Kurt Reimann v Harry Ningisere (2011) N4531

• Jurisdiction: Papua New Guinea
• Judge: Kawi, J
• Judgment Date: 18 October 2011
• Citation: (2011) N4531
• Docket Number: APP NO168 of 2010
• Court: National Court
• Year: 2011
• Judgement Number: N4531

Full Title: APP NO168 of 2010; Kurt Reimann v Harry Ningisere (2011) N4531

National Court: Kawi, J

Judgment Delivered: 18 October 2011

N4531

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

APP NO168 OF 2010

BETWEEN

KURT REIMANN

Appellant

AND

HARRY NINGISERE

Respondent

Hoskins: Kawi, J

2011:14th September

Kimbe: 18th October 2011

DISTRICT COURTS- Practice and Procedure – Civil Appeals- Appeal from District Court to the National Court- Appeal Against findings of liability and Assessment of Damages- Tort of trespass to person- Need to establish liability first before question of damages arises- Award of Damages is dependent on establishing liability first and foremost- Need to prove damages with particularity and certainty- Allegation against appellant of using Kungfu style techniques to assault respondent- Allegation not proven on required civil standard- Award of K10,000.00 in damages for a very minor assault. Award very excessive- Finding of liability highly doubtful- Evidence produced by the appellant prove that respondent was slapped on the cheek and evicted from being unlawfully on premises and stalking and harassing a female employee and her daughter- Assault justified- Appeal allowed- Decision of Kimbe District Court quashed.

Facts

The Respondent sued the appellant in the District Court for assault and battery to his person. Evidence produced by the appellant proved that the respondent was slapped on the cheek and evicted from the premises of female employees of a security firm owned by the appellant. The Respondent /Complainant had been stalking and harassing a female security guard and her daughter continuously for some time. Having established liability the learned magistrate then awarded damages in the sum of K10,000.00. The Appellant appealed against both, the finding of liability and the award of damages:

HELD: (1) In a civil action, there are two distinct but related elements to be proved on the balance of probabilities. There is the question of liability and damages. An award for damages only arises, and is dependent on a successful finding of liability.

(2) A tort of trespass to a person, entails that the court must be satisfied of three elements:

(a) The Defendant violated the body of complainant by threatening to harm him (battery) or actually assaulting him. (assault).

(b) The defendant acted intentionally

(c) The defendant acted unlawfully; ie without reasonable excuse or justification.

(3) Here the evidence adduced by the appellant proved that the assault on the respondent/ complainant was justified or excused, as he (ie Respondent) was slapped once on the cheek, in the process of having him evicted from the female employee’s compound, when he put up resistance from being evicted. Evidence had established that the Respondent had been continuously stalking and harassing a female employee and her daughter.

(4) The award of K10,000.00 in damages is not justified because:

(a) There was no proper assessment of damages done by the learned magistrate;

(b) There was no medical evidence produced by the Respondent/complainant to show the kind of bodily injuries he sustained, the nature and extent of such injuries and the permanent nature of such bodily injuries expressed in terms of percentages.

(c) Without undertaking a proper assessment of damages, the learned magistrate committed a gross error of law, in entertaining a claim for damages and awarding the exact amount claimed by the complainant. In so doing the magistrate was doing what is contrary to the Bonham Carter Principle and the Ray Teese Principle, these Principles now being adopted and applied as part of the underlying law of Papua New Guinea.

(5) In the circumstances the appeal is allowed and the decision of the Kimbe District Court is quashed. Cost of the Appeal is awarded to the appellant.

Cases cited

Papua New Guinea cases

University of Papua New Guinea –v- Jerry Duwaino [2011] SC 1119

David Michael –v- Dennis Marus [2008] N3374

Jonathan Mangope Paraia –v- The State [1995] N134.

Yange Lagan –v- The State [1995] N1369.

Kopung Brothers Business Group –v- Sakawar Kasieng [1997] PNGLR 331, Yooken Palikin –v- The State [2001] N2212.

Kolaip Palapi –v- Sergeant Poko, [2001] N2274.

Paul & Grace Nari –v- The State [2004] N2769.

Stanley Magi Eremugo –v- Daniel Tande [2005] N2889.

Firman Mawa –v- Southern Highlands Provincial Government [2008] N3505.

Kui Valley Business Group –v- Kerry Wamugl [2009] N3667.

Martin Paiaore –v- Ian Barr [2009] N3786,

Bob Kol –v- The State [2010] N3912.

Peter Goodenough –v- The State [2001] N2157

Overseas cases

Ray Teese Pty Ltd –v- Syntex Australia Limited [1998] 1 Qd R, 104.

Bonham Carter –v- Hyden Park Hotel Ltd [1948] 64 TLR 178.

Counsel

Mr. Robert Awalua, for the Appellant

Mr. Doko Kari, for the Respondent

18th October, 2011

1. KAWI, J: Kurt Reimann appealed against the judgment of the Kimbe District Court dated 23rd September 2010. He was sued in the District Court for assault and battery by the Respondent Harry Ningisere, who claimed damages thereof in consequence.

DECISION OF THE DISTRICT COURT

2. On the 23rd of September 2010, the Kimbe District Court heard a complaint of assault and battery perpetrated upon the Respondent/Complainant by the Appellant/Respondent, Kurt Reimann. The learned magistrate found the complaint proved and proceeded onto making the following awards of damages:

K10,000.00 - general damages.

K 800.00 - interests

K 200.00 - costs

TOTAL: K11,000.00

3. A total judgment award of K11,000.00 was made, which the court ordered that it be paid forthwith within a period of two months.

GROUNDS OF APPEAL

4. Clearly aggrieved by this judgment, the appellant lodged an appeal to the National Court citing the following grounds of appeal:

(1) The decision by the Grade Five Court was made against the weight of the evidence presented by the respondent in Court; and

(2) The amount of K11,00.00 inclusive of costs awarded to the respondent was manifestly excessive and unjust under the circumstances.

5. The orders which the appellant seeks in lieu are that:

(a) the orders of the Kimbe District Court be quashed.

(b) Costs be awarded to the appellant.

6. Grounds 1 cited in the Notice of Appeal can be further reduced into an appeal against liability and Grounds 2 raises questions about the amount of monetary damages awarded in respect of damages.

7. In any civil actions brought before a court of law, there are two district elements to be determined. That is the question of liability and the question of damages. A determination of liability is a necessary pre-requisite for determining damages, whether or not liability is in issue, in the proceedings.

8. Except where liability is admitted in the pleadings or by evidence or statement made in court by the defendant or his or her counsel, in which case liability may be determined without consideration of any evidence; a determination of liability is based on a consideration of admissible and relevant evidence.

9. The onus is on the complainant to produce that evidence for the court to assess, make findings of fact and applying the law to these findings to reach a conclusion as to liability.

DETERMINATION OF LIABILITY

10. In the present appeal, the District Court was confronted with a complaint of assault and battery to a person, as the learned magistrate stated in his reasons.

11. In effect the complaint before the District Court was a complaint of unlawful trespass to a person. The tort of trespass to a person has three (3) elements which has to be proven before a finding on liability can be made. These three elements are:

(a) The defendant violated the plaintiff’s body by threatening to harm (assault) and/or actually physically harming the complainant (battery).

(b) The defendant acted intentionally,

(c) The defendant acted unlawfully; ie without lawful justification or excuse.

See David Michael –v- Dennis Marus [2008] N3374.

12. In the present case the learned magistrate found that there was assault and battery upon the complainant/respondent and it was an intentional assault. The learned magistrate further found that it was an unlawful assault. His worship therefore found that liability was fully established.

13. I have reviewed the magistrate’s reasons and findings of liability against the appellant/defendant. In my view, there is some doubts arising as to the question of assault being unlawful, ie the assault being without lawful justification or excuse. Before the District Court magistrate, was the affidavit evidence of Ms Margaret Kerari. Margaret was employed by Orion Security Services, a company owned by the appellant as a security guard. The complainant in the court below, (respondent in the present appeal) was, until his termination, also a security guard employed by the appellant’s Security Company. Following his termination, the respondent has continuously made approaches of a sexual nature to the said, Margaret Kerari.

He continuously trespassed onto the house of Margaret...