James v Lucy [2008] PGDC 151; DC5002 (6 October 2008)

DC5002
PAPUPA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

Civil Jurisdiction

DC. N0. 2468 OF 2006

SAMSON JAMES

Complainant
-v-

REGINA MAGARA & LUCY

1^st Defendant

THE CHIEF OF SECURITY –
UNIFORCE SECURITY SERVICES

2^nd Defendant

THE UNIVERSITY OF PAPUA NEW GUINEA

3^rd Defendant

THE STATE OF PAPUA NEW GUINEA

4^th Defendant

Port Moresby: Pupaka

2008: 7^th & 26^th May
2^nd September
The Complainant in person
Ms. Christine Lari for the Defendants

6^th October 2008

PUPAKA, PM: It has taken some time for a decision to be available in this matter. There were a number of causes why but none of them had anything to do with the substance of this case, except perhaps in that those reasons robbed the Court of the time that would have been utilized to finalize a decision in this matter. Nevertheless a decision is now ready. What follows hereunder is it.

FACTS & ISSUES

There are no common or agreed facts per se in this case. All assertions of the complainant were disputed, which consequently created a full fledged issue as to the veracity of this claim as well.

COMPLAINANT’S CASE

The complainant’s case is that when he was a student at the University of Papua New Guinea (UPNG) in 2003, presumably as an on-campus resident, he was assaulted and badly beaten by ‘Uniforce Security’ personnel on 3^rd June 2003.

It is unsaid but the Court is left to presume that Uniforce Security is either the security division or an arm of the UPNG administration. Uniforce Security could be a separate entity, either part of the UPNG structure or a private entity, comprised of security guards and a management apparatus. Presumably it looks after UPNG’s on-campus security aspects. Also presumably its management is directly responsible to the governing UPNG authorities, who would in turn be responsible for the acts and omissions of Uniforce Security guards. I now accept these presumptions as facts, which consequently settles the bases for the 3^rd and 4^th defendants to assume vicarious liability. These obvious presumptions, which underpin this claim against the 3^rd and 4^th defendants, are not disputed by the defendants. Therefore there are otherwise no issues in relation to the 3^rd and 4^th defendants’ legal obligations to be vicariously liability.

That said the complainant says the first defendants, Regina Maraga and Lucy, two female guards, suspected him of selling betel nuts within the campus grounds on the day in question and so they confronted him. When he refused to open his bags the ladies called in another 10 male guards upon him. The complainant says he resisted attempts by the male guards to take him to their work headquarters as he neither sold betel nuts nor did anything wrong. However, being angered by his refusal, the guards assaulted him. He now says he has contemporary medical reports as proof that he sought and obtained treatment for the serious injuries he sustained.

The complainant’s evidence shows that his lawyers, Parkil Lawyers, served a Section 5, of the Claims By and Against the State Act, notice on the State in 2003. Whilst there is no copy of that notice letter before the Court, a copy of a reply letter from the then acting Solicitor General, Mr. John Kumara, is in evidence. It is date 26^th January 2004 and it acknowledges receipt of an original notice letter. It is possible to make appropriate deductions of the approximate dates from Mr. John Kumara’s letter. For instance the assault occurred on 3^rd June 2003. Mr. John Kumara’s letter is dated 26^th January 2004. It is obviously in reply to an earlier notice serving letter but it does not state or refer to the date of the earlier notice letter. After due allowance for postal and perusal times, I would say the complainant’s original notice letter would have been served on the Solicitor General within the statutory six months. In any event Mr. Kumara said he accepted the notice as being duly served.

More importantly though, I note that Mr. John Kumara did copy his reply letter of 26^th January 2004 to the Vice Chancellor of UPNG. That was good. Notifying the UPNG Vice Chancellor not only put the UPNG authorities on adequate and timely notice, it also gave the university an opportunity to properly investigate and ascertain the complaint and the issues raised by the letter, particularly when the incident was relatively fresh and recent. I will say more on this aspect later.

However it is unclear why the complainant instituted this case relatively late. He registered this case on 30^th October 2006, which is after more than 3 years from the date of the alleged occurrence of the cause. Lack of money is advanced as the main reason but to my mind that is not a good explanation. There has been a three year delay in commencing litigation. There was no negotiation for settlement going on. The complainant did give his statutory notice within the stipulated time. Whilst that would have required legal knowledge, the complainant really did not need much money to start proceedings. The complainant has never been represented in court by counsel. Therefore, besides obvious nominal expenses including typing and or photocopying and filing, his expenses would have been only minimal to commence proceedings in the District Court.

This leads me to another point I need to make mention at this juncture. The complainant really could not have known and is not expected to know the identities and names of the male guards. That is understandable. However he did initially profess some knowledge of the individuals involved by identifying and naming the first defendants, who are further distinguished as being female guards. The second of them is referred to as just ‘Lucy’, which is not a complete identification, but that does not overly matter, as the State and UPNG are targeted as the principal defendants.

The complainant later complicated matters by attempting to exclude the first defendants and substitute them with the names David Pima and Hengi Kiwa. He filed an application only this year, to substitute names, just before this matter was fixed for hearing. In the end though, the application to exclude the current first defendants and insert the names of two others, who incidentally are male guards, was refused. Part of the reasons given at the time for the refusal to grant the application were:
“I am satisfied that this application cannot succeed. First of all the complainant could be mistaken as to the identity of the fresh parties. It now seems he was mistaken in relation to the two persons he named as first defendants initially. Secondly it is unfair for the two persons now sought to be included this late. Thirdly there is no reason given as to why the mistake (identity of first two persons) was made in the first place. In any case the complainant could subpoena the two people now sought to be included if they possess material information (about this case). As it is the principal defendants are the State and UPNG. Therefore the Notice of Motion dated 7^th April is dismissed.”

DEFENDANTS’ CASE

The defendants’ case is basically about the substance of the defence pleaded by the 3^rd defendant, UPNG. The 4^th defendant, State of PNG, has failed to attend to date. UPNG, though it is a State entity, is fully funded and capacitated. It is capable of being liable independent of the State too. In any event the State’s liability is entirely depended on the success or failure of any defence raised by UPNG. The 1^st, 2^nd and 3^rd defendants are nominal defendants who seem to have been included in the proceeding as a formality only. Their inclusion is merely routine, just to establish the connection necessary to found vicarious liability upon the principal defendants.

UPNG denies liability on the bases that one of the first defendants, “Lucy”, is unidentifiable and that the other person, Regina Maraga, denies being involved in the alleged incident.

EVIDENCE NOT AVAILABLE

Some critical evidence is conspicuously not available. If this evidence were available, it could be the sort of evidence that could attach a degree of unshakeable credibility to this claim. That means the lack of such evidence may impinge on the credibility of the complainant’s assertions. I consider it only fair to say this at this juncture so that it is on record that I have properly directed my mind to a pivotal issue that permeates this claim which must be fully addressed. It is the issue of the veracity of this claim.

In that regard I should say that there is firstly no copy of any letter of complaint, which surely ought to have been sent to the UPNG authorities, or student services for that matter, complaining of the assault. Assault of a student, whether campus resident or not, is a reportable matter. Assault on a student would overly concern UPNG administration. The complainant should have reported the matter to the UPNG authorise, i.e., both the university administration and the student services. Failure to report an assault on a student would impinge upon the credibility of any later assertions, both as to the actuality of it and also the seriousness of it. Even if it was duly reported the lack of reference to the report and lack of evidence of such a report or complaint would affect credibility of this claim. If the matter was properly reported the UPNG administration should have dealt with the matter. If a complaint was dealt with by the university administration, then there is bound to be contemporary evidence of that. Evidence of that, if it were available, would mean one of two things or both: It would first confirm that the incident did happen at the time. Secondly it would mean that the incident or injuries were serious enough to warrant reporting it to the university authorities.

I will decide later as to whether or not the lack of evidence of a contemporary complaint to the university authorities is fatal to the complainant’s claim.

I must say though that the Court does not require separate evidence to conclude that security at UPNG, whether provided by hired guards or by employees of the university, is first and foremost for the safety and welfare of students. It ordinarily goes without saying that safety of students, as well as the security of institutional facilities, is the reason for on-campus security.

Any complaint of a breach of this duty must be reported to the university authorises as soon as is practicable to do so. I am unable to understand why the complainant did not raise this matter with the university administration. If he did, he neither alludes to it nor provides copies of correspondences he wrote at the time. Also on that point, there is no evidence of whether the matter was reported to the police. An assault is police business first. It must be reported, more so if the extent of the assault is as serious as is alleged here.
Secondly, due to the objection raised by the defence, the medical records cannot form part of the complainant’s evidence. Therefore the complainant’s medical reports cannot be used to verify assertions of the assault as well as the seriousness of his injuries.

Nevertheless it must be stated that it is not the primary function or use of medical reports to attach credibility to a complainant’s claim. If medical reports are in evidence, depending on the clarity and fullness of the contents, the reports’ spontaneity and contemporaneousness could lend support to a complainant’s contention that he or she suffered an assault or injurious altercation that needed medical attention at the relevant times. However, ordinarily, medical reports are the best source of primary evidence to ascertain seriousness of injuries suffered by a claimant such as this complainant.

In the instant case, whilst it perhaps might not have a determinative impact on his case, the complainant’s failure to call the author of his medical reports certainly would affect assessment on the seriousness of injuries he suffered.

I should state generally, to round off the discussion on the lack of critical evidence, that the lack of vital evidence will no doubt demonstrate to the complainant, and to others who may also be in similar situations, that it is important to commence litigation quickly. The longer it takes, the harder it becomes to prove anything. Records get lost or misplaced or disappear. Witnesses, including doctors, are transferred or relocated or otherwise move on in life. Memories fade. In short, time and life does not stop and wait for any one. Whilst it may not be altogether too late for this complainant I feel compelled to re echo a poignant utterance of the great Englishman William Shakespeare (in Henry VI), as Justice Ellis had cause to do in Tomalana -v- Drug House of PNG [1991] PNGLR 65 (N957), that “Delays have dangerous ends.”

FINDINGS ON THE EVIDENCE - LIABILITY

In my view the credibility of the complainant’s or his witnesses’ evidence is not dependent on their evidence being independently supported by any evidence of complaints to the university authorities or police. That is not to say corroborative evidence is not required though. He can still adduce other relevant extrinsic evidence to prove that the assault indeed occurred as he now asserts.

I am satisfied that an assault upon the person of the complainant did occur. It involved guards employed or deployed under the control and command of Uniforce, at the time and place as alleged.

I reach this conclusion because I have to accept that the complainant did serve upon the 4^th defendant, the State of PNG, a statutory notice in accordance with the provisions of the Claims By and Against the State Act 1996 (section 5 (2) thereof). As I alluded to earlier, evidence of service of due notice can be derived from a letter from acting Solicitor General Mr. John Kumara, dated 26^th January 2004. I have, in the context of the point I made earlier about compliance with the requirement to give due notice, already concluded that due notice was given. The acting Solicitor General’s acknowledgment letter was copied to the Vice Chancellor of UPNG. So I also concluded in context that UPNG had due notice. I now add that another logical conclusion borne out by the correspondences generated from the complainant’s statutory notice is that an assault, of the sort alleged, in fact did occurred, which is why the complainant served due notice.

The defendant has not sufficiently or at all addressed, let alone negated, the import and effect of the evidence of service of statutory notice. UPNG was, albeit indirectly but effectively nevertheless, given due notice of an impending suit. Even if UPNG had not received a direct complaint from the complainant it nonetheless had relatively early notice of an impending law suit against it. At least on the bases of the acting Solicitor General’s copy letter UPNG was obligated to further investigate. It may have done that but there is no evidence of any such investigations here.

In the end result I also find that the 3^rd and 4^th defendants, the 3^rd defendant principally, are liable for any injuries sustained as a result of that assault upon the complainant.

ASSESSMENT OF DAMAGES

The complainant sought “general damages, private damages, and exemplary damages.”

There is no specific evidence on any of these heads of claims before the Court. The complainant seems to have put a lot of effort into proving that there was an assault upon him by Uniforce guards at the times asserted and very much ‘forgot’ to adduce evidence on quantum. Maybe he thought he did not need to do that.

Whatever the reason is for the lack of evidence, I do know that the Court must have relevant evidence before it to assess a suitable amount in damages. There can be no guess work involved. However, in saying that, the complainant is entitled to damages. He has consciously sought it. The issue therefore is as to how much is adequate compensation.

Generally speaking, an appropriate amount would very much depend on the seriousness of the injuries sustained. Nevertheless the complainant and his witnesses’ evidence show little in relation to the extent and seriousness of his injuries.

There was an attempt to tender into evidence some medical reports. However, as I alluded to in the fore part of this judgment, those medical reports do not form part of the evidence. The use and reliance of these reports were objected to as the creator or creators of the documents would not be brought in for cross-examination. The objection was, quite rightfully, sustained.

In the circumstances of this case, the Court is left to guess at what is a reasonable award. However it goes without saying that guessing is froth with the possibility of an erroneous miscalculation on what is reasonable. Therefore, in practice, the courts have adopted the practice of guessing on the side of or erring only on the side of caution. As the saying is, it is better to be safe than sorry. The complainant is obligated to prove what he is entitled to. He cannot expect anyone to do that for him. If he fails to prove, the loss is his alone. On the other hand the law does not permit the defendants to be liable beyond the extent to which they must.

Past damages, including special damages and losses, are only recoverable upon proof of loss (including evidence of expenses, as shown by receipts, etc) and the extent of impairment and disability. Future losses, including economic loss due to loss of ability if any and lost of opportunity, can also be awarded but only upon the basis of evidence sustaining such losses.

Needless to say there is not one jot of evidence bearing out past and future losses nor is there evidence of special damages, i.e., evidence of expenditure and receipts.

Therefore I decline to award special damages and damages for past and future economic losses.

I must also decline to award exemplary damages. The 1^st, 2^nd and 3^rd defendants cannot bear this burden, which is normally borne personally by people like them. Moreover the complainant has since conceded that his assailants were persons other than the two first defendants. He deliberately sought to include, but unfortunately unsuccessfully, two other male guards as the first defendants in place of the current two. That issue was resolved when it was up for resolution earlier in this proceeding, but the complainant’s attempt only proves that the current first defendants cannot be ordered to bear exemplary damages as they did not actually assault him. Identities of the guards who did assault him remain unknown.

Nevertheless the complainant is entitled to general damages for pain and suffering. That is borne out by the proven assault.

However there is no evidence of any permanent or lasting damages. The seriousness of the pain and suffering endured is unknown. There seems to have been no other collateral damages or losses resulting from the assault.

In the end, in the exercise of the general discretion vested in this Court, I consider that an award of K3000.00 is just and reasonable. I consider this amount to be the sort of award that would have been paid to the complainant in 2003, when the assault was occasioned upon him, i.e., had his claim been settled around that time.

Ergo, in the end I grant judgment for the complainant, against the 3^rd and 4^th defendants, each and severally and jointly, in the sum of K3000.00. Interests, at the statutory 8% rate, shall accrue upon this adjudged amount from the date of summons to the date of settlement. The complainant shall have his costs of obtaining this order, the same to be taxed if not agreed to between the parties.

_________________________________________________

The Complainant in person
Nonggor & Associates for the 1^st, 2^nd and 3^rd Defendants
No appearance by or for the 4^th Defendant