Monica Kessi v Hilda Luvao (2012) N4750

• Jurisdiction: Papua New Guinea
• Judge: Ipang AJ
• Judgment Date: 27 July 2012
• Citation: (2012) N4750
• Docket Number: CIA NO.54 of 2008
• Court: National Court
• Year: 2012
• Judgement Number: N4750

Full Title: CIA NO.54 of 2008; Monica Kessi v Hilda Luvao (2012) N4750

National Court: Ipang AJ

Judgment Delivered: 27 July 2012

N4750

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO.54 OF 2008

BETWEEN

MONICA KESSI

Appellant

AND

HILDA LUVAO

Respondent

Goroka: Ipang AJ

2012: June 22 & 27 July

CIVIL LAW – Appeal against District Court order – awarding damages in the sum of K 4, 060.00 – District Court finding of liability and assessment on different heads of damages not challenged – the only challenge is on quantum of damages awarded by the District Court.

DAMAGES – Assessment of damages for unprovoked assault and battery discussed – National Court will not disturb the damages awarded by a presiding magistrate unless it is of the view that the amount awarded is so inordinately high that it is wrong estimate of the damages. MVIT -v- Tabanto [1995] PNGLR 214 followed.

DAMAGES – Heads of damages – Intentional injuries – not one of the heads of Damages.

PRACTICE AND PROCEDURE – Appeal – District Courts Act – Section 230 (2) – An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.

Cases Cited

Alex Latham -v-Henry Peni (WS No. 428 of 1995) & Kathleen Marie Latham vHenry Peni (WS No. 429 of 1995) (22 December, 1995) N1463

Helen Bia Sam v Paul Harum, Henry Tokam & The State [1988] PNGLR 346

In Post Telecommunication v MVIL (2003) N2479

Motor Vehicles Insurance (PNG) Trust v Salio Tabanto [1995] PNGLR 214

David Wari Kofewi v The State & Ors [1987] PNGLR 5

Gorua Tamarua v Alert Security Services (2002) N2200

Woma Paul v Anton Kare & PNG [1988] PNGLR 276

Counsel

Mr. D. A. Umba, for the Appellant

Mr. K.Pilisa, for the Respondent

DECISION ON APPEAL

27th July, 2012

1. IPANG AJ: This is an appeal from the decision of District Court made on the 12th October, 2007 where the District Court ordered the appellant to pay respondent the sum of K4000.00 in damages. The appellant being aggrieved by the decision of the District Court filed her appeal. Both Counsel, Mr. Umba for the appellant and Mr. Pilisa for the respondent prepared written submissions and presented them on the two (2) grounds of appeal on the 22nd June, 2012. I heard their submissions and reserved my decision to today. From the outset, the appellant has not challenged the District Courts finding of liability or the respondents legal entitlement to claim under the heads of damages she has claimed. The appellant only challenges the quantum of damages awarded against her.

2. The two (2) grounds of appeal as contained in the appellant’s Notice of Appeal dated 25th of April, 2008 are;

i. His worship’s award of the sum of K3000.00 for the injuries

sustained by the Respondent is excessive when the medical evidence shows that the injury is minor and not serious.

ii. His worship erred in law in awarding K1000.00 for mental and

physical stress when there was no medical evidence at all to support such finding.

3. The appellant seeks the following orders;

(a) The appeal be upheld;

(b) The award of K3000.00 be reduced;

(c) The award of K1000.00 be quashed;

(d) Any such further orders as this Honourable Court deems meet.

4. The appellant in arguing her appeal through her Counsel Mr. Umba relied on her submission filed on the 16th of August, 2011. The brief facts which were the cause of the District Court proceedings D/C No. 142 of 2007 are as follows; the appellant suspected the respondent of having an affair with her husband. On the 20th of April, 2007 at the Goroka Main Market, the appellant saw the respondent and stabbed her with a knife on her left upper arm. As a result, the respondent sustained injury was treated at Goroka Base General Hospital and had a medical report. The Medical Report which will be referred to and considered substantially for the purpose of this appeal is dated 24th April, 2007 and the said report is done by Dr. M. Heritrenggi.

5. On the 10th May, 2007 the Respondent filed proceedings in the District Court claiming damages in the sum of K8000.00 (refer to pages 69 – 70 of the Appeal Book) and the District Court on the 12th October, 2007 awarded a sum of K4, 060.00 in damages (refer to pages 80 – 84 of the Appeal Book).

First Ground of Appeal: District Court Award of K3000.00 against the medical evidence.

6. The First Medical Report was tendered in the District Court and was marked as Exhibit “A”. The Medical Report was done up by Dr. M.Heritreggi. The report stated that the Respondent sustained a laceration on her left upper arm. The paragraphs 2 and 3 of the Medical Report stated the following:

“On examination the patient’s vitals were stable. Local examination of the wound showed a clean laceration to the anterior surface of the upper left arm. The wound was 3cm in length on the surface and 2cm deep. The floor of the wound extended inferiormedially for a further 3-4cm. Blood was oozing from the wound. Under local anaesthesia the wound was cleaned before sutured. Stat intramuscular antibiotics were given and the patient as prescribed amoxicillin and paracetamol to take home.”

7. The paragraph 3 of the said Medical report gave the following predications:

“It is expected that the wound will heal in one or two weeks barring complication. It is also expected that the patient will retain full use of her left arm following healing of the wound”.

8. Mr. D. Umba of Counsel for the appellant submitted in relation to First Ground of Appeal that, the presiding District Court Magistrate has made an error in awarding the full amount of K3000.00 for intentional injuries, on the following basis:

(a) There was no treatment notes tendered as evidence for His Worship to consider and make assessment.

(b) The Medical Report of Dr. M. Heritrenggi appear to be an interim report as it was dated 24th April, 2007, written 4 days after the stabbings and he states in the report that the wound would heal after one or two weeks thus the report is not conclusive.

(c) His worship failed to give any consideration to paragraph 3 of Dr. Heritrenggi’s Medical Report.

Respondents Response to Appellants Arguments

9. Mr. K. Pilisa of Counsel for the Respondent argued that the Appellant’s Counsel Mr. D.Umba during his submission for the Appellant before the District Court had submitted that an amount of K2000.00 would be reasonable. Furthermore, Mr. Pilisa submitted that the appellant’s lawyer did not argue the justification for the figure of K2000.00 by way of judicial precedents and the relevant & applicable scales.

10. He (Mr. Pilisa) went further and argued that the presiding magistrate on the other hand cited the case of Hellen Bia Sam v Paul Harum & Others [1988] PNGLR 346 as a guide and awarded K3000.00 to the respondent. Mr. Pilisa relied on the case of Alex Lathan v Henry Peni & Kathrine Marie Lathan v Henry Peni (22 December, 1995) N1463, where the National Court awarded a sum of K1500.00 in general damages to support presiding magistrate’s assessment.

11. As far as the Second ground of appeal is concerned, Mr. Pilisa argued that this was argued before the District Court but the learned presiding magistrate considered and determined that the respondent had suffered both mental and physical distress. Mr. Umba argued that the Medical Report does not disclose mental and physical stress. He submitted that the Medical Doctor who did the report was not a specialist.

12. There is of course, a Medical Report on the mental state of the respondent dated 28th July, 2007. This Medical Report is by Dr. (Brother) Michael Andrew, SSF. MBBS, the Honorary Visiting Psychiatrist. The following were the evaluation reported:

“The shortness of the period and diagnosis of Post Traumatic Stress Disorder (Aftershock) is short and only few symptoms reported. The appropriate diagnosis would be Acute Stress Disorder. It can be expected that the level of stress will slowly abate; however this may require therapy for some time.

The plaintiff discovered to me her affidavit of claim. I cannot give any opinion in monetary terms but the item for mental distress I considered appropriate as a proportion of the over-all quantum of damages claimed.”

13. The Respondent relied on Mc Gregor on Damages 15th Edition paragraph 1426 on the types of damages that the Court may consider and award. This was cited and relied on in Latham v Peni (Supra). I find appropriate to re-state here:

“In so far as an assault and battery results in physical injury to the plaintiff, the damages will be calculated as in any other action for person injury. Beyond this, the tort of assault affords protection not only from physical injury but also from the insult which may arise from interference with the person. Thus, a further head of damage is the injury to feelings, i.e. the indignity, mental suffering, disgrace and humiliation that maybe...