IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

CIVIL CASE No.153 of 2003

BETWEEN:

Mrs. JULINE ATEL
First Claimant

AND:

Mr. JAMES LINGBAN
Second Claimant

AND:

Mr. SAKSAK JOHN
Third claimant

AND:

THE GOVERNMENT OF VANUATU & ATTORNEY GENERAL
First Defendant

AND:

THE COMMISSIONER OF POLICE
Second Defendant

AND:

Mr. HILTON ELTON SAWAN, Mr. ALSEN TAPE, Mr. JEFFREY DICK, DICKSON MASSING & KELSON SAKSAK
Third Defendants

Mr. Saling Stephens for the Claimants
Mr. Tom Joe for the First and Second Defendants 

JUDGMENT

This is a claim made by the Claimants against the First, Second and Third Defendants. The claim is for damages resulting from negligence of duty and compensatory damages for assault and battery causing injuries to the Second and Third Claimants and death to a Mr John Atel in June 2002.

The First Claimant is the wife of the deceased John Atel. She claims on behalf of and represents the estate of her deceased husband who was a serving mechanic employed by Asco Motors in Luganville, Santo.

The Second and Third Defendants are residents of Luganville, Santo.

The First Defendant is the Government of the Republic of Vanuatu and the Second Defendant is the Commissioner of Police. They were overall in charge of the Vanuatu Police Force in the Republic.

The Third Defendants are citizens of Vanuatu.

The claim alleges that the two (2) police officers working at Luganville were negligent in the performance of their duty on 11 June 2002. A fight broke out between the Deceased (John Atel), the Second, Third Claimants and the Third Defendants on 11 June 2002. As a result of such a fight, the Second and Third Claimants were seriously assaulted and they sustained serious injuries. A Mr John Atel died at the Luganville Hospital as a result of the injuries he sustained at that fight.

The Claimants claim that the Government of Vanuatu owes a duty of care to protect its citizens. The actions of the police officers were negligent in demanding the claimants to get off the police vehicle and remained with the Third Defendants when they are fully aware of the animosity between the Claimants and the Third Defendants. 

They say as a result of the police officers negligence, the Claimants have suffered damage and loss. They say the First and Second Defendants are responsible for the actions and/or omissions of the Police Officers concerned.

The defence says that the Police Service is a part of the Vanuatu Government under the Leadership of the Second Defendant. The defence further says that while police officers are under the supervision of the Commissioner, the Government is not vicariously liable for their actions in performing their duties nor is the Second Defendant.

The defence further says that the First and Second Defendants deny owing a duty of care to the Claimants in the circumstances alleged. They say if the Defendants did owe a duty of care it was not breached because the injuries sustained by the Claimants were not caused by the Defendants. They were caused by the actions of the Third Defendants who have been convicted of the offences for causing the injuries to the Claimants.

The defence says that neither the First nor the Second Defendants were present when the assault occurred. Further no agent, officer or employee of the Defendants was present at the time of the assault.

The claim has two (2) aspects: Negligence liabilities and damages.

With the consent of the parties, the Court directed that the negligence liability will be dealt with first and the damages issue will be adjourned pending the determination of the negligence issue.

On 24 February 2005, Mr Jack Kilu of Jack Kilu and Associates, counsel for the Third Defendants admitted liability for and on behalf of his clients, the Third Defendants.

The First and Second Defendants deny any liability for negligence which is now the subject of this judgment.

The background events leading up to this case can be summarized as follows:-

The Claimants and the Defendants are from the Island of Ambrym. They have on their records, a lengthy history of disputes over a custom land at Barereo village at the area of Olal, Ambrym.

In 1995, late John Atel obtained an Order from the Magistrate’s Court in Luganville, evicting the Defendants and their families on Barereo land. The police executed the Court Orders and evicted the Third Defendants and their families on the said land. The Third Defendants successfully argued about the wrongful legal basis of the Magistrate’s Court’s eviction Orders before the Supreme Court which was upheld subsequently by the Court of Appeal in 2001.

The Third Defendants and their families returned to Barereo land and cut copra after the decision of the Court of Appeal. The custom ownership was pending the determination at that time.

On or about 6 June 2002, the Third Defendants came aboard the ship MV Bellama II to sale the copra they cut on the land, to Vanuatu Commodities Marketing Board (V.C.M.B.) in Luganville, Santo. The ship arrived in Luganville on 7 June 2002.

On 8 June 2002, the deceased John Atel filed a complaint to the police at Luganville against the Third Defendants, alleging that they stole his copra.

On 9 and 10 June 2002, late John Atel went to the Police in Luganville and enquired about the progress of his complaints.

On 11 June 2002, the Third Defendants received a note from the V.C.M.B. Secretary not to invoice any copra that come from Olal area, North Ambrym. They went to see their lawyer for legal advice at his office at the Municipal Building in Luganville, Santo. This was in the morning of 11 June 2002.

On the same June 2002, in the morning, the deceased John Atel, Saksak John and James Lingban went to the police station in Luganville about their complaints against the Third Defendants. They informed Police Constable Mark Donald Bule at about 9.00AM o’clock that they had lodged a report with the police about some damage to their properties on the Island of Ambrym by certain individuals from Ambrym and the said individuals were in Luganville, Santo. They mentioned the names of the persons suspected but the policeman did not know them. They told the policeman they were accommodated at Pepsi bush. The policeman asked Saksak John to go with them in the police truck to show police where the suspected persons stayed and also to identify them. John Atel and James Lingban also jumped into the police truck. The Police Constable told the two (2) others to get off the truck. They remained in the police vehicle. Police Officer Corporal Basil Meltenoven drove the vehicle down to Pepsi area, COPV (Santo Oil Mill) premises and to Luganville town.

On their way to Luganville town, John Atel and Saksak John informed the police that they recognized one of the suspects who was wearing a "bony" hat sitting outside the Municipal Town Hall. The police truck swerved toward him and stopped.

Policeman Mark Donald jumped out of the truck and asked the man to accompany him to the police station so that Sergeant Victor Ron could obtain a statement from him. He refused and told him to speak to his lawyer. The policeman went inside the office of Jack Kilu & Associates and spoke to Mr Daniel Yawha, counsel for the Third Defendants. The policeman explained to him the purpose of taking his clients to the police station. Daniel Yawha refused the policeman’s request.

He then told the lawyer that he will go back to the police station and obtain instructions from his superiors Inspector Victor Ron and Robert Boe and that they will be back.

The policeman walked out and headed back to the police truck. He also informed John Atel and the 2 others of what the Third Defendants lawyers told him.

The policeman then asked John Atel, Saksak John and James Lingban to jump out of the truck. He and the police driver will go back to the police station to brief and make a report of the situation to their superiors. 

Mr John Atel, Saksak John and James Lingban jumped out of the police truck and the 2 policemen went to the police station.

After the police departure, the Third Defendants arrived. An argument occurred between the Third Defendants and John Atel and a fight broke out between them.

The Third Defendants assaulted John Atel and his two (2) friends. Mr John Atel was assaulted and kicked by Hilton Sawan and Jefferey Dick. When he was on the ground, Hilton Sawan struck his head with a heavy 4 x 2 cm timber 2 or 3 times. One of the Third Defendants plunged a small knife into the deceased abdomen. 

Mr Saksak John and James Lingban were also assaulted by the Third Defendants. They received serious injuries.

Mr John Atel later died at the Northern District Hospital on the same day.

The Claimants filed sworn statements in support of the claim and they call 3 witnesses to give evidence: Mrs Juline Atel, wife of the deceased John Atel, John Saksak and James Lingban. The defence filed sworn statements of the two (2) police offices: Constable McDonald Bule and Corporal Basil Meltenoven and they gave oral evidence.

The sworn statements and oral evidence of the Claimants and Defendants show that there is no dispute on the main facts. The only disputed point of facts related to who told the deceased John Atel, John Saksak and James Lingban to go off of the truck. The Claimants said it was police officer McDonald Bule. Police officer McDonald gave evidence that after he reached the police vehicle, he informed late Mr John Atel and his two (2) friends about what the lawyer had told him in his office. And then said to Mr Atel and the two (2) others "yumi must go back long Victor mo Robert Boe blong talem gud wanem I happen long olgeta man ia". He said also that late John Atel then told him "ino gud ol man ia oli ronwe bagegen naoia; yutufala igo bai mifal istap blong watchem ol man ia". Witness McDonald Bule gave further clarification when he was cross-examined on his sworn statements in support of this case and a sworn statement filed in the criminal case involving the prosecution of the Claimants. He did not deter from his evidence. I accept his evidence as the true version of fact to be believed on that disputed fact.

The question of law is whether the individual members of a police force, in the course of carrying out their functions of keeping the peace and order and suppressing the crime, owe a duty of care to individual members of the public who may suffer injury on their person or property through the activities of others, such as to result in liability in damages, on the ground of negligence, to anyone who suffers such injury by reason of breach of that duty.

The essence of the Claimants’ submissions is that because of the police action and unprofessionalism demonstrated in dealing with and/or handling the situation appropriately, the assaults on Mr John Atel, Saksak John and James Lingban and subsequent death of John Atel was a direct consequence of the police officers concerned. They submitted if a sound and professional decision was made on the spot, without the police returning to the police station, the fight and subsequent death would be avoided.

The defence submitted that Constable Bule and Corporal Basil were not negligent in carrying out their duties. They discharged their usual duties of the officers to which they are appointed following a genuine complaint from the Claimants. They submitted also that the 2 policemen were not negligent if it is proved that the Claimant requested to get off the police vehicle. They finally submitted that if the police officers are fully aware of the animosity between them, Constable Bule and Corporal Basil were not able to predict that John Atel would die during the course of the animosity.

I find that the First and Second Defendants do not owe a duty of care to the Claimants as members of the public who suffered injuries through the criminal activities of the Third Defendants. The fact that the police officers at the request of the deceased John Atel, left them there to keep a watch on the Third Defendants, does not constitute a special characteristic or ingredient over and above reasonable foresee ability of likely harm which would establish proximity of relationship between the victims of crime and the police.

The police did not owe a general duty of care to individual members of the public to apprehend a group of individuals, even though it was reasonably foreseeable that harm was likely to be caused by a member of the public if the criminal was not apprehended and the Claimants requested to be there and watched on the criminal whereabouts.

In the present case, I adopt and apply the persuasive authority of the House of Lords Judgment in the case of Hill v. Chief Constable of West Yorkshire (1988)2 All ER.

Finally, the fact that the two (2) policemen left Mr John Atel, Saksak John and James Lingban at the request of Mr John Atel at the Municipal Hall while the policeman had to provide a report to their superiors at the police station about the situation was made in good faith. I hold that, the police officers are immune from such an action as described in accordance with Section 40 of the Police Act [CAP.105].

ORDER

1.	The action against the First and Second Defendants are dismissed.

2.	The costs are awarded in favour of the First and Second Defendants to be agreed or determined.

DATED at PORT-VILA this 4th day of July 2005

BY THE COURT

Vincent LUNABEK
Chief Justice