Small v Vete [1961] TOLawRp 3; [1923-1962] Tonga LR 219 (8 December 1961)

[1923-1962] Tonga LR 219

SMALL

v

HALE VETE

This is an appeal by Hale Vete the defendant in the Supreme Court (Hunter J.). It was an action by the Plaintiff (Small) claiming, £500 damages for assault. The facts of the case sufficiently appear in the judgment of the Privy Council (Hammett C.J.). It was submitted on behalf of the appellant that a civil action for damages for assault cannot he maintained unless the defendant has first been convicted of the offence of assault by a criminal Court. The Privy Council overruled this submission but reduced the amount of damages awarded by the Supreme Court.

The judgment of the Court of Appeal delivered on the 8th December 1961 was as follows:

This is an appeal against the decision of the Supreme Court whereby the Plaintiff-Respondent was awarded £116 damages for assault against the Defendant-Appellant.

The facts giving rise to this Claim were as follows:-

The Respondent carries on business as an engineer. The Appellant handed certain articles to him to repair. When this repair work had been done the Appellant refused to return the articles until not only the cost of their repairs was paid but also an old outstanding account was paid by the Appellant. The Appellant objected and went to the Respondent's place of business with two men and remonstrated with the Respondent. The Appellant intimated that he intended to retake his goods by force and would not leave the Respondent's premises when requested to do so. A brief scuffle ensued as a result of which the Respondent — a man of 62 years of age — sustained minor injuries. There was ample evidence to support the finding of fact of the learned trial Judge that it was the Appellant who assaulted the Respondent and we do not consider there is any a merit in the Appeal against this finding.

The Appellant also relies on the following further grounds of appeal:-

(1) A civil claim for damages for assault cannot in law be sustained before the Defendant has first been convicted of the offence of assault by a Criminal Court.

We think it is sufficient for us to say that this is not a correct statement of the law. A person who is assaulted has a right of action in the Civil Court for damages for that assault. It may well be that the Police may prosecute a person responsible on a criminal charge of assault. In that event, on conviction, the Court may, in the exercise of its criminal jurisdiction under the provisions of the Criminal Offences Act (Cap. 10) Sections 24 and 25, order the accused to pay compensation in addition to any other punishment imposed. This power of a Criminal Court to order compensation does not however deprive the person assaulted of his right of civil action for the damages, if the person assaulting him is not prosecuted by the police.

(2) That there was no precise proof of the damage suffered by the Respondent by way of loss of earnings and medical expenses.

With this contention we agree, but a person assaulted should not be deprived of his claim to damages merely because he is unable to prove the precise extent of his special damages.

(3) That the damages awarded were excessive.

We observe that the learned trial Judge awarded the Respondent £75 in respect of pain and suffering, £36 in respect of loss of earnings and £5 in respect of medical expenses.

We have given careful consideration to the whole of the evidence in this case and to all that has been urged before us on behalf of both the Appellant and the Respondent. It is clear that the injury received was not a serious one and that the original claim of over £500 damages was grossly exaggerated. On the other hand the Respondent is a man aged over 60 who was assaulted on his own premises by a much younger man in circumstances of some aggravation.

In our opinion the Respondent did not succeed in proving any special damages in the Court below and an award of £116 for general damages for an assault of this nature is too high.

We have decided to reduce the damages in this case to £50.

This appeal is therefore in part successful and the Respondent's award of damages against the Appellant is reduced to £50. In these circumstances we do not propose to interfere with the order for costs in the Court below which was made by consent.

The Appellant is awarded £5 5 0 costs on the appeal.