Mota v Yangi [2011] PGDC 4; DC1063 (14 January 2011)

DC1063

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL (GRADE FIVE) JURISDICTION]
GFCi 106 of 2010

BETWEEN

ALICE MOTA
Complainant

AND

MATHIAS YANGI
Defendant

Goroka: G.Madu

2010 : November 19, 26
2011 : January 14

CIVIL LAW – Claim damages for bodily injuries - assaulted by punching on the eyes – spear tackled and threw down the hill - swelling and bruises impairing vision to the eye – multiple scalp (head) bruises and swelling – Left 5th finger fractured bone – cheek swelling – action unjustified – damages awarded.

Cases Cited :

References :

Counsel
Alice Mota, In Person for the Complainant
Mathias Yangi, In Person for the defendant
14 January 2011.

REASONS FOR DECISION

G Madu,PM . : The complainant claims compensation in the sum of K10,000.00 for multiple facial and bodily injuries she sustained as a result of assault by the defendant..

FACT

2. The facts are on 17th October 2009 at Minogere Police Barracks the complainant went to enquire about the TV that was missing from the house. The defendant actually removed the TV, did not respond to the complainant’s queries and walked away thus forcing the complaining to say insulting words to draw the defendant’s attention.

3. The defendant viciously assaulted the complainant by repeatedly punching her and even spear tackled her onto the hard ground. The complainant was defenceless, as the might and brutal force and strength of the defendant overpowered the complainant who eventually lost vision from the repeated punches she got on her eyes.

4. Apart from the heavy loss of blood, the complainant sustained cuts to her eyes resulting in impaired visions, cut to her head with huge swelling, fracture of her left phalangial finger and swelling to her cheeks all of which were painful for some weeks.

5. Though the complainant was treated with medication she recovered spontaneously over a period of time, her fractured left finger had rendered her a significant deformity which appeared to be a permanent injury, whilst she still had a painful jaw of which, her medical reports attested to it.. The injuries have caused the complainant to suffer from severe pain, discomfort and hardship in attending to her daily chores of duties, as well as being denied other economical benefits.

ISSUE

6. There is only one (1) issue and that is:– Whether the defendant was justified in assaulting the complainant.

7. The complainant provided her only affidavit and was cross-examined while the defendant also provided his affidavit but was not cross-examined.

COMPLAINANT’S EVIDENCE

8. The complainant’s evidence generally stated that she had been living with the defendant since 2009 and both have two children from that relationship, one is 11 months and the baby is 8 months.

9. Their relationship has been a problem one where the defendant did not have a caring attitude towards the complainant and her children. He has been having affairs with other women and the complainant has had some confrontation with these women resulting in assault charges being laid against her.

10. The defendant did not provide proper financial support to the complainant and the children thus resulting in fights. The complainant in fear of her life and wellbeing of the two children, decided to leave the defendant and go back to live with her parents.

11. On 17th October 2009, the complainant went with her 11months old son to see the defendant at Minogere Police Barracks. When the complainant entered the house she saw that the TV was missing so she questioned the defendant about it. The defendant did not respond but walked out of the room. The complainant followed the defendant to his sister house. The defendant did not respond so the complainant swore at him to draw his attention.

12. The defendant when hearing the insulting words turned and punched the complainant on her eyes and at that instance she lost her vision so he grabbed the baby and passed him to his sister. He punched the complainant again on her eyes and spear tackled her on to the hard ground and then repeatedly punched on her face and eyes. The defendant then lifted her and threw her down the slope to neighbour’s garden and was lying helplessly among kaukau garden and could not see as a result of punches she received. The defendant again punched her again on her face and head.

13. From all the punches the complainant received, she was bleeding from her nose, ears and eye brows. Her jaw was dislocated and little left finger was broken when she was spear tackled.

14. On 22nd of October 2009, the defendant went to complainant place of work at Kwila Insurance located at Henganofi Co-operation Building and wanted to talk to the complainant but she refused. He jumped over the counter and assaulted the her. It is humiliating and embarrassing to be beaten up at place of work in front of workmates and others. The action of the defendant at the place of work has a negative impact on the complainant employment. When he is not supporting the family then it is her job that is meeting her every day need with the children..

DEFENDANT ‘S EVIDENCE

15. The defendant in his evidence stated that the complainant had the attitude of deserting him and staying with her family at Seigu, East Goroka. The complainant after living away for a month came to the house and accused him of assaulting her.

16. The complainant knocked on the door and the door was opened and she was allowed with the kids into the house. The complainant started insulting the defendant with the words to wit “Kaikai kan, kan face, TV we? ” She said the insulting word for some minutes. The defendant was shocked and ashamed of him being insulted and responded quietly that the TV was borrowed by a Police Sergeant’s children, our neighbour and will return when they finish watching. She did not believe the defendant and continued to insult the defendant.

17. The defendant felt bad about her continuous insult directed at him and could not bear and walked out of the house up the hill to his sister’s house which is 50 metres away from defendant’s house. The defendant was about half way to his sister’s house when he heard the same insulting words repeated saying Kaikai kan, kaikai kan, kan face” and following him after.

18. Beside the defendant’s house, the Senior Constable was mourning death of his wife and the complainant was stubborn and did not show respect but continued to say insulting words.

19. The defendant knocked on his sister’s house and asked for cold water and surprisingly the complainant came at the back and continued growling and insulting the defendant. Everybody at the Haus Krai stood up to see what was happening between the complainant and the defendant which made the defendant so stupid and ashamed so he lost the temper and assaulted the complainant.

MEDICAL EVIDENCE

20. The medical report stated was jointly sign by Dr. William N. Moi (MBBS, PhD) Plastic, Reconstructive & Cosmetic Surgery Department. The report stated that an unfortunate female reported to outpatient Department on 17- 10- 09. She complained of multiple injuries to her head, face and left hand, sustained as a result of domestic violence (based up by her husband). On closer physical examination, the following injuries were elucidated:

➢ Left peri-orbital (around the eye) swelling & bruises impairing vision.
➢ Left sub-conjuctival hemorrhage (bleeding & collection of blood below the clear, protective coating of the eye) also impairing vision.
➢ Left zygomatic (side of eye brow) area abrasions & swelling.
➢ Multiple scalp (head) bruises & swelling.
➢ Left 5th (small) finger, proximal (closer to the base of the finger) ¼ fracture of proximal phalangial ( finger) bone & displacement with gross swelling and stiffness of that joint.
➢ Right buccal area (cheek swelling)

21. The patience was treated with analgesics (anti-pain) medications, ant-inflammatory medications to reduce swelling and antibiotics to control infection.

22. The patient was again examined on 18-01-10 (after 3 months). She was in a state of depression. However, she has recovered fully from all other injuries except the left, small finger which has a very significant deformity:

➢ Stiffness of that joint
➢ Flexor contracture of (difficulty straightening) that finger
➢ Angulation of the healed but mal-aligned (not straight) finger bone
➢ Tenderness(intermittent pain on usage of that finger)
➢ Interference with the normal use of the other 4 fingers

23. The patient has a tender (painful), slightly swollen temporo-mandibular (jaw) joint area.

24. Therefore, she may require further investigations of the right jaw bones & joints by our team and also to correct the deformed, left small finger.

Issue- Whether the defendant was justified to assault the complainant

25. The only issue the court to deliberate on was whether the defendant was justified in assaulting the complainant? The complainant provided her only affidavit evidence in which she said that she enquired about the TV which she realised when she entered the house was missing and when the defendant failed to respond she became very abusive. From her evidence it is clear that she instigated the whole problem. She also highlighted that her relationship with the defendant was a problem one because the defendant was not steady as he had other mistresses he was seen.

26. The defendant in his affidavit disclosed that the complainant had the habit of leaving the house when argument arose between the two of them. On that material time the incident occurred the complainant was very abusive which made him shame and could not hold back his temper and assaulted the complainant.

27. Though both the complainant and the defendant had their reasons for acting in such manners the issue is whether defendant was justified to inflict injuries on the complainant. I am of the view that the defendant did used excessive force to assault the complainant resulting in infliction of multiple injuries. The medical report supports the complainant case which shows that she did suffered physical injuries to her body and therefore damages should be awarded in her favour.

28. In deciding the amount of damages, following cases are used as a guide. In Sangasib –v- Motor Vehicle Insurance (PNG) Trust [1991] PNGLR 453, this case involved a Community Health Worker, Enthusiastic sportsman had a foot injury and was awarded K6,500.00, had loss of 10 percent in efficient use of left foot. In another case of Kar Kirai –v- The State [1990] PNGLR 563, involved a male aged 21, had an uncomplicated fracture, good recovery and was awarded K5,000.00 general damages. Another case of Sapa Landao –v- Independent State of Papua New Guinea [1988] PNGLR 279 involved a male person of mid fifties who had an head injury, 5 days unconscious, continue difficulty with walking long distance and keeping balance, awarded K9,000.00 general damages.

29. In the instant case the complainant is a young women of late 20’s and mid 30 years and sustained multiple injuries to her eyes, cheeks/jaws and left finger and therefore there is no effective use of the left finger.

30. Having considered the above mentioned cases as a guide, the sum of K5,000.00 is awarded plus cost and interest to be paid within four months.

Orders accordingly.

___________________________________
Lawyer for the Complainant Alice Mota In Person
Lawyer for the Defendant Mathias Yangi In Person