N11168
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS (HR) NO.3 OF 2020

BETWEEN:
THOMAS BARRY in his capacity as Principal Plaintiff, for and on behalf of himself as well as 42 others whose names appears in the Schedule “A” annexed to the back of this Writ of Summons
Plaintiff

AND:
CONST. JNR TAKOSI PAUL, CONST. KONET – Fox Unit Waigani, CONST. LESLY – Fox Unit Waigani, CONST.MARKY – Fox Unit Waigani, CONST. DAGI – Fox Unit Waigani, CONST. HADEN – Fox Unit Waigani, CONST.MAINO – Rapid Respond Unit 6 Mile.
First Defendants

AND:
PEROU N’DRANOU, POLICE METROPOLITANT SUPERINTENDANT, in His capacity as COMMANDER NCD DIVISIONAL COMMAND
Second Defendant

AND:
DAVID MANNING, QPM in His capacity as COMMISSIONER OF POLICE
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

WAIGANI:   BRE, AJ
17 MAY 2024; 07 FEBRUARY 2025

NEGLIGENCE – police raid – pleadings not defective – liability must be proved with evidence - only five of 42 plaintiffs gave evidence - evidence not corroborated on harm or injury - liability not established 

Facts

On 16 April 2020, about 60 to 70 policemen accompanied by the NCD metropolitan superintendent converged on 8-mile settlement to recover a police issued high powered rifle and in the process raided and destroyed homes and properties. The State defendants deny vicarious liability and traverse that the policemen went on a frolic of their own. 

Held

(1)	The elements of negligence and vicarious liability must be proved by the plaintiffs with corroborated evidence, on a balance of probabilities.
(2)	The first and second defendants may suffer judgement because they did not file their notices of intention to defend.
(3)	The 42 plaintiffs have not proved that they suffered harm or injury because of the first or second defendants' actions.
(4)	Only five of the 42 plaintiffs gave evidence by affidavit, of the 5 plaintiffs only two plaintiffs gave direct evidence, however their evidence and those of the five, are not corroborated in proving harm or injury caused to their persons or properties.
(5)	Liability including vicarious liability has not been established.

Cases cited
Apakali v Porgera (SML) Landowners Association [2014] N5671 
Guard Dog v Matthews [2019] SC1861
Karl v Motor Vehicle Insurance Ltd [2016] N6560
Kelly v Yakasa [2020] N8425
More v UPNG [1989] PNGLR 401  
Nare v Independent State of Papua New Guinea [2017] SC1584
Nauwin Wee Ltd v. Richard Maru [2012] N4874
PNG Forest Products Pty Ltd v Independent State of Papua New Guinea [1992] N1058
Samson Kai v. the State [1992] N1079
Tirima v Angau Memorial Hospital Board [2005] N2779
Wanis v Sikiot [1995] N1350

Statement of Claim

Trial by Affidavit on liability where the plaintiffs sought to prove negligence and vicarious liability. 

Counsel
Mr J Napu for the plaintiffs
No appearances, for the defendants

JUDGMENT

1.	BRE AJ:   This is a class action by 42 individuals who allege the police negligently raided and burnt their homes located at 8 mile settlement near Duran Farm in the National Capital District on 16 April 2020.

The State is alleged to be vicariously liable for the policemen's alleged negligence by virtue of their employment.

PRELIMINARY MATTER

2.	The trial proceeded in the absence of the defendants. The State was not represented despite service of the notice of the trial on 16 April 2024 to the Solicitor General (Doc 97). I referred Order 10 rule 12 of the National Court Rules (NCR) to the plaintiffs' counsel which grants discretion to the Court to adjourn trial or proceed to hear on the proviso that the defendants would have seven days to apply to vary or set aside the decision. Mr Napu submitted for the trial to proceed as sufficient notice of the trial was given to the State. 

I accepted the submission and proceeded with the trial noting that the defendants had seven days after this decision to apply to vary or set aside the decision pursuant to Order 10 rule 12(3) NCR. 

PLAINTIFF'S CLAIM

3.	The plaintiffs commenced this proceeding on 9 June 2020 alleging that on 5 April 2020, three drunk policemen attempted to raid a tucker shop for alcohol. The policemen's actions were met with resistance from the community and in the process a police issued M16 high powered rifle, was removed from the policemen. The tucker shop is alleged to be located next to the plaintiff's settlement. The plaintiffs' allege that at around 7am the next day, about 60 to 70 policemen including the first and second defendants, in about 20 vehicles of which 11 vehicle registration numbers are identified, entered the settlement and demanded to meet the leaders and residents of the settlement. 

4.	A community leader named Taitus Pameko negotiated with the settlers and returned the rifle to the second defendant, the Metropolitan Superintendent.
The plaintiff alleges that upon receiving the rifle, the second defendant punched and kicked Taitus Pameko and ordered the policemen to set fire to all the houses in the settlement. The policemen present of which the first and second defendants are identified, are alleged to have run amok, looting and destroying properties.
The plaintiffs allege their houses were burned and properties destroyed despite their homes located away from the tuck-shop, the scene of the incident of the previous night.

5.	The plaintiffs allege negligence, breach of constitutional rights, loss and destruction of property. The plaintiffs allege the State is vicariously liable for the negligent and unlawful actions of their employees, the first and second defendant policemen.    

DEFENDANT'S DEFENCE

6.	The State filed its notice of intention to defend on 18 July 2020 and its defence on 8 September 2020. The State denied the allegations and assert that the policemen acted outside the scope of their duties and are not authorised to physically assault, conduct unlawful entry and search, loot, steal or burn down properties during the course of their duties contrary to the Constitution, Police Act, Search Act, Arrest Act and Police standing orders including the previous Police Commissioner's circular instructions of 34 of 1992 and 16 of 1994.

7.	The State did not include the first and second defendant's in their defence. 

PARTIES EVIDENCE

8.	The plaintiffs rely on 12 affidavits, while the defence did not file any affidavits to rely on in trial despite specific directions to do so on 17 October 2023. The State Lawyer was in attendance at the time and is aware of this direction. The State had sufficient notice to file affidavits but choose not to. Regardless, the plaintiff bears the onus of proof.
  
Plaintiff's evidence

9.	The plaintiffs relies on the following Affidavits which were tendered into evidence:

1)	 Affidavit of Thomas Barry sworn 20 April 2022 and filed 28 April 2022, marked as ‘P1’.
2)	Affidavit of Susan Tumun Barry sworn on 20 April 2022 and filed April 2022, marked as ‘P2’.
3)	 Affidavit of Ado Siva Ilau sworn 20 April 2022 and filed 28 April 2022, marked as ‘P3’.
4)	 Affidavit of John Kavo sworn 20 April 2022 and filed 28 April 2022, marked as ‘P4’.
5)	 Affidavit of Hosiah Kasam sworn 20 April 2022 and filed 28 April 2022, marked as ‘P5’.
6)	Affidavit of Tony James sworn 20 April 2022 and filed 28 April 2022, marked as ‘P6’.
7)	 Affidavit of Arosa John sworn 20 April 2022 and filed 28 April 2022, marked as ‘P7’.
8)	Affidavit of Daisy Sim sworn 20 April 2022 and filed 28 April 2022, marked as ‘P8’.
9)	Affidavit of Francis Kewa sworn 20 April 2022 and filed 28 April 2022, marked as ‘P9’.
10)	Affidavit of Peter Pataka sworn 20 April 2022 and filed 28 April 2022, marked as ‘P10’.
11)	Affidavit of Anton Urapo sworn 20 April 2022 and filed 11 May 2022, marked as ‘P11’.
12)	Affidavit of Thomas Barry sworn 20 April 2022 and filed 11 May 2022, marked as ‘P12’.

10.	Eleven witnesses depose to the incidents of the 15 and 16 April 2020, the police actions in raiding and destroying properties and burning houses.
The 11 witnesses attached photographs of burnt down houses and extracts of  news articles about the incident. 

Defendant's evidence

11.	The defence filed no affidavits. The onus of proof lies with the plaintiff except on matters traversed in the defence where the onus swifts to the defendants.

Plaintiff's submission

12.	Mr Napu submits that liability is established by the defendants' failure to file a notice of intention to defend, failure to respond to noticec to admit facts served on the second and third defendants, which he submits imply admission of the facts put to them and the defendants lack evidence to prove the defence of vicarious liability in frolic and detour.
Basically, counsel's submission is that liability has been established by failure to comply with mandatory procedural requirements, so liability is proved and the only issue for deliberation is whether vicarious liability has been established.

13.	Mr Napu submitted the pleadings are adequate and relies on More v UPNG (1989) PNGLR 401 and Karl v Motor Vehicle Insurance Ltd [2016] N6560 to submit that there was no denial by the defendants of the raid and burning down of the house as alleged and the lack of pleadings in the defence and default in filing a defence means the defendants have no defence.  

ISSUE

14.	The issue for my consideration concerns:

1)	Whether the defendants are liable due to non-compliance of procedurally requirements to adequately defend an action, 
2)	If not, are the pleadings sufficient,
3)	Whether the defendants conduct has caused injury to the 42 plaintiffs,
4)	If so, whether negligence has been established,
5)	If so, whether, the defendants are vicariously liable.

ANALYSIS

1)	Whether the defendants are liable due to non-compliance of procedural requirements to adequately defend an action  

15.	The facts are that all defendants have been served the writ of summons. However, only the Police Commissioner and the State have filed a defence. The first and second defendant policemen and metropolitan superintendent have not filed any notice of intention to defend the allegations against them. Notices to admit facts were issued to the second and third defendants, to which no responses were made. 
     
16.	The third and fourth defendants' defence denies vicarious liability and traverses that the plaintiffs acted outside the scope of their duties, that the plaintiffs were illegally squatting on the land and had come to Court with unclean hands and that the pleadings lack clarity to pleading the extent of their constitutional rights being breached. The plaintiffs' established through the evidence of the lead plaintiff that all the defendants were served the writ of summons by 7 November 2020. Of the defendants, only the Police Commissioner and the State are represented by the Solicitor General who has filed a defence on their behalf. The first and second defendants have not filed any notice of intention to defend and in that regard stand to be held liable for negligence. See Order 4 rule 6 of the National Court Rules (NCR). 

17.	As to the notice to admit facts, failure to respond does not necessarily result in an admission especially where a defence has been filed. It has been held in our jurisdiction that the court has a discretion to decide whether summary judgement be granted and that the intent of Order 9 rule 29 NCR is to admit to facts that are not substantially disputed or to save costs of proving facts that are not in dispute. See Order 9 rule 30 NCR; Apakali v Porgera (SML) Landowners Association [2014] N5671, Samson Kai v. the State [1992] N1079 and Nauwin Wee Ltd v Richard Maru [2012] N4874.

18.	The allegations of fact put to the second and third defendant in the notices to admit facts; go towards proving the substantive issue of vicarious liability.  I do not agree with counsel's submission that liability is proved by procedural technicalities. I think it is proper to consider the evidence and the pleadings to reach a decision independent of the notices to admit facts and in so doing,  exercise my discretion to consider the evidence which I consider is vital to prove the 42 plaintiffs' case on liability which must be proved by evidence, not technicalities. See Wanis v Sikiot [1995] N1350.

19.	I therefore turn to consider the pleadings.

2)	Do the pleadings sufficiently allege vicarious liability

20.	The starting point for legal foundation in the pleadings of vicarious liability is the Wrongs (Miscellaneous Provisions) Act chapter 297 (WPMA). Section 1 of the WMPA clarifies that the State can be held liable for any wrongs committed by its employees, officials or agents as any other person. Section 1(4) states the common law position that where any employees, officials or agents performs or purports to perform any duties for the State and in the process commits a wrong, the State will be vicariously liable. Pleadings in a statement of claim contain the legal basis of a claim and the factual allegations are proved by evidence adduced at trial.  See Kiee Toap v The State and Electoral Commission and Another [2004] N2766 and Takori v Yagari [2007] SC905.  

21.	For the pleading to disclose a reasonable cause of action in vicarious liability, the plaintiffs should plead that the first and second defendants were performing or purporting to perform their duties and in so doing; committed the tort of negligence. The elements of negligence should be pleaded as well to demonstrate the legal basis of the claim in negligence.

22.	The pleadings must clearly demonstrate the nexus of the tortfeasors and their negligent actions or omissions to the third and fourth defendants. This is done by citing the WMPA and factual allegations going to nexus and vicarious liability by pleading that the policemen tortfeasors were performing or purporting to perform duties in the course of their employment; so sufficient nexus is created between the tortfeasors and the State to sufficiently plead vicarious liability. 

23.	The alleged negligent actions and omissions occurred on 16 March 2020 which is before legislative amendments to the WMPA and the Claims By and Against the State Act 1996 in 2022. These amendments legislate specificity in the pleadings, tortfeasors and personal liability of the State employees or officials or agents where their wrongs have been proved to be outside the scope of their duties. See Wrongs (Miscellaneous Provisions) (Amendment) Act 2022 section 1A and Claims By and Against the State (Amendment) Act 2022 section 5A. 

The amendments do not apply to this case. The decision in Nare v Independent State of Papua New Guinea [2017] SC1584 which does not require these specific details applies. In Pinda v Inguba [2012] SC1181 the Supreme Court held at [10] that pleadings must plead the material facts on vicarious liability citing the jurisdictional basis of the Wrongs (Miscellaneous Provisions) Act. 

24.	The WMPA section 1(4) reads:

(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."  

25.	The statement of claim does not specifically plead the words of section 1 (4) WMPA;  "the first and second defendants were performing or purporting to carry out their duties in ... when they committed the tort of negligence" . However, I do not think that is sufficient to strike out the pleadings for being defective, because a perusal of the pleadings reveals it is an action in negligence by employees and officials of the State to which the third and fourth defendants are vicariously liable. See PNG Forest Products Pty Ltd v Independent State of Papua New Guinea [1992] N1058.  Paragraph 5 refers to section 1 of the WMPA which I find sufficiently pleads the legal basis of vicarious liability of the State and paragraphs 8,9,10,11,12,13 and 14 plead sufficient allegations of fact to disclose a reasonable cause of action in negligence by the first and second defendants. 
 
26.	The first and second defendants' failure to file their notices of intention to defend would render them liable to suffer judgement for negligence. See Order 4 rule 9 NCR. However, instead of making a finding based on Order 4 rule 9 NCR, I think it is proper to consider the evidence of the plaintiffs to decide whether the elements of negligence have been proved.

3) Has harmed being caused to the 42 plaintiffs?

27.	A crucial element of the tort of negligence that gives rise to damages is for the plaintiffs to prove that they suffered harm or injury as a result of the negligent police actions. The elements of negligence are stated in Tirima v Angau Memorial Hospital Board [2005] N2779:

1)	the defendant owed a duty of care to the plaintiff ...; 
2)	the defendant breached that duty, ie by act or omission the defendant’s conduct was negligent;
3)	the defendant’s negligent conduct caused injury to the person;
4)	the person’s injuries were not too remotely connected to the defendant’s conduct; and
5)	the plaintiff or to the person in whose stead the plaintiff is suing, has not contributed to his or her own injuries, eg by being contributorily negligent or voluntarily assuming the risk of injury."

28.	There are 42 plaintiffs however, only 11 affidavits were tendered into evidence. I have perused all 11 affidavits and find that they largely attest to the incident of the 15 and 16 March 2020 and differ slightly as to the alleged losses of homes and properties. The evidence of the community leader, Taitus Pameko, was not obtained despite his critical role and the evidence of the witnesses deposing to his physical assault by the second defendant. Taitus Pameko, is interestingly, not a plaintiff in this class action. Therefore, the pleading alleging his assault lacks direct evidence from him. 

29.	The evidence also does not disclose how many houses in total were burned except for 42 houses. The evidence annexes photographs of individuals or families standing in the middle of burnt property ruins. I find this evidence is not sufficient to prove ownership of property and hence the harm or injury that may have been caused. Thus, I turn to consider the evidence.

30.	 After carefully perusing the affidavit evidence, I find that of the 42 plaintiffs, only five plaintiffs gave evidence. These are the lead plaintiff, Thomas Barry, and Tony James, Arosa John, Francis Kewa and Anton Urapo. Their evidence is summarised below. 

Tony James 

His evidence is that he was away from his home at Waigani swamp doing gardening, when his 12-year-old son ran to him to inform him about the police burning houses. He looks towards the settlement and sees thick clouds of smoke so he ran to the settlement and sees all the houses up in flames. He says he walks over to 5 policemen to ask why they burned the houses and was berated by the police and told, that they were there on orders of the Police Commissioner with the second defendant, because the community stole a police rifle. He then deposes that the policemen hit him on his head with the butt of a gun, he fell to the ground and was told to run or be shot. I find the rest of his evidence about the night before, hearsay. He does not depose that his house was raided or looted, he simply states that he resides in the settlement and owns a permanent 4-bedroom house, a trade store and other properties but does not state that they were burned and the impact of that loss on him and his family. He annexes a photo of the remains of corrugated roofing sheet with a photo pasted on as his photo to imply that was his property. There is no direct evidence that the ruins are his 4-bedroom house and trade store. There is no corroborating evidence from his family or other witness to confirm his loss. I am not satisfied that he lost his property in the police raid. As to the physical assault, there is no medical report nor corroborating evidence. I find there is no credible evidence proving harm was caused to the plaintiff, Tony James. 

Arosa John  

Arosa John resides at 8-mile settlement with his 5 children and says he is one of the victims of the police raid. He says he was selling betelnut by the roadside in the morning of 16 March 2020, when about 30 plus police vehicles in government Z plates and unmarked vehicles arrived at the settlement with the Metropolitan Superintendent.  He deposes to the police summoning the people to return the police issued gun taken the previous night and warned them that if they do not return the gun, the police would burn their houses. Arosa John deposes to the community leader Taitus Pameko returning the gun and being punched and kicked by the Metropolitan Superintendent and the police spreading out looting and burning the houses as people stood by and watched. 
While he provides what appears to be an eyewitness account of the events, he does not indicate anywhere in his affidavit, what type of house he had, and whether it was burnt down or not. There is no corroborating evidence from his family or others about his house or properties and whether they were looted or burned. I am not satisfied that his evidence proves harm, or injury was caused to his person or property. Arosa John’s claim for negligence and harm allegedly caused to him is not proved. 

Francis Kewa 

Francis Kewa deposes that he resides at Duran Farm 8 Mile settlement with his family of four children and owns a 2-bedroom permanent home including other properties. On 16 March 2020 at about 7:30am he was standing by the roadside to catch a PMV to Gordons when a long convoy of about 30 vehicles and 70 plus policemen drove into the settlement with the Metropolitan Superintendent. He corroborates what the other witnesses say about the police communication to the community. The return of the gun by Taitus Pameko and Taitus Pameko being kicked and punched by the Metropolitan Superintendent.  He deposes that soon after this, 5 policemen walked over to burn his house, but he rushed over and tried to stop them but was hit on the head with the butt of a gun by a policeman and told to run or be shot. He ran 100 metres away and watched helplessly as his house got burnt. He does not indicate whether his other properties were burned. 
He also annexures news clipping about the police raid, police weapon recovery and destruction of houses similar to the evidence of the other witnesses. He annexures an unclear photo of himself allegedly pointing to his house made of timber. Unlike the other witnesses the house was intact. There is no clarification of whether this was a photo of the house before the incident. I find his evidence is direct evidence of what transpired when the convoy of police arrived. His evidence also places him in direct contact with 5 of the policemen and to seeing his house burn, though he falls short of explaining which of his properties were burned and whether it involved his two-bedroom house.  He also has not provided any medical report nor corroborated evidence about his assault. Francis Kewa's evidence is not corroborated and is not sufficient proof of loss or harm.

Anton Urapo 

Anton Urapo is a resident of 8 Mile settlement. Around 6am he and his wife were gardening at the Waigani swamp when they heard police sirens, gun shots, people shouting and crying coming from the settlement. He and his wife rushed back to the settlement when they saw thick clouds of smoke. He saw houses engulfed in flames including his 8-bedroom double story house. 
He was angry and confronted the policemen to which he deposes that the Metropolitan Superintendent reported back to him that the police were there on the Police Commissioners orders. He deposes he was physically assaulted, suffered multiple injuries and recovered over time. He also annexes the news clippings and a photo of him and three others standing in the ruins of a burnt down property with long posts still standing and corrugated sheets amid ashes on the ground. Anton Urapo’s evidence is direct evidence of confrontation with the police. His evidence is the only one showing emotion, of anger, in seeing his property burnt down. However, he has not provided a medical report or evidence of seeking medical treatment for his injuries. The evidence of his physical assault is not corroborated. In the absence of corroborated evidence, Anton Urapo has not deposed to the impact of the loss on him and his family. It is difficult to accept as proof his statement that his 8-bedroom house was being burnt by the first or second defendant.
 
Thomas Barry 

Thomas Barry resides at Duran Farm area at 8 Mile settlement with his wife and five children. On 16 March 2020 around 7:00am he was with his family inside the house when they heard noise from people screaming and shouting. He saw about 30 marked and unmarked police vehicles with about 60 to 80 police personnel. He stood about 50 metres from his house and the road and saw the Metropolitan Superintendent berate the community about the stolen police issued rifle and his demand to return it. His evidence about the return of the rifle and the assault of the community leader Taitus Pameko corroborates the other witnesses. 
He deposes that he stood and watched helplessly as 42 houses were burned. He also annexures the news clipping and a photo of his wife standing in the ruins of a house. His evidence does not indicate whether his house that he and his family were in was looted and burnt. It does not describe what type of house or property he had and if it was looted or burned. Though his evidence is corroborated by Susan Barry about the police presence, her evidence also does not indicate if their house was burnt and the extent of the harm they suffered. Thomas Barry is the lead plaintiff; I am not satisfied that he suffered any harm. I find his evidence goes to corroborates other witness accounts of why the police were at the settlement, their numbers, and the action they took. Thomas Barry has not proved with credible evidence that he suffered harm as a result of the police actions or that his Constitutional rights were breached. 

Ado Siva Ilau
 
Ado Siva Ilau is not listed as one of the 42 plaintiffs affixed to the Writ of Summons. There is an Adolf Siva Olau, of Central Province named as the 4th plaintiff but without authenticated, identification I am unable to accept that these are the same persons. Therefore, Ado Siva Ilau whose evidence has been tendered is not that of a plaintiff but a witness. A lawsuit is a serious matter. The correct name goes to proper legal capacity. I therefore find that Adolf Siva Olau has not produced any evidence to prove his case. 

Hosiah Kasam 

There is a Hosea Kasam of Eastern Highlands Province named as the 8th plaintiff; similar to Ado Siva Ilau, in the absence of authentic identification, I am unable to conclude that Hosiah Kasam is the same person as Hosea Kasam. Therefore, I find that Hosiah Kasam is not a plaintiff and Hosea Kasam is a plaintiff who has not proved with credible evidence that he suffered harm from the police actions. 
Even Hosiah Kasam’s evidence does not state that his house was burnt. He gives a general statement similar to other witnesses of seeing 42 houses looted and burned. 

Daisy Sim
 
Daisy Simm is listed as plaintiff number 17 on the list of plaintiffs affixed to the writ of summons. A lawsuit is a serious matter. It is vital for counsel to get the names of parties correct. Although there is a difference of only one letter in the surname it is not sufficient to lawfully confirm without authentic identification, that Daisy Sim is the same person as Daisy Simm. Therefore, Daisy Simm, the plaintiff, has not provided any evidence of harm caused to her person or property. 
Still, Daisy Sim’s evidence falls short of proving direct loss or harm suffered nor corroborated. There is no evidence of her house or property being looted and burned. 

CONCLUSION

31.	In the end, I find most of the evidence does not prove harm, loss or injury suffered to any of the 42 plaintiffs. I find only two of the five plaintiffs gave direct evidence about their houses being burned and their confrontation with the police.  The two plaintiffs are Anton Urapo and Francis Kewa. However, their evidence is not corroborated and does not constitute credible evidence. 

32.	A critical element of the tort of negligence is that of harm caused to the plaintiff by the alleged tortfeasor’s careless actions or omissions. The plaintiffs' evidence proves the police were in the 8 mile settlement area in numbers of 60 to 80 personnel with about 30 vehicles and of physical assault to the community leader, Taitus Pameko, and of burning of houses and structures. However, the evidence fails to prove direct harm caused to the houses of the 42 plaintiffs, the only evidence that came close to proving harm are that of Anton Urapo and Francis Kewa. However, their evidence is not corroborated. 

33.	In order to sufficiently prove harm and discharge the burden of prove the plaintiffs must prove their case with credible corroborated evidence. The police presence and raid attracted media attention, and the community residing in the area, I find it wanting that corroborating evidence has not been obtained and tendered to prove the plaintiffs claim. 

34.	There is a gap in the evidence tendered of what transpired after the houses were allegedly burned. There is no evidence by any of the deponents and the five plaintiffs of what became of them and their families after their houses were allegedly burned or how they tried to recover. There Is no emotion expressed in the evidence, for such personal losses. I expected the evidence to reveal the impact of the loss on the plaintiffs and their families of the family homes being burned if any, but; there was none. This demonstrates the need for corroborated evidence of the harm or injury suffered in order to prove liability and a right to a damages award; however, that evidence is lacking and discredits the evidence tendered.

35.	Further, there is no evidence of harm done by the second defendant metropolitan superintendent, to any of the 42 plaintiffs, or the five plaintiffs who gave evidence nor the two plaintiffs Anton Urapo and Francis Kewa. The corroborated evidence against the second defendant is that he physically assaulted Taitus Pameko. Taitus Pamkeo is not a plaintiff in this proceeding nor has he filed any evidence. Additionally, there is no mention of 20 suspects who were reported by the media in the annexed news clippings as being detained by the police because of the raid. This goes to the credibility of the overall evidence.

36.	I find throughout the evidence; references to 42 houses being burned and doubt if only 42 houses were burned in the raid. I also find the evidence given by most of the witnesses places them as observers rather than persons who were directly affected by the police raid. Further, I do not find the photographic evidence attached of persons standing in the ruins of properties; credible, without corroborating evidence about the ownership of the burnt houses or structures. Anyone could stand in the burnt ruins and claim the property burnt to ruins was theirs. 

37.	The element of harm or injury for the tort of negligence committed by the first and second defendants has not been proved by any of the plaintiffs. The plaintiffs have not discharged the onus of proving they suffered harm or injury by the policemen's' actions. Only five of the 42 gave evidence but the evidence about harm caused to them was not corroborated. 

38.	37 of the 42 plaintiffs whose names are affixed to the writ of summons, did not give any evidence at all to prove their claim against the defendants. No liability can be established in favour of these plaintiffs who appear to have lodged a frivolous claim against the State, which is a serious matter and an abuse of Court process.

39.	Given my views, it is not necessary to consider vicarious liability of the third and fourth defendants because the plaintiffs have not proved that the actions of the police on 16 March 2020 directly caused harm or injury to each of them which is a critical element of the tort of negligence. The legal basis of the plaintiff’s claim has not been proved with credible evidence and warrants dismissal. 

FORMAL JUDGMENT

40.	The formal judgment of the Court is that liability has not been proved because none of the 42 plaintiffs have proved that they suffered harm or injury to their persons or properties by the negligent actions or omissions of the first and second defendants. As such the third and fourth defendants are not vicariously liable. 

41.	The claim is dismissed with costs to the defendants to be paid on a party/party basis by the plaintiffs.

Judgement accordingly.
________________________________________________________________
Lawyers for the plaintiff: Napu and Company Lawyers
Lawyer for the third and fourth defendants: Solicitor General