Wari v Koipa [2002] PGDC 10; DC167 (16 August 2002)

DC167

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 84 OF 2001

BETWEEN

Dickson Wari
Complainants

V

Tom Koipa
First Defendant

Mt. Hagen City Authority
Second Defendant

Mt. Hagen: Appa, P.M
24 July, 16 August 2002

JUDGMENT

The complainant is a village man from Dei District and his complaint is against the Mt. Hagen City Authority and its employees over an assault incident. He alleged that on 16th May 2001 he was standing at Dei PMV bus stop at Highlands Bakery to catch a PMV to go home when he was confronted by five City Authority employees, one of those identified was the first defendant. He said an old man was being chased by the City Authority workmen along the old Boroko Motors yard down to the Highlands Bakery where he was and pleaded with those chasing the old man to take it easy and not to harm the old weak man when they retaliated and assaulted him. He was hit with a coffee stick, punched and kicked to the ground. He was helped by two of his witnesses to Mt. Hagen Police station and reported the matter and later was referred to Mt. Hagen General Hospital for Medical treatment.

The defendants through their Warner Shand Lawyers denied liability and the matter went to trial.

The complainant gave evidence and called three witnesses who were at the scene and saw what happened on that day. They all identified the first defendant as one who took part in the assault of the complainant. They all said they saw the first defendant and four other City Authority employees got down from the red land cruiser owned by the City Authority and confronted the complainant as he was trying to help the old man who was being chased.

Defence called three witnesses including the first defendant and claimed that the first defendant was not involved in the assault of the complainant. Constable Mata said he was driving the Blue Police 15 seater bus with the first defendant and other reserve policemen in it travelling from Mendi bus stop to Dei Bus stop to check on a riot report but situation was already brought under control by other Police units so they turned back. They had no reason to assault the complainant.

I have a difficult task now to decide who is telling the truth since the case was contested evenly. If it was in a criminal I would have awarded the benefit of doubt to the defence. However, in civil case, it is decided on balance of probabilities. The things we look at in such situation are these –

(a) Opportunity and

(b) Motive

The first defendant was on duty on that day and he was at the scene (though arrived late). He was identified. Police report was consistent with assault committed by city authority workmen using coffee stick and buttons for no known reason. Such report was made on same day when things were still fresh. Complainant was trying to intervene to save an old man who was being chased by employees of city authority so there was motive for the assailants to assault him for obstruction (if any). It was more probable than not that complainant was assaulted by employees of the city authority (Mt. Hagen) and the first defendant could have been one of them. Liability was established on the balance of probabilities.

On the issue of quantum, complainant claims

- K9,000.00 for the injuries
- K235.00 for medical report
- K200.00 for transportation
- K65.00 for drafting of summon

Total: K9,500.00

The complainant was diagnosed to have received deep laceration to scalp head 7 cm long – 3 cm deep. Laceration on posterior lips – swollen and painful. Laceration on left ear – bleeding. He was treated with 14 stitches and antibiotics. No permanent disability caused.

Defence quite rightly had made alternative submission on the issue of quantum in mitigation of damages. Defence lawyer had cited some cases which made awards in minor injuries which came close to complainant’s case. In Alex Latham v. Henry Peni, Kathleen Maree Latham v. Henry Peni, N1463 were awarded K1,500.00 each for assault and battery. David Wari Kofenri v. The State [1983] PNGLR 449 was awarded K1,800.00 for burning of lips, slapping on face. Kongo Bomai v. The State [1979] PNGLR 125 was awarded with K1,100.00 for bruises to face and general pain.

It is my view that although the complainant in the present case suffered no permanent disability his injuries as diagnosed were a little serious than those suffered in those cases referred to above. I would consider a global figure of K2,000.00 as a fair compensation in general damage. For medical report fee, I do agree with defence submission that there is evidence for K50.00 only. For transportation cost, there was no proof so same not allowed. For summons fees, K65.00 or thereabout is the normal fee charged by Private Lawyers so same is allowed.

I enter judgment for the complainant for a sum of K2,115.00 plus 8% interest to run from date of summons to date of settlement. The judgment debt is to be settled by the second defendant under the principle of vicarious liability.

In Person: Complainant
Warner Shand Lawyers: Defendant