Kono v Hute [2007] PGDC 69; DC592 (5 July 2007)

DC592

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

DCCi 37 OF 2007

BETWEEN

EMMANUEL KONO
Complainant

AND

HERMAN HUTE
First Defendant

AND

CONCILIA MIRI
Second Defendant

AND

ELUTU INVESTMENT
Third Defendant

Buka: B Tasikul
2007: 5 July

DECISION

1. B TASIKUL: The complainant is claiming K3500.00 as compensation for injuries he sustained after being assaulted by the first defendant.

2. The brief fact of this matter is that on 21 April 2007, the complainant went to the third defendant’s supermarket to do his shopping. He took a pair of slippers and went to the counter to pay for them. While at the counter he paid for the slippers however, he also placed his dirty slippers on the counter. The second defendant who was the cashier told the complainant to remove the dirty slippers from the counter. The complainant then told the second defendant to remove it as it was her duty. There was an argument between the complainant and the second defendant. The first defendant as a security officer for the third defendant intervened and also told the complainant to remove his dirt from the counter as it was unhealthy and unhygienic. The complainant continued to refuse and told the first defendant to clean it up.

3. The first defendant left and went outside the shop. As the complainant was leaving the shop the first defendant told him not to do again. The complainant then pointed his finger at the first defendant in which the first defendant grabbed hold on to his finger and twisted it whereby the complainant claims he sustained injury.

4. A medical report was tendered in court which reveals that he had a swelling right finger. An x-ray was also taken which shows that there was no fracture as it was normal.

5. I have considered the evidence before me and I am satisfied that there is no doubt that the injury sustained by the complainant was caused by the first defendant. However, the question is whether the complainant contributed to his injury. A supermarket is a public place where people go to do their shopping. The second defendant was right to tell the complainant to remove his dirty slippers from the counter. The counter is a place where people buy food which must be kept clean at all times.

6. The complainant should have not placed his dirty slippers on the counter. The first defendant as the security officer was right to intervene as it was part of his duty. However, it was wrong for him to apply very excessive force in such situation. He should have just let him go. I understand the action by the complainant may have been provocative by pointing his finger and ordering the first defendant to clean the counter. However, in such claim provocation here in such cases is not a defence in a civil matter. It is only a mitigating factor.

7. I noted that the third defendant Elutu Investment has failed to appear in court to defend this claim. Having said that, I have taken into account, all factors and circumstances of this matter and I find that:

(i) The complainant has contributed to his injuries by his action. If he was a good customer, he should have done what he was told to do.

(ii) The first defendant was at fault to apply excessive force on the complainant’s finger whereby caused him pain and swelling.

(iii) I further find that the third defendant as a party to this proceeding failed to defend this matter and therefore is vicariously liable for the action of the first and second defendants respectively.

8. I therefore enter judgment against the first and third defendants respectively:

(i) The first defendant to pay the sum of K100.00 as compensation to the complainant.

(ii) The third defendant to pay the cost of the proceeding plus medical expenses incurred by the complainant as follows:

K428.00	legal cost
K 33.00	medical cost
K461.00	Total

9. I therefore enter judgment against the first and third defendants in the sum of K561.00. Payable within seven (7) days.

Complainant in person
Defendants in person