Willie v Lin [2007] PGDC 154; DC830 (29 August 2007)

DC830

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

PMDC NO: 749 OF 2007

HELLEN WILLIE
Complainant

MICHAEL LIN t/a RICKSHAWS NOODLE BAR RESTAURANT
Defendant

Port Moresby: M. Pupaka, PM
2007: 29th August 2007

The Complainant in person
No appearance by Defendant

29th August 2007

M. M. PUPAKA: This matter was fixed for hearing today. It was fixed for a inter partes or ex parte hearing, as the case maybe, from 22nd August 2007. A previous hearing fixture, set for 22nd August from 3rd August, was vacated due to the absence of the defendant. That previous hearing date was set in the presence of both parties, and the defendant could not have been mistaken as to that trial date yet he failed to appear. Despite that he was given the benefit of the doubt and an adjournment was granted anyway.

However it is not surprising that the defendant failed to appear for today’s hearing. In the circumstances it is pointless to wait for him. There is no guarantee that he would appear at any future hearing fixture if today’s fixture is vacated again and a fresh date is set. This matter is not the only case before this Court. As people know Port Moresby District Court, being the nation’s capital city’s only District Court with civil jurisdiction, is a busy court with a long list. In any case this matter was deliberately fixed for ex parte hearing today, i.e., in the alternative, to meet the contingency of the defendant again failing to appear, therefore the matter will have to proceed ex parte.

Consequently the complainant was granted leave to present her evidence ex parte. Following that she then informed the Court that she would relay on her previously filed affidavit evidence. She adduced no further evidence.

Evidence

By a set of Complaint and Summons upon Complaint dated 12th April 2007, the complainant had sued the defendant for damages alleging food poisoning. She had asserted in her pleadings that she purchased food at the defendant’s food bar on 25th September 2006. She bought and partly ate a sausage flour roll. Halfway through eating the sausage flour roll she realised that it was rotten. It was stale and was beginning to rot inside and was giving off an odour.

The complainant immediately confronted the defendant. The latter refused to talk to her and refused to do anything about the matter, merely telling her to go to the police instead. So that is exactly what she did. She went to the police station and registered a complaint. It was registered as OB (Occurrence Book) No. 321/06. That done the complainant then took some police personnel to the defendant’s restaurant on the same day, 25th September 2006. In the presence of the police defendant offered to refund the complainant’s money, the amount she paid for the sausage roll. The complainant was obviously not impressed.

The complainant says that a couple of hours after eating the sausage roll she vomited and developed severe abdominal pain and acute diarrhoea and associated tightness of stomach. So she went to the hospital where she was treated for food poisoning. She was prescribed flaggy, chloramphenicol and pain relief tablets.

The complainant repeated these assertions later in her various affidavits. There is a medical report dated 26th September 2006, from the Port Moresby General Hospital, attached to the affidavits. It essentially confirms the symptoms she alludes to in the statement of claim and the treatment administered. It further states that the complainant was fully tested for other underlying causes of her symptoms but causes other than food poisoning were ruled out.

The complainant seems to have reported the matter to the health authorities too after the incident. Consequently on 2nd October 2006 one Mr. Robin Yanopa, the Chief Health Surveyor for the National Capital District Commission, followed up on the complaint and wrote to the defendant, directing him to only sell food safe for human consumption and desist from selling heated leftover food. Apparently, gauging from the contents of the letter, it seems the defendant’s premises, including his food storage places, were inspected by the City authorities prior to the date of this letter. The letter indicates the defendant’s premises were inspected on 27th September 2006.

Defendant’s stance

Upon service of all of these; the Complaint and Summons upon Complaint and the various affidavits and the contents including any annexure thereof, the defendant filed various documents denying liability on the bases that the incident complaint of did not happen, not at his Restaurant.

It is abundantly clear the defendant is denying the claim. He is disputing not only the pleadings in the complainant’s complaint but also statements in the various affidavits and annexure filed by the complainant. The defendant in fact seems to think there is a conspiracy and collusion between the complainant and the police and City authorities to defraud him by these proceedings.

Ruling on the evidence generally

During the course of the several mentions of this matter it appeared to the Court that there was a very critical side issue of credibility of the proceedings being raised. The complainant’s claim, it seems, is being defended on the basis of the issue of credibility. In essence the complainant is being accused of lying and of bringing a fabricated claim against the defendant.

Therefore, in the circumstances, the defendant was advised by the Court to try to file evidence negating certain of the complainant’s evidence. The Court’s advise and direction was first issued on 11th July 2007. It was repeated on 3rd August 2007. Moreover, in the face of continued non compliance by the defendant the direction was again repeated on 22nd August 2007. All these directions of the Court are matters of record on the court file. The defendant was particularly directed to negate the evidence relating to the following:

There is an allegation of confrontation between him and the complainant. There were two different confrontations on the day of the sale, 25th of September last year (2006). Even if the defendant is not expected to recall facing any unhappy customer every day, surely he can recall being confronted one afternoon by a particularly unhappy customer who brought the police to his restaurant. It only happened less than a year ago, only a short enough time ago, for a reasonable person like the defendant to recall, given the circumstances and events being asserted here. The defendant would recall events like these, if it happened, because that sort of thing does not happen often, unless of course the defendant confronts a lot of unhappy customers in the company of policemen often, in which case he must be selling a lot of stale food regularly.

Now if the defendant considers the complainant is lying in this regard it is relatively easy for him to prove that no complaint against him was laid at the police station by this complainant on 25th September 2006. It would not be too difficult to prove that OB No. 321/06 corresponds to someone else’s complaint.

Then there is the medical report from the Port Moresby General Hospital. It is dated 26th September 2006. That’s the day after the day the defendant allegedly sold bad food to the complainant. Again it would be a relatively easy task to negate the authenticity of the medical report. It would not be too difficult to prove that no copy of a medical report dated 26th September 2006, concerning this complainant, is among the Port Moresby General Hospital records. I cannot understand why the defendant is not willing to cross-examine the doctor who authored the report, yet the defendant disputes all matters connected with the doctor’s report.

Thirdly the National Capital District health authorities seem to have paid him a visit on 27th September 2006. Surely the defendant can recall that? He cannot deny an event like that. By denying the defendant is inferring that the National Capital District health authority head at the time, Mr. Robin Yanopa, is lying. I cannot understand why the defendant is not interested in cross-examining this gentleman. Whether or not a report was lodged with that gentlemen or his office by the complainant is crucial to the defendant’s defence.

Without attempting at least to negate the assertion that there is a person called Mr. Robin Yanopa in the National District Commission or without attempting to negate that that person did write the letter of 2nd October 2006, the defendant reserves no right to dismiss off hand the authenticity of the letter, or indeed expect the Court to disregard its authenticity for whatever it is worth.

Moreover the Court cannot dismiss off hand seemingly credible and unchallenged evidence. The reports are sufficiently contemporaneous and spontaneous. The reports to the authorities were quickly done, on the same day or as soon as it was practicable. There is documented evidence of all that happened, as and when it did. In the circumstances if there is anyone’s credibility at stake here it is not the complainant’s. In fact the complainant’s evidence of spontaneous reporting elevates her credibility rating. It proves that the complainant acted immediately. That makes it harder for the defendant to negate her credibility.

In the end I cannot have any doubts that the defendant sold stale and rotting food to the complainant, as a result of which the latter developed symptoms and conditions of food poisoning as stated, which required medical attention and treatment. There is no evidence of any lasting effects this (food poisoning) had on the complainant, but for the stress, pain and suffering that she must otherwise have endured for a time I must find the defendant liable.

Assessment of Damages

The orders that the complainant seeks are for "just compensation pursuant to the Act, costs, interest pursuant to the Act, and such other or other orders the Court deems appropriate in the circumstances of the case." If this is the ultimate relief she craves from the Court in this proceeding, I am compelled to say that I have no idea what it means or what she wants. I cannot work out the limit or extend of her claim. I have no idea what or which "Act" she is referring to here.

She seems to want compensation. Any capacitated person can see that. So I would be satisfied that she is seeking damages against the defendant. However, just how much in damages she wants I cannot say. The complainant was the one who was injured, not this Court, so I cannot know how much she wants. Furthermore the complainant seems to have incurred costs in medical expenses including the costs of obtaining the report but she has neither stated the exact figure nor actually claimed for the same in this proceeding.

It must be stated that things like medical expenses, even if it were being sought, are reliefs that the Court may not grant without a specific claim for it, supported by evidence of expenditure like copies of receipts.

Court proceedings, in many ways, are a bit like those ATM (Automatic Teller Machines) operated by the banks. A complainant needs to plead facts and then pray for a specific relief (order or claim or declaration etc). He or she must then proceed to prove the truth of his or her claim, i.e., provide evidence in support which must sustain that claim. Where no specific outcome is sought or asked for none can be given by the Court.

Even if unspecified damages are sought, a range or limit must be suggested, either in the pleadings or in the evidence or by way of a final submission, so that the process of assessment would settle the appropriate amount.

In this matter the complainant has not given any indication of what amount she prefers. That is tragic because she came to court to get something. Expecting the Court to guess at an amount, when no range or limit is stated, is misplaced presumption. That is not how the adversarial system of justice followed in this country works. There is a limit beyond which this Court or any other court for that matter, cannot cross. The Court cannot argue for the complainant. The Court’s sole function is to adjudicate on given issues. The fact that this particular complainant is unrepresented or that she may even be an uninformed person or illiterate villager does not change anything. It is simply the way things are.

Nevertheless I consider that some amount of money order ought to be made for the complainant, for the apparent suffering which she must have endured as a result of food poisoning. Otherwise there would be injustice if she were to go empty handed. But the amount would have to be no more than a token amount.

Consequently, in the circumstances, I consider that a sum of K1500.00 is adequate as token amount. This amount is not intended to be the most appropriate award in damages, for the complainant has sought no specific amount herself. This Court cannot know what amount would be adequate without the complainant saying how much would appease her. Moreover, K1500.00 is not intended to adequately compensate the complainant for her sufferings, but it is merely hoped that it is adequate compensation. In the circumstances the complainant will have to be satisfied with an inclusive judgment of K1500.00.

Interests shall be paid on the K1500.00 at the statutory 8% from the date of summons to date of payment.

Finally it bears repeating that it is not possible to assess or award any special damages. None has been sought or proved and that simply is that.

However I do order that the complainant recover her costs of litigation. It seems she would be entitled to nominal costs only as she has appeared in person in these proceedings all throughout.

________________________________________________

The Complainant in person
The defendant in person