Joseph Dikini v John Wamel

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 19 May 1997
• Court: National Court
• Year: 1997
• Judgement Number: N1562

National Court: Sevua J

Judgment Delivered: 19 May 1997

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 808 OF 1992

JOSEPH DIKINI — PLAINTIFF

V

JOHN WAMEL — DEFENDANT

Waigani

Sevua J

2 April 1996

4 April 1996

7-8 May 1996

19 May 1997

NEGLIGENCE — Contributory negligence — Personal injury — injury to Plaintiff's eye — Assault on plaintiff by defendant — Defendant assaulted by plaintiff in retaliation — Plaintiff struck with beer bottle half an hour later by the defendant — Whether contributory negligence applicable in the circumstances — Liability

DAMAGES — Personal injury — injury to eye — Particular awards of general damages — Blind in right eye — No perception of light or vision — 100% loss of vision — unemployed adult — Award of K35,000.00 general damages

Cases Cited

Robert Brown v Motor Vehicles Insurance (PNG) Trust [1980]PNGLR 409

Rouney Aura v Papuan Airline Transport Ltd [1963] PNGLR 272

Jacqueline Kennedy v Jerry Nalau & State [1981] PNGLR 543

Takie Murray v Norman Kinamur [1983] PNGLR 446

Jane Rohrlach v Evangelical Lutheran Church of New Guinea Property Trust [1985] PNGLR 185

Seke Opa v The State [1987] PNGLR 469

Melinda Baduk v The State & Ors [1993] PNGLR 250

Sale Dagu v The State, (unreported) N1316

Jack Lundu Yalao v Motor Vehicles Insurance (PNG) Trust (unreported) N1488

Counsel

E Kambure for Plaintiff

Defendant in person

19 May 1997

SEVUA J: This is a trial on liability and assessment of damages in a suit by the plaintiff claiming damages for negligence as a result of injuries sustained on his right eye after he was struck on the right eye with a half full beer bottle by the defendant at 6 Mile Settlement, Port Moresby on 16th September, 1992.

The defendant, who was previously represented by the Public Solicitor, had filed a defence and basically, he claimed that the plaintiff had been negligent, acted in a threatening manner, physically assaulted him (defendant) on the mouth and provoked a fight. The defendant therefore denied liability.

The evidence is this. On 16th September, 1992, the plaintiff was drinking with his friend, Benai Beniama at the 6 Mile Settlement. The plaintiff and some others including two of his witnesses had been drinking for three days and three nights up to and including 16th September, 1992. They were drinking in two separate groups approximately ten metres apart. As the drinking continued, a man from Central Province drove into the settlement.

The plaintiff's friend, Benai Beniama, went to fight the Central Province man so the plaintiff followed Beniama to prevent him from fighting and to talk him out of it. The the defendant, who had nothing to do with that incident, approached, and pulled the plaintiff's shirt then pushed the plaintiff. The plaintiff then slapped the defendant's mouth with an open palm causing a superficial laceration and bleeding. They were separated and that was the end of the altercation.

Approximately, half an hour later, the plaintiff walked to a nearby shop and whilst he stood there, the defendant came from behind and struck the plaintiff with a half full beer bottle on the right eye which broke into pieces on impact. The plaintiff was then taken to Port Moresby General Hospital where he was admitted. I will deal with the medical evidence later, however, at this juncture, let me mention that, after the plaintiff's discharge from hospital, the defendant made two offers of compensation in the sum of K1,800.00 (K1,200.00?) and K2,200.00 respectively which he rejected.

The defendant did not dispute using the beer bottle and admitted what had occurred. He maintained that the plaintiff had assaulted him first and he retaliated by hitting the plaintiff with the beer bottle. He admitted the offers of compensation and further admitted that he had been drinking for three days and three nights. This was supported by two of his witnesses.

In determining the issue of negligence and liability, I accept the evidence of the plaintiff. Having observed the demeanour of all the witnesses in this trial, I consider that the plaintiff was more impressive than the defendant and his witnesses. The defendant and his three wtinesses were very evasive and each said the same thing. I was not impressed at all about their demeanour and I consider that they were not witnesses of truth.

There are two reasons I do not accept their evidence. Firstly, by their own admissions, they had been drinking for three days and three nights up to and including 16th September, 1992. Obviously, and I have no doubt at all that, they were adversely affected by alcohol. I consider that their minds and judgment including vision were severely impaired through intoxication that they were not in a better position to recall clearly what had transpired.

Secondly, this incident occurred a little over three and half years ago prior to trial, yet they said on oath they clearly recall what had occurred. As I said earlier, they all said the same things on oath and I consider that they had rehearsed what they were going to say in Court. The defendant in particular, was very evasive, he exhibited an angry mood in the witness box, he spoke well in examination in chief, however, during cross examination, one could hardly hear him. In my view, he had coached his witnesses in what to say in Court. I therefore reject his evidence including that of his witnesses.

I find as facts the following: Firstly, the defendant pulled the plaintiff by the shirt and pushed him. The plaintiff did not provoke the defendant but the defendant had...