Genori v Goviho [2008] PGDC 70; DC717 (24 July 2008)

DC717

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

GFCi 27 of 2008

BETWEEN

JULIE GENORI
Complainant

AND

1. DUPODU R. GOVIHO
2. OLINA THOMPSON
Defendants

Goroka: M Gauli, PM
2008: July 09, 11, 24

CIVIL - Claim compensation for personal injuries on assault – Suffered broken arm and fractured ring finger – There was a group fight – Complainant not involved in a group fight

Cases Cited:
Nil

References:
Nil

Counsels:
For the Complainant - In Person
For the Defendants - In Person

24 July 2008

DECISION OF THE COURT

M Gauli, PM: The Complainant Julie Genori sued and claims compensation against the defendants Dupodu R. Goviho and Olina Thompson for causing injury to her body during a fight. It is claimed that on the 30th of August 2007 at Lapegu village, a fight broke out between the women from Lapegu village and Montoka village. This fight spilled over from the fight between the men on the 29th of August 2007outside the District Services Office at North Goroka over a land dispute

2. Facts:

On the 30th of August 2007 the women from Lapegu village went and assaulted Jenny Komarake at Montoka village at about 9.00 O’clock in the morning. In the afternoon the women from Montoka village mobilized and fought with the women from Lapegu at about 3.00 O’clock. During that fight in the afternoon, the Complainant Julie Genori sustained the injuries to her right arm and her left ring finger. And she claims compensation of K9,00.00 for injuries. She claims that she was assaulted on her upper right arm with a stone by defendant Dupodu R. Goviho and fractured her right humorous, while defendant Olina Thompson bit Julie’s left ring finger. There is no dispute that Julie’s right humorous was fractured.

3. The defendants however denied assaulting Julie, therefore denied liability. The defendants claim Julie was held by other women and she was struggling to free herself and in doing so Julie was off balance and she fell on top of a stone and broke her right arm.

4. Issues:

The only issue for this Court to consider is:-

“Whether or not defendants assaulted Julie and caused the injuries complained of”

5. Evidence for the Complainant:

The Complainant Julie Genori and her two witness Tavoro Saki and Jenny Komarake gave evidence. Julie Genori gave evidence that she was not involved in the fight as she is related to both sides of the conflict. During the fight Julie saw Elizabeth Samuel been hit on the head with a stone by defendant Dupodu Goviho. Elizabeth fell to the ground bleeding so Julie went to help her up and to prevent her from further assault. In the process of assisting Elizabeth, the second defendant Olina Thompson then punched at Julie and Julie retaliated and threw a punch at defendant Olina. Somehow Julie’s left ring finger got caught in Olina’s month. Defendant Olina began to tighten her teeth trying to crush or cut off Julie’s finger. Julie cried out to defendant Olina to release her finger but defendant tightened her teeth the more.

6. Julie tried to punch defendant Olina on her month in order to release her finger. However two women namely Grace Wamen and Kekeni Paul held tight Julie’s right hand and defendant Dupodu Goviho hit Julie on her upper right arm with a stone causing fracture to the right humorous, Julie was helpless and she was rushed to Goroka Base Hospital for treatment. Julie tendered the medical reports dated 6th September 2007 (EXHIBIT ‘B’) and the other dated 13th November 2007 (EXHIBIT ‘C’). Both reports confirmed the fractured right humorous and her left ring finger dislocated and fractured. She also produced to Court the x-ray negatives showing visible fractures above. Her right hand appeared to be shorter than the left arm as a result of the injury and the efficient use of her right hand has been reduced.

7. The witness Tavoro Saki gave evidence that she was at the scene of the fight but she did not take part because she was only six weeks after she gave birth, so she just stood and watched the fight. Her evidence confirms the evidence of Julie Genori of how defendants and Olina assaulted her when Julie went to assist Elizabeth Samuel who was injured on the head by defendant Dupodu.

8. The witness Jenny Komarake gave evidence that she was the first victim of the earlier fight on the 30th of August 2007 in the morning. In the afternoon about 3.00 pm Jenny and all her women folks mobilized and went to the defendants village and fought with them. In that fight defendant Dupodu assaulted Elizabeth Samuel on her head with a stone and injured her. The complainant Julie went to prevent Elizabeth from been hit again. Instead defendant Olina started throwing punches at Julie so Julie retaliated and punched Olina. And defendant Olina bite into Julie’s left ring finger. Julie struggled to free her finger from Olina’s month but Grace and Kekeni tightly held Julie’s right hand. While she was been held defendant Dupodu hit Julie with a stone on her right upper arm. Jenny was only about three metres from Julie when the defendants assaulted Julie.

9. Evidence for the Defendants

For the defendants’ evidence, both defendants and their witnesses Stanly Tete, Muzai Yokuware, John Ausi and Philip Ijaho testified in Court. They all denied either of the defendants assaulted Julie.

10. Defendant Dupodu Goviho gave evidence that during that fight she was fighting with two other women. She denied assaulting Elizabeth Samuel and she denied seen Julie went to lift up Elizabeth. Defendant said that Julie was fighting with two other women some 30 metres from her on the other side of the road. But defendant said that she did not know the two women Julie was fight with though they were from defendant’s own village.

11. Defendant Olina Thompson gave evidence and confirmed that she was involved in fighting Jenny Komarake in the morning on the 30th of August 2007. Then in the afternoon that same day Jenny and her women folks went to fight with the defendants and their women folks. The leaders from the defendant’s village told them not to fight but the women from the other group would not listen and the fight erupted. Some were fighting under the bridge, some fighting on the road and others near the gate or entrance to the village. Elizabeth Samuel went off balance and she fell and hit her head on the stone under the bridge, bleeding. The complainant on seen this thought defendant Olina must have assaulted her so Julie argued with Olina why she hit her with a stone. Olina told Julie that she did not assault Elizabeth and Olina tapped Julie on her shoulder and told Julie to leave. Instead Julie threw a punch at Olina on her face so other women went after Julie and fought her. When Olina recovered she went to fight Julie. Olina saw Grace and Kekeni held Julie by her hand trying to stop her but Julie was struggling and she (Julie) got off balance and fell on top of a stone and broke her arm. Olina denied assaulting Julie. During cross-examination defendant Olina said that Julie fell on top of a big flat stone on the road near the market and injured herself.

12. The witness Mr. Stanley Tete gave evidence that he was present at the scene of the fight. Before the women started to fight one of the village elders from the defendant’s side called out three times for Jenny Komorake and her group of women not to cross over the bridge to the defendant’s side to fight. But they ignored that warning and the fight broke out between the women. When the fight broke out Stanley Tete was telling the women from both groups not to use any objects but only fight with bare hands.

13. He said while Elizabeth Samuel was fighting with defendant Olina near the bridge, Elizabeth went off balance and fell and hit her head on a large stone and had a cut. The complainant Julie was fighting with other women some distance away from the bridge. Julie fell and injured her arm. Stanley denied defendant Olina biting her finger. However he was not able to identify those women who were fighting against Julie. He never saw Julie near Olina.

14. The witness Mr. Muzai Yokuware gave evidence that he stopped the women from both side from fighting because that area was rough and they might get injured, but the women did not take heed of his advise. While Julie was fighting with defendant Olina Thompson he tried to stop them. Julie got off balance and she fell down on the road which has a bitumen surface mixed with coltar and stones. He saw Elizabeth Samuel fighting with defendant Dupodu some distance away from him. He saw Elizabeth fell down beside the bridge which was bit rough. He went and brought Elizabeth to the road. He saw the complainant’s witness Tavoro Saki standing far away from the area where women were fighting. He did not see defendant Olina bite Julie’s finger.

15. The witness Mr. John Ausi gave evidence that he saw defendant Dupodu was fighting with Elizabeth Samuel and she (Elizabeth) sustained injury to her head. At that time the complainant Julie Genori approached defendant Olina who went to assist Elizabeth and Julie punched Olina on her face and Olina was black out. When Olina recovered she tried to fight Julie who was held by Grace and Kenori. Julie was struggling to free herself from their grips when she went off balance and fell on the ground full of stones on the road. But he said the road where Julie fell down was sealed.

16. The witness Philip Ijaho gave evidence that he was working in his garden when he heard shouting that brought him to the scene. He saw Elizabeth Samuel and Jenny some ten metres away from where other women were fighting, so as the defendant Dupodu. From his observation these three women must have been exhausted from fighting so they were just standing. He went and stopped Julie Genori who was insisting to fight. But Julie went and fought with the other women while Philip was stopping the other women fighting. When he turned his back towards Julie, she (Julie) fell down where there were a lot of stones. At the time Julie fell down he saw Dupodu was standing distance away from Julie. When Julie fell down other women said to her “You yourself are at fault” and so Philip turned and said to Julie “You are at fault.”

17. From the evidence as presented by both parties I find that the evidence for and on behalf of the complainant Julie Genori is consistence. Her witness Tavoro Saki saw what was going on during the fight. She never took part in the fight. I find that her evidence of seen defendant Olina biting Julie on her finger and the defendant Dupodu assaulting Julie with a stone on her right upper arm are evidence of truth. The evidence of the defendant’s witness Mr. Muzai Yokuware that he saw witness Tavoro Saki standing far away from the scene of the fight could not be accepted. Neither of the three other witnesses for the defendant ever stated seen Tavoro Saki standing faraway from the area where the complainant Julie was fighting. I accept the evidence of the complainant and her witnesses as the truth that both defendants assaulted Julie.

18. The evidence of the defendant is full of inconsistencies and contradicting. Both defendants denied assaulting Julie. The evidence of the defendants’ four (4) witnesses are so inconsistence. The witness Stanley Tete said that Julie was fighting with other women. She fell down and injured herself. He could not identify who those women were though the women were from his own village. I do not trust this witness as a truthful witness.

19. The witness Mr. Muzai Yokuware gave evidence that the complainant Julie was fighting with defendant Olina. He tried to stop them and Julie was off balance and she fell on the bitumen surfaced road. The witness John Ausi gave evidence that defendant Dupodu fought Elizabeth and she (Elizabeth) was injured on her head. When Julie saw Elizabeth been injured, Julie approached defendant Olina who went to assist Elizabeth and Julie punched Olina on the face. Two women Grace and Kekeni held Julie but Julie was struggling and she fell on the sealed road filled with gravel and stone. The witness Philip Ijaho did not see how or what caused Julie to fall as he had his back towards Julie when she fell.

20. The x-ray film showed the humorous on Julies right upper arm was broken and not just a crack. It was not possible for some one to break his or her humorous if he/she struggled and fell on a sealed surface road or on top of a flat stone unless a direct force is applied to the humorous. I could not be convinced by the defendants’ evidence.

21. I am satisfied by the evidence for the complainant that when she saw Elizabeth was injured, Julie went to assist her and at that point in time defendant Olina threw punches at Julie. And so Julie retaliated and when she threw a punch at Olina, her left ring finger got caught in Olina’s month. Julie was struggling to free her hand from Olina but Julie was held tight by Grace and Kekeni. And while they were holding Julie, defendant Dupodu hit Julie on her upper right arm with a stone fracturing her humorous bone. I find the defendant’s have assaulted Julie in the manner described above.

22. During the fight, witness Stanley Tete warned the women not to use any objects such as sticks, stones, knives etc but to fight with bare hands. Despite that warning defendant Dupodu used a stone and assaulted Julie resulting in the injury complained off. This was a group fight which sparked off from the previous day over a land dispute. However Julie was not involved in this fight on the 30th of August 2007. Since she is related to both sides of the conflict she was just standing and watching. When she saw Elizabeth was injured, Julie went to assist her but she eventually ended up in sustaining the injuries complained off. Under those circumstances I find both defendants liable for the injuries Julie suffered as I am not convinced that the complainant was involved in this group fight. She merely went to assist Elizabeth Samuel who was injured but the defendants assaulted her.

23. Assessment for Damage:

I turn to assess the damages against the defendants. The complainant claims against defendant Dupodu Goviho for a sum of K5,000.00 for the injury to her right upper arm. The humorous bone was broken and as a result her right arm is shortened and she cannot effectively use her right arm to lift heavy thing or even use it efficiently. According to the medical report the possibility of a new bone growing is limited. I would award a total of K5000.00 against defendant Dupodu Goviho as damages for the injury as claimed.

24. As for the defendant Olina Thompson, for injuring left ring finger, the defendant bite the finger causing it to fracture. The fracture is not so serious. The complainant claims K4000.00 for that injury. I consider a sum of K500.00 as damages for the injured finger to be appropriate.

25. The defendants point out this court that where a person is injured during a group fight, in their custom, the injured person has to be compensated by the group that he or she assisted in the fight. I would recognise that custom as long as the complainant was assisting the group that was fighting against the defendants and their group. I am not convinced by the defendant’s evidence that the complainant was actually involved in the fight. I am convinced by the complainant’s evidence that she was just watching and she only went to assist Elizabeth who was injured to help her up when the defendants assaulted her. On that bases I consider that their customary method of compensating the injured party is not applicable in this case under the circumstances as explained.

26. I find both defendants liable and I make an order that defendant Dupodu Goviho to pay a sum of K5000.00 and the defendant Olina Thompson to pay K500.00 compensation to the complainant Julie Genori. The compensations to be paid on or before 30th December, 2008.

For the Complainant - In Person
For the Defendants - In Person