Korup v Handang [2002] PGDC 2; DC82 (12 August 2002)

DC82

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 35 OF 2002

BETWEEN

KEVIN KORUP
Complainant

AND

MIKE HANDANG
First Defendant

TONY LIN
Second defendant

APAC DEVELOPMENT
Third Defendant

Mt Hagen

D Susame
12 AUGUST 2002

JUDGMENT

NEGLIGENCE: employees working in shops are a duty of care to shoppers - failure to exercise reasonable care - duty to avoid acts or omissions that would put people's lives at risk.

VICARIOUS LIABILITY: Employee acting in the course of his duties and within the scope of his employment - Employers is liable for actions of his employee.

DAMAGES: Head injury permanent disability general damages for pain and discomfort.

Special Damages: Medical Expenses.

Cases Cited
Marsh v. Moores [1949] 2 K.B. 208
Dahlberg v. Naydiuk 10 DLR (3d) 219
Donoghue v. Stevenson [1932] A.C. 562
Woman Paul v. Anton Kae [1988] PNGLR 276

Counsel
Plaintiff, In Person
Defendant, No representation

D SUSAME. The plaintiff has come to the court seeking damages under the law of negligence for personal injuries he sustained when hit by a spade. The hearing was in the absence of the defendants who failed to attend court sittings on several occasions for reason only known to them. The brief facts drawn from the evidence adduced are as follows. On the day the incident happened the plaintiff had gone into town for shopping He had entered the shop the first defendant was working in.

At the material time the first defendant was attending to a certain boy and his father who had entered the shop earlier on and were persistently asking for a refund of payment for two trousers the father had purchased which did not fit the boy.

During the course of their interaction and perhaps out of frustration the first defendant attempted to hit the boy with a spade. However, the spade struck the plaintiff who was standing in close proximity to the boy thus causing a cut on the back of the plaintiff's head.

On the basis of the facts as set above, it is quite apparent that a case of negligence does exist here. The common law rule of negligence is that

"negligence lies in the failure to exercise reasonable care, commensurate with the dangers to be avoided under existing circumstances" see Hahlbeng v. Nayoliuk 10 DLR (3d) 219.

The law requires that

"you must take reasonable care to avoid acts or omissions which you can reasonably foresee, would likely to injure or harm your neighbour". See Donoghue v. Stevenson [1932] A.C. 562.

Therefore in consideration of the above principle the act by the defendant in attempting to hit the boy with a spade especially within the close proximity of the plaintiff and others in the shop at the time was not only negligent but dangerous. Having armed himself with a spade which could be considered an offensive weapon in the circumstances, it was incumbent upon the first defendant to exercise reasonable care to avoid any injury or harm to shoppers in the shop then. He owed a duty of care to them all including the plaintiff.

The injury the plaintiff suffered was a direct consequence of the first defendant's negligent act. With respect to the second defendant, there is no evidence for the court to hold him also responsible one way or another for contributing to the plaintiff's injury. However, as far as the third defendant is concerned as the employer he would be liable to make good for the injuries suffered under the principle of vicarious liability.

This principle of law is succinctly stated by Lynskey J in his judgement at page 215 in the case of Marsh v. Moores [1949] 2 K.B. 208. He states

"it is well settled law that a master is liable even for acts which he has not authorized provided that they are so connected with the acts which he has authorized that they may rightly be regarded as modes, although improper modes of doing them. On the other hand, if the unauthorized one wrongful act of the servant is not so connected with the authorized act as to be a mode of doing it, but is an independent act the master is not responsible for in such a case the servant is not acting in the course of his employment but has gone outside it."

To simply put a master is liable for negligence of the servant if committed in the course of his employment but is not liable for negligence committed outside the scope of his employment. It is quite evident from the facts set out in the early part of the judgment that the employee (i.e. the first defendant) committed the negligent act complained of whilst he was discharging his duties in the shop during the course of his employment. And as such the employer Apac Development must be held liable for damages.

DAMAGES

My task in assessing damages has not been made any easier with no legal representation to make formal submissions for the courts consideration. Notwithstanding the above I had briefly read at least eight judgments of the National and Supreme Court of PNG, which I do not wish to cite and discuss in detail each of them. At least they will assist and serve as a guide for me to arrive at a fair and reasonable award commensurate with the injury the plaintiff suffered. Most of the judgments I noted were for injuries to the head and other parts of the body arising out of Motor vehicle accidents. Most of the awards in the cases I noted ranged from K8,000.00 to over K10,000.00 due to the serious nature of the injury claimants suffered.

However, one case which I think may be of some relevance and serve as a guide is the case of Woman Paul v. Anton Kare [1988] PNGLR 276. In the case cited, the court considered the injuries the claimant suffered on his head and other parts of the body were not too severe that would have long lasting effect on the injured. The court in view of the injuries awarded K800.00 in general damages. The plaintiff in this case has claimed K5,000.00 for general damages. He has also claimed special damages for medical expenses.

In my view the K5,000.00 claim for general damages is not commensurate with the injury the plaintiff received. The evidence shows that the plaintiff had not received permanent injury or disability. There is no evidence that the plaintiff continues to suffer pain or dizziness etc, apart from minor scars remaining where he was hit. The plaintiff appears to have made full recovery.

So using the case of Woman Paul as the starting point, I wish to state here that, that case was decided some twelve years back at the time the buying power of the Kina was high and competitive, and K800.00 then would have been a lot of money. However, the situation is not the same now with our currency experiencing very low levels of buying power against the major currencies of the world, such as the US Dollars. Consequently, in the exercise of my discretion I consider an award of K1,000.00 in general damages as just and reasonable for the pain and discomfort.

Further, claim for special damages has been considered. There is evidence as prove of the fact that the plaintiff received medical treatment at a cost of K195.00. I would allow K195.00 for special damages. In addition 8% interest per annum is allowed on the judgment debt which is to run from the date cause of action arose to the date of judgment.

Cost of proceedings which is estimated at K82.00 is awarded to the plaintiff.

In Person: Plaintiff
No Appearance: Defendant