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Navualaba v Commander of Fiji Military Forces [2008] FJHC 168; HBC355.2003 (8 August 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 355 OF 2003

BETWEEN:

TAITO NAVUALABA
Plaintiff

AND:

THE COMMANDER OF FIJI MILITARY FORCES
First Defendant

THE COMMISSIONER OF POLICE
Second Defendant

THE ATTORNEY GENERAL OF FIJI
Third Defendant

Counsels: Mr. S. Valenitabua for Plaintiff
Mr. J. Boseiwaqa for First Defendant
Ms S. Raramasi for Second and Third Defendants

Date of Hearing: 9th June 2008, 4th July 2008
Date of Judgment: 8th August 2008

JUDGMENT

Background:

[1] The plaintiff in this action is claiming damages for personal injuries both physical and mental arising out of alleged assaults from 24th August 2000 to 25th August 2000 by the members of the police force and soldiers from the Fiji Military Forces. The assaults were allegedly committed at a temporary military camp set up at Wainavau, Naitasiri. The plaintiff told the court that he was arrested for having committed murder and robbery. His claim is that he was tortured for a period of one day as a result of which he was hospitalized at the CWM Hospital from 25th August 2000 to 11th October 2000. After his release he also attended St Giles Hospital.

[2] The first defendant in its defence denied assaulting or causing any injuries to the plaintiff. It denied knowledge of any injuries suffered by the plaintiff. The second and third defendants filed a defence which was a bare denial.

Assault:

[3] The first issue is whether the police and soldiers or any one of them assaulted the plaintiff. The only direct evidence of assault was given by the plaintiff himself. The plaintiff told the court in his brief of evidence that he voluntarily surrendered himself to the soldiers at the Naqelewai Community Hall, Naitasiri after he learnt from his wife that the soldiers were looking for him. He further stated that he was taken by soldiers from Naqelewai to Wainavau camp in Naitasiri for questioning. At Wainavau he stated that he was tortured by being beaten on his body with an iron rod; he was made to dive into a shallow stream as a result of which blood came streaming down his face. He said that he lost consciousness so hot water was poured on him and he regained consciousness. He said he was kicked on his back and also hit with rifle butts. He also told the court that he was made to collect horse manure and cow dung and the soldiers forced him to eat that as a result of which he felt so bloated that he could not eat food. He was made to sit and pistols were pointed at his head. At night he stated that he was made to sleep in a dog cage at the back of a twin cab van with two dogs. He slept close to the dogs for warmth. The next morning the beating started again. Later he was taken to the Military hospital because he could not walk. From there he was taken to CWM Hospital, Suva.

Injuries suffered:

[4] In his statement of claim the plaintiff listed his injuries as follows:

"(a) body pains;

(b) right ankle pains; had to use crutches for about 4 months;

(c) tenderness over the back and the lateral chest walls;

(d) swelling over right forearm and dorsum aspect of right hand;

(e) restrictions in lower limbs joint movement;

(f) fracture to the base of his middle phalanx of his left index finger;

(g) his wound was cleaned and sutured and his left hand put on back slab to immobilize."

[5] In his brief of evidence he noted some injuries which are not specified in his statement of claim or the medical report issued by the CWM Hospital. In his brief of evidence he had noted following injuries:

"(a) bruises, cuts and wounds on my head;

(b) my head and eyes were swollen so I could not see for a week;

(c) I had a complex fracture on left middle phalanx of left index finger;

(d) Complex fracture on left ankle;

(e) My hair was cut with a pair of scissors after the assaults to mock me;

(f) A Nigerian doctor showed me the x-ray of my lower back and said that I had a dislocated lower spine;

(g) Restrictions of lower jaw thus the inability to eat solid food; for one week I had milk pumped through my nose with the use of a tube; two weeks I had food, food juices using the same pipe; the next week I had mashed food; then I started eating solid food;

(h) I had blood coming out from my ears and nose when I was admitted to CWM Hospital."

He told the court that he does not rely on the medical report from the CWM Hospital for his claim.

[6] The records officer from the CWM Hospital Lanieta Katirewa was called. She testified on the basis of the file kept at CWM Hospital. The records show that the plaintiff was admitted on 25th August 2000 to CWM Hospital and discharged on 11th October 2000. The records also show that the plaintiff had difficulty getting up from bed and moving about so he was subjected to physiotherapy. The records confirm the fracture on left phalange middle finger and left forearm. It showed that the plaintiff complained of ear ache. He was also referred to the fracture clinic for review of spine.

[7] This was an action filed in August 2003 so it had been in court for about four years and nine months. The medical certificate of the plaintiff was issued in 2001. Hence there was abundance of time for the plaintiff to realize that if he is telling the truth then the medical certificate did not show all the injuries. Even his statement of claim does not tally with injuries in his brief of evidence. There is no mention of complex fracture of left ankle either in his statement of claim or in his medical report. His statement of claim refers to right ankle pains not fracture. There is no reference to left ankle. There is no mention of injury to spine in his statement of claim but it may well be covered by tenderness on back as pleaded in statement of claim. The hospital records also stated that he was referred to the fracture clinic for spine injury so it is likely that he did suffer some injury there. There is no mention of restriction of lower jaw and inability to eat food in the statement of claim or in the hospital record or blood oozing from ears and nose. These are significant injuries and would have occurred to the plaintiff to include in his statement of claim especially as it was drafted closer to the time when the events had occurred. Further, it should have dawned on the plaintiff when he was preparing his brief of evidence that some injuries which he was complaining about were not included in his statement of claim. An application for amendment of the statement of claim could easily have been made by seeking to insert the additional injuries but this was not done. I doubt very much there would even have been need for an adjournment as the amendment was not something substantial. In any event the defendants had stated that they had no knowledge of any injuries so inclusion of more injuries by amendment would not have affected defendants’ pleadings or search for additional evidence by them.

[8] Having heard the evidence I have no doubt at all that the plaintiff voluntarily surrendered himself to the soldiers at Naqelewai Community Centre. At the time he was in good health and injury free. A day later he ended up with injuries. He was in custody of the soldiers. When a person is in custody of police or security forces, they have complete control over his person. It is therefore their duty to take proper care of the person to ensure his safety and to see that he remains free from harm until he was set free or at liberty.

[9] The question remains how did the plaintiff get injured while in custody. The plaintiff denied in cross-examination that he got injured while running away from custody. This was not pleaded in the defence. The defendants have not led any evidence of escape. The only defence witness was MELI RADREKUSA now a security officer who was a police officer based at Wailoa Power Station, Naitasiri and not at Wainavau military camp at the material time. All he could say was that the plaintiff was not assaulted by police at the Wailoa Power Station. The plaintiff did not claim to have been assaulted there either.

[10] The plaintiff told the court that he did not know the name of the police officer who hit him. However he had also earlier named Corporal Meli. Meli Radrekusa told the court that he was directed to go with the military to Monasavu to arrest those who had taken over the Monasavu Dam. He stated that the military was taking the lead role. Meli Radrekusa was not questioned in cross-examination that he had assaulted the plaintiff even though the plaintiff had made this allegation.

Findings:

[11] I believe Meli Radrekusa, as this was a period in the aftermath of the 2000 coup that the military intervened to restore law and order. The plaintiff’s evidence is confined to assaults at Wainavau camp which was a military camp. Meli Radrekusa was not even aware that a camp existed at Wainavau. On balance of probability I am not satisfied that the plaintiff was beaten by members of the police force but that he was beaten only by soldiers.

[12] I accept the plaintiff’s version of events in that he was assaulted at Wainavau military camp by being punched and kicked, hit with iron rod, of him having hot water poured over him and being hit with rifle butt. I accept that he was forced to eat horse manure.

[13] However, I do not believe that such beatings continued for hours as the plaintiff made out to be otherwise he would be in the form of a pulp. Further I do not believe the plaintiff that he was made to dive into a dry river bed as alleged in his statement of claim or in a very shallow water. I would have expected serious injuries in his face and head if this had occurred. I do not accept that he suffered a fractured left ankle.

[14] But it is obvious that he received some injuries. He was beaten so he would have body pains with tenderness on back and both chest walls. He received fracture to the middle phalanx of his left finger. I also accept that he suffered fracture of left forearm which had to be put on a back slab. The beatings also resulted in the plaintiff not being able to move and had difficulty to even sit in bed. Given that the plaintiff was punched and beaten, I do believe his wife that his face was swollen and he had black eyes and his arms and legs were swollen.

Evidence of Post traumatic Disorder:

[15] The principal piece of evidence in respect of above is contained in a medical report issued by the St Giles Hospital. It is dated 8th February 2008. It explains that a post traumatic stress disorder is an anxiety disorder that can develop after exposure to a terrifying or life threatening event or ordeal in which serious physical harm occurred or was threatened. The plaintiff had first visited St Giles Hospital on 3rd August 2002. On 15th March 2004 he was re-living his trauma and developed fears that unspecified persons were trying to harm him. He also suffers from increased irritability and insomnia. His wife, who would know him well, stated that he is short tempered now. His prognosis therefore is not very promising as even over seven years after the event he suffers from insomnia and irritability. Doctor Agnes Chang from St. Giles Hospital had not personally attended to the plaintiff. However she stated from records that the plaintiff suffered from post traumatic disorder. These are symptoms which could also be displayed by someone who had been in prison.

[16] I conclude therefore that the plaintiff was assaulted by soldiers; that he received injuries and he also suffered from post traumatic stress disorder, insomnia and irritability.

Damages:

[17] The plaintiff’s prayer for relief claims special damages, general damages, exemplary or punitive damages, interest and costs.

Loss of Income:

[18] The only relevant detail in the statement of claim relevant to special damages is that the plaintiff was a villager. There is nothing mentioned about his occupation or the level of his remuneration be it weekly or some other term. There is no mention of him having a farm producing crops for sale.

[19] In his evidence the plaintiff stated that he worked for Jiko Fishing from 1997 to 1999. So he was not employed by Jiko Fishing prior to the time of incident. He stated that at Jiko’s he was receiving $150.00 per week plus bonuses. Additionally he got paid $30.00 per kilogram for shark fins and $200.00 per kilogram for shark tails. But he did not specify how much shark fins or tails he managed to secure per week.

[20] In the year 2000 he stated that he began to plant yaqona and dalo which he sold. He stated that he sold these twice a week, that is, two bundles of yaqona worth $600.00 and carrier full of dalo. After beating he stated that he could not farm a lot because of injuries. The wife farms now.

[21] He told the court that while he was at school, he did farming during holidays and also did farming while on leave from Jiko Fisheries.

[22] If the plaintiff is to be believed, he sold weekly yaqona valued at $600.00 and a carrier full of dalo. He did not tell the court what was the size of the carrier he transported the dalo in. He produced no names or places where he sold such significant amount of farm produce. If he was using someone else’s vehicle to transport produce, that person could have been called as witness.

[23] I do not believe the plaintiff that he was selling dalo and yaqona to the extent he makes out. He may have done some small scale farming but not the amount he is trying to make out. Further he admitted that yaqona takes five years to mature so he is hardly likely to have yaqona ready for sale in 2000 if he left Jiko Fisheries in the year 1999.

[24] The law is clear. Plaintiffs who claim substantial damages must show both the fact that he/she suffered damages and the extent of those damages. Difficulty of proof does not dispense with necessity for proof. If precise evidence is available or obtainable, then the court expects a plaintiff to produce it. It is not enough for plaintiff to simply write down figures or make assertions and throw them at the court and expect the court to grant those damages: Bonham Carter v. Hyde Park Hotel – (1938) 6 TLR 177; Ratcliffe v. Evans – (1982) 2 Q.B. 524, 532. In the latter case Bowen L.J. recommended that

"As much certainty and particularity must be insisted on, both in pleading and proof or damage, as is reasonable, having regard to the circumstances and to the nature of the facts themselves by which the damage is done. To insist upon less would be to relax old and intelligent principles. To insist upon more would be the vainest pedantry".

[25] All the plaintiff has done is making assertions of his loss with no supporting evidence. I cannot in the circumstances grant him any damages for loss of income, he having already left his job at Jiko Industries. Besides there was nothing to stop the plaintiff from employing someone on part time basis so his crops could be tendered. This employee would assist his wife in the tilling of the crops. Mitigation of damages is not an idle concept.

[26] His claim for loss of income is therefore dismissed.

General Damages for Pain & Suffering:

[27] The plaintiff was admitted at CWM Hospital for 47 days. He faced great difficulty in moving and had to go through physiotherapy. I have already made my findings as to the physical injuries he suffered and the resulting post traumatic stress disorder he underwent. He still suffers from insomnia and irritability.

[28] The plaintiff must have gone through intense fear for his life during the time he was in custody. The damages in such a case have to be higher than and usual personal injuries suffered in motor vehicle accidents where events occur within seconds and the fear is over. Here the trauma continued for hours while in custody. The cases on motor vehicle accidents therefore do not provide an accurate guide. This prolonged fear and stress has to be compensated for.

[29] It is now well established that previous awards of personal injuries provide a guide and to maintain a level of consistency in awards. However each case has to be considered in light of the particular claimant and his circumstances: Jovesa Rokobutabutaki and Attorney General of Fiji v. Lusiana Rokodovu: ABU 88 of 1998.

[30] In Sashi Prakash v. Commissioner of Police and Attorney General – HBC 237 of 2001 (Lautoka) the High Court awarded a sum of $42,000.00 for pain and suffering both post and future where a suspect was held in police custody from 7.30 p.m. to 1.30 a.m. and suffered seven fractured ribs, four on the right and three in the left. He also had a swollen mouth and broken dentures and other lesser injuries. There was no evidence of any post traumatic stress disorders.

[31] I grant the plaintiff a sum of $45,000.00 for pain and suffering being $40,000.00 for past pain and suffering and $5,000.00 for future pain and suffering.

Exemplary Damages:

[32] The main purpose of exemplary damages is to punish the defendants. Mr. Valenitabua submitted a figure of $150,000.00 being total exemplary damages. That by any yardstick is a colossal amount. In Doctor Anirudh Singh v. Sotia Ponijiasi & Others J Coventry had ordered a sum of $100,000.00 exemplary damages for an extreme case where soldiers had kept surveillance on the plaintiff. The plaintiff was handcuffed and hooded so he had difficulty breathing and brutalized for twelve hours. The present case is nowhere close to the brutality in that case. He had been kidnapped.

[33] Courts have emphasized that in certain circumstances exemplary damages can be awarded by courts. There is a difference in approach between England and Australia on the issue of exemplary damages. In England Lord Develin in delivering the judgment in the House of Lords in Rookes v. Barnard – (1964) 1 ALL ER 36 looked at exemplary damages with disfavour as such damages could confuse the functions of the civil law and criminal law. Therefore he confined the award of exemplary damages to three categories. One of the situations for which exemplary damages according to Lord Devlin can be awarded is for oppressive, arbitrary or unconstitutional action by the servants of the state as where police assault a suspect. In Australia to found a claim for exemplary damages the conduct must amount to "conscious wrongdoing in contumelious disregard of another’s rights". This formula was accepted by Knox CJ in Whilfield v. De Lauret & Co. Ltd. – [1920] HCA 75; 1920 29 CLR 71 at 77. Isaac J explained that exemplary damages are considered "to be punitive for reprehensible conduct and as a deterrent" at p. 81. In Australian Consolidated Press Ltd. v. Uren – [1967] UKPCHCA 2; 1967 117 CLR 221 the Privy Council confirmed that this expression correctly delineates the defendants’ conduct for purposes of award of exemplary damages. Exemplary damages also serve the valuable purpose in restraining the arbitrary and outrageous use of executive power and in vindicating the strength of the law: Kuddus v. Chief Constable of Leicestershire Constabulary – [2001] UKHL 29; (2002) 2 A.C. 122 at 147.

[34] The question whether the defendants conduct has reached this threshold is a factual one. In the present case it really does not matter whether I apply the English or the Australian approach. They both fit the facts of this case.

[35] The plaintiff had surrendered himself to the army camp. If he was a suspect he should have been handed over to police to investigate the allegations against him according to law. The plaintiff was alone among soldiers. Far from protecting him, they assaulted him. They subjected him to totally unwarranted indignities of forcing him to eat horse manure. Regardless of how heinous a person’s conduct may be, neither the police nor the armed forces have the right to punish a person for such conduct. The punishment of an offender is for a competent court of this country after all due process is provided to him. The conduct of the soldiers in this case was extraordinarily undignified having no respect for the defendants’ right. This is a proper case for aggravated or exemplary damages as there was oppressive and high handed act on part of the soldiers. I award the plaintiff a sum of $18,000.00 as exemplary damages are not supposed to be crippling but rather punitive. Besides awards must be considered in local context not in the context of other developed countries.

[36] Mr. Valenitabua further in his final submission is seeking compensatory damages for constitutional breaches. He relies on the authority of Proceedings Commissioner, Fiji Human Rights v. The Commissioner of Police and the Attorney General – ABU 2003 of 2006 to make these submissions. That was a claim purely brought for damages for breaches of certain sections of the bill or rights, provisions in the Constitution. The present proceedings are a claim in tort. There is no reference to breaches of the Constitution in the statement of claim or the amended statement of claim. Even if there were such claim, the court would not grant damages twice for the same wrong – one for tort and one for breach of constitutional right. That would be against the whole object of compensatory damages. Hence I cannot grant him any compensatory damages under this head.

[37] Given the nature of the case, the honourable course for the state should have been to accept liability, and let the court assess the damages.

Conclusions:

The plaintiff’s claim for loss of income is dismissed. I grant him the following sums:

The plaintiff has claimed interest which I allow at 6% per annum from the date of the filing of the writ (25th August 2003 to date of judgment) roughly 51 months on past pain and suffering that is $10,200.00.

Final Order:

Accordingly I enter judgment for the plaintiff inclusive of interest against the first and third defendants in the sum of $73,200.00. I also allow costs summarily fixed in the sum of $3,000.00. Claim against the second defendant is dismissed with costs summarily fixed in the sum of $2,000.00.

[Jiten Singh]
JUDGE