Author: JEANINE

IN THE SUPREME COURT OF SEYCHELLES

1.	BERNARD LAPORTE
2.	FABIEN LAPORTE				PLAINTIFFS

                                         VERSUS

		       THE GOVERNMENT OF SEYCHELLES
		       THE COMMISSIONER OF POLICE 
                                  MR JEFFREY CAMILLE		DEFENDANTS

								Civil Side No 231 of 2003

Mr. A. Derjacques for the Plaintiffs
Mr. J. Camille for the Defendants

JUDGMENT

Perera  J

This is a delictual action in which the two plaintiffs claim damages for injuries allegedly caused by the 3^rd defendant, a Police Officer.  The 1^st and 2^nd defendants are sued in a vicarious capacity.

It is averred that on 9^th August 2003, about 22.35 hours, at the Port Glaud District Community Centre, the 3^rd defendant, acting in the course of his duties as a Police Officer assaulted the 1^st and 2^nd plaintiffs with “fists and slaps to their faces.”

The defendants aver that the 3^rd defendant at the material time was conducting a routine patrol in civilian clothing at the said Community Centre, when he was verbally provoked and assaulted by the 2^nd plaintiff, and the 1^st plaintiff, who joined in the assault.  It is therefore averred that the 3^rd defendant acted in self defence.

On the day material to this incident, the 1^st plaintiff was the Security Guard on duty at the Community Centre where there was a musical show.  While he was controlling traffic at the premises, one of his sons told him that Fabien, (the 2^nd plaintiff) who is his other son, had been assaulted by someone.  When he went there, he saw the 2^nd plaintiff talking and arguing with another person.  When he asked what happened, the 3^rd defendant assaulted him and pressed him down to the ground.  Then the 3^rd defendant handcuffed him.  It was at that stage the  he knew he was a Police Officer.  The 3^rd defendant was wearing a T-shirt and red trousers at that time.  Two other persons who came with the 3^rd defendant pulled him away.

Later all of them went to the Port Glaud Police Station.  Corp: France Octobre who was on duty also accompanied them.  The 3^rd defendant removed his T-shirt and was aggressive.  He telephoned someone and thereafter Sergeant Major Mirabeau came there.

The 1^st plaintiff denied that he and the 2^nd plaintiff assaulted the 3^rd defendant or provoked him.  On being cross examined he stated that he did not see the 3^rd defendant assaulting his son Fabien.

The 2^nd plaintiff testified that he was seated near the Social Centre with  his brother and girl friend.  He saw some people trying to enter the hall, but a person at the entrance stopped them.  At that time a song titled “mafia” was being played, and several who were outside were also singing that song.  Then the 3^rd defendant who was one of those who had not been permitted to enter, came up to him and told him “sing again.”  When he refused, he assaulted him.  He moved away from him, but he still followed him and assaulted him in the presence of his girl friend and brother.  It was then that his father, the 1^st plaintiff arrived.  He was also assaulted.  The 2^nd plaintiff denied that he provoked the 3^rd defendant in any way.

In cross examination, lit was suggested to the 2^nd plaintiff that the song “mafia” contained provocative lyrics about Police Officers, but he denied that.

Rammi Laporte, son of the 1^st plaintiff, and the brother of the 2^nd plaintiff, a school-boy aged 19 years, recalled the events of that night.  He corroborated the evidence of the 2^nd plaintiff and stated that he saw the 3^rd defendant assaulting him.  He informed his father, who came there.  He was also assaulted.  Later at the Police Station, the 3^rd defendant was aggressive and was challenging others to fight.  On being cross-examined, he stated that the song “mafia” had lyrics offensive to  the Police.

Hilary Jacqueline, the girlfriend of the 2^nd plaintiff also corroborated the evidence of the 2^nd plaintiff and Rammi Laporte.  She had known the 3^rd defendant before the incident as she too had previously worked in the Police Force.  She stated that the 3^rd defendant slapped the 2^nd plaintiff although he stated that he was not singing.  When the 1^st plaintiff came, he was also assaulted.  At the Police Station he was aggressive but those who where there did not permit him to come out.

W.P.C. Marie Antoinette Hermitte was on duty at the Port Glaud Police Station that night.  The 1^st and 2^nd plalintiffs came with Corp. France October and complained that they were assaulted by the 3^rd defendant.  Then the 3^rd defendant came and became aggressive and wanted to fight others.  After Corp. October spoke to him he became calm.

Corp. France Octobre testified that he was on duty at the Community Centre when the 2^nd plaintiff complained to him that he was assaulted, and he advised him to go to the Port Glaud Police Station.  He did not see anyone being assaulted.  He accompanied him there.  At the station, the 3^rd defendant became very aggressive when he asked him for an explanation for his behaviour.  Sergeant Major Mirabeau came and told him that the 3^rd defendant was his responsibility  although he was a Police Officer.  He was taken away by  him before a statement could be recorded.  The 1^st plaintiff arrived later and complained to W.P.C. Hermitte that he was also assaulted by the 3^rd defendant.  Corp October recalled that in a statement to the Police he stated “he(3^rd defendant) became aggressive and stated that they (1^st and 2^nd plaintiff) had called him a “mafia” and that is why he assaulted them.”

Jean Malbrook, the District Administrator for Port Glaud was not on duty that night.  However he was aware of the musical show at the Community Centre, and was present on invitation.  He did not see the incident.  The 1^st  plaintiff complained to him, and he in turn reported the matter to the Ministry of Local Government.  He was aware that the 1^st plaintiff was on duty as security guard and that  security support would be given by W.P.C. Hermitte who was at the Police Station and Corp. Octobre who would also be on duty at the Centre.  He was unaware whether any other Police Officers had been assigned duties that night at the Community Centre.  It was a policy that any Police Officer on duty would have to produce his Police identity card if he wanted to gain entry to the hall.    

The 3^rd defendant in his testimony stated that he is an Officer attached to the Special Support Unit of the Police Force.  He was on patrol duty that night with two other Officers Sergeant Rose and Corp: Joseph.  At Port Glaud, there was a musical show at the Community Centre.  They decided to do a spot check around the building.  There were two young men seated outside. When he passed them one of them abused him in obscene language and called him “mafia”.  Then he showed him his Police identity card.  Just then somebody jumped on his back and when he turned, the T-shirt he was wearing got torn and the 1^st plaintiff fell on the ground.  He and the other two Officers L/C Octobre  was also present there.  All of them went to  the Police Station followed by the persons who tore his T-shirt.  While he was inside the station, the crowd outside were abusing him.  L/C Octobre gave the person who attacked him a Police Medical Form and asked him to go for treatment.  He denied being aggressive at the Police Station, but admitted that the Officer in charge admonished him for being arrogant.  He also denied assaulting the plaintiffs.

On being cross examined he stated that it was the 1^st plaintiff who jumped on him and tore his T-shirt.  At that time he did not know his name.  As regards the 2^nd plaintiff, he stated that he only spoke to him when he called him “mafia”.  He was not aware as to how he received an injury on his eye.  He denied that he was provoked by any song being played at the Centre at the time he came.

Archange Joseph, one of the Officers who accompanied the 3^rd defendant on patrol duty that night, stated that when they got down at the Community Centre, he heard the 2^nd plaintiff insulting them for being Police Officers by calling them “mafia”.  He did not see anything else thereafter.  However later the 3^rd defendant went to the Police Station as he had got involved in a fight.  He too followed him.  At the station the 3^rd defendant was aggressive, and he tried to calm him.

Sgt.  Major Francis Mirabeau testified that he was one of the Officer who were at the Community Centre that night with the 3^rd defendant, Sgt. Rose and Corp: Joseph.  While passing the verandah the 2^nd plaintiff insulted the 3^rd defendant in obscene language.  When the 3^rd defendant identified himself as a Police Officer, the 2^nd plaintiff pushed him.  Then the 1^st plaintiff came there and grabbed the shirt collar of the 3^rd defendant, and a commotion followed. Corp. Octobre also came and told the 3^rd defendant not to act in an irresponsible manner.   He was taken  to the Police Station followed by a crowd.  He did not see either the 1^st or the 2^nd plaintiff being assaulted by the 3^rd defendant. In cross examination he stated that even if someone called him a “mafia”, he would not assault him as Police Officers must act with restraint.

Liability  
I have considered the evidence adduced by both parties.  On a balance of probabilities, I would accept that the two plaintiffs were assaulted by the 3^rd defendant.  There was some provocation for the assault, either as the 2^nd plaintiff joined in singing of a song which was offensive to Police Officers, or made an offensive remark as the 3^rd defendant passed by.  But any provocation of that nature did not justify a Police  Officer assaulting a civilian.   In this respect I believe the evidence of the two plaintiffs and their witnesses.  Corp. Octobre admonished the 3^rd defendant for his aggressive behaviour at the Community Centre and at the Police Station.  W.P.C. Hermitte, also testified regarding his aggressive behaviour at the Police Station.  P.C. Joseph who was one of the Officers on duty that day with the 3^rd defendant also testified the same.  However, major Mirabeau, who was not named either by the 3^rd defendant or P.C. Joseph as an Officer who accompanied them when they came to the Community Centre, alone denied that he was aggressive at the Police Station.  I cannot therefore place much reliance on his evidence.  The aggressiveness of the 3^rd defendant can be attributed to the reaction of the crowd who followed them and continued to shout at him.  Had the 3^rd defendant not assaulted the plaintiffs, or on the contrary as claimed, he was the victim of an assault by them, the crowd would not have reacted the way they did.

The Court is therefore satisfied that the 3^rd defendant assaulted both the 1^st and 2^nd plaintiffs causing them physical injuries, and that hence he is liable in damages.

Quantum of damages
According to the Medical Report of the 1^st plaintiff (P1) there was a slight injury to his right eye with accompanied redness.  He was given pain killers.  As regards the 2^nd plaintiff, the Medical Report (P2) stated that he had complained of an assault on the face and attendant pain in that area.  Exhibit P3, gives the diagnosis as “soft tissue injury”.  He had complained of a headache.  His head was x-rayed with nothing abnormal diagnosed.  He was given paracetamol and valium.

The 1^st plaintiff claims Rs.35,000 for pain and suffering and injury to his face and Rs5000 as moral damages for humiliation, stress and distress.

The 2^nd plaintiff claims Rs.25,000 for pain and suffering for trauma and injury to the face as a result of slaps, and Rs.5000 as moral damages.

In the case of Christopher Fred v. A.G. (C.S. 154 of 2003), which involved an assault by a Police Officer,  the plaintiff received severe injuries.  His had hemorrhage of the left eye with diminished vision, perforation of his ear drum, with reduced hearing, and contusion on the left foot.  I awarded a sum of Rs.40,000 for pain and suffering.

In the case of Selwyn Esparon &  Ors v. J. Nibourette (C.S. 136 of 1998), a Police Officer was found liable for assaulting three persons.  The 1^st plaintiff  had a heomatoma on the left forehead, a confusion on the left side of chest, a deep laceration on the left hand, multiple skin lacerations on the right thigh and left leg.  I awarded a sum of Rs.15,000 for pain and suffering.

The 2^nd plaintiff had a deep lacerated wound on  the right side of the chest.   A sum of    Rs. 2000 was awarded.

The 3^rd plaintiff had a stab injury which had to be sutured.   He was awarded Rs.10,000.
 
On the basis of these awards, the injuries received by the two plaintiffs are comparatively less severe.  Hence I make the following awards.

1^st Plaintiff
1.	Pain and suffering for trauma and injury to eye		-	Rs.  8000
2.	Moral damages for humiliation, stress and distress	-	Rs.  2,000
-	Rs.10,000	

2^nd Plaintiff
1.	Pain and suffering for trauma and injury as a result of slaps	Rs. 5000
2.	Moral damages for stress, humiliation and depression                    Rs. 2000 
									Rs. 7000
									Rs17000
Judgment is accordingly entered in favour of the plaintiffs in a total sum of Rs. 17,000 together with interest and one set of costs taxed on the Magistrates’ Court Scale of fees and costs.

………………………
A.R. PERERA
JUDGE
Dated this 24^th day of November 2005