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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO 678 OF 2003
DAVID MICHAEL
Plaintiff
V
DENNIS MARUS
Defendant
Kimbe: Cannings J
2007: 24 August,
2007: 9, 22 November
2008: 30 May
TRIAL ON LIABILITY
TORTS – trespass to the person – assault and battery – liability – plaintiff’s hand cut with bushknife wielded by defendant – whether defendant’s actions justified – whether defendant acted in self-defence.
Facts
The defendant swung a bushknife at the plaintiff, cutting his wrist so badly that his hand had to be amputated. The plaintiff brought a civil action against the defendant, based on the tort of trespass to the person. The defendant conceded that he inflicted the injury on the plaintiff and that he was acting intentionally but argued that he acted in self-defence as the plaintiff was himself armed with a bushknife and staged an unprovoked attack on him. A trial was held to determine whether the defendant was liable.
Held:
(1) The tort of trespass to the person has three elements:
- The defendant violated the plaintiff’s body by threatening to harm (assault) and/or actually physically harming the plaintiff (battery).
- The defendant acted intentionally.
- The defendant acted unlawfully, ie without lawful justification or excuse.
(2) The defendant conceded the first two elements so the key issue was whether he acted in self-defence.
(3) The plaintiff bore the onus of proving on the balance of probabilities that the defendant did not act in self-defence.
(4) The plaintiff discharged the burden of proof. The court concluded that the defendant was the aggressor and he acted unlawfully.
(5) The plaintiff proved liability and the case will proceed to an assessment of damages.
Cases cited
Dalin More v The State (1998) N1736
Gopave v Kugame and The State (2003) N2482
Latham v Peni [1997] PNGLR 435
TRIAL ON LIABILITY
This was a trial on liability for trespass to the person.
Counsel
O Oiveka, for the plaintiff
D Marus, the defendant, in person
1. CANNINGS J: David Michael, the plaintiff, had his right hand amputated after being injured in an incident involving the defendant, Dennis Marus, at Gigo, in Kimbe, in 2002. The plaintiff says that the defendant attacked him deliberately with a bushknife for no good reason. He has brought a civil action, relying on the tort (civil wrong) of trespass to the person. He is asking the court to order that the defendant pay him damages (compensation) for what he did. The defendant admits cutting the plaintiff and accepts that the defendant’s hand was amputated because of what happened but says that he acted in self-defence as the plaintiff was armed with a bushknife and started the fight with him.
2. A trial has been held to determine whether the defendant is liable in tort to the plaintiff.
THE ELEMENTS OF TRESPASS TO THE PERSON
3. The nature of this tort was explained by Injia J (as he then was) in Dalin More v The State (1998) N1736:
At common law, a civil action for damages may be founded on tort or contract. In tort, an action for violation of a person’s body may be founded on the tort of trespass to the person. Trespass to the person may take the form of either assault, which is threatened assault, or battery, which is actual infliction of harm by unlawful physical contact with the person’s body. This action is based on the "fundamental principle, plain and incontestable ... that every person’s body is inviolate": Collings v Wilcock (1984) 3 All ER 374 at 378.
4. In Latham v Peni [1997] PNGLR 435 Doherty J pointed out the difference between the two forms of trespass to the person – assault and battery – and that a defendant can be liable even where the plaintiff has suffered no actual physical injury:
Trespass to the person, whether by assault, battery or false imprisonment, is actionable without proof of actual damage. Thus in all cases of trespass nominal damages at least are recoverable for discomfort and inconvenience or injury to dignity even where no physical injury is proved.
5. In Gopave v Kugame and The State (2003) N2482 Davani J explained the difference between the tort of trespass to the person and the tort of negligence:
... the common law is that if a person ... intentionally [injured] another, the cause of action was in trespass to the person but if the injury sustained by the plaintiff was caused unintentionally, then negligence was a necessary ingredient to be proved, were he is to succeed in an action for damages.
6. Thus the tort of trespass to the person has three elements. The things the plaintiff has to prove to establish a cause of action and that the defendant is liable are:
ISSUES
7. The defendant has conceded the first two elements: he actually physically harmed the plaintiff and he did so intentionally. But he does not concede that he acted unlawfully. The defendant argues that his actions were justified: he had to act in the way he did because the plaintiff attacked him first. The key issue in this case is therefore whether the defendant acted unlawfully, in particular, whether he acted in self-defence.
8. As the unlawful nature of the defendant’s act is an element of the tort, the plaintiff bears the onus of proof according to the civil standard of proof. Thus the plaintiff must prove on the balance of probabilities that the defendant was not acting in self-defence.
EVIDENCE
9. There were a number of affidavits sworn by people connected with the case that were filed by each party. Most were not tendered in evidence and I have not considered them. This was a trial and I can only decide the issues of fact and law according to the oral or written testimony that was formally admitted into evidence.
10. The plaintiff’s evidence consisted of:
11. For the defendant:
12. The defendant did not give oral evidence and was not cross-examined on his affidavit.
EVIDENCE FOR THE PLAINTIFF: HIS ORAL TESTIMONY
13. David Michael said the incident in which the defendant cut him with the bushknife happened on 30 June 2002. He believes that the defendant was angry with him because he suspected his involvement in the theft of a roll of fencing wire from his house a few days earlier.
14. The plaintiff gave an account of what happened in that earlier incident, which he said took place on 27 June 2002. He was asked by two of his friends, Jimmy Godfrey and Paul Kapis, to follow them to the defendant’s premises. He did that and Jimmy and Paul went into the defendant’s premises but he stayed outside. When they came out they had a roll of fencing wire. He told them to leave it there but they did not listen to him, so he left the two of them and went to his house.
15. On 30 June 2002, Jimmy and Paul came to his place and told him that they had sold the wire and bought some beer with the proceeds. So he sat down with them, drinking, until about 10.30 pm. They sent Paul to look for cigarettes down at the community hall. Not long after, he came back, out of breath, and afraid. Paul said that the defendant had swung a bushknife at him and almost killed him. He ducked and ran away and the defendant chased him.
16. The plaintiff said that he and Paul and Jimmy separated as they thought the defendant would be running up to where they were. After Godfrey and Paul had been gone for some time and the defendant had not come up to his area he walked back to the community area to look for cigarettes. He found no one there.
17. He stood in front of the trade store and then he saw the defendant coming out from a dark area. He was wearing long black trousers and no shirt. He was walking like someone who had been drinking. He was holding a big stone in his right hand and a long bushknife in his left hand. The plaintiff was holding a short bushknife.
18. The defendant came up to him and asked about his fencing wire and at the same time threw the stone which hit the plaintiff on
his left ribs.
The plaintiff was shocked. Then the defendant took the bushknife in his right hand and swung it at the plaintiff’s neck. The
plaintiff ducked and avoided it. The area where this happened was fenced and he could not run to his right side and the road was
on his left side.
19. The plaintiff says he was in the position of running when he saw the defendant swing the bushknife the second time and this time it almost cut off his hand, which was left hanging by the skin. He ran towards his house with the defendant running behind trying to kill him.
20. He ran into the house and the defendant stood at the driveway, shouting and threatening his family. He said he would cut his mother and his father the next morning. The defendant swung his bushknife at a power pole then left.
21. The plaintiff had lost a lot of blood. He collapsed and the house people took him to Kimbe General Hospital. His hand was amputated the following day and he was discharged on 8 July 2002.
22. In cross-examination the plaintiff said the defendant was a well known figure in the community as he was the local ward councillor. He denied planning to attack on the defendant and denied involvement in the killing of Chief Sergeant Wartovo (a police officer shot dead at Gigo in 2001). He denied that the defendant had been a target for reprisal after the burning down of the house of Paul Kapis, who was suspected of involvement in Chief Sergeant Wartovo’s killing.
23. The plaintiff said he only went down to the community hall to get cigarettes. He had no intention of helping Paul Kapis attack the defendant. He did not expect this incident to happen.
24. The defendant was the aggressor and he was questioning him about the stolen fencing wire. The plaintiff repeated what he said in examination-in-chief: he did not steal the defendant’s wire and he tried to stop the other two.
25. The defendant’s attack on him was not in self-defence. It was not like a ‘sword fight’ as the defendant described it. The defendant was the aggressor, the plaintiff said.
EVIDENCE FOR THE PLAINTIFF: HIS AFFIDAVIT
26. Its contents were consistent with his oral testimony.
EVIDENCE FOR THE DEFENDANT: CLETUS SAIHO’S TESTIMONY
27. The incident in which the plaintiff was injured happened on the night of Sunday 7 February 2002. He was working as a storekeeper at Uncle Mart Trading in Gigo. He saw the plaintiff and Paul Kapis drinking and they were walking around the street and swearing and they were saying they were the leaders of the community. That was between 5.00 and 6.00 pm. They were carrying bushknives. They were looking for Dennis Marus and said that when they found him they were going to cut him and the other community leaders.
28. He closed the store at around 9.00 pm and went to Martin Aka’s house as there was a big football game on television. There were a lot of people present.
29. He again saw the plaintiff and Paul Kapis and again they said that they were looking for Dennis Marus. They all went outside and started arguing. Then the plaintiff started a fight, swearing at the defendant:
Yu Dennis Marus yu kaikai kan blo’ mama blo’ yu, bai mi kilim yu, bai mi katim yu! [You, Dennis Marus, you eat your mother’s vagina. I will kill you. I will cut you.]
30. Paul Kapis was also involved. He was throwing stones and then he ran away. The plaintiff and the defendant were swinging knives at each other. A lot of people were watching them. The plaintiff got cut on the hand and that is when the fight stopped. Then he, Mr Saiho, went home.
31. When cross-examined the witness said the fight took place between the store that he was looking after and the house at which he went to watch television, about 30 metres away.
32. Paul Kapis saw the plaintiff and the defendant fighting and the knives were bouncing everywhere. When Paul saw that the plaintiff’s hand was cut, he ran away.
33. Cletus Saiho said he was not trying to help the defendant. He was only saying what he saw. The defendant was not injured during the fight.
34. The defendant had been following up on his stolen fencing wire and he, Mr Saiho, does not know if the defendant was drunk.
35. In re-examination Mr Saiho repeated that the plaintiff had started the fight. He and Paul Kapis were looking for the defendant as they had heard that he was suspecting them of stealing his fencing wire.
36. Answering questions from the bench, Mr Saiho was adamant that the incident had taken place on 7 February 2002. The big game on television was between the Blues and the Maroons, he said.
EVIDENCE FOR THE DEFENDANT: HIS AFFIDAVIT
37. The defendant states that he acted in self-defence against an unprovoked assault. He says the incident happened on the night of Sunday 7 July 2002. At 11.00 pm he was walking towards his house when he was confronted and attacked with a bushknife by Paul Kapis. He picked up a stone and hit Kapis to drive him away.
38. A few minutes later the plaintiff came to the scene, drunk, wielding a bushknife and shouting abusive language.
39. It was like a sword fight. His life was at stake. He had no choice but to fight and defend himself. His bushknife hit hard on the blade of the plaintiff’s bushknife and slid and cut the plaintiff’s wrist.
40. He regards the plaintiff’s actions as a planned attack by him and his accomplices as he, the defendant, was a ward councillor and he and other community leaders had become targets of the criminals.
HAS THE PLAINTIFF PROVEN THAT THE DEFENDANT DID NOT ACT IN SELF-DEFENCE?
41. The plaintiff was a credible witness. His demeanour in the witness box was sound. He answered questions directly and with conviction. He made some significant admissions: that he was involved, indirectly, in the theft of the defendant’s fencing wire; that he knew the people who stole the fencing wire; that they were his friends; that they came to his place to share a carton of beer they had bought with the proceeds of their crime; and that he was drinking on the night of the incident. The account he gave of the events was credible and it is easy to understand why the defendant would have been angry about what happened three days beforehand.
42. By contrast Cletus Saiho was not a reliable witness. He was adamant that the incident happened in February while the plaintiff and the defendant agree that it happened on a Sunday night in late June or early July 2002. In the defence filed by the defendant no issue was taken with dates, so this makes Mr Saiho’s evidence even more difficult to believe. Mr Saiho seemed to be saying that there was a State of Origin match on television. This is not believable as I take judicial notice of the fact that such matches are not played at that time of the year. They are played in the period from May to July. Mr Saiho tried to give the impression of being an independent witness but he failed on that score. His evidence gave the distinct impression of being manufactured, to suit the needs of the defendant. He could not tell a consistent version of events as to when Paul Kapis left the scene of the fight. His demeanour was not that of a witness of truth. If he was telling the truth there is a possibility that he was giving evidence of an earlier incident. But that still makes his evidence unreliable, indeed irrelevant.
43. The defendant’s affidavit gave a version of events that, though not on the face of it far-fetched, was not supported by oral testimony and therefore could not carry much weight.
44. When making his submissions, the defendant, Mr Marus, suggested that the plaintiff had been convicted in the District Court of stealing the fencing wire and fined. There was no evidence that that was true but even if it were true, it would not alter the findings of fact as to what happened on the night of the incident. A person in the position of the defendant, who might have had good reason to believe that the person he was confronting had stolen something from him, was not entitled to take the law into his own hands and mete out punishment on the offender.
45. The court was left with the plaintiff’s oral testimony as the strongest piece of evidence. The credibility of that evidence was not significantly dented by cross-examination. I am satisfied that the plaintiff has proven on the balance of probabilities that the defendant, who was drunk and angry at the time, launched an unprovoked attack on him when he went to the store to buy some cigarettes. The defendant was angry with the plaintiff and his mates over his stolen fencing wire. The plaintiff was himself holding a bushknife at the time but did not have time to get involved in a ‘sword fight’ of the type claimed by the defendant. The plaintiff was caught by surprise and this conclusion is reinforced by the fact that the defendant was not injured in the altercation. If it had been a fight, not a surprise attack, it is reasonably to be expected that the defendant would have suffered some injury. The defendant swung his bushknife indiscriminately at the plaintiff and cut his wrist so severely that his hand was almost chopped off, and had to be amputated.
46. I conclude that the plaintiff has proven the third element of the tort of trespass: the defendant did not act in self-defence. He was the aggressor and he acted unlawfully.
JUDGMENT
47. The plaintiff has proven liability and this case should proceed to an assessment of damages, unless the parties reach an out-of-court settlement.
Judgment accordingly.
____________________________
Public Solicitor: Lawyer for the Plaintiff
No Representation for the Defendant
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