Bunbun v Boski [2019] PGDC 18; DC4053 (21 October 2019)

DC4053

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

GFCV 02 of 2019
BETWEEN

Sylvester Bunbun
Complainant

AND

Steven Boski

AND

Dickson Felix

Defendant

Kerevat: SLavutul

2019: 04^th, 28^thJune, 26^th, 27^th July, 30^th August, 23^rd September, 18^th October

CIVIL PROCEDURES: General Damages –Exemplary Damages– Tort of Assault- Injuries to body and person of Complainant – Claims for Damages and Costs of Proceedings – Findings of Liabilities – Assessment of Damages.

Cases Cited
Nil

References
District Courts Act

Appearance
Complainant appeared in person
Defendants appeared in person

Held:

1. That each Defendant is liable to the tort of assault on the Complainant. It was Defendant Dickson Felix’s idea for retaliation which resulted in the assault and injuries on the Complainant. It was by his actions that led to the end result.
2. That the injuries sustained by the Complainant were direct results of the Defendants action.
3. That the Complainant’s actions and behaviour prior to the incident also contributed to the assault on his person and body.
4. That the Complainant did sustained injuries and suffering complained of as a direct result of the assault inflicted on him by the 01^st Defendant Steven Boski.
5. That the Defendants are liable to pay damages and costs of proceedings.
   

DECISION

21st October 2019

Samuel Lavutul, Principal Magistrate; This matter came before me by way of civil complaint filed by the Complainant Sylvester Bunbun against Defendant Steven Boski on the 25^th of March 2019 before the Kerevat District Court.

2. The Complainant claims that on the 01^st of January 2019 at Ramale Ward, Gazelle District, East New Britain Province the Defendants were in each other’s company unlawfully provoked, insulted, threatened with violence and assaulted the Complainant.

3. The Complainant further claims that as a result of the assault inflicted by the Defendant on his person he sustained the following injuries;

• Generalised soft tender injuries all over his body
• Loss of one (1) lower canine tooth
• Bruises to lower lips
• Puncture injuries to face

4. The Complainant claims he was observed and received medical treatment at the Nonga Base Hospital Outpatient Department. The Complainant claims as a result of the assault, he suffered pain and suffering, inconveniences, humiliation and depressed.

5. The Complainant aggrieved by the actions of the Defendant prays the court for the following orders;

1. That the Defendants pay to the Complainant a sum of K4, 500.00 each totalling K9, 000.00 as compensation for damages.

2. The each Defendant pays K150. 00 each for costs, totalling K300

3. Any other orders the Court deems fit

6. During pleadings on the 26^th of July 2019 both Defendants denied liabilities as they claimed the Complainant did provoked the situation assaulting the second Defendant first. Thus then raises the issue on whether the Complainant was at fault and had contributed to the situation which resulted in the assault on him by the Defendants.

7. It is not disputed that all parties were present at Ramale Ward in the Reimber Livuan Local Level Government, Gazelle District East New Britain Province prior to and during the alleged assault on Complainant Sylvester Bunbun in the early hours of the 01^st of January 2019.

8. It is also not disputed that all parties in this proceeding were under the influence of alcohol prior to and during the early hours of the 01^st of January, 2019.

9. The Complainant claims after having spent some time at Benedict Towarwakai’s residence at Ramale ward in the early hours of the 01^st of January 2019, he then decided to stroll back home to Vunaulaiting village as he is local from there.

10. He further stated that as he was walking back home he came across a good mate of his by the name of Alois Vunuvung and they shared some jokes with him. The Complainant added whilst he was joking with Alois he was surprised the second defendant Dickson Felix came from behind him charged at him with a swinging arm. He claims he held Dickson Felix in both hands and asked him what has he done wrong? He stated the other boys came and separated them both. The Complainant claims he did not retaliate against Dickson Felix nor threw a punch at him.

11. He added Defendant Dickson Felix drove off and returned with a group of boys whilst he was already at the residence of his cousin sister namely Teget Tirilut. He claims they were surprised to see the arrival of a group of boys including the two (2) Defendants. He claims they blinded his eyes with a flash light and stated he could hear Steven Boski swearing and pulled him away. He swore in kuanua language saying, “I turadavai ra kuri dital” he added as he is from Turadavai.

12. The Complainant claims Defendant Steven Boski punched him and he fell to the ground and he continued to punch him on his chest whilst on the ground. He added he felt a lot of pain on his chest and head. He revealed that he could not get up so he was assisted by some boys to get on his feet and they assisted him to his sister’s house. A medical report tendered in evidence dated the 21^st of January 2019 by HEO A Yariyari from Nonga Base Hospital by the Complainant marked and labelled Exhibit A confirmed that the Complainant was assault and suffered and treated for the following injuries;

• Generalized body ache
• Chest pain anterior and mid chest
• Loose mobile canine tooth lower set x 1
• Swollen lip
• Left sided facial swelling (H)

13. He admitted his uncles after seeing his condition and was going to retaliate but they changed their minds; however they decided to go to Dickson Felix and demanded for compensation just to maintain peace and harmony amongst them.

14. In response Defendant Dickson Felix claims it was the Complainant that swore at him saying, “yu kaikai kan” after they had met on the road whilst the Defendant trying to assist one namely John Bokoro with a flat tyre. This was confirmed by witnesses for the Defendants namely Steven Pinarua and Augustine Rarang who were present on the night of the incident. He claims the Complainant had held him tightly and fell to the ground and he tore his shirt and jacket in the process.

15. This then resulted in the assault by Defendant Steven Bunbun on the Complainant as a direct retaliation for what the Complainant did to Defendant Dickson Felix which led to this proceeding.

16. I therefore arrived at the following findings;

6. That each Defendant is liable to the tort of assault on the Complainant. It was Defendant Dickson Felix’s idea for retaliation which resulted in the assault and injuries on the Complainant. It was by his actions that led to the end result.
7. That the injuries sustained by the Complainant were direct results of the Defendants action.
8. That the Complainant’s actions and behaviour prior to the incident also contributed to the assault on his person and body.
9. That the Complainant did sustained injuries and suffering complained of as a direct result of the assault inflicted on him by the 01^st Defendant Steven Boski.
10. That the Defendants are liable to pay damages and costs of proceedings.
    

17. Defendant Steven Boski in his addressing the court on the assessment of damages pleaded with the court to consider the fact that the amount of K9, 000.00 claimed by the Complainant was excessive and that the Complainant contributed to the assault in that he first assaulted the second Defendant Dickson Felix.

18. In addition the second Defendant Dickson Felix pleaded with the court that the sum claimed is manifestly excessive. He seeks the court to consider the fact that he and the 01^st Defendant have made some payments to the Complainant to the sum of K200.00 plus 60 fathoms of shell money as first payment on the first of January, 2019. He added they both paid another 90 fathoms of shell money, plus K1000.00 at the Rabaul Police Station to the Complainant therefore in total they would have paid a total of K1200.00 in cash, plus 90 fathoms of shell money. In total the Defendants have paid the sum of 90 fathoms of shell money equivalent to K630.00 plus cash of K1, 750.00, totaling K2380.00 in cash.

19. The Complainant in his response agreed the Defendants did pay to him the sum of K2, 380 in cash. He pleaded with the court to consider awarding costs against both Defendants in that he spent K300 for lawyer to draft his summons and complaint, K6.00 for court service fees and K120 for bus fares. He also pleaded with the court to consider the fact that he did sustain injuries and he is still being affected by the assault and he has a tooth that is movable till today.

20. As per my earlier ruling the Complainant and both Defendants were equally responsible for what transpired on the 01^st of January, 2019. The two Defendants in my view are responsible for 50% of what they did to the Complainant and the Complainant is responsible for 50% as his contribution of what had occurred to him.

21. I consider the sum of K5, 000.00 in general damages best fits the actions and omissions by the Defendants. However, due to the fact the Defendants have paid a sum of K2, 380 prior to this proceeding; the sum of K2, 380 be deducted from the total sum of K5, 000.00 in damages. The Defendants would settle the remainder of K2, 620. 00 in general damages.

22. I will award exemplary or punitive damages to the sum of K500.00 each against each Defendant totaling K1, 000.00; plus K470. 00 as costs of proceeding and bus fares against both Defendants.

23. Therefore Defendant Steven Boski shall pay to the Complainant the total sum of K2, 045.00 in damages inclusive of costs and Defendant Dickson Felix shall pay to the Complainant the sum K2045.00 inclusive of costs totaling K4, 090.00 by the end of February, 2020.

Orders to be entered accordingly.

Complainant Appeared In Person.

Defendants Appeared In Person.