

The little evidence available before me on the kind of approach the NEC took in relation to emergency operations do not support a case of precedent being set for payment of high risk allowances. In evidence is the NEC decision No. 66/92 dated the 20th of March 1993 (annexure "C" Mr. S. Bonner’s affidavit). That decision specifically required the departments that were involved in the relevant operations to pay for their own personnel. No specific provision was made for the payment of any high-risk allowances. The only provision that was made was for an ex gratia payment of up to a maximum of K25, 000.0 for any deaths of impairment. 

I therefore find that the facts do not support the plaintiffs’ claim of an entitlement to higher risk allowance either in the amounts claimed or at all.

This leaves the Court to consider the second part of the agreed issue. That requires an examination of the relevant law on point. The plaintiffs are not able to refer to and rely on any specific provision of any Act of Parliament. Their only argument is that because other policemen who were engaged in the operations were paid higher risk allowances, they should also be paid such allowances. 

All emergency operations come under Part X of the Constitution. In each occasion of emergencies in the country, specific Acts of Parliament were enacted for each of them. In the case of the emergency in the East New Britain Province, the Emergency (General Powers) Act 1994 was enacted by Parliament to deal specifically with the emergency in that province. This Act has no provision concerning allowances or payment for services rendered to the operation. So the Act is of no help.

This takes us back to the Police Act 1998, which amongst others, provides for employment with the Police Force and terms and conditions of employment. The provision of direct relevance to this case is s.57. That provision deals with allowances in addition to salaries and it reads: 

"57.	Allowances.
(1)	Members of the Regular Constabulary Branch shall be paid such allowances, at such rates, in such cases and subject to such conditions as are determined by the Commissioner, after consultation with the Public Service Commission and subject to any general directions of the Head of State, acting on advice.
(2)	A determination under Subsection (1) may apply to all or any members of the Branch or to a rank or ranks.
(3)	A determination under this section shall be published in an Official Police Publication as soon as practicable after it has been made and does not come unto effect before it has been so published."

When this section is read together with other provisions of the Act, it is clear that allowances are in addition to salaries. But before any allowances could be paid, it is clear to me that the following conditions must be met:

1.	The Commissioner must make a determination for any such allowance, including its rate on such conditions he considers appropriate; 
2.	Before making such a determination, the Commissioner must consult the Public Service Commission; 
3.	The Determination must be published in an Official Police publication as soon as it has been made; 
4.	The Determination does not come into effect until published; and
5.	The Determination is subject to any general directions of the Head of State acting with and in accordance with advice.

Since the Head of State can only act with and in accordance with the advice of the NEC, his directions can be directions of the NEC. Hence any determination by the Commissioner is subject to any general direction of the NEC through the Head of State. 

I therefore accept the defendants’ argument without any opposition from the plaintiffs that a determination of allowances must be sanctioned through the Commissioner of Police, Public Service Commission, the NEC and endorsed by the Head of State. Such a determination could then become effective upon publication in the Police Gazzette, which I find is the official publication for the purposes of s. 57 (3).

The relationship between an employer and employer is a matter of contract. In some cases the relationship is governed by legislation as in the cases of employment with the Police Force or the Defence Force and even the Public Service. The principles of offer and acceptance, and certainty as is known in contract law, which is based on the common law, apply in these types of cases but subject to the governing legislation.

The plaintiffs were employed as policemen, support staff and reservists with the Police Force. If they were to receive any allowance in addition to their normal pay, then it remained with the Commissioner of Police for the purposes of s.57 of the Police Act 1998 to first determine the allowance and then the rate. This could only be possible after prior consultation with the Public Service Commission. But any such allowance could not be effective until approved by Head of State acting with and in accordance with the NEC and published in the Official Police publication which is the Police Gazzette.

This requirement in my view is an important one because implicit in the requirements under s. 57 is the need to consult the relevant authorities. This is to happen even before the Commissioner of Police could determine and effect any determination of allowances. As part of the public service, there needs to be relativity in the salary and wages of employees of the State. But more importantly, there has to be certainty in the availability of funds from the national government to meet the financial obligations, any such determinations could impose on the State. It also helps to control public expenditure and spending according to budget. 

Some areas of employment by their very nature involve risks higher than those faced by others. It is generally, accepted that, the terms and conditions offered for employment in such a situation does take such risks into account. The primary role of a policeman is to protect human life and properties in the country. This as of necessity, requires them to be in the front line of some very dangerous situations. When emergencies or disasters strike, they are expected to be in the forefront to protect and save lives of people and property. That is the duty they upon being appointed swore to discharge. In other words, in agreeing to be employed with the Police Force they tacitly agreed to being employed in dangerous situations. They could therefore be said to have voluntarily assumed the risk of injury or danger to their own lives. Their reward or consideration for that is their normal salary or wages and not high risk or other allowances, unless they come within the ambit of s. 57 of the Police Act 1998. 

The plaintiffs in this case were engaged in their capacity as policemen with their support staff and reservists to discharge their primary role. No determination was made for high-risk allowances for them in accordance with the requirements of s. 57 of the Police Act 1998.

Even if there was no s. 57 of the Police Act, there had to be a definite offer and acceptance flowing from the defendants to the plaintiffs or vise versa for the plaintiffs to claim they are entitled to such allowances, in addition to their normal pay and other allowances. There is no evidence of any such offer and acceptance. All there is, is the fact that they were employed by the State as policemen, police reservist and support staff. They were engaged in those capacities. From the past experiences, the State had not created any precedent of paying any high duty allowances as part of emergency operations. Instead the departments of the state who were involved in such operations were directed to pay their own personnel. 

Further, there seems to be a growing trend by people who are already on the State’s payroll of not will to assist in times of national disaster, emergencies or needs, such as those that have been recently experienced in the national elections. They appear prepared and intend on holding the State to ransom to their demands for payments of allowances, as if they are not already drawing an income from the State. Such people appear to have lost the true meaning of independence and self-government. In times of emergencies, national disasters and difficult economic times, all citizens are under an obligation to their country, in my view to positively contribute where they can for the common good of the nation. Instead of asking what they can get from their country, they should be asking, what could we do for our country?

Indeed our true traditional values and practices were one of helping one another, without demanding a payment or service in return, although reciprocation in some form was expected. Our founding fathers hoped that, to this tradition and practice would be continued. Unfortunately, this appears not be happening. It is time now, in my view, to seriously ask ourselves as citizens of our country as to what could we do for our country instead of trying all means to take away from it.

For these reasons, I find that the plaintiffs’ claim for high-risk allowances as no basis in law as well.

CONSEQUENCE OF MY FINDINGS

My finding does not, in my view, extinguish any right of action the plaintiffs may individually have as against the defendants for any injury or damage they may have been forced to suffer. Success or otherwise on such a claim, is dependant on what were the defendants required to provide for the plaintiffs to safeguard against the kind of risk that have been pleaded in these proceedings. If the defendants failed to provide a safe system of work, given the obvious risks involved in the operations, they could be held liable to a person who has in fact sustained injury, damage and loss upon prove of the same against the defendants. The law is there to provide relief in such cases: See for example Edwards -v- Jordan Lighting & Anor [1987] PNGLR 273.

In summary I find as follows:

1.	The plaintiffs’ claim is not statutory time barred.

2.	The plaintiffs are not entitled to their claim for high risk allowance because:

(a)	 there is a lack of a determination under s. 57 of the Police Act 1998; and
(b)	 There is no evidence of an offer and acceptance by the parties in relation to such an allowance.

3.	The plaintiffs still have the right to sue for damages for any injury or damage they may have in fact suffered on account of any negligence of the defendants in the context of the Rabaul operations.

For these reasons, I dismiss the plaintiffs’ action and order costs against them.
________________________________________________________________________
Lawyers for the Plaintiffs: 		Namaliu & David Lawyers
Lawyers for the Defendants:		Solicitor General