N10319

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 999 OF 2017

BETWEEN
SAMUEL RAPURA
Plaintiff

AND
DAVID LINGEN
First Defendant

AND
GARI BAKI – in his capacity as Commissioner of Royal Papua New Guinea Constabulary
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Makail, J
2023: 14th April & 12th June

LIABILITY – Trial – Tort of negligence – Tort of trespass – - Trespass to chattel – Impounding and detention of PMV bus – PMV Bus subject of crime scene – Investigation into commission of alleged offence – Whether members of the police were negligent – Period of investigation – No duty of care owed – Public policy – Detention of PMV bus beyond completion of investigation unjustified – Vicarious liability – Proof of – Wrongs (Miscellaneous Provisions) Act, Ch 297 – Section 1

ASSESSMENT OF DAMAGES – Trial – Award of damages – General damages – Special damages – Loss of business earnings from PMV bus business – Costs of missing parts and personal items – Mental stress, anxiety, and hardship – Proof of – Lack of proper business records – Global sum awarded including discount for contingencies and lack of proper business records 

Cases Cited:

Papua New Guinea Cases
Rupundi Maku & Ors v. Steven Maliwolo & The State (2012) SC1171
TT Angore Noa Hai Investment Ltd v. Kau Buna (2019) N7881
Wake Goi v. First Investment Finance Ltd (2019) N7865
James Liwa v. Marcus Vanimo & Ors (2018) N3486 
Warivama v. Sapau (2013) N5319 
Lapune Aine v. The State (2011) N4389

Overseas Cases
Hill v. Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53

Texts 
Osborn’s Concise Law Dictionary 9th edition, Sweet & Maxwell, London (2001)

Counsel:
Mr. L. Yandaken, for Plaintiff
Ms. P. T. Ohuma, for Defendants

JUDGMENT

12th June, 2023

1.	MAKAIL J: This is a trial on liability and assessment of damages based on the tort of negligence.  The allegation is that the first defendant is a member of the Police under the direction and supervision of the second defendant and was negligent in the discharge of his duties.  As a result, the plaintiff suffered loss and seeks damages against the third defendant under the principles of vicarious liability under Section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

Allegation of Negligence

2.	Summarising the allegations set out in the amended writ of summons and statement of claim filed 20th September 2021, the plaintiff alleges that on 12th September 2014 his PMV bus bearing the Registration No: P:302K was travelling from Mt Hagen to Lae.  At Kainantu, robbers attempted to rob the passengers on the bus as it stopped to drop off and pick up passengers.  The passengers resisted and one of the robbers was wounded and died.  

3.	On 28th September 2014 the bus was impounded by members of the police at the Lae Shipping Port led by the first defendant and kept at the Goroka Police Station. While it was at the Police Station, its parts and personal items were removed and/ or went missing.  Almost one year and ten months later, on 12th July 2016 it was released to the plaintiff.  He seeks damages for loss of business in the sum of K690,000.00, special damages in the sum of K34,080.00, general damages for emotional stress and hardship, to be assessed, interest at rate of 2% per annum and legal costs.  

Defence

4.	According to the defendants’ defence filed 19th December 2017 the defendants do not deny impounding and detaining the bus at the Goroka Police Station.  However, they allege that they had authority by law to do so because the bus was a crime scene.  They allege the passengers attacked an innocent man and he subsequently, died.  They used the scene in the bus as part of their investigation to find out how the deceased died.  They also allege that the plaintiff did not cooperate with them.  He hid the bus and attempted to ship it from Lae to Port Moresby and it was one of the reasons for detaining it.

Liability

5.	Upon my reading of the three affidavits by the plaintiff sworn and filed on 15th October 2021 (exhibit “P1”), sworn and filed on 27th October 2021 (exhibit “P2”) and sworn 14th September 2017 and filed 27th September 2017 (exhibit “P3”), affidavit by Sadrick Paul sworn 16th January 2023 and filed 23rd March 2023 (exhibit “P4”) and affidavit by Andy Wai sworn 16th January 2023 and filed 23rd March 2023 (exhibit “P5”), and the affidavits by the defendants from Allan Pinia sworn 30th November 2021 and filed 17th December 2021 (exhibit “D1”), Senior Constable Jonathan Ansep sworn 30th November 2021 and filed 17th December 2021 (exhibit D2”) and first defendant sworn 4th February 2021 and filed 22nd February 2021 (exhibit “D3”), the Court is satisfied that the allegations are established.  

6.	It is, therefore, the findings of the Court that the plaintiff is the owner of the PMV bus bearing the Registration No: P:302 K having purchased it from Ela Motors and registered with the Motor Vehicles Insurance Ltd on 29th July 2014.  On 12th September 2014, it was travelling from Mt Hagen to Lae.  At Kainantu, robbers attempted to rob the passengers on the bus as it stopped to drop off and pick up passengers.  The passengers resisted and one of the robbers was wounded and died.  

7.	On 28th September 2014 the bus was impounded by members of the police at the Lae Shipping Port led by the first defendant and held at the Goroka Police Station. The bus was used as a “crime scene” to investigate how the deceased died.  The driver and crew were subsequently charged for wilful murder and trial was held from 13th to 15th October 2015.  They are currently serving long term imprisonment sentences after being convicted by the National Court on 24th December 2015.  It is, however, unclear when the investigation was completed.  A further reason for the defendants to detain the bus was that the plaintiff hid it and attempted to ship it from Lae to Port Moresby.

8.	Meanwhile, the plaintiff requested the first defendant, Provincial Police Commander, Assistant Commissioner of Police for Northern Region, and the Public Prosecutor to release the PMV bus on many occasions, but the first defendant had either refused or failed to do so.  When it was eventually released on 12th July 2016, the plaintiff discovered that its parts and personal items were removed and/ or went missing.  

Issue

9.	The legal issue is whether the first defendant owed a common law duty of care to release the PMV bus at the Police Station that was detained as part of the investigation of an offence, in this case, wilful murder after the completion of the investigation.

Negligence

10.	My reading of the learned counsel for the plaintiff’s submission is that, as a member of the police the first defendant owed a duty of care to return the PMV bus after the completion of the investigation.  He breached that duty of care when he had the PMV bus detained at the Police Station beyond the completion of the investigation.  Consequently, the plaintiff suffered loss and damages in the form of loss of earnings and value (costs) of the missing parts/accessories and personal items. 	

11.	However, as a matter of public policy, no duty of care is owed by a member of the police in the discharge of his duties to the public when investigating the commission of an alleged offence.  In Rupundi Maku & Ors v. Steven Maliwolo & The State (2012) SC1171, the Supreme Court adopted the rational in Hill v. Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53 and held:

“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 may adversely affect the way in which the police carry out their duties for fear of litigation.”

12.	In this case, to impose a duty of care on a member of the police to release the PMV bus that is held at the Police Station as a “crime scene” to investigate the commission of an alleged offence will “adversely affect the way in which police carry out their duties for fear of litigation.”  I conclude that the first defendant owed no duty of care to the plaintiff for impounding and detaining the PMV bus to investigate the commission of an alleged offence.  It follows that as the plaintiff failed to establish a duty of care, no breach of duty arises.

Detinue and Conversion

13.	Now, that does not mean that the plaintiff is left without a remedy.  His remedy lies elsewhere at common law in an action for either conversion, or detinue, or trespass to chattel.  The elements of the tort of conversion and detinue overlap because common to both is the element of wrongful detention of another person’s property and it may be quite difficult to identify whether an action for conversion or detinue is the appropriate action to commence to recover the particular property.

14.	In detinue, it must be established that the owner of the property has demanded for its’ return which has been refused or ignored.  The remedy for detinue is an order for the return of the property.  The other remedy is the value of the property.  It may be awarded as a separate remedy or in addition to an order for the return of the property.  As to conversion, it must be also established that while the property was in the possession of the other person, that person has interfered with it or has acted inconsistent with the interest of the owner, for example, sold it to a third party or it was borrowed by a third party without the consent or approval of the owner: Osborn’s Concise Law Dictionary 9th edition, Sweet & Maxwell, London (2001) at 106 and 133. 

Trespass to Chattel

15.	The facts of the case neither support a remedy in detinue nor an action in conversion because the PMV bus has been returned to the plaintiff prior to the commencement of this proceeding and the relief that would be sought for its return becomes unnecessary.  On the other hand, this case has the hallmarks of an action in trespass to chattel because first, the first defendant and other members of the police impounded the PMV bus without the plaintiff’s consent.  Secondly, they held it at the Police Station and denied the plaintiff access and use of it.  Thirdly, they deliberately or intentionally did that to deprive him of its use.  

16.	The real question is whether their conduct in detaining the PMV bus at the Police Station was justified.  Their learned counsel submits that their conduct to detain the PMV bus was justified because it was used as a “crime scene” to investigate the death of the deceased.  I accept this submission.  However, I consider that there must be a limit placed on the duration of the investigation and use of the PMV bus as a “crime scene” and I agree with learned counsel for the plaintiff’s submissions that it must be released and returned to the plaintiff after the completion of the investigation.  

17.	It is unclear from the evidence when the first defendant completed the investigation, but if the driver and crew were convicted by the National Court of wilful murder on 24th December 2015, the investigation would have been completed prior to that date.  The best outcome is to use the date of the completion of trial of 15th October 2015 as the cut-off date.  For this reason, I find the conduct of the first defendant in detaining the PMV bus until 15th October 2015 was justified because it was for the purpose of investigating the commission of the alleged offence.  However, to detain the PMV bus beyond 15th October 2015 until it was released on 12th July 2016 is, unjustified and unlawful.

18.	While I am not satisfied that the plaintiff has established that the first defendant was negligent in the discharge of his duties, he has established that the first defendant has unlawfully detained the PMV bus after the investigation was completed on 15th October 2015.  I find the first defendant committed the tort of trespass when he detained the plaintiff’s PMV bus from 15th October 2015 to 12th July 2016, which is a period of about eight months.  

19.	As there is no dispute that the first defendant was investigating the commission of an alleged offence at the material time, I am further satisfied that the trespass to the plaintiff’s PMV bus was committed within the scope of the first defendant’s employment and the second and third defendants are vicariously liable pursuant to Section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

20.	In the result, judgment on liability is entered against the defendants, with damages to be assessed.

Assessment of Damages

21.	According to the orders sought in the prayer for relief in the amended statement of claim, the plaintiff seeks:

	(a)	A sum of K650,000.00 for past loss of business earnings.

(b)	Special damages in the sum of K34,080.00 as hire car costs, costs of missing parts and legal fees.

	(c)	General damages for emotional stress, anxiety, and hardship.

(d)	Interest at the rate of 2% pursuant to the Judicial Proceedings (Interests on Debts and Damages) Act, 2015.

	(e)	Legal costs.

Past loss of business earnings

22.	According to the plaintiff’s affidavit (exhibit “P1”) the PMV bus was bringing in an income of K50.00 per seat for a total of 25 seats per day at a total sum of K1,250.00 per day.  For 6 days when it was operating, it earned a total sum of K7,500.00 per week.  For 92 weeks in a year at K7,500.00 per week is a total sum of K650,000.00.  He claims this sum.

23.	Learned counsel for the plaintiff submits that based on the plaintiff’s outline of the loss from the PMV bus business, it is open to the Court to award the sum of K650,000.00 to compensate the plaintiff for the loss suffered while the PMV bus was out of service.  However, this submission does not exclude the period prior to 15th October 2015 where the PMV bus was detained for the purpose of investigating the commission of an alleged offence.  Discounting this period, the period from 15th October 2015 to 12th July 2016 is where the PMV bus was unlawfully detained by the defendants and the loss of business earnings will be assessed for that period.  The submission also does not discount any contingencies such as motor vehicle accident, wear and tear, time for repair and maintenance, road-blocks and landslips at the highway.  These sorts of contingencies must be allowed.

24.	That said, it must be also pointed out that where members of the police impound and detain a PMV bus, it is reasonably foreseeable and not remote to expect the owner to lose income generated from the PMV bus service and they will be liable for the loss.  Furthermore, it must be emphasised that the longer the defendants unlawfully detain the PMV bus, the more they will pay.  Thus, it is extremely important that any member of the police who detains a PMV bus to investigate a commission of an alleged offence must complete the investigation quickly and return it to the owner to avoid massive lawsuits against the State.

25.	In this case, there is undisputed evidence that the PMV bus was recently purchased from Ela Motors and was on the road for two months before it was impounded by the defendants and for this reason, I accept learned counsel’s submissions that the continency risk factors in relation to wear and tear and maintenance costs may be minimal.  I will adopt a rate of 5% for contingencies as opposed to rate of 10% or over as applied in the cases of TT Angore Noa Hai Investment Ltd v. Kau Buna (2019) N7881 and Wake Goi v. First Investment Finance Ltd (2019) N7865.  For eight months or a total of 32 weeks at K7,500.00 per week is a total of K240,000.00.  5% of K240,000.00 is K12,000.00.  Deduct K12,000.00 from K240,000.00.00 gives K228,000.00.  

26.	Finally, the plaintiff did not tender a Profit and Loss Statement to show the loss made from the PMV bus business during the period it was detained.  Nor did he tender a bank statement to verify how much the PMV bus business was earning. The closest business record of the PMV bus business is a “Business Cash Flow for Samuel Rapura from 13 September 2014 to 12 July 2016” which shows that the plaintiff employed two drivers and two crew members at K500.00 and K300.00 respectively plus operational and associated costs but does not show the costs of fuel and payment of tax.  Other than that, the Taxpayer Registration Certificate dated 01st July 2019 tendered by the plaintiff is irrelevant because it was issued after the event.  In the absence of proper business records, I will reduce the sum by a further 30%.  30% of K228,000.00 is K68,400.00.  Deducting K68,400.00 from K228,000.00 gives K159,600.00.  This sum is awarded.

Special damages for costs of hire car, costs of missing car parts and legal costs 

27.	Learned counsel for both sides acknowledge that special damages must be strictly proved.  There are three parties under this head of damages:

(a)	Hire car to and from Lae and Goroka 			K20,790.00
(b)	Repair and spare parts costs of missing car parts 	K11,990.00 
(c)	Kunai & Co Lawyers legal costs 			K  1,300.00. 
Total 					 			K34,080.00

Hire car to and from Lae and Goroka

28.	The plaintiff tendered seven invoices and receipts of payments from Pang Rent A Car and Yumi Yet Hire Car of dates between 24th January 2015 and 13th July 2016.  Learned counsel for the defendants submits that there are discrepancies in the invoice numbers and dates for Pang Rent A Car and they should be rejected.  However, in my view, this submission is misconceived because the dates of the invoices are consistent with the time the PMV bus was detained at Goroka Police Station.

29.	Learned counsel further submits that there is inconsistency in the business address of Yumi Yet Hire Car, it being Mt Hagen and the pick-up point for the hire car was in Lae.  This submission is also misconceived because the plaintiff could pick-up the hire car at any one of the locations on his request.  I am satisfied the plaintiff incurred costs in chasing up on the release of the PMV bus when he travelled back and forth between Lae and Goroka at various mentioned times during the time the PMV bus was detained at Goroka Police Station.  The invoices and receipts of payments corroborates his claim for costs of hire car.

30.	However, only the costs incurred after 15th October 2015 will be allowed because that is time the detention of the PMV bus was unjustified and unlawful. They are costs that are reasonably foreseeable and not remote to the detention of the PMV bus and will be allowed.  Payments of hire car of K1,540.00 dated 27th February 2016, K3,080.00 dated 2nd March 2016, K3,080.00 dated 8th March 2016, K2,310.00 22nd May 2016 and K3,850.00 dated 13th July 2016 are allowed.  The total sum awarded is K13,860.00.

Repair and spare parts costs of missing car parts

31.	The plaintiff tendered a quotation from Ela Motors for the costs of spare parts in the total sum of K11,990.00.  The defendants objected to the claim on the basis that there is no independent report to corroborate if parts of the PMV bus were stolen or missing.  However, this objection is misconceived because when the PMV bus was impounded, it was under the care and control of the defendants and either the first defendant or one of the members of the police at Goroka Police Station should have inspected it to ensure that all was in order before releasing it to the plaintiff.  

32.	One of the spare parts ordered was a battery.  Thus, it makes no sense for this submission if the PMV bus was detained for a long time and the battery stopped working and had to be replaced by the time the PMV bus was returned to the plaintiff.  I find the defendants’ submission misconceived and dismiss it.  I accept the plaintiff’s evidence that parts of the PMV bus were either stolen or missing when it was returned to him.  Based on the quotation from Ela Motors, I award the sum of K11,990.00.

Kunai & Co Lawyers legal costs

33.	There is no contest to this head of damages.  I accept that the plaintiff spent K1,300.00 for legal costs when he engaged Kunai & Co Lawyers in pursuing the matter for the release of his PMV bus on his behalf.  Based on the invoice from Kunai & Co Lawyers dated 4th March 2016, I award the sum of K1,300.00.

34.	For special damages, adding K13,860.00, K11,990.00 and K1,300.00, I award a total sum of K27,080.00.

Exemplary damages 

35.	Despite the plaintiff not pleading and praying for exemplary damages in the amended statement of claim, learned counsel made detailed submissions for an award for exemplary damages.  However, I must agree with the submissions of learned counsel for the defendants that no award be made because the plaintiff did not plead and pray for it in the amended statement of claim, and this has come as a surprise to them.  I decline to award exemplary damages.

General damages for emotional stress, anxiety, and hardship

36.	Learned counsel for the plaintiff submits that the plaintiff had endured emotional stress, anxiety and hardship for almost two years without his PMV bus before it was returned to him. The stress level increased when he made many requests to the defendants to release the PMV bus, but they refused or failed to respond.  Learned counsel submits a sum of K15,000.00 is a fair and reasonable sum to award.

37.	 Learned counsel for the defendants submits that based on James Liwa v. Marcus Vanimo & Ors (2018) N3486 where the plaintiff was awarded K5,000.00 for mental distress, frustration and inconvenience, the Court award K5,000.00.  The Court also notes that in Warivama v. Sapau (2013) N5319 K5,000.00 was awarded to the plaintiff as general damages for mental distress, frustration, and inconvenience in a case where the plaintiff’s motor vehicle sustained damage in a motor vehicle accident.  This sum included inflation.

38.	The plaintiff’s affidavits (exhibits “P1”, “P2” and “P3”) does not show the degree of mental distress and inconvenience he endured but I accept that he has been operating a PMV bus service to earn a living for himself.  It was his means of income and he lost it all when the PMV bus was out of service.  Consistent with the past awards, I will also include inflation as was held in the Lapune Aine v. The State (2011) N4389 for increases in costs of goods and services and award a global sum of K10,000.00.  This sum is awarded.

Interest 

39.	In their respective submissions, each learned counsel accepts that the rate of interest is 2% under Sections 4(1) & (2) and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.  Based on their concession, interest is awarded at the rate of 2% on the total judgment sum of K196,750.00 (K159,600.00, K27,080.00 and K10,000.00) from the date of filing of writ of summons of 27th September 2017 until final settlement under Sections 4(1) & (2) and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.

Costs 	

40.	Finally, the plaintiff seeks costs of the proceedings.  The defendants’ learned counsel makes no submission on costs.  The general rule is that costs shall follow the event.  It means the successful party shall have its costs paid by the losing party, on a party-party basis.  For this reason, it is ordered that the defendants shall pay the plaintiff’s costs of the proceedings, on a party-party basis, to be taxed, if not agreed.

Final Order

41.	The terms of the final order of the Court are:

	1.	Judgment on liability is entered against the defendants.

2.	Judgment is entered against the defendants in the total sum of K196,750.00.

3.	The defendants shall pay interest at the rate of 2% on the total judgment sum of K196,750.00 (K159,600.00, K27,080.00 and K10,000.00) from the date of filing of writ of summons of 27th September 2017 until final settlement under Sections 4(1) & (2) and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.
	
4.	The defendants shall pay the plaintiff’s costs of the proceedings, on a party-party basis, to be taxed, if not agreed.
________________________________________________________________
Yandaken Lawyers: Lawyers for Plaintiff 
Solicitor General: 	Lawyers for Defendants