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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2007-03035

BETWEEN

KELVIN SINGH Claimant

AND

THE ATTORNEY GENERAL OF TRINIDAD & TOBAGO Defendant

***************************************************

Before: Master Alexander

Appearances: For the claimant: Mr Gerald Ramdeen, instructed by Mr Varun Debideen For the defendant: Ms Karen Boodan, instructed by Mr Brent James

DECISION

I. INTRODUCTION:

1. This is an assessment of damages for breach of constitutional rights simpliciter. It arose pursuant

to a consent order dated 23rd November, 2009 by Tiwary-Reddy J which reads:

i. That the failure and/or neglect and/or omission of the State more particularly the Commissioner of

Prisons, his servants or agents to transmit for filing to the Clerk of the Peace, Sangre Grande

Magistrates Court, the Claimant’s Notice of Appeal on or before the expiration of the seventh day after

the order for his sentence and conviction was made on the 9th May 2001 by Her Worship Magistrate

Ms. Blake was unconstitutional and in breach of the Claimant’s fundamental rights as guaranteed and

enshrined under section 4(a), (b) and 5(2) h of the Constitution of Trinidad and Tobago.

ii. That monetary compensation including aggravated and exemplary damages be paid to the Claimant for

the above unconstitutional action and for all damages and consequential loss suffered by the Applicant as

a result thereof.

iii. That damages be assessed by the Master in Chambers on a date to be fixed.

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2. From the outset, it is instructive to note the following:

The claim was founded on the prison authorities’ failure to deliver the notice of appeal

within the statutory period of seven days imposed by section 130(2) of the Summary

Courts Act 4:20;

The Court of Appeal has declared the claimant’s appeal against sentence to be a nullity

because his notice of appeal was filed after the expiration of the statutory period; and

The assessment was determined via affidavit evidence and written submissions by the

parties.

II. THE CLAIMAINT’S CASE:

3. The claimant claims that he is entitled to damages for:

a) “Breach of his constitutional rights simpliciter”;

b) “Loss of chance”, which is a general principle of recovery of loss in private law;

c) “Loss of liberty” and other direct consequential loss.

(a) Loss of Chance

4. To assess damages for loss of chance, it was submitted that this court should –

1. Use “the Percentage Approach”, which requires the court to assess the prospect of

success of the original claim and assess damages on the basis of the percentage.

2. Reject “the All or Nothing Approach”, which requires the claimant to prove on a

balance of probability that the tort or breach of contract was the cause of the

damage. Counsel for the claimant submitted that this approach was not appropriate

in the instant case and should be limited to medical negligence cases as:

the claimant can only succeed if he can prove that the tort or breach of

contract was more than likely to have caused the damage complained of1; and

there is no dispute here that the loss suffered was caused by the defendant in

failing to deliver the notice of appeal.

1 This approach was approved of by the House of Lords in Gregg v Scott, [2005] 2 AC 176.

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5. Loss of chance refers to the actual loss suffered by the claimant through the failure of the

defendant’s servants or agents to deliver the notice of appeal within the prescribed period. It is a

general principle of recovery of loss in private law2. It was submitted that the claimant is entitled

to damages for his “loss of chance” as the omission or inaction of the prison officers caused the

claimant to lose his opportunity to pursue his appeal and so benefit from the Court of Appeal

reviewing the correctness of the decision of the magistrate.

6. In assessing the loss of chance, the court was asked to have regard to the following:

(i) The claimant would have been successful in having his sentence varied by the Court of

Appeal if he was given the opportunity to pursue his appeal as the appeal was against the

severity of the ‘sentence’ only, not conviction. Before this court, the claimant must prove

that his sentence would be varied on a balance of probability.

(ii) The sentence imposed by the learned magistrate was 6 years hard labour to run consecutively

with the sentence being served by the claimant. There was a 100% chance that this sentence

would be varied either by reducing it or replacing it with a sentence to run concurrently with

the sentence currently being served. Either variation would have resulted in a significant

reduction in the period to be served by the claimant.

7. The arguments that were to be advanced on appeal to secure a variation of the magistrate’s

sentence are –

The 6 year sentence imposed by the magistrate was in breach of section 72 of the

Summary Courts Act, since at the time of its imposition on 9th May 2001 this Act had

not been amended by the Summary Courts (Amendment) Act No 6 of 2004.

The sentence was in excess of the statutory limit imposed upon the magistrate by the

Summary Courts Act. At the time of conviction section 72 of the Summary Courts

Act imposed a statutory limit of 3 years on the power of the magistrate to order

consecutive sentences as follows:

Where a sentence of imprisonment (whether peremptory or in default of a payment of a penalty) is passed on

any person by a Summary Court, the Court may order that the sentence may commence at the expiration of

2 This principle was applied in both contract (Chaplin v Hicks, [1911] 2KB 786) and in tort (Phillips and Company, Thomas Phillip v Stephen John Whatley, PC Appeal No 26 of 2006)

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any other term of imprisonment to which that person has been previously sentenced, so however that where two

or more sentences passed by a Summary Court are ordered to run consecutively, the aggregate term of

imprisonment shall not exceed three years where one or more of the offences concerned is an indictable offence or

a summary offence punishable with imprisonment for more than 12 months and 2 years in any other case.

In support of the above contention, the court was referred to the Ricky Bernard case3 where a

similar issue was before the Court of Appeal and it was found that in such circumstances, the

correct order was that the sentences are to run concurrently.

8. There are several local cases where the courts undertook an assessment of the loss of chance in

public law. These included Mario Narcis 4; Bain Lange v The Attorney General5 and Derick

Hamilton v The Attorney General of T&T6. It was submitted that in the instant case, if the

claimant was given the opportunity to pursue his appeal, which was only against sentence and

not conviction, he would have been successful in having the sentence varied. Further, the loss of

chance suffered by the claimant caused the deprivation of his liberty for a period of

approximately 2 years and 3 months.

(b) Loss of Liberty

9. The issue to be determined by this court, therefore, is what is the appropriate quantum of

damages due to the claimant for his loss of liberty and all consequential losses flowing from a

breach of his constitutional rights?

The Measure of Damages -

10. Under the Constitution, a claimant may recover damages for the loss of liberty and any other

direct consequential loss. This is unlike under the common law in a private law action where

damages are at large (such as with false imprisonment where a claimant may recover damages for

injury to his reputation). Under the Constitution, the damages are circumscribed to

compensating for breach of the right simpliciter.

3 Magisterial Appeal No 293 of 2001 Ricky Bernard 4 Mario Narcis v The AG of T&T Civil Appeal No 245 of 2009 5 Bain Lange v The Attorney General, HCA No 1357 of 2004 6 Derick Hamilton v The Attorney General of T&T

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11. The principles for assessing damages for the breach of constitutional rights by the State were set

out in Maharaj No 27 as being one for loss of liberty only. This includes compensation for loss

of earnings consequent upon the imprisonment as well as for distress and inconvenience

suffered due to the incarceration.

Finally their Lordships would say something about the measure of damages recoverable under section 6 where the

contravention of the claimant’s right consists of deprivation of liberty other than by due process of law. The claim

is not a claim in private law for the tort of false imprisonment (under which the damages recoverable are at large

and would include damages for loss of reputation). It is a claim in public law for compensation for the deprivation

of liberty alone. Such compensation would include any loss of earnings consequent on the imprisonment and

recompense for the inconvenience and distress suffered by the Applicant due to his incarceration. (emphasis mine)

12. Counsel for the claimant submitted that the proper measure of damages for the loss of liberty

alone under the Constitution is the same as under the common law and; as the loss suffered is

the same so the award should be the same. This was the approach adopted and approved by the

Privy Council in the Siewchand Ramanoop case8 where Lord Nicholas stated:

If the person wronged has suffered damage, the court may award him compensation. The comparable common law

measure of damages will often be a useful guide in assessing the amount of compensation.

The court was asked to note that this measure of damages is a mere guide, since the award of

compensation under the section 14 of the Constitution is discretionary. Further, a violation of

a constitutional right will not always by conterminous with the cause of action at law.

13. The function of an award of damages under the Constitution was explained by the Privy Council

thus:

... when exercising this constitutional jurisdiction the court is concerned to uphold or vindicate the constitutional

right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most

cases more will be required than words.

7 Maharaj No 2 (1977) 30 WIR 310 at 321-322 8 Per Lord Nicholls in Siewchand Ramanoop v The AG of T&T, PC Appeal No 13 of 2004 paragraph 18

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An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it

goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was

a constitutional right adds an extra dimension to the wrong. An additional award not necessarily of substantial

size may be needed to reflect the sense of public outrage, emphasize the importance of constitutional right and the

gravity of the breach and deter further breaches. All these elements have a place in this additional award. Redress

in section 14 is apt to encompass such an award if the court considers it is required having regard to all the

circumstances9.

14. The approach to assessing damages in constitutional proceedings was approved by the Privy

Council in the Tamara Merson case10. The principles to be considered by the court in

determining the compensation include:

(i) the conditions under which an applicant was detained; and

(ii) the length of the incarceration.

15. In his affidavit evidence, the claimant stated that he had to endure the most deplorable living

conditions in jail. The cell was not equipped with any toilet facilities so he was forced to use a

communal slop bucket in full view of other inmates. This pail gave off a foul and revolting smell

and had to be emptied twice a day by one of the inmates. He described this experience of using

and emptying the slop bucket as humiliating and depressing. It is his evidence that the smell

from the bucket was made worse because of the lack of ventilation in the cell and that he was

sick throughout his incarceration. He also gave evidence that the plate on which his meals were

provided was filthy and most of the time he was unable to consume the meal provided because

of this and the foul stench in the cell. Further, it is his evidence that he was allowed out for

airing once per day but was denied this if it was raining or there was a staff shortage. In addition,

counsel for the claimant has asked this court to note that this evidence was unchallenged.

16. With respect to the length of incarceration, it was submitted that this was a critical factor, though

not the only one and the court was referred to the words of the learned Chief Justice De la

Bastide in Josephine Millette v Sherman Nicholls11 that “it is obvious that one of the factors – and a

9 Per Lord Nicholls in Siewchand Ramanoop v The AG of T&T, PC Appeal No 13 of 2004 10 Tamara Merson v The AG of the Bahamas et al, PC Appeal No 61 of 2003 11 Josephine Millette v Sherman Nicholls Civil Appeal No 14 of 2000

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very important one – to be considered in assessing damages for wrongful imprisonment is the length of

imprisonment. That is probably the most important factor but there are others.” (emphasis mine)

AUTHORITIES

17. The claimant provided several cases as useful guidance to determine the quantum of damages for

a deprivation of liberty for the period of time that the claimant was incarcerated including:

Abraham v The AG of T&T12 - where the applicant who was unlawfully detained for 70

days as a result of mistaken identity, under similar conditions as the present case, before

being brought to the Magistrate Court. He was awarded the sum of $125,000.00 for

distress and inconvenience suffered. The judge found that the respondent’s failure to

bring the applicant to court in a timely manner showed “callous or even cynical disregard” to

the applicant’s right, so was deserving of an award of exemplary damages in the sum of

$15,000.00.

Josephine Millette v Sherman Mc Nicholls13 - where the master awarded an elderly

woman who was wrongfully incarcerated for 132 days owing to an incorrect magisterial

order, under prison conditions similar to the instant case, general damages for loss of

liberty in the sum of $140,000.00. The Court of Appeal whilst not disturbing the award

expressed the view that it was “on the low side”.

Bryan Lynch v The AG of T&T14 - where a notice of appeal was delivered out of time

by the prison and the claimant was unable to pursue his appeal, resulting in him

remaining incarcerated for 672 days beyond the period he was supposed to be lawfully

detained. Des Vignes J awarded the sum of $450,000.00 in damages for the deprivation

of liberty.

Perry Matthew v The AG of T&T15 - where the applicant was incarcerated for 409 days

in excess of that for which he was sentenced because the prison delivered his notice of

appeal outside the seven days time limit. Jamadar J (as he then was) awarded the sum of

$350,000.00 as general damages for loss of liberty.

12 Abraham v The AG of T&T, HCA No 801 of 1997 per Shah J 13 Josephine Millette v Sherman Mc Nicholls, Civil App No 14 of 2000 14 Bryan Lynch v The AG of T&T, CV2008-01595 15 Perry Matthew v The AG of T&T, HCA No 3342 of 2004

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18. In conclusion, counsel for the claimant reiterated that as a result of the denial of his right to

prosecute his appeal, the claimant was made to serve the entire consecutive sentence imposed by

the magistrate causing loss of liberty. Further, this court was asked to bear in mind that had this

appeal been heard, the claimant would have stood a 100% chance of being successful and having

the order varied for the sentence to run concurrently instead of consecutively. Moreover, on a

balance of probabilities the variation of the magistrate’s order would have resulted in a reduction

of the deprivation of liberty to be suffered by the claimant by two years and three months. On

these bases, it was submitted that any monetary award by this court must compensate the

claimant for the loss suffered while at the same time vindicating his right.

19. It was also submitted that the present case is distinguishable from all other cases determined by

the High Court with respect to notices of appeal that were delivered out of time since in the

instant case the claimant specifically argued the “loss of chance” suffered as a result of being

deprived the opportunity to prosecute his appeal. Further, the claimant has demonstrated on a

balance of probabilities, that had his appeal been heard, he would have been successful in getting

a variation of the magistrate’s order from consecutively to concurrently.

20. This court accepts that the direct loss suffered by the claimant as a result of the breach of his

constitutional right was his “loss of liberty”. It was accepted also that the claimant’s loss of

liberty could fall in the range of two years and three months. In assessing the loss suffered, this

court also considered the conditions endured by the claimant during his incarceration, as

deposed to in the unchallenged evidence of the claimant. It is his evidence also that he was

lingering between a state of hope and despair during that additional period of imprisonment.

Thus, but for the deprivation of the right to prosecute his appeal, the claimant would have

avoided having to suffer these conditions for the additional period of two years and three

months. In the above regard, this court took note of the distress and inconvenience suffered by

the claimant as an important factor in assessing his loss.

21. This court was referred to the factors set out by Jones J in Hamilton case and Gittens case16 in

awarding general damages for breach of constitutional rights in the sum of $125,000.00 and

$15,000.00 respectively. It was submitted that the present case is distinguishable from these

cases as the instant claimant would most likely have succeeded on appeal.

16 Winston Gittens v The AG of T&T, CV2005-00518

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22. Counsel for the claimant referred to two relevant cases - Brian Lange case (supra) and the

Mario Narcis case (supra) - since in both the court assessed the loss of chance resulting from a

failure to prosecute the appeals, where the claimants specifically argued that the appeals would

have been successful. In Brian Lange case, Ventour J awarded the sum of $100,000.00 as

general damages for the loss of chance and $50,000.00 damages for vindication of the

constitutional right. In Brian Lange case the claimant was sentenced to five years

imprisonment for possession of a dangerous drug. His notice of appeal was delivered out of

time and he was ordered to serve the entire sentence of five years. He argued successfully that

had his appeal been heard by the Court of Appeal, he would have succeeded. In Mario Narcis

case, the claimant was convicted of possession of a dangerous drug and sentenced to five years

imprisonment. He appealed the sentence on the ground of severity arguing that the sentence

imposed was excessive and severe. The court agreed with the claimant’s submissions that if the

appeal had been heard, the order of the magistrate would have been varied. Charles J awarded

the sum of $6,000.00 nominal damages for the breach of his constitutional rights. Damages for

loss of chance to prosecute the appeal were assessed in the sum of $300,000.00 owing to the fact

that the claimant was, on a balance of probabilities, likely to succeed on appeal.

23. The attorney for the claimant then submitted that this court should award $6,000.00 as damages

for breach of the right and $250,000.00 as general damages.

III. THE DEFENDANT’S CASE:

24. In her submissions, counsel for the defendant relied on the following case:

Christopher Lezama, David Marryshaw case (supra) - where it was stated that

monetary compensation for a breach of constitutional rights are based on three factors:

i. They are compensatory to the individual whose constitutional right has been

breached.

ii. They acknowledge the significance and sanctity of that right and the need for its strict

preservation.

iii. They can, and should where appropriate, be regarded as some form of deterrent to

the State against committing, or permitting recurrences.

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25. Counsel then referred the court to the words of Stollmeyer J (as he then was) as follows:

An award for damages must be commensurate with the right that has been breached, the manner in which it is

breached and the consequences that flow from the breach. In some cases, a declaration only will be appropriate to

meet the justice of the case, being itself a powerful statement which can go a long way in effecting reparation of the

breach, if not doing so altogether. In others, an award of substantial damages may be called for in addition to the

declaration. The quantum of an award will reflect the seriousness of the right that has been breached, the manner

in which it was breached, and the consequences flowing from the breach, including the elements of distress and

inconvenience. The quantum will vary from case to case, and will depend upon an assessment of these factors.

26. In that case, Stollmeyer J further pointed out that there was no evidence of distress or

inconvenience suffered by the applicants as a consequence of the breach of their right under

section 4(b) of the Constitution. He acknowledged, however, that the loss of opportunity to

appeal, or to pursue their appeals, must have caused the applicants some distress and

inconvenience. He stated that based on the evidence, the applicants did not suffer any loss at all,

save that of access to the appellate process. The judge then concluded that the applicants were

entitled to an award of damages, in addition to the agreed declaration since there had been a

breach of the applicants’ right to protection of the law, a right that must not be regarded lightly.

In that matter, as the appeal was against sentence, Stollmeyer J stated that the applicants had put

nothing before him to show that there was a real chance of their sentences being reduced by the

Court of Appeal. The sum of $5,000.00 was awarded to each applicant but no exemplary or

aggravated damages.

27. Other cases referred to by counsel for the defendant included:

Aaron Karim v The AG of T&T17 - where it was held that the applicant was entitled to

aggravated and exemplary damages and quantum was referred to the master for

determination.

Winston Gittens v The AG of T&T (supra) - where in a magisterial appeal against

sentence, the court found that the applicant had deposed no facts as to the merits of his

appeal, merely stating that he was informed by counsel that he had an arguable appeal

with good prospects of success. It was held that the applicant was entitled to damages,

17 Aaron Karim v The AG of T&T, HCA No 1358 of 2004

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including damages on a punitive or exemplary basis. The judge was influenced in her

award of damages by the lack of evidence from which she could have assessed the

claimant’s chances of appeal. There was no evidence of distress or inconvenience

suffered by the claimant as a result of the inaction of the prison authorities and no

evidence of the length of time spent in prison by the claimant. The judge found that the

claimant had been incarcerated for nine years from the date of sentencing to the date he

was brought before the Court of Appeal and awarded the sum of $15,000.00 and the

additional sum of $25,000.00 as exemplary damages.

28. Counsel for the defendant submitted that the Winston Gittens case is closest to the instant case

and a similar award should be made here having regard to the following:

i. The claimant spent six years in prison and was convicted three times previously, thereby

being no stranger to prison life.

ii. There was no evidence that there was a real chance that the sentence would have been

reduced if the appeal was heard before the Court of Appeal. There is also a lack of

evidence to assess the claimant’s chances of an appeal.

iii. There was no evidence that the claimant suffered any loss at all, save that of access to

the appellate process.

iv. There was no evidence of distress or inconvenience suffered by the claimant as a result

of the inaction of the prison authorities.

29. Counsel for the defendant acknowledged, however, that the loss of opportunity to appeal, or to

pursue his appeal, must have caused the claimant some distress and inconvenience. The

following awards were suggested:

The global sum of $30,000.00 as damages, consisting of $10,000.00 for general damages

and $20,000.00 for aggravated and exemplary damages.

Interest at the rate of 6% from the date of filing of the writ to the date of judgment on

general damages and none on exemplary damages.

Prescribed costs in the sum of $9,000.00.

30. This court accepted the submissions of the claimant and rejected those of the defendant. First,

the argument advance by counsel for the defendant that the claimant is not a stranger to prison

life because he was convicted 3 times previously does not excuse the behaviour of the State nor

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operate as a magic wand to wave away the degrading, cramped and sub-humane conditions of

his cell or the fact that his constitutional right was breached. Secondly, this court accepts the

claimant’s submissions as to the possibility of having his sentence varied and that by denying him

a chance to have his appeal heard before the Court of Appeal it breached his rights. Thus, the

instant claimant did suffer the loss of access to the appellate process as well as an opportunity to

have his sentence varied and there was sufficient evidence of his likelihood of success before this

court. Finally, it is noted that the claimant has given evidence of the distress and inconvenience

suffered by him in having his prison experience prolonged by the inaction or omission of the

prison authorities. This went beyond the mere opportunity to pursue his appeal but also covered

the living conditions under which he was forced to exist for the extended period. In the

circumstances, I propose to make the following awards as compensation.

IV. CONCLUSION

31. It is thus the order of this court that the defendant do pay to the claimant -

(i) Nominal damages for breach of his constitutional rights in the sum of $5,000.00;

(ii) General damages inclusive of aggravated damages in the sum of $170,000.00 with

interest at the rate of 6% per annum from 20th August, 2007 to 28th February, 2012;

(iii) Exemplary damages in the sum of $10,000.00;

(iv) Costs on the prescribed basis in the sum $49,250.00.

Dated 28th February, 2012

Martha Alexander Master of the High Court (Ag)

Judicial Research Assistant: Ms Kimberly Romany