Mathews v Kora [2018] PGNC 358; N7446 (21 August 2018)

N7446

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 399 of 2013

Between:
RICHARD MATHEWS
Plaintiff

And:
ANDY KORA
First Defendant

And:
PAPUA NEW GUINEA RUGBY FOOTBALL LEAGUE INCORPORATED
Second Defendant

And:
PORT MORESBY RUGBY FOOTBALL LEAGUE INCORPORATED
Third Defendant

And:
GUARD DOG SECURITY SERVICES LIMITED
Fourth Defendant

Kokopo: Higgins, J
2018: 07^th & 21^st August

DAMAGES - Action for Damages for personal injury – Referee at Rugby League match – attacked by security guard and others – head injuries – liability of organizers of game – no liability found – security company vicariously liable

Cases Cited:
Papua New Guinea Cases

Nare v The State [2017] PGSC 9 SC 1584

Overseas cases cited

Bolton v Stone [1951] UKHL 2; [1951] AC 850

COUNSEL:

Mr R. Asa, for the Plaintiff
Ms. J. Naphal, for the Second Defendant
No appearance, for Third Defendant
Mr. R. Mann-Rai, for the Fourth Defendant

21^st August, 2018

1. HIGGINS, J: The 2^nd and 3^rd defendants are the bodies controlling this match between the Warriors and the Raiders and appointed the plaintiff to officiate. (they are referred to as “RL”)
   
2. The RL has a duty to ensure by taking reasonable precautions that the match officials are protected from harm.
   
3. That crowd members might threaten officials if decisions go against their team is, of course, foreseeable: See Bolton v Stone [1951] UKHL 2; [1951] AC 850.
   
4. What then did the RL fail to do? There is evidence of police presence. Whether that was requested by RL or not, it would be a matter for the RPNG Constabulary as to its adequacy.
   
5. There is some evidence of private security – whether engaged by RL, teams or the body owning the field, if that be different.
   
6. Clearly, the RL bodies had a duty of care but there is no evidence that they failed to put in place reasonable measures to protect the referee (inter alia).
   
7. The injury suffered by the plaintiff was serious enough to warrant his hospitalisation.
   
8. That follows from his evidence that the major injury was a result of an assault with, inter alia, a baton to the head area. It is more than likely that baton was responsible for the cut along the plaintiff’s jaw. It caused concussion and ongoing headaches and dizziness.
   
9. It was sufficiently severe to cause ongoing disability to the plaintiff.
   
10. The main perpetrator was a person dressed as a Guard Dog security officer. The uniform was a distinctive one, down to the carriage of a wooden baton.
    
11. As Nare v The State [2017] PGSC 9 SC 1584 definitively decided, to found liability in an employer it is sufficient that, on the balance of probabilities, the perpetrator was an employee or agent of the alleged employer and was acting in the course of his or her employment.
    
12. In this case the perpetrator was attired as a servant or agent of the 4^th defendant and was positioned so that he appeared to the plaintiff to be a genuine security guard.
    
13. I reject as improbable that he was an imposter.
    
14. It is also improbable that the guard, fully armed with a baton, was not acting in the course of his employment as a Guard Dog security officer.
    
15. I am satisfied, on the balance of probabilities that the perpetrator was so acting albeit beyond his actual authority.
    
16. I also note that Mr. Smith’s evidence does not establish the contrary. He could only say there was no record that RL hired his guards as security.
    
17. It is obvious someone did, and indeed, the plaintiff had seen such personnel at other games at which he officiated. It seems to me highly improbable that the 4^th defendant was represented by a person or persons pretending to be its servants or agents. It is, of course, possible that the relevant “Guard Dog” acted negligently in seeking to restore order. However, even if he decided to attack a person he knew to be a match official in the circumstances here that bespeaks a failure of instruction or control on the part of the 4^th defendant.
    
18. The primary submission is that the 4^th defendant, by its servant and agent, assaulted the plaintiff, thereby causing him injuries.
    
19. I find that proved. The extent of the injury has been left somewhat vague but a cut to the lower jaw requiring suture was present. Clearly that was from an object such as a baton. That also supports Dr. Yap’s opinion that concussion was caused leading to some long term symptoms as he reports.
    
20. Dr. Baining elaborated on this in his report detailing cerebellar dysfunction.
    
21. This has moderately severe consequences and is “a permanent medical problem”.
    
22. I assess damages at K75,000. It is not an appropriate case for exemplary damages.
    
23. Judgment for 2^nd defendant against the plaintiff.
    
24. Judgment for the plaintiff against the 4^th defendant.
    
25. Defendants to pay plaintiff’s costs to be taxed if not agreed.
    

Warner Shand Lawyers: Lawyers for the Plaintiff
Bradshaw Lawyers: Lawyers for the Second Defendant
Mannrai Lawyers: Lawyers for the Fourth Defendant