Supreme Court
Action No. 252 of 1980
21st March, 1984
Moe, C.J.

Mr. Denys Barrow, for the Plaintiff.
Mr. George Brown, Solicitor General, for the Defendant.

Personal injury - Plaintiff forcibly pushed into a drain by Defendant, a police officer acting in the course of his duties - Plaintiff found drunk by Defendant in a shop and railing up and using obscene language - Whether Plaintiff committed a petty offence by railing up in public - Section 42(1) (a) and (e) of Police Ordinance and Section 4 (1) (XXIX) and (XII) of Summary Jurisdiction (offences) Ordinance - Whether force used by Defendant to move Plaintiff from shop excessive - Damages - Plaintiff failing to state period during which he was absent from work due to injuries sustained as a result of the fall - Court unable to ascertain special damages - General damages - Plaintiff asking for aggravated and exemplary damages - Whether action of Defendant oppressive, arbitrary or unconstitutional.

J U D G M E N T

In these proceedings the Plaintiff claims damages on an exemplary or aggravated footing for an assault on him by the Defendant and for injuries and loss he suffered as a result. He alleged that on the 2nd May,1980 while he was in a grocery shop, the Defendant, a police officer, acting in the purported execution of his duty, grabbed him by the neck and pushed him out of the shop causing him to fall in a drain as a consequence of which he suffered broken ribs. The Defendant in his pleading averred that on the 25th April, 1980, the Plaintiff was causing a disturbance at the shop and he went to investigate. When the Plaintiff, who appeared to be under the influence of liquor and in an aggressive mood, refused to leave the said premises and became violent towards other persons in the shop, he took the Plaintiff by the arm and forcibly removed him out of the premises. Except to hold him by his shirt and arm and lead him out of the shop, he at no time used any force on the Plaintiff. Upon leaving the shop, the Plaintiff forcibly pulled himself free and fell down.

The Defendant has admitted an assault by him on the Plaintiff in that he removed the Plaintiff from a shop which he was in at the time. There was divergence in the evidence as to how the Defendant removed the Plaintiff. While the Defendant gave his evidence in a forthright manner, which could very well be due to his experience as a police officer, I found it difficult to accept his account on this issue. His evidence on this was not in keeping with the several averments in his pleading. I got the impression there was something wrong with the case he presented when his evidence departed on material aspects from the case he indicated in his pleadings. On the other hand the account given by the Plaintiff was not only consistent with his averment, but it was substantiated by a Miss Middleton, a witness called by the Defendant. Miss Middleton impressed me as having no axe to grind. I accepted the account given by the Plaintiff and Miss Middleton. I found that the Defendant held the Plaintiff by his shirt at the front to the neck and pushed the Plaintiff through one of the shop doors as a result of which the Plaintiff fell.

I turn now to determine whether the Defendant was justified in removing the Plaintiff from the shop. The evidence is that the Plaintiff was in the shop for the purpose of making a purchase. He appeared to be intoxicated and was railing up. The Defendant's attention was drawn to the shop and he went into the shop. In the Defendant's presence the Plaintiff railed up and used indecent language. There were about four other persons present. The Defendant requested the shop proprietor to serve the Plaintiff so that the Plaintiff could leave. The proprietor indicated he would not be serving the Plaintiff. The Plaintiff started to fuss and rail up again. Then the Defendant removed him as found above. The Defendant said that he did not arrest the Plaintiff. He had considered the Plaintiff was a problem because he was railing up, was using indecent language and was under the influence of liquor.

It was submitted on behalf of the Defendant that in removing the Plaintiff from the shop he was exercising powers which he had. Reliance was placed on section 42(1) (a) & (e) of the Police Ordinance, Chapter 59; section 4(1) (XXIX) and (XII) of the Summary Jurisdiction (Offences) Ordinance, Chapter 23.

Section 42(1) of Chapter 59 provides:-

"It shall be lawful for any police constable --- to apprehend without warrant --- (a) any person found drunk or who is disorderly in any street or public place at any hour of the day or night; (e) Every person who commits any of the offences mentioned in --- paragraphs (XI), (XII), (XXIX) --- of subsection (1) of section four of the Summary Jurisdiction (Offences) Ordinance."

Section 4(1) (XI) provides:-

"Every person who uses to or at any other person, or in the hearing of any person, any threatening, abusive, profane, obscene, indecent or insulting words or behaviour, whether calculated to lead to a breach of the peace or not, such several offences being committed in a street, or public place, or in a private enclosure or ground, shall be guilty of a petty offence."

(XII) provides:-

"Every person who - in any street or public place or in any private enclosure or ground is guilty of disorderly conduct, --- shall be guilty of a petty offence."

(XXIX) provides:-

"Every person who - in any street or public place is guilty, while drunk, of riotous or disorderly behaviour or is drunk --- shall be guilty of a petty offence."

On the facts, I found that the Defendant would have had committed by the Plaintiff in his view and hearing an offence against both sections 4(1)(XI) and (XII) set out above and the Defendant would have been entitled to arrest the Plaintiff. I also hold that the Defendant as a Police Officer was justified in taking such action as was reasonable to prevent the commission or continuation of the offence.

The question which then arises, was whether the action taken by the Defendant as set out above was reasonable in the circumstances? I have no hesitation in holding that the action taken went beyond what was reasonable in the circumstances. The assault on the Plaintiff was unlawful. He is entitled to damages for it.

The Plaintiff's claim is that it was on the 2nd May, as a result of the Defendant's assault, he fell in a drain and suffered broken ribs. His evidence was that he got up out of the drain, went home and was in severe pain that night. He went to the hospital afterwards. He was in pain for three weeks, couldn't walk, couldn't move to do anything and couldn't work. He couldn't help himself and his family had to turn him in his bed. In evidence also was a medical report which indicated that the Plaintiff was x-rayed on the 5th May and a fracture to the ninth and tenth left ribs disclosed. In cross-examination he admitted that he was at work on a date which showed that he wouldn't have been away from work for three weeks from the date of the incident whether the 2nd May as he averred or the 25th April as the Defendant avers. Nor could he say in which month he went back to work.

I accepted as a matter of probability that the fractured ribs which the Plaintiff suffered, were as a result of the fall into the drain and that he suffered pain there from. However, the Plaintiff's evidence was such that he did not establish with any clarity the period over which he suffered the pain nor the period over which he was away from work as a result. As a matter of special damages, I do not allow any sum for his claim for loss of earnings. I would allow as special damages $5.00 which he lost when he was pushed out of the shop.

Turning to general damages, I took into account the nature and extent of the injury suffered and the pain and suffering which the Plaintiff must have endured. He asked for aggravated and exemplary damages. His claim is that the action of the Defendant was oppressive, arbitrary and unconstitutional and done in his capacity as a police officer. One category of cases in which exemplary damages may be awarded is where there has been oppressive, arbitrary or unconstitutional action by the servants of the government. See Lord Devlin in Rookes v. Barnard (1964) A.C. 1129. This category includes all those who are exercising functions of a governmental character and thus includes the police.

As I found, the Defendant, a police officer, was exercising a power which he had. But I do not find that the action was arbitrary or oppressive or unconstitutional. Frequently the police must exercise their powers with firmness if required by the circumstances. In this case, the Defendant used more force than was required to exercise his power. I do not regard this as an appropriate case for the award of exemplary or aggravated damages.

Doing the best I can, I think, the Plaintiff is entitled to the sum of $1,500.00 general damages. He is to have his costs. Judgment accordingly.

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