Wesley v Loko [2009] PGDC 56; DC880 (2 July 2009)

DC880

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

GFCi 26 of 2009

BETWEEN:

TINA WESLEY
Complainant

AND:

WESLEY LOKO
Defendant

Goroka: G.Madu
2009: May 13,
June 1, 16
July 2.

CIVIL LAW – Claim damages for bodily injuries – Assault with a bamboo stick – functional loss of right forearm – Damages assessed.

Cases Cited:
1.Elkum -v- The State; Genbi -v- The State [1988-89] PNGLR 662
2. Korrolly,Tovue and Kolita -v- Motor Vehicle Insurance (PNG)Trust [1991] PNGLR 415

References:

Counsel:
Tina Wesley, In Person for the Complainant
Wesley Loko, In Person for the defendant

2 July 2009.

REASONS FOR DECISION

G Madu,PM.: The complainant claims compensation in the sum of K10,000.00 for injuries she sustained to her right forearm.

2. The complainant is a second wife of the defendant Wesley Loko and both were living at Henganofi Station where the defendant is a Kiap or District Officer.

3. The facts not disputed by parties are that there was a domestic argument in the defendant’s house. During the argument complainant sustained injuries to her right forearm. The complainant was taken to the Goroka General Hospital and was treated for the injuries she received.

4. The defendant denied having argument with the complainant and using a bamboo stick and hitting her twice on her right forearm.

5. There are only two issues and these are –

1. Whether it was defendant who assaulted the complainant.

2. Whether the injuries resulted from the use of the bamboo stick.

6. Both parties filed their affidavits which were admitted as evidence The defendant called two witnesses who gave oral evidence. No cross-examination was done on affidavit evidence.

7. The evidence of the complainant contained in her affidavit states that she was married to Wesley Loko who the defendant in this matter in 2001. The defendant is employed as a kiap with Henganofi District and has been employed for ten years Complainant said their marriage had no problem between the years 2003 and 2005.

8. It was on Friday 7th November, 2005 in the evening at 8.00pm when the defendant holding onto the bamboo stick hit the complainant two times on her right forearm which caused her to cry as she was in pain. The complainant came next day to get treatment at Goroka General Hospital for the injuries she received.

9. To support her evidence against the defendant whom she said has caused the injuries to her she produced a medical report from Dr E.Epos and counter signed by Dr. Dale Frank. The report stated that when the complainant was presented at the hospital she was fully conscious but was in pain and distress. On examination her right forearm was swollen, tender and loss of function. Radiological examination of the right forearm showed galeazzi fracture of the right forearm.

10. Treatment was administered where the complainant was admitted to the surgical ward on 14th November 2005 for operation and was discharged on 19TH November 2005. She visited the hospital four times for review on her injuries. The medical examination finally revealed that the complainant had a functional loss of 60% ( Percent ) to her right forearm.

11. The complainant said that the defendant promised that he would compensate her but this had not happened up to this time. She said that it was a terrifying experience she faced suffering. The injury has caused adverse effect on her health and will prove to be a handicap in her later married life. She finds it difficult as a subsistence farmer and a house wife to do her normal work as expected of a village women.

12. The defendant in his evidence said the complainant was married to her and this was her third marriage. They had been married for five years from 2001 to 2005 when they had this problem and have not divorced each other.

13. The defendant said that he cannot recall the date but it was between 7.30 and 8.00pm the complainant and his other wife had an argument at the main entrance outside the his residence. Eventually the both women started to fight in the dark and he tried with the help of the bystanders to dispel the fight at that time.

14. During the fight the other wife was struggling to get herself free from the complainant hands and pulling and pushing each other towards a drain which was a metre deep. They both fell into the drain with complainant first at the base and the other women on top of her. As a result of that incident the complainant broke her forearm. Whilst in the drain she was calling for help as she was in pain.

15. The defendant stated that when the complainant was admitted to the hospital, he meet all the medical and other expenses and took care of her although he was a working husband just as her parents did. After she was discharged from the hospital she remained with her parents but he continued to visit her. After few weeks she deserted the defendant though bride price was being paid to mark the customary marriage and therefore the complainant is still defendant’s wife. The complainant has since remarried another person.

16. The defendant said that the problem was his making presumably for getting involved with another woman but was well cared for and given priority among other family members. However she had no courtesy for other family members.

17. The defendant’s two witnesses gave similar evidence saying that as they walked pass the defendant’s house they heard argument between the two women. Both of them started to fight towards the drain and fell into the drain. Complainant fell into the drain first and the other woman fell on top of her. The complainant started calling out saying her bone was broken whilst inside the drain and was assisted by witnesses and bystanders.

18. Issue No.1: Whether it was defendant ( Wesley Loko ) who assaulted the complainant.

The complainant in her evidence states that she had an argument with the defendant and not other woman as claimed by the defendant. The evidence of defendant is quite opposite to what complainant’s has given. This raises the question of who is telling the truth.

19. Firstly the complainant said that she had witnesses who were there but did not want to call them because they would give evidence in support of the defendant as he is from Henganofi so what she has stated in her affidavit is the true record of the incident. It is interesting to note that the evidence of defendant and that of his witnesses are similar in which they have tried to put the blame on the woman. This particular woman has not been identified nor has she been called to give evidence. If the defendant is genuine about his innocence then he should have called the woman to testify to the court about her involvement in the fight with the complainant.

20. It seems that the evidence of defendant’s witnesses have been framed and fabricated to shift the blame to the another person who happens to be his other wife. Without proper identity of the other wife, the defendant could be talking about a ghost woman.

21. In all fairness the court is of the view that although the complainant had no witnesses, her evidence should be believed as the cause of a broken forearm would have resulted from the force applied. The complainant in her evidence said that the defendant used a bamboo stick and hit her twice. On the balance of probability I am convinced that the defendant assaulted the complainant.

22. Issue No. 2 : Whether the injuries resulted from use of bamboo stick.

There is no dispute that the complainant sustained injuries to her right forearm which the defendant admitted taking care of her at the hospital. He presented a scenario where he states that the injury sustained by the complainant resulted when another woman fell on top of the complainant into a drain which was a metre deep.

23. The complainant in her statement stated that the defendant hit her twice with a bamboo stick. Her statement is further supported by medical evidence indicating 60% functional loss to her right forearm. Given the two scenarios by the parties, the question is which of the incident is likely to cause a fracture to a bone?

24. In considering the scenario presented by the defendant it is probable that a person falling in to a drain that is a meter deep on top of another is not likely to cause any fracture to a bone. The reason being that a drain which is a metre deep is too shallow for a force to build its momentum as it is falling into the drain. On the other hand the complainant stating that a bamboo stick was used to hit her twice in my view can cause a fracture to a bone because the force likely to be employ is greater. It is probable that the defendant hitting the complainant with a bamboo caused fractured to her right forearm and therefore is liable to pay compensation as damages for injuries.

25. The complainant has produced in her evidence that the medical opinion has revealed that the use of her right forearm will not be as effective as prior to the incident and assessed that it had a 60% loss in its function. This is due to the right forearm being fractured as a result of force being hit with a bamboo stick.

26. In determining the amount of compensation, few of the cases a used as a guide. In Korroy,Tovue &Kolok –v- MVIT [1991] PNGLR 415 .This case involved male villager s who received injury to their legs with 10% disability and were awarded damages in K5,000.00 and K9,000.00 respectively. In another case of Wenam Elkum , Ivai Genbi –v- The State [1988] PNGLR 662. A youth age 19, a villager and subsistence farmers had a pelvic fractured involving a urethra and minor eye injury 10% and of leg with onset of osteoarthritis and awarded K9,500.00. Another plaintiff Ivai Genbi a villager of 25years had a fracture of tibia and right elbow and ligamentous damage 5% loss and was awarded damages in the sum of K7,000.00.

27. In the instant case the complainant is a 40 years old house wife and a subsistence farmer who had a fractured right forearm with 60% loss in the use of her right hand and will live with that handicap perhaps for rest of her life. In the cases cited above the plaintiffs received multiple injuries. The complainant suffered a single injury and a general damage of K7000.00 is awarded.

______________________

Lawyer for the Informant: Police Prosecution
Lawyer for the Defendant: In Person