IN THE HIGH COURT OF JUSTICE TRINIDAD AND TOBAGO

Transcription

1 IN THE HIGH COURT OF JUSTICE OF TRINIDAD AND TOBAGO CV Karamchand Maharaj Roshini Maharaj (as Executrix of the last Will of Karamchand Maharaj, deceased, substituted by Order of the Honourable Madam Justice Tiwary-Reddy dated the 15 th day of April, 2010) And (1) Balkaran Shivnauth (2) THE SOUTH WEST REGIONAL HEALTH AUTHORITY (Amended pursuant to leave granted by the Honourable Mr. Justice Aboud dated the 15 th day of December, 2011) *********************** Before Master Patricia Sobion Awai Appearances: For the Plaintiff Mr. Malcolm Johnatty For the Defendant:- Mr. Jagdeo Singh instructed by Ms. Saira Lakhan

2 INTRODUCTION 1. These proceedings for breach of breach of confidentiality, false arrest and wrongful imprisonment were instituted on December 29, The original Claimant was Karamchand Maharaj(KM) who died and thereafter Roshini Maharaj as Executrix of his estate was substituted as Claimant. There were two Defendants when the matter was initiated but the assessment proceeded only as against the South West Regional Health Authority (SWRHA). 2. By Consent Order dated January 26, 2012, the claim was compromised between the parties upon terms that the Defendant, SWRHA, pay the Claimant such sum (inclusive of costs) as might be agreed either out of court or at a judicial settlement conference or as might be assessed by a Judge or a Master. Pursuant to that Order, the matter came up before me for assessment of damages and costs. 3. In the course of hearing the assessment of damages, two issues unrelated to the substantive case arose. 4. The first issue concerned the disclosure by the Defendant of correspondence between the parties containing settlement proposals. I invited submissions from both parties after which I ruled that there was an improper disclosure by the Defendant of Without Prejudice correspondence, which were struck out. In spite of the breach, I was satisfied that I could continue to hear the matter without injustice to either party. The Defendant was ordered to pay the costs assessed in the sum of $4,000. Page 1 of 23

3 5. The second issue concerned gratuitous, uncomplimentary remarks and personal attacks made by the attorney for the Claimant against the instructing attorney for the Defendant and other persons not before the court. An apology proffered by the offending attorney was accepted and the unfortunate wording was struck out from the Claimant s written submissions. 6. The latter issue in particular adversely affected the tenor of the proceedings. Attorneys have an obligation as members of the legal profession to avoid personal conflicts as this may result in delay and unseemly wrangling, both of which occurred in these proceedings. Section 41(1) of The Code of Ethics (Third Schedule to the Legal Profession Act Chap. 90:03) is quite explicit. Such conduct is not in the best interests of litigants or anyone. BACKGROUND 7. This assessment of damages arose from the apprehension and forced detention of KM, a Hindu Pundit, at the Psychiatric Ward of San Fernando General Hospital for a period of some seven (7) days from June 10, 2009 to June 16, KM was only released when an Order from the High Court was obtained in habeas corpus proceedings instituted by his family. At the time of his detention, KM was 49 years old and resided with his wife Roshini and daughters Kareshma and Jayanti. KM subsequently died on January 13, 2010 and this matter was continued by Roshini, as executrix of his estate.

4 THE DECISION 8. The Order made by the Court in this assessment was as follows: (a) The Defendant shall pay the Claimant general damages assessed in the sum of $180, with interest at 12% per annum from December 21, 2009 to September 30, (b) The Defendant shall pay the Claimant special damages assessed in the sum of $4, with interest at 6% per annum from June 10, 2009 to September 30, (c) The Defendant shall pay the Claimant s costs on a prescribed costs basis in the sum of $36, The Court also ordered that the Defendant pay the Claimant s costs in relation to the disclosure of privileged documents issue assessed in the sum of $4, THE EVIDENCE 10. The Claimant called four (4) witnesses to give evidence at the assessment. These were Roshini, Kareshma and Jayanti Maharaj, the wife and daughters respectively of KM and Kaloutie Sookdeo-Bissessar, a neighbor. These witnesses were cross-examined by the Defendant s attorney. 11. There was a bundle of agreed documents in addition to which the Claimant filed three (3) Hearsay Notices dated June 6, 2011, June 13, 2011 and January 3, 2012 respectively. The hearsay documents exhibited to the said Notices, including Page 3 of 23

5 the affidavit of KM made in the habeas corpus proceedings, were admitted into evidence. 12. The Defendant elected to call no evidence. 13. The Claimant s evidence dealt with issues of both liability and quantum of damages. Set out below are portions of the evidence before the Court that were of more relevance to the assessment of damages: Affidavit of Karamchand Maharaj 14. From the affidavit of KM, dated July 6, 2009: 2. I have seen the report by my brother Krishna Maharaj applying for me to be admitted. I never knew he was making such an application. His reports on me are untruthful. He does not live near me. Gandhi Village is located miles from where I live. No one including any doctor suggested to me that I be admitted to any psychiatric institution and therefore it is not possible that I refused. I would have opted to be treated in a private nursing home and not in the San Fernando General Hospital and I can afford private care. 3. Having spent 6 days there by courtesy of the Respondents I can say that conditions there are deplorable and the place is dirty and the food scornful. The patients there smoke weed and curse in front of the nurses who say nothing. I do not curse or smoke weed. 4. There are some people there who look as though they belong there. But I do not belong there. One day one of the patients for no apparent reason pulled me off of the bed while I was sleeping and I fell on the floor.

6 Roshini Maharaj 5. Since my release from the hospital I have been treated first as an in-patient at a private hospital and then as an out-patient. That psychiatrist expressed to me and my wife the view which I believe, that I can be treated as an outpatient by medication which I was taking. 15. From the principal witness statement of Roshini Maharaj filed on June 13, 2011: 4. On 10 th July 2009 we were all at home. It was early in the morning. A police vehicle and an ambulance were at the gate. The deceased [Karamchand Maharaj] was in the front porch. I had just brought his breakfast to him and he had sat down to eat it. The deceased waved to the police to come in and he opened the gate with the remote control. Two police officers came in. One came upstairs where we were. He said they had a Court Order to take the deceased to San Fernando General Hospital for a cancer check-up. I asked why and the police just replied there was a Court Order and held up a small piece of paper but did not allow me to read it. I asked to read it and he appeared to become angry. 5. I protested and so did my two daughters and we all began crying, saying that the deceased had not done anything. The police took the deceased away. My younger daughter Karishma went into the ambulance with him. 6. I phoned a friend from the area and asked him to drive us to the hospital. We reached San Fernando General Hospital at about 9.30 and asked for where they would be doing cancer tests. The policeman had misled us and after wandering around the hospital I eventually found the deceased was in the psychiatric ward. Jaya my older daughter Page 5 of 23

7 and I got there at about 10 a.m. and found him with Kareshma The deceased had been diagnosed with cancer of the lung about two months earlier. The deceased does not smoke or drink alcohol but he used to be exposed to a good deal of smoke during the course of the prayers he said for people when small fires are lit as part of the ceremony. The cancer affected his voice box as well. 15. Following his diagnosis of cancer the deceased sought to start to treat his cancer with ayurvedic remedies including herbal remedies, yoga, prayer and meditation which he believed are a less invasive treatment than chemotherapy, and he believed that in any event that if he had to resort to chemotherapy the ayurvedic remedies will reduce his stress and make his body more receptive to the chemotherapy. 16. On Thursday 11 th June 2009 when I spoke to Dr Foon I showed to her a report which showed that the Deceased had cancer. It is at page 1 of the bundle. She said that cancer treatment is not available at that hospital and when he is discharged I should make arrangements for that treatment. She also said that the deceased had told her that God will heal him, and she expressed the view to me that that alone showed that the deceased was not in his right mind. 17. Over the past few years before he died the deceased did in fact visit a psychiatrist Dr Hari Maharajh from time to time and received medication for depression. His last visit to Dr Hari Maharajh was about 6 weeks before he was detained on 10 th June I was present when he visited Dr Hari Maharajh. At not time did Dr Hari Maharajh say that the Deceased should be detained in any psychiatric institution. He just prescribed some tablets..

8 Kareshma Maharaj 21. The deceased never at any time displayed any outward signs of any mental disorder and he functioned as a normal person would. He was never hostile or aggressive whether in or out of our home. 22. During the months of April and May 2009 Krishna Bobo Maharaj had come to me a few times with a paper for me to sign for the deceased to be committed to the psychiatric ward. There was nothing from any doctor. As far as I know that was only Bobo s request. I refused, believing that his siblings wanted him to be proved to be mad as a means of succeeding in their legal dispute. 12. From the witness statement of Kareshma Maharaj filed June 13, 2011: 2. I remember 10 th June About 7.30 in the morning my older sister Jayanti and I were dressed and ready for school. Jayanti is also known by the name Jaya. At the time we both attended Parvati Girls Hindu College in Debe. I still attend there. 3. My father was sitting in the porch with a plate that my mother had just brought out to him. A police jeep and an ambulance came to the gate and my father opened the gate with the remote and beckoned them to enter. Two uniformed police officers got out of the jeep and came into the yard. One came upstairs saying they had a Court Order for them to take him, which we now know to be false. 4. One of them took my father downstairs and put him into the ambulance. I changed out of my school uniform and dressed in normal clothes and I got into the ambulance with him. On the way to San Fernando General Hospital, my father was crying all the time. Page 7 of 23

9 5. When we got to the hospital they took my father to the psychiatric ward known as Ward One. I went into the ward with him. He sat on a bench and I sat next to him. When we got to the ward, Chaitram Rambharose who is married to my father s sister Indra was there. My father s brother Krishna also called Bobo as well as Chaitram s son Clifford came about half hour later. My mother and sister came at abour (sic) 10 a.m. My mother went to speak to the doctor, a man who spoke with an Indian accent. Chaitram has since died but he was at the time a psychiatric social worker attached to the hospital. Chaitram Rambharose told my father, Is long time we trying to get you in here. 6. I remember the following day 11 th June 2009, Corpus Christi. On 11 th June 2009 one Dr Foon at the said Ward One spoke to my sister Jaya and me. She asked us in my father s presence what we knew about something my father was saying that there was some dispute with his siblings about land. Both Jaya and I told her we knew about the dispute and there was land in Barrackpore and his siblings, in particular Krishna also called Bobo and Radhica came a few times at nights to try to get him to sign something and he was refusing. My father was there and he told Dr Foon that it was 49 acres of land. Jayanti Maharaj 13. I did not find the evidence of Jayanti to be useful except insofar as she was able to corroborate statements made by her sister Kareshma regarding the apprehension of KM at their home on June 10, 2009.

10 Kalawatee Bissessar- Sookdeo 14. From the witness statement of Kalawatee Bissessar-Sookdeo filed on June 13, 2011: 2. I knew Karamchand Maharaj and his wife Roshini Maharaj since about 1993 when they came to live in Laltoo Trace, Penal. I knew him to be a Hindu Pundit known as Pundit Aum. I knew him to be conducting of religious services for members of the Hindu faith. 3. I am aware that in June 2009 he was taken to the psychiatric ward at San Fernando General Hospital. I was extremely surprised. At the request of his wife Roshini Maharaj, I gave instructions to her Attorney-at-Law and swore to an affidavit in support of his application to be released. 4. I am aware of a report purporte (sic) to have been signed by his brother. It alleged that Karamchand Maharaj walked the street semi-clothed and begging for money. That brother never lived in this district. Karamchand Maharaj was always fully clothed when I saw him and I saw him many times in his yard and on the street. As a Hindu pundit he always carried himself about with the decorum that one would expect. I swore to a second affidavit saying this. 5. I have never seen or heard of Karamchand Maharaj begging or asking for money. I know almost everyone in Laltoo Trace and we are a closely knit community and had such a thing been going on I would have known.. 8. If Karamchand Maharaj suffered from any psychiatric disorder, it was not apparent from his behavior or demeanour and he carried on his life like a normal person. He was a very peaceful person and never a nuisance or threat to anyone in the community, and I never knew him to be in trouble with the law. Page 9 of 23

11 EVIDENTIAL OBJECTIONS 16. The Defendant made submissions on evidence in the following documents Notice of Evidential Objections filed on September 15, 2011 Notice of Application filed on January 7, 2013 Defendant s written submissions filed on March 5, The Claimant responded in the following documents: Claimant s submissions on evidential objections filed on December 10, 2012 Claimant s submissions on quantum of damages filed on January 28, Having considered the submissions of both parties, I found as follows: a) A significant portion of the witness statements of Roshini Maharaj was irrelevant to the assessment. b) The Defendant s objections to paragraphs 7, 9 and 10 of the witness statement of Kalawatee Bissessar- Sookdeo were upheld. c) The Defendant s objections to paragraphs 7, 10 and 11 of the witness statement of Kareshma Maharaj were upheld. d) Paragaraph 3 of the affidavit of Jayanti Maharaj was irrelevant. e) The objections relating to the affidavit of KM were not upheld.

12 FINDINGS OF FACT The compromise 19. In this assessment the parties compromised on the issue of liability and as such the trial judge made no express findings of fact. However the claim as against SWRHA is for damages for unlawful arrest and detention, particulars of which were set out in the claim form and statement of case. For the purposes of the assessment, the allegations which constituted the tort of unlawful arrest and detention as set forth in these documents must be deemed to be proved. 20. The short facts were that the Defendant, acting through its servant or agent, purported to issue an apprehension order dated June 9, 2009 which falsely stated that KM had failed or refused to be admitted to a psychiatric ward. That apprehension order directed the police to apprehend him and convey him to the San Fernando General Hospital, which they did on the morning of June 10, KM was detained against his will at the Psychiatric Ward for several days. He was released on June 16, 2009 after an Order was issued by the High Court in habeas corpus proceedings. The Mental Health Act Chap 28: SWRHA purported to detain KM as a medically recommended patient. Pursuant to the Mental Health Act Chap 28:02, the Psychiatric Hospital Director or the duly authorized medical officer may issue an apprehension order upon receipt of an application from a relative or friend accompanied by two certificates of two medical practitioners, one of whom shall be a Government Medical Officer. To be valid, the medical certificates must be in accordance with section 10(2) of the Act which requires, Page 11 of 23

13 inter alia, that both certificates must be done within seven days of each other. Additionally, the Psychiatric Hospital Director or duly authorized medical officer must be satisfied that the person named in the certificates is unable or unwilling to express himself as being in need of care and treatment. This latter requirement was not satisfied in the instant case. Family dispute 22. Roshini Maharaj testified that KM s siblings wanted him to be proved mad as a means of succeeding in their legal dispute concerning land. 23. Kareshma stated that at the Psychiatric Ward, a doctor asked Jayanti and herself what they knew about KM s dispute with his siblings and they told her about the dispute over 49 acres of land in Barrackpore and about a document that KM was refusing to sign. 24. There was no credible evidence to support the contention that the SWRHA was implicated or took sides in any alleged plot to have KM declared insane to further the interests of his relatives. In my opinion, the family dispute was irrelevant to this assessment. The apprehension 25. On June 10, 2009, at about 7.30 am, KM was at home with his wife and two daughters when a police vehicle and ambulance came to the gate. KM who was seated upstairs in the porch having his breakfast, opened the gate with the remote control allowing the two uniformed police officers to come in. The police officers indicated that they had a Court

14 Order to take KM to the San Fernando General Hospital for a cancer check-up. 26. Despite protests and cries from the family, the police officers took KM and placed him into the ambulance. KM s younger daughter Kareshma accompanied him in the ambulance to the San Fernando General Hospital. Kareshma reported that KM cried all the time. The detention 27. KM was detained at the Psychiatric Ward of San Fernando General Hospital from 7:30 am on June 10, 2009 to 1:45 pm on June 16, 2009, a period of 7 days. 28. In his affidavit, KM said conditions at the ward were deplorable, the place was dirty and the food was scornful. He said that patients smoked weed and cursed in front of the nurses who said nothing. KM neither cursed nor smoked weed. 29. KM recalled an incident one day when one of the patients pulled him off the bed for no apparent reason causing him to fall to the floor. He said some of the people in the Ward appeared to belong there. He felt that he himself did not belong there. 30. KM s account of the conditions at the Psychiatric Ward was accepted. Although no challenge by way of cross-examination was possible, it was open to the Defendant to lead evidence to contradict KM s version. It failed to do so. Page 13 of 23

15 The release 31. The family was informed that KM was being detained under a Court Order. They subsequently learnt that he was detained as a medically recommended patient under an Apprehension Order purportedly issued by a medical officer under the Mental Health Act Chap. 28:02. A medically recommended patient may be discharged on the receipt of a written undertaking by a relative or friend if it is conducive to the recovery of the patient that he should be under the care and in the custody of such relative or friend: section 11(1) of the Mental Health Act Chap. 28: Instead of the written undertaking, the family, believing a Court Order had been issued, retained an attorney at law who instituted habeas corpus proceedings on July 7, On July 15, 2009, the High Court ordered the immediate release of KM. 33. That Order for KM s release was served on SWRHA on July 16 at am. At am, the doctor at the Psychiatric Ward indicated that she would first have to speak to the doctor in charge about KM s release. At about pm, the same doctor indicated that they were seeking legal advice about the Court s Order. At about 1.05 pm, Roshini Maharaj was invited into the Ward and the doctor in charge spoke with her until about 1.30 pm. Roshini was then asked to sign a document stating that the hospital was not responsible for KM s discharge. She signed the document and KM was released at 1.45 pm.

16 KM s Social Standing in the Community 34. KM was a Hindu pundit. He conducted religious services for members of the Hindu faith. 35. According to Kalawatee Bissessar-Sookdeo, As a Hindu pundit, he always carried himself about with the decorum one would expect. She was unaware that KM suffered from any psychiatric disorder since it was not apparent from his behavior or demeanour and he carried on his life like a normal person. She described him as a very peaceful person who was never a nuisance or threat to anyone in the community. She was surprised to learn that he had been taken to the Psychiatric Ward of the San Fernando General Hospital. SUBMISSIONS ON QUANTUM 36. The Claimant submitted that the Defendant was guilty of outrageous conduct as evidenced by (a) the representation that the detention was based on a Court Order, (b)the noncompliance with several procedures set out in the Mental Health Act Chap. 28:02, (c)the Defendant s knowledge of the land dispute involving KM s siblings and himself, (d)the failure to release KM immediately upon being served with the Court Order dated July 15, 2009 and (e)the Defendant s attempt to set aside that Order. 37. In addition to the above matters, the Claimant identified other factors such as KM s humiliation at being arrested by police at his home in the presence of curious neighbours which warranted an award of aggravated damages. Page 15 of 23

17 38. Special damages were sought for travelling expenses, for meals bought for the family during the period of detention and for costs incurred for KM at a private medical institution after his release from the Psychiatric Ward. 39. The Defendant for its part submitted that the Claimant was not entitled to aggravated damages, or alternatively, such an award should be low because the Claimant failed to plead or prove immense physical and emotional harm and financial hardship resulting from KM s detention. Further, there was no real evidence to show that the Defendant acted in bad faith. 40. The Defendant also submitted that the injury to KM s reputation and humiliation was not proved on a balance of probabilities, and that KM s detention at a Psychiatric Ward would, in any event, have been less severe than detention in a prison in Trinidad. 41. As to special damages, the Defendant argued that no award should be made under this head because there was no apparent need for KM to stay at a private institution after his release and there was no evidence to support the claims. 42. Both parties cited numerous authorities from this jurisdiction on the level of awards in cases involving unlawful detention. While I am grateful for the authorities provided, for convenience, I will refer only to some of the more recent cases involving comparable periods of detention.

18 GENERAL DAMAGES 43. For the tort of false imprisonment or wrongful detention the relevant heads of damages include injury to liberty, injury to feelings and injury to reputation. Injury to liberty refers to loss of time from a non-pecuniary standpoint. Injury to feelings refers to mental suffering encompassing loss of dignity, humiliation, disgrace and loss of social status. Injury to reputation is damage done to a person s good name or character. 44. Additionally, the court may award aggravated damages where the evidence justifies such an award. Aggravated damages are an aspect of compensatory damages which must be distinguished from exemplary or punitive damages. In Takitota v The Attorney General, Director of Immigration and Minister of National Security PC Appeal No 71 of 2007, at paragraph 11, the Privy Council explained the rationale for an award of aggravated damages as follows: In awarding compensatory damages the court may take account of an element of aggravation. For example, in a case of unlawful detention it may increase the award to a higher figure than it would have given simply for the deprivation of liberty, to reflect such matters as indignity and humiliation arising from the circumstances of arrest or the conditions in which the claimant was held. The rationale for the inclusion of such an element is that the claimant would not receive sufficient compensation for the wrong sustained if the damages were restricted to a basic award. 45. In this case, KM spent seven (7) days in the Psychiatric Ward of the San Fernando General Hospital. He lost time Page 17 of 23

19 that would otherwise have been spent with his family and in his community conducting religious services as a Hindu pundit. He also lost time which would have been spent receiving treatment for his cancer since such treatment was not available at the Psychiatric Ward. 46. The manner of KM s apprehension at his home by police officers and the deplorable conditions at the Psychiatric Ward where KM was detained aggravated the injury and suffering of KM. 47. Because of the Defendant s actions, which became known within the community, the Claimant would have suffered humiliation and loss of social standing. Prior to his detention, KM was receiving psychiatric treatment including medication. It was a private matter and he was able to continue to perform his duties as a Hindu pundit without the social stigma often associated with mental illness. This would have changed after his enforced detention at the Psychiatric Ward. 48. The fact that he had to bring habeas corpus proceedings to secure his release was also an aggravating feature causing distress to KM and his family. 49. However I did not accept the Claimant s submission that the family land dispute and the failure to release KM immediately upon service of court order were aggravating elements in this case. The evidence did not show that the Defendant was implicated in the alleged family dispute. The release was effected approximately three hours after the service of the order. There was no inordinate delay

20 since the Defendant was entitled to obtain legal advice and ensure that the release was properly effected. 50. In assessing general damages for the wrongful detention, the court must have regard to awards in this jurisdiction for similar infringements. 51. In Thadeus Clement v The Attorney General CA 95 of 2010, the appellant spent approximately six (6) days in wrongful detention. He complained in particular about the four (4) days he spent at the Remand Yard where conditions were described as sub-human. The Court of Appeal in July 2013 awarded the sum of $160, inclusive of aggravated damages. 52. In Uric Merrick v The Attorney General CA 146 of 2009, the Appellant who pleaded guilty in the Magistrates Court was sentenced to six (6) months in prison. He appealed and was kept at the Remand Yard. He withdrew his appeal but instead of being released, he was transferred to the Port of Spain Prison to begin to serve his sentence. The trial judge found he was wrongfully detained for thirty-five (35) days and awarded the sum of $35, as general damages. The Court of Appeal in February 2013 after comprehensively reviewing awards for false imprisonment in this jurisdiction increased the award to $200, which sum was inclusive of aggravated damages. 53. In Siewnarine Buchoon, Johnny Buchoon and Nicole Webber v The Attorney General CV , the second Claimant was wrongfully kept in custody for seven (7) days and charged Page 19 of 23

21 with felling, stealing and removing teak trees without a proper licence. The charges were dismissed and the claimant obtained judgment for malicious prosecution. In assessing general damages, the Court took into account verbal threats and abuses the claimant had to endure from police officers and the deplorable conditions of his prison cell. In September 2011, he was awarded $90, inclusive of aggravated damages. 54. In Kedar Maharaj v AG CV , the Claimant who had been detained at St Ann s Hospital for many years was not released until some twenty-nine (29) days after a warrant for his release had been issued. His release was ordered by the Court in habeas corpus proceedings. The Court awarded the sum of $280, having regard to the length of detention, the mental suffering of the Claimant and the conditions of his detention which added an element of aggravation. 55. In the circumstances of this case, I considered the sum of $180, to be an appropriate award taking into account the period of detention and the elements of aggravation referred to above. SPECIAL DAMAGES 56. The Special Damages claimed in the Amended Statement of Claim were as follows: a) Travelling from Penal to San Fernand General Hospital and back: $200 x 7 = $1,400 b) Purchase of meal: $50 x 7 = $350 c) Cost of staying at Cross Crossing Medical Centre: $6,500.

22 57. With respect to the first two claims, there was no evidence before the Court on those matters and no award was made under those heads. 58. With respect to the claim for the cost of staying at Cross Crossing Medical Centre, I considered this to be a reasonable expense incurred by the Claimant because KM s emotional state following his unlawful detention would have been unknown and therefore putting him under the care of a psychiatrist who could determine what was in the best interests was a good precaution to take. The receipt which form part of the Agreed Bundle shows that the costs of the stay at Cross Crossing Medical Centre was $4, That sum was allowed. EXEMPLARY DAMAGES 59. At the assessment, the Claimant did not pursue the claim for exemplary damages. 60. In any event, this was a claim which survived for the benefit of the estate of the deceased KM and such claims do not attract exemplary damages: Section 27 (2) (a) of the Supreme Court of Judicature Act Chap 4:01. COSTS 61. The general rule is that where fixed costs are inapplicable, costs should be determined on a prescribed costs basis in accordance with Rule 67.5 of the Civil Proceedings Rules. 62. The Court has been asked to consider reducing the costs payable on the ground that the Claimant unreasonably Page 21 of 23

23 refused to accept its settlement offer. I rejected that submission because the award made by the Court was more than the Defendant s offer and as such the Claimant s refusal could not be considered to be unreasonable. 63. The Claimant sought additional costs for the failure of the Defendant s application to strike out evidence admitted by virtue of the Hearsay Notices and the other evidential objections. In fact neither party was wholly successful in respect of the evidential issues. Although documents were admitted through the Hearsay Notices and no evidence was struck out, many of those documents were not relevant to the assessment and were therefore of little or no weight and therefore not taken into account. In any event, the evidential objections proceeded by way of written submissions which were considered together with the substantive submissions. These costs were therefore included in the prescribed costs awarded to the Claimant: Rule 67.7 of the Civil Proceedings Rules. CONCLUSIONS 64. In this case, the failure of the SWRHA to follow the procedures set out in the Mental Health Act Chap. 28:02 resulted in the unlawful detention of a citizen at the Psychiatric Ward of the San Fernando General Hospital for seven (7) days. The power of the Psychiatric Hospital Director and authorized medical officers to issue apprehension orders for the detention of medically recommended persons is an important safeguard that protects the public interest when properly invoked. However when it is misused or when there is a failure to follow the stringent requirements of the Act, the result is the

24 unlawful deprivation of the liberty of a subject with dire consequences as in this case. Dated this 30th day of October, 2013 P. Sobion Awai Master Page 23 of 23