Marshall v Fiya [2008] PGDC 39; DC712 (31 January 2008)

DC712

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS GRADE FIVE CIVIL JURISDICTION]

GFCi 27 of 2007

BETWEEN

ROBERT MARSHALL
Complainant

AND

BONA FIYA
Defendant

Goroka: M Gauli, PM
2007: December 06, 14
2008: January 24, 31

CIVIL - Damages for assault – Exemplary damages.

Cases Cited:
1. James Koimo –v- State [1995] PNGLR 535
2. Toglai Apa & Ors –v- State [1995] PNGLR 43
3. Rookes –v- Barnard [1964] UKHL 1; [1964] AC 1129
4. Alex Latham –v- Henry Peni N1463 Ws 428 of 1995
5. Ambung Papaney –v- Belden Eiba & Ors (1999) PNG DC15
6. Tom Amaiu –v- Commissioner of Corrective Institution & The State [1983] PNGLR 87

References:
Nil

Counsels:
For the Complainant - In Person
For the Defendant - Mr. D. Umba of Umba Lawyers

31 January 2008

DECISION OF THE COURT

M Gauli, PM: The complainant Robert Marshall claims against the defendant Bona Fiya in damages for spraying bettlenut spituals on him on the 12 of July 2007. He claims damages under two headings – (a) general damages for K200.00 and (b) exemplary damages for K9, 800.00 giving a total of K10, 000.00 which falls within the jurisdiction of this Court. Both parties provided evidence in Court. Defendant denied the claim.

2. On 14 December 2007 the hearing was adjourned to 24 January 2008 for the defendant to call two or three more witnesses. When the trial reconvened at the fixed date and time, the defendant and his lawyer Mr. D. Umba failed to appear. The complainant Mr. R. Marshall decided to accept the affidavits of the defendants remaining witnesses namely Nelson Koata, Mrs. Julie Fiya and Augustine Tambe. These affidavits are accepted and are marked as EXHIBIT ‘E’, EXHIBIT ‘F and EXHIBIT ‘G’ respectively. Mr. R. Marshall then made his submissions and the case adjourned to 31 January 2008 for decision. Defendant and his other witness Lane Ufe, the complainant and his witnesses Peter Wano and Michael John have all testified in Court and were cross-examined.

3. Issues

The issues that I need to consider are:

1. Whether or not the defendant spewed bettlenut stains on the complainant.

2. Whether or not the complainant could claim exemplary damages.

Before I discuss these issues I should first briefly state the evidences of both parties.

4. Complainant’s Evidence

The Complainant Mr. Robert Marshall’s evidence is as follows. That on the 12 July 2007 he drove out in a bus from Goroka town accompanied by Peter Wana and Michael John. They entered Bena Bena bridge and when they were on the middle of that bridge they saw a vehicle approaching in the opposite direction from Lae side. It is a one lane bridge. As the complainant’s bus exited the bridge the on-coming vehicle stopped on the middle of the road with its right side wheels on the complainant’s side of the lane. As the complainant’s vehicle exited the bridge both vehicles came close to some 4 ft to 5 ft of each other with the driver’s windscreens of both vehicles been wind down. The on-coming vehicle was driven by the defendant Bona Fiya, this is not disputed. As the complainant drover closer the defendant yielded at the complainant which he did not understood. The defendant then pressed his two fingers to his lips and spewed bettlenut spituals towards the complainant quite deliberately, and sprayed bettlenut stains on the complainant’s shirt and the right window of his bus. The complainant stopped about 20 to 30 metres. He took off his shirt and wiped off the bettlenut sprays from his face and hair. The defendant’s vehicle remained where it was so the complainant revered back. And he asked the defendant why he spat bettlenut sprays at him. The defendant got out of his vehicle and said to the complainant that the complainant should have given way to him. Some of the passengers on board the defendant’s vehicle got off the vehicle and started shouting at the complainant. Fearing the situation might get out of hand, he drove away.

5. The evidence of witnesses Peter Wano and Michael John are basically the same, I do not intend to repeat their evidence. Their evidence only corroborated that of Robert Marshall’s evidence.

6. Defendants Evidence.

Defendant Bona Fiya gave evidence and confirmed that he was the driver and the owner of the on-coming vehicle towit a Mazda T35 truck registered number P280P. HE was transporting 15 bags of coffee with ten (10) people on board. He was coming into Goroka from Lae side. As he approached the Bena Bena bridge, a 15 seater bus (complainant’s bus) entered the bridge from Goroka side. When that bus came parallel to the defendant’s vehicle, he yielded at the bus. That bus went passed him and stopped some 20 to 40 metres, then reversed back. Defendant got out of his truck and walked over to the complainant, who brought his bus to stop about 5 metres away. And the defendant said to him that he (complainant) should have given him way at the bridge. The defendant’s passengers also shouted at the complainant.

7. The witness Lane Ufe gave evidence that on 12 July 2007 about 10 o’clock in the morning while waiting at the junction of Bena High School to catch any PMV, he saw the bus driven by the complainant making a U-turn. So he got on that bus. On boarding the bus he noticed bettlenut stains on the right window glass of the bus. So he asked “Did anything happen?” and Mr. R. Marshall replied “It was this Bona Fiya bloke, the politician”. The witness Lane Ufe did not see any bettlenut stains on the complainant’s shirt or inside the cabin, except on the right windscreen. He asked that question because there was much bettlnut stains on the right window glass. He did not witnessed what exactly happened at the bridge.

8. The witness Nelson Koata deposed in this affidavit (EXHIBIT ‘F) that he occupied a seat in the front cabin next to the defendant. When their vehicle was few metres before reaching Bena bridge he saw the bus driven by the complainant travelling onto the bridge. So he told the defendant to pull up to the left side of the road and give way for the bus. There used to be a give way sign on the Goroka side of the bridge but it had been removed by the thieves. The rest of his evidence only confirms the defendant’s evidence.

9. The witness Mrs. Julie Fiya deposed in her affidavits (EXHIBIT ‘G’) that she was in the front cabin with two of her young sons and her husband Bona Fiya, the driver. Their vehicle was only a few metres before entering the bridge when she saw the complainant’s bus was already entering the bridge at full speed. She then shouted at her husband (defendant) to pull up to the left and give way. And as the bus exited the bridge the defendant yelled at the complainant. And as a result some red bettlenut stains from the defendant’s mouth spilled on the right side of the bus.

10. The witness Augustine Tambe, s senior sergeant police of Bena Rural Police Station deposed in his affidavit (EXHIBIT ‘E’) that he was a passenger on the defendant’s vehicle at the time. As they were approaching Bena bridge he saw the complainant’s bus approaching the same bridge from the opposite side. The bus failed to give way so the defendant quickly applied the brakes and he pulled to the left side. As the bus exited the bridge, it stopped and reversed back to where the defendant’s vehicle was and argued with the defendant.

11. Issue 1: Whether or not the defendant spewed bettlenut stains on the complainant.”

There is no dispute that the defendant had red buai in his mouth at the time. There is no dispute that the defendant shouted as the complainant drove passed him. The defendant’s evidence is that as he shouted some red buai (bettlenut) spilled out of his mouth and fell onto the side of the bus. This version of the defendant’s evidence is incredible when there was so much bettlenut stains on the right window glass of the bus as witnessed by Lane Ufe. Such quantity of red buai could only be exerted out of a person’s mouth if the person either coughs or spews it out but not by shouting. I could not be convinced by the defendant’s evidence.

12. The complainant’s evidence is that as he exited the bridge and came parallel to the defendant’s vehicle which was stationary at the time, the defendant shouted and he pressed two of his fingers to his mouth and sprayed red buai. The bettlenut stains then fell on his shirt and the right side of the bus. I find the complainant’s evidence to be more convincing.
And I find that the defendant deliberately sprayed red bettlenut spituals onto the complainant and his bus. The defendant’s witness Lane Ufe said that he did saw much bettlenut stains on the right side window of the complainant’s bus but he did not see any bettlenut stains on the complainants shirt or the front cabin. The reason that he was not able to see any bettlenut stains was because the complainant had removed his shirt and wiped off those stains. I am satisfied that the defendant spewed bettlenut stains on the complainant when he spit the red bettlenut at the complainant’s bus. I do find defendant liable for general damage.

13. Issue 2: “Whether or not the Complainant could claim exemplary damages”.

The complainant claims exemplary damages in the sum of K9, 800.00 resulting from defendant spraying red buai stains on him. The exemplary damages are punitive in nature and can be awarded as an additional and at the discretion of the Court. It is awarded to punish the person of his wrongful act so that he is deterred from similar conduct in future. Exemplary damages can be awarded against a person who committed an infringement or it can be awarded against a corporate body to which that person is employed if the infringement resulted within the scope of torfeasors employment: James Koimo –v- State [1995] PNGLR 535 and Toglai Apa & Ors –v- State [1995] PNGLR 43 referred. The leading common law case on exemplary damages is Rookes –v- Barnard [1964] UKHL 1; [1964] AC 1129 which made observation that its main objective are of two folds – to compensate the plaintiff and also to punish the defendant.

14. The exemplary damages may be awarded against an individual natural person subject to a defence of genuine belief raised by the defendant – refer to James Koimo –v- State [1995] PNGLR 535. The complainant in his submission referred to the case of Alex Latham –v- Henry Peni N1463 WS 428 of 1995 where the plaintiffs were on an Air Niugini flight from Singapore to Port Moresby with their infant when they were awoken by a drunkard person who threw alcohol over them. He shouted abuses as them (plaintiffs) and assaulted them and threatened to throw their infant over board. The Court then awarded K1, 500.00 to each plaintiff for general damages and K9, 000.00 each for aggravated damages against the defendant.

15. The defendant’s only defence in the present case is that he did not spray red buai onto the complainant but that since he had red buai in his mouth that when he shouted the substance spilled onto the right side of the bus the complainant was driving. I found the defendants defence to be unconvincing but I am convinced that it was a deliberate act. And so my answer to the Issue 2 is YES the complainant can claim exemplary damages.

16. However the question is on the quantum of the damage. The complainant is claiming K9, 800.00 under this head of damages. In the case of Alex Latham & Or –v- Henry Peni (above) a sum of K9, 000.00 was awarded to each plaintiff. The amount awarded was quite large because the defendant not only threw alcohol over them but he also abused and assaulted them while on board the international flight in the air. The situation in that case I considered to be much more serious than the case now before me. In the case of Ambung Papaney –v- Belden Eiba & Ors [1999] PNGDC 15 the Principle Magistrate awarded a sum of K500.00 as exemplary damages where the complainant was assaulted by members of police. In the case of Tom Amaiu –v- Commissioner of Corrective Institution & The State
[1983] PNGLR 87 the National Court awarded K2, 000.00 for exemplary damages for infringement of his constitutional rights while being a inmate at Bomana jail. He was kept in a solitary confinement and he was denied of visitors, newspapers, sports and so forth.

17. Each case has its own circumstances upon which the Court can draw in considering the appropriate damages to be awarded. I consider that the nature of present case is much less serious compared to the seriousness of the cases cited above. Spitting of the red substance of chewed bettlenut onto a person or a vehicle he is driving is less serious in nature than throwing a punch that causes some physical injury. I consider that a sum of K500.00 to be appropriate as exemplary damage.

18. And I award K200.00 general damages and K500.00 exemplary damage, a total of K700.00 infavour of the complainant.

For the Complainant - In person
For the Defendant - Mr. D. Umba of Umba Lawyers