PAPUA NEW GUINEA	N6495
		[IN THE NATIONAL COURT OF JUSTICE]

 W.S NO. 493 OF 2003
	
		BETWEEN: 

JOHN MANTE 
Plaintiff
 
AND:

CONSTABLE JOHN TIMMIE 
First Defendant

A/CONSTABLE LAS MAIP 
Second Defendant
 
A/CONSTABLE PHILIP NAVE 
Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant 

Mt Hagen:   Poole, J
2016:    15 April

POLICE:- Section 140 of the Police Act gives a member of the police force the same powers, duties, rights and liabilities as a Constable under the underlying law except as modified by statute. Constable’s authority is directly based on his or her Oath of Office. Constable’s basic duty is to keep the Peace, prevent crime and protect people and property from hurt or damage.

TRESPASS – to shoot cattle without owners consent and without lawful cause is a trespass and actionable per se without proof of damage.

NEGLIGENCE – for police to shoot cattle without orders from a senior officer and without due enquiry as to ownership of cattle negligence.  	

Authorities:
Watkins v The Home Department [2006] 2 AC 395
 Letang v Cooper [1965] 1 QB 232)	
Wagon Mound (2) ([1967] 1 AC 617)  
Rapier v London Tramways [1893] 2 Ch 588 et 599
Cunard and Wife v Antifyre Limited [1933] 1 KB 551 
Bamford v Turnely (31 LJQB 292)
Read v Lyons & Co Limited ([1947] AC 156).
Counsel:

Ms Tamutai, for Plaintiff
Ms Bamin, for Defendants 

15 April, 2016
Background
1.	POOLE J:	 The Plaintiff filed a Statement of Claim on the 15th of April 2003 naming, as Defendants, three policemen attached to the Kagamuga Police Station in the Western Highlands Province and, also, the Independent State of Papua New Guinea as a nominal defendant vicariously liable for the tortuous actions by its servants or agents. The employment of the police Defendants by the State is specifically pleaded. 

2.	The Plaintiff pleads that he licenced some cow paddocks at Mugnamp Forest in Kindeng, and, in them, raised cattle. The Statement of Claim pleads that on the 2nd of January 2001 the three policemen Defendants, while in uniform, entered the Plaintiff’s paddocks, and shot some and scattered the rest of the Plaintiff’s cattle as a result of which 27 head of cattle were lost and a considerable length of perimeter fencing destroyed. 
	
3.	The Plaintiff claims these actions amounted to trespass of his property and to negligence. He claims both general and special damages and consequential orders for interest and costs. 

4.	The Defence filed by the Solicitor General is a self-contradictory document which both denies that the three constable Defendants killed the cattle in question and states, also, that the three constables assisted a Mr James Kond (nominated by the Defends as “the owner”) to kill four cows.

5.	The evidence, though sparse, is clear. Each of the Defendants, by affidavit, say they were approach by a Mr James Kond and, at his request, went with him to “a small place namely Mugmamp Forest” where “cows was scattered all over the place” and Constable John Taimmie stated “I shot only (4) four cows.” Two other defendants, A/Constable Las Maip and A/Constable Philip Navi, also swore affidavits in which they say “we shot four (4) cows only” and had only done so because a man called James Kond had asked them to do the shooting.

6.	The Plaintiff’s evidence came from his own affidavits and affidavits by a local councilor Wan Kenny and a village Court Magistrate from Bukapena village Court. 

7.	The Plaintiff states that he had a 102 head of cattle and he did not give permission for any of them to be shot. He says he conducted a head count after the incident and 27 were missing and 2000 meters of fencing had been destroyed. He says that the cattle were scattered by the gun fire from the police. He seeks a K3, 000.00 per head for 27 cattle and an unspecified sum for fencing destroyed. 

8.	  Councilor Wan Kenny stated, in his affidavit, that he had helped the Plaintiff set up his cattle enterprise. He also said 27 cattle were missing and 200 meters of perimeter of fencing destroyed.

9.	Mr Paul Por, the local village Court Magistrate, was aware of the Plaintiff’s cattle enterprise and says he used to visit it from time to time. His evidence supports the Plaintiff’s claim of ownership of the cattle and of the licenced occupation of the paddocks. 

10.	 The Plaintiff filed a further affidavit on the 1st of March 2013 annexing considerable correspondence from the Agricultural Bank of PNG, the Assistant Secretary of the Department of Forestry, the Department of Primary Industries and from Bromley and Manton Limited. The correspondence covers a time span of some 20 years and clearly acknowledges the Plaintiff’s occupation of the land and the business he was conducting. On the 2nd of April 2003 the Department of Primary Industries stated, in an open letter, that “current cattle prices for fully grown adult cattle ranged between K700.00 to a K1, 000.00 per head depending on their sizes.” 
	
11.	After that, ten years later, Mr Kevin Namba, the Livestock Extension Officer of the Department of Agriculture, swore an affidavit on the 29th of May 2013 to which he annexed a livestock valuation in which he valued adult cattle at K3, 000.00 per head. The affidavit also contains unsupported and inadmissible speculation as to the rate and number of natural increase of the 27 missing cattle. I reject this portion of his opinion.     

12.	The matter came before me for hearing on the 6th and 7th of November 2013. The Plaintiff gave evidence and, notably, said that when he found the cattle killed and missing he went to the Kagamuga Police Station and “when I asked them, they said they shot the cows.” He said, “they” referred to the 3 policemen at Kagamuga whom he nominated as the First, Second and Third Defendants. He stated he did not own the land where he kept his cattle but that he did so under licence from the Department of Primary Industries. He stated on oath that he and his men confirmed by count that 27 cattle were killed “and some ran away”. He strongly denied any suggestion the fence which was broken was old and stated that the First, Second and Third Defendants “said they went with their gun to go and shoot the cows and the others break the fence” (sic).

13.	 I assessed him, while he was giving his evidence, and found him to be a credible witness on his claim but lacking in detail as to the cost of the fence. 

14.	The Plaintiff called Wan Kenny who gave evidence of accompanying the Plaintiff to the Kagamuga Police Station and hearing the First, Second and Third Defendants admit shooting the cattle. He came from the Plaintiff’s village and said the Plaintiff’s ownership of the cattle in question was common knowledge. He also saw the broken fence and absence of cattle from the land which the Plaintiff licenced. I assessed him as a reliable witness but, due to lapse of time, vague as to detail.

15.	 The First Defendant was called and gave evidence. He claimed the fence was “not a proper fence” but freely admitted shooting the cattle. He said he did so because he “was told by James Kond to kill his cattle.” He neither knew nor enquired about the ownership of the cattle. The Second Defendant, A/Constable Las Maip, repeated the essence of the First Defendant’s evidence but said there was no fence and “the place where we killed the cattle there was thick bush and it was swampy” and the cows were resting in the pitpit. He said they only had one M16 rifle and it was used by the First Defendant, John Timmie. I did not accept his evidence that there was no fence where the cattle were killed. His demeanor when giving that evidence appeared shifty and did not convey credibility. 

16.	On the 07th of November 2013, James Kond gave evidence on oath. His evidence was that he also owned the land and the police shot his cattle on his land. His said he had 20 cows at the relevant time and the Plaintiff had “20 or so” cattle. He said his fences were good. I watched him carefully as he gave evidence and found him to appear evasive when asked for particulars of his cattle and the condition of his paddocks and fence. I did not assess his credibility highly.

17.	On my review of the evidence I find the facts to be; 
•	The Plaintiff and Defendant were both engaged in cattle farming on blocks of land under licence from DPI at Mugnamp Forest near Kindeng.
•	The First, Second and Third Defendants ended upon the land of which the Plaintiff was the lawful licencee without permission or authority. 
•	The First, Second and Third Defendants, in uniform, on the 2nd of January 2001, shot 4 head of cattle and scattered the rest of the Plaintiff’s herd.
•	As a consequences of the cattle being scattered a total of 27 head of cattle was lost to the Plaintiff and 2000 meters of fencing destroyed. 
•	I accept the evidence from the Plaintiff and Wan Kenny that they counted the Plaintiff’s cattle and found 27 heads missing following the shooting of some of the Plaintiff’s cows. 
•	I find I am satisfied that shooting the cattle, in all likelihood, caused them to become frightened and break down the fence.
•	I find no credible evidence of the value of the fence destroyed 
•	I accept the valuation of K3, 000.00 per head of cattle in the valuation report of the Livestock Extension Officer dated the 8th of April 2013.  

The Law 

18.	The Plaintiff is claiming damages for trespass and damage to his property (viz cattle and fencing). Trespass is one of the exceptional torts which do not require proof of damage but which are, in themselves, actionable. (See Watkins v The Home Department [2006] 2 AC 395 and Letang v Cooper [1965] 1 QB 232). In this instance, however, the Plaintiff claims the trespass did cause damage – the loss to him of 27 head of cattle and 2000 meters of fencing. In other words he suffered actual damage caused by, at very least, the First, Second and Third Defendants shooting some of his cattle and causing the others to destroy the fencing and to become so scattered that he was deprived of another 23 of them – accepting the Defendants’ admission that they shot 4 of the cattle. 

19.	As the Privy Council pointed out in The Wagon Mound (2) ([1967] 1 AC 617) there are instances in which damage is caused to property not through negligence but because of nuisance - and the Privy Council stated that this applied to private as well as public nuisance. 

20.	This, then, requires consideration of the role of the First, Second and Third Defendants in this matter. They say they shot the cattle at the request of a third party who told them he owned the cattle. If one accepts this explanation, does it excuse the First, Second and Third Defendants from liability?

21.	There is no evidence that these Defendants were ordered by a senior officer of the RPNGC to go out and shoot the cattle. The question now arises – was the act of these Defendants in shooting the cattle part of their proper duty? Was it within their lawful powers? With this is evidence (which I accept), that they were in uniform and one, at least, of them armed with a police firearm. Two provisions of the Police Act are of some assistance in examining this aspect of the case.

22.	Section 140 of the Police Act states “a member of the Force has the same powers, duties, rights and liabilities as a Constable under the underlying law, except so far as these are modified by or under an Act.” Section 20 (1) (O) of the Police Act lays down that “a member of the Force who – 
………… “without good and sufficient cause discharges a firearm;……is guilty of a disciplinary offence and liable to be dealt with and punished under this Division.”
						
23.	As to what the “powers, duties, rights and liabilities as a Constable” may be, I have had recourse to Halsbury’s Laws of England (4th edition) volume 36, paragraph 202, which clearly states “the authority of a member of a police force rises directly from his having been sworn to serve the Sovereign in the office of Constable and his status is derived from that of the common law constable.”

24.	A Constable, originally, was an important officer who held and was responsible for the keeping of something important. The word derives from Latin – the “count” (comes) of the “stables” (stabulari). From there the word evolved to mean a person whose office was to keep the King’s Peace in his area, to carry out the orders of the Magistrates (“Justices of Peace”) in a particular area. This duty of “keeping the peace” necessarily evolved into that of preserving the peace by preventing crime and protecting people and property from hurt or damage. 

25.	Try as I might, I can see no way in which going out in uniform and shooting cattle at the request of a member of the public can be part of the duty of the Defendants to preserve public peace and prevent criminal activity. The only problem I see is whether these actions can be classified as trespass, negligence or nuisance or any two or more of these torts.

26.	I cannot, either, understand how anyone could say that shooting cattle in the circumstance of this case involved discharging a firearm with good and sufficient cause. 

27.	It is clear that it must be reasonably foreseeable that the First, Second and Third Defendants’ conduct was trespass to the Plaintiff’s property and the action of killing the cattle, being irreversible, could cause damage to the rightful owner of the cattle. It was incumbent on them, as reasonable and prudent men, to properly satisfy themselves that the person who asked them to shoot the cattle was the rightful owner. Failure to carry out reasonable enquiry can only be classified as negligence. It is no defence that the First, Second and Third Defendants didn’t intend to deprive the Plaintiff of his cattle. As long ago as 1893, Lindley L J, stated in Rapier v London Tramways ([1893] 2 Ch 588 et 599) “at common law, if I am sued for nuisance and the nuisance is proved, it is no defence on my part to say, and to prove, that I have taken all reasonable care to prevent it”. In this instance, the Defendants did not take any reasonable care to prevent nuisance occurring, although this would have required nothing more than, in the first instance, making proper enquiry as to the ownership of the cattle and, also, ensuring that the cattle shooting expedition was with the approval of a senior police officer so that the use of the government (Police) property – police firearms, was not “without good and sufficient cause,” As I said, none of the police Defendants took any such step.

Finding 

28.	I find, in the light of these facts, that the action of the First, Second and Third Defendants; 
	1. Was a trespass to the property of the Plaintiff; 
2. Was action which was unauthorized and not part of a police operation and performed negligently by the defendants as individuals; 
	3. The shooting of some of the cattle, on the balance of probabilities, 
caused the bulk of the herd to panic and destroy the fencing. The cause of the destruction of the fencing was the Defendants’ actions which amounted to a nuisance. The nuisance is a private nuisance and, as such, is confined to injuries to property (see Cunard and Wife v Antifyre Limited [1933] 1 KB 551).

The Damages 

29.	As I have previously stated, I accept the evidence of Kevin Namba, the Livestock Extension Officer of the Department of Agriculture and Livestock, Western Highlands, that the applicable value of grown cattle was K3, 000.00 per head. I also accept the Plaintiff’s evidence that 27 head of cattle were lost to him being the 4 which the police Defendants admitted shooting and a further 23 which, after the shooting incident, were lost to him. The total value of the loss of cattle is K81, 000.00. 

30.	Although I accept the evidence that 2000 meters of fencing was destroyed and I have ruled that the destruction was a result of the nuisance of the First, Second and Third Defendants, there is no evidence of either the value of construction of the fencing or of its value of the time of its destruction. I do not award any damages for the loss of the fencing. 

31.	The First, Second and Third Defendants were clearly not acting as members of the RPNG or under orders of a superior officer. There can be, in these circumstances, no vicarious liability attached to the Fourth Defendant. Accordingly, my finding as to damages applies to the First, Second and Third Defendants only, and I find that each of them is jointly and severally liable to the Plaintiff for the loss he sustained by reason of their negligence in the way and which they failed to make proper and prudent enquiry as to the authority of James Kond to have them shoot the Plaintiff’s cattle, and by their failure to obtain authority from a senior officer of the RPNG to discharge a firearm to destroy cattle.

32.	In addition, or in the alternative, I find the First, Second and Third Defendant, in shooting the Plaintiff’s cattle, committed a trespass upon the Plaintiff’s property, both the cattle and the fencing. As a trespass, their activities are actionable per se although, as I have said, I accept there is, on the balance of probabilities, sufficient nexus to establish that the trespass gave rise to the damage to the cattle claimed. 

33.	Finally, in the alternative, or in addition I find the defendants action in shooting the cattle to be a nuisance.

34.	Although I am conscious that Pollock C.B., in Bamford v Turnely (31 LJQB 292), expressed the view he did “not think that the “nuisance” for which an action will lie is capable of any legal definition, which will be applicable to all actions and useful in deciding them. The question so entirely depends on the surrounding circumstances – the place where – the time when – the alleged nuisance, what – the mode of committing it, how – and the duration of it, whether temporary or permanent occasional or continual – as to make it impossible to lay down any rule of law applicable to every case, and which will be also useful in assisting a jury to come to a satisfactory conclusion. It must at all times be a question of fact with reference to this circumstance of the case. In the circumstance of this case, to which I have referred, I am satisfied that, on the balance of probabilities, the Defendants committed a nuisance which harmed the Plaintiff. 

35.	In so doing, I adopt the definition set out in Winfield on Torts (5th edition), that “nuisance is the unlawful interference with a person’s use or enjoyment of land, or some right over it, or in connection with it”. This definition was cited with approval in Read v Lyons & Co Limited ([1947] AC 156).

36.	Accordingly I find the Defendants (with the exception of the Fourth Defendant) jointly and severally liable on the grounds of negligence, trespass, and nuisance or any or all of these grounds to the Plaintiff in damages in the sum of K81, 000.00.

The Formal Orders

1.	The Plaintiff’s case against the Fourth Defendant is dismissed.
2.	The First, Second and Third Defendant, and each of them is liable, to the Plaintiff in damages in the sum of K81,000.00
3.	The judgment is to bear interest at the rate of 8% from the date of the Plaintiff filing a Notice of Trial (which was the 24th of September 2013).
4.	The Defendants, with the exception of the Fourth Defendant, shall pay the Plaintiff’s costs of and incidental to this action, such costs to be taxed if not agreed.
5.	The time for the implementation of these Orders is abridged to the time of the sealing by the Registrar which shall take place forthwith. 

_______________________________________________
Tamutai Lawyers:     Lawyers for the Plaintiffs	          
Public Solicitors:        Lawyers for the Defendant