Naidike v Attorney General
| Jurisdiction | Trinidad & Tobago |
| Judge | Smith, J.A.:,Jamadar, J.A. |
| Judgment Date | 05 February 2013 |
| Neutral Citation | TT 2013 CA 2 |
| Docket Number | Civil Appeal 86 of 2007 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 05 February 2013 |
Court of Appeal
Mendonça, J.A.; Jamadar, J.A.; Smith J.A.
Civil Appeal 86 of 2007
Mr. P. Knox, Q.C. and Mr. J. Mabota for the appellant
Mr. N. Byam for the respondent
Constitutional Law - Breach of constitutional rights — Unconstitutional arrest and detention — Compensation — Quantum.
I have had the opportunity to read the draft judgments of Justices of Appeal Mendonça and Jamadar in this appeal. I differ with the opinions they express on two issues, namely:
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(i) The quantum of monetary compensation to be awarded to the appellant for the breach of his constitutional rights; and
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(ii) The quantum of the award to vindicate the infringements of the appellant's rights.
On these two issues I am of the view that:
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(i) The trial judge's award of $250,000.00 as compensation for the breach of the appellant's constitutional rights was a proper estimate of the loss suffered and it ought not to be interfered with on appeal; and
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(ii) The trial judge's award of $50,000.00 to vindicate the infringement of the appellant's rights was a proper estimate of the loss suffered and ought not to be interfered with on appeal.
I adopt the summary of the facts as contained in paragraphs 2—12 of the judgment of Mendonça, J.A. and see no useful purpose in repeating them here.
On 19th December 2007, the trial judge awarded the appellant the sum of $250,000.00 as compensation for his unconstitutional arrest and detention.
Justices of Appeal Mendonça and Jamadar propose to increase the sum of $250,000.00 to $350,000.00.
It is my opinion that the trial judge's award of $250,000.00 is a proper estimate of the compensation for the appellant and this should not be increased to $350,000.00.
Before detailing my reasons I think it is important to reiterate the general principles upon which a court of appeal will interfere with an award of damages. Firstly, the appellate court must be satisfied that the trial judge has misdirected himself on the facts or on the law. Secondly, the trial judge's award must be a wholly erroneous estimate of the damage suffered [ Thaddeus Bernard and Another v. Nixie Quashie Civ. App. 159 of 1992 per de la Bastide C.J. at page 4.]
I will deal with the second proposition firstly, namely, whether the sum of $250,000.00 was a wholly erroneous estimate of the damage suffered.
At this stage, it is appropriate to bear in mind that:
“It is not proper for a court of appeal to substitute its own award merely because it considers that the judge's award is too high or too low. The gap between what the court of appeal considers to be within the range of a proper award, and the award actually made by the judge, must be so great as to render the latter a wholly erroneous estimate of the loss suffered.” [See footnote 1 above.]
I will now demonstrate why I am of the view that the trial judge's award of $250,000.00 was not so low as to be a wholly erroneous estimate of the loss suffered.
In considering an appropriate award of damages, comparable cases are a useful guide to both the trial and appellate judges.
Further, in the process of examining comparable cases in this area of unconstitutional detention/ wrongful imprisonment two important factors are (i) the length of the detention and (ii) the correlation between the types of cases [Josephine Millette v. Sherman McNicholls Civ. App. 14 of 2000 per de la Bastide C.J. at pages 5 and 6.]
The present matter is a constitutional law action premised upon the breach of the right to liberty. In this regard, similar constitutional law cases should be given precedence over common law cases.
The case of Ronnie Abraham v. The Attorney General H.C.A. 801 of 1997 is a very good comparator to an award here. In Ronnie Abraham's case the applicant was wrongly arrested on a warrant and detained for seventy days. His arrest and detention were declared unconstitutional. He suffered great inconvenience and distress because of the deplorable prison conditions he had to endure as well as the fact that his detention spanned over the Christmas and New Years seasons. He was awarded $125,000.00 as damages on 26th February, 1999.
Even though this case is of some vintage, it closely resembles the present matter in the two important areas of length of detention and the nature of the action. Namely, Ronnie Abraham's detention was seventy days and the appellant's was for sixty nine days. Also Ronnie Abraham's case was premised on the breach of the right to liberty and detention in deplorable conditions. The only additional factor to be considered is the beating inflicted on the appellant.
Even allowing for inflation and for the element of the beating inflicted on the appellant, the award of $250,000.00 some eight years later is not so low an award to be an erroneous estimate of the loss of the appellant. In fact it could be argued that the award of $250,000.00 is on the high side, but there has been no cross appeal or argument advanced on this issue. Even if the award in this case is high relative to Ronnie Abraham's case it would represent the upper end of an acceptable range of awards, not the lower end of the range. Consequently, there is no justification to further increase this award from $250,000.00 to $350,000.00.
Another comparable public law case is Josephine Millette v. Sherman McNicholls Civ. App. 14 of 2000. The appellant, aged seventy two, stood bail for her son who failed to appear at court. The appellant's recognisance was forfeited and she was ordered to pay a fine or serve a term of imprisonment in default. This order was ultra vires. The appellant failed to pay the fine and was wrongfully imprisoned for one hundred and thirty two days. She brought successful judicial review proceedings which led to her release. While in prison she complained of being forced to do heavy work, which at her age was oppressive. Further, she suffered the trauma of not being able to care for one of her sons who was an invalid and a daughter who was mentally unbalanced. In fact, upon her release she found her invalid son in hospital in a very bad way and that son eventually died within a matter of days after her release. De la Bastide, C.J. termed this matter as “a very sad case”. In November 2000, an award of $145,000.00 as general damages was upheld.
The detention in Josephine Millette's case was much lengthier than that in this present appeal. Further, the situation in Josephine Millette's case was just as or even more tragic than in this appeal. Nevertheless, an award of $145,000.00 was considered appropriate.
Even allowing for inflation, it cannot be said that the award of $250,000.00 in the present appeal was so low as to be a wholly erroneous estimate of the loss suffered.
This in my view is enough to deal with this issue of this appeal but, for completeness, I will deal with three other issues raised in respect of the quantum of this award of $250,000.00. (a) Firstly, I will consider other “comparable” common law cases. (b) Secondly, I will consider some public law cases that Mendonça, J.A. refers to and demonstrate why they are not truer comparators than Ronnie Abraham's case and Josephine Millette's case. (c) Thirdly, I will consider some public law cases that Jamadar, J.A. mentions and show why I disagree with the conclusions he draws from these cases.
In Ted Alexis v. The Attorney General and Another H.C.S.1555 of 2002/ H.C.A 3795 of 2002 the plaintiff was arrested and detained for two and a half months. Upon arrest he was beaten with a gun and a walkie-talkie. He succeeded in both malicious prosecution and false imprisonment claims. In March 2008 he was awarded $100,000.00 as damages for malicious prosecution and false imprisonment.
In Curtis Gabriel v. The Attorney General H.C.S 1452 of 2003/ H.C. 2544 of 2003 the plaintiff was assaulted by the police to extract a confession. Some 8 days after the assault he was still requesting to see a doctor for his complaints as a result of the assault. The plaintiff spent eighty four days in custody. In June 2008, he was awarded $125,000.00 for his false imprisonment. Included in this figure was an award for aggravated damages. He was also awarded $50,000.00 as exemplary damages.
In Chabinath Persad v. The Attorney General and Another CV 2008-04811 the claimant was detained for seventy six days. He spent this time in deplorable prison conditions. He was also strip searched, witnessed serious violence and threatened at prison. In November 2011, he was awarded $110,000.00 as general damages for false imprisonment.
An examination of the three common law cases shows imprisonment for comparable lengths of time as this appellant. In fact the complainants were all detained for a bit longer than this appellant. In all the cases there were aggravating factors that made them comparable cases to this appellant's detention. Further, the Ted Alexis and Curtis Gabriel cases are close in time to this appellant's case and would be good comparators for awards minus inflation.
These comparable cases show that a range of $100,000.00 to $125,000.00 would be considered appropriate compensation at common law for similar unlawful detention. So that even if the public law cases were somehow not good comparators or not sufficient comparators, the common law comparators would demonstrate clearly that the award of $250,000.00 for this appellant would not be so low as to be a wholly erroneous estimate of this appellant's loss.
Mendonça, J.A. also relied heavily on two common law cases which are not really comparators to the present appeal.
The first case is Victor Romeo v. The...
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