N4750

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO.54 OF 2008

BETWEEN

MONICA KESSI
Appellant

AND

HILDA LUVAO
Respondent

Goroka: Ipang AJ
2012: June 22 & 27 July

CIVIL LAW – Appeal against District Court order – awarding damages in the sum of K 4, 060.00 – District Court finding of liability and assessment on different heads of damages not challenged – the only challenge is on quantum of damages awarded by the District Court.

DAMAGES – Assessment of damages for unprovoked assault and battery discussed – National Court will not disturb the damages awarded by a presiding magistrate unless it is of the view that the amount awarded is so inordinately high that it is wrong estimate of the damages. MVIT -v- Tabanto [1995] PNGLR 214 followed. 

DAMAGES – Heads of damages – Intentional injuries – not one of the heads of Damages. 

PRACTICE AND PROCEDURE – Appeal – District Courts Act – Section 230 (2) – An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice. 

Cases Cited

Alex Latham -v-Henry Peni (WS No. 428 of 1995) & Kathleen Marie Latham vHenry Peni (WS No. 429 of 1995) (22 December, 1995) N1463
Helen Bia Sam v Paul Harum, Henry Tokam & The State [1988] PNGLR 346
In Post Telecommunication v MVIL (2003) N2479
Motor Vehicles Insurance (PNG) Trust v Salio Tabanto [1995] PNGLR 214
David Wari Kofewi v The State & Ors [1987] PNGLR 5
Gorua Tamarua v Alert Security Services (2002) N2200
Woma Paul v Anton Kare & PNG [1988] PNGLR 276

Counsel 

Mr. D. A. Umba, for the Appellant
Mr. K.Pilisa, for the Respondent 

DECISION ON APPEAL 
27th July, 2012

1. IPANG AJ: This is an appeal from the decision of District Court made on the 12th October, 2007 where the District Court ordered the appellant to pay respondent the sum of K4000.00 in damages. The appellant being aggrieved by the decision of the District Court filed her appeal. Both Counsel, Mr. Umba for the appellant and Mr. Pilisa for the respondent prepared written submissions and presented them on the two (2) grounds of appeal on the 22nd June, 2012. I heard their submissions and reserved my decision to today. From the outset, the appellant has not challenged the District Courts finding of liability or the respondents legal entitlement to claim under the heads of damages she has claimed. The appellant only challenges the quantum of damages awarded against her.

2.	The two (2) grounds of appeal as contained in the appellant's Notice of Appeal dated 25th of April, 2008 are;

i.	His worship's award of the sum of K3000.00 for the injuries 
sustained by the Respondent is excessive when the medical evidence shows that the injury is minor and not serious.

ii.	His worship erred in law in awarding K1000.00 for mental and 
physical stress when there was no medical evidence at all to support such finding.

3.	The appellant seeks the following orders;

(a)	The appeal be upheld;

(b)	The award of K3000.00 be reduced;

(c)	The award of K1000.00 be quashed;

(d)	Any such further orders as this Honourable Court deems meet.

4.	The appellant in arguing her appeal through her Counsel Mr. Umba relied on her submission filed on the 16th of August, 2011. The brief facts which were the cause of the District Court proceedings D/C No. 142 of 2007 are as follows; the appellant suspected the respondent of having an affair with her husband. On the 20th of April, 2007 at the Goroka Main Market, the appellant saw the respondent and stabbed her with a knife on her left upper arm. As a result, the respondent sustained injury was treated at Goroka Base General Hospital and had a medical report. The Medical Report which will be referred to and considered substantially for the purpose of this appeal is dated 24th April, 2007 and the said report is done by Dr. M. Heritrenggi. 

5.	On the 10th May, 2007 the Respondent filed proceedings in the District Court claiming damages in the sum of K8000.00 (refer to pages 69 – 70 of the Appeal Book) and the District Court on the 12th October, 2007 awarded a sum of K4, 060.00 in damages (refer to pages 80 – 84 of the Appeal Book). 

First Ground of Appeal: District Court Award of K3000.00 against the medical evidence. 

6.	The First Medical Report was tendered in the District Court and was marked as Exhibit "A". The Medical Report was done up by Dr. M.Heritreggi. The report stated that the Respondent sustained a laceration on her left upper arm. The paragraphs 2 and 3 of the Medical Report stated the following: 

"On examination the patient's vitals were stable. Local examination of the wound showed a clean laceration to the anterior surface of the upper left arm. The wound was 3cm in length on the surface and 2cm deep. The floor of the wound extended inferiormedially for a further 3-4cm. Blood was oozing from the wound. Under local anaesthesia the wound was cleaned before sutured. Stat intramuscular antibiotics were given and the patient as prescribed amoxicillin and paracetamol to take home." 

7.	The paragraph 3 of the said Medical report gave the following predications:

"It is expected that the wound will heal in one or two weeks barring complication. It is also expected that the patient will retain full use of her left arm following healing of the wound".

8.	Mr. D. Umba of Counsel for the appellant submitted in relation to First Ground of Appeal that, the presiding District Court Magistrate has made an error in awarding the full amount of K3000.00 for intentional injuries, on the following basis:

(a)	 There was no treatment notes tendered as evidence for His Worship to consider and make assessment. 

(b)	The Medical Report of Dr. M. Heritrenggi appear to be an interim report as it was dated 24th April, 2007, written 4 days after the stabbings and he states in the report that the wound would heal after one or two weeks thus the report is not conclusive. 

(c)	His worship failed to give any consideration to paragraph 3 of Dr. Heritrenggi's Medical Report. 

Respondents Response to Appellants Arguments
9.	Mr. K. Pilisa of Counsel for the Respondent argued that the Appellant's Counsel Mr. D.Umba during his submission for the Appellant before the District Court had submitted that an amount of K2000.00 would be reasonable. Furthermore, Mr. Pilisa submitted that the appellant's lawyer did not argue the justification for the figure of K2000.00 by way of judicial precedents and the relevant & applicable scales. 

10.	He (Mr. Pilisa) went further and argued that the presiding magistrate on the other hand cited the case of Hellen Bia Sam v Paul Harum & Others [1988] PNGLR 346 as a guide and awarded K3000.00 to the respondent. Mr. Pilisa relied on the case of Alex Lathan v Henry Peni & Kathrine Marie Lathan v Henry Peni (22 December, 1995) N1463, where the National Court awarded a sum of K1500.00 in general damages to support presiding magistrate's assessment. 

11.	As far as the Second ground of appeal is concerned, Mr. Pilisa argued that this was argued before the District Court but the learned presiding magistrate considered and determined that the respondent had suffered both mental and physical distress. Mr. Umba argued that the Medical Report does not disclose mental and physical stress. He submitted that the Medical Doctor who did the report was not a specialist.

12.	There is of course, a Medical Report on the mental state of the respondent dated 28th July, 2007. This Medical Report is by Dr. (Brother) Michael Andrew, SSF. MBBS, the Honorary Visiting Psychiatrist. The following were the evaluation reported:

"The shortness of the period and diagnosis of Post Traumatic Stress Disorder (Aftershock) is short and only few symptoms reported. The appropriate diagnosis would be Acute Stress Disorder. It can be expected that the level of stress will slowly abate; however this may require therapy for some time.

The plaintiff discovered to me her affidavit of claim. I cannot give any opinion in monetary terms but the item for mental distress I considered appropriate as a proportion of the over-all quantum of damages claimed."

13.	The Respondent relied on Mc Gregor on Damages 15th Edition paragraph 1426 on the types of damages that the Court may consider and award. This was cited and relied on in Latham v Peni (Supra). I find appropriate to re-state here: 

"In so far as an assault and battery results in physical injury to the plaintiff, the damages will be calculated as in any other action for person injury. Beyond this, the tort of assault affords protection not only from physical injury but also from the insult which may arise from interference with the person. Thus, a further head of damage is the injury to feelings, i.e. the indignity, mental suffering, disgrace and humiliation that maybe caused. Substantial damages may thus be recovered by a plaintiff for an assault, with or without a technical battery, which has done him no physical injury at all". 

14.	Apart from Dr. (Brother) Michael Andrews Medical Report on the mental state of the Respondent, the Respondent also gave evidence of her mental anguish and suffering during trial before the District Court which was recorded and considered by the Court. Refer to paragraph 8 of the District Court judgment which is on page 81 of the Appeal Book. In paragraph 7, Respondent said while she was talking to the driver (who is the husband of the Appellant), the Appellant approached her from behind and suddenly stabbed her with a knife on her upper left arm without warning. In paragraph 8, Respondent said she did not retaliate but ran to the market and she fainted.

Ground one (1): The award of K3000.00 for injuries is excessive when Medical Report shows injury is minor and not serious.

Courts Analysis

15.	The issue of the wound itself, has been addressed by His Worship in paragraph 16 of his judgment which is on page 83 of the Appeal Book. His Worship gave this consideration; "The Complainant was stabbed on her upper left arm. The wound was 2cm deep and 3cm long. The defendant submitted that a sum of K2000.00 would be reasonable. I consider the wound is quite serious and that the act of stabbing was done with all intention. I consider intentional stabbing is a serious matter and must be given a reasonable compensation".
 
16.	 There are two (2) issues which have to be determined. First, is the issue of the wound itself as to whether the wound was serious or was a minor injury or say less serious. Then, the second issue is the Respondent claiming for intentional injuries as one of the heads of damages. This has not been challenged by the Appellant as I have mentioned from the outset. Obviously, intentional injuries is not one of the heads of damages, one can claim damages under. However, the Respondent from non-lawyer background may have intended to claim for general damages. 

17.	Was the wound, a serious one or just a minor one? His worship considered and assessed the 2cm deep and 3cm long wound to be serious while the appellant considered the wound to be less serious. His Worship relied on the case of Helen Bia Sam v Paul Harum & Ors [1998] PNGLR 346 to come up with the amount of K3000.00. Appellant submitted that the wound is not serious and that a sum of K2000.00 would be reasonable. However, towards the concluding part of the submission, the Appellant's Counsel submitted that, what would be an appropriate amount, he could not find any case authorities on this type of injuries. 

18.	Respondent sighted the case of Alex Latham v Henry Peni/ Katrine Marie Latham v Henry Peni (WS. No. 429 of 1995) (22 December, 1995) N1463, where the Court awarded a sum K1500.00 for general damages for minor injuries due to assault on mouth and face, causing cut on the month. In David Wari Kofewi v The State & Ors [1993] PNGLR 446; [1987] PNGLR 5, the court awarded a sum of K1, 800.00 for general damages for assault while in Police detention. The injury was not serious. The plaintiff sustained burnt lips with smoke, slapped on face, punched on chest and struck in the region of genitals with a stick. In Gorua Tamarua v Alert Security Services (2002) N2200, the plaintiff was awarded K2000.00 in general damages. In this case, the plaintiff was assaulted and suffered bruises to his left neck, swelling to the left parietal area of his head, clotted blood in left ear, mild hearing loss. In Anton Kare & PNG [1988] PNGLR 276, a sum of K800.00 was awarded as general damages. Plaintiff suffered minor injuries – lacerations and abrasions. 

19.	In the cases cited; the Latham's case (Supra), Kofewi's cases (supra); and Tamarua's case; the injuries sustained were minor injuries and no offensive weapons were used and general damages awarded ranged from K1500.00, K1800.00 and K2000.00 respectively. How does the extent of injuries sustained in Latham's case (supra); Tamarua case (supra) and Kofewi's case (supra) place the present case in terms of award of general damages where an offensive weapon, a knife was used, and a 2cm deep and 3cm long stab wound was inflicted? Comparing the award of general damages in this present case would be much greater than the special damages awarded in Latham, Tamarua and Kofewi (supra). 

20.	In this regard the award of K3000.00 for general damages by the District Court for the Appellant to pay Respondent was appropriate in the circumstances and do not warrant interference from this Court. I will not disturb the general damages awarded by the District Court as I consider the award of K3000.00 to be appropriate and not inordinately high (See MVIT –v- Tabanto [1995] PNGLR 214 followed). 

21.	As to the Ground 2 of the Appeal, there are sufficient evidence from specialist Medical Doctor, Dr. (Brother) Michael Andrew as I alluded to earlier and the Respondent's own version of evidence put before the District Court and I am satisfied the award of K1000.00 was fair in the circumstances. 

22.	Having considered and deliberated on the arguments raised by the Appellant and the Respondent, I consider that this appeal must fail. Accordingly, I dismiss this appeal with costs. 

_______________________________________________________________
D. A. Umba Lawyers: Lawyer for the Appellant
Pilisa Lawyers: Lawyer for the Respondent