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Kingdom of Tonga v Lolohea [2009] TOLawRp 38; [2009] Tonga LR 190 (10 July 2009)

IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku'alofa

AC 20/2009

Kingdom of Tonga

v

Lolohea

Ford P, Burchett, Salmon, and Moore JJ
1 July 2009; 10 July 2009

Damages – appeal against quantum awarded – unlawful punishments in prison – award varied

For the facts and the Supreme Court decision, see Lolohea v Kingdom of Tonga [2009] Tonga LR 168

The Respondent claimed damages against the Crown for wrongful imprisonment for a total of 326 days and for inhumane punishment while a prisoner at Hu'atolitoli prison. The Crown admitted liability and the trial in the Supreme Court related just to quantum. The court awarded compensation of $200 per day for 284 days – a total of $56,800. The court also awarded the plaintiff $17,500 for inhumane imprisonment and $7,000 for exemplary damages; and that the defendant should pay the plaintiff full costs and Consumption Tax on those costs. The Crown appeal challenged the awards for unlawful imprisonment, inhumane punishment and exemplary damages and claimed that the judge had no power to order the payment of consumption tax.

Held:

1. In respect to the award for damages for unlawful imprisonment, the Court considered that $46,000 was an appropriate award. When one took into account that that included the damages for inhumane punishment separately allowed in the Court below it was significantly less than the amount awarded there. The Court concluded that it was justified in interfering with that award. The Court took into account the following facts: on occasions the respondent asked to remain for a longer period in the punishment cell to read his Bible and study; the real value of money in the Kingdom and the fact that many people were unemployed; prior to his imprisonment, the respondent was paid $45 per night as a security guard which would be $270 per week for a 6 day week and up to $800 per week when delivering containers; he lost almost a year of his life and was treated in a degrading way; he was in prison for a little over 46 weeks longer than he should have been.

2. In respect to damages for inhumane punishment, the respondent claimed $10,000 and the lower court awarded $17,500. The Court of Appeal did not consider that the inhumane punishment which existed should be treated as a separate head of damages. It was a part of the total circumstances which should be taken into account in the general damages.

3. Consideration of exemplary damages was appropriate. It was clear that the decision to manacle prisoners to the bar described in evidence must have been made at a high level. In addition to that there was a failure by the executive to put in place the procedures which would have prevented the abuses which occurred. The respondent claimed $10,000 under this head. The Court considered that to be an appropriate award. The total damages awarded was $56,000.

4. The judgment in the court below was varied in the manner outlined. The award for costs in the lower court remained. The order for payment of consumption tax was vacated.

Cases considered:

Edwards v Pohiva [2003] TLR 231

Flint v Lovell [1935] 1 KB 354

Gamser v the Nominal Defendant [1977] HCA 7; [1976] 136 CLR 145

Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29; [2002] 2 AC 122; [2001] 3 All ER 193

Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 at 1228; [1964] UKHL 1; [1964] 1 All ER 367

Rowlands v Chief Constable of Merseyside Police [2006] ENCAC v 1773

State of New South Wales v Ibbett [2006] HCA 57

Tapa'atoutai and Lolohea v Police [2004] Tonga LR 108

Tavake v Kingdom of Tonga [2008] Tonga LR 304

Statutes considered:

Crown Proceedings Act (Cap 13)

Prisons Act (Cap 36)

Rules considered:

Prison Rules (Cap 36)

Counsel for the appellant : Mr Kefu
Counsel for the respondent : Mr Niu

Judgment

[1] This is an appeal and cross appeal from a judgment of Shuster J.

[2] The Respondent claimed damages against the Crown for wrongful imprisonment for a total of 326 days and for inhumane punishment while a prisoner at Hu'atolitoli prison. The Crown admitted liability and the trial in the Supreme Court related just to quantum.

[3] The amended statement of claim which was filed after the hearing, but before final written submissions were lodged, claimed a total of $260,000.00 for wrongful imprisonment and $20,000 for inhumane punishment. The latter sum was made up of $10,000 for compensation and $10,000 for exemplary damages. No specific sum was claimed for aggravated damages.

[4] The Crown maintained that the daily rate should be $100 as a maximum. It said that the sentence of 61 days served for escaping from prison should not be included, that the amount claimed for inhumane punishment was excessive and that the plaintiff was not entitled to exemplary damages and had not claimed aggravated damages.

[5] A word of explanation is needed in relation to the 61 days period referred to above. It is correct that this was a sentence imposed by a magistrate for escaping from prison. However, on appeal Ford J held that the Plaintiff and another prisoner were entitled to an acquittal on that charge based on the concept of duress of circumstances. He held that the punishment to which they were being subjected at the time, which counsel described as torture, justified the escape. During the escape the prisoners wrote to the Chief Justice complaining of their treatment and then surrendered back to the prison – see Tapa'atoutai and Lolohea v Police [2004] Tonga LR 108. The question as to whether the 61 days period should be taken into account will be addressed later in this judgment.

The Respondent's Treatment in Prison

[6] The following description of the Respondents treatment is taken from the judgment of Ford J referred to in the preceding paragraph.

"I set out below the summary of material facts taken from Mr Kefu's submissions:

"I. The first appellant, Lolohea, is currently serving a sentence of 6 years imprisonment for housebreaking, theft and possession of Indian hemp.

II. The second appellant, Tapa'atoutai, is currently serving a sentence of 15 years imprisonment for manslaughter.

III. During the appellants incarceration, they were both repeatedly put into maximum security for various prison offences under rule 159 of the Prison Rules.

IV. On 9 February 2002 the second appellant was put in the punishment cells for swearing and attempting to attack a prison officer.

V. On 21 December 2003 the first appellant was put in the punishment cells for running away on 20 December 2003 when he was part of a group of prisoners assigned to work at the Royal Palace in Nuku'alofa, and he was found at Vaiola Hospital in a drunken state.

VI. On 23 January 2003 the first appellant was put in handcuffs in the sunning cell because he was disobedient by shaking the doors of the punishment cells, and he was required to make a statement as to why he was shaking the doors but he refused.

VII. On 23 January 2003 the second appellant was put in handcuffs in the sunning cell because he was disrespectful, fieme'a by shouting he wanted to "suck a brain", and he was handcuffed to maintain the peace of the prison.

VIII. The first appellant's hands and legs were handcuffed around a pipe while he was lying on the floor, and he was wearing shorts and a singlet.

IX. The second appellant's hands were each handcuffed to the iron bars of the door to the punishment cells.

X. The appellants were handcuffed in this manner throughout 23 January 2003, and 24 January 2003, and were only released when they requested to got to the toilet or when they were fed.

XI. Around 10pm on 24 January 2003 the appellants escaped from Hu'atolitoli Prison.

XII. The appellants returned to Hu'atolitoli Prison voluntarily on 4 February 2003."

In his grounds of appeal, Mr Niu provided additional details of the punishment imposed. His description of these events was unchallenged:

"1. About 9am on Thursday 23/1/03, Lolohea was ordered to wear only a pair of shorts and a singlet and to lie back on the concrete floor of the sunning cell underneath and along where a 2 inch galvanised pipe was running from one concrete wall of the cell to the opposite concrete wall about 18 inches above the floor. His hands were then handcuffed above and hanging from the pipe, and his ankles were similarly cuffed above and hanging from the pipe with leg cuffs. He was thereby left exposed to the sun (the cell has no roof except for diamond wire mesh cover at the top) during the day and the cold and dew of the night.

2. At about 9:30am of the same morning, Tapa'atoutai was similarly ordered to wear only a pair of shorts and a singlet and to stand with his back against the outside of the steel bars of the closed door of his punishment cell (which has a roof). His right-hand was then cuffed above his right shoulder to the steel bar back behind him and his left hand was similarly cuffed above his left shoulder to the steel bar behind him with another pair of handcuffs. He would have to hang by his wrist if he was tired of standing or wanted to sleep.

3. They were both left at the mercy of the mosquitoes, which were always plentiful there.

4. Neither was told how long they were to be so cuffed. The only relief they had was when they were uncuffed to go to the toilet or have their meals, which was only for about 5 to 10 minutes.

5. They suffered and were tortured by the pain of the hand and leg cuffs, the bite and sting of the mosquitoes, the absence of sleep, the heat of the sun and the cold and dew of the night, and of the wet of the rain. The Chief Gaoler, Moleni Taufa (the Superintendant of Prisons) had ordered and had intended that these two prisoners be so punished and tortured in order that they would learn to obey and comply with the prison rules.

6. No such punishment and no torture is allowed under the Prison Act or Prison Rules. The punishment was unlawful.

7. Lolohea repeatedly asked the prison officers to allow them to consult a lawyer. Tapa'atoutai heard the requests. Other prisoners heard the requests. The request was not granted at all.

8. At about 10pm. on Friday night 24/1/03, with no hope of having a lawyer to see them and no knowledge when the torture would be over, they broke the cuffs off and broke out of Hu'atolitoli Prison and went into hiding.

9. At first they tried to see the Minster of Police and then the Chief Justice (but the Minister had shifted from his residence at Fasi to the fenced and guarded compound of Longolongo and the Chief Justice was away in Tuvalu until 3/2/03) to complain about their treatment in the prison. They decided to wait for the Chief Justice to return.

10. On 4/2/03 they wrote a letter to the Chief Justice about what had happened to them and gave it to a friend to take for them. They then went and gave themselves up to prison authorities on the same day."

The Judgment in the Supreme Court

[7] Shuster J outlined the facts and the arguments of counsel. He strongly criticised the prison service for its treatment of the Plaintiff. He described it as inhumane and totally unacceptable. In determining the amount of damages he took into account the plaintiff's conduct during the time he was in prison including his sometimes aggressive attitude towards other inmates and prison staff. He awarded compensation of $200 per day for 284 days – a total of $56,800. He also awarded the plaintiff $17,500 for inhumane imprisonment and $7,000 for exemplary damages. He ordered that the defendant should pay the plaintiff full costs and Consumption Tax on those costs.

The Appeal and Cross Appeal

[8] The Crown appeal challenged the awards for unlawful imprisonment, inhumane punishment and exemplary damages and claimed that the judge had no power to order the payment of consumption tax. Mr Niu for the respondent acknowledged before us that there was no justification for that order.

[9] The cross appeal essentially seeks the relief claimed in the amended statement of claim.

The Issues

[10] The issues to be determined on this appeal are:-

(i) The appropriate award of damages for unlawful imprisonment.

(ii) Should aggravated damages be included in that award

(iii) Should the 61 days period be included

(iv) What award should be made for inhumane punishment.

(v) Is the Crown liable for exemplary damages and if so what award should be made.

General Principles

[11] In Edwards v Pohiva [2003] TLR 231 this Court at p.244 adopted the classic statement of the grounds upon which a Court of Appeal will interfere in the assessment of damages by a judge set out in the judgment of Greer LJ in Flint v Lovell [1935] 1 KB 354 at 360:

"This court will be disinclined to reverse the finding of a trial judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this court, an entirely erroneous estimate of the damage to which the plaintiff is entitled."

[12] At page 241 of Edwards v Pohiva this Court adopted the following statement by the Judge appealed from of basic principles relating to the assessment of general and aggravated damages:

"Turning to the claim for general and aggravated damages, the relevant principles seem now to be well established. They were rather comprehensively analysed in two recent cases. First, by the English Court of Appeal in Thompson v Commissioner of Police of the Metropolis [1997] EWCA Civ 3083; [1998] QB 498, and more recently, by both the Court of Appeal, (Lord Woolf MR) and the House of Lords in the Brockhill Prison case [R v Governor of Brockhill Prison ex parte Evans (No 2) [2000] UKHL 48; [2001] 2 AC 19. The House of Lords upheld the approach outlined by Lord Woolf, which Lord Hope (at 40) described as a guideline "in an area where guidance was almost entirely lacking."

Lord Woolf (at 116) had noted:

"...there can be two elements to an award of damages for false imprisonment; the first is compensation for loss of liberty and the second being the damage to reputation, humiliation, shock, injury to feelings and so on which can result from loss of liberty."

In the Thomson case, Lord Woolf expressed the view that in calculating the proper compensation for loss of liberty the analogy with personal injury cases was closer than cases of defamation and the compensation was for "something which is akin to pain and suffering". In relation to aggravated damages his Lordship noted that a penal element can properly be involved, however, as he put it, "aggravated damages... are primarily to be awarded to compensate the plaintiff for injury to his proper pride and dignity and the consequences of being humiliated."

[13] As to whether ordinary and aggravated damages should be separately itemised the Court in Edwards v Pohiva approved (at page 243) the approach of the High Court of Australia in Gamser v the Nominal Defendant [1977] HCA 7; [1976] 136 CLR 145, 155. Aickin J said:

"[The judge] did not indicate that he had arrived at that figure by a process of attributing particular sums to individual ingredients and in this respect he followed the indication which this court had given in Arthur Robinson (Grafton) Pty. Ltd. v Carter [1968] HCA 9; (1968) 122 CLR 649 that it is preferable not to attempt to assess a figure under each possible individual heading and then to add up the total... There can certainly be no error in refraining from attributing separate amounts to various headings or topics regarded as matters to be adverted to in assessing general damages."

[14] As to exemplary damages the Court said at pp246-247:

"It is preferable, when the case requires consideration of basic, aggravated and exemplary damages to deal with basic and aggravated damages before exemplary damages. This is because, as Lord Woolf observed in Thompson at page 517, "exemplary damages should be awarded if, but only if, [the jury] consider that the compensation awarded by way of basic and aggravated damages was in the circumstances an inadequate punishment for the defendants." This approach was also adopted by this court in Kaufusi v Lasa & ors (above), Manu & Kingdom of Tonga v Muller (above), and Health Practitioners Registration Council & Kingdom of Tonga v Schafer-Macdonald [1997] Tonga LR 101. 290

[15] The issues to be determined will be considered in the light of the above principles.

The Award for Damages for Unlawful Imprisonment

[16] Issues (i) (ii) and (iii) will be dealt with together. Shuster J appears to have accepted the Crown submission that the 61 days spent in prison as a result of the sentence imposed for the escape was a lawful imprisonment and therefore should not be included in the period for which compensation was paid. The Crown made a similar argument in this Court. We take a different view. The result of the judgment of Ford J was to declare that the escape was justified by the inhumane treatment to which Mr Lolohea was subjected. Thus the term of imprisonment imposed for escaping was a consequence of the wrongful acts of the prison authorities. The period of 61 days should therefore be included in the time being considered in the calculation of general damages. The Crown's argument that s 4(2) of the Crown Proceedings Act applies therefore fails.

[17] It is unclear whether the Judge included aggravated damages in his assessment. At p.24 of his judgment in an italicised passage commencing with quotation marks it records in para 2(b) limitations on the award of aggravated damages – they can only be awarded where claimed and where there are aggravating features. He makes no clear finding on the first issue although his comments about the treatment meted out by the prison suggest that he accepted the existence of aggravating features.

[18] In the Supreme Court the Crown argued that aggravated damages should not be allowed because they had not been pleaded. In this Court Mr Kefu noted correctly that Mr Niu had conceded that was so. Mr Niu did not resile from that position in this Court but maintained that Edwards v Pohiva had set a benchmark of $800 per day for general damages. General damages will inevitably be affected by any aggravating features in the case. All the circumstances of each case must be considered. Aggravated damages when claimed separately are to compensate the plaintiff for injury to his proper pride and dignity – see the extract from Thomson referred to above. We accept Mr Kefu's submission that each case must be looked at on its own facts and that Edwards v Pohiva does not set a rate which should be applied in every case.

[19] The judge in the court below seems to have taken account of the respondent's behaviour in prison in assessing damages. In this court Mr Kefu argued that the fact Mr Lolohea was in prison for a serious offence and that he was an unruly prisoner should be taken into account. We do not accept this submission. Mr Lolohea's lawful term in prison paid his debt to society for his wrongful behaviour. However, we do take into account his evidence in the Court below that on occasions he asked to remain for a longer period in the punishment cell to read his Bible and study. We are also entitled to take into account as Ford CJ did in Tavake v Kingdom of Tonga [2008] Tonga LR 304 the real value of money in the Kingdom and the fact that many people are unemployed. We also take into account Mr Lolohea's evidence in the Court below that prior to his imprisonment he was paid $45 per night as a security guard which would be $270 per week for a 6 day week and up to $800 per week when delivering containers. He lost almost a year of his life and was treated in a degrading way. He was in prison for a little over 46 weeks longer than he should have been. In Tavake the plaintiff received $2,950 for unlawful imprisonment for 4 weeks. We consider that in this case $46,000 is an appropriate award. When one takes into account that this includes the damages for inhumane punishment separately allowed in the Court below it is significantly less than the amount awarded by Shuster J so we conclude we are justified in interfering with his award.

Inhumane Punishment

[20] Mr Lolohea claimed $10,000 under this head and the Judge awarded $17,500. We do not consider that the inhumane punishment which undoubtedly existed in this case should be treated as a separate head of damages. It is a part of the total circumstances which should be taken into account in the general damages and we have done so.

Exemplary Damages

[21] Counsel referred us to a number of judgments in Court in England, Australia and New Zealand. Mr Kefu relied in particular on the judgment of Lord Scott in Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29; [2002] 2 AC 122; [2001] 3 All ER 193. Lord Scott expressed the view that the entitlement to an award of exemplary damages was contrary to principle and should be rejected. However that case dealt with the issue of whether exemplary damages may be awarded for the tort of misfeasance in public office. The question of whether such damages are available generally was not argued and Lord Scott acknowledged that his views were provisional. It should be noted in that case that Lord Hutton appears to support the view of Lord Devlin in Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 at 1228; [1964] UKHL 1; [1964] 1 All ER 367 at 411 that exemplary damages are appropriate to punish conduct which is outrageous as being oppressive or arbitrary or unconstitutional.

[22] In the more recent decision of Rowlands v Chief Constable of Merseyside Police [2006] ENCAC v 1773 the issue of vicarious liability for exemplary damages was directly addressed by the English Court of Appeal. At para. 47 the Court had this to say:-

"47. The arguments generally for and against the retention of a power to award exemplary damages in limited classes of cases, as well as the arguments for and against awards being made [against] persons whose liability is solely vicarious, are canvassed in the Report of the Law Commission on Aggravated, Exemplary and Restitutionary Damages (1997) (Law. Com. No.247): see in particular paragraphs 1.210-229 in which vicarious liability is discussed. There undoubtedly are strong arguments of principle in favour of limiting the application of an avowedly punitive award to those who are personally at fault, who, in all but a tiny minority of cases brought against the police, could confidently be expected not to include the chief constable. However, since the power to award exemplary damages rests on policy rather than principle, it seems to me that the question whether awards can be made against persons whose liability is vicarious only must also be answered by resort to considerations of policy rather than strict principle. While the common law continues to recognise a power to award exemplary damages in respect of wrongdoing by servants of the government of a kind that has a direct effect on civil liberties, which for my own part I think it should, I think that it is desirable as a matter of policy that the courts should be able to make punitive awards against those who are vicariously liable for the conduct of their subordinates without being constrained by the financial means of those who committed the wrongful acts in question. Only by this means can awards of an adequate amount be made against those who bear public responsibility for the conduct of the officers concerned."

Earlier the Court indicated that such damages would be available for oppressive arbitrary and unconstitutional action. The Court also said at para 50 that the award of exemplary damages must be considered in the light of the award of compensatory damages in order to ensure that the total award is not excessive. An important question is whether the total award provides adequate punishment (para 51). A similar approach has been taken by the High Court of Australia in State of New South Wales v Ibbett [2006] HCA 57 where the Court approved the award of exemplary damages where liability was vicarious and there had been a misuse of coercive powers entrusted to public officials.

[23] In our opinion these principles should be adopted in Tonga. We consider that this is a case where, as a matter of policy, consideration of exemplary damages is appropriate. It seems clear from the evidence in this case and the earlier one before Ford J that the decision to manacle prisoners to the bar described in evidence must have been made at a high level. In addition to that there was a failure by the executive to put in place the procedures which would have prevented the abuses which occurred in this case. The Plaintiff claimed $10,000 under this head. We consider that to be an appropriate award. That will mean that the total damages award is $56,000.

Conclusion

[24] The judgment in the court below is varied in the manner outlined above. The award for costs in the lower court remains. The order for payment of consumption tax is vacated.

[25] In this Court each party has had some success. Costs should lie where they fall.