Kumar v Commissioner of Police [2005] FJHC 345; HBC0145.2003 (7 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0145 OF 2003

BETWEEN:

ARVIN KUMAR also known as FRANCIS ARVIN KUMAR
(son of Ram Narayan) of Nadi Town, Handicraft Dealer.
PLAINTIFF

AND:

THE COMMISSIONER OF POLICE
1ST DEFENDANT

THE ATTORNEY GENERAL OF FIJI
2ND DEFENDANT

Mr H A Shah for the Plaintiff
Mr F.Abu for the Defendants.

Date of Hearing: 11 August 2005
Date of Judgment: 07 October 2005

JUDGMENT OF FINNIGAN J

This is a claim by a citizen against the Police for damages for injuries caused by assault while he was in custody. For the Plaintiff evidence was given by the Plaintiff himself, a doctor and a man who took the Plaintiff to hospital. For the Defendants one Police Officer gave evidence.

The facts are simple and unchallenged. On 12 March 2003 the Plaintiff’s de facto wife and mother of their three children went missing. The search for her became a murder investigation and the Plaintiff was a suspect. On 15 March 2003 he was arrested. The police told him his wife was dead. They kept him for 4 days and released him. He went back to his work managing a handcraft stall at Nadi market where he earned $120.00 per week.

On 24 March 2003 he was arrested again. Some police officers stopped him on his way home from work in Nadi town at 7.30pm. They said they would keep him only half an hour then bring him back and took him to Namaka Police Station.

At the back of the Namaka Police Station is a bure where the police witness told me they “do interrogations”. The Plaintiff was taken in there and seated on a table was an Indian police officer whom he recognized from his previous arrest as a man named Anil. The police officer told him to take off his shirt, wrist watch and chain and then lie down on the floor. The officer got off the table and kicked him in the side. The Plaintiff indicated his left ribs under the arm. The officer then called other officers. The room measured 20 feet by 10 feet. One of the officers said “you killed your wife, who else was with you?” He said he did not know. Then the police officers hand cuffed him and after that they taped his eyes and lips and they applied pressure to (i.e. kicked and/or stood on) his ribs. He was attempting to fend them off with his hands and the police officers took off the hand cuffs put his hands behind his back and hand cuffed them there. As they continued to apply pressure he kicked out with his legs. They took the hand cuffs from his hands and put them around his ankles. They kept assaulting him. I understand clearly that he says he was being kicked by police officers wearing boots and that by pressed he meant that police officers wearing boots were pushing downwards on him with their boots. He said the assault continued for 2 hours with them asking who had been with him and although he asked them to stop they did not do so.

After 2 hours the officer named Anil told him to get up. He did. He said he was groaning and it was painful and he asked them to bring someone who could hold him from the back. He said a lady came and he asked her to bring Arjun Singh the Senior Police Crime Officer whom he had seen earlier in the Station. He asked Arjun Singh to take him to hospital and that man replied “why are you groaning like a lady?”. He said Adip Singh would take the Plaintiff to the hospital, he was the Station Officer. Adip Singh said he could wait and somebody would be arranged to take him. It was by now 10.30 to 11.00pm.

Nobody took him to the hospital.

At about this time a man entered the Court room and the Plaintiff pointed to him and said that he had been there. He said the man’s name was Shanti, which he had not known at the time but had learned it since. He said that man was in the Namaka Police Station when he had been taken in. He told the Court that the man had said “Motherfucker you had better tell the truth or you’ll be killed”, then he had gone away. The Plaintiff spent the night of 24 March 2003 in the police station and next morning was interviewed.

The man who had been identified as Shanti gave evidence for the Defendants. It was he who conducted the interview. His name was Detective Sergeant Shanti Lal. He said the interview commenced at 7.30am and continued with intervals until it was completed at 4.30pm. This was 25 March 2003. He then took the Plaintiff to the Officer In-charge Sergeant Adip Singh who had a conversation personally with the Plaintiff in his office and then released him. He did not see the Plaintiff again.

The Plaintiff had given evidence about that personal conversation Sergeant Adip Singh. The Sergeant had told him that he would be charged with murdering his wife. Then just before he was released the Sergeant said they would not be charging him so long as and on condition that he did not report to any person about the assaults he had had at the Police Station.

He was not taken home immediately but fairly soon after some discussions among the police officers about who would take him to hospital he was taken by one of their men and left at home. His neighbour helped him into bed and took off his shirt and then called a person who was the third witness for the Plaintiff. This person took him to the Nadi hospital. They went via the Nadi Police Station where the witness had a police form filled out and arrived at the hospital at about 8.00pm. The Plaintiff was x-rayed and admitted as a patient. He was diagnosed as seriously ill and transferred to Lautoka hospital.

Sergeant Shanti Lal was unable to recall any events at all involving the Plaintiff that may have occurred on 24 March 2003. When it was put to him that he had said something to the Plaintiff on his arrival at Namaka Police Station he immediately said that was not true this denial seemed inconsistent with his utter failure to remember any event of 24 March about which his own Counsel was inviting him to comment. By that inconsistency and his evasion of his own Counsel’s questions about 24 March I formed the clear conclusion that he had no evidence to give in rebuttal of the Plaintiff’s evidence, which he had heard. In fact he gave the clear impression of one who preferred not to answer the questions.

The Plaintiff has not worked since this incident. He formerly played soccer but since till now he cannot play. In this assertion as in his others he was not challenged. He said he was in hospital and in considerable pain until 31 March 2003. After that his family took him to Suva. Nobody advised him of his wife’s funeral or the whereabouts of the children.

The Plaintiff’s injuries are formally set out in a report by Dr. Joeli Mareko who attended him twice in the clinic during his recovery period.

“The above patient was admitted to Lautoka Hospital with history of having been kicked by Police Officers while in custody.

He was admitted after two days. He had severe pain in the chest left sided and had shortness of breath.

On Examination

Tenderness left side of chest

Air entry in the left chest.

Investigation

Radiological x-rays revealed fracture of at least 7, 8, 9 left 3 ribs. Pneumothorax was noted on the left lung fields.

Treatment

1. Pain Relief
2. Antibiotic
3. Underwater seal for release of Pneumothorax
4. Physiotherapy
   

He was discharged on 31/3/05

He still has pain at the left side of the chest at cold weather or overcast weather. Difficulty in lifting heavy load.”

This report was prepared on 27 May 2005. The doctor gave evidence. He was cross-examined and the nett result of his evidence is that I am satisfied the Plaintiff had fractures to at least 3 ribs on the left, Nos 7, 8 and 9. These fractures were consistent with a blow or blows from a blunt object delivered with some force. One or more of the fractures had caused a puncture of the left lung and resultant Pneumothorax. He said a pneumothorax is a leak of air from the lung into the surrounding chest area and it is a condition which can be life threatening. The air was drained from the Plaintiff’s chest over a period of 6 days using an underwater seal apparatus. This involved putting a tube into the Plaintiff’s chest which is a painful procedure. The patient himself said that he had been required to sleep sitting up right during that time and because of the pain and the position he did not sleep much. Photographs of him sitting and holding the apparatus were produced in evidence.

Finding in liability

The submissions of Counsel for the Defendant amounted to a reluctant concession that he did not have much to go on. There was no more than a token challenge on liability and the Defendants’ witness did not help. The Plaintiff impressed me as being truthful in his account and I accept it. I also accept the account of his third witness who saw him after the assault and took him to hospital. By the evidence of these two witnesses the liability of the Defendants to the Plaintiff is clearly established.

Quantum of Damages

I set out Plaintiff’s Counsel’s submissions in full.

Plaintiff’s Submission on Quantum

1. The Court is being asked to take note of the following for assessment purposes.
   
   • (a) Brutal assault: systematic and prolonged by officers who are supposed to protect and serve rather than perpetrate injury on the general public
     

(b) Serious injuries: life threatening, Hospitalisation.

(c) Violation of constitutional rights under Chapter 4 of the Constitution of the Republic of Fiji Islands.

(d) Loss of earning capacity, past and future.

2. The Court may proceed to award general damages for pain and suffering; past and future as in motor vehicle accident cases or adopt the approach as in Yogendran (Plaintiff) –v- Shree Chand, Mahen and Navin, Commissioner of Police and the Attorney General of Fiji Lautoka High Court Civil Action No. 403 of 2001L (see page 6 of His Lordship’s Judgment).
   

Counsel respectfully submits as follows:-

(i) Aggravated Damages in the sum of $150,000.00

(ii) Exemplary Damages 80,000.00

3. Loss of Earning Capacity
   

(i) Past: $150 x 52 weeks x 2 years $ 15,600.00

(ii) Future: $ 20,000.00

4. Costs $ 5,000.00
   

Total award $270,600.00

5. If it pleases the Court, Interest is not being sought on the award.
   

The time is approaching when awards will be made in aggravated and exemplary damages at the level suggested by Counsel, if these police assault cases continue to come before the Court.

Decision:

The description of the actions of the police officers (above) mocks the police motto “salus populi”.

Counsel for the Plaintiff in my opinion is right to cite Yogendran. This case resembles that. There is little by which Counsel for the Defendants could detract in mitigation. However, there is no basis on which the amounts awarded as aggravated and exemplary damages should be greater in the present case. For the same reasons as in that case I award $50,000.00 and $15,000.00 respectively.

Counsel seeks further awards for lost earning capacity past and future. In Yogendran I included in the aggravated damages for trauma and suffering the Plaintiff’s reduced earning capacity for a period of nearly 1 year. That differs from the situation of the present Plaintiff who has not worked since these assaults. His assertion invited a conclusion that this is a result in whole or in part of the assaults upon him. The assertion and the conclusion remained unchallenged in cross-examination. He said in evidence his earnings had been $120.00 per week (not the $150.00 submitted by Counsel) and I think an award in that amount for the working weeks from 24 March 2003 until the date of judgment is warranted. By my calculation allowing for 3 weeks off per year that is 124 weeks and I fix the amount at $14,880.

In respect of lost future earnings the Plaintiff did not indicate that he is incapacitated from work and I think the award I have just made is the only one suggested by the evidence. I therefore summarise my awards as follows;

1. Aggravated damages : $50,000.00

2. Exemplary damages : $15,000.00

3. Lost Earnings : $14,800.00

Counsel in submissions offered to waive the claims for interest on the damages but that was on an award of $265,600. I add interest to the $65,000 at 6% and to the $14,800 at 3.5% from 6 June 2005, the date of the writ till today, 4 months. These sums are $1,300 and $173.60 respectively, a total of $1,473.60.

In addition I award the Plaintiff his full indemnity costs. I assess full indemnity costs at $5,000.00 together with all costs and disbursements incurred in the conduct of these proceedings by the Plaintiff up to and including sealing the final order, as proved to the satisfaction of the Registrar.

D.D. Finnigan
JUDGE

At Lautoka
07 October 2005