James v Johnson [2011] PGDC 5; DC1068 (21 January 2011)

DC1068

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL (GRADE FIVE) JURISDICTION]
GFCi 67 of 2009

BETWEEN

JECCY JAMES
Complainant

AND

BEN JOHNSON
First Defendant

GUARD DOG SECURITY SERVICES LTD.
Second Defendant

Goroka: G.Madu

2009 : November 12, 25 December 16

2010: March 2, 24 April 20, 27
: May 17, 31 July 8, 29
: August 20 September 22
: October 13 November 5, 25
: December 22
2011 : January14, 21

CIVIL LAW – Claim damages for bodily injuries – assaulted with fists and kicked with steel capped boots trunk– injuries inflicted – cuts on head and face.
Evidence – inconsistent and conflicting – general assertion - assailants not identified – liability not proven – case dismissed.

Cases Cited :

References :

Counsel
Jeccy James, In Person for the Complainant
Ben Johnson, In Person for the defendant
21 January 2011.

REASONS FOR DECISION

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

FACTS

2. The facts perceived are that on 14th of August 2009 at Lahani Club about midnight the complainant was dancing on the dance floor, when the first defendant who was drunk at that time held him tight and punched the complainant. Instantly the guards for the Guard Dogs Security on duty and manning the gate at the Lahani Club numbering about 10 to 15 guards joined their boss, the defendant and fought the complainant. As a result the complainant sustained five deep wounds to his head, left and right tempore and chin and suffered severe aches to his body. The complainant wounds were sutured and treated with antibiotics and pain killers at the Goroka Base Hospital.

3. The defendant in defence said the complainant was punched by two boys and then other boys joined in later whilst the defendant avoided being attacked by jumping away from the dancing floor. When the music came to an end and the lights were turned on, the boys by then had moved out of the dance floor and mixed with the crowd and it was hard to identify which boys had assaulted the complainant.

ISSUE

4. There is only one (1) issue and that is:-

(i) Whether the defendant assaulted the complainant.

5. The complainant filed four affidavits whilst the defendant filed five affidavits. Complainant’s three witnesses were cross- examined on their affidavits whilst defendants five witness’s affidavits were not cross – examined because the defendant failed to appear and presented his witnesses.

COMPLAINANT’S EVIDENCE

6. The complainant evidence generally stated that on 14th of August 2009 at about 1.00am he was dancing on the dance floor, the defendant was with some of his friends and with his Guard Dog Security members in uniform and were on duty whilst others members were in civilian and were relatively drunk. Without any apparent reason the first defendant Ben Johnson punched the complainant on the head from the back and he fell down unconscious. Whilst lying on the floor helplessly, the guards continue to assault the complainant by using the buttons, fists, and kicked him with steel capped boots and dragging him on the floor. The complainant from that beating suffered heavy bleeding which required medical attention.

MEDICAL EVIDENCE

7. Jeccy James a 28 year old male adult presented at the hospital on 18th August 2009 at 8.00am complaining about being assaulted by Security Guard. He was fully conscious but in mild pain. Vital signs were stable. There was no active bleeding.

8. The wounds noted were:

• 4x2.5 cm wound on left supra-orbital (eyelash).
• 2x2 cm wound on the left peri-orbital (zygoma) region.
• 4x2.5cm wound on the right temporo-parietal area.
  

He was managed accordingly including suturing of the wounds.

9. The initial percentage awarded for bodily harm, pain and psychological stress, considering also the object used and site of the body, he is awarded 13%.

DEFENDANT ‘S EVIDENCE

10. The defendant’s evidence generally is on 14th August 2009 at 11.00pm he went to Lahanis Club for a dance with his wife and at about 11.20pm went into the dancing floor and sat at the table. The defendant’s wife went over to the counter to buy her drink while the defendant remained at the table chewing bettelnut. The defendant sighted the complainant who appeared to be very drunk. While the defendants wife waited to be served the complainant made a statement to her “Hai ya, nicepela kan long kuapim ya”. The defendant’s wife did not say anything back but after being served walked away to her husband and told him what the complainant had said to her.

11. The first defendant then went over to the complainant and touched him but when he was about to talk to the defendant, two boys surprisingly pulled the complainants hand and punched him and the other boys surrounded them and started to attack both the complainant and the defendant. It created rather a very confusion situation at that time so the defendant jumped out of the group to get himself free and then started to push some of the boys away and put the complainant at his back to defend him. When the lights came on people acted innocent as if nothing had happened. The defendant then lead the complainant out of the dancing floor to the car park. It was at the car park when complainant accused the defendant of assaulting him.

ISSUE

12. The issue is whether the defendant did assault the complainant? The complainant in his evidence claims that the first defendant and his security guards were involved in assaulting him however when cross-examined on the lighting in the dance floor where the fight started, it was said that the lighting was dim and therefore raise some doubt on how sure was the complainants witnesses to identify the guards who were involved in the assault.

13. The other factor the court consider as crucial was how conscious was the complainant to see who his assailants were as the evidence showed and was admitted by the complainant that he was at the Lahanis Club two hours early and it is probable that the complainant was very drunk at that time which affected his capacity to think clearly that night. In that condition it is probable that he was heavily intoxicated to think clearly and to see contributed by dim lighting in the dancing area.

14. Although the complainant in his evidence has sufficiently established that he sustained serious injuries however he has failed on the balance of probability to clear identify the guards involved in the assault. Complainant’s evidence is inconsistent and conflicting which raises doubts as to who really assaulted the complainant. Neither the defence evidence could be relied on because the witnesses were not cross-examined and therefore were not considered by the court.

15. Based on the evidence of the complainant and submissions by both parties, court finds that it is probable that the first defendant did not assault the complainant hence the second defendant is not vicariously liable for the actions of the Security Guards of Guard Dog Security and therefore the case is dismissed.

Orders Accordingly.

__________________________________________
Lawyer for the Complainant Jeccy James In Person
Lawyer for the Defendant Ben Johnson In Person