Fetu'u'aho v Vete [2001] TOSC 35; C 0902 & 0954 2000 (26 September 2001)

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

C.902 & 954/00

BETWEEN:

SOSEFO FETU'U'AHO
Plaintiff;

AND:

1. NUKU VETE
2. SIMIONE MOKENA
3. KEPU FAKAANGA
4. MINISTRY OF POLICE
5. KINGDOM OF TONGA
Defendants

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Mr S.T. Fifita for plaintiff
Miss S. Tupou for defendants

Hearing: 21 September 2001
Judgment: 26 September 2001

JUDGMENT

This is a claim for damages for assault and false imprisonment. The defendants have admitted liability for assault and the plaintiff has abandoned the claim for false imprisonment. The parties were unable to reach agreement on the appropriate level of damages and there has been a hearing to ascertain the appropriate award.

The first three defendants are serving police officers and the claim arises from an assault that occurred on 11 October 2000 after the plaintiff had been arrested following a traffic accident.

That evening, the plaintiff, despite having no driving licence, had been driving a vehicle belonging to his employer. As he overtook another vehicle, he struck two children. He did not stop. He told the court he was scared he might be attacked by the people around but he did not attempt to go to the police. Instead, after fleeing the scene, he abandoned the vehicle and ran away. He told the Court he realised the children were injured (he stated in evidence that he had run over them) but he did not attempt to assist them nor to report it nor, subsequently, to visit them in the hospital or to try and find out how badly injured they were or, indeed, whether they were even alive.

What he did take the time and trouble to do, subsequently, was to instruct a lawyer to bring a private prosecution against the officers who assaulted him and then, following the conviction of two of them, to bring this claim for damages.

Shortly after he had run away from the accident, the plaintiff heard that the first defendant was looking for him. He went to him and the officer, no doubt incensed by the plaintiff's conduct, attacked him. He admits to eight punches or slaps to the plaintiff's head and chest. Understandable though his anger may be, the use of violence was totally wrong.

Afterwards, the plaintiff was taken to the police station. On his arrival, the third defendant admits that he angrily asked the plaintiff whether he would like it if someone ran over him until the faeces came out and then drove away not stopping to help. He then suggested "I should hit you until the faeces comes out".

Shortly after this, the second defendant arrived at the police station and entered the charge room where the plaintiff was being detained. This defendant was the senior officer present in the police station. He told the plaintiff to stand up and, as he was doing so, slapped him on the side of his head.

The attack by the first defendant had left the plaintiff with a sore mouth, headache, dizzy and aching over his whole body. The blow by the second defendant aggravated the headache. Three days later, the plaintiff saw a doctor who noted superficial injuries only. The plaintiff told the court he was unable to do his usual work for a week and was unable to eat hard food for one and a half weeks. There are no lasting physical results.

The assault was nasty but it was not particularly serious in terms of the degree of violence found in many cases of assault. What makes it serious is that it was inflicted by police officers on a man in their custody. This was a blatant disregard of the law and of their duty as police officers. However slight the injuries caused, however understandable their anger at the plaintiff's conduct, the officers had no right to resort to any violence either physical or verbal on a person they had arrested and were holding in their custody. The nature of police powers of arrest and detention mean that they have considerable power and it is up to every officer to ensure that it is not abused. It is hard to overstate the fear and helplessness felt by anyone in such a position.

Although the violence used by the second defendant was slight, his position as the senior officer present meant he should have stopped any improper conduct by the other officers. Whatever had occurred before he arrived, his arrival should have ensured no further impropriety occurred. Instead, he added his own violence. I regard his conduct as the most serious for that reason.

Apart from the abandoned claim of unlawful imprisonment, the plaintiff claimed a total of $9,800.00 general damages, $2,000.00 aggravated damages and $7,000.00 exemplary damages. Such figures are out of all proportion to the facts of this case and bear no relationship to awards in previous cases in this jurisdiction. This court has stated before that claims for vastly inflated sums make it less likely any settlement will be reached and result in unnecessary court hearings. It is counsel's duty to his client and to the court to give realistic advice about the likely level of damages his client might receive. In his final submission, counsel for the plaintiff reduced his total claim for general damages by $3,800.00 on the basis of the limited admissions by the defendants but otherwise stood by his claim.

Both counsel have cited a number of earlier cases of police violence. They suggest a somewhat inconsistent tariff in such cases but consistently acknowledge the impropriety of such conduct. Ten years ago the court's attitude was stated by Martin CJ in 'Akau'ola v Fungalei and others (1991) Tonga LR 22:

"A number of police officers still appear to believe that they have the right to exercise discipline over the public as a parent would over a child - by physical beating. By now the message from this court should be loud and clear. Such abuse of authority will not be tolerated and where it is proved to have occurred it will be stamped on with increasing severity until the bully boy in uniform no longer roams our streets."

That principle, frequently repeated in the courts, remains unchanged.

I pass now to the appropriate level of compensatory damages. Although there was a separate claim for mental anguish, fear, pain, distress and inconvenience, they form part of the total harm and I include them in that consideration. As I have stated, the actual injuries were minor but the element of fear that arose from the fact that the plaintiff was in police custody adds considerably to the harm suffered.

The physical injuries were all the result of the attack by the first defendant. It is easy to understand his feelings following the plaintiff's lack of concern for the children he had struck but it is no justification for the violence. Counsel for the defendants has suggested that the damages should be reduced on the grounds of provocation. I am not sure I can accept that in cases of police violence against persons in their custody, provocation is ever a reason for reducing the award but, even if I am wrong about that, I do not consider there was provocation in this case.

Provocation is conduct by the plaintiff that causes the defendant to lose his self-control; conduct that could be said to suggest he has "asked for" the violence he suffers. It must in some way be directed at or directly involve the person claiming to have been provoked. In this case, the suggested provocation was the original offence, the plaintiff's attitude to it and his conduct prior to his arrest. I do not accept that the assault by the first defendant was the result of provocation by the plaintiff. It was the result of the first defendant's anger at the plaintiff's earlier behaviour. As a police officer, he should not have allowed such feelings to interfere with his duty. Sadly, he did.

I consider a proper award of compensatory damages against the first defendant for that assault is one of $500.00.

The angry and threatening words of the third defendant stated, as they were, in the already hostile atmosphere in the police station at that time clearly added to the plaintiff's fear as I am satisfied was the third defendant's intention. However, there is no suggestion that he did anything to give effect to his threat. I order that he shall pay $200.00.

The part of the second defendant is, as I have stated, more serious despite the minimal force of a single blow. He was the senior officer and his appearance should have given the plaintiff reason to hope that the violence and threats he had already received would cease. His despair, when instead of stopping it, that senior officer added to it, must have been profound. The second defendant must pay $500.00 compensatory damages.

There is a separate claim for aggravated damages. Such damages may be awarded in actions for assault where the manner in which the assault was committed was such that it involved an additional injury to the victim's dignity and pride. There is no such separate element in this case and that part of the claim fails.

The claim for exemplary damages has a firmer foundation. This clearly falls within the first of the two categories stated by Devlin LJ in Rookes v Barnard [1964] UKHL 1; (1964) AC 1129, namely that it was oppressive, arbitrary or unconstitutional conduct by servants of the government. Any assault by a police officer on a man in his custody must fall into that category and this case is no exception. The purpose of exemplary damages is to punish the defendant for his bad conduct rather than to compensate the plaintiff for the harm he has suffered.

They are clearly called for in this case but Miss Tupou for the defendants suggests they would not be an appropriate order against the first and third defendants because they have already been ordered to pay a fine for the same incident as a result of the private prosecution brought by the plaintiff in the magistrates' court. I accept that is correct. If the purpose of exemplary damages is to punish, to make such an award now would effectively be to punish these defendants twice for the same offence. Miss Tupou cites the case of Archer v Brown (1984) 2 All ER 267 in which exemplary damages were sought against a defendant who had already been punished in the criminal courts. Peter Pain J explained at 281:

"But what seems to put the claim under this head out of court is the fact that exemplary damages are meant to punish and the defendant has been punished.... I rest my decision on the basic principle that a man should not be punished twice for the same offence. Since he has undoubtedly been punished, I should not enrich the plaintiff by punishing the defendant again."

These two defendants were punished for the exact matters over which they are now sued. It must be said that the fines imposed by the magistrate are woefully inadequate for officers who have acted in this way. I cannot avoid the suggestion that the magistrate has failed to mark the true seriousness of these assaults but, adequate or not, they have received their punishment and I will not punish them a second time for the same offence.

In the case of the second defendant, however, he has not been punished. In the magistrates' court he was acquitted. In this court he has admitted the assault. I have already made reference to his special position as the senior officer present at the time and I consider that an award of exemplary damages of $2000.00 would appropriately condemn his conduct. However, there is a further consideration

In the passage from Archer's case quoted above, the final sentence does not follow the logic of that preceding it but it does raise a point of relevance to the present case.

As I have stated, the purpose of exemplary damages is to punish the defendant. In a criminal case, any fine ordered as a punishment is paid to the State but, in a civil claim, exemplary damages are paid to the plaintiff.

I consider that the court must be entitled to refuse or reduce such an award if the result of the court's condemnation of the defendant's conduct is the enrichment of an undeserving plaintiff. This is just such a case. I have awarded the sum I consider appropriate to compensate the plaintiff for the injury he has suffered at the hands of this defendant but the shameful manner in which the plaintiff acted to try and escape the consequences of his earlier actions makes it unconscionable to enrich him to the extent of such an award. As a result, I reduce the award of exemplary damages against the second defendant to one of $500.00.

The plaintiff having succeeded in his claim should normally have his costs. However, this hearing has been necessitated by the unreasonably inflated claim. A more realistic figure may well have achieved a satisfactory settlement. The plaintiff shall have his costs incurred only up to the first admission of liability by the defendants.

NUKU'ALOFA: 26^th September, 2001.

CHIEF JUSTICE