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Hopoate v Finau [2002] TOLawRp 19; [2002] Tonga LR 119 (22 May 2002)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

C 524/2001

Hopoate

v

Finau anors

Ward CJ
11 February, 2, 26 April 2002; 22 May 2002

Damages – assault by police officer – exemplary damages – affected by previous conviction of officer

The plaintiff's de facto wife told the police the plaintiff had beaten her, shot her with a spear gun and then gone off with their baby daughter. She told the police that she was particularly concerned he might harm or even kill the baby. The first defendant (a police officer) and another police officer took the complainant in a police car to look for the plaintiff. They were unsuccessful at first but eventually located him still holding the baby. The first defendant went to the plaintiff and told him to get into the police car and threatened to "beat the shit out of him" if he did not do so. The plaintiff complied. He sat in the back seat still holding the baby. The first defendant sat beside him and told him to pass the baby to its mother who was sitting in the front passenger seat. Once the plaintiff had done so, the first defendant attacked him. The plaintiff received two punches to the right eyebrow and one each on his nose and his chin. At no time did the police officer driving the car take any action to try and stop the first defendant's assault. The second and third defendants denied the allegation of assault but the first defendant failed to file any defence and judgment in default of defence was entered against him on liability with damages to be assessed. The second and third defendants were sued in their capacity as the employer of the first defendant. They did not dispute their liability for the actions of the first defendant and so, once judgment was entered against the first defendant on liability, they admitted the claim. The first defendant had been convicted of assault in two previous cases. The parties were unable to reach any agreement on the proper level of damages and a hearing was held on quantum.

Held:

1. There was no excuse for gratuitous violence by police officers on people in their charge. The damages for the assault must be based on the actual injuries suffered including any pain and suffering. The proper award for such injuries was $750.

2. The judgment in default established liability for unlawful arrest and imprisonment. The court did not consider they merited a further award.

3. Aggravated damages may be ordered where the injury was caused in circumstances that resulted in additional injury to the victim's pride. The court considered that the humiliation of the attack was aggravated by the fact that he was assaulted in sight of his 18-month old daughter and his de facto wife. $200 aggravated damages was ordered.

4. The unlawful action of the defendant followed a clear condemnation of his similar previous conduct by the court. His unlawful conduct again in disregard of, or contrary to, that earlier case must make the oppressive conduct the more blameworthy and deserving of greater punishment in terms of exemplary damages. In those circumstances the court awarded exemplary damages of $3,000.

5. Some of the fault lay on the second and third defendants for allowing an officer convicted of criminal assault and censured by an award of exemplary damages to remain in such a position in the police that he would be able to carry out the same duties as previously. Had the plaintiff included a claim against them in those terms, the court might have considered a separate award of exemplary damages against them. However, the claim against the second and third defendants was based entirely on their vicarious liability for the actions of the first defendant and so a separate award would not be correct.

6. The plaintiff was awarded his costs up to the entry of judgment in default. The action could have settled if the figures claimed had been more realistic and therefore the court ordered that he should have only half his costs incurred subsequently to the judgment in default.

Cases considered:

Lavaka v Ministry of Police [2000] Tonga LR 17

Tonga v Ministry of Police [2000] Tonga LR 111

Counsel for plaintiff: Mr Fifita
Counsel for defendants: Mr Kefu

Judgment

This is a claim for damages for assault and false imprisonment. The first defendant is a serving police officer and it was claimed that he assaulted the plaintiff following the plaintiff's arrest on the complaint of his de facto wife.

A defence was filed on behalf of the second and third defendants denying the allegation but the first defendant failed to file any defence and judgment in default of defence was entered against him on liability with damages to be assessed.

The second and third defendants are sued in their capacity as the employer of the first defendant. They do not dispute their liability for the actions of the first defendant and so, once judgment was entered against the first defendant on liability, they admitted the claim.

The parties were unable to reach any agreement on the proper level of damages and a hearing was held on quantum.

The plaintiff, his de facto wife and a doctor gave evidence for the plaintiff.

The incident started from a complaint by the plaintiff's de facto wife. She told the police the plaintiff had beaten her, shot her with a spear gun and then gone off with their baby daughter. She told the police that she was particularly concerned he might harm or even kill the baby.

The first defendant and another police officer took the complainant in a police car to look for the plaintiff. They were unsuccessful at first because, it appears, the plaintiff was avoiding them. However, eventually they located him still holding the baby.

The first defendant went to the plaintiff and told him to get into the police car and threatened to "beat the shit out of him" if he did not do so. The plaintiff complied. He sat in the back seat still holding the baby. The first defendant sat beside him and told him to pass the baby to its mother who was sitting in the front passenger seat.

Once the plaintiff had done so, the first defendant attacked him. The plaintiff received two punches to the right eyebrow and one each on his nose and his chin. At no time did the police officer driving the car take any action to try and stop the first defendant's assault.

At the police station, the plaintiff was told to go in and his arrival was greeted with some hostility by the officer in charge of the police station. He gave evidence that he was taken into the police station between 10 and 11 am but it was pleaded he was first arrested at 11.00 am. He said he was eventually released at 5 pm.

On his release he went to the hospital but the doctor was busy and told him to return the following morning which he did. The doctor then listed his injuries as:

1. Swelling and tenderness to the side of the right eye

2. Tenderness to the nose

3. Lower first right incisor loosened

4. Cut to lip and swelling to left side of mouth.

The plaintiff was unable to eat proper food for about one week. The pain in his nose persisted beyond that time and he experienced recurrent nosebleeds for two weeks. There was no evidence of permanent damage.

The first defendant gave evidence in which he denied threatening the plaintiff. He admitted only two relatively gentle slaps administered, he said, because he had not searched the plaintiff properly before putting him in the police car and realised he could be dangerous. He pointed out that police records showed that the plaintiff was brought into the police station at 1.51pm, charged with assaulting his wife at 3.58pm and released at 4 pm.

In a case such as this where judgment on liability has been given in default of defence, the defendant cannot seek in evidence to deny the liability and I deal with the damages on the basis of the facts pleaded in the claim. The evidence at the hearing was to assess the degree and effect of the assault.

The basis for the claim of unlawful arrest and imprisonment was based on the fact that the plaintiff was not told why he was being arrested and was not taken before a magistrate.

As a result the plaintiff claims damages of $6,000 for the assault, $3,000 for unlawful arrest and detention, $2000 aggravated damages and $7,000 exemplary damages. As is too often the case, these figures are far too high and serve only to hinder the chances of settlement.

A number of cases have been cited to assist the Court with the assessment of appropriate damages. Most set a level far below the figures claimed. In the linked cases of Tonga v Ministry of Police [2000] Tonga LR 111 and Lavaka v Ministry of Police [2000] Tonga LR 17, damages were awarded on a scale more in keeping with this claim but that was a case of unlawful detention of, and a very violent assault with a belt and an iron rod on, a 13 year old and 14 year old in the course of investigation of offences with which they were never charged.

As has been said many times by this Court, there is no excuse for gratuitous violence by police officers on people in their charge. This is no exception. However, the damages for the assault must be based on the actual injuries suffered including any pain and suffering. I consider a proper award for such injuries is $750.

The judgment in default established liability for unlawful arrest and imprisonment. I proceed on the basis that those occurred but I do not consider they merit a further award.

Aggravated damages may be ordered where the injury was caused in circumstances that resulted in additional injury to the victim's pride. In this case he was assaulted by the officer in sight of his 18 months old daughter and his de facto wife. I consider the humiliation of such an attack was aggravated by that fact and I order $200 aggravated damages.

I also consider, as has this Court in so many previous cases, that an assault by a police officer on a man in his custody demands exemplary damages. I consider an appropriate award in a case such as this would normally be $2000. However, when the Court was considering the judgments in the cases of Tonga and Lavaka, it became apparent that the officer who committed the assault in that case was the same person as the first defendant in the present case. That was confirmed by counsel for the defendants.

The purpose of exemplary damages is to punish rather than to compensate the victim. Had this been a criminal case, the Court would have heard of previous convictions.

In this case, the Court has been advised of similar conduct in the past by this man. Should that not be a relevant consideration in assessing the appropriate level of exemplary damages? As the purpose is to punish for the improper conduct, it could result in an inappropriate level of punishment if a previous case is ignored.

There is authority for the proposition that the conduct of the defendant is a relevant consideration in assessing the level of exemplary damages. This includes his conduct up to the date of judgment (Praed v Graham [1889] UKLawRpKQB 176; (1890) 24 QBD 53) and his conduct at the trial (see eg Greenlands v Wilmshurst (1913) 3KB 507 and London v Ryder (1953) 2 QB 202). I can find no authority for the proposition that similar conduct prior to and unrelated to the present case can affect the award but I consider it must logically apply.

The unlawful action of the defendant in this case followed a clear condemnation of his similar previous conduct by this Court. It is clear that his unlawful conduct again in disregard of, or contrary to, that earlier case must make the oppressive conduct the more blameworthy and deserving of greater punishment in terms of exemplary damages. In those circumstances I award exemplary damages of $3,000.

It would seem some of the fault lies on the second and third defendants for allowing an officer convicted of criminal assault and censured by an award of exemplary damages to remain in such a position in the police that he would be able to carry out the same duties as previously. Had the plaintiff included a claim against them in those terms, the Court might have considered a separate award of exemplary damages against them. However, the claim against the second and third defendants is based entirely on their vicarious liability for the actions of the first defendant and so a separate award would not be correct.

However, it cannot pass without comment that an officer who has been convicted of, and successfully sued for damages for, a serious assault on young children is still in the police force. Nearly three years later, he has again abused his position as a police officer and similarly unlawfully assaulted a man in his custody. Allowing such a man to remain in the police force makes a mockery of law and justice and unfairly debases the work of other officers who carry out their duties properly and fairly.

The plaintiff should also have his costs up to the entry of judgment in default. I consider the action could well have settled if the figures claimed had been more realistic and therefore order that he shall have only half his costs incurred subsequently to the judgment in default.