Maima v Negisato [2011] PGDC 12; DC1066 (9 February 2011)

DC1066

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL (GRADE FIVE) JURISDICTION]
GFCi 87 of 20I0

BETWEEN

GOLA MAIMA
Complainant

AND

ROBERT NEGISARO
First Defendant

BEN JOHNSON
Second Defendant

GUARD DOG SECURITY SERVICES
Third Defendant

Goroka: G.Madu

2010: July 29 August 18
: September 15 October 6, 27
: November 18 December 7
2011 : January14 February 7, 9

CIVIL LAW – Claim damages for bodily injuries – assaulted with with bush knives, security buttons, dog lead, off cut timbers, stones, and kicked with boots –inflicted injuries – cuts on head, face, lips, nose bent and fractured ribs Evidence – sufficient and overwhelming – first defendant liable for assault – second and third defendants vicariously liable for first defendant’s action – damages awarded to complainant.

Cases Cited :

The State –v- Philip Susuve Raipa [1994] PNGLR 458
Mamando -v- Goiya [1992] PGNC 13, N1066 (1 June1992)
Pepena –v- Malabas[1991] PGNC 8, N960 (8 March 1991)
Roka Coffee Estate Pty Ltd –v- Largo Genegi [1973] pnglr 486.

References :

Counsel
Gola Maima, In Person for the Complainant
Nil, In Person for the First Defendant
Ben Johnson, In Person for Second and Third Defendants
9 February 2011.

REASONS FOR DECISION

G Madu,PM . : The complainant claims compensation in the sum of K10, 000.00 for multiple and severe pains and injuries sustained to his head, face, nose, lips and the body.

FACTS

2. The facts to which complainant alleges are that on 21th of February 2010 at West Goroka Rodcliffe Construction Site, the first defendant commandeered a fleet of three vehicle belonging to Guard Dog Security Company with more than 40 guards to the site, shouting; “Em tasolk ya, kilim em” (He’s the one, kill him.)

Heavily armed with bush knives, batons, dog collars, sewn timber off cuts, stones and boots, the first defendant and his men took the complainant unaware by surrounding him and viciously and in a brutal manner, had him beaten up right at his working site.

The complainant was mercilessly beaten up with such brutal force and use of weapons for potential fatality that he was unconscious at the scene of the attack. He was beaten up with the sewn timbers, slashed twice with bush knives on his head, punched and booted on his face and body, whipped by the dog collars on the hard surface resulting him being unconscious.

Inside the third defendant’s base car park, the complainant was thrown from the vehicle to the ground and more of the defendant’s guards joined in and continued the attack unabated until a bone cracking sound came from the back. The complainant’s limbs and other parts of his body went numb because his body could no longer sustain the ferocious beatings. As the complainant was about to be driven off to the police station, the first defendant ordered the driver to stop the vehicle and he personally entered the company vehicle and booted the complainant’s nose, resulting in broken swollen nose and heavy bleeding.

The first defendant’s action prompted more guards to enter the vehicle and resumed their beatings upon battered and lacerated body before the complainant was transferred to another vehicle obviously to avoid detection because the vehicle had a pool of the complainant’s blood.

The complainant claims that the First Defendant is a Field or Operations Commander of Guard Dog Security Services in Goroka (herein named as the Third Defendant), whilst the Second Defendant is the Goroka Branch Manager, also of the Third Defendant.

Being in managerial positions according to their management or command structure tasked with responsibilities and command by their employer (third defendant), the two defendants have their duties and obligations towards ensuring that their subordinates discharge their duties properly within the scope of their duty statements as guards. Both defendants shall be liable for any such misdemeanour or wrongdoings that any of the guards under their command commits as employees of the third defendant.

The Third Defendant is an incorporated entity that conducts security related businesses in PNG and being the employer of the two defendants and their subordinates, it shall be vicariously liable for the conduct, actions or omissions done by the first and second defendants, as well as their subordinates within capacity of their employment.

The complainant makes his claim against the first defendant for serious and permanent injuries including rib bone fractures he sustained from the first defendant and second and third defendants vicariously liable for actions of the first defendant and his guards.

The defendants denied that there was no such incident of brutal assault reported nor were they involved.

ISSUE

4. There are two (2) issues and these are:-

(i) Whether the first defendant assaulted the complainant.

(ii) Whether both the second and third defendants are both vicariously liable for the actions of the first defendant and the guards.

5. The complainant filed four affidavits whilst the defendant also filed four affidavits. Only complainant was cross- examined on his affidavit whilst the rest of the complainant’s and all of the defendant’s witnesses were not cross – examined.

COMPLAINANT’S EVIDENCE

6. The complainant evidence generally stated that on 21st of January 2010 at about 8.15am was back filling soil along the drain way and saw 3 guard dog truck loaded with armed security personels. The three(3) vehicles, one Daihatsu Dyna (White) Registration No. LAS 811, Car # 98, Toyota Land Cruiser 10 Seater (white) Registration No. LAS 811, Car # 87. The vehicle stopped where the complainant was working.

All of a sudden, 30 – 40 armed Guard Dog Security Personals jumped out of the vehicles shouting aggressively and walked towards the complainant and were fully armed with Rambo Bush Knives, security buttons, dog lead, off cut timbers and stones.

Without asking ay questions, they shouted, “em tasol kilim em”. They all at once swung punches and hit the complainant with buttons and dog lead. The complainant was not able to defend himself and was severely wounded.

The complainant fell unconscious on the ground, the guards kicked him on the ribs and face and threw him into one of the vehicles, a Toyota Land Cruiser 10 Seater (white) Registration No. LAS 811, Car#87 and drove to their base. As they drove to the base, the complainant begged the first defendant to drive him to the Police Station but he replied saying “Nogat” and ordered the driver to drive to their base. At the base they pulled the complainant out of the vehicle and started hitting and punching him and more security guards joined in. By that time the complainant felt that one of his ribs was broken and his leg was getting numb. The beating took almost 30 minutes using offensive weapons, hands and legs.

While the complainant was lying in the vehicle, bleeding all over his face, the manager Mr. Ben Johnson told the guards “enough now, you people have beaten him badly, take him to the Police Station right away”. The guards then lifted him up and threw him into the same vehicle Toyota Land Cruiser Reg. No LAS 811.

When the driver started the vehicle the first defendant ordered the driver to stop the vehicle. He then went inside the vehicle and kicked the complainant hard on his nose whilst lying unconscious. He felt something landed on his face and smashing the nose and started to bleed heavily from the nose and could not breath.

At the Police Station the complainant was forced to walk up although he was hurt and weak and feeling dizzy and bleeding all over his body.

The policemen attended to the complaint lodged by the first defendant with investigation and interrogation done and found that the complainant was falsely accused and abused. The policemen then told the first defendant that complainant was innocent and therefore he made a big mistake by brutally assaulting the wrong person.

The second witness John Joseph employed as a Public Relations Officer by Rodcliffe in his statement stated that on 21st January 2010, at about 7.30 am he was at the site near Lutheran Church and International Primary School when 3 vehicles belonging to Guard Dog Security Services, two Toyota Land Cruiser and 1 Toyota Delta Dyna were loaded with 30-40 guards were armed with Rambo bush knives, dog lead, timber and stones and were saying “ya kilim em, kilim” The witness said they brutally assaulted the complainant resulting in bleeding heavily for no reasons.

The third witness Rocky Gene is employed by the Police Department and recalled that on 21st January 2010 he was on duty at the Police Station when two Land Cruiser owned by Guard Dog Security Services drove into the Police Station. At the duty counter the first defendant Robert Negisaro presented the complainant suspected for stealing. This witness testified that he saw that the complainant was brutally assaulted and was bleeding. He said that there was no proof on the allegation of stealing and therefore no formal charges could be laid against complainant.

This fourth witness Philip Simon basically stated that he was present on 21st January 2010 and was working with Gola Maima near Lutheran Church and International Primary School when the three vehicles load of security guards came and stopped and 30-40 guards armed with Rambo knives, timber and stones attacked the complainant and was brutally assaulted resulted in heavy bleeding.

MEDICAL EVIDENCE

7. Gola Maima was attacked by a group of Guard Dog Security guards on 21st January 2010. He complains of injury to his face, chest and back after being falsely accused of stealing.

On examination there were 2 cut on the back of his head, his nose bent, bleeding and swollen and he sustained cut to his upper lips. He also had x2 at his back and it was tender. He was sutured for his laceration on his scalp and lips and given tetox 0.5mg imi stat,xpen 4ccimistat and discharged with Amoxyll and Panadol to take home for 1 week.

On review on 26/01/10 he still complains of severe pain on his to lateral chest at the 12th thoracic level. X ray (#D36) confirms bilateral fracture of 12thribs right and left. He is treated with Amoxyll and Indocid for 1 week and advised rest for 8 weeks

Therefore this patient has suffered facial injury, head injury and broken X2 ribs as a consequence of a brutal attack.

On my assessment I have awarded him:

• 20% for psychological trauma
• 50% for physical injury and loss of function with some disability
  

A total of 70% is awarded to him as a result of this brutal attack.

DEFENDANT ‘S EVIDENCE

Basically all the four witnesses who have deposed their affidavits have all denied saying that they are not aware nor have committed any acts or omissions complained off by the complainant which occurred on 21st January 2010.

Issue No.1 –Whether the first defendant assaulted the complainant.

The complainant in his evidence stated that on the 21st January 2010 he was at the construction site around 8.00am he saw 3 Guard Dog Security Services vehicles stopped where he was working and 30 - 40 guards armed with Rambo knives, buttons, timbers and stones rushed to him and brutally assaulted him without any reasons. The defendant and his witnesses have categorically denied the whole incident and said such incident did not take place. The complainant two witnesses John Joseph and Philip Simon were present at that time and saw what took place. It was in the morning at around 8.00am in the broad day light which the two witnesses clearly saw. This court cannot understand the logic of total denial by the defendant and his witnesses when the eye witnesses have testified that the incident happened in their eyes.

It is probable that the witnesses were able to identify the Guard Dog Security 3 vehicles and would not have made any mistake as to whom the guards were employed by. Even the policeman Rocky Gene could identify the Guard Dog Security vehicles parked in the police station and the complainant brought into by the first defendant and his guards. The policeman clearly noticed the complainant brutally assaulted and heavily bleeding. He ordered for complainant to be taken to the hospital.

Further the complainant did not know why he was assaulted. He was assaulted for good reasons. Even at the Police Station when interrogation was done no prove was given on the first defendant allegation of stealing. No facts were produced at the police station. It is obvious that the First defendant and cohort of guards had their own agendas to fulfil and took upon the complainant who was innocent and suffered from a mob attack of the Guard Dog Security guards.

All the evidence given by the complainant corroborated by his witnesses which proves his case on the balance of probabilities that the first defendant brutally assaulted the complainant and incited the guards to also assault the complainant with Rambo knives, buttons, timbers and stone resulting in serious physical and permanent. Accordingly I find First Defendant liable for assaulting the complainant.

Issue No.2 – Whether both the second and third defendants are vicariously liable for actions of the first defendant and the guards.

The second defendant Ben Johnson is the Branch Manager of Goroka Branch of Guard Dog Security Services. His position as a manager is tasked with responsibilities to ensure that the subordinates discharge their duties properly within the scope of their duty statement as guards. The question is whether the first defendant acted within his scope of duty. I am of the view that the first defendant assumed the role of the police to go and find the complainant if he is alleged to have committed an offence. Further the way he had his guards organised to come for the complainant was improper. How could mobilise into 30 -40 guards to come with such force to get only one person who could not stand against them and who was busy at work and would not have resisted had he was approached in a proper manner.

The second defendant failed to make enquiries as to why the first defendant mobilised the guard. Because he failed to intervene, the first defendant mobilised the guards and proceeded to the complainant’s work site and brutally assaulted him without good reasons. The second defendant omitted to perform his responsibilities to enquire why the complainant was wanted by the first defendant and to resolved matter. He failed to take control of his supervisor and the guards therefore he must be found liable for the actions of the first defendant.

The third defendant is an incorporated entity and conducts security related businesses in Goroka. The two defendants are employed by the third defendant and are responsible to their subordinates including the guards. By actions of the defendant it was implied that the third defendant authorised the first defendant and the guards to assault the complainant and caused him to sustain serious and permanent injuries. In the case of Roka Coffee Estate Pty Ltd –v- Largo Genegi [1973] PNGLR 486 it was held “....The traditional view is that the master is liable for the servant’s torts committed within scope of his employment...” I find that the second and third defendants are vicariously liable for the tort committed by the first defendants and the guards.

DAMAGES

In considering the quantum of damages, the following cases are referred to which have been decided by Higher Courts in our jurisdiction on damages awarded in assault cases. In the case of Mamando –v- Goiya [1992] PGNC 13, N1066 (1June 1992), Justice Woods awarded a sum of K4,000.00 where the husband bit off the front cartilaginous part of the nose of his wife. In case of Pepena –v- The State [1991] PGNC 8, N960 (8 March 1991) Justice awarded K2,000.00 where the plaintiff was punched and kicked by the police. He suffered black eye, swollen face, bruises and laceration to his head, face. Shoulder, elbow, knee and foot. In the case of The State –v- Philip Susuve Raipa[1994] PNGLR 458, the accused on pleading guilty to drunken assault on victim with rock where the victim sustained severe head injuries, the National Court awarded K5,000.00 compensation under the provision under the Criminal Law (Compensation) Act 1991. The National Court said that the award could have been higher if it was made under a Civil Suit. The maximum the court award is K5,000.00 as compensation in a criminal proceeding under the Criminal Law (Compensation) Act 1991.

In the present case the complainant suffered facial, head and broken ribs. Accordingly I award damages for psychological trauma and physical injury and loss of function with some disability.

In the light of the National Court cases cited on the amount of compensation awarded, I consider the amounts between K5,000.00 and K10,000.00 would be reasonable for personal injuries. I order that the sum of K5,000.00 is appropriate in the circumstances. I enter judgement of K5,000.00 in favour of the complainant with cost and interest. I order that the judgement be paid by the Third Defendant, Guard Dog Security Services.

Orders Accordingly.

__________________________
Lawyer for the Complainant Gola Maima In Person
Lawyer for the Defendant Ben Johnson In Person