N9251

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 392 OF 2012 – (COMM)

BETWEEN:
AUGUSTINE KINUMBO for himself and on behalf of 40 Others whose names appear on the schedule to the Writ of Summons
Plaintiff

V

PAUL NINDIWI as the Provincial Works Manager, Department of East Sepik
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Anis J
2021: 11th August, 4th November

TORT OF NEGLIGENCE – preliminary consideration – pleadings - whether plaintiffs required to plead s. 1 of the Wrongs (Miscellaneous Provisions) Act – want of pleading s. 1 – consequences – whether that is fatal or whether the claims are properly formulated and before the Court – consideration

Cases Cited:

Murunga v. Kambori (2014) N5706
Catherine Popo v. Papua New Guinea Electricity Commission (2014) SC1360
Pamenda Ipi Pangu v. Mark Korr (2015) N6069
Samson Kisa v. Sergeant Major James Takeok (2016) N6561
Samson Kisa v Sergeant Magor James Talok (2017) SC1650

Counsel:

B. William with A. Yauieb, for the Plaintiffs
R. Kebaya, for the Second Defendant

RULING

4rd November, 2021

1.	ANIS J:	The trial on liability was heard on 11 August 2021.  It was contested, and after tendering of evidence and presentation of submissions, I reserved my ruling to a date to be advised.

2.	This is my ruling.

BACKGROUND

3.	The plaintiffs filed this proceeding on 1st May 2012.  They consist of landowners and leaseholders of East Sepik Province who live along the west coast highway.  The highway is called Simogun Highway (the highway).  It stretches from Wewak town to the west coast towards Aitape-Lumi Distrct of Sandaun/West Sepik Province.  The surrounding area where the plaintiffs come from or live under various government leases, may be described as Rambumba/ Rainumbo/ Hawaiin (impact areas).  Their grievances concern a bridge called Rambumba Bridge (the bridge) that was built over the Rambumba river along the highway.  The plaintiffs claim that due to the neglect of the defendants (State) in maintaining the bridge over time, debris have accumulated and blocked off the smooth flow of the river underneath the bridge.  As a result, they allege the water way has over time overflown or diverted from the bridge thus has been causing destructions to their land and its fertility, food crops and gardens, properties and to the environment along the impacted areas.  They claim that these events or occurrences have affected their livelihoods in a significant way.  As such, they allege that the State should be held liable for negligence.

4.	The State has denied liability. It claims that the pleadings are insufficient or in disarray to sustain a reasonable cause of action against it.  It also denies that it is responsible for the damages and alleges that these events or floods were caused by other means including act of God and not as a result of its actions or want of it.

EVIDENCE

5.	The plaintiffs tendered a total of 3 affidavits without the benefit of cross-examination.  They are as follows, (i), affidavit of Augustine Kinumbo filed on 20 December 2018 marked as Exhibit P1, (ii), affidavit of Alois Conzaka Wafy filed on 21 December 2018 marked as Exhibit P2, and (iii), affidavit Lawrence Wagerek filed on 20 October 2017 marked as Exhibit P3.  Exhibit P3 was objected to by the State.  I heard arguments and in a brief ruling over-ruled the objection and allowed it to be tendered.  I would refer to the transcript of proceeding for my reasonings.

6.	The State did not tender any affidavits.

PRELIMINARY MATTER

7.	The State, in its defence and submission, raised a preliminary matter which I will deal with first.  It claims that because the plaintiffs did not plead the relevant statute and its provision, that is, s. 1 of the Wrongs (Miscellaneous Provisions) Act Chapter No. 297 (Wrongs Act), that their claim is untenable and must be dismissed.

8.	I note the submissions of the parties on this.  I must say that the plaintiffs’ counsel did not address the issue in detail.  In my view, matters that come to Court for trial, the parties are required to assist or address the Court on all aspects of the dispute.  I also note that the Court’s role is to ensure that all matters and issues that arise from the dispute are properly addressed.  The Court, in my view, and in view of its inherent power, should not proceed and consider matters or issues purely based on what the parties submit should be the issues for trial but rather on all the issues that arise based on the pleadings.  Parties that come to trial are required to come fully prepared to argue or address all issues whether favourable or unfavourable to their clients’ interests.  If a party fails in that regard, then it may result or contribute to injustice being caused to the matter concerned.  The presumption then, in regard to material issues not raised or covered by a party or parties to a proceeding, is that they are left to the Court to decide on them on the Court’s own volition.

9.	The writ of summons and statement of claim was filed on 1 May 2012 (SoC).  There is no pleading of s. 1 of the Wrongs Act or the Wrongs Act itself in the SoC.  As such and at paragraph 12(d) of the State’s Defence filed on 25 October 2017, the State makes this allegation, that is,

12.  As for paragraph 15, 16, 17, 18, 19 and 20 of the Defendants deny entirely the plaintiffs allegations and say;
……

(d)	The plaintiff has also failed to plead Miscellaneous Provisions Act (sic) section 1, therefore the State is (sic) liable in Negligence in any way.

10.	There are typos observed in the said pleading.  But essentially and as understood by the parties, the State’s position under this defence is that the plaintiffs have failed to plead s. 1 of the Wrongs Act, and therefore it claims that it cannot be held liable in any way whatsoever to the tort of negligence.  The argument is also captured in its written submission.

11.	The plaintiffs provided their response at [11] of their Reply filed on 31 October 2017, as follows,

11.  In respect to paragraph 12 (a)(b)(c)(d) and 13 of the defence the plaintiffs maintain that the defendants failed in their duty of care in clearing the debris from the Rambumba Bridge, the plaintiffs are both State lease holders and customary landowners and have the right to reside there.  There is a nexus between the failure of the defendants to clear the build up of debris at the Rambumba Bridge and the subsequent flooding of the adjacent state leases and customary lands.

12.	The question I have then is this, whether the want of pleading s. 1 and the Wrongs Act in the SoC are fatal in themselves to the plaintiffs’ claim for the tort of negligence against the defendants, or whether the pleadings at paragraph 11 of the Reply and the SoC, are sufficient and that there is a nexus in the pleadings that establishes a reasonable cause of action.

13.	I refer to s. 1 of the Wrongs Act.  It reads:

1.  General liability of the State in tort.

(1)  Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject—

(a)	in respect of torts committed by its servants and agents; and
(b)	in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and
(c)	in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.

(2)  Proceedings do not lie against the State by virtue of Subsection (1)(a) in respect of an act or omission of a servant or agent of the State unless the act or omission would, apart from this Division, have given rise to a cause of action in tort against the servant or agent or his estate.

(3)  Where the State is bound by a statutory duty that is binding also on persons other than the State and its officers, then, subject to this Division, the State is, in respect of a failure to comply with that duty, subject to all liabilities in tort (if any) to which it would be subject if it were a private person of full age and capacity.

(4)  Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.

(5)  An Act or subordinate enactment that negatives or limits the amount of the liability of a Department of the Government or officer of the State in respect of a tort committed by the Department or officer applies, in the case of proceedings against the State under this section in respect of a tort committed by the Department or officer, in relation to the State as it would have applied in relation to the Department or officer if the proceedings against the State had been proceedings against the Department or officer.

(6)  Proceedings do not lie against the State by virtue of this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in him, or responsibilities that he has in connexion with the execution of judicial process.

14.	For the State, counsel referred to and relied on the case of Paul Enny Murunga v. Valentine Kambori (2014) N5706.  Davani J stated at [23] of her decision,

23.  Also if a plaintiff’s cause of action or his entitlement to sue depends on a statute, he must plead all facts necessary to bring him within that statute and to also plead that statute.  (Lina Kewakali v. the State (supra); (Catherine Popo v. Papua New Guinea Electricity Commission (2014) SC1360 per Injia CJ, Davani .J, Gabi.J).  [Underlining mine]

15.	The Supreme Court in Catherine Popo v. Papua New Guinea Electricity Commission (2014) SC1360, stated at [24] and [25] and I quote in part:

……Further, if a plaintiff’s cause of action, or his entitlement to sue depends on a statute, he must plead all facts necessary to bring him within that statute and to also plead that statute (see Jacob Simbuaken v. Neville Egari (2009) N3824;  Sear v. Lawson (1881) 16 Ch. D. 121; Read v. Brown (1998) 22 Q.B.D 128). It is imperative that the statutory provision, on which a party relies, is pleaded in either the Defence or the Statement of Claim.

25.  This is similar to the specific pleading of section 1 (1) (a) of the Wrongs (Miscellaneous Provisions) Act Chapter 297 in a case where a plaintiff seeks to show or prove vicarious liability of an employer for a defendant who was purportedly acting in the course of his employment.  (see Jacob Simbuaken v Neville Egari (supra) ).  Additionally, this is akin to the statutory requirement to specifically plead a Defence e.g section 5 of the Frauds and Limitations Act 1988 as provided in order 8 rule 14 of the National Court Rules (see Angelo Cresseri and Wiwa Korowi v. Halla Resources Corporation [1985] PNGLR 294 (SC 303).  [Underlining mine]

16.	And the Supreme Court held on point, and I quote, The appellant did not plead the statute that he relies on and its relevant provisions governing employment with the respondent because if a plaintiff’s cause of action or his entitlement to sue depends on a statute, he must plead all facts necessary to bring him within that statute and to also plead that statute and the relevant provisions.  [Underlining mine]

17.	Pool J in Pamenda Ipi Pangu v. Mark Korr (2015) N6069 stated at [22] of his decision:

22.  Finally, there are two further issues to be addressed. The first is the Plaintiff is pleading a case based on vicarious liability. In paragraph 19 of his Statement of Claim he states “on the said 17th of March 2001, the First Defendant as agents and or employees of Second, Third and Fourth Defends detained the Plaintiff more than 6 hours…..” He pleads that the Second Defendant is “responsible for all police actions throughout the Western Highlands Province” and the Third Defendant “is responsible for all Police actions or inactions throughout Papua New Guinea.” There is no proper pleading of agency and certainly no pleading of the statutory basis of that agency by a specific pleading of section 1 (1) of the Wrongs (Miscellaneous Provisions) Act as required by the law (see Jacob Simbuaken v Neville Egari (N3824) and, so far as the Common Law is concerned, the Courts of Papua New Guinea have frequently referred to Sear v Lawson (1881) Ch. 16 D. 121 and Read v Brown (1888) 22 QBD 128 and followed them as authority for the proposition that, if a Plaintiff’s cause of action depends on a statute, the Plaintiff must plead all and facts necessary to bring him or her within that statute. This has not been done.  [Underlining mine]

18.	Pool J in Samson Kisa v. Sergeant Major James Takeok (2016) N6561 stated at [14] and [16]:

14.  Further, if, as I suppose, the Plaintiff’s lawyer would rely on the Wrongs (Miscellaneous Provision) Act (as stated in his submissions) as statutory basis for the Plaintiff’s action, he must not only plead the facts necessary to bring the claim within the statute but must also specifically plead the statutory previsions relied on.  (See Jacob Simbuakem v Neville Egari (N3824) and Pamendi Ipi Pangu v Mark Korr (N6069).  [Underlining mine]
……
16.  So there are two main problems with the pleading of this Statement of 
Claim.  First, the Statement of Claim omits to specifically plead the statutory basis upon which a claim of vicarious liability rests by failing to specifically plead section 1 of the Wrongs (Miscellaneous Provision) Act.  This is mandatory (see Jacob Simbuakem v Egari – Supra).  In addition to this, the underlying law (Common Law) requires a party whose cause depends on statute to plead all the facts required to have the cause pleaded comply with the statute and also plead that statute.  The often quoted case of Read v Brown (1888) 22 QBD 128, is clear authority for this proposition and has been adopted and followed in a number of cases in Papua New Guinea, including by the Supreme Court in Catherine Popo v PNG Electricity Commission (SC 1360). 

19.	Finally, the Supreme Court recently in in Samson Kisa v Sergeant Magor James Talok (2017) SC1650 held on point as follows:

(1)	In order for the appellant to establish a cause of action and vicarious liability against the State, he had to specifically plead section 1 (1) and (4) of the Wrongs (Miscellaneous Provisions) Act, Chapter No. 297 in the Statement of Claim and plead that the first respondent (tortfeasor) committed the tort whilst acting in the course of his duties as policeman.

(2)	The failure by the appellant to plead section 1 (1) and (4) of the Wrong (Miscellaneous Provisions) Act, and allege that the first respondent committed the tort whilst acting in the course his duties rendered the pleadings defective: Kelly Lerro v. Phillip Stagg & Ors (2006) N3050 and Phillip Takori v. Simon Yagari & Ors (2008) SC905 adopted and followed.  [Underlining mine]

20.	The relevant background in Samson Kisa is similar to the present case.  The plaintiff therein was a CS officer.  He was allegedly shot and wounded by a policeman.  He sued the State for the tort of negligence/unlawful shooting.  The primary judge dismissed the proceeding because he found that the plaintiff did not plead the Wrongs Act and s. 1 in his statement of claim.  The trial Judge also found that the plaintiff failed to adduce evidence to prove his claim for negligence.  On appeal, the Supreme Court identified 2 issues at [8] of its decision.  The first issue was whether s.1 of the Wrongs (Miscellaneous Provisions) Act, which was not pleaded, should have been pleaded in the Statement of Claim by the appellant and claimed that the first respondent shot him whilst acting in the course of his duties, in order to establish vicarious liability against the State.  And the second issue was whether there was evidence to warrant awarding of damages to the plaintiff.  The Supreme Court said the 2nd issue was subject to the first.  Upon finding the first issue in favour of defendants or the State as summarized above, it proceeded to dismiss the appeal by the plaintiff or appellant.

CONSIDERATION

21.	The plaintiffs did not plead the Wrongs Act and s. 1, in their SoC.  This fact, as stated above herein, is not disputed.  And as the case authorities reveal, pleading of the statute is mandatory in a case where a plaintiff intends to seek damages based on a tort against the State and its agents or servants.  Without this pleading in the SoC and in view of the vast case authorities as stated herein from both the National and Supreme Courts, it is not possible, as I can see, for the plaintiffs to go past this first preliminary hurdle in their claim.  

22.	I might have reservations in regard to the position that it is mandatory to plead a statute like the Wrongs Act and its specific provisions or law, in a pleading when pleadings are supposed to only plead facts and not law.  However, my view may be addressed perhaps at an appropriate time.  As it is, I am sitting as a National Court Judge thus am bound by the existing Supreme Court decisions such as Catherine Popo v. Papua New Guinea Electricity Commission (supra) and Samson Kisa v Sergeant Magor James Talok (supra).  The decisions therein are binding upon this Court.  

23.	I therefore uphold the preliminary argument by the State.  I find the plaintiffs’ claim defective or substantially flawed in that they failed to plead the Wrongs Act and its relevant provision, namely, s.1 and its other related provisions therein to provide a nexus with the allegations that are pleaded in the SoC.  The claim will therefore fail for this reason.

SUMMARY

24.	This proceeding will be dismissed.

COST

25.	I am inclined to and will award cost of the proceeding to follow the event, that is, on a party/party basis to be taxed if not agreed.

REMARKS

26.	I end with this remark or observation.  There were no sufficient or specific pleadings setting out a reasonable timeline of the events as alleged in the SoC.  Reference to time in the SoC was first pleaded at paragraph 5 where it was alleged that the bridge was built by the Australian Army in 1970.  The next general time claim was pleaded at paragraph 7 of the SoC where it was alleged that over a period of 20 years, that is, starting in 1970, debris had gathered or had blocked off the bridge.  Then the plaintiffs make general allegations of flood and destructions that were caused to their land with the use of general phrases such as, every time it rains and the river floods, and to link that or these claims to the destructions caused to their land or the impacted areas.  The next general time recording in the SoC after that was at paragraph 11.  The plaintiffs alleged that on 29 August 2010, they had taken steps to invite technical officers from the provincial department of lands of East Sepik Province, to inspect the bridge and make assessments to the damages caused by the overflow or flooding.  And that was about it; the plaintiffs then pleaded what they had suffered and their estimates or calculations of their various losses.  I would say that the pleadings are far too vague or general to be regarded as having any nexus between the facts and the damages that were alleged to have bee suffered.  In the end, the SoC does not appear to plead a reasonable or properly formulated action for tort against the defendants.

ORDERS OF THE COURT

27.	I make the following orders:

1.	The proceeding is dismissed in its entirety.

2.	The plaintiffs shall pay the defendants’ costs of the proceeding on a party/party basis which may be taxed if not agreed.

3.	Time for entry of these orders is abridged to the date and time of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly
________________________________________________________________
MS Wagambie Lawyers:	Lawyers for the Plaintiff
Solicitor General’s Office: Lawyers for the Defendant