Taso v Frank [2004] VUSC 9; Civil Case 034 of 2002 (19 February 2004)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 34 of 2002

BETWEEN:

WILFRED TASO
Claimant

AND:

DANIEL FRANK
First Defendant

AND:

TERRA DAVID
Second Defendant

AND:

SAM WILLIE
Third Defendant

AND:

PETER MENSEN
Fourth Defendant

Coram: Justice Treston

Mr. Boar for Claimant
Mr. Joel for Defendants

Date of Hearing: 04th February 2004
Date of Judgment: 19th February 2004

JUDGMENT AS TO QUANTUM

CLAIM

In a claim filed on 25 February 2002, the Claimant claimed against the Defendants Daniel Frank, Terra David, Sam Willie and Peter Mansen, damages of VT3, 500, 000 for assault, it being alleged that the First and Second Defendants intentionally assaulted the Claimant on two separate occasions first in January 2001 where the First Defendant punched the Claimant and injected a bamboo trunk into his neck and second in November 2001 where the First and Second Defendant assaulted the Claimant with a coffee tree stem, stones and wood causing a fracture to his right hand and causing him pain and other injuries.

As a further and/or alternative cause of action, the Claimant claimed against the First and Second Defendants, trespass and again he claims damaged in the sum of VT3, 500, 000.

As a further and/or alternative cause of action, the Claimant claimed that being the operator of a retail shop suffered damage in or about November 2002 when the Second, Third and Fourth Defendants dug a hole about one meter deep along his drive way and cut off the electricity supply leading to his shop. This caused him to be unable to drive his vehicle along the driveway, and caused him the loss of frozen foodstuff in the retail shop, which had to be discarded when electricity was cut off to his freezers. In that claim, the Claimant quantified his loss at VT1, 000, 000.

Although the Defendants filed defences and counterclaims there were struck out - by his lordship Coventry on 16 June 2003, for failure to comply with Orders of 24 July and 26 August 2002 and 5 June 2003. The matter thus proceeded to hearing on the basis of the Court giving judgment as to quantum of the Claimant's claims.

EVIDENCE

The Claimant provided a number of sworn statements as to quantum, dated 13 August 2003, 5 September 2003 and 21 January 2004.

In those sworn statements, the Claimant confirmed that in January 2001, the First Defendant, Daniel Frank, punched him and injected a bamboo trunk into his neck, requiring him to consult a doctor for medical treatment. In November 2001, the Claimant deposed that he was again assaulted by the First and Second Defendants as a consequence of which he was hit with a coffee stem and stones which lead to a fracture of his right hand. He said that he has had a lot of pain on his neck and his right wrist and generally over his body and was unable to attend to work for 2 months.

Thereafter, he said the Defendants dug a hole in the main road leading to his house and retail shop and cut off the electricity supply as a consequence of which he sustained business loss. He put his monthly profit earning at Vt100, 000.

The Claimant contended that the Defendants' actions had to be activated by malice and ulterior motives requiring punitive damages because of the two separate assaults and he contended that he could not continue to have a quiet and enjoyable life because of the Defendants' actions against him.

A final sworn statements by the Claimant referred to information of the X-rays which he said had been undergone and his purchase of meat, chicken and vegetables from Boucherie Traverso in November 2001.

As to his other medical expenses the Claimant set those out as an annexure to his sworn statement of 13 August 2003.

In their sworn statements the Defendants did not directly address the question of quantum but put a different slant on the incidents confirming that the Claimant on 6 January 2001 had threatened others with an axe and had cut louvres of houses with that axe. On 24 November 2001, Frank said that the Claimant had been cutting louvres of various person's house including his and that he was drunk and swearing loudly. He said that he was threatened by the Claimant with a knife and saw a piece of wood and used that to defend himself. He was hospitalized for injuries and said that on other occasions that the Claimant had driven deliberately dangerously towards him and his family.

Mr. Terra David confirmed that on 06 January 2001, the Claimant was drunk and had got involved in a fight with another. He said that he had been threatened a number of times at work by the Claimant and in November 2001 the Claimant was drunk and was cutting louvres in his house and that they had dealt with him because of the threats to themselves. He confirmed that on 25 November 2001 he and others had dug a trench across the private road that the Claimant used.

Mr. Sam Willie confirmed that he witnessed the threats that the Claimant made to Mr. Terra David and that he and others had dug the trench across the private road and that he disconnected the power to the Claimant's property, because of damage which had been caused to his house and danger to them by the Claimant's driving. He was also part of the digging of the trench across the roadway.

Mr. Peter Mansen confirmed that he was one of the persons who dug the trench on 25 November 2001 and had witnessed the Claimant while drunk speeding along the road in a dangerous fashion. He was also subject to dangerous driving from the Claimant, who, he said, attempted to hit him with his bus.

Significantly, neither the Claimant nor the Defendants were cross-examined as to the actual scenario and their allegations, which were relevant to the question of general damages.

In addition to his own evidence, the Claimant tendered a sworn statement from Doctor Spooner, who said that he first saw the Claimant on 27 November 2001 in relation to being hit on his right forearm with a piece of wood. The X-ray at the hospital showed the fractured radius bone was also displaced in a alignment. The Claimant was admitted to the hospital for reduction under anaesthetic but refused the advice and treatment and discharged himself from the surgical ward. It seems, as was confirmed by the Claimant, that he was treated by some Tannese traditional bone-setters but had to return for treatment by the doctor as his arm was very swollen and there were infections caused by traditional incisions made at the site of the fractures. He was treated with injections and oral antibiotics as well as strong pain killers and the doctor deposed as to the consequences of the injury which, without treatment was painful and there was a shortening of the arm by about 2 centimetres coupled with outward deviations and reduction in power. The doctor said that as Mr. Tasso was a right-handed person, he was handicapped in the use of his right arm in certain aspects and was developing osteo-arthritis. He produced diagrams of the injury and the subsequent position of the forearm.

SUBMISSIONS

The Claimant submitted that he was entitled by law to claim for medical expenses reasonably incurred and for loss of business and loss of goods as a result of the electricity being switched off.

The Claimant contended, through his counsel, that the injuries caused were deserving of nominal damages, aggravating damage, special damages and exemplary damages, damages for pain and suffering.

The Defendants submitted that the Court should look at the totality of the claim and consider the evidence provided by the Defendants who had raised uncontested issues of self-defence and provocation. References were made to the specific evidence of the Defendants it was submitted that any question of damages should be looked at the light of the behaviour of the Claimant which, is in the circumstances, did not call for an order for exemplary damages.

In relation to specific and special damages, it was submitted by the defence that only the cost of the X-rays had been properly proved and that the Claimant was the author of his own misfortune as far as the breaking arm was concerned because he had spurned orthodox medical treatment with the consequences which had occurred to his health and that his ongoing pain and suffering could be said to be directly relevant to his declining such orthodox medical treatment.

As to the loss of profits, it was submitted that it would be unsafe to rely simply on the Claimant's word without documentation as to his average monthly income prior to the incident and that as far as the loss of goods in the shop was concerned the only receipt was that of Boucherie Traverso and that as the power has been turned off for three days only, the amount ought to be divided by ten being one third of the month.

FINDINGS

This is a civil case and the Claimant must prove his allegations on the balance of probabilities.

I have considered the case of Suzanne Camille Bastien v Nicholai Michoutouchkine CC8/1992. For similar damage Chief Justice Vaudin d'Imecourt considered that an appropriate award of damages for a break to a small finger was VT312, 000. This injury to the Claimant was more serious and involved the fracture of the right forearm and I assess the appropriate level of damage in relation to that as VT500, 000.

However, I consider that the consequences of the injury namely the handicap to his right arm in relation to heavy work and lifting heavy loads and development of osteo-arthritis is largely due to the fact that the Claimant declined orthodox and available medical treatment. I was unimpressed by his evidence that he went to the Tannese traditional bone-setters because they were able to deal with him more expeditiously.

In addition, I am of the view that the award of damages in relation to the broken arm needs to be reduced by one half because of the Claimant's own behaviour attested to by the Defendants and unchallenged by the Claimant. Thus the amount of damages which I consider is appropriate in relation to the actions by the Defendants Daniel Frank and Terra David amounts to VT250, 000. That relates to the November assault.

I find that there is no proof of any damage in relation to the February assault.

As to the medical expenses the only properly proved matters are the two X-rays to a total of VT6,750.

While other expenses were claimed by the Claimant namely for drugs, consultations, report on treatment and travelling expenses, no invoices or receipts were produced in relation to those and travelling expenses were not sufficiently detailed to allow the Court to make a proper award as to them. Any further special relief in relation the injury to the arm is declined.

As to the claim for damages caused to his business, I decline to make any award for loss of profits because proof as to the Claimant's monthly profits for any time proceeding the incident in December 2001 was never produced, the Court is not in a position on the basis of the evidence of being able to make an award as to loss of profit for the two months during which the Claimant said he was unable to attend work.

In addition, the only proven loss in relation to goods damaged when the power was turned off related to items purchased from Boucherie Traverso during the month November totalling VT68,900.

According to the schedule set out in the letter of 16 June 2003, VT65,900 worth of goods obtained from Boucherie Traverso remained in the Claimant's deep freezer on stock take. There is no independent confirmation as to purchase of ice cream, fish and mix juices and I consider that the appropriate award in relation to lost and damage goods as a result of the power being turned off amounts to VT65,900.

JUDGMENT

Accordingly I assess quantum and give judgment to the Claimant against the Defendants Daniel Frank and Terra David for the injury to the Claimant's arm in the sum of VT250,750 total.

In relation to damage to the stock and business of the Claimant, I consider that damages in the sum of VT200,000 together with the loss of stock to which I have referred to would be appropriate and to that end I give judgment to the Claimant against the Defendants Terra David, Sam Willie and Peter Mansen in the total sum of VT265, 900.

The total sum of the judgment for the Claimant against the Defendants is thus VT522,650.

SUMMARY

In summary the judgment amount against the four Defendants are as follows:-

Daniel Frank - VT128, 375

Terra David - VT217, 009

Sam Willie - VT 88, 633

Peter Mansen - VT 88, 633

VT522, 650

=========

I award costs to the Claimant against the Defendants at the standard rate as agreed or determined by the Court.

Dated AT PORT VILA, this 19th day of February 2004

BY THE COURT

P. I. TRESTON
Judge