IN THE HIGH COURT OF JUSTICE BETWEEN AND. THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant BEFORE THE HONOURABLE MR. JUSTICE PETER RAJKUMAR

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1 TRINIDAD AND TOBAGO HCA: No.S-1452 of 2003 HCA: 2544 of 2003 (POS) IN THE HIGH COURT OF JUSTICE BETWEEN CURTIS GABRIEL Plaintiff AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant BEFORE THE HONOURABLE MR. JUSTICE PETER RAJKUMAR APPEARANCES: Ms. Gopiesingh for the plaintiff Ms. K. Reid for the defendant JUDGMENT The Plaintiff in this case claims damages for wrongful arrest and/or false imprisonment and/or malicious prosecution, together with aggravated and/or exemplary damages. He brings this claim in the context of an allegation that one Police Constable Sutherland maliciously and without reasonable or probable cause instituted against him three cases where he was charged for armed robbery. He was acquitted but not before he had spent 84 days in prison, 8 days prior to his appearance before a Magistrate, and 76 days thereafter after having been granted $100, in bail, due to his inability to satisfy the conditions of bail. He alleges that he was assaulted by Officer Sutherland and by Officer Williams in order to extract a confession. He also claims that he so indicated to the Learned Magistrate before whom he was taken 8 days later and that he requested then to see a Doctor. He alleged that he was not promptly and with sufficient particularity

2 informed of the reason for his arrest or subsequent detention or false imprisonment and that he was placed in a cell where he was subjected to filthy conditions and assault and, in addition, was not provided with proper or adequate food. The Defendant did not file any witness statement and conceded liability with damages to be assessed. When the matter came up for assessment of damages, no evidence was led on behalf of the Plaintiff and the Defendant indicated that it was prepared to proceed with the assessment on the basis of the allegations of the Plaintiff in his witness statement, untested as they were in cross-examination. Both parties had been granted leave to file written submissions on quantum and Attorneys for the Plaintiff and for the Defendant relied upon those submissions with cited authorities, together with elaborations thereon in answer to questions posed by the Court. I therefore proceed with the assessment on the basis of the allegations set out above and on the basis that the conditions the Plaintiff experienced during his detention as set out in paragraph 6 and paragraph 12 of his witness statement are true and correct, being unchallenged. DISPOSITION In all the circumstances I award: (i) (ii) (iii) (iv) the sum of $125, which includes an element for aggravation, the sum of $50, by way of exemplary damages interest thereon at the rate of 12 % per annum from the date of filing of the writ of summons August costs to be paid by the defendant to the plaintiff certified fit for advocate attorney at law ANALYSIS AND LAW DAMAGES The Plaintiff contends that the amount to be awarded for the elements of false imprisonment, malicious prosecution, and aggravated and exemplary damages are the sums of $150,000.00, $100, and $100, respectively. 2

3 False Imprisonment In respect of his claim for $150, for false imprisonment, it relies upon the case of High Court Action No. 801 of 1997, Abraham v The Attorney General, the decision of the Honourable Justice Smith delivered on 26 th February That case involved an assessment of damages pursuant to a consent order (as in the instant matter) where it was declared that the arrest and detention of the applicant was unconstitutional and illegal (unlike in the instant matter) where an award of $125, was made. The applicant in that case was imprisoned for 70 days, a time period similar to the instant Plaintiff. The applicant in that case described in his testimony conditions of incarceration similar or at least at the same level of horror as the applicant in the instant case. It should be noted, however, that in this case the applicant actually testified and withstood cross-examination with his credibility intact. [See page 2 of the decision.] Malicious Prosecution The applicant also claims the sum of $100, in respect of the malicious prosecution element of the claim. In support, the case of Harricharan v The Attorney General, High Court Action No of 1999, was cited as authority for awarding separate amounts in respect of malicious prosecution and false imprisonment. In the Harricharan decision delivered by the Honourable Justice Deyalsingh on 19 th December 2006, an award of damages which included an element of aggravated damages was made in respect of (a) false imprisonment, $50,000.00, and (b) malicious prosecution, $75, The circumstances of that case were relevant to the outcome. In that case, the Plaintiff was a police officer known to the Prosecutor easily reachable by telephone and who had voluntarily come to the police station on three previous occasions. [See paragraph 54 of that decision.] The Court in that case found that the Prosecutor s investigation of a theft alleged against the plaintiff in that case left much to be desired. The Court found that the Prosecutor did not have an honest belief in the truth of the charge. It was in those extraordinary circumstances that that Court awarded damages for malicious prosecution in the sum of $75,000.00, having concluded that there was more in the mortar than the pestle. [Paragraph 58] 3

4 It is clear that the Court took into account the circumstances attendant upon that Plaintiff s arrest at 5:00 AM at his home in full view of his neighbours, despite the fact that he had voluntarily attended at the police station on 3 occasions prior to his arrest. The Court clearly found that it was unnecessary and amounted to psychological terrorism. I find that the circumstances of that case are more extreme than those in the instant matter and the Court need not in this case make an equivalent award in respect of the malicious prosecution aspect of the instant Plaintiff s claim. In the case of Sorzano & Mitchell v The Attorney General Civ App. 101 of 2002 cited by Attorneys at Law for the Defendant, the Court of Appeal awarded the sum of $180, for malicious prosecution and false imprisonment in circumstances where the accused had spent 385 days in prison until his trial had been completed. I note that Justice of Appeal Mendonca in dealing with (as in the instant case) an assessment of damages in respect of a default judgment for malicious prosecution, found that while the Abraham case was a case dealing with breach of a constitutional right, he did not consider it to be of no relevance. [Paragraphs 25 and 26] Paragraph 25: I recognise that there are differences in an assessment of compensation in such cases (for breach of a constitutional right) compared to an assessment of damages in torts involving the loss of liberty at common law such a false imprisonment and malicious prosecution. Paragraph 26: Loss of liberty is therefore relevant here as it was in the Stanislaus and Abraham cases. While therefore it should be borne in mind that these cases were dealing with the breach of a constitutional right, I do not consider them of no relevance. I also note that in that case [paragraph 9 at page 5], the Court of Appeal cited with approval the statement in McGregor on Damages, 14 th Edition, paragraph 1367: If there has been arrest, and imprisonment up to the hearing of the Court, damages in respect thereof should also be included, and will be the same as would be recoverable in an action for false imprisonment. 4

5 The Defendant refers to the following cases: Eileen Williams, High Court Action No. Cv 370 of 1996 delivered by the Honourable Mr. Justice Jamadar on 20 th June In that case, the Honourable Judge found that an appropriate award for general compensatory damages for assault, false imprisonment, wrongful arrest and malicious prosecution including uplift for aggravated damages was $50, The circumstances as he found, were that the plaintiff was not only grabbed and handcuffed in the presence of several people including her family but was handcuffed onto the gate to her premises while she was holding her baby, had her dress torn exposing her person, and was left in that position for some 20 to 30 minutes and thereafter being imprisoned for at least 10 hours. This case was decided on 20 th June 2001 and in those circumstance, that Court also made an award of $15, in respect of exemplary damages. Counsel also relied upon the case of Barcoo v The Attorney General, High Court Action No of 1989, the decision of the Honourable Justice Mendonca as he then was, dated 19 th December This is a claim (like the instant claim) for damages of false imprisonment and malicious prosecution. The Plaintiff in that matter was a special reserve policeman. In the Barcoo case, an award of $75, was made as compensatory damages. This included an element of aggravated damages in which the Learned Trial Judge took into account the abuse and threats the plaintiff endured during his detention, the circumstances surrounding his detention, conditions of the cage and the cell in which he was detained, the obvious trauma and mental anguish he would have suffered throughout his imprisonment and prosecution, and the fact that the Defendant sought to the end to justify an arrest and prosecution that was clearly unjustifiable. [See page 29 of that decision.] He also made an award of $10, by way of exemplary damages. In this case, there was no allegation of assault (unlike in the instant matter). In the case of Hyndman v A.G. HCA 71 of 1996, a decision by the Honourable Justice Tam delivered on 31 st July 2001, the plaintiff s claim was for damages for assault, false imprisonment and malicious prosecution. In that case, the plaintiff was found to have been proceeding about his business when he was abruptly accosted by the second defendant and forced to participate in a search for an accused. He was 5

6 held, threatened and assaulted by the defendant, forced to descend a steep area leading to a beach, then to enter a cave to search for that accused. He was imprisoned for some 20 days before being freed on bail. In those circumstances, the Court awarded $85, which included an element of award for aggravated damages. A further award of $25, was made in respect of exemplary damages. And in the case of Alexis v The Attorney General, High Court Action No. S-1555 of 2002, delivered March per C. Kangaloo J the claimant was awarded the sum of $100, inclusive of aggravated damages and a further $25, as exemplary damages for false imprisonment and malicious prosecution in circumstances in which the police had planted cocaine on the claimant, had fabricated the charge and evidence against him, and he had spent 2½ months in custody. I have also considered the case of Civil Appeal No. 159 of 1992, Thadeus Bernard & Airports Authority of Trinidad & Nixon Quashie delivered 21 st October 1998 (a claim for assault, false imprisonment and malicious prosecution). I note the Court of Appeal commented in the Quashie case that the award of $100, for wrongful arrest and false imprisonment in Tokai, High Court Action No of 1984, which was delivered in 1994, (14 years ago) was not appropriate, and that taking into account the fall in the exchange rate between the TT Dollar and the US Dollar was equally not appropriate. I note that almost 10 years have elapsed since that statement and that in the interim the value of money has fallen, and there has been a gradual increase over time in awards to the point where an award of $100,000. is no longer out of line with the trend of awards in this area. The Court also noted that there should be some correspondence between the awards for malicious prosecution and false imprisonment and awards for personal injury. See page 6 of that decision where the Court noted that: From the cases he cited it appears that awards of this order (that is, $78,000.00) would only be made in the most serious type of physical injury such as irreversible brain damage. Even awards for loss of sight in one eye and other injuries of that magnitude fall well below the figure awarded here as compensatory damages. 6

7 It would seem that although awards for personal injuries have increased over time since delivery of that judgment, the principle remains applicable as a sanity check in that awards of damages for malicious prosecution and false imprisonment should bear some level of correspondence with awards in respect of actual physical personal injury. However the Court of Appeal in Millette v Mc Nicholls Civ. App. No.14 of 2000@ page 7 observed that the process of synchronisation was likely to be a slow and gradual one. In the premises I am guided by the trend that I find established in the above cited cases. Compensatory damages I make an award for compensatory damages which will incorporate an element in respect of aggravation in respect of the circumstances I have described above including, but not limited to, the excessive length of time that lapsed between the Plaintiff s arrest and his being brought before a Court, and the horrendous condition which he described being detained under, together with assaults of various types while being incarcerated. I think an appropriate award in these circumstances would be $125, which includes an element for aggravation. Exemplary damages As set out by the Honourable former Chief Justice de la Bastide in the Bernard v Quashie case citing Rooks v Barnard, two categories of case which the common law recognised as appropriate for the award of exemplary damages included oppressive, arbitrary or unconstitutional conduct by the servants of the Government. It has also been held that Government servants should be widely interpreted so as to include the police and local and other authorities. [See page 9 of that decision.] I note that no medical evidence was filed in support of the Plaintiff s claim to have been the subject of such assaults and no explanation was provided as to why, after his incarceration had ended, no medical report was obtained or sought in respect of the after effects of such assaults. However I accept the Plaintiff s evidence as unrebutted. The Defendant s servants or agents are not entitled to assault anyone in custody, far less persons who are presumed innocent until proven guilty. 7

8 I find that the behaviour of the Defendant s servants or agents as described in this matter, unrebutted by evidence to the contrary, and in particular the assault that he alleges that was perpetrated by them, is behaviour that qualifies as oppressive and unreasonable. In those circumstances, the Court is prepared to mark its disapproval of such behaviour by an award of exemplary damages in the sum of $50, Conclusion In all the circumstances I award (i) the sum of $125, which includes an element for aggravation, (ii) the sum of $50, by way of exemplary damages (iii) interest thereon at the rate of 12 % per annum from the date of filing of the writ of summons August (iv) costs to be paid by the defendant to the plaintiff certified fit for advocate attorney at law. Dated the 4th day June of Peter A. Rajkumar Judge 8