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Papua New Guinea Law Reports |
[1997] PNGLR 585
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
KOLTA DEVELOPMENT PTY LTD;
GREAT HAPPINESS SEAFOOD PTY LIMITED; and
PATRICK K. KOLTA;
V
PNG DEFENCE FORCE; and
THE STATE
WAIGANI: SALIKA J
5 September 1996
Facts
The plaintiffs leased the Germania Club situated on section 136, allotment 9, Waigani in the National Capital District in which they operated a restaurant, a restaurant and beer garden and a club member bar. On or about 2 April 1993, there was a fight between one Richard Naringa and a group of soldiers. Thereafter, while the soldiers were returning home, one of the soldiers was killed in a separate fight between the said Richard Naringa and his men. When the news of the soldier’s death reached Murray and Taurama Barracks, a bus load of soldiers went and burnt down the Germania Club on the morning of 3 April 1993. Whilst the Court found on evidence that the Germania Club was burnt down by the soldiers, on the question of liability:
Held
Counsel
J Nonggorr, for the
plaintiff.
F Damem, for the defendants.
5th September 1996
Salika J. The plaintiffs, by writ of summons, have filed a claim for damages against the defendants. It was not contested that the plaintiffs are companies incorporated under the Companies Act.
History
The first plaintiff was the lessee of the premises known as "The Germania Club" on section 136 allotment 9, Waigani, along the Waigani Drive. It carried on business on the premises in the form of:-
(a) a restaurant;
(b) a restaurant and beer garden; and
(c) a club member’s bar.
The second plaintiff was the sub-lessee of part of the premises and operated a Chinese Restaurant. The third plaintiff was the owner and a shareholder of the first and the second plaintiffs.
The plaintiffs claim that, on the morning of 3rd April 1993, between 5.00am and 7.00 am, the Germania Club was burnt to ashes. It is not disputed that the building was burnt on that morning. The plaintiffs claim that the building was set on fire by soldiers of the PNG Defence Force. The defendants deny this allegation. The primary issue then is what was the cause of the fire that destroyed the building.
The evidence is that there was a fight in the club between one Richard Naringa and a group of soldiers. The fight was stopped and everyone was sent home. A group of soldiers were walking along the Waigani Drive towards Boroko when one of the soldiers was killed in another fight with Naringa and his men along the Waigani Drive. News of the soldier’s death spread to Murray Barracks and Taurama Barracks. A bus was allegedly used to transport soldiers to the Germania Club where the soldiers set fire to the building.
The defendants have denied generally that soldiers set the building on fire.
The question is, who was the cause of the fire that gutted the Germania Club? The evidence of Wama Damba, Makam Kajona, Inspector Gabriel Yatapya and Brian Komane suggests that soldiers of the PNG Defence Force caused the fire although there is no real direct evidence of any soldier in particular setting the building on fire. There is also evidence from the defendants’ own witnesses Captain Monakakalau, Sergeant Gainabae and Corporal Meve that soldiers were taken in a bus to the Germania Club. Corporal Meve admitted that he drove the bus. Having considered all the evidence, direct and circumstantial, as to how the fire might have started, I am satisfied on the balance of probabilities that the soldiers of the PNG Defence Force set the building on fire in retaliation for the death of one of their comrades, Private James Adam.
This action is founded on custom under the customary laws of Papua New Guinea and on negligence common law. Part of the plaintiff’s statement of claim alleges that:
Particulars:
(a) It is a wrong in the customs of Papua New Guinea to cause damage to persons and property of another;
(b) The custom stated in (a) is common throughout the country;
(c) Where damage is caused by one person, the individual wrongdoer as well as the other members of the person’s social or political group are responsible for the individuals actions;
(d) The custom stated in (c) is common throughout the country;
(e) The individual and his or her group are liable to the injured person for the damage and loss sustained;
(f) The custom stated in (e) is common throughout the country;
(g) The liability is settled by the payment of compensation; and
(h) The custom stated in (g) is common throughout the country.
Particulars:
(a) The defendants owed a duty to the plaintiffs to exercise due care and control of their employees, servants or agents which duty they failed to discharge;
(b) The defendants owed a duty to the plaintiffs to exercise reasonable care and control in the control and use of their equipment including uniforms, firearms and motor vehicles which duty they failed to discharge; and
(c) The defendants owed a duty to the plaintiffs to properly discipline and control their employees, servants or agents which duty they failed to discharge.
And the plaintiffs claim:
I have already found that the PNG Defence Force soldiers set the building on fire, although, no one particular soldier can be identified. Corporal Meve could be said to have aided and abetted the other soldiers, depending on whether or not I accept his evidence. While no one has been individually identified, I am satisfied on the evidence that those who were present were aiding and abetting each other in setting the building on fire and that their collective presence and participation encouraged each other to commit the acts of setting the building ablaze.
Liability of the PNG Defence Force and the State Common Law
The Papua New Guinea Defence Force is a State Service established under Section 188(1)(c) of the Constitution. Its superintendence and control is subject to the National Executive Council, through the Minister for Defence. The commander of the Defence Force is the principal military adviser to the Minister for Defence. (See s 201 of the Constitution). The functions of the Defence Force are as spelt out under s 202 of the Constitution. By virtue of s 203 of the Constitution, the Defence Force and the members of the Defence Force are subject to all the laws in the same way as other bodies and agencies except to such an extent as is required by the nature of the force as a disciplined force and its particular functions, duties and responsibilities. Section 208 of the Constitution provides that because of the special nature of disciplined forces and their operations, it is a primary duty of their members to obey lawful orders. In this instance, members of the Defence Force are under a duty to obey lawful orders.
If members of the Defence Force were involved in the destruction of the Germania Club, then the PNG Defence Force and the State may be vicariously liable for the acts of the members of the Force. I have found that members of the Defence Force set the Germania club on fire and that, as a result of their actions, the building was destroyed by fire. The general principle of law is that, a master is liable for the negligence of his servant if committed in the course of his employment, but is not liable for negligence committed outside the scope of his employment. (See Charlesworth on Negligence at p. 922.) The master is even liable for acts which are not authorised, provided they are so connected with the acts which he has authorised that they may be regarded as modes of doing those acts. Where an act is said to be an independent act, not connected with the authorised act, in such a case, the servant will be said to have gone outside the course of his employment.
The Wrongs (Miscellaneous Provisions) Act, Ch 297, establishes the basis under which the State may be sued for vicarious liability. Section 1(i) of the Act says that the State is liable for the torts committed by its servants and agents. As the Defence Force is a State service, members of the Defence Force would, in my view, be servants and agents of the State. I follow the ruling of the Court in David Kofowei v The State [1983] PNGLR 449, later confirmed by the Supreme Court after an appeal in The State v David Kofowei [1987] PNGLR 5. In that case, members of the Police Force were held to be servants and agents of the State. The same, in my view, applies to members of the Defence Force. They are servants and agents of the State.
Having found that the members of the Defence Force are servants and agents of the State, were they acting within the scope of their employment? Burning down of a clubhouse, it seems to me, does not fall within that scope of duties provided for under s 202 (Functions of the Defence Force) of the Constitution. The act cannot be regarded as a mode of carrying out their duties and responsibilities. It would have to be an act independent and not connected with the function of the Defence Force. I find that the act of the members of the Defence Force was an act not authorised and was outside the course of employment. Having found that, the PNG Defence Force, therefore, cannot be vicariously liable for the actions of its members in common law. Similarly, it follows that the State cannot be vicariously liable for the actions of its servants and agents because their acts are outside the normal scope of their employment and cannot be liable in common law. In any case, the plaintiffs’ claim is not that the soldiers were negligent and, therefore, the defendants are negligent. The plaintiffs’ claim is that the PNG Defence Force and the State were negligent. No issue of vicarious liability arises. This is conceded by the Plaintiffs Lawyer.
The Claim
The plaintiffs claim is that the defendants are liable for the losses suffered by the plaintiffs in that the defendants were negligent or otherwise are liable under principles of customary law. The plaintiffs submit that their claim, based on custom, is that the defendants are liable for the acts of destruction committed by its employees, namely the soldiers.
Liability in custom
The plaintiffs submit that a cause of action is maintainable in custom. The constitutional provisions on the reception of custom as part of the underlying law and the Customs Recognition Act (Chapter 19) provide for custom to be pleaded and proved, in order for it to be applied as part of the underlying law.
Schedule 2.1 of the Constitution provides for the reception of custom thus:
"Sch.2.1 - Recognition, etc., of custom.
(1) Subject to Subsections (2) and (3), custom is adopted, and shall be applied and enforced, as part of the underlying law.
(2) Subsection (1) does not apply in respect of any custom that is, and to the extent that it is, inconsistent with a Constitutional Law or a statute, or repugnant to the general principles of humanity.
(3) An Act of the Parliament may -
(a) provide for the proof and pleading of custom for any purpose; and
(b) regulate the manner in which, or the purposes for which, custom may be recognized, applied or enforced; and
(c) provide for the resolution of conflicts of custom.
The plaintiff has submitted that it has satisfied the four requirements under the Customs Recognition Act and that they are entitled to the relief they are seeking. The four requirements, the plaintiffs say they have met are, that: -
(a) they have pleaded in their writ that the destruction of the Germania club premises was a wrong in custom and that according to that custom; the plaintiffs are entitled to compensation to be paid by the defendants.
(b) they have proved the existence of a customary wrong (thus giving rise to the cause of action) for which compensation is payable;
(c) they have proved that the soldiers of the PNGDF have committed the wrong, i.e., that the soldiers were responsible for the losses the plaintiffs have suffered; and
(d) they have proved the existence of custom that requires that the defendants, being the group to which the soldiers belong, are liable to compensate the plaintiffs for their losses.
I agree that the plaintiffs have established these matters through the witnesses who gave evidence on custom.
The plaintiffs have also submitted that, in order for their action in custom to succeed, they must prove the existence in custom in respect of the following matters:-
(a) the burning down of a building (for example, a house) is a customary wrong;
(b) the people responsible must pay compensation to those who suffered loss arising from the fire;
(c) those who are liable to pay compensation are those individuals who are primarily responsible for the arson but their group - the families, clans or tribes - also share the responsibility and must contribute; and
(d) where the identities of the individuals are not known, the group, whether this be the family, clan or tribe, is liable to pay compensation to those who have suffered loss.
They have submitted that they have proved all those matters above by evidence from the Mt Hagen area and from the Kairuku area in the Central Province. They submit that they have proved that:
(a) the burning down of a house or building is a customary wrong;
(b) the people responsible must pay compensation to those who have suffered loss arising from the fire;
(c) those who are liable to pay compensation are those individuals who were primarily responsible for the arson together with their groups, families, clans or tribes; and
(d) where no individuals have been identified, the group or family, clan or tribe is liable to pay compensation to those who have suffered loss.
The plaintiffs submit that witnesses, Jack Rombok and George Fabila, have proven the above matter through their evidence. It is submitted by the plaintiffs that the customs evidenced by the 2 witnesses, if they meet the requirements of Schedule 2.1 of the Constitution, should be applied in this case.
The defendants, on the other hand, argue that the plaintiffs claim under custom should fail because it has not be established that the custom upon which they base their claims is prevalent in at least the majority of the provinces of Papua New Guinea. They submit that the customs of the two areas should not be made to be applied to the rest of the country because other parts of the country may have different customary practices. They rely on the case of Re Petition of M. T. Somare [1981] PNGLR 265 where Kidu CJ said at page 272:-
"I consider that in a case such as this, for a custom to be held to be applicable in Papua New Guinea, evidence that at least the majority of the nineteen provinces have this custom would be required for this Court to hold that it applies in Papua New Guinea"; and
Kapi J (as he was then) agreed with Kidu CJ in saying at page 289:-
"In the instant case, custom which is proposed to be adopted under schedule 2.1 in relation to locus standi must be a custom which is recognised through out Papua New Guinea and this must be proven as a matter of fact."
The defendants submit that the position taken by the Supreme Court in the Somare case on the application of custom still stands unchanged to date. The plaintiffs have admitted that evidence of custom was not adduced from all or at least from majority of provinces in the country. The plaintiffs have, however, submitted that in the absence of evidence to the contrary that was an indication that the custom was common throughout the country.
Having heard submission on whether a claim under custom had been made out, I am inclined to agree with the submissions of the defendants on this point. The position is that the plaintiffs must establish that the custom upon which they base their claim is prevalent or commonly practiced in at least the majority of the provinces in the country. There is, before the court, evidence of custom from two provinces and not majority of the provinces as required by the Supreme Court decision in the Somare case.
In this country, there are 19 provinces and a National Capital District. The Somare decision is a Supreme Court decision and is binding on the National Court in which I am sitting. I am thus bound by that decision because I am of the view that there is a lot of common sense in what the Supreme Court said in the Somare case in respect of adoption of custom from the majority of provinces in the country, especially when there are so many varying customs in the country.
Furthermore, it is a general principle of law of evidence that "he who asserts must prove". To contend that, while evidence adduced of custom is from only two provinces, there was no evidence to the contrary, to indicate that the custom is common through out the country is, in my view, a mischievous contention. The plaintiffs have a duty to prove that the custom is common through out the country. They cannot simply call witnesses from only two provinces and assert that customs in those two provinces are common throughout the country. They must call evidence from at least a majority of, if not, all the provinces in the country. They have not done that. I therefore cannot apply the customs of two provinces to apply to all the 19 provinces nationwide.
Does custom meet the requirements of Schedule 2.1 of the Constitution and the Customs Recognition Act (Chapter 19)?
I agree with the submissions of the defendants that custom as pleaded does not meet the requirements of Schedule 2.1 of the Constitution and Sections 3 and 5 of the Customs Recognition Act. Schedule 2:1 reads:-
"Sch.2.1.- Recognition, etc., of custom.
(1) Subject to Subsections (2) and (3), custom is adopted, and shall be applied and enforced, as part of the underlying law.
(2) Subsection (1) does not apply in respect of any custom that is, and to the extent that it is, inconsistent with a Constitutional Law or a statute, or repugnant to the general principles of humanity.
(3) An Act of the Parliament may -
(a) provide for the proof and pleading of custom for any purpose; and
(b) regulate the manner in which, or the purposes for which, custom may be recognized, applied or enforced; and
(c) provide for the resolution of conflicts of custom."
The application of custom under the Constitution will not occur if that custom is inconsistent with a constitutional law, or statute or repugnant to the general principles of humanity. The Customs Recognition Act is specific. Section 3 of the Act reads:
"3. Recognition of custom
(1) Subject to this Act, custom shall be recognized and enforced by, and may be pleaded in, all courts except so far as in a particular case or in a particular context -
(a) its recognition or enforcement would result, in the opinion of the court, in injustice or would not be in the public interest; or
(b) in a case affecting the welfare of a child under the age of 16 years, its recognition or enforcement would not, in the opinion of the court, be in the best interests of the child.
(2) Nothing in Subsection (1) of itself empowers a Local Government Council to make a subordinate enactment affecting custom, but this subsection does not limit in any way the powers of a Local Government Council conferred by any other law."
This provision essentially permits custom to be recognised, applied and pleaded in all courts except where, in the opinion of the courts, its recognition or enforcement would result in injustice or would not be in the public interest. The courts thus have discretion not to apply custom in a given case.
Section 5 of the Customs Recognition Act reads:-
"5. Civil Cases.
Subject to this Act and to any other law, custom may be take into account in a case other than a criminal case only in relation to -
(a) The ownership of custom of or of rights in, over or in connexion with customary land or-
(i) any thing in or on customary land or -
(ii) the produce of, customary land,
(b) the ownership by custom or rights in, over or in connexion with the sea or a reef, or in or on the bed of the sea or of a river or lake, including rights of fishing; or
(c) the ownership by custom of water, or of rights in, over or to water; or
(d) the devolution of customary land or of rights in, over or in connexion with customary land - whether -
(i) on the death or on the birth of a person; or
(ii) on the happening of a certain event; or
(e) trespass by animals; or
(f) marriage, divorce or the right to the custody or guardianship of infants, in a case arising out of or in connexion with a marriage entered into in accordance with custom; or
(g) a transaction that -
(i) the parties intended should be; or
(ii) justice requires should be, regulated wholly or partly by custom and not by law; or
(h) the reasonableness or otherwise of an act, default or omission by a person; or
(i) the existence of a state of mind of a person, or where the court thinks that by not taking the custom into account injustice will or may be done to a person.
In civil cases, where custom is involved relating to the matters specified in s 5(a) to (i), the courts have a discretion whether or not to recognise, adopt or apply custom.
The principal reason, in my view, why custom as pleaded does not meet the requirements under the Constitution or the Customs Recognition Act, is that in this case the plaintiffs’ customary law claim purports to establish no fault liability in that, as long as someone who is from a particular organisation, social, political, tribal, clan or family group and who commits a civil wrong, his organisation, group, tribe, clan or family must pay compensation irrespective of whether or not the identity of the wrongdoer is known. In my view, this will cause grave injustice and is not in the best interest of the public. Furthermore, whether the customs applicable to the indigenous people of Mt Hagen in the Western Highlands Province and Kairuku in the Central Province apply to the defendants, the Papua New Guinea Defence Force and the Independent State of Papua New Guinea, is another complex matter. Schedule 1.2 of the Constitution defines custom as:-
"Custom" means the customs and usages of indigenous inhabitants of the country existing in relation to the matter in question at the time when and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial".
The Defence Force and the State are not "indigenous inhabitants of the country". Therefore, in my view, it can be concluded that the customs of the Mt Hagen and the Kairuku people cannot extend to the Defence Force and the State in this case because they are not "indigenous inhabitant of the country". While it is accepted that customs do change over a period of time, it has not been shown in this case that the customs of the Mt Hagen people in the Western Highlands Province and the Kairuku people in the Central Province extend to the defendants. If those customs are not used or practiced by the defendants, why should those customs apply to the defendants?
Having considered all the arguments in relation to the claim made under custom, I dismiss the claim for the reasons I alluded to.
Liability under common law - Negligence
The plaintiff’s alternative cause of action is based on negligence. Negligence is a common law cause of action and its principles are well established. In order to maintain an action in negligence, the plaintiffs must prove:
(a) the existence of a duty of care which is owed by the defendants to the plaintiffs;
(b) the duty was breached by the defendants by failing to exercise the standard of care required by law; and
(c) the plaintiffs suffered injury or loss as a result of the defendants’ breach
The plaintiffs in this case allege that: -
(a) the defendants owed a duty of care to the plaintiffs to control their personal and equipment, that is to (i) discipline and control the soldiers (ii) to control the use of their firearms (iii) to control the use of their motor vehicles and (iv) to exercise control over the use of their uniforms;
(b) the defendants failed to exercise that control by allowing the soldiers to mobilise themselves into a force and to use firearms, motor vehicles and uniforms; and
(c) as a result of the failure to exercise the standard of care in disciplining and controlling the soldiers, the plaintiffs suffered loss in that the soldiers burnt down the Germania Club building which housed the business activities of the plaintiffs.
Duty of care
Lord Atkins’ famous statement in Donoghue v Stevenson [1932] AC 562 (at page 580) is now accepted as establishing the principle on duty of care in the law of negligence. Lord Atkins said (at page 580):-
"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour and the lawyers question, ‘Who is my neighbour’ receives a restricted reply. You must take reasonable cure 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 reasonably to have them in contemplation as being so affected when I am directing my mind to the acts and omissions which are called in question."
Lord Wright four years later in Grant v Australian Knitting Mills [1936] AC 35 said:-
"All that is necessary as a step to establish the tort of actionable negligence is to define the precise relationship from which the duty to take care is to be deduced. It is, however, essential in English law that the duty should be established; the mere fact that a man is injured by another act gives in itself no cause of action; if the act is deliberate, the party injured will have no claim in law even though the injury is intentional, so long as the other party is merely exercising a legal right; if the act involves lack of due care, again no cause of actionable negligence will arise unless the duty to be careful exists".
The plaintiffs in this case submit that the Defence Force and in turn, the State, owed a duty of care to the plaintiffs to discipline and control their soldiers, who are trained to use aggression and are in possession of firearms, motor vehicles and uniform against causing destructions to neighbours such as the plaintiffs. The plaintiffs further submit that, as the soldiers are trained to be aggressive and that they have firearms and motor vehicles at their disposal, it created a risk especially to civilians and the defendants had a duty to contain the risk. The plaintiffs have submit that the defendants have failed to contain the risks particularly in the light of evidence of past events like the Vadavada Settlement and Lombrom raids and Jackson Airport incident. The plaintiff submitted that the defendants owed a duty of care to the plaintiffs to take care in relation to the discipline and control of their soldiers, the use of firearms, uniforms and vehicles. The plaintiffs submit that they were the defendants neighbours.
The defendants have submitted that, in order to establish a duty of care in the circumstances of this claim, the plaintiff must persuade the court to extend the boundaries of common law negligence beyond the limits set in the case of Home Office v Dorset Yacht Club [1970] UKHL 2; (1970) AC 1004. That case is a landmark case which developed the law of negligence to the point where the law recognised that liability could arise for the wrongful act of a person under the control of another causing damage to a third party. In that case, seven boys detained in a juvenile institution on an island under the control of three custodians left the island at night and boarded, damaged and cast adrift the plaintiff’s yacht which was moored off shore. The plaintiff brought an action for damages against the Home Office who were responsible for the juvenile institution. The House of Lords in that case held that the custodians:-
"owed the plaintiff a duty to take such care as was reasonable in all the circumstances with a view to preventing the boys under their control from causing damage to the plaintiff’s property if that was a happening of which there was a manifest risk if they neglected that duty."
In that case, the yacht was moored in close proximity to the juvenile institution and so it was not difficult for the court to find that it was reasonably foreseeable that such a risk existed for the custodians to exercise care and control. In this case, it is more difficult. The court is being asked to in effect make the State liable for the consequences of every wrongful act done by the members of the Defence Force. Here the court is being asked to impose a duty on the State to exercise control of the members of the Defence Force. I am of the view that the State already has that duty and has done and is fulfilling that duty by virtue of the Constitutional provisions and the Defence Force Act. There is a Military Conduct Code in the Defence Force Act, which members of the Defence Force are to abide by. Discipline is an integral part of training of members of the Defence Force. The State, in my view already has discharged its duty to discipline and control the members of the Defence Force in its training. The Defence Force for example, already has internal rules governing the use of firearms, uniforms and vehicles and it is expected that, since its a disciplined organization, those rules governing the use of the facilities would be abided by. Anyone not abiding by the rules is expected to be dealt with and disciplined. Should the State and the Defence Force then be held responsible for wrongful actions or omissions of those who do not abide by the Military Code of Conduct? I do not think the State or the Defence Force should be held responsible for every wrongful act or omission of those members who do not abide by the Military Conduct Code and who step out of the line of their duty voluntarily.
In any case, I am not satisfied that the plaintiffs come within the "neighbour" principle as being persons so closely and directly affected by actions of the members of the Defence Force. The plaintiffs have elected to run their case on the basis that the defendants were negligent and not on the basis of vicarious liability. The plaintiffs, in my view, have not established how the defendants, on their own, have been negligent. The defendants are organisations. They are run by people who are employed by them. They themselves cannot do anything. There is evidence before the court that discipline forms part of the training in a soldier’s life. A soldier is trained to obey orders. What have the Defence Force and the State failed to do? Evidence is not clear as to what they have failed to do. There is some evidence to suggest that the duty officers and those duty sentry men at Murray Barracks and Taurama Barracks may have been negligent in their duties but that evidence would support a claim of vicarious liability of the defendants. I find that the duty officers and men at Murray Barracks and Taurama Barracks were negligent in their duties. Unfortunately the plaintiffs claim is not based on vicarious liability.
In the whole, I am not satisfied on the balance of probabilities that this case falls into the "special relationship" or "neighbour" class of cases such that the duty of care exists.
I would dismiss the claim on the alternative ground as well.
The orders of the court are that the whole of the claim is dismissed with costs. I consider that an ex gratia payment by the defendants would be in order in view of my findings that the Defence Force Soldiers were responsible for the burning down of the Germania club and that the duty officers and men were negligent in their duties. I strongly recommend that the defendants make ex gratia payments to the plaintiffs.
Lawyer for the plaintiff: Nonggorr & Associates.
Lawyer for the
defendants: Solicitor General.
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