IN THE HIGH COURT OF TUVALU

CIVIL JURISDICTION

Case No: 6/01

BETWEEN:

APELU APELU By Iosia Apelu (Father)
Plaintiff

AND:

ONOSAI TAUPALE
1st Defendant

AND:

ATTORNEY GENERAL
2nd Defendant
James Duckworth for Plaintiff
Ese Apinelu for Defendants

Hearing: 25 September 2003
Judgment: 30 September 2003

JUDGMENT

By a writ filed on 10 November 2000, the minor plaintiff through his father sues for damages for negligence against the defendants. The plaintiff's case is that the first defendant is a mental patient and is unable to understand legal proceedings. As such, the action should have been brought through his next friend. However, Ms Apinelu for the respondents does not take the point and accepts she is instructed sufficiently to act in that capacity.

It is also apparent from the statement of claim that the cause of action against the first defendant is for assault and not negligence. Again Ms Apinelu does not object to it proceeding on that basis as that has clearly been the actual allegation in this case and the assault is not challenged.

The case was heard on 25 September and the plaintiff (who, at the time of the incidents alleged, had just passed his tenth birthday), his father and a former Director of Health were called for the plaintiff. The present Director of Health was the sole witness for the defendants.

Following the hearing and before judgment, I heard counsel in chambers on the effect on these proceedings of section 48 of the Mental Treatment Act, Cap 37, which under a marginal heading 'Limitation of Action' provides:

"48. No action shall be brought against any person for anything done or omitted to be done under this Act, nor for anything done in supposed execution of this Act, unless within 12 calendar months of the act or omission complained of ..."

In brief, the claim was that the plaintiff was attacked and beaten with an iron bar by the mentally defective first defendant causing injury to his head and body. On 11 March 1991, the High Court had committed the first defendant into custody "pending decision/recommendations by the Minister of Health". It is alleged by the plaintiff that no decision has been made to release the first defendant from the order of the High Court and the fact he was at large and able to attack the plaintiff was the result of the second defendant's negligence in implementing that order.

Although the High Court order does not specify the section under which the order was made, it is clear and accepted by the parties that the order was made under section 146 of the Criminal Procedure Code, Cap 7:

"146. (1) Where any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that at the time when the act was done or omission made he was by reason of a disease of mind labouring under such defect of reason as to be incapable of knowing the nature and quality of the act, or, if he did know it that he did not know it was contrary to law, then if it appears to the court before which such person is tried that he did the act or made the omission charged but was incapable as aforesaid at the time when he did or made the same, the court shall make a special finding to the effect that the accused was guilty of the act or omission charged but was insane when he did the act or made the omission.

(2) When such special finding is made the court shall report the case for the order of the Minister and shall meanwhile order the accused to be kept in custody as a criminal lunatic in such place and in such manner as the court shall direct.

(3) The Minister may order such person to be confined in a mental health wing, prison or other suitable place of safe custody."

What happens to the person ordered to be kept in custody appears in section 14 of the Mental Treatment Act:

"14. When, upon any trial on indictment or information for a criminal offence, the accused shall have been found guilty but to have been insane at the time when he committed the offence, ... and the court shall ... have ordered such accused person to be kept in custody in such place and in such manner as the Court shall direct till Her Majesty's pleasure shall be known, the Minister may give such order for the safe custody of such person during pleasure in the mental health wing or in such other place and in such manner as to him may seem fit."

It is not suggested by the defendants that any order has been made by the Minister in this case either as to where or how the first defendant is to be confined or for his release although an opinion has been included in the agreed documents from Crown Counsel in 1991 to the, then, Attorney General acknowledging that the order of the High Court had been under section 146 of the Criminal Procedure Code and that the first defendant was (in April 1991) confined in a mental health wing.

The assault occurred on 29 May 1999 and, as has been said, the action was commenced in court by the filing of the writ on 10 November 2000.

Counsel for both sides accept that section 48 must apply in this case. Mr Duckworth for the plaintiff however, points out that he first wrote to the Ministry of Health about the case in October 1999 and, although that correspondence only referred to criminal proceedings, by 3 February 2000 he had mentioned the possibility of bringing a civil claim and, on 2 May 2000, he wrote stating:

"I act for and on behalf of the parents of [Apelu Apelu] to pursue a claim for injuries arising from criminal assault."

All that correspondence was within the 12-month period after the assault.

Unfortunately, I cannot accept that such correspondence can be considered as the bringing of an action. Whilst the purpose of the limitation is to ensure all involved in the case know of it within a year of the act complained of, the essential step is the bringing of an action. That is commenced by the filing of a writ and that step was out of time by some months. The agreed correspondence evidences the problem counsel for the plaintiff was experiencing in trying to obtain evidence from the medical records but, when they were slow in coming, he needed to commence the action and then seek the information by discovery.

It is unfortunate this matter has only come to light after the evidence has been heard but, now it is before the court, I cannot allow the case to proceed because I would be in the position of making an order that would be in breach of the statute.

The case must be struck out and I so order.

However, I have heard and evaluated the evidence and consider it may be expedient if I briefly set out the facts as I found them.

I am satisfied that the plaintiff was assaulted by the first defendant and sustained injuries to his head and body as described in the report of Dr Iupasi Kaisala dated 29 May and which required his admission to and treatment in hospital. There is no evidence that they have left any permanent disability but I find as a fact that they left the plaintiff in a state of acute anxiety which continued to a steadily reducing degree over a period of two years.

The assault was provoked by the taunts of other children and not of the plaintiff or his companions at the time. The plaintiff did nothing to provoke it.

I find that the first defendant had been ordered to be detained in custody in 1991 and no order has been made under the Mental Treatment Act for his release from that High Court order. During the period since its imposition, he has been confined for various periods in the hospital here on Funafuti, in St Giles in Suva and by the Tuvalu Police on Funafuti. The evidence suggests (but it was not explored in detail and was not necessary for the determination of the possible liability of the second defendant) that, at the time of this assault, he had most recently been in the custody of the police rather than the medical authorities.

I find on the evidence that over the period since the High Court order, he should have been kept in confinement under that order and should not, therefore, have been free on the day he committed this assault. He was free that day because he had been released and not because he had absconded.

However, it is clear that, although the medical authorities and the police did not follow the proper procedures necessitated by the High Court order and, in the case of the Director of Health, was not even aware of any guidelines under the law, I am satisfied that over the whole period they did treat the first defendant as a mental patient. His condition was diagnosed as schizophrenia and he was given the appropriate treatment for that condition apart from the continuing requirements of the 1991 Court order. He was released, presumably in ignorance of that order, more than once because the medical authorities had considered him not to be a risk to himself or the public if allowed back into the community. Apart from the failure to comply with the High Court order, I accept that each time he was released it was as the result of a reasoned decision made bona fide by a medically qualified person based on professional experience and expertise.

The evidence was that although the first defendant's behaviour when at large was frequently unpleasant and anti- social, he was not considered by the authorities to be potentially violent. I find that unconvincing and unsatisfactory as the offence for which the High Court order was made in 1991 was for burglary, attempted rape and assault causing actual bodily harm. Although his previous convictions show offences of disorderly behaviour, fighting and assault over a number of years, there is no evidence to suggest that information was ever supplied to the medical authorities. I find that the records kept by the authorities were not adequate in a case such as this to ensure that doctors treating the first defendant were fully aware of his previous history.

The evidence was that he was under medication which, if administered properly and regularly, could and should control the symptoms of his schizophrenia. However, the evidence was that the authorities had failed to establish proper, or any, arrangements to ensure he would take his medication whilst at large or to alert the authorities if he neglected or refused to do so. Had such arrangements been made, he would have been unlikely to have committed this assault.

In those circumstances, save for the terms of section 48, I would have found the first defendant liable for damages for the injuries cause by the assault and the second defendant liable for its negligence in failing to follow the requirements of the Mental Treatment Act in compliance with the High Court order of 1991.

Dated this 30th day of September, 2003

THE COURT.