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Fumera v Pahulu [2003] TongaLawRp 20; [2003] Tonga LR 96 (6 May 2003)

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

CV 715/01

Fumera

v

Pahulu

Ford J
29-31 January, and 10, 11, 24 February 2003; 6 May 2003

Damages – assault victim – provocation lowered award of exemplary damages

The plaintiff, Luigi Fumera, brought a civil action and claimed general damages of $30,000 and exemplary damages of $10,000 against the defendants on account of injuries sustained in an alleged assault. The first defendant was a Chief Inspector of police, "Pahulu". The second defendant was sued as Pahulu's employer. The assault was alleged to have taken place at the "Ambassador Night Club", Tofoa, in the early hours of the morning of Saturday 3 November 2001. The plaintiff, a 53-year-old man, came and spoke to the first defendant. He was standing on the top of the steps whilst the first defendant was still standing on the ground by the steps. They came into contact with each other as a result of which the plaintiff landed on the concrete floor at the bottom of the steps. He could not get up. He was sat up, blood was coming out of his right ear. He was taken inside the nightclub. A short while later he was taken to hospital where he was x-rayed and found to have a fractured right clavicle and six fractured ribs on his right side. He also had a perforated right ear drum. He was hospitalised for about two weeks.

Held:

1. The court found that no threat to arrest had been made and that Pahulu had said nothing about an arrest when he approached the plaintiff and struck him across the side of the head. Furthermore, had he been effecting an arrest, it would have been his duty to inform Fumera of the reason for the arrest, even if the reason might have been obvious. Unless the reason was given at the time then the arrest would have been unlawful. The law was that a police officer could only use such force as was reasonable in the circumstances to effect an arrest and, if necessary, the court would have held that the degree of force used on this occasion was totally unreasonable.

2. The plaintiff suffered serious injuries and was left with significant disabilities. He was entitled to compensation for the indignity and suffering which the assault caused. There was some evidence of economic loss and possible future expenses but it was extremely vague and, in any event, no such claims were included in the pleadings.

3. The appropriate sum for general damages was $15,000 and that was the amount awarded.

4. In assessing exemplary damages the court had regard to the element of provocation which was significant and concluded that only a modest award of exemplary damages was appropriate. The amount fixed under this head was $1000.

Cases considered:

Lane v Holloway [1968] 1 QB 379

Manu and Kingdom of Tonga v Muller [1997] Tonga LR 192 (CA)

Counsel for plaintiff : Mr Tu'utafaiva
Counsel for first defendant : Mr Niu
Counsel for second defendant : Miss Simiki

Judgment

The plaintiff, Luigi Fumera, brings this civil action claiming general damages of $30,000 and exemplary damages of $10,000 against the defendants on account of injuries sustained in an alleged assault. The first defendant is a Chief Inspector of police (for ease of reference I shall refer to him in this judgment mainly as "Pahulu"). The second defendant is sued as Pahulu's employer. The assault is alleged to have taken place at the "Ambassador Night Club", Tofoa, in the early hours of the morning of Saturday 3 November 2001.

In evidence, the 53-year-old plaintiff told the court that he is an Italian citizen but he came to Tonga in 1994 and has resided here ever since. In 2001 he was a shareholder in a Tongan company known as Oasis Company Ltd. Oasis operated the Ambassador nightclub and the adjoining "Loveboat Restaurant". The plaintiff's other two Italian partners were Ricardo Guerra and his wife Simonetta Maccio. The court was told that they had all come out from Italy together and after arriving in Tonga they set about building the nightclub/restaurant complex. Fumera worked as a chef in the Loveboat restaurant.

In his written submissions, Mr Niu listed a series of what he described as "Undisputed Facts". In response, Mr Tu'utafaiva confirmed that, with one exception, the facts stated were not in dispute. For convenience, therefore, I now set out the agreed background facts as summarised in counsel's submissions:

1. A dance was held at the Ambassador Night Club on the night of Friday 2/11/01. It was organised by a group from the village of Lapaha. The group sold tickets, charged, collected and kept all the money from persons who attended the dance, subject to paying the charge for the use of the nightclub, from 8 pm to 4 am, which was $600. The nightclub was to provide its facilities, the music for the dancing and liquor and drinks for purchase by the people there. The profit from the sale of liquor and drinks, as well as the $600 charged, was to be the revenue of the nightclub for that night. The nightclub would hold such dances two or three times a week.

2. Drunkenness, fights and disorderly behaviour were common, and the nightclub had to employ or engage men to be security officers who would stop and control such behaviour. At times the officers could not stop or control it and police assistance was sought. One bad incident occurred some two months prior 2/11/01, when the plaintiff was punched on the face and another man's foot was seriously injured, and the police were called to deal with the situation. Thereafter the security officers of the nightclub were increased to over 10 men.

3. The nightclub was operated at this time by two Italians, Ricardo Guerra and his wife Simonetta, for a company called Oasis Company Ltd, which also owned a restaurant next door called Loveboat Restaurant, in which the plaintiff, also an Italian, was the cook. These three Italians were shareholders in the company as well. They had operated the company and its operations for several years.

4. At about 12 midnight on this 2/11/01 night, fighting broke out between a group of boys from Tofoa and a group of boys from Lapaha outside of the nightclub. Sticks and stones were thrown from one group to the other and vice versa, as well as at the building of the nightclub itself.

5. Several telephone calls were made by Ricardo Guerra from the nightclub and also by Vai Luka from the car yard of Lafi Motors (across the road from the nightclub) to the police for help.

6. The first defendant who was the duty officer at the Central Police Station that night sent off a police vehicle with three police officers, Maka Ohi, Hungalu and Mailangi. Upon arrival near the intersection of Taufa'ahau road and the road going to the nightclub, they saw stones and rocks being thrown and the groups dispersing and running away. They found two boys lying injured at the road. They took them to the hospital and returned to the police station.

7. Not long afterwards another call came from the nightclub for help and again the first defendant sent off another police vehicle with three officers, Vilisoni Finau, Kolopeaua and Pihelotu Kata. When they arrived near the same intersection where the first police vehicle had arrived, they found rocks being thrown from boys who were in the bushes to the west of Taufa'ahau road. The rocks were also being thrown at the policemen themselves and their vehicle. They reversed their vehicle and drove around and came from behind but the boys had run away. They went to Tofoa and arrested a boy who was walking by the road and who said he had been in the fight. They then returned to the station and reported what happened to the first defendant.

8. Shortly after that another call was received from the nightclub asking for police help because of further fighting there. The first defendant then despatched four police vehicles to the nightclub and he too went in one of them. They found further fighting outside the fence of the nightclub premises which broke up and the boys involved ran away as before. The first defendant then decided to stop the dance and close the nightclub for the rest of the night so that the fighting would not resume.

9. When the first defendant informed Ricardo Guerra of his decision, Ricardo disagreed and maintained that he would not stop the dance or close the nightclub. The first defendant arrested him for obstruction and placed (him) in the police car. During the arrest, Ricardo resisted and his shirt was torn.

10. The first defendant then went inside the nightclub with several other policemen. He ordered the music stopped and the bar closed and told the people to leave because of the disturbance outside in order that they were not injured themselves. The people then began to leave.

11. Riccardo, after he was placed in the car and after the first defendant left to go inside the nightclub, called out to the plaintiff who was by the door of the nightclub to call police inspector Kuli Taulahi at his home in order that he would stop the first defendant from closing the nightclub and stopping the dance.

12. The plaintiff went and telephoned Kuli and explained what the first defendant was doing. He then went and told the first defendant to come and speak on the telephone to Kuli. The first defendant refused. The plaintiff again spoke to Kuli and then came and asked the first defendant for his name. The first defendant refused to give his name and he remained outside.

13. The music then started up again and the first defendant went back inside to see who had turned it on. He was informed by the disc jockey that the European man had turned it on. The first defendant then turned it off and went and looked for the European man but he had disappeared. (Ricardo who was placed in the police car had disappeared from it too). The first defendant went outside and stood by the steps of the entrance to the nightclub with police officer Vilisoni Finau as people were leaving.

14. The plaintiff came and spoke to the first defendant. He was standing on the top of the steps whilst the first defendant was still standing on the ground by the steps. They argued. They came into contact with each other as a result of which the plaintiff landed on the concrete floor at the bottom of the steps. He could not get up. He was sat up, blood was coming out of his right ear. He was taken inside the nightclub. A short while later he was taken to hospital where he was x-rayed and found to have a fractured right clavicle and six fractured ribs on his right side. He also had a perforated right ear drum. He was hospitalised for about two weeks.

Mr Tu'utafaiva takes issue only with the statement in paragraph 14 that the first defendant and the plaintiff had "argued". The critical part of the narrative, however, is the sentence which then followed which reads: "They came into contact with each other as result of which the plaintiff landed on the concrete floor at the bottom of the steps." In his helpful submissions, Mr Niu then went on to summarise the opposing claims of the plaintiff and the first defendant:

"The plaintiff claims that the first defendant punched him with his right fist on the left side of the head then grabbed him and threw him down onto the concrete floor at the bottom of the steps ...

The first defendant says that the plaintiff was swearing in Italian at him and that he told him to stop or he would arrest him. The plaintiff did not stop so he grabbed his shirt to arrest him but the plaintiff resisted and pulled him away (sic) from him and as result fell from the top of the steps onto the concrete floor at the bottom and thereby sustained his injuries."

In evidence, referring to the telephone conversation with police inspector Kuli Taulahi, (paragraphs 11 and 12 above) the plaintiff said that he knew Kuli because he had attended the Loveboat restaurant but he did not know his surname. He said that he told Kuli that the police were at the nightclub wanting to shut the function down but the fighting was outside the nightclub premises. Kuli told Fumera to find out the Inspector's name and to ask him to come to the phone. Fumera went outside and told Pahulu that inspector Kuli was on the phone and he wanted to know his name but Pahulu responded that "he didn't talk to pieces of shit".

Fumera then went back to the telephone and passed on what Pahulu had said and Kuli again told him to go and talk to the inspector. He did so but Pahulu still refused to give his name or go to the phone. The plaintiff recalled this evidence and I accept what he said but his description of the incident itself was less reliable. In evidence in chief, he said that he was leaning on the entrance door to the nightclub talking to a woman customer who was asking for a "rum and Coke", when Pahulu suddenly came up and grabbed him by the shirt. He heard Pahulu say something, but he could not remember what it was, and the next thing he knew was that he woke up in hospital.

Fumera said that he remained in hospital for some 10 days and when he regained consciousness he had pain all over and he was vomiting blood. He understood that on admission he was found to have a broken shoulder, broken ribs, a bleeding right ear and the swollen left eye. He described his treatment and his prognosis. He said that he still has problems today with his left eye; he has a continual "buzz" in his right ear and he cannot hear probably; he has also lost some of the use of his right arm.

In cross-examination, it was put to Fumera that he was drunk at the time and that he had been swearing in Italian at Pahulu. Fumera strongly denied the allegation and said that apart from "a nice wine once a week" he never drank alcohol and he never swore. He did, however, admit to having an "angry nature".

It was also put to Fumera in cross-examination that when Pahulu approached and grabbed him he had told him that he was arresting him but Fumera denied that Pahulu had said anything about an arrest.

Simonetta Maccio gave evidence. She said that she recalled the incident happening sometime after 1am. She told the court that she was working on the computer in her office at the nightclub when Pahulu came and opened her office door and told her to shut down the nightclub. Simonetta said that before she could do anything Pahulu walked quickly over to the DJ who was playing the music and operating the disco lights. She did not hear what was said but the music and the lights stopped and the inspector then walked over to the bar and closed it down. Simonetta explained that the customers inside the nightclub had "been dancing and having a nice time and there were no problems". She walked after the inspector and suggested to him that he "should sit down and talk about it peacefully instead of acting so rudely." The inspector kept on walking, however, and went back outside the premises.

Simonetta said that she was then approached by the lady from Lapaha who was running the social and they had a brief discussion. The lady gave her the money she had collected on the gate for safe-keeping and told her that she would pick it up some other time. As Simonetta was about to walk back and put the bag of money in her office, she heard someone screaming out, "Simonetta, Simonetta, Simonetta". She told the court that she ran outside immediately and saw Fumera on the ground with one of the security guards, Sioeli Tupou, trying to lift him up. Fumera was lying on the concrete area at the bottom of the entrance steps and blood was coming out of his ears and mouth and his shirt was heavily stained with blood. He was unconscious. Simonetta said that she was shocked and very angry with the person who had done it. She said that Inspector Pahulu and the policemen were just standing looking at Fumera. She said that while one of the security guards went to get his van to take Fumera to the hospital, the police got into their vehicle and left the nightclub. As the police were about to drive away, Pahulu yelled at Simonetta through the open car window, in Italian, the words, "fuck off". Simonetta estimated that it would have only been two or three minutes after Pahulu had gone outside the nightclub that she had heard the person screaming out her name.

In cross-examination, the witness said that when she went outside and saw Fumera lying on the ground she had asked, "who did it", and one of the security guards had either pointed or signalled with his head that it was Pahulu. She said that at that point in time Pahulu was standing only a couple of meters from where Fumera was lying on the ground and she turned to Pahulu and called him a "rabbit" and made a comment like, "you feel brave because you beat up an old man with so many young bodies around."

Simonetta went to Vaiola hospital with the plaintiff and she was given his clothing for safe keeping. The shirt he had been wearing that evening was produced as an exhibit and Simonetta identified the dark brown patches still evident on the shirt as dried blood.

Evidence was also given for the plaintiff by two of the security guards who had been on duty at the nightclub when the incident happened. The first witness, Sioeli Tupou, recalled the night in question. He did not know the name of the injured man but he described him and I am satisfied that he was referring to the plaintiff although, for some reason, he called him "Riki". The witness said that he recalled the police arriving and ordering the nightclub to be closed down. At that point, he was inside the nightclub and he closed the bar and then, with another security guard -- "Hameti", he went out to the entrance gate stopping anyone from entering the nightclub premises.

Mr Tupou explained how he became aware "from the tone of their voices" of an argument between Pahulu and Fumera. At that point, Fumera was standing on the porch at the top of the steps leading into the nightclub and Pahulu was standing on the concrete area at the foot of the steps. Although estimates varied, it appears that there were three or four average sized steps leading from the concrete pad up to the entrance porch and then to the side of the porch there was the entrance door way with one further step leading into the foyer of the nightclub itself. It would have assisted the court considerably and saved time in the evidence if photographs of the scene had been made available by the plaintiff.

Initially, Mr Tupou was standing close to the entrance gate but when he heard the arguing he walked over closer to the steps to the nightclub. He estimated that, at that point, he would have been approximately 15 meters away from the two men but from other measurement estimates given to the court, the distance was likely to have been less than 15 meters. In all events, I am satisfied that Mr Tupou had a clear view of what was happening. He told the court that he saw Pahulu walk up to Fumera and hit him sideways and then grab him and throw him to the ground. He demonstrated how, with a clenched fist, Pahulu had swung his right arm against the left side of Fumera's face hitting him around the left ear. The witness then saw Pahulu grab Fumera by the shirt around the upper part of the chest, lift him up off the ground and throw him down onto the concrete slab. He said that Fumera had landed sideways and his head hit the ground. He had then rolled onto his back. He noticed blood coming out from his ears and mouth. In the meantime, Pahulu had walked away and was standing by his police car while the witness, with assistance from the other security guard, looked after Fumera until he was taken to hospital.

The other security guard called by the plaintiff was Hameti Vea. He said that after the police closed down the nightclub, he was standing by the entrance gate ensuring that no one entered the premises. He saw Pahulu and Fumera facing each other at the top of the steps. He could hear them talking but they were speaking in English and he did not know what they were saying.

Referring to the incident, Mr Vea said that "the old man" was punched on the side of the face by Pahulu and thrown into the ground. He demonstrated the punch as a swing of the right arm with the elbow bent and the fist clenched. He also demonstrated how Fumera had been thrown down onto the concrete. Mr Vea said that Fumera was unconscious and blood was coming out from his nose and one of his ears. According to the witness, the six or seven policeman still at the scene stood back and did nothing and so he went over and assisted Mr Tupou in carrying Fumera into the building before he was taken off to hospital.

Evidence was also given on behalf of the plaintiff by Dr Lei Saafi, an ear, nose and throat surgeon and Dr 'Ana 'Akauola, a general practitioner. Dr 'Akauola examined the plaintiff some three weeks after the incident. She told the court that the x-rays revealed multiple fractures of ribs three to nine and a fracture of the collar bone.

Dr Saafi's latest examination of Fumera had been only a day or two before the trial began, which was some 14 months after the incident, and he reported:

"On examination his (R) ear drum still had a large perforation with some residual beneficial infection. It is now obvious that the perforation of the ear drum will never heal spontaneously by itself, therefore, he will need a major operation in the future to graft his ear drum and to examine the ossicles of his middle ear. This surgery may improve his hearing otherwise the damage is permanent."

In opening the case for the first defendant, Mr Niu said that the alleged punch by the first defendant and the throwing down onto the concrete surface were strongly denied. Counsel contended that what really happened was that Pahulu was attempting to arrest Fumera for obstructing the police in the course of their duty but the plaintiff resisted and he fell down the steps and hence, as counsel put it, his injuries were "the result of his own doing".

The first defendant, 'Otieni Pahulu, is 38 years of age. He joined the police force in March 1993 and he was appointed Chief Inspector in July 1999. In his written submissions, Mr Niu said that Pahulu had lived in Italy for a short time but, surprisingly, no evidence was led on that point or, for that matter, on his knowledge of the Italian language.

Pahulu told the court about the telephone calls the police had received on the night in question relating to the disturbances in the area around the Ambassador nightclub and how he had eventually attended the scene and then made the decision to close down the social function. He also explained the problems he had encountered with Ricardo who had wanted the function to continue. The Inspector recalled Fumera asking him for his name and telling him to come to the telephone but he could not recall whether Fumera had explained the reason or who was on the telephone. He told the court that he was more concerned about getting the people off the premises.

Referring to the incident, Pahulu said that at one point he had seen Fumera on the landing by the entrance door pointing at him and screaming and shouting at him in Italian. He said that what Fumera was saying (as translated) was that his (the Inspector's) mother was "a whore and a bitch". Pahulu said that he swore back at Fumera in Italian and said "fuck you". He then walked up the three steps to the porch and told Fumera to stop swearing and shouting or he would have to arrest him. He then returned to the parking area. Speaking in English, the witness carried on, in evidence in chief, to say:

"He still screaming his head off. Then I decided to arrest him. Not only for insulting abusive language but for obstruction of my duty.

Q. Did you speak to him again?

A. Yes, I spoke to him when I came up. When I came up again he rushed at me from top. He came down from the foyer and met me at the edge of the step. On three steps from the parking floor. He came right up to my face. Almost head to head because I was standing on the lower steps. He was on top. He was kinda higher than me. So he had to bend down and I thought he was trying to threaten me or something or attack me or something or he was going to do something so I grabbed him by the shirt like this because I had already decided to arrest him. When I tried to pull to control him and take him to the car he won't co-operate and resisted. So he was on the edge of the steps. I was on the bottom so I tried to control him again and he kinda lost balance on the top where he is and he was on top and I was the bottom so I had to let go of him and he dropped -- I think his head first. I was kinda surprised what happened.

Q. And what happened to him when he fell?

A. He fell. I think he was lying flat on the bottom steps on the, what you call it, slab on the sidewalk.

Q. I am asking you, when he fell describe what you saw when he fell?

A. We were facing each other like this. I was on the bottom straddling my feet -- he was on top and he was going to bend down to (indecipherable) my face and I hold his shirt. I think he fell like this. . . .

Q. When he fell what happened?

A. He lay back on his back. I was kind of amazed when I saw him because I did not use much force on him and I was kinda shocked."

Inspector Pahulu said that Constable Finau was standing close by and he started to pick Fumera up but he was unable to stand him up and two security people came and helped him. After that, Pahulu said he moved back a little and "told the boys" to take him to hospital and Simonetta came out from the nightclub and started screaming at him to his face. He said that she called him a coward for beating up an old man with all the policeman around to protect him. He said that she kept on yelling at him and so he said to her, "shut the fuck up bitch".

In cross-examination, it was put to Pahulu that he must have been very angry to be using abusive language. He denied being angry and said that the only reason he swore was because he was being provoked and insulted. He acknowledged that he saw blood coming out of Fumera's ear as he lay on the concrete and he conceded that he did nothing personally to assist the injured man.

The first defendant called evidence from two of the police eyewitnesses. Constable Vilisoni Finau had been a Constable for 15 years. Referring to the actual incident, Vilisoni said that he was standing some 3 meters away from the steps. He heard Pahulu say to Fumera, "I will arrest you for swearing at a police officer" and he said, "Pahulu then walked up the steps to the top and reached out to touch the Italian man." At that point, the witness said, he (the witness) "moved" indicating that he lost sight of what was happening for a moment but he then went on to say that there was scuffling, Fumera reached out to stop Pahulu from touching him but Pahulu grabbed the collar of Fumera's T-shirt and pulled him to take him away. Fumera was trying to remove Pahulu's hand from his shirt, there was further scuffling and when Pahulu pulled Fumera his feet lifted off the ground and he noticed Fumera falling to the ground but Pahulu was still holding him by the collar when he landed on his back. The witness was then asked (still in evidence in chief):

"Q. How did his back hit the ground?

A. He (Pahulu) was holding him until he hit the ground then he released him and stood up.

Q. So Pahulu could have held him up to prevent him hitting the ground?

A. Yes.

Q. But he never?

A. No."

Constable Finau said that he lifted Fumera up off the ground and asked two security men to assist and they stood by the side of him and supported him as they climbed the steps and walked into the building. He was asked whether he could see any injuries on Fumera and he answered:

"A. No. The only thing I saw was blood coming out of his left ear.

Q. What ear?

A. Both ears."

This issue was followed up in cross-examination and the Constable was asked why he had not taken Fumera to hospital. The Constable repeated that he did not know that Fumera was wounded and he made the comment that people can have blood coming out of their ears without being injured.

The other policeman called as an eyewitness for the defence was Constable Piheloti Kata who had been in the police force for 3 1/2 years. Referring to the incident, Constable Kata said that he was standing by his vehicle in the car park and he noticed Pahulu on the porch having an argument with Fumera. He said that Fumera was speaking in Italian and he did not know what he was saying but he heard Pahulu tell him to stop swearing. He then saw Pahulu, who he said was at the bottom of the steps, reach out to grab Fumera and he could see Pahulu holding onto his shirt. The Constable said that the Italian man tried to remove Pahulu's hand but Pahulu pulled him and the man fell down on his head. The witness did not see how he landed because a police vehicle blocked his vision. He said that Constable Finau came to Fumera's assistance and sat him up and then the two security men walked him into the nightclub but his (Fumera's) legs were still moving. The Constable said that he did not see any blood on Fumera from where he was standing.

I have given careful consideration to all the evidence relating to what I have referred to as "the incident" itself because, obviously, it is the crucial aspect of the case. There were significant conflicts in various aspects of the evidence and credibility became a key feature in the case. Although in general I formed a favourable impression of the plaintiff as a witness, I found his evidence relating to the incident itself unreliable. At one point in cross-examination he said that after Pahulu had grabbed him by the shirt, he punched him. I am satisfied, however, that this was only an assumption made with the benefit of hindsight and he had no personal knowledge of any punching. That was confirmed later in cross-examination when the witness said, "I think he (Pahulu) beat me up because he was the only one standing in front of me."

I found Simonetta a credible witness and with one or two inconsequential exceptions, I accept her evidence. She was not, however, a witness to the incident itself.

The two security guards were critical witnesses for the plaintiff and they both impressed me as honest witnesses doing their best to assist the court with their recollection of the events that had taken place. Although there were some minor discrepancies in their evidence, they did not detract in any way from the dramatic account which each man gave to the court. Through those two witnesses, the plaintiff clearly established his case. I am satisfied that Pahulu did swing his arm, first clenched, against the side of Fumera's face and then lifted him up and threw him down onto the concrete surface in the manner described. The throw, as demonstrated by each witness, was similar to the movement referred to in rugby terminology as a "spear tackle". The effect was equally as devastating. That is how the plaintiff sustained his injuries.

There was one particularly poignant moment during the trial which I noted in my Bench Book. The first security guard, Sioeli Tupou, had just described in evidence in chief how Fumera had landed on the concrete slab and was not moving but blood was coming out of his ears and mouth. The witness went on to say that the policeman did nothing but walked away and stood by the side of his car while he and the other security guard carried the injured man inside the building and tried to stop the bleeding. At that point in his evidence, Mr Tupou had tears in his eyes. I am satisfied that they were not the tears of a theatrical performance but tears of genuine sadness as he recalled and recounted the vicious attack and its aftermath which he had witnessed. Mr Tupou was obviously embarrassed over the tears and he turned away and looked out the side window of the courtroom. That moment, of course, is not something that will have been captured on the recording machine that transcribes the evidence.

As I have indicated, I found the evidence of these two witnesses quite compelling and I have no hesitation in accepting what they said. I have already expressed reservations about part of the plaintiff's evidence and I accept that he and Pahulu were involved in a heated argument immediately prior to the assault. The argument attracted the attention of the security guards. Fumera clearly did not want the nightclub closed down. I do not accept, however, the suggestion that Fumera was drunk or was using obscene language. He denied very early on in the case that he used swear words or drank alcohol, apart from the occasional glass of wine. I found that evidence persuasive and no independent witness gave evidence to the contrary.

Nor do I accept that Pahulu was in the process of arresting Fumera. Although he pleaded and gave evidence to that effect, in cross-examination he admitted that he did not advise the plaintiff that he was under arrest but he was going to tell him that later on, after he had made the arrest. The plaintiff denied that the inspector had said anything about an arrest and neither of the security guards or Constable Kata said anything about Pahulu arresting Fumera. The only witness who suggested that such a statement was made was Constable Finau. He said that it was made immediately prior to when Pahulu reached out to grab Fumera but not even Pahulu had stated that in evidence.

I find, therefore, that no threat to arrest had been made and that Pahulu had said nothing about an arrest when he approached the plaintiff and struck him across the side of the head. Furthermore, had he been effecting an arrest, it would have been his duty to inform Fumera of the reason for the arrest, even if the reason might have been obvious. Unless the reason was given at the time then the arrest would have been unlawful.

In any event, the law is that a police officer can only use such force as is reasonable in the circumstances to effect an arrest and, if necessary, I would have held that the degree of force used on this occasion was totally unreasonable. In a case where credibility was very much in issue the first defendant and his principal eyewitness, Constable Finau, contradicted each other and themselves on several occasions. Pahulu, for example, when speaking about Fumera's head hitting the concrete, raised the issue of the lighting in the area. He said that it was very dark and the only light was that coming out of the nightclub. He described the area in question as having "low visibility".

No other witness made any mention of poor lighting. Constable Finau, on the other hand, noted in evidence in chief that there was lighting and he went on to explain that a light was, in fact, positioned in the porch above the area where the plaintiff had hit the ground. I will not prolong this judgment any further by detailing other inconsistencies in the evidence presented on behalf of the first defendant but several examples were identified by Mr Tu'utafaiva in his written submissions.

Turning to the question of damages, it is clear from the medical evidence before the court that the plaintiff sustained serious injuries consistent with the use of considerable force. Dr 'Ana 'Akauola was asked in cross-examination why she had referred to the plaintiff in her report as a "victim of police brutality"? She replied that, "to have sustained the injuries he did, he would have had to have been brutally beaten." Commenting upon the multiple fractures of the six ribs (3 to 9) which the plaintiff suffered and the fracture of his right collarbone, the doctor compared them with a rugby injury but noted that in her experience, it would be unusual for a rugby injury to result in any more than one fractured rib. The doctor said that to sustain the number of fractures the plaintiff had on this occasion, would have required, "great force".

Dr Saafi described the perforation of the plaintiff's right ear drum as "traumatic" and said that in his opinion it was most likely caused by a punch or slap with an open hand on the ear. The doctor was asked in cross-examination whether the perforation could have been caused by a fall -- "hitting his ear on a step or on the ground". He replied that it was "not likely". There may appear to be some conflict between this evidence and that of the security guard who described the blow to the left-hand side of Fumera's face - not the right. The evidence was that the right side of Fumera's body and head had struck the concrete with huge force fracturing six ribs and the collarbone. I suspect that if the question put to the doctor had been framed in those terms instead of simply as "a fall", his opinion as to whether the perforation to the right ear could have been caused when his head hit the ground, may have been different but, even if the blow had been to the other side of the head, I am satisfied that a blow was struck with the consequences which the security guards described.

The doctor went on to say that the perforation to the right ear would never heal naturally and it would require a major operation in the future to graft his ear drum and to examine the ossicles of his middle ear. He noted that the plaintiff's hearing loss expressed in percentage terms, as result of the injury, was 40 - 60% and that further surgery may improve his hearing, "otherwise, the damage is permanent".

In Manu and Kingdom of Tonga v Muller [1997] Tonga LR 192, the Court of Appeal said:

"With regards to assault damages are recoverable under such well-known heads as pain and suffering; loss of amenities and enjoyment of life; and loss of future earning capacity (economic loss)."

In that case, the plaintiff had been left with a 5 % loss of function in his knee as result of an assault by a police officer. The trial judge had awarded general damages of $10,000 and exemplary damages of $1500. The defendants appealed against the quantum of damages. The Court of Appeal reviewed previous judgments going back to the late 1980s and concluded that the amounts were not out of line with other awards and dismissed the appeal. In doing so, the court made it very clear that, in relation to exemplary damages in particular, a higher award could have been justified.

The plaintiff in the present case undoubtedly suffered serious injuries and he has been left with significant disabilities. Apart from the heads of damages already referred to, he is entitled to compensation for the indignity and suffering which the assault caused. There was some evidence of economic loss and possible future expenses but it was extremely vague and, in any event, no such claims are included in the pleadings.

Having regard to all the evidence before the court, I consider that an appropriate sum for general damages is $15,000 and that is the amount which I award.

Turning, finally, to exemplary damages, the plaintiff claims $10,000. One factual aspect of the case which is relevant to the assessment of aggravated and exemplary damages is the question of provocation. While provocation is not a defence to an action for assault, it may be a ground for preventing or reducing an award of aggravated or exemplary damages -- Lane v Holloway [1968] 1 QB 379.

I am satisfied that immediately prior to the assault in the present case, the plaintiff did argue vehemently with the first defendant against his decision to close the nightclub. I am equally satisfied that the plaintiff's heated arguing coupled with Riccardo's earlier obstructive reaction and the provocative steps taken by both men to telephone the other police inspector to try and involve him in the situation, provoked the first defendant beyond endurance. Given his training and his background experience, Inspector Pahulu, of course, ought to have been able to handle the situation but he lost control and the plaintiff then bore the brunt of his vicious anger.

Having regard, however, to the provocation element, which I am satisfied was significant, and my assessment of compensatory damages, I have concluded that only a modest award of exemplary damages is appropriate. The amount I fix under this head is $1000.

Counsel for the second defendant, very properly, conceded at the outset that her client would be vicariously liable for any award against the first defendant and, on that basis, I simply enter judgment against the defendants in the sum of $16,000.

The plaintiff is entitled to costs, to be agreed or taxed.