Merrick v Attorney General and Rougier (Commissioner of Prisons)
| Jurisdiction | Trinidad & Tobago |
| Judge | Smith J.A.,Archie, C.J.,Mendonca, J.A. |
| Judgment Date | 05 February 2013 |
| Neutral Citation | TT 2013 CA 1 |
| Docket Number | Civil Appeal 146 of 2009 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 05 February 2013 |
Court of Appeal
Archie, C.J.; Mendonca, J.A.; Smith J.A.
Civil Appeal 146 of 2009
Gerald Ramdeen and V. Debideen on behalf of the appellant
Fyard Hosein S.C., A. Panchu and M. Lutchman on behalf of the respondents
Damages - False imprisonment — Appeal against quantum — Whether award of general damages was too low.
I have read the judgment written by Smith J.A. I agree with it and have nothing to add.
Mendonca, J.A.I, too, have read the judgment written by Smith J.A. I also agree with it and have nothing to add.
The appellant pleaded guilty at the Magistrates' Court to a charge of being in possession of marijuana and was sentenced to a term of imprisonment for six months on the 8th September 2006. The appellant appealed this sentence on the very 8th September 2006 and was placed in the remand yard of the Golden Grove prison pending the determination of his appeal.
Ten months later and upon the advice of his attorneys, the appellant signed a Notice of Withdrawal of his appeal (the “Notice of Withdrawal”) on the 30th July 2007. According to the appellant's own evidence, the Notice of Withdrawal “was only delivered to the Court on the 6th August 2007” [See paragraph 6 of the appellant's affidavit filed on the 26th March 2009]. Based on the advice of his attorney, he expected to be released forthwith from the Golden Grove prison.
Alas, this did not happen. The appellant was informed by the prison authorities that he would now have to start serving the six month term of imprisonment afresh. In pursuance of this he was transferred to the Port-of-Spain prison. At the Port-of-Spain prison he had to endure degrading conditions.
On the 23rd August 2007 the appellant commenced habeas corpus proceedings to secure his release from the Port-of-Spain prison. On the 10th September 2007 the habeas corpus proceedings were determined in his favour and he was released from the prison on the same day.
On the 5th November 2007, the appellant commenced these proceedings for false imprisonment for his detention at the Port-of-Spain prison. These proceedings were not defended and on the 30th September 2008 the appellant entered a default judgment for his unlawful imprisonment against the State with damages to be assessed.
The trial judge who assessed the damages invited written submissions from the appellant and the respondents and assessed the damages payable to the appellant for his false imprisonment as follows:
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(1) General damages for 35 days imprisonment at $1,000.00 per day - $35,000.00;
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(2) No award for aggravated or exemplary damages;
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(3) Special damages of $4,000.00; and
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(4) Prescribed costs of $11,250.00.
The appellant now appeals the award of damages, the complaint being that the award is too low.
In my opinion:
The Court will invite submissions on costs upon the delivery of this judgment.
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(1) The appellant has made out his case that the award of general damages is too low. I award him the sum of $200,000.00 as general damages for false imprisonment. This award includes a sum for aggravated damages;
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(2) This is not a fit case for an award for exemplary damages; and
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(3) The appellant made no submissions with respect to the award of special damages, and the respondents did not appeal against the award of special damages. I therefore leave the award of special damages at $4,000.00.
Before I begin the analysis of this appeal I need to mention a peculiar feature of this case. This appeal produced extensive argument and research. The appellant's submissions were about ninety five pages long with over seventy five citations. The respondents' submissions were about thirty seven pages long with over sixty citations. In addition, each party gave an index/summary of local decisions on the quantum of damages which contained a plethora of cases.
Both parties submitted that this was a fit case for the Court of Appeal to give guidelines on a host of issues.
However, in oral submissions, the parties accepted that many of the issues upon which guidance was sought were extraneous to the present appeal. Additionally, both counsel conceded that certain issues and principles of law were either well settled or required no real input from the Court of Appeal.
I will analyse this appeal in two sections, namely:
Section A: Issues that directly impact upon the decision of this appeal; and
Section B: Other issues for guidance of the parties.
I have identified five issues that directly impact upon the decision in this appeal, they are:
(i) General principles upon which a court of appeal will interfere with an award of damages;
(ii) The number of days of false imprisonment of the appellant;
(iii) The adequacy of the award of damages;
(iv) Aggravated damages; and
(v) Exemplary damages.
Both parties agree that there are two circumstances where a court of appeal will interfere with an award of damages. Firstly, where a trial judge has misdirected himself on the law or the facts. Secondly, where the award is a wholly erroneous estimate of the damage suffered [See Thaddeus Bernard and Another v. Nixie Quashie Civil Appeal 159 of 1992 per de la Bastide C.J. at page 4].
In this matter, both parties agree that the Order of the trial judge itself indicates that he misdirected himself on the law. The trial judge used a daily rate of loss and multiplied it by the number of days of incarceration (a pro rata basis).
Specifically, the trial judge used a figure of $1000 per day of loss, multiplied by 35 days of incarceration to award $35,000.00 as general damages for the appellant's false imprisonment.
This pro rata basis for assessing damages for false imprisonment has repeatedly been held to be erroneous [See Josephine Millette v. Sherman McNicholls Civil Appeal 14 of 2000 per de la Bastide C. J. at pages 4 and 5]. On that basis it would be appropriate to vacate the award of the trial judge as being based upon an error of law.
In any event, as I will demonstrate later in this judgment, [See paragraph 40 below] it is my opinion that the award of $35,000 as damages is a wholly erroneous estimate of the damage suffered. This is the second basis that justifies this court's reconsideration of the award of the trial judge.
A peripheral issue concerning the principle of interference with the award of damages in this appeal is the fact that the trial judge gave no written or oral reasons for his decision.
On the facts of this appeal the lack of reasons from the trial judge poses no real problem since the simple issue on this appeal is whether the award of damages falls so far short of what a proper award should be so as to constitute a wholly erroneous estimate of the damages payable. This has been the approach adopted in similar cases on appeal (see generally Josephine Millette v. Sherman McNicholls Civil Appeal 14 of 2000 at page 3).
Further in cases where there are no, or no sufficient reasons for an award of damages:
“… the Court of Appeal is entitled to look at the matter afresh and come to its own conclusion as to how the discretion (to award damages) ought to have been exercised.” (See Romauld James v. The Attorney General Civil Appeal 154 of 2006 at paragraphs 5 and 6; and see also Angela Inniss v. The Attorney General of Saint Christopher and Nevis P.C. Appeal No. 29 of 2007 at paragraph 16.)
In the judgment that follows I will undertake that analysis.
In his Statement of Case, the appellant alleges that he was unlawfully detained/falsely imprisoned for forty three days. These forty three days are calculated from the day he signed his Notice of Withdrawal (30th July 2007), to the date of his release (10th September 2007). However, in the written submissions, the appellant accepted that the period of unlawful detention/false imprisonment should only run from the date the Notice of Withdrawal reached the Court of Appeal (6th August 2007) up to the date of the appellant's release (10th September 2007). This amounts to thirty six days if the date of the filing of the Notice of Withdrawal and the date of the appellant's release are included in the period of detention.
The respondents have submitted that the period of detention between the time when the Notice of Withdrawal reached the Court (6th August 2007) up to the date of the appellant's release (10th September 2007) is thirty five days. However, no explanation is given as to which days are excluded or included. The trial judge seems to have accepted thirty five days as the period of false imprisonment for he used the period of thirty five days as the period of detention [See paragraph 14 above.]
In my opinion the proper period of detention is thirty six days as the appellant submitted. The evidence does not state the times of either the submission of the Notice of Withdrawal or of the appellant's release from the Port-of-Spain prison and in these circumstances I would give the appellant the benefit of the doubt and include both days in the computation of the period of detention.
In considering the adequacy of the trial judge's award of damages one must always bear in mind that this is a claim for the tort of false imprisonment. The principal heads of general damage for this tort are firstly, compensation for the injury to liberty and secondly, compensation for the injury to feelings [See McGregor on Damages 15th Edition page 619]. Under the head of compensation for injury to feelings, matters that can be considered include the...
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