IN THE HIGH COURT OF JUSTICE OF TRINIDAD AND TOBAGO...
Transcript of IN THE HIGH COURT OF JUSTICE OF TRINIDAD AND TOBAGO...
IN THE HIGH COURT OF JUSTICE
OF
TRINIDAD AND TOBAGO
CV2009-04734
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 15th
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 15th 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
Page 1 of 23
INTRODUCTION
1. These proceedings for breach of breach of confidentiality,
false arrest and wrongful imprisonment were instituted on
December 29, 2011. 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.
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, 2009. 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.
Page 3 of 23
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 $180,000.00 with interest at
12% per annum from December 21, 2009 to September 30,
2013.
(b) The Defendant shall pay the Claimant special damages
assessed in the sum of $4,500.00 with interest at 6%
per annum from June 10, 2009 to September 30, 2013.
(c) The Defendant shall pay the Claimant’s costs on a
prescribed costs basis in the sum of $36,675.00.
9. 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
$4,000.00.
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
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.
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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.
Roshini Maharaj
15. From the principal witness statement of Roshini Maharaj
filed on June 13, 2011:
4. On 10th 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
and I got there at about 10 a.m. and found
him with Kareshma.
……….
14. 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 11th 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 10th June
2009. 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.
……….
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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.
Kareshma Maharaj
12. From the witness statement of Kareshma Maharaj filed June
13, 2011:
2. I remember 10th June 2009. 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.
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 11th June
2009, Corpus Christi. On 11th 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.
Page 9 of 23
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.
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, 2013
17. 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, 2013.
18. 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.
Page 11 of 23
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, 2009. 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 28:02
21. 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,
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
Page 13 of 23
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.
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. 28:02.
32. 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, 2009.
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 10.55 am. At 11.00 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 12.15 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.
Page 15 of 23
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 non-
compliance 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.
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.
Page 17 of 23
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
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
Page 19 of 23
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 $160,000.00 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 $35,000.00 as general damages. The
Court of Appeal in February 2013 after comprehensively
reviewing awards for false imprisonment in this
jurisdiction increased the award to $200,000.00 which sum
was inclusive of aggravated damages.
53. In Siewnarine Buchoon, Johnny Buchoon and Nicole Webber v
The Attorney General CV2006-1846, the second Claimant was
wrongfully kept in custody for seven (7) days and charged
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 $90,000.00
inclusive of aggravated damages.
54. In Kedar Maharaj v AG CV2009-1832, 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 $280,000.00 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
$180,000.00 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.
Page 21 of 23
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 $4,500.00. 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
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
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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