N4531

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

APP NO168 OF 2010

BETWEEN

KURT REIMANN
Appellant

AND

HARRY NINGISERE
Respondent

Hoskins: Kawi, J
2011:14th September
Kimbe: 18th October 2011

DISTRICT COURTS- Practice and Procedure – Civil Appeals- Appeal from District Court to the National Court- Appeal Against findings of liability and Assessment of Damages- Tort of trespass to person- Need to establish liability first before question of damages arises- Award of Damages is dependent on establishing liability first and foremost- Need to prove damages with particularity and certainty- Allegation against appellant of using Kungfu style techniques to assault respondent- Allegation not proven on required civil standard- Award of K10,000.00 in damages for a very minor assault. Award very excessive- Finding of liability highly doubtful- Evidence produced by the appellant prove that respondent was slapped on the cheek and evicted from being unlawfully on premises and stalking and harassing a female employee and her daughter- Assault justified- Appeal allowed- Decision of Kimbe District Court quashed.

Facts

The Respondent sued the appellant in the District Court for assault and battery to his person. Evidence produced by the appellant proved that the respondent was slapped on the cheek and evicted from the premises of female employees of a security firm owned by the appellant. The Respondent /Complainant had been stalking and harassing a female security guard and her daughter continuously for some time. Having established liability the learned magistrate then awarded damages in the sum of K10,000.00. The Appellant appealed against both, the finding of liability and the award of damages:

HELD: (1) 	In a civil action, there are two distinct but related elements to be proved on the balance of probabilities. There is the question of liability and damages. An award for damages only arises, and is dependent on a successful finding of liability.

(2) A tort of trespass to a person, entails that the court must be satisfied of three elements:

(a) The Defendant violated the body of complainant by threatening to harm him (battery) or actually assaulting him. (assault).
(b) The defendant acted intentionally
(c) The defendant acted unlawfully; ie without reasonable excuse or justification.

(3) 	Here the evidence adduced by the appellant proved that the assault on the respondent/ complainant was justified or excused, as he (ie Respondent) was slapped once on the cheek, in the process of having him evicted from the female employee's compound, when he put up resistance from being evicted. Evidence had established that the Respondent had been continuously stalking and harassing a female employee and her daughter.

(4) The award of K10,000.00 in damages is not justified because:

(a) There was no proper assessment of damages done by the learned magistrate;

(b) There was no medical evidence produced by the Respondent/complainant to show the kind of bodily injuries he sustained, the nature and extent of such injuries and the permanent nature of such bodily injuries expressed in terms of percentages. 

(c) Without undertaking a proper assessment of damages, the learned magistrate committed a gross error of law, in entertaining a claim for damages and awarding the exact amount claimed by the complainant. In so doing the magistrate was doing what is contrary to the Bonham Carter Principle and the Ray Teese Principle, these Principles now being adopted and applied as part of the underlying law of Papua New Guinea.

(5) 	In the circumstances the appeal is allowed and the decision of the Kimbe District Court is quashed. Cost of the Appeal is awarded to the appellant.

Cases cited

Papua New Guinea cases

University of Papua New Guinea –v- Jerry Duwaino [2011] SC 1119
David Michael –v- Dennis Marus [2008] N3374
Jonathan Mangope Paraia –v- The State [1995] N134. 
Yange Lagan –v- The State [1995] N1369.
 Kopung Brothers Business Group –v- Sakawar Kasieng [1997] PNGLR 331, Yooken Palikin –v- The State [2001] N2212.
Kolaip Palapi –v- Sergeant Poko, [2001] N2274.
 Paul & Grace Nari –v- The State [2004] N2769.
 Stanley Magi Eremugo –v- Daniel Tande [2005] N2889.
Firman Mawa –v- Southern Highlands Provincial Government [2008] N3505.
 Kui Valley Business Group –v- Kerry Wamugl [2009] N3667.
 Martin Paiaore –v- Ian Barr [2009] N3786, 
Bob Kol –v- The State [2010] N3912.
Peter Goodenough –v- The State [2001] N2157

Overseas cases

Ray Teese Pty Ltd –v- Syntex Australia Limited [1998] 1 Qd R, 104. 
Bonham Carter –v- Hyden Park Hotel Ltd [1948] 64 TLR 178.

Counsel

Mr. Robert Awalua, for the Appellant
Mr. Doko Kari, for the Respondent

18th October, 2011
 
1. KAWI, J: Kurt Reimann appealed against the judgment of the Kimbe District Court dated 23rd September 2010. He was sued in the District Court for assault and battery by the Respondent Harry Ningisere, who claimed damages thereof in consequence.

DECISION OF THE DISTRICT COURT

2. On the 23rd of September 2010, the Kimbe District Court heard a complaint of assault and battery perpetrated upon the Respondent/Complainant by the Appellant/Respondent, Kurt Reimann. The learned magistrate found the complaint proved and proceeded onto making the following awards of damages:

K10,000.00-	general damages.	
K 800.00-	interests	
K 200.00-	costs	
TOTAL:	K11,000.00	

3. A total judgment award of K11,000.00 was made, which the court ordered that it be paid forthwith within a period of two months.

GROUNDS OF APPEAL

4. Clearly aggrieved by this judgment, the appellant lodged an appeal to the National Court citing the following grounds of appeal:

(1)	The decision by the Grade Five Court was made against the weight of the evidence presented by the respondent in Court; and

(2)	The amount of K11,00.00 inclusive of costs awarded to the respondent was manifestly excessive and unjust under the circumstances.

5. The orders which the appellant seeks in lieu are that:

(a)	the orders of the Kimbe District Court be quashed.

(b)	Costs be awarded to the appellant.

6. Grounds 1 cited in the Notice of Appeal can be further reduced into an appeal against liability and Grounds 2 raises questions about the amount of monetary damages awarded in respect of damages.

7. In any civil actions brought before a court of law, there are two district elements to be determined. That is the question of liability and the question of damages. A determination of liability is a necessary pre-requisite for determining damages, whether or not liability is in issue, in the proceedings. 

8. Except where liability is admitted in the pleadings or by evidence or statement made in court by the defendant or his or her counsel, in which case liability may be determined without consideration of any evidence; a determination of liability is based on a consideration of admissible and relevant evidence.

9. The onus is on the complainant to produce that evidence for the court to assess, make findings of fact and applying the law to these findings to reach a conclusion as to liability.

DETERMINATION OF LIABILITY

10. In the present appeal, the District Court was confronted with a complaint of assault and battery to a person, as the learned magistrate stated in his reasons.

11. In effect the complaint before the District Court was a complaint of unlawful trespass to a person. The tort of trespass to a person has three (3) elements which has to be proven before a finding on liability can be made. These three elements are:

(a)	The defendant violated the plaintiff's body by threatening to harm (assault) and/or actually physically harming the complainant (battery).

(b)	The defendant acted intentionally,

(c)	The defendant acted unlawfully; ie without lawful justification or excuse.

See David Michael –v- Dennis Marus [2008] N3374. 

12. In the present case the learned magistrate found that there was assault and battery upon the complainant/respondent and it was an intentional assault. The learned magistrate further found that it was an unlawful assault. His worship therefore found that liability was fully established.

13. I have reviewed the magistrate's reasons and findings of liability against the appellant/defendant. In my view, there is some doubts arising as to the question of assault being unlawful, ie the assault being without lawful justification or excuse. Before the District Court magistrate, was the affidavit evidence of Ms Margaret Kerari. Margaret was employed by Orion Security Services, a company owned by the appellant as a security guard. The complainant in the court below, (respondent in the present appeal) was, until his termination, also a security guard employed by the appellant's Security Company. Following his termination, the respondent has continuously made approaches of a sexual nature to the said, Margaret Kerari.
He continuously trespassed onto the house of Margaret which was company housing, claiming her to be his wife. He had in pursuit of his carnal desires, stalked, harassed and unlawfully assaulted Margaret. He had abused her to a point where Margaret had on many occasions called her boss, the appellant, to come to her rescue. This continued on for many occasions, until the incident, the subject of this complaint and subsequent appeal. 

14. On the day in question, Margaret was again stalked, harassed and abused by the respondent, Harry Ningisere. She called the appellant for help. On the way, the appellant stopped at the Kimbe Police Station and picked up a policeman to assist him and evict the respondent, Harry Ningisere, from Margaret's premises. When they approached the respondent, he refused to be evicted and resisted.

15. Margaret Kerari further deposed in her affidavit filed in support of the appellant, that she did witness, the defendant, using his open palm and slapped the complainant once on his left cheek and ordered him to vacate the premises. This was after the complainant's continuous refusal to leave. The complainant left and did not come back that day. 

16. In paragraphs 10-16 of her affidavit she (ie Margaret) deposes to details of the harassment and abuses by Harry Ningisere upon herself, and her frequent phone calls to her employer, the appellant to come to her rescue.

17. Having considered this evidence in some detail, I am left with the inevitable conclusion that the assault by the appellant upon the respondent was justified. In other words, it was an assault that had to be made to have the complainant, Harry Ningisere leave the female compound.

18. In my view, the element of unlawfulness of the assault could not be established. Neither could Harry Ningisere, provide sufficient evidences to verify and corroborate the allegations that the appellant used kungfu style techniques to assault him. The only witness to this assault was Margaret Kerari, and the learned magistrate should have considered her evidence when making findings of liability. The magistrate completely ignored his findings.

19. In paragraph 15 of her affidavit sworn on the 22nd July 2010, she stated that; "at that relevant time, I did not notice nor witnessed martial arts techniques. If that was what happened, then the complainant would be seriously injured considering the size of the defendant."

20. At paragraph 16, she states; "I reasonably believed that the complainant's claim should not be entertained at all, because my personal well being and that of my daughter would be under serious threat, if the defendant had not attended to our call for help."

21. The learned magistrate completely ignored this vital piece of evidence, which justifies the assault upon the respondent. I find that the assault was excused. I would uphold this ground of appeal against a finding of liability.

DAMAGES

22. The next ground of appeal questions the amount awarded as damages for the injuries sustained. The learned magistrate after making a finding as to liability, made an award of K10,000.00 for the alleged bodily injuries sustained by the complainant, together with an award of K200.00 on account of costs and a further amount of K800.00 being on account of interests.

23. Looking through the magistrate's reasons for judgment, it is very clear that there was no medical evidence to justify and support a damages award of K10,000.00. There is nothing in the Transcripts to show that a proper assessment of damages was undertaken by the learned magistrate. The court simply made a global award of K10,000.00 to come within the jurisdictional limits of the District Courts.

24. The magistrate simply did not have the necessary evidence to substantiate his award of K10,000.00. 

25. The objective of an award for damages is to give the injured party compensation for whatever injury or loss he suffered.

26. Assuming that the claim for damages was properly before the court, the onus, was thus placed on the respondent/complainant to prove the damages being claimed. The complainant has an obligation to prove his losses with much certainty and particularity as is reasonable.

See Ray Teese Pty Ltd –v- Syntex Australia Limited [1998] 1 Qd R, 104. Lord Goddard CJ in the case of Bonham Carter –v- Hyden Park Hotel [1948], 64 TLR 178 said; "Plaintiffs must understand that if they bring actions, for damages, it is for them to prove their damages, it is not good enough to write down particulars and so to speak, throw them at the hand of the court saying, this is what I have lost, I ask you to give these damages. They have to prove it." 

27. This principle has been adopted and applied in many decisions of the National Court. The principle was first adopted and applied by Injia J (as he then was) in Jonathan Mangope Paraia –v- The State [1995] N1343 and applied in subsequent cases; Yange Lagan –v- The State [1995] N1369, Kopung Brothers Business Group –v- Sakawar Kasieng [1997] PNGLR 331, Yooken Palikin –v- The State [2001] N2212, Kolaip Palapi –v- Sergeant Poko, [2001] N2274, Paul & Grace Nari –v- The State [2004] N2769, Stanley Magi Eremugo –v- Daniel Tande [2005] N2889, Firman Mawa –v- Southern Highlands Provincial Government [2008] N3505, Kui Valley Business Group –v- Kerry Wamugl [2009] N3667, Martin Paiaore –v- Ian Barr [2009] N3786, Bob Kol –v- The State [2010] N3912.

28. In Peter Goodenough –v- The State [2001] N2157, referring to the Bonham Carter principle, Salika J (as he then was) had this to say:

"I adopt these statements, as I am of the view that they are reasonable and logical and should be applied by the courts in Papua New Guinea. Every plaintiff who wishes to be put in the same position, as he would have had the tort not been committed, has an obligation to prove his claim. He has to call evidence relevant to prove his damage. If he fails to provide the relevant evidence, his claim is likely to fail."

29. Moreover, the Supreme Court comprising Injia CJ, Gabi J and Kawi J have now approved the Bonham Carter principles as forming part of the underlying law of Papua New Guinea, in the case of University of Papua New Guinea –v- Jerry Duwaino [2011] SC 1119.
In that case, their Honours said:

"The principle in Bonham Carter is appropriate to the assessment of damages. We affirm those principles forming part of the underlying law of Papua New Guinea. We apply the principle in the case before us."

30. In Jerry Duwaino's case, the Supreme Court held that liability would have been attached to finding of wrongful termination of the Security employment contract. Similarly there was no evidence of liability being determined before the National Court. In consequence thereof, both the District Court and the National Court could not have made a determination on breach of employment contract and thereby award damages.

31. Furthermore, the Supreme Court who also stated that the question of damages only arises following a determination as to liability. The objective of an award for damages is to put the injured party in the same position as he would have been in but for the injuries suffered for which he is now getting damages.

32. Assuming that the claim for damages was properly before the court, the onus was on the respondent/complainant to prove the damages claimed. The plaintiff has an obligation to prove his losses with much certainty and particularity.

33. Finally the Supreme Court in the Jerry Duwaino case re-stated the Ray Tesse principle by saying that, "It is not sufficient for a plaintiff to simply write down his alleged losses and then request the court to give him back those damages. The plaintiff has an obligation to prove these losses."

34. Applying these legal principles to the circumstances of this case, I find that the learned magistrate made some gross cardinal errors in his application of the facts to the law. I make the following findings:

1.	As to liability, I have already made a finding that the assault was justified. Consequently, there would have to be a judgment that there was any finding of liability was erroneously done. The assault was justified or excused by law.

2.	As to damages, I find that the learned magistrate fell into gross error when he awarded damages in the sum of K10,000.00. There was simply no evidence for His Worship to award K10,000.00 in damages. Such award needs to be justified by proper medical evidence, outlining the bodily injuries sustained as well as indicating clearly the nature of and the degree of permanent bodily injuries sustained from the unlawful assault perpetrated by the appellant. 

Furthermore, there was no evidence to show that a proper assessment of interests was carried out by the learned magistrate. Similarly the costs aspect was not properly assessed as well.

3.	The learned magistrate without undertaking a proper assessment of damages was simply doing what is contrary to the Bonham Carter principle and the Ray Teese Principle. Without calling necessary evidence to prove his damages, the complainant simply nominated a figure out of the blue, threw it at the hands of the court and asked the magistrate to give him those monetary damages.

4.	The magistrate simply gave him back the damages he asked for without undertaking a proper assessment of it.

In doing so, I am of the view that the learned magistrate, made a gross error in entertaining a claim for damages and awarding monetary damages. 

Pursuant to Section 230 of the District Court Act, I would make the following orders:

(1)	The appeal against the orders of the Kimbe District Court is upheld on both liability and damages.

(2)	The said District Court decision is allowed and quashed in its entirety.

(3)	The respondent shall pay the appellant's costs of this appeal.

_______________________________________________________

Awalua Lawyers: Lawyer for the Appellant
Public Solicitor: Lawyer for the Respondent