Kondago v Super [2004] PGDC 14; DC128 (21 December 2004)

DC128
PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 197 OF 2003

DAVID KONDAGO

Complainant

AND

JOHN SUPER

Defendant

Mt. Hagen: M M Pupaka

29 July
18 October
11 November 2004

Cases Cited
Lus Minjuk v The State [1988] PNGLR 302

Counsel
The Complainant in person
Mr. P. Kak for the Defendant

21st December 2004

M.M. PUPAKA: The complainant, David Kondago, a carpenter, sued the defendant for compensation in the sum of K3000.00, following an assault on him by the defendant in a fight between them in April 2002. The defendant denied liability on three grounds. He denied liability principally on the bases that he did not assault the complainant. He said his co-workers, who came to his defence following an assault on himself by the complainant, beat up the complainant. Secondly the defendant seems to have pleaded that the complainant contributed to his injuries by provoking the assault and finally it is said the complainant was paid adequate compensation that was freely accepted and there was no further promises made by anyone to pay further or additional compensation to him in the future. The defendant is an employee of Niugini Builders. The complainant too was at the relevant time a temporary employee of that company as well.

The background facts

There is a background story that needs to be told which, for the current purposes, I shall loosely refer to as facts. The general gist of it seems to be common ground between the parties in any case.

The complainant was somehow engaged to work with Niugini Building Supplies (hereinafter referred to as The Company), at a building site in Tari, SHP. It is contentious and unclear as to how and by whom the complainant was engaged to work at the project site in Tari. There was no engagement forms at the company HQ showing the manner of employment of the complainant so the complainant missed pay for some fortnights whilst on site at Tari. He was paid subsequently though. Whether he was paid all his dues is not clear, but for the purposes at hand it is not overly necessary to enquire into whether the complainant was owed money, and if so how much.

It is clear though that when the defendant went to inspect the project site at Tari the complainant confronted him and a situation occurred. The defendant said the complainant assaulted him at Tari. But the complainant disputes this. It is again not necessary to decide whether the complainant actually assaulted the defendant at Tari, however I do find there was at least a hostile and violent reaction to the defendant's arrival at Tari from the complainant. In any case I cannot rule out the possibility that the complainant may have assaulted the defendant at the time.

Sometime later the complainant came down to Mt. Hagen from the project site in Tari. Whether he was still engaged by the company and whether he was going to go back to the project site is not clear. However, after having arrived, the complainant fronted up at the company yard on 26th April 2002. There a fight occurred involving the complainant on the one hand and the defendant and others on the other. What actually happened is disputed and in fact it is the subject of this proceeding. However after the fight the complainant was hospitalized. The company paid the complainant's hospital costs of K170.00 and subsequently a sum of K1606.6 was paid to him as compensation.

The Complainant's case

That particular day, 26th April 2002, which was a pay Friday, around mid morning, the complainant went to the company yard to enquire over his pay and payment for stolen tools and clothing. He says he was in a line of people waiting to see the defendant when a workman threw a picket fence at the defendant's office window from somewhere behind him (complainant), and the picket fence bounced off the iron bars across the window. As a result the defendant stormed out with a stone and assaulted him. The defendant assaulted him because he just happened to be the one in front of the line of people. He says the defendant punched him several times. Then two other company employees joined in and assaulted him. Consequently he was injured and treated at the hospital.

On the following Tuesday there was a gathering of the complainant's relatives and company employees at the company yard. The complainant was paid compensation, or as the complainant calls it 'hausik money'. He says the company executives promised to pay full compensation later. However since then the complainant has tried to get the defendant to pay him final compensation to no avail, hence this proceeding.

The Defendant's Case

The defendant agreed that the complainant was at the company yard on 26th April 2002 and complained of loss of tools and clothes upon the Tari Road. The defendant says the complainant yelled at him using swear words and threatened him saying that he was a Jiga man who owned the town and he would kill the defendant. The defendant says he ignored the complainant and continued to pay other workmen. Moments later the complainant threw a picket fence at the complainant, meaning to spear him, but it defected off the iron bars on his window.

The defendant says he therefore came out to face the complainant. The complainant meanwhile had started walking toward the gate after throwing the picket fence. Seeing the defendant come out the complainant armed himself with a stone and rushed at the defendant. Thereon a fight ensued and other company workers joined in to assist the defendant. The complainant came out worse off, so he was given money to go to the hospital for treatment.

Just as the complainant said, on the following week, at a gathering for the occasion, the company and employees contributed and paid the complainant a sum of K1606.60. The company contributed K1, 146.60. Employees also did a collection and contributed K460.00 cash. The K170.00 hospital costs brought the total to K1776.60. It is said this was meant to be the final payment and no promises of future payment were made.

Findings on evidence

I must state a preliminary point first. The complainant's suit is exclusively against the defendant. The company, Niugini Builders, is not a party. Nevertheless I note on the evidence that the whole thing was treated as a company matter. The company paid the initial hospital costs and negotiated for peace settlement. Thereafter the company again met the larger portion of the compensation money. I note that the company employees made cash contributions evenly. It seems the responsibility for the assault on the complainant was perceived as a company matter from the very beginning. Significantly too the complainant does concede and acknowledge the involvement of the company in a big way by saying its owners promised to pay him full compensation after final diagnosis of his injuries. It was to depend on any lasting injuries and upon production of a medical report, which report he incidentally did produce. This indicates to me that the initial dispute was always with the company. The complainant obviously expected the company to compensate him. He said that he was assaulted because the defendant, and by implication the company, did not want to settle his "pinis pei" and pay him for his lost tools so he was assaulted. I also note that other unnamed company employees inflicted the complainant's lasting injuries.

Moreover the complainant took steps to take the defendant to court only when the company could not honour its alleged undertaking. He seems to have also tried to summon one Mr. Wan Wak before the Village Court but he has not progressed that further before this Court. At the same time, in the same Village Court, the complainant had laid another complaint suing this defendant and two other unnamed persons. This is how he laid his complaint there: "You Mr. John Suka wantaim narapela 2 pela man you pela paitim em na em kisim bagarap long en em kotim you so kam stretim toktok long kot. You John mas kisim 2 pela man brata bilong you mas kam long kot". (Sic)

After all that, and quite significantly too, the complainant seems to have abandoned this previously manifested stance and sued John Super only. The complainant, by way of explanation for this about turn, informed the Court that this John Super started the assault on him, and that if it was not for John Super he would not have been assaulted or injured. Now, the Court would be loath to commit itself to making any definite finding early in this judgment so the appropriateness of the complainant's choice of one defendant must remain undiscussed for the time being.

Having made the preliminary point, I must state unequivocally that the complainant started the fight by confronting the defendant at the company pay office window. I do not accept that he was a meek and innocent individual who had the misfortune to have been the one in front of the line, which is the only reason why he bore the brunt of the defendant's anger. I think the complainant argued with the defendant and did make insulting remarks and issued threats. I also think he threw a picket fence at the defendant's office window.

Further this defendant was not the proper person to demand payment from in relation to lost tools. The defendant was only an employee. The complainant should have seen the overall manager or owners of the company. Even though it is not pleaded or clear on the evidence, I think, in the ordinary course of any business, a 'Joinery Factory Manager' would not have the final say on whether a person like the complainant would be paid for the loss of tools and other personal belongings whist en route to work sites. Moreover the complainant has never made clear how much he was owed in "pinis pei" anyway.

The complainant was singled out right from the start, as the only one who threw the picket fence, an event that I think was the turning point. There is not one scrap of evidence to suggest that there were other disgruntled employees or unhappy people, other than the complainant, at the company yard who would most likely have reason to throw a missile at the pay office window. It is, I think, preposterous to suggest that a company employee threw the picket fence just to start up a fight. If the company yard had been a public bar or some such rowdy place I would give the complainant the benefit of the doubt perhaps. In any case I note the complainant has not negated the use of foul language and issue of threats to the defendant.

Consequently I am inclined to conclude that the complainant initiated an argument and generally started the fight in which employees of the company bashed him up.

On Liability

It is trite law that liability must lay where it falls. Where two or more people are engaged in any sort of physical mix up and there are injuries or breakages or other damages sustained or occasioned, liability in the form of compensation or restoration or repayment or any other restitution would follow the event. Someone, by whose hand or authority or at whose behest the injury or damage is caused, would be liable at by law. In this matter this defendant featured prominently in all respects of the conflict and confrontation with the complainant. Whether he was pushed into the situation and indeed whether or not he is solely liable is a matter of assessment and apportionment. However in this instance he is the sole defendant. Consequently liability shall lie solely upon his shoulders for the time being. In any event the issue of liability was always going to be a foregone conclusion since the day the complainant was paid the initial compensation.

It could be said the complainant had the opportunity to name others (including the company and its other employees) who participated in the assault. Yes, it is true the complainant did not widen the net to include them. It is also equally true that the defendant did not assert that others, perhaps more at fault than he, be included as co-defendants, however all that is purely academic now.

The complainant's own part in the fight cannot and will not be ignored. His conduct will be taken into account for purposes of apportionment of liability in the usual way, as contributory negligence, for the purposes of assessment of damages, if indeed there is cause shown for the Court to proceed to that stage.

Was K1606.60 - full & final payment?

Both sides have, in this proceeding, fought hard to score points on the issue of future payment. The complainant's case is based on the premise that he is entitled to sue for further damages. The defendant's defence is based on the notion of finality, that is, he is of the view that he paid what was right to the complainant. It is not said but is left open for this Court to find that the complainant is estopped from suing for more after he apparently accepted what was offered as sufficient.

I am of the view that the payment of K1606.60 was not and did not put to end the issue of future liability of the defendant and the others not named herein as parties. It also did not create any estoppel situation as to any future proceeding like the instant one. I could think of two reasons why this is so.

First, none of the people who were gathered together to make peace at the company yard on the following week after the fight addressed this issue. On the evidence I must conclude that there was no consensus ad idem between the parties on the issue. The complainant did not say he was getting the money as full and final payment. He did not expressly forfeit or wave his right to litigate, as the law says he must, in order to be estopped from instituting future litigation on the issues of liability or quantum over his injuries. For one, the option to accept what was offered as final payment or sues or negotiates for a bigger amount, was never put to him. Further the money was not offered on condition that it was to be accepted only as final payment. The issue of future payment was neither raised nor resolved at the relevant time.

Secondly by law there is no re judicata situation here. Res judicata can only occur as a result of court proceedings. For instance the complainant would definitely be estopped henceforth from suing the company, or the other persons who also bashed him in the fight on 26th April 2002, after he collects or fails to collect against this defendant, particularly after he consciously left the company and those others out of this proceeding.

By law the right to litigate remains with the injured. A person cannot lose his right to litigate upon a lawful cause of action unless of course he or she has expressly forfeited or waved it or contracted it out or otherwise lost it by reason of some conscious and deliberate act on his or her part.

Contributory negligence & Apportionment of liability

The defendant's conduct has been adequately referred to and addressed. He started the fight. Considering the level of sophistication of the complainant I am inclined to give him the benefit of the doubt as to what seems likely to have been a mistaken belief that this defendant was the person to see about his lost tools and clothing. I would also allow a certain degree of doubt for his benefit for thinking the company was liable as matter of course to make payment for the loss of his tools and personal property. Until otherwise properly proved or shown somehow, I cannot see how anyone can be liable for his personal loses, especially with the issue of his initial engagement by the company still in the air unresolved.

The end result of course is that the complainant may have, to put it bluntly; 'asked' to be bashed. He simply cannot think or expect to be rewarded for his aggressive behaviour and use of foul language as well as issue of threats. He acted provocatively. He had the option to take people to court for any outstanding salaries or loss of property. His resort to a picket fence was not the way to go about asserting his rights. He cannot expect anyone, including this Court, to see things only his way after having being bashed for acting in the way the evidence shows he did. If these were all the evidence disclosed, I would, without hesitation, assess and apportion liability on 25 /75 bases in favour of the defendant. However I cannot do that for the following reasons.

I think the defendant came out of his office looking for a fight. He could easily have stayed inside the office. Company security guards, whose duty it is to control trouble at the yard, could have easily handled the complainant. Yet he came out and things reached the point of no return. Just as the defendant may have known or expected, his colleagues joined in and bashed up the complainant. No one has said why the complained could not be restrained without beating him up to a hospital case. I am sure inside the company yard there would have been guards and other employees around to subdue and restrain the man without beating him up senseless. The defendant also had the option to report the complainant to the police for swearing or issuing threats. On the evidence the defendant was eminently not under any mortal danger. Again coming out of his office, where he was safe and secure, to fight with the complainant who may have already started leaving the yard anyway, was a reckless thing to do. The defendant knew he was among colleagues and friends whereas the complainant was hopelessly outnumbered.

The defendant cannot therefore rely solely on the initial provocative conduct of the complainant to completely justify his own actions and the action of his co-workers. On the other hand the complainant must know his own aggression was repelled in kind. Moreover, were it not for the hopelessly outnumbered odds the complainant faced and the far superior position the defendant was in, being among the company of friends, I would have assessed contributory negligence on the part of the complainant at 50% or higher. However in the circumstances though I would assess and apportion liability at 60 /40 in favour of the complainant.

Assessment of Damages

For the purposes of assessment of damages, there would be two important limitations. These would be in addition to the deductions for contributory negligence. The first limitation is that the assessed amount would have to be limited to K3000.00 or less. The complainant is bound by the nature of his claim and cause of action. He sued the defendant for a specific sum of K3000.00. He went to trial on it. The limits of his success herein can only be up to K3000.00 plus proved special damages and no more. I think this is trite law and not a moot point.

The second is the matter of payment of K1606.60. It was paid toward the injuries sustained by the complainant at the hands of the defendant and his associates. The money will form part of any assessed damages. If the assessed amount is larger than K1606.00, the final balance yet to be paid will be lesser by K1606.00. If the assessed amount is less than K1606.00 the complainant would have to be content in the knowledge that he was lucky the first time. The complainant has always thought K3000.00 was for the totality of his injuries. He never acknowledged the receipt of K1606.00 as payment for injuries, arguing the money was for lost tools and personal properties. He should have expressly pleaded K3000.00 was in addition to or notwithstanding the first K1606.6. He did not. In the end, as I have already ruled, the money paid was for injuries specifically, clearly understood and accepted as such by all concerned. It was never for the lost of personal effects or tools, which in any case the complainant cannot claim from the company.

That said the injuries suffered by the complainant are not immediately discernable, as he pleaded no such injuries in his statement of claim. He gave evidence of being kicked and punched and beaten senseless, or at least seriously, sufficient to warrant him being hospitalized. He gave evidence of being hit in the nose, which has left him with breathing difficulties and head aches. I also think he experienced pain and suffering for which he is entitled to general damages.

The complainant called Dr. John McKup, who did final medical check on him. Dr. McKup said he perused other earlier medical reports the complainant furnished. He informed himself of the history of the injuries. He also examined the complainant. Dr. McKup's own examinations revealed to him that the complainant had lost teeth and had a deformed nose. The bridge of the nose was noted to be permanently out of shape. There was apparent evidence of previous infection inside the nose. Dr. McKup therefore concluded that the history of injuries, as related to him by the complainant himself and disclosed by the previous medical reports, were consistent with his own observation. Dr. McKup therefore noted "45% effective jaw function, 35% loss of nose function, 15% loss of Masticatory function, and 15% eye /CNS deficits"

Functional loss noted by the doctor is permanent. When asked to confirm that the complainant could recover and that over time he would fully recover, the doctor said damages to facial bones, including jaws and nose, gets worse through aging. The doctor noted progressive degeneration as a result of the injuries to be an eminent possibility. The percentage losses noted in the functions of the facial features are, in the face of it, fairly impressive, which in turn makes the K3000.00 sought look fairly small indeed.

I have been able to locate only one known case that comes close to this instant one. It is the case of Lus Minjuk v The State of PNG [1988] PNGLR 302. This was a case that Hinchliffe J presided over at Wabag. The facts of that case were that the plaintiff, a male police officer, claimed damages for personal injuries arising out of a motor vehicle accident in which he was a passenger. As a result of the accident the plaintiff suffered a depressed fracture of the nose and other bodily injuries. After 20 months the plaintiff had returned to light duties with permanent disability to the nose causing difficulty with breathing, continuing weakness in one knee and the possibility of osteoarthritis in the hip. The plaintiff's participation in sporting and other similar activities was noted to be permanently restricted. The National Court awarded K16864.00 to the plaintiff for his injuries. The award composed of pain and suffering and loss of amenities of life at K15000.00, interests at K1354.00 and future medical expenses at K510.00.

Unlike the plaintiff in that case (supra) the complainant in this case only suffered localized injuries without other bodily injuries, but the possibility of progressive degeneration found here, in my view, balances things out to the extent that this case is closer to the Lus Minjuk (supra) case, which incidentally was decided over 16 years ago when the purchasing power of the Kina was much higher than it is today. That being so the complainant's claim of K3000.00 is almost insignificant. However, as alluded to earlier, he has locked himself to the claim and he will have to live with it. Needless to say I would have no hesitation in finding for the complainant in the sum of K3000.00 inclusive of pain and suffering and loss of amenities of life, and enter judgment accordingly.

I would allow K470.00 in special damages, on the bases of the receipts filed. The complainant was pushed toward obtaining the latest medical report from Dr. McKup, who also seems to have been paid fees to testify in court as well. Appropriate receipts do not exist for the other earlier medical reports so I decline to award those. I would also allow interest at the statutory 8% plus cost of these proceedings.

In the end judgment is entered for the complainant in the sum of K3000.00. The K1606.00 already paid would be deducted off that final judgment leaving K1394.00. That figure would be further deducted by K418.20, which is the 30% contributory negligence.

Damages assessed at K3000.00

Less money already paid K1606.00

K1394.00

Less 40% contributory Negligence being K557.60

Total Judgment K836.40

Plus 8% interests on 836.40 being K66.91

Plus Special Damages K470.00

Final Judgment and Award K1373.31

The complainant shall also have his nominal costs of this proceeding, which is to be taxed if not agreed to between the parties.

In Person: Complainant
Mr Kako: Defendant