Luvao v Kessi [2007] PGDC 105; DC636 (12 October 2007)

DC636

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 142 of 2007

BETWEEN

HILDA LUVAO
Complainant

AND

MONICA KESSI
Defendant

Goroka: M Gauli
2007: September 26, October 12

CIVIL - Tort – Assault by stabbing – Injury – Claims damages – Intentional assault – No evidence of the complainant committing adultery.

Cases Cited

1. Helen Bia Sam –v- Paul Harum, Henry Tokam & The State [1998] PNGLR 346
2. In Post Telecommunication –v- MVIL (2003 No. 2479 – Unreported).
   

References
Nil

Counsel
For the Complainant - In Person
For the Defendant - Mr. D. Umba of Umba Lawyers

12 October 2007

DECISION OF THE COURT

M Gauli: In this proceedings the complainant claims against the Defendant damages for sustaining personal injury to her person as a result of her being stabbed with a knife by the defendant. The defendant does not dispute stabbing the complainant.

2. The undisputed facts are these. The complainant Hilda Luvao is a primary school teacher at Ginitoka Primary School in Goroka. She teaches Grade 8 class this year. On 20 of April 2007 she was at Goroka town main market bus stop talking to the defendnat’s husband Mr. Kessi who was in his PMV bus in the driver’s seat. Suddenly the defendant Monica Kessi approached her and stabbed her on her upper left arm with a knife without saying anything to Hilda Luvao. She ran to the market area without retaliation or saying a word to the defendant. And she collapsed. She was surprised to find herself at the Goroka Base Hospital being treated. The wound was sutured and given oral antibiotics including amoxicillin and paracetamol and discharged the same day.

3. The only reason for the stabbing was that the defendant suspected her of having affairs with defendant’s husband. The complainant Hilda denied having any relationship with the defendant’s husband.

4. Issue

The issues for this Court to consider are:

i. Whether or not the Complainant had any relationship with the Defendant’s husband.

ii. Whether or not the Complainant is entitled to her claims of (a) Intentional injuries K3, 000.00; (b) Mental and physical distress K3, 000.00 and (c) Incidental costs K2, 000.00 a total of K8, 000.00.

5. The Court has received defendant’s submission and considered the content of it. Before I discuss the issues I need to state the evidence of the parties briefly first.

6. Evidence for the Complainant

The Complainant Hilda and her witness Erick Luvao gave oral evidence in Court. Her three other witnesses namely Steven Luvao, Lucy Luvao and Elisa Ohuma have their sworn affidavits tendered to Court by consent of the defendant’s counsel as he indicated that he will not cross-examine the deponents. Their affidavits are marked EXHIBIT ‘B’, ‘C’ and ‘D’ respectively.

7. Hilda Luvao gave evidence that on the morning of the 20 April 2007 she was at Goroka town market trying to catch a PMV bus to travel to Lae. While waiting a PMV bus from Kafuku area came. She approached the driver and inquired if he was travelling to Lae. While talking to the driver the defendant approached Hilda from behind and suddenly stabbed her with a knife on her upper left arm without warning. The defendant’s husband came out of that bus and said: “you stabbed a wrong lady.” And the defendant responded by saying: “I mean to stab her to kill her.”

8. Hilda said that the defendant is a complete stranger to her. She is not even her enemy. Hilda did not retaliate but ran to the market and she fainted. Next she found herself in the hospital being treated. Later Hilda learnt that she was stabbed because the defendant suspected her of having an affair with defendant’s husband, which Hilda denied of having any such relationship. The stab wound according to the medical report dated 24 April 2007 (Marked EXHIBIT ‘A’) stated that the wound was 3 cm long and 2 cm deep.

9. The witnesses Steven Luvao, Lucy Luvao, Elisa Ohuma and Eric Luvao were not present at the scene of the incident that day. They heard of the incident later during the day. Basically they gave evidence that in the afternoon between 6:30 pm and 7:00 pm on the 20th April 2007 after the incident, the defendant’s husband Mr. Kessi Gitoro from Kafuku village went to Hilda’s village at Kefamo and spoke to Hilda’s father Eric Luvao and apologised to him of what happened to Hilda. Mr. K. Gitoro said that wife (defendant) stabbed Hilda who is an innocent person and that he would clear this in Court.

10. The witness Lucy Luvao in her affidavit (EXHIBIT ‘C’) further stated that on the 30 of July 2007 she accompanied Hilda to Goroka District Court on this matter. After the Court has adjourned the matter they walked out of the Court premises. While outside the defendant saw one Rachael Luvao and started to argue with her. And the defendant said to Rachael: “Yu tasol wokim igo na nau yumi stap lo bikpela hevi” (meaning: “you have been the cause of this and now we are in big problem”).

11. Evidence for the Defendant

The defendant has only herself who gave evidence, she has no witnesses. She relied on her two affidavits sworn and filed on 19 June and 19 September 2007, which are tendered and marked EXHIBITS ‘C’ and ‘F’ respectively. In her affidavit EXHIBIT ‘E’ defendant stated that on the morning on Friday 20 April 2007 her husband dropped her and her daughter Judy Gitoro at the towns main market as her husband was to go to Five Mile to pick up his driver and the crew before the husband gets on another PMV bus to Lae that day. Her husband parked infront of Bintangor shop (or Papa Q shopping centre) at the market area, the usual bus stop for PMV buses operating between North Goroka and town.

12. Defendant saw Hilda standing at the ‘CD’ shop next to the “Papa Q” shop Haus kai. When the defendant’s husband drove back from Five Mile with his driver and the crew, he stopped at the main market bus stop area where Hagen PMV’s usually stop. And the crew was calling for Hagen passengers. The complainant Hilda then walked towards defendant’s husband. Seeing this, the defendant walked towards her wanting to see what her reactions would be like. This is because the defendant was told by her husband Kessi some 2 to 3 weeks ago that he was having affairs with Hilda. When defendant saw Hilda shook hands with defendants husband and talking with their hands together cracking jokes and laughing, the defendant became very frustrated. She walked up from the front of the bus, jumped up and stabbed Hilda with a kitchen knife. She aimed to stab either Hilda’s arm or her husband’s arm but it turned out to be Hilda’s arm. She then surrendered herself to police.

13. In her affidavit EXHIBIT ‘F’ defendant denied suspecting Rachael Luvao of committing adultery with defendant’s husband. She admitted arguing with Rachael on 30 July 2007 outside Goroka Court House because Rachael was always accompanying Hilda going around with the defendant’s husband to night clubs in Goroka in their bus.

14. I now discuss the issues.

Issue No. 1: Whether or not the Complainant had any relationship with the defendant’s husband.

The complainant denied having any relationship with the defendant’s husband. The defendant has not called her husband to testify in Court of his involvement with the Complainant as claimed by the defendant. It is a trite law that he who alleges need to prove by evidence all that he alleges against the other person. The defendant’s allegation of the
complainant committing adultery with her husband is a hearsay evidence. She was told of this by her husband and her husband has not been called to prove such an allegation. It is possible that since the defendant’s husband was going home late for quite some time he may have told his wife (the defendant) that he was seeing some women without mentioning the name. And so when the defendant saw the complainant talking to the defendant’s husband at the main market in Goroka on morning of the 20 April 2007, the defendant formed in her mind that this must be the woman her husband had been having affairs with. And so without saying a word the defendant sprang and stabbed the complainant on her upper left arm.

15. From the evidence as presented before this Court, I find that there is no evidence to prove to this Court that Hilda has committed adultery with the defendant’s husband. The defendant acted on her mere suspiciousness. She became suspicious when she saw her husband talking to the complainant and she knew her husband was travelling to Lae that day.

16. Issue No. 2: Whether or not the complainant is entitled to her claims of:

(a) Intentional injuries for K3, 000.00

(b) Mental and physical distress for K3, 000.00

(c) Incidental cost of K2, 000.00 for a total of K8, 000.00

The complainant claims K3, 000.00 for intentional injuries. The evidence of the defendant clearly established that she intended to harm either her husband or Hilda when she swung the knife. She had that intention which is not denied. The complainant was stabbed on her upper left arm. The wound was 2 cm deep and 3 cm long. The defendant submitted that this was not a serious wound and that a sum of K2, 000.00 would be reasonable. I consider the wound is quite serious and that the act of stabbing was done with all intention. I consider intentional stabbing is a serious matter and must be given a reasonable compensation. In the case of Helen Bia Sam –v- Paul Harum, Henry Tokam & The State [1998] PNGLR 346 the National Court awarded K1, 000.00 to the plaintiff who was assaulted by members of police with a gun butt though she did not suffer any external injuries. In our present case the complainant was stabbed and she sustained a deep wound. I would award a sum of K3, 000.00.

17. For the mental and physical distress, the Complainant claims K3, 000.00. The defendant submitted that this claim must fail because the complainant gave no evidence to substantiate it. The evidence of the complainant is that when she was stabbed she ran towards the market and she fell unconscious. When she woke up she found herself that she was in the hospital been treated by a doctor. When she saw the blood from her injured arm she did not retaliate against the defendant. Instead she ran into the market. I find that at that instant moment Hilda was affected mentally and physically that she did not know what to do and so she just ran into the market area. I would award a sum of K1, 000.00 for mental and physical distress.

18. The complainant further claims K2, 000.00 for incidental costs. Defendant submitted that this claim must fail as there is no evidence to support it. The defendant relied on the case of In Post Telecommunication –v- MVIL (2003 No. 2479 – Unreported) where His Honour Justice Gavara Nanu in dismissing the plaintiff’s claim said:

“It is trite law, whether the claim is for a special or general damages in either case, the plaintiff has to prove it’s claim. Hence it has not adduced any evidence to substantial it’s claims. That is fatal to its case. The denial by the defendant of all plaintiff’s claim means that the plaintiff has to prove its claims.”

19. I do agree with His Honour’s decision here. The complainant in her oral evidence in Court did not give evidence to prove her incidental costs such as for medical or transport expenses, and other expenses. I would therefore disallow her claims for incidental claims.

20. The complainant however is entitled to damage for intentional injury and the mental and physical distress. And I award a total sum of K4, 000.00 in damages under the two heads of damages in favour of the complainant with costs. The costs include:

(a) Transport – K

(b) Filing Fee – K2.00

(c)

For the Complainant – In Person
For the Defendant – Mr. D. Umba of Umba Lawyers