Jagroop v Soakai [2002] TOLawRp 24; [2002] Tonga LR 144 (27 June 2002)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

C 67/01; CA 7/01

Jagroop

v

Soakai anor

Ford J
27 February, 14, 15 March, 19 April 2002; 27 June 2002

Negligence – breach of duty of care – proximity and liability of police

The facts are set out in Jagroop v Soakai and the Kingdom of Tonga [2001] Tonga LR 234 (CA). In that decision the Court of Appeal set aside a strike out order. The plaintiff brought a claim against the defendants for breach of duty of care.

Held:

1. The court found that the plaintiff established on the balance of probabilities that there had been an assumption of responsibility by the police which induced the plaintiff to refrain from taking steps he might otherwise have taken himself to recover the money.

2. The court was satisfied that had the plaintiff been told of any change of mind on the part of the police, then he would have immediately consulted a lawyer and appropriate further action would then have been taken to recover his money.

3. The plaintiff was successful and was entitled to recover against the defendants, jointly and severally, damages in the sum of $1500 together with interest at 10 percent from the date of issuance of the writ, namely 26 January 2001, until payment. The court awarded costs to the plaintiff.

Case considered:

Jagroop v Soakai and the Kingdom of Tonga [2001] Tonga LR 234 (CA)

Statute considered:

Criminal Offences Act (Cap 18)

Counsel for plaintiff: Mr Niu

Counsel for defendants: Miss Simiki

Judgment

The plaintiff, Siaki Jagroop, alleges in his pleadings that on 15 March 2000 a Mr Teg Rajan, described in the statement of claim as a "Fijian Indian man" obtained $1500 from him by false pretences. The money was never repaid.

The plaintiff's case, in essence, is that he had been holding Rajan's passport as security for the debt but he had been persuaded to hand over the passport to the police on their assurance that Rajan would be prosecuted for false pretences. Rajan was not prosecuted. Instead, the passport was returned to him by the police and he left Tonga without the plaintiff's knowledge. In this way, so it is claimed, the plaintiff was deprived of the opportunity of recovering his money from Rajan.

In evidence, Mr Jagroop told the court how he came to meet Rajan and what then happened over the following 2 or 3 weeks. An unusual feature of the plaintiff's evidence is that, although this is a civil case against the police, in one respect the plaintiff was in a similar situation to an accused who has made a statement to the police in a criminal case and then given evidence on his own behalf. The similarity is that the plaintiff in this case had not only given a formal statement to the police at the time he made his initial complaint back in March 2000, but he had compiled detailed notes of the events as they had happened and he had then given those notes to the police officer in charge of the case to assist the police in their prosecution of Rajan.

Defence counsel had all that information available to her, although the documentation had not been formally discovered prior to the hearing. Had the plaintiff in his evidence departed in any significant respects from the facts as set out in those written statements then it is likely that he would have been closely cross-examined on the differences. As it was, the plaintiff was not cross-examined directly on any of the previous statements he had given to the police which would indicate that, in so far as the defence case was concerned, his evidence, in substance, was consistent with his earlier statements and, to the extent that there may have been differences or inconsistencies, then they were largely immaterial in the overall context of the case.

In the end, those earlier statements were produced, albeit in a rather haphazard way, after the hearing had been in progress for some time.

Mr Jagroop told the court that he is a married man now aged 59. He lives in Vuna road, Fasi, next door to the International Dateline Hotel. He is a carpenter by occupation.

WEDNESDAY, 15 MARCH

On the day in question, Wednesday 15 March 2000, Jagroop had gone to visit a neighbour, Kimiko Valevale, to discuss some work he needed doing. When he arrived, Mr Valevale was talking to Rajan, who Jagroop had never seen before, and so Mr Jagroop waited for them to finish their conversation and for Rajan to leave the premises before he had his discussion. Later, as Jagroop was returning to his own home, he saw Rajan again. Jagroop told the court that Rajan approached him and inquired about ownership of one of the next door properties. Rajan explained that he had some containers at the wharf and he was interested in finding vacant space in the locality where they could be stored. Jagroop told him who owned the api and Rajan then asked where he (Jagroop) lived because he wished to talk to him. Jagroop showed him and they both ended up back at his house.

At the plaintiff's home, Rajan took his passport out of his brief case and asked Jagroop some questions about where he banked and his bank account. Jagroop said that when Rajan discovered that his account was with the ANZ Bank in Tonga, he stood up, shook Jagroop's hand and said to him, "you know it's from God that we met" explaining that he also banked with the ANZ Bank back in Fiji.

A Bank statement produced at the hearing by Jagroop showed that on 15 March 2000 he had a total credit in his ANZ term deposit access account of $1511.13. He told the court that that was all the money he had in the Bank at that time.

Mr Jagroop said that Rajan then asked him if he would sign a withdrawal slip for $1500 to enable him (Rajan) to pay a deposit on the duty owing to Customs on the containers he had at the wharf and within 24 hours Rajan would have the sum of $15,000 transferred from his Fijian account to the plaintiffs account in Tonga. Rajan told Jagroop that he would then have his $1500 back and the rest of the money would be paid out to him to pay the balance of the duty on the containers. The plaintiff said that he agreed to this proposal and wrote out and signed a withdrawal slip for $1500.

At that point, the plaintiff went on to say, Rajan asked if he could use the telephone to make a call to an Indian man he knew at the ANZ Bank to arrange for the money to be transferred. Jagroop said that he overheard the telephone conversation but he did not know what was being said because Rajan spoke in the Indian language.

While the telephone conversation was taking place, however, Jagroop wrote in Tongan on the back of the withdrawal slip:

"The reason for my withdrawal of this money is duty to the wharf for Ted Rajan

Sign Siaki Jagroop"

Mr Jagroop said that before he departed, Rajan had told him to go to the Bank in 24 hours and the money would be there. He took with him the signed withdrawal slip but he left behind his brief case and some papers or pamphlets attached to the outside of the case. It is not clear from the evidence why the brief case was left behind or what arrangements had been made, if any, for returning it to Rajan. Jagroop said that when he looked through the papers and pamphlets he noticed that they were not official papers relating to the importation of goods but simply advertising brochures and at that point he began to become suspicious. He decided to go along to the ANZ Bank and put a stop on the withdrawal but when he arrived at the Bank he found that Rajan had already uplifted the $1500.

Mr Jagroop told the court that at that point he made the first of what was going to be a number of visits to the Nuku'alofa police station. He said that when he began to explain the situation to the policewoman on duty, she told him that the Indian man had been arrested by the police the previous evening for drunkenness and he had been taken to the Alekina townhouse. The policewoman then instructed Constable Vilisoni Finau to take Jagroop to the Alekina townhouse and bring back the Indian man. When they arrived at the townhouse they found that Rajan had already moved out. Mr Jagroop said that he and Constable Finau then came back into town and they checked with Air Pacific to see if Rajan had made any bookings to leave the country but no such bookings were found. After that, as it was getting late in the day, the plaintiff decided to return to his home.

All that happened on 15 March 2000. The written statements Mr Jagroop made for the police at the time contained more detail about the events that day. He described the conversation he had overheard between Rajan and Kimiko Valevale while he was waiting to speak to Mr Valevale. He heard Rajan tell Valevale that the containers were on their way from New Zealand to Tonga and they contained automobile parts including tyres from Italy. Mr Jagroop also described in his written statements how and why he came to lend the money to Rajan.

As I have already noted, there are some discrepancies between what was said in the written statements and what the plaintiff said in oral evidence before the court but, as he was not cross-examined on these discrepancies, I can only conclude that the differences were regarded by the defence, no doubt correctly, as insignificant or inconsequential in terms of the overall case.

THURSDAY, 16 MARCH

Mr Jagroop told the court that on the morning of 16 March he went to the police station and made a formal complaint about Rajan which he signed and then on his way home he noticed Rajan by Cowley's bakery. He said that he swore at him and said, "I don't trust you any more, where is my money?" Rajan told him that the 24 hours was not yet up but Jagroop insisted that he wanted some reliable security and so Rajan paid for a taxi and the pair of them then went to Sela's Guest House, where Rajan was then staying, and Rajan fetched his passport which he gave to Jagroop to hold as security until the $15,000 had been deposited in his bank account.

Jagroop said that he returned to town in the taxi but as he was still not satisfied he decided to go back to the police station. On this occasion he spoke to Lance Corporal 'Alekino Veomatahau ("Aleki") and he showed him Rajan's passport and told him that the Indian man was now staying at Sela's Guest House. Jagroop said that the police officer looked at the passport and gave it back to him commenting that the Indian man was a cheat and he should have him arrested or he might use up all of his money. Jagroop said that he then suggested that they should go and arrest Rajan but 'Aleki said that the police car was out of petrol. Jagroop then explained to the court how he gave 'Aleki $5 for petrol for the police car and they drove out to the guest house but Rajan was not on the premises and so they drove to the Alekina townhouse and Captain Cook Apartments endeavouring, without any success, to try and track him down. Jagroop said that when they eventually arrived back in town, a message was received over the police car radio that Rajan had returned to Sela's Guest House and so they drove back there. Jagroop said that he remained in the car while 'Aleki went and spoke to Rajan. The police officer was away for approximately half an hour or more, Mr Jagroop said, and when he returned to the car he told Jagroop not to worry because the police would take over and take care of everything and the money will be in his bank account by the following Monday morning.

Jagroop said that when he and 'Aleki were talking in the police car outside Sela's Guest House, he had Rajan's passport sitting on the dashboard in front of him. He recalled 'Aleki saying to him, "just look after the passport" and so he put it in his pocket. They returned to town, Jagroop thanked him for his help and then went home.

The evidence given by the plaintiff, which I have just outlined, is entirely consistent with what he said in his contemporaneous written statement to the police but it is significantly different from the evidence given by the police officer. 'Aleki gave the court an entirely different account of the events of 16 March. He said that Jagroop had first arrived at the police station at 9 am that morning to make a complaint but he, 'Aleki, had told him that the complaint was a civil matter and he should go out and find a lawyer. He said that Jagroop had asked if he would help him find the Indian man and he had said, "no".

The officer said that after two hours Jagroop had returned to the police station and made the same complaint and again he, 'Aleki, had repeated that it was a civil matter. He said that on that occasion he asked Jagroop if he was holding any security from Rajan and he made the suggestion that he should obtain Rajan's passport. 'Aleki's evidence was that as no police car was available, Jagroop took him in a taxi to Sela's Guest House and it was he, 'Aleki, who eventually obtained Rajan's passport and gave it to Jagroop to hold as security until the money had been repaid. 'Aleki said that when he handed over the passport to Jagroop, he reminded him that it was a civil matter and he had to do the rest by taking the passport to a lawyer.

The Lance Corporal was cross-examined rather aggressively by Mr Niu. The exchange was tense and at times the witness appeared decidedly uncomfortable and visibly irritated with the close questioning. He denied Mr Jagroop's version of events as it was put to him and he continued to assert that the account he had given to the court was a true and accurate account of what had taken place. 'Aleki was asked by counsel in cross-examination to produce the police station diary for the period in question which, he agreed, should have recorded each visit by the plaintiff to the police station and whether or not a police vehicle had been used to travel to Sela's Guest House. The diary had earlier been subpoened. He was also asked to produce his notebook for March 2000 which he said he kept at home (a rather surprising statement, in view of his admission that the note book was police property). In all events, the witness was ordered by the court to obtain both these documents during a court adjournment but he reported back that, although he had searched, he had been unable to locate either the station diary or the notebook and he could offer no further explanation as to their whereabouts.

In his closing submissions, Mr Niu said that 'Aleki Veamatahau had lied about getting Rajan's passport and giving it to Jagroop and he submitted that the true story was that Jagroop had obtained the passport from Rajan himself earlier that same day. Mr Niu was also critical of the fact that when Jagroop gave evidence about how he had obtained Rajan's passport, he was never cross-examined about 'Aleki Veamatahau's claim that it was him who had obtained the passport from Rajan. Mr Niu also asked rhetorically how could 'Aleki have told Jagroop on the morning of 16 March that it was a civil case before he had even met Rajan. All he would have known at that stage was what the police had been told by Jagroop, namely that Rajan had obtained money from him by way of false pretences and he had failed to repay the money. The police did not obtain a statement from Rajan about the matter until 20 March.

I accept Mr Niu's submissions in this regard. I found Lance Corporal Veamatahau's evidence unconvincing and I simply do not accept his version of events. Quite apart from the points made by Mr Niu, the officer proffered no convincing explanation for his change of heart -- why he had refused to help Jagroop locate Rajan at 9 a.m. but two hours later he was prepared to even travel in a taxi (according to his evidence) with Jagroop to find the Indian man.

When asked for an explanation, the witness said: "I just wanted to help him. That's why I went with him to get his (Rajan's) passport, because the Indian man might run away." As I say, I found that explanation for the sudden change of heart over a two hour period unconvincing.

On the other hand, as already noted, I find that Mr Jagroop's evidence of the events of 16 March is entirely consistent with the written statements he made out for the police back at the time the events happened. His evidence is also consistent with the official statement of complaint which the police took from him at 1100 hours on 20 March where he said that it was he who obtained Rajan's passport.

I have spent longer than I had anticipated in analysing the events of Thursday 16 March 2000 but to my mind it was necessary to do so because the court was faced with a direct conflict between the plaintiff's evidence on the one hand and the police officer's evidence on the other. Both witnesses could not be right. I have concluded that Mr Niu's assessment of 'Aleki Veomatahau's credibility is correct and I reject the police officer's evidence. It did nothing to help the defendants' case.

MONDAY, 20 MARCH

Returning to the narrative, Mr Jagroop told the court that on the Monday morning at 9 a.m. he was outside the ANZ Bank when it opened and, when he inquired, the teller told him that no money had been transferred into his account. He then went straight to the police station and made a further complaint to a female police officer. As he was leaving the police station, he noticed Constable Finau approaching. He was the constable who had driven him around on the previous Wednesday when he had first made his complaint about Rajan. Jagroop said that when he told Constable Finau that Rajan was then at Sela's Guest House he agreed to go and bring him back to the police station. Jagroop told the court that he went with the constable and after they had picked up Rajan from the guest house and were on their way back into town, Constable Finau told him that he would also have to take Rajan's passport to the police station. They then detoured to his home and Jagroop picked up the passport and handed it to Constable Finau.

Mr Jagroop said that when they arrived back at the police station he saw Constable Finau hand the passport to a policewoman who looked at it and made the observation that Rajan was an overstayer because he only had authority to be in the country for 1 week. Rajan then apparently tried to deny that allegation and he began to argue with the policewoman that he had a 1 month entitlement. Jagroop then told how that discussion at the police station was interrupted by the arrival of 'Atolo Tu'inukuafe. 'Atolo, it would seem from the evidence, is a well-known businessman. He was angry because he had also lent money to Rajan which had not been repaid and he had, therefore, decided to lodge a formal complaint over the matter. Jagroop said that at that point the police inspector ordered Rajan's arrest and Constable Finau was told to take the passport through to Mele Halapua, the Immigration Officer, and then put Rajan in custody.

It transpired from subsequent evidence that the "policewoman" referred to was Lance Corporal Koniseti. Officer Koniseti is no longer with the police but she told the court, in evidence which I accept, that she had been the person who had noticed that Rajan was an overstayer and it was she who had taken the passport through to the Immigration Officer. Officer Koniseti also referred to other complaints that the police had received about Rajan from the International Dateline Hotel and the Friendly Island Hotel.

Before the passport was taken through to the Immigration office, Mr Jagroop arranged to take a photocopy and he produced to the court an A4 sized poster in the form of a country and western "wanted dead or alive" poster, which he had made up using the passport photograph, in which he had explained how he had been swindled out of his money by Rajan. Mr Jagroop was proposing to have the poster published in the Fiji Times in the hope that Rajan's family and relatives may have seen fit to reimburse him.

TUESDAY, 21 MARCH

Mr Jagroop said that he returned to the police station on 21 March to see if they wanted anything further from him. He told the court that on that occasion a detective saw him and told him that he should go and see a lawyer and bring a civil action because Rajan would be imprisoned and he (Jagroop) would lose his money. Jagroop did go to see a local law practitioner, Mrs Vaihu, but he said that she told him to go ahead with the criminal charge and forget about any civil action. Jagroop then went back to the police station to talk to the officer in charge but he was not able to see her until the following day.

WEDNESDAY, 22 MARCH

Mr Jagroop told the court that on this day he took with him to the police station all the handwritten statements he had prepared relating to the case and he gave them to the officer in charge, the first defendant, 'Atelaite Koloale'o Soakai. He said that he told Inspector Soakai that he was not going to pursue a civil claim but he wanted the police to proceed with the criminal case against Rajan based on receiving goods by false pretences. He said that Chief Inspector Soakai looked through the statements he had produced and told him that they were fine and that the police were going to charge Rajan.

Jagroop said that he and Inspector Soakai then walked downstairs and Soakai went into the Immigration office for about half an hour while he waited. When she came back, Jagroop said, the Inspector was smiling and she said to him, "okay, leave everything with us, the police, because this is going to be a major task for us to contact Fiji and when we have everything we can get then we will charge the Indian man."

Jagroop thanked the Chief Inspector and returned home.

MONDAY, 10 APRIL

According to his evidence, having heard nothing further from the police, Mr Jagroop decided on 10 April to call again at the police station to find out how the prosecution was progressing. He asked to speak to Inspector Soakai and he told the court that when he went to see her she said: "I'm sorry, the Indian man has left, he's gone and it was our own mistake."

Mr Jagroop then told how he endeavoured to complain to the Minister of police and another senior officer but, having no success, he went to see a lawyer, Mr Niu. Mr Niu wrote a formal letter of complaint to the Minister on 16 May and he received a reply from the Police Commander on 23 June 2000. The Commander said in his letter that there had been insufficient evidence to support a charge in respect of Mr Jagroop's complaint. He confirmed, however, that on 28 March 2000 Rajan had been prosecuted, fined and ordered to pay compensation in connection with a different complaint. Immigration had then returned Rajan's passport to him on 1 April and he had left the country on the same day.

The "different complaint" which the Police Commander referred to was the complaint made to the police by 'Atolo Tu'inukuafe. He has already been referred to in this narrative.

'Atolo was called as a witness for the plaintiff. He is a 62 year-old retired banker. He said in evidence that he had spent some 24 years with the Tonga Development Bank and he had finished up as manager. He retired from the Bank on 30 March 2001. His wife owns and operates Sela's Guest House. 'Atolo told the court that he recalled Rajan staying at his wife's guest house in late March 2000. He had never met him before. He did not know what his occupation was or what he was doing in Tonga. On a Friday night Rajan had borrowed $100 from 'Atolo promising to repay the money on the following Monday.

'Atolo said that Rajan gave him a signed withdrawal slip for $100 and told him to take it along to the ANZ Bank on the Monday and he would be able to uplift the money. The witness did that but the teller told him that there was no money in the account. 'Atolo was asked whether Rajan had shown him the passbook from which the withdrawal slip had been taken. He said that Rajan had told him that he did not need a passbook for his access account and although he ('Atolo) said that he was "suspicious" at that point, he still trusted him.

'Atolo made a complaint to the police. It so happened that when he arrived at the police station, Rajan had just been apprehended on the Jagroop complaint and so they confronted each other. 'Atolo said that after making the complaint, he heard nothing more from the police but he had met Jagroop sometime later and he had learned from him that Rajan had been allowed to leave the country.

'Atolo then told the court how sometime after all of that he had met up with Mele Halapua one day at the Good Samaritan restaurant. He knew that she was the Immigration officer with the Police Department and he said to her, "you let the Indian man go free and he has not paid back my money." 'Atolo told the court that Mele said that she would look into it but he heard nothing more until some two months later when he received a telephone call from Treasury advising him that they held $100 on his behalf.

Unbeknbwn to 'Atolo, the police had prosecuted Rajan in relation to his complaint and the magistrate had fined Rajan and ordered him to pay back, as compensation, his $100. Following the prosecution the police, through the Immigration office, had returned Rajan's passport and arranged for him to leave the country.

'Atolo was an impressive witness. In her closing submissions, counsel for the defendants described the plaintiff, Mr Jagroop, as "a very trusting and gullible person who is prepared to give up $1500 to a person he had met for the first time." The observation is no doubt fair but it probably says much for Rajan's ability as a fraudster that he was also able to swindle $100 from a very senior bank manager who he also had never met before.

For the defence, it was submitted that the case was not simply a "clear-cut borrowing exercise" because it involved "business negotiations" between Jagroop and Rajan. It is true that in the statements which Rajan made to the police, he had said that Jagroop had given him the $1500 so that he could become a business partner with him in a car yard which they were going to develop but I am simply not prepared to give any credence to anything which Rajan may have said or alleged. In any event, I find on the evidence that the purpose of the loan was, as Jagroop had written on the reverse of the withdrawal slip, namely, to enable Rajan to pay money on account of the alleged duty owing on the containers.

In order to succeed in this action, the plaintiff must be able to establish that the defendants breached a duty of care owed to him, or, in other words, that they are liable in negligence. This issue has already been before both this Court and the Court of Appeal. In February 2001 the defendants filed a strike out application and after a hearing in April 2001, this Court upheld the defendants' application and struck out the claim. As noted by the Court of Appeal, the grounds upon which the application had succeeded in this Court were:

"That the relationship between the plaintiff and the defendants lacked the proximity necessary for the existence of a duty of care and that, in any event, public policy would deny the plaintiff any cause of action, in the circumstances, for breach of a duty of care."

The plaintiff then successfully appealed that decision to the Court of Appeal. In its decision ([2001] Tonga LR 234) setting aside the strike out order, the Court of Appeal accepted that this Court had correctly recognised the principles which applied in a case involving the investigation of a crime by the police but it went on to stress that those principles were subject to the important qualification that the police may be held liable in a case where there is some form of assumption of responsibility on their part. In this regard, the Court of Appeal noted the specific pleading in paragraph 7 of the statement of claim that the police officer, "told the plaintiff that they, the police, would proceed and prosecute Rajan ... and to leave everything for them to do."

The Court of Appeal concluded that evidence at the trial could well lead to the finding of an "assumption of responsibility by the police" which induced the plaintiff to refrain from taking steps himself to ensure a recovery of the money.

Understandably, a number of the submissions from both parties were directed at this issue of whether there had been such an assumption of responsibility by the police. I have considered all of those submissions carefully and I am mindful that the onus is on the plaintiff to establish all the elements of his case on the balance of probabilities.

In the late afternoon of Monday, 20 March 2000, Police Constable Mahoni completed taking a statement from the "Indian man", Rajan, in relation to Jagroop's complaint. He was then formally charged as follows:

"That on 15 March 2000 at Kolofo'ou (you) did obtain money by false pretences contrary to section 164 Criminal Offences Act in that you obtained $1500 from Siake Tome Jagroop for payment of duty on your containers, but you knew that information is false.

Rajan denied the charge.

The following morning Constable Mahoni spoke to Jagroop and told him that in his opinion the evidence against Rajan was weak and he should pursue the matter as a civil claim. He persuaded Jagroop to sign a printed police form known as a "Case Disposition Notice". The form had a number of square boxes and the police officer was required to tick the relevant one. Constable Mahoni had ticked the box which noted, "closed unfounded as it is a civil matter". The Constable had also written at the bottom of the form: "Met the complainant and we understand each other the state upon which his complaint is at. Very weak to prove, but to issue civil case and he agreed to that." It was at that point that Jagroop consulted Mrs Vaihu.

Constable Mahoni was cross-examined as to why he had charged Rajan if he believed that the case against him was weak. I did not find his answers particularly convincing. I suspect, however, that he also had fallen under Rajan's "spell", as it were, and the real explanation for his reluctance to proceed with the prosecution against Rajan was that, like the plaintiff and 'Atolo (the bank manager) before him, Mahoni, as a relatively inexperienced constable, had simply succumbed to the persuasive deceitfulness of the professional, to use a colloquialism, conman.

As Mr Niu submitted, the situation might well have been different if the young Constable had obtained the Bank withdrawal slip and noted Jagroop's writing on the reverse side recording that the purpose of the loan to Rajan was to pay Customs duty. Unfortunately, the Constable's inquiries never extended that far.

The first defendant, Inspector Le'o Soakai, was cross-examined at considerable length about her involvement in the investigation. Although she had taken aboard Constable Mahoni's observations that it was a civil case, I do not believe that, at any stage, she totally embraced this viewpoint. The evidence is clear that she assured the plaintiff that Rajan would be prosecuted and she was still pursuing inquiries in this regard even after Rajan had left the country.

The Inspector told the court that when a complaint is made about a non-Tongan her usual practice is to contact Immigration, which at that stage was another division of the Police Department housed within the same building. In this particular case, Inspector Soakai knew that there was a problem with Rajan because his passport had expired and the Inspector said that she had believed, wrongly as it turned out, that she had in fact contacted Immigration over the matter.

On balance, after considering all the evidence very carefully, I have reached the conclusion that the plaintiff, who I generally found to be a credible witness, has established his case. Overall, with some inconsequential exceptions, I prefer his account wherever it differs from that of the police witnesses. I accept that the plaintiff was persuaded to hand over Rajan's passport, which he had been holding as security, and leave it in the custody of the police, because of the various assurances he had received from the police officers involved that Rajan would be prosecuted. In other words, reverting to the exception referred to by the Court of Appeal, I find that the plaintiff has established on the balance of probabilities that there had been an assumption of responsibility by the police which induced Mr Jagroop to refrain from taking steps he might otherwise have taken himself to recover the money.

Turning to the question of damages, the plaintiff's case is that he lost the chance to recover the money he might otherwise have recovered had Rajan been convicted. Counsel submitted it was likely upon conviction that Rajan would have been ordered to repay the $1500 as compensation under section 25 of the Criminal Offences Act. The plaintiff also claims legal costs in the sum of $975 making a total claim of $2475.

Defendants' counsel submitted that there was no guarantee that Rajan would be convicted and, even if a conviction was entered, the judge would have had a complete discretion when it came to sentencing and there is no certainty that compensation would have been ordered.

Mr Niu, in response, accepted that the conviction of Rajan could not be guaranteed but he submitted that it was sufficient for the plaintiff to be able to establish that there was a chance, or as he put it "almost a certainty", that Rajan would have been convicted and that compensation would then have been ordered in the same way that it had been ordered by the court in relation to 'Atolo's complaint against Rajan.

The legal test for recovery of damages based on the loss of a chance is summarised in the following passage from Halsbury, 4th edition, (vol 12 para 1137):

"Whilst issues of fact relating to liability must be decided on the balance of probabilities, the law of damages is concerned with evaluating, in terms of money, future possibilities and chances. In assessing damages which depend on the court's view as to what will happen in the future, or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will happen or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards."

In the present case, in my view, the prospects of Rajan being convicted and ordered to repay the $1500 as compensation would have been high.

There is another factual element relevant to any consideration of the risk factor. The Court of Appeal referred to the possible options open to the plaintiff and noted that, even if the success of any of the steps open to him may be doubtful, the point was that he had now lost the "chance of success". It suggested steps he could have taken including what the plaintiff might have been able to do had he been "told of the change of mind on the part of the police officer."

I do not find that there was any change of mind on the part of the police officer in charge of the case, Inspector Soakai, or any deliberate decision made by her to cease the police investigation of Jagroop's complaint and allow Rajan to leave the Kingdom. On the contrary, I accept that the Inspector was still ordering work to be carried out on the prosecution of the case even after Rajan had, unbeknown to her, left for Fiji.

The problem was that the Inspector had omitted to instruct Immigration not to release Rajan until the police had completed investigating Jagroop's complaint. The Inspector thought that she had, in fact, informed Immigration about Rajan and that he would not be allowed to leave the Kingdom until she had given her authorisation but, in this regard, she was mistaken. As the witness acknowledged under cross-examination, no such discussion had ever taken place.

In terms of the Court of Appeal's observations about the failure to tell Jagroop of the police change of mind, I am satisfied that had the police concluded as a result of their investigation that they would not proceed with any prosecution of Rajan in respect of Jagroop's complaint, and had they told the plaintiff of their change of mind in this regard, then the plaintiff would not have been content to simply let the matter rest. Mr Jagroop may have his share of faults but lack of tenacity is not one of them and I have no doubt at all that, had he been told of any change of mind on the part of the police, then he would have immediately consulted another lawyer, probably his present counsel, and appropriate further action would then have been taken to recover his money.

The plaintiff has succeeded in his claim and he is entitled to recover against the defendants, jointly and severally, damages in the sum of $1500 together with interest at 10 percent on the said sum from the date of issuance of the writ, namely 26 January 2001, until payment.

The plaintiff seeks legal costs for earlier attendances quantified in the statement of claim in the sum of $975 together with the costs of the proceedings. Counsel for the defendant noted that, apart from the plaintiff's oral statement in evidence that his earlier legal expenses had amounted to $975, no receipts or documents were produced to substantiate that particular item of claim and it is not clear what legal attendances were covered by the $975 figure. There is merit in this submission.

In the circumstances, I consider that the justice of the case can best be met by the making of an order, which I hereby make, awarding costs to the plaintiff to be agreed or taxed. The costs so ordered include any proper entitlement to all or part of the $975 claimed.