Kiap v Moiari [2008] PGDC 153; DC5004 (2 June 2008)

DC5004
PAPUPA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

Civil Jurisdiction

DC. N0. 447 OF 2007

TOBY KIAP

Complainant
-V-

VINCENT MOIARI, NI CRAIGNOLINI & SPORTS INN LTD
1st, 2nd & 3rd Defendants

Port Moresby: Pupaka

2008: 19^th & 26^th May

The Complainant in person
Mr. Liria for the Defendants

2^nd June 2008
PUPAKA, PM: The complainant sued the defendants for damages for injuries he sustained whilst in their employ. The defendants denied liability and the matter was fixed for hearing. On hearing day the parties agreed to present evidence by affidavits, subject to the other side’s right of cross-examination.

Consequently the complainant tendered into court Philip Kaupa’s affidavit of 25^th April 2007 and his own affidavit of 27^th June 2007. Medical Report attached to his affidavit was objected to. In that regard I must note that the complainant had been aware that his medical reports would be objected to if these were not tendered though the maker, i.e., the doctor. So the objection was no surprise to him. Nevertheless he wanted to try and call the doctor so his part heard-case was adjourned to 26^th May 2008. He was also granted leave to subpoena the doctor in case the latter did not volunteer his time. The defendants got costs for the adjournment.

On 26^th May the complainant failed to appear in court to continue his part heard case. As a result Mr. Liria of counsel for the defendants requested that the complainant’s case be considered closed and his clients, the defendants, be permitted to present their evidence.

The court file showed that the complainant had not subpoenaed or compelled the doctor. Also there was no explanation for the complainant’s absence, especially when the hearing had been set in the presence of all parties. Considering that there had always been concerns in the past with the complainant’s ability to pay costs, and considering that a further adjournment is unfair on the defendants, the latter’s request was granted. Consequently the complainant’s case closed and the defendants presented their evidence. A further consequence is that the complainant’s medical reports now cannot become part of his evidence.

The defendants tendered the affidavit of Zuke Zureno of 11^th October 2007, the affidavit of Michael Bolkunga of 11^th October 2007 plus his supplementary affidavit dated 21^st April 2008, and the affidavit of Robert Daugl dated 11^th October 2007. Mr. Liria made a brief oral submission wrapping up the defendants’ case.

The Complainant’s Case

The complainant was employed by the 3^rd defendant as Security Guard at the relevant times. Whilst on duty on 25^th June 2005 he spotted a patron of the 3^rd defendant in the crowd, armed with a bayonet. The complainant moved in and attempted to disarm the patron. Somehow the complainant grabbed hold of the bayonet’s blade while the patron still had control of the handle. When the patron pulled the knife away the complainant sustained “deep multiple cut to his index and middle fingers of his right hand which was bleeding heavily.” The complainant was rushed to the Port Moresby General Hospital where he was treated and discharged the same night. He had two days of “bed rest” and when he returned to work he was terminated. The complainant says no reasons were given for his termination. He also says the defendants did not pay his hospital costs although he was injured in the course of employment.

The complainant says he sustained not only lasting injuries that will affect him in his “gardening and other manual work for the rest of his life when he goes back to his village”, but also mental anguish as a result of the unfair actions of the defendants. He therefore seeks a total of K10, 000.00 in special and general damages.

The Defence Case

The defendants contend that the complainant reported for duty drunk and he continued to drink whilst on duty.

It is said the incident happened on the night of 24^th June 2005, at a time when a big function of some sort was happening at the 3^rd defendant’s premises. Sometime that night, presumably on the dance floor, an argument irrupted between two patrons and one of them pulled a knife on the other. Guards immediately converged upon the patrons. The complainant moved quickly ahead of the others and tried to pull the knife off the patron. But being drunk, he grabbed the knife’s blade, whilst the patron held onto its handle. In a struggle between the patron and the complainant, the patron pulled away the knife, resulting in the complainant’s fingers being cut.

All three defence witnesses say he is the person in charge of security in the 3^rd defendant. They also seem to repeat the assertions of the other, including that the complainant did not obtain permission from any one or all of them to get involved. They say that had the complainant asked for permission, presumably from any one or each or all of them, they would have advised him not to get involved.

It is unclear if the complainant had to first obtain permission to intervene between contending patrons, either as a matter of practice or because he was drunk. It is unclear if the complainant had to obtain permission from all three security bosses or only one of them. One of the security bosses, Michael Bolkunga, says he asked the complainant to sign out and leave the premises as he was not fit for duties but because he was drunk the complainant ignored him.

The defence assertion that the complainant was drunk or drinking is not disputed. It was forbidden for employees to come to work whilst under influence of alcohol or consume alcohol on the job. A standard form containing conditions of employment, one that the complainant signed, is in evidence. It was a term of the condition of employment that an employee who reported to work whilst under the influence of alcohol or was seen drinking would be immediately sacked.

Finding of facts on the Evidence

There are concessions in some vital aspects by the parties. Also whilst not every issue of fact is contended, not all consequences of the undisputed facts are common ground between the parties.

It is unclear how long, in terms of length of time, the complainant was at the 3^rd defendant’s premises drunk or drinking, but he was evidentially on duty. He had not signed out as requested by one of the bosses, but nevertheless he was not told to stop performing his duties. The complainant was neither sacked, not just yet, nor removed from the premises. He may have been told to leave but no one enforced that direction. Apart from Michael Bolkunga’s request, no one told the complainant he was off duty. No one prevented him from working and importantly, no one now says he did not work.

Nevertheless it is fair to say that the complainant was drunk on the job. His attempt to disarm a knife welding, probably drunk, patron by pulling at the knife’s blade was dumb. It is also fair to conclude that had the complainant not been affected by alcohol, he would have been more careful. Capping his stupidity is the fact that he reported to work drunk, even before the ink on his contract of employment which contained the no alcohol condition, was dry. He was hired on 17^th June 2005 for two years. He reported for work drunk on 24^th June 2005, that is his 7^th day on the job. It does not get any dumber than that. Needless to he deserved to be sacked.

A termination letter dated Saturday 25^th June 2005 shows the complainant was sacked on Saturday 25^th June 2005. It reads:

“Due to reports from the security service at Sports Inn, it has come to our attention that on Friday 24^th June 2005 you were under the influence of alcohol whilst on duty.

We would like to advice you that you have failed to comply with the rules and regulations of Sports Inn, which you have personally signed an agreement form. Your employment with Sports Inn has been terminated as of Saturday 25^th June 2005.”

The letter was signed by the 2^nd defendant in his capacity as Managing Director of the 3^rd defendant. The letter infers that the complainant was on duty when he was injured, because it says he was being sacked for being drunk on the job the previous day.

There is also another important finding of fact on the evidence:

The defendants failed to prevent importation of a dangerous weapon to their premises. A patron took a knife – the complainant thinks it was a bayonet – to the defendants’ premises. Whatever it was, knife or bayonet, it is a dangerous weapon that posed a risk for everyone, including patrons and employees alike. At all times the defendants owe a duty of care to everyone inside their premises, including the complainant. The defendants’ obligation is quite apart from whatever act that the complainant needed to do or refrain from doing.

The complainant sued the defendants as an injured employee, having been injured in the course of employment. His suit is being defended on the bases that he was drunk on duty, which means, presumably, it is okay for the complainant, or indeed other guards, to disarm or subdue knife welding patrons whilst sober. However I just wonder how the defendants would defend a suit commenced by the other patron, at whom the knife welding patron brandished his weapon, had that other patron been seriously injured.

On Liability

Notwithstanding the fact that the complainant would have been a lot more careful and that there was every possibility for him to have disarmed the patron if he had not been affected by alcohol; and indeed there was every possibility for the other guards to properly disarm and subdue the patron had the complainant not grabbed the weapon by its blade, nevertheless the defendants’ own negligence and inaction on the night means that they cannot avoid liability.

As I alluded to above, the defendants were exclusively at fault for not preventing importation of a dangerous weapon into their premises, particularly on a night like the night of Friday 24^th June 2005. The defendants are liable for injuries caused directly by their failure to stop a dangerous implement being brought into their premises.

Secondly the defendants could have sacked the complainant there and then, in accordance with the “Employees Agreement Form” which contained a clause that said staff who consumed alcohol before coming to work or whilst on the job, “will be terminated immediately”. They could have removed the complainant from the premises, but they did not. If the complainant was told that he was not on duty, there is no evidence of it. Being drunk as he is said to have been, the complainant no doubt threw himself into his work. The defendants’ ought to have known that the complainant, overly enthusiastic in his drunken condition, might hurt or injure a patron, or as it indeed turned out to be the case, injure himself. These are foreseeable eventualities. The defendants should have made every effort to remove the complainant from their premises, in one way or other, instead of permitting him to be on duty. They did in effect permit him to be on duty. Whether they permitted him willingly or not is of no consequence. Ergo the defendants must also accept responsibility for not removing the complainant from harms way.

Consequently, for all the above reasons, I find that the defendants are liable for the injuries sustained by the complainant.

Contributory Negligence

I am unable to conclude that the complainant contributed to his injuries for two reasons, either singularly or collectively:

First, wrongly or rightly, he was on duty. It is not said if disarming a knife brandishing patron is not the job of security guards like the complainant. Importantly it is not said if it is was not otherwise possible for the complainant, or other guards, to be similarly injured if the guards are stone sober, particularly given the sort of boozy conditions prevailing at the time.

Secondly, the defendants’ liability is independent of the complainant’s conduct, based on the finding of fact that they were negligent in the discharge of their duty of care by not detecting and then preventing importation of a dangerous weapon into their premises.

Assessment of Damages

The complainant sued for a total of K10, 000.00. He noted that K1000.00 was for “loss of blood”; K8, 000.00 for “damage to physical /emotional” (sic); K400.00 for “medical expenses”; K200.00 for “transport”; and K400.00 was for legal expenses.

The complainant cannot rely on his medical reports so the extent of his injuries is unknown. He alleged permanent injuries but, again due to the objection to the medical reports, just how permanent his injuries cannot be known. He could have obtained a final medical review and present it though the doctor. He did not, probably due to costs constraints, but nevertheless as a matter of choice.

The complainant sought K400.00 in medical expenses. He attached a K50.00 receipt, obviously payment for the doctor’s report. Though he did not use the report, the receipt is proof of expenditure and he is entitled to such reimbursements. No other expenditure is proved. The claim to K200.00 in “transport” costs has no evidentiary bases. Legal costs can only be claimed as costs, after judgment is obtained. As a matter of fact and law the complainant’s claim to K1000.00 for ”loss of blood” is the same as his claim to K8, 000.00 in “damage to physical /emotional” (sic) so these claims will be treated as one claim for damages for pain and suffering.

The complainant did suffer injuries. He endured pain and discomfort. He sustained cuts to two fingers, his index and middle fingers. But he was treated and discharged on the same day. He reported for work within two days after he was injured so presumably the injuries were not overly debilitating or incapacitating.

No comparative analyses of cases have been submitted to assist the Court in assessing a suitable amount of compensation. There is no evidence or submissions on quantum. I cannot know how much is reasonable for the complainant’s injuries. I think the complainant and defendants are both at fault for not suggesting an appropriate award. The complainant wanted K9, 000.00 but he gave no evidence to back it up. He suffered injury to his middle and index fingers for which he was treated and discharged on the same night. On the face of it, K9, 000.00 seems too much. For their part the defendants should have argued the alternative. They should have suggested how much can be adequate compensation. Therefore both parties will have to accept an award determined by the Court, and live with that.

In the end the amount will have to be a guess on the part of the Court. Ergo, for no other reason then that it sounds reasonable, I would make a global damages award, including for pain and suffering, at K3000.00. Any lesser sum seems to me to be too little and a sum higher than K3000.00 seems too much.

In the end, in all the circumstances of the case I hereby enter judgment for the complainant in the sum of K3050.00. There shall be interests paid on the adjudged damages award of K3000.00 at the statutory 8% from the date of summons to the date of settlement. The complainant shall have his nominal costs of this proceeding.

__________________________________________________
The Complainant in person
Liria Lawyers for the Defendants