Yogendran v Chand [2005] FJHC 707; HBC 403.2001 (12 April 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL JURISDICTION

ACTION NO. HBC 403 OF 2001

BETWEEN:

YOGENDRAN
PLAINTIFF

AND:

SHREE CHAND,
MAHESH PRASAD and NAVIN SAMI
FIRST DEFENDANTS

COMMISSIONER OF POLICE
SECOND DEFENDANT

THE ATTORNEY-GENERAL OF FIJI
THIRD DEFENDANT

Mr. H.A. Shah for the Plaintiff
Ms S. Tabaiwalu for the Defendants

Date of Hearing: 15 March 2005
Date of Judgment: 12 April 2005

JUDGMENT OF FINNIGAN J. ON QUANTUM OF DAMAGES

This is another case of separate trials for liability and quantum. I assert again that unless Counsel for the parties have agreed in advance on the quantum of damages pending determination of liability, the Court will not in future allow separate litigation of these two aspects of a single claim.

The events in question occurred on 31 October to 2 November 2000. The issue of liability was decided after a hearing by Connors J. in this Court on 26 April 2004. The issue of quantum languished unresolved until the present hearing, on 15 March 2005. I heard the evidence of the Plaintiff, which took fifteen minutes, and submissions from Counsel which took another twenty-five minutes. The primary basis for my assessment of quantum of damages lies in the judgment delivered after the previous hearing nearly a year ago.

Those findings are set out succinctly in that judgment. The three Police officers concerned all gave evidence and the Court disbelieved them. The Court’s finding was that the Plaintiff sustained a fracture to the sixth, seventh, eighth and ninth ribs on the right hand side and a cut on the inside of his lower lip while in Police custody at the Tavua Police Station between 31 October and 2 November 2000, and further that such injuries were sustained as a result of a deliberate assault upon him by the First Defendant, Shree Chand.

Before me, the Plaintiff gave evidence that he was arrested and taken to the Police Station and that the assault occurred there on that first evening. At the previous hearing he said he had been handcuffed upon his arrest and remained handcuffed. Then he was handcuffed with this hands behind him, during the assault. The assault occurred between about 1.30am and about 3.00am. He said he was left in pain throughout the rest of the night and the following day with no medical help although he complained that he had suffered injury. An officer refused to take him to hospital when he complained of his pain. He said that he was supplied with no meal throughout the night or the following day. On the third day he was given breakfast but no medical treatment and was taken to the Tavua Magistrates’ Court at about 9.00am and there released on bail.

He said that for six to seven weeks after the assault he was in severe pain and had difficulty caring for himself in the bathroom and toilet for that time, he said also for that period he could not rise from his bed without assistance. His rib injuries were treated with plaster strapping at Lautoka Hospital, which was removed after three or four days. He said the severe pain left him after six to seven weeks but that he was unable to do strenuous work for almost one year.

For the shorter period he required assistance each time he got up from bed and each time he went to the wash room.

He could not sleep well for that time, and it was difficult for him to sit down. Although the Court’s finding of liability was a finding of assault by the First Defendant, the evidence of the Plaintiff is that all three officers assaulted him while alleging he had stolen a cow, which he denied.

He said that two of the Police officers are still regularly seen in Tavua, one is not. But he feels fear inside himself at the sight of the policemen in Tavua.

Cross-examination by Counsel for the Defendants elicited the fact that the Plaintiff is a travel agent. None of his relevant assertions were challenged.

Principles for Assessing Quantum

Counsel submitted that what the Court may wish to take into account is first that this was an assault by police officers in the course of their duties, second that it was on a suspect in their care for official processing, that the assault was made by not one but three officers, that the four broken ribs indicate a substantial level of violence and trauma including the injury to the mouth, and that the Plaintiff was not merely defenceless but handcuffed. He submitted that not only was the occurrence beyond justification but was a breach of certain rights provided in the Bill of Rights, Chapter 4 of the Constitution, particularly Article 25(1) which prohibits torture of any kind, and cruel or degrading or disproportionately severe treatment. At this point I should simply mention Article 27 which sets out the rights of arrested or detained persons, in detail. This is an Article of the Bill of Rights which it is within the duty of the Police to enforce.

The only guidance from decided cases which Counsel was able to provide were two cases, the first one is Avinash Singh v. The Commissioner of Police and The Attorney - General of Fiji (Byrne J.) HBC267 of 1998, Judgment 22 February 2002, and Tacirua Transport Co. Ltd. v. Virend Chand. Civ. App. ABU33 of 1994S, a judgment of the Fiji Court of Appeal, 2 March 1995. The latter case involved assessment of damages after a motor accident for injuries which included fractures of two ribs as the major injury. An award of $20,000 was upheld. In the former case this Court, for false imprisonment by the Police of a youth aged 17 years, awarded aggravated damages, exemplary damages and interest totalling $12,148.60.

Counsel for the Defendants handed up a judgment of this Court, Sashi Prakash v. The Commissioner of Police and Attorney-General of Fiji (Singh J.) HBC237 of 2001L, Judgment 13 October 2004. This was a case of police assault upon a suspect not unlike the present. In that case the suspect was in police custody from 7.00pm till 1.30am and suffered seven fractured ribs, four on the right and three on the left. He also has a swollen mouth and broken dentures, and other lesser injuries. This occurred at the Ba Police Station. The Court awarded special damages of $2815 including 47 weeks’ lost income of $2350. There was an award of $22,000 for past pain and suffering, plus $20,000 for future pain and suffering, together with aggravated damages of $3000 and a further sum of $21,840 for lost prospective earnings. With interest added the total award was $74,102.43. Counsel submitted that in the circumstances of the present case an appropriate award on that basis would be $20,000 - $25,000 for pain and suffering. She noted that the punitive aspect of the damages, the aggravated damages, was $3000.

In that case (Sashi Prakash) the suspect’s shirt was pulled over his head, he was punched on the face and was stamped on when he fell down.

One other case came to light, referred to by Byrne J. in Avinash Singh (above). This was Epeli Seniloli & Anor. v. Semi Voliti (Shameem J.) HBA33 of 1999, Judgment 22 February 2000.

Decision on Quantum

I have been made aware only of the four cases mentioned above, plus a fifth which I have not read, a judgment of Byrne J., Kasim v. Commissioner of Police & Ors. HBC 471 of 1999, Judgment 3 December 2001. The one nearest in point, and most recent as well, is the case of Sashi Prakash. The damages in that case were assessed by the plaintiff’s claims of injury and loss, by analogy with damages claims in motor accident or medical negligence claims. The Plaintiff in the present case has not quantified his loss and/or injury in that way and the Court must take the approach which it took in the case of Epeli Seniloli (above). In that case the Court held that it must first take into account Fiji’s social and economic conditions. It then considered the evidence of the conduct of the Police officers in that case and of all of the individual but separate protections such as the Constitution and the Convention on the Rights of the Child, that the Police officers had breached. The Court concluded that the evidence in those areas justified an award for aggravated damages. The Court considered further that it was not a case of honest error of judgment by the police but rather one of a deliberate flouting of the law and of conscious acts against a vulnerable and young member of the public which caused distress and humiliation to him. On that basis the Court concluded that the conduct of the police officers which she called “outrageous and contumelious” justified an additional award of punitive or exemplary damages. In the circumstances of that case the Court awarded the plaintiff, a fourteen year old boy who had been arrested and held, and humiliated, for some hours, aggravated damages of $6800. Together with punitive damages of $5000 the total award was $11,800. That case was decided in February 2000.

The facts of the present case are much closer to those of Sashi Prakash (above) with a trauma and debility that went on intensely for six to seven weeks and less intensely for nearly a full year. There is no claim of loss of future earnings. There is no evidence of loss earnings but I must take into account the reduced earning capacity for the period of nearly a year and include that in the sum I award for the trauma and suffering.

For the blatant breach by these police officers of their duties under the Bill of Rights, and for the breach of police standing orders or whatever else governs their conduct internally I assess aggravated damages in the sum of $50,000. For the deliberate flouting of the law and the perpetration of a common assault on a person taken into custody for other (lawful) purposes which can only be described, as in the case above, as outrageous I assess exemplary damages of $15,000.

Costs

Counsel for the Defendants sought an order for indemnity costs. This is clearly a case where the Plaintiff should not have to pay his legal expenses and I direct that the whole of his costs should be paid by the Defendants. I take account of the submissions set out above and fix costs in the sum of $5000 together with all costs and disbursements incurred in the conduct of these proceedings by the Plaintiff up to and including sealing of the final order, as proved to the satisfaction of the Registrar.

D.D. Finnigan
Judge

At Lautoka
12 April 2005