Fatongiatau v Hausia [2001] TOSC 34; C 0198 2000 (9 August 2001)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

NO.C.198/2000

BETWEEN:

SIONE FATONGIATAU
Plaintiff

AND:

1. LOLESIO HAUSIA
2. MINISTER OF POLICE
3. KINGDOM OF TONGA
Defendants

COUNSEL: Mr T. Fifita for Plaintiff
Ms L. Simiki for Defendants

Date of Hearing: 3 August 2001
Date of Judgment: 9 August 2001

JUDGMENT

This is a claim for damages for assault for which the defendants have admitted liability. However, the parties have failed to come to an acceptable settlement and so the court has now to determine the appropriate quantum of damages.

The plaintiff was, at the relevant time, serving a sentence of imprisonment and the first defendant was, and apparently still is, a serving police officer.

In March 1999, the plaintiff was taken one morning from the Fire Station where he was serving his sentence to the Central Police Station for questioning about his alleged involvement in some offences.

Once at the police station, he was taken to a room where he was beaten by the first defendant, Hausia, with a stick about a metre long and some 10 centimetres in diameter. Other officers were present and did nothing to stop what was clearly an unlawful assault. The plaintiff told the court that he was struck about 10 times with some force.

He was then taken to the cells and, once there, made a complaint to another officer. That officer said nothing to the plaintiff but must have told Hausia because, shortly afterwards, Hausia again appeared and said that if the plaintiff ever complained again, he would kill him. He punched the plaintiff, knocking him to the ground and then punched him on the jaw whilst he lay there. The officer then threatened the plaintiff with a knife repeating his earlier threat.

During all this time, the plaintiff was extremely frightened and, as a direct result, made an untrue confession on the basis of which he was charged. However, the prosecution offered no evidence before the trial court.

Very late the next day the plaintiff was taken to see a doctor. His findings were that there were a number of soft tissue injuries consistent with beating and/or punches. He noted tenderness and bruising to the right buttock and lateral thigh, a tender spot on the left elbow, tender muscles and soft tissues overlying the left and right jaws and some bruises to the mid two fingers of the right hand.

It is clear these injuries were the result of a nasty attack but were not in themselves serious and they will have no long lasting effect.

The plaintiff has claimed damages as follows:

Compensation for assaults $7500.00

Discomfort and emotional distress $2000.00

Exemplary damages $7000.00

A further claim for unlawful imprisonment was, very sensibly, not pursued.

I note with gratitude the high standard of submissions and research by both counsel. There is no unusual principle involved in this case but it is always important to consider previous awards by this Court in similar cases. Counsel have supplied me with a very helpful selection of earlier cases. I do not cite them but I have considered each and, it must be said, distinguished many.

In assessing the compensatory damages, I do not consider this is a case where there should be a separate award for discomfort and emotional suffering. They are all part of the same overall incident and I take them into account as part of the seriousness of the assaults.

As I have stated the assaults were nasty but did not cause particularly serious injury. What makes them serious is the fact that they were carried out by a police officer whilst the plaintiff was in custody and, as a result, entirely at his mercy. It is an extremely sad reflection on the police as a whole that there have been so many similar cases over the last few years - a point that is reinforced by the obvious way the other officers present must have felt it so commonplace that they did not consider it necessary to intervene. When the plaintiff tried to complain to another officer that man, instead of taking action over the complaint, reported it to the plaintiff's assailant so further violence was added.

Counsel for the defendants has pointed out that the accused was a serving prisoner with previous convictions and so there can be less consideration of the damage to his feelings and reputation than would have been the case if he had been of good character. I accept that principle but I do not consider it applies in this case. There was no claim by the plaintiff for such damage to his reputation. He claims for his injuries and the fear and emotional injury that inevitably accompanies an attack whilst the victim is in the custody of the attacker.

Both counsel have, very properly, emphasised that they do not in any way condone such conduct. This was a case of totally improper conduct by a police officer. It was effectively authoritative bullying and it showed a total lack of regard both of the law and decency. It was committed on a man who, because he was in their custody, was effectively defenceless. That is the seriousness of the case.

The fact the injuries were relatively minor reduces the damages but it is not the most important consideration in the assessment. For the assault, the pain and the suffering, I consider an appropriate award in this case is $3000.00

The plaintiff also claims exemplary damages on the basis that the defendant's actions were oppressive, arbitrary or unconstitutional conduct by a police officer. There can be no doubt that exemplary damages are called for in such a case. It is in those that the court can express its feelings on the seriousness of the conduct rather than compensation for the harm caused.

As I have stated, the first defendant acted with blatant disregard for the law and rules of police conduct. He did it in the presence of other officers clearly confident that they would not intervene. He then used extra threats to try and ensure his actions would not be reported.

This was totally unjustified and exactly the sort of conduct this Court has been condemning in increasingly stern terms over the last decade. Yet it still continues and, each time it does, the reputation of what should be a proud police force becomes more tarnished. I consider an appropriate measure of that is demonstrated by an award of $4000.00 exemplary damages.

The plaintiff shall have his costs to be taxed if not agreed.

I direct that a copy of this judgment be sent to the Police Commander so he may consider whether a man such as this should continue to serve in the Police.

Nuku'alofa: 9^th August, 2001

CHIEF JUSTICE