Mohammed v The Attorney General

• Jurisdiction: Trinidad & Tobago
• Judge: Margaret Y Mohammed
• Judgment Date: 13 April 2017
• Neutral Citation: TT 2017 HC 54
• Docket Number: Claim No. CV 2015-00123
• Court: High Court (Trinidad and Tobago)
• Date: 13 April 2017

IN THE HIGH COURT OF JUSTICE

Before

The Honourable Madam Justice Margaret Y Mohammed

Claim No. CV 2015-00123

Between

Judson Mohammed

Claimant

and

The Attorney General of Trinidad and Tobago

Defendant

APPEARANCES

Ms. Saira Lakhan Attorney at law for the Claimant.

Ms. Ronnelle Hinds instructed by Ms. Kezia Redhead Attorneys at law for the Defendant.

Legislation:

Occupational Safety and Health Act, 2004

Police Service Act

Negligence - Employer's Liability — Duty of care — Breach — Damages — Quantum — Whether defendant breached its duty of care as an employer — Whether claimant contributorily negligent in the circumstances — Whether claimant entitled to damages — Judgment for claimant.

1 The Claimant is a police officer who sustained injuries on the 14 ^th January 2011 while working at the Cell Block section of the San Fernando Magistrate's Court. He instituted the instant action seeking damages; aggravated and/or exemplary damages; interest at a rate of 12% on general damages and 6% on special damages from the date of the incident to the date of judgment; costs; and such further and/or other relief as to the Court may deem just.

2 The Claimant alleged that on Friday 14 ^th January 2011, he reported for work at the San Fernando Magistrates Court where he was responsible for performing duties at the Cell Block section of the Magistrates' Court in the area where the prisoners are kept and secured. Whilst on duty a prisoner named Derek Salina who was a known leader of a gang referred to as ‘the blood gang’ called out to the Claimant and asked him to purchase some “doubles”. The Claimant refused to comply with the request and indicated to Derek Salina that the State would provide him with breakfast. Derek Salina thereafter threatened him.

3 Later during the same day, the Claimant had to remove 2 prisoners from the cell in which the said Derek Salina was secured. As soon as the Claimant opened the gate to the said cell, Mr. Salina ran out and struck the Claimant on his head with what appeared to be a sharp metal object causing him to fall to the ground. A struggle between the Claimant and Mr. Salina ensued whereby the Claimant attempted to recover the sharp metal object. However, the Claimant was unsuccessful and he was slashed above his left eye with the sharp metal object and several other prisoners joined in and repeatedly cuffed and kicked the Claimant about his body (“the incident”).

4 The Claimant was thereafter rescued by some of his colleagues and he was then placed in a marked police vehicle and taken to the San Fernando General Hospital where he received treatment. The Claimant claims that the Defendant was negligent since it:

• i. Failed to provide the Claimant with adequate instructions, a handbook and/or any specialized training in any safety workshops on how to safely work and in particular how to work safely in the Cell Block section or in Court when managing prisoners who are violent or in particular on how to handle prisoners on a daily basis;

• ii. Failed to provide adequate and efficient metal detectors or other updated technological devices which could have been used to detect unauthorized devices/possession concealed by prisoners in their hair, clothing or anus which can be a danger to the Claimant, other prisoners and members of the public.

• iii. Failed to provide adequate staff or police officers on a regular basis to manage and control the San Fernando Magistrates' Court Support Unit thereby placing the lives of prisoners, police officers, members of the public and employees of the San Fernando Magistrates' Court at risk on a daily basis.

• iv. Failed to provide adequate batons, locks for cells and handcuffs to properly and safely manage prisoners. At the material time of the incident, there were 5 batons (1 of which was broken and taped together with masking tape) and 15 pairs of handcuffs to manage up to 100 prisoners or more regularly who fight almost daily.

• v. Failed to provide training in the absence of metal detectors and other equipment on how to conduct proper searches on prisoners and how to manage prisoners in order to improve the level of performance in safe management of prisoners.

• vi. Failed to provide any training on how to deal with dangerous prisoners or sick prisoners with contagious illnesses in the Cell Block or to manage prisoners during riots or any form of revolt.

• vii. Failed to take any reasonable care to prevent injury or damage to the Claimant from unusual dangers or working with violent prisoners which the Defendant ought to have known that can be potentially hazardous.

• viii. Caused or permitted the San Fernando Magistrates' Court to be left in a dangerous condition since it is not in compliance with the Occupational Safety and Health Act, 2004 (“the OSH Act”). At all material times, there were no fire extinguishers or fire escape plan or strategy, no adequate anti-riot plan or strategy, no proper first aid equipment or training, no virus or infections and inadequate drinking water and toilet facilities for staff and prisoners.

• ix. Failed to upgrade or properly maintain the prisoners' Cell Block. Prisoners would often break off pieces of metals from the rusting cells, parts of the broken light bulbs and broken toilets bowls and use it as weapons to sometimes stab and injure other prisoners.

• x. Failed to provide the Claimant with adequate supervision and to supervise and/or regularly inspect and/or ensure that the San Fernando Magistrates Court and its Cell Block was maintained or created in a safe manner so as to prevent the risk of injury to its police officers and/or other employees of the Government of Trinidad and Tobago.

• xi. Failed to have appropriate measures to ensure proper Health and Safety are maintained at all times.

• xii. Failed to set up and implement a safe system of work and/or a safe work environment for its employees.

• xiii. Failed to provide the Claimant with a safe place of work and/or safe equipment or protective gear to safely carry out his duties.

• xiv. Failed in all the circumstances to take reasonable care for the safety of the Claimant.

• xv. Failed to ensure that the environment or atmosphere at the San Fernando Magistrates' Court is a safe and healthy environment.

• xvi. Failed to have training sessions for police officers to educate them about their statutory obligations with respect to reports of accidents to the Defendant and to the Occupational Safety and Health Authority.

• xvii. Exposed the Claimant to an unnecessary foreseeable risk of injury by failing to provide the Claimant with a safe place of work, safe plant and equipment, adequate training and adequate supervisions.

• xviii. Failed to have proper procedures in place for emergency response thereby placing the Claimant at further risk of injury and failed to have any first aid kit in place for injured prisoners or police officers to be treated.

• xix. Provided inadequate prison cells to house prisoners for various types of cases such as juvenile cases, charge cases, sexual offence cases, traffic offence cases, maintenance case and high-risk prisoners.

5 The Claimant pleaded that the Defendant breached its statutory duty since it:

• i. Failed to ensure the safety, health and welfare at work of all employees pursuant to section 6 of the OSH Act and it failed to provide adequate information and training on the potential hazards associated with working with dangerous prisoners;

• ii. Failed to provide a safe plant and system of work pursuant to section 6(2)(d) of the OSH Act;

• iii. Failed to provide adequate instructions, training and supervision as is necessary to ensure, so far as practicable, the safety and health at work in convention of section 6(2)(d) of the OSH Act;

• iv. Failed to provide a safe place of work so far as reasonably practicable as required by section 6 (2) (e) of the OSH Act;

• v. Failed to conduct a suitable and sufficient risk assessment contrary to section 13 A of the OSH Act as amended;

• vi. Failed to conduct suitable and sufficient annual assessment of the risks to the safety and health of its employees as required by section 13A(1) of the OSH Act.

• vii. Failed to establish a Safety and Health Committee pursuant to section 25 of the OSH Act as amended and consequently it acted in breach of sections 25F and 25K of the OSH Act.

• viii. Failed to make a suitable and sufficient assessment of the risk to the safety and health of the Claimant to which he might be exposed whilst at work pursuant to section 25G(1)(a) of the OSH Act;

• ix. Failed to report the accident contrary to section 46 (1) and 46A of the OSH Act.

6 The Defendant version of the events was that on the morning of the incident the Claimant and another officer Police Constable Hall Regimental Number 15702 (“PC Hall”) was on duty at the Cell Block section of the San Fernando Magistrates' Court. Sometime between 9:30 am and 10:15 am that morning, PC Hall and the Claimant were in the process of separating the prisoners for movement to the Magistrates Court by handcuffing and taking prisoners out of their cells. The police officers entered the Cell Block and the Claimant gave PC Hall 2–3 pairs of handcuffs and instructed him to attend to the “charge cell prisoners” whilst the Claimant kept the rest of the handcuffs for himself. PC Hall proceeded to the “charge cell area” by himself and was in the process of handcuffing the prisoners when he heard raised voices coming from the direction of “the big cell”, which was to the east of where PC Hall was standing.

7 PC Hall looked towards the direction of the noise and saw the Claimant and Derek Salina, Cyril Salina and another prisoner at the entrance of the cell with the gate partially opened. PC Hall observed that none of those prisoners were handcuffed.

8 When PC Hall reached the cell area, he noticed the Claimant and the prisoner gesticulating and shouting...