Alex Latham and Kathleen Marie Latham v Henry Peni [1997] PNGLR 435

• Jurisdiction: Papua New Guinea
• Judge: Doherty J
• Judgment Date: 22 December 1995
• Citation: [1997] PNGLR 435
• Court: National Court
• Year: 1997
• Judgement Number: N1463

Full Title: Alex Latham and Kathleen Marie Latham v Henry Peni [1997] PNGLR 435

National Court: Doherty J

Judgment Delivered: 22 December 1995

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 428 OF 1995

ALEX LATHAM — PLAINTIFF

V

HENRY PENI — DEFENDANT

AND

WS 429 OF 1995

KATHLEEN MARIE LATHAM — PLAINTIFF

V

HENRY PENI — DEFENDANT

Waigani

Doherty J

October 1995

22 December 1995

DAMAGES FOR ASSAULT — exemplary and aggravated damages.

THE PLAINTIFFS CLAIMED FOR EXEMPLARY DAMAGES FOR ASSAULT AND BATTERY — Application of classes of damages for assault — indignity etc.considered.

Counsel

Mr Shepherd for the Plaintiffs

No appearance for the Defendant

DECISION

22 December 1995

DOHERTY J: These matters were heard together, the Plaintiffs are related as husband and wife, the claims arise from the related incidents.

A statement of claim was filed on 31st May 1995 and served on 5th June 1995. No notice of intention to defend nor defence has been filed. On 5th July 1995 default judgment was entered and the matter comes before the Court for assessment of damages.

Since there has been no defence or reply filed it must follow that the facts are before the Court without challenge. There are supporting affidavits by each Plaintiff and these show the following:

The plaintiffs were travelling together with their infant child on 12th May 1995 by Air Niugini from Singapore to Port Moresby in the economy class cabin. In submission Counsel has explained that they occupied the front or "bulkhead" seats, there is a device in front of these front seats which enables an infant's cradle to be latched into position.

At 5.30am both plaintiffs were asleep when they were rudely awaken by alcohol being thrown over them. They saw the defendant who they had never met before. He started shouting abuse and obscenities at both of them and then hit the plaintiff Alex Latham on the face causing a cut to the mouth and assaulted the plaintiff Kathleen Latham on the face causing bruising to her nose. He also threatened to throw the baby out of the aircraft. Each plaintiff required medical attention but suffered no residual disability. The experience so unnerved them they left Papua New Guinea for good.

Mr Shepherd says this so alarmed the plaintiff Kathleen Latham that she grabbed the child and ran off to another part of the aircraft in great distress.

The defendant had to be physically restrained by crew members. Mr Shepherd says the defendant was subsequently charged but there was no later record of the matter on the District Court List. I must assume, in view of the lack of defence, that no order was made either under S. 6 (4) of the Summary Offences Act or the Criminal Justice (Compensation) Act 1991.

There is no apparent reason for the attack or the abuse. The plaintiffs had no prior meeting or knowledge of the defendant. The only inference that I can make from his behaviour and the remarks attributed to him is that he was offended by the non-allocation of the front seats to him or was mistaken as to the identity of the Plaintiffs.

The plaintiffs each seek punitive damages, aggravated damages, special damages for medical expenses and general damages.

As Counsel has submitted there appears to be no case law on the assessment of damages for unprovoked assault and battery in our jurisdiction. Similarly there is no statutory...