JUDGMENT

Denys Roberts CJ:

Preliminary The Pleadings

This is an action against a police officer, on duty at the material time, alleging an unlawful use of force.

In his statement of claim, dated 12 July, Zuffre bin Haji Zakaria ("the plaintiff' or "Zuffre") says that he was employed by the Brunei Government as a driver and that PC2783 Nurazmi bin Haji Layeh ("the defendant" or "Nurazmi") was a police officer.

On 5 March 1996 at about 11.30pm the plaintiff was sitting in the back seat of BG7542 with Majenah Ak Madak ("Majenah"), a lady friend, when the defendant appeared and asked the plaintiff what he was doing in the back of the car. The defendant claimed to be a police officer.

The plaintiff did not believe him and moved to the driver's seat, with the intention of driving off to a nearby restaurant to meet some of his friends there. The defendant, without identifying himself properly, jumped into the front seat and demanded that the plaintiff should stop the car.

The defendant then punched the plaintiff in the face, as a result of which the plaintiff lost control of the car. This hit a post, bringing the car to a halt. The defendant came out of the car, dragged the plaintiff out of the driver's seat and started to kick him.

As a result, the plaintiff suffered loss and damage. Particulars of his injuries are set out. The treatment carried out in Ripas concerned only Zuffre's cheek and eye. As special damage, the plaintiff also claims the value of the t-shirt which he was wearing at the time, which is valued at B$30.

It is also said that the defendant was activated by malice towards the plaintiff and abused his authority, subjected him to ridicule, as a result of which the injuries to the plaintiff have been aggravated. The plaintiff therefore claims aggravated damages. This was amended, during the trial, to "aggravated or exemplary damages".

A defence was filed, dated 25 March 1997. The defendant admits that he was in the back seat of BG7542, as alleged, save that the plaintiff and his lady friend were embracing at the time. He approached the car with the suspicion that the car had been broken into, as the back left-hand side window was open, and that it might have been stolen.

When he approached the car, he identified himself as a police officer and produced his warrant card. The plaintiff moved suddenly to the front seat of the car and tried to drive off.

The defendant says that, in pursuance of his duty to investigate a suspected crime, he got into the front seat and attempted to recover the keys. A struggle ensued but the plaintiff managed to drive the car for some distance until the left passenger door hit a post and the car stopped abruptly.

The defendant denies kicking or hitting the plaintiff as alleged. If there was any injury to the plaintiff, this was due to the self accident of the car and not to any action of the defendant.

The defendant does not admit any of the claims for special damages or damage. The defendant further alleges that, if there were any injuries suffered by the plaintiff, they were caused by or contributed to by the plaintiffs own fault in driving the car while there was a struggle in progress, when the defendant was carrying out his duty as a police officer. He adds that he was only using such force as was reasonable to restrain the plaintiff.

The Evidence Of The Witnesses

I have attempted to summarise their evidence below. This does not purport to be exhaustive and evidence which is not so summarised may be taken into account in my findings.

PW1 Zuffre bin Hj Zakaria is the plaintiff in the action. He joined the Brunei government ("BG") in 1993 and is a driver.

On the evening of 4 March 1996 he was in the Gadong area, where he had arranged to have dinner with three other BG drivers in a restaurant there.

He met a young woman named Majenah Ak Madak. He borrowed the key to BG7542, a Mercedes. This car was parked behind the Hasbollah Building.

He unlocked the car and entered it with Majenah, sitting with her on the b