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Kola v Roy [2008] PGNC 24; N3299 (31 March 2008)

N3299

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA 125 OF 2007

PETER KOLA AND MARIA KOLA
Appellants

V

IAN ROY
Respondent

Kimbe: Cannings J
2007: 7 December
2008: 31 March

APPEAL

APPEALS – civil assault – trial in District Court based on affidavit evidence and unsworn written statement – whether errors in findings of fact made by presiding magistrate.

DAMAGES – duty of court to explain basis of award of damages – failure to explain basis of damages award is an error of law.

COSTS – award of specific amount by District Court – duty of court to explain basis of award of costs – failure to explain basis of costs award is an error of law.

The respondent was assaulted soon after an armed robbery of the appellants’ store, on suspicion that he was one of the robbers. He claimed that he was an innocent passer-by and brought a civil action in the District Court. The District Court found the appellants and their agents had assaulted the respondent without justification and awarded him damages of K7,500.00 and costs of K1,315.00. The appellants appealed on four grounds: (1) the assault was justified as the respondent was among the group that staged the robbery; (2) there was insufficient evidence directly connecting the appellants to the assault on the respondent; (3) the award of damages was excessive; and (4) the award of costs was excessive.

Held:

(1) There was insufficient evidence to connect the respondent to the armed robbery and it is highly likely that he was, as he claimed, an innocent passer-by. The District Court did not err by not finding that he was one of the criminals.

(2) There was sufficient evidence to connect the appellants to the assault on the respondent, in two respects. First, there was the respondent’s statement that he was, in fact, personally assaulted by the appellants. Secondly, the respondent was assaulted by persons who were employees, agents or representatives of the appellants; thus the appellants were vicariously responsible for their actions. The District Court did not err by finding the appellants liable.

(3) The District Court erred in law by not explaining the basis of its award of damages.

(4) The District Court erred in law by not explaining the basis of its award of costs.

(5) As two grounds of the appeal were upheld, there had been a substantial miscarriage of justice and therefore the District Court decision was quashed and substitute order was made: the respondent is awarded damages of K3,750.00 plus interest of K1,020.00, being a total judgment sum of K4,770.00; and the parties bear their own costs.

Cases cited:

Cheong Supermarket Pty Ltd v Peri Muro [1987] PNGLR 24

APPEAL
This was an appeal from a District Court decision awarding damages to the respondent for assault.

Counsel

P Kola, an appellant in person
I Roy, the respondent in person

1 CANNINGS J: Peter and Maria Kola run a trade store in the Kimbe suburb called Section 10. On the evening of Sunday 14 November 2004, an armed gang robbed their store. Shortly afterwards a young man, Ian Roy, was apprehended and assaulted near the scene of the robbery as it was believed that he was one of the robbers.

2 Ian Roy sustained knife wounds and was hospitalised for two days. He claimed that he was an innocent passer-by and brought a civil action in the District Court. The District Court found that Peter and Maria Kola and their agents assaulted him for no good reason and awarded him damages of K7,500.00 and costs of K1,315.00.

GROUNDS OF APPEAL

3 Peter and Maria Kola, the appellants, have appealed against the District Court decision on four grounds:

(1) the assault was justified as the respondent, Ian Roy, was among the group that staged the robbery;

(2) there was sufficient evidence directly connecting them to the assault on the respondent;

(3) the award of damages was excessive; and

(4) the award of costs was excessive.

4 The notice of appeal actually listed six grounds of appeal but some were repetitive or not clearly expressed so I have summarised them as set out above. Ground (i) of the notice of appeal was abandoned. Grounds (ii) and (iii) raised the same issue so I have treated them as the first ground of appeal. Ground (iv) has become the second ground of appeal. Ground (v) has become the third ground of appeal. Ground (vi) has become the fourth ground of appeal.

FIRST GROUND: WAS THE ASSAULT ON THE RESPONDENT JUSTIFIED?

5 The appellants submit that the evidence before the District Court clearly indicates that the respondent was a member of the gang and was involved in the robbery. He did not come to the court with clean hands. The appellants pointed to the evidence of Julius Kepa and Kaks Papes who say that they identified the respondent as one of the criminals involved in the robbery and that he was chased from the store and apprehended. There was also evidence that he was carrying a scarf and a slingshot, which shows that he was up to no good.

6 If the respondent wanted to discredit the appellants’ evidence, he had the opportunity to cross-examine their witnesses in the District Court trial but he did not do this, the appellants argued.

7 The appellants submit that the Magistrate disregarded the evidence that the respondent was involved in the robbery and erred by not making a finding that he was one of the robbers.

8 I note that the District Court summarised the conflicting evidence before it. Ian Roy said he left a friends’ house at about 10.00 pm and was heading home to Laleki. He met a friend, Junior Mautu, who greeted him, then he continued on his way. He was assaulted at the Mango bus stop, he claimed. As for the appellants’ witnesses, their evidence was treated with some scepticism by the learned Magistrate.

9 I have examined the evidence that was before the District Court and I cannot accept the appellants’ submission that the evidence clearly indicated that the respondent was a member of the gang. The respondent conceded that he had the scarf and slingshot on him but he was walking around at night and there was nothing unusual or necessarily incriminatory about a young man carrying such things. He absolutely denied being involved in the robbery. There was no independent evidence that he was involved and no independent eyewitness evidence of his presence at the crime scene.

10 As to the respondent’s failure to cross-examine the appellants’ witnesses, this was of no consequence as it is clear from the learned Magistrate’s reasons for decision that the parties agreed that there would be no oral evidence required and that the District Court would make its decision based on the written evidence before it.

11 It is not correct to say that the learned Magistrate disregarded the evidence before the court.
12 A further consideration is the fact that the police did not charge the respondent in connection with the armed robbery of the appellants’ store.

13 I conclude that there was insufficient evidence to connect the respondent to the armed robbery and it is highly likely that he was, as he claimed, an innocent passer-by. The District Court did not err by not finding that he was one of the criminals. I dismiss the first ground of the appeal.

SECOND GROUND: WAS THERE INSUFFICIENT EVIDENCE DIRECTLY CONNECTING THE APPELLANTS TO THE ASSAULT?

14 The appellants submit that the District Court incorrectly found that they directly assaulted the respondent and that they were legally responsible for the actions of those who did actually assault him. They argue that the learned Magistrate erred in that he:

(a) Failed to consider that the respondent’s evidence (that Peter Kola hit him with a lump of timber and Maria Kola hit him over the head with a glass bottle) was inconsistent and unreliable.

(b) Failed to consider that the respondent’s primary evidence was in the form of an unsworn statement.

(c) Failed to adequately consider the admission by two of the appellants’ witnesses that they were the ones who assaulted the respondent.

(d) Wrongly identified inconsistencies in the evidence of the appellants’ witnesses.

(e) Failed to take into account that the respondent had changed his evidence from a previous occasion when the case was before the District Court.

15 As to (a) the appellants point out that although the respondent said in his evidence that Peter Kola hit him with a lump of timber, there was nothing in the medical report prepared by Dr Moi Seneka to verify that claim. This shows that the respondent’s story was fabricated. I reject this argument as there is no dispute that the respondent was badly assaulted and sustained knife wounds. It is possible that the wounds inflicted by a lump of timber would be mild compared to knife wounds. It is also possible that the respondent was exaggerating his story but in all the circumstances it is inconsequential as there is no dispute that he suffered knife wounds. The learned Magistrate did not err by rejecting the appellant’s evidence.

16 As to (b), the appellants have correctly pointed out that the respondent’s own evidence was in the form of an unsworn statement. Normally such a statement would not be given as much weight as a sworn statement. I have also considered Section 62 of the District Courts Act, which states that a person appearing to give evidence in the District Court "shall be examined on oath". However, I have concluded that no error was made by the learned Magistrate as it is apparent from the court’s records that the parties agreed that the court would consider only the evidence in writing that was before it. There would be no oral evidence. All the affidavits, as well as the respondent’s unsworn statement, were admitted into evidence by consent. No issue was taken about the unsworn statement having less value than the sworn statements. The learned Magistrate did not err by not treating it differently.

17 As to (c), I consider that the learned Magistrate took into account the admission by two of the appellants’ witnesses – Julius Kepa and Kaks Papes – that they were directly responsible for assaulting the respondent. The conclusion was fairly reached that it was those two, plus the appellants themselves, who committed the assault. Mr Kepa and Mr Papes were directly connected with the appellants and were acting under their control or authority (implied if not expressed) when they committed the assault. The learned Magistrate did not err in the treatment of that evidence.

18 As to (d), the learned Magistrate focused on the evidence of Elias Kamai and concluded that it contradicted the evidence of other witnesses as to the timing of the respondent’s capture. Peter and Maria Kola said that they were already at the hospital or were on their way to the hospital when they received word that one of the raskols had been apprehended. Mr Kamai’s evidence on the other hand says that they were still at the store when the respondent was brought in. Mr Kamai states that on seeing this, he drove straight to the police station with Peter, Maria and Oscar before going to the hospital. The inconsistency in the sequence of events was one that was fairly open to the learned Magistrate to highlight and was a proper part of the process of reasoning used to make findings of fact. The learned Magistrate also took the view that the appellants had deliberately omitted vital information as to their involvement in the assault. They did not directly deny assaulting the respondent. I can find no error in law in the treatment of Elias Kamai’s evidence or of the overall body of evidence that was before the District Court.

19 As to (e), it is true that the case had been before the District Court on a previous occasion and that the respondent had lost. He appealed to the National Court and succeeded and the case was remitted to the District Court for retrial. However, there was no evidence before the District Court that the respondent changed his evidence at the retrial. So no error was committed in that regard.

20 I conclude that the District Court correctly found that the appellants directly assaulted the respondent and that they were legally responsible for the actions of others who assaulted him. The others were employees, agents or representatives of the appellants; thus the appellants are vicariously responsible for their actions. The appellants and their associates took the law into their own hands. Even though they genuinely believed that the respondent was one of the criminals, they exceeded what could lawfully be done to apprehend him. Therefore it was an unlawful assault. The District Court did not err by finding the appellants liable. I dismiss the second ground of the appeal.

THIRD GROUND: WAS THE AWARD OF DAMAGES EXCESSIVE?

21 The appellants submit that there is no basis for the award of K7,500.00 damages and the amount is excessive.

22 I agree with this submission. Every court has a duty to explain the basis of an award of damages, even if it only compares the case before it with other cases.

23 This was a claim for general damages for personal injuries due to an unlawful assault. The respondent was entitled to be compensated for pain and suffering, distress and inconvenience brought about by the injuries he sustained.

24 However, the learned Magistrate failed to discharge the duty of the District Court to explain how the figure of K7,500.00 was arrived at. Dr Seneka’s medical report dated 22 November 2004 states that the respondent sustained multiple cuts to his scalp and body. In particular:

Examination revealed 5 x 4 cm and 3 x 2 cm cuts over scalp areas but Glasgow Coma scale was 15/15 (normal) and stabbing type wound to left arm, elbow and wrist. The wounds were cleaned and sutured at Accident and Emergency Department.

He was admitted to Surgical Ward for head injury observation overnight which was stable so he was discharged two days later.

25 In the absence of evidence about any long term effects on the respondent, the amount appears excessive. I conclude that an error of law was made in the assessment of damages and uphold the third ground of appeal. I think a fair assessment of damages would be the sum equal to half of what was awarded by the District Court, that is: K7,500.00 x 50% = K3,750.00.

FOURTH GROUND: WAS THE AWARD OF COSTS EXCESSIVE?

26 I reach the same conclusion on this ground as for the third ground of appeal. The learned Magistrate awarded K1,315.00 costs without any explanation. I uphold the fourth ground of appeal. All parties were self-represented in the District Court and it would have been appropriate for the parties to bear their own costs.

WHAT ORDERS SHOULD BE MADE?

27 I have upheld two of the four grounds of appeal and, to that extent, I am satisfied for the purposes of Section 230(2) (power of National Court on appeal) of the District Courts Act that there has been a substantial miscarriage of justice and that the appeal should be allowed.

28 However, the part of the District Court order that made the appellants liable for general damages will be left intact.

29 I will make a substitute order under Section 230(1)(c) of the District Courts Act that accommodates the resolution of the grounds of appeal.

INTEREST

30 The District Court order did not include any interest on the award of damages, probably because the statement of claim did not seek any. As I am going to quash the District Court’s order and substitute a new one, I need to consider whether to include an interest component in the new order. This would be done under Section 230(1)(a) of the District Courts Act and Section 1 of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52, which states:

... 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 thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

31 As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, 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 or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run.

32 I exercise that discretion in the following way:

(1) A successful party should normally receive interest on damages. Though interest was not expressly sought and there has been no cross-appeal against the failure of the District Court to award interest, I think it is fair and just to do so.
(2) The rate of interest commonly used is 8%. In view of current economic conditions in the country I think 8% is the proper rate of interest.
(3) Interest should be payable on the whole of the sum of damages for which judgment is given.
(4) The appropriate period is the whole of the period between the date on which the cause of action arose and the date of the judgment. The cause of action arose on the day the respondent was unlawfully assaulted, 14 November 2004. The appropriate period, for the sake of mathematical convenience is 3.4 years.

33 I calculate the amount of interest by applying the following formula: D x I x N = A where D is the amount of damages assessed; 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: K3,750.00 x 0.08 x 3.4 = K1,020.00.

COSTS

34 Normally the side that loses a case will get an order from the court saying that they must pay the other side’s legal costs. This is a matter for the discretion of the court. In this case I have upheld two and dismissed two of the grounds of appeal. So the question of who has won and lost the case is not cut and dried. Another consideration is that the parties represented themselves. In the circumstances, I will order that they bear their own costs.

ORDER

(1) The appeal against the finding that the appellants are liable for unlawful assault on the respondent is dismissed.
(2) The appeal against that part of the District Court order that awarded damages of K7,500.00 and costs of K1,315.00 is allowed.
(3) The order of the District Court of 9 July 2007 in DC No 206/05 at Kimbe is quashed and substituted with the following.
(4) The appellants shall pay to the respondent damages of K3,750.00 plus interest of K1,020.00, being a total judgment sum of K4,770.00.
(5) The above sums shall be paid to the respondent in full within 30 days after the date of entry of the National Court’s order.
(6) The parties will bear their own costs.

Appeal partially allowed, order of District Court quashed and substitute order made.

_____________________

Lawyers for the appellants : None
Lawyers for the respondent : None