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Ponsami v Raza [2014] FJHC 950; HBC54.2012 (10 December 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 54 of 2012

BETWEEN:

PONSAMI
Plaintiff

AND:

CPL 1977 HASSAN RAZA
Defendant

COUNSEL : Mr. A. Zen for the Plaintiff
Defendant in person

Date of the Hearing : 19th September 2014
Date of Judgment : 10th December, 2014

JUDGMENT

[1]. The plaintiff has instituted the action for damages caused due to a personal injury inflicted while in the police custody.

[2]. It is pertinent to note that the plaintiff has filed this action only against the police officer who is alleged to have caused the injury.

[3]. The plaintiff alleges that he was arrested by the police on 9.3.12 and taken to Namara Police Station in the night. The defendant who was on duty is alleged to have punched him and kicked him and put him in a cell. As a result of the assault the plaintiff states that he suffered a split lip and an injury to the back of his head, thus he has filed this case.

[4]. While the plaintiff was represented by a solicitor. The Defendant preferred to defend himself. He also informed court that he is temporarily suspended from the Police force.

[5]. The plaintiff gave evidence and called two other witnesses. The defendant gave evidence but didn't call any witness nor did he produce any documents.

[6]. At the trial both parties admitted that the defendant on the date of the incident was a police officer. He was the shift supervising officer at the time of the alleged incident. The parties also agreed that the plaintiff was a prisoner in police custody on 9.3.12 at the Labasa Police Station. It was also not disputed that the plaintiff was kept in the cell over-night. The parties were at variance on the following issues: -

1. Is the plaintiff carrying out an upholstery business.
   
2. Did the defendant improperly and unlawfully abuse the plaintiff and wrongly assault and beat the plaintiff on the face, ribs and kicked until he fell to the ground.
   
3. Did the plaintiff suffer personal injury and loss and damages as a result?
   
4. Did the attack cause the plaintiff's skin in the head to split and bleed?
   
5. Did the plaintiff suffer the injuries mentioned in paragraph 5 of the statement of claim.
   
6. Was the defendant's action caused by malevolence or spite towards plaintiff and to humiliate and ridicule him in the presence of other prisoners?
   
7. Is the plaintiff entitled to exemplary damages
   
8. Was the plaintiff unable to work for three days as a result of the injuries?
   
9. Is the plaintiff entitled for special damages
   
10. General damages.
    
11. Punitive and Exemplary damages
    

Analysis of evidence and determination

[7]. Plaintiff giving evidence stated that he had been arrested around 9:00pm on the 9th while they were leaving after work. He had been taken to the market police post and thereafter to Namara Police station by a taxi on an alleged complaint made by a taxi driver. He had been handed over to the defendant and defendant had punched him on the face at the Police Station. He was kicked in the ribs and when he fell he hit his head and suffered a bleeding injury to the back of the head. In cross examination the defendant has failed to impeach this evidence.

[8]. He had been kept in the cell without any medical supervision and was released the following day. He had been taken to the hospital and treated and the medical report was tendered in evidence. At the time of marking the medical report the defendant did not object. However, during cross examination the defendant objected to the medical report. It is pertinent to note that the defendant conceded he had been given a copy of the medical report very much prior to the trial but failed to object to it when it was being marked. Accordingly, I overrule the belated objection as it had been already marked at the time the objection was raised. However, the court considers the contents of the report with caution.

[9]. The doctor who gave evidence on the report submitted that the findings in the report are consistent with the alleged assault and the injuries suffered.

[10]. Witness R. Samy testified that he is a cousin of the plaintiff and that on the 9th he had finished work in the workshop late, and was going out of the work place with his cousin when a taxi came with two police officers. They were taken to the market police post. The witness was released there, while the plaintiff was taken to the Namara Police Station. When he last saw the plaintiff in the night he was not injured, but the following morning when he went to the Police Station he had been told that the plaintiff had suffered injuries and had been sent to the Labasa hospital.

[11]. By corroborating evidence, the plaintiff has established that he had been carrying on an upholstery business, his arrest and that at the time of the arrest he was not injured.

[12]. The Court is satisfied that the plaintiff had suffered injuries, while in the Police Station. The plaintiff being put in a cell overnight is not disputed, thus the onus shifts to the defendant to give an explanation as to how the plaintiff was injured while in remand.

[13]. The defendant gave evidence on his behalf, he denied assaulting the plaintiff, however conceded on pushing the plaintiff to the cell. The defendant further submitted that the plaintiff was drunk and behaved disorderly.

[14]. The defendant failed to give an explanation as to how the plaintiff got injured while in police custody.

[15]. The defendant submitted that the plaintiff would have got injured by the fellow prisoners assaulting him. However, as the plaintiff quite correctly submitted the assault by fellow prisoners was not pleaded in the statement of defence nor did the defendant bring in any corroborative evidence to substantiate this position. The defendant failed to tender any documenty evidence to court to substantiate his explanation. If a prisoner is injured at the time of arrest it should be documented and if the prisoner is injured as a result of fellow prisoners assaulting him there should be a report and an investigation. However, the defendant failed to submit any documentary evidence pertaining to the assault or injuries on the defendant. Accordingly the court disbelieves the defendant's evidence.

[16]. For the first time the defendant in his closing submission has pleaded immunity under Section 157 of the Constitution. However, he has not pleaded this defence in his pleadings nor did he take it up in cross-examination of the plaintiff, thus this deprives the plaintiff of answering this defence. Immunity has not been raised as a defence nor is it an issue before the court. Further, the plaintiff has failed to satisfy court as to how the action of assaulting a person inside the police station could attract the immunity.

[17]. As per the evidence of this case it was incumbent on the defendant to give an explanation as to how the plaintiff came to be injured. I find the defendant had failed to give a proper explanation nor to bring any corroborative independent evidence to substantiate his defence.

[18]. The plaintiff in his testimony submitted that he received a left hand punch by the defendant. At the trial the attention of the court was drawn to the fact that the defendant is in fact left handed.

[19]. The defendant also conceded that the plaintiff had no animosity towards him.

[20]. The defendant testified that the plaintiff was behaving in a drunk and disorderly manner. However, he failed to corroborate this evidence with any independent witness or documentary evidence. This court observes that except for the defendant's evidence there is no evidence to show that the plaintiff was drunk or behaving in a disorderly manner. The defendant has even failed to file a list of documents or witnesses. The defendant failed to lead any medical evidence to show that the plaintiff was drunk. No evidence was placed before the court to show that the defendant smelt of liquor. The defendant failed to produce the station diary, cell book or even the charge sheet to substantiate that the plaintiff was charged for drunk and disorderly behaviour. The plaintiff in his evidence stated he had never been produced in court or charged for drunk and disorderly behaviour up to the trial date. The alleged incident had occurred in 2012. I believe this testimony of the plaintiff. The defendant further failed to call any police officers to give evidence. The defendant in his testimony said that the arrest was done by another police officer and even at the station there was another police officer with him but he failed to call any witness.

[21]. Even though the plaintiff in his submission sought damages for false imprisonment I find he has not pleaded the same in his statement of claim. The statement of claim seeks damages for assault and consequence of the said assault. Accordingly in my view the plaintiff cannot be awarded any damages for wrongful imprisonment the way the case is constituted.

[22]. The plaintiff marked document P4 which is the Fiji Police Medical Examination Form. This form is requested by a police officer whose name, number and rank are stated. It was submitted that this has been obtained by the plaintiff on payment of the required fee and the receipt was marked as P3. It was submitted that the original of this report is in the custody of the police. The witness, Doctor Harish who gave evidence has corroborated the fact that one copy of this report is kept at the hospital and the original is sent to the police.

[23]. The said medical form under clause a (4) states the "background information relevant to the medical examination" under this heading it is stated "allege that he was assaulted by Cpl Hassan at the Labasa Police Station". Under clause D(12) the findings of the doctor is given and his opinion is given under D[14]. As per the opinion the injuries had been caused just a few hours prior to the examination.

[24]. As per the conclusion, the injuries are compatible with the history. The conclusion states "injuries sustained by victim probably/likely happened due to a blunt trauma such as a punch to the mouth and bruising of the skull/head on the floor as described by the victim." The patient had been examined at 11:30am.

[25]. As I had earlier stated in this judgment as per the evidence, the injuries had occurred at the police station when the plaintiff was in the custody of the defendant. In the absence of any credible explanation as to the cause of the injury by the defendant, I believe the testimony of the plaintiff. On a balance of probability the plaintiff has succeeded in establishing assault while in the custody of police.

[26]. As per the evidence, the plaintiff has established that he suffered personal injuries. However, as to the issue whether the attack caused the plaintiff's skin in the head to split and bleed is not corroborated by DP 4 as to the injuries suffered the defendant has been partially successful in challenging this evidence. Accordingly, I hold that this issue is not proved. No evidence was led to show that the defendant's action was caused by malevolence or spite towards plaintiff nor did the plaintiff lead any evidence to show that he was ridiculed or humiliated in the presence of the prisoners. The plaintiff has failed to call any witness to this effect. Accordingly, I hold that this issue is not proved.

[27]. The plaintiff has led evidence to show that he couldn't attend work for 3 days as a result of his lip injury. The defendant has failed to challenge this evidence. The evidence is unchallenged. Accordingly I find that the plaintiff has proved the issue before court. The defendant has failed to cross-examine the doctor on the disability caused as a result of the injury. However it's pertinent to note that as per P4 the defendant had been treated only with pain killers. As per the prognosis, no further follow up has been recommended.

[28]. Considering all the evidence submitted to court I conclude that the plaintiff has proved on a balance of probability that he was assaulted by the defendant while in the police station and he had suffered injury. This resulted in him being unable to attend work for three days. Since I have held that the plaintiff has been successful in partly establishing liability now I will proceed to assess damages.

Damages

[29]. The plaintiff is 54 years of age and has been carrying out an upholstery business. Even though the plaintiff has suffered injury no evidence has been led to show that it is a permanent injury or there is a permanent physical impairment as a result of the injury. Neither party have led any evidence to show that there had been any ill will, malice or animosity towards each other prior to the incident. However the court finds the action of the defendant reprehensible especially in view of the fact that he was a police officer and on active service at the time of the alleged assault. The plaintiff has filed this action only against the defendant police officer.

[30]. The plaintiff had cited the decided cases of Meering –v- Graham –White Aviation Co (1920) 122 Lt and Dumbell –v- Roberts and Others (1944) 1 ALL E.R, Singh –v- Turaga (2002) FJHC 279; HBC 267.1998, John Allen Mendonca –v- Attorney General & Another FLR Vol. 22 at page 105. However, I find the facts and circumstance of the present case before me differs from the said cases. As I have stated earlier in the present case before me there is no allegation of unlawful arrest. The plaintiff has pleaded assault and has been successful in establishing assault.

[31]. The plaintiff has relied on Fowler –v-Lenning (1959) 1 QB 246 in assessing damages for assault. I find the circumstance of the said case differs to the case before me thus the case cited by the plaintiff is of very little assistance in assisting the plaintiff in his claim for damages.

Special Damages

[32]. The plaintiff has sought $175 as special damages. The defendant has failed to challenge the evidence that the plaintiff had been unable to attend work for 3 days. As per his evidence corroborated by P4 he has suffered an upper lip cut and has sought $120 for the loss of work. In this instance I believe the plaintiff. He has also sought $55 as medical expenses. As per P4 he had not been prescribed any medicine other than painkillers. No evidence was led to show whether the medicine was given by the hospital or purchased from a pharmacy. No receipts were marked to show the cost incurred.

[33]. The plaintiff has obtained the medical report. As per the receipt he has incurred an expense of $23.00.

[34]. Accordingly I will award $120 + $23.00 = $143 as special damages.

[35]. The plaintiff also claims general damages for the assault and for the injuries suffered and aggravated damages for false imprisonment. In his pleadings the plaintiff has failed to plead unlawful arrest and false imprisonment. There was no attempt by the plaintiff to amend the pleadings, thus there was no issue on false imprisonment before this court. In the absence of any issue on unlawful arrest or false imprisonment or evidence before court, the court declines this claim. The plaintiff has sought aggravated damages on the basis of false imprisonment in his closing submissions. However, as I have held that false imprisonment was not an issue before this court. It has been taken up for the first time only in written submissions I disallow the said claim.

General Damages for Pain and Suffering

[36]. As per the evidence the plaintiff has been suffering for 3 days as a result of the alleged assault that caused his upper lip to split. He had been in pain. However as per the evidence led plaintiff has failed to establish any permanent disability or injury as a result of the assault.

[37]. It was also established that as a result of the assault his head has got bruised, the plaintiff submitted that the defendant had kneed him in the chest and the medical report shows that the plaintiff is complaining tenderness in the chest area.

[38]. The plaintiff has however failed to establish that none of the injuries can cause any permanent disability.

[39]. The plaintiff has prayed for $10,000 as general damages for assault. In assessing damages the court takes into consideration the judgment of Attorney General of Fiji; Medical Superintendent Labasa Hospital, Permanent Secretary for Health –v- Melani Remanu Tikotikoca; Fiji Court of Appeal case No. 48 of 2012. (The facts of the case differ). Where the Court of Appeal cited Fletcher –v- Autocar and Transporters Ltd (1968) 1 ALLER 726 where it was held:-

"The damages awarded should be such that the ordinary sensible man would not instinctively think either mean or extravagant, but consider that to sensible and fair".

[40]. Considering the evidence before me. I think a sum of $6000 is appropriate.

Punitive and Exemplary Damages

[41]. Plaintiff has claimed for punitive and exemplary damages. As I have stated in the judgment the plaintiff has suffered injuries while in police custody and the defendant had admitted pushing him to the cell. The plaintiff in paragraph 7 of the Statement of Claim has pleaded for exemplary damages. Strangely in the Statement of Defence the defendant has failed to deny averment 7 of the Statement of Claim. Instead the defendant has attempted to explain the reason why the plaintiff had been put in the cell. As per the evidence led the plaintiff has succeeded to obtain relief under this heading. The plaintiff has claimed $5000 under this heading. Considering the evidence tendered I award $2000 under this heading.

Interest

[42]. In Pidatt –v- British Rail Engineering Ltd (1980) AC 136 and in Jefferds and another –v- Gee [1970] EWCA Civ 8; (1970) 2 WLR 702 the principles in granting interest on special damages were discussed.

[43]. Accordingly I award interest at the rate of 4% per annum for general damages and 2% per annum for special damages.

Conclusion

[44]. Accordingly for the above stated reasons, I hold that the plaintiff has partly succeeded in proving his case on a balance of probability. I award the plaintiff damages in a sum of $8785.86. the said amount is made as follows:-

General Damages - $6000

Punitive and exemplary damages - $2000

Interest at the rate of 4% for 2 years - $640

Special Damages - $143

Interest at the rate of 2% of 2 years - $2.86

Total $8785.86

[45]. I also award a summarily assessed cost of $2000 payable by the defendant to the plaintiff.

Mayadunne Corea
JUDGE

10.12.2014