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Brenett v Government [2004] VUSC 130; Civil Case 02 of 2003 (11 March 2004)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 2 of 2003

BETWEEN

SOLOMON BRENETT
Claimant

AND

THE GOVERNMENT
First Defendant

AND

THE COMMISSIONER OF POLICE
Second Defendant

Coram: Mr Justice Oliver A. Saksak
Ms Cynthia Thomas - Clerk

Counsel: Mr Richard Kalses of Counsel for the Claimant.
Mr Abel Kalmet of State Law Office for the Defendants.

Hearing Date: 20th November, 2003.
Judgment: 11th March, 2004.

JUDGMENT

This is a reserved judgment in respect of damages. The Claimant obtained judgment by default on 20th October 2003 on the basis that the Defendants had not delivered any defences in respect to his claims against them. I heard the claimant's oral evidence upon which he was cross-examined by Mr Kalmet on 20th November 2003. Mr Kalmet called no evidence to challenge or rebut any of the Claimant's claims.

The Claimant's claims are found in his statement of Claim dated 24th January 2003 as amended on 1st April 2003.

The Claimant was one of those persons apprehended by Officers of the Second Defendant as employees of the First Defendant during "Operation Klinim North" in early January 2000. He was taken from his house and village at Hog Habour by Officers of the Defendants at gun-point on or about 6th January 2000. He was threatened and verbally abused by police officers during the process. He was kept in an overcrowded cell with twelve others from 6th to 11th January 2000 without shower and proper food. He was brought to Port Vila along with the others on the RVS Tukoro with tied hands and for a long journey of about 18 hours. He was held in police custody until 13th January 2000 when he was allowed bail to return to Santo without charge. He returned to Santo on 24th January 2000. He appeared in the Magistrate's Court on 10th March 2000 on an unspecified charge. The charge was dismissed.

The Claimant therefore claims the sum of Seven Million Vatu in general damages under the heads of -

(a) Threats at gun-point on arrest;

(b) Threats at the police station, including verbal abuse;

(c) Ill treatment by police station, including both in Santo and Vila;

(d) Endangered life on the RVS Tukoro;

(e) Unlawful remand of the Claimant;

(f) Pain and suffering; and

(g) Worry and anxiety and embarrassment over arrest.

The Claimant claims a further Three Million Vatu (VT3.000.000) in exemplary damages. The total amount being claimed is Ten Million Vatu (VT10,000,000). He claims interests and costs and any additional orders deemed fit by the Court.

The Claimant claims for special damages in the sum of the Seven Hundred and Fifty Thousand Vatu (750,000).

The burden of proof rested on the claimant to prove his case on the balance of probabilities.

The Claimant gave oral evidence on oath. He relied also on his sworn statements and its annexures dated 27th March 2003 which were read into evidence. He lives at Hog Harbour Village, East Santo. He is employed as Cooperative Manager. He currently lives with a woman and they have a child. He is 34 years old. He took up the post of Manager in February 2002. Prior to that he was a farmer. He was arrested at his village on 6th January 2000. He was kept at the Police Station in Luganville until 11th January 2000 when he along with other detainees were taken to Vila on the RVS Tukoro. On arrival in Vila he was kept at the police custody until 13th January 2000 when he was taken to Court and was allowed bail on conditions. He lived with some Santo man by name of Roger Guy. He sometimes went without food or water just roaming the streets of Port Vila. He stayed for about two weeks until 24th January 2000 when he returned to Court and his bail conditions were varied to allow him to return to Santo. A local association paid for his plane ticket at VT10,300 to return to Santo. He refunded that amount to the Association. He attended Court on 10th March 2000 and found that the Court had his case dismissed.

During the period of his arrest and custody the claimant lost six heads of cattle, three cows and three bulls. He had a total of 21. When he returned he discovered that the bullocks had gone astray and six of them were lost. His garden and crops were damaged by bullocks. He left behind his two small sisters one a 16 year old and the other a 14 year old.

On the RVS Tukoro throughout the journey to Vila he had his hands tied behind his back with a piece of nylon robe.

He complained about a hot and overcrowded and smelly cell, that he almost suffocated. He did not ask to go to hospital and so did not have a medical report. In cross-examination the claimant confirmed that he suffered no physical harm. He confirmed that he was given rice and tinned fish to eat for five days whilst in the cell and complained that he had diarrhoea from it. He confirmed that the sea was very rough at the Devils Point on Efate but that during the full journey that there was no risk to his life. He confirmed that he did not ask to go to hospital. And he confirmed that he did not have any report or assessment of damage done by an Agricultural Officer.

Nelson Niel testified on Oath. He is 25 years old and a cousin brother of the Claimant from the Mother's side. He relied also on his sworn statement of 20th May 2003 which was read into evidence. He saw the arrest of the Claimant by the police from about 40 metres away. He saw him climb onto the police truck and was taken away.

In cross-examination this witness confirmed that the police were holding their rifles but they were not pointing them at anyone. That they talked with the claimant and he went onto the truck. That the police did not shout at the Claimant. He confirmed seeing the claimant's garden. It was a yam garden. He confirmed the claimant had bullocks but could not say how many although he did say that the claimant had "plenty". He confirmed that the Claimant lost six of them when he went to Vila. He saw the Claimant's bullocks stray from their fence when the fence was broken down. The fence is located by the roadside where everyone can see. He confirmed seeing people kill the Claimant's bullocks because that was the rule in their village.

The Defendants offered no evidence. Mr Abel Kalmet sought leave to make written submissions in relation to quantum of damages and leave was accordingly granted.

Mr Kalses submitted six issues to be determined by the Court as follows:-

1. Whether or not the Claimant was treated inhumanely?

2. Whether or not there was assault on the Claimant?

3. Whether or not the Claimant was falsely imprisoned?

4. Whether or not there was injury to the Claimant's reputation?

5. Whether or not the Claimant could recover damages from his crops and cattle lost due to his unlawful detention?

6. Whether or not the Claimant was maliciously prosecuted?

I deal first with Issues 1, 2 and 3.

It appears from counsel's submissions in response that the Defendants do not deny that the Claimant was assaulted, falsely imprisoned and inhumanely treated by the police. They however dispute the amounts of damages claimed by the Claimant for each of these heads of damages. I will deal with quantum of damages later.

I deal now with Issue 4: whether or not there was injury to the Claimant's reputation?

Mr Kalmet submitted that before the Claimant can recover under this head he must show that his reputation did suffer. Counsel submitted further that the Claimant did not prove any damage to his reputation. He referred the Court to the definition of the term 'reputation' as defined in Dias V. O'sullivan [1949] ALR 586 per Mayo, J at p. 591:

"[It] depends on the qualities of depravity attributed to him by the community, or by such portion of community is aware of his existence and is sufficiently interested to ascribe the characteristics to him and to accept the same as true. Reputation is a popular belief of the nature of the man's character".

I accept this submission. The Claimant did not show evidence of how his reputation suffered as a result of what the officers of the Defendants did to him. His claim for damages under this head therefore fails.

Issue 5 is in relation to damage to crops and loss of cattle.

Mr Kalmet submitted that the Claimant did not show that he did in fact suffer loss to cattle and crops. Further he submitted that if there were such losses, that it was caused by the defendant's actions. I deal first with the Claimant's claim for loss of cattle. His evidence was that a total of six went missing while he was away in Vila. Out of the six, three were cows and three were steers. His witness saw the persons who killed them although he could not reveal their names. I am prepared to accept his evidence. The Claimant claims VT400.000 for all six heads of cattle. That is about VT66,666 per head. That is ridiculously high price. The Claimant did not call evidence to show he normally sells his cattle and at what price he sells them for. I accept on the balance of probabilities that he does sell cattle if not commercially, locally but I do not accept that each head of cattle costs VT66,666. I will award damages for six heads of cattle but at a reduced sum of VT10,000 for each head making a total of VT60.000.

The Claimant claims VT100.000 for crops. Again he has not established what kind of crops there were and how many gardens were damaged. His witness said he saw only one garden and it was a yam garden. The claimant did not show if he was a farmer selling his crops regularly in the Market. And he did not show what prices he sold at. The usual and normal thing to do in case of claims for damage to crops was to obtain an Assessment Report by a Government Agricultural Officer. This did not happen. Therefore this claim is in doubt. I therefore accept Mr Kalmet's submission's in respect of this claim and no award will be made in relation to the Claimant's claims for damage to garden crops.

I deal now with the issue of malicious prosecution. It was submitted by Mr Kalmet that the tests are laid down in Savile v. Roberts (1699) 1Ld Raym, 374 where Lord Holt laid down the test required for an award of damages:-

"(a) The first would be to the fair fame of the Plaintiff or injury to his reputation;

(b) Secondly is damage by being put in danger of losing one's life, limb or liberty; and

(c) Finally damage to man's property, as where he is forced to spend his money in necessary charges to acquit himself of the crime of which he is accused."

Based on the Claimant's evidence I have already reached the conclusion that there was no damage to his reputation. Therefore the first test has not been met by him. However on the evidence, I am satisfied that the Claimant has met the Second and Third tests. He lost his liberty. His life was in danger with his hands tied behind his back and travelling on the RVS Tukoro when the seas were rough at Devil's Point.

On 13th January 2000 he was released on bail and required to return to Santo to appear in Court. He had to refund the sum of VT10,300 to an Association which stood in for him. When he eventually appeared in Court on 10th March 2000 the Court dismissed the charge laid against him. That in my view is malicious prosecution. In my view the Claimant is entitled to special damages in the sum of VT10.300. He claimed VT30,000 in respect of costs of travelling from his village to town for two weeks for reporting purposes. But he did not specify how he travelled or what means of transport and how much he was made to pay each way each day. He produced no receipts. He called no evidence to confirm his travels. The claim under this head will therefore be disallowed.

Quantum

I now consider the amount of damages to be awarded. The principles of awarding damages are laid down in the case of Silas Michel & Others v. The Government and the Commissioner of Police Civil Case No. 27 of 2003, [Unreported] and the various cases cited therein. This Court accepts and will apply those principles in assessing damages in this case, considering the merits and circumstances of the case as shown by the evidence.

In Silas Michel's Case all heads of damages were placed in three categories as -

(a) Compensatory or Aggrevated Damages;

(b) Exemplary Damages; and

(c) Special Damages.

I will follow the same principle in this case. All claims made under -

(a) False imprisonment;

(b) Distress and anxiety;

(c) Worry and anxiety;

(d) Fear of Police brutality;

(e) Endangered life on RVS Tukoro;

(f) Embarrassment over arrest;

(g) Trauma and stress;

(h) Arrest and remand; and

(i) Pain and suffering, will be placed under compensatory damages. The sums claimed by the Claimant are far too excessive. Local economic circumstances are of special consideration here, but at the same time any award made by the Court must also be seen to be reasonable and fair to do justice to the Claimant.

In my opinion the fair and reasonable amount of compensatory damages to be awarded to the Claimant is the sum of VT300.000. The sums of VT30.000 to VT40.000 submitted by Mr Kalmet are far too low.

For Special Damages, the Claimant has not shown by evidence that he is entitled to VT200.000 claimed as maintenance and financial support. Further he has not shown that he is entitled to costs of travelling at VT30.000. But he is entitled to travelling costs from Vila to Santo at VT10.300. And he is entitled to VT60.000 for loss of six heads of cattle. The total award made in respect of the Claimant's special damages are to be in the sum of VT70, 300.

Finally the Claimant is entitled to exemplary damages. I assess the fair and reasonable amount of award under this head to be the sum of VT100,000.

Summary

In summary the Claimant is entitled to and is awarded the following -

ORDER

(1) The Defendants are hereby Ordered to pay the Claimant damages in the sum of VT470,300.

(2) The Defendants are to pay the Claimant's costs of and incidental to this Action.

DATED at Luganville this 11th day of March, 2004.

BY THE COURT

OLIVER A. SAKSAK
Judge