Kondai v Saul [2015] PGNC 14; N5865 (19 February 2015)

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DAMAGES – trespass to the person – plaintiff intentionally knocked over by vehicle driven by defendant – shoulder and arm injury – trauma – assessment of damages after entry of default judgment.

The plaintiff and the defendant had an altercation during the course of which the defendant deliberately rammed the plaintiff with the vehicle he was driving, causing permanent injury to the right shoulder, arm and hand. The plaintiff sued the defendant, claiming damages for the tort of trespass to the person. The defendant failed to defend the matter and default judgment was entered against him. At this trial on assessment of damages the plaintiff sought general damages of K60,000.00.

Bolisa Figa v Willie Agong (2012) N4707
George Chapok v James Yali (2008) N3474
Jessie Namba v The State (2011) N4396
John Pias v Michael Kodi & Ors (2006) N2972
Lance Kolokol v The State (2009) N3571
Losia Mesa v The State (2009) N3681
Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364
Thomas Jinamy v The State (2008) N3481
Wandi Dope v Constable Michael Malai (2012) N4574
William Mel v Coleman Pakalia (2005) SC790

1. CANNINGS J: This is an assessment of damages for the tort of trespass to the person, following entry of default judgment. The plaintiff, Michael Kondai, and the defendant, Gabriel Saul, had an altercation outside the plaintiff's residence in Yabob Road, Madang on 31 January 2008, which led to the plaintiff sustaining injuries to his right arm and shoulder.

2. The plaintiff commenced civil proceedings against the defendant on 7 August 2011. The defendant failed to file a defence and default judgment on liability was ordered on 22 August 2013.

3. The effect of the default judgment is that the facts and cause of action pleaded in the statement of claim are presumed to have been proven, and are only revisited if they do not make sense or would make an assessment of damages a futile exercise (William Mel v Coleman Pakalia (2005) SC790). Here, the facts pleaded were clear, as was the cause of action relied on, so the issue of liability has not been reconsidered.

4. The plaintiff has proven that the defendant was the instigator of the incident. The defendant assaulted the plaintiff without lawful excuse causing him bodily injury. It appears to have been a case of mistaken identity. During the course of the incident, the defendant deliberately rammed the plaintiff with the vehicle he was driving. The plaintiff was knocked over and almost fell beneath the vehicle. It was a life-threatening and traumatic incident.

5. The plaintiff seeks only one category of damages, general damages, which his counsel Mr Tabai submitted should be assessed at K60,000.00. Mr Meten for the defendant did not dispute that an award of general damages was appropriate. However, he submitted that the claim was excessive, due to deficiencies in the medical evidence. Relying on the decision of Makail AJ in Thomas Jinamy v The State (2008) N3481 (in which the plaintiff suffered a 15% loss of function in the left arm, due to a bridge collapse caused by the negligent defendant), Mr Meten submitted that an award of no more than K14,000.00 was warranted.

6. This is intended to compensate the plaintiff for the pain and suffering, humiliation, distress and inconvenience caused by the unlawful actions of the defendant. The purpose of an award of general damages is to compensate the plaintiff. To put him as far as possible in the same position he would have been in had he not suffered the injuries incurred because of the defendant's wrongful conduct. General damages are intended to be neither a reward nor a penalty (Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364).

7. In assessing general damages I have considered my decisions in previous cases summarised in the table below. The facts are similar to the present case in that the wrongdoers have engaged in deliberate (rather than just negligent) conduct, involving an unlawful assault on the plaintiff.

No	Case	Details	Amount
1	John Pias v Michael Kodi & Ors (2006) N2972 Mt Hagen	Three Defence Force soldiers unlawfully assaulted the plaintiff in a hotel – he lost the sight of one eye – general damages were assessed as representing the pain and suffering and loss of amenities of life associated with his loss of 100% vision in the right eye.	K60,000.00
2	George Chapok v James Yali (2008) N3474 Madang	The plaintiff was summoned to a meeting at which the defendant, the provincial governor, was present – soon after the plaintiff entered the room, the defendant abused him and punched him to the floor – liability entered for trespass to the person – plaintiff suffered a bloodied nose and facial abrasions – no life threatening or permanent injuries and he was not hospitalised.	K5,000.00
3	Lance Kolokol v The State (2009) N3571 Madang	The plaintiff, an innocent man, was walking with friends near a public road – when he saw the police he ran away and was chased on suspicion of being involved in an armed robbery – he was caught, assaulted and shot in the leg and foot, then detained in custody for three days before being taken before a court, which granted him bail.	K25,000.00
4	Losia Mesa v The State (2009) N3681 Kimbe	The plaintiff was working in his office at a local-level government when the deputy mayor walked in accompanied by armed police officers – the police officers unlawfully assaulted the plaintiff – also assaulted on arrival at the station – suffered multiple soft tissue facial injuries and eye injury, leading to blurred vision and reduced visual acuity.	K25,000.00
5	Jessie Namba v The State (2011) N4396 Madang	The plaintiff was shot in the leg by the police, for no good reason – he was detained in custody and then taken to hospital and his leg was amputated below the knee.	K150,000.00
6	Wandi Dope v Constable Michael Malai (2012) N4574 Madang	The plaintiff was a victim of human rights breaches committed by police officers who assaulted him when he refused to pay a spot fine for unlawful possession of betel nut – the police detained him for six days without charge, assaulted him and denied him food and medical treatment – suffered permanent damage to the head, mandible, teeth, thighs and knees and post-traumatic stress syndrome.	K20,000.00
7	Bolisa Figa v Willie Agong (2012) N4707 Madang	The plaintiff was unlawfully assaulted by the defendant and a group of police officers at a police station – general damages were awarded for the tort of trespass to the person – the plaintiff was badly shaken up, suffering a swollen nose and face, blood clots, breathing difficulty, painful jaws making eating difficult, sore tongue and gums, painful right and left ribs, painful hip joints and thighs – but no life threatening or permanent injuries and he was not hospitalised.	K10,000.00

8. In comparing and contrasting the facts of the present case with those in the above cases, there are two things I am focussing on: the nature and extent of the injuries and the circumstances of the assault.

9. As to the injuries, three medical reports have been adduced in evidence. The first is by Dr Alois Kawa, dated 4 February 2008 (within a week of the incident), who reported that the plaintiff's injuries were:

Significant wasting of the triceps and biceps muscles of the upper right arm (50% smaller than the left side).

11. The third report is by Dr Maihua dated 8 November 2012, who reported that the plaintiff's injuries had not improved and that the percentage of functional disability was the same as when he examined the plaintiff in 2009.

12. Mr Meten submitted that little weight should be placed on Dr Maihua's reports as they were prepared a long time after the incident and they contrast with Dr Kawa's report, which was prepared just a few days after the incident when it was reported that the "prognosis is good". I reject that submission. Medical reports prepared soon after an injury has been sustained do not necessarily deserve more weight than later reports. In fact, later reports, as a rule of thumb, deserve more weight as it will sometimes be the case – and it appears to be the case here – that the adverse effects of an injury will only become apparent after a lapse of time. Dr Maihua's evidence was adduced in the form of an affidavit and he was not required for cross-examination, so I accept his evidence at face value. I find that the plaintiff has suffered permanent injuries to his right shoulder and hand, involving a 20% loss of efficient use and power.

13. As for the circumstances of the assault, it was a nasty incident in which the plaintiff genuinely feared for his life and also for the well-being of his wife and children who were in the immediate vicinity. He deserves to be compensated for the trauma he suffered.

14. The injuries suffered by the plaintiff and the circumstances of the assault are not as serious as in the cases of Pias, Kolokol, Mesa, Namba and Dope; but according to the two main criteria I have identified this is a more serious case than Chapok, Figa or Jinamy. I award general damages of K15,000.00.

15. Interest will be awarded at the rate of 8 per cent per annum on the total amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest will be calculated in respect of the period from the date on which the cause of action accrued (31 January 2008) to the date of this judgment, a period of 7.05 years, by applying the formula D x I x N = A, where: D is the amount of damages, I is the rate of interest per annum, N is the appropriate period in numbers of years and A is the amount of interest. Thus, K15,000.00 x 0.08 x 7.05 = K8,460.00.

16. The general rule is that costs follow the event, ie the successful party has his costs paid for by the losing party on a party-to-party basis. I apply that rule of thumb here. The plaintiff is the successful party and will be awarded costs.

Judgment accordingly.
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Tabai Lawyers: Lawyers for the Plaintiff
Meten Lawyers: Lawyers for the Defendant

National Court of Papua New Guinea

Kondai v Saul [2015] PGNC 14; N5865 (19 February 2015)