N9461

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 85 OF 2021 (IECMS)

BETWEEN:
DAVID TSITOA GEREWE T/A JODASH TRANS & HIRE SERVICES
 Plaintiff

AND:
KALIA INVESTMENT LIMITED
Defendant

Waigani: Tamade AJ
2021: 8th November  

NEGLIGENCE – claim by plaintiff for breach of duty of care – plaintiff and defendant have a business relationship – plaintiff leases motor vehicles to defendant – plaintiff incurs monetary losses and loss of vehicles through criminals while vehicle is on hire and under custody of the defendant – criminals hold up and confiscate plaintiffs motor vehicle because of disputes between them and the defendant - whether defendant owes the plaintiff a duty of care - incidents of hold up and confiscating of the Plaintiff’s vehicles are outside the control of the Defendant - remote that a reasonable person in the employment of Defendant cannot anticipate taking necessary action to avoid such incidents - claim has not been made out on negligence based on the duty of care and a breach of that duty as to the criminal incidences claimed in this matter – claim is dismissed with costs

Cases Cited

The following cases are cited in the judgment:

Seribu Daya (PNG) Ltd v Tropicana Ltd [2020] PGNC 98; N8261 
Burns Philp (NG) Ltd v George [1982] PGSC 3; SC259
Karawari Lodge Pty Ltd v Luck [1999] PNGLR 64 
Counsel:	

Mr Solomon Wanis, for the Plaintiff
Mr Jeffry Messa, for the Defendant

2nd March, 2022

1. 	TAMADE AJ: Plaintiff runs a hire car business in Buka in the Autonomous Region of Bougainville. Defendant is a mineral exploration company also operating out of Buka in the Autonomous Region of Bougainville.

2. 	Plaintiff and Defendant have a business relationship whereby Defendant hires vehicles belonging to Plaintiff to carry out its operations in Buka and pays Plaintiff accordingly for the hire of its vehicles. The Plaintiff states that because of this relationship, Defendant owes a duty of care to the Plaintiff to ensure that it notifies the Plaintiff of any imminent risk of highjack or robbery and to notify the Plaintiff of areas where there is likely to be criminal activities to ensure that the Plaintiff’s vehicles and its staff are safe and protected.

3. 	On 20 August 2020, the defendant hired from Plaintiff a motor vehicle described as a blue five-door Toyota Land Cruiser with a Registration Number UAC 120. The driver of the vehicle pursuant to the business agreement is supplied by Plaintiff and hired by Defendant with the hire of the motor vehicle.

4. 	On that day, the motor vehicle belonging to Plaintiff and hired out by Defendant was held up by criminals. Plaintiff alleges that the criminal who held up the motor vehicle is someone by the name of Warren Silas who is someone familiar to the Defendant as he is a customary landowner who had some unresolved issues with the Defendant. Plaintiff alleges that Mr. Silas and his clan members set up a roadblock at a place called Aita in Buka and held up the motor vehicle belonging to Plaintiff.

5. 	Plaintiff further alleges that the dispute between Mr. Silas and the customary landowners and Defendant was a serious matter over unpaid dues.

6. 	Plaintiff’s vehicle involved in the hold-up was later retrieved by the police on 3 September 2020 however the police operation which resulted in the retrieval of the vehicle also resulted in the death of the brother of Mr. Silas.

7. 	Plaintiff alleges that the said Mr. Warren Silas aggrieved by the loss of his brother then again hijacked another vehicle on the belief that it belonged to the Defendant over disputes with the Defendant however the vehicle belonged to the brother of the Plaintiff, one Mr. Francis Masoii. Mr. Masoii in retaliation took possession of a vehicle belonging to Plaintiff with the registration details UAC 429. 

8. 	The Plaintiff, therefore, claims that it had lost two vehicles as a result of the Defendant’s issues with customary landowners and as a result, it suffered loss of business for the days it could not use the vehicles and also he suffered the loss of the second vehicle for its total value and other losses where his fleet of vehicles were locked up for six months due to the criminal actions resulting in the hijack of his vehicles.

9. 	Essentially, Plaintiff is claiming that Defendant owed him a duty of care to ensure his vehicles were kept safe from any criminal activities or harm and claims his losses as a result.

10. 	Defendant on the other hand denies that it is responsible for the actions of criminals who hijacked the vehicles and says that it had relied on Plaintiff in the past on whether his vehicles can go to certain areas which were safe in Buka as Plaintiff had refused access to his vehicles to certain areas.

11. 	Defendant denies that it is responsible for the losses suffered by Plaintiff as to two of his vehicles and says that it should not be liable for these actions which are due to criminal elements and are beyond their control.

12. 	The pertinent questions in this matter are:

a)	Does there exist a duty of care owed to Plaintiff by Defendant in regard to the relationship as between the Plaintiff giving his vehicles on hire to the Defendant?

b)	Did Defendant act negligently toward Plaintiff by allowing Plaintiff’s vehicles to travel to areas which were notorious for criminal activities which resulted in Plaintiff’s losses?

13. 	 I set out the following passages as submitted by the Plaintiff to understand the background of duty of care and an act that is foreseeable so as to exercise that duty as discussed by the relevant courts as follows:

a)	 In the case of Seribu Daya (PNG) Ltd v Tropicana Ltd [2020] PGNC 98; N8261 (3 April 2020) where the Court quoted the landmark case of Donoghue v Stevenson, where the Court stated that:

“In the landmark case of Donoghue v Stevenson [1932] AC 562, Lord Atkin set the foundation for modern law of negligence when he pronounced the “neighbour test” as the basis for when a duty of care is owed. Lord Atkin at page 580 said;

‘The Rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought to reasonably have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

b)	The Plaintiff also relies on the case of Burns Philp (NG) Ltd v George [1982] PGSC 3, SC259 (1 July 1982) as:

“In the Council of the Sire of Wyong v Shirt and Others (1980) 54 A.L.J.R 283, Mason J, with whom the majority agreed commented upon ‘The Wagon Mound’ No.2 (1967) 1 AC 617 in the following terms at page 285;
‘In deciding whether there is a breach of the duty of care, the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the Plaintiff. If the answer is in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of a response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence along with the expense and difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that a tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position..’

His Honour further stated that:

“A risk which is not far fetched or fanciful is real and therefore foreseeable. But as we have seen, the existence of the foreseeable risk of injury does not in itself dispose of the question of breach of duty.”

c)	 Lord Reid in Dorset Yacht CO Ltd v Home Office (1970) A.C 1004 where after reviewing the “The Oropesa’ (1943) p.32 & 37, Haynes v Harwood (1935) 1 KB 146 at 156 and Scott’s Trustees v Moss (1889) 17 R (Ct of Sess) 32, His Lordship Concluded at p1030:

“These cases show that where human action forms one of the links between the original wrongdoing of the Defendant and the loss suffered by the Plaintiff, the action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking the chain of causation. I do not think that a mere foreseeability possibility is or should be sufficient, for then the intervening human action can more properly be regarded as a new cause then a consequence of the original wrongdoing. But if the intervening action is likely to happen, I do not think that it can matter whether that action was innocent or tortious or criminal.”

“In the Lordships’ judgment Bolton v Stone (1951) A.C 850, did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognize and give effect to the qualification that is justifiable not to take steps to eliminate a risk a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.”

And at pp.643 and 644:

“If a real risk is one in which would occur to the mind of a reasonable man in the position of the defendant’s servant and which he would not brush aside as far-fetched, and if the criterion is to be what the reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and required no expense.”

As Mason J, (Stephen and Aicken JJ agreeing) said of this decision in the Wyong case (supra) at p.285:

“In essence it’s correctness depends upon a recognition of the general proposition that foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. I am of course referring to foreseeability in the context of breach of duty, the concept of foreseeability in connection with the existence of the duty of care involving a more generalized enquiry.
Risk of injury is quite likely to occur, such as that which happened in Bolton v Stone (supra), ante, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of it’s occurrence, save that we are implicitly asserting that the risk is not one that is farfetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is for foreseeable.”

14. 	 Perhaps the PNG case of Karawari Lodge Pty Ltd v Luck [1999] PNGLR 64 (5 June 1998) is the case concerning criminal acts which required the Court to consider the issue of negligence. The facts of that case as stated by the Supreme Court is set out as follows:  
The appellant is the proprietor of the Karawari Lodge (hereafter referred to as “the lodge”) situated in the East Sepik Province.  It is a popular international tourist destination.  Between 1985 - 1988, the respondent (“Mr. Luck”) was employed as its manager.  Prior to August 1988, the lodge was quite peaceful.  It did not encounter any security problems.  As such the lodge did not have any security systems in place - there were no security guards employed, the lodge area was not secured by a fence and there was no padlock to the main dining room hall.  The success of the lodge partly depended on the support it received from the local people of the area.  The lodge relied on the co-operation and support of the local people in the area for its cultural activities and general security.
For the first time in its history, in August 1988, the lodge was attacked by six (6) heavily armed criminals.  They were armed with masks, bush knives, and shotguns.  They held up the manager and some 22 foreign tourists at gunpoint and stole various property items from the lodge and escaped.  No one was injured in this incident.  Security then became a matter of concern for the management and the proprietors of the lodge.  After discussions between Mr. Luck and Mr. Bates who was the principal proprietor of the lodge, again for the first time in its history, a lone security guard from the area armed with a shotgun was employed to guard the lodge and its employees including Mr. Luck.
On 20 October, at night, heavily armed criminals attacked the lodge again.  This time there were 15 - 20 tourist guests dining in the main hall.  When they attacked, the lone security gunman got scared and went into hiding and re-appeared after the attack was all over.  In the attack, the criminals held up the guests and Mr. Luck and stole items from the hotel as well as from the guests.  When Mr. Luck objected, he was hit on his neck.  As a result, he sustained injuries to his neck and spine for which he pursued a compensation claim under the Worker’s Compensation Act (Ch No 72) and received compensation.  He also instituted an action in the National Court claiming damages.  His action was based under two heads namely, on the basis of occupier’s liability principles under S. 52 of the Wrongs (Miscellaneous Provisions) Act (Ch. No. 297) and on the basis of common law tort of negligence based on the alleged breach of duty of care owed by employer to its employee to provide a safe system of work.  The trial judge rejected the claim based under occupier’s liability principles but found the appellant liable in negligence.  The trial judge awarded damages in the total sum of K79,403.30 plus interest at 8% plus costs.  This appeal arises from that decision…
The principles are clear.  There is a general duty of care owed by an employer to its employees to provide a safe system of work.  This duty is imposed by the common law.  It is the employer’s duty to take reasonable steps to ensure or protect the safety of an employee from unnecessary risk of injury intentionally caused or otherwise.  This includes the risk of injury intentionally caused by a third party which includes criminals.  It is the duty of the employer to provide adequate and readily available security measures to protect the employee at the employee’s workplace.  There is no perfect system of work that is free from any risk and there is no such absolute obligation on the employer to provide such a system.  It all depends on the circumstances of each case.  The test is whether the employer has taken reasonable care, paying proper attention to the risk and paying reasonable attention to the other relevant circumstances.  The necessary questions of fact which falls to be decided by the trial judge are: 
1. That the defendant’s operations involved a risk of injury which was reasonably foreseeable. 
2. That there was a reasonably practicable means of obviating such risk; 
3. That the plaintiff’s injuries were caused by the risk in question; 
4. That the failure of the defendant to eliminate the risk showed a want of reasonable care for the plaintiff’s safety.  
In considering the specific issue of whether the employer took reasonable steps to protect the employees from the risk of injury intentionally caused by criminals at the workplace such as in the instant case, the issues of fact are: 
1. That the likelihood of a future attack by criminals was reasonably foreseeable;
2. That there were some reasonable security measures available to the employer to take to prevent the subsequent criminal attack; 
3. That the employee’s injury was caused by the risk of criminal attack;
4. That the employer failed to prevent the subsequent criminal attack which amounted to want of care for the employee’s safety.
These and other relevant factors must be considered in the aggregate when deciding whether the employer took reasonable steps to protect the employee from the risk of injury from attacks by armed criminals.
At the outset, we make mention of the different types of employment.  The provision of security may depend on whether the employee is employed under a contract of employment, written or oral, or under a statute.  The contract or statute may make provision for security of the employee at the workplace or to and from the workplace.  A breach of the contractual duty or statutory duty may give rise to an action in negligence.
In the present case, we presume Mr. Luck as a foreigner was no doubt employed under a contract, but he did not rely on any breach of terms of such contract by the employer in relation to the provision of security at the workplace.  His claim was based on the general common law duty of care.
The trial judge relied on the principles in the Colbert and Turner cases to the facts of the case before him in this way:
“In the instant case, the Plaintiff was the Manager of the Lodge.  He had been for about three years before he was assaulted.  Evidence is that some months earlier before the plaintiff was assaulted there was an armed hold up in the presence of Mr. Bates the owner of the lodge.  From that time on security became a matter of concern to the plaintiff as the Manager of the lodge.  Mr. Bates the owner and director of the company operating the lodge also became aware of the need for security at the lodge.  Securimax guards were employed at the Lodge to provide security, but they were returned to Mount Hagen because they were ineffective.  Local people were engaged to provide security at the Lodge.  At the time the plaintiff was attacked there was a local person involved in providing security.  He was armed with a gun.  However, the lone armed local security man proved ineffective at the time of the attack by the six criminals who were also armed.  Clearly, he was outnumbered.  Plaintiff as the Manager was responsible for the day-to-day security at the Lodge.  The duty was thus on him to put in place adequate security measures.  Mr. Luck said he had discussed security problems with the Directors, but nothing was done.
The defendant argues that Plaintiff must satisfy the court that if the defendant had authorized the plaintiff to engage the involvement of the local security guards he probably might not have been injured or that the injuries he sustained might have been averted.  The defendants argue that at the time of the incident there was a local security guard armed with a gun but that proved ineffective and so in the circumstances, it was difficult to see how the presence of local security guards would have resulted in deterring the armed gang that assaulted the Plaintiff.
The Plaintiff thus argues that applying the words of Gibbs CJ in Turner v South Australia (Supra) the plaintiff cannot succeed unless he proves on the balance of probabilities that the safety measures (involvement of local people) would have been effective and that he would have made use of those local security guards who might have deterred the criminals from entering the premises of the lodge.  As has been stressed earlier the plaintiff was the manager.  He engaged the services of the local people to be involved in the operation of the lodge, presumably with the knowledge and the authorization of the Directors and the owners of the Lodge.  The engagement of the lone gunman proved ineffective.  It was not sufficient.  Placement of perhaps some more local men might have deterred the attack.  There was in my view a need to place more than just one guard with a gun.  That was not done.  The plaintiff was the person who was responsible for arranging and putting in place those guards.  However, he could not act on his own as he had to get his directions from the Directors in Mount Hagen.  He was given directions to employ local people.  He only employed one man.  That proved ineffective the directors however did not give him clear directions as to how many local people he should employ.  It seems to me that it was the Plaintiffs decision to have only one local security guard on duty on the night of the incident, that decision by him resulted in the armed gang coming in easily to the lodge.  I am of the view that given the circumstances the plaintiff was in he only got the one local guard to be on duty because he was not given clear directions as to how many local people he should engage.  He, however, was the Manager, he ought to have sought clear directions.  In my view, I would apportion liability on a 75% to the defendant and 25% to the plaintiff.”
The appellant asks this Court to disturb the conclusions reached by the trial judge on the basis that His Honour erred in finding the appellant negligent on those set of facts.  The question of whether proven set of facts meets the legal standard is primarily a question of law.  The issue, in this case, is the same issue before the trial judge and that is, whether the appellant in the circumstances failed to take reasonable steps to protect Mr. Luck from the risk of injury intentionally inflicted by criminals on the night of 20 October 1988.  As an appellate court, the power to decide the question of whether the facts found do or do not give rise to the finding that a party was negligent is one that we share with the trial judge.  It is our duty as well to decide the case, the facts as well as the law, for ourselves: Warren v Coombes [1979] HCA 9; [1979] 142 CLR 531 at 552 adopted and applied in Allan Oa Koroka v The State [1988 - 89] PNGLR 131 at 136 - 137.
Mr. Payne submits that the appellant should not have been held liable for the independent acts of criminals when the appellant, in all the circumstances, acted reasonably in providing appropriate security measures.  Counsel for the respondent, Mr Sirigoi, submits that the appellant failed to take reasonable steps to ensure or protect the safety of the lodge including Mr Luck after the first robbery incident in August 1988, in that only one local security gunman was engaged which could not have and did not prevent or deter the second similar attack.  He submits that after the first attack, the second attack was reasonably foreseeable.  He submits the appellant’s subsequent engagement of professional security men from Securimax Pty Ltd came only after the second attack whereas if they had been engaged or other security systems installed at the lodge after the first attack, then the second attack could have been prevented.  This he submits shows that the appellant was negligent.
We are also asked by Mr Payne to consider the policy implications of whatever decision we make in this appeal in two areas:
(1)	That the court should not hold employers responsible for independent criminal acts, where the employer has in all the circumstances acted reasonably in providing appropriate security arrangements.
(2)	The employees who are injured by independent criminal acts in the course of their employment should be compensated under the Worker’s Compensation Act and any common law claim should be discouraged.
We do not think it is our function to consider and pronounce policy statements concerning these types of matters.  That is the function of the Parliament.  We can only say that although we are cognizant of the general crime situation throughout the country, in particular the prevalence of serious crimes such as armed robbery committed by criminals, we do not believe that the crime situation in the country has reached unprecedent level that every employee is in dire need of protection at his workplace at all times.  The need for security of employees in the workplace is a matter of private concern between the employer and the employee.  As to whether or not the security arrangements in the workplace is required and if so required, as to what reasonable steps are to be taken to counter the risk of criminal attack would very much depend on the particular circumstances of each case.
The type of security arrangements provided by the employer to the employee at the workplace may depend on the type of activity carried on by the employer and the duties performed by the employee.  If the type of employment involves dealing with substantial valuable property or money which might attract the attention of criminals, then it might be said that there is an inherent security risk which would require appropriate security measures to protect the employer’s business including the safety of the employees who are directly involved in managing that part of the employer’s business.
In the present case, the employee was employed as the manager of a lodge which had a history of peaceful co-existence with the local community for a long time.  Before August 1988 security of the lodge including its employees such as Mr. Luck was of no concern to the employer and the employees.  Attack by criminals on the lodge was not known of prior to August 1988.  This was partly because the lodge was not involved in the business of handling substantial valuable property and money as such would attract the attention of criminals in the area.  It was involved in providing facilities for tourists to come to stay and enjoy with the support of the local people.  In a country where criminal activities have increased over the years, this was a remarkable achievement on the part of the proprietors and the management of the lodge, and the local people.
The first robbery incident in August 1988 did not radically change the views on the security of both Mr. Luck and Mr. Bates.  We consider this attitude to be reasonable given the very nature of the tourist business conducted on the premises of the lodge and surrounding areas by Mr. Bates and managed by Mr. Luck.  The management and the owner of the lodge quite legitimately felt there was no need for additional security measures at the lodge for to do so would have sent wrong signals to potential tourists and the local people who supported the lodge.
The one-off incident in August 1988 was considered by both the employer and the employee to be quite remote.  Nonetheless, the employer did discuss the security concern with Mr. Luck which resulted in the lone local security gunman being engaged to deter or counter any future criminal attack.  Although the risk of a future (second) attack in these circumstances would have been reasonably foreseeable by Mr. Luck and Mr. Bates that risk in our view was sufficiently countered by installing security measures relative to the risk posed.
Given the peaceful history of the lodge, we consider that the employer acted reasonably in moving one step forward to install security measures.  Given the intricate nature of the amicable relationship which existed between the lodge and the local people, which was comforted by the corresponding confidence of tourists, both local and international, we do not think the employer acted unreasonably in employing just one local security gunman.  However, the lone security gunman proved no deterrent to the heavily armed criminals.  Even if the Lodge employed several armed or unarmed groups of local security men from the area, we wonder whether they would have deterred or prevented several heavily armed determined criminals.  The employer in his considered judgment in the given circumstances considered that Mr. Luck should take steps to secure the premises from criminal attacks - steps which were relative to the risk posed.  Both the employer and Mr. Luck considered the engagement of the lone security gunman to be sufficient to counter the risk.  After the second attack, the employer increased its security arrangements which they considered to be relative to the increased risk.  We would pay deference to their judgments in these sorts of situations and conclude that the employer was not negligent in the circumstances.  We conclude that the trial judge erred in finding that the employer was principally negligent.

15. 	Plaintiff, in this case, implores me to find that because the Plaintiff in the Karawari Lodge v Luck case had taken reasonable steps to install a lone security guard after the first criminal incident, the Supreme Court held that the appellants were not negligent. Plaintiff submits that Defendant in this instance has failed to take reasonable security measures to avoid the two incidents which resulted in the loss of hire of one vehicle and in another incident, the loss of the value of their other vehicle.

16. 	The principles discussed herein go to show that Plaintiff and Defendant must have a relationship where the conduct of one is in close proximity as to affect the other. I, therefore, answer the first question, is there a duty of care owed by Defendant to Plaintiff? I find that there is a duty of care owed by Defendant to Plaintiff as to the use of the hired vehicles whilst in the custody of Defendant. Defendant is therefore tasked to take such measures as are necessary to ensure the vehicles are kept safe and out of harms way.

17. 	The second question is whether Defendant is negligent by allowing Plaintiff’s vehicles to travel to areas which were notorious for criminal activities which resulted in Plaintiff’s losses? I am not satisfied that Defendant is negligent and or that Plaintiff has proven that Defendant is negligent.

18. 	The law as discussed herein demands that the Court takes the standard of a reasonable man, puts him to the facts of the case, and then decides what that reasonable man could have done in the circumstances. The law also tasks us to envision in the facts to assess the risk or probability of that incident happening, whether it is too remote and or whether there is a real risk, a high probability of the risk happening, and what that reasonable man ought to have acted.

19. 	 Plaintiff states in his Affidavit filed on 1 May 2021 at paragraph 7 that he supplies his own drivers for his vehicles hired out by the Defendant and that at the first incident resulting in his vehicle being held up, it was driven by the Plaintiff’s driver. I find that the vehicle involved in the first incident is both in the control of Plaintiff and Defendant. The driver is employed by Plaintiff and therefore he has control of where the vehicle is driven to as much as Defendant has control of where he wants the vehicle to go to. Defendant, therefore, cannot be seen to be the one entirely in control of the vehicle, and therefore with complete control and possession of the vehicle, Defendant cannot be seen to be making the choice itself as to which route or road to take in getting to the destination desired by the Defendant. Plaintiff also contributed through his driver in decision-making as to what path or road to take to its destination.

20. 	Can a reasonable man foresee that the first incident would have happened for Mr. Silas to hold up the said vehicle? There is no convincing evidence before me to suggest that such a threat existed and that the risk was real. Criminal conduct happens all the time and is unwarranted by any person most time. I do not think that a reasonable person in the employment of Defendant would have foreseen that a hold-up would have happened. It was a situation out of the hands and control of Defendant. To put the blame of criminal conduct by perpetrators on Defendant when it was not foreseen is unjust.

21. 	The second incident whereby Mr. Silas confiscates a vehicle in the belief that it belonged to the Plaintiff over anger in regard to the loss of his brother when in fact the vehicle belonged to the Plaintiff’s brother and where the Plaintiff’s brother in retaliation took possession of a vehicle belonging to the Plaintiff, to my mind are matters totally outside the control of the Defendant. No reasonable person in the shoes of the Defendant could have foreseen that such actions would have taken place. Even if Defendant had taken action to avoid certain areas of travel, this second incident is fuelled by emotions, anger, and retaliation, matters outside the control of the Defendant. To my mind, they are criminal acts, punishable by law. A civil claim should be squarely against the perpetrators of the crime.

22. 	I find that the incidents of hold up and confiscating of the Plaintiff’s vehicles are outside the control of the Defendant and are also quite remote that a reasonable person in the employment of Defendant cannot anticipate taking necessary action to avoid such. These are moving vehicles driven by the Plaintiff’s drivers and therefore I am not satisfied that a claim is made out on negligence based on the duty of care and a breach of that duty as to the criminal incidences claimed in this matter.

23. 	I, therefore, make the following orders:

1)	Plaintiff’s claim is refused, and these proceedings are dismissed in its entirety.
2)	Plaintiff shall meet Defendant’s costs of these proceedings on a party/party basis.

Orders accordingly.

Solomon Wanis Lawyers: Lawyers for the Plaintiff
Corrs Chambers Wesgarth: Lawyers for the Defendant