Gene v John [2007] PGDC 107; DC632 (30 November 2007)

DC632

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

GFCi 37 of 2007

BETWEEN

DAVID GENE
Complainant

AND

STEVEN JOHN
Defendant

Goroka: M Gauli, PM
2007: November 12, 26, 30

CIVIL - Assault – Personal injury to the eye – No medical report – Damages – Assessment of damage.

Cases Cited

1. Jacqueline Kennedy by Her Next Friend Rolf Hans Meye –v- Jenny Nalau & The State [1981] PNGLR 543
2. Bradful –v- Bradford [1975] PNGLR 303
3. Baduk –v- PNG [1993] PNGLR 250
4. Lindsay Kivia –v- The State, WS No. 485 of 1991
5. Petrus Kumbo –v- Kukukova Famundi + OR – N1717
6. Pepena –v- Malabus & The State – N960
   

References
Nil

Counsels
For the Complainant - In Person
For the Defendants - Mr. D. Umba of Umba Lawyers

30 November 2007

DECISION OF THE COURT

M Gauli, PM: The complainant Mr. David Gene claims against the defendant Steven John in damages for personal injuries he sustained by assaulting him. It is alleged that on the 07 of July 2007 at Gorohanota village outside Goroka, the defendant while having a knuckle duster fixed to his middle finger, did punch the complainant causing him to fall on the ground and he sustained serious injuries to his left eye. And he claims compensation in the sum of K10, 000.00.

2. The undisputed facts are as follows. That on the 07 the victim and the defendant of July 2007 had few bottles of SP beer. They board a PMV and travelled back to their village. They are both from the same village or area. While on board the PMV, they also consumed a home brew, locally known as “live lave”. When they got off at Gorohanota village, the defendant rushed into a CD house. When he came outside some minutes later, he confronted a woman at the doorway. On seeing this, the complainant went to stop the defendant. The defendant however turned around and punched the complainant on the left eye. The complainant fell unconscious. He sustained the injury to his left eye as a result of that punch.

3. The defendant denied wearing a knuckle duster in his right hand when he punched the complainant.

4. The Issues are:

i. Whether or not the defendant wore a knuckle duster when he punched the complainant.

ii. Did the Complainant sustain the injury complained of resulting from the assault by the defendant.

5. Issue No. 1: “Whether or not the defendant wore a knuckle duster when he punched the complainant”

The complainant in his own evidence in Court made no mention of the defendant wearing a knuckle duster when he was punched by the defendant on the left eye. The complainant’s two witnesses, Paul Homate and Whiteson Gaite in their evidence in Court made no mention of the defendant wearing a knuckle duster at the time. The burden is on the complainant to prove that the defendant was wearing a knuckle duster. I find that evidence has not been established by the complainant. And I find that the defendant did not wore a knuckle duster on his right hand at the time he punched the complainant on his left eye.

6. Issue No. 2: “Did the complainant sustain the injury complained of resulting from the assault by the defendant”

The complainant gave evidence that when they got off the PMV at the village the defendant went straight to the snooker house and caused a fight with one of the boys. So the complainant went and told defendant that what he was doing was not proper. The defendant turned and punched the complainant on his left eye. He fell unconscious. He got up and threw a punch intending to punch the defendant instead he punched witness Paul Homate.

7. The witness Paul Homate in his evidence said that when they all got off the vehicle at the village, the defendant went into the video house. When defendant came out of that house he assaulted a female on the door way. So he (Paul) and the complainant went to stop the defendant and the defendant assaulted the complainant. So the complainant retaliated by swinging a punch intending to punch the defendant instead the punch landed on Paul Homate. And Paul been disappointed left the scene and he went into the CD house (or video house). He did not see what happened thereafter. This witness did not say what part of the complainants body the defendant assaulted. He did not say how defendant assaulted the complainant. All he said was, he assaulted the complainant.

8. The witness Whiteson Garite gave evidence that while he was watching the CD at the CD House at the village there was a fight outside. When he went outside he saw the defendant punched the complainant down to the ground. Whiteson went and lifted the complainant up then Whiteson fought against the defendant. After the fight was over, he took the complainant to the house and noticed the complainant’s eye swollen and blinded. He boiled the hot water and washed the complainants eye.

9. There is no evidence of taking the complainant to the hospital for medical treatment. There is no evidence that the complainant never had injury to his left eye before or after this incident of the 07 July 2007.

10. The defendant’s evidence is that while the defendant was leaving the CD House, the complainant followed him out and shouted abuses at him saying: “Yu pipia rabis man” seven times. Defendant became frustrated and he pushed the complainant. The complainant was unbalanced so he held onto the defendant’s shirt and both fell down together. When they both got up, the complainant fought him towards the fence. The defendant stumbled and he fell down. At the same time the complainant fell down landing on top of the defendant. Then the other boys came and fought with defendant. Defendant clearly denied punching the complainant at all.

11. Defendant’s witness Defe Jim corroborated the defendant’s evidence. And he further stated that when the complainant fell on top of the defendant, the complainant appeared to be holding onto his eyes.

12. There is no evidence that when the complainant fell on top of the defendant a fence stick or some other object had poked the complainant’s eye. It is quite impossible for any object such as a stick would have poked his eye when he fell on top of the defendant. If the defendant never punched the complainant on the face, particularly on the left eye how on earth the complainant could have sustained such an injury. I am not convinced by the defendant’s evidence at all. I accept the evidence of the complainant that he was punched on the left eye by the defendant and sustained the injury complained off. However, I am not convinced that defendant was wearing a knuckle duster when he punched the complainant. There is no evidence to suggest that the complainant sustained eye injury either before or after the incident of the 07 July 2007.

13. Damages

The complainant claims K10, 000.00 in damages for the injury to his left eye. The defendant’s counsel Mr. D. Umba submitted that the case be dismissed because of the absence of any medical evidence. There is no medical evidence from the complainant of his injury because he never sought for medical treatment. Is that the reason to dismiss the case? I think not. The medical evidence, in view, will only assist the Court in considering the quantum of damage that need to be awarded. The availability of a medical report would assist the Court in considering higher compensation to be considered. Where there is an absence of medical evidence the court could award lesser compensation.

14. The National Courts in our jurisdiction have awarded damages for eye injuries in a number of cases. In the case of Jacqueline Kennedy by Her Next Friend Rolf Hans Meye -v- Jerry Nalau & The State [1981] PNGLR 543, the Court awarded K10, 600.00 where the victim child suffered facial cuts with permanent facial scarring and scarred eye in a motor vehicle accident. In Bradful –v- Bradford [1975] PNGLR 303, the Court awarded K8, 000.00 where the plaintiff victim suffered multiple facial injuries including lacerated eyeball and twisted upper eyelid. In the case of Baduk –v- PNG [1993] PNGLR 250, a primary school girl lost her right eye totally and a false eye inserted. She was awarded K35, 000.00. And in the case of Lindsay Kivia –v- The State, WS No. 485 of 1991 the Court awarded K60, 000.00 damages for the 50% loss of his left eye sight. In all these case medical reports were available before the Court.

15. In the present case this Court got no assistance as to how much of disability to the complainant’s injured left eye. There is no evidence before this Court that the complainant has totally or partially lost his vision of left eye. The complainants affected eye appeared to be half-closed but whether he is totally blind or not is quite impossible to tell in the absence of medical evidence. In the case of Petrus Kumbo –v- Kukukova Famundi & OR – N1717 (unreported), the plaintiff claimed damages for assault two years later without medical report, His Honour Woods J, in awarding K200.00 as damages said:

”When claiming damages for injuries received in any situation, it is usually considered important to have medical reports contemporaneous with the actual incident as normally any later permanent disabilities flow on from initial injuries or effect. Any later medical examination cannot of itself state that the later problems are definitely a result of the earlier injuries if there are no earlier injuries documented.”

16. In the above case the plaintiff was only struck on the shoulders. However the important point in this case is the non availability of a medical report. In the case of Pepena –v- Malabas & The State – N960, His Honour Woods J, awarded K2, 000.00 where the plaintiff suffered a black eye, swollen face, bruises and laceration to his head when he was pushed, punched and kicked by police. Apart from a black eye he suffered other injuries.

17. In the present case the complainant only sustained injury to his left eye as a result of a punch from the defendant. He suffered no other injuries. In the absence of a medical evidence as to the seriousness of the injury to the eye, I award a sum of K1, 000.00 in damages in favour of the complainant.

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