THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV2016-01009

BETWEEN

LEON KING

Claimant

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Defendant

Before the Honourable Master Marissa Robertson

Appearances:

1. Gerald Ramdeen SC instructed by Dayadai Harripaul for the Claimant

2. Rachel L. Jacob instructed by Brent James for the Defendant

Date of Delivery of Oral Decision: December 4, 2018

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REASONS

1. On or about July 15, 2014, the Claimant was physically assaulted by two army officers

on Nelson Street, Port of Spain. The Claimant initiated proceedings on April 5, 2016

and claimed damages (including special damages) for assault and battery, aggravated

and exemplary damages.

2. In accordance with the order of the assigned judge dated July 5, 2016, judgement in

default of Defence was entered on the July 19, 2016. That order also provided that the

assessment of damages and the quantification of costs were to be heard and

determined by a Master in Chambers.

3. The Claimant gave evidence and called no witnesses. The Claimant was not cross-

examined by the Defendants. No witnesses were called on behalf of the Defendants.

Summary of the Claimant’s Case

4. It was the Claimant’s case that on July 15, 2014, at about 5:00 AM, he parked on

George Street, Port of Spain, and was walking towards Nelson Street, Port of Spain,

when he was confronted by two soldiers/army officers. They were both dressed in

camouflage and armed with machine guns. The Claimant stated that one of the

soldiers asked him where he was going, to which he replied that he was on his way to

pick up his daughter. The army officer then accused the Claimant of lying and ordered

him to lie on the ground. The Claimant responded by asking the soldiers to take him

to the apartment where his child was located, and to this statement one of the soldiers

replied “you telling me how to do my job” and proceeded to hit the Claimant across the

left side of his face with the butt of his gun. Both soldiers continued to deal the

Claimant blows to his head and back with their machine guns.

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5. The Claimant’s evidence was that he was beaten over his face, head, back and body

with the machine guns held by the soldiers. The Claimant further stated that he was

dragged on the ground to another location by the soldiers to be further assaulted. The

Claimant was then thrown face first into a drain where the assault continued.

6. The Claimant’s evidence was that blood was flowing from a wound near his left eye

where he was hit with the butt of one of the soldier’s guns. He stated that his pleas to

the soldiers to stop the abuse were to no avail and he was fearful for his life.

7. The beating ceased when voices were heard and the soldiers ran away. The Claimant’s

evidence was that once the soldiers left he got into his car and drove to his girlfriend’s

residence in Plaisance Trace, Laventille. Thereafter, he was taken to the Port of Spain

General Hospital where he was warded for seven days. While at the hospital, the

Claimant underwent surgery for a fractured left jaw.

8. The Claimant indicated that he suffered from:

(i) Fractured left jaw;

(ii) Bruising and swelling to the left jaw;

(iii) Bruising and swelling to the right side of the face;

(iv) Laceration to the left side of the head;

(v) Swelling to the right orbital region;

(vi) Laceration below right eye;

(vii) Multiple lacerations, bruises, and swelling to the back;

(viii) Laceration and bruising to the left side of the neck;

(ix) Laceration, bruising and swelling to the right hand.

9. The Claimant contended that at the time of the hearing of the assessment of damages

he continued to experience pain arising from the assault.

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10. The Claimant stated that during the ordeal he was ordered by the soldiers to empty

his pockets and that a Nokia phone, another phone and $225.00 were taken from him.

He claimed a total of $1,200.00 in special damages.

Medical Evidence

11. The Claimant’s Medical Records from the Port of Spain General Hospital (hereinafter

referred to as “POSGH”) were tendered into evidence. The Medical Report from

POSGH dated July 21, 2014 stated that the Claimant’s injuries were a mandible

fracture and soft tissue injury which were probably inflicted by a blunt object.

12. The medical report of Dr. K. Maharaj from the POSGH, dated August 4, 2014, was

assimilated from clinical notes by doctors in the ENT/Oral Maxilio Facial Surgical Unit

of the POSGH. It stated that examination of the Claimant revealed “right oribital

swelling, multiple soft tissue injuries throughout the body and left mandible ramus

fracture.”

13. The Claimant underwent Closed Reduction Intermaxilliary Fixation on July 18, 2014

and was discharged on July 21, 2014 to the Oral Maxillio Facial Surgical Unit Out-

Patient Clinic for regular follow up.

14. This Court found that the medical evidence as to the injuries sustained generally

supported the Claimant’s evidence regarding the nature of the injuries sustained as a

consequence of the assault perpetrated against him by the soldiers. However, there

was no medical evidence which supported the Claimant’s contention that he

continued to experience pain and suffering as a result of the altercation.

Law: Assault and Battery

15. The authors of Blackstone’s Criminal Practice 2019, Non-Fatal Offences Against the

Person, at B2.1 notes that:

“Assault and battery (or assault by beating) are separate and distinct summary offences.

An assault is committed when D intentionally or recklessly causes another to apprehend

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immediate and unlawful violence. A battery is committed when D intentionally or

recklessly inflicts unlawful force. A battery may, but does not inevitably, follow an

assault.”

16. The law in respect of damages in a case of assault and/or battery is explained in

Halsbury’s Laws of England (Volume 29, 2014) under the rubric “Trespass to the

Person” at para 497:

“Trespass to the person, whether by assault, battery or false

imprisonment, is actionable without proof of actual damage. Thus in all

cases of trespass nominal damages at least are recoverable, and

substantial damages are recoverable for discomfort and inconvenience, or

injury to dignity, even where no physical injury is proved. Where physical

injury does result from the trespass, the damages will be calculated as in

any other action for personal injury.

Damages for emotional or psychiatric damage which does not result in

physical illness may be recovered where there is other physical injury, and

may also be recovered in cases where there is no physical injury, as in the

case of an assault without any battery, provided it is substantial and not

too remote. An award of aggravated damages may be made in an action

for trespass to the person, unlike an action in negligence. The

compensatory principle applies to the award of damages to a claimant in

respect of injured feelings.

Exemplary damages may be awarded in an action for trespass to the

person where the trespass falls within one of the three categories in which

such damages are generally available. There may be such an award in an

action against the police or other emanations of the state, where the

conduct of police officers or other agents has been oppressive or arbitrary.

In exceptional cases exemplary damages may be awarded in relation to

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criminal acts, with the purpose of preventing the unjust enrichment of the

perpetrator......

In addition to general damages for any physical or mental injury which

results directly from the trespass, damages for specific pecuniary loss or

other consequential damage may be recovered. Provocation does not

serve to reduce the damages recoverable by way of compensation for

physical injury, though it may negative the award of exemplary damages.”

17. McGregor on Damages, 19th Edition, paragraph 40-001, page 1564 states as follows:

“In so far as an assault and battery results in physical injury to the plaintiff, the

damages will be calculated as in any other action for personal injury. However,

beyond this, the tort of assault affords protection from the insult which may arise

from interference with the person. Thus, a further important head of damage is

the injury to feelings i.e. the indignity, mental suffering, disgrace and humiliation

that may be caused.”

18. Kokaram J in consolidated cases of Jason Raymond v The AG CV2016-00029;

Marvin Scott v The AG CV2016-00030; Ryan Stephens v The AG CV2015-04152

Christopher Lewis v The AG CV2015-04153; Junior Collins v The AG CV2015-

04154 noted that:

“Of course no sum of money can truly compensate a victim for personal injury

and the sense of humiliation meted out to him by a tortfeasor, but as far as money

can compensate for pain and suffering for the physical injuries, in making a

suitable award in damages to compensate the Claimants the Court is guided by

the principles laid down by Wooding CJ in Cornilliac v St. Louis (1965) 7 WIR 491

in its assessment of general damages. These are:

(i) The nature and extent of the injuries suffered.

(ii) The nature and gravity of the resulting physical injuries.

(iii) The pain and suffering endured.

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(iv) The loss of amenities.

(v) Future pecuniary loss”

19. In this matter the Claimant raised injury to his feelings and submits that the award

made should contain components for aggravated damages and exemplary damages.

The matter of aggravated and exemplary damages will be addressed in subsequent

paragraphs.

20. In the arriving at an appropriate award, the Court considered judicial trends, the fact

that the award will represent a single payment which compensates for the tort

perpetuated and the overall fairness of the award. The importance of arriving at a

fair award was outlined in Heeralal v Hack Brothers [1977] 25 WIR 117 per Haynes

J, it was stated that,

“General damages must be compensatory and not restitutive – what the law

expects of the trial judge is an award of fair compensation fair for the plaintiff to

receive for what has happened to him through the negligence of the defendant

and fair for the defendant to pay for such negligence.”

The Determination of an Appropriate Award.

Nature and Extent of the Injuries Suffered

21. As previously indicated, the medical evidence informed that the Claimant sustained

right orbital swelling, multiple soft tissue injuries throughout the body and a left

mandible ramus fracture. The medical evidence was not disputed by the Defendant.

22. The Claimant was warded at the Port of Spain General Hospital on July 15, 2014 and

discharged on July 21, 2014. He underwent Closed Reduction Intermaxillary Fixation.

23. It was noted that there was no evidence that the injuries sustained had any long term

physical impact which would give rise to resulting disabilities, losses in amenities,

and adverse implications on the Claimant’s pecuniary prospects.

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Nature and Gravity of the Resulting Physical Injuries & Pain and Suffering Endured

24. The Claimant alleged that he was beaten extremely violently and that he was in

extreme pain and had impaired vision.

25. The notes of the attending nurse for the period that the Claimant was hospitalized

provide information which goes to the gravity of the injuries sustained and the pain

and suffering the Claimant endured. The nurse’s notes indicated that on the day of

the incident, the Claimant was able to walk to and from the eye clinic without

assistance and without any complaints. The notes further indicated that the Claimant

was able to ‘ambulate as normal’ around the ward. There was also a notation

regarding the Claimant’s desire to give an interview to the media and his multiple

attempts to leave the ward.

26. As it related to the pain and suffering endured during the Claimant’s hospitalization,

the nurse’s notes indicated that the Claimant was given pain medication, did not seem

to be in distress and was able to ambulate ‘as normal’.

27. Cumulatively the nurses’ notes do not support the Claimant’s evidence that he was in

extreme pain. The Court also noted that after the incident, the Claimant did not seek

immediate medical attention when the soldiers left and he had an opportunity to so

do but he inexplicably chose to drive to Laventille, and not to the hospital in Port of

Spain.

28. As a result of the foregoing the Court has formed that view that the Claimant tends

toward the exaggeration of his circumstances in these proceedings.

29. However, the Court found that the Claimant did sustain a fractured jaw, multiple soft

tissue injuries about the body and swelling of the right eye. It is accepted that the

Claimant would have suffered significant and intense initial pain as a result of the

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assault and battery. The Claimant would have had to suffer through 6 days of

hospitalization and Closed Reduction and Intermaxillary Fixation procedure that he

had to undergo. The liquid diet he was fed after the procedure was likely to have

brought a measure of distress. However, there was neither evidence of any lasting

effects of the injuries on the Claimant nor that the liquid diet was for a prolonged

period.

Indignity, Mental Suffering, Disgrace and Humiliation Caused by the Tortfeasor.

30. In this matter the Claimant asked the Court to consider that the actions of the officers

occurred in undignified circumstances and were designed to humiliate and hurt his

feelings. At paragraph 10 of his witness statement he said:

“The treatment I received from the soldiers were offensive, humiliating to me. The

assault and battery took place in full view of other persons which was an

embarrassment to my character. The constant taunts by the officers before and during

the beatings were insulting and hurt my feelings because I did nothing wrong. These

were uniformed army officers who supposed to be protecting people like myself but

instead they used their power to assault and beat me in the worst way. At no time did

the officers pay heed to me begging them to stop. The brute force and ruthlessness of the

attack made me fear that I was not going to survive. The officers took advantage of me.

The officers not only left me for dead they also took $225.00 which I had in my

possession. As a consequence of this horrendous incident I suffered tremendous loss,

hardship, distress, inconvenience, pain, suffering, humiliation and damage.”

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Submissions by Parties on Judicial Trends

31. The parties submitted numerous cases for the consideration of the Court.

32. As it related to the award of general damages, the Claimant’s position was that the

award should range from $170,000.00 to $190,000.00 and asked the court to consider

the cases indicated hereunder.

(i) Kenton Sylvester v The Attorney General of Trinidad and Tobago et al

HCA No. 4025 of 2002, delivered on July 31, 2002.

The plaintiff's case was that he was held up by two men and ordered into the

backseat of the vehicle at gunpoint and that during a police pursuit, the vehicle

crashed. The plaintiff claimed that: (a) he was assaulted by one or more of the

second to fifth defendants when they fired at the motor car in which he was a

passenger [the assault by shooting claim]; (b) that he was assaulted and

battered by one or more of the second to fifth defendants when they attacked

and beat him immediately after the crash [the assault and battery claim]. The

police maintained that the plaintiff's injuries were as a result of the car

accident.

Main injuries suffered by the plaintiff included: left side -fractured proximal

ulna; fractured proximal radius; compartmental syndrome in forearm; right

side -8 fractured rib; broken upper humerus ; trauma to eye ; loss of

consciousness for an unspecified duration; a contused liver; blunt trauma to

the abdomen; a punctured lung; multiple abrasions; soft tissue swelling. The

plaintiff was hospitalized for a total of 12 days. General Damages, with regards

to the Claimant’s personal injuries, inclusive of aggravated damages was

awarded in the sum of $200,000.00. $50,000.00 awarded as exemplary

damages.

This case was more severe than the instant case.

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(ii) Martin Reid v The Attorney General of Trinidad and Tobago CV2006-

02496, delivered on June 6, 2007 where General Damages was awarded in the

sum of $65,000.00 inclusive of aggravated damages and Exemplary Damages

in the sum of $45,000.00. The Claimant was a prison inmate who suffered a

serious assault by prison officers and suffered from blunt head trauma and

post-concussion syndrome as well as a broken left middle index finger. The

Claimant was sent to the hospital 2 days after the attack and was warded for 5

days. The Claimant complained that he still suffered from blackouts and pains

to the back of the head and headaches.

(iii) Michael Bullock v The Attorney General of Trinidad and Tobago CV2007-

01766, delivered in 2010. Prisoner beaten and suffered a broken jaw and loss

of several teeth. He was placed on a liquid diet. He sustained many other

superficial injuries about the body and was not given medical attention until

the following morning. General Damages awarded in the sum of $130,000.00

inclusive of aggravated damages and Exemplary Damages in the sum of

$50,000.00 awarded.

In this matter unlike the instant case the Claimant loss several teeth did not

receive medical attention until the following day.

(iv) Thaddeus Bernard v Nixon Quashie Civ App No 159 of 1992, delivered on

October 21, 1998 by de la Bastide CJ.

(v) Lester Pitman v The Attorney General of Trinidad and Tobago CV2009-

00638, delivered on December 18, 2009. General Damages in the sum of

$90,000.00 was award inclusive of an uplift for aggravation. The Claimant was

beaten by prison officers, two using closed fists and one using his riot staff.

The Claimant suffered from soft tissue injuries about his body. He had no

broken bones. $30,000.00 was awarded in Exemplary Damages.

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(vi) Morris Kenny v The Attorney General HCA T-62 of 1997, delivered on

March 11, 2002.

The plaintiff was a prisoner who suffered injuries at the hands of multiple

prison officers. He was rendered unconscious. The plaintiff complained of

generalised bodily pains and had multiple abrasions. He had soft tissue injury

consisting of wheals and abrasions on the lower back and back of the right

thigh with associated tenderness at the sites of the abrasions and left renal

angle area. General Damages with an uplift for aggravation was awarded in the

sum of $50,000.00 and the sum of $60,000.00 in exemplary damages.

(vii) Siewchand Ramanoop v The Attorney General of Trinidad and Tobago

[2005] 66 WIR 334; [2005] UKPC 15

(viii) Alphie Subiah v The Attorney General of Trinidad and Tobago Civ App No

10 of 2005, delivered on December 15, 2006. False imprisonment/ Wrongful

Detention claim.

(ix) Sean Wallace v The Attorney General of Trinidad and Tobago CV2008-

04009, delivered on October 2, 2009. Prisoner assaulted and beaten by prison

officers. Suffered the following injuries: tender haematomas over the left

occiput, abrasions over his right eye, small laceration on his inner lower lip,

tender swelling over his right shoulder, tender right lateral lower rib, swelling

with ecchymosis, bilateral renal angle tenderness, multiple large wheals over

calves, thighs, both arms, back, bilateral flank tenderness in his abdomen,

tender swelling on his left calf. He also claimed suffered from a hernia as a

result of the beating and had to have a hernia operation. General Damages

assessed in the sum of $230,000.00 of which $70,000 represented exemplary

damages.

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(x) David Abraham v The Attorney General of Trinidad and Tobago CV2009-

00635. The Claimant was assaulted and beaten at the Golden Grove Prison to

a state of unconsciousness. He suffered soft tissue injuries and minor

lacerations to the shin and head. By consent, he was awarded the sum of

$90,000.00 in General Damages, $30,000 aggravated damages and $50,000 in

exemplary damages.

(xi) Hakim Brathwaite v The Attorney General of Trinidad and Tobago CV

2009-03485 delivered on June 25, 2012. General Damages awarded in the

sum of $100,000.00 inclusive of aggravated damages and Exemplary Damages

awarded in the sum of $40,000.00. The Claimant was assaulted and beaten by

prison officers with a baton. The Claimant suffered from blunt trauma causing

shortness of breath, possible rib fracture and possible pancreatic injury. He

had tenderness to the right lower abdomen and left lower chest wall with

bruises to the chest. He was left in the prison overnight without medical

assistance and experienced vomiting and spitting blood, passing blood in the

stool and urine and severe stomach pains.

(xii) Lincoln Marshall v The Attorney General of Trinidad and Tobago CV2009-

03274, delivered on October 1, 2010. General Damages awarded in the sum of

$100,000.00 inclusive of aggravated damages. The Claimant was assaulted and

beaten by three prison officers. He lost two teeth and had four other broken

teeth; welt marks about his body, tender swelling about his entire body, tender

haematomas about his body, intense swelling of the face and jaw area, inability

to eat food and difficulty in talking, bleeding from the jaw area, and soft tissue

injury about the body.

33. The authorities submitted by the Claimant tended towards assault towards

incarcerated persons and the injuries as well as the circumstances were more severe.

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34. The Defendant submitted the authorities hereunder for the Court’s consideration and

offered a range in general damages of $50,000-$55,000.00.

(i) Ryan Puncham v The Attorney General CV2016-04003, delivered on

January 19, 2018 wherein $10,000.00 was awarded in General Damages. The

Claimant was assaulted by police officers at a bar and suffered blunt trauma to

the face and blurry vision and sustained a swollen left eye, swollen face, a

bruised upper lip and bruises on his arms.

(ii) Mustapha Ghanny v PC Dev Ramadhin and the Attorney General CV2015-

01921 delivered on February 19, 2016, wherein General Damages for assault

and battery inclusive of aggravation was awarded in the sum of $55,000.00.

The Claimant sustained multiple soft tissue injuries, bruising, contusions and

ecchymoses in the right shoulder, right and left anterior aspects of the chest

and the right mandibular region.

(iii) Ijaz Bernadine (supra), delivered on October 2, 2010 wherein $55,000.00

was awarded in General Damages inclusive of aggravation. The Claimant

suffered from a right eyebrow laceration, ecchymosis of the right eye, and

bruising to his chest, ribs and legs. There was no long term physical impact

and no fractures.

(iv) Mahadeo Sookhai v The Attorney General CV2006-009886, delivered on

October 15, 2007. General Damages for assault and battery awarded in the

sum of $25,000.00 plus aggravated damages of $10,000.00. He Claimant

suffered from a tender and swollen nose bridge, bilateral periorbital

haematoma (“black eyes”), tenderness and swelling of both temples,

tenderness and swelling of left anterior chest wall, abrasions of the anterior

aspect of both knees.

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35. In addition to the cases submitted by the Claimant and Defendant, the Court

considered the following:

(i) Antonio Sobers v The Attorney General of Trinidad and Tobago CV2010-

04093, delivered on September 5, 2018.

The Claimant was a prisoner at the Golden Grove State Prison when officers of

the protective services carried out an exercise at the remand prison. The

Claimant suffered a gunshot wound to the face from a rubber bullet which

resulted in a comminuted displaced fracture of the maxillary sinus and upper

left dento-alveolar segment and blurred vision in the left eye. He also suffered

loss of teeth. The judge accepted that the Claimant was shot in the face at close

range but found that he greatly exaggerated the assault by officers. The

Claimant was awarded General Damages in the sum of $125,000.00 inclusive

of aggravation and exemplary damages in the sum of $25,000.00.

(ii) Marvin Scott v The Attorney General of Trinidad and Tobago CV2016-

00030, delivered on July 20, 2017.

This was part of a consolidated claim for damages for assault and battery made

by 5 prisoners. During a search of the prison, masked unknown prison officers

attached to the Special Operations Unit administered unlawful beatings with

batons to the 5 Claimants in their cells. The Claimant Marvin Scott was taken

to a bathroom area where he saw the officers beating another prisoner and

where he was attacked as well, after which he was returned to his cell. He was

beaten with batons on the left side of his head, face and lower jaw and kicked

and cuffed about the body. He was dragged and handcuffed and the beating

continued. He sustained:

- Multiple soft tissue injuries

- Cannot open mouth, left jaw seized

- Soft tissue injury to upper face

- Severe pain about the entire body

- Loss of left upper premolar

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- Ruptured left tympanic membrane, resulting in decreased hearing

ability

- Injury to mouth, jaw and left side of face

- Tenderness of left elbow

- Bleeding of right ear

- Abrasions to stomach area

- Multiple bruises throughout the entire body

- Multiple bruises to the chest area

The Claimant was not immediately taken to the infirmary. He made attempts

to get medical attention from prison officers to no avail. He was unable to open

his mouth even after several days and was unable to eat the meals provided.

General Damages inclusive of aggravation was awarded in the sum of

$75,000.00.

(iii) Chet Sutton v The Attorney General of Trinidad and Tobago CV2011-

01191, delivered on September 30 2015.

In this case the Claimant suffered soft tissue injuries about the body (head,

face, chest, back, arms and hands) together with welts, bruising, swelling and

abrasions. His right cheek was tender and swollen. His right jaw was injured

and he was unable to open it and was placed on a soft diet for approximately

2 weeks. The Court awarded the sum of $70,000.00 in general damages

inclusive of an uplift for aggravated damages. Exemplary damages awarded in

the sum of $30,000.00.

(iv) Dion Paul v PC Kern Phillips et al CV2011-03102, delivered on March 28,

2014.

General Damages awarded in the sum of $130,000.00 inclusive of aggravated

damages and Exemplary damages awarded in the sum of $30,000.00.

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The Claimant was beaten by police officers dressed in plain clothes when they

stormed into his home. He suffered from a broken jaw, a swollen eye,

laceration to his head and broken ribs. He was bleeding from his mouth. He

was hopitalised for over 14 days and underwent surgery.

(v) Frankie Bartholomew et al v The Attorney General of Trinidad CV2009-

04755, delivered on January 13, 2011.

General Damages was awarded in the sum of $60,000.00 inclusive of

aggravation and $20,000.00 was awarded in exemplary damages. The

Claimant, Bartholomew, suffered a 1 cm laceration to his left eye that was

swollen and tender; swollen right elbow; … to lateral aspect of right elbow;

tender, swollen, right forearm, tender swollen, left forearm, puncture wound

visualised to posterior aspect of left forearm; tender mildly swollen anterior

aspect of left foot; 0.5 cm superficial abrasion to anterior aspect of left foot;

tender mildly swollen left ankle; tender swollen anterior aspect of right foot;

0.5 cm laceration to anterior aspect of right foot.

Aggravated Damages

36. The Claimant may recover damages for mental suffering which arose as a result of the

tort suffered as stated in Thadeus Bernard v Nixie Quashie CA No. 159 of 1992, per

de la Bastide CJ (as he then was).

37. The Claimant submitted that an award ranging from $70,000.00 to $90,000.00 was

appropriate and made reference to the case of Sean Wallace (supra).

38. On this matter the Court noted that where the Court finds, firstly, that the

circumstances of the cases warrant an award for aggravated damages that award is

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not stated as a separate sum but the Court provides an uplift in its general award1

(Herman Lightbourne v Lionel Joseph Est Cpl No. 411 and Public Transport

Service Corporation HCA 2402 of 1982).

39. Secondly, the assault and battery suffered in this case is significantly less severe than

the circumstances which prevailed in the case of Sean Wallace (Supra)

40. The Court found that there was a basis for holding that there were aggravating factors

thereby requiring an uplift in the award. These aggravating factors were:

(i) the emotional distress of the Claimant who was unable to defend himself

against the physical abuse of soldiers;

(ii) the fear of loss of life;

(iii) the public nature of the beatings likely to attack onlookers and be a source of

embarrassment for the Claimant; and

(iv) the fear of continued beatings after he was thrown face first into the drain.

41. Having regard to the forgoing discussion this Court finds that an award of $87, 000.00

inclusive of an uplift for aggravating factors fairly compensates the Claimant for

assault and battery suffered.

Exemplary Damages

42. The Court recognized that the number of incidents of brutality of persons by police

officers, prison officers and other officers of the State given the power to protect and

serve have continued unabated despite the various Courts’ imposition of exemplary

damages awards and judicial admonishment. The Court agrees with the position that

the actions of the soldiers were oppressive, arbitrary and unconstitutional in nature.

The actions of the soldier therefore fall within the ambit of the first category of the

principles enounced in Rookes and Barnard [1964] AC 1129.

1 See Dicta of de la Bastide CJ. in Thadeus Bernard v Nixie Quashie, CA No. 159 of 1992.

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43. In consideration of an appropriate award the Court considered the dicta of Mendonça

JA in Torres v The Point Lisas Industrial Port Development Corporation Ltd.

[2007] 74 WIR 431, at paragraph 117 to 122 where he stated:

“[117] A proper award must therefore look at proportionality in several

dimensions. Some of these which can impact on the quantum of the award were

identified in the Whiten case to be: (1) proportionate to the blame worthiness of

the defendant's conduct; (2) proportionate to the degree of vulnerability of the

plaintiff; (3) proportionate to the harm or potential harm directed specifically

at the plaintiff; (4) proportionate to the need for deterrence; (5) proportionate

even after taking into account the other penalties both civil and criminal which

have been or are likely to be inflicted on the defendant for the same conduct; and

(6) proportionate to the advantage wrongfully gained by a defendant from the

misconduct.

44. The Claimant submitted that an appropriate award for exemplary damages would be

in the range of $90,000.00 to $120,000.00, while the Defendants submitted that an

appropriate award under this heading would be $20,000.00 to $25,000.00. The Court

considered all the cases submitted by the Claimant with regards to the actions of the

officers in each case and found that in these cases the actions were more severe,

oppressive, deliberate and arbitrary than in the present case.

45. In the case of Bernadine (supra), the officers not only assaulted and battered the

Claimant, but they concocted lies to cover up mistakes and unlawfully detained and

falsely imprisoned the Claimant without cause. Furthermore, they did not advise the

Claimant of his constitutional rights and did not allow him to contact his father as he

requested. In that matter there was excessive force used and the tort was

compounded by the attempt to cover up the unnecessary and very unfortunate initial

mistake that was made.

46. In the case of Emraan (supra) Rajkumar J stated:

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“195. The award of exemplary damages in Goring [Owen Goring v The AG

CV2010 03643] was high, as it deserved to be. The conduct of the officers in that

case was shocking, violent and disgraceful. The conduct of the officers in this case

in assaulting the claimant on repeated occasions, and then consciously and

deliberately taking him to a lonely trace in the countryside while allegedly

pursuing inquiries, where he was struck repeatedly without any lawful

justification, clearly falls within the category of conduct that should attract an

award of exemplary damages.

196. That conspiracy led to all the officers who testified, swearing on oath either

that they had not themselves inflicted injury on the claimant, observed the

infliction of injury on the claimant, or observed the clearly visible injuries on the

claimant at any time that he was in police custody, cannot be rewarded by a

nominal award of exemplary damages.”

47. The circumstances of that case were such that the learned trial judge further stated

at paragraphs 199 – 200 that :

“199. The courts have a responsibility, while demonstrating restraint in making

awards of exemplary damages, to

a. recognise the trends in such awards by the Judges of the Supreme Court,

b. take into account all the circumstances and factors that go into such awards,

c. refrain from undermining and reducing to irrelevant the concept of

exemplary damages by imposing on themselves artificial constraints, not

justified in law, on their discretion to do so.

200. The High Court has a duty to consider the circumstances, and then

unapologetically perform its role, function and duty to all citizens, by making a

suitable award of exemplary damages. Inherent in a merely token award of

exemplary damages, would be a subtle signal that unprovoked violence by police

officers, resulting in painful injuries, subsequently sough to be covered up by

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them, and furthered by perjury before the High Court, is not all that

unacceptable. However, the conduct here was reprehensible, unlawful, and falls

clearly within the category of high handed action by servants or agents of the

State.”

48. In the instant case this Court finds that the actions of the soldiers in this present case

were abusive and inexcusable and ought to be condemned and punished. Their

actions, however, did not rise to the level of severity as in the above Bernadine and

Emraan Ali cases.

49. In giving consideration to the several dimensions of proportionality the Court noted

the blameworthiness of the defendant’s conduct and recognized the absence of a filed

defence or evidence from the defendant. The Court noted that during the period of

the assault the Claimant would have been subjected to a high degree of vulnerability

but this is to be distinguished from a circumstance where a claimant is in the charge

of the perpetrator such as obtains with prison officers and inmates.

50. This Court also had regard to the harm inflicted on the Claimant and noted that there

was no evidence to suggest that there was a sustained threat which gave rise to

potential harm in the future.

51. There was no evidence before the Court which spoke to the penalties, civil,

disciplinary and/or criminal which were likely to be inflicted on the specific

defendants and any advantages gained by the conduct.

52. In addressing actions of this nature the Court noted the continuing need for the Courts

to do what it must to deter further actions of this nature. Members of the armed forces

are entrusted with the responsibility to protect and serve the citizens of Trinidad and

Tobago. There is significant power that stands with this level of responsibility.

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53. The Court noted that the members of the armed forces are specifically trained in the

use of force and this the training must only be used for the benefit of citizenry and in

circumstances where use of reasonable force can be justified.

54. This Court has considered the judicial trends on the award of exemplary damdages

and forms the view that the circumstances of this case warrant an award in exemplary

damages.

55. Exemplary damages awarded in the sum of $ 35,000.00 was deemed appropriate in

all the circumstances.

Special Damages

56. The Claimant pleaded special damages in the sum of $1,200.00. The law requires

special damages to be specifically pleaded and specially proven. While the claim for

special damages was properly pleaded, no evidence to support this claim was

produced by the Claimant. However, in light of the circumstances of the loss the Court

is prepared to accept the Claimant’s claim of loss on a balance of probabilities.

57. Addressing its mind to the specific loss the Court notes that the Claimant claimed for

the loss of two mobile phones but only provided information regarding the model of

one of phones. The Court the sum of $550.00 for the lost/stolen Nokia mobile phone

and lost cash in the sum of $225.00.

58. Thus, the sum of $775.00 was awarded in Special Damages.

Order

59. Therefore it was ordered that the Defendant do pay to the Claimant:

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(i) General Damages with an uplift representing Aggravated Damages assessed in

the sum of $87,000.00 with interest at the rate of 2.5% from the date of service

of the Claim Form and Statement of Case to the date of judgment.

(ii) Exemplary Damages in the sum of $35,000.00.

(iii) The sum of $775.00 in Special Damages with interest at 1.25% from the date

of the incident to the date of judgment.

60. It was also ordered that the Defendant do pay to the Claimant, costs on a prescribed

costs basis in the sum of $16,979.72.

Dated: February 11, 2019

Marissa Robertson

Master of the High Court

Judicial Research Counsel: Priya Ramsamooj

THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT...

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