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Grifin v Vuduy [2011] VUSC 101; Civil Appeal Case 3 of 2010 (17 June 2011)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Appeal Case No. 03 of 2010

BETWEEN:

SEAN LESLIE GRIFFIN
Claimant/Appellant

AND:

RONALD VUDUY
Defendant/Respondent

Coram: Justice D. V. Fatiaki
Counsels: Mr. J. L. Napuati for the Appellant
Mr. D. Yawah or the Respondent
Date of Decision: 17 June 2011

JUDGMENT

1. This is an appeal against a decision of the Magistrate's Court, Port Vila dated 17 December 2009 in which the Magistrate Court although finding that there was a confrontation between the parties outside the Port Vila Hardware on 10 March 2009 in which the "Defendant assaulted the claimant", nevertheless, dismissed the claim for damages ostensibly "because the claimant has failed to prove, on the balance of probabilities, that he has sustained serious injuries as a result of the Defendant's assault ...". I shall maintain the parties original capacities throughout this judgment for ease of reference.
   
2. The Claimant now appeals against the magistrate's decision asking that "(it) be wholly rescinded". Presumably, what is meant by that is the magistrate's decision dismissing the claim in its entirety and not his finding on Issue One that the Claimant was assaulted by the Defendant.
   
3. The original claim averred that the Claimant was assaulted by the Defendant in a public place, namely, outside Port Vila Hardware Store (No. 2 area) on 10th March 2009 at or about 9.00 a.m. in the forenoon. The Claimant also sought inter alia reimbursement of (unquantified) medical expenses; loss of (unquantified) revenue; common law damages, court fees and legal costs.
   
4. On 4 May 2009 the Claimant filed a significantly fuller amended claim which describes the prior relationship between the parties going back to 2007 when they were both employees of ENCOM LIMITED. The Claimant was Operations Manager and the immediate supervisor of the Defendant who was the Works Foreman. The Defendant allegedly "resigned" from his employment in June 2007 and, over the following months, relations soured between the parties over the Defendant's persistent claim to be entitled to receive 3 months salary in lieu of notice under the Employment Act when his employment ceased with ENCOM.
   
5. I say 'allegedly' because in his defence the Defendant accepts that he had given an oral notice for resignation (when? and to whom? is not disclosed) but, in any event, the Defendant denies that he resigned and instead asserts, that he was called into the Claimants office on 13 June 2007 and was "... terminated on the spot". Unfortunately, the deterioration in relations continued between the parties and culminated with the assault on the Claimant outside Port Vila Hardware Store.
   
6. In this regard, even if the Defendant is correct that he had not resigned, but was summarily terminated, the Employment Act is clear in Section 15 (4) that where no notice of termination is given to a terminated employee, it is "the employer" (not the officer who terminated the employee) who is liable to pay "the full amount of remuneration for the appropriate period of notice" that should have been given. Plainly, the Defendant's demands were directed at the wrong person and were misguided and wrong.
   
7. The amended claim also fully sets out details of the internal injuries the Claimant sustained as a result of the Defendant's assault on him and the medical expenses incurred, as well as the losses sustained by him whilst off work recuperating from his injuries. The amended claim also seeks common law damages of VT200,000 and aggravated and exemplary damages of VT150,000 together with all legal costs involved in bringing and prosecuting the claim.
   
8. On 11 October 2010 this Court gave directions for the preparation of the appeal book. This was done within the time given and included written submissions from the appellant's counsel in pursuing the appeal. On 27 October 2010 defence counsel was granted time to file a written submission in response. On 19 November when the matter was next called to fix a hearing date for the appeal, defence counsel sought a further 2 week extension to file the written submission. This was granted with wasted costs ordered against the Defendant. On 6 December 2010 in the absence of any submissions or indications from defence counsel, who did not appear, judgment was reserved. As of the date of this judgment no submissions or explanation has been received from defence counsel.
   
9. Be that as it may I now deliver my judgment on the appeal and I note that no cross-appeal has been filed by the Defendant challenging the trial magistrate's finding that the Defendant had assaulted the Claimant outside Port Vila Hardware Store on the morning of 10 March 2009. Indeed, in his response to the notice of appeal, the Defendant "... insisted that the judgment of the Chief Magistrate in Civil Case NO. 24 of 2009 be upheld". Accordingly, the trial magistrate's finding that the Defendant assaulted the Claimant is upheld. The appeal therefore boils down to a complaint that the magistrate erred in not awarding the Claimant any damages in all the circumstances.
   
10. In this particular regard, the trial magistrate dealt with Issue Two ie. "Whether the Claimant did suffer the damages and losses as claimed", as follows in his judgment:
    

"2. The assault on the 10th of March 2009 was not to the extent of causing serious injuries. There were no medical expert opinion evidence called by the Claimant and even the witnesses called by the Claimant gave contradicting testimonies of how the assault occurred. Most of the witnesses only described the assault only as a slap as oppose to a punch. According to the evidence adduced, there was no bloodshed, no bruises or swelling sustained by the Claimant or even the inability to drive his motor vehicle back to his workplace as a direct result of the Defendant's assault on the Claimant on the 10th of March 2009.

3. Because the Claimant has failed to prove, on the balance of probabilities, that he has sustained serious injuries as a result of the Defendant's assault on the 10th of March 2009, the claims for financial losses therefore by the Claimant must fail because of the Claimant. The plans and the purchase of the airline tickets to New Caledonia were made by the Claimant's spouse well before the assault took place. There was no medical opinion recommending an overseas treatment.

4. Because there is already a criminal proceeding commenced against the Defendant for the assault on the Claimant, it would be too early to order any exemplary damages at this stage.

Upon these findings the Court dismiss the claims against the Defendant and orders costs against the Claimant to be agreed or taxed failing agreement."

11. It is clear that the trial magistrate dismissed the claim for damages because of a lack of proof of serious injury in the sense of visible blood bruises, or swelling and an immediate lack of coordination. In doing so the trial magistrate noted the absence of medical expert opinion evidence without any mention of the Claimant's undisputed medical report, prescription, and sick sheets provided by Dr. Spooner of the Medical Centre on the 10th and 12th of March 2009 which all formed annexures to the Claimant's sworn statements which were admitted in the trial and "... becomes evidence in the proceeding unless the court has ruled inadmissible". There is no such ruling clearly noted in the trial record.
    
12. Had the trial magistrate referred to these annexures (as he should have) he would have noticed that the Claimant attended Dr. Spooner's clinic on 10 March 2009 soon after he was assaulted by the Defendant and was given a prescription for medicines and a sick sheet that the Claimant was, in the opinion of Dr. Spooner, "unfit to work for two (2) days".
    
13. The trial magistrate would have also noticed that Dr. Spooner is a distinguished qualified medical practitioner and, more importantly, he would have read the contents of the Claimant's medical report prepared by Dr. Spooner who had medically examined the Claimant on "10.03.09 at 10.30am" at the request of the police, and which recorded the following material findings:
    
    • "(L) ear inflamed meatal (?) walls → ear drum.
    • External ear – Pinna red and swollen
    • Was and still is unsteady in trying to balance himself."
      

The report also included the following relevant opinion:

"was slapped with open palms with a strong force which caused his complaints. It should take some weeks before he regain normality again with his balance."
(my underlining)

14. Finally, there is the Claimant's second sick sheet from Dr. Spooner dated '12/03/09' which certified him "unfit to work for two (2) days". It would also have been obvious on the face of the annexures that the Claimant paid two (2) lots of consultation fees of VT4,200 as well as VT2,195 to Healthwise Pharmacy for his prescription medicines.
    
15. There is also the evidence of the Claimant's treatment in Nouméa by a Dr. Corinne Nephtali for which he also received a prescription and a certificate dated 23 March 2009. Unfortunately there is no detailed report or evidence of the actual treatment given to the Claimant or the medical condition that was being treated, nor, is there evidence to support the claimed medical evacuation of the Claimant to Nouméa on 20 March 2009. In this instance the trial magistrate was plainly entitled to reject the Claimant's expenses for lack of satisfactory proof.
    
16. Given the undisputed evidence the trial magistrate plainly erred in finding that there was no evidence of serious injury or that there was no medical expert opinion.
    
17. Even if one were to assume that the trial magistrate were correct in finding that there was no evidence of injury caused to the Claimant as a result of the Defendant's assault, that finding would not disentitle the Claimant to an award of damages. As was said by the learned authors of Salmond & Henston on the Law of Torts (21st edn) at (p. 120):
    

"The application of force to the person of another without lawful justification amounts to the wrong of battery. This is so however trivial the amount or nature of the force may be, and even though it does not ... do any manner of harm. Even to touch a person without his consent or some other lawful reason is actionable. Nor is anger or hostility essential to liability ... For the interest that is protected by the law of assault and battery is not merely that of freedom from bodily harm, but also freedom from such forms of insult as may be due to interference with his person. In respect of personal dignity, therefore, a man may recover substantial damages for a battery, which has done him no physical harm whatsoever".

(my underlining)

18. And later, in discussing the subject of nominal damages the learned authors say at (p. 501):
    

"... nominal damages are recoverable only in the case of torts which are actionable per se. if such a right is violated the law presumes damage and an action will lie even though no damage at all has been suffered by the plaintiff. This is the case in all types of trespass, whether to land, goods or the person".

19. In similar vein the learned authors of Clerk & Linsell on Torts (19th edn) say in 15 – 139 (at p. 965):
    

"Any trespass to the person, however slight, gives a right of action to recover at any rate, nominal damages .... Even where there has been no physical injury substantial damages may be awarded for indignity, discomfort or inconvenience ... Apart from any special damages alleged and proved, for example medical expenses, the damages are at large. The time, place and manner of the trespass and the conduct of the defendant may be taken into account and the court may award aggravated damages on these grounds".

(my underlining)

20. In light of the foregoing, the trial magistrate's singular concern with the establishment of some, visible, physical injury and his failure to award even nominal damages constitutes an error of law. The appeal is accordingly allowed and the trial magistrate's decision on Issue Two must be and is hereby quashed and set aside. Likewise the order of "costs against the Claimant ..." was wrong and must also be set aside.
    
21. I have considered whether or not to refer the case back to the trial magistrate to assess the damages payable to the Claimant, but, having regard to the length of time that has passed since the magistrate's judgment, I consider that it would be consistent with the Court's over riding duty under the Civil Procedure Rules to determine the matter finally.
    
22. The injuries that the Claimant sustained as a result of the assault by the Defendant whilst not immediately evident to the human eye, was sufficiently serious to require treatment by a medical practitioner who immediately certified the Claimant "unfit for work for 2 days" on 2 consecutive examinations, with a prognosis that, "it would take some weeks before (the Claimant) regains normality again with his balance". Plainly the most serious effect of the Claimant's internal ear injuries was to his balance.
    
23. I am satisfied that the Claimant would have suffered considerable pain, discomfort and inconvenience from the injuries he received especially its lingering effect on his balance for several weeks after the assault. As well I bear in mind from the nature and duration of the assault which was repeated, and the public place where it occurred, and am satisfied that it would have caused the Claimant considerable shock, fear and humiliation. The Claimant is plainly entitled to an award for the pain and suffering he undoubtedly endured as a result of the unprovoked attack on him by the Defendant.
    
24. As for the aggravated damages of VT150,000 claimed, in Bastien v. Michoutouchkine [1992] VUSC 4 the then Chief Justice Vaudin d'Imecourt said:
    

"There should be relatively few cases where aggravated damages should be awarded, where there has already been awards for pain and suffering.

The Court should always consider such an award, but rarely and only in special circumstances should the same be awarded.

Had I taken the view that (the Claimant) had in every respect behaved reasonably and that the Defendant acted wholly out of malice, I would have held that those would have been the rare circumstances necessary to award aggravated damages".

(my underlining)

25. More recently in Kal Alphonse v. Philip Tasso and Thomson Keith [2007] VUSC 54 Tuohy J. in awarding aggravated damages of VT100,000 in that case where the Claimant lost a tooth in an assault on him which required extensive overseas treatment, said:
    

"In my view the evidentiary basis exists for an award of aggravated damages. This was a cowardly and violent attack. It was unjustified whether or not the claimant had telephoned the first defendant's wife, an issue that is irrelevant to liability in this case. The way in which it was carried out, 3 men attacking one, without warning, at his place of work and with such sudden violence was frightening, humiliating and distressing for him."

(my underlining)

26. Similarly in this case, this was a sudden, cowardly and violent attack on a defenseless man committed in broad daylight in a busy public area and attracted and was witnessed by numerous persons including the Claimant's employees. The unprovoked and misdirected assault comprised several strong or heavy slaps directed at the Claimant's face and head which sent him reeling backwards onto his truck and was preceded and followed by loud and aggressive demands for money which, if rightly due, would be owed by the Defendant's former employer ENCOM and not the Claimant.
    
27. In light of the foregoing I am satisfied that the Claimant is also entitled to an award for aggravated damages in this case against his physically larger aggressor.
    
28. In conclusion, the Claimant is awarded the following sums:
    

(a) Special damages

(b) General damages

(d) Interest

(i) 5% per annum on items (i) and (ii) above from 10th March 2009 until date of judgment;

(ii) 5% per annum on item (iii) above from 4th May 2009 till date of Judgment;

(iii) 5% per annum on general and aggravated damages from judgment until paid;

(e) Costs of appeal

Summarily assessed at VT180,000

DATED at Port Vila, this 17th day of June, 2011.
BY THE COURT

D. V. FATIAKI
Judge.