N8304
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 48 OF 2018

BETWEEN:
MILLENNIUM GUARDS LIMITED
Appellant

AND:
PONING KUAK
Respondent

Lae: Dowa AJ
2020:  6th & 20th March

APPEAL – District Court orders made in favour of respondent for damages for bodily injuries caused to the respondent by guards of the appellant - appellant found to be vicariously liable for actions of his guard – district court award of monetary compensation payment – grounds for appeal – consideration of - Whether or not there was sufficient evidence brought before the Magistrate’s Court, in order to make findings in favour of the Respondent – miscarriage of justice not established – appeal dismissed – decision of District Court affirmed

Cases Cited:

Tiri–v- Eka (2011) N4507

Counsel:

J. Arlo, for the Appellant
P. Kuak, for the Respondent

DECISION
20th March, 2020
1.	DOWA AJ:	 This is a decision on an appeal from a decision of her Worship, N. Lipa of Lae District Court, given on 4th May 2018, in proceedings, complaint No. 696 of 2016.

FACTS

2.	The Respondent, Poning Kuak, instituted proceedings against the Appellant, and one Win Moses in the District Court.  The Respondent alleged that, on 4th March 2016, Win Moses and other security guards, all employees of the Appellant, assaulted him at Eriku.  At the time of the assault, Win Moses and the guards were on official duty, and therefore the Appellant as employer was vicariously liable.

3.	The Appellant, Millennium Security Services was the Second Defendant, in the District Court proceedings.  Win Moses, an employee of the Appellant, was the first Defendant.  

4.	On 4th May 2017, the District Court made findings against Win Moses and held that the Appellant be held liable for the actions of its employee.  The District Court made the following orders:

“1. The Court establishes that the first Defendant did assault the Complainant.

2.	The second Defendant is held vicariously responsible for the first Defendant’s actions.

3.	The second Defendant therefore ordered to pay the Complainant the sum of K5,000.00 plus K200.00 cost within 30 days upon service of this order.”

APPEAL

5.	The Appellant appealed against the decision and the grounds of appeal at page 6 of the Appeal Book are:

1.	The First Defendant has never assaulted the Complainant physically.

2.	The Complainant provoked the whole situation when he stepped in to defend the careless driver of the bus caused the accident and almost costing everyone’s life.

3.	As the result, the Complainant was assaulted by the aggrieved bystanders and the general public who have witnessed the accident.

4.	The Complainant failed to provide a witness to prove the alleged assault by the First Defendant.

5.  	The Complainant also failed to provide Medical Reports to confirm the alleged injuries sustained.”

6.	At the hearing, one Jordan Arlo appeared for the Appellant.  The Respondent Poning Kuak appeared in person.

7.	At the hearing it became apparent that, the main complaint of the Appellant, was that, the Respondent was not assaulted by Win Moses. Therefore the learned Magistrate erred in finding the Appellant liable.  Secondly, the appellant alleged, there was no other witnesses to corroborate the evidence of the Respondent.  Therefore it is alleged, the Magistrate erred in making findings of fact, in that respect.
	
ISSUES

8.	Whether or not there was sufficient evidence brought before the Magistrate’s Court, in order to make findings in favour of the Respondent.

RECORD OF PROCEEDINGS (APPEAL BOOK)

9.	The Appeal book contains only 44 pages, relatively a small book.  I have read the contents of the Appeal Book.  I summarise, the contents of the proceedings in the following paragraphs.

10.	On 6th October 2016 the Respondent lodged his Complaint and Summons to a Person upon Complaint. Attached to the Complaint was a detailed Statement of Claim by the Respondent duly signed.

11.	In 6th December 2016, Win Moses filed an Affidavit in Defence sworn 6th December 2016.

12.	The Respondent filed two further affidavits, one in January 2017.  The Respondent’s affidavits and the Statements contain the same facts and evidence repeated almost three times.  Apart from the Affidavits and Statements, the Complainant produced, two medical reports and a “The National” Newspaper cutting.

13.	After several court attendances, the matter was fixed for hearing on 7th March 2017.

14.	On 7th March 2017, the Respondent and Win Moses appeared in Court and agreed to rely on their respective Affidavits and documents presented to Court.  The Court then directed them to file their written submissions and serve on each other.

15.	The Responded filed his submissions by 9th March 2017, in a form of a sworn affidavit.

16.	On 23rd March 2017, The Court fixed the matter for ruling.

17.	On 4thMay 2017, Her Worship made her decision.

18.	From the court file, it is clear, the Appellant, who was the Second Defendant made no court appearances, even though they were served the Complaint and Summons on 25th October 2016. (Refer Proof of Service at page 40 of Appeal Book).

FINDINGS

19.	From the evidence of the Respondent, at pages 23, 34-35 of the Appeal Book, it is clear that the Respondent clearly identified Win Moses as the principal tortfeasor who assaulted him.  The Respondent gave evidence that it was Win Moses who led the other guards who punched him, with fist and buttons.  The Respondent also gave evidence that it was Win Moses who took his personal belongings, like ANZ Card, his driving licences and cash.  One of the guards even swung a knife at the Respondent which wounded his head.  His evidence is supported by two medical reports, from Angau Memorial Hospital dated 6th April 2016 and 7th June 2016 respectively.

20.	The Respondent also produced a photocopy of the daily newspaper, The National, published 8th March 2016.  It showed a news article of the Appellants employed guards assaulting the Respondent, with a photograph of the Respondent, (Page 42 of the Appeal Book).

21.	The Respondent also produced a road accident Report, showing a collision of two vehicles, one belonging to the Appellant on the day of incident.

22.	Win Moses denied assaulting the Respondent.  However in his evidence contained in his Affidavit at page 43 and 44 of the Appeal Book, he was there at the scene of the accident and he saw other people assaulting the Respondent.  He was at the scene because he was the shift supervisor in the Appellant’s (company) vehicle that got involved in the accident.

23.	I find the learned Magistrate did not err in findings of fact.  The evidence was clear, on the balance of probabilities.
24.	When Her Worship, accepted the evidence of the Respondent, there was no requirement of corroboration by other or independent witnesses.

25.	On the issue of vicarious liability, I find her Worship’s ruling reasonable for reasons given in her decision.

26.	It was undisputed that Win Moses and other guards were on duty, they were employed by the Appellant.  They were on their routine shift when their vehicle collided with an oncoming PMV Bus.

27.	Her Worship commented that it was unbecoming of Win Moses and other guards to assault the Respondent.  She stated, however, the Appellant did not come to court to distance itself from Win Moses.  Win Moses was continuously attending Court for himself (and maybe on behalf of the Appellant).  During the entire hearing, the Appellant did not represent itself independently to that of Win Moses.  I do not find her Worships ruling erroneous and I have no reason to disturb her findings.

28.	The Appellant has raised these issues a little too late.  The Appellant was given the opportunity to defend itself.  In respect of the quantum of damages. Her worship awarded K5,000.00.   I note her worship did not give any reason why she awarded K5,000 claimed by the Respondent.  I perused the Medical Reports.  The initial Medical report gave a 65% residual disability. The later report shows, the complainants wound was healed eventually, leaving behind a residual scar mark at 2cm x 2cm on the scalp.  Given the comparable verdicts, in similar cases, K5,000.00 compensation was not unreasonable.  Besides, the Appellant did not lodge any appeal against the award of K5,000.00, so I will not comment further.

29.	I now turn to the Grounds of Appeal:

1.	The First Defendant (Win Moses) has never assaulted the complainant physically.  

Her Worship did not fall into error as there was more than sufficient evidence.

2.	The Complainant (Respondent) provoked the whole situation when he stepped in to defend the careless driver of the bus that caused the accident and almost losing everyone’s life.

It is not a ground of Appeal, showing how her Worship fell into error.

3.	As a result, the Complainant was assaulted by the aggrieved bystanders of the general public who have witnessed the accident.  

It is partly a statement, partly ground for denial.  For reasons given, there was evidence the Respondent was assaulted by Win Moses and others.

4.	The Complainant failed to provide a witness to prove alleged assault by the First Defendant.

Further or other witnesses would not be necessary, if the Magistrate believed in the testimony of the Respondent only.  Her Worship made no error in accepting her evidence without any other witnesses.

5.	The Complainant failed to provide medical reports to confirm the alleged injuries sustained.

The evidence shows there were two medical reports presented, and were before Her Worship to consider.

30.	I find there is no miscarriage of justice.  In order for this Court to disturb Her Worship’s finding of facts and decision, there has to be substantial miscarriage of justice.  (Section 230 of the District Court Act)  See Tiri –v- Eka (2011) N4507.	

31.	For the forgoing reasons, I dismiss the appeal, and affirm the orders of the District Court.

ORDERS:

32.	The formal orders of the Court:

1.	The Appeal is dismissed

2.	The orders of the District Court given 4th May 2017 is affirmed.

3.	The Appellant pay the Cost of the Appeal.

________________________________________________________________
Jordon Arlo:  Lawyer for the Appellant