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Tonar v Goiye [2006] PGNC 90; N3093 (13 December 2006)

N3093

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

W.S. NO. 1251 OF 1999

BETWEEN:

DR. JOHN TONAR
Plaintiff

AND:

MARK GOIYE
First Defendant

AND:

JOHN EKIP
Second Defendant

AND:

ANTON POKA
Third Defendant

AND:

MICHAEL BINGAU
Fourth Defendant

AND:

GIBSON NANI
Fifth Defendant

AND:

SECURIMAX SECURITY LIMITED
Sixth Defendant

Lae: Manuhu, J.
2006: 10 & 17 October, 13 December

DECISION

TORT - Intentional tort - Plaintiff assaulted by security guards - Identification - Vicarious liability.

PRACTICE AND PROCEDURE- Witness - First Defendant permitted to testify for the Plaintiff.

EVIDENCE - Credibility of witness - Prior inconsistent evidence at related criminal trial - Explanation for inconsistency.

No cases cited in the judgment.

Counsel:
P. Ousi, for the Plaintiff.
D. Poka, for the Defendants.

13 December, 2006.

1. MANUHU, J.: This is an action for damages arising out of an alleged intentional tort when the First Defendant, Second Defendant, Third Defendant, Fourth Defendant and Fifth Defendant, while acting in the course of their employment as security guards with the Sixth Defendant, brutally assaulted the Plaintiff who sustained injuries to the femural bone, right wrist, nerve damage to the right hand leading to paraperisis, bruised forehead and deep laceration of the scalp.

2. The defendants deny the allegations. It is simply asserted that the Defendant security guards did not participate in the assault of the Plaintiff. The issue of fact, therefore, is one of identification. It has to be determined whether the Plaintiff was assaulted by the First Defendant, Second Defendant, Third Defendant, Fourth Defendant and Fifth Defendant.

3. The Plaintiff had to testify to establish that he was indeed assaulted. His evidence is that on 10 March 1998, he was at the Melanesian Hotel with a number of his colleagues for the launching of the SP Brewery’s new product "Ozone Beer". He had a few beers and went out of the hotel to see a colleague doctor off. When he returned to the function room, he was denied excess initially by the hotel guards followed by the Defendant security guards. The Plaintiff insisted that he was entitled to enter the function room. A commotion ensued which saw the Plaintiff being punched and kicked and while he was lying on the ground was hit with batons. The Plaintiff was forced out of the hotel premises but the attack continued. The Plaintiff was bashed up and while he was again on the ground he was hit by a baton that rendered him unconscious. He did not know what happened next. He could only remember waking up at Angau Hospital.

4. Pertinent to the issue of identification, the Plaintiff gave evidence that he could tell then that the security guards were employed by the Sixth Defendant. They wore yellow helmets, blue trousers and shirts, and safety boots. They were also equipped with batons and hand held two-way radios. The Plaintiff recognised the Second Defendant as one of those who assaulted him. The Plaintiff also gave evidence of an admission by the First Defendant confirming the assault on the Plaintiff.

5. Witness John Bomai is a former employee of the Sixth Defendant. He testified that at the relevant time he was on duty when he became aware through his two-way radio that there was an incident at Melanesian Hotel. The Second Defendant had stated over the radio that "wanpela kam hambak long hia, mipela mekim save long em." Witness Bomai also overheard the Second Defendant boasting about the assault at the Nine Mile Barracks the very next day.

6. Similar evidence was given by witness Thomas Gar who is also a former employee of the Sixth Defendant. He overheard the Second Defendant telling the First Defendant and Fourth Defendant that he gave a "finisher" to someone at the Melanesian Hotel. The term "finisher" is "to put someone off completely" to a stage where he would not retaliate.

7. Witnesses Wapi Tony and Dr. Andrew Ame simply confirmed that admission by the First Defendant. Further evidence of identification came from witness Joe Wamil. He was a by-stander and a Good Samaritan. He witnessed the assault and identified the Plaintiff’s attackers as security guards employed by the Sixth Defendant. He also assisted the unconscious Plaintiff to be taken to the Angau Hospital.

8. The defence case was decisively undermined and virtually defeated when the First Defendant gave evidence for the Plaintiff. It was an unusual turn of events but a party is entitled to choose for himself as to how he desires to defend his interests. What matters most, however, is that, whether he is a party or not and regardless of which side he aligns himself with, a witness is required to only tell the truth before the Court. The First Defendant was, accordingly, permitted to give evidence "for" the Plaintiff.

9. The First Defendant testified that he did not personally assault the Plaintiff but confirmed the assault on the Plaintiff and the admissions he had earlier made. He confirmed that the Plaintiff was assaulted by his colleagues who were given such instruction by the Fourth Defendant who was at that time their Supervisor at Melanesian Hotel.

10. The witness’s credibility was seriously questioned when transcript of evidence in a related criminal proceeding before Injia J (as he then was) was tendered into evidence. In the criminal trial, the First Defendant, who was also a defendant in the criminal trial, had stated that he did not see who assaulted the Plaintiff. The criminal charge was dismissed. The witness has explained, however, that he was coerced by his Supervisor and employer to give false evidence in the criminal trial. The witness is very much aware of the risk of being prosecuted for perjury. The criminal standard of proof is much higher than the civil standard of proof. Significantly, the witness’s evidence in this proceeding is actually corroborated by other evidence. The Court is also impressed with the witness’s demeanour. In the circumstances, the Court accepts that the First Defendant is a truthful witness in this proceeding.

11. In the circumstances, the Court is satisfied on the balance of probabilities that the Plaintiff, on 10 March 1998, at Melanesian Hotel, was brutally assaulted by the Second Defendant, Third Defendant, Fourth Defendant and Fifth Defendant who were all employed as security guards by the Sixth Defendant.

12. The Sixth Defendant does not raise the issue of vicarious liability due to its failure to plead the same. In any case, the Court is satisfied, on the evidence, that a specific instruction was given by the Fourth Defendant, who was the supervising security guard, for the Plaintiff to be assaulted. There is evidence that the Sixth Defendant has, since 1998, not investigated and has not taken any appropriate action on the matter. Such conduct creates the impression, and the Court so finds, that the Sixth Defendant condones and takes responsibility for the intentional tort committed by its security guards. The Court further finds, therefore, that the Second Defendant, Third Defendant, Fourth Defendant and Fifth Defendant were acting in the course of their employment when they assaulted the Plaintiff.

13. In the final analysis, the Court is satisfied that the Defendants, except the First Defendant are liable for the brutal assault of the Plaintiff; and, the Sixth Defendant is vicariously liable for the assault on the Plaintiff.

Orders accordingly.

__________________________________________

Warner Shand Lawyers: Lawyer for the Plaintiff
Pryke & Janson: Lawyer for the Defendants