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Alphonse v Tasso [2007] VUSC 54; Civil Case 21 of 2005 (29 May 2007)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 21 of 2005

BETWEEN:

KAL ALPHONSE
Claimant

AND:

PHILIP TASSO
First Defendant

AND:

THOMSON KEITH
Second Defendant

Coram: Justice C.N. Tuohy

Counsels: Mr. Kalmet for Claimant
Mr. Hilary Toa for First Defendant

Date of Hearing: 15 March 2007
Date of Decision: 29 May 2007

RESERVED JUDGMENT OF JUDGE C N TUOHY

1. This is a claim against the Defendants for damages for assault. Judgment on liability was entered against both Defendants on 7 June 2005 but set aside in respect of the First Defendant only. Accordingly the trial proceeded as to liability against the First Defendant and as to quantum against both.

The Claimant’s case – Liability

2. The Claimant presented evidence by way of sworn statements by himself (2), John Sam, Maki Joseph, Emile Bong, Anatole Hymak and Hervé Collard. The latter two related to damages only. No notice to cross-examine was given in respect of any of these witnesses.

3. The Claimant is an electrician employed by UNELCO. His evidence was that on the morning of Sunday 29 February 2004, he was working up on an electricity pole at Nambatri area. With him were two other UNELCO employees, Sam John and Maki Joseph.

4. He had been up the pole for approximately 10 minutes when he noticed some people assembling at the bottom of the pole. He thought they were just onlookers.

5. After completing his work, he descended the pole and removed his climbing gear. A person from the group at the bottom of the pole then stood in front of him and said:

"Is your name Kal?"

At the time he did not know this person but now knows him as the First Defendant.

6. A conversation then ensued to the following general effect:

He said: I am Kal Alphonse.

Tasso said: So you are the one ringing my wife and inviting her to spend time with you?

He said: I don’t know your wife. I don’t know what you are talking about.

Tasso said: You are lying.

He said: I only got married in December 2003. I am very happily married. I do not know your wife.

7. Immediately after those things were said, he was hit in the back of the head. He did not see who hit him. He was still wearing his safety helmet and did not feel the full impact.

8. Within moments, punches hit him from both sides. He said that he saw the assailants and subsequently identified them as the Second Defendant and a person who was originally named as a defendant, Marcel Nanua. The claim was discontinued against him.

9. He tried to cover his face but before he could do so, he was struck directly in the mouth and upper lip by the First Defendant, causing intense pain.

10. Some more punches were thrown after this blow, but not long after the persons who had attacked him ran away.

11. The Police arrived and the three persons who had attacked him were named by a bystander. The Police then took the Claimant to a village where he identified the two Defendants and Marcel Nanua as the persons who had assaulted him and the First Defendant as the person who had struck him on the mouth. His own evidence and that of Hervé Collard established that he suffered serious injuries to the mouth as a result of the attack, in particular the loss of a front tooth.

12. His workmates, John Sam and Maki Joseph supported his statement. John Sam saw the group of men approach the electricity pole which the Claimant had climbed. He identified the First Defendant with whom he had played futsal and the Second Defendant whom he knew as a neighbour. He saw them speak with Maki Joseph. He saw them approach the Claimant after he had come down from the pole.

13. He saw and heard the First Defendant say to the Claimant in a loud voice words to the effect "Are you Kal? Are you calling my wife?" and then saw the First Defendant throw a punch which landed squarely on the Claimant’s face.

14. He saw the Claimant trying to cover his face while the First Defendant, the Second Defendant and other men from the group surrounded the Claimant and threw many punches at him until he and Maki Joseph intervened and the men left.

15. Maki Joseph also saw the group of young men approach. He recognised the First Defendant who is from his island and whom he knew as Philip. The First Defendant asked if it was Kal Alphonse up on the electricity pole and Maki Joseph confirmed that it was.

16. He saw the group wait until the Claimant descended and saw the First Defendant leading the others to approach and surround the Claimant. He heard an exchange of words, and when he asked what was happening was told by one of the group that the Claimant was having an affair with the First Defendant’s wife.

17. As he was leaving the group, he saw the Second Defendant throw a first punch but was unable to see whether it landed on the Claimant’s face. He then saw the others including the First Defendant throwing punches and kicking the Claimant while the Claimant was trying to cover his face. The group left when he and John Sam intervened.

18. As well as these 3 eye-witnesses, there was evidence from Police Corporal Emile Bong, the Police Officer who took a statement from the First Defendant on 2 March 2004. In it the First Defendant stated:

"Mi wandem admittem se I true mi faetem Karl Alphonse two (2) taem long face blong hem long yesterday Sunday 29/02/04.

Reason blong mi faetem hem, hemi from Karl Alphonse istap ringim wife blong mi. Mi admittim se wanem we Alphonse I talem everyone I true".

The First Defendant’s case

19. The First Defendant presented as his evidence the sworn statements which he had filed in support of his application to set aside judgment as to liability. There were two made by himself and another made by his de facto wife, Melisa Thua.

20. The First Defendant’s sworn statements deposed that he had been told by Melisa Thua that a man by the name of Kal Alphonse had been ringing her persistently making advances to her and trying to get her to meet him.

21. He said that he found out who the man was and where he was. He said that he went there with two friends with the intention of telling him to stop calling and harassing his wife.

22. He stated that the Claimant came down from the pole and acknowledged who he was. He said he asked the Claimant if he had been ringing his wife for a rendezvous and that he did not answer. He said that the other two, the Second Defendant and Nanua, punched the Claimant who started saying "honest, honest" but Nanua punched him and then kicked him in his mouth.

23. He said that as he believed that the Claimant was lying in his answers about his wife, he then tried to slap him twice across the head. He stated that the first slap landed on his helmet and the Claimant blocked the second with his hands raised in defence like a boxer and that he, the First Defendant, then retreated as he felt dizzy and sick.

24. He stated that after that the Claimant was punched by the other two, striking only his helmet and that Nanua kicked the Claimant in the mouth causing him to fall down. He denied striking the Claimant in any way on his face, mouth, teeth, nose or lips.

25. He was cross-examined. He acknowledged what he said to the Police but said that when he used the word "faetem" in the Police statement, he meant slapping. He gave no answer to the question as to why he did not use the word "slap". He then admitted punching the Claimant.

26. When asked why he brought two friends with him, he said that they were just following him. His explanation of the reason why the friends wanted to beat up the Claimant was that the Second Defendant was close family. He admitted that he punched the Claimant because he was angry but said it was in the helmet, not in the mouth or face.

27. In re-examination he said that when he said in his Police statement that "what Alphonse said was true", he meant that it was true that he (the First Defendant) punched his helmet.

28. Melisa Thua was not present at the incident. This did not prevent her statement containing a lengthy account of what had happened according to her husband. All that is inadmissible hearsay. The only relevant admissible evidence she gave was to confirm the motive which her husband had for wanting to assault the Claimant.

Discussion – Liability

31. I am satisfied that the First Defendant and the two other men had gone to find the Claimant for the specific purpose of assaulting him as a punishment and a warning for what they believed were the Claimant’s attempts to seduce the First Defendant’s wife. I do not believe that the two others were there simply because they had followed the First Defendant. They were there to back up the First Defendant and to provide sufficient manpower to outnumber the Claimant so that they would be able to teach him a lesson by giving him a beating. I reach that conclusion from all the circumstances including the admitted motive and what by all accounts actually happened, that is, that the Claimant was given a beating.

32. I am satisfied that the First Defendant took a full part in the beating and that it was he who inflicted the major damage to the Claimant’s mouth.

33. I reach that conclusion because both the Claimant and John Sam gave specific and clear evidence that the First Defendant struck the Claimant square in the mouth, and it was then that the Claimant felt intense pain, and, in my judgment, suffered his main injury. Neither of those witnesses were cross-examined and there is nothing to shake their evidence.

34. The First Defendant’s evidence that he only gave the Claimant two ineffectual slaps is unconvincing and I do not accept it. He was the one who led the expedition against the First Defendant, he was the one who had the motive to give the Claimant a beating; he admitted in evidence that he was angry with the Claimant.

35. He also made the admissions to Police Corporal Bong outlined in Paragraph 18 above. The words in his statement "I tru mi faetem Karl (sic) Alphonse two taem long face blong hem" are an admission that he struck the Claimant twice in the face. They do not mean that he slapped him once on the helmet and once on his upraised hands as the First Defendant pretended. He also admitted that all that the Claimant said was true although it is not clear exactly what statement of the Claimant he was then referring to.

36. I am therefore satisfied that the First Defendant committed the tort of trespass to the person by assaulting the Claimant. I am also satisfied that he is in law jointly responsible for all the injuries suffered by the Claimant in the beating because he himself caused the major damage to the Claimant’s mouth and because the attack was a joint enterprise to which he was a party.

Damages

37. The physical injuries which the Claimant suffered in he attack were severe abrasions and lacerations to his lips and mouth, the loss of an upper tooth in the front of his mouth, severe swelling and bruising in and around his face and continuing swelling and sagging of his lips.

38. He had to undergo lengthy and expensive dental surgery to repair the damage to his teeth much of which had to be undertaken in New Caledonia, requiring him to travel there on 3 separate occasions in 2005.

39. The injuries caused considerable pain and suffering not only immediately but continuing on throughout the subsequent treatment. He was very upset following the assault which was shocking in its suddenness and ferocity.

40. In addition, for a period after the assault, the Claimant had difficulty sleeping, and felt humiliated and ashamed.

41. The Amended Claim seeks general, specific, aggravated and exemplary damages against the Defendants jointly and severally. The particular sums sought for general and specific damages are set out in Para 4. They are:

In addition interest at 9.5% was sought on those sums from 29 February 2004 and 31 October 2005 respectively to date.

42. At the end of the trial, counsel were given leave to file written submissions regarding quantum. Only Mr. Kalmet filed submissions which I have found helpful (although the judgment in the Supreme Court in Entreprise Roger Brand v Hinge was attached, rather than the Court of Appeal judgment as stated).

43. The specific damages sought are the costs of undertaking dental treatment both in Port Vila and in Noumea. I am satisfied from the sworn statement of Hervé Collard, Dental Surgeon of Port Vila, that all the dental treatment undergone by the Claimant was reasonable and necessary as a result of the injuries suffered by him in the attack. The replacement of the tooth had to be carried out in Noumea because the necessary equipment and facilities are not available in Vanuatu.

44. Those costs were met in the first instance by the Claimant’s employer UNELCO and the exact amounts supported by invoices and receipts were proven by a sworn statement of Anatole Hymak, the Human Resources Manager. They totalled VT 247,856 and CFP 389,389 totalling in Vatu 711,060. I am satisfied that all this expenditure was reasonable and necessary.

45. The general damages sought for pain and suffering were calculated using the approach adopted by Vaudin d’Imecourt CJ in Solzer v Garae and the Government of Vanuatu CC 117 of 1992 (15 June 1992), that is, by ascertaining an appropriate award in the United Kingdom using the Guidelines for the Assessment of General Damages in Personal Injury Cases (6th ed) compiled for the Judicial Studies Board and dividing it in half.

46. That approach was questioned by the Court of Appeal in Entreprise Roger Brand v Hinge [2005] VUCA 21; CAC 13 of 2005 (18 November 2005) in which the Court suggested that at some stage it might need to undertake a more in-depth analysis of the proper basis for assessment of damages in personal injury cases of the sort carried out by the Supreme Court of Fiji in The Attorney General of Fiji v Broadbridge [2005] FJSC 4. However, no subsequent opportunity to do has arisen.

47. In a case like the present, where there is a particular injury, loss of one front tooth, which is specifically listed in the Guidelines, they remain a very useful place to start. They give a figure for loss or serious damage to one front tooth of £1,000 to £2,000. They note that in cases of damage to teeth there will generally have been a course of treatment as a result of the initial injury. The amounts awarded will vary according to the extent and/or degree of discomfort of such treatment.

48. Here there was a complete loss of the tooth, treatment was significant, involving 3 overseas trips and must have resulted in significant discomfort. In my view an appropriate award in the United Kingdom on this head would be at the top of the range, £2,000.

49. As well, for trivial facial scarring a range of £900 - £1,800 for males is given. There were no photos provided although the Claimant did state that he suffered from some tenderness and sagging of the lip even at August 2005 when he made his statement. I consider a figure of £900 would be the appropriate United Kingdom award.

50. As well as that it is necessary to keep in mind, the shock humiliation and fear which this assault caused to the Claimant which were significant.

51. The Claimant’s figure of VT 441,883 is based upon awards of £2,000 and £900, which is entirely in accord with my own assessment. The vatu figure is reached by dividing that sum by 2 as in Solzer v Garae and Government of Vanuatu and then applying a conservative multiplier of 2.5% p.a. for inflation from 2002 (the date of the Guidelines) up to 1 December 2006 and then converting to vatu at the exchange rate ruling at 1 December 2006.

52. The only query I have with that approach is the multiplier of 0.5 applied to the sterling figure which Vaudin d’Imecourt CJ considered appropriate to recognise the different economic circumstances of the United Kingdom and Vanuatu in 1992. While it might be somewhere near the mark today in respect of the relative cost of living, it is nowhere near it with respect to income levels which are many times higher in the United Kingdom. However in the absence of either evidence or argument on the point, I will follow the precedent, such as it is.

53. The claim specifically seeks aggravated and exemplary damages. Although no submissions were directed to these heads of damage, it was submitted that interest at the level of 9.5% is justified "to reflect the need to mark the Courts disapproval of the Defendant’s conduct and the vulnerability of the Claimant".

54. In my view the evidentiary basis exists for an award of aggravated damages. This was a cowardly and violent attack. It was unjustified whether or not the Claimant had telephoned the First Defendant’s wife, an issue which is irrelevant to liability in this case. The way in which it was carried out, three men attacking one, without warning, at his place of work and with such sudden violence was frightening, humiliating and distressing for him.

55. I consider that he is entitled to an award for aggravated damages but interest is not the way to do it. A specific figure should be set. I award VT 100,000 on this head.

56. Given those awards, I do not intend to make any further award of exemplary damages to punish the defendants. The evidence discloses that the Police did investigate this incident fully. It does not disclose whether criminal proceedings were instituted or their result but it may well be that the Defendants have been punished in that way.

57. As to interest, there is no reason why it should not be awarded on the pecuniary losses. All of those expenses were incurred prior to October 2005. However, there is no basis to add interest to the award for pain and suffering which is adjusted to a current figure. There was no evidence given about interest rates and therefore, as the Court of Appeal did in Entreprise Roger Brand v Hinge (supra) a rate of 5% will be applied.

58. In summary, damages are fixed as follows:

59. This was a joint assault. These two Defendants are jointly and severally liable for the full amounts. So judgment is against each of them in that amount.

60. The Claimant is also entitled to costs to be agreed or fixed by the Court. There will be an enforcement conference on 6 July 2007 at 8 a.m. to examine the Defendants about how they propose to pay the judgment. A summons in Form 24 is to be served upon the Defendants by the Sheriff. Costs will be fixed at that conference if not earlier agreed.

Dated AT PORT VILA on 29 May 2007

BY THE COURT

C. N. TUOHY
Judge