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Lappalanen v Gregory [1968] PGSC 5 (4 April 1968)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

Coram: Mann C.J.
4^th April, 1968

BETWEEN

LAPPALANEN v. GREGORY

1967: November 23, 24 and 27
1968: April 3 and 4

REASONS FOR JUDGMENT

The plaintiff sues for substantial damages for assault. He had his jaw broken on the right hand side, necessitating tedious, painful and prolonged treatment, which in the main consisted of having the teeth of both jaws wired together so that the broken bone would re-unite as closely as possible to its correct alignment and enable the teeth to have proper contact throughout. This meant that the plaintiff could not eat for many weeks and had to subsist on fluid foods, and when the wires were ultimately released he had to gradually get movement back into his jaws by exercise over a long period.

Now the versions of the encounter given bar the two parties differed very much. Although one expects disagreement in detail between excited people in a state of conflict like this, the discrepancy here is too much to enable it to be explained by saying that the parties involved simply failed to observe what was going on or what the circumstances were.

On the one hand, the plaintiff says that the defendant came to the welding shop on the premises where they were both employed, and said that he wanted the services of a welder. The plaintiff refused this request because somebody else had already taken one welder, and he wanted the use of one of the welders who normally worked with him. The situation developed into a violent clash. The defendant pushing the plaintiffs shoulder and jostling him, pushing him backwards, and the plaintiff himself, as he admitted, using a very offensive and objectionable expression. Thereupon, the plaintiff said he turned to leave the place where the conflict was going on, whereupon the defendant swung his fist at him, in what is commonly described as a "haymaker" type of blow, delivering a severe blow to the right hand side of his face. Then the conflict stopped and the defendant walked away.

The plaintiffs version was supported by a witness called by him, ne Simon Andrepof, who is a surveyor employed by the same firm. Andrepof was waiting in a vehicle quite a few feet away and said that he observed the conflict through the rear window. There is no reason to say that it would have been impossible for this witness to observe accurately what was going on. Mr. Andrepof said that the defendant was pushing the plaintiff, and waving his arms, and that the defendant appeared to become wild, and was pushing the plaintiff backwards. They were both speaking very loudly, and Mr. Andrepof confirmed that the plaintiff did in fact use towards the defendant the offensive expression which all parties agreed that he did use.

Mr. Andrepof describes the severe blow delivered by the defendant as the plaintiff was turning. The witness describes how he went straight to the aid of the plaintiff, apparently to protect him from further attack from the defendant, and on the way he uttered some words towards the defendant, which were not given in evidence, but apparently were a warning to the defendant to leave the plaintiff alone, or he, the witness, would join in the fight.

The defendant, in his evidence, gave a perfectly reasonable account of the earlier incidents of the morning and showed that he was in urgent need of welding equipment, to repair a machine that had broken down. His evidence disagreed with that of the plaintiff in that he said that the main part of the conflict occurred inside the workshop, and that when he and the plaintiff were walking, more or less together, out of the workshop the blow was struck just outside the entrance to the workshop. The defendant was not entirely consistent in all details. At one stage it appeared that practically the whole incident occurred inside the workshop, whereas at other times it seemed that there was quite a long conversation after the trio of them had left the workshop.

One version was that the defendant told the plaintiff two or three times that he must have the welding equipment and the plaintiff refused as many times. The defendant was then going out to his car, apparently having abandoned the attempt for the time being, when he said he was followed out of the workshop by the plaintiff, whom he suddenly saw, carrying in his hand a cutting torch, which would be a weapon which might be used to strike the defendant. Seeing the plaintiff just behind him in this position, the defendant says that he turned suddenly and hit the plaintiff with aback-handed blow. From the position described by the defendant that blow could not have hit the plaintiff anywhere but on the left cheek, which was not the side of the injury. Of course, it is always possible that a fracture could occur on the other side of the jaw, but this seems so improbable in the circumstances of this case that such a result was not even contended for.

The defendant's version of what happened departs in several material respects from his case as pleaded, and particularly in his denial of jostling before the blow was struck. His evidence tended to show that the blow was struck wholly and solely in self-defence and that the insulting words used, if used inside the work-shop, failed to cause any retaliation when they were uttered, and were unlikely to have had anything to do with the blow when it was struck outside the workshop some 24 ft. away. As to the self-defence point, the action taken by the defendant was, according to his evidence, based wholly and solely on his fear that the plaintiff standing behind him with an upraised torch was in the act of striking him from behind and doing injury to him.

There is a very salutory rule of behaviour, to the effect that people who are larger and stronger have a distinct duty not to strike unnecessarily any-body smaller in size or weaker. Looking at the two parties one sees the wisdom of this. I cannot believe that the defendant was in any fear of serious injury when, as he says, he realised that the plaintiff was just behind him. I think that this version was designed to give some explanation for the allegation that the plaintiff was close enough to be attacking him. It seems to me most improbable that the plaintiff followed him over the distance involved without previously attracting the defendant's notice. These points coupled with the defendant's denial of any jostling, or of any face to face situation, convince me that the defendant was at no stage in fear of dangerous attack.

The defendant's supporting evidence, given by a native workman, was not reliable, and it seems apparent that this witness did not see very much of whit took place, that is, if he really saw anything. He was clearly an honest witness, and I give him credit for trying to tell the Court what he thought he saw, but can place no reliance on his evidence.

In one sense the attack on the plaintiff was provoked because both parties became very heated and were raising their voices. The defendant had some justification for being heated by the words used by the plaintiff, but on the other hand, in the environment in which the words were uttered, I feel that they fall into the general picture of the incidents going on and play quite a minor part. The real cause of the anger and the conflict was that the plaintiff, in withholding the welding equipment which the defendant wanted to use in a hurry, irritated the defendant, who transgressed the normal rules of civilised behaviour by suddenly attacking the weaker man.

I think, therefore, that the defendant is liable to pay the damages suffered by the plaintiff.

I think there are some points about the plaintiff and his behaviour which tended to invite the sort of thing that happened, although I think the defendant, had no justification for what he was doing. I do think that the plaintiff by behaving in a bettor manner and in a manner less calculated to make the other man angry, might have: saved himself the very heavy damage which occurred. On the other 'hand, the injuries suffered by the plaintiff were substantial, painful and costly, and I think that he is entitled to a full and fair compensation for what he has lost and suffered. '

It is agreed between Counsel that the special damages incurred by the plaintiff amount in all to the sum of $680.00. The plaintiff, therefore, is entitled to judgment for this sum, together with a -full and fair assessment of general damages based upon his actual loss for pain and suffering, inconvenience and discomfort.

The question arises whether the amount so assessed should be varied either by the addition o£ a further sum as exemplary or punitive damages, or mitigated upon the footing that the plaintiff was, at least to some extent, the author of his own loss. In argument a number of cases were cited to me and these questions appear to be resolved by Fontin v. Katapodis and Ors. (^[1]), which was applied by the Court of Appeal in Lane y. Holloway (^[2]). The result of the application of these authorities to the present case is that upon my finding that the defendant lacked justification for the severe blow delivered, the plaintiff is entitled to full compensation for his actual loss and suffering, without mitigation based upon his own misconduct, but that the conduct of the plaintiff should be taken into account in deciding whether or not there is justification for awarding additional damages as punitive or exemplary damages by reason of the conduct of the defendant.

Having regard to the substantial suffering of the plaintiff over a period of some six weeks, and discomfort and inconvenience extending considerably beyond that period, I think that his loss under this heading may be fairly estimated at the figure of $600.

Upon the question of punitive or exemplary damages, there are considerations tending both ways. The defendant, being by far the more powerful man, had a decided advantage and should have been more restrained in his behaviour towards the plaintiff, but I do not think that his conduct was so malicious or deliberate as to constitute grounds for awarding punitive or exemplary damages. There was an element of chance in the actual injury suffered and the blow struck lacked the element of the deliberate and purposeful infliction of serious injury, It was struck after considerable provocation of an insulting nature and after the plaintiff himself had shown a good deal of aggressiveness and willingness to enter into a situation in which blows were likely to be struck. I think both parties deserve criticism for the violent attitude displayed at the time, but I do not think that the conduct of the defendant was so much worse than that of the plaintiff as to warrant an additional award of exemplary or punitive damages.

Accordingly, there will be judgment for the plaintiff for the amount which I have assessed as representing the actual loss suffered by the plaintiff, to wit, $1,280.00, including special damages, with costs to-be taxed.

Solicitor for the Plaintiff: Norman White and Reitano.
Solicitor for the Defendant: Colin Bayliss.

^[1] 108 C.L.R. 177
^[2] [1967] EWCA Civ 1; 1967 3 All E..R. 129.