Siki v Manager, Super Value Store, 4 Mile [2004] PGDC 48; DC429 (21 April 2004)

DC429

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 1232 OF 2003

Samantha Siki
Complainant

V

The Manager - Super Value Store - 4 Mile
First Defendant

Peter Melp A, Ken Seni, Freddy Kua & Kep A Nia
Second Defendants

The Super Value Stores Ltd
Third Defendants

Port Moresby: D. Wakikura, Magistrate

Torts - Torts to the person - Definitions of Assault and Battery - Assault is an intentional offer of force to the person of another in which that person feels threatened. That force does not necessary touch or contact the person concerned - Battery is some physical contact with the person of the plaintiff. The touching or physical contact on the person of the plaintiff is involved

Statutes
Arrest Act

No Cases Cited

Appearances
George Lau for the Complainant.
Zinnia Dawidi for the Defendants

April 21st 2004

REASON FOR DECISION

D. Wakikura: This is a complaint for assault and battery under torts allegedly by the Second Defendants who were at the time employees of the Third Defendant. The First and Third Defendants are named under the principle of vicarious liability for the actions of the Second Defendants. The complainant is said to be at the premises of the Third Defendant as a customer at the time with her husband and others. One of the lady's in the group namely Mary David had in her possession a store item, which was not paid for.

When they all went out through the exit, the alarm went and they were all taken back inside and were checked and interrogated. The complainant and the others were physically handled and detained for a while in the storeroom, then taken to the police station. The complainant alleges that she and the others were assault and suffered injuries as a result of which she is now claiming for damages.

The defendants denied liability and mentioned that the defendants carried out a citizen's arrest on the complainant while she was in the company of the others namely Mary David who was suspected of committing an offence. They further stressed that their arrest and detention including the complainant was lawful and justifiable in the circumstances. The force, if it was used which is denied, was reasonable and proportionate to the seriousness of the offence and faced with the imminent risk of escape. The defendants on the whole contested the whole case and the matter proceeded to trial.

In this matter I will determine on whether the Second Defendants inflicted such injury on the complainant to warrant damages as sought for. The second issue to consider is whether the First and Second Defendants are liable for the actions of the Second Defendants in the circumstances.

The parties tendered affidavit evidence and the deponents were put through the examinations in court. For her case, the complainant gave evidence with Gabriel Siki and James Yakopo. The defendants on the other hand called the evidence of Pito Kuita, Kepa Nia, Peter Melpa and Freddy Kua.

The complainant testified to say that it was between 10 - 11 am on the 18th of January 2003 that she went to the Super Value Store at 4 Mile with her husband, her ten year old step daughter and one James Yakopo. In the shop they met Mary David who was from the same province as themselves. They chatted and came out together to the entrance when security alarm went off and the securities ordered them back.

Mary David may have got something from the store but the securities did not only deal with her but also all of them. The security guards falsely accused her and her husband of collaborating with Mary David to steal a roll of cloth material. She and her husband were hit by the named guards and the employees of the defendant.

The complainant was hit several times on the face by the guards and she was bleeding at the time with bruises all over her face. A medical report of the injuries sustained was tendered which was objected to by the defence as it was hearsay and therefore that part of the evidence was struck out. The others and she were humiliated and insulted and were detained in the storeroom for about an hour before they were taken to the police station.

Gabriel Siki the husband of the complainant testified for the complainant and corroborated on the statements made by the complainant. He stated that his wife, the complainant, himself and their child were treated in the manner that was disgraceful. Only Mary David was charge for a criminal offence arising from what happened at the time and police found no evidence to charge either him, his wife the complainant or the others

James Yakopo is the other witness for the complainant and he testified to say that he was with the complainant, her husband, their ten year old child and Mary David who there met in the shop. He also was physically handled by the security and Gabriel Siki struggled with the security guards and went ahead to the police station.

For the defence case the evidence of Pito Kuita was called and he stated that he was present at the time and he saw the people who were involved. He saw the two (2) ladies and the two (2) gentlemen and one of the ladies, Mary David was the one who had the material on her. From what he saw there were no marks, blood or anything to suggest that the complainant and the others were assaulted.

Kepa Nia is the next defence witness and he stated that at the time he was at the front door on security. While he was there he heard Gabriel Siki say in the local language to Mary David to go back and put it back. He speaks the same language with the complainant as they have only one language in Enga.

The third witness Peter Melpa is a security officer and he says that he was present at the store when the four of them went into the store. The four of them (the two men with the two ladies) were talking when they went into the store and they went in as a group. The fourth witness for the defence Freddy Kua stated that there was no fighting and he saw no blood on anyone of them. The final witness Michael Kaki for the defendants stated that he was in the office and he saw the securities take the ladies into the store. Even when they were taken to the police station but he never saw any injuries on anyone of them.

These are basically the sequence of events as presented to me in evidence from the two sides in this case. There is no doubt that the complainant was at the premises of the Third Defendant and the Second Defendants were in attendance. Mary David was suspected of summary offence of which she was later charged and convicted. In their attempt to take Mary David with the complainant and the others in for questioning the Second defendants who are servants or agents of the Third Defendant handled them in a manner that was not proper and appropriate. The complainant is now complaining for assault and battery under the law of torts.

Assault and battery can be seen together as they are both a trespass and a tort to the person. An Assault is any unlawful attempt, offer or threat to do violence to another in such circumstances that the plaintiff reasonably believes he is in danger. Battery on the other hand is the unlawful application of force to the person of another. The least touch is force is "force" and substantial damages may be awarded where an affront to personal dignity is involved like the wrongful taking of a finger print.

In an attempt to properly define for the purposes of our case, assault and battery as tort to the person and I refer to the Halsbury's Laws of England (4th Ed.), at page 602 that defines assault as follows:

Assault is an intentional offer of force or violence to the person of another. There is an assault if there is a menace of violence, with a present ability to commit it. The menace must either accompanied by an intention to commit the violence or must raise an actual fear of violence in the mid of the person threatened. Thus it is an assault for one person within striking distance unlawfully to advance to another in a threatening attitude with a fist clenched and with the intention of striking him immediately, or to point or brandish a weapon at another with the intention of using it or to present a firearm at another with the threat of shooting or to ride after another in a threatening manner so as to compel him to run for shelter to avoid being beaten.

Assault under this definition is an intentional offer of force to the person of another in which that person feels threatened. That force does not necessary touch or contacts the person concerned.

In like manner battery is defined in the Halsbury's Laws of England (4th Ed.), at page 602 as well and this what it reads:

Battery is an act of the defendant which directly and either intentionally or negligently causes some physical contact with the person of the plaintiff without the plaintiff's consent. The term "assault" is commonly used to include battery. If the plaintiff has consented to the contact or has permitted it, either expressly or impliedly, there is no battery.

Here battery is act of the defendant, which is either direct, intention, or through negligence that causes some physical contact with the person of the plaintiff. The touching or physical contact on the person of the plaintiff is involved.

There is a difference between both assault and battery and we might look at it this way. A person commits assault when he or she causes another to fear harmful or offensive bodily contact. In a battery a person actually causes harmful or offensive bodily contact to another. If a person makes a fist and says to a bystander, "I am going to smash your face," and the bystander fears that the person will hit him or her, an assault has been committed. If the person actually hits the bystander, the person commits battery. If the bystander does not anticipate the blow, the person commits a battery but not an assault.

There are defences, which the defendant can plead and prove in his/her defence for either assault or battery. First we can say when one acts in defence of person or property. Next can be re-entry on land or retaking goods. There is also parental or other authority, lawful arrest, plaintiff s fault and mental disorder that can also be seen as defences to the tort to the person.

As discussed above the least touching to the person of another can be seen to be battery or an unlawful application of force on the person of another. When looking at it this way I do not agree with the Counsel for the defendants that actual infliction of harm has to be shown. The question in our case is whether the Second Defendants applied force on the person of the complainant at the time. In the situation that they were in where the complainant with the others was suspected of taking a store item, the complainant could have been touched. The complainant was never charged for an offence by the police and it not necessary to touch the complainant who had no items from the store on her.

On the balance of probabilities I find that the Second Defendants did apply some force on the person of the complainant. Although the medical evidence was struck out but the fact remains that she sought medical attention. I will deliberate later on as to whether such application was lawfully in the circumstances.

The defendants have mentioned as a reason for the application of such force as lawful and justifiable in the circumstances. The force, if it was used which is denied, was reasonable and proportionate to the seriousness of the offence and faced with the imminent risk of escape. They were effecting a citizen's arrest upon the complainant and the others and counsel for the defendants submitted to me section 5 of the Arrest Act.

This is what that particular provision reads:

5. Arrest without warrant by member of the public.

Subject to any requirements imposed by the law creating the offence, a person, other than a policeman, may, without warrant, arrest a person whom he believes on reasonable grounds-

(a) is committing; or

(b) has committed, an offence for which the penalty is imprisonment.

This provision empowers members of the public to arrest without an arrest warrant, arrest anybody who on reasonable grounds is committing or has committed an offence punishable by imprisonment. Under this provision any member of the public can effect a citizen's arrest on any person who is committing an offence or has committed an offence.

If the defendants were effecting a citizen's arrest on the complainant, then what was the offence for which she was arrested? Was there a charge for that offence which resulted in the finding of guilt and a subsequent conviction? As a defence all these have not been proven to the satisfaction of this court. It seems that only Mary David was charged and got convicted from the group and if Mary David had been the complainant then the defence would have stood.

I find, therefore, in this case that the Second Defendants did apply some unlawful force on the person of the complainant and she would now be entitled to a remedy in the circumstances. The Second Defendants were at the time working as security guards for the Third Defendant and they were protecting the interest of the Third Defendant. The Second Defendants in the circumstances did touch the person of complainant without her proper consent. It would also be proper in the circumstances to say that they were servants or agents of the Third Defendant and so the Third Defendant is now vicariously liable for the actions of the Second Defendants.

For that matter damages are to be assessed and I will adjourn to hear submissions on the question of damages.

Ruled accordingly.

LTI Legal Aid: Complainant
Kassman Lawyers: Defendant