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Tio v Itinata [2003] KIHC 88; Civil Case 36 of 2002 (21 July 2003)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

HIGH COURT CIVIL CASE 36 OF 2002

BETWEEN:

IOTEBA TIO
PLAINTIFF

AND:

KAITARAWA BEENGO KARAKAUA ITINATA
PC BURANGKE MEREKE SPC Tul SMITH
PC TIAONTI N T AMAITI
COMMISSIONER OF POLICE
DEFENDANTS

FOR THE PLAINTIFF: MR AOMORO AMTEN
FOR THE 3RD, 4TH, 5TH
AND 6TH DEFENDANTS: MR BIRIM AKA TEKANENE

DATE OF HEARING: 21 JULY 2003

JUDGMENT

The facts are not disputed. The difficulty is the law to be applied to them.

In 1999 the plaintiff, Ioteba Tio, lived on Butaritari. He had a boat which he had bought two years earlier for $8,000. He used his own money to buy the boat. He had, for the boat, a 40 hp Yamaha engine worth $4,000 to $5,000. He borrowed $1,799 from the Development Bank of Kiribati to buy the necessary fishing gear. He used the boat and equipment for fishing and netting sharks, for daily living and income.

On 20 November 1999 Ioteba was visited during the afternoon by two police officers, the defendants Police Constable Burangke Mereke and Special Constable Tui Smith. At the time he was preparing pig food. He was not drunk. The policemen had come from the village (Temanokunuea) to tell him he should leave his house by 6 o'clock in the evening. Ioteba asked if they could look after the house for him. They said they were not sure: they would take instructions from their boss, the Officer in Charge of the Butaritari police station, the defendant Police Constable Tiaontin Tamaiti. After the police officers left Ioteba moved out of the house.

Between 7 and 8 o'clock in the evening Ioteba was somewhere about 300 metres away from the house. He heard a big sound from that direction. He went to look: saw people standing by his boat: saw them lifting it. The people, whom he did not recognize, were damaging the boat. It was chopped up: the engine disappeared as well as fuel tanks and turtle nets.

That is the plaintiff's account. There is no evidence to the contrary (with one irrelevant exception - Burangke the only witness for the defendants said Ioteba "looked drunk") and, on the balance of probabilities, I find those facts proved.

The defendant Burangke has been in the police force for 10 years. Having heard a report that people from the village were to go to Ioteba's house, he and Tui, on Tiaontin's instructions, went to tell Ioteba to leave it. The police were concerned for his safety. Burangke and Tui gave Ioteba the message: told him that unless he left anything could happen.

On the way back to the police station Burangke and Tio visited the village maneaba. They told the people not to do anything about Ioteba. The police did nothing further that day in connection with the incident. They did not go to the house to try to protect it or Ioteba.

It would be interesting, but not necessary to come to a decision, to know the background to all this but there is no evidence.

Besides Burangke Mereke, Tui Smith and Tiaontin Tamaiti there are three other defendants. The sixth defendant is the Attorney General iro the Commissioner of Police. The first two defendants, Kaitarawa Beengo and Karakaua Itinata, are alleged in paragraphs 8 and 9 of the Statement of Claim to have caused the damage to the boat. Neither Kaitarawa nor Karakaua appeared to the Writ. I entered judgment against them in default of appearance on 14 February. Although I did not express it, that is judgment on liability with damages to be assessed. Neither Kaitarawa nor Karakaua were represented at the hearing nor even their names mentioned. Before any steps are taken to enforce the judgment against them I shall hear them on damages.

In summary, the police having wind of the intention of the villagers to attack either Ioteba or his property or both, warned him to leave his house. He said he would not leave unless they looked after it. The police prevaricated: in the end they did no more than tell the villagers not to do anything about Ioteba: nothing else: did not go to Ioteba's house to protect him or it. After the police had gone Ioteba did leave the house. The villagers came and destroyed the boat and took Ioteba's property.

Mr Tekanene for all defendants except the first and second, relied on three English Court of Appeal decisions, clustered in 1993 4 All ER: Alexandrou v Oxford (at 328), Osman v Ferguson (at 344) and Ansell v McDermott (at 355). They are to the effect that the police in the circumstances of each of those cases, owed no duty of care to a particular person nor would it be "in the public interest to impose such a duty of care on the police" (headnote to Alexandrou v Oxford at 328).

The Court of Appeal was following the decision of the House of Lords in Hill v Chief Constable of West Yorkshire ((1988) 2 All ER 238). The mother and administratrix of the estate of the last of the victims of the murderer and rapist Peter Sutcliffe, the Yorkshire Ripper, sued the police for negligence in not having caught him earlier: had they done so her daughter would have been saved from him.

The reasons for decision are summed up in the headnote (at 238f):-

In the absence of any special characteristic or ingredient over and above reasonable foreseeability of likely harm which would establish proximity of relationship between the victim of a crime and the police, the police did not owe a general duty of care to individual members of the public to identify and apprehend an unknown criminal, even though it was reasonably foreseeable that harm was likely to be caused to a member of the public if the criminal was not detected and apprehended. Furthermore, even if such a duty did exist public policy required that the police should not be liable in such circumstances.

Lord Keith of Kinkel defined the issue (at 240 f):-

The question of law which is opened up by the case is whether the individual members of a police force, in the course of carrying out their functions of controlling and keeping down the incidence of crime, owe a duty of care to individual members of the public who may suffer injury to person or property through the activities of criminals, 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.

His Lordship pointed out (at 241 e) that each case must be decided in the light of the circumstances:-

It has been said almost too frequently to require repetition that foreseeability of likely harm is not in itself a sufficient test of liability in negligence. Some further ingredients is invariably needed to establish the requisite proximity of relationship between the plaintiff and defendant, and all the circumstances of the case must be carefully considered and analysed in order to ascertain whether such an ingredient is present. The nature of the ingredient will be found to vary in a number of different categories of decided cases.

Lord Keith went on to distinguish Home Office v Dorset Yacht Co. Ltd [1970] UKHL 2; (1970 2 All ER 294).

Having found the police not liable, he continued (at 243f):-

That is sufficient for the disposal of the appeal. But in my opinion there is another reason why an action for damages in negligence should not lie against the police in circumstances such as those of the present case, and that is public policy. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime).

Lord Keith concluded that "the police were immune from an action of this kind". The four other Law Lords agreed.

In Alexandrou v Oxford the question was whether the police had been negligent in not detecting a burglary after a burglar alarm had been activated: in Osman v Ferguson whether the police should have taken action against a man harassing, over some long time, a young boy and his father and family before the man murdered the father and injured the boy: in Ansell v McDermott, whether the police had a "duty of care to protect road users from, or to warn them of, hazards discovered by the police while going about their duties on the highway" (headnote at 355).

In each case the plaintiff failed. In each case, irrespective of the facts, the Court of Appeal held it against public policy to impose liability on the police.

Should I, must I, follow in Kiribati Hill v Chief Constable of West Yorkshire?

"The principle of public policy has not yet been introduced into the law of Canada" (per Hansen J in Zalewski v Turearolo ((1995) 2 VR 562 at 577) citing Doe v Board of Commissioners of Police for Metropolitan Toronto).

Hansen J giving the principle judgment in the Full Court of Victoria in Zalewski vs Turearolo pointed out (at 576) that in Hill v Chief Constable "the holding on public policy was obiter and expressly confined to 'circumstances such as those of the present case"'.

According to the Australian and New Zealand Citator to UK Reports 2002, Hill v Chief Constable has been distinguished in three other Australian cases besides Zalewski v Turearolo and in one New Zealand case (Garrett v Attorney General ((1993) 3 NZ LR 600) and not followed in another New Zealand case (Whithair v Attorney General ((1996) 2 NZLR 45). It has been applied in three Australian cases.

No principle of public policy in Canada, hesitation in Australia and New Zealand.

English society is sophisticated and complex: Kiribati society is, thankfully, comparatively unsophisticated and simple. The considerations of public policy canvassed by Their Lordships do not apply here. The unfortunate consequences which the Lords were concerned could follow if liability were found in appropriate cases, would not follow in Kiribati. The present case is a good example: what the police officers did, did not do and should have done, are plain. The considerations of public policy which influenced the House of Lords are irrelevant in Kiribati.

What of the facts? Quite different from any of the English cases to which I have referred. The police warned the plaintiff of trouble: yet - apart from telling the villagers not to - did absolutely nothing to stop the trouble. Burangke's evidence shews that, as far as the police knew, the plaintiff could still have been at his house when the villagers arrived. For all they knew he was at risk as well as his property. Yet they kept away, did nothing, kept out of trouble. No evidence to shew that they could not have gone to the house to protect person and property. Not good policing. Similar situation to that in R v Oytham ((1979) 3 All ER 641) (referred to by Lord Keith at 248). Although the facts were somewhat stronger to shew proximity of relationship between plaintiff and police, the principle is the same. Oytham's case confirms me.

As I remarked to Mr Tekanene the inaction, omission to do anything, of the police officers was morally indefensible even if not legally actionable. Now I find it legally actionable as well. The police were under a duty to try to protect the person and property of the plaintiff, dissuade the vi IIagers from thei r intentions. They did not discharge their duty. Tiaontin, the officer in charge, according to Burangke, knew what was going on. Burangke and Tui were on the spot. The Commissioner of Police is liable for the acts and omissions of his officers (sections 9 and 10 of the Police Ordinance).

What of damages? I have only the plaintiff's evidence. It is pretty thin but unchallenged. The defendants had the opportunity to challenge but did not. I have no reason not to accept the plaintiff's evidence. According to him his losses are:

Boat Engine Fishing gear

$8000 $4,000-5,000 $1,799

He had been using all this for a couple of years. The figures the plaintiff gave were what he had paid. They should be discounted for the use he had had of the boat, engine and gear. For the engine I shall use $4,000, the lower end of the plaintiff's damages. With these considerations I assess the plaintiff's damages at $10,000. He did not pursue the claims in paragraphs 9(b) and (c) of the Statement of Claim.

There will be judgment against the third, fourth, fifth and sixth defendants for $10,000.

Dated the 25th day of July 2003

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE