THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2013-05208

Between

GARETH WISEMAN

Claimant

And

ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Defendant

Appearances:

Claimant: Mr. Mark Seepersad and Mr. Terrence Davis.

Defendant: Mr. Paul Isaac and Ms. Rishma Ramrattan.

Before the Honourable Mr. Justice Devindra Rampersad

Date of Delivery: October 9, 2019.

JUDGMENT

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Table of Contents

Introduction ........................................................................................................................ 3

Procedural Background ....................................................................................................... 3

The 18 July 2013 Incident ................................................................................................... 5

General Damages for pain and suffering arising from the incident on the 18th July, 2013 9

The 8 October 2013 Incident ............................................................................................ 12

Injuries other than the eye ............................................................................................... 17

Quantum for General Damages ........................................................................................ 18

The Eye Injury .................................................................................................................... 19

Aggravating Factors .......................................................................................................... 24

Exemplary Damages .......................................................................................................... 25

The Order .......................................................................................................................... 26

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Introduction

1. The claimant brought this action against the defendant on the 20 December, 2013

claiming damages including aggravated and exemplary damages for injuries he

received arising from two incidents of assault and battery on him by prison

officers. The first incident occurred on the 18 July, 2013 in which one Officer

Alleyne assaulted and battered the claimant. In the second incident, which

occurred on 8 October, 2013 the said Officer Alleyne and other officers, whose

names are unknown, assaulted and battered the claimant. At the time of the

incident the claimant was a prisoner of the State.

Procedural Background

2. The defendant initially defended the claim by filing its defence on the 29 April,

2014 and which was amended on the 16 September, 2014. The claimant filed a

reply on the 7 October, 2014 responding to and denying the allegations made in

the defendant defence.

3. At the trial, the defendant chose not to offer any evidence and did not file any

witness statements.

4. The claimant filed three (3) witness statements done by him. The first statement

was filed on the 18 March, 2016, a second further statement was filed on the 24

March, 2016 and a third supplemental witness statement was filed on the 3

March, 2017 pursuant to an order of the court dated 19 January, 2017. The

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claimant also filed witness statements from Christopher Selby and Shakeil Isaac in

support of his claim.

5. A trial bundle was also filed and no objection was taken as to the admissibility of

any of the claimant’s evidence. On the 6 March, 2018 an agreed bundle of

documents were filed detailing the medical reports and qualifications of one Dr.

Justo, who was the agreed expert witness.

6. The defendant produced no evidence and offered none at the trial. The defendant

filed a Notice on the 13 May, 2016 indicating that it admitted the authenticity of

the witness statements filed on behalf of the claimant and that it did not wish to

cross-examine the witnesses.

7. The defendant having offered no evidence nor cross-examined the witnesses

means that the evidence of the claimant remained uncontested and unchallenged

and therefore stands as the only evidence before this court since the evidence was

not so incredible as to suggest that it ought not to be accepted.

8. On the 13 December, 2018 this court made orders regarding the filing and

exchange of submissions by the parties. At item (5) of this order, this court stated:

“In the event of the default by any party in respect of the filing and service

of any submission on the days prescribed, the court will proceed to render

its judgment without that submission.”

9. It is worth noting that the defendant did not file any submissions in this matter.

The claimant filed his submissions on the 14 January, 2019. Therefore, this court

proceeded to render its decision without any assistance from the defendant.

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The 18 July 2013 Incident

10. The claimant was assaulted and battered by the said Prison Officer Alleyne on the

18 July, 2013. Officer Alleyne hit the claimant several times with his staff in the

thigh, head, ribs and chest area. The claimant describes the incident in his witness

statement filed 18 March, 2016 as follows:

“8. Officer Ralph was there at least I know him as Ralph. I signalled to Mr.

Ralph with a nod for me to go to the gate and collect the cigarette. Mr.

Ralph watch me and nod which I took as confirmation that permission was

granted for me to go to the gate and collect the cigarette. I had to walk

through an initial gate that separates the cells in the cell block from the

officer’s area before I met the mesh gate between the officer’s area of the

cell block from the main prison gate. When I got there I stretched my hand

out and got the cigarette from the inmate. When I turned around Alleyne

was standing up with his staff drawn. Now in jail my experience has taught

me that an officer don’t draw his staff just so. The only time that the

officers draw the staff is when they looking to hit you with it. Most of the

officers don’t hit you just so, especially if they know you. So when I see

Alleyne with the staff I say to myself that he looking to lash me with the

staff and there was no reason for that. I did not do anything. He did not

even say anything to me before I see the staff in his hand.

9. Alleyne was holding the staff out lengthways and instructed me to sit. I

refuse on account of how he was moving aggressive with the staff pointing

out at me. If I sit down he could hit me with the staff easier. Alleyne just

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push out the staff towards me as if he was using the staff to force me down

into a sitting position. The way the staff was coming it looked to me as if

the staff was going to go across my neck. I went to push the staff away from

hitting me but before I could he shift and hit me with the staff in the thigh

first. When this happen I brakes but was too slow and Alleyne then hit me

in my head. I also felt a lash across the ribs and chest area but that one I

can’t say if he pushed me with the baton or hit me with the baton, or hand

or foot. But I know that he hit me. The reason why is that it happened real

quick and I was in shock trying to brakes the lash. Thankfully the lash to the

head was not bad as if he did not get to connect me properly. But I know

that I did nothing to Alleyne to deserve those lashes.

10. Officer Ralph jumped up from where he was and come across saying

something like “what dat” and “cool it”. I believe it was Officer

Ralph who parted Alleyne from me but by that time it had other

officers from the main prison who came and removed me from the

area. I was in shock and I really don’t recall who the officers were

or if I knew them at all.

11. The claimant was taken back to his cell and thereafter taken to the infirmary

where he was examined by the infirmary officer and was given painkillers, which

he believed to be Panadol. The claimant asked to go to the hospital as his leg and

head was in pain, however he was referred to the Prison Medical Officer and

subsequently examined by the Medical Officer. He later reported the incident to

one ASP Johnson.

11.1.1. The claimant submitted that Officer Alleyne was the aggressor and

antagonist and was motivated by ill-will and spite in provoking and harassing the

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claimant, which culminated in the savage beating of the claimant. The claimant

also contended that a breakdown in the relationship between himself and Officer

Alleyne was the motivating factor behind the calculated actions of assault and

battery. The claimant alleged that these factors together with his savage beating

differentiate the facts of this case from the “run of the mill” assault and battery.

12. In this regard, the claimant referred to an incident which took place few days prior

to this incident:

“There was an incident between Officer Alleyne and Alan Martins (who is

now deceased). Officer Alleyne had slammed the gate on Martins, which

he blocked from hitting his face. Officer Alleyne was going to hit Martins

with the staff, when the claimant who was observing what was going on,

bawled out to Officer Alleyne telling him that he can’t lash Martins just so

and something like he can’t hit nobody like that. Officer Alleyne turned to

the claimant with the staff as if he was going to hit him. He started to come

towards the claimant but Officer Sequa stopped him.”1

13. The claimant explains that he and Officer Alleyne used to “go down good” and he

used to bring cigarettes for him when he was in the division. There was a time

when he was supposed to bring cigarettes for him and he did not. This led to the

deterioration of the relationship. The claimant stated the following in his witness

statement:

“4. …The truth is that me and Alleyne used to go down good. I would

go so far to say kind of friendly. He was a cool officer in the sense

that he used to give me lee way with cigarettes. When I say lee

1 See paragraph 6 of the claimant’s witness statement filed 18 March, 2016.

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way I mean that Alleyne used to turn the other way when he see

me and other inmates or if we was smoking in the division and he

was passing he sometimes would say things like “don’t hide it- it

cool” things that made me realize that he was a cool officer in the

sense that the did not stick to all the rules. …

5. … Alleyne used to bring cigarettes for me when I was in his division.

That started years ago. Sometimes when I smoking he would pass

and take a few pull from the cigarette and then go his way. A time

Alleyne was supposed to bring cigarettes for me and he did not.

When I ask him he start to coast on me about the cigarettes and

treat me a kind of way. It was then I realise that I did not want to

trust him and I end up coasting on him or it. I remember a day he

pass and ask me for a cigarette and I remind him what he do and

me and he had some hard talking - I call him a hungry dog and he

get vex. He did not get any from me after that. Since then he hold

me in mind – watching me hard and so on. …”

14. As a result of the assault and battery the claimant suffered personal injury as

follows:2

“i. Swelling and welts to the left upper thigh;

ii. Swelling and pain to the chest and ribs

iii. Swelling and bruising to the head;

v. The Claimant experienced difficulty walking for days

following the assault.”

15. The claimant submitted that the injuries are perfectly in line with the assault

described by the claimant in his witness statement and that on the weight of the

2 See paragraph 10, Amended Statement of Case.

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evidence the claimant has made out the assault of the 18 July, 2013 and the

injuries as pleaded.

16. Having regard to the evidence as stated above this court agrees with the

claimant’s submissions and accordingly holds that the defendant is liable for the

assault and battery of the claimant on the 18 July, 2013.

General Damages for pain and suffering arising from the incident on the 18th July, 2013

17. The claimant contends that the injuries suffered by him on the 18th July, 2013 was

not severe and, in terms of assault and battery, are relatively minor. In fact, they

are pale in comparison to the injuries suffered by him in October, 2013. The

claimant commended the following authorities as setting the range for mile to

moderate injuries. These figures are subject to the inflationary upward revision

17.1. Ijaz Bernadine v Attorney General CV2010-02956

The claimant was awarded the sum of $55,000 in respect of general

damages. The injuries were (i) right eyebrow laceration; and (ii)

Ecchymosis of right eye together with soft tissue injuries about the body.

17.2. Russell Seaton v Attorney General CV2009-03667

The claimant was awarded the sum of $45,000 for the following injuries:

(i) soft tissue injury to left wrist, knee and to the upper back; (ii) soft tissue

injury and forehead with swelling to left forehead; (iii) soft tissue injury

and forehead with bruising to right forehead; (iv) multiple (x3) superficial

abrasions to left elbow.

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17.3. Ivan Neptune v Attorney General CV2008-03386

The claimant was awarded the sum of $25,000 for the following injuries:

(i) multiple hematoma to the scalp; (ii) left facial swelling; (iii) left

peritoneal hematoma; (iv) hematoma to the left anterior shoulder; (v) soft

tissue injury to abdominal and chest wall; and (vi) large hematoma to the

right thigh.

17.4. Kerron Welcome v Attorney General CV2012-01444

The claimant was awarded the sum of $50,000 in general damages for

serious and multiple tooth damage requiring surgery and treatment.

17.5. Dwain Kirby Henry v Attorney General CV2008-03079

The claimant was awarded the sum of $35,000 in general damages for the

following injuries: (i) left ear laceration with bleeding; (ii) right occipital

area swelling and tenderness; and (iii) right forearm abrasions and

bleeding.

17.6. Frankie Bartholomew, Terrel Toney, Randy St Rose, and Leon King v

Attorney General CV2009-04755

The claimant Frankie Bartholomew was awarded the sum of $60,000 as

general damages. He suffered a 1 cm laceration to his left eye that was

swollen and tender; swollen right elbow; red? to lateral aspect of right

elbow; tender and swollen right forearm; tender and swollen left forearm;

puncture wound visualized to posterior aspect of left forearm; tender

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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; and 0.5 cm laceration to anterior

aspect of right foot.

Terrel Toney was awarded the sum of $25,000 as general damages. He

suffered soft tissue injuries to both forearms and left thigh with a shallow

laceration to his left third??? Cleft.

Randy St Rose was awarded the sum of $25,000 as general damages. He

suffered a tender mildly swollen right knee; tender, swollen right forearm;

tender, swollen left arm; tender swollen left forearm.

Leon King was awarded the sum of $35,000 as general damages. He

suffered laceration to right side of forehead 1 cm x skin deep; bruise right

calf; bruise right side of back; bruise over old retained bullet right side of

upper sternum; soft tissue injury to lateral aspect of left hand.

18. The claimant submitted that the awards of damages in the above cases require

updating to the Net Present Value for inflation so as to factor into consideration

the fall in the purchasing power. The claimant accepted that his injuries are on

the lower end of the scale of loss. The claimant is also claiming aggravated

damages on the basis of the following:

18.1. Mental distress suffered by him over and above that associated with the

personal injuries suffered.

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18.2. This was an unprovoked attack, stemming from the personal ill will of an

officer whose ill will was brought about by his own conduct in the officer

breaching the rules and regulation of the Prison Service.

18.3. The assault occurred in full view of other officers and inmates.

18.3.1. The defendant proceeded with a sham defence wasting the

resources of the court and putting the claimant through the

unnecessary aggravation of proceeding to trial.

19. The claimant submitted that the appropriate Net Present Value range for an

award of damages in relation to the injuries sustained by him on the 18 July, 2013

with an uplift for aggravating circumstances is between $35,000 and $50,000.

20. Accordingly, the court find that an appropriate award for general damage in the

sum of $30,000.00 which includes an uplift for aggravated damages.

The 8 October 2013 Incident

21. On the 8 October, 2013 the claimant was assaulted and battered by the said

Officer Alleyne and other officers, who he is unable to identify, while they were

acting in the course of duty at the Port of Spain Prison. The claimant was escorted

to the visit room for a visit with his family. Shortly after the visit commenced

Officer Alleyne tapped the claimant on his shoulder and indicated to him that the

visit was over. The claimant attempted to explain to Officer Alleyne that the

stipulated period for his visit had prematurely ended and as a result, there was an

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exchange of words between the Claimant and Officer Alleyne in which Officer

Alleyne, threatened to kill the claimant “in jail”.

22. The claimant in his witness statement filed on the 18 March, 2016 stated that:

“19. So me and Shakeil walk out of the main prison and across the courtyard to

where the visit room is. The courtyard is when you enter the prison – you

pass through a big gate then the yard and to go to the main prison it have

another gate to pass through. The visit room is on the eastern side of the

yard. The inmates enter through a door facing the yard where you take

your visit… When I get to the visit room I see Officer Alleyne was

working visit. I pay him no mind cause I was not on him and had no

dealings with him.

20. … The visit started with me talking to Shakeil mother and he talking to his

sister-Chantelle. Then we change visitors so we was both getting to speak

to each visitor. Selby was also getting a visit at the same time.

21. I did not notice Alleyne by the door. It was Charmaine who point out to me.

She ask me what that officer have with me and why he looking at me so.

Or words to that effect. I tell she don’t study he and I don’t know why that

officer always on me. I tell her that but I know that since the earlier

incidents Alleyne was likely to hold me in mind. After about 5 minutes

Alleyne come up to me and say “visit over”. I watch him and I could not

believe that this man cut my visit. I get up grab my visit bag and leave the

visit room. It is when I see Alleyne by the tables outside the visit room that

I get vex. I see it in his face – a kind of look that tell me he cut my visit for

spite and he was happy about it. I won’t lie – I get real vex and I start to

coast on Alleyne. I start to quarrel and tell him why he always coming

round me. I call him an asshole and a bullerman. I not proud that I get vex

but that is the truth. I sure I must have used some obscene too - … Alleyne

turn and tell me “you only talking talking. I done tell you I go kill your … in

jail”.

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23. The claimant complained to Officer Fraser about the denial of his visit and the

conduct of Officer Alleyne. The claimant walked off in the direction of the main

prison gate. In front of him was a group of inmates who had finished taking visit

and was being escorted back to the main prison. Officer Seejagat was escorting

them. The claimant was not in that group, he was way behind them as he was still

supposed to be getting his visit. Selby had finished his visit and was in that group

of prisoners.

24. When the claimant was about three-quarter way through the yard, he sensed

something and he turned to look behind him and he saw Officer Alleyne coming

towards him walking kind of fast. The claimant on realising Officer Alleyne was

coming to attack him, stopped and dropped his bag because there was nowhere

for him to go. The claimant stated that he know that licks was coming so he braced

himself but he did not realise that this was going to get out of hand.3

25. Officer Alleyne sped up to the claimant and fired a punch towards the claimant’s

jaw. The claimant side stepped the punch and Alleyne missed him and he fell flat

on his face or chest. While Alleyne was in the ground he grabbed the claimant’s

foot and pulled him down. The claimant described what happened next as

follows:

“25. I went down next to Alleyne, I did not fall on him but more to the side. He

was still trying to grab me when I went down … I struggle to get back up but

Alleyne was still grabbing me wildly. That was a scuffle on the ground but I

did not hit Alleyne. I was only trying to get away from his grip. I manage to

3 See paragraph 23 of the Claimant’s Witness statement filed 18 March, 2016.

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get up and while I was almost erect I just feel a force pulling me from behind

and down. At this point I could not do anything. I feel my legs give way like

either a push ro pull at my legs because I lose my footing while I was trying

to counter the force pulling me back and down. When I lose my footing that

was it I went down on the ground flat on my back. At this point I could not

see who or what pulled me from behind or what cause me to lose my

footing. Then I see officers around me and the kick started.

25.1. I feel, what I believe, was kicks from right around me. All in my ribs, chest,

leg, head and so on … I was getting kick all over ad all around… Iwas trying

to brakes the lashes to my vital points – my face and temple. But I could

not do very much. I was squirming on the ground with the lashes and

kicks while trying to brakes … Then the kicks ease up. I was in pain all over

but I start to feel pressure on my head, neck, chest, arm and legs. Someone

was standing on my body. Most likely more than one officer cause I feel

the weight of more than one part at the same time. I was trying to move

but I could not. I feel like someone grab my hands and hold them down

towards my side and, I believe, straight out. I could not see who was doing

this to me. I was getting lash on my head but I could not see what it was

but all I could feel was the blows coming down on my head.

25.2. All I could see was straight up and I saw Alleyne with a staff in his hand.

He, Alleyne, came over me and kneel down on my chest, turned the

staff so he was holding it downwards and not by the handle end. I could

not do anything because I was still held down. Then Alleyne jam the point

of the staff into my eye. With each jam into the left eye I feel such pain

that I never feel before and I thought my eye was either buss or falling out.

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I was bawling out and he jam it again into my eye. I can’t say how many

times cause I start to faint or drift away but I’m sure it was more than

twice. It was incredible pain. And then I start to feel the warm blood

running down my fact. I did not know what happened to the eye. I could

not protect myself or resist anything as I was being held down.

25.3. After the last lash I feel all the weight lift off my body and I could move. I

was operating like on instinct and I manage to struggle and get up. When

I get up I realise that I was bleeding badly. I was wearing a white t-shirt

and it was covered in blood. I remember standing up and seeing Alleyne.

I9 pointed to him and I start to drift from side to side and collapse. My

memory of this part is not too good but I think the last thing I remember

was pointing to Alleyne and then telling the officers get me to a hospital.

black out… the next thing I remember was coming to in what I believe as

an ambulance or van. And then I black out again.”

26. The claimant was taken to the hospital and attended to by a doctor. On returning

to the prison, the claimant was able to get a phone and he removed the bandage

from his eye and he took photographs of his injured eye and face and leg. The

claimant continued to have pain all over his body, and headaches and he could

not sleep. Those photographs were marked “GW1” and form part of the evidence

to support the claimant’s claim. The claimant had to keep going to clinic for the

injury to his eye and he obtained medical records which were annexed as “GW2”.

This also formed part of the evidence to support the claimant’s case. The claimant

eventually had surgery conducted on his eye at the Port of Spain General Hospital

and was informed that there may be need for further eye surgery.

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27. The claimant’s evidence was supported two witnesses, namely Shakeil Isasc and

Christopher Selby who witnessed the assault and battery of the claimant. Shelby

was also visiting but finished his visit before the claimant and was proceeding back

into the prison. Selby witnessed the assault from across the courtyard looking

east while Isaac witnessed same from the other side of the courtyard looking west.

28. The evidence were not contradicted in any way. Accordingly, this court holds that

the defendant is liable for the calculated assault and battery on the claimant by its

officers engaged in the conduct of their duties and in the course of their

employment.

Injuries

29. The injuries suffered by the claimant are as follows:4

“(i) Bruising, pain and swelling to the left eye and side of earlobe;

(ii) Laceration below left eye requiring 5 stitches;

(iii) Bleeding inside the left eye for a two day period;

(iv) Damages to left eye requiring continuing treatment and surgery (particular

to be supplied upon receipt by the claimant;

4 See paragraph 14 (Particulars of Personal Injury), Amended Statement of Case.

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V Abrasions to the left leg in two places approximately each being 1 inch in

length below left knee, and above ankle;

(vi) Laceration to his left leg;

(vii) Visible bruising to left thigh and leg;

(viii) Swelling to nose with bruising;

(ix) Claimant fainted away en route to the Port of Spain hospital;

(x) Soreness and bruising to the sternum area;

(xi) Welts and bruising to the right leg;

(xii) Headaches, dizziness and inability to sleep for weeks following the injuries;

Quantum for General Damages

30. The claimant’s attorney described these injuries as moderate injuries and offered

the following authorities for the court’s consideration:

30.1. Chet Sutton v Attorney General CV2011-01191

The claimant was awarded the sum of $70,000 as general damages. The

claimant suffered an attack for at least 15 minutes resulting in jaw damage

requiring a soft diet and soft tissue injuries about the body.

30.2. Lester Pitman v Attorney General CV2009-0638

The claimant was awarded the sum of $90,000. The claimant was beaten

in the Port of Spain Prison by Prison Officers using fists and one officer

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using his riot staff. The injuries suffered by the claimant from this attack

consisted mainly of soft tissue injuries.

30.3. Lincoln Marshall v Attorney General CV2011-03274

The claimant was awarded the sum of $100,000 in general damages. The

claimant was beaten by three (3) officers and suffered loss of 2 teeth and

had 4 broken, welt marks about the body, tender swelling about the body,

tender hematomas about the body, swelling of the face and jaw area,

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

tissue injury about the body.

31. The claimant submitted that the above awards are subject to upward revision on

the basis of inflationary pressures. Having regard to the above injuries the

claimant is asking the court for a range of between $50,000 and $70,000 exclusive

of aggravated damages.

The Eye Injury

32. The claimant received injury to his left eye as a result of the assault and battery

on him and pleaded with regard to same as follows:5

“(iii) Bleeding inside the left eye;

5 See paragraph 14 (Particulars of Personal Injury), Amended Statement of Case.

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(iv) Damage to left eye requiring continuing treatment and surgery

(particulars) to be supplied upon receipt by the Claimant;

(xiii) The Clamant continues to experience difficulty in seeing with the

left eye and has obscured vision in same.

33. The claimant explained the gravity of injury to his left eye when the incident

happened in his witness statement filed 24 March, 2016 that:

“3. Following the incident in October, 2013 when Officer Alleyne beat

me in the eye it took more than a week for the bleeding inside the

eye to stop. I say that there was bleeding in the eye because my

eye were constantly red inside and looked like fresh blood. It was

two weeks before I could open the eye but I could not see in the eye.

Slowly I started to see shadows in the eye. This went on for about

2 more weeks – it may have been up to two months afterwards I

started to have blurry vision in the eye. I could not see anything

clearly only blurs.”

34. Dr. Justo Luis̒-Noriega Martinez treated and operated on the claimant. He was

appointed the expert witness and he gave evidence and produced the relevant

reports for the court’s consideration. The Medical Report states as follows:

“Name: Gareth Wiseman Age: 26 years Date of Birth: 06/10/1981.

He received trauma in his left eye: 10/08/2013

Positive data to the physical examination at the moment of the trauma: OS

Annexes: Eyelid edema; folds in descemet, hemosiderosis.

Anterior Chamber: Cellularity in chamber, active bleeding.

Crystalline: Opacified

Vitreo: No details are presumed due to poor conditions of the previous segment.

Retina: No details are presumed due to poor conditions of the previous segment.

Diagnosis: Closed eye trauma. Blunt trauma of ocular globe OS.

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Traumatic hyphema

Irididialysis

Traumatic cataract

Traumatic vitreous hemorrhage

Date of surgery: 04/28/2016

Surgical technique: Phaco Emulsification in traumatic cataract with Crystalline

Subluxated to Vitreous in 300ᵒ, Zonulolisis.

Diagnosis: Pseudo Phakia OS

Secondary Glaucoma Traumatic (by traumatic angular recess)

Traumatic Macular Scar

Posterior Capsulotomy

Plan: Appointment every 6 month

Combigen 1 drop every 12 Hour

Lumigan 1 drop every 12 hour”

35. The claimant submitted that, in giving evidence, Dr. Martinez explained that the

claimant was in his expert opinion considered to be blind in his left eye and that

his permanent partial disability stands at 50% as to his sight. The claimant is

clinically blind in one eye. Dr. Martinez further explained that as a result of the

blunt force trauma the claimant suffered extensive haemorrhaging in the eye, a

continued build up of pressure in the eye requiring consistent treatment with

medication to alleviate the pressure in the eye to prevent further damage and a

cataract developed from the trauma and secondary glaucoma. The surgery

performed involved removal of the lens and replacement. The claimant’s sight is

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permanently damaged and will not improve given the fact that he has suffered

macular scarring which will continue to cause clinical blindness.

36. In his witness statement filed on 24 March, 2016, the claimant deposed as to the

effects the injured eye has on his capability to conduct day to day activities:

“4. As I said I had no complaints about my eyesight before the incident. Since

the incident I have difficulty with what I call depth-perception .cannot

gauge things with the eye open. If I try to take anything in my hand from

someone else most of the time I miss it and drop it. Things like a bottle of

sweet drink. I cannot gauge distances and in front or below. I have

difficulty with steps and I always stumble with steps if I keep my two eyes

open. I have to remember to close my damages eye before I do any of these

things.

5. Right now I cannot stand lights shining in the eye. The doctors have

told me that I may have to wear an eye patch if the eye continues

like this. I do not have any. I don’t know if I will be able to drive or

operate machinery with that eye open. Bright lights hurt my eye

and I experience strange flashes in the eye: flashes but nothing in

there when I look. It’s like something pass across my vision very

quickly. Sometimes I see a dot when I look through the eye. That

dot is sort of blurry but it is a dot in my vision. I told the doctors

about all these things and I was told that the dot may be from a bit

of blood stuck in the eye. Right now I don’t know about what is

happening with the eye and the doctors have not been able to tell

me anything in answer to my questions.

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37. The claimant submitted that the assessment of permanent partial disability of 50%

in terms of sight must weigh heavily on the assessment of the court. The claimant

is blind in one eye and Dr. Justo Martinez did indicate that the claimant would now

have to exercise special care with the “good eye” as the loss of sight or damage to

that eye would make the claimant totally blind. Further, even though the claimant

cannot prove loss of earnings as he is incarcerated, the court must take this

disability into consideration in the assessment of damages regardless of whether

the claimant can rely upon same in terms of loss of earnings.

38. In assessing damages for the eye injury, the claimant relied on the following three

cases:

38.1. Anil Reds v Nyan Rattan CV2007-00903

The claimant was awarded the sum of $320,000. The claimant claimed damages

for assault and battery including aggravated and exemplary damages. It was the

claimant's case that he was severely beaten on his face and head with a steel

chain to which a hook was attached, and it caused him to lose his right eye and

to suffer gross facial disfigurement. At the time of the incident, the claimant was

a thirty one year old man.

38.2. Premnath Jaikaran v Saiscon CV2007-02813

The claimant was awarded the sum of $200,000 representing 80% of his claim for

personal injury and consequential loss. The claimant sustained injuries during the

course of his employment on 16 September, 2011. The accident occurred when

he was taking off the screws from the cap of a barrel, when the entire lid

exploded and struck him in his face and right eye.

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His injuries were loss of consciousness; loss of right eye; resulting problems

with vision; difficulty watching television or reading; headaches;

embarrassed to go out in public; back pain; pain in knees; lash on forehead;

cut to index finger; facial scar; lash to jaw; difficulty eating; large right C-

shaped corneo-scleral laceration with loss of lens, vitreous and retina; right

upper and lower lid laceration. He was hospitalized for 12 days and had to

undergo a number of surgeries. Owing to the loss of his right eye, the

claimant states that he is unable to maintain permanent employment as a

welder/straightener/painter, the trades in which he has working

experience. The claimant was 16 years old at the time of the accident.

38.3. Racquel Rampersad v Shaffick Mohammed and Ors HCA No. S-

1121/1998.

The claimant was awarded the sum of $150,000 for her injuries, pain and

suffering and loss of amenities, inclusive of the nominal award for disability

in the job market arising out of a motor vehicle accident. Her injuries were

her right eye; laceration of her right lower eyelid and a puncture wound of

the pinna of her right ear; multiple lacerations to her forehead. The

plaintiff is now permanently blind in her right eye. She was three months

short of her 19th birthday.

Aggravating Factors

39. The claimant submitted that the court should take into consideration the

following aggravated factors in awarding damages for the eye injury:

39.1. The Claimant’s 50% permanent partial disability (ocular).

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39.2. The fact the Claimant will be handicapped in terms of his going about his

everyday activities (not to mention the obvious handicap in terms of

appearance in having to wear an eye patch).

39.3. The loss of amenity described by the Claimant in his further witness

statements in terms of his depth perception.

39.4. The continued blurred vision and flashes in the eye together with light

sensitivity – which Dr. Justo did explain were symptoms and effects of the

injury sustained o the eye and the resulting medical conditions.

39.4.1. The fact that the Claimant requires continued medical care and attention

at the eye clinic at the Port of Spain Hospital. The court can take judicial

notice of the fact that it took several months to complete this matter on

account of the fact that no final prognosis was being offered as the Claimant

was not being taken to the eye clinic in a timely fashion and which required

intervention by the Claimant and thereafter by the Court.

39.5. The fact that the Claimant’s right eye is now in greater jeopardy – the Claimant

now being more susceptible to total blindness.

40. The claimant suggested an award of a range of between $220,000 and $250,000

for the eye injury with an uplift for aggravated damages.

Exemplary Damages

41. The claimant submitted that there are two incidents of assault and both require

consideration of an award of exemplary damages. The claimant further submitted

that while the cases have established a tentative range for exemplary damages

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ranging from $20,000 to $100,000, the case of Owen Goring v Attorney General 6

and in the recent case of Oja Brathwaite v Attorney General 7 the Court of Appeal

approved the sum of $80,000 as exemplary damages showing an increase in the

level of the award.

42. The claimant contends that the award of exemplary damages in relation to the 18

July, 2013 assault should be $25,000. In relation to the 8 October, 2013 the

clamant commends the comments made by the High Court in Owen Goring and

again in Oja Brathwaite whereby it is clear that the awards of exemplary damages

are not proving to be a deterrent to the infliction of this type of unconstitutional

and oppressive behaviour. Having regard to the circumstances of the case, the

claimant submits that there should be an award of exemplary damages in relation

to the assault of the 8 October, 2013 of $120,000.

43. In that regard, the court referred to and relied upon its discussion on this topic in

its decision of even date as this in CV2017-01506 Miguel Benoit v PC Hanooman

Et Al. As a result, the court accepts the claimant’s attorney’s submission and will

award the sum of $120,000.00 for exemplary damages.

The Order

44. According, the court makes the following orders:

6 CV2010-03643.

7 CV2010-04502.

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44.1. There shall be judgement for the claimant against the defendant.

44.2. The defendant shall pay to the claimant the sum of $ 30,000.00 as general

damages for assault and battery with an uplift for aggravated damages

with respect to the incident on 18 July, 2013.

44.3. The defendant shall pay to the claimant the sum of $ 50,000.00 as general

damages for assault and battery and the sum of $225,000.00 general

damages for injury to his left eye with an uplift for aggravated damages

with respect to the incident on 8 October, 2013.

44.4. The defendant shall pay to the claimant the sum of $120,000.00 as

exemplary damages.

44.5. The defendant shall pay interest on the damages awarded at the rate of 3

per cent from the filing of the claim on 20th December, 2013 to the 9th

October, 2019, the date of this judgment.

44.6. The defendants shall pay to the claimant the prescribed costs of the claim

quantified by the court in the sum of $ 70,944.38.

/s/ D. Rampersad J.

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