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Kaufusi v Lasa [1990] TongaLawRp 1; [1990] Tonga LR 39 (16 February 1990)

[1990] Tonga LR 39

IN THE SUPREME COURT OF TONGA

KAUFUSI

v.

LASA & OTHERS

Supreme Court, Nuku'alofa
Webster J.
Civil case No. 29/1989
7, 8, 9 and 16 February 1990

Tort - unlawful arrest - assault - unlawful imprisonment - negligence

The plaintiff claimed that he had been unlawfully arrested and assaulted by the first defendant at a night club and had then been unlawfully detained at a police station by the first and second defendants, who had also failed to obtain appropriate medical treatment for him while he was detained, and were therefore negligent.

HELD:

(1) There were reasonable grounds for the arrest of the plaintiff for being drunk in a public place, and the first defendant did honestly believe the plaintiff to be drunk but the arrest was unlawful because the grounds of the arrest were not made known to the plaintiff;

(2) The assault on the plaintiff by the first defendant was unlawful because it was done in the course of an unlawful arrest; and even if the arrest had been lawful ,the assault by kicking him in the eye when he was lying on the ground was excessive;

(3) Although there had been no breach of the statutory procedures for dealing with a detained person, the detention in the police station was unlawful because the arrest was unlawful;

(4) The serious condition of the plaintiff's injured eye should have been apparent to the first and second defendants and they were negligent in failing to obtain medical treatment before his release the next day;

(5) The court awarded general damages of $15,000 and exemplary damages of $1,000, less $1,180 for the value of traditional gifts. (Damages were later increased on appeal - see Court of Appeal decision).

Counsel for the plaintiff: Mr L. M. Niu
Counsel for the defendant: Mr K. Whitcombe

JUDGMENT

The Plaintiff Taulanga Kaufusi sues the Defendants Sisi Lasa and Kitione Kepu, at the relevant time both police officers at Futu Police Station, 'Eua, plus their employers the Minister of Police and the Kingdom of Tonga, on four separate grounds.

The Plaintiff firstly claims that he was unlawfully arrested by the First Defendant at the Maxi Disco Hall, Futu on the evening of Saturday 4th March, 1989. Secondly he claims that even if his arrest was lawful the correct procedure was not followed at Futu Police Station with the result that he was falsely imprisoned when lie was kept in custody there overnight until 9.00 am on Sunday, 5th March. Thirdly the Plaintiff claims that the Defendants were negligent while he was in custody, in that they failed to perform their duty of care to him by making sure that he received medical treatment for his injured right eye. Finally and most importantly the Plaintiff claims that between the time of his arrest and reaching the Police Station the First Defendant assaulted him by punching him or kicking him on the head so that his right eye was ruptured and had to be remove two days later.

For these torts the Plaintiff claims special damages of $200 for loss of wages and expenses; general damages of $100,000 and exemplary damages of $100,000 for the unlawful arrest, assault and negligence; and general damages of $10,000 plus exemplary damages of $10,000 for the false imprisonment.

The defence of the Defendants was that the arrest of the Plaintiff was lawful as there were reasonable grounds to arrest him for being drunk; that there was no assault as the injuries arose during a struggle when the Plaintiff was trying to escape from custody and the First Defendant used reasonable force to restrain him, the injuries being unintended; that there was therefore no false imprisonment of the Plaintiff as the procedures at the Police Station were also carried out correctly; and that there was no negligence as the seriousness of the injuries was not apparent to the Defendants but the Plaintiff was released for treatment as soon as this was realised and in any event once the eye injury had occurred there was no treatment available for it.

The Plaintiff gave evidence himself and was supported, by other witnesses who corroborated various parts of his evidence. Sela Vailea had been dancing with him when he was arrested but was not sure whether he was drunk. Hupiloa To'a was a fellow worker who had been drinking with the Plaintiff beforehand and when he heard the Plaintiff was injured went to the Police Station at 1.00 am and saw him and then returned early on the Sunday morning and made sure that he was released and taken to Niu'eiki Hospital for treatment. Panepasa Tamaelau saw the Plaintiff lying on the ground and then being pulled to his feet and assisted to the Police Station by the First Defendant and later told Fine Sole of this. Tevita Pani had been drinking with the Plaintiff earlier and said the Plaintiff was drunk when he went to the dance; he saw the Plaintiff lying on the ground and being kicked on the head by the First Defendant, causing him to cry out "Oh my eye".

The Plaintiff also led evidence from the two doctors who had treated him, Dr Sengili Moala who had seen him in 'Eua on the Sunday and referred him to the eye specialist at Vaiola Hospital; and the specialist himself Dr Samiuela Taumoepeau who on the Monday removed the front part of the Plaintiff's eye and latter fitted an artificial eye. Dr Moala said that in his 19 years' experience most injuries like this were caused by a kick from a shoe or a punch; a circular post could produce the same result if it was small enough to go inside the eye socket. Dr Taumoepeau from his 46 year's experience as an eye specialist thought the injury had been caused by a blunt instrument (as opposed to a knife) possibly a first blow or kick or even something like a coconut which could penetrate to the eye itself. Both doctors were clear that at once this particular injury had occurred nothing could have saved the sight of the eye. Dr Taumoepeau said that the longer treatment was delayed, the more danger there was of sepsis.

The First Defendant gave evidence himself of his arrest of the Plaintiff for being drunk, of a prolonged scuffle when the Plaintiff tried to escape while being led to the Police Station, during which he heard the Plaintiff yell out "Oh my eye has been ruptured" and the subsequent detention of the Plaintiff at the Police Station and his release the next morning. The only other witness for the Defendants was Sione Tukia a police officer from 'Ohonua Police Station who took an uncautioned statement from the Plaintiff on the evening of Sunday, 5th March: he also said he charged the Plaintiff then and took a confession statement but this was not produced, nor any other evidence of this except in the Investigation Diary.