IN THE HIGH COURT OF JUSTICE. Between. Collin Carrera. v The Attorney General of Trinidad and Tobago

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1 THE REPUBLIC OF TRINIDAD & TOBAGO CV IN THE HIGH COURT OF JUSTICE Between Collin Carrera v The Attorney General of Trinidad and Tobago First Defendant Second Defendant Before the Honourable Mr. Justice A. des Vignes Appearances: Mr. Beresford Charles instructed by Ms. Safiya Charles for the Claimant Ms. Salisha Khan, Mr. Emmanuel Pierre instructed by Ms. Amrita Ramsook for the Defendant JUDGMENT The Claimant s Case 1. On or about the 23 rd day of February 2008 around a.m, the Claimant was standing on the pavement on the Main Road in Cumuto with his bicycle. He had just completed cleaning the yard around the Frontline Parlour. While standing there, a police vehicle approached and parked on the right side of the road near to where he was standing. Police Constable Sookram (PC Sookram) and Police Constable Jugmoham (PC Jugmohan) then alighted from the Police vehicle. PC Jugmohan questioned the Claimant about what he had in his possession. The Page 1 of 23

2 Claimant responded that he had his wallet, a cigarette, some money and some scratch cards and he gave PC Jugmohan his wallet. PC Jugmohan searched the Claimant's wallet and returned it to him. PC Jugmohan then questioned the Claimant about how he was in possession of the bicycle and the Claimant gave him an explanation. He then attempted to place his hands into the Claimant s pocket. The Claimant resisted by holding on to his pocket for fear that PC Jugmohan would have put something into it. 2. P.C. Jugmohan then held on to the front collar of the Claimant's shirt while trying to put his hand in his pocket. The Claimant fought to get away from the hold of PC Jugmohan. PC Sookram then ran to the police vehicle, dipped his hand into the vehicle and returned with a gun in his hand. PC Sookram held the gun with his both hands and rammed it into the Claimant's face. The barrel of the gun went into the Claimant s eyes injuring him. The Claimant fell to the ground and was further kicked and assaulted by PC Jugmohan and PC Sookram. The Claimant crept under the police vehicle and PC Jugmohan and PC Sookram then held the Claimant by his feet and dragged him from below the police vehicle. PC Jugmohan and PC Sookram then handcuffed the Claimant and threw him into the tray of the police vehicle together with his bicycle. 3. The Claimant was then taken by PC Jugmohan and PC Sookram to the Cumuto Police Station and then to the Sangre Grande Hospital and the Mount Hope Medical Complex where he remained warded until 6 th March The Claimant underwent several operations that eventually resulted in the complete removal of his right eye. During his time at the Mount Hope Hospital, the Claimant was kept handcuffed to the bed. 4. The Claimant alleged that the actions of PC Jugmohan and PC Sookram caused him to become totally blind in his right eye and to suffer injury to his left eye. 5. The Claimant was subsequently charged by PC Jugmohan for possession of cocaine and marijuana and resisting arrest. 6. The Claimant alleged that he appeared before the Sangre Grande Magistrate's Court on four occasions and then on 17 th March 2010, neither PC Jugmohan nor PC Sookram or any other Page 2 of 23

3 person appeared to give evidence against the Claimant and as a consequence the Magistrate dismissed the charges against the Claimant. Accordiing to the Claimant, he spent $89.00 to travel to and from Court and he also spent $4, for legal representation to defend himself. 7. By his Amended Claim Form and Amended Statement of Case, the Claimant claimed against the Defendant for the following: 1. Damages including aggravated and/or exemplary damages for assault and/or trespass to the person; 2. Damages for false arrest and/or imprisonment and malicious prosecution; 3. Special Damages in the sum of $ for legal fees paid and $89.00 for the cost of transport to and from court to answer the charges; 4. Interest per annum at a rate of 6% on special damages from 23 rd February 2008 and 12% on general damages from the date of filing of the Claim; 5. Costs; 6. Such further or other relief as the Court shall deem just. The Defendant s Defence 8. The Defendant alleged that on the morning of 23 rd February, 2008 while on mobile patrol, PC Jugmohan and PC Sookram observed the Claimant riding his bicycle at the side of the road. When the Claimant noticed the marked police vehicle approaching, he dropped his bicycle and ran. The officers brought the vehicle to a stop and gave chase to the Claimant. PC Jugmohan caught the Claimant about 15 feet away and brought him to the front of the vehicle. 9. PC Jugmohan identified himself to the Claimant, searched him and found three rock-like substances in his front shirt pocket. PC Jugmohan informed the Claimant of his suspicion that the rock-like substances resembled cocaine and proceeded to caution him. The Claimant remained silent. When PC Jugmohan attempted to arrest the Claimant, he slammed PC Jugmohan against the marked police vehicle and a struggle ensued. During the struggle PC Jugmohan fell to the ground and sustained injuries. PC Sookram then attempted to assist PC Page 3 of 23

4 Jugmohan but the Claimant attempted to escape and collided with PC Sookram. As a result of the collision, both PC Sookram and the Claimant fell to the ground. 10. The Claimant then proceeded to crawl under the marked police vehicle. PC Jugmohan, with the assistance of PC Sookram, was able to get the Claimant out from under the vehicle. At that time PC Jugmohan and PC Sookram noticed blood on the area of the Claimant's right eye. 11. The Claimant continued to struggle and while PC Sookram held on to the Claimant, PC Jugmohan continued to search the Claimant. During that search, PC Jugmohan found six (6) foil packets in a black plastic bag in the Claimant s right front pants pocket. PC Jugmohan examined the foil packets and found that they contained plant material resembling marijuana. 12. PC Jugmohan informed the Claimant of his suspicion and cautioned him. The Claimant remained silent. PC Jugmohan proceeded to arrest the Claimant and handcuffed his right hand and placed him in the tray of the police vehicle together with his bicycle. He was later taken to the Sangre Grande Hospital for treatment and PC Jugmohan also received medical attention there for injuries suffered during his struggle with Mr. Carrera. The Claimant was then transferred to the Mount Hope Medical Complex for further medical attention. 13. On 7 th March 2008, after the Claimant was discharged from the Mount Hope Hospital, PC Jugmohan laid charges against the Claimant for possession of cocaine and marijuana and resisting arrest. 14. On the 18 th March 2008, PC Jugmohan submitted the three rock-like substances and the six foil packet with plant-like material to the Forensic Sciences Centre for testing. On the 18 th May 2008 a certificate of analysis was issued confirming that the rock-like substances and the plantlike material were cocaine and marijuana. 15. The Defendant alleged that the charges against the Claimant were dismissed because PC Jugmohan retired and he was not informed of the date of hearing of the charges. Page 4 of 23

5 16. Accordingly, the Defendant alleged that PC Jugmohan had reasonable and probable cause to arrest and charge the Claimant and did not act with malice. The Issues 17. The following issues arise for determination in this matter: a) Whether PC Jugmohan had reasonable and probable cause to justify the arrest and detention of the Claimant? b) Whether PC Jugmohan maliciously prosecuted the Claimant on a charge of possession of cocaine and marijuana, resisting arrest and assault? c) Whether PC Jugmohan and PC Sookram wrongfully and illegally assaulted the Claimant? d) Whether the Claimant has proved his claim for special damages? e) Whether the Claimant is entitled to general damages, including aggravated and exemplary damages? The Law Assault and Battery 18. In Sedley Skinner v The Attorney General of Trinidad and Tobago 1, Pemberton J. defined the torts of assault and battery as follows: An assault is the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact. An assault is established once the Claimant can prove that a reasonable man, if placed in his position at the relevant time, might have feared that unlawful physical force was about to be applied to him. A battery is defined as the application of force to another, resulting in harmful or offensive contact. Based on the authorities, it can be said that elements necessary to constitute a battery as follows: 1) The application of physical force; and, 2) The absence of a lawful basis for applying same. Wrongful Arrest / False Imprisonment 1 CV , paras Page 5 of 23

6 19. Section 3 (4) of the Criminal Law Act Chapter provides where a Police Officer, with reasonable cause, suspects that an arrestable offence has been committed, he may arrest without warrant anyone whom he, with reasonable cause, suspects to be guilty of the offence. 20. Similarly, in section 46 (1) (d) of the Police Service Act Chapter 15:01 a police officer has the power to arrest without warrant a person in whose possession anything is found which may reasonably be suspected to have been stolen or who may reasonably be suspected of having committed an offence with reference to such thing. 21. Where a Claimant alleges false imprisonment, the arresting officer bears the burden of justifying the arrest of the Claimant and establishing reasonable and probable cause for the arrest. 22. According to Diplock LJ in Dallison v Caffery 2 : Where a felony has been committed, a person, whether or not he is a police officer, acts reasonably in making an arrest without a warrant if the facts which he himself knows or of which he has been credibly informed at the time of the arrest make it probable that the person arrested committed the felony. This is what constitutes in law reasonable and probable cause for the arrest. Since arrest involves trespass to the person and any trespass to the person is prima facie tortious, the onus lies on the arrestor to justify the trespass by establishing reasonable and probable cause for the arrest. 23. The test of reasonable and probable cause consists of both an objective and a subjective element, that is to say: objectively, whether a reasonable man having knowledge of facts that the Defendant knew at the time he instituted the prosecution, would have believed that the Claimant was guilty of the alleged crime and subjectively, whether the arresting officer has formulated a genuine suspicion within his own mind that the accused person has committed the offence. Malicious Prosecution 24. A Claimant who alleges malicious prosecution has the burden of proving not only that the prosecutor lacked reasonable and probable cause but also that he was actuated either by spite or 2 [1964] 2 All ER 610 at 619 C-D Page 6 of 23

7 ill-will against the Claimant or by indirect or improper motive. The absence of reasonable and probable cause is generally a good indication that the prosecutor has no proper motive but it is not conclusive evidence of malice in every case. If the prosecutor does not believe in the merits of the case that he has brought against the accused, that will be strong evidence of malice. 25. In Cecil Kennedy v. Donna Morris & The Attorney General of Trinidad and Tobago 3, Sharma C.J. summarized the law with respect to the tort of malicious prosecution: [11] To succeed in action for damages for malicious prosecution a plaintiff must prove: 1. the prosecution by the defendant of a criminal charge against the plaintiff before a tribunal into whose proceedings the criminal courts are competent to inquire; 2. that the proceedings complained of terminated in the plaintiff s favour; 3. that the defendant instituted or carried on the proceedings maliciously; 4. that there was an absence of reasonable and probable cause for the proceedings; and 5. that the plaintiff has suffered damage. 26. In Hicks v. Faulkner 4, Hawkins J. defined reasonable and probable cause as an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. 27. This definition was approved by the House of Lords in Herniman v Smith. 5 In Glinski v McIver 6 per Lord Devlin, at p. 857, put it this way: what is meant by reasonable and probable cause? It means that there must be cause for thinking that the plaintiff was probably guilty of the crime imputed: Hicks v Faulkner. This does not mean that the prosecutor has to believe in the probability of conviction: Dawson v Vandasseau. The Prosecutor has not got to test the full strength of the defence; he is concerned only with the question of whether there is a case fit to be tried. 3 Civ. App. No. 87 of (1878) 8 QBD 167 at (1938) 1 All ER 1 per Lord Atkin at page 8. 6 [1962] 2 WLR 832 Page 7 of 23

8 28. A person is not bound before instituting proceedings to see that he has such evidence as will be legally sufficient to secure a conviction. There may be reasonable and probable cause for preferring a criminal charge even though the prosecutor has before him only prima facie evidence. Viscount Simonds said in Glinski v McIver (ibid):. A question is sometimes raised whether the prosecutor has acted with too great haste or zeal and failed to ascertain by inquiries that he might have made facts that would have altered his opinion upon the guilt of the accused. Upon this matter it is not possible to generalise, but I would accept as a guiding principle what Lord Atkin said in Herniman v Smith, that it is the duty of a prosecutor to find out not whether there is a possible defence but whether there is a reasonable and probable cause for prosecution. Nor can the risk be ignored that in the case of more complicated crimes, and particularly perhaps of conspiracies, inquiries may put one or more of the criminals on alert. 29. It is sufficient for the person who initiates criminal proceedings to do so on such information as a prudent and cautious person may reasonably accept in the ordinary affairs of life. The question will be whether the impression produced on the mind of the prosecutor by the facts before him was such as would be produced on the mind, not of a lawyer, but of a discreet and reasonable man: Lister v Perryman Where the prosecutor has nothing before him but mere suspicion then it would not be justifiable to commence a prosecution and a case for lack of reasonable and probable cause may be made out: Baptiste v The Attorney General of Trinidad and Tobago & Seepersad A Claimant who alleges malicious prosecution has the burden of proving not only that the prosecutor lacked reasonable and probable cause but also that he was actuated either by spite or ill-will against the Claimant or by indirect or improper motive. The absence of reasonable and probable cause is generally a good indication that the prosecutor has no proper motive but it is not conclusive evidence of malice in every case. If the prosecutor does not believe in the merits of the case that he has brought against the accused, that will be strong evidence of malice. 7 (1870) LR 4HL HCA 36 of 2001 Page 8 of 23

9 32. In Browne v. Hawkes 9, Cave J. stated as follows: Now malice, in its widest and vaguest sense, has been said to mean any wrong or indirect motive; and malice can be proved, either by shewing what the motive was and that it was wrong, or by shewing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor. In this case, I do not think that any particular wrong or indirect motive was proved. It is said that the defendant was hasty and intemperate. He may also have been hasty, both in his conclusion that the plaintiff was guilty and in his proceedings; but hastiness in his conclusion, does not shew that presence of an indirect motive 33. However, where a Claimant fails to prove a lack of reasonable and probable cause on the part of the prosecutor, the question of malice does not arise for the consideration of the Court. In Randolph Burroughs v. AG 10, Justice Ibrahim expressly held that since the Plaintiff had failed to discharge the onus of proving that the prosecution was undertaken against him without reasonable and probable cause, it had become unnecessary to consider the question of malice. In Cecil Kennedy v. Morris & AG 11 the Court of Appeal endorsed this approach when they found that although the trial judge had painstakingly examined the requirements and authorities for proving malice, the question of malice did not arise since there was sufficient evidence that the appellant had been arrested with reasonable and probable cause. Aggravated Damages 34. Halsburys Laws of England Volume 12(1) Reissue states: There are two senses in which it can be said that a plaintiff's damage has been aggravated by the defendant. In the first and strict sense of the word the defendant's motives, conduct or manner of inflicting the injury may have aggravated the plaintiff's damage by injuring his proper feelings of dignity and pride. In tort, but not in contract, the plaintiff can be awarded additional damages, called 'aggravated damages' to compensate him for his injured feelings. 9 (1891) 2 QB 718 at HC 4702/1986; HC 2418/ (ibid) Page 9 of 23

10 Aggravated damages, which are compensatory in nature, are to be distinguished from exemplary damages, which are punitive in nature. In the second and wider sense of the word the plaintiff may be able to point to aspects of the defendant's conduct which have aggravated or increased his damage, or caused additional heads of damage such as inconvenience. Subject to the rules of remoteness, damages will be assessed by the normal measure of damages appropriate to the case, but such damages are not properly called aggravated damages. 35. In Thaddeus Bernard, Airports Authority of Trinidad v Nixie Quashie 12 de la Bastide CJ (as he then was) explained: [T]hese damages are intended to be compensatory and include what is referred to as aggravated damages, i.e. damages which are meant to provide compensation for the mental suffering inflicted on the plaintiff as opposed to the physical injuries he may have suffered. Under this head of mental suffering are included such matters as the affront to the person s dignity, the humiliation he has suffered, the damage to his reputation and standing in the eyes of others and matters of that sort. If the practice has developed of making a separate award of aggravated damages, I think that practice should be discontinued. Exemplary damages 36. In certain circumstances the court may award more than the normal measure of damages, by taking into account the defendant's motives or conduct. Exemplary damages are punitive in nature, the object of which is to punish or deter the defendant and others in similar positions. It is not intended to compensate the plaintiff for any loss. 37. The case of Rookes v Barnard 13 outlines two categories of cases in which exemplary damages could serve a useful purpose: 12 CA Civ 159 of [1964] AC 1129 Page 10 of 23

11 (1) In the case of oppressive, arbitrary or unconstitutional action by the servants of the government; (2) In the case where defendant s conduct has been calculated by him to make a profit for himself, which might well exceed the compensation payable to plaintiff. 38. Lord Devlin in Rookes v Barnard, also highlighted that when considering the making of an award of exemplary damages, three matters should be borne in mind: (i) The plaintiff cannot recover exemplary damages unless he is the victim of punishable behaviour; (ii) the power to award exemplary damages should be used with restraint; and (iii) the means of the parties are material in the assessment of exemplary damages. 39. In Takitota v AG of the Bahamas 14, delivered March , the Privy Council provided the following guidance: The award of exemplary damages is a common law head of damages, the object of which is to punish the Defendant for outrageous behaviour and deter him and others from repeating it. One of the residual categories of behaviour in respect of which exemplary damages may properly be awarded is oppressive, arbitrary or unconstitutional action by the servants of the government, the ground relied upon by the Court of Appeal in the present case. It serves, as Lord Devlin said in Rookes v Barnard [1964] AC 1129 at 1223, [1964] 1 All ER 367, [1964] 2 WLR 269, to restrain such improper use of executive power. Both Lord Devlin in Rookes v Barnard and Lord Hailsham of St Marylebone LC in Broome v Cassell & Co Ltd [1972] AC 1027 at 1081, [1972] 1 All ER 801, [1972] 2 WLR 645 emphasised the need for moderation in assessing exemplary damages. That principle has been followed in The Bahamas (see Tynes v Barr (1994) 45 WIR at 26), but in Merson v Cartwright and the Attorney General [2005] UKPC 38, [2006] 3 LRC 264 the Privy Council upheld an award of $100,000 exemplary damages, which they regarded as high but within the permissible bracket. 14 Privy Council Appeal 71 of 2007 Page 11 of 23

12 40. In Kuddus v Chief Constable of Leicester Constabulary 15, the House of Lords held that whether exemplary damages could be awarded on the grounds of oppressive, arbitrary or unconstitutional action by a public officer depended on the features of the officer s behaviour rather than on the cause of action sued on. Findings 41. On the facts of this case and the evidence led before me, I have assessed the Claimant to be a witness of truth and I am inclined to believe his version of events and as such I find that: 1. PC Jugmohan did not have reasonable cause to arrest and detain the Claimant; 2. On a balance of probabilities, the injuries sustained by the Claimant were as a result of the assault upon him by PC Sookram in the manner described by the Claimant; 3. PC Jugmohan and PC Sookram had no lawful justification for their conduct; 4. The Claimant is entitled to damages for false imprisonment for the period February 23 rd 2008 to March 6 th 2008; 5. The Claimant has proved that the charges laid against him were prompted by the improper motives of PC Jugmohan and PC Sookram and he has proved all the essential elements for malicious prosecution; 6. The Claimant is entitled to an award of special damages in respect of his claim for travelling expenses and for legal expenses. Reasons for findings 42. The evidence given by the Claimant in his witness statement is entirely consistent with his evidence in cross-examination. He stuck to his version of events and was not shaken in crossexamination, as compared to the evidence given by the witnesses for the Defendant. Several aspects of the evidence given by PC Jugmohan and PC Sookram under cross-examination were not included in their witness statements. 43. The Claimant, who in his witness statement described himself as a village hustler, gave evidence of an earlier interaction with PC Jugmohan and PC Sookram. He explained in his witness statement that approximately two weeks prior to the incident on 23 rd February 2008, he was 15 [2001] UKHL 29 Page 12 of 23

13 riding his bicycle when he noticed a road block. He admitted that on that occasion he had cocaine on his possession and as such he tried to turn his bike but the chain came out. As a result, he jumped off the bicycle and ran. He was unsuccessfully pursued by the police officers. He gave evidence that the officers seized his bicycle which he recovered about 8 days later from Corporal Borsland, after several previous unsuccessful attempts. The Claimant s evidence of this incident was unchallenged. In fact, PC Jughoman admitted that the Claimant ran from him on a previous occasion. This background information supports the Claimant s explanation as to why PC Jugmohan asked him how he came to be in possession of the bicycle on 23 rd February At paragraphs 8 and 9 of PC Jugmohan s witness statement, he stated that he and PC Sookaram alighted from the police vehicle and both of them gave chase to the Claimant. After he caught the Claimant about 15 feet away, he brought him to the front of the vehicle where he identified himself and proceeded to search the Claimant. During this search, PC Jugmohan stated that he found three rock-like substances resembling that of cocaine. When he attempted to arrest the Claimant, a struggle ensued. According to PC Jugmohan, in the course of the struggle, he fell to the ground and then the Claimant collided with PC Sookram and they both fell to the ground. The Claimant then tried to escape by crawling under the police vehicle. After getting the Claimant out from under the vehicle, he continued to search the Claimant while PC Sookram held him. During this search, PC Jugmohan found 6 foil packets in a black plastic bag in the Claimant s right front pants pocket. PC Sookram gave identical evidence in his witness statement. 45. However, under cross-examination, PC Jugmohan said he gave chase to the Claimant and he could not say if PC Sookram gave chase. Further, he stated that after he held the Claimant and brought him back to the vehicle, neither he nor PC Sookram held onto the Claimant. He also contradicted his witness statement when he said that after the Claimant was taken out from under the police vehicle, he began to search him and that is when he found the plant-like material and the rock-like substances. He gave this evidence in answer to questions posed by the Court: "To Court: I searched claimant once. I now say I searched him twice. I found the cocaine first. A couple seconds after I searched the pants pocket and found the marijuana. The second part with marijuana was after the struggle. I doubt it is more than a minute. I can t say how long it took between when he slammed me against vehicle and when we got him out Page 13 of 23

14 from the vehicle. I cannot estimate a time for the struggle and his going under the car and us pulling him out. Search of shirt pocket and pants pocket did not happen at same time." 46. Additionally, PC Jugmohan, at paragraph 13 of his witness statement, stated that PC Sookram attempted to assist him after he fell and the Claimant tried to escape and collided with PC Sookram causing them to both fall. However, for the first time in cross-examination, PC Jughoman stated that he was holding onto the Claimant when he fell during the struggle with PC Sookram. 47. PC Sookram, in his witness statement, gave evidence that when PC Jugmohan fell to the ground, he attempted to assist his fellow officer when the Claimant ran into him causing them both to fall. However, under cross-examination, he gave the following evidence: "After he fell to ground, when I realise that he fell to ground, claimant s back was towards me. I was at back of claimant. I did not move. The claimant ended up moving. In struggle they were moving from side to side. Claimant was able to slam him against the vehicle. When Jugmohan fell, I attempted to hold claimant in a bear hug from behind. I did not mention bear hug in paragraph 14. I said I went to assist Jugmohan. I never held onto the claimant. I attempted to. I was going to hold him but I never held him." 48. In my opinion, I consider the evidence of PC Sookram to be incredible because if as the officers say the Claimant had attempted to run away from them when accosted outside the Frontline Parlour, it would have been reasonable to expect that after he was captured, they would have ensured that the Claimant was held securely to prevent him from making any further attempts to escape from their custody. 49. The Defendant contended that the Claimant crept under the police vehicle in an attempt to escape from the police. To my mind, however, this explanation is not credible since if the Claimant was seeking to escape from the officers, it would be more logical that he would try to run away from the officers and not creep under the front of the vehicle close to where the officers were after they both fell to the ground. In my opinion, the Claimant's version that he was creeping under the police vehicle to escape the kicks and blows inflicted upon him by the officers is more credible. Page 14 of 23

15 50. In his witness statement, PC Sookram said he and PC Jugmohan were "able to remove the Claimant from under the marked police vehicle...". Under cross-examination, however, PC Sookram stated that he and PC Jugmohan pulled the Claimant from under the police vehicle which is consistent with the Claimant's evidence that the officers held him by his feet and dragged him out from under the vehicle. Then, under further cross-examination, he denied that they pulled the Claimant out from under the vehicle and said that they coaxed the Claimant out from under the vehicle by telling him that they could not look at his eye unless he came out from under the vehicle. Taking these contradictions into account, I believe that the officers pulled the Claimant out from under the vehicle. 51. PC Sookram also stated that after the Claimant was taken out from under the vehicle, he cried out that something was wrong with his eye. He noticed blood coming out of the Claimant s eye. He further stated that he could not recall the Claimant crying or bawling in pain, even after they searched him for the second time. To my mind, this is not credible since on the basis of the medical evidence of the injury to his right eye sustained by the Claimant, I am of the opinion that the Claimant must have experienced excruciating pain and would probably have cried out loudly in the presence and hearing of both officers. 52. At paragraph 11 of his witness statement, the Claimant contended that he was handcuffed on one hand and thrown into the police vehicle. The other side of the handcuff was affixed to the vehicle. He was taken to the Cumoto Police Station and was left in the vehicle for about half an hour until he was taken to the Sangre Grande General Hospital. He gave evidence that he kept bawling because I was in real pain. This evidence was unchallenged. 53. He was later transferred to the Mt. Hope Medical Complex where he was warded for 13 days until 6 th March During that time he was kept handcuffed to the bed. Again this evidence was not challenged. 54. After the Claimant was discharged, he was taken to the Cumoto Police Station and was formally charged by PC Jugmohan for possession of cocaine and marijuana, resisting arrest and assault. In cross-examination, PC Jugmohan explained that he did not charge the Claimant when he took him to the station because his main concern was to see about the Claimant s injuries. The Claimant s evidence, however, is that he was left in tray of the police vehicle for about half an Page 15 of 23

16 hour before he was taken to the hospital. If the main concern of the officers was to get treatment for the Claimant's damaged eye, I would expect that he would be taken directly to the hospital by the officers instead of being left in the vehicle for about a half hour while the officers went into the station. 55. Further, no proper or credible explanation was given by either officer for keeping the Claimant handcuffed at the hospital for the period 23 rd March 2008 to 6 th March 2008 without charging him. 56. In cross-examination, PC Jugmohan stated that when he returned to the Station after the incident, he made a report in the station diary about the drugs he found on the Claimant before taking him to the hospital. He also suggested that the exhibits of the narcotics found on the Claimant were submitted to the Forensics Science Centre. However, he did not give evidence in his witness statement about the marking or storage of the exhibits at the station on the day of the incident and he did not satisfy me that the exhibits that were sent for forensic examination on 18 th March 2008 were in fact those allegedly taken from the Claimant on 23 rd February In addition, station diary extracts were not produced in evidence to corroborate the Defendant's version of events on that morning. 57. The extent of the injuries sustained by the Claimant as described by him and as set out in Medical Report annexed to his witness statement is more consistent with the Claimant s version of events as opposed to the Defendant s version. The Claimant contended that PC Sookram rammed his gun into his face and the barrel of the gun went into his eye. He then fell and so did PC Jugmohan because he was still holding on to the Claimant who was trying to pull away from him. After the Claimant fell, both officers began to kick him repeatedly. The allegation of being kicked repeatedly was also referred to in the Medical Report submitted by the Claimant and this evidence was not challenged in cross examination. On the other hand, PC Sookram was unable to say exactly how the Claimant sustained his injuries and he stated at paragraph 17 of his witness statement that he believed that the Claimant sustained the injury to his eye when he came into contact with a shotgun that was strapped around his chest and his pistol which was holstered on his right hip. PC Jugmohan did not provide any evidence regarding the cause of the Claimant s eye injury. In my opinion, I do not believe that the Claimant could have received Page 16 of 23

17 such severe injuries to his eye from merely falling onto either PC Sookram's gun that he carried across his chest or his gun holstered on his hip. 58. The injuries outlined in the Medical Report of the PC Jugmohan to the effect that he experienced pain in his chest is not consistent with him being slammed, back first, against a vehicle. To my mind, the injuries suggest that he was involved in a struggle but it does not support his evidence that he was slammed onto the police vehicle. It is also doubtful that PC Sookram fell to the ground with the Claimant on top of him and yet he did not suffer any injuries. Damages Assault and Battery 59. The medical report from the North Central Regional Health Authority dated 17 th March 2008 records the following injuries sustained by the Claimant: "On examination there was no light perception in the right eye. The right globe was ruptured along the nasal limbus with prolapse of the ocular contents through the wound. There were right upper lid lacerations involving the lid margin. The left visual acuity was at least 20/100 with no abnormality of the anterior segment on examination. CT scans of the orbits showed "displaced, comminuted fractures through the medial wall and floor of the right orbit. Fluid in the right ethmoid sinuses and the right maxillary sinus and sphenoid sinus. Increased thickness of the right medial rectus muscle posteriorly."... He was informed of very poor prognosis for any visual recovery in the right eye and the possibility of sympathetic ophthalmitis damaging the left eye causing blindness. He consented to surgical repair of the right ruptured globe and possible evisceration (removal of the contents of the eye)...post-operatively there was no improvement in vision in the right eye and no perception of light...he was advised to have evisceration (surgical removal) of the right eye in order to minimise the risk of sympathetic ophthalmitis of the left eye to which he consented... He complained of right side parietal headaches. CT scan of the head showed "focal hypodensities which are non-enhancing seen in the right frontal lobe, left parietal lobe and left parietal lobe posteriorly. These likely represent areas of resulting contusions. Cerebral infraction is another possibility". He was assessed by the neurosurgical unit and diagnosed with a mild head injury." Page 17 of 23

18 60. In Balwant v Balwant 16 Best J. in January 2002 awarded the sum of $220, to a 34 year old housewife who was blinded in her left eye, had post concussion syndrome, scalp neuralgia, headaches, fainting and some brain damage. Although the eye injuries in that case can be compared to those of the Claimant, the other injuries were more extensive than that of the Claimant. 61. In Gopaulchan Deodath v Gaffoor Roshan 17 delivered by Kangaloo JA on 29 th January 2004, the Respondent suffered a right eye injury and his visual ability had been decreased as a result of a vehicular collision. The Court of Appeal awarded the Respondent the sum of $80, in general damages. 62. In Ramsaran Balkaran v Ali Construction Limited 18, Master Alexander on 21st September, 2012, awarded the sum of $120, for general damages to a Claimant who was blinded in his right eye but continued to have normal vision in his left eye. He was injured when a scaffolding on which he was working collapsed, causing him to fall to the ground and to sustain injuries. That case serves as a good starting point for an award to the Claimant but may also be distinguished because the Claimant in this case also suffered reduced vision in his left eye as well as a minor head injury. 63. In Premnath Jaikaran v Saiscon Limited 19 delivered by Master Alexander on 13 th May 2013, the Claimant sustained the following injuries: loss of consciousness, loss of right eye with resulting problems with vision. He experienced difficulty watching television or reading, headaches, back pain, pain in knees, cut to index finger, facial scar, large right C-shaped corneoscleral laceration with loss of lens, vitreous and retina, right upper and lower lid laceration. He also experienced difficulty eating and he was embarrassed to go out in public. The Claimant was 16 years old at time of the accident and he was left emotionally scarred and unable to freely enjoy ordinary recreational activities. Master Alexander awarded $200,000 as general damages. 16 HCA S-1133 of CA Civ 879 of Claim No. HCA S-1306 of CV /HCA S-699 of 2004 Page 18 of 23

19 64. Having regard to these authorities, I consider that, given the extent of the Claimant's injuries as well as the manner in which they were viciously inflicted upon him by PC Sookram, the Claimant should awarded damages for assault and battery in the amount of $160,000.00, which is inclusive of aggravated damages. False Imprisonment and Malicious Prosecution 65. General damages for false imprisonment and malicious prosecution are usually assessed in this jurisdiction on the basis the following heads: deprivation of liberty, endangerment of life and limb, injury to feelings and reputation and damage to property where the Claimant is put to charges and expenses. Loss of reputation was recently extensively considered in the Privy Council decision of Terrence Calix v The Attorney General of Trinidad and Tobago. 20 The Board noted as follows: the Board does not consider that lowly status should of itself diminish the compensation that someone should receive. Obviously if an individual is a distinguished and popular public figure, damage to his reputation might well be considered to be of greater import than to someone who is not well-known but this does not mean that the less well-known or well-regarded person will suffer no reputational damage if subject to malicious prosecution. Cases False Imprisonment 66. In Stephen Seemungal v The Attorney General of Trinidad and Tobago and the Commissioner of Prisons 21, delivered by Boodoosingh J on 18 th May 2010, an award of $100,000.00, inclusive of aggravated damages, was made for false imprisonment of 12 days. An award of $60, was also made for exemplary damages. 20 [2013] UKPC CV /HCA 894/2009 Page 19 of 23

20 67. In Stephen Lewis v The Attorney General of Trinidad and Tobago 22 delivered on 2 nd July 2010 by Boodoosingh J, an award of $50, inclusive of aggravated damages was made in favour of a Claimant for false imprisonment of 18 hours. 68. In Ted Alexis v The Attorney General of Trinidad and Tobago and P.C. David Merez 23 an award of 100, was made by Kangaloo Ag. J (as he then was) as general damages for false imprisonment and malicious prosecution and a further sum of $25, was awarded in exemplary damages to a Claimant who had drugs planted on him and who was imprisoned for two and a half months. 69. Having regard to these authorities, I am of the opinion that a reasonable award of damages, inclusive of aggravated damages, for the Claimant s detention from the 23 rd February 2008 to the 6 th March 2008 is $125, Malicious Prosecution 70. In Ramjass Ramlakhan v The Attorney General of Trinidad and Tobago and PC 27. Branch No delivered on 13 th July 2010 by Henderson J, an award of $45,000 was made to the Claimant for malicious prosecution (including aggravated damages) to a school teacher who was also the president of the Ghandi Seva Sangh Incorporation. 71. In Mark Blake v The Attorney General of Trinidad and Tobago 25 delivered by Boodoosingh J. on 30 th January 2013, an award of $450, was made (including aggravated damages). The Claimant and his brother were charged with robbery, kidnapping and wounding with intent. At the trial, the State offered no evidence against the Claimant because his identification parade was regarded as defective. Although bail was granted to the Claimant after 6 days, he remained in custody for 3 1/2 years. 22 CV th day of March, HCA No. S 348 of 2001/ HCA No. S- 841 of CV Page 20 of 23

21 72. In Thadeus Clement v The Attorney General of Trinidad and Tobago, 26 delivered on 31 st July 2013, an award of $160,000 was made by the Court of Appeal for malicious prosecution. The Claimant was arrested on the 23rd October 2004 who accused him of robbing someone. He was never informed of his right to retain and instruct without delay a legal adviser of his choice. No attempt was made to verify his explanation of his whereabouts at the time of the alleged robbery. He was taken from the Siparia Police Station to the San Fernando Police Station where he was forced to sign a document under threat of violence. He was then charged with robbery and taken before a Magistrate on 25th October He was then taken to the Remand Yard where he remained until 29th October During his period of detention, the conditions were cramped, unsanitary, overcrowded, smelly and there was no provision for sleeping or privacy in relation to personal hygiene and ablutions. He attended court on 8 occasions over a two and a half year period before he was discharged. The virtual complainant did not appear on any of the dates of hearing and the prosecution was not ever ready to proceed. 73. In the circumstances, I consider that a reasonable award of damages for malicious prosecution is $120, Exemplary Damages 74. In Thadeus Clement v. AG, the Court of Appeal decided that in the light of the award of damages made, which included an uplift for aggravated damages, an award of exemplary damages was not necessary. In this matter, I have included an uplift for aggravated damages in my awards of damages for assault and battery and for false imprisonment. Accordingly, following the approach of the Court of Appeal in that case, I consider that an award of exemplary damages is not necessary in this case and I decline to make such an award. Special Damages 75. The Claimant has made a claim for special damages representing the costs incurred to secure his legal representation and incidental expenses associated with travelling. He failed to produce any documentary evidence to support any of his claims and he did not identify the 26 Civ App No 95 of 2010 Page 21 of 23

22 Attorney-at-law who represented him in the Magistrate's Court. However, his evidence with respect to the expenses incurred was not challenged on cross-examination. 76. I am cognizant of the Court of Appeal ruling in Anand Rampersad v. Willie s Ice Cream 27 which is authority for the principle that the Plaintiff must prove his loss. However the Court of Appeal in Great Northern Insurance Company Limited v Johnson Ansola 28 Mendonca JA in delivering the judgement of the Court stated at paragraph 97 as follows:...it seems clear that the absence of evidence to support a plaintiff s viva voce evidence of special damage is not necessarily conclusive against him. While the absence of supporting evidence is a factor to be considered by the trial Judge, he can support the plaintiff s claim on the basis of viva voce evidence only. This is particularly so where the evidence is unchallenged and which, but for supporting evidence, the Judge was prepared to accept. Indeed in such cases, the Court should be slow to reject the unchallenged evidence simply and only on the basis of the absence of supporting evidence. There should be some other cogent reason. 77. In the circumstances, despite the Claimant's failure to produce any documentary proof of his expenses to travel to and from Court and his legal expenses, I am of the opinion that it would have been reasonable for the Claimant to retain an Attorney to represent him on the serious charges laid against him by PC Jugmohan. Since his evidence was unchallenged by Counsel for the Defendant, I will award the Claimant the sum of $89.00 for travelling to and from court and $4, for the cost of legal representation. Disposition 78. Accordingly, I will award the Claimant damages in the following amounts: (i) Damages in the amount of $160,000.00, inclusive of aggravated damages, for assault and battery; (ii) Damages in the amount of $125,000.00, inclusive of aggravated damages, for false imprisonment; (iii) Damages in the amount of $120, for malicious prosecution; 27 C.A. No. 200 of 2002 Para Civ App 169 of 2008 Page 22 of 23

23 (iv) Special damages in the amount of $4, Interest 79. I am of the view that the Claimant is entitled to interest payable on the award of damages for general damages for assault, false imprisonment and malicious prosecution at a rate of 6% per annum from the date of the filing of this Claim, namely 26 th February 2010 to 30 th July The Claimant is also entitled to interest on special damages at a rate of 6% per annum from 23 rd of February 2008 to the date of judgment. 80. Accordingly, the Claimant is entitled to interest on the general damages in the amount of $107, and interest on the special damages in the amount of $1, Costs 81. In my opinion, the Claimant is entitled to an award of costs determined in accordance with Rule 67.5 of Civil Proceedings Rules 1998 (as amended). This Rule provides that the costs payable should be based on the value of the claim which in the case of a Claimant is the amount agreed or ordered to be paid. Therefore, I will order the Defendant to pay to the Claimant the costs to be determined in accordance with Appendix B and based on the amounts awarded, inclusive of interest: Leriche v.francis Maurice Accordingly, since the total amount awarded to the Claimant is $518,184.00, inclusive of interest, I will order the Defendant to pay to the Claimant costs in the amount of $72, Dated this 30 th day of July 2014 André des Vignes Judge 29 Privy Council Appeal No 25 of 2004 Page 23 of 23