Japele v Guard Dog Security Service [2009] PGDC 110; DC1022 (19 November 2009)

DC1022

PAPUA NEW GUINEA
IN THE DISTRICT COURT SITTING IN ITS GRADE FIVE CIVIL JURISDICTION AT WEWAK

GFCi NO: 41-41 OF 2008

BETWEEN:

WHADO JAPELE
Plaintiff

AND:

GUARD DOG SECURITY SERVICE
First Defendant

AND:

ALEX BERNARD
Second Defendant

Wewak: J. August, acting Principal Magistrate
2009: 27 July, 04, 06 August, 29 October, 02, 19 November

JUDGMENT

DAMAGES - Personal injuries - Assault - laceration on head - Damages of K4, 500.00 - Damages to vehicle by Plaintiff worth K3, 012.50 deducted.
POLICE ACTION - Whether action by police officer who is victim’s father to raid security company office was lawful and justified under the circumstances.

Cases cited:

Pepena v Malabas & The State N960 Unreported (March 8, 1991)
Petrus Kumbo v Kukukova Famundi and Famundi, N1717 Unreported (May 28, 1998)
Gorua Tamarua v Alert Security Services and Steamships Trading Company Trading as 5 Mile Kwik Shop, Unreported N2200 (May 20, 2002)
Pepa Manado v Koi Goiya, Unreported N1066 (June1, 1992)
Hilda Luvao v Monica Kessi DC636 (October 12, 2007)

Counsels:

Parties by themselves

November 19, 2009

J. AUGUST, a/PM: This is a claim for damages for personal injuries received on the 8th of June 2008 after an employee of the First Defendant assaulted the Plaintiff after the security guard had received a distress call from their operation room to come and stop the Plaintiff from damaging the First Defendant’s vehicle which was parked outside their office. The plaintiff, amongst other generalized body aches, received a laceration to his head. The Plaintiff is claiming K10, 000.00 damages.

Undisputed Facts

The plaintiff (herein Whado) is an employee of South Sea Tuna Loining Company as a Security Guard while the second defendant (herein Alex) was at that time employed by the first defendant as a Commander. It transpired from the evidence filed that the Plaintiff wanted to go home after receiving a message on the mobile that two police officers were shot and one has died and the one seriously injured has been taken to Boram Hospital. Whado was with Kenneth Noipa, Denis Vele, Albert Mark and Mrs.Vele. They were going to Wewak Point to leave Mrs. Vele and her baby to stay for the night with her parents, while Whado and his mates find their way to Boram Hospital. Whado decided to ask the Guard Dog Security office for transport to assist them to Boram Hospital from two female security guards on duty. Some minutes later Alex drove in with the security vehicle, a Toyota Land Cruiser (Ten Sitter) Reg No. LAR 487 and parked outside their office next to the Ela Motors Sales Office, Wewak. Whado asked Alex if he could drop them off at the Hospital. Whado was not happy with the response so he starting using the fishhook knife on the security vehicle. Moments later some security personnel arrived in two vehicles and assaulted Whado and his friends whereupon he sustained laceration to his head. Whado had to hold onto Alex but feel down due to dizziness. He was taken to Boram Hospital by a Guard Dog vehicle where he was attended to and received 5 stitches on his head.

About 20 minutes later, Whado Japele’s father a police officer came with some duty policemen and some civilian in a riotous manner and raided the security office. They entered the radio room and stopped all communication for almost an hour. The fully armed policemen assaulted two Guard Dog Security men at Ela Motors and took a radio off them which has not been retuned since.

Disputed Facts

The Plaintiff, Whado in his evidence stated that Alex had said to him"Asehole find your way!" which Alex has denied, saying that the words he used were, "Fuck this is not a taxi service!" Alex further denied assaulting Whado, saying that when he came and parked the vehicle and was walking down towards Garamut to attend to a commotion taking place there. While down there he heard the female guards calling out to him that the vehicle was been destroyed. Alex ran back to the office and asked Whado why he damaged the vehicle. Whado swung at Alex 4 times and Alex had to jump backward to avoid been slashed across the belly.

Hearing the commotion the other guards from nearby premises stepped in to assist. One of the guards was Jessie Maniku who did not protect himself from Whado received a cut on his forehead from the fishhook swung at him. Jessie Maniku grabbed the fishhook from Whado and using the same slashed Whado on his head. Alex managed to calm Jessie Maniku down who by then was also bleeding by standing while at the same time trying to seal off Whado from the other guards. The radio operator called for assistance and some off duty guards came in on two Guard Dog vehicles to assist. There is no evidence to suggest that the second defendant was the one who called for re-enforcement from the Guard Dog Barracks. In fact, Whado was drunk to have known all that was happening.

At Boram Hospital Whado was attended to by medical staff but not Jessue Maniku, who was prevented by Whado’s friends and relatives from receiving medical attention. A Hospital security guard assisted him to see a sister who worked on Jessie away from the emergency area. On the 12th June Jessie Maniku went to Maprik Health Center to redo his stitches and was issued with a Medical Report which now forms part of the defence evidence.

The Issues

1. Whether the First Defendant should be vicariously liable for the assault causing bodily injuries on the Plaintiff.
   
2. Whether the Second Defendant should be personally liable for the injury sustained by the Plaintiff.
   
3. Whether Police Action to raid the First Defendant’s Security Base was lawful and justified under the circumstances.
   

The Law

This is a civil suit and therefore the law on tort (battery and assault) would apply to this claim for damages on personal injuries.

Finding on Liability

I find as facts the following: Firstly, the Second Defendant had sworn or use some words which has insulted Whado to retaliate the way he did, which in my view is not proportionate to the insult but went beyond that which is allowed by law by damaging the First Defendant’s company vehicle which was parked outside the office. Secondly, the Plaintiff did provoke the First Defendant’s employee by striking the fishhook at Alex, the Second Defendant and also by striking an employee of the First Defendant who had come to assist in stopping the Plaintiff from further destroying the company property or injuring the Second Defendant, thus resulting in the blow to the Plaintiff’s head with the same fishhook by an employee of the First Defendant.

I therefore find no evidence that the Second Defendant has contributed in any way to the injury sustained by the Plaintiff and found the First Defendant liable for the action or omission of its employees, servants or agents by not preventing the situation from spiraling out of control. I further find that the damage done to the First Defendant vehicle has not been contested and therefore the Plaintiff should be liable. Moreover, I also found that the action by the Police lead by the Plaintiff’s father to raid the office of the First Defendant is illegal, unlawful and unjustified and amounts to a breach their rights under the Constitution.

Damages

I find First Defendant was at fault and therefore, he must be vicariously liable for damages to the Plaintiff.

As I have found the defendant liable, I now wish to assess damages. According to the Medical Report, the Plaintiff received laceration to the head. The Doctor observed that he was under liquor and was not in any distress when he was rushed to the casualty department. The laceration on the scalp were sutured under local anesthetic with silk suture to the skin and was given tetanus toxiod and crystapen injections. The sutured wounds were dressed with iodine and he was supplied with amoxycilline and paracetamol for one week. The skin suture was removed after one week. The Doctor reported that he was well, but has generalized body aches. I now wish to discuss similar cases of assault and battery where damages were awarded by the National ourt or Grade 5 Court:

In the case Pepena v Malabas & The State N960 Unreported (March 8, 1991), the Plaintiff claimed damages after he was assaulted by members of the Police Force. The Plaintiff suffered bruises and lacerations to his head, face, shoulder, elbow, knee and foot. Amongst other damages, the His Honour Jutice Woods awarded K2, 000.00 for assault. In another minor assault in Waigani in the case of Petrus Kumbo v Kukukova Famundi and Famundi, N1717 Unreported (May 28, 1998), His Honour, Jutice Woods found that the assault was of a minor nature, especially when the medical report was obtained two years after the incident was complained of and awarded K200.00 as damages.

In another case of Gorua Tamarua v Alert Security Services and Steamships Trading Company Trading as 5 Mile Kwik Shop, Unreported N2200 (May 20, 2002) Her Honour Justice Davani awarded K2, 000.00 for General Damages for personal injuries for assault when the Plaintiff sustained bruises to his left neck, swelling to left parietal area of head, clotted blood in left hear and mild hearing loss and 5% loss of efficient use of left hear. Her Honour also awarded Special Damages for Medical Examination Fee of K192.00 and Cost of confiscated groceries of K196.07 and Interest of K499.31 with a final total of K3, 194.69. Justice Woods in a case of assault causing personal injuries in another Mt. Hagen case of Pepa Manado v Koi Goiya, Unreported N1066 (June1, 1992), awarded K4,000.00 in damages plus interest of K640.00 making a total judgment of K4, 640.00 awarded to the Plaintiff.

In a District Court Grade 5 matter of Hilda Luvao v Monica Kessi DC636 (October 12, 2007), His Worship, Principal Magistrate, Mr. Mekeo Gauli awarded damages of K4, 000.00 in total to the Plaintiff for intentional assault and injuries and mental and physical distress caused by the Defendant who assaulted him.

In this present case now before me, I am of the view that the injury, including pain and suffering is not life threatening, and in comparison to the damage done to the First Defendant’s vehicle and the injury sustain by the another employee of the security company who was not named as a co-defendant to this suit, I would only assess general damages at K4,500.00 and in the exercise of my discretion I now order that K3, 012.50 be deducted for damage and repair works to be done to the vehicle damaged by the Plaintiff and award the balance of K1, 487.50 to the Plaintiff as damages. The First Defendant shall pay the adjudged amount of K1, 487.50 to the Plaintiff within one 14 days from today. The Court makes no order for the Second Defendant who is now discharged from any liability and ordered that his bail of K500.00 shall be refunded to him.

______________________________________
Plaintiff: Whado Japele by himself
First Defendant: Represented b Mr. Charles Mai Liaison Officer – Wewak.
Second Defendant: Alex Bernard by himself