Kolo v Leone [2008] TOCA 7; AC 08-2007 (25 July 2008)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

AC 08 of 2007

BETWEEN:

TOKA’ONE KOLO
Appellant

AND:

1. POLICE OFFICER VEIMAU LEONE
2. MINISTRY OF POLICE
3. KINGDOM OF TONGA
Respondents

Coram: Burchett J
Salmon J
Moore J

Counsel: Mr Fifita for the Appellant
Mr Little for the Respondents

Date of hearing : 18 July 2008.
Date of judgment : 25 July 2008.

JUDGMENT OF THE COURT

[1] On 6 May 2006, the appellant was seriously assaulted by a senior police officer, Veimau Leone, in the cells of the Angaha police station at ‘Eua. The appellant sued the police officer for assault. The appellant also sued the Ministry of Police and the Kingdom of Tonga. In a judgment of 14 September 2007, Andrew J awarded the appellant damages totalling $6,000 plus interest. That amount was made up of $5,000 general damages including damages for pain and suffering and $1,000 as exemplary damages. In his statement of claim, the appellant had specifically claimed $500 as aggravated damages and $7,000 as exemplary damages. For reasons which we discuss shortly, Andrew J declined to award aggravated damages and reduced the exemplary damages because the assault had been provoked by the conduct of the appellant. The only issue in this appeal is whether Andrew J was correct in dealing with the claim to damages in this way and specifically whether his Honour erred in relying on provocation in the circumstances.

[2] It is necessary to set out the facts found by Andrew J. No challenge was made to those findings in the appeal. It is also necessary to consider the evidence in a little more detail and make additional findings. Andrew J's findings were to the following effect. The appellant played in and won a rugby match on the afternoon of 6 May 2006. The appellant and some friends celebrated their victory and were drinking alcohol near the local Catholic School. They began to move off towards a local discotheque and they stopped to talk near a primary school. They had, by then, consumed about four bottles of spirits. They met another friend who said he had another bottle at home. He was told to get it. He did and they continued drinking. Veimau then appeared. One of the group threw the bottle away and Lisiatu Latu, also a member of the group which was drinking, ran after the bottle. Veimau chased after Latu and caught him. Andrew J found that Latu ran away after the bottle in order to retrieve it and in order to avoid the police. His Honour was satisfied that the appellant (who engaged in physical contact with Veimau after he had caught Latu) and Latu struggled with Veimau in order to avoid arrest. A neighbour came to Veimau's assistance and, in a further struggle, the appellant was subdued. His Honour accepted that Veimau's T-shirt was torn in the struggle with the appellant.

[3] It is comparatively clear that Andrew J accepted Veimau's account of what happened at this time having regard to his evidence and the evidence of the neighbour, Tongalei Maile, who provided assistance and another independent observer of the fracas, Nau Manukeu. Reviewing the evidence ourselves, we are satisfied that Veimau chased after Latu, caught him and physically restrained him. The appellant then approached the two of them and pulled on one or both of Veimau's hands in order to release Latu. The appellant then shouted at Veimau to release Latu. In turn, Veimau told the appellant to go away as he was interfering with Veimau's work as a police officer. The physical contact between Veimau and the appellant was a struggle in which the appellant tried, and succeeded, in releasing Latu from Veimau's grip. Veimau then asked Maile, who had observed the events from a distance and had approached, to restrain the appellant, which he did. The appellant was then handcuffed. These events occurred at about 10 p.m.

[4] The findings of Andrew J concerning the assault of the appellant at the police station were as follows. It was based on his acceptance of the evidence of the appellant, two other prisoners, Uai Pangi (in the same cell as the appellant) and Langoia Sailosi (in an adjoining cell), and another police officer present at the station that night as the duty officer in charge, Tevita Faka’osi. The assault occurred later in the night after the incident near the primary school. Veimau entered the appellant's cell and shone a torch in the appellant's face. He held the appellant's head and pushed it against the wall and said to the appellant words to the effect "are you a tough guy?". He then punched the appellant in the mouth and continued to punch him. The appellant fell to the floor. Veimau then repeatedly kicked the appellant on the body and kicked his penis and testicles. As to Veimau's state of mind, Andrew J said the following:

He was no doubt in an angry state of mind. He had previously been assaulted by [the appellant and Latu] and in that state of mind he went into the cells where [the appellant] was being held and assaulted him.

[5] In his evidence, Veimau denied the incident. Accordingly he gave no evidence about his state of mind when he assaulted the appellant and his reason for doing so. Having reviewed the evidence ourselves, we are satisfied the assault at the police station occurred at about midnight.

[6] There was no direct evidence that Veimau was angry. Indeed it is only an inference to be drawn from the primary facts. However Andrew J made no findings of primary fact, at least to which he referred, from which this inference might be drawn. None of the findings made by Andrew J would readily support this inference. Nor does the evidence given at the trial, which we have reviewed, readily support this inference. There was no evidence, for example, that when Veimau spoke to the appellant in his cell, he did so with a raised voice or in an angry tone. Nor was there any evidence that Veimau was behaving in a way consistent with him then being angry. Had he been angry, he may have acted impatiently or spoken curtly to other officers at the police station. But there was no evidence of this.

[7] Of course the fact that Veimau assaulted the appellant may be viewed as a manifestation of anger and an inference might be drawn, having regard to his conduct, that he was then angry and, indeed, so angry as to be deprived of self-control. But his conduct in assaulting the appellant could simply have been a manifestation of a calculated and calm attempt to discipline the appellant or to administer his own form of punishment for the appellant's criminal conduct and the appellant's interference when he was endeavouring to arrest Latu. In the absence of evidence from Veimau about his state of mind and other evidence that may have pointed to him being angry, we think it is highly improbable that the events which occurred at about 10 p.m. would have so influenced Veimau that two hours later he was so angry as to have lost his self-control and assaulted the appellant. In our opinion, Andrew J was wrong in finding that Veimau was angry when he assaulted the appellant.

[8] Also, given the comparatively insignificant nature of the physical interaction between the appellant and Veimau at 10 p.m. (but taking into account that the appellant was trying to impede him in exercising his duties as a police officer) and the passage of time between that incident and the assault we do not believe that a reasonable person would have lost their self-control. These facts, together with our finding that Veimau was not angry, lead to the conclusion that there was no provocation which should impact on the assessment of either aggravated or exemplary damages.

[9] Aggravated damages can awarded for conduct which hurts the injured person's feelings which can include humiliation of the injured person. In the present case the appellant received a comparatively severe injury to his testicle. It took some time for him to overcome the injury. It was necessary for him to expose his genitals to hospital staff in order to receive treatment to the injuries sustained in the assault. In the circumstances we think aggravated damages can be awarded and the sum sought by the appellant, $500, seems to us an appropriate amount.

[10] As to exemplary damages, Andrew J noted in his reasons for judgment that "exemplary damages are accordingly reduced [because of the provocation]". We have the impression that his Honour only discounted, in a modest way, the exemplary damages that he otherwise would have ordered. This discount is likely to have been, in our opinion, of the order of $500. Another way of assessing exemplary damages (and, for that matter, aggravated damages) where provocation is involved may not be to work out what those damages should be ignoring the provocation and then to reduce the figure taking the provocation into account, but rather to assess the quantum of damages having regard to all the circumstances including the provocation. This approach is consistent with the judgment of the English Court of Appeal in Murphy v Culhane (1997) QB 94. In any event, an award of exemplary damages of $1500 appears to us, in the circumstances, to be appropriate. In assessing those damages, two matters need to be balanced. The first is that caution should be exercised in awarding exemplary damages. The second is that the disapproval of the Court of the conduct of a police officer assaulting a prisoner in custody, by the awarding of exemplary damages, has to be perfectly plain. Indeed if such practices continue, it may be necessary for the Court to reinforce its disapproval by awards of greater amounts though depending, of course, on the particular circumstances of any future case.

[11] The judgment of Andrew J should be varied. The award of exemplary damages should be $1500. A sum of $500 should be awarded as aggravated damages. We so order. The appellant should have his costs of the appeal.

[12] We should note one final matter. During the hearing of the appeal, counsel for the respondents, which include the Ministry of Police and the Kingdom of Tonga, submitted that the decision of the House of Lords in Kuddus v Chief Cone of Leicesticestershire Constabulary [2001] UKHL 29; [2002] 2 AC 122 (referred to in the quotation from New South Wales v Ibbett set out earlier) points to no exemplary damages being awarded in a against an employer which iich is vicariously liable for the conduct of its employee. Counsel referred to a passage in Clerk & Lindsell (19th Edition, 2006) that tentatively ventures the opinion that if the conduct of the employer does not merit punishment then arguably an award of exemplary damages should not be made. Support for this view is found in S v Attorney General of New Zealand [2003] NZCA 149; (2003) 3 NZLR 450. However this issue does not arise, in our opinion, in the appeal. No submission to this effect was made to Andrew J. Had it been made and accepted, no exemplary damages would have been awarded at least against the Ministry of Police or the Kingdom of Tonga. No appeal was brought against the award of exemplary damages. The only issue presented by the appellant by his notice of appeal (ignoring grounds abandoned at the hearing) was whether Andrew J erred in reducing damages because the assault resulted from provocation by the appellant. The appeal does not appear to us to raise the issue referred to by counsel for the respondents. Indeed so much appeared to be conceded during the hearing of the appeal. It is an issue which will need to be addressed if and when it arises.

Burchett J
Salmon J
Moore J