Ratumainalotu v Attorney-General of Fiji [1993] FJHC 97; Hbc0106j.90s (27 October 1993)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 106 OF 1990

BETWEEN:

SALATIELI RATUMAINALOTU
of Tamavua-i-Wai, Suva, Cultivator
Plaintiff

AND

THE ATTORNEY-GENERAL OF FIJI
Defendant

Mr. Tevita Fa: For the Plaintiff
Miss Ishbel Kennedy: For the Defendant

Dates of Hearing: 1st, 2nd, 3rd February, 2nd April
and 3rd August 1993
Date of Judgment: 27th October 1993

JUDGMENT

The Plaintiff is the personal representative of the estate of Tokibo Buaravi late of Tamavua-i-Wai, Suva pursuant to letters of administration granted on the 22nd of December 1988. At the time of his death on 11th of October 1988 the deceased was aged 20 and was a prisoner of the Republic of Fiji. He had been refused bail by the Nausori Magistrate's Court and shortly before his death was being conveyed in a seven tonne truck owned by the Police Department the tray of which, save for the large opening at the rear to allow for boarding and exit and a smaller opening in the front just above the driver's cabin, was covered by a tarpaulin. There were seats on the two longer sides of the tray in the form of long benches such that passengers sat and faced one another. Including the deceased there were eleven remand prisoners who were handcuffed by the wrists in two's.

The prisoners were being returned from the Nausori Magistrate's Court to the Suva Prison at Korovou and the deceased was handcuffed to Joape Mateyave.

It appears that the truck left Nausori between 3-4 p.m. and drove along King's Road until it reached the Laqere Bridge where it began to climb a hill. The deceased and Joape were in the front of the tray and I find they had been standing there for a short time before Joape climbed on to the roof of the cabin and helped the deceased on to the roof with him. After a moment or two Joape jumped off the roof and the deceased who was still handcuffed to Joape followed him. It appears that the action of Joape in jumping from the truck caused the deceased to fall head first on to the tar-sealed road and as a result of the fall he sustained internal and external injuries from which he later died.

The Plaintiff brings the action against the Defendant under the Law Reform (Miscellaneous Provisions) (Death & Interest) Act, Cap.27 and the Compensation to Relatives Act, Cap. 29.

The Plaintiff claims for the expenses incurred for the funeral of the deceased amounting to $3,000, loss of earnings in the `lost years' $12,000.00, loss of expectation of life and exemplary damages of $50,000.00. I can say immediately that the latter claim is strictly forbidden by Section 2, Sub-section (2) of the Law Reform (Miscellaneous Provisions) (Death & Interest) Act which states that where a cause of action survives for the benefit of the deceased person's estate the damages recoverable for the benefit of the estate shall not include any exemplary damages.

The Plaintiff alleges that upon receipt of a Court Order to take the deceased to prison the Police were entrusted with a duty of care to look after the deceased and afford him protection, care and safety.

The Plaintiff claims that the deceased sustained the injuries from which he died because the Police were in breach of their duty of care and negligent. Five particulars of negligence are alleged by the Plaintiff but these may be reduced to four, namely:

(a) Failing to see the risk in handcuffing the deceased to another prisoner who might decide to do something unlawful.

(b) Shackling the deceased to another prisoner which was risky, dangerous and unsafe.

(c) Loading the deceased and other prisoners into a truck which was unsafe in itself in the circumstances.

(c) Failing to provide enough Police Officers as securities to protect the safety of the deceased on the journey.

The Plaintiff further alleges that the Police were negligent when they failed to attend to the deceased's injuries immediately. In this regard it is alleged that the deceased lay on the side of King's Road for some twenty-five minutes before stopping a passing taxi and taking the deceased therein to the Valelevu Health Centre and as the deceased lay on the back seat of the taxi at the Health Centre he was punched to the floor by a Policeman and struck his head on the taxi floor.

The Attorney-General, the nominal Defendant representing the Police, denies the allegations of negligence by the Plaintiff, although he admits that there were eleven prisoners being carried in the Police truck and that they were under the supervision of two Policemen.

The Defendant further claims that Joape Mateyavi and the deceased had planned to escape together during the journey and that they jumped together from the moving truck or fell during their attempt to jump off the moving truck. The Defendant admits that as a result of falling on the road the deceased later died from injuries thereby sustained but says that when the deceased jumped or fell from the truck he did so with the full knowledge of the risk of injury to himself which his action entailed and that he thereby voluntarily consented to accept this risk and waived any claim in respect of any injury or damage which may have been occasioned to him by such action.

The Defendant therefore alleges that the Plaintiff is not entitled in law to maintain his claim against the Defendant.

Alternatively the Defendant alleges that the deceased met his death as a result of attempting to escape from lawful custody and that consequently the Police did not owe a duty of care to him and the Plaintiff is thus not entitled to maintain his claim against the Defendant.

Alternatively the Defendant avers that the injuries the deceased suffered were wholly caused or contributed to by his own negligence. In that he -

(i) failed to take reasonable care for his own safety;

(ii) jumped off or tried to jump out of a moving vehicle.

Lastly the Defendant alleges that the Police were not negligent or in breach of their duty to the Plaintiff in that a canvas cover over the tray of the truck and the presence of two Police Officers sitting at either side of the open end of the truck was sufficient provision for the safe custody of the prisoners. It is also pleaded that the Police handcuffed the prisoners in pairs as a temporary and reasonable measure to prevent any attempts to escape during the journey and that it was not reasonably foreseeable that any of the prisoners would try to jump from the moving truck. The allegations of punching the deceased whilst in a taxi are denied.

I come now to the evidence. The Plaintiff and five other witnesses testified for the Plaintiff. The Defence also called five witnesses. The Plaintiff gave formal evidence of being granted letters of administration and of the funeral expenses claimed by the Plaintiff. These were not disputed by the Defendant. The mother of the deceased then gave evidence. She stated that the deceased was the eldest of four children and that the deceased had been employed in a bakery from which he earned between $45.00 and $50.00 per week on average all of which he gave to his mother who then returned to him $10.00. At the time of his death the deceased was not working but had been employed for over a year continuously although the last time he had paid his mother any wages was about two weeks before his death.

The third witness for the Plaintiff was Laisiasa Qiolevu a Fieldman employed in the Koronivia Agricultural Station. On the 11th of October 1988 Mr. Qiolevu was a fellow prisoner of the deceased and was being transported in the same truck to the Suva Prison. He stated that there were eight prisoners in the truck and three Policemen one of whom was the driver. He stated that the truck was of seven tonnes capacity and the tray was covered with a tarpaulin. He was sitting at the back handcuffed to another prisoner. He said that from the time the truck left Nausori until Joape and the deceased jumped from it, Joape and the deceased were standing immediately behind the cab of the truck. He said that there was a gap of three feet between the top of the cab and the tarpaulin cover which was folded. He said that an Indian Policeman was sitting in the middle of the truck and a Fijian Policeman near the back. As the truck came to the Laqere Bridge he saw Joape and the deceased looking through the gap I have just mentioned. Joape then pulled the deceased on to the roof of the cab, the truck crossed the bridge and as it was reaching a shop immediately past the bridge Joape and the deceased fell on the road. He said that they called out to the driver of the truck to stop but he did not do so. Before they fell he said the Indian Police Officer grabbed hold of the deceased's leg by which time Joape was on the ground. The Policeman banged the top of the cab to try to make the driver to stop but apparently the driver did not hear the noise and continued for some distance before stopping. At this juncture the witness saw Joape running away whilst the deceased Tokibo Buaravi was lying on the side of the road. He did not bother to assist the deceased who lay there for over twenty-five minutes without being assisted by anybody. He was then taken away in a passing taxi.

He agreed that the reason all prisoners were handcuffed was to reduce the risk of their escaping and that it would be difficult for a prisoner to escape when handcuffed to another prisoner if the other prisoner did not know the first intended to attempt to escape. He also said that the deceased managed to release his leg from the Police Officer's grasp. He said that the road was not busy at the scene of the incident.

The next witness for the Plaintiff was Mr. Waqa Robert a builder of Laqere who said that on the 11th of October 1988 he was returning from the Valelevu Hospital with the fifth witness for the Plaintiff, Jimi Taria just before lunch time along King's Road. As they descended a hill leading to the Laqere Bridge he saw a body lying on the road and ran towards it. There was a crowd of people standing by and he heard another man whom he knew complaining that the body had not been removed although it had been lying on the road for over twenty-five minutes. Mr. Waqa said that on hearing this he succeeded in stopping a taxi and with Jimi Taria and the man he heard complaining he lifted the body into the taxi which then went to the Valelevu Hospital. He said that he accompanied the body which was that of the deceased to the hospital. When they arrived at the hospital the Indian taxi driver brought two Police Officers to the taxi and one of the Police grabbed the neck of the deceased and pulled him out of the car. He kicked his head on to the floor of the car before pulling him out and swore at the deceased saying "you prisoner", followed by an obscene expression. Mr. Waqa said that he remonstrated with the Policeman and told him that the deceased was his relative, although he was not, so that he would be treated gently. He also realised that the deceased was ill and had been ill-treated by the Police. He then helped the Police to carry the deceased to a doctor who then looked at the deceased and summoned an ambulance.

In cross-examination Mr. Waqa said that at the scene of the accident King's Road is busy and he could give no explanation despite this, for it taking twenty-five minutes before the deceased could be moved. He said they had difficulty stopping vehicles. He said that when the Police Officer pulled the deceased out of the taxi his head hit the ground.

The next witness for the Plaintiff was Jimi Taria who is employed and lives at Laqere. He said that on the 11th of October 1988 as he was returning home from Valelevu Health Centre with Waqa Robert along King's Road he saw a young man lying on the side of the road and other people passing by him. He saw no Policeman but did see a police truck. Waqa Robert ran forward and started to try to stop motor vehicles, eventually doing so and putting the body of the man into the car.

The last witness for the Plaintiff was Iaisiasa Navico of Laqere, a market vendor. He said that he sold produce at market near the bridge. At about 4.00 p.m. on the 11th of October 1988 he was at his stall getting produce ready for sale. Children were returning from school and, noticing them, he looked up to the road and saw people moving about. He then left the market and went up the road where he saw a young man lying on the footpath beside the road. Nobody was attending to him. He spoke to a Police Officer who was standing in a truck and said to him;

"Look! See this accident! You'd better take this man to the hospital before something drastic happens to him. If this man dies I will assist the parents and be a witness before the court."

He said that then the Policeman and he tried to stop motor vehicles. A taxi stopped and Mr. Navico helped lift the body into the cab and told Waqa Robert to take him to the hospital. The witness estimated that the body had been left on the footpath for twenty-five minutes. He said he had a watch and counted the time. He saw one prisoner run away and he was chased by a Fijian Policeman.

In cross-examination he agreed that he did not see the incident from which the deceased fell from the truck and that the crowd of people had attracted him to the scene. He felt very concerned for the well-being of the man lying on the footpath. He rushed to the scene and although he did not look at his watch he knew the body was on the footpath for twenty-five minutes. He was then pressed on this and said that the reason why he knew the accident had occurred twenty-five minutes previously was that he heard the sound of the deceased dropping on the road. He denied that he had been prompted by the Plaintiff's solicitor into making his remark about assisting the Plaintiff if the son had died. The Plaintiff's case then closed and the Defence went into evidence.

The first witness for the Defence was Constable Kumar Anirudhra. Constable Kumar said that he had been in the Police Force for twelve years and was stationed at Nausori. On the 11th of October 1988 he was involved in transporting eleven prisoners from the Nausori Court House to Korovou Prison, Suva in the seven tonne truck previously mentioned. He said he handcuffed ten prisoners together leaving one without handcuffs to prevent them from escaping and for the security of the prisoners and himself. He sat at the rear left of the truck. Another officer who was with him was sitting at the right rear of the tray.

After leaving Nausori they eventually reached the Laqere Bridge where the truck had to slow down. As it did so the prisoner Joape and the deceased who were handcuffed together stood up and one of them said "Mai!" which means "Come!". When Constable Kumar heard this the other Policeman who was sitting opposite him told him Joape and the deceased were climbing the front of the cabin of the truck which was still moving. Constable Kumar ran to the front of the truck and banged on the roof of the cabin to notify the driver to stop. The driver kept on moving and so both prisoners went down the left hand side of the vehicle. Constable Kumar called them to stop but they did not; they were trying to escape. Everything happened suddenly possibly in less than one second. The Constable looked back, saw the deceased lying on the side of the road, the other prisoner (Joape) running towards the Laqere Bridge. The Policeman opposite Kumar jumped down and pursued Joape. Constable Kumar managed to control the other nine prisoners in the truck and help lift the deceased into a car to take him to the Health Centre. He said that from the time the truck stopped until the deceased was put into the taxi was one minute; there was no delay.

Under cross-examination Constable Kumar said that he had previously been involved in the transporting of prisoners to Korovou. He said that eleven prisoners under the charge of two Police were too much for two Police to supervise. He said that he had previous experience of this and on four or five previous occasions in 1988 he had supervised the transport of eleven prisoners. He said on the 11th of October 1988 he felt strained. He thought that nine prisoners were too many for two Policemen to supervise and complained about this to the Divisional Prosecuting Officer, Inspector Armogam Reddy. He said he had told Inspector Armogam two Policemen to supervise nine prisoners was unsafe and that it was unreasonable for the Policemen to be expected to do so. He said it was beyond his power to do anything to prevent the prisoners escaping. He had been taken by surprise and did not expect them to escape.

Commenting on the opening at the front of the tray he said that two more Police Officers should have been stationed there on the 11th of October and if they had he did not believe the incident would have occurred. He denied that Joape and the deceased had stood all the way from Nausori and said that he had grasped hold of the deceased's ankle before he left the truck. He denied that half the deceased's body was hanging down the truck as had been alleged by the witness Qiolevu and said that there was nothing Constable Kumar could have done to prevent the deceased from jumping.

He said however that with three years' experience in the Prosecution Branch he believed that the minimum number of Police Officers to prevent such an occurrence was six and that the episode could have been prevented if six Police Officers had been present. He denied the allegations that the deceased had been lying on the road for twenty-five minutes before being taken to hospital. He said the deceased was removed to the hospital within one minute and that the incident had occurred about 3.30 p.m. He said that while he was in the truck he did not hear any Fijian complaining to the Police about the delay of twenty-five minutes; that the situation in the truck was quite tense and that Kumar was the only Constable present. He was worried but relieved when the other prisoners made no attempt to escape.

He said that if there were more Police Officers in the truck there would have been no escape but there were no other officers available. For such a number of prisoners he considered the minimum safe number was six. He also said that if the delay had been twenty-five minutes as alleged by some of the Plaintiff's witnesses it would have been less likely that he could have maintained his control over the remaining prisoners. In answer to a question by me he said that on previous occasions he had made two or even three trips from Nausori to Korovou with prisoners in Landrovers but on the day of the incident there were no small vehicles available. If there had been he said they could have taken half the prisoners in one trip and the remainder in the second trip but because the time was 3.00 p.m. and normally the last reception time at Suva Prison in 1988 was 4.00 p.m. it was decided to take all the prisoners together in one truck. He said that at the time of giving evidence arrangements were now made for a later arrival at the Suva Prison and that now more Police escort prisoners than previously. Where there are nine prisoners to be escorted the Police escort consisted of one Corporal or three or four Constables. This practice he said was introduced in 1989.

The second witness for the Defence was Constable Viliame Jitoko who was stationed at Nausori Police Station as a Prosecutor on the 11th of October 1988. On that day he was escorting various prisoners including the deceased and Joape Mateyavi from the Nausori Court to Korovou Prison, Suva. He said that the prisoners were handcuffed to each other since there were so many of them and there was a lack of staff. The Officer-in-Charge had decided in his discretion to handcuff them for security reasons. Normally he said only prisoners known to be liable to escape are handcuffed when being transported any where but in the present case it was considered desirable because of the number to handcuff them. He said that the back of the truck was the only place prisoners could escape from and that because they were handcuffed he felt secure. He said that from Nausori to just before the Laqere Bridge Joape and the deceased were seated at the front of the vehicle just behind the cabin. As they were going up the hill from the Laqere Bridge he heard Joape call out, "Mai"! - i.e. "Come"! The other prisoner (the deceased) and Joape then left the vehicle together. He said the deceased was willing to jump with Joape. Constable Jitoko made no attempt to intervene but his colleague went to the front of the vehicle to try to stop them while Constable Jitoko tried to get off the tray of the truck to catch the other prisoner who had then got free. Constable Kumar had knocked on the roof of the cabin and the driver had then stopped. When the vehicle stopped the other prisoners in the truck stood up and Constable Jitoko gave chase for about fifteen minutes and then returned to the scene of the incident. Nether the deceased nor the truck were then there and Constable Jitoko never saw the deceased again.

He said that he did not expect the two prisoners to try to escape. In his opinion the front of the truck was too narrow for them to try to escape and he thought handcuffs were a good deterrent for any prisoner contemplating escape.

In cross-examination the witness said that he saw Joape and the deceased stand up as they approached the Laqere Bridge. They were conversing with each other but Constable Jitoko did not hear what they were saying. He repeated his earlier evidence that as they passed the bridge near the bus stop Joape called out to the deceased, "Mai"! He said they then stood up on the bench and then got out from the gap between the tray and the cabin of the truck on to the roof. Since both prisoners were willing to escape the Constable could not say who was the leader. He saw Joape jumping on to the roof of the cabin and then on to the road. Joape got on to the roof seconds before the deceased and Joape sat on the roof and the deceased lay on it. Then they slid down the side of the roof on the road, Joape leading. He said he considered it his duty to pursue Joape and he did not consider the possibility of the deceased dying if he were left unattended. His only thought was that he might be disciplined for letting a prisoner escape. He said they had no difficulty in gettting through the opening on to the roof of the cabin.

On reflection he considered that Laqere Bridge was a likely place of escape but did not think so at the time. He stated that with eleven prisoners the normal number of the escorting Police Officers should have been eight or nine and the only reason why there were two or three on this day was a shortage of staff. He agreed that two officers allocated to eleven prisoners was inadequate.

In re-examination the witness said that the deceased showed no signs of resisting Joape's call to go with him. He also said that a prisoner determined to escape would take risks which a prisoner not so minded would ever think of taking.

The third witness for the Defence was the prisoner Joape Mateyavi. He stated that he could not understand why he was called to give evidence. He said that he and the deceased had planned to escape together when they were in Korovou Prison before the 11th of October. He had not chosen to be handcuffed to Tokibo but once they were handcuffed they had still planned to escape. He said that they had stood up all the way from Nausori to Laqere and that they had planned to climb up the cabin roof which they expected would make the driver stop after which they would jump off and run away. This did not work out as planned because the truck kept on moving as it was climbing up the hill after the bridge. He said that the deceased was willing to jump with him.

In cross-examination he denied that he had ever called out "Mai"! Nor had he ever said anything implying that it had become difficult to put their plain into action. He said that his intention was to help the deceased escape by pulling him up on the roof of the truck cabin. He admitted to being confused and said that after he jumped on to the road he had fallen and became unconscious but he could not say for how long. When he re-gained consciousness he saw people coming towards him and then stood up and looked around to try to see where the Police Officers were. He saw them in the truck and they were looking towards him. He called to Tokibo three times and then began to run away towards a quarry. He said that he did not know that he was pursued by a Policeman. He was asked to call out in the Court what he had said to Tokibo in the same way as he had done on the 11th of October. The witness then said in a soft voice similar to that in which he had given his other evidence, "Tiko, Tiko, Tiko, hurry up"!

The fourth witness for the Defence was Vijay Prasad a taxi driver who was driving along King's Road towards Suva on the 11th of October 1988 when he saw a Police truck parked near the Laqere Bridge. He thought this unusual and then saw a Fijian man running towards the hillside from the bridge and being chased by a Policeman. He stopped his car behind the truck and a Policeman then commanded him to follow the man he saw running away. The Policeman got into the cab but after they had crossed the bridge the Policeman got out again and Mr. Prasad returned to the bridge where he saw a Fijian man lying on the road. There was a crowd of people around him. With the help of some Fijian boys and a Policeman they put the man lying on the road into Mr. Prasad's car and he drove him first to the Valelevu Police Station and then to the Valelevu Health Centre. He had noticed the man they picked up was wearing handcuffs. He said that he went to the Police Station first to report that he was taking the man to the Health Centre which is next door to the Police Station. He said nothing else happened to the man he had picked up while he was in his car. He saw nobody assaulting him. He said the whole incident from the time of his stopping at the bridge to taking the man to the Health Centre took about five minutes. His impression was that the Police were grateful to him for helping them to take the man to the Health Centre.

In cross-examination he was adamant that he had first stopped at the Police Station at Valelevu. He had not got out of his car but just sounded the horn whereupon two Policemen came to the car. He could not remember whether one of the Police abused and swore at the injured person but he denied that the Policemen had held the deceased by the collar causing him to fall on to the floor of his car. He said the whole incident happened quickly.

The last witness for the Defence was Constable Sitiveni Naika a Police Constable who has been in the Police Force for sixteen years. In 1988 he was stationed at the Valelevu Police Station. On the 11th of October 1988 he was on duty when a taxi stopped outside the station. The driver sounded the horn and told Constable Naika that there was a man lying in his taxi. Constable Naika rushed out and saw a young man lying in pain on the rear seat. Nobody else was with him. The Constable said that the driver and he escorted the injured man to the Health Centre where he was removed from the taxi by the Constable and some hospital orderlies. He said that he had not assaulted the injured man nor did he see anybody else assault him. The injured man was bleeding from the right hand side of the back of his head and had a broken handcuff on his wrist.

In cross-examination he said that Waqa Robert had not accompanied the injured person to Valelevu and that it was not true that either he or the other Policeman at Valelevu had pulled the injured man by the collar and abused him. He denied that Waqa Robert and other people had helped Constable Naika take the injured man into the Health Centre. He said that only he and his colleague had helped the injured man into the hospital.

Having heard the evidence I am satisfied, contrary to the evidence called on behalf of the Plaintiff, that first, Joape Mateyavi and the deceased were seated in the truck until shortly before it reached the Laqere Bridge and that Joape then called out to the deceased "Mai!" after which Joape, without any resistance from the deceased, came on to the roof of the truck and assisted the deceased to do likewise.

I agree with much of the criticism about the credibility of the witness Joape Mateyavi, particularly that of counsel for the Plaintiff. Joape Mateyavi was not an impressive witness but I am prepared to accept part of his evidence where it seems to me it is reasonable to at least infer its corroboration by other witnesses. Here I refer to the evidence of the two Police Constables in the truck that Mateyavi called out "Mai!" immediately before climbing on to the roof of the cabin. It is true that Mateyavi denied saying this but I do not accept his denial. In the circumstances it seems to me a natural remark to make when, as I find, Mateyavi and the deceased had agreed to attempt to escape from the truck.

Another reason why I believe the deceased agreed with Mateyavi to attempt to escape is the practical impossibility of one prisoner attempting to drag another to whom he is handcuffed on to the top of the cabin of a seven tonne truck and jumping from the vehicle while it is moving if that other prisoner is (as the Plaintiff suggests), reluctant to go with him.

The third reason why I accept the Defence evidence as to the probability of agreement between the deceased and Mateyavi is that there is no evidence to indicate he expressed his unwillingness to go with Mateyavi given the uncontested evidence that Mateyavi not only intended to attempt to escape from custody but actually succeeded in doing so for sometime.

I therefore up-hold the Defence submission that the deceased agreed to participate in a criminal act namely escape from lawful custody, on the 11th of October 1988.

What are the legal consequences of such finding?

At common law the Police have a duty to take reasonable care for the safety of those who are committed to their lawful custody. Section 52 of the Prisons Act, Cap.86 deals with prisoners and when they are deemed to be in lawful custody. Sub-section (2) reads as follows:

"Any police officer, or other officer acting under the order of any judge, magistrate or other person having power to commit a person to prison, may convey a prisoner to or from any prison in which he may be legally confined, or from which he may be legally removed and for that purpose may, pending the availability of transport or for other good reason, detain such prisoner in such suitable place as he may consider appropriate in the circumstances." (Amended by Ordinance 20 of 1968, s.9.)

"Prisoner" is defined in Section 2 as meaning and including any person, whether convicted or not, under detention in any prison, or being taken to or from any prison in which he may be lawfully detained.

According to the Plaintiff the negligence of the Police was their failure to take reasonable care for the safety of the deceased who had been lawfully committed to their custody. However before any such duty can be said to exist the question first must be asked whether in the circumstances of a particular case the Police owed any such duty? In my judgment on the facts as I have found them in this case they did not. In my judgment the matter is governed by the application of the legal maxim "EX TURPI CAUSA NON ORITUR ACTIO". This maxim has been considered in a number of cases. In Hardy v. Motor Insurers' Bureau (1964) 2 All E.R. 742 Lord Denning, M.R. said at p.746:

"....no person can claim reparation or indemnity for the consequences of a criminal offence where his own wicked and deliberate intent is an essential ingredient in it. This rule .... is based on the broad rule of public policy that no person can claim indemnity or reparation for his own wilful and culpable crime. He is under a disability precluding him from imposing a claim."

A practical application of the rule may be found in Ashton v. Turner & Another (1983) 3 All E.R. 870. In this case three people had been drinking together. The Plaintiff and the First Defendant used the Second Defendant's car as "getaway" vehicle in a burglary. They were given chase and the Plaintiff passenger and the First Defendant who was the driver crashed at high speed and the Plaintiff sustained serious injuries. The First Defendant was later convicted of burglary, dangerous driving and drunken driving. The Plaintiff brought an action for damages against the driver and the owner of the car but raised defences of public policy, VOLENTI NON FIT INJURIA and contributory negligence. The Court up-held these defences and the claim was dismissed. In the course of his judgment Ewbank J. referred to a number of authorities. One of them was the decision of the High Court of Australia in Smith v. Jenkins [1970] HCA 2; (1970) 44 ALJR 78 which was a case involving a driver driving a stolen car carrying a passenger, the driver and passenger being involved in the joint enterprise of the stealing, and the passenger was injured.

Kitto J. referred to a decision of Scrutton L.J. in Hiller and Pettigrew v. ICI (Alkali) Ltd. (1934) 1 K.B. 455 and said at p.80:

".... it seems equally clear that Scrutton L.J. perceived a general principle of law and thought it apposite to his illustration, namely that persons who join in committing an illegal act which they know to be unlawful (or, I should add in the language of the judgment in Adamson v. Jarvis [1827] EngR 277; (1827) 4 Bing 66 at 73, [1824-34] All ER Rep 120 at 122) which they must be presumed to know to be unlawful) have no legal rights inter se by reason of their respective participations in that act. In my opinion that is the principle that governs the present case. The underlying reason of it, I think, is that in such a case the law regards the joint illegal conduct as the commission of a single wrong of which, as a whole, each participant is guilty."

If participants in a joint criminal enterprise have no legal rights inter se by reason of their respective participation in the act, a fortiori it seems to me they can have no such rights against an innocent third party which I find here to be the Defendant.

In the later Australian High Court case of Gala v. Preston [1991] HCA 18; (1991) 172 C.L.R. 243 a passenger in a motor car was injured as a result of the driver's careless driving of the car which they had earlier stolen and were unlawfully using at the time of the accident contrary to the provisions of S.408A of the Queensland Criminal Code.

The Court held that the passenger could not in the circumstances recover damages from the driver. At p.277 Dawson J. expressed the policy of the law preventing recovery in such circumstances as being the refusal of the law to condone the commission of a criminal offence by granting a civil remedy.

In my judgment that statement of the law is valid to the facts of the instant case.

I therefore hold that the Plaintiff has no legal right to claim damages from the Defendant on the facts of this case as I have found them. That finding is sufficient to dispose of the matter without considering the other submissions made to me by counsel for the parties. Before doing so however, because serious allegations were made against the Police, first for their failure to take the deceased to hospital for at least twenty-five minutes after he had been injured and secondly, the alleged assault by the Police on the deceased in the taxi outside the Valelevu Hospital, it is desirable for me to express my views on the evidence concerning these allegations.

First I am not satisfied that the deceased was left beside King's Road for twenty-five minutes after he had jumped from the Police truck. This was denied by Constable Kumar Anirudhra who said there was a delay of only one minute from the time the truck stopped until the deceased was put into the taxi and by inference by the Constable who also said, and I accept, that if a delay of twenty-five minutes had occurred he would have been less likely to be able to maintain his control over the remaining prisoners in the truck. I am satisfied that no time was lost in taking the deceased to the hospital and that the Police acted responsibly in so doing. The second matter concerns the alleged assault on the deceased in the taxi at Valelevu. I reject evidence given on behalf of the Plaintiff of any such assault. The taxi driver Vijay Prasad denied any such assault and it was never suggested to him that he had anything to gain by such denial. In my assessment Mr. Prasad gave his evidence objectively and clearly.

I was also most impressed by the general manner of the last Defence witness Constable Sitiveni Naika who denied any assault on the deceased. My view of the evidence given by the Police in this case was that it was presented fairly, frankly and objectively and where there are any conflicts in the evidence called by the Plaintiff and the Defendant, subject to the reservations I have expressed about the evidence of Joape Mateyavi, I prefer the evidence of the Defence witnesses as to the facts.

Finally I must say that I consider the Police action in handcuffing all their prisoners in the truck on the 11th of October 1988 was reasonable in all the circumstances. Counsel for the Plaintiff made much in his submission of what he called a "deliberate breach of Force Standing Order 346" which he said stated that when 11-15 prisoners are being escorted to or from prison in compliance with a Judge or Magistrate's Order they are to be escorted by six Policemen under the leadership of a non-commissioned officer (i.e. a Sergeant or Corporal). This statement is not an accurate summary of Standing Order No. 346.

Paragraph 45 of the Standing Order reads so far as relevant:

"Escorts shall, whenever possible, be provided on the following scale:-

.....For 11-15 prisoners - 1 NCO and 6 PC's."

It is thus clear that the Standing Order is not mandatory as claimed by counsel.

The result is that the Plaintiff's claim is dismissed. There will be judgment for the Defendant and I order the Plaintiff to pay the costs of the Defendant.

JOHN E. BYRNE
J U D G E

HBC0106J.90S