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Kingdom of Tonga v Lolohea [2009] TongaLawRp 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.