Nickson v Lu [2008] PGDC 152; DC5003 (16 June 2008)

DC5003
PAPUPA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

Civil Jurisdiction

DC. N0. 1773 & 1774 OF 2007

NANCY NICKSON

Complainant [DC 1773 /07]

CAROLINE JOSHUA

Complainant [DC 1774 /07]

-V-

RICKY LU
1st Defendant
JLJ LIMITED
2nd Defendant

Port Moresby: Pupaka

2008: 15^th & 27^th May

The Complainants in person
Mr. Kipoi for the Defendants

16^th June 2008

PUPAKA, PM: This is an inclusive judgment in relation to two separate cases by two different persons who sued the defendants for damages for injuries allegedly received after buying and consuming rotten food from the defendants’ food bar in down town Port Moresby. The reasons for this joint judgment would be apparent in the judgment, but briefly, the two cases are dealt with together because, apart from the obvious fact that the complainants are different people and that they took out separate cases, everything else is the same: The alleged facts, as pleaded and presented by the parties in both cases, appear to be the same. The cases are grounded on medical (treatment) notes that are apparently same or similar. The medical notes (and report) are controversial between the parties, involving issues of veracity, which will be discussed later, at an appropriate juncture. The witnesses and affidavit evidence filed by them for the complainants are identical. Moreover the outcome in one case will affect the other. Of course both cases are against the same defendants. Therefore, all these necessitated a single hearing, which of course was convenient for all parties, including the Court.

The defendants denied liability in relation to both cases, and after a relatively lengthy string of adjournments, the cases were finally fixed for hearing. On hearing day, 15^th May 2008, the parties agreed to present evidence by affidavits, subject of course to the other side’s right of cross-examination of any deponents.

On hearing day the complainants tendered their respective affidavits. However the defendants promptly indicated that they objected to the use of the affidavit of Gideon Upano, National Capital District Commission (NCDC) Health Inspector and Dr. John Pesh of Port Moresby General Hospital (PMGH). They wanted these witnesses to be produced for purposes of cross-examination. Consequently the complainants’ cases were adjourned part-heard to 27^th May 2008 for production of the witnesses. The complainants were granted leave to take out and serve subpoenas upon the witnesses to compel them to attend court, in case they refused to appear voluntarily.

On 27^th May one of the complainants was not present – she was said to have been hospitalized – but her absence did not affect anything. In any event witness Gideon Upano, the NCDC Health Inspector, was in court. He testified for both complainants, and was cross-examined at some length by Mr. Kipoi of counsel for the defendants. However the complainants’ prime witness, Dr. John Pesh of the PMGH, was not present. The complainant, then present, Caroline Joshua, advised the court that the doctor did not want to come to court, either that day or in future. She therefore closed their case.

At this juncture I must note for the record that the complainants had been aware all along that the doctor’s affidavit and the documents attached to it, would be objected to by the defendants if these were not tendered though the maker, i.e., the doctor. So the objection cannot have come as a surprise to them. In fact the many delays and adjournments, prior to hearing, had been caused by the unavailability of the doctor, only by whom the medical reports can be tendered.

It will be discussed fully in its proper context later on, but I need to say now that the doctor’s presence is pivotal to the complainants’ cases. In fact, in the circumstances, it is fair to say the complainants’ case mostly hang upon the veracity of the doctor’s report.

The Complainants’ Case

The two complainants issued what can only be described as the “same” case. The only difference in the two cases is the complainants’ respective names. Everything else that is said or pleaded or asserted in the two sets of Complaint and Summons upon Complaint and the affidavits are identical.

The complainants say that they each purchased a pie from the defendants on 22^nd July 2007. After having eaten half of the pie, each complainant realized that the pie contained live maggots.

Soon after, both complainants suffered a case of vomiting and diarrhea and abdominal pain. The complainants were taken to the hospital (PMGH) where they were treated for food poisoning.

Findings on the evidence

It is vitally important to note that both complainants asserted, in their respective Complaint and Summons upon Complaint that each had bought and eaten half a rotten pie at the defendants’ food bar on 22^nd July 2007, as a result of which each complainant fell ill. The complainants confirmed this pleading in their first set of affidavit dated 11^th September 2007. The assertion was again repeated in a second affidavit dated 12^th October 2007. The date – 22^nd July 2007 – is clearly pleaded as the pivotal date. Since the assertion is repeated three different times; once in the pleadings and once each in two different affidavits, sworn and filed a month apart; the material date cannot be any other than 22^nd July 2007.

Yet, nevertheless, all other references, documents and paper works indicate that the complainants bought and ate rotten pies at the defendants’ food bar on 26^th June 2007. The date disclosed on the prescription slips or initial medical notes, the police ‘reference’ letter and the correspondences from the NCD Health Inspectors, all indicate that the complainants suffered food poisoning on 26^th June 2007 and were also examined and treated that day.

There is no explanation as to why there is such an irreconcilable difference in the evidence. It is unclear why the complainant’s have never attempted to amend or rectify this damaging inconsistency.

The complainants allegedly confronted the 1^st defendant on 26^th June 2007. They then reported the complaint at the police station. They must have secured the assistance of a policeman because it seems they again confronted the 1^st defendant at his food bar on 26^th June 2007 with one. After that they somehow went to the N.C.D’s Health Inspection office and brought back one inspector – Gideon Upano – to the defendants’ downtown food bar. Mr. Gideon Upano actually testified for the complainants. He confirmed under cross-examination that he was with the complainants, starting from the initial contact at his place of work to visiting the defendants’ food bar and then during their visit to the pie manufacturer (Goodman Fielder) for most of the day, giving adequate cause for speculation as to whether the complainants had enough time to do anything else that day.

Yet we now know by the evidence that the complainants did go to the hospital on the same day. Presumably they were in no state to run around in their condition, so it must have been quite an effort to go from one part of the city to another, any number of times, taking up the “best part of the day” at every port of call; namely the defendants’ food bar, the police station, N.C.D City Hall, and the hospital, whilst not forgetting the travel times between destinations.

An obvious fact that stands out for any sane and reasonable person to note is that these series of movement and activity, in just one day, is neigh impossible. Therefore the evidence immediately creates a critical issue of credibility on the part of the complainants.

The irreconcilable difference in the dates alone is damaging. At the very least it forces the Court to assess matters cautiously. In fact, on the bases of the inconsistency in dates alone, the complainants’ case cannot possibly attain credibility, or indeed succeed.

In the circumstances it is eminently probable, and indeed it is open to inference, that the complainants, or people using them as fronts, may have colluded and connected unrelated events to create and structure an occasion to sue the defendants. There may very well have been complaints of bad pies at the defendants’ food bar, either on 26^th June 2007 or 22^nd July 2007. There may very well have been a confrontation between the complainants and the 1^st defendant – indeed the defendants concede that there was such a confrontation. However the clash of evidence on vital dates and the seeming correlation of events, which could not possibly have occurred in just one day as alleged, create serious issues of credibility that are difficult to ignore or reconcile or explain away logically.

It is obvious that these two women, or whoever was acting for them or through them, intended to sue the defendants and began to make preparations towards that end from the beginning. In situations like this it is possible for people to, for instance seize an opportunity created by sale of a bad pie, to overstate the significance of an event or exaggerate losses or injuries or find fault when there is none. In the instant cases it is hard to imagine how two self confessed illiterate women acted in a calm, collected and confident way to do everything they say they did on 26^th June 2007, or on 22^nd July 2007.
Moreover, a careful perusal of the two cases reveals that just one set of complaint and summons upon complaint was drafted. Only the names of the complainants distinguish them. At the time of filing a set of affidavit was filed as well. Again just one affidavit was drafted, which clearly shows Caroline Joshua to be the deponent. The affidavit attested to by complainant Nancy Nickson is an exact copy of complainant Caroline Joshua’s affidavit. Someone apparently erased (white out) the printed name of Caroline Joshua as deponent and not too subtly wrote Nancy Nickson’s name over it. Both deponents attested to their affidavits by an “x” mark but the affidavits are in English. There is no interpretation clause attached. Under those circumstances the affidavits and the veracity of their contents were always going to be suspect.

The complainants’ case against the defendants was always going to stand or fall on the strength of the medical evidence, especially the truth of the medical notes evidencing diagnosis and the treatments administered. Injuries received or suffered and the truth of them can logically be confirmed only by medical evidence. These complainants’ claims are premised upon the fact that they suffered injuries. It was always critical for the doctor or the medical person who examined the complainants and prescribed treatments, to be available for cross-examination. That did not happen. Therefore the medical documents were objected to and are now not in evidence.

Conclusion

In light of all the foregoing it would be a grave mistake to find for the complainants. There has always been a serious credibility issue in contention in relation to both cases which has not been adequately addressed or properly resolved. Then there is the clash and inconsistency in the most important and basic evidence; namely that of the date of purchase and consumption of rotten meat pies. There is not one iota of evidence to explain in a logical way just why this critical inconsistency exists. The lack of explanation damages both complainants’ cases, jointly and each and severally.

Yet, notwithstanding that, in the interests of justice, I did consider carefully whether the complainants ought to be allowed some benefit of the doubt for being illiterate persons. I also weighed the quite likely possibility of honest and innocent mistakes being made, given the circumstances of the complainants.

However, in the end, the inconsistencies seem to be possible results of deliberate choices and acts, more than perhaps attributable to the illiterate status of the complainants. The complainants seem to have been assisted by other people, who no doubt would have collected the evidence, written demand letters to the defendants and instituted these proceedings. Yet there is no cause to presume that those others are themselves, illiterates as well. On the contrary the various documentary evidence, especially the correspondences and the level of sophistication displayed in them, show that those others, whoever they were, knew what they were doing, except perhaps when they mucked up on the vital evidence.

Consequently the cases of complainants Nancy Nickson and Caroline Joshua, in Complaint No. 1773 /07 and Complaint No. 1774 /07 respectively, against the defendants Ricky Lu and JLJ Limited, are both, each and severally, dismissed for the reasons given.

The defendants shall have their costs, the same to be taxed if not agreed to between the parties.

__________________________________________________

The Complainants in person
Paul Kipoi Lawyers for the Defendants