Latham v Peni [1995] PGNC 131; [1997] PNGLR 435 (22 December 1995)

[1997] PNGLR 435

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ALEX LATHAM & KATHLEEN MARIE LATHAM

V

HENRY PENI

WAIGANI: DOHERTY J
22 December 1995

Facts

The plaintiffs were assaulted by the defendant whilst travelling from Singapore to Port Moresby on an Air Niugini scheduled flight for no apparent reason at all. The plaintiffs did not know the defendant at all. The plaintiffs suffered bodily injuries requiring medical attention. The plaintiffs seek punitive damages, aggravated damages, special damages and general damages.

No defence was filed. Hence, default judgment was entered for the plaintiffs. The matter then came before the court for assessment of damages.

Held

1. Since there has been no defence or reply filed, it must follow that the facts are before the court without challenge and hence accepted as evidence.
   
2. Punitive damages are not applicable in the circumstances of this case. However, aggravated damages may be awarded so as damages for indignity, fear, humiliation and public disgrace should be properly and appropriately considered.
   
3. Accordingly special damages representing actually incurred cost at K3,624.00 for Mr Latham and K1,269.00 for Mrs Latham awarded together with general damages at K1,500.00 to each plaintiff for assault, pain, suffering and injury and aggravated damages at K9,000.00 for each plaintiff awarded.
   

Counsels

G Shepherd, for the plaintiffs.
No appearance for the defendant.

22 December 1995

Doherty J. These matters were heard together, the plaintiffs are related as husband and wife, and the claims arise from the related incidents.

A statement of claim was filed on 31st May 1995 and served on 5th June 1995. No notice of intention to defend nor defence has been filed. On 5th July 1995 default judgment was entered and the matter comes before the Court for assessment of damages.

Since there has been no defence or reply filed it must follow that the facts are before the Court without challenge. There are supporting affidavits by each Plaintiff and these show the following:

The plaintiffs were travelling together with their infant child on 12th May 1995 by Air Niugini from Singapore to Port Moresby in the economy class cabin. In submission, counsel has explained that they occupied the front or "bulkhead" seats, where there is a device in front of these front seats, which enables an infant’s cradle to be latched into position.

At 5.30am both plaintiffs were asleep when they were rudely awaken by alcohol being thrown over them. They saw the defendant who they had never met before. He started shouting abuse and obscenities at both of them and then hit the plaintiff Alex Latham on the face causing a cut to the mouth and assaulted the plaintiff Kathleen Latham on the face causing bruising to her nose. He also threatened to throw the baby out of the aircraft. Each plaintiff required medical attention but suffered no residual disability. The experience so unnerved them they left Papua New Guinea for good.

Mr Shepherd says this so alarmed the plaintiff Kathleen Latham that she grabbed the child and ran off to another part of the aircraft in great distress.

The defendant had to be physically restrained by crewmembers. Mr Shepherd says the defendant was subsequently charged but there was no later record of the matter on the District Court List. I must assume, in view of the lack of defence, that no order was made either under Section 6(4) of the Summary Offences Act or the Criminal Justice (Compensation) Act 1991.

There is no apparent reason for the attack or the abuse. The plaintiffs had no prior meeting or knowledge of the defendant. The only inference that I can make from his behaviour and the remarks attributed to him is that he was offended by the non-allocation of the front seats to him or was mistaken as to the identity of the plaintiffs.

The plaintiffs each seek punitive damages, aggravated damages, and special damages for medical expenses and general damages.

As counsel has submitted, there appears to be no case law on the assessment of damages for unprovoked assault and battery in our jurisdiction. Similarly there is no statutory provision (other than the powers vested in the District Court by s 6 Summary Offences Act) and there is no evidence or suggestion of an applicable custom. There have been a considerable number of cases dealing with damages for personal injuries arising from the tort of negligence, particularly road accidents, which are dependant on their own legislation.

I consider therefore this may be a situation where I should consider the common law and decide if it applies as our underlying law.

In considering the type of damages that the court may consider and award, I have taken note of McGregor on Damages (15th edition), para 1426 suggests that whatever tort the defendant’s liability is grounded in the measure of damages will be calculated in the same manner throughout. McGregor on Damages at para 1615 considered

In so far as an assault and battery results in physical injury to the plaintiff, the damages will be calculated as in any other action for person injury. Beyond this, the tort of assault affords protection not only from physical injury but also from the insult, which may arise from interference with the person. Thus a further head of damage is the injury to feelings, i.e. the indignity, mental suffering, disgrace and humiliation, which may be caused. Substantial damages may thus be recovered by a plaintiff for an assault, with or without a technical battery, which has done him no physical injury at all.

And Halsbury 4th Edition Vol 12 para 1158 considered.

Trespass to the person, whether by assault, battery or false imprisonment, is actionable without proof of actual damage. Thus in all cases of trespass nominal damages at least are recoverable, and substantial damages are recoverable for discomfort and inconvenience, or injury to dignity, even where no physical injury is proved. Damages for emotional shock which does not result in physical illness may, it seems, be recovered where there is other physical injury, and also, it is submitted, in cases where there is no physical injury, as in the case of an assault without any battery, provided it is substantial and not too remote".

"In addition to general damages for any physical or mental injury which results directly from the trespass, damages for specific pecuniary loss or other consequential damage may be recovered. Provocation does not serve to reduce the damages recoverable by way of compensation for physical injury, though it may negative the award of aggravated or exemplary damages."

I consider that these general principles are applicable to our situation in this jurisdiction, loss of dignity, disgrace and humiliation are matters referred to by litigants in cases coming before the Courts (albeit not in exactly in those words). The defendant himself apparently was moved by a misconceived slight to his dignity.

The plaintiff in submission relies on the Halsbury 3rd Edition Vol 11 Para 426 that the damages should be "substantial" as quoted above.

The plaintiff submits these substantial damages should be exemplary on the basis that:

"Exemplary damages are appropriate where the wounded feeling and injured pride of the plaintiff and the misconduct of the defendant are taken into consideration. The purpose is to recompense the plaintiff for the loss sustained by reason of the defendant’s wrongful act; but more particularly it is also to punish the defendant and vindicate the distinction between a wilful and an innocent wrongdoer."

The learned writers note that exemplary damages may only be awarded in actions in tort in 3 categories (1) oppressive, arbitrary or unconstitutional acts by servants of the government (2) where defendant’s conduct has been calculated to make a profit for himself that may exceed compensation to the plaintiff and (3) where they are authorised by statute. (see Halsbury 4th Edition Vol 12 para 1190 and MacGregor on Damages Chapter 11 paras 411, 412, 414, 416). Punitive damages are given the same meaning by both writers. Whilst not closing the categories of exemptions that may apply to our jurisdiction, I consider, based on the authorities above, that punitive damages will not apply in this case and am also reluctant to make an exception without argument from the defendant.

I do however agree and hold that aggravated damages may be awarded and that damages for indignity, fear, humiliation and public disgrace should be properly and appropriately considered.

There are no precedents to which I can refer but the text writers make it clear that scales in precedent cases are not binding in this type of case. Counsel submits for a sum K25,000.00 for each plaintiff. Having regard to other damages cases (which I repeat are not applicable), I note that damages to that extent have not been awarded and I consider I must exercise caution whilst still ensuring the censure of aggravated damages is reflected. Special damages have been claimed for loss of wages from work, medical expenses and airfares, (due to the unscheduled and expeditious departure).

These have not been challenged so, although I would have appreciated further argument whether airfares amount to consequential loss but since they have not been challenged in any way, I award them on the facts before me. They amount as follows:

Mr Latham

Schedule of special damages

Lost wages 12/05/95 to 25/05/95 - 10 days

@ K223.00/day K2,230.00

Medical examination 25.00

Airfares (Port Moresby/Sydney return) 1,244.00

Airfare - Madeline Latham (10% of return airfare) 125.00

Total Amount: K3,624.00

Mrs Latham

Medical examination K25.00

Airfares (Port Moresby/Sydney return) K1,244.00

Total Amount: K1,269.00

I consider the following should be awarded -

(1) Special damages for as detailed above in each suit

(2) General damages in the sum of K1,500.00 to each plaintiff for the assault, pain suffering and injury;

(3) aggravated damages in sum of K9,000.00 to each plaintiff.

In view of the nature of this claim, I award costs against the defendant to each of the plaintiffs on a solicitor/client basis as provided for in Order 22 of the National Court Rules.

Lawyers for the plaintiffs: Maladina Lawyers.
Lawyers for the defendant: No appearance