Liu v Boski [2019] PGDC 19; DC4056 (21 October 2019)

DC4056

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

GFCV 01 of 2019
BETWEEN

Julius Liu
Complainant

AND

Steven Boski

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 Defendants is liable the tort of assault on the Complainant
2. That the injuries sustained by the Complainant were direct results of the Defendant’s action.
3. That the Defendant is 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 Julius Liu against Defendant Steven Boski on the 25^th of March 2019 before the Kerevat District Court.

2. The Complainant Julius Liu claimed that on the 01^st of January 2019 at Ramale Ward, Gazelle District, East New Britain Province the Defendant Steven Boski did unlawfully assaulted him. And the Complainant claims as a direct result of the tort of assault on him he sustained and suffered the following injuries;

1. Injuries to his right eye
2. Lacerations to his left lower lip
3. Injuries to tooth 12, 31, 41 and 42
4. Puncture injuries to his face

3. The Complainant claims to have been observed and received medical treatment at the Nonga Base Hospital. He further claims as a result of the assault by the Defendant he suffered 40% loss of function for efficient use of his mouth and teeth for his normal oral function for mastication, speech and aesthetic etc. In addition the Complainant claims that as a direct result of the assault he suffered pain and suffering, inconveniences, humiliation, depressed etc., for which full particulars will be tendered at trial.

4. The Complainant therefore aggrieved by the actions of the Defendant prays the court for the following orders that;

1. That the Defendant pays the sum of K9, 000. 00 as compensation for damages

2. The Defendant settles costs at K300. 00

3. Any other orders the court deems fit

5. During pleadings the Defendant admitted assaulting the Complainant on the 01^st of January 2019. He further stated the Complainant was drunk including himself and the others, He added the Complainant said something to him and he retaliated by assaulting him and did punch him on his left eye. The Defendant further pleaded he cannot recall assaulting the Complainant any further.

6. It is not disputed that the Complainant and the Defendant are both locals from Ramale Ward in the Reimber Livuan Local Level Government Area, Gazelle District, ENBP and they are related to each other as cousin brothers. They were both present at Shane Tarue’s residence at Ramale Ward on the 01^st of January 2019. They all admitted they were drunk as they were there the whole day until Dickson Felix arrived in his bus and demanded the Complainant and the Defendant including others to get on with him in his bus as he claimed he was assaulted by one Sylvester Bunbun of Vunaulaiting Ward in the Reimber Livuan Local Level Government, Gazelle District, East New Britain province.

7. They all got on the bus and Dickson Felix drove off with them and as they arrived next to Dickson Felix’s house; the Defendant Steven Boski and Dickson Felix got off the bus to fight Sylvester Bunbun. It is not disputed that as they confronting Sylvester Bunbun, Dickson Felix had a terrible tummy ache and was lifted into the bus.

8. I wish to restate that the Defendant Steven Boski admitted in pleadings that he assaulted the Complainant Julius Liu. He admitted he punched the Complainant on his left eye and he could not recall assaulting the Complainant any further. He also revealed the Complainant was drunk including himself and the others.

5. The only issue before me is “whether the injuries sustained by the Complainant were direct results of the assault on him by the Defendant on the 01^st of January 2019 at Ramale Ward, Reimber Livuan Local Level Government in the Gazelle District”.

7. In answering the issue on “whether the injuries sustained by the Complainant were direct results of the assault on him by the Defendant on the 01^st of January 2019 at Ramale Ward, Reimber Livuan Local Level Government in the Gazelle District”. It is obvious from the admission by the Defendant I find that the injuries sustained by the Complainant were a direct result of the Defendant’s action. I find the Complainant did not contribute either fully or partially to the tort of assault on him by the Defendant. The nature of the words uttered by the Complainant in my view were not provocative in nature but was a call of concern on his part after the person Sylvester Bunbun which assaulted by the Defendant and have been badly hurt and needed medical attention.

8. Despite the Defendant’s contentions that he only punched the Complainant once evidence by the Complainant shows that as an immediate result of the assault he fell to the ground and lost consciousness for some time and after he regained consciousness he was assisted by persons namely, Ms Miriam Kaian and Mr. Ezra Kubak to his house.

9. The Complainant did inform the Defendant of the assault on his and that he had sustained injuries to his left eye teeth. The evidence shows that the Defendant did apologise to the Complainant and also stated that he did not know that it was him (Julius Liu) that he had assaulted.

10. I find and as a token of remorse for his actions he gave ten (10) fathoms of shell money and K50. 00 cash to the Complainant. However the Complainant’s mother after seeing the sum in shell money and cash payments by the Defendant, she told the Complainant that such was insufficient by then the Defendant had gone back to Lihir Island and the Defendant’s father gave a further K100 in cash in which the Complainant used it for medical fees at the Nonga Base Hospital.

11. I find from the initial medical report for the Napapar Health Centre by Health Extension Officer Florence P Wanawa dated the 04^th of January, 2019 marked and labelled as Exhibit A3 shows confirms that the Complainant did present himself with a cut under his right eye lid and movable tooth. The injuries which was confirmed by this report after examination was; 1. Right Eye – wound on the lower eye lid bleeding and tender, 2. Jaw – x 4 tooth movable and tender and 3. Left iliac Cres – tenderness above buttock. It was also concluded from observations by the Health Extension Officer that the Complainant was in severe pain distress. The Complainant treated with antibiotics, tetanus toxoid and pain killers and was expected to recover in approximately 1 – 2 weeks. This report I noted was compiled four (4) days after the act of assault on the 01^st of January, 2019.

12. I also find and confirmed from the respective medical reports dated the 05^th of January 2019 from Nonga Base Hospital marked and labelled as Exhibit A1 and A2 by Dr. Luna Amiau Senior Dental Officer at the Dental Department and Sr. Joy Bungtabu an Ophthalmic Clinician at Ophthalmology Department (Eye Clinic). Both medical reports confirmed the injuries sustained by the Complainant as alluded to in the earlier medical report by Health Extension Officer Florence Wanawa for Napapar (Ulamalit) Health Centre as a direct result of the assault by the Defendant Steven Boski.

13. I therefore rule in favour of the Complainant in the following;

1. That Defendant is liable to the tort of assault on the Complainant
2. That the injuries sustained by the Complainant were direct results of the Defendant’s action.
3. That the Defendant is liable to pay general and exemplary damages and costs of proceedings to the Complainant.
   

14. In addressing assessment of damages the Defendant raised that the sum claim by the Complainant in the sum of K9000. 00 is very excessive in comparison to the injuries sustained by the Complainant. He added that he wishes for the court to also consider the fact that he has paid an initial amount of K220 to the Complainant immediately after the incident. He pleaded for the court to award to the Complainant a reasonable amount which he could afford.

15. In reply to the Defendant’s submission the Complainant pleaded with the court that an award of K7000 in his favour would be sufficient; a reduction of K2000.00.

16. Despite submissions by the Complainant for the court to award in his favour the sum of K7000. 00; I am not satisfied by the Complainant’s address in assessment of damages. I consider I will award a reasonable amount that would equate to the injuries and sufferings the Complainant had sustained as a direct result of the assault on him by the Defendant. I consider a sum of K4000.00 in general damages would equate to the injuries and sufferings the Complainant had endured. I would also award the sum of K500.00 in exemplary damages as a punitive measure to discourage the Defendant from such activities. I would award costs at K406.00.The total awarded is K4906 costs inclusive and I deducted the sum of K220. 00 for monies paid immediately after the incident by the Defendant to the Complainant.
The Defendant will now pay to the Complainant the sum of K4, 686. 00 by the end of February, 2020.

Orders to be entered accordingly

Complainant Appeared In Person
Defendants Appeared In Person