|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
[Report an error]
[F.A.Q.]
Supreme Court of Vanuatu |
[Recent Decisions] [Noteup] [Download] [Help]
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
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback|
Report an error
URL: http://www.paclii.org/vu/cases/VUSC/2004/9.html