IN THE HIGH COURT OF JUSTICE BETWEEN AND JAMES WINCHESTER **************************************************

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO CV IN THE HIGH COURT OF JUSTICE BETWEEN SYLVESTER WINCHESTER Claimant AND Before: Master Alexander JAMES WINCHESTER ************************************************** Defendant Appearances: For the claimant: For defendant: Ms Lauren Ramtahal Mr Anthony Roosevelt Arnold DECISION Background 1. The claimant ( Sylvester ) is the stepson of the defendant ( James ) both of whom live in Tobago. Sylvester s case is that in or about the year 1999 he expended the sum of $30, on, as well as assisted James physically with the construction of a concrete addition to, a dwelling house standing on lands situate in the Parish of St George, Tobago comprising six lots ( the lands ). Prior to the building of this concrete addition ( the addition ), Sylvester occupied the dwelling house on the lands with his mother (James wife) and James. The addition consisted of a kitchen, bedroom and dining room. Sylvester enjoyed exclusive possession of the addition, even after his mother died in October, 2001 and James remarried in July, Sometime thereafter, the relationship between Sylvester and James soured and quickly deteriorated. 1

2 2. On or about 6 th January, 2003 James asked Sylvester to vacate the addition. Consequent on this request, Sylvester asked for the lands to be valued and to be paid his share. James then assaulted him, placing his knee on Sylvester s chest and choking him. Sylvester escaped, sought medical attention and reported the matter to the police. On the same day when he returned to the addition, Sylvester discovered that the electricity was disconnected and padlocks were placed on the water tanks. Later on in the same month, James broke down and destroyed Sylvester s chain link wire sheep pen and sprayed a chemical liquid throughout the lands, causing the grass and plants to wither. 3. In June, 2003, with an upraised cutlass in hand, James again told Sylvester to vacate the addition and made threats if there was non-compliance. Subsequently, on 7 th August, 2003 James unlawfully entered the addition, boarded it up and took possession of Sylvester s tools of trade, personal effects and cash. James again attacked Sylvester, striking him with a hammer on his back. Sylvester escaped and sought medical attention. During the period August, 2003 to December, 2003 Sylvester orally demanded the return of his tools of trade, personal effects and cash which, to date, have not been returned to him. The claim 4. Sylvester seeks damages for: assault; trespass to the addition, his tools of trade and personal effects and; detinue and/or conversion of his tools of trade, personal effects and cash as follows: TOOLS OF TRADE One (i) Nikon Camera F mm lens = $4, One (i) Sigma mm camera lens = $3, One (i) Lowepro Orion Trekker camera bag = $1, rolls Fuji film Elp 400 = $ rolls Ilford film = $ (not mentioned in witness statement so deemed to have been abandoned) Sunpak pz 5000 flashes = $1, (reduced to $ in witness statement) 50 photography magazines = $1,

3 One (1) Stihl FS 360 brush cutter = $6, One (1) Stihl FS 360 brush cutter = $6, Two (2) Stihl FS 360 brush cutters = $2, PERSONAL EFFECTS Sony walkman = $ music CDs = $7, blender = $ Sleep On It mattress and 2 pillows = $ pairs of pants = $1, shirts = $1, pairs of shoes = $1, jerseys = $ pairs underwear = $ pairs socks = $ sheets groove ply = $4, sheets galvanise = $5, lengths ½ steel rods = $ lengths 4x6x14 = $2, lengths 2x6x12 = $1, lengths 1x4x14 = $ lengths 4x4x12 = $1, lengths 2x4x10 = $1, gallon water tank = $ CASH US cash = $1,600.00US (converted at the rate used by the Central Bank of Trinidad and Tobago to TT$10,346.08) TT cash = $4,

4 Liability 5. On 12 th January, 2012 judgment was entered in Sylvester s favour by Rahim J for: (a) Assault committed on the claimant in the month of June, (sic) 2003 and on 7 th August, 2003; (b) Trespass to the structure occupied by the claimant committed by the defendant on 7 th August, 2003; (c) Trespass to the claimant s tools of trade and personal effects committed by the defendant on 7 th August, 2003; (d) The defendant is to pay the claimant s costs of the action; (e) Damages and costs are to be assessed by a master on a date to be fixed by the Registrar of the Supreme Court. Injuries 6. Sylvester s injuries were set out in Dr Cornelius Agbeko s medical report dated 8 th August, 2003 as: a. a 3 ½cm x 3cm x 2cm triangular haematoma on the lateral side of his left lower spine; b. tenderness and pain in this region; c. a 2cm bruise on the left side of this triangular haematoma. I also considered the undated report of Dr S Nwokolo to wit that on 6 th January, 2003 Sylvester presented with neck and abdominal pains and upon examination, there was tenderness of the neck with minor bruises and swelling. He was treated and sent home with medication. Damages for assault 7. There were 2 incidents of assault and/or battery (on 6 th January, 2003 and 7 th August, 2003) from which Sylvester suffered injuries. It is trite law that when a claimant suffers physical injuries as a result of assault and battery by the defendant, damages are assessed in the same way as in the cases of physical injury caused by negligence. The usual heads of general damages apply such as pain and suffering; loss of amenities; the nature and extent of the injuries sustained; the nature and gravity of the resulting physical disability; and the extent to which pecuniary prospects have 4

5 been materially affected, see Cornilliac v St Louis 1. prospects in issue here. There is no claim for loss of pecuniary 8. It is also accepted that the principal purpose of an award of damages is compensatory and the secondary aim is punitive. The latter is to punish the defendant for his conduct of inflicting the harm. Courts, when making this award, are to take into account the aggravating features and compensate for any physical and mental suffering and damage endured. 2 I have also considered the requirement that damages are to be adequate, full and compensate the claimant for an established loss. It is my duty, therefore, to arrive at a global figure that closely reflects full compensation for the injuries suffered, without granting a financial avalanche to a claimant. To determine this quantum, I also was cognizant of all other case law principles on assessment including, but not limited to, warnings from the Privy Council on blind reliance on earlier precedents. 3 Armed with these principles and authorities, I turned to the evidence proffered by Sylvester. The nature and extent of the injuries sustained and the nature and gravity of the resulting physical disability 9. Sylvester s injuries as outlined in the medical report of Dr Cornelius Agbeko above were accepted. These were not severe or seriously debilitating injuries. Further, Sylvester gave no evidence of any complications arising from same or long lasting effects. As regards the first incident, Dr Nwokolo s report spoke to tenderness in the neck, with minor bruises and swelling and that Sylvester was sent home with medication, which lent itself to the conclusion that the injuries were of a minor nature. There is no evidence as to any resulting physical disability from either set of injuries. The pain and suffering which had to be endured 10. Having sustained these injuries, Sylvester would have experienced some form of pain, which is accepted. I note, however, the lack of evidence in his witness statement as to his pain and suffering. Sylvester, having led no evidence of any temporary, permanent or lasting pains consequent on the injuries, I resorted to the report of Dr Agekebo which briefly references 1 Cornilliac v St Louis (1965) 7 WIR Siewnarine Buchoon et al v The AG CV Seepersad v Theophilus Persad &Capital Inc Ltd [2004] UKPC 19 5

6 Sylvester s pain. I also considered that he would have endured humiliation and embarrassment. In fact, in cross examination, it was revealed that the assault took place in the presence of James family (wife and daughter) and Sylvester, as a grown man receiving a beating with a hammer at the hands of his (step) father, would have felt belittled. Despite the paucity of the evidence, in attempting to arrive at a global compensatory figure for his pain and suffering, I considered his suffering from such a beating. This is defined to include fright at the time of the injury, fear of future incapacity (whether in health, possible death, to sanity or to the ability to make a living), humiliation, sadness and any embarrassment caused by disfigurement. 4 The loss of amenities suffered 11. This is a distinct element from pain and suffering and loss of earning power. It relates directly to any loss of the pleasures of life, whether permanent or temporary. The evidence of this is nonexistent so no loss of amenities was assumed to have occurred. The extent to which the plaintiff s pecuniary prospects have been materially affected 12. The claimant does not give any evidence in his principal or supplemental witness statement of having lost days from work or due to sick leave taken consequent on the injuries. He gave evidence of having to rent a brush cutter and provides receipts for same. His working life was, therefore, accepted as not having been interrupted in any way by his injuries. Case law 13. Counsel for the claimant suggested an award of $20, based on the following authorities: Mohammed v Maharaj 5 where Collymore J awarded the sum of $14, for a blow to the lower back leading to unstable lumbo-sacral spine and continuing back pain. This figure was updated as at December, 2010 to $94, Valdez v Samlal 6 - where Cross J awarded the sum of $8, for a blow to the lower back, disc herniations of lumbar vertebrae, permanent back pain, impairment of sexual activity and reduced earning capacity. This figure was updated as at December, 2010 to $125, McGregor on Damages 17 th edition, chapter 3 para page 53 5 Mohammed v Maharaj HCA 1262/ Valdez v Samlal HCA 810/1972 6

7 Jamurat v Aziz Ahamad 7 where on 10 th April, 1975 McMillan J awarded the sum of $ for tenderness and swelling on back of neck and lower back. This figure was updated as at December, 2010 to $4, Bacchus v Ramkissoon 8 where on 23 rd October, 1975 Maharaj J awarded the sum of $ for three 2 lacerations over his left scapula area (on the back). This figure was updated as at December, 2010 to $6, Bacchus and Mohammed v Clearance 9 where Douglin M awarded the sum of $3, to the second plaintiff who suffered from haemotoma, contusions and abrasions. This figure was updated as at December, 2010 to $15, The cases relied upon by the claimant were all of some vintage. Further, some may be distinguished on the basis of reflecting more severe injuries. I considered the cases of Mohammed v Maharaj and Valdez v Samlal as dealing with injuries and effects that were more severe than those sustained by Sylvester, and as such, those awards as being out of the range of possible awards obtainable in the case at hand. Sylvester, to my mind, has sustained minor injuries at the hands of James, who assaulted him with a hammer to the chest. Sylvester has elected not to give sufficient evidence as to his pain and suffering or any on loss of amenities, whether in his witness statement and/or vise his medical doctor. I have searched the evidence and I cannot help but reach the inescapable conclusion that the assault was not major and the injuries inconsequential. The medical report itself refers to cuts, bruises, tenderness and pain in his left lower spine this is the full extent of the evidence as to pain and suffering and loss of amenities. This is insufficient evidence to ground a claim and/or assist this court with determining a fair and adequate compensation for injuries sustained. Nevertheless, I accept that Sylvester would have had some pain flowing from his injuries (whether slight or otherwise) and must be compensated for this. I also considered that he would have felt some humiliation on being attacked with a hammer in front of James wife, daughter and neighbour. However, given the lack of elaboration on this evidence, I was not minded to speculate as to the extent of same. Counsel is seeking an uplift for aggravation but in the face of the paucity of evidence and the 7 Jamurat v Aziz Ahamad HCA 1414 of Bacchus v Ramkissoon HCA 2299 of Bacchus and Mohammed v Clearance HCA 5420 of

8 circumstances of this case, I did not think that it warranted such an award. To my mind, damages for assault in the sum of $10, would meet the justice of this case. Damages for trespass a. The addition 15. It was determined that Sylvester is entitled to damages for trespass to the addition. Since 7 th August, 2003, Sylvester has been deprived of the use of the addition and has had to seek alternative accommodation. In his viva voce evidence, Sylvester was adamant that he had expended approximately $30, on the construction of the addition, which was spelt out in his supplemental witness statement: Around January, 1999 I gave the Defendant and my mother the sum of $10, cash to cover expenses for the addition. Around March, 1999 I gave them a further $10, The other $10, was made up of a $3,000.00, a $2, and the balance was given in smaller amounts as needed for expenses. I did the construction work myself and my mother purchased the material. I got some help from a builder who was paid by my mother. 16. It is his evidence further that both James and Sylvester s deceased mother had made representations to him that should he assist in the renovations to the dwelling house, and with the maintenance and cultivation of the lands, their interest would be transferred to him on their demise. With their consent and encouragement, and based on the aforesaid representations including that he would be allowed to live there as long as he desired, he had cultivated, tended to and maintained the grounds of the lands and later contributed to the addition of the dwelling house. He testified thus, If the Defendant and my mother did not make the promise as stated above I would not have spent my money to build or invested my time in cultivating and maintaining the property. I easily accepted Sylvester s evidence that he had made a contribution to the addition based on promises made to him, as he presented himself as a witness of truth. The actual proof of the amount of his contribution was not provided. Counsel for Sylvester submitted that damages for trespass should be the value of the addition that is $30, since the act of trespass denied Sylvester entry and occupation of the addition. In the alternative, the court was asked to award Sylvester $10, In evidence from both parties is that apart from the contribution by Sylvester, other unidentified sums were expended on the addition by Sylvester s deceased mother. 8

9 17. The law is clear that proof of actual damage is not required to found an action in trespass and that a claimant suing in trespass may recover nominal damages even though no actual loss has been suffered or proven. See Kelsen v Imperial Tobacco Co 10. Since trespass is actionable per se and loss is presumed, if the claimant fails to establish that he has suffered actual damage, he may be awarded only a nominal sum, even though he has in all respects succeeded in his action and has established his right against the defendant. Further, I accept that there was no actual damage or loss in value occasioned to the addition. In the instant matter, the trespass committed and facilitated by James attracts nominal damages in the sum of $5, and I so award. (b) Trespass to the tools of trade, personal effects and cash 18. Sylvester testified that he is a landscaper and photographer and had in his possession several items of his trade/profession which were trespassed upon by James. The receipts for most of these items remained in the addition to which he was denied access. He obtained quotes for some of the items of trade and has provided same. In relation to his personal items such as clothing and shoes, he provided an estimate of reasonable figures for their replacement. His claim for compensation for the building materials outlined above was supported by various receipts. It is his evidence that upon being denied access to his tools of trade, he was made to expend $43, in 1 ½ years to rent a brush cutter to perform his job. He did not have the money to purchase one at the time. He, therefore, seeks compensation in the sum of $67, under this head of damages. James, in his evidence, has denied that Sylvester was deprived of the opportunity to remove his tools of trade and personal effects from the addition but claims that these have always been available for his collection. He maintains that in fact Sylvester has adamantly and continuously refused to collect his tools and personal effects. James has given no evidence as to knowledge of any cash in the addition nor has he sought to deny that he trespassed on same. James simply denied that he has committed the trespass and assault and that Sylvester did not have access to his tools and personal effects. 19. Having had the opportunity to observe James give his evidence I found him to be hostile, argumentative and aggressive. I did not accept his evidence that Sylvester was free to access or remove his tools and personal effects. It was clear from James tone and bodily demeanour that the passage of time has had no impact on softening or decreasing the acrimony between the 10 Kelsen v Imperial Tobacco Co 10 [1957] 2 QB 334 9

10 parties and I concluded that Sylvester could not safely retrieve his items, despite James claims. Bearing in mind his act of padlocking the water tank, disconnecting the electricity, breaking down and destroying the sheep pen and then spraying a chemical liquid to destroy the plants, it is the view of this court that James was trying to negative Sylvester s rights to the addition and these steps operated to deprive Sylvester of the use of his property. 20. On the other hand, I had some concerns with the quantum being sought by Sylvester, given the state of the evidence before me. With respect to the rental of the brush cutter, I note Sylvester s evidence that the replacement cost of purchasing a new one is in the region of $6, In his statement of claim, Sylvester claimed for rental of the brush cutter from 20 th August, 2003 to 28 th October, 2004 (1 year and 2 months) in the sum of $43, In his evidence in chief, he states, I rented a stilt brush cutter from Dale Patterson at a total cost of $43, over a year and a half. He provided copies of receipts for this rental. Given the cost of a replacement brush cutter and the huge variance between that and the rental fee, I found that this rental cost was exorbitant and unreasonable and was not prepared to allow same as claimed. I concluded that he is entitled to recover the replacement cost of purchasing a brush cutter as well as one month s rental in the sum of $2,416.00, which should have been sufficient time to purchase a replacement. 21. I note further his evidence that he owned 3 brush cutters one of which was brand new, The FS 360, I purchased around the year I paid $6, from Wyatt & Company. I also purchased a 450 brush cutter from JD & Sons from Lower Scarborough on the 18 th day of September, 2000 at a cost of $6, and 108 brush cutter was used and cost me $2, The bills for these were in the house and I could not get it. I obtained a quotation from FT Farfan for the replacement of there (sic) items which is part of exhibit G. He is allowed the cost of replacement of all his tools of trade in the sum of $23, as well as the one month s rental fee, totaling $25, I also accepted his evidence as to the cash kept at home, which he testified he was saving to buy a blower for his business and to cover business expenses. I am prepared to allow this aspect of the claim in full in the sum of TT$4, and US$1, He is also allowed his claim for clothing and footwear; building materials and other personal items. $60,

11 Order 22. It is thus the order of this court that the defendant do pay to the claimant - i. Damages for assault in the sum of $10, ii. Damages for trespass to the addition in the nominal sum of $5, and for trespass to his tools of trade and personal effects in the sum of $70, iii. Interest is awarded at the rate of 6% per annum from 7 th August, 2003 to today s date on the awards for assault and for trespass to the tools of trade and personal effects. iv. There is no order as to costs as this defendant is legally aided. v. Stay of execution of 42 days. Dated 9 th December, 2013 Martha Alexander Master 11