Dobunaba v Ehuru [2005] PGDC 89; DC344 (22 June 2005)

DC344

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 598 OF 2005

BETWEEN

Judy Dobunaba
Complainant

V

Steven Ehuru
Defendant

Port Moresby: Gauli, Magistrate
2005: 22nd June.

DECISION OF THE COURT

Cause of Action

The complainant sued the defendant for the injuries she sustained resulting from the assault by the defendant. And she claim compensation in the sum of K1,000.00 for the injuries.

Brief Facts

The complainant and the defendant met in mid 1983 by mere chance when the complainant made a phone call seeking for a partner. Since then they were having a relationship in a form of a boyfriend / girlfriend relationship or otherwise a de facto marriage.

The complainant is employed at the Sunny Bunny Kindergarden at Gordons as a helper. The defendant is a policeman attached to Boroko Police Station.

They do not live together under one roof. The complainant resided at Tokarara where she rents a room from a Maria Waine of Goroka. Defendant has a house at Gordons Police Barrack. Defendant occasionally would visit the complainant and at times he spends the night with her.

There were two incidents of assault. One occurred in February 2004 at the Nambawan Book Markers at Gordons and the other on 10th December 2004 in front of the defendant’s residence at Gordons. During the first incident the defendant punched ant kicked the complainant and she sustained injury to her right eye. In the second assault incident the complainant sustained broken left collarbone.

In both incidents the defendant admitted the assaults but he claims that he was provoked by the complainant and that he became the victim of the complainant’s own doing.

The Issues

There are two (2) Issues to be considered.

1. Was the defendant provoked to assault the complainant.

2. Did the complainant sustained the injuries as the result of the assaults by the defendant.

The Evidence

The complainant and her witness Maria Waire gave evidence for the complainant. Defendant is the only witness for the defence. The complainant testified of the two assault incident. She testified for the incident in the month of February 2004 she went to the Nambawan Bookmakers and approached the defendant to discuss a problem why he was not financially assisting her.

The defendant responded by saying he has no money and they both fought. The defendant threw her on the ground and kicked her on the face and he drove away. She suffered a swollen right eye with difficulty in seeing and difficulty to open the eye (even up to this day her right eye still aches and is watery.

On the 10th December 2004 the complainant called in at the defendant’s residence at Gordons Police Barracks to ask him of a woman who was seeing leaving the defendant’s house early that morning. Instead the defendant chased her off, hit her and pulled her on her hair and threw her on the rough ground. As a result she suffered a left collarbone broken. In noticed while in the witness box she had great difficulty in moving her left arm to hold, lift or flip the papers she was holding.

The witness Maria Waire testified that when the complainant went home after being assaulted by the defendant at the Nambawan Book Makers, she observed the complainant. Her face was terrible, she had swollen eyes and broken lips.

The defendant in his defence testified that for the first incident at the Nambawan, the complainant approached him armed with a stone. He was sitting in a hired car. On seeing her he came out of the car to avoid any damage to the car. He told her to leave peacefully but she wouldn’t comply so he pushed her. She charged at him with a stone so he assaulted her.

In the second assault incident at the defendant’s residence, the complainant approached him by yelling at him saying "where is the wife you brought her to sleep with". Defendant told her to leave but she completely ignored him. So first he pushed her telling her to leave but she walked back to him shouting insults at him. He was so embarrassed he pushed her off the second time, she lost her balance and fell and sustained the injuries.

In the first incident the defendant did not clearly described how he assaulted her. He only said "I assaulted her."

I find that the evidence of the complainant that described the manner of the assault that took place is to be accepted. That is that the defendant pushed, punched and kicked her in which she received swollen right eye and a cut on her lips.

In the second incident a mere push would not be sufficient to cause injury to the body whilst on the ground unless she was pushed off the steps or cliff or a flat form and so on. I am convinced by the evidence of the complainant that the defendant pulled her by her hair and threw her to the ground with a tremendous force. This resulted in her left collarbone been injured.

Issue 1. Was the defendant provoked to assault the complainant.

From the evidence as presented before this Court I find on the balance of probabilities that there is presence of provocation by the complainant. However those provocative behaviours of the complainant were due to the defendant’s own doings. Provocation is not a defence, it only reduces some degree of compensation. In the circumstances it was the defendant’s own doing that provoked the complainant to behave in the manner she did. I find there was no provocation by the complainant.

Issue 2. Did the complainant sustained injuries as a result of the assaults by the defendant.

The evidence is presented before this Court established that in the assault incident on February 2004 at the Nambawan Bookmakers, the complainant sustained injuries to her right eye and a cut on her lips. Although these have healed she still experiences pains and watery in her eye. And in the incident on 8th December 2004 she sustained injury to her left collarbone when she was thrown on a rough ground by the defendant. She is unable to effectively use the left arm. I find on the balance of probabilities that the complainant sustained these injuries when she was assaulted by the defendant.

The defendant is a policeman. He resorted to violence when the complainant approached him. The forces the defendant applied on the complainant in my view were quite excessive that inflicted those injuries the complainant complained off. Being a policeman, he could have just walked away from the complainant instead of opting to aggressiveness . I therefore find the defendant liable for damages.

Damages

The complainant sustained an injured left collarbone which she could not use effectively. She had lost perhaps 30% use of her left arm and this will remain for the rest of her life perhaps. She is still experiencing pain in her right eye and it (eye) is watery. This may continue for a long time to heal. The complainant claims K1,000.00 as compensation for her suffering. I consider that the amount claim is just and fair.

Accordingly I award damages in the sum of K1,000.00 in favour of the complainant.

Ordered Accordingly.

In Person: Complainant
In Person: Defendant