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Kumbo v Famundi and Famundi [1998] PGNC 40; N1717 (28 May 1998)

Unreported National Court Decisions

N1717

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 1176 OF 1996
PETRUS KUMBO - PLAINTIFF
V
KUKUKOVA FAMUNDI - FIRST DEFENDANT
ANNA FAMUNDI - SECOND DEFENDANT

Waigani

Woods J
19-20 May 1998
28 May 1998

DAMAGES FOR ASSAULT - civil claim - no contemporaneous claim – no contemporaneous medical reports - medical reports two years after incident complained of – assault admitted but not degree of the assault – minimal damages.

Counsel

G Garo for the Plaintiff

A Kintau for the Defendants

28 May 1998

WOODS J: The Plaintiff is claiming damages for injuries he received when he was allegedly assaulted by the defendants following a motor vehicle altercation that took place on 25^th October 1994 at Erima, Port Moresby.

The undisputed facts seem to be that on that day the defendants and plaintiff were parked in front of a supermarket at Erima and as the plaintiff was moving his vehicle out of the parking area he reversed into the defendant’s vehicle. The defendants got out of their car and were angry with the plaintiff because their vehicle was a new vehicle and in their anger they each struck the plaintiff. They then discussed the matter and insisted that the matter be taken up with the police and they all went to the Police Traffic section at 4 mile where after discussion it was agreed that the defendants would put their vehicle in for repairs and the plaintiff would meet the cost of repairs. In due course this happened and the plaintiff paid out a sum of K260 for the repairs.

The evidence is clear that at the time of the incident and at the time of the discussions at the Police Station about the repairs to the vehicle there was no mention of any injuries consequent upon the assault. However then in May 1996 the plaintiff wrote a letter of demand to the defendants claiming compensation for injuries he has suffered from the assault on the 25^th October 1994. The Plaintiff in his evidence states that he started to get persistent pain and disability in the use of his shoulder and arm and he relates this back to the assault by the defendants. He now claims that he has a 40% to 50% inefficient use of his left shoulder joint and the left arm with a weak hand grip. He claims that this now means he can no longer work as a mechanic’s labourer.

Whilst the plaintiff states that he went to a medical centre soon after the incident and also attended at the Port Moresby General Hospital he is unable to bring any reports of his injuries at that time or any prognosis for that time. The only medical evidence he is able to bring to the court is a medical report dated April 1996 which refers back to an X-ray report of May 1995. This report suggests osteolytic changes in the 4^th and 5^th cervical vertebrae. There was no obvious external injury or deformity. And the plaintiff was advised to have physiotherapy. The plaintiff has also brought evidence of numerous attendances at the Hospital in 1995 and 1996. However the court has been presented with no evidence as to how the osteolytic changes referred to in the medical report relate back to the assault in 1994. It is merely submitted for the plaintiff that the medical problems he has in 1996 must relate back to the assault in 1994 as there has been no intervening incidents. That can only be a generalisation. I am indebted to the authority of Mann “Medical Assessment of Injuries for Legal Purposes” for an understanding of aspects of the medical report tendered without the evidence of a doctor to explain it. Osteolytic changes can flow from a number of causes and not only from trauma such as from a blow or a fall. It can also follow from normal age degeneration and also from strenuous work or sporting activities. The plaintiff states that he was a mechanic’s labourer and this involved lifting heavy parts of motors and this could often be at difficult angles.

When claiming damages for injuries received in any situation it is usually considered important to have medical reports contemporaneous with the actual incident as normally any later permanent disabilities flow on from initial injuries or effects. Any later medical examination cannot of itself state that the later problems are definitely a result of earlier injuries if there are no earlier injuries duly documented. The plaintiff suggests that there may have been earlier documents to support earlier attendance at the hospital but they have been lost. But if there were any earlier contemporaneous attendance with appropriate injuries then surely the hospital or doctor would have the records. The implication from the absence of any contemporaneous reports of injuries at the time of the incident is that the assault was not serious enough to warrant any concern. It is the norm in this country for people to make claims for compensation as soon as something happens, not to wait for two years. A court must have evidence of the seriousness of the injuries at the time or clear medical evidence to support such injuries at the time. The medical report can only refer to what the doctor was told may have been the origin of the problem, thus “the pains were said to have been started after he was hit on the left side of his shoulder in 1995”. The doctor does not give an opinion that the plaintiff must have suffered some serious assault two years earlier. He can only say what appeared to be the problem at the time he examined the plaintiff but cannot relate it back to any earlier incident. There is a further aspect of the injuries that warrant comment. If there were serious injuries at the time of the incident, under the principle of mitigation of damages then there was an obligation on the plaintiff to seek appropriate medical attention and following on from what the doctor said in 1996 it is clear that the plaintiff should have had physiotherapy treatment much earlier than when he started it in 1996. One of the immediate remedies for spinal or neck injuries is manipulation and physiotherapy. So if some of the more recent disability is as a result of the assault on the 25^th October then much of it may have been exacerbated by the failure of the plaintiff to seek better treatment earlier, in other words by his failure to mitigate the damage.

The defendants do admit to an assault, however not of the nature to cause the disability now complained of.

I am unable on the evidence to find the disability now complained of is as a result of the assault of the defendants in 1994.

There were admissions of an assault but I am unable to find there is substantial loss or damage. The assault was therefore of only a minor nature and I will order damages of K200 for the minor assault.

I order judgement for the plaintiff in the sum of K200.