1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CLAIM NO: CV2017-01345 BETWEEN OSBORNE ROWLEY Claimant AND WATER AND SEWERAGE AUTHORITY LEECOY TOBIAS Defendants Before the Honourable Madame Justice Quinlan-Williams Date of Delivery: 8 th May 2020 Appearances: Mr. Alexander A. Prince and Mr. Phillip A. Wilson instructed by Ms. Andesha M. Germain for the Claimant Mr. John Heath instructed by Ms. Niala Narine for the Defendants JUDGMENT
Transcript
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THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CLAIM NO: CV2017-01345
BETWEEN
OSBORNE ROWLEY
Claimant
AND
WATER AND SEWERAGE AUTHORITY
LEECOY TOBIAS
Defendants
Before the Honourable Madame Justice Quinlan-Williams
Date of Delivery: 8th May 2020
Appearances: Mr. Alexander A. Prince and Mr. Phillip A. Wilson
instructed by Ms. Andesha M. Germain for the Claimant
Mr. John Heath instructed by Ms. Niala Narine for the
Defendants
JUDGMENT
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1. The claimant, Osborne Rowley, is a former acting Police Sergeant of the
Trinidad and Tobago Police Service. Mr. Rowley was detained on the
20th April 2013. The incident occurred in the vicinity of Duncan Hill,
Santa Cruz Old Road, San Juan.
2. On that day, the second defendant, Gary Fraser (“Fraser”) and Wayne
O’Brien (“O’Brien”) were all employed with the first defendant as
Estate Constables. WASA was laying pipes at or near to the location
where the arrest occurred. The pipe laying exercise had continued from
the day before. The second defendant, Fraser and O’Brien were
directed by the first defendant to perform duties in the vicinity of the
WASA works. They were specifically directed to control the flow of
traffic. The second defendant was directing traffic in the vicinity of the
works. The claimant, driving his personal motor vehicle a Nissan B12
registration number PBD 4870, came to the area where the second
defendant was directing traffic. The initial interaction occurred
between the claimant and the second defendant.
3. The interaction led to the claimant being detained. He was handcuffed
and eventually placed in the back seat of a marked WASA vehicle.
4. The claimant’s case is that he was unlawfully arrested, and thereafter
everything that followed was also unlawful. Consequently, according
to the claimant, he should be awarded:
a. damages for false imprisonment,
b. damages for assault and battery;
c. damages for mental anguish, emotional distress, loss of
reputation and injury to character
d. aggravated and/or exemplary damages
e. special damages
f. interest; and
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g. costs.
5. The defendants’ defence is that the claimant’s detention was lawful
and the claimant’s case should be dismissed.
6. The issues for the court’s determination are:
a. was the claimant lawfully detained or arrested by the second
defendant, Fraser and O’Brien or any one or more of them;
b. is the first defendant liable for any unlawful acts of the second
defendant, Fraser and O’Brien and any one or more of them;
and
c. is the claimant entitled to damages for any act or acts of the
defendants, and if yes what damages.
7. It is evident from the progress of the proceedings that both claimant
and defendants proceeded consistently with the defendants as named
when the claim was filed on the 19th April 2017. Fraser and O’Brien gave
witness statements and were called to give evidence. The submissions
made by the claimant implored the court to make findings adverse to
the defendants. The submissions filed by the defendants, conversely
impressed upon the court that it should agree that there is insufficient
evidence to make findings against the defendants.
8. However, in preparing to write the judgment, and during the review of
evidence and the documents filed, the court noted that a Notice of
Withdrawal was filed discontinuing the claim against the former third
and fourth defendants. The then attorney on record filed this Notice of
Withdrawal for the claimant on the 27th November 2017.
9. Consequently, the court was constrained to consider the evidence in
light of this Notice of Withdrawal and proceed to consider the case as
it related to the first and second defendants. The evidence adduced by
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the former third and fourth defendants was considered as the court
would normally consider the evidence of any witness called by a
defendant.
Summary of Findings
10. The court believes the account given by the claimant. The court found
the claimant to be consistent and reliable. On the other hand, the
defendants’ version was inconsistent and replete with contradictions.
The evidence given by O’Brien in cross-examination is a prime example
of this. The O’Brien contradicted the defendants’ case in material parts
and supported the claimant’s version of events.
Issue: a. Was the claimant lawfully detained or arrested by the second
defendant, Fraser and O’Brien or any one or more of them
Law
11. The second defendant’s evidence, if believed, suggested that the
claimant breached the peace, committed a battery by bouncing him
with his vehicle as well an assault, by raising his hand as if to strike him.
The second defendant was not specific about any other offence or
offences the claimant may have committed. The second defendant’s
evidence is that he was entitled to detain the claimant based on the
claimant’s behaviour.
12. The claimant says he was arrested by the second defendant, Fraser and
O’Brien. The pleaded defence and the second defendant’s evidence in
chief did not use the term “arrest” in relation to the action taken
against the claimant. Instead, the pleadings and the second
defendant’s witness statement used the word “restrain.”
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13. An arrest is defined by the Commonwealth Caribbean Criminal Practice
and Procedure1 text as the seizing or touching of the person of an
individual with a view to restraining him, which must be done in
accordance with the law: Ludlow -v- Burgess [1971] Crim LR 238.
14. Justice Rahim in the case of CV2016-03548 Trishuana Scarlett -v- Senior
Superintendent Vincel Edwards and The Attorney General of Trinidad
and Tobago explained at paragraph 114 that:
“To arrest a person is to restrict his freedom under lawful authority. It usually involves the taking hold of a person, through touching, no matter how slight is sufficient. Words alone may also amount to an arrest if the form of words used is calculated in the circumstances of the case to bring to a person’s notice that he is under compulsion, and does bring it to his notice and he then submits to the compulsion. For an arrest to be lawful the person being arrested must be informed of the fact that he is under arrest and the reasons for that arrest albeit not at the same time if not practicable.”
15. The author of Commonwealth Caribbean Criminal Practice and
Procedure2 further opined that Lord Viscount Simonds in the case of
Christie -v- Leachinsky [1947] 1 All ER 567 HL explained five basic
proposition of law on the need to inform an arrested person of the
reason for his arrest. Lord Viscount Simonds held that the authorities
established: (i) a police officer who arrests a person without warrant
must ordinarily inform him of the true ground of the arrest; (ii) if the
citizen is not so informed, the police officer will usually be liable for
false imprisonment; (iii) if the circumstances are such that the arrested
person must know the general nature of the alleged offence, the duty
does not exist (such as where he is caught red handed); (iv) the
language need not be technical, but must convey the substance of the
reason for his restraint to the arrested person; (v) if the arrested person
1 5th Edition at chapter 3 page 31 in accordance with Alderson -v- Booth [1969] 2 QB 216 2 5th Edition at chapter 3 page 42.
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creates a situation (such as running away), which makes it impossible
to inform him of the reason for his arrest, he cannot complain.
16. If the second defendant’s evidence is believed, the claimant would
know the reason for his detention or arrest.
17. In the case of Albert v Lavin3, Lord Diplock said that there is a well
settled exception that to detain a man against his will without arresting
him is an unlawful act:
“It is that every citizen I whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty, although, except in the case of a citizen who is a constable it is a duty of imperfect obligation.”
18. Detention within the meaning of Albert v Lavin [supra], has be
determined in the particular circumstance of the purported detention.
There remains a distinction between a lawful arrest where no criminal
charges are preferred and an unlawful detention. In the former the
arrest or detention remains lawful and in the latter the detention was
always unlawful.
19. The power of arrest exist at common law as well as statutorily. Powers
of arrest exist for police officers and persons in certain other law
enforcement offices, as well as by members of the public.
20. At common law there is a power of arrest without warrant for breach
of the peace:
3 [1981] 3 ALL ER. Page 880, paragraph d.
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“A constable or an ordinary citizen may at common law arrest without warrant: (1) a person committing a breach of the peace in his presence; (2) a person who he reasonably believes will commit such a breach of the peace in the immediate future, even though at the time of the arrest such person has not committed any breach; and (3) a person who has committed a breach of the peace where it is reasonably believed that a renewal of the breach is threatened. There is no breach of the peace unless an act is done or threatened to be done which: (a) actually harms a person or, in his presence, his property; (b) is likely to cause such harm; or (c) puts a person in fear of such harm. A breach of the peace can occur on private premises, and can do so even if the only people likely to be affected by the conduct are on the premises.”4
21. In Trinidad and Tobago there is an offence of breach of the peace
created by section 49 of the Summary Offences Act Chapter 11:02:
“Any person making use of any insulting, annoying or violent language with intent to, or which might tend to, provoke any other person to commit a breach of the peace, and any person who uses any obscene, indecent or profane language to the annoyance of any resident or person in any street or if any person in a place to which the public is admitted or has access, or who fights or otherwise disturbs the peace, is liable to a fine of two hundred dollars or to imprisonment for thirty days.”
22. The police also have, at common law, additional powers of arrest
without warrant. These were discussed by Justice Rahim in CV2017-
02395 Kyle Nero -v- The Attorney General of Trinidad and Tobago at
paragraph 65 of his judgment recited the learning from Halsbury's Laws
of England Volume 84A (2013) at paragraph 487 which sets out the
circumstances by which a constable can arrest without warrant:
“A constable may arrest without a warrant: (1) anyone who is about to commit an offence; (2) anyone who is in the act of committing an offence; (3) anyone whom he has reasonable grounds for suspecting to be about to commit an offence; and (4) anyone whom he suspects has reasonable grounds for committing an offence.
4 Halsbury’s Laws of England 2019. Volume 84, Paragraph 458
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If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it. If an offence has been committed, a constable may arrest without a warrant anyone who is guilty of the offence and anyone whom he has reasonable grounds for suspecting to be guilty of it.”
23. The allegations made by the second defendant can constitute offences
known to law. Whether it is for breach of the peace contrary to section
49 of the Summary Offences Act, or assault and beat contrary to
Section 4 of the Summary Offences Act.
24. There are statutory powers of arrest without warrant for police officers
as well as for any person. Section 3 of the Criminal Law Act details the
powers of summary arrest, without warrant for among other offences,
arrestable offences:
“3. (1) The powers of summary arrest conferred by the following subsections shall apply to capital offences or offences for which a person (not previously convicted) may, under or by virtue of any written law be sentenced to imprisonment for a term of five years, and to attempts to commit any such offence; and in this Act, including any amendment made by the Law Revision (Miscellaneous Amendments) (No. 1) Act 1979 in any other written law, “arrestable offence” means any such offence or attempt. (2) Any person may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects to be, in the act of committing an arrestable offence. (3) Where an arrestable offence has been committed, any person may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects to be, guilty of the offence. (4) Where a police officer, with reasonable cause, suspects that an arrestable offence has been committed, he may arrest without warrant anyone whom he, with reasonable cause, suspects to be guilty of the offence. (5) A police officer may arrest without warrant any person who is, or whom he, with reasonable cause, suspects to be, about to commit an arrestable offence.”
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25. The relevant principles for interpreting section 3 of the Criminal Law
Act were enumerated by Lord Clarke in Ramsingh v AG [2012] UKPC 16:
“i) The detention of a person is prima facie tortious and an infringement of section 4(a) of the Constitution of Trinidad and Tobago. ii) It is for the arrestor to justify the arrest. iii) A police officer may arrest a person if, with reasonable cause, he suspects that the person concerned has committed an arrestable offence. iv) Thus the officer must subjectively suspect that, that person has committed such an offence. v) The officer’s belief must have been on reasonable grounds or, as some of the cases put it, there must have been reasonable and probable cause to make the arrest. vi) Any continued detention after arrest must also be justified by the detainer.”
26. Of course, another essential ingredient would be that the alleged
offence is an arrestable offence within the meaning of section 3 of the
Criminal Law Act. From the evidence and the defendants’ case, the
allegations do not appear to relate to arrestable offences.
27. Likewise section 46 (1) (c) and (f) of the Police Service Act, details
circumstances under which a police officer may arrest without a
warrant, it states:
“46. (1) A police officer may arrest without a warrant— … (c) a person who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody; … (f) a person whom he finds in any public or private place or building and whom he suspects upon reasonable grounds of having committed or being about to commit an offence;”
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28. Section 3 of the Criminal Law Act and Section 46 of the Police Service
Act5 do not always require the same proof. JA Mendonca said in
Harrylal Singh v AMOCO Trinidad Oil Company and AG at paragraph 25:
“While both sections require the existence of reasonable suspicion, in the case of Section 3 (4) what is required is that the arresting officer personally has reasonable grounds for the suspicion. So that under this Section, for example, if the officer knowing nothing of the case, arrests someone, the arrest is unlawful, whether there might have existed reasonable grounds to suspect that the thing found on the person’s possession is stolen and that he has stolen it. What matters under Section 3 (4) is what is in the mind of the arresting officer. This does not appear to me to be so in relation to Section 36 (1) (d).6 It seems to me that from the use of the passive tense that the Section is more flexible and broader in scope. It provides for a broader test whether there was reasonable suspicion and does not confine the enquiry to matters in the mind of the arresting officer. What seems to me to be required under Section 36 (1) (d) is only the objective existence of reasonable grounds.”
29. That analogy with section 3 (4) does not apply to section 46 (1) (c) and
(f). Whereas in section 46 (1) (d) a passive voice was used, in section 46
(1) (c) and (f) an active voice was used. That active voice is similar to
the wording of Section 3 (4) of the Criminal Law Act.
30. Therefore, it appears to the court that sections 3 (4) and Section 46 (1)
(c) and (f) require the same proof.
31. The second defendant, under certain circumstances could arrest or
detain a perpetrator without a warrant, in his personal capacity as a
private individual.
5 The Section 36 (1) (d) of the repealed and replaced Police Service Act Chapter 15:01 6 “Section 36 (1) (d) “Any police officer may arrest without a warrant … any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to such thing.”
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32. An estate constable, can exercise the same powers of a police
constable in certain circumstances.
33. The defendants say that the second defendant, Fraser and O’Brien
were estate constables at the material time. The duties, functions and
powers of an estate constable are governed by the Supplemental Police
Act Chapter 15:02. Section 5 of the Supplemental Police Act gives the
Commissioner of Police control and command over Estate Police7.
34. Section 4 (2) of the Supplemental Police Act, outlines the breath of the
duties of estate officers:
“The Estate Police shall comprise such constables as are employed on any estate in the maintenance of order on, and in the protection of, the estate…”
35. As it relates to maintaining order and criminal offences, Section 7
empowers estate constables with the same authority on their
designated estate, as members of the Police Service:
“The estate constables employed on any estate… shall consist of such number and ranks of constables as the employer may, subject to the approval of the Commissioner, require and shall have the power and authority of members of the Police Service in respect of all offences committed on the estate to which they belong and throughout the division in which the estate may be situated.”
36. Section 7 therefore empowers estate constables to investigate, arrest,
charge and prosecute for criminal offences which take place on the
designated estate in the same manner as any police officer. The estate
constables may also exercise their powers in the divisions where the
estate is, when investigating, arresting and charging for offences
committed on the estate.
7 Which includes estate constables- see section 2 of the Supplemental Police Act.
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37. Section 14 is of wider import and deals with general powers of estate
constables on the designated estates outside of maintaining order. This
section outlines the powers of estate constables when acting to protect
the estate, it states:
“14.(1) Every rural constable throughout the division to which he is appointed and every estate constable throughout the division in which the estate to which he belongs is situated, and every estate constable employed by a protective service agency while engaged in the performance of his duties shall have all such rights, powers, authorities, privileges and immunities and be liable to all such duties and responsibilities, as any member of the Police Service below the rank of corporal now has or is subject or liable to, or may hereafter have or be subject or liable to either by Common Law or by virtue of any law which now is or may hereafter be in force in Trinidad and Tobago. (2) Every rural or estate constable may serve and execute any summons, warrant, or other process in any cause or matter, whether civil, quasi-criminal, or criminal issued by any Magistrate.”
38. Section 14 in the court’s opinion, cannot be interpreted as clothing the
estate constables with the same power and authority of police officers
outside of the designated estate. It must be read in context with and in
light of duties outlined in section 4 of the Supplemental Police Act.
Unless otherwise directed by the Commissioner of Police,8 the estate
police have the same powers and authority of police officers, of the
specified rank, on the designated estates in so far as they relate to
maintaining order in the protection of the estate.
39. The Supplemental Police Act defines an “estate” to include:
“any plantation, lands, warehouse, storehouse, or business premises; but where two or more estates as so defined are in the ownership of the same employer, the Commissioner of Police, on the application of the employer, may by Order direct that any or all of such estates shall be deemed to be one estate for the purposes of this Act, and the estates shall thereupon be deemed to be one estate.”
8 Supplemental Police Act Chap. 15:02, section 5.
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40. The Water and Sewerage Act does not define WASA’s estate. The
expanse of the estate can be gleaned from the description of WASA’s
assets under section 11 of the Water and Sewerage Act, this includes:
“all public pumps, wells, cisterns, reservoirs, conduits and other works used for the gratuitous or other supply of water to the inhabitants of any part of the district of a local authority [within the meaning of section 58(3)] and not otherwise in this subsection contemplated, are hereby vested in the Authority.”
41. It makes common sense that WASA’s estate must include all pipes,
fittings and fixtures over and under all roads, wherever situated, that
are used to ferry water to the citizens of Trinidad and Tobago. We know
this to be true because the Fourth Schedule to the Water and Sewerage
Act, Part IX, creates a number of offences for interfering with valves
and apparatus and alteration of pipes.
42. The Motor Vehicle and Road Traffic Act Chapter 48:01, makes provision
for the direction of traffic. Section 66 creates criminal offences for the
failure or refusal to obey the direction of police officers:
“66. Where a police constable in uniform is engaged in the regulation of traffic in a road or where a traffic sign, being a sign of the prescribed size, colour and type or of another character authorised by the Licensing Authority under section 64 or where a notice of the Commissioner of Police under section 68 has been lawfully placed on or near a road, a person driving or propelling a vehicle who— (a) neglects or refuses to stop the vehicle or to make it proceed in or keep to, a particular line of traffic when directed to do so by the police constable in the execution of his duty; or (b) fails to comply with the indication given by the sign or the notice, is liable on summary conviction for a first offence to a fine of two thousand dollars and on any subsequent conviction to a fine of four thousand dollars and imprisonment for twelve months.”
43. Section 10A of the Motor Vehicle and Road Traffic Act gives the Police
Commissioner the authority to appoint members of organizations or
traffic wards with authority to assist the police in directing traffic:
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“10A. (1) The Police Commissioner may— (a) with the approval of the Minister responsible for the
Police; and (b) subject to—
(i) such conditions as the Minister directs; and (ii) criteria as may be established by Order by the Minister responsible for transport after consultation with the Licensing Authority,
appoint by instrument in writing, any member of an organisation or any person as a Traffic Warden for the purpose of assisting the Police in connection with the control and regulation of road traffic and with the enforcement of the law.”
44. The Motor Vehicle and Road Traffic Act does not remove the power
given to estate constables under the Supplemental Police Act.
Certainly, while maintaining order on WASA’s estate, WASA’s estate
constables may have authority to direct traffic within the limited duty
ascribed to estates constables under the Supplemental Police Act. It
does not appear that on the public roadway and outside of maintaining
order within the specified duties of estate constables, that WASA’s
estate constables can direct the flow of traffic.
45. The court will move on to the analysis of evidence as it relates to the
first issue.
Analysis
46. Finding the facts from the divergent versions is the key to settling this
dispute.
Claimant’s version
47. The day before the claimant’s arrest, while on duty dressed in police
uniform and in the company of other police officers, the claimant and
the other police officers came upon WASA vehicles parked on the side
of the road where it appeared WASA was conducting work.
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48. The claimant observed WASA personnel directing traffic. It appears
that the police officers formed the view that the WASA personnel,
including their estates officers did not have the lawful authority to
direct traffic. The police officers relayed this information to the WASA
personnel. The party of police officers alighted the police vehicle and
spoke to the WASA personnel. Following the conversation, WASA
personnel stopped directing traffic.
49. The incident with the claimant, which led to his arrest and this claim,
occurred the very next day. This time, the claimant was dressed in plain
clothes, alone and driving his personal motor vehicle. The claimant
alleged that he was however on police duty as he was on his way to
drop off correspondence at the San Juan Police Station and San Juan
Sub-Station. The claimant exhibited an extract from the Santa Cruz
Police Station to verify his duty.
50. According to the claimant, the first thing that attracted him was the
attire of the person directing traffic. That person, who we now know to
be the second defendant, had on a blue floppy hat, a blue long sleeve
jersey sweater and dark coloured pants.
51. The claimant said that this was different from the clothing worn by the
WASA estate constables the day before when he and the other officers
had the encounter with the WASA estate constables. The second
defendant had a handgun strapped on his right leg and a shotgun in his
right hand with the strap of that shotgun over his right shoulder.
52. The second defendant was about 20 feet away when the claimant
made these observations. The second defendant was directing traffic.
When the claimant came to about 3 feet away from the second
defendant, the claimant put his head out the window and asked him
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who he was. At this time, the claimant did not identify himself as a
police officer. The second defendant did not answer.
53. The claimant then alighted from his vehicle with his Trinidad and
Tobago Police Service Identification Card in his hand and showed it to
the second defendant. He identified himself to the second defendant
and asked who he was and the second defendant replied “WASA
police.”
54. The claimant told the second defendant that he had no authority to
direct traffic. About this time one of the WASA workers shouted, “that
is one of the police from yesterday.”
55. At this point, the second defendant slammed the claimant onto the
bonnet of his car. He called out for assistance and two other estate
constables dressed like the second defendant came to his assistance.
All this time the second defendant had his hands on the claimant’s
throat.
56. The second defendant asked Fraser and O’Brien to handcuff the
claimant. Fraser and O’Brien complied and assisted the second
defendant by handcuffing the claimant. During the process of the
claimant’s arrest, he realized that his service firearm was falling from
his waist. The claimant told the second defendant about the firearm
falling from his waist and either Fraser or O’Brien retrieved it.
57. On the second defendant’s instructions, either Fraser or O’Brien drove
the claimant’s motor vehicle from the road where it was and parked it
on the pavement. The driver damaged the claimant’s vehicle in the
process.
58. The second defendant, Fraser and O’Brien, led the claimant to a
marked WASA vehicle and pushed the claimant in the back seat. This
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vehicle was not running, the air condition was off and the windows
were all up. After pushing the claimant in the back seat, the door was
closed.
59. About five minutes after the claimant was placed in the WASA vehicle,
the second defendant came back to the vehicle. The claimant
complained about the heat and humidity inside the vehicle. The second
defendant responded that he was in charge and again closed the door
leaving the claimant inside the hot and humid vehicle.
60. About one half of an hour later, the claimant was able to use his cell
phone. The claimant made a call to the Police Command Center by
calling 999. He made a report and gave his location. Finally, PC
Kowlessar came to the scene in a marked police vehicle. PC Kowlessar
was in company of another officer Cpl Seebaran.
61. The claimant saw the two police officers speaking to the second
defendant, Fraser and O’Brien. They all came to the vehicle where the
claimant was seated. The claimant was told to come out of the vehicle
and Cpl Seebaran removed the handcuffs. The two police officers
accompanied the claimant to the San Juan Police Station.
Defendants’ version
62. The first defendant was in fact engaged in a pipe laying project in the
vicinity of Duncan Trace, Santa Cruz. It is also true that the second
defendant, Fraser and O’Brien were estate constables employed by the
first defendant at the material time. The first defendant requested the
second defendant, Fraser and O’Brien to assist with managing the flow
of traffic in the area where the pipe laying exercise was taking place.
63. The second defendant was armed with a service pistol attached to his
right leg and a shotgun strapped over his shoulder. The second
defendant’s version is that he gave a front stop signal to the claimant.
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This signal should have caused the claimant to bring his vehicle to a
stop.
64. Upon making that signal, the second defendant said the claimant put
his head out of the window of his vehicle and shouted in a hostile
manner that he had no authority to be there and that he would bounce
him down.
65. The claimant drove his vehicle and hit the second defendant on his left
leg. The claimant then alighted from his vehicle and shouted
aggressively “I will run you over! W.A.S.A. police have no right here!”
66. The claimant lifted his hand in a threatening manner. The second
defendant perceived this as a threat to strike him. Meanwhile upon
observing the hostile behaviour of the claimant, Fraser and O’Brien
approached and did render assistance to the second defendant in the
detention of the claimant.
67. The second defendant detained the claimant by placing his hands
behind his back and placing the handcuffs on him. During the
detention, the claimant’s firearm fell to the ground and the second
defendant retrieved it and handed it to O’Brien. All this time the second
defendant noted that the claimant’s breath smelled of alcohol.
68. The claimant was arrested and handcuffed. The claimant said he was a
police officer and asked if he could show the second defendant his
police service identification card.
69. While handcuffed, the claimant retrieved his Trinidad and Tobago
Police Service Identification Card from his back pocket and showed it
to the second defendant. The claimant then shouted for the WASA
police to let him go.
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70. The second defendant placed the claimant in the back seat of the police
vehicle which was turned on and the air conditioning running.
71. The second defendant was about to take the claimant to the police
station when a marked police vehicle pulled up. They were assisted by
acting Corporal Seebaran who took the claimant in his own vehicle to
the San Juan Police Station.
Facts
72. The court believes the evidence and account of how the events
unfolded as given by the claimant. The court is satisfied, on a balance
of probabilities that the claimant was arrested and placed in the
marked WASA vehicle in the circumstances as described by the
claimant.
73. In making this finding the court considered all the evidence. The
claimant’s account of how he emerged and the identification of himself
by the use of his police service identification card makes more sense
than the second defendant’s account. According to the claimant, there
was a history from the day before. The day before while dressed in
police uniform and in company with other officers, they had cause to
stop the WASA estate constables from directing traffic. There is no
evidence that the second defendant was present the day before or that
the claimant claimed to recognize the second defendant from the day
before. Therefore, it seems more probable that the claimant who was
in plain clothes would have officially identified himself as a police
officer to the second defendant who was unknown to him.
74. On the day of the claimant’s arrest, he was alone, wearing plain clothes
and driving his personal vehicle. It seems more logical that he would
have approached the second defendant in the manner he described.
After all, the second defendant was carrying two firearms and there
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were other WASA estate officers and WASA workers in close proximity.
Why would the claimant bounce the second defendant, alight from his
vehicle and then threaten to bounce him down. All the while being
belligerent.
75. The court believes and is satisfied that the claimant followed the traffic
until he was the closest vehicle to the second defendant. He made the
initial inquiry while still seated. He followed up that initial inquiry by
alighting from his vehicle and attempted to present his police service
identification card.
76. The court believes that the WASA personnel had enough of the police
telling them what to do. This included the second defendant. That is
why the second defendant initially ignored the claimant. It was when a
WASA worker shouted that the claimant was one of the officers from
the day before, that the second defendant decided to act and assert
what he believed was his right as an estate officer. The claimant was
alone; he was outnumbered and out maneuvered.
77. The court finds the second defendant’s account that the claimant was
smelling of alcohol be a malicious and vicious fabrication by the second
defendant. This fabrication was clearly intended to bolster the story
given that the claimant behaved in an erratic manner.
78. The defendants’ pleaded case is that the claimant lifted his right hand
in a threatening manner, which the second defendant perceived as an
intention to strike him. At this time “upon observing the hostile
behaviour of the claimant the Third and Fourth Defendant approached
in order to assist the second defendant if necessary.”9 This was also the
evidence given by the second defendant. However, neither Fraser nor
O’Brien gave that account.
9 Defence filed 29th December 2017. Paragraph 2 f.
21
79. Fraser said what alerted him was that the traffic had stopped. When he
looked to ascertain why the traffic had stopped he saw the second
defendant in a struggle with an individual. On his way to where the
second defendant was, he alerted O’Brien who was seated in the WASA
vehicle. Fraser even says under cross examination, that he did not assist
the second defendant in handcuffing the claimant. This was done by
the second defendant.
80. O’Brien’s evidence is that he was seated in the WASA vehicle when
Fraser opened the door and told him that the second defendant
needed some assistance. When O’Brien got to where the second
defendant was, he was restraining the claimant. The second defendant
then put the claimant in the WASA vehicle.
81. It defies logic that the claimant, an acting sergeant of police would
simply allow the second defendant to handcuff him by placing his
hands behind his back, without physical resistance and without saying
that he was a police officer. According to the second defendant, it is
only after the claimant was arrested and handcuffed that he told the
second defendant that he was a police officer. The claimant then,
according to the second defendant, reached for his police issued
identification card in the back pocket of his pants.
82. The arrest did not occur in the manner described by the second
defendant by him placing the claimant’s hands behind his back and
handcuffing him. It is not only the claimant who gives a different
account, but also the first defendant’s employees Fraser and O’Brien.
During the struggle as described by the claimant, the claimant says he
was beaten and held down on the bonnet of his vehicle. The court is
satisfied that the claimant’s account is true.
22
83. The second defendant’s account of how the claimant’s firearm fell out
of his pocket also lends pale to his account. According to the second
defendant, he simply “restrained him by taking his right hand and
placing it behind his back, taking his left hand and placing it next to this
right hand and placing handcuff on his wrist.” It seems more likely that
the claimant’s firearm fell out of his pocked as a consequence of a
struggle. The claimant described a struggle during which the court
could envision the claimant’s service firearm slipping out of his pocket.
The claimant’s account makes more sense and the court accepts his
evidence.
84. There was the account relayed by Michael Phillip to the police at the
San Juan Police Station. Michael Phillip can be described as an
independent witness with no skin in the game. Michael Phillip was a
man who was about his own business walking on his way to the San
Juan Police Station to have his bail book signed. Apparently, he knew
the claimant as a police officer. On his arrival at the San Juan police
station, he reported to the police what he saw. The account was
recorded at 1:55pm, it notes that at 1:20 pm Michael Phillip saw WASA
police with the claimant “handcuffed in the back seat of a white vehicle
with the word ‘WASA’ written on the door, beating and choking him.”
This account by the independent witness accords with the account
given by the claimant. The only evidence of beating and choking comes
from the claimant. According to the second defendant, he handcuffed
the claimant without resistance and was assisted with placing him in
the back seat of the police vehicle.
85. Michael Phillip gave a statement dated the 2nd July 2013. In that
statement Michael Phillip described being in traffic. He saw a
commotion ahead and when he got closer, he saw “Two of these men
began to struggle with Sergeant Rowley, one of the men which held
Sergeant Rowley from behind his back chocking him and pushing him
23
unto the bonnet of his vehicle…and the other man trying to put on the
handcuff which he eventually did.”
86. The claimant sought medical attention on the same day as his arrest.
The injuries documented on the medial report supports the version of
events as described by the claimant. The report documents that the
claimant suffered from soft tissue injuries to his chest, right wrist and
left shoulder. The injuries to the claimant’s chest and left shoulder may
have been inflicted by the second defendant when he shoved the
claimant unto the bonnet of his car, or into the back seat of the WASA
vehicle.
87. The second defendant gave the impression that soon after he placed
the claimant in the WASA vehicle, the police officers came. However,
in O’Brien’s statement dated the 20th April 2013, he is quite clear that
after they placed the claimant in the WASA vehicle and after he was
given the claimant’s service firearm “Sometime afterwards Ag Cpl
13940 Seebaran and #16143 P.C. Kowlessar…passed.”
88. It seems to the court that the events from the day before were relevant
to what unfolded on the 20th April 2013 and the claimant’s arrest. The
second defendant denied hearing any of WASA’s personnel saying that
the claimant was one of the officers from the day before. The report
dated the 25th April, 2013 from the Acting Works Supervisor
Construction North states:
“…the crew and I were painting the roadway about fifty (50) yards North of the Green Oak Hotel. The WASA security were directing the flow of traffic, when a vehicle driven by the same officer who spoke to Mr. Richards the day before, broke the stop sign for vehicles heading South on the Old Santa Cruz Main Road and was blocked by the WASA Police. The Police Officer informed the WASA officer that ‘WASA not supposed to block up the road’ and drove the vehicle at the WASA Officer who stood his ground. The Police man who appeared to be
24
intoxicated exited the vehicle approached the WASA Officer and attempted to slap him. The WASA Officer retaliated by subduing the Policeman on the bonnet of his car, placed handcuffs on him and put him in the WASA security vehicle.” 10
89. It appears that WASA was intent on continuing their project regardless
of the advice and direction given to them. The advice did not come on
the 19th April 2013 but before that day. According to the Project
Manager11 Richards, WASA notified the Trinidad and Tobago Police
Service of the impending project on the 9th April 2013. On the 12th April
2013, WASA was advised by Cpl Reyes of the Morvant Police Station
that they had not yet received advice about the strength of officers
required for the project.
90. On the 17th April 2013, WASA collected the quotation from the officer
at the Morvant Police Station. WASA however made a decision to use
their own estate officers to manage the traffic during the exercise. They
managed the project on the 18th April 2013. On the 19th April 2014, it
was reported by the claimant that Sgt Isaac of the Santa Cruz Police
Station put a stop to the work. WASA on advice, decided to continue
the work with their own security on the 20th April 2014.
91. The other matter the court considering in determining the facts was
what happened after the incident. Both the claimant and the second
defendant claim they were victims of the other. The claimant made a
report at the San Juan Police Station immediately after. He sought
medical attention and obtained a medical report for the injuries he
suffered. He also ensured that the police pursued his report and he
attended court as a virtual complainant when the second defendant,
Fraser and O’Brien were charged with criminal offences.
10 Greville Lynch dated 25th April 2013. 11 Ashkelon Richards, Project Manager Construction Services North 30th April 2013.
25
92. Comparatively, the other possible victim, the second defendant,
remained at work. After finishing work, he then reported to the San
Juan Police Station. He did not seek medical attention – perhaps he was
not injured. He did not charge the claimant with any offences. When
he was charged, he did not cross charge the claimant for assault or
battery.
93. When one compares the behaviour of the claimant and the second
defendant, the claimant behaved as a person wronged. Alternatively,
the second defendant behaved quite cavalier. It is unclear to the court
what was the second defendant’s intention in releasing the claimant to
the police. Was the claimant still detained by the second defendant?
Was he released without any intention of being charged or was he
released pending further investigation of his alleged unlawful
behaviour.
94. The second defendant, Fraser and O’Brien were not charged until the
18th October 2013. Up to that time; from the 20th April 2013, the second
defendant had done nothing to pursue an action against the claimant.
95. Given the fact that the second defendant arrested, or as he says
detained, a member of the Trinidad and Tobago Police Service while he
was on duty as an Estate Officer employed with WASA, one would have
expected the second defendant to follow up and pursue the reason or
reasons for the detention of the claimant.
96. The evidence given by O’Brien under cross examination runs counter in
major respects to the case pleaded by the defendants and the evidence
of the second defendant.
97. O’Brien says that he was the senior estate officer on duty. At the time
the claimant came upon the scene he, O’Brien, was sitting in the WASA
vehicle where the claimant was later placed after his arrest. O’Brien
26
says that the vehicle was switched off and the air condition was on. He
also remembers that the day was hot.
98. O’Brien states that he became aware of the commutation. When he
first saw the claimant, the second defendant was restraining the
claimant on the bonnet of the claimant’s vehicle. He too says that while
the claimant was in this position the claimant’s firearm fell.
99. O’Brien agrees that the second defendant had on WASA’s uniform and
a floppy hat, also says, that the second defendant has a pistol in his
right hand and consequently was only directing traffic with his left
hand. He agreed that the second defendant could not give a front stop
signal as the second defendant was holding a pistol in his right hand.
100. After the claimant was placed in the WASA vehicle, O’Brien
remained around the vehicle. The vehicle was not turned on, nor was
the air condition on. The second defendant was not by the vehicle at
this time as he, O’Brien was by the vehicle.
101. The second defendant did not report to O’Brien that the
claimant drove his vehicle to the point that it came into contact with
the second defendant. As the senior officer, O’Brien agreed that there
is a protocol and he expected that such action by the claimant would
have been reported by the second defendant to him. The second
defendant reported to him that the claimant said he would bounce him
down.
102. O’Brien’s evidence is that he was in close proximity to the
claimant for about 40 to 45 minutes. This was from the time he first
saw the claimant to when the left with the police. During this time, the
claimant appeared normal. O’brien did not say anything about the
claimant smelling of alcohol, appearing or behaving intoxicated. The
27
second defendant’s evidence is that the claimant appeared to be
intoxicated.
Criminal charges
103. The defendants’ rely on the fact that the criminal charges
against the second defendant, Fraser and O’Brien were dismissed as
proof that the claimant’s account is not credible. No doubt in certain
circumstances, the dismissal of criminal charges would bear on a civil
case. However, there is no automatic one size fits all approach12 for
many reasons. These reasons include that the criminal and civil
standard of proof are different.
104. Here the second defendant, Fraser and O’Brien were all charged
with the following offences:
a. falsely imprisoning the claimant contrary to common law; and
b. assault occasioning actual bodily harm, contrary to Section 5 of
the Summary Offences Act chapter 11:02.
105. According to the Extract of Magistrate’s Case Book for 8th
August 2017, the police complainant (this person is distinct from the
claimant in this case) was absent and a no case submission was upheld
and the case for assault occasioning actual bodily harm against Fraser
and O’Brien were dismissed.
106. In the Extract of Magistrate’s Case Book for 22nd February 2018,
the second defendant gave evidence and the case for assault
occasioning actual bodily harm was dismissed.
12 Harrylal Singh v AMOCO Trinidad Oil Company and the Attorney General. “…It must also be appreciated that an acquittal on the criminal charge does not mean that a civil suit arising out of the same circumstances will automatically succeed.” Paragraph 18 Judgment of Mendoca JA.
28
107. There is no evidence on the outcome or progress of the charge
of false imprisonment.
108. The claimant was cross examined on areas of his evidence at
the magistrate’s court. However, the court did not find anything
material nor did it impact the claimant’s believability. The dismissal of
the charge of assault occasioning bodily harm against the second
defendant, Fraser and O’Brien has not impacted the court’s findings of
fact in this case.
109. O’Brien’s evidence is that he too was an estate constable
employed with WASA on the day in question. He was required, by the
first defendant, to report to Santa Cruz Old Road in the area of Duncan
Trace, to assist with managing the flow of traffic where WASA was
conducting a pipe laying project. O’Brien said he did report for that
duty and did assist in directing and managing traffic on the south to
north lane of the Santa Cruz Old Road.
110. Under cross examination however, O’Brien said that he was not
precepted on the 20th April 2013. He said he became precepted after
that date, he could not remember precisely when, but he was clear that
it was after the 20th April 2013.
111. The claimant’s evidence is that one of the first defendant’s
employees drove his car unto the pavement. The second defendant,
Fraser and O’Brien all deny that the claimant’s motor vehicle was
moved by them. The second defendant, Fraser and O’Brien say when
the police officers arrived on the scene the claimant’s car was moved;
it was driven by one of the police officers.
112. The statement of Michael Phillip dated the 2nd July 2013
described the manner in which the claimant’s vehicle was parked. That
the vehicle was obstructing traffic and that WASA’s estate officers
29
moved the claimant’s vehicle. The statement even described the
difficulty the WASA estate officers had in starting and moving the
claimant’s vehicle. The court is satisfied that either the second
defendant, or Fraser or O’Brien on the second defendant’s direction,
drove the claimant’s vehicle and parked it on the pavement to alleviate
the obstruction it was causing.
113. With respect to Fraser and O’Brien, the claimant evidence is
that they assisted with his arrest. They assisted in restraining him and
facilitating the handcuffing of him. The court accepts this evidence.
Both Fraser and O’Brien say that they rushed to the area where the
second defendant was struggling with the man, we know now to be the
claimant. While they did not see the genesis of what occurred, they
certainly intended to and did lend assistance to the second defendant
in securing the claimant’s arrest and detention in the WASA vehicle.
114. Based on the findings of fact, the court is satisfied that the
claimant did not threaten to bounce the second defendant down nor
did he hit the second defendant with his motor vehicle. The court also
is also satisfied that the claimant did not raise his hand in a threatening
manner, but raised his hand to identify himself with the use of his
police issued identification card. The claimant had his police issued
identification card to identify himself as a police officer.
115. Therefore, the second defendant did not have any authority to
detain or arrest the claimant. The claimant was not detained within the
meaning of Albert v Lavin (supra) but arrested within the meaning of
Trishuana Scarlet (supra). Because the arrest was unlawful the
detention that followed was also unlawful. The court has found that
there was no assault and no battery.
30
116. While there is a common law power of arrest for ordinary
citizens, the facts do not disclose that the claimant had or was
committing a breach of the peace.
117. Even if the second defendant, Fraser and O’Brien did have the
same powers of police officers on WASA’s designated estates, and even
if where the estate officers were is a designated WASA estate, the
arrest and continued detention were unlawful based on the facts as the
court found them.
118. On the version of events as the court found, the second
defendant, Fraser and O’Brien, could not have reasonable cause to
suspect that the claimant was guilty of an offence either within the
meaning of Section 3 (1) of the Criminal Law Act or as interpreted by
Ramsingh v AG (supra) or section 46 (1) (c) and (f), which should be
interpreted as described by Ramsingh v AG (supra).
119. Based on the findings of fact, the defendants could not have
exercised any lawful authority to arrest and detain the claimant, by
common law or statute, as ordinary citizens nor as estate constables.
120. The defendants asked the court to make inferences adverse to
the claimant as a consequence of him not calling witnesses who had
filed witness statements. The court considered the defendants’
submission but rejected it. No inferences adverse to the claimant were
drawn for the following reasons. Firstly, this was not a situation of
employer/employee where the claimant had direct control or influence
over the witness as an employer would. Secondly, the nature of the
evidence likely to be given by those witnesses. The buildup to the
incident and the incident itself occurred largely between the claimant
and the second defendant. No witness proposed to be called by the
31
claimant was able to provide any additional evidence about what
transpired.
Issue: b. Is the first defendant liable for any unlawful acts of their
servants or any one or more of them;
Law
121. The first defendant is established as a body corporate with its own legal personality pursuant to the Water and Sewerage Authority Act:
“3. (1) An Authority is hereby established for the purposes of this Act, and is a body corporate.”
122. Vicarious liability is defined as a liability that a supervisory party
(such as an employer) bears responsibility for the actionable conduct
of a subordinate or associate (such as an employee) based on the
relationship between the two parties13. An employer will be vicariously
liable for a tort committed by an employee in the course of
employment14 but not his independent contractors15. A tort comes
within the course of the employee’s employment if:
(a) It is expressly or impliedly authorized by the employer;
(b) It is an unauthorized manner of doing something authorized
by the employer; or
(c) It is necessarily incidental to something which the employee
is employed to do.16
123. In CV2014-01610 Seeta Persad -v- The National Maintenance
Training and Security Company Limited and Ryan Sinanan Rahim J
applied the House of Lords17 ratio that to determine whether an
13 Black’s Law Dictionary 8th Edition page 934 14 Halsbury’s Laws of England, Volume 97 (2015) paragraph 767 15 Commonwealth Caribbean Tort Law 5th Edition at chapter 12 page 335 16 Commonwealth Caribbean Tort Law 5th Edition at chapter 12 page 338 17 In Lister and others -v- Hesley Hall Limited (2001) UKHL 22.
32
employer should be held vicariously liable for an employee’s wrongful
act, the court ought to focus on the relative closeness of the connection
between the nature of the employment and the particular tort.
Essentially a broad approach was required as it related to the nature of
the employment by asking what was the job on which the employee
was engaged for his employer.
124. Lord Phillips in Various Claimants -v- Barclays Bank plc [2017]
EWHC 192918 noted that there were policy reasons which usually made
it fair, just and reasonable to impose vicarious liability on an employer
when the following criteria were met:
i. The employer is more likely to have the means to compensate
the victim than the employee and can be expected to have
insured against that liability;
ii. The tort will have been committed as a result of activity being
taken by the employee on behalf of the employer;
iii. The employee’s activity is likely to be part of the business
activity of the employer;
iv. The employer by employing the employee to carry on the
activity will have created the risk of the tort committed by the
employee; and
v. The employee will to a greater or lesser degree have been
under the control of the employer.
Analysis
125. There is no dispute that the second defendant, Fraser and
O’Brien were all employed by the first defendant. The defendants
pleaded that the second defendant, Fraser and O’Brien were estate
constables employed by the first defendant. There is also an admission
by the first defendant that the second defendant, Fraser and O’Brien
were on duty at Duncan Trace, Santa Cruz Old Road on their direction.
18 Cited by Rahim J in CV2015-02237 Steven Teelucksingh -v- National Energy Corporation of Trinidad and Tobago and others.
33
There is also no dispute that the second defendant, Fraser and O’Brien
were directed by the first defendant to perform traffic duties.
126. The first defendant has not raised in the defence that they are
not liable for any tortious acts of their employees. Based on the
findings of fact, and that the second defendant, is liable for the
unlawful arrest of the claimant, the first defendant is also liable.
Issue: c. Is the claimant entitled to damages
Law
127. The claimant has pleaded that he should be awarded:
a. damages for false imprisonment,
b. damages for assault and battery;
c. damages for mental anguish, emotional distress, loss of
reputation and injury to character
d. aggravated and/or exemplary damages
e. special damages
Analysis
General Damages
128. The distinction between compensatory damages and
exemplary damages was stated clearly by Mendonca JA in Torres v
PLIPDECO19:
“The object of exemplary damages ........ is to punish and includes notions of condemnation or denunciation and deterrence (see Rookes v Barnard [1964] 1 All ER 367 at 407, [1964] AC 1129 at 1221). Exemplary damages are awarded where it is necessary to show that the law cannot be broken with impunity, to teach a wrongdoer that tort does not pay and to vindicate the strength of the law (see Rookes v Bernard [1964] 1 All ER 367 at 411, [1964] AC 1129 at 1227). An award of exemplary damages is therefore directed at the conduct of
19 CV Appeal No 84 of 2005.
34
the wrongdoer. It is conduct that has been described in a variety of ways such as harsh, vindictive, reprehensible, malicious, wanton, willful, arrogant, cynical, oppressive, as being in contempt of the plaintiff's rights, contumelious, as offending the ordinary standards of morality or decent conduct in the community and outrageous.”
129. Trespass to the person whether by assault, battery or false
imprisonment is actionable without proof of damage. Once a court can
establish the occurrence of a battery or assault the court must award
the claimant compensation20.
130. In assessing what damages to award to a claimant for physical
injuries resulting from an assault and battery, the author of
Commonwealth Caribbean Tort Law 5th Edition at chapter 2 page 17,
state that they should be the same as for physical injuries caused by
negligence. They were itemized the factors as:
a. The same heads of pain and suffering;
b. loss of amenities;
c. loss of expectation of life; and
d. and loss of earnings apply.
131. In addition, the claimant can recover aggravated damages for
injury to his feelings such as for any indignity, disgrace, humiliation or
mental suffering occasioned by the assault:
132. In CV2015-02781 Calvin Lavende -v- The Attorney General of
Trinidad and Tobago Margaret Mohammed J stated at paragraph 96
that the award for damages in claims made for false imprisonment and
wrongful arrest have varied depending on the period of imprisonment
and the circumstances in which the claimant was kept and treated.
20 CV2006-3721 Skinner -v- The Attorney General of Trinidad and Tobago.
35
133. In the case of Civ App 95 of 2010 Thaddeus Clement -v- The
Attorney General of Trinidad and Tobago the court noted that heads of
damages in cases of malicious prosecution and false imprisonment
include: injury to reputation - to character, standing and fame; injury
to feelings - for indignity, disgrace and humiliation cause and suffered,
and deprivation of liberty - by reason of arrest, detention and/or
imprisonment.
134. An award of aggravated damages is appropriate in an action for
trespass to the person unlike an action in negligence because the
compensatory principle applies to the award of damages to a claimant
in respect of injured feelings21. The court will award a single figure for
all heads of compensatory damages which includes aggravated
damages where there are factors to justify such an uplift22. Chief Justice
de la Bastide in CA No 159 of 1992 Thaddeus Bernard -v- Nixie Quashie
opined that:
“The normal practice is that one figure is awarded as general damages. These damages are intended to be compensatory and include what is referred to as aggravated damages, that is, damages which are meant to provide compensation for the mental suffering inflicted on the plaintiff as opposed to the physical injuries he may have received. Under this head of what I have called ‘mental suffering’ are included such matters as the affront to the person’s dignity, the humiliation he has suffered, the damage to his reputation and standing in the eyes of others and matters of that sort. If the practice has developed of making a separate award of aggravated damages I think that practice should be discontinued.”
Exemplary damages
135. Exemplary damages may be awarded in an action for trespass
to the person in circumstances where there is an action against the
police or other emissaries of the state, where the conduct of police
21 Halsbury’s Laws of England Volume 29 2014 at paragraph 497 22 CV2017-02467 Jameson John -v- The Attorney General of Trinidad and Tobago.
36
officers or other emissaries has been oppressive or arbitrary23. In the
case of Rookes -v- Bernard [1964] AC 1129 it was said that the object of
exemplary damages is to punish and includes notions of condemnation,
denunciation and deterrence. Lord Devlin in that case stated that in
computing the award of exemplary damages, the following criteria
ought to be taken into account:
a. A plaintiff cannot recover exemplary damages unless he is a
victim of the punishable behavior;
b. An award of exemplary damages should be moderate; and
c. Awards of exemplary damages should be considered in light of
the means of the parties.
136. There is no evidence in this case which leads the court to the
conclusion that it is necessary to punish WASA or the other defendants
for the tortious acts committed on the claimant over and about general
damages. There is no evidence that it is important in the circumstances
of this case, to send a signal of condemnation or deterrence to the first
defendant. There is no evidence that WASA’s estates constables have
established habits or patterns of behaviour that would warrant an
award of exemplary damages.
137. This court will not be able to satisfy or justify the several
dimensions necessary in making such an award. Those dimensions are
identified as including: the blameworthiness of the defendant’s
conduct; the degree of the vulnerability of the plaintiff; the harm or
potential harm directed specifically at the plaintiff; the need for
deterrence; penalties both civil and criminal which had been or were
likely to be inflicted on the defendant for the same outcome; and the
advantage wrongfully gained by the defendant from the misconduct24.
23 CV2016-01009 Leon King -v- The Attorney General of Trinidad and Tobago 24 Civ App 172 of 2012 Darrel Wade -v- The Attorney General of Trinidad and Tobago.
37
138. An award of compensatory damages with an uptick for
aggravated damages will meet the justice of this case.
Quantum
139. As it relates to false imprisonment, the court found that the
claimant was falsely imprisoned for less than one hour. This includes
period of approximately 30 minutes in the conditions where all the
windows were closed and there was no air conditioning running. The
claimant and O’Brien testified that it was hot on the day in question.
Moreover, the claimant would have been in pain due to the injury
sustained to his right wrist when the handcuffs were placed tightly on
his hands. The claimant was left to suffer in a hot humid car to the point
where he was in pain and experiencing difficulties in breathing.
140. In cases where a trespass to the person is established, the
courts have found that the claimant can recover aggravated damages
for injury to his feelings.
141. The claimant’s evidence in this regard was that the actions of
the second defendant humiliated him as he was treated in a degrading
manner. There were people who came out of their vehicles and were
looking on. Someone in the crowd proclaimed that the claimant was a
police officer and one of them even called out to the claimant by his
name. The claimant averred that he even recognized some of the
people as well known to him. A couple of them had criminal matters
before the court, so they knew him as a police officer.
142. Furthermore, the claimant stated that because of the incident,
his co-workers specifically those of a lower rank began to tease and
taunt him by calling him “WASA Police.” The claimant’s evidence was
that he felt humiliated and degraded by those comments and every
time he heard “WASA Police” he became traumatized. While the court
38
considered this evidence, it was also mindful that persons may have a
tendency to exacerbate things when they are in the midst of civil
litigation.
143. The court believes that the scene that occurred while the
claimant was detained and arrested caused a gathering of onlookers.
The second defendant suddenly slammed and pushed the claimant
onto the vehicle, choked and hit him and pointed his shotgun at the
claimant. The area was already populated due to the traffic that was
backed up and the scene created by the second defendant must have
attracted bystanders’ attention. This is supported by the account given
by Michael Phillip.
144. A police officer is an authoritative figure in the eyes of the
society. They are the individuals disseminated into the public to uphold
and enforce the law. The actions of the second defendant would have
been humiliating, degrading and disgraceful for the average citizen.
Undoubtedly, such treatment proffered to a figure of authority carries
with it an extra sting, especially when the onlookers realized that it was
a police officer being handled in such a manner. It is not surprising that
the claimant would feel as though the essence of his authority was
being stripped away. This was further concreted when members of
lower ranks began to tease the claimant calling him “WASA Police.”
145. For these reasons, the court finds that the claimant’s award of
general damages for trespass to the person ought to include an award
for aggravated damages for the mental anguish, emotional distress,
loss of reputation and injury to character he suffered as a result.
146. Regarding the award of damages for false imprisonment and
the unlawful detention the court has considered that the detention
was for a relative short period, less than one hour. From the time he
was handcuffed to when he was able to leave the station on his own.
39
147. However, the award of compensatory damages will be up
ticked for the following aggravating circumstances:
a. the fact that the arrest was made in a public place in full view
of the members of the public
b. that the arrest was of a police officer which could have and did
have the tendency to subject him to ridicule
c. the violent nature of the arrest – the claimant was slammed
against the hood of his vehicle
d. the fact that the claimant was handcuffed and placed in a hot
and humid vehicle and that the tortfeasors did nothing to
alleviate the discomfort even after the claimant complained
e. that the defendants acted unlawfully on their duty and that the
first defendant caused Fraser to work as an estate constable
when he was not precepted
40
148. The court considered the cases cited by the claimant and
defendants the awards made and the trends shown in Table 1. below.
For the tort of the unlawful detention the range suggested by the
authorities cited and considered is between $3,000.00 to $6,000.00 per
hour. Because of the circumstances of this case and especially the
aggravating factors, the court has decided that the award should be at
the upper end.
Table 1. Award of Damages for False Imprisonment
149. For the unlawful detention the court awards the claimant
compensatory damages, in including aggravated damages for mental
False Imprisonment Case Length of Time Detained
Award
CV2006-00986 Mahadeo Sookai -v- The Attorney General of Trinidad and Tobago
½ hour General damages for false imprisonment in the sum of $6,000.00
CV2008-02487 David Baboolal and others -v- The Attorney General of Trinidad and Tobago
“a little over one hour”
General damages for false imprisonment in the sum of $7,000.00
CV2015-02781 Calvin Lavende -v- The Attorney General of Trinidad and Tobago
5 hours $27,000.00 as damages for false imprisonment, which includes an uplift for aggravated damages
CV2017-02395 Nero, Kyle -v- The Attorney General of Trinidad and Tobago
August 24 to August 29, 2016
uplift for aggravated damages in the sum of $75,000.00
CV2007-01952 Lewis -v- The Attorney General of Trinidad and Tobago
18 hours Awarded $75,000.00 for malicious prosecution and $50,000.00 for unlawful detention (inclusive of an uplift for aggravating factors)
CV2012-02695 Emraan Ali -v- The Attorney General of Trinidad and Tobago
24 hours General damages for false imprisonment in the sum of $45,000.00
CV2007-02686 Lennon Richardson and Jason Alleyne -v- The Attorney General of Trinidad and Tobago
2:30p.m. on 23rd January to 4:00p.m. on 25th January, 2007
$40,000.00 for each claimant as damages for false imprisonment, which includes an uplift for aggravated damages
CV2015-00249 Larry Baila -v- The Attorney General of Trinidad and Tobago
3 ½ hours General damages for false imprisonment in the sum of $12,000.00
CV2107-01961 Darryl Ramsamooj -v- The Attorney General of Trinidad and Tobago
28 hours $60,000 for the unlawful detention including an uplift for aggravated damages
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anguish, emotional distress loss of reputation and injury to character
in the sum of $6,000.00.
150. Regarding an award of damages for the assault and battery, the
court considered that the claimant must be compensated for the
trespass to his person. In particular the court also considered:
a. pain and suffering – the injuries were relative minor injuries
with no lacerations or breakage of bones. No surgical
intervention was required. The court assumes that any pain
experienced would have abated in a day or two;
b. loss of amenities – none was pleaded;
c. loss of expectation of life – not relevant; and
d. and loss of earnings apply – not relevant
151. With respect to aggravated damages the court considered the
feelings of indignity, disgrace, humiliation and mental suffering which
based on the circumstances of this case were likely much more that the
physical injuries. Based on the circumstances of this case the injury to
the claimant’s feelings were more than justified.
152. Considering the cases cited by the claimant and the defendants
in Table 2. below, the awards made therein and the recent trends the
court is of the view that the range for an award of damages in the
nature suffered by the claimant should be $80,000.00 to $120,000.00.
For the injuries suffered including an uptick for aggravated damages in
the sum of $120,000.00.
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Table 2. Award of damages for Assault and Battery
Assault and Battery Case Injuries Award
CV2017-04017 Akili Charles -v- The Attorney General of Trinidad and Tobago
There was swelling in the right zygomatic area, a deformed nose bridge with epistaxis, swelling of the left Mastoid area and a 1 om laceration to the chin. There was also swelling of the left arm and mild tenderness of the left knee. An assessment of (1) multiple soft tissue injuries and (2) fracture of the nasal bone was made. X-rays were done and showed a fractured nasal bone.
$100,000 with uplift for aggravated damages
CV2015-02781 Calvin Lavende -v- The Attorney General of Trinidad and Tobago
Soft tissue injuries, laceration to his head which required stitches but no surgery was required.
$120,000.00 as damages for assault and battery, which includes an uplift for aggravated damages
CV2017-02467 John, Jameson -v- The Attorney General of Trinidad and Tobago
Burns of 18% to 20 % of his back and he had 1 surgery. A reasonable award which includes an uplift for aggravated damages is $150,000.00
CV2016-01009 Leon King -v- The Attorney General of Trinidad and Tobago
A fractured jaw, multiple soft tissue injuries about the body and swelling of the right eye.
General Damages with an uplift representing Aggravated Damages assessed in the sum of $87,000.00
CV2014-01610 Persad, Seeta -v- The National Maintenance Training and Security Company Limited; Sinanan, Ryan
A spinal strain syndrome involving the neck and lower back with L1/L2 disc protrusion and coccyx strain. Constant, unbearable, nagging pain along her hips, waist, legs, spine, neck, arms and shoulders.
$140,000.00
CV2016-00029 Jason Raymond -v- The Attorney General of Trinidad and Tobago
The medical evidence showed that the Claimant suffered soft tissue injuries and bruising after he was beaten by prison officers.
General damages in the sum of $65,000.00
CV2011-01191 Chet Sutton -v- The Attorney General of Trinidad and Tobago
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.
$70,000.00 in general damages inclusive of an uplift for aggravated damages
CV2015-03955 Kelloy Koon Koon & Ors -v- The Attorney General of Trinidad and Tobago
The third claimant suffered a broken tooth, continuing effects of battery which included blurred and limited vision in the right eye, as well as pain and swelling of same. The medical evidence noted that he had received blunt trauma to the face including the right periorbital area (region around the eye). The battery led the third claimant to suffer a fracture of the right upper incisor with exposed pulp, bruising to the right eye and right cheek, edema and tenderness to the lateral aspect of the right eye. From these injuries, the third claimant experienced blurry and diminished vision in the right eye, mild photophobia, pain in the right eye, tooth and right side of the face, nausea, dizziness and headache on the left side of his face.
$25,000.00 for general damages for assault and battery and an award of exemplary damages of $5,000.00.
CV2009-04756 Randy St Rose -v- The Attorney General of Trinidad and Tobago
The claimant sustained a tender mildly swollen right knee; tender swollen right forearm, swollen left arm and tender swollen left forearm.
$25,000.00 was awarded as general damages, inclusive of aggravated, and exemplary damages of $20,000.00.
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153. On the award of compensatory damages, the defendants shall
pay interest at the rate 2.5 percent from the date of service of the claim
form on the 1st Defendant, the 7th August 2017 to the date of judgment.
Special Damages
154. The case of Civil Appeal No. 20 of 2002 Anand Rampersad v
Willies Ice-Cream Ltd addressed the evidential burden imposed on a
party claiming special damages. His Lordship Archie JA (as he then was)
at page 8, stated:
“I wish to emphasise at the outset that the fact that a Defendant may not challenge the values of destroyed items given by the Plaintiff does not automatically entitle the Plaintiff to recover whatever is claimed. The rule is that the Plaintiff must prove his loss. The correct approach is as stated by Lord Goddard, CJ in Bonham Carter v Hyde Park Hotel [1948] 64 Law Times 177: “Plaintiffs must understand that if they bring actions for damages, it is for them to prove their damage, it is not enough to write down the particulars, so to speak, throw them at the head of the court saying ‘this is what I have lost, I ask you to give me these damages.’ They have to prove it.”
155. The claimant submitted that his vehicle was damaged as a result
of the actions of the second defendant in person or on his direction. In
support of his claim the claimant exhibited an undated estimate in the
amount of $3,500.00 from ‘Roger’s Auto Body Shop’. The estimate
relates to the works to be done on the claimant’s vehicle. The job to be
performed was, “To remove replace and repaint the front of car,”
which included, “The bonnet, complete suspension and left side front
panel to be repaired.”
156. While the estimate is undated, the court finds that the damage
quoted is consistent with the evidence including the second defendant
aggressively pouncing on the claimant when he slammed the claimant
unto the bonnet of the car.
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157. In addition, the court did not believe that the second defendant
stopped the TTPS vehicle and Corporal Seebaran drove the claimant’s
vehicle to the San Juan Police Station. The claimant’s evidence was
preferred in this regard.
158. Therefore, in the circumstances the claimant ought to be
compensated for the damage done to his vehicle in the amount of
$3,500.00 and the court awards this sum for special damages.
159. Therefore, in the circumstances the claimant ought to be
compensated for the damage done to his vehicle in the amount of
$3,500.00. Interest on special damages shall be paid at the rate of 1.5
percent from the 20th April 2013 to the date of judgment.
Disposition
160. There shall be judgment for the claimant against the first and
second defendants.
161. The defendants shall pay the claimant compensatory damages,
including an uptick for aggregated damages for false imprisonment in
the sum of $6,000.00.
162. The defendants shall pay the claimant compensatory damages
for the injuries suffered including an uptick for aggravated damages in
the sum of $120,000.00.
163. On the award of compensatory damages, totaling $126,000.00,
the defendants shall pay interest at the rate 2.5 percent from the date
of service of the claim form on the 1st Defendant, the 7th August 2017
to the date of judgment.
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164. The defendants shall pay the claimant special damages in the
sum of $3,500.00. Interest on special damages shall be paid at the rate
of 1.5% from the 20th April 2013 to date of judgment.
165. The defendants shall pay the claimant’s costs in the amount of
