To'ia v Leone [2003] TOSC 3; C 0738 2000 (4 February 2003)

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

C738/2000

BETWEEN:

SEMISI TO’IA
Plaintiff

AND:

1. MONITI LEONE
2. MINISTER OF POLICE
3. KINGDOM OF TONGA
Defendants

BEFORE THE HON. JUSTICE FORD

Counsel: Mr Fifita for the plaintiff and
Miss Simiki for the defendants.

Dates of hearing: 21 June 2001, 7 May and 22 Aug 2002.
Dates of written submissions: 3 October, 19 November and 6 December 2002.
Date of judgment: 4 February 2003.

JUDGMENT

Urgency has not been one of the hallmarks of this piece of litigation. Each counsel, with the consent of the other, sought various concessions from the court and the hearing meandered to a conclusion over a much longer period than the court would otherwise have liked.

The plaintiff brings the claim seeking damages for alleged false imprisonment and misfeasance in public office. He alleges that while he was going about his ordinary business as a taxi driver on 22 June 2000, he was unlawfully detained by the first defendant who was a police constable in the Traffic Department. The second and third defendants are alleged to be vicariously liable, as employer, for the actions of the first defendant. The defendants deny virtually all aspects of the claim.

The taxi the plaintiff was operating on the day of the incident belonged to 'Ana Fatai. She told the court that the vehicle had been given to her and her husband in April 2000 by some Chinese people who rented a house from her husband. Initially she had used it for private purposes and then in May 2000 she had approached the Traffic Department to have the registration changed for use as a taxi. She said that she was told by the officer who attended her that the Department had run out of number plates and so she was issued with a registration receipt, signed on the back by the officer, which confirmed that the use of the vehicle had changed from "private" to "taxi".

The plaintiff drove the taxi for Mrs Fatai during May and June. The evidence, which I accept, was that on two occasions before the day of the incident, he had called at the Traffic Department to check whether the number plates were available. They were not, but he was told that if he was stopped by the police then all he needed to do was to show them the official receipt with the officer's signature on the reverse side and, if necessary, the police could contact the officer in the Traffic Department for confirmation that the vehicle was a taxi.

Police officer, Salote Tonga, was called to give evidence for the plaintiff. She was the officer working on the public counter in the Traffic Department at the relevant time and she recalled the Department being out of number plates. She also confirmed that she had given the plaintiff the advice which he had outlined in evidence.

The plaintiff told the court that around noon on the day of the incident he was at the taxi base by Vaiola hospital. He said that he was approached by a man who had just been released as an inpatient and he asked if he could be taken to his home at Popua. The plaintiff then proceeded to drive his taxi in an easterly direction along the By-Pass road towards Popua. Just after he passed the Small Industries Centre, he noticed three police officers standing on the side of the road by a mango tree. He said that one of the officers stopped him and another officer, who turned out to be the first defendant, constable Leone, then approached him and asked about the missing registration plates for the vehicle. The plaintiff said that he produced the registration receipt and he explained to the officer that he was still awaiting plates from the Traffic Department.

The plaintiff said that constable Leone then asked him for his name and when the officer noticed that the name appearing on the back of the registration receipt was not his but 'Ana Fatai (the vehicle's owner) he accused the plaintiff of forgery and told him that he would bring charges against him and he would go to prison. It was not clear from the evidence exactly what it was that had allegedly been forged but I accept the plaintiff's account of the conversation.

The witness recounted how constable Leone had walked back to where the other two police officers were standing and then called out to him to go over to them. The plaintiff said that he did so and constable Leone subjected him to the same threats and told him that he would be charged and he would go to prison.

The plaintiff said that at that point he felt afraid and angry. He could not accept that he had committed any offence let alone a serious offence which could result in his imprisonment. He returned to his car and took the passenger to Popua. After dropping the passenger off at his home he then drove his taxi back to the same spot, parked on the opposite side of the road and he again approached constable Leone. He told the court that he was still angry but he apologised to the constable and said to him that what he had put to him about being charged with an offence and going to prison "was not sound". In cross-examination, the plaintiff said that he had apologised to the constable not because he (the plaintiff) had done anything wrong but because he was afraid of the threat that he would be sent to prison. The court accepts that explanation. The plaintiff was hoping to be able to talk the matter through with constable Leone and clarify his rights but it was clear from the constable's reaction that he was simply not interested in giving any further explanations to the taxi driver.

The plaintiff said that he then returned to his vehicle and started to drive off again when constable Leone suddenly called out to him to stop. He did so and he pulled his car into the side of the road. The plaintiff said that constable Leone then came across and "ripped” the taxi sign off the top of the car and took out the wires inside the car that connected the taxi sign to the steering column. After he did this, the constable then told the plaintiff that he could go.

The plaintiff told the court that he could tell from the constable's actions and from the tone of his voice that he was "really angry" and, for his part, the plaintiff said that he felt so nervous and afraid over the whole incident that he immediately returned the car to Mrs Fatai and told her that he never wanted to drive the taxi again. The witness was asked to elaborate on why he would not drive the taxi again. He told the court that he was afraid of what the police might do should they ever stop him again. He said that it was the threat of going to prison that really worried him.

In cross-examination, the plaintiff said that he had never been to prison before and the only time that he had previously appeared in any court was in relation to a speeding charge.

After the incident, the plaintiff saw his lawyer and then some three weeks later he had to return something to the police station, entirely unconnected with the present case, and constable Leone saw him and handed back the taxi sign. On that occasion the constable told the plaintiff that he should not have gone to a lawyer but he should have come to see him and they could have "talked about it". The plaintiff said that he was never charged with any offence in relation to the incident.

The owner of the taxi, 'Ana Fatai, gave evidence. She confirmed that she was surprised when the plaintiff arrived at her home on the day of the incident and gave her the car keys saying that he never wanted to drive the taxi again. In cross-examination, she said that the plaintiff was "shivering with fright" when he spoke to her and he told her that he was "really scared".

The plaintiff also called evidence from Siosaia Vaikaka who was the passenger on the trip from Vaiola hospital to Popua. Mr Vaikaka was a 48 -year-old officer with the Audit Department. He recalled the initial incident clearly. He described how the taxi was stopped and the constable then came across and spoke to the driver through the front passenger window. He continued (as translated):

". . . a police officer came and bent down on the side I was on and asked the driver where was his number plate. The driver told him it was already licensed but the number plate had not been issued from the Transport Department. The driver then gave him a receipt and the policeman took the receipt and looked at it and then asked the driver for his name. The driver told him his name and when he gave him his name the policeman said, ‘you're lying and you've committed forgery and I will charge you to go to prison’ and then after that the policeman walked back to where he came from and he called out to the driver to get out and to come with him."

Mr Vaikaka was a totally credible witness. He said that the constable sounded angry when he spoke to the driver. The witness told the court that he had wanted to get home from the hospital as quickly as possible but the driver was held up by the policeman under the mango tree for between 5 and 10 minutes.

At the end of the first day of the hearing, Crown counsel sought an adjournment for approximately 11 months upon the grounds that she had learned that the first defendant was on extended overseas leave and he was not expected to return to the Kingdom until May 2002. The application was consented to by counsel for the plaintiff who also sought an adjournment in order to file an amended statement of claim incorporating an allegation of "misfeasance in public office". After considering counsels' submissions, the court allowed both applications and an adjournment was granted until May 2002. When the hearing then resumed on 7 May 2002 the plaintiff concluded his case but Crown counsel advised the court that the first defendant had failed to return from the United States. He had, counsel said, resigned completely from the police force.

Miss Simiki proceeded to call evidence from the two other police officers who had been assisting the first defendant on the day of the incident.

The first officer, constable Sonasi, told the court in evidence in chief that he was using the radar device. He said that they stopped every vehicle that was either speeding or not meeting traffic requirements and they then would check registration details and plate numbers. The constable confirmed that it was he who had stopped the plaintiff's taxi. He went on:

"A. . . . the car stopped about 15 m from where we were standing. Leone (the first defendant) then walked towards the car and spoke to the driver.

17. What was the reason for stopping the car.
    
1. Leone told me to stop it because it was going northwards.
   
17. Was there anything specific on this vehicle that made you stop it?
    
1. No."
   

The witness did not overhear any of the conversation between constable Leone and the plaintiff either on the first occasion or later when the plaintiff returned to the scene but he recalled seeing constable Leone remove the taxi sign from off the top of the car.

A further adjournment was then granted in order to allow the Crown to call the second police officer, constable Lotulelei, who was overseas on the leave at the time. When the officer was eventually called to give evidence, he appeared, for some reason which was not apparent to the court, to be a particularly defensive and aggressive witness. His demeanour in the witness box did nothing to help his credibility. He was adamant that the incident happened at 1745 hours and not around midday. He was equally adamant that constable Leone took the taxi sign out from inside the vehicle and not from off its roof. I do not accept either of these propositions. To the extent that there are other conflicts between the evidence of constable Lotulelei and the plaintiff, I prefer the plaintiff's version of events.

As stated earlier, the plaintiff seeks to recover damages for the torts of false imprisonment and misfeasance in public office. The two causes of action should have been pleaded in the alternative but they were not. The defendants take no issue with the pleadings, however, and I am prepared, therefore, to treat them as alternative allegations. The principal claim is one of false imprisonment.

The law and the most recent authorities relating to the tort of false imprisonment were considered recently by this Court in Pohiva v Kingdom of Tonga (unreported) No. C.559/98 (judgment dated 3 December 2002). In that case, it was stated (at 7):

"The tort of false imprisonment has two ingredients: the fact of imprisonment and 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 a plaintiff establishes the fact of false 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. An action for false imprisonment will succeed or fail depending upon whether the defendant can, as a matter of law, justify the detention or imprisonment."

The plaintiff alleges that there were two incidents of unlawful imprisonment. The first was the detention under the mango tree following on from the initial stopping of the taxi by the radar officer and the disclosure of the registration receipt. The second alleged incident was on the plaintiff's return to the scene when he was ordered by constable Leone to stop driving away and the taxi sign and connecting wires were removed from the vehicle.

Miss Simiki submitted that on neither occasion was there any restraint amounting to imprisonment and on the first occasion the officers had authority under the Traffic Act to stop the vehicle because it did not have a number plate and they were legally entitled to make inquiries as to the validity of its registration.

Balkin and Davis in the Law of Torts (1996) 2nd ed (at 82) point out that the trespass known as false imprisonment:

"may be defined as an act of the defendant which directly and intentionally or negligently causes the confinement of the plaintiff within an area delimited by the defendant . . . . The barriers need not be physical; a restraint effected by an assertion of authority is enough although in such cases the plaintiff must feel under an obligation to submit to the instructions or dictates of the defendant . . . . No minimum time limit is specified for the success of the action; therefore, however short the period of detention, an action for false imprisonment will lie, provided that the other requirements of the tort are satisfied . . . . When the imprisonment is for a very short time damages would be minimal especially if no force is used."

I accept Miss Simiki's submissions that it was lawful for the police officers to stop the vehicle and make inquiries as to the legality of its registration. Mr Fifita, however, invites the court to focus on the period immediately following on from that point in the narrative, when the first defendant ordered the plaintiff to leave his vehicle and to go across to where he was standing by the mango tree. I accept that the plaintiff felt compelled to obey this direction and thus he was confined in an area against his will for the period. It was then up to the defendants to justify the detention and prove that it was lawful.

Conceivably, it may well have been. The officer, for example, may have wished to use his car radio to check with the registration office as to whether the plaintiff's story about the unavailability of number plates was correct. There is no evidence to this effect, however. In the absence of some plausible explanation for the continuing restraint after the point in time when the plaintiff had produced the official signed receipt from the Department showing that he was not acting unlawfully, the defendants have failed to answer satisfactorily the prima facie case made out by the plaintiff.

The difficulty, of course, that defence counsel faced was that the first defendant, who could have given his version of events to the court, elected to remain overseas and not give evidence in the case. He had been served with the proceedings personally in Tonga, on 13 September 2000 and so he was fully aware of the allegations made against him. He has not helped his cause by failing to appear and give evidence.

The two other officers called for the defence were unable to offer any justification for the unlawful detention complained of. Constable Sonasi could not recall that particular part of the incident. Constable Lotulelei seemed to suggest that officer Leone had not ordered the plaintiff to go over to where they were standing but he went on his own accord. I do not accept that account. The plaintiff's version of events was confirmed by his passenger.

I am, therefore, satisfied, to the required standard of proof in civil proceedings, that the cause of action has been made out in respect of that incident. I also have less difficulty in finding that the cause of action has been made out in respect of the second incident when the plaintiff was prevented from driving away and constable Leone "ripped" the taxi sign and the connecting wires from his car. The defendants have not been able to justify this period of detention to the court's satisfaction. In terms of lawful justification, I find it significant that the officers did not apparently consider it necessary to remove the taxi sign when the plaintiff was first detained.

Crown counsel submitted that in order for a restraint to amount of false imprisonment, there must be a total restraint in every direction and, as the plaintiff had control of the motor vehicle, he could have left the scene at any time. But the authorities show that an involuntary submission to authority can amount to false imprisonment. Thus, in Attorney-General v Niania [1994] 3 NZLR 106 (at 108) Tipping J. said:

"If the plaintiff is induced to submit by an assertion of authority on the part of the defendant, that is as much a false imprisonment, unless lawfully justified, as if the plaintiff had been the subject of forcible confinement . . . . In such non-forcible cases the plaintiff must show that in the circumstances he or she felt obliged to submit to the instructions or directions of the defendant. A wholly voluntary submission is insufficient. The plaintiff must submit in circumstances where he or she reasonably considers that there is no choice but to submit."

In the present case, the plaintiff has satisfied the court that this indeed was the situation he found himself in.

The plaintiff has, therefore, succeeded in his claim based on the tort of false imprisonment but given the very short duration of the period of detention on both occasions, and the absence of any force, his damages entitlement must be minimal. He seeks compensatory damages in the sum of $3000. That amount, in my view, is grossly excessive but he is entitled to something more than simply nominal damages. As Walsh J. observed in Watson v Marshall and Cade [1971] HCA 33; (1971) 124 CLR 621 (at 632):

". . . an interference with personal liberty, even for a short period, is not a trivial wrong."

Under this head, therefore, I award the sum of $300.

The plaintiff also seeks awards of $3000 on account of aggravated damages and $7000 exemplary damages. As Tipping J. noted in the Niania case (at 112), it is not appropriate to seek aggravated damages as a separate head of damages as in the case of exemplary damages. The pleadings should set out the circumstances of the alleged aggravation but the relevance of those circumstances is in the assessment of the appropriate award of compensatory damages. Aggravated damages should not be claimed as a discrete figure.

There is no evidence in the present case in my view which would justify an element of aggravation being introduced into the award.

Turning to exemplary damages, it has long been recognised that they may be appropriate in an action for false imprisonment where the defendant's conduct is so serious as to be deserving of punishment and the compensatory damages are not sufficient for that purpose. I am satisfied that the plaintiff has made out a proper basis for an exemplary damages award in respect of the second incident when the first defendant confined the plaintiff to his vehicle and proceeded to remove the taxi sign and the connecting wires. The amount I award under this head is $500.

Although, not pleaded correctly as special damages, the plaintiff seeks an additional sum of $2000 on account of "loss of employment/income". Consequential loss which is not too remote is recoverable in an action for false imprisonment. The plaintiff said in evidence that he was not prepared to drive the taxi again after the incident because he was afraid that something similar would happen to him if he was ever stopped by the police. He was not cross-examined on this aspect of his evidence although in written submissions it was submitted that his evidence in this regard was not credible. I accept that the plaintiff found the whole experience, in particular the second incident, quite a terrifying ordeal. I am satisfied that at all relevant times the first defendant displayed an arrogant, aggressive demeanour which, in the circumstances, was totally uncalled for. I am satisfied, on balance, that in the particular circumstances of this case the plaintiff's reaction to the incidents in not wanting to drive a taxi again was both reasonable and foreseeable.

Counsel for the plaintiff submitted that the plaintiff's wages were $70 per week at the time. Surprisingly, the plaintiff gave no evidence whatever about his loss of income but there was evidence from the owner of the taxi, 'Ana Fatai, which would support the claim put forward by counsel. She was not cross-examined on this aspect of her evidence. The incident happened on 22 June 2000. The plaintiff said in evidence that he obtained other employment as a security guard in August 2000. He did not specify the exact date in August. I am prepared to allow an award of $385 on account of loss of wages.

Finally, the plaintiff seeks to recover $1000 for "unlawful forfeiting and detention of property". I am not satisfied that this head of claim has been made out. It appears from the evidence that the property in question did not belong to the plaintiff but to the owner of the taxi.

The plaintiff having succeeded on his first cause of action, it is not necessary for the court to turn to consider the alternative claim based on misfeasance in public office.

Although it was denied in the pleadings, there was no real challenge either in evidence or in the defendants' submissions to the vicarious liability allegation. The plaintiff succeeds, therefore, against each of the defendants jointly and severally in the amounts set out above.

The plaintiff is also entitled to costs but it will be apparent that the amount awarded in this judgment is modest indeed in relation to the amount claimed in the statement of claim of. Such an extravagant and unrealistic claim will have done nothing, I suspect, to encourage sensible settlement or early resolution of the case. I, therefore, award the plaintiff costs in the action to be agreed or, failing agreement, in an amount equivalent to three quarters of the total sum allowed upon taxation.

NUKU'ALOFA: 4 February, 2003.

JUDGE