N11494

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 182 OF 2023 (IECMS-CC4)

BETWEEN:
KELPON MORRIS
Plaintiff

AND:
ROBERT TOM
First Defendant

AND:
ACE8 SECURITY SURVEILLANCE LIMITED
Second Defendant

AND:
XYZ CONSTRUCTION (PNG) LIMITED
Third Defendant

WAIGANI: COATES J
23 SEPTEMBER 2025

PERSONAL INJURY – Assessment of damages – General damages – Human Rights damages

Cases cited
Mano v Wagambie [2023] PGNC 179
Kolokol v Amburuapi [2009] PGNC 1

Counsel
Mr J. P. Gene, for plaintiff 
Ms F. Agi, for third defendant

DECISION

1.	COATES J: On 16 January 2022, the plaintiff was assaulted by the first defendant, after attending the third defendant’s construction site to work as a Carpenter.

2.	He was assaulted by the first defendant who had armed himself with a length of reinforcement bar (rebar) and was hit without warning across the head.

3.	He suffered the following injuries: bruising to his face, gross swelling to and around his right eye, severe damage causing blindness to his right eye and he required surgery under a general anaesthetic. He has lost one hundred percent use of his right eye and sixty percent use of his binocular vision with cosmetic disfiguration to his face. 

4.	The first defendant was employed by the second defendant as a security officer on the building site owned by the third defendant.

5.	By way of background the plaintiff was employed between 14 January 2021 and 19 January 2022 as a Carpenter. He was aged 50 at the time of the assault. 

6.	On 16 January 2022 the plaintiff was told by the site supervisor that his employment was finished as he had been reported for stealing materials.

7.	On stating that he did not steal anything he attempted to see the third defendants’ officers on the second floor of the building under construction and was followed upstairs by the first defendant.

8.	The first defendant warned him not to go further up the stairs and as he sat, he turned his head and saw the first defendant swing the rebar at him, striking his head in the right eye socket.

9.	He was rushed to hospital.

10.	Liability was determined when summary judgment was given against the defendants on 21 March 2025. 

11.	The matter on being set for a hearing to determine the award of damages, was met with as A Notice of Motion filed 8 May 2025 to set aside that judgment.

12.	As there was no appearance by the defendants, despite the Court being satisfied that parties knew the matter was listed due to correspondence on the file, the Notice of Motion setting aside the judgment was not moved. It was filed by the third defendant. I formally dismissed it because there was no appearance. 

ASSESSMENT OF DAMAGES

13.	The plaintiff filed submissions as to an assessment of damages on 25 April 2025.

14.	No submissions were filed as to an assessment of damages by the defendants.

15.	I am satisfied that the plaintiff correctly outlines the assessment of damages relying on Mano v Wagambie [2023] PGNC 179, a decision by His Honour Cannings J.

16.	Those principles put the onus on the plaintiff to prove losses on the balance of probability, such usually requires corroboration, that assessment includes assessing as near as possible the damages and that the court be alert for unsupported claims.

17.	As to what is generally referred to as general damages for negligence the plaintiff claims K100,000.00, as to future economic loss he claims K183,456.00 and as for special damages he claims K2,720.00.

18.	Given that he has lost his eyesight from his right eye and I accept the medical evidence, particularly that of Dr Robert Ko, an ophthalmologist, in relation to that and given that he has a good work history, I accept his future economic loss. I accept that special damages, as claimed are payable in this matter for out-of-pocket expenses and travel expenses.

19.	So the plaintiff will be awarded K100,000.00 + K183,456.00 + K2,720.00.

20.	The plaintiff also claims damages for the breaches of his human rights, and relies on the case of Kolokol v Amburuapi [2009] PGNC 1; N3571, a decision by Cannings J, who stated: “12. There are at least two ways of assessing damages in human rights cases. The first is to identify the different causes of action and award damages or compensation for each cause of action. A breach of a human right or constitutional right is properly regarded as a discrete cause of action. An alternative approach is to award just one, global sum of damages or compensation for all causes of action.”

21.	In that case His Honour concluded that “This was a case where compensation for breaches of human rights should be assessed separately from general damages (covering pain and suffering, loss of functionality of the plaintiffs leg etc)”.

22.	It seems to me that the plaintiff here has a claim as a breach of his human rights. However a separate claim ought to be made where an injury occurs when an entity charged with, for example, protection of people, breaches the law, as occurred in the Kolokol case, where the plaintiff was unlawfully assaulted by police officers. That is not the only circumstance in which a separate claim could be made. The circumstance would have some special character about it, its identification as a special circumstance being apparent, otherwise a breach of human rights claim via an injury is adequately assessed by adding it to the global sum of general damages.

23.	That being said, in following His Honour’s sensible dictum, the human rights breach ought to be included in the general claim, which I intend to do, exercising a discretion to award such amount. It appears that K6,000.00 for such injury is within range, and will be added to the amount already stated.

24.	The plaintiff claims K7,000.00 in exemplary damages. Exemplary damages are over and above general damages and may be awarded as a discretion where the defendant has shown conscious wrongdoing, such obviously being in disregard of a right not to be injured. In this case without presenting any evidence to the contrary the first defendant has violently injured the plaintiff and of course he was employed by the second defendant the second defendant being employed by the third defendant, which allows for their vicarious liability.

25.	Simply put, it is up to businesses to ensure that they do not employ people of a violent nature and to ensure through workplace practised that people employed in the position of guards do not have authority to enforce what they believe personally is an enforceable dispute between an employer and employee. On that basis I will award K7,000.00 in exemplary damages and add that to the amounts.

26.	Finally, a sum of K79,142.99 is claimed as interest backdated to the injury, on an indemnity basis because the defendants had not properly met the case filed against them.

27.	Indemnity costs have to be out of the ordinary and could include circumstances which have in some way delayed the matter or caused extra costs. Simply because the defendants have chosen not to properly engage is not a matter in this particular case for indemnity costs. Therefore, I will award costs on a party-party basis at eight percent interest from the time the orders were made setting the matter down for trial. That the defendants did not properly consider their position is a matter for them knowing that the costs as awarded now could be made. That the court has taken time according to its schedule and setting the matter for trial is not the fault of the defendants.

28.	The defendants will jointly and severally be liable for the following costs: general damages for negligence at K100,000.00, breach of human rights at K6000.00, exemplary damages at K7000.00, future economic loss at K183,456.00, special damages at K2,720.00 plus interest at 8 percent from the time the matter was listed for trial.

ORDERS
1.	The Defendants jointly and severally pay the Plaintiff the sum of K299,176.00.

2.	Interest is applied to that amount from the date the trial was set until payment at eight percent per annum.

3.	Costs shall be paid by the defendants jointly and severally on a party-party basis. 

4.	The Notice of Motion filed by the third defendant on 8 May 2025 is dismissed. 

Judgement accordingly 
________________________________________________________________
Lawyer for plaintiff: Public Solicitor
Lawyers for third defendant: Fiocco & Nutley Lawyers