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Sifuro v West [1999] PGDC 12; DC58 (25 June 1999)

Unreported District Court Decisions

[1999] PNGDC 16 - GAVEN SIFURO V BILL WEST

[1999] PNGDC 16

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 8 OF 1999

GAVEN SIFURO (Complainant)

v

BILL WEST (Defendant)

Kimbe

S Lenalia PM

26 May 1999

15 June 1999

25 June 1999

CIVIL JURISDICTION�Damages�Personal injuries�Total blindness of right eye.

DAMAGES�Personal injuries�Injuries to right eye�Total blindness to light and vision�Injuries 100% loss of the use of the right eye.

CIVIL LAW�Damages�Duty of case�No liability where there is no duty�Complainant in the shop at time of robbery�Defendant acted in accordance with Constitution s53. No liability.

Cases referred to:

M'Alister (or Donoghue) v Stevenson [1932] AC 562

Butler (or Black) and Ors v Fife Coal Co Ltd [1911] UKLawRpAC 74; [1912] AC 149

Grant v Australian Knitting Mills Ltd [1936] AC 85

Scott v London and St Katherine Docks Co [1865] EngR 220; [1865] 3 H & C 596

Home Office v Dorset Yacht Co. Ltd [1970] UKHL 2; [1970] AC 1004

Cunard v Antifyre Ltd [1933] 1 KB 551

Legislation:

Evidence Act (Ch48) s34

Constitution s44, s49 and s53

Representation:

Counsel/Representative:

Complainant: J Unido

Defendant: Unrepresented

Lawyers/Representative:

Complainant: Latu Lawyers

Defendant: Unrepresented

S LENALIA PM:

N1>[1]����� The complainant was a customer in the trade store owned by the defendant during which time an unnumbered armed gang robbed the shop and carried away store goods and an unspecified sum of money was also stolen. In a bid to escape, one of the gang members fired a shot at the defendant which missed the defendant, hit the iron door to the shop with pellets ricocheted some of which hit the complainant on his right eye. In all the complainant claims K7,000.00 damages plus special damages.

N1>[2]����� The brief facts of this case are stated in the Statement of Claim in which the Complainant pleads that Defendant failed to take adequate precautions for the safety of the Complainant whilst being a customer in the Defendant's store thus exposing the Complainant to risk of damages or injuries which the Defendant knew or ought to have known and that by reasons of the Defendant's negligence the Complainant sustained severe injuries and suffered loss and damages.

N1>[3]����� The defendant turned up at preliminary stages of the proceedings and when the matter was set down for trial, he did not appear, I gave him the benefit of non appearance and adjourned the trial several times and on the third appearance, I directed that evidence should be by way of affidavit in accordance with s34 of the Evidence Act (Ch48).

N1>[4]����� The Complainant's evidence is that on 28 December 1997 at around 1 pm, the complainant himself and two of his friends walked up to the defendant's trade store to buy soft drinks and biscuits. The store is situated at Sarakolok Community Centre. Whilst the complainant and his friends were in the shop, a group of man rushed into the shop armed with three factory made guns and a bush-knife with intention of robbing the shop. It is the complainant's evidence that at the material time, the defendant and his female shop assistant were in the shop. Being afraid of the armed gang, the complainant says that, the defendant and the female shop assistant ran into an adjacent room for safety. It is not clear from the complainant's evidence whether the "adjacent room" is a separate compartment or part of the same building.

N1>[5]����� Once the gang was in the shop, they ordered the complainant and his companions to lie down on the floor and the gang started to help themselves by emptying shelves of store goods and whatever their hands could find. An unspecified sum of money was also stolen. The defendant and his female counterpart came out from the room where they were hiding and the defendant started struggling with the gang while some gang members continued to take goods away on a waiting get-away vehicle parked near the premises with its engine still going. It is Sifuro's evidence that once all gang members were outside the shop, they proceeded toward the get-away vehicle with one of them in possession of a gun walking backward with his face facing the shop pointing the gun at the direction where the shop is.

N1>[6]����� Gaven further says that the last gang member to walk out from the shop closed the security iron door behind them and once more gave orders to the defendant and those in the shop to lay still. The complainant says that the iron security door is designed in such a way that one can look through it. The complainant says that the defendant armed himself with a carving, opened the security door and ran out in a bid perhaps to either retrieve stolen properties or to put up a fight with the gang. By that time, the gang member in possession of the gun was now beside the get-away vehicle still pointing the gun now at the defendant.

N1>[7]����� It is the complainant's evidence that when the defendant was running toward the gang's vehicle, a warning shot was fired into the air. Gaven says that the defendant did not heed the warning and continued to pursue the gang and when the defendant was about between his shop and the getaway vehicle, another shot was fired at the defendant missed the defendant. Some gun pellets hit the complainant on his right eye causing him total blindness. Evidence of Bob Gesring confirms the complainant's version that Gaven suffered injuries to his eyes in the trade store owned by the defendant when the gang fired at the direction where the defendant was running towards the getaway truck and which missed the defendant this hit the complainant. Bob Gesring also received three pellet wounds, one or his left arm, another on the left small man finger and one on his right ribs.

N1>[8]����� The Medical Report compiled by Dr John Beaso at the Tusa Medical Centre in Lae observed the following:�

N2>(a)����� gross edema swelling on the right orbit

N2>(b)����� gross pellet marks on right lateral aspect of the face

N2>(c)����� gross total blindness to light and vision

N2>(d)����� gross the eye contents showed pus like material.

N2>(e)����� gross an Xray showed a pellet posterior to the right eye ball.

N1>[9]����� The doctor's conclusion was that the complainant has a 100% loss of the right eye.

N1>[10]��� The Defendant did not appear at the hearing dates and the evidence was by affidavit as well as by way of ex parte proceedings. Despite this, the defendant filed three hand-written affidavits after the complainant had completed his case. I will use my discretion as to whether I can accept their evidence or not. There are three witnesses' hand-written affidavit and they are one page each and I have deliberately chosen not to read through the three statements as I do not wish to accept that evidence into the total evidence of this case. The stronger argument is that the matter was conducted ex parte and depending on the decision of the Court which shall be pronounced shortly the defendant will have an opportunity to take further application for setting judgment aside if the decision was against him.

N1>[11]��� In support of the evidence by the complainant's evidence, his lawyer cited the case of Donoghue v Stevenson [1932] AC 562 which discusses the question of liability and more particularly the judgment of Lord Atkin which provides that one must take reasonable care to avoid acts or omissions which may reasonably foresee would be likely to injure your neighbour. As rightly put by the complainant's counsel, the question arises "who is my neighbour". The principle enunciated in Donoghue v Stevenson (supra) is that persons who are closely and directly affected by an act or omission which if done will cause injuries to the person affected.

N1>[12]��� The complainant pleads negligence in his statement of claim alleges that the injuries he sustained in that shooting incident were solely caused by the negligence of the defendant by failing to take adequate precautions for the safety of the complainant whilst being a customer in the defendant's store. There is no further evidence as to whether the defendant is actually the owner of the shop or not as there is no Certificate of trade to determine who actually is the shop owner. The complainant further claims that due to such negligence, he was exposed to risks of damages or injuries which the defendant knew or ought to have known. That by reason of the defendant's negligence the complainant sustained severe eye injuries which have caused him loss and damages.

N1>[13]��� In order for a person to claim for negligence he ought to establish first that there exists a duty of care between him and the tortfeasor. It has been said that it is a question of law whether or not there exist a duty of care in any given case under consideration: Black v Fife Coal Co Ltd [1911] UKLawRpAC 74; [1912] AC 149 (at 159 per Lord Denning MR). Unless the existence of such a duty can be established an action in negligence must fail: see Article by Symmons on "Duty of Care in Negligence" [1971] 34 Modern Law Review.

N1>[14]��� Perhaps the clearest illustration of the need for a duty of care to exist may be found in the words of Lord Wright in Grant v Australian Knitting Mills Ltd [1936] AC 85 at 103 where his honour said:

"All that is necessary as a step to establish the tort of actionable negligence is to define the precise relationship from which the duty to take care is to be deduced. It is, however, essential in English law that the duty should be established: the mere fact that a man is injured by another's act gives in itself no cause of action: if the act is deliberate, the party injured will have no claim in law even though the injury is intentional, so long as the other party is merely exercising a legal right: if the act involves lack of due care, again no case of actionable negligence will arise unless the duty to be careful exists."

N1>[15]��� To put that principle in another perspective a person is entitled to be as negligent as he pleases toward the whole world so long as he does not owe anybody a duty to take care. The term "duty" connotes the relationship between one person and another, imposing on the other one an obligation for the benefit of the other to take reasonable care in all the circumstances.

N1>[16]��� On the concept of reasonable foresight or remoteness on the existence of a duty of care the principle of "res ipsa loquitur" operates to breach the gap between a clear cut case of negligence and that of remoteness of a duty. The onus of proof lies on the party alleging negligence and that is, he should establish his case by a preponderance of probabilities. For thus he will normally have to prove that the other party acted carelessly. It is possible for a party in a case to rely on the mere fact that something happened as affording prima facie evidence of want of due care on the other's part, the doctrine of "res ipsa loquitur" will assist him to effectuate his claim. Where a plaintiff pleads res ipsa loquitur it is a confession by him that he has no affirmative evidence of negligence. A classic statement of circumstances in which a party's claim based on the doctrine of res ipsa loquitur was made by Erle CJ in Scott v London and St Katherine Docks [1865] EngR 220; [1865] 3 H & C 596 at 601 where His Honour said:

"There must be reasonable evidence of negligence.

But where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."

N1>[17]��� On the question of remoteness and whether there exists a duty one must asked the "but for" test. Had it not been for the tortfeasor's action, would the plaintiff suffered such loss. Obviously the question arises in the case before me is did the defendant owe a duty of care to the complainant. The complainant's pleadings and evidence seem to say that because the defendant opened the door to the shop to pursue the rascal gang, he was negligent or that he knew or ought to have known that the process of opening the door would create risks in that the rascal gang would fire at the defendant if he ran out as he did.

N1>[18]��� The defendant had and has every right in law to protect his property if the shop was his and the Constitution guarantees protection of property. See s44 and s49 of the PNG Constitution. There is no doubt the complainant suffered injuries and no doubt his evidence shows that he also suffered especial damages. I ask myself this question, what duty did the defendant owe to the complainant. Let me say that, there is not duty imposed by law on any person to attempt to rescue another who may have got himself into trouble as was said in Home Office v Dorset Yacht Co. Ltd [1970] UKHL 2; [1970] AC 1004 at 1042 per Viscount Dilhorne. Once a would be rescuer has taken active steps in a rescue bid, he is said to have assumed a duty of care towards the person being rescued. This is not the case in the complainant's case.

N1>[19]��� The defendant had every right to protect his store if he owns it. The act of opening the door if he opened it was justified in law since he wanted to pursue the gang. He took risks upon himself by trying to chase the gang when he knew the gang would fire at him because they had guns. It is not the case where the complainant was hurt because of the fault of the defendant's premises or the building where the store is operated as was in the case of Cunard v Antifyre Ltd [1933] 1 KB 551 where a piece of the gutter systems fell from part of the roof retained by the landlord into the portion of the premises let to the tenant which injured the tenant's wife.

N1>[20]��� The complainant's own evidence shows that the defendant fought with rascals showing elements of determination to protect his property. The complainant was upon the defendant's store on his own choice for purposes of shopping. Had the store owner brought the injuries about by negligence on his part by failure to provide safe premises or by the principle of res ipsa loquitur, there would be reason to sue him. But in this claim, I think, to claim against the defendant would be too remote and I must dismiss the claim.

N1>[21]��� Orders Accordingly.