George Chapok v James Yali and Fred Muliupa (2008) N3474

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 10 September 2008
• Court: National Court
• Docket Number: WS NO 886 OF 2004
• Citation: (2008) N3474
• Year: 2008
• Judgement Number: N3474

Full Title: WS NO 886 OF 2004; George Chapok v James Yali and Fred Muliupa (2008) N3474

National Court: Cannings J

Judgment Delivered: 10 September 2008

N3474

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 886 OF 2004

GEORGE CHAPOK

Plaintiff

V

JAMES YALI

First Defendant

FRED MULIUPA

Second Defendant

Madang: Cannings J

2008: 26 May, 10 September

JUDGMENT

DAMAGES – trespass to the person – assault and battery – plaintiff punched in the face by defendant – relatively minor injuries suffered – plaintiff claims damages for: general damages; exemplary damages; aggravated damages; special damages.

The plaintiff, a district administrator, was summoned to a meeting at which the defendant, the provincial governor, was present. Soon after the plaintiff entered the meeting room, the defendant abused him and punched him to the floor. Blood was drawn, but the plaintiff’s injuries were relatively minor. The defendant conceded liability for trespass to the person and a trial was held to assess damages.

Held:

(1) The plaintiff suffered bodily injury and also had to be compensated for the shock and distress caused by the incident. General damages were assessed at K5,000.00.

(2) In view of the leadership position held by the defendant, he deserves to be punished by an award of exemplary damages, assessed at K2,500.00.

(3) As exemplary damages were awarded, aggravated damages are not appropriate.

(4) Special damages awarded for medical expenses incurred was K50.00.

(5) The total amount of damages awarded was K5,000.00 + K2,500.00 + K0 + K50.00 = K7,550.00.

(6) In addition, interest of K2,657.600 is payable, making the total judgment K10,207.60.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518

Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24

David Michael v Dennis Marus (2008) N3374

James Koimo v The State [1995] PNGLR 5

Kenneth Bromley v Finance Pacific Ltd (2001) N2097

Latham v Peni [1997] PNGLR 435

Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364

PNG Aviation Services v Somare (2000) SC658

TRIAL

This is a trial on assessment of damages.

Counsel

W Akuani for the plaintiff

J Yali, the defendant, in person

10 September, 2008

1. CANNINGS J: This is an assessment of damages for trespass to the person. The defendant is James Yali. He has admitted liability for what he did to the plaintiff, George Chapok, on the afternoon of 13 April 2004.

2. Mr Yali was the Governor of Madang Province. He attended a meeting at the provincial government building to get a briefing on a vote of no-confidence in the president of the Ambenob Local-level Government. There were half a dozen people at the meeting. Mr Chapok, the District Administrator, had just come back from the Ambenob council chambers. It was part of his job to oversee no-confidence votes. He went into the meeting room. He greeted Mr Yali and the others. Then he sat down.

3. He was getting ready to tell them that the vote of no-confidence had been postponed. But before he started, Mr Yali verbally abused him. He called him a “bastard” and an “arsehole”. He accused him of associating with the Ambenob LLG president the previous night. In response to the unfriendly atmosphere Mr Chapok got up to leave. Mr Yali stopped him. He punched him several times in the face, drawing blood and causing him to fall to the floor. Another member of the group, Fred Maliupa, the Usino LLG president, also punched Mr Chapok. Then Mr Yali and Mr Maliupa left.

4. Others came to Mr Chapok’s assistance. They rushed him to the Family Clinic in town. He was treated by Dr John Mackerell. The medical report shows that he suffered a 1 cm long laceration to the left side of his nose (still bleeding an hour after the incident) and a small contusion (bruise) to the right side of the chin. His shirt was moderately blood stained.

5. Mr Yali and Mr Maliupa were charged by the police with unlawful assault. They were convicted in October 2004 in the Madang District Court. Chief Magistrate John Numapo presided and imposed suspended sentences of six and twelve months imprisonment respectively.

6. In the meantime, Mr Chapok commenced civil proceedings against Mr Yali and Mr Maliupa. His cause of action is trespass to the person constituted by both assault (threatened harm) and battery (actual physical harm). (For elements of the tort of trespass to the person, see David Michael v Dennis Marus (2008) N3374.)

7. Only Mr Yali has admitted liability. Mr Chapok is claiming:

· general damages of K20,000.00; and

· exemplary damages of K10,000.00; and

· aggravated damages of K15,000.00; and

· special damages of K50.00; being

· a total damages claim of K45,050.00, plus interest.

IS MR CHAPOK ENTITLED TO GENERAL DAMAGES?

8. He suffered bodily injury and also has to be compensated for the shock and distress caused by the incident. The injuries were superficial and relatively minor. There are no clear precedents that have been brought to my attention. The purpose of an award of general damages is to compensate a person; to put them as far as possible in the same position they would have been had they not suffered the injuries incurred because of another person’s wrongful conduct. General damages are intended to be neither a reward nor a penalty (Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364).

9. I will assess general damages at K5,000.00.

IS MR CHAPOK ENTITLED TO EXEMPLARY DAMAGES?

10. The purpose of an award of exemplary damages is to punish a wrongdoer who has been guilty of a wilfully wrongful act, as distinct from a less severe form of wrongful conduct. It provides a deterrent against similar conduct by others (James Koimo v The State [1995] PNGLR 535; Abel Tomba v The State (1997) SC518; Kenneth Bromley v Finance Pacific Ltd (2001) N2097).

11. In this case, Mr Chapok was entirely innocent. He did nothing wrong and did not provoke the incident. Mr Yali was the provincial governor, subject to the Leadership Code and in a position of great power and authority in Madang Province. Mr Yali’s conduct was wilfully wrongful, deserving of condemnation and punishment by an award of exemplary damages. It does not matter that he was charged and convicted over the incident. There is no element of double punishment or at least no punishment other than what is warranted by the egregious nature of Mr Yali’s conduct.

12. I consider that exemplary damages should be assessed at 50 per cent of the award of general damages, so I award K2,500.00.

IS MR CHAPOK ENTITLED TO AGGRAVATED DAMAGES?

13. In PNG Aviation Services v Somare (2000) SC658 the Supreme Court held that aggravated damages are appropriate where the defendant’s conduct lacks bona fides or is improper or unjustifiable. That was said in the context of a successful appeal against an award of damages in a defamation case, which was held to be too low. In Latham v Peni [1997] PNGLR 435 aggravated damages were awarded against a man who assaulted a married couple on an international Air Niugini flight. Doherty J took into account the indignity, fear, humiliation and public disgrace that were suffered by the plaintiffs.

14. It is not clear from these cases what the difference is between exemplary damages and aggravated damages. Mr Akuani, for the plaintiff, has not clearly articulated this part of the case. Mr Yali’s conduct can certainly be regarded as improper and unjustifiable. He was responsible for inflicting indignity, fear, humiliation and public disgrace on Mr Chapok. However, I am concerned that if aggravated damages were awarded on top of exemplary damages, there would be double punishment. I am not aware of any case where both exemplary and aggravated damages have been awarded.

15. I will award nothing for aggravated damages.

SPECIAL DAMAGES

16. Mr Chapok has claimed K50.00 for medical expenses. This is a modest amount, which I award.

SUMMARY OF DAMAGES AWARDED

General damages = K5,000.00

Exemplary damages = K2,500.00

Aggravated damages = 0

Special damages = K50.00

Total damages = K7,550.00.

INTEREST

17. In the statement of claim the plaintiff claimed interest. The relevant law is Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52, which states:

Subject to Section 2, in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

18. As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on the Judge: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run.

19. I exercise that discretion in the following way:

1 A plaintiff should in the normal course of events receive interest. There is nothing that takes this case out of the ordinary in that regard. The Court will order that interest be included in the sum for which judgment is given.

2 The rate of interest commonly used is 8%. In view of current economic conditions in the country I think 8% is the proper rate of interest.

3 Interest should be payable on...