|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
[Report an error]
[F.A.Q.]
National Court of Papua New Guinea |
[Recent Decisions] [Noteup] [Download] [Help]
PAPUA
NEW GUINEA
[IN THE NATIONAL COURT OF
JUSTICE]
CIA 125 OF
2007
PETER KOLA AND MARIA
KOLA
Appellants
V
IAN
ROY
Respondent
Kimbe:
Cannings J
2007: 7 December
2008: 31 March
APPEAL
APPEALS – civil
assault – trial in District Court based on affidavit evidence and unsworn
written statement – whether
errors in findings of fact made by presiding
magistrate.
DAMAGES –
duty of court to explain basis of award of damages – failure to explain
basis of damages award is an error of
law.
COSTS – award of
specific amount by District Court – duty of court to explain basis of
award of costs – failure
to explain basis of costs award is an error of
law.
The respondent was assaulted soon after an armed robbery of
the appellants’ store, on suspicion that he was one of the robbers.
He
claimed that he was an innocent passer-by and brought a civil action in the
District Court. The District Court found the appellants
and their agents had
assaulted the respondent without justification and awarded him damages of
K7,500.00 and costs of K1,315.00.
The appellants appealed on four grounds: (1)
the assault was justified as the respondent was among the group that staged the
robbery;
(2) there was insufficient evidence directly connecting the appellants
to the assault on the respondent; (3) the award of damages
was excessive; and
(4) the award of costs was
excessive.
Held:
(1) There
was insufficient evidence to connect the respondent to the armed robbery and it
is highly likely that he was, as he claimed,
an innocent passer-by. The District
Court did not err by not finding that he was one of the
criminals.
(2) There was sufficient evidence to connect the appellants to
the assault on the respondent, in two respects. First, there was the
respondent’s statement that he was, in fact, personally assaulted by the
appellants. Secondly, the respondent was assaulted
by persons who were
employees, agents or representatives of the appellants; thus the appellants were
vicariously responsible for
their actions. The District Court did not err by
finding the appellants liable.
(3) The District Court erred in law by not
explaining the basis of its award of damages.
(4) The District Court
erred in law by not explaining the basis of its award of costs.
(5) As
two grounds of the appeal were upheld, there had been a substantial miscarriage
of justice and therefore the District Court
decision was quashed and substitute
order was made: the respondent is awarded damages of K3,750.00 plus interest of
K1,020.00, being
a total judgment sum of K4,770.00; and the parties bear their
own costs.
Cases
cited:
Cheong Supermarket Pty
Ltd v Peri Muro [1987] PNGLR
24
APPEAL
This was an appeal
from a District Court decision awarding damages to the respondent for
assault.
Counsel
P
Kola, an appellant in person
I
Roy, the respondent in
person
1 CANNINGS J: Peter and
Maria Kola run a trade store in the Kimbe suburb called Section 10. On the
evening of Sunday 14 November 2004, an armed
gang robbed their store. Shortly
afterwards a young man, Ian Roy, was apprehended and assaulted near the scene of
the robbery as
it was believed that he was one of the robbers.
2 Ian Roy
sustained knife wounds and was hospitalised for two days. He claimed that he was
an innocent passer-by and brought a civil
action in the District Court. The
District Court found that Peter and Maria Kola and their agents assaulted him
for no good reason
and awarded him damages of K7,500.00 and costs of
K1,315.00.
GROUNDS OF
APPEAL
3 Peter and Maria Kola, the appellants, have appealed
against the District Court decision on four grounds:
(1) the assault was justified as the respondent, Ian Roy, was among the group that staged the robbery;
(2) there was sufficient evidence directly connecting them to the assault on the respondent;
(3) the award of damages was excessive; and
(4) the award of costs was excessive.
4 The
notice of appeal actually listed six grounds of appeal but some were repetitive
or not clearly expressed so I have summarised
them as set out above. Ground (i)
of the notice of appeal was abandoned. Grounds (ii) and (iii) raised the same
issue so I have treated
them as the first ground of appeal. Ground (iv) has
become the second ground of appeal. Ground (v) has become the third ground of
appeal. Ground (vi) has become the fourth ground of
appeal.
FIRST GROUND: WAS THE ASSAULT
ON THE RESPONDENT JUSTIFIED?
5 The appellants submit that the
evidence before the District Court clearly indicates that the respondent was a
member of the gang
and was involved in the robbery. He did not come to the court
with clean hands. The appellants pointed to the evidence of Julius
Kepa and Kaks
Papes who say that they identified the respondent as one of the criminals
involved in the robbery and that he was chased
from the store and apprehended.
There was also evidence that he was carrying a scarf and a slingshot, which
shows that he was up
to no good.
6 If the respondent wanted to discredit
the appellants’ evidence, he had the opportunity to cross-examine their
witnesses in
the District Court trial but he did not do this, the appellants
argued.
7 The appellants submit that the Magistrate disregarded the
evidence that the respondent was involved in the robbery and erred by
not making
a finding that he was one of the robbers.
8 I note that the District
Court summarised the conflicting evidence before it. Ian Roy said he left a
friends’ house at about
10.00 pm and was heading home to Laleki. He met a
friend, Junior Mautu, who greeted him, then he continued on his way. He was
assaulted
at the Mango bus stop, he claimed. As for the appellants’
witnesses, their evidence was treated with some scepticism by the
learned
Magistrate.
9 I have examined the evidence that was before the District
Court and I cannot accept the appellants’ submission that the evidence
clearly indicated that the respondent was a member of the gang. The respondent
conceded that he had the scarf and slingshot on him
but he was walking around at
night and there was nothing unusual or necessarily incriminatory about a young
man carrying such things.
He absolutely denied being involved in the robbery.
There was no independent evidence that he was involved and no independent
eyewitness
evidence of his presence at the crime scene.
10 As to the
respondent’s failure to cross-examine the appellants’ witnesses,
this was of no consequence as it is clear
from the learned Magistrate’s
reasons for decision that the parties agreed that there would be no oral
evidence required and
that the District Court would make its decision based on
the written evidence before it.
11 It is not correct to say that the
learned Magistrate disregarded the evidence before the court.
12 A further
consideration is the fact that the police did not charge the respondent in
connection with the armed robbery of the appellants’
store.
13 I
conclude that there was insufficient evidence to connect the respondent to the
armed robbery and it is highly likely that he
was, as he claimed, an innocent
passer-by. The District Court did not err by not finding that he was one of the
criminals. I dismiss
the first ground of the
appeal.
SECOND GROUND: WAS THERE
INSUFFICIENT EVIDENCE DIRECTLY CONNECTING THE APPELLANTS TO THE
ASSAULT?
14 The appellants submit that the District Court
incorrectly found that they directly assaulted the respondent and that they were
legally responsible for the actions of those who did actually assault him. They
argue that the learned Magistrate erred in that he:
(a) Failed to consider that the respondent’s evidence (that Peter Kola hit him with a lump of timber and Maria Kola hit him over the head with a glass bottle) was inconsistent and unreliable.
(b) Failed to consider that the respondent’s primary evidence was in the form of an unsworn statement.
(c) Failed to adequately consider the admission by two of the appellants’ witnesses that they were the ones who assaulted the respondent.
(d) Wrongly identified inconsistencies in the evidence of the appellants’ witnesses.
(e) Failed to take into account that the respondent had changed his evidence from a previous occasion when the case was before the District Court.
15 As to (a) the appellants point out
that although the respondent said in his evidence that Peter Kola hit him with a
lump of timber,
there was nothing in the medical report prepared by Dr Moi
Seneka to verify that claim. This shows that the respondent’s story
was
fabricated. I reject this argument as there is no dispute that the respondent
was badly assaulted and sustained knife wounds.
It is possible that the wounds
inflicted by a lump of timber would be mild compared to knife wounds. It is also
possible that the
respondent was exaggerating his story but in all the
circumstances it is inconsequential as there is no dispute that he suffered
knife wounds. The learned Magistrate did not err by rejecting the
appellant’s evidence.
16 As to (b), the appellants have correctly
pointed out that the respondent’s own evidence was in the form of an
unsworn statement.
Normally such a statement would not be given as much weight
as a sworn statement. I have also considered Section 62 of the
District Courts Act, which states that
a person appearing to give evidence in the District Court "shall be examined on
oath". However, I have concluded
that no error was made by the learned
Magistrate as it is apparent from the court’s records that the parties
agreed that the
court would consider only the evidence in writing that was
before it. There would be no oral evidence. All the affidavits, as well
as the
respondent’s unsworn statement, were admitted into evidence by consent. No
issue was taken about the unsworn statement
having less value than the sworn
statements. The learned Magistrate did not err by not treating it
differently.
17 As to (c), I consider that the learned Magistrate took
into account the admission by two of the appellants’ witnesses –
Julius Kepa and Kaks Papes – that they were directly responsible for
assaulting the respondent. The conclusion was fairly reached
that it was those
two, plus the appellants themselves, who committed the assault. Mr Kepa and Mr
Papes were directly connected with
the appellants and were acting under their
control or authority (implied if not expressed) when they committed the assault.
The learned
Magistrate did not err in the treatment of that
evidence.
18 As to (d), the learned Magistrate focused on the evidence of
Elias Kamai and concluded that it contradicted the evidence of other
witnesses
as to the timing of the respondent’s capture. Peter and Maria Kola said
that they were already at the hospital or
were on their way to the hospital when
they received word that one of the
raskols had been apprehended. Mr
Kamai’s evidence on the other hand says that they were still at the store
when the respondent was
brought in. Mr Kamai states that on seeing this, he
drove straight to the police station with Peter, Maria and Oscar before going
to
the hospital. The inconsistency in the sequence of events was one that was
fairly open to the learned Magistrate to highlight
and was a proper part of the
process of reasoning used to make findings of fact. The learned Magistrate also
took the view that the
appellants had deliberately omitted vital information as
to their involvement in the assault. They did not directly deny assaulting
the
respondent. I can find no error in law in the treatment of Elias Kamai’s
evidence or of the overall body of evidence that
was before the District
Court.
19 As to (e), it is true that the case had been before the
District Court on a previous occasion and that the respondent had lost.
He
appealed to the National Court and succeeded and the case was remitted to the
District Court for retrial. However, there was no
evidence before the District
Court that the respondent changed his evidence at the retrial. So no error was
committed in that regard.
20 I conclude that the District Court correctly
found that the appellants directly assaulted the respondent and that they were
legally
responsible for the actions of others who assaulted him. The others were
employees, agents or representatives of the appellants;
thus the appellants are
vicariously responsible for their actions. The appellants and their associates
took the law into their own
hands. Even though they genuinely believed that the
respondent was one of the criminals, they exceeded what could lawfully be done
to apprehend him. Therefore it was an unlawful assault. The District Court did
not err by finding the appellants liable. I dismiss
the second ground of the
appeal.
THIRD GROUND: WAS THE AWARD OF
DAMAGES EXCESSIVE?
21 The appellants submit that there is no
basis for the award of K7,500.00 damages and the amount is
excessive.
22 I agree with this submission. Every court has a duty to
explain the basis of an award of damages, even if it only compares the
case
before it with other cases.
23 This was a claim for general damages for
personal injuries due to an unlawful assault. The respondent was entitled to be
compensated
for pain and suffering, distress and inconvenience brought about by
the injuries he sustained.
24 However, the learned Magistrate failed to
discharge the duty of the District Court to explain how the figure of K7,500.00
was arrived
at. Dr Seneka’s medical report dated 22 November 2004 states
that the respondent sustained multiple cuts to his scalp and body.
In
particular:
Examination revealed 5 x 4 cm and 3 x 2 cm cuts over scalp areas but Glasgow Coma scale was 15/15 (normal) and stabbing type wound to left arm, elbow and wrist. The wounds were cleaned and sutured at Accident and Emergency Department.
He was admitted to Surgical Ward for head injury observation overnight which was stable so he was discharged two days later.
25 In the absence of evidence
about any long term effects on the respondent, the amount appears excessive. I
conclude that an error
of law was made in the assessment of damages and uphold
the third ground of appeal. I think a fair assessment of damages would be
the
sum equal to half of what was awarded by the District Court, that is: K7,500.00
x 50% = K3,750.00.
FOURTH GROUND: WAS
THE AWARD OF COSTS EXCESSIVE?
26 I reach the same conclusion on
this ground as for the third ground of appeal. The learned Magistrate awarded
K1,315.00 costs without
any explanation. I uphold the fourth ground of appeal.
All parties were self-represented in the District Court and it would have
been
appropriate for the parties to bear their own
costs.
WHAT ORDERS SHOULD BE
MADE?
27 I have upheld two of the four grounds of appeal and, to
that extent, I am satisfied for the purposes of Section 230(2)
(power of National Court on appeal) of
the District Courts Act that there has
been a substantial miscarriage of justice and that the appeal should be
allowed.
28 However, the part of the District Court order that made the
appellants liable for general damages will be left intact.
29 I will make
a substitute order under Section 230(1)(c) of the
District Courts Act that accommodates
the resolution of the grounds of
appeal.
INTEREST
30 The
District Court order did not include any interest on the award of damages,
probably because the statement of claim did not
seek any. As I am going to quash
the District Court’s order and substitute a new one, I need to consider
whether to include
an interest component in the new order. This would be done
under Section 230(1)(a) of the District
Courts Act and Section 1 of the
Judicial Proceedings (Interest on Debts and
Damages) Act Chapter No 52, which states:
... in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.
31 As
Bredmeyer J pointed out in Cheong Supermarket
Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold
discretion on the Judge: (1) whether to grant interest at all; (2) to fix the
rate; (3) to grant
interest on the whole or part of the debt or damages for
which judgment has been given; and (4) to fix the period for which interest
will
run.
32 I exercise that discretion in the following way:
(1) A successful party should normally receive interest on damages. Though interest was not expressly sought and there has been no cross-appeal against the failure of the District Court to award interest, I think it is fair and just to do so.
(2) The rate of interest commonly used is 8%. In view of current economic conditions in the country I think 8% is the proper rate of interest.
(3) Interest should be payable on the whole of the sum of damages for which judgment is given.
(4) The appropriate period is the whole of the period between the date on which the cause of action arose and the date of the judgment. The cause of action arose on the day the respondent was unlawfully assaulted, 14 November 2004. The appropriate period, for the sake of mathematical convenience is 3.4 years.
33 I calculate the amount of interest
by applying the following formula: D x I x N = A where
D is the amount of damages assessed;
I is the rate of interest per annum;
N is the appropriate period in numbers
of years; and A is the amount of
interest. Thus: K3,750.00 x 0.08 x 3.4
=
K1,020.00.
COSTS
34 Normally
the side that loses a case will get an order from the court saying that they
must pay the other side’s legal costs.
This is a matter for the discretion
of the court. In this case I have upheld two and dismissed two of the grounds of
appeal. So the
question of who has won and lost the case is not cut and dried.
Another consideration is that the parties represented themselves.
In the
circumstances, I will order that they bear their own
costs.
ORDER
(1) The
appeal against the finding that the appellants are liable for unlawful assault
on the respondent is dismissed.
(2) The appeal against that part of the
District Court order that awarded damages of K7,500.00 and costs of K1,315.00 is
allowed.
(3) The order of the District Court of 9 July 2007 in DC No 206/05
at Kimbe is quashed and substituted with the following.
(4) The appellants
shall pay to the respondent damages of K3,750.00 plus interest of K1,020.00,
being a total judgment sum of K4,770.00.
(5) The above sums shall be paid to
the respondent in full within 30 days after the date of entry of the National
Court’s order.
(6) The parties will bear their own
costs.
Appeal partially allowed, order
of District Court quashed and substitute order made.
_____________________
Lawyers for the
appellants : None
Lawyers for the respondent : None
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback|
Report an error
URL: http://www.paclii.org/pg/cases/PGNC/2008/24.html