IN THE HIGH COURT OF JUSTICE

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV BETWEEN IVAN NEPTUNE APPLICANT AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO DEFENDANT Before the Honourable Mr. Justice A. des Vignes Appearances: Mr. K. Samlal instructed by Mr. S. Sahadeo for the Claimant Mr. N. Byam instructed by Ms. F. Ramdin for the Defendant JUDGEMENT 1. By Claim Form and Statement of Case filed on the 3 rd September, 2008 the Claimant claimed against the Defendant the following reliefs: 1

2 (a) Damages including aggravated and/or exemplary damages for false imprisonment, assault and battery and/or unlawful arrest and detention of the Claimant. (b) A declaration that the Claimant is entitled to the return of motor vehicle number TAJ (c) A declaration that the Claimant was denied and/or refused his right to retain and/or instruct without delay a legal advisor of his choice and to hold communication with him which was unconstitutional and illegal contrary to section 5 (2) (c) (ii) of the Trinidad and Tobago Constitution. (d) A declaration that the Claimant was not promptly and with sufficient particularity informed of the reason for his arrest and detention which was unconstitutional, illegal and contrary to section 5 (2) (c ) (ii) of the Trinidad and Tobago Constitution. (e) A declaration that the Claimant was denied his constitutional right to a telephone call to a relative or friend. (f) Interest at such a rate and for the period as to the Court may seem just. (g) Further and other relief. (h) Costs. 2. The Defendant was sued pursuant to the provisions of the State Liability and Proceedings Act Chap 8:02 and in his capacity as the Legal Representative of the State as the employer of Police Officers in the Trinidad and Tobago Police Service. 3. An Appearance was entered by the Defendant on the 17 th September, 2008 and a Defence was filed on the 30 th October The Defendant by his Defence denied liability in respect of each and every cause of action put forward by the Claimant. 4. On the 9 th December 2009, I struck out reliefs (b), (c), (d) and (e) of the Statement of Case and the matter proceeded to trial on the basis of the reliefs sought at (a) and (f) thereof. 2

3 The Claimant s Case 5. The Claimant alleged that on Sunday 4 th November, 2007 between 2:30 p.m. and 3:00 p.m., he was driving his Datsun vehicle, registration number TAJ 5948, heading north along the Golden Grove Road, Arouca. The Claimant was proceeding in the vicinity of the Kentucky Fried Chicken (KFC) outlet at the corner of Eastern Main Road and Golden Grove Arouca when his vehicle was hit from behind by a marked police vehicle, which was occupied by four police officers wearing plain clothes. As a result of the impact, the Claimant lost control of his vehicle which went over the pavement and into the KFC car park. 6. The Claimant then got out from his vehicle and began walking towards the police officers. On reaching them, the officers set upon the Claimant and began to beat him. The police officers appeared to the Claimant to have been drinking and one of them had in his hand a glass which appeared to contain alcohol. Two police officers dressed in black then came in another vehicle and the Claimant was placed in that vehicle and taken to the Arouca Police Station. The Claimant was beaten by one of the police officers dressed in black as he was being transported to the Police Station. 7. The Claimant was placed in a cell with seven other prisoners. Approximately half an hour later he was taken out of the cell and was interrogated by two police officers. Whenever the Claimant attempted to answer the questions put to him he was beaten by one Officer Ali. Officer Ali also hit the Claimant with a baton about his body. The Claimant was then again placed in a cell. About two hours later the Claimant was taken to the Arima Health Facility. The Claimant was then returned to a cell at the Arouca Police Station. At approximately 10:30 p.m. the Claimant s mother in company with an Attorney-at-Law came to the police station and the Claimant was released without being charged. According to the Claimant he was arrested and detained for a period of seven and a half hours on Sunday 4 th November, 2007 from 3:00 p.m. to 10:30 p.m. 8. The Claimant alleged that as a result of the beating he sustained personal injuries, damages and loss. 3

4 9. The Claimant annexed to his Statement of Case a Medical Report dated 5 th November, 2007 from Dr. Heira Murlin Leelah, which stated that she saw him on that day and that he had suffered the following injuries: (i) (ii) (iii) (iv) (v) (vi) Multiple hematoma to the scalp Left facial swelling Left peritoneal hematoma Hematoma to the left anterior shoulder Soft tissue injury to abdominal and chest wall Large hematoma to the right thigh. Dr. Leelah advised the Claimant that he needed follow-up treatment. The Defendant s Defence 10. The Defendant, in his Defence, states that on the afternoon of 4 th November, 2007 a marked police vehicle occupied by three police officers, two of whom were dressed in police uniform, was proceeding north along the Golden Grove Road Arouca with the police siren on. The officers observed the Claimant s vehicle registration number TAJ 5948 being driven in a reckless manner, swerving in and out of the south bound lane causing vehicles proceeding south to pull to the side of the road to avoid collision. 11. The Claimant failed to yield to the police vehicle s emergency siren by slowing down and pulling to the side of the road and instead continued towards the junction of the Eastern Main Road and the Golden Grove Road in a reckless manner and at a fast rate of speed. The Claimant s vehicle, on reaching the vicinity of the Piarco Taxi Stand, came to a sudden stop which could not be anticipated by the Police Officers because the Claimant s vehicle had malfunctioning brake lights. The Police Officer driving the marked police vehicle immediately applied brakes. However, due to the wet roadway the Police vehicle skidded and collided with the rear of the Claimant s vehicle. The Claimant s vehicle ran off the roadway and came to a stop in the car park of the KFC outlet. 4

5 12. The Claimant then got out of his vehicle. Two police officers, one of whom was dressed in Police uniform then disembarked the Police vehicle and approached the Claimant. The Officers identified themselves to the Claimant and informed him of their observations about the manner of the Claimant s driving, told him of the offence of careless driving, cautioned him and told him of his constitutional rights. The Claimant responded in a loud and aggressive tone, all yuh cyar lock me up while gesticulating with his arms. The uniformed police officer asked the Claimant to furnish his name and address. He refused to do so and repeated that the police could not lock him up. The Claimant also refused to produce his driver s permit and certificate of insurance. He was then informed that he was committing the offence of failing to give his name and address to a police officer and failing to produce his driver s permit and certificate of insurance upon the request of a police officer in uniform. The Claimant was then cautioned and told of his constitutional rights. By then, a large crowd had gathered at the scene. 13. The Police Officers then attempted to arrest the Claimant who began to struggle. 14. The Claimant resisted arrest but was subdued by the officers with the assistance of a retired sergeant of the Trinidad and Tobago Regiment and was handcuffed. The officers then called for the assistance of other police officers to effect crowd control and dispersal. Officers of the Northern Division Task Force arrived and at about 4:30 p.m. the Claimant was transported to the Arouca Police Station in one of the Task force vehicles and placed in a cell of the station. A statement was taken from the retired Sergeant of the Trinidad and Tobago Regiment at the Police Station. 15. The officers involved in the incident then sought medical attention at the Arima Health Facility. The Officers returned to the Arouca Police Station at about 6:00 p.m. and at about 6:15 p.m. the Claimant was taken by other officers to the Arima Health Facility and was medically examined. A copy of a Medical Report was annexed to the Defence which indicated that the Claimant was examined on the 4 th November, 2007 and was found to be suffering from swelling and pain to the left hand and left temporal areas. The Claimant was then returned to a cell at the Arouca Police Station at about 6:58 p.m. At 5

6 about 8:40 p.m. the Claimant was visited by his mother in company with an Attorney-at- Law. The Claimant was released at about 9:30p.m. 16. The Defendant denied that the Claimant was ever assaulted and/or battered by any police officer attached to the Arouca Police Station or the Northern Division Task Force. The Defendant further denied that any of the officers who occupied the marked police vehicle involved in the incident with the Claimant s vehicle was intoxicated at the material time. 17. The Defendant also stated that the Claimant was not interrogated, assaulted, battered, unlawfully arrested or unlawfully detained and, based on the actions of the Claimant, reasonable and justifiable force and action was taken by the police officers and he was not kept any longer than was reasonable in the circumstances. Agreed Facts 18. It was common ground between the parties before me that: (a) (b) (c) (d) (e) (f) The Claimant was the lone occupant and driver of the white Datsun pickup registration number TAJ 5948 on Sunday 4 th November, 2007 heading north along the Golden Grove Road Arouca. Vehicle registration number TAJ 5948 was hit from behind by a marked police vehicle in the vicinity of the KFC outlet at the corner of Eastern Main Road and Golden Grove Road Arouca causing it to run off the road and stop in the KFC outlet s car park. The Claimant got out of his vehicle after the incident. The Claimant was taken to the Arouca Police station and sometime after to the Arima Health Facility. The Claimant was then returned to the Arouca Police Station and placed in a cell. The Claimant was released later that day into the custody of his mother and his Attorney-at-Law. 6

7 The Evidence 19. The Claimant was the only person to give evidence in support of his case. 20. On the other hand, the Defendant called three witnesses, namely, Police Constable Inaayat Ali, Acting Police Corporal Rudy Jagroo and Police Sergeant Mutilal Juri. The Issues 21. The following issues arise for determination in this matter: (a) (b) (c) (d) Was the Claimant falsely imprisoned on the 4 th November, 2007 by reason of his arrest and detention without reasonable and probable cause? If so, for what period of time was the Claimant falsely imprisoned? Was the Claimant assaulted and beaten by police officers on Sunday 4 th November, 2007 at the scene of the accident and at the Arouca Police Station or did the officers at the scene of the accident use reasonable force in subduing the Claimant who was resisting arrest? Is the Claimant entitled to an award of damages including aggravated and/or exemplary damages? False Imprisonment 22. The tort of false imprisonment is established on proof of: (a) (b) The fact of the imprisonment. The absence of lawful authority to justify the imprisonment. Clerk and Lindsell on Torts, 19 th Edition at paras To establish the tort of false imprisonment, the Claimant first bears the initial burden of proving the fact of his imprisonment. In the instant matter, however, the arrest and detention of the Claimant by the police officers is not in dispute. Therefore, the burden of proof then shifts to the arresting officers to justify the imprisonment. 7

8 24. Section 104 of the Summary Courts Act, Chapter 4:20 provides as follows: Any person who is found committing any summary offence may be taken into custody, without warrant, by any constable 25. Further, section 93 (2) of the Motor Vehicles and Road Traffic Act, Chapter 48:50 provides as follows: Any constable may arrest without a warrant a driver. of any motor vehicle who within view commits any offence under this Act or under the Regulations unless the driver.. either gives his name and address or produces his permit for examination. 26. Justice C. Kangaloo (as he then was) in the case of Ted Alexis v The Attorney General of Trinidad and Tobago HCA 1555 of 2002 cited with approval and reinforced the following important qualification of the tort of false imprisonment set out by Lord Hope in R v Govenor of Brockhill Prisons ex parte Evans [No. 2] [2001] 2 AC 19: The tort of false imprisonment is a tort of strict liability. But the strict theory of civil liability is not inconsistent with the fact that in certain circumstances the harm complained of may have been inflicted justifiably. This is because it is of the essence of the tort of false imprisonment that the imprisonment is without lawful justification. As Sir William Holdsworth A History of English Law (2nd edn, 1937) vol VIII, p 446 puts it: A defendant could escape from liability if he could prove that his act was, in the circumstances, permitted by law, either in the public interest, or in the necessary defence of his person or rights of property. The evidence of the Defendant s witnesses 27. The first witness called by the Defendant was Police Constable Inyaat Ali. Under crossexamination, he gave certain evidence that caused me to doubt the veracity of his version of the circumstances of the Claimant s arrest. For example, the police vehicle driven by Ali collided with the Claimant s pickup approximately 150 feet from the junction of Golden Grove Road and the Eastern Main Road and the pickup ended up feet from 8

9 the point of impact. This suggests to me that the police vehicle must have been travelling at a very fast rate of speed on the wet roadway when it skidded and ran into the Claimant s vehicle. Yet, Ali could not estimate the speed at which he was driving before the impact and he did not take any measurements after the accident. After the accident, Ali and Ag. Cpl. Jagroo approached the Claimant and Jagroo informed him of the offence of dangerous driving and cautioned him about his constitutional rights. However, Jagroo did not proceed to arrest the Claimant at this point but requested him to produce his driver s permit and certificate of insurance. When the Claimant failed to produce these documents, it is then that Ali and Jagroo attempted to arrest the Claimant by holding on to his hands. A struggle then ensued as the officers attempted to bring the Claimant across to the damaged police vehicle where, apparently, WPC Maharaj-Seuraj had remained. The police officers were assisted by Mr. Mervyn Cooper, retired army sergeant, in subduing the Claimant. However, neither Maharaj-Seuraj nor Cooper were called to give evidence by way of corroboration nor was Cooper s statement, which was recorded at the Arouca Police Station, produced at the trial. Further, Ali also said that he sustained minor injuries to his right shoulder and left elbow for which he sought medical attention at the Arima Health Facility but he failed to produce any medical report or sick leave certificate to support any such injuries. Even further, Ali did not know if the Claimant was ever charged for dangerous driving and/or failing to produce his driver s permit and insurance and/or resisting arrest. Finally, in answer to questions posed by the Court, Ali sought to convince me that although he became annoyed at the time of the accident, he became less annoyed because of the pain he was experiencing from his slight injury and he did not express his annoyance to the Claimant. All in all, I found the evidence of P.C. Ali to be lacking in logic and candidness and I was not prepared to accept him as a witness who was prepared to be straightforward and honest in his answers. 28. Ag. Cpl Jagroo s evidence was also unconvincing. According to him, prior to the accident, Ali was driving at a moderate speed of approximately kph. However, he soon altered that estimate to say 80 kph. Then, under cross-examination, he said the Claimant s vehicle finished up approximately feet away from the point of impact 9

10 which was in direct conflict with his own witness statement which gave an estimate of 70 feet away. He said he approached the Claimant and told him of the offence of careless driving (not dangerous driving as Ali said) which he considered to be a serious offence as well as the offences of failing to provide his name and address and to produce his driver s permit and insurance which were not serious offences. However, he did not proceed to arrest the Claimant at that time. It is when the Claimant began to shout in a loud tone of voice and gesticulate with his arms that he repeated his notification of the offences committed by the Claimant and Ali held onto his arm and told him that he was under arrest for the said offences. The Claimant then began to struggle and pull away violently from Ali and Jagroo then became involved in trying to hold onto the Claimant s other arm in order to effect the arrest. Mr. Cooper then came to the assistance of the officers in subduing the Claimant. Jagroo recorded a statement from Mr. Cooper at the Arouca Police Station but he failed to annex this statement to his witness statement. He also claimed to have suffered severe pains in his neck areas and to have visited the Arima Health Facility for medical attention but he also failed to annex a medical report or sick leave certificate in support. In respect of the failure of the police to charge the Claimant with the commission of any offences, he agreed that it was not normal to arrest a person for committing a serious offence and not charge the person. 29. On my assessment of the evidence of the Defendant s witnesses, therefore, I do not accept their version of events on that afternoon. I believe that P.C. Ali was driving along the Golden Grove Road at a very fast rate of speed when he picked up a skid on the wet roadway and collided with the rear of the Claimant s vehicle. Appreciating that they were responsible for the violent collision with the Claimant s vehicle, which caused his vehicle to run off the road into the car park of the KFC restaurant, P.C. Ali and Ag. Cpl. Jagroo immediately went on the offensive to blame the Claimant s careless/dangerous driving for the accident and arrested the Claimant and took him into custody, even though he had not committed any offence to justify such an arrest. That interpretation of the evidence is the only one that is consistent with the failure of the police to lay any charges against the Claimant. 10

11 30. Therefore, I find that the arrest of the Claimant by the police officers was without reasonable and probable cause and that the Defendant is liable to the Claimant for his false imprisonment on that day. Period of Incarceration 31. The Claimant gave evidence in his witness statement that he was driving his vehicle on the Golden Grove Road between the hours of 2:30 p.m. and 3:00 p.m. on Sunday 4 th November, 2007 when his vehicle was hit by the police vehicle. He claims to have been arrested at approximately 3:00 p.m. on that day. 32. Under cross-examination, the Claimant s evidence as to the time of the accident and his arrest was not challenged by Counsel for the Defendant and therefore, I have no difficulty in accepting the evidence of the Claimant as to the time of his arrest, which I shall fix as 3:00 p.m. on that day. 33. The Claimant also said in his witness statement that at approximately 10:30 p.m. his mother, Bernice Ryan, along with an Attorney-at-Law came to the Station and he was subsequently released. Neither P.C. Ali nor Ag. Cpl. Jagroo were able to shed any light on this issue since they both went off duty after their visits to the Arima Health Facility and Sgt. Juri also proceeded off duty shortly after the Claimant s mother and Mr. Verne Richards, Attorney-at-Law arrived at the Arouca Police Station at 8:40 p.m. Therefore, he could not give any direct testimony as to the time of the Claimant s release, apart from what he observed in the station diary upon his return to work on Monday 5 th November, Further, Counsel for the Defendant did not challenge the Claimant s evidence as to the time of his release, although at paragraph 10 of the Defence it was alleged that the Claimant was released at 9:30 p.m. 34. In the circumstances, in the absence of any testimony from any of the Defendant s witnesses to contradict the testimony of the Claimant, I accept the evidence of the Claimant and find that he was released at p.m. on that night. 11

12 35. Accordingly, the period of imprisonment of the Claimant was from 3.00 p.m. to p.m., a period of 7 ½ hours. Assault and Battery 36. An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person. A battery is the actual infliction of unlawful force on another person: Collins v Wilcock [1984] 1WLR It has long been established that any touching of another person, however slight, may amount to a battery. Holt CJ held in 1704 that the least touching of another in anger is a battery : Cole v Turner 6 Mod Rep However, it is a defence to the tort of assault and battery if the individual is subjected to the lawful exercise of the power of arrest and reasonable force may be used in selfdefence or for the prevention of crime. 39. The Defendant contends that the arresting officers only applied reasonable force in arresting the Claimant who was vigorously resisting arrest and so the actions of the officers were justifiable. Further, both P.C. Ali and Ag. Cpl. Jagroo categorically denied beating, kicking, punching or slapping the Claimant at the scene of the accident or at the police station. 40. It was significant, however, that in the cross-examination of the Claimant, Counsel for the Defendant suggested to the Claimant that his evidence at paragraphs 4, 5 and 6 of his witness statement were fabrications but he did not put any questions to him about the personal injuries referred to in paragraph 10 or the medical report of Dr. Leelah. In addition, Counsel for the Defendant did not put to the Claimant any questions to suggest that his injuries were consistent with injuries that he would sustain in a car accident or in the throes of resisting arrest. Therefore, the Claimant s evidence of the injuries he sustained remained undisturbed by the Defendant and, although I did not have the benefit of Dr. Leelah s viva voce evidence, her medical report was admitted without objection from the Defendant. So the Court was left at this stage with the Claimant s testimony of 12

13 the injuries he sustained, the medical report of Dr. Leelah and the medical report annexed to the Defence to determine whether to accept the Claimant s evidence that those injuries were caused by beatings inflicted upon him by the officers on the 4 th November The situation was not improved when P.C. Ali and Ag. Cpl. Jagroo were cross-examined, since Counsel for the Claimant omitted to challenge P.C. Ali and Ag. Cpl. Jagroo on their denials of assault and battery of the Claimant or to put to them the specific allegations of beatings at the scene of the accident and at the Arouca Police Station made by the Claimant at paragraphs 4 and 5 of his witness statement. As a consequence, the evidence of these witnesses was not tested on this issue and they were not given the opportunity to deal with the allegations made against them. 42. It is in those circumstances that the Defendant s Counsel submitted that the evidence of the officers ought to be accepted and that the Court should reject the Claimant s claim for damages for assault and battery. While at first blush that may appear to be a logical conclusion, I do not consider that it accords with the justice of this case 1. While it is regrettable that I was not given the opportunity to hear what P.C. Ali and Ag. Cpl. Jagroo had to say about the specific allegations of assault and battery, I was able to form an opinion as to their credibility in respect of the circumstances in which the Claimant was arrested and detained. Further, it was not in dispute on the pleadings that the Claimant suffered injuries which required medical treatment at the Arima Health Facility. When I consider the medical report from that Facility produced by the Defendant and the medical report of Dr. Leelah produced by the Claimant, I am satisfied, on a balance of 1 The Attorney General of Trinidad and Tobago v M. M. Brokers Ltd Civ. App. No. 165 of p. 18 per de la Bastide C.J.: The effect of an unanswered allegation contained in an affidavit is exactly the same as if that allegation had been made in the course of oral evidence. A Court is likely to accept it unless it contains some inherent improbability or conflicts with other evidence in the case, documentary or oral See also: (1) Alphonsus Mondesir v The Attorney General of Trinidad and Tobago HCA 1903 of Here Sinanan J. (as he then was), at p. 20 of his judgment, cited the above statement by de la Bastide CJ and remarked that: Merely because an allegation is unanswered does not oblige the Court to accept it. It takes its place along with other items of evidence to be assessed by the Court in determining any issue or matter ; (2) Vishnu Andrew Sagar v. Bissoondaye Mungroo & Rajesh Sagar, CV , per Rajnauth-Lee J. at paragraphs

14 probabilities, that the injuries sustained by the Claimant are consistent with the Claimant s evidence of being beaten by the officers. 43. Accordingly, I prefer the Claimant s evidence on this issue and find in his favour that he was assaulted and beaten by the officers after the accident. DAMAGES False Imprisonment 44. The Claimant has submitted that he should be awarded $25,000 for false imprisonment and has relied on the following cases: (a) Mahadeo Sookhai v. The Attorney General, HCA No. S. 184A of 2003, a decision of Moosai J. in which he awarded the Claimant $6,000 for detention for ½ hour; (b) Mitra Harracksingh v. The Attorney General & Or., HCA No of 1992, a decision of Mendes J. (as he then was) in which he awarded the Claimant $5, for detention for 1 ½ -2 hours; (c) Sookdeo Harricharan v. The Attorney General & Or, HCA 3068 of 1999, a decision of Mendes J. in which he awarded the Claimant $5,000 for detention for 1 ½ - 2 hours; (d) Rajesh Ravi Harry v. The Attorney General & Ors., HCA No of 2002, a decision of Rampersad J. in which he awarded the Claimant $20,000 for detention for 3 ½ hours; (e) Siewchand Ramanoop v. The Attorney General, HCA No. S-0017 of 2001, a decision of Bereaux J. (as he then was) in which he awarded the Claimant $18,000 for detention for 2 hours. 45. The Defendant, on the other hand, did not refer, either in his Propositions of Law filed on 24 th February, 2010 or in its closing oral submissions, to any authorities on the quantum of damages that would be appropriate in the event that I found for the Claimant. 14

15 46. In determining what would be an appropriate award, I have also considered the following more recent cases that are relevant: (a) Koon Koon v. The Attorney General, CV , a decision of Kokaram J. delivered on 4 th July 2010 in which he awarded the Claimant $35,000 as damages, inclusive aggravated damages, for detention for 32 hours. (b) Chandardat Soogrim v. The Attorney General, CV , a decision of Tiwary-Reddy J. delivered on the 17 th December 2010, in which she awarded the Claimant $30,000 as damages for detention for 7 hours. (c) Dwain Henry v. The Attorney General & Ors, HCA 3079 of 2008, a decision of Gobin J. delivered on 18 th February 2011 in which she awarded the Claimant $16,000 as damages for detention for 4 hours. (d) David Baboolal and Ronald de Freitas v. The Attorney General, CV , a decision of Master Mohammed delivered on the 14 th June 2011, in which she awarded the minor Claimants $7,000 as damages, inclusive of aggravated damages, for detention for a little more than one hour. (e) John Henry v. The Attorney General, CV , a decision delivered by this Court on the 29 th June 2011, in which I awarded the Claimant $35,000 as damages, inclusive of aggravated damages, for detention for 34 ½ hours (f) Nigel Morales v. The Attorney General, CV , a decision of Charles J. delivered on the 29 th July 2011 in which she awarded the Claimant $20,000 as damages, inclusive of aggravated damages, for detention for 2 hours. 47. In this matter, bearing in mind my earlier findings to the effect that P.C. Ali and Ag. Cpl. Jagroo had no reasonable and probable cause for arresting and detaining the Claimant, I am also of the view that the Claimant is entitled to recover aggravated damages to supplement the basic compensatory award by reason of the humiliation caused to the Claimant by his arrest in the full glare of the public when P.C. Ali was primarily responsible for colliding with the Claimant s vehicle from behind. 15

16 48. Accordingly, I consider that the amount proposed by the Claimant s Attorneys is reasonable and in keeping with the trend of awards made in recent comparable cases. Accordingly, I will award the Claimant $25,000 as compensatory damages, inclusive of aggravated damages. Assault and battery 49. The Claimant s Attorney submitted that a reasonable award for the assault and battery inflicted upon the Claimant is $30,000 and relied on the decision of Moosai J. on October 15, 2007 in Mahadeo Sookhai v. The Attorney General, CV In that case, the Claimant sustained the following injuries: swollen nose bridge, black eyes, tenderness and swelling of both temples and chest, abrasions of both knees. Justice Moosai awarded the Claimant $35,000, inclusive of aggravated damages. 50. I have also considered the following more recent awards: (a) Anino Garcia v. The Attorney General, CV , a decision of Kokaram J. delivered on 18 th March 2011, in which he awarded the Claimant $40,000, inclusive of aggravated damages, for assault and battery. In that case, the claimant was a prisoner who was beaten by prison officers. He sustained the following injuries: welts to his legs and arms, soft tissue injury to the face and arms, bleeding from his mouth and nose, swollen right eye leading to impaired sight for 2 days, haematoma to the head and tenderness about the body. (b) David Baboolal and Ronald de Freitas, CV , a decision of Master Mohammed delivered on 14 th June 2011, in which she awarded the Claimants $22,000 and $20,000 respectively for assault. The Claimants were 14 years old at the time of the incident and they were threatened and cursed by police officers on the journey to and at the police station. They were put to kneel on filthy steps with their hands up in the air for 10 minutes. While kneeling, they were threatened by 2 army officers and the first Claimant s pants were pulled down so part of his buttocks was exposed to full view of the public. Both Claimants were traumatized and were diagnosed to be suffering from post-traumatic stress disorder. 16

17 51. The Claimant gave evidence of the nature and extent of the injuries sustained by him in his witness statement and these have already been described at paragraph 9 hereof. He also stated that for a few days following the incident he was in severe pain. However, he did not give any evidence of any resulting physical disability, any loss of amenities or any material effect which his injuries had upon his pecuniary prospects. 52. In the light of this limited evidence from the Claimant, I am of the view that a reasonable award of damages for the assault and battery, inclusive of aggravated damages, would be $25,000 Exemplary damages 53. Based on my earlier findings, I am satisfied that the conduct of the police officers amounted to oppressive, arbitrary and unconstitutional action by servants of the government and therefore falls within the first category of cases outlined by Lord Devlin in Rookes v. Barnard [1964] AC 1129 where exemplary damages may be awarded. The purpose of such an award is well known and has recently been confirmed in Atain Takitota v. The Attorney General of Bahamas & Ors, Privy Council Appeal No. 71 of 2007, a decision delivered on the 18 th March 2009: 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 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. emphasized the need for moderation in assessing exemplary damages. 17

18 54. In the recent judgment of Rajkumar J. in Owen Goring v. The Attorney General, CV , delivered on the 3 rd August 2011, the learned Judge reviewed the recent judicial trends in awards of exemplary damages before concluding that an award of $100,000 as exemplary damages was appropriate on the facts of that case. I have also considered the award of $20,000 made by Kokaram J. in Anino Garcia v. The Attorney General (ibid) and the award of $20,000 by Master Mohammed in Baboolal & de Freitas v. The Attorney General (ibid). I consider the facts in the cases of Sean Wallace v. The Attorney General and Goring v. The Attorney General to be far more serious than the facts in this case. As much as I recognize the need for moderation in making awards of exemplary damages and the need to take account of the awards that I have already made by way of compensation, which included an element of aggravated damages, I still must emphasise this Court s condemnation of the actions of the police officers and to deter the officers concerned and others from repeating such conduct. 55. With these considerations in mind, I consider an award of $20,000 to be sufficient to register the Court s condemnation of the conduct of the relevant officers. Disposition 56. Accordingly, I will order the Defendant to pay to the Claimant the following amounts: i. Damages for false imprisonment, inclusive of aggravated damages, in the amount of $25,000. ii. Damages for assault and battery, inclusive of aggravated damages, in the amount of $25,000. iii. Exemplary damages in the amount of $20,000. iv. Interest on the general damages of $50,000 at the rate of 9% per annum from the 5 th September 2008, the date of service of the Claim Form and Statement of Case upon the Attorney General to the 14 th November

19 v. Prescribed Costs to be paid by the Defendant to the Claimant assessed in the amount of $20, Dated the 14 th day of November, 2011 André des Vignes Judge 19