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Wanne v He [2008] PGDC 101; DC833 (7 January 2008)

DC833

PAPUPA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
Civil Jurisdiction

DC. N0. 1948 OF 2007

JOSEPH WANNE
Complainant

V

MR. KEVIN HE – GENERALMANAGER
1st Defendant

MANAGING DIRECTOR – TRIBAL DEN HOTEL
2nd Defendant

Port Moresby: M. M. Pupaka
2007: 12th December

The Complainant in person
No appearance by the Defendants

7th January 2008

PUPAKA, PM: This case was fixed for hearing on 12th December, from 5th December 2007. In the continued absence of the defendants it was to be heard ex parte. On 12th December 2007, as had been the case previously, the complainant again appeared alone. Therefore he was granted leave to present evidence ex parte. The defendants had, to date, shown no interests in defending this suit and it does seem they are unlikely to do so in the circumstances.

The complainant had filed two affidavits. One is his and another from a Julius T. Kane, both dated 11th December 2007. I have perused these affidavits. There is a ‘submission on quantum’ which has been filed in obvious anticipation of leave being granted for ex parte hearing. I have also perused this ‘submission on quantum’ for whatever it is worth as the complainant’s final submission on the strength and merits of his case. I should clarify that submissions on quantum would normally follow upon an ascertainment of liability, particularly after a prior grant of judgment, default or otherwise, and damages need to be assessed. This case is of course not for assessment of damages. It was set for hearing and evidence was presented ex parte in the continued absence of the defendants. In any event I have perused the things filed towards this end and the following then is the considered decision of this Court.

The Complainant’s Case

I shall deal with the evidence disclosed by the two affidavits and the complainant’s submission shortly but before I do that I must set out the complainant’s relevant pleadings that ground his case; to put things in proper perspective. There seems to be more than a single head of claim, based on the one event, which does tend to complicate the understanding process somewhat. The pleadings are not lengthy and in the circumstances I consider it appropriate to reprint the entire pleadings in full:

"That on 24th July 2007 between the hours of 8.00pm and 10.pm at the front car park of Tribal Den Hotel Port Moresby via the defendants security guards did wilfully and viciously manhandled and assaulted the complainant on his person by inflicting a blooded swollen and reddened right eye and further violently stole the complainants wallet containing three thousand kina (K3, 000.00) in cash, drivers licence, employment card and business cards without lawful excuse or justification. The perpetration of this brutal assault and violent theft was accordingly witnessed by the inquisitive members of the public that night including two (2) male companions of the complainant. (sic)

Therefore, the complainant prays to this honourable court for an order commanding the defendants to pay the complainant the sum of ten thousand kina (K10, 000.00) being damages for the unjustified and inexcusable vicious assault and violent theft compounded by the first defendants blatant ignorance of the matter when represented by the complainant in the form of letters, facsimile transmission, and telephone calls towards realising an out of court settlement of the same. Consequent to the wilful acts /omissions as stated herein the complainant has suffered immeasurable pain and suffering, mental anguish, and loss of name and professional refute." (sic)

These two paragraphs, containing just two sentences apiece, can safely be summarised as containing a damages suit for K10, 000.00 on the bases of an alleged assault and theft. I think a number of issues are raised but in the end all of the issues raised would obligate the complainant to prove actual losses suffered in relation to losses he desires to recover, and offer proof of unprovoked assault and evidence of injuries in order for some compensation to be assessed.

The Defendants & their Liability, etc

Before I discuss the evidence, there are a few matters, of the identification or naming of the defendants and their liabilities that I need to mention and sort out at this juncture:

First of all the complainant sued two individual persons and no one else. The 1st defendant is apparently the General Manager of a place referred to as the Tribal Den Hotel. The 2nd defendant is described as the Managing Director of Tribal Den Hotel. If this ‘Tribal Den Hotel’ is a fully capacitated legal entity, it has not been named or sued at all. If the two named persons are employees of the hotel only, obviously suing them singularly could turn out to be a mistake in the end! But for the time being that remains to be seen.

Whilst just referring to an unnamed person only as Managing Director may not be a completely wrong identification of a person being sued only nominally, it definitely does not amount to naming of the entity that that person maybe managing director of. It cannot equate with a proper identification and naming of the entity, in this case the hotel referred to. It cannot even stack up as a partial identification of it. Therefore, on the face of the proceedings, it is unclear whether these two are being sued as persons trading under the name of the entity referred to, so whether they in fact are will not be presumed.

Secondly, it is a solid but trite principal of law that liability can only lie where it falls. It was always open for the two current defendants to say that they may only be nominal defendants, if at all, and that they cannot be singularly or individually sued, not when the body or legal entity they work for is left out of the suit. However they have failed to defend one way or the other so the issue will remain uncanvassed for the time being. The issue maybe addressed when it manifests itself, depending on if and when it is raised. Also left unaddressed for the time being will be the other related issue of the two named defendants’ vicarious liability for the torts of a bunch of unnamed security guards. For the time being the defendants’ liability is presumed. They have failed to defend this suit. Again the issue of vicarious liability maybe addressed when the need to do so arises.

Evidence

The complainant’s evidence is composed of his own affidavit and one other’s as I said. The complainant elected to close his case and rest it upon the strength of these two affidavits. The affidavits re-echo the pleadings. However there is some additional information disclosed which I need to highlight.

First of all it now seems the complainant sought and received medical attention and treatment for a "sub-conjunctival bleeding in the right eye" from a ‘Port Moresby Medical Service’, which I presume must be some private clinic operating in the city. There are no details disclosed as to how he was treated so it seems the treatment was only basic, possibly ministration of something to reduce the swelling.

I particularly note the clinic report makes it clear that the complainant did not seek treatment soon after the assault. The report refers to injury being received by the complainant in an assault on the 22nd of July 2007. Copies of correspondences which were sent to the defendants, now annexed to the complainant’s affidavit, confirm the actual date of assault to be the 22nd of July and not the 24th as has been pleaded and also mentioned by the complainant in his affidavit. The 2007 Calender shows that 22nd July occurred on a Sunday. The complainant would have been assaulted around midnight on Sunday. He sought medical attention on Tuesday 24th July. This means he had the rest of Sunday night, all of Monday, and all of Monday night to be on ice or have bed rest or whatever else he needed to do before he resorted to medical treatment.

I think there is a need for caution in accepting that there really was any a need for medical attention considering the lack of urgency in seeking treatment and the scant evidence on the injuries sustained and the treatment or medication prescribed. If this was a contested hearing I would not be reluctant to grant leave for the doctor who attended to the complainant to be cross examined.

Further I am not sure what else the anomaly in the dates can mean but it is a further reason to be cautious in relying upon the evidence disclosed. Even in matters like this people do tend to be mistaken in the most ordinary and basic of things.

Secondly the complainant said in his affidavit that he reported the incident to the police on 26th July 2007. He said that a Sergeant Tobanhia of the Port Moresby Police Station registered his complaint at that police station as OB No. 214/07. The complainant thinks that this Sergeant Tobanhia failed to follow up on his complaint.

I note that the complainant went to the police some 4 days after the assault. Unprovoked assault is police business in the first instance. The complainant should have reported the matter to the police at the earliest possibly opportunity. Yet he did not. Interestingly enough the complainant does not say why he reported the matter 4 days later. On the bases of his own evidence, the complainant was neither hospitalised nor was he immobilized in some way and unable to move around. So just why he was unable to attend to the police on a matter he felt passionately about is a mystery. It is not said where this Tribal Den Hotel is, especially whether or not it is located close to a police station. The complainant, who incidentally is a lawyer, should have gone straight to the nearest police station; in the bloodied condition he was in, for that is evidence in itself.

Whilst there is no cause to doubt that the complainant did report to the Port Moresby Police Station to lodge a complaint, there is this apparent unexplained delay in reporting. Whilst, in the circumstances of an ex parte hearing, it is not possible to reject sworn evidence, it is still imperative for the Court to be careful not to place too much weight on evidence that the matter was reported to the police. Evidence of complaints laid with the police confirms nothing in the circumstances. On the contrary it does give cause for a realization that the complainant seemingly went about securing medical reports and lodging police complaints in a calculated manner. His actions were far from being instantaneous or contemporaneous reactions.

The complainant and his friend or friends were liquoring up at the Tribal Den Hotel bar and disco area. Just when their drinking commenced is not disclosed. There is differing evidence as to what time the incident occurred. The complainant had initially pleaded that the incident occurred between 8.00pm and 10.00pm. He later said in his affidavit that it occurred at 10.00pm. His friend Julius T. Kane thinks it occurred at around midnight. If this is their way of maintaining consistency the assault could easily have occurred on Boxing Day for all we know. Nevertheless what happened may have been as described by Julius T. Kane in his affidavit:

"As we ordered and consumed more beer, one of the defendant’s security guards started to pick on us and accused us of disturbing the peace to which the complainant told him to back off as he was unduly disturbing and interfering in our peaceful and orderly drinking session."

Julius T. Kane continues:

" Apparently said security guard must have felt offended and demoralised by the complainant’s no nonsense response and immediately mobilized other Tribal Den Hotel security guards numbering about 10 who physically manhandled and pushed the complainant out of the bar /disco room of the Tribal Den Hotel onto the adjacent parking lot where under the cover of darkness and minimal street lighting radiated from the adjacent shops the defendant’s security guards proceeded to indiscriminately and viciously punch and boot the complainant on his person" (sic)

The complainant himself says just about the same thing. However one really does not have to be divinely inspired to know that the incident complained of occurred as a result of alcohol and drinking. There is no evidence available by which the Court may hazard a guess at the decency of a bar cum disco area of a place called Tribal Den Hotel. It may or may not be the sort of place a respectable adult person, of the calibre of this complainant, may want to entertain himself in and at odd hours at that, without taking the risk of soiling his reputation and status, let alone getting bashed.

Assault & Loss of Name /Reputation

On the evidence available I am unable to accept that there was unprovoked assault on the scale alleged such as to warrant assessment of damages. I have no doubts that the complainant was physically tossed out of the place. Given the state he must have been in at the time, and at that time of the night, he could have been seriously injured. Needless to say he must have had a painful experience, not only for the night but for a while after that.

However any award for damages suffered by way of pain and injury would always be subject to reduction for contributory negligence and on the bases of how liability is apportioned. On the strength of the available evidence I have no desire to find or apportion liability. For one there is just not enough evidence for that to happen. Besides that there is no medical evidence of the injuries sustained.

Moreover, in the end, it may yet be the case that the complainant would assume the lion’s share of the responsibility for his injuries. He had the opportunity to leave the bar but his evidence is that he did the opposite. I think patrons are welcome at drinking venues or other entertainment places at the pleasure of the owners or keepers of the premises. When the welcome ends, for whatever reason, a sensible patron must depart with little or no fuss. Putting up challenges instead sometimes result in damages to the person or reputation or ego of the patron. There is enough disclosed in the two affidavits in this case which indicate to me that the authority of security guards was challenged by the complainant at the time. I consider that to be assumption of risk in the circumstances. It becomes a reckless assumption of risk if one considers the place, time of night and complainant’s apparent intoxicated state.

As I said I do not consider it appropriate to assess damages in relation to the claim based on the assault and alleged loss of name and reputation. I should add that even if there was cause to assess damages for these heads of claims I would find it extremely difficult to quantify damages for "loss of name and reputation." The complainant is a lawyer. He ought to know how claims for loss of name or reputation can be made, how loses may be particularised and proved, and damages assessed. He did not do that.

Special Damages & Past Expenses

The complainant sought special damages in this suit for what he says were his "past expenses".

There are certain discrepancies in relation to these heads of claims. The complainant claimed, in a separate "Statement of Claim" he filed a month after he took out the Summons, for a sum of K3, 000.00 for the theft of a wallet containing cash. He also claimed K59.50 as "medical expenses for eye injury". Later, in a document called "Assessment of Damages" dated 31st October, he noted his "consultation & prescription fees" at K200.00 and "out of pocket expenses" at K1800.00.

There is only scant evidence on the injuries sustained and there are no receipts. Therefore the complainant is not entitled to medical expenses or past expenses. There is not one jot of evidence to show what the "out of pocket expenses" were and how these were incurred. The absence of the defendants does not and cannot excuse the complainant from offering proof of special damages as the law says he must. He needed to provide receipts but he has not. Ergo I must decline to find that the complainant is entitled to these claims.

The complainant sought restitution for the loss of K3, 000.00 in cash. The theft of money is a simple assertion of the complainant without proof of the loss. His friend Julius T. Kane supports him in that contention. Just how Julius T. Kane knew that the complainant had that money prior to the assault, including the exact sum, he does not say. He does not even say whether the complainant told him how much he lost and when he told him that. This person cannot think his assertion is going to be accepted because it is sworn evidence. He must say how he obtained information he cannot know as a matter of course. For instance, Julius T. Kane could see the complainant being assaulted. However he could not know how much money the complainant was robbed of, if at all, unless the thieves counted the money in his presence or else the complainant told him that he had been robbed and how much for. Therefore I think Julius T. Kane’s supporting contention in relation to the theft is unreliable assertion.

Nevertheless the complainant has provided sworn evidence that he was robbed of the money by people who apparently worked for the defendants whilst in the course of performing their duties.

I would have thought a person like the complainant who no doubt is properly vested in court craft, would have been minded to produce evidence of how and why he had a large sum of money on his night out. For instance if the complainant had withdrawn the money he could easily produce a bank statement. If he was given the money he could easily secure the testimony of the donor. The point is the complainant ought to say where the money came from. That is not difficult evidence and these are facts within his knowledge.

However, notwithstanding the absence of evidence like that, in these uncontested circumstances I must accept that the complainant had the money on him because he now says so. In any event the Court cannot reject sworn evidence on matters that can ordinarily be within the peculiar knowledge of the person attesting. Consequently I must accept that the complainant had K3, 000.00 in cash at the relevant time, and that money was taken off him as he says. I must accept that the money was removed when the complainant was being removed from the premises and possibly assaulted in the process. Further, even if any assault was provoked by the complainant, the most the defendants and their agents and servants maybe entitled to would be to use reasonable force to evict the complainant from their premises. They, as the owners or keepers of the premises, had no rights, reserved or otherwise, to rob patrons.

Conclusion

Consequently, on the bases of uncontested evidence I must find that the defendants are liable to the complainant for the loss of money, as a result of theft. I must further find that their liability is to the tune of K3, 000.00 as asserted. The complainant is entitled to restitution for money lost at the hands of the defendant’s servants and employees.

I would, however, dismiss the other heads of claim for the reasons I have already given.

In the end I enter judgment for the complainant against the two identified defendants, whoever they are, jointly and severally, in the sum of K3, 000.00. There shall be interests paid on that at the statutory rate of 8% from the date of summons including nominal costs of these proceedings.

____________________________________________

The Complainant in person
No appearance by the Defendants