in republic of trinidad and tobago in the...
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IN REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Civil Appeal No. 95 of 2010
BETWEEN
THADEUS CLEMENT
Appellant
AND
THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
Respondent
PANEL: P. Weekes, J.A.
P. Jamadar, J.A.
N. Bereaux, J.A.
APPEARANCES:
Mr. G. Ramdeen for the Appellant.
Ms. R. Thurab for the Respondent
DATE OF DELIVERY: 31st July, 2013.
I have read the judgments of P. Jamadar, J.A. and N. Bereaux, J.A. and for the reasons given I
agree that the appeal be allowed and the order of the trial judge in relation to general damages be
set aside.
P. Weekes
Justice of Appeal
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JUDGMENT
Delivered by P. Jamadar, J.A.
Introduction
1. This appeal arises out of an assessment of damages and the consequent orders made by
the trial judge on the 26th
April, 2010. The action was commenced on the 7th
September, 2009.
The Appellant’s claims against the Respondent (as disclosed on the claim form) were as follows:
i. Damages and or exemplary damages for malicious prosecution;
ii. A declaration that the claimant was denied and or refused his constitutional rights
pursuant to Section 5(2) (c) (ii) of the Trinidad and Tobago Constitution, the right
to retain and instruct without delay a legal advisor of his choice and hold
communication with him;
iii. A declaration that the claimant was deprived of his constitutional rights to
communicate with a friend via telephone;
iv. Damages including vindicatory damages for the vindication of the claimant’s
constitutional rights as aforesaid;
v. Interest at such rate and for the period as the court may deem just;
vi. Costs;
vii. Such further and or other reliefs as to the court may deem just.
2. The Respondent filed its defence on the 11th
December, 2009. However pursuant to a
written application of the 29th
January, 2010 the defence was struck out. Judgment was entered
in default of defence on the 11th
February, 2010 and the matter proceeded to the assessment of
damages.
3. On the 26th
April, 2010 the trial judge gave his decision. The order of the judge was in
the following terms:
1. Damages be awarded to the claimant:
(a) The sum of ninety-two thousand dollars ($92,000.00) as general damages;
(b) The sum of eight thousand dollars ($8,000.00) as special damages;
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2. Interest at the rate of six percent (6%) per annum on general damages from the date
of filing the claim to the date of judgment and at three percent (3%) per annum on
special damages from the date of breach (23 October 2004) to the date of
judgment; and
3. Prescribed costs in the sum of fourteen thousand eight hundred and fifty dollars
($14,850.00) awarded.
It is in this context and in light of this order that the appeal was filed (and no counter appeal
brought).
4. As is obvious from the order, a single sum of $92,000.00 for general damages was
awarded by the trial judge. However no indication was given in the order as to what torts this
sum was awarded for. [The orders for special damages, for interest and for costs are not
challenged].
5. In the trial judge’s short reasons, received on the 22nd
May, 2013 on the morning of the
appeal, he indicated as follows: “The claim for damages covers both the tortuous heads of false
imprisonment and malicious prosecution and as well damages under the Constitution”.1 In
relation to his assessment the trial judge stated2:
“I have examined all the facts in this case as stated in the witness statement of the Claimant
which of course at this stage is uncontested and not in dispute. I have examined the cases
submitted by the Claimant3 in particular Ted Alexis v AG HCA 1555 of 2002 and Naidiki
in my award for general damages covering the torts of false imprisonment and malicious
prosecution. In so far as false imprisonment is concerned it takes into account his
deprivation of liberty and unlawful incarceration for 150 hours, for the malicious
prosecution for the charge of robbery, the indignity and humiliation caused to him by the
charges. This is a case where aggravated damages are applicable to reflect the manner of
1 See paragraphs 3 and 4 of the trial judge’s reasons.
2 See paragraphs 5 and 6 of the trial judge’s reasons.
3 Subiah v AG PC 39 of 2007, Romauld James v AG CA 154 of 2006, Dale Maharaj v AG HCA 5263 of 1996,
Mondesir v AG HCA 1903 of 1997, Stephen Singh v AG HCA 3031 of1994.
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his arrest and his detention at the remand yard, the unpleasant conditions, the number of
days his matter dragged on a charge in which the complainant failed to show, his feelings
of hopelessness, as well as exemplary damages for the manner of his prosecution and the
threats issued to him at the police station. I am mindful that an award of exemplary
damages is necessary to record my disapproval and to punish the Defendant for its
oppressive and arbitrary action.
Adopting the approach of Justice Kangaloo I approach this assessment of damages in the
round as in Ted Alexis. I have examined the other facts in the authorities referred to me
and I am of the view that based on the consideration outlined above I award the sum of
$85,000.00 in general damages inclusive of aggravated damages. Exemplary damages of
$5,000.00 will be awarded. To ensure that there is no double counting or double recovery
however to at least reflect the vindicatory element of the constitution right that has been
breached an award of $2,000.00 for the breach of his constitutional right. The total award
therefore is $92,000.00 in general damages, special damages in the sum of $8,000.00 that
comprises the sum of $5,000.00 for legal fees and $3,000.00 for loss of earnings. Interest at
the rate of 6% on general damages from the date of filing the claim to date of judgment and
3% per annum on special damages from the date of the breach on the 23rd
October 2004 to
the date of judgment. Prescribed costs in the sum of $14,850.00.”
6. At the hearing of the appeal several issues were clarified and agreed. These were as
follows:
(i) This was a private law claim in tort and not a constitutional claim per se.
(ii) As such, though exemplary damages may have been awarded no vindicatory damages
should have been awarded.4
(iii) Any award for exemplary damages is separate from an award for general compensatory
damages and attracts no interest. 5
4 See Takitota v The Attorney General of the Commonwealth of the Bahamas PCA No. 71 of 2007, per lord
Carswell, at para. 15 and Webster v The Attorney general of Trinidad and Tobago [2011] UKPC 22, per Lord
Wilson, at para. 16. Note: in claiming damages in tort, including exemplary damages, the Appellant could have
benefited from a finding that his constitutional rights had been infringed; but did not need a declaration to that
effect. 5 See The Attorney General of Trinidad and Tobago v Ramanoop [2006] UKPC 15] at para. 12, per Lord
Nicholls; Merson v Cartwright & Anor (Bahamas) [2005] UKPC 38 at para. 15, per Lord Scott, and Wallace v
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(iv) No award for damages for false imprisonment should be made, as at the date the matter
was commenced such a claim was statute barred.6
(v) Ideally if damages for both false imprisonment and malicious prosecution were to be
assessed, separate awards for the different torts should have been made.7
7. Further, given the fact that no separate award for exemplary damages was reflected in the
order, it was also agreed (and properly so) that the Respondent be allowed to argue that the trial
judge’s award of exemplary damages was wrong and that no award for same should have been
made in this matter.
Review by the Court of Appeal
8. It is well settled that the court of appeal will only interfere with an award of damages if it
can be persuasively demonstrated that the judge doing the assessment erred in law/principle
(which includes not only error of law but also giving undue or insufficient weight to the
evidence) or made an award that amounted to an entirely erroneous estimate of the damages, that
is, an award that was “inordinately low or unwarrantably high”.8
9. Clearly there have been some errors of law made by the trial judge. In so far as the trial
judge awarded $2,000.00 as vindicatory damages he was wrong to do so. In so far as he awarded
both exemplary and vindicatory damages he also erred. Further, in so far as he included the
award of $5,000.00 for exemplary damages in the award for general damages and ordered
interest payable on that sum, this too was wrong in law. Finally, in so far as he included in his
award for general damages damages for false imprisonment, he was also wrong to do so.
The Attorney General CV 2008- 04009, at paras. 45 and 70, per des Vignes J. Exemplary damages, being punitive
in nature, attract no interest. 6 The limitation period for the tort of false imprisonment is 4 years: Section 3 (1) (a) of the Limitation of Certain
Actions Chap. 7:09. The Appellant was arrested on the 23rd
October, 2004 and remained in custody for a period of 6
days. The action was filed on the 7th
September, 2009. 7 See Merson v Cartwright & Anor (Bahamas) [2005] UKPC 38, at para. 15 and Wallace v The Attorney
General CV 2008- 04009, at para. 45.
8 See Calix v The Attorney General of Trinidad and Tobago PCA No. 3 of 2013, at paras. 28 and 29, per Lord
Kerr (23rd
March, 2013); and Ramsaran v Sandy and Rampersad Civ. App. No. 55 of 2003, at para. 14, per
Nelson J.A.
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10. All of these errors justify this court reviewing the assessment made by the trial judge. In
addition, the overall total assessment of $92,000.00 awarded for general damages is an entirely
erroneous and inadequate estimate of the general damages that should have been awarded for
malicious prosecution in this case (taking into account an uplift for aggravating factors).
Disposition
11. We are of the view that a fair and just award for general damages for the tort of malicious
prosecution, including an uplift for aggravated damages, is $160,000.00. This figure is based on
relevant comparative awards, recent trends in the approach to these kinds of assessments and on
the particular circumstances of this case. We are also of the view that no award for exemplary
damages should be made in this case.
Malicious Prosecution: Heads of Damages
12. Apart from pecuniary loss, the relevant heads of damages9 for the tort of malicious
prosecution are as follows:
(i) injury to reputation; to character, standing and fame.
(ii) injury to feelings; for indignity, disgrace and humiliation caused and suffered.
(iii) deprivation of liberty; by reason of arrest, detention and/or imprisonment.
In addition, aggravating factors that can justify an uplift in the form of an award for aggravated
damages are to be considered.
The Evidence
13. The relevant uncontested evidence is to be found in the witness statements of the
Appellant and Kelvin Alves. This may be stated as follows. In October 2004 the Appellant was
a taxi driver. He was a registered member of the San Fernando Siparia Erin Road Taxi Drivers
Association. He serviced the San Fernando to Siparia route for over twenty years, working from
9:00 am to 7:00 pm Monday to Saturday. This was how he earned his livelihood. He was the
owner of his own taxi motor vehicle HBH 6810. He had “never been in trouble with the police
9 See Mc Gregor on Damages, 17
th Ed., 2003, paras. 38-004 to 38-005.
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before”.10
He had two children, aged 3 years and 17 years, who lived with him and for whom he
was responsible.
14. Very early in the morning on Saturday the 23rd
October, 2004, the Appellant was
changing the tyres on his motor vehicle in the vicinity of the Siparia market, when he was
approached by four uniformed police officers who accused him of robbing someone. In spite of
his denials, he was handcuffed in full view of persons who were present, thrown into a police
vehicle and taken to the Siparia Police Station. He described his feelings at this time as being:
shocked, confused, humiliated, embarrassed and ashamed.
15. At the Siparia police station he was made to wait for three hours handcuffed and accused.
Though he pleaded with the police officers to contact his friends who could verify his
whereabouts and so refute the accusation, they refused to do so. In fact he was never informed
of his right to retain and instruct without delay a legal advisor of his choice.
16. From the Siparia Police Station he was taken to the San Fernando Police Station. There
he was intimidated under threat of violence to sign a document which he did out of fear.11
He
was then charged with robbery contrary to section 24 (1) (a) of the Larceny Act.12
As is apparent
from the penalties that can be imposed upon conviction, this was a most serious charge.
17. Having been charged he was kept in a cell at the San Fernando Station for the entire
weekend until Monday 25th
October, 2004 when he was taken before a magistrate. He described
his experience over that weekend as follows13
:
6. “… During this time I did not eat and barely slept. I was ashamed and frustrated. I
felt completely alone. I have never been in trouble with the police before so I was
utterly disgraced.”
10
See para. 6 of the Appellant’s witness statement. 11
See para. 5 of the Appellant’s witness statement: “At the station the officers threatened to hit me with their guns if
I didn’t sign a document. I feared for my safety so I signed the document”. 12
Section 24 (1) (a) provides: “Any person who being armed with any offensive weapon or instrument, or being
together with one other person or more, robs, or assaults with intent to rob, any person is liable upon summary
conviction to imprisonment for ten years, and upon conviction on indictment to imprisonment for fifteen years.” 13
See para. 6 of the Appellant’s witness statement.
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18. What transpired before the magistrate on Monday 25th
October is somewhat confusing.
In the Appellant’s witness statement he asserted that he “was denied bail and subsequently sent
to the Remand Yard Facility where he stayed for about a week”.14
However the record from the
Magistrate’s Court Proceedings suggests that on the 25th
October he was granted bail with a
surety in the sum of $40,000.00. What is not in dispute, is that he was taken to the Remand Yard
and remained there until Friday 29th
October, 2004 (when he claimed the order for bail stated
above was made).15
In all he was unlawfully detained for about one week (150 hours) from
12:00 am on Saturday 23rd
October to 12:00 pm on Friday 29th
October.16
19. During the period at the Remand Yard the Appellant explained that he was extremely
worried about his children and felt ‘totally helpless’. He described his experience as follows17
:
8. At the Remand Yard Facility I felt like I was reduced to being an animal. I was
made to squat, finger printed and searched. The week I spent at the Remand Yard
was the worst week of my life. I would not want even my worst enemy to go
through what I did.
9. I was placed in a cell that was approximately 9 feet wide by 9 feet in length with
about 12 other prisoners. The cell was extremely filthy and the smell was
deplorable. The smell came from a makeshift toilet in one corner of the cell. I felt
nauseous to the point where I thought I would throw up. I could not eat and hardly
slept. When I slept I did so standing up. I only drank water for the entire week.
The whole experience was degrading especially since I had done nothing wrong. I
was being punished for a crime I did not commit. I prayed every night that the
injustice would cease. But every day that went by made me more and more
hopeless.
14
See para. 7 of the Appellant’s witness statement. 15
See para. 11 of the Appellant’s witness statement. 16
In Calix v Attorney General [2013] UKPC 15, Lord Kerr makes it quite clear that in relation to the tort of
malicious prosecution, unlike in the case of false imprisonment, the judicial act of granting bail “does not relieve the
prosecutor of liability … (and) the prosecutor remains liable for the damages caused by his setting the prosecution in
motion”. See para. 23 of the judgment. 17
See paras. 8, 9, and 10 of the Appellant’s witness statement.
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10. I was concerned about what was happening to my children and wondered what
would happen to them if I had to stay in jail much longer. Each day felt like a
month. I felt violated and that the justice system had failed me. I had worked so
hard to make an honest living and it seemed as though it did not matter. I was
thrown in jail when I had done nothing wrong. I was being punished for a crime I
did not commit.
20. Following the Appellant’s release from detention on the 29th
October, 2004, it took about
two and one half years (until the 24th
April, 2007) before he was discharged. In all he attended
court on eight occasions as follows: 4th
November, 2004; 22nd
March, 2005; 3rd
August, 2005;
20th
September, 2005; 23rd
February, 2006; 24th
July, 2006; 4th
December, 2006 and 24th
April,
2007. It is undisputed that: “The virtual complainant never turned up on any of the dates … The
prosecution was never ready to proceed with the case even though my attorney was .”18
21. During this period the appellant described his experience as follows19
:
“14. My livelihood has also been affected because of the blow to my reputation caused
by the charges that were brought against me. As a taxi driver I suffered greatly
because prospective passengers refused to travel with me. The matter went on for
over 2 years before it was dismissed and during this time my reputation was
dragged through the mud because people thought that I was a criminal. It even
took about 3 months longer than it usually does to get my taxi badge renewed
because of the charge against me. I was worried my children’s image of me would
be tarnished even though I was completely innocent. I was extremely embarrassed
and frustrated that the matter went on for so long.
15. I was treated with contempt by members of my community who constantly heckled
me in the general public as a result of the prosecution. I was ostracized and
alienated from society. I have been a law abiding citizen all my life and I found
the experience extremely embarrassing.
18
See para. 12 of the Appellant’s witness statement. 19
See paras. 14, 15 and 16 of the Appellant’s witness statement.
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16. After being released on bail, I spent 2 years worrying about when the matter would
end and my name would be cleared. I felt victimized by the justice system. This
matter hung over my head like a dark cloud that would not go away. I kept
praying for the best but I truly felt that the justice system had failed me.”
Reputation
22. The Appellant starts with a good character which has not been impugned. The Appellant
suffered real and substantial damage to his reputation and character. Injury to which must have
affected his livelihood. The seriousness of the charge/offence, especially in the context of his
occupation, is a most material factor in terms of the damage to his reputation. In a small country
like Trinidad and Tobago news spreads like wildfire. This is particularly so in relatively small
and still close knit areas like Palo Seco (where the Appellant lived) and Siparia (where he was
arrested) and along the route that he serviced. The Appellant as a taxi driver of good character
with minor children, earned an honest livelihood which depended on the public trust for success.
To have been accused of robbing a person, and taking that person’s wallet, ID card, driver’s
permit and money, could only have raised suspicion in the minds of those who may have wanted
to travel with him and who would probably have known about this incident. In Trinidad and
Tobago people often know who the taxi drivers are and choose to travel with one or other. It is a
unique feature of our society. The seriousness of the charge – robbery, would have adversely
impacted on the Appellant’s reputation given his occupation and the nature of the society in
which he lived and worked. Indeed, the Appellant testified that following his arrest prospective
passengers refused to travel with him. And further, that it took longer than usual to get his taxi
badge renewed.
Feelings
23. The Appellant suffered real and significant indignity, disgrace and humiliation. From the
moment of his arrest by the police, through their refusal to check out his story and verify it, to
their threats and intimidation to get him to sign a document and their failure to inform him of his
constitutional rights to consult an attorney without delay, the Appellant would and could only
have felt like a non-person, of no value or worth. His time at Remand Yard was completely
demeaning and his narrative about it is an all too common story that we judges hear. The
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humiliation and indignity to which citizens are subjected in the Remand Yard remain a blot on
our civility and humanity and on our democratic ideals. It is deplorable.
The two and one-half years spent before the courts, in circumstances where the virtual
complainant never appeared and the prosecution was never ready to proceed, would have
prolonged the humiliation suffered by the Appellant. This kind of prolonged delay is an
unwholesome blot on our criminal justice system. Delay for such periods, in circumstances such
as these, begin to approach a form of penalization. The threat of conviction and punishment
hanging over a person’s head in these circumstances would have caused the Appellant real
mental suffering and anxiety; especially in light of the behavior of the police at the time of arrest,
detention and charge.
Deprivation of Liberty
24. The Appellant endured a loss of liberty for about six (6) days (150 hours) in the
circumstances described above. The granting of bail on the 25th
October does not relieve
liability in this case.20
A person’s liberty, like their good reputation, is sacrosanct. To be
deprived of it in these circumstances must have caused great suffering to the Appellant. His
feelings of despair and hopelessness compounded by his anxiety for his two children could only
have exaggerated the impact of his loss of liberty and the mental suffering he had to endure.
25. In Millette v Mc Nicholls,21
Chief Justice de la Bastide highlighted the effects of the
‘initial shock’ that a person (especially one like the Appellant who had no prior involvement
with the police) experiences when first arrested and imprisoned. This initial shock must be
compensated and all the more in this case where it was accompanied by the high-handed and
illegal conduct of the police in intimidating and threatening the Appellant into signing a
document. In this case there was not likely to be very much ‘tapering off’ on the basis of the
‘adjustment … to the circumstances of imprisonment’ that Chief Justice de la Bastide spoke of in
Millette’s case. This is so for the following reasons. First, the period for any adjustment was
short. Second, the Appellant spent a period in a cell at the San Fernando Police Station (at which
20
See Calix v Attorney General, footnote 16 above. 21
Civ. App. No. 14 of 2000.
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there would have been a first initial shock) and was then moved to Remand Yard (at which there
would have been a second initial shock). He then spent about four days at the Remand Yard.
Third, over this entire period there was a ‘special factor’, which was the distress and anxiety
which the Appellant suffered in relation to his minor children for whom he was responsible.
26. Chief Justice de la Bastide advises that judges approach the assessment of damages in
cases like this “in the round” and that judges need to be careful not to divide the award into
compartments for “initial shock … length of imprisonment and so on”, but rather to ensure that
“all the factors be taken into account and an appropriate figure arrived at”.22
This is the approach
that we have taken. In this case the relevant considerations under this head are the initial shock
factor, the length of deprivation of liberty, the conditions of detention and the anxiety about his
children.
Aggravating Factors
27. There are several aggravating factors in this case which have caused the Appellant
mental, emotional and psychological angst. That is, factors arising out of the manner in which
the tort has been committed and the conduct and behavior of the tortfeasors, where that behavior
aggravated the injury and suffering of the Appellant. Some of the more significant ones are as
follows:
(i) The humiliating circumstances of the arrest, in handcuffing the Appellant and
throwing him into a police vehicle in the presence of onlookers.
(ii) The unprofessional and highhanded behavior of the police in failing or refusing to
check out the Appellant’s explanations on the day of the arrest.
(iii) The oppressive and unlawful behavior of the police at the San Fernando Police
Station in intimidating and threatening the Appellant and thereby forcing him to
sign a document.
(iv) The ‘sub-human’ conditions at the Remand Yard.
(v) The anxiety over and plight of the Appellant’s two children occasioned by the
prosecution.
22
Millette v Mc Nicholls (supra).
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(vi) The period (two and one half years) it took to have this case dismissed, in
circumstances where the virtual complainant never appeared and the prosecution
was never ready to proceed.
All of these warrant an uplift in the award of damages (constituting aggravated damages) for
malicious prosecution.
Comparable Awards
28. Of the many cases that have been decided and cited to us, we have found the following
most helpful:
(i) Lewis v The Attorney General CV 2007-01952, a decision of Boodoosingh J, delivered on
the 2nd
July, 2010. Awarded $75,000.00 for malicious prosecution and $50,000.00 for unlawful
detention (inclusive of an uplift for aggravating factors). The claimant was arrested at 1:30 am,
taken to a police station and detained there for 18 hours in deplorable conditions. He was
charged with using obscene language. The charge was eventually dismissed. No award for
exemplary damages was made. A total of $125,000.00 was therefore awarded for malicious
prosecution and unlawful detention.
(ii) Barcoo v The Attorney General H.C.A. No. 1382 of 1989, a decision of Mendonca J,
delivered on the 19th
December, 2007. Awarded $75,000.00 for malicious prosecution and
unlawful detention for a period of 5 days. In fact the claimant was detained at Police
Headquarters for about 24 hours during which time he was repeatedly placed in a ‘cage’. After
having been taken before the magistrate he was remanded into custody in conditions not
dissimilar to those to which the Appellant in this matter was subjected. The proceedings against
the claimant took one year before they were determined.
(iii) Guerra v The Attorney General H.C.A. No 1717 of 2007, a decision of Dean-Armorer J,
delivered on the 1st July, 2002. Awarded $110,000.00 for unlawful detention of 7 days. Held in
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cells at police stations which were described as unsanitary and deplorable. Assessment included
an uplift for aggravating factors. This was however a constitutional case.23
(iv) Ramdial v The Attorney General CV 2009-02336, a decision of Rampersad J, delivered on
14th
April, 2011. Awarded $125,000.00. In custody for 8 days. Circumstances surrounding the
arrest, length of incarceration and the 5 years that the prosecution continued were material
factors.
Assessment
29. In light of these decisions and considering the injury to reputation, feelings and as a
consequence of the loss of liberty suffered by this Appellant, together with an additional uplift
for aggravating factors, we consider an award of $160,000.00 as general damages for malicious
prosecution to be appropriate in this case (bearing in mind that the events occurred in 2004 and
the assessment by the trial judge was done in 2010). A single figure is awarded for all heads of
compensatory damage, including aggravated damages, following the guidance of de la Bastide
C.J. in Bernard v Quashie24
Exemplary Damages
30. Should an additional award be made for exemplary damages given the uplift to the
compensatory award for aggravating factors? In Rookes v Barnard,25
Lord Devlin explained
that exemplary damages could be awarded, inter alia, where there is “oppressive, arbitrary, or
unconstitutional action by the servants of the government”. Police officers acting in the course
of their employment are for the purposes of an award of exemplary damages the servants of the
government.26
23
See Merrick v Attorney General Civ. App. No. 146 of 2009, at page 19, para. 60, where Smith J.A. in speaking
about whether the measure of damages for loss of liberty either by way of a common law claim or for a violation of
the Constitution should be equated, stated: “Having recognized the distinction between the two types of damages
and the fact that the two ought not to be equated, this does not mean that comparisons are useless”. 24
Civ. App. No. 159 of 1992, at page 5. 25
[1964] AC 1119 at 1226. 26
Bernard v Quashie, Civ. App. No. 159 of 1992, at page 9.
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31. Exemplary damages, unlike aggravated damages which are compensatory in nature, are
intended to be punitive, to punish or deter a tortfeasor. Such an award is appropriate where the
police behave in an oppressive, arbitrary or unconstitutional manner, and where the court having
regard to the award for compensation (inclusive of aggravated damages) is of the view that it is
not sufficient to mark the court’s disapproval of the actions of the agents of the state (the
police).27
32. In Trinidad and Tobago a citizen is entitled to several fundamental rights, including the
right to liberty and security of the person and the right to individual respect.28
Further, a person
is not to be subjected to arbitrary detention or imprisonment, or subjected to cruel and unusual
treatment; and a person detained or arrested is entitled to be informed promptly of his right to
consult and retain a legal advisor of his choice.29
33. In this matter the Appellant was clearly subjected to oppressive, arbitrary and
unconstitutional action by the police. Instances of this are as follows:
(i) The threats issued to the Appellant resulting in him signing a document at the San
Fernando Police Station.
(ii) The failure or refusal to promptly advise or inform the Appellant of his right to
consult and retain a legal advisor upon detention and arrest.
(iii) The failure to attempt to verify the Appellant’s explanations which could have
exonerated him from suspicion and avoided the prosecution.
(iv) The continued prosecution of the Appellant for two and one-half years in
circumstances where the virtual complainant never attended court and the
prosecution was never ready proceed.
34. The issue is whether in these circumstances an award of damages beyond the
compensatory award of $160,000.00 should be made in this case. The trial judge was of the
27
Bernard v Quashie, Civ. App. No. 159 of 1992, at page 10. 28
See sections 4(a) and 4(c) of the Constitution. 29
See section 5(2)(a), (b) and (c) of the Constitution.
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opinion that an award of $5,000.00 should be granted for exemplary damages (and a further
award of $2,000.00 for vindicatory damages).
Conditions upon Detention
35. For many years the courts of Trinidad and Tobago and both local and international
commentators have been expressing their disapproval of prison conditions, including those at the
Remand Yard in Trinidad and Tobago. Most recently, in Calix v The Attorney General of
Trinidad and Tobago,30
the Privy Council had reason to track this history and to comment
adversely about these conditions, quoting Chief Justice Sharma who “described as ‘abhorrent
and revolting’ and ‘sub-human’ conditions in the remand section of the …prison” (per Lord
Kerr).31
It would appear that conditions that are experienced as ‘sub-human’ must at the very
least come close to being unconstitutional.32
Certainly they can be considered oppressive.33
30
PCA No 3 of 2012. 31
See paras. 24, 25, 26 and 27 of the judgment of Lord Kerr. 32
See section 4(c) of the Constitution (right to fundamental respect of the person) and section 5(2) (b) of the
Constitution (prohibition against the imposition or authorization of cruel and unusual treatment or punishment).
Note: In the local context, “cruel” as used in section 5(2) (b) has been held to mean “inhumane and inflictive of
human suffering”, per Wooding CJ in Collymore v The Attorney General (1967) 12 WIR 5, at page 20 (i). And,
“Inhuman treatment” has been defined as treatment which is capable of causing if not bodily injury, at least intense
physical and mental suffering and acute psychiatric disturbances; and “degrading treatment” has been defined as
treatment such as to cause feelings of fear, anguish and inferiority capable of humiliation and possibly taking away
physical or moral resistance; see Ireland v United Kingdom (1978) 2 EHRR 25. In relation to degrading
treatment, the humiliation or debasement involved must reach a particular level depending on all the circumstances
of the case; see Tyrer v United Kingdom (1978) 2 EHRR 1. [Both of these cases deal with Article 3 of the
European Convention on Human Rights which prohibits torture or inhuman and degrading treatment and
punishment; and see also Article 4 of the Universal Declaration of Human Rights 1948 which provides: “no one
shall be subject to torture or to cruel, inhuman or degrading treatment or punishment”.] 33
In fact Chief Justice Sharma commented adversely and at length about conditions of detention in both his 2004 –
2005 and 2005 – 2006 Opening of the Law Term Addresses. In his 2004 – 2005 address, the Chief Justice’s focus
was on ‘Conditions at the Remand Section of the Prisons’ and in this regard he stated [at pages 33; 35 and 36]:
“… there is yet a considerable distance to be traversed in rising to a minimum standard of decent
treatment. … An average cell measures approximately eight feet by twelve feet and although
originally intended to be occupied by two prisoners, now accommodates on an average seven to nine
men. For these persons, the cell is not a bedroom alone it is also a living room, dining room, kitchen
and bathroom. The methods used to perform basic human functions at nights, and the means used
for cleaning a cell on mornings are abhorrent and revolting. Further reports are that very little fresh
air gets into cells. Infestation of the cell by vermin is said to be commonplace. Sanitary facilities
are reported to be abysmal. In short, the picture painted is one of decidedly sub-human conditions.
…the restraint of prisoners on remand must be measured against the State’s sole objective in
presenting the prisoner for trial and must be ‘judged against a standard of basic humanity towards
men innocent in the eyes of the law and not against abstract penological standards’. … In essence
therefore, our prison system and in particular the Remand Section require a radical overhaul
consistent with basic norms of decency and civility which recognize that while there is the
Page 17 of 23
36. Surely the time has come for the state to once and for all accept the responsibility for
dealing with and treating detainees and prisoners as persons – human beings. The Preamble to
the Constitution affirms that the Nation of Trinidad and Tobago is founded upon principles that
acknowledge, inter alia, ‘the dignity of the human person’ and the existence of a Supreme God
who is Creator in relation to all humanity. How then can the sub-human treatment of detainees
be justified within the principles of constitutionality? The idea that humans are the creation of a
supreme Creator and thus entitled to be treated with inherent respect and dignity as persons of
value, suggests that the abhorrence with which we decry conditions at the Remand Yard should
sound in damages and properly so in exemplary damages. These deplorable and oppressive
conditions cannot be allowed to continue indefinitely.
37. Indeed several recent decisions the European Court of Human Rights, in dealing with
detention conditions similar to those that exist in Trinidad and Tobago and as established in this
case, found a violation of Article 3 of the European Convention of Human Rights.34
Further,
albeit in relation to death row prisoners, the Privy Council has apparently broken new ground in
terms of the relevance of prison conditions to the enforcement of the death penalty. In Thomas
v Baptiste35
the Board, by a majority (Lord Steyn dissenting and agreeing with the trial judge –
Jamadar J., that conditions of detention on death row could lead to the commutation of the death
justification for the suspension of some rights, the dignity of the individual must be kept intact by
acceptable standards of accommodation and treatment.”
In his 2005 – 2006 address the Chief Justice, in dealing with the urgent need for prison reform, also stated [page 18]:
“Whether on remand or serving a sentence, detainees are committed to prison as a consequence of an
order of the Court and so the Judiciary has a vested interest in existing prison conditions and must be
satisfied that persons incarcerated on remand are accorded treatment consistent with the presumption
of innocence and those sentenced to a term of years are not dehumanized in the name of justice. The
Judiciary must neither close its eyes nor shut its mouth when the evidence suggests that its orders may
be resulting in unintentional and undesirable consequences.”
[These comments by Chief Justice Sharma demonstrated a marked shift in his position on prison conditions when
compared to what his position was in Thomas v Baptiste, Civ. App. No. 177 of 1998 (delivered in August 1998):
“It will be ludicrous to suggest and farcical to accept that such (conditions and treatment) are capable of constituting
cruel and unusual treatment or punishment, when more than half of the law-abiding citizens have by barricading
their homes with iron bars, created their own prisons in order to keep the likes of the applicant out” (at page 5).] 34
See for example: Gusev v Russia [2008] ECHR 391, paras. 51 – 61; Kalashnikov v Russia [2002] ECHR 596,
paras. 92 – 103; Dougoz v Greece [2001] ECHR 213, paras. 42 – 49; and Peers v Greece [2001] ECHR 296, paras.
63 – 75. Note, in these recent decisions of the ECHR intent, motive and malice were not considered preconditions
for finding a violation. 35
[1999] UKPC 13.
Page 18 of 23
sentence), made it clear that even unlawful and/or abhorrent conditions of detention could not
render the death penalty unconstitutional unless there is an aggravating nexus between the
resulting treatment and the imposition of the death sentence. The dominant view being that there
were more suitable remedies other than commutation to deal with unacceptable prison
conditions. However, in Lewis & others v Attorney General of Jamaica36
the majority of the
Board seemed to have been inclined to the view that where there is unconstitutional inhuman and
degrading treatment of prisoners on death row, a state can forfeit its right to execute the death
sentence. Lord Hoffmann, in a highly critical dissent, observed: “The Board now proposes to
depart from its recent decisions … The majority opinion places no limits on the matters which
must be taken into consideration and proceeds on the basis that the minority opinions (on prison
conditions) in Higgs and Anor. v Minister of National Security and Others (Bahamas)37
and
Thomas v Baptiste38
represent the law.”39
Of relevance is the trend of the current approach and
developing jurisprudence both in the European Court of Human Rights and the Privy Council in
relation to conditions of detention.
38. Clearly one must distinguish between conditions or treatment that are part of the
inevitable harshness of legitimate incarceration from those which cause an unacceptable
detriment to a detainee. For treatment or conditions of detention to be inhuman or degrading or
oppressive,40
they must cross the thresholds inherent in these notions and this must be proved. In
this regard all the circumstances of the case, including the treatment or conditions, the duration
of same, and the physical, mental, emotional, psychological and cumulative effect on the
particular detainee are all factors to be considered. The fact that the State has taken no
meaningful steps to improve objectively unacceptable conditions to which a detainee is
subjected, is also a consideration in determining whether state action is oppressive.
36
[2000] UKPC 35. 37
[1999] UKPC 55; minority opinions delivered by Lord Steyn and Lord Cooke. 38
[1999] UKPC 13; minority opinion delivered by Lord Steyn. 39
At para. 110. 40
In Thomas v Hilaire, Lord Steyn describes ‘inhuman treatment’ as treatment or conditions that result in
“additional unnecessary and avoidable agony and suffering” (at para. 71). In Higgs and Anor. v Minister of
National Security and Others (Bahamas), Lord Steyn elaborated: “The state is not permitted to inflict inhuman
treatment … beyond the suffering necessarily involved in their imprisonment … (The Constitution) forbids the
infliction of additional unnecessary suffering. Inhuman treatment may take the form of the causing of physical or
mental suffering or both” (at para. 54).
Page 19 of 23
39. In this case the unchallenged evidence established that the Appellant was detained in
cramped, unsanitary, overcrowded and smelly conditions for several days, which included a lack
of any provision for sleeping or for privacy in relation to personal hygiene and ablutions.41
The
Appellant experienced all of this as degrading and humiliating and this treatment in these
conditions caused him great angst. In our opinion the conditions of detention to which the
Appellant was subjected could objectively have caused him mental suffering, anguish and
humiliation beyond what ought to be expected as a detainee on remand. This treatment and these
conditions amounted to degrading and inhuman treatment which was also oppressive and over
the threshold of degradation which is acceptable as part of the expected consequences of
incarceration in the remand section of the prison in Trinidad. The conditions of the Appellant’s
detention were incompatible with due respect for his human dignity as a detainee and his
treatment subjected him to hardship and distress exceeding the unavoidable humiliation, distress
and suffering that is to be expected in legitimate detention on remand.
40. Yet in spite of all of these considerations we are of the opinion that at this point in time
and in the circumstances of this particular case an award of exemplary damages should not be
made. We note that in Calix’s case the comments of Lord Kerr were made in the context of a
claim for aggravated damages. Further, that in the very recent decision of Merrick v The
Attorney General 42
the Court of Appeal unanimously declined to make an award for exemplary
damages where prison conditions “were unsanitary, crowded and caused the Appellant
considerable distress”43
and were not dissimilar to those in this case. In Merrick’s case the
Court of Appeal was of the opinion that though the conditions of the appellant’s imprisonment
justified an award of aggravated damages,44
they did not “merit an award of exemplary
damages… The compensatory award (being) adequate in the circumstances”. 45
41
See paragraph 17 above. 42
Civ. App. No. 146 of 2009; judgment of Smith J.A. delivered on the 5th
February, 2013 (Chief Justice Archie and
Mendonca J.A. agreeing). 43
See paras. 32 – 36, Smith J.A. 44
See paras. 32 and 37, Smith J.A. 45
See para. 44, Smith J.A.
Page 20 of 23
41. So also in this case we have agreed that the award for compensation is sufficient and no
separate award for exemplary damages is necessary. We note the obvious overlap in aggravating
factors that resulted in an uplift in the award for compensation and those that could justify an
award of exemplary damages. Even though the trend internationally is to move away from
requiring intentional or malicious action to justify awards of exemplary damages, as
demonstrated in the ECHR jurisprudence cited above, we are nevertheless prepared at this point
in time to desist from making any award for exemplary damages in this case. This is not to say
that in another case such an award may not be made where similar conditions of detention exist
and where there is no evidence of intentional or malicious action by the prison authorities and
where other relevant considerations justify making such an award. It may also be that in time, if
the state does not act to ensure that conditions of detention are not oppressive and are not over
the threshold of degradation that is acceptable for detention at the Remand Yard, that awards for
exemplary damages will be made over and beyond compensatory damages that include an uplift
for aggravating factors. It is our hope that the observations made in this case will prompt the
state to initiate immediate reform so as to avoid the continuation of this most unacceptable and
oppressive, if not unconstitutional, state of affairs that exists in relation to detention at the
Remand Yard.
Conclusion
42. This appeal is allowed. The order of the trial judge in relation to general damages is set
aside and in its place the following order is made: General (compensatory) damages for
malicious prosecution are awarded to the Appellant in the sum of $160,000.00 with interest
payable at the rate of six (6) percent per annum as ordered by the trial judge. The parties will be
heard on the question of costs.
P. Jamadar
Justice of Appeal
Page 21 of 23
Delivered by Bereaux, J.A.
43. I agree with Jamadar J.A. that the appeal should be allowed for the reasons he gives. I
also agree that the judge’s award of damages should be set aside and an award of $160,000.00
general damages. I just wish to add a few words of my own on this question of prison conditions
and the award of exemplary damages in respect of them.
44. I can see no basis for an award in this case. The appellant spent approximately six days
in wrongful detention. Four of those were spent at the Remand Yard Facility pending the
posting of bail. It is his stay on remand which is the basis of bitter complaint. The prison
conditions he described were not challenged by the respondent.
45. Prison conditions including those on remand have been the subject of much judicial
comment over the years and remain a source of serious concern. But I am satisfied that the
appellant’s detention at Remand Yard is adequately and appropriately addressed by an award of
aggravated damages.
46. As to the appellant having been subjected to oppressive, arbitrary and unconstitutional
conduct as itemized by Jamadar JA at paragraph 33 of his judgment, I say as follows:
(i) I consider the allegation that threats were issued to the appellant which led him to sign a
document, to be lacking in credibility. No particulars of the contents of the documents
were led nor was the document ever produced against him in evidence
(ii) the failure to advise the appellant of his right to consult and retain a legal adviser (if it did
occur) resulted in no detriment to the appellant whatever. In Zaid Mohammed v. The
AG, Civil Appeal # 164 of 2006 (Bereaux, Stollmeyer, Smith, JJA), I noted that not
every breach of the right to counsel will result in relief being granted to an accused. The
right to counsel is primarily set out to protect the accused from self incrimination and to
protect his right to a fair trial. The failure to inform him of that right in this case has not
been demonstrated to have affected him adversely in any way. The appellant has not
Page 22 of 23
alleged that the failure to do so somehow prolonged his detention or that he gave a
statement which incriminated him in respect of the charge. Bail was granted on 25th
October when he was taken to court. It appears that the appellant had difficulty in
acceding to bail. This was more likely a question of means rather than any difficulty with
the legal system. The dictum of Lord Steyn in Allie Mohammed v. The State (1998) 53
WLR 444 (cited in Zaid Mohammed) is relevant:
“It is a matter of fundamental importance that a right has been
considered important enough by the people of Trinidad and Tobago,
through their representatives, to be enshrined in their Constitution. The
stamp of constitutionality on a citizen’s rights is not meaningless: it is
clear testimony that an added value is attached to the protection of the
right. On the other hand, it is important to bear in mind the nature of a
particular constitutional guarantee and the nature of a particular
breach. For example, a breach of a defendant’s constitutional right to a
fair trial must inevitably result in the conviction being quashed. By
contrast, the constitutional provision requiring a suspect to be informed
of his right to consult a lawyer, although of great importance, is a
somewhat lesser right and potential breaches can vary greatly in gravity.
In such a case, not every breach will result in a confession being
excluded.”
(iii) In my judgment, the other items set out at (iii) and (iv) of paragraph 33 are sufficiently
addressed by an award of aggravated damages.
47. As to the question of prison conditions, the Court of Appeal on 5th
February 2013, in
Merrick v The Attorney General and Commissioner of Prisons (Archie CJ, Mendonça and
Smith JJA) rejected any claim for exemplary damages in respect of prison conditions. Nothing
has changed since then to require a review of that decision. Lord Kerr’s subsequent comments
as to prison conditions in Trinidad and Tobago in Calix v. The Attorney General of Trinidad
Page 23 of 23
and Tobago, Privy Council Appeal No. 3 of 2012, were made in reference to the issue of
aggravated damages only.
48. Neither am I satisfied that this is a matter entirely for judges. Our concern must be,
particularly, to ameliorate the conditions under which persons interned for protracted periods,
live. Any attempt to address these conditions must also address to core problem of overcrowding
and its cause. Sociological factors contribute. They go to the root of the cause. Corrective
measures must embrace them and may even require a wholesale rethink of the issue of
punishment. Some may say that the simple answer is the construction of more prisons. Too
simple an answer others might say.
49. Why then should the Trinidad and Tobago taxpayer (so appropriately described as long
suffering by Lord Brown at paragraph 63 in Francis Paponette & Ors. v. The AG, Privy
Council Appeal No. 9 of 2010) again be required to bear the financial burden of what may at
best be a band aid application to a gaping sore. Moreover, what of those prisoners who are
legally imprisoned and whose terms of imprisonment, unlike the appellant’s are significantly
longer. Their circumstances are more permanent and far more dire. Why should they be any
less entitled to damages, or, should they be entitled to a remission of sentence. It is a matter
which requires not so much the attention of judges but concerted attention at the executive and
administrative levels of government.
50. These questions (and answers) simply demonstrate that considerable thought and
discussion are yet needed in order to address this entire exemplary damages/prison conditions
debate. I do not consider that we have been sufficiently assisted in this case to even begin to
answer them. In any event the facts of this case do not require any such award.
Nolan P.G. Bereaux
Justice of Appeal