Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Kito v Karl [2011] PGNC 200; N4543 (10 February 2011)

N4543

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1398 OF 2006

BETWEEN:

SURUKO KITO

AND:

PAUL KARL & STATE

Kimbe: Kawi, J
2010: 8th November
2011:10th February

DAMAGES – trespass to person – assault and battery – plaintiff punched in the face – sustain facial injuries – laceration and bruises- black eye- relatively minor injuries suffered general damage for pain and suffering and loss of amenities claim for loss of wage-not particularized-global amount available –particularly crippled man-using crutches to aid in walking –assault aggravated pain.

Facts

The plaintiff, a health worker, was assaulted by a policeman in the cause of his duties. He was punched and kicked and sustained injuries to the face and head as well as the lower back. He claimed damages including; general and special damages as well as exemplary damages. Liability was determined with the entry of default judgment. On a trial for assessment of damage;

Held:

(1) General damages and damages for pain and suffering are one and the same thing. They cannot be treated differently from each other. A claim for general damages is intended to compensate for the pain and suffering and loss of amenities, distress and humiliation caused by the actions of the wrong doer.

(2) It is fair and reasonable to conclude that the assaults by the policeman upon the plaintiff had the effect of aggravating existing injuries and therefore the pains associated with the pre-existing medical condition. This is a factor against the plaintiff.

(3) General damages for pain and suffering and for loss of amenities will be assessed at K6,000.00

Cases Cited
David Michael –v- Michael Dennis Marus (2008) N3374
George Chapok –v- James Yali (2008) N3474
Martha Limitopa and Poti Hiringe –v- The State [1988-89] PNGLR 364
Losia Mesa –v- Gari Baki and The State, Unreported and unnumbered judgment dated 26th June 2009
Cheong Supermarket Pty Ltd –v- Perry Muro [1987] PNGLR 24

Counsel
G. Linge, for Plaintiff
No appearance for defendants

10 February, 2011

1. KAWI J: This was a trial for assessment of damages, liability was determined with the entry of default judgment against the defendants on the 9th August 2010.

2. This trial concerned a claim for monetary compensation arising from a police assault. The plaintiff, Suruko Kito, sued the State for assault and battery occasioned upon his person by the second defendant, as a serving member of the Police Force. The cause of action is trespass to the body of another person – See David Michael –v- Michael Dennis Marus (2008) N3374 and George Chapok –v- James Yali (2008) N3474.

3. Default judgment having been entered, the plaintiff's case is for the court to make an assessment of damages.

THE INCIDENT

3. The plaintiff says at on the 17th December 2005 he was waiting at the shell service station here in Kimbe to catch a PMV to travel down to Kapore Oil Palm block. While he was waiting at the service station, the second defendant, a serving police man, pulled up his vehicle at the service station. As soon as Paul Karl got out of the Police vehicle, he walked straight to where the plaintiff stood and attacked him. He punched him with his hands and his fist folded, kicked him with his police issued boots. Thereafter he got the plaintiff's crutches and used them to assault the plaintiff again.

THE BODILY INJURIES

4. The plaintiff is a partially disabled person. He uses a crutch to assist him to walk and move freely around. During the attack, which the court finds, is largely unprovoked, the plaintiff sustained bodily injuries especially facial injuries to his face, teeth, eye and nose. The plaintiff went home to Kapore Oil Palm block and the next morning he attended the Kavui aid post where he was initially treated for his injuries. The plaintiff himself has a pre-existing medical condition which rendered him partially crippled.

5. On the 20th of December 2005, some three days later, after the plaintiff was assaulted, he presented himself at the Kimbe General Hospital and was treated for his injuries by Dr Peter Yama. Dr Yama who treated the plaintiff noted that the plaintiff had,

"sustained a deep laceration over his right eyebrow, which needed 3 stitches. He also sustained a swollen nose and a broken upper lip. He also sustained bruises to his upper gum area also resulting in his upper tooth loose and moveable but not totally fallen off. He also suffered from a lot of pain due to these injuries."

The plaintiff was treated and discharged without admission. The medical report also concluded that no permanent injuries were sustained by the plaintiff.

THE CLAIM

6. In his statement of claim, the plaintiff claims the following monetary damages:

GENERAL DAMAGES

7. A claim for general damages is intended to compensate the plaintiff for the pain and suffering, distress, humiliation and inconvenience caused by the unlawful actions of the wrong doer. Apart from suffering the body injuries, he has to be compensated also for the shock and distress caused by the incident. It must be made clear from the outset, that there cannot be any separate claims for pain and suffering and another separate claim for general damages. Both are one and the same.

8. The purpose of an award for general damage is to compensate a person, that is to put the person as far as possible in the same position that they would have been in but for the wrong which resulted in him sustaining bodily injuries, because of the policeman's tortuous conduct. Consequently an award of general damages is not intended to be a reward nor a penalty against the party responsible. See Martha Limitopa and Poti Hiringe –v- The State [1988-89] PNGLR 364.

9. In his submissions on damages, Mr Gerhard Linge learned counsel for the plaintiff submitted that an award of K30,000-00 would be a just and fair reward as compensation for general damages for pain and suffering. He referred to and relied on Cannings J's judgment in the case of Losia Mesa –v- Gari Baki and The State, Unreported and unnumbered judgment dated 26th June 2009, where the court made an award of K25,000-00 for pain and suffering. In Losia Mesa's case, the plaintiff suffered serious injuries to his right eye, mouth, head, face and the thigh region, and the back particularly in the lumber areas. He sustained very serious but extensive soft tissue injuries, which in the learned Doctor's opinion, would have been life threatening had they been on other vital organs of the body. Furthermore the eye injuries were very serious and they resulted in the plaintiff losing his eye sight permanently. This necessitated the need for the plaintiff to wear eye glasses. Though the plaintiff Losia Mesa, did not sustain permanent injuries, he continued to suffer from pain in the eye and encounters blurred vision despite wearing eye glasses.

10. Apart from the eye injuries sustained by the current plaintiff Mr Suruko Kito, he also sustained other bodily injuries which I take into account in computing general damage for pain and suffering. On a comparative basis, I find that both the body and eye injuries sustained by Suruko Kito are far less serious than those suffered by Losia Mesa.

11. In my view, this case is much more closer to the case of George Chapok –v-James Yali and Fred Maliupa[2008] N3474. In that case the plaintiff, a District Administrator, was summoned by the first defendant in his capacity as Governor for Madang to a meeting. As soon as he entered the Meeting Room, the first defendant abused him and punched him to the floor. Blood was drawn from the mouth and facial areas. Medical evidence showed that the plaintiff sustained a 1cm long laceration to the left side of his nose and a small bruise to the right side of the chin. Otherwise, the plaintiff's injuries were relatively minor. General damages for pain and suffering and for the shock and distress caused by this incident was assessed at K5,000.00.

12. Looking at these two cases, and on a comparative basis, I find this present case to be much closer to the case of George Chapok, than to the case of Losia Mesa. Following the court decision in George Chapok's case and doing the best I can, I will make an award of K6,000.00 for general damages for pain and suffering and for loss of amenities. This is also to cover for the shock and distress caused by the incident.

13. I also take into account the unprovoked manner in which he sustained those injuries. The particular Police officer who assaulted the plaintiff must be held responsible and should be made to account for his actions. As a police Officer, these actions of assaulting an innocent by stander are utterly distasteful and disgraceful. There is however no evidence produced by the plaintiff, Suruko Kito, of any permanent injuries being sustained as a result of the assault.

14. Furthermore, the plaintiff himself admitted and medical evidence confirmed that Suruko Kito, is partially crippled and was therefore using the crutches to aid in his walking. No medical evidence was produced by the plaintiff to show that the assault did aggravate existing pain and injuries caused to him by being crippled. On the contrary it is fair and reasonable to conclude that the assaults by the policeman upon the plaintiff had the effect of aggravating existing injuries and therefore the pains associated with the pre-existing medical condition. This is a factor against the plaintiff.

SPECIAL DAMAGES

15. Although this head of damage was not specifically pleaded and claimed in the statement of claim. The plaintiff produced a receipt of K21-00 from the Kimbe General Hospital, which he used to pay for the medical treatment he received. I will therefore allow the amount of K21-00 as special damages. In addition, the plaintiff further claimed a global amount of K2,200 being for what he claims to be the costs of transport to and from the hospital to receive medical treatment, legal costs and reasonable costs of medical treatment. These matters were not specifically pleaded in the statement of claim and therefore I will not allow matters not specifically pleaded and claimed.

EXEMPLARY DAMAGES

16. An award of exemplary or punitive damage is intended as a measure of public indignation at police officers and other servants and agents of the State whose actions amount to breach of human rights. Again a claim for exemplary damages was not specifically pleaded in the statement of claim. Consequently I will not allow any claim for exemplary damages.

INTERESTS

17. In his statement of claim, the plaintiff failed to claim and plead a claim for interests. Despite his failure, I find that the relevant legislation, ie, the Judicial Proceedings (Interests on depths and damage) Act chapter 52 does not stipulate that interest must be specifically pleaded and expressly sought by the plaintiffs. This relevant provision is section 1 and this provision empowers the court to award interest. It does not say that interest must be specifically pleaded or expressly sought by a plaintiff. Section 1 is expressed in the following terms;

"Subject to section 2, 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 think proper, on the whole or part of the debt or damage for the whole part of the period between the date on which the cause of action arose and the date of the judgment".

18. Bredmeyer J in Cheong Supermarket Pty Ltd –v- Perry Muro [1987] PNGLR 24, pointed out that 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 part of the debt or damages for which judgment has been given (4) to fix the period for which interest will run.

19. Following on from that judgment, I will exercise my discretion in this way:

(1) Any plaintiff should in the normal cause of events receive interests. There is nothing that takes this case out of the ordinary in that regard. And I will award interest to the plaintiff here and order that interest be included in the sum for which judgment is given.

(2) The rate of interest commonly used is 8%. I do not see any reason to depart from that rate. Interest will therefore be computed at a rate of 8% on the principle sum awarded to the plaintiff here.

(3) Interest is payable on the whole or the total sum of judgment for which judgment is given.

(4) I will fix the commencement date for an appropriate period as the date on which the cause of action was filed in court. In this case interest will commence on the 6th of September 2006 to the 10th February 2011 which is the day when judgment is given. I will refer to this as pre-judgment interests. This works out to 1623 days. The interests calculation is therefore worked out as follows:

K6021x 8% = K481.68 (Interests per annum).

K481.68/365 (No. Of days in a year = K1.32 (interests per day)

Interests for 1623 days = 1623 x K1.32

=K2, 142.36 (Interests for 1623 days)

Total Judgement Award is therefore:

K6000+ 21+2, 142.36= K8,163.36

20. There is also a post judgment interest which is awarded at 8% if the judgement remains unpaid for 21 days after it is awarded.

COSTS

21. The general rule, is that costs from the event, ie, the successful party has his cost paid for by the losing party on a party to party basis. The question of cost is a discretionary matter. There are no special circumstances in this case that warrant this court from departing from the general rule. I will order costs of this action to be paid by the State. This costs are to be taxed in accordance with the National Court Rules Schedule on costs, if not agreed between the parties.

JUDGMENT

22. There shall be judgement for the plaintiff in these terms:

(a) General damages for pain and suffering and for loss of amenities – K6,000-00

(b) Special damages – K21-00

(c) Exemplary damages – no award

(d) Interest- K2, 142.36 (excluding post judgement interests).

(e) Costs

(f) Total judgment debt: K8,163.36

23. The plaintiff is therefore awarded a total of K8,163.36 to compensate him for his pain and suffering and for the loss of amenities.

Judgment Accordingly

Gerhard Linge & Company Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyer for Defendants