Proceedings Commissioner, Fiji Human Rights Commission v. Commissioner of Police

The Proceedings Commissioner at the Fiji Human Rights Commission brought a claim on behalf of J, against the Commissioner of Police, for alleged breaches of ss 25(2)[1] and 27(1)(f)[2] of the Constitution. J, who was working at the Village 6 Cinema Complex, found a new born baby in a toilet. The police were called and J went voluntarily to the Central Police Station, uninformed that she was under arrest. Acting Supervising Superintendent N instructed J to have a medical check at the CWM Hospital. J declined and told the police that she did have a condition causing her breasts to discharge but that this was an unrelated medical condition and not because she was the mother of the child. She continued to refuse to consent to the examination. She was taken to the hospital as a prisoner and alleged that the police threatened that she would be locked in a cell if she did not consent. She was not allowed to talk to a lawyer. J therefore consented and was examined. The doctor concluded that she had not given birth recently. As a result of these events, J lost her partner, her reputation suffered due to a certain article published in a Fiji newspaper, her brothers had ceased to speak to her and after three to four months she felt unable to work at the cinema.

In Civil Action No. 118093 of  2002 (see Additional Documents for text of this decision), The Fiji High Court found that, despite the fact that J had signed a medical form providing consent to the examination, the  “consent shown by her signature on the medical report must be  viewed in the context of police detention with a shadow of police presence in  the background”. She had therefore not provided informed consent to the medical examination and there was a breach of s 25(2)(the provision requiring informed consent) of the Fiji Constitution. In the matter of damages, the High Court held that “the level of damages awarded must be harnessed  against the backdrop of social and economic conditions of Fiji and not by some  universal standards” and that the level of the award must be moderate. The High Court also confirmed that J had the right to be treated with dignity and that a forced vaginal exam was an embarrassing experience, but noted that “the attitude of the plaintiff did not assist much” and “there was no need for her to get abusive”.  It awarded $5,000 damages for the breach.

J appealed to the Court of Appeal.

[1] Section 25(2) provides: ‘Every person has the right to freedom from scientific or medical treatment or procedures without his or her informed consent.’
[2] Section 27(1)(f) provides: “(1) Every person who is arrested or detained has the right: (f) to be treated with humanity and with respect for his or her inherent dignity.’

[Adapted from INTERIGHTS summary, with permission]

In allowing the appeal, increasing the damages to $15,000 but not awarding additional exemplary damages or an amount for pecuniary loss, the Court held that:

(1) A breach of a right under Chapter 4 of the Constitution (under which ss 25(2) and 27(1)(f) are) gave rise to a public law remedy actionable under the Human Rights Commission Act 1999 (Clayton and Tomlinson, The Law of Human Rights. Oxford University Press, 2000, Simpson v Attorney General (Baigent’s case) [1994] 3 NZLR 667, Maharaj v Attorney General of Trinidad and Tobago (No.2) [1979] AC 385, Kearney v Minister for Justice [1986] IR 116, Saman v Leeladasa [1989] 1 Sri LR1, Nilarati Bahera v The State of Orissa (1993) Crim LJ 2899, dicta of Lord Bingham in R v Secretary of State for the Home Department, Ex-Parte Greenfield (2005) 1 WLR 673 and dicta of Hammond J in Manga v Attorney General [2000] 2 NZLR 65 considered).

(2) This means that the general principles for the assessment of damages in tort did not necessarily all apply (Anufrijeva v Southwark LBC (2004) 2 QB 1124 followed). There was, however, support for the view that, when assessing damages for breaches of human rights, the courts were free to derive guidance from the law of damages in relation to torts (Dunlea v Attorney-General [2000] 3 NZLR 136, Marcic v Thames Water Utilities Ltd. (No.2) [2001] 4 All ER 326 and R (Bernard) v London Borough of Enfield (2003) HLR 4 considered).

(3) The desire of police to investigate the abandonment of the baby, which admittedly was of serious concern, was not sufficient to permit them to exercise a power which did not exist and which was expressly forbidden by Chapter 4 of the Constitution. It follows that the case ultimately did not call for any balancing of powers and rights, and the interests of law enforcement could not be invoked to moderate any award of damages.

(4) The Human Rights Commission Act included an award of damages as a discretionary remedy. Questions however arose as to the measure of damages and whether or not exemplary or punitive damages could be awarded. On occasions, declarations or orders to undo an existing breach would achieve the tutelary purpose and provide a vindication of a complainant’s right. In other cases, such a remedy would be insufficient to provide appropriate redress, such that an award of damages was justified.

(5) In the High Court, Justice Singh correctly observed that the level of damages must be harnessed against the backdrop of the social and economic conditions of Fiji (R (KB) v Mental Health Review Tribunal (2003) 2 All ER 209 and Marika Lawanisavi v Pesamino Kapieni Civil Appeal No. ABU0049.1998S, 13 August 1999 followed). Any attempt to derive a tariff of damages by reference to decisions in other jurisdictions was of little value, having regard not only to the substantial differences that can exist in relation to local economic conditions and values or expectations, but also because the legislation was not always uniform.

(6) Justice Singh also correctly stated that the level of the award must not be excessive but restrained and moderate (dicta of Cooke P in Simpson v Attorney General (Baigent's case) (above) followed. Such damages should also not be too low because that would diminish the respect for the essential policies which underpin the legislation (Clayton and Tomlinson (above) at p 1433).

(7) Other factors that were to be considered are the context in which the breach occurred, and the existence of a failure by the relevant authority to afford a complainant the protection of other rights. Also of relevance was the subsequent conduct of the Public Authority responsible for the breach.

(8) Although the Constitution envisaged the Court having a jurisdiction to make such orders as ‘it considers appropriate’ to ‘redress’ contraventions of Chapter 4 (s 41), exemplary damages should not be available for a breach of Constitutional rights in Fiji (XL Petroleum (NSW) Pty Ltd. v Caltex Oil Australia Pty Ltd. (1985) 155 CLR 448 at 471, Whitfield v De Lauret and Co. Ltd. (1920) 29 CLR 71 at 77, Rookes v Barnard (above), Broome v Cassell and Co. Ltd. (1972) AC 1027, R v Secretary of State for the Home Department ex Parte Greenfield (above), Anufrijeva v Southwark (above), R (on the application of KB) v Mental Health Review Tribunal [2004] QB 936, Odugo v Attorney General of the Federation & Ors (Nigeria) 1996 IC HRL 47, Ezeaka v The Commissioner of Police & Ors (1999) 1C HRL 165 and Attorney General of Trinidad and Tobago v Ramanoop (2005) UKPC 15 considered). The primary purpose of the remedy which had been accepted in the European Court of Human Rights, in New Zealand and elsewhere, and the fact that exemplary damage had not been awarded for breach of the European Convention on Human Rights and of the Human Rights Act 1998 (United Kingdom), pointed towards this conclusion.

(9) Where the breach was particularly serious, there was no reason why that should not be reflected in the level of the award for compensatory damages. There was no advantage in tagging labels to the damages available which might distinguish between conventional, aggravated and exemplary damages. In the present context, the concept of aggravated damages, which at common law have been awarded for hurt feelings, distress and so on, was directed to the same kinds of loss or harm as are dealt with in s 39(1)(d) of the Constitution, and, as a result, they did not require separate consideration.

(10) The behaviour of the complainant was irrelevant (Minister of Immigration v Udompun (2005) NZCA 128 distinguished). Equally unjustified was the somewhat illogical submission that the damages should be moderated by reason of the fact that J was an 'habitual smoker' and a person who was 'defiant of authority.'

(11) The breach of s 25(2) which also involved a breach of s 27(1)(f) was very serious. Many of the police actions were high handed and some unnecessary, such as the forced medical examination. They all involved a lack of consideration and exposed the complainant to highly embarrassing procedures which harmed her relations with her family which increased feelings of hurt and humiliation. There had been no apology from the police.

(12) The award of $5,000 compensatory damages was wholly inadequate and should be replaced by an award of $15,000.

[Adapted from INTERIGHTS summary, with permission]