Lolohea v Kingdom of Tonga [2009] TOLawRp 17; [2009] Tonga LR 168 (16 April 2009)

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

CV 625/04

Lolohea

v

Kingdom of Tonga

Shuster J
23 January 2009; 16 April 2009

Damages – unlawful punishments in prison – quantum determined

While the plaintiff was serving a sentence of imprisonment in the Hu'atolitoli Prison he endured punishments that were both extreme and unlawful. The full facts of his incarceration and ill-treatment were set out in Tapa'atoutai anor v Police [2004] Tonga LR 108. Liability to pay damages had been admitted by the defendant in writing. The parties had been unable to reach agreement on the quantum of damages.

Held:

1. The Court considered the plaintiff's whole conduct during the time he was incarcerated and serving a lawful sentence for serious crimes, in particular his conduct towards other inmates and towards prison staff. The plaintiff had not helped himself and he brought a lot of trouble upon himself and he appeared to enjoy his own solitary confinement.

2. The Court also considered the defendant's reluctance to settle out of Court by way of mediation and the fact the Crown was vicariously liable for the torts of its servants and agents.

3. The Court ordered that the plaintiff receive by way of compensation for unlawful privation a payment at the rate of $200 per day for 284 days making a total payment for unlawful privation of $56,800; for inhumane punishment the Court ordered the plaintiff receive the sum of $17,500; for exemplary damages the Court ordered the plaintiff receive the sum of $7,000; and the Court awarded the plaintiff full costs, including an order for the payment of Consumption Tax. The awarding of full costs and the payment of consumption tax was ordered because "the but for test" applied.

Cases considered:

Cumber v Chief Constable of Hampshire Constabulary (1995) Times, 28 January

Edwards v Pohiva [2003] Tonga LR 231

Fainga'a v Lelea and ors [2005] TOSC 5

Hague v Deputy Governor of Parkhurst Prison [1990] UKHL 8; [1991] 3 All ER 733 (HL)

Murray v Ministry of Defence [1988] UKHL 13; [1988] 2 All ER 521

Nifai Tavake v Kingdom of Tonga (unreported, CV 296/07, 16 December 2006, Ward CJ)

Oscar v Chief Constable of the Royal Ulster Constabulary [1992] NI 290

R v Governor of Brockhill Prison ex parte Evans (No 2) [1998] EWCA Civ 1042; [1998] 4 All ER 993 (CA) & [2001] 2 AC 19 (HL)

Tapa'atoutai anor v Police [2004] Tonga LR 108

Thompson v Commissioner of Police of the Metropolis [1997] EWCA Civ 3083; [1997] 2 All ER 762 (CA)

Statutes considered:

Consumption Tax Act 2005

Prisons Act (Cap 36)

Supreme Court Act (Cap 10)

Rules considered: 50

Prison Rules (Cap 36)

Counsel for the plaintiff : Mr Niu
Counsel for the defendant : Mr Kefu

Judgment

The hearing of this matter was simply to determine the quantum of damages which the defendant is to pay to the plaintiff as a result of this suit. Liability to pay damages had previously been admitted by the defendant; and admitted in writing.

History

This claim stems from the treatment of the plaintiff whilst he was serving a sentence of imprisonment, and whilst detained in the Hu'atolitoli Prison. The full facts of his incarceration and ill-treatment; have previously been set out in the Judgment of my brother Judge Ford J as he was then in case number AM8-9-03 (Tapa'atoutai anor v Police [2004] Tonga LR 108). I do not intend to rehearse the facts in this my judgment. Suffice it to say FORD J indicated at the time of his judgment:-

"Indeed it is difficult to take exception with Mr. Nui's description of the suffering the two men endured as "torture"

These words are a damming indictment, of the treatment this plaintiff (and another) received at the hands of the prison authorities into whose care and control, the plaintiff was entrusted whilst he was imprisoned serving his sentence.

Various attempts to mediate a settlement to this particular case have been proposed in the past by various members of the Judiciary- both past and present. A written agreement on damages was proposed by the parties; but for various reasons, settlement was never forthcoming. The case was listed for trial- and evidence adduced in relation to the quantum of damages (only) on the 23rd January 2009.

The Plaintiff's Original Statement of Claim

The plaintiff claimed damages on 7th September 2004 via his writ and his statement of claim against the Kingdom of Tonga-

The plaintiff claims:-

1. Damages in the sum of $66,000 for unlawful privation as per paragraph 10 of the statement of claim.

2. Damages in the sum of $20000 for inhumane punishment as stated in paragraph 13 of the statement of claim.

3. Damages in the sum of $15,250 for unlawful incarceration as stated in paragraph 16 of the statement of claim.

4. For costs of these proceedings.

5. Any other order or relief as may be just.

TOTAL CLAIMED IS $101,250.00

Defence to this Action

A statement of defence was filed (albeit out of time) with the leave of the court on October 2004. In this case the defence alludes to various letters and correspondence which has passed between the parties, concerning the possibility of settlement -but as stated before, to no avail.

In August 2008 the prospect of formal Mediation of this case was again raised by the judiciary; and Mediation was considered. Unfortunately Mediation failed because one of the parties held the view that both HM Cabinet and HM Privy Council's approval was required- and they state Mediation was therefore inappropriate- in all such cases brought against the Crown and a court order is required. I query this assertion, Court ordered Mediations is extensive used in the United Kingdom and other jurisdictions, in cases against the Crown (or the State) so why not here in Tonga?

The Hearing

Because Mediation failed, the matter was listed and the hearing of the matter- focusing on the issue of quantum took place on 23rd January 2009 - with the parties written submissions to be filed - as follows.

• The plaintiff by l6 February 2009

• The defendant by 9th March 2009

• Any reply by 23rd March 2009

Oral Evidence

The plaintiff gave evidence and confirmed the facts of his imprisonment from 21/3/2003 to 10/12/2003. The plaintiff also confirmed his inhumane punishment from 22/1/2003 to 23/1/2003 and his imprisonment from 10/12/2003 to 9/2/2004, as well as his incarceration on 12 separate occasions in the maximum security cell.

The plaintiff confirmed his claim for damages at $250 (which he made well before he became aware of the rate of $800) per day for the days of his unlawful imprisonment and the sum of $20,000 for his inhumane punishment. These were amounts previously awarded by the Court of Appeal in similar cases.

The Plaintiff's Written Submission

Via his written submission dated 16th February 2009, Mr. Niu said after he had an opportunity to spend time researching the applicable law, concerning the quantum of damages - awarded in this type of case; counsel — rethought the claim of behalf of his client. Counsel submitted his reasoning for a substantially amended damage claim and, sought leave to amend his original statement of claim the same date.

Mr. Nui's argument on the value of damages- which the plaintiff should receive on behalf of his client is now significantly different from the original statement of claim filed on 7th September 2004- The new figures are substantially higher than $101,250.00. Nevertheless in this courts view the amended figures justify this courts full consideration - in view of Ford J's judgment in case AM 8-9 of 2003- a judgment which at the time directly affected this plaintiff - and another inmate.

An Amended Statement of Claim

I have set out the plaintiff's amended claim for damages below for information. Mr. Niu enclosed with his submission a copy of Ford J's judgment dated 9th June 2003- under file reference AM 8-9-2003 which concerned this plaintiff.

Suffice it to say the amended claim- is opposed by the Defendant as excessive- via their written submission, filed and dated 9th March 2009.

Plaintiff's Submission

1. The plaintiff was unlawfully imprisoned and as a result of his unlawful imprisonment he served an extra 264 days (from 21/3/2003 to 10/12/2003) which he should not have served, NOW claimed at $800 per day- the total claimed is now $211,200.00.

2. The Plaintiff was unlawfully, cruelly and inhumanely punished by being handcuffed and leg-cuffed to a horizontal pipe in his shorts and singlet whilst lying on the concrete floor and exposed to the heat of the sun and cold of the rain, mosquitoes, and dew and cold of the night, from 8.00 am 22/1/2003 to 10.00 pm 23/1/2003- the total claimed is $20,000.00.

3. The plaintiff was unlawfully imprisoned for 2 months from 10/12/2003 to 9/2/2004 for escaping from his cruel punishment under (2) above, at $800 per day for 61 days — the total claimed is $48,800.00.

The cumulative total of damages now amounts to $280.000.00

Damages for Unlawful Imprisonment

1. The plaintiff's counsel suggested it might be appropriate to combine the first claim with the third claim of the plaintiff, as they both relate to imprisonment and which are now claimed at the same rate of $800 per day. The defence appears to treat it that way too. They say as claimed, and proved by evidence, the number of days in the first claim is 265 days and the number of days in the second claim is 61 days, making a total of 326 days unlawful imprisonment.

2. When the plaintiff was asked in cross-examination on what basis he claimed $250 for each day of his imprisonment, the plaintiff replied that the amount he should claim and which should be payable was much higher than that, but he would accept the rate of $250 as being sufficient. Counsel argues that was before the plaintiff became aware that a rate of $800 had been awarded in an earlier case (refer below), which the plaintiff now claims - via his amended Statement of Claim.

3. The plaintiff argues when one considers the decision of the Court of Appeal in the case of Edwards_v Pohiva [2003] Tonga LR 231, it is clear that the plaintiff answered the question correctly (but for his ignorance that the rate in that case was $800 per day). In that case, the Court of Appeal stated in paragraph 60 (page 246 of the report)

"We have considered all matters relevant to the assessment of general damages and the features that aggravate those damages. We have reached the conclusion that the judge, in assessing the damages that he did, equivalent to $800 and $680 per day, failed to make an adequate allowance for the aggravating factors to which we have referred."

4. The aggravating factors to which the Court of Appeal had referred were listed in paragraph 59 (a), (b), (c) and (d) (page 345 of the report). Those factors are as follows:

(a) the respondents were-

(i) Law abiding citizens,

(ii) They were imprisoned in clear breach of their constitutional rights,

(iii) Breach of clause 14— liberty being taken away except according to law.

(b) The respondents were held in the maximum security section of the prison, treated like depraved and dangerous criminals, little short of solitary confinement, intention to impose the worst possible form of punishment — the person imposing the same behaving in a malicious and oppressive manner and that person and the Kingdom must be held responsible for the consequences;

(c) The humiliation, the pain, the shock, emotional suffering and deprivation;

(d) The failure of the respondents to make amends, apologize and pay compensation reasonably soon after the unlawfulness of the imprisonment was pronounced by the Court when the writ of habeas corpus was issued and instead they prolonging the proceedings for 6 and a half years.

Taking those aggravating factors into consideration, the plaintiff argues the Court of Appeal increased the rate of damages from $800 and $680 per day to $1,200 and $1,080 per day respectively.

The 3 persons to whom those damages were paid had been imprisoned for 25 days in the maximum security cell, which the plaintiff in the present case described in his evidence; and which this court has personally viewed. Those 3 persons were 'Akilisi Pohiva, member of Parliament, Kalafi Moala, editor of Taimi 'o Tonga newspaper and Filo 'Akau'ola, assistant editor of same newspaper. Pohiva and 'Akau'ola - were each awarded $30,000. Moala was awarded only $27,000 because he had not appeared and given evidence as to his personal feelings, etc.

The plaintiff argues it was significant to note that the Court (both the Supreme Court and the Court of Appeal) made no distinction in awards it made - that Pohiva was a Member of Parliament or that Moala was an editor and 'Akau'ola was his assistant. It treated them as equals. It is significant no account was taken of their income or salary- that each earned.

What is of greatest significant in that case was that the several aggravating factors which the Court of Appeal enumerated, as summarized above, increased the rate from $800 to $1200 per day. The plaintiff argues that before the aggravating factors were included in the assessment, and the rate of $800 per day was found to be reasonable, it is respectfully submitted that it would and should be applied to any person who has been unlawfully imprisoned, unless, one would think, there are exceptional circumstances which would warrant a lesser rate, let alone a much lesser rate. It is submitted that there are no exceptional circumstances in this case which would warrant the application of a lesser rate than a rate of $800 per day.

The plaintiff argues that the present case showed a blatant disregard by the Superintendent of Prisons to the laws with regard to any trial of prisoners for prison offences and to penalties and punishment to be imposed on them.

He, without lawful authority, purported to try the plaintiff and went on and punished him by imprisoning him in the maximum security cell- well in excess of the allowable 7 days- followed by only another 7 days. Instead the evidence reveals the Superintendent of Prisons ordered- and the plaintiff was imprisoned in the cell on 12 occasions which came to a total of 1,437 and one half days! That is to say a period of nearly 4 years!

The plaintiff argues that all of these punishments were unlawful and they were in clear breach of the constitution. Clause 10 provides:

"10. No one shall be punished because of any offence he may have committed until he has been sentenced according to law before a court having jurisdiction in the case."

In consequence of those punishments, the Superintendent of Prisons purported to remove the entitlement of the plaintiff to remission of his prison sentences by one quarter. The plaintiff therefore served a total of 265 days which he should not have served-. That was unlawful and also unconstitutional. The Superintendent punished the plaintiff for offences which the Superintendent himself had unfairly tried and he convicted the plaintiff and that is contrary to due process of law.

The plaintiff claims, in his amended statement of claim the rate of damages that should be properly be paid to him should now be a rate of $800 per day, making his claim for unlawful imprisonment for a total of 326 days and the amount of damages to be paid to him is now $260,800.00.

Damages for Inhumane Punishment

The plaintiff argues when the Court of Appeal gave its judgment in the Edwards v Pohiva the case referred to above, it was not aware that Hu'atolitoli prison had imposed a worse form of punishment at the prison than the punishment it had imposed on the 3 men in that case. It never dreamed that a form of punishment imposed on the plaintiff was being imposed on other prisoners at the prison. The plaintiff gave evidence, evidence which was not rebutted, that four other prisoners had been similarly hand and leg cuffed to the "punishment pipe", they were, Saulala Lolohea from Saturday to Monday (3 days), Sione Palanite for 2 days, Tevita Lei for 2 days and Viliami Tapa'atoutai for one week.

On the occasion when the plaintiff was both hand and leg cuffed to the punishment pipe, Viliami Tapa'atoutai was hand cuffed to the maximum security cell door- so that he was standing throughout the 38 hours they were both being punished. Whereas Viliami was under the roof of the verandah, the plaintiff was cuffed by both the hands and legs to the punishment pipe — in the sun and rain and night dew and cold and left to the mercy of the mosquitoes, because he was ordered to wear only shorts and singlet.

Counsel asked how the plaintiff could swat mosquitoes that might bite him; and how would he scratch the itch which would be caused by mosquito bites chained up? Well he could not.

Counsel asked, what was the plaintiff to do about the numbness of his back, his sides, his head and other parts of his body from lying on the concrete floor especially his wrists and ankles from the cuffs being on them? Turn on the other side? Hold his hands up above the pipe to relieve the pressure of the cuffs? For how long? And then start again? What about the heat of the sun on the concrete floor? Did it heat up the concrete floor? No wonder the plaintiff said that he would try and lie on top of the pipe. But for how long? Till he's numbed on his chest? Would he then choose to endure, the numbness on his chest; or the heat of the concrete floor? All were relevant questions and answered.

The plaintiff's counsel emphasized the Prison Superintendent knew all the circumstances and that he intended the plaintiff would suffer harm. That is and was malicious and oppressive. It was torture and it was inhumane. Counsel says the plaintiff's punishment was painful and, not knowing when it would end, both prisoners decided to put an end it and to bring it to the attention of the authorities- by escaping from prison. They did escape and the authorities have since put an end to that form of punishment of prisoners.

Counsel says it must be pointed out that the "punishment pipe" had been acquired and had been imbedded into the concrete block walls at such height from the concrete floor across the sunny cell for the only purpose of cuffing the prisoners to it by the wrists and ankles. What else was the punishment pipe intended for? And the pipe was installed by the Kingdom or its servants and or its agents. Counsel says the punishment pipe had been there for some time. Surely, some other authority, other than the Prison Superintendent, was aware of its purpose. Yet, the pipe was allowed to be there and to be used for its specific purpose- of as counsel say torturing prisoners.

The court asks what about supervision by the prison Visitors as required under s 17 of the Prisons Act (Cap 36). There was no supervision. Accordingly, the plaintiff argues the defendant, the Kingdom of Tonga; vicariously approved and condoned the use of the punishment pipe and the Kingdom must therefore be held responsible. The court is aware three Prison Visitors were appointed by His Majesty's Council on the 6th October 2006 well after this event.

Counsel says this surely must sound in damages not merely to repay in some sufficient way the suffering which the plaintiff had been subjected to, but also to punish the defendant for it. Counsel says- as there has been no case like this before the Court until now. They say the Court must set an amount that loudly proclaims the despicable nature of the punishment and torture perpetrated in this case, and the abhorrence with which the Supreme Court regards that treatment.

It was submitted the sum of $20,000, consisting of both of general and exemplary damages, that is to say, a global figure of $20,000, be awarded to the plaintiff in respect of this claim, In support, of counsel's arguments counsel produced a copy of the judgment of His Honour, Justice Ford (as he then was) of 9 June 2004 in Appeals AM 8-9 of 2003. This was the judgment in respect of the appeal of the plaintiff and Viliami Tapa'atoutai against their conviction and sentence in the Magistrates' Court for escaping from the inhumane punishment described above which appeal against conviction and sentence was allowed.

In the Appeal Ford J said and I quote.

"The punishments the appellants were subjected to were both extreme and unlawful. Indeed, it is difficult to take exception with Mr. Niu's description of the suffering the two men endured as "torture." "

The Defendant's Written Closing Submissions

The defendant says the main issue in this case is what damages the plaintiff is entitled to for:

• Unlawful privation?

• Inhumane punishment?

• Unlawful incarceration?

• In this case the plaintiff claims the following: unlawful privation (by being placed in a security cell for 264 days) - $66,000.00

• Inhumane punishment (by being restrained in an unnatural position and exposed to sun, rain, dew and mosquitoes) - $20,000.00

• Unlawful imprisonment from 10/12/03 to 9/2/04 - $15,250.00

TOTAL $101,250.00 - PLUS COSTS

The plaintiff sought to amend the amount he is claiming based upon a daily rate of $800 per day. The defendant opposes that application and relies on the original amount claimed. In their response to the plaintiff's claim the defendant agrees the defendant is vicariously liable for the unlawful privation, inhuman punishment and unlawful imprisonment of the plaintiff; however, the defendant says the amounts of damages claimed for unlawful privation, inhuman punishment and unlawful imprisonment is excessive as against this particular plaintiff;

The defendant opposes the application by the plaintiff to amend his claim at a late stage to claim to $800 per day for unlawful incarceration. The defendant also says the plaintiff is not entitled to aggravated or exemplary damages as he has not claimed any of those and the plaintiff is not entitled to his full costs.

The Defendants Case

The defendant says the undisputed facts are - the plaintiff is a career criminal having a number of what they call serious convictions amongst which are offences of grievous bodily harm, dishonesty and the growing and possession of Indian hemp

• 27/03/97, 5 years imprisonment), housebreaking and theft

• 15/08/98, 3 years imprisonment, and bodily harm

• 01/06/01, 3 months imprisonment, concurrent with substantial sentence

During his incarceration the defendant says the plaintiff was also a violent prisoner. They gave examples the plaintiff assaulted a prisoner 'Isi Kali with the iron rod which was used to ring the prison bell and as a result of the assault he was put in the punishment cells on 29/01/01. Another example they cite is that Plaintiff attacked a prisoner with a sharp object and as a result he was put in the punishment cells on 20/10/99.

The defendant says during his incarceration the plaintiff was an unruly prisoner. For example,

• He was put in the punishment cells on 10/09/97 for breaking into the exhibit room and stealing marijuana and other goods.

• On 13/02/09 he was put in the punishment cells for swearing and disobeying a prison officer.

• During the various times the plaintiff was kept in the punishment cells he often requested to stay on in the punishment cells, because he was reading the Bible and was trying to change his ways and he admitted that in court.

• They say the plaintiff was put in the punishment cells, and not into solitary confinement; the defendant admits the plaintiff was put in the punishment cells without the authority of the Visiting Officers (If any existed).

• Between the 23/01/03 and 24/01/03, due to ill-discipline, the plaintiffs wrists and ankles were handcuffed to a pipe and was exposed to the sun, mosquitoes and put in an unnatural position for around 38 hours (8am, 23/01/03 to 10pm, 24/01/03).

• The Plaintiff was released only to go to the toilet and eat during the 38 hours. The defendant accepts; the plaintiff escaped from prison, at 10pm on 24/01/03 and they accept the Plaintiff returned to prison 11 days later.

• The defendants accept the plaintiff was subsequently prosecuted and sentenced by a Magistrate to 2 months imprisonment for escaping from prison. The Plaintiff appealed his conviction for escape, court records indicate he was successful and on 9 June 2004 before Ford J, (as he then was) the conviction was set aside and sentence was quashed.

A Prison Offences

Under rule 158 of the Prison Rules - made under the Prisons Act no punishment or privation of any kind shall be awarded against a prisoner except as provided for under section 241, 28,2 293 and 30 of the Prisons Act, and the Prison Rules.

Section 30 is the most relevant section.

Section 30 establishes the Prison Visiting Officers, who have the power to sit as a court to consider any allegations against a prisoner for committing a prison offence under the Prison Rules. If a prisoner is convicted of an offence under prison rules the Visiting Officers may punish the prisoner with one or any of the following punishments:

• Solitary confinement with or without reduced diet for a period not exceeding 14 days, but shall only serve 7 days at a time, and a interval of 7 days shall elapse before continuation;

• Forfeiture of marks;

• Corporal punishment;

• If a prisoner is ordered into solitary confinement, rule 160 allows a medical officer to intervene and cause any confinement to punishment cells to cease, and that the Officers will then direct to cease the confinement.

B Use of Irons

Rule 171 provides that "irons shall be used only as a means of restraint or prevention to escape, not as a punishment". Moreover, "no prisoner shall be kept in irons without having been previously examined by the medical officer". The use of irons as punishment is therefore unlawful.

C False Imprisonment

In Fainga'a v Lelea and ors [2005] TOSC 5; C 38/2003 (6 January 2005), the former CJ Webster outlined the law of false imprisonment in Tonga as follows:

• The law on false imprisonment was recently reviewed (in particular damages for it) comprehensively by the Court of Appeal in Edwards v Pohiva (Cross Appeal) [2003] TOCA 8; CA 01 & 102003.

• The Court of Appeal accepted that the law relating to the tort of false imprisonment is well-established, being a form of trespass to the person. As stated by Lord Bridge in Hague v Deputy Governor of Parkhurst Prison [1990] UKHL 8; [1991] 3 All ER 733,743 (HL):

• "The tort of false imprisonment has two ingredients: (a) the fact of imprisonment and (b) the absence of lawful authority to justify it."

• It is a tort of strict liability there is no onus on a Plaintiff to prove that the imprisonment was unlawful or malicious. Once the Plaintiff establishes the fact of imprisonment, that is sufficient to make out a prima facie case and the onus then falls on the defendant to prove that the detention was lawful. It may be so, for example, if it is pursuant to an order of the court or the exercise of statutory powers.

NB. An action for false imprisonment will succeed or fail depending on whether the defendant can, as a matter of law, justify the detention or imprisonment. In Fainga'a, Webster CJ also set out the principles to be used when awarding damages as follows:

The law attaches supreme importance to the liberty of the individual and if he or she suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage: Murray v Ministry of Defence [1988] UKHL 13; [1988] 2 All ER 521,529 (HL).

In Edwards v Pohiva the Court of Appeal accepted that for the assessment of general and aggravated damages the relevant basic principles are now well established, having been comprehensively analyzed in 2 recent English cases. First in Thompson v Commissioner of Police of the Metropolis [1997] EWCA Civ 3083; [1997] 2 All ER 762 (CA), and then more recently, by both the Court of Appeal, (Lord Woolf MR) and the House of Lords in R v Governor of Brockhill Prison ex parte Evans (No 2) [1998] EWCA Civ 1042; [1998] 4 All ER 993 (CA) & [2001] 2 AC 19 (HL). The House of Lords upheld the approach outlined by Lord Woolf in the Court of Appeal, which Lord Hope (at 40) described as a guideline 'in an area where guidance was almost entirely lacking'

In calculating the proper compensation for loss of liberty the analogy with personal injury cases is closer than cases of defamation and the compensation is for "something which is akin to pain and suffering". In relation to aggravated damages a penal element can properly be involved, however "aggravated damages ... are primarily to be awarded to compensate the plaintiff for injury to his proper pride and dignity and the consequences of being humiliated": Thompson (at 771-2 per Lord Woolf MR).

The principles are then summarized in the form of the guidance to be given to a jury (p 774-7):

"(1) Save in exceptional situations ... damages are only awarded as compensation, and are intended to compensate the plaintiff for any injury or damage which he has suffered. They are not intended to punish the defendant.

(2) As the law stands at present compensatory damages are of two types.

(a) Ordinary damages which we would suggest should be described as basic, and

(b) Aggravated damages.

Aggravated damages can only be awarded where they are claimed by the plaintiff and where there are aggravating features about the defendant's conduct which justify the award of aggravated damages. (... in the rare case where special damages are claimed in respect of some specific pecuniary loss this claim should be explained separately.)

(3) ... the basic damages will depend on the circumstances and the degree of harm suffered by the plaintiff ...

The defendant argues, in a straightforward case of wrongful arrest and imprisonment the starting point is likely to be about £500 for the first hour during which the plaintiff has been deprived of his or her liberty. After the first hour an additional sum is to be awarded, but that sum should be on a reducing scale so as to keep the damages proportionate with those payable in personal injury cases and because the plaintiff is entitled to have a higher rate of compensation for the initial shock of being arrested. As a guideline we consider, for example, that a plaintiff who has been wrongly kept in custody for 24 hours should for this alone normally be regarded as entitled to an award of about £3,000.

For subsequent days the daily rate will be on a progressively reducing scale. (These figures are lower than those mentioned by the Court of Appeal of Northern Ireland in Oscar v Chief Constable of the Royal Ulster Constabulary [1992] NI 290 where a figure of about £600 per hour was thought to be appropriate, for the first 12 hours. That case, however, only involved unlawful detention for two periods of 30 minutes in respect of which the Court of Appeal of Northern Ireland awarded £300 for the first period and £200 for the second period. On the other hand the approach is substantially more generous than that adopted by this court in the unusual case of Cumber v Chief Constable of Hampshire Constabulary (1995) Times, 28 January in which this court awarded £350 global damages where the jury had awarded no compensatory damages and £50 exemplary damages.)

The figures which the court has identified so far are provided to assist the judge in determining the bracket within which the jury should be invited to place their award. We appreciate, however, that circumstances can vary dramatically from case to case and that these and the subsequent figures which we provide are not intended to be applied in a mechanistic manner. Aggravating features can include humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest or the prosecution which shows that they had behaved in a high-handed, insulting, malicious or oppressive manner either in relation to the arrest or imprisonment or in conducting the prosecution. Aggravating features can also include the way the litigation and trial are conducted.

The jury should then be told that if they consider the case is one for the award of damages other than basic damages then they should usually make a separate award for each category of damages. We consider that where it is appropriate to award aggravated damages the figure is unlikely to be less than £1,000. We do not think it is possible to indicate a precise arithmetical relationship between basic damages and aggravated damages because the circumstances will vary from case to case. In the ordinary way, however, we would not expect the aggravated damages to be as much as twice the basic damages except perhaps where, on the particular facts, the basic damages are modest. It should be strongly emphasized to the jury that the total figure for basic and aggravated damages should not exceed what they consider is fair compensation for the injury which the plaintiff has suffered. It should also be explained that if aggravated damages are awarded such damages, though compensatory and not intended as a punishment, will in fact contain a penal element as far as the defendant is concerned. Finally the jury should be told in a case where exemplary damages are claimed and the judge considers that there is evidence to support such a claim, that though it is not normally possible to award damages with the object of punishing the defendant, exceptionally this is possible where there has been conduct, including oppressive or arbitrary behaviour, by police officers which deserves the exceptional remedy of exemplary damages.

It should be explained to the jury: (a) that if the jury are awarding aggravated damages these damages will have already provided compensation for the injury suffered by the plaintiff as a result of the oppressive and insulting behaviour of the police officer and, inevitably, a measure of punishment from the defendants point of view; (b) that exemplary damages should be awarded if, but only if, they consider that the compensation awarded by way of basic and aggravated damages is in the circumstances an inadequate punishment for the defendants; (c) that an award of exemplary damages is in effect a windfall for the plaintiff and, where damages will be payable out of police finds, the sum awarded may not be available to be expended by the police in a way which would benefit the public (this guidance would not be appropriate if the claim were to be met by insurers); and (d) that the sum awarded by way of exemplary damages should be sufficient to mark the jury's disapproval of the oppressive or arbitrary behaviour but should be no more than is required for this purpose. In an appropriate case the jury should also be told that even though the plaintiff succeeds on liability any improper conduct of which they find him guilty can reduce or even eliminate any award of aggravated or exemplary damages if the jury considers that this conduct caused or contributed to the behaviour complained of.

The figures given will of course require adjusting in the future for inflation ... In giving guidance for aggravated damages we have attached importance to the fact that they are intended to be compensatory and not punitive although the same circumstances may justify punishment. In deciding upon what should be treated as the upper limits for exemplary damages we have selected a figure which is sufficiently substantial to make it clear that there has been conduct of a nature which warrants serious civil punishment and indicates the jury's vigorous disapproval of what has occurred but at the same time recognizes that the plaintiff is the recipient of a windfall in relation to exemplary damages.

As punishment is the primary objective in this class of case it is more difficult to tie the amount of exemplary damages to the award of compensatory damages, including aggravated. However, in many cases it could prove a useful check subject to the upper limits we have identified if it is accepted that it will be unusual for the exemplary damages to produce a result of more than three times the basic damages being awarded (as the total of the basic aggravated and exemplary damages) except again where the basic damages are modest."

The Tonga Court of Appeal accepted those principles in Edwards v Pohiva. Expanding on this in the Court of Appeal in London in Brockhill Prison, Lord Woolf (at 1005) noted:

• "...there can be two elements to an award of damages for false imprisonment; the first is compensation for loss of liberty and the second being the damage to reputation, humiliation, shock, injury to feelings and so on which can result from loss of liberty."

• and he went on to give more guidance that it was right to use a global approach in this type of case (at 1005):

• "We recognize that it is possible to work out a daily, weekly, or monthly figure from this amount for the approximately 2 months extra imprisonment of this case but we discourage such an exercise. No 2 cases are the same. The shorter the period, the larger can be the pro rata rate. The longer the period, the lower the pro rata rate should be.

Submissions

The defence says the claim for unlawful privation is excessive based on the following grounds:

(1) The plaintiff was a violent prisoner, and thus he was a threat to other prisoners and prison staff;

(2) The plaintiff was an unruly prisoner in deciding not to obey prison rules, the only reasonable option available to the staff was to isolate the threat from the plaintiff- to separate him from the prisoners and to put him in the punishment cells where he could be isolated and not pose any further threat;

(3) These types of situations required immediate and strict action in order to avoid a further life-threatening situation;

(4) The Prison Visiting Officers system was not functioning. (The court asks was it operational)

(5) The plaintiff was in the punishment cells on 12 occasions as listed by the Plaintiff, but there are some mistakes as accepted by the Plaintiff in cross-examination:

Incident No. 1 - should be 410 days, rather than 440 days

Incident No. 2 - should be 147 days, rather than 153 days

Incident No. 5 - should be 494 days, rather than 474 days

Incident No. 9 - The escape was on 24/1/03, not 24/1/04

The total number of days should be 1,422 days, and not 1,437 days.

• On various occasions the Plaintiff admitted he requested himself to be kept in the punishment cells so he could change his behaviour to enter Sia'atoutai Theological College, which he did attend for some time.

• The Plaintiff was put in the punishment cells and not into solitary confinement.

The claim for inhumane punishment is excessive and this is based on the following grounds:

• This form of restraint was used to restrain the Plaintiff who was a very violent and uncontrollable prisoner at the time, because he had shaken the iron bar door of the cell to the point it was going to come off.

• At that time the Plaintiff was in the punishment cells because he was part of a group of prisoners assigned to work at the Royal Palace in Nuku'alofa and he escaped, and he was later found at Vaiola Hospital. He was thus put in the punishment cells as a form of restraint from further escapes. (Incident- 7 and 8).

• The Plaintiff was not restrained at all times, but was released to have meals and also when he wanted to go to the toilet.

• There was no evidence to indicate, nor was there any cause to believe that the Plaintiff would incur any medical problems if he was to be restrained with the irons in the form that he was restrained, and the Plaintiff did not suffer such and has not claimed that he suffered any medical problems as a result of the form of restraint.

• The restraint was ordered because it seems the only form of restraint available to stop the Plaintiff from the prolonged shaking of the iron bar door.

• The circumstances and the behaviour of the Plaintiff justified the restraint at the time.

• There is no evidence that there was an intention to leave the Plaintiff in that form of restraint for an indefinite time period.

This case is comparable to the case of Nifai Tavake v Kingdom of Tonga CV 296/07 (Unreported, 16 December 2006, Ward CJ) where the plaintiff in that case was handcuffed in the cells of the Central Police Station with his hands to his back for six days without ever being released. He was however assisted by fellow prisoners for comfort and also taken to the toilet, and not exposed to the sun. He was awarded $1,500 for the assault. The plaintiff in that case has not appealed.

The claim for unlawful incarceration is excessive

This is based on the following:

• The Plaintiff is claiming unlawful incarceration after he was sentenced to imprisonment for escaping from prison.

• The Plaintiff served the extra two months as a result of the Magistrate's Court sentence on the Plaintiff for escaping.

• Although the Supreme Court later quashed the conviction and sentence, before then, the Plaintiff was serving a lawful sentence.

• It should not be the fault of the Defendant that the Plaintiff did not appeal earlier before his extra sentence was served.

The Plaintiff is not entitled to damages of $800 per day.

This is based on the following:

• The assessment of the damages a person is entitled to for unlawful imprisonment depends on each case and its circumstances.

• The decision in Edwards v Pohiva and ors, [Tonga LR] 231 regarding the amount of damages awarded for the plaintiffs in that case for unlawful imprisonment was particular to the persons unlawfully incarcerated in that case. That case dealt with public figures, with employment and who suffered different unlawful incarceration.

• With respect, it would be an absurd application of the law if the decision in Edwards is interpreted and taken to be applied to each case of unlawful imprisonment, and as a 'one size fit all' precedent.

• The defendant argues there have been other unlawful imprisonment cases since Edwards where the Supreme Court has not applied the $800 per day rate for unlawful imprisonment.

• Nifai Tavake v Kingdom of Tonga, CV 296/07 (Unreported, 16 December 2008 Ward CJ): the Chief Justice awarded $2,950 for six days imprisonment after the 16/11 riots;

• Faite Fainga'a v Lelea and ors, CV 38/03 (Unreported, 6 January 2005, Webster CJ): the former Chief Justice Webster awarded $200 for 10-15 minutes unlawful imprisonment by PC Lelea, and $400 for one hour of unlawful imprisonment by PC Paasi.

The defendants submits it was never the intention of the Court of Appeal that the rate used in Edwards be applied as a 'one size fit all' precedent, because it never said so in the judgment. The defendant argues the plaintiff was unemployed, with no constant source of income, only earning his living from working his plantation, and not to mention was a serious criminal offender. They say the plaintiff is not even entitled to damages of $250 per day due to his personal circumstances. They say the plaintiff is entitled to around $100 per day- or even less than that.

E. Damages in this case is sought on the basis of vicarious liability

The defendant is sued as the employer of those who were responsible for the unlawful treatment of the plaintiff. The prison officers responsible for the treatment of the plaintiff are not being sued separately. The defendant says they should not be fully responsible for the actions of the prison officers who were responsible for this unlawful behaviour.

F. The Plaintiff is not entitled to aggravated or exemplary damages

This is based on the following: The Plaintiff has not claimed aggravated damages. The Plaintiff has not entitled exemplary damages. There are no grounds to award aggravated or exemplary damages against the Defendant on a vicarious liability basis.

G. The Plaintiff is not entitled to his full costs

This is based on the following: The Defendant has always accepted liability from the start and was willing to settle the case at the start. The Plaintiff however sought judgment by consent before Counsel could seek final confirmation and approval of the settlement from His Majesty's Cabinet, and thus delayed the resolution of this matter. Counsel was then directed to pursue an assessment by the Court of the appropriate damages to be awarded, as a matter of transparency. They say the delays in resolution of this case are not entirely the fault of the Defendant.

H. The issue of Consumption Tax

The defendant argues it is inappropriate and not in accordance with the Consumption Tax Act 2005 for the defendant in a civil case, if ordered to pay costs, to also pay consumption tax because the defendant is not receiving a taxable service from the plaintiff or his counsel. Moreover, they say consumption tax should be paid by the Plaintiff to his Counsel. It is not the Defendant's problem if the Plaintiff cannot pay consumption tax to the Plaintiffs Counsel. The Plaintiff is the proper person to pay consumption tax because he is receiving a taxable service from his Counsel.

The Defendant seeks the following orders from the Court:

• That an appropriate amount of compensatory damages be awarded for the unlawful privation, inhumane punishment and unlawful incarceration;

• That no aggravated damages be awarded against the Defendant;

• That no exemplary damages be awarded against the Defendant;

• That the Plaintiff be awarded only partial costs, without consumption tax;

Analysis

The court has had the benefit of receiving very comprehensive written submissions from both parties to this suit; for which I am grateful.

Because of the importance of this particular case, most of counsel's submissions have been incorporated into this my Judgment. I have also had the benefit of reading the judgment of my brother Judge FORD J (as he then was) in case number AM8-9 of 2003 (Tapa'atoutai anor v Police [2004] Tonga LR 108):- which judgment directly affected this particular plaintiff- and that judgment was delivered on June 2004 nearly five years ago.

I wish to place on record- I consider the treatment of this particular plaintiff by the defendant's servant and agents on the date in question- as barbaric to say the very least.

The plaintiff's treatment reminds me of the type of treatment, metered out to men and women - who were detained in the various prisoner of war camps during the last world war. It also reminds one of reports on the conditions and treatment of people in Stalin's Gulags' and of the inhumane treatment of POWS in North Vietnam.

I find it quite reprehensible to have heard evidence that the defendant's servants and agents- sought fit to chain this inmate by his hands and his feet to an iron pipe at the prison - so the victim was forced to lay in the sun- frilly exposed to mosquitoes, rain and the like: - for hours on end- and this was done illegally.

That is and was inhumane and it is totally unacceptable in any civilized - christian society

There can be little wonder the plaintiff (together with another inmate) decided to escape from prison. To the plaintiff's credit, whilst the prisoners were on the run, they decided they would write to the then Chief Justice and inform him of their plight. When they wrote and delivered their letter to the then Chief Justice the plaintiff surrendered- AND THAT IS TO THEIR CREDIT (Ford J's judgment)

Upon surrendering to custody the plaintiff was charged with escaping from prison. He was subsequently convicted by a Magistrate and given an additional sentence of two months imprisonment. The plaintiff appealed against his conviction for escape- arguing duress. He subsequently won his appeal against both conviction and sentence.

That said however- it must also be said on behalf of the defendant - their servants and agents- the plaintiff has not helped himself by his behaviour and his conduct whilst he (the plaintiff) was lawfully detained in prison. The plaintiff can hardly be described as a model / or even as a cooperative prisoner- who was well deserving of remission. The evidence revealed whilst detained in prison- and detained under a lawful sentence; imposed by a duly established and constituted court of law- the plaintiff appeared to be a constant source of trouble to the authorities.

More importantly- and of great concern to the Authorities in maintaining any semblance of order inside the prison, - the plaintiff is said to have caused trouble for and, towards fellow inmates. Undisputed evidence revealed he assaulted other prisoners on occasions using weapons. He was also abusive to the prison staff. The defendant argues- strongly how would prison staff be able to deal effectively with an unruly and violent prisoner in this type of scenario, and of necessity at the same time maintain proper order?

Prison Visitors- Under our system of justice here in Tonga, Prison Visitors (P.V's) are responsible for punishing prisoners who offend against the Prison Rules and Regulations, during their sentence. PV's are provided for under the Prison Act and the Prison Rules and Regulations. When appointed Prison Visitors have a duty to visit prisons on a regular basis, and look into all complaints concerning inmates. Prison Visitors are empowered to award punishment where necessary but always working under the law.

I have been told the Prison Visitors system was not functioning at the time of this suit; the court asks; why was the Prison Visitor system not in place? The court of its own volition obtained from the Ministry, a copy of a record indicating three named prison visitors were appointed by HM Cabinet on the 8th October 2006. This means the three current PV's were appointed on a date after this particular incident. So it is also fair to say the plaintiff cannot have been dealt with by duly appointed PV's under the Prison Act for any unlawful acts he is alleged to have committed whilst he was detained in prison serving his sentence.

Thus I must find as a fact any punishments / and or confinements awarded against the plaintiff, ---were in fact unlawful.

False Imprisonment, The tort of false imprisonment has two ingredients:

(a) The fact of imprisonment and

(b) The absence of lawful authority to justify it

There can be no dispute the plaintiff was lawfully imprisoned in the first place and that finding must also extends to the sentence of the Magistrate for his escape- the sentence was subsequently overturned on Appeal by Ford J.

In a case such as this there is no onus on a Plaintiff to prove that the imprisonment was unlawful or malicious. Once the Plaintiff establishes the fact of imprisonment, that is sufficient to make out a prima facie case and the onus then falls on the defendant to prove that the detention was lawful. Upon hearing all the evidence adduced in this case, I find as a fact the defendant was lawfully imprisoned and whilst imprisoned for good behavior he is entitled to remission in accordance with Prison Rules in Force at the Time:-

• BUT REMISSION IS - AND ALWAYS WILL BE DEPENDANT UPON AN INMATES GOOD BEHAVIOUR. IT WOULD BE ABSURD TO THINK OR HOLD OTHERWISE.

• THE EVIDENCE REVEALS THERE WAS NO PRISON VISITOR(S) INVOLVED IN DISCIPLNG THIS PLAINTIFF.

• THE SUPERINTENDENT OF PRISONS TOOK IT UPON HIMSELF TO DO SAME AND THAT IS AND WAS UNLAWFUL.

Damages

"(1) Save in exceptional situations

Damages are awarded as compensation, and are intended to compensate the plaintiff for any injury or damage which he has suffered.

They are not intended to punish the defendant who in this case is vicariously liable for his servants and agents.

(2) As the law stands at present compensatory damages are of two types.

(a) Ordinary damages which we would suggest should be described as basic.

(b) Aggravated damages.

In this particular case there can be no claim for Aggravated damages- because Aggravated Damages can only be awarded where they are claimed by the plaintiff and where there are aggravating features about the defendant's conduct which justify the award of aggravated damages.

(3) Basic damages will depend on the circumstances and the degree of harm suffered by the plaintiff ... Which in this case I find was significant.

Conclusion

I have considered all that has been said in this case. I have had sight of the correspondence between the parties and in particular a letter dated 6th April 2006 from the Solicitor General and an application for judgment dated 28th November 2006, which was considered well over three years ago.

By his Application for Judgment dated 28th November 2006 Mr. Niu set out certain terms which had been discussed at length between the parties- that is to say between the Crown and the Plaintiffs counsel - and a Minister of the Crown.

• Mr Niu asked Judgment be given in this action in favor of the plaintiff against the defendant in the sum of $53,770.00 inclusive of costs and consumption tax payable on the costs

• Counsel for the plaintiff wrote to the Hon Attorney General on 28th September 2006 to seek agreement to the settlement on behalf of the Government.

• The Solicitor General wrote on the 23rd October 2006 and advised the matter had not been lawfully settled because Mr. Kefu had advised the plaintiff's solicitor that offer of settlement would be subject to both Ministerial and Cabinet approval.

• That Governments practice is that Cabinet gives the final approval for settlement, subject to the Hon Attorney Generals approval and that Government would like to pursue the matter to court for quantum only, and for the court to decide what amount should be awarded

• They say the Government is not liable for payment of consumption Tax on costs.

• They say Government accepted if there was to be a trial then there will be further costs, which they will have to pay to the plaintiff.

Possible Mediation Orders Pursuant to Order 45 RSC

• Rules for the practice and procedure of the Supreme Court made pursuant to the Supreme Court Act (Cap 10) came into effect 01 November 2006.

• In our view perhaps this matter should have been mediated and not have had to come to court. It is a classic case for mediation.

Accordingly

I have also looked at the plaintiffs whole conduct during the time he was incarcerated and serving a lawful sentence for serious crimes. I have in particular considered his conduct towards other inmates, and towards prison staff.

As I said before: - the plaintiff has not helped himself and there is no doubt in my mind he brought a lot of trouble upon himself- and the evidence also revealed he appears to enjoy his own solitary confinement.

I have also looked at the Defendants reluctance to settle this case out of court by way of mediation and the fact the Crown are vicariously liable for the torts of its servants and agents, and that the main protagonist the relevant Superintendent of Prisons was not included in this suit.

I have also considered Mr. Niu's request to use a much higher rate of damages awarded recently than that initially claimed, and I have taken these higher rates into account when considering quantum.

Accordingly

• I make the following orders in the interest of justice.

Order

• The Plaintiff will receive by way of compensation for Unlawful Privation a payment at the rate of $200 per day for 284 days- making a total payment for Unlawful Privation of $56,800.00.

• For Inhumane Punishment the plaintiff will receive the sum of $17,500.00 as payment

• For Exemplary Damages the plaintiff will receive the sum of $7,000.00 as payment

• The Plaintiff is awarded his full costs- including an order for the payment of Consumption Tax - by the Defendant

• THE AWARDING OF FULL COSTS AND THE PAYMENT OF CONSUMPTION TAX IS ORDERED BECAUSE IN THIS CASE "THE BUT FOR TEST" APPLIES TO THE FACTS OF THIS CASE.

In closing I would like to say; the Judiciary hopes never to see a case like this again. I also stress - Independent Prison Visitors are an essential part of any protection mechanism for inmates detained in prison. However any such system can operate only if Prison Visitors are properly funded, resourced and trained.

Finally, I wish to thank counsel for their attendance and I thank them both for their very comprehensive written submissions tendered on behalf of their respective clients.