N7434

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1399 of 2006

BETWEEN:
DAMIEN KORA
First Plaintiff

AND:
PORO TRADING LIMITED
Second Plaintiff

AND:
CAROL PIO, 
Officer in Charge, Criminal Investigation
 Division, Buka Police Station
First Defendant

AND:
SAM INGUBA, 
Commissioner of Police
Second Defendant

AND:
INDEPENDENT STATE OF 
PAPUA NEW GUINEA
Third Defendant

Waigani: Hartshorn J,
           2016: 15th November 
2018: 16th July 

                                                             Trial

Cases Cited:

Rupindi Maku v. Steven Maliwolo (2012) SC1171

Counsel:

Mr. T. Yai, for the Plaintiffs 
Solicitor-General, for the Defendants

16th July, 2018

1.    HARTSHORN J: The plaintiffs seek damages and loss of business income as a result of the destruction of their property, from the defendants. 

2.    I allowed the trial to proceed in the absence of representation of the defendants as I was satisfied that their lawyers had been properly made aware of the hearing date and time of trial.

3.   The plaintiffs, Mr. Damian Kora and Poro Trading Ltd, a company that Mr. Kora owns, allege that on 1st November 2003 a group of about 30 men trespassed upon and destroyed the property and business premises of the plaintiffs located at Hanahan Village, Buka Island, North Solomons Problems.

4.   This destruction occurred notwithstanding that the first plaintiff had reported threats that he had received to his life and property, to the Buka Police earlier on 1st November 2003. It is alleged that the first and second defendants, a Policewoman and the Commissioner of Police, failed to investigate the threats and complaint, to ensure the safety and security of the plaintiffs’ property and to take necessary preventative measures.

5.  The plaintiffs allege that they suffered loss and damages as a result of the destruction of their property because of the failure and negligence of the first and second defendants in breaching their duty of care that they owed to the plaintiffs. The State is sued on the basis that it is vicariously liable as the ultimate employer of the first and second defendants.

6.   The first issue is whether members of the police owe a duty to members of the public in regard to the prevention of crime.

7.   The plaintiffs refer to numerous authorities on this point and acknowledge that the courts in this and other common law jurisdictions have held that the police do not owe a duty of care to the general public.

8.   The plaintiffs submit however, that the circumstances in this case are such that a duty of care should be imposed. This is because, it is claimed, that the threats to the plaintiffs’ lives and property had been reported to the first defendant at the Buka Police Station earlier on the same day that the property was destroyed and that by the police officers and the first defendant taking note of the plaintiffs’ complaint, a duty of care was created.

9.  In Rupindi Maku v. Steven Maliwolo (2012) SC1171, the Supreme Court (Lenalia, Makail and Kariko JJ) comprehensively considered the issue of whether members of the Police Force owe a duty of care to members of the public in regard to the prevention of crime. It is helpful to reproduce the following paragraphs from that decision:

“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 result
that 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:

·	the number of officers on shift;
·	the conflicted interest of the available officers in the criminal activity and the need for independent investigators;
·	the availability of equipment, such as handcuffs, batons, guns, and ammunitions, and the availability of resources such as motor vehicles and fuel for transportation; and
·	the expertise of officers required to investigate or suppress crime.

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. 

…………. 

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 (Thompson AJ) 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] 2 AC 605, Sutradhu -v- Natural Environment Research Council [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.”  

10.   This court is bound by Maku v. Maliwolo (supra). That the first plaintiff reported threats to the police earlier in the day and that these were noted by the police including the first defendant, to my mind does not give rise to a duty of care being imposed. Putting aside whether the actions of one person, without more, are able to impose a duty of care upon another person, I refer to the rule of nonfeasance. That is, that there will generally be no breach of duty where physical harm or loss arises as a result of a failure to act: Torts, The Laws of Australia 2nd ed 2007 p.57.

11.    Further, there is no evidence that the members of the police including the first defendant, at the time that the threats were reported to them, or at a later time, gave any assurance or promise to the first plaintiff that they would take specific preventative or other actions as a result of the threats. Given this, I am not satisfied that the facts of this case are such that a departure from the principles stated in Maku v. Maliwolo (supra) is available to this court as it is bound by that decision, or indeed is warranted.

12.    It is not necessary to consider the other submissions of counsel. The relief sought by the plaintiffs should be refused.

Orders

13. It is ordered that:

a.	All of the relief sought in the plaintiffs’ further amended statement of claim is refused;

b.	No order as to costs;

c.	Time is abridged.		

_______________________________________________________________
Bristle Lawyers : Lawyers for Plaintiffs                                                
Office of the Solicitor General: Lawyers for the Defendants