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Era v Paru [1994] PGNC 51; N1237 (17 June 1994)

N1237

PAPUA NEW GUINEA
[In the National Court of Justice]

APPEAL 8 of 1993

SAMUEL ERA

v

SUSAN PARU

Mount Hagen: Woods, J
20 May & 17June 1994

JUDGEMENT

Appeal - District Court - Cause of Action - personal injury or customary claim.

Damages for personal injuries - loss of virginity - damages to status in society as an unmarried woman - Action known in law.

Cases cited:
Aisi v Hoala [1981] PNGLR 199.

P. Kunai for the Appellant.
F. Pitpit for the Respondent.

17 June 1994

WOODS, J.: This is an appeal from the findings and orders of the Ialibu District Court on a Civil Claim for damages to the person and character of the respondent whereby the Appellant was ordered to pay compensation of K1,600 to the Respondent.

In November 1992 the Respondent Susan Paru filed a complaint in the District Court against the Appellant that he had had an affair with her and as a result she is pregnant and the complainant sought damages caused to her virginity in the sum of K2,000. At the hearing of the matter in the District Court the complainant brought evidence that the defendant had pressured her to come with him and had promised that he would marry her and therefore she had gone with him and had an affair with him and had sexual intercourse with him and following the sexual intercourse she was now pregnant. She said that she did this because of his promises to make her his wife and that now he was refusing to honour that promise and therefore she had now suffered damages to her status in society and lost her virginity to him and this therefore demeaned her in the eyes of the community and she would therefore have more trouble getting married. In the cross examination of the complainant the defendant did not deny the suggestion that he had promised he would marry her and he did not deny having sexual intercourse with her however he said that she agreed to the sexual affair.

The respondent also brought another witness whose evidence confirmed the incident where the appellant had insisted that the respondent come with him and also corroborated that the respondent had said at the time that the appellant had made promises to marry her and that's why she had gone with him at the time and had a sexual affair with him.

In his own evidence the defendant admitted having an affair with the respondent and in his evidence he does not deny that he may have indicated that he had serious intentions towards the respondent.

Following the hearing of all the evidence the Magistrate was satisfied on the complaint and ordered the appellant to pay compensation of K1,600. The Magistrate noted that he was satisfied on the evidence that the appellant had done everything possible to get the respondent to have sex with him and he was satisfied that this had now ruined her future life and she was now left with an unwanted child and this could give her difficulties in trying to find another good husband.

The Appellant has challenged this decision firstly on the basis that there is no such cause of action for the injuries done to the respondent namely the loss of her virginity.

The Appellant is suggesting that there is no such cause of action not so much that the District Court had no jurisdiction but rather that the cause of action is one not known to the law. However this is clearly a case of a personal injury it is an injury to the respondents status and her value as a future bride. The argument for the appellant is that this cause of action is a customary action and as such it must be proved as a matter of fact. it is submitted that this must be proved by sworn evidence or affidavit evidence. But why is this a customary action. Surely this is a type of action for personal injuries for something done to the complainant which has harmed the complainant, like an assault. Reference is made to the case Aisi v Hoala [1981] PNGLR 199 where there was claim for repayment of bride price and loss of consortium. I would not argue with the ruling in that case as any question of repayment of bride price must involve consideration of customary laws. But the case before me now is simply a personal action for damages to the complainant by way of injury to her virginity and thus to her status as an unmarried woman. I think it must be clearly accepted that it would be common knowledge that a future bride is more valuable and has greater respect if she has not had an affair or children by someone else before her marriage so why should there not be a cause of action namely personal injury to her status by the loss of her virginity. Of course it is clear that under the District Court the District Court has no jurisdiction in cases of breach of promise to marry, but this is not taken as a breach of promise to marry, the respondent was not seeking damages for missing out on the marriage she was seeking damages for personal injuries to herself.

Of course it goes without saying that the reference in the District Court Act to the action for seduction has no relevance here as seduction used in the District Court Act is a specialist legal term and does not mean what may be accepted in common parliance so this is not the legal action of seduction as excluded in the District Court Act.

There is no evidence before the District Court that this was simply a matter of two people having an affair with open consent the evidence was all quite clear that there was misrepresentation made to the respondent to influence her to have this sexual relationship. Of course courts should be very careful in such cases to ensure that it is just not simply a matter of an affair where parties fall out afterwards and in such situations a partner would have no such re-course as the complainant has taken here. But here there is clear evidence that could be accepted by a court that the respondent was mislead and has in effect given up a valuable asset that she has on a false pretence.

I therefore see nothing wrong in the decision of the Magistrate and in his reasons. I see no reason why such an action should not be supported by this court. I therefore find in the circumstances the findings of the District Court are open on the evidence and I am satisfied there has been no errors made by the Magistrate.

I therefore dismiss the appeal with costs.

Lawyer for the Appellant: P. Kunai
Lawyer for the Respondent: Public Solicitor