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Trinidad and Tobago High Court |
] [Hide Context]
H.C.A. NO. S-184A of 2003
H.C.A. NO. 409 of 2003 (P.O.S)
CLAIM NO. CV 2006-00986
AND TOBAGO
APPEARANCES:
Ms. Tricia Bhagwandeen for the Claimant
Ms. Carla Soverall and Mr. Haroon Ramkaransingh instructed by
Ms. Grace Jankey for the Defendant
A. INTRODUCTION/SUMMARY
1. The central issue to be determined in the instant case is whether the Attorney
General is vicariously liable for the torts committed by Corporal Ernest Bridgelal, a member of the Trinidad and Tobago Police Service, against the Claimant, Mahadeo Sookhai, on May 29, 2001. This matter involved two allegations, one of assault and battery by a police officer and a civilian on the Claimant, and the other of false imprisonment of the said Claimant for half-an-hour. The said allegations arose out of an incident where the Claimant was allegedly almost run over by a vehicle in which Cpl Bridgelal was travelling, and thereafter beaten by Cpl. Bridgelal and the driver of the vehicle, Ashram Ramsaran.
2. The major issue of fact for determination was whether the injuries sustained by the Claimant were as a result of the assault and battery by Cpl. Bridgelal and the driver of the vehicle, or whether the injuries were sustained as a result of the Claimant, in a drunken stupor, falling to the left front side of the vehicle.
3. The other issues arising for consideration were:
whether or not the Claimant was unlawfully arrested and falsely imprisoned;
whether the Claimant could obtain redress for constitutional breaches.
4. I have found the State to be vicariously liable for both torts of assault and battery and false imprisonment on the ground that Cpl Bridgelal’s acts were so closely connected with his employment that it would be just and reasonable to hold his employer liable. As such, damages were awarded in respect of the torts of assault and battery and false imprisonment.
5. With respect to the constitutional breaches, I have made the following declarations:
A declaration that there has been a breach of the Claimant’s constitutional right to security of the person;
A declaration that the refusal and/or omission of the police to inform the Claimant of the reason for his arrest or detention was unconstitutional and illegal. (See section 5 (2) (c) (i) of the Constitution); and
A declaration that the refusal and/or omission of the police to inform the Claimant upon his arrest and/or detention of his right to retain and/or instruct without delay a legal adviser of his choice and to hold communication with him was unconstitutional and illegal. (See section 5 (2) (c) (ii) of the Constitution.)
6. I also awarded damages in the sum of seventy-six thousand dollars ($76,000.00) as follows:
1. (a) Assault and battery $25,000.00
(b) Aggravated damages $10,000.00
(c) Exemplary damages $20,000.00
2. False imprisonment $ 6,000.00
3. Breach of the Claimant’s constitutional $15,000.00
right to security of the person
B. ANALYSIS OF THE LAW OF VICARIOUS LIABILITY
7. Vicarious liability is a species of strict liability. It is liability for a tort not necessarily premised on any culpable act or omission on the part of the employer; an employer is made legally answerable for the fault of his employee: Lister v. Hasley Hall Ltd. [2002] 1 AC 215 (HL) [65] Lord Millett. The theoretical underpinning of the doctrine is unclear. In Imperial Chemical Industries Ltd. v. Shatwell [1964] UKHL 2; [1965] A C 656 (HL) 685, Lord Pearce recognised the jurisprudential basis of the doctrine as being underpinned by a combination of policy considerations when he stated: “The doctrine of vicarious liability has not grown from any very clear, logical or legal principle but from social convenience and rough justice.” Fleming, Law of Torts, 9th edition (1998) pp. 409-410, identified these policy considerations as representing “a compromise between two conflicting policies: on the one end, the social interest in furnishing an innocent tort victim with recourse against a financially responsible defendant, on the other, a hesitation to foist any undue burden on business enterprise.”
8. To hold otherwise would permit employers to unleash the most dangerous of characters on the citizenry without being legally responsible. That would result in, for example, the employers of a children’s institution getting off scot-free for the ongoing sexual abuses committed by their employee, a convicted paedophile, in putting children to bed at nights.
9. However the doctrine must not be used as a runaway horse to impose legal responsibility on an employer for every tort committed by an employee. It is for the courts to decide, in a principled and rational way, on the articulation of general legal principles so as to lend certainty to the law. The question to be asked in all vicarious liability costs is whether, at the time the wrongful act was committed, the servant was acting within the scope of his employment. This is ultimately a question of fact and no simple test is appropriate to cover all cases: Clayton and Tomlinson, Civil Actions against the Police, 3rd Edn. (2004)
10. In Bazley v Curry (1999) 174 DLR (4th), a decision of the Supreme Court of Canada, Mchachlin J remarked at p. 62:
“The policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization). The question is whether there is a connexion or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence.”
11. In Lister the House of Lords applied the reasoning of the Canadian Supreme Court in Bazley v Curry. The warden of a school boarding house had sexually abused resident children. The issue that arose for determination was whether the employers were vicariously liable for the torts committed by the warden, their employee. It was held that having regard to the circumstances of the warden’s employment, including the close contact with the pupils and the inherent risks that it involved, there was a sufficient connection between the work that he had been employed to do and the acts of abuse that he had committed, for those acts to be regarded as having been committed within the scope of his employment, and the employers should be held vicariously liable for them. “It is critical that attention should be directed to the closeness of the connection between the employee’s duties and his wrongdoing and not to verbal formulae”: per Lord Millett at para. 70.
12. Lord Millett deprecated the use of sophistry in considering the scope of employment: para. 84. Lord Clyde at paras 42-43 was of the view that a broad approach was necessary:
“……. in considering the scope of the employment a broad approach should be adopted. Where there is an express prohibition imposed on the employee the distinction mentioned by Lord Dunedin in Plumb v Cobden Flour Mills Co. Ltd. [1914] AC 62,67 to which I have already referred has to be drawn, namely, whether it is a prohibition which limits the sphere of the employment or only one which deals with the conduct within the sphere of employment. In Ilkiw v Samuels [1963] 1 WLR 991, 1004 Diplock L J said that:
‘the decision into which of these two classes the prohibition falls seems to me to involve first determining what would have been the sphere, scope, course (all these nouns are used) of the servant’s employment if the prohibition had not been imposed. As each of these nouns implies, the matter must be looked at broadly, not dissecting the servant’s task into its component activities such as driving, loading, sheeting and the like-by asking: what was the job on which he was engaged for his employer? and answering that question as a jury would.’
Thus in Rose v Plenty [1975] EWCA Civ 5; [1976] 1 WLR 141 the employer was held liable where the prohibitions against the milk roundsman giving others a lift on his float and against employing others to help him in the delivery of the milk were regarded as prohibitions relating to the conduct of the work and not as limiting the sphere of the employment.
43. If a broad approach is adopted it becomes inappropriate to concentrate too closely upon the particular act complained of. Not only do the purpose and the nature of the act have to be considered but the context and the circumstances in which it occurred have to be taken into account.”
13. Clearly this broad approach to the scope of the employment caused Lord Millett to state at para. 79:
“So it is no answer to say that the employee was guilty of intentional wrongdoing, or that his act was not merely tortious but criminal, or that he was acting exclusively for his own benefit, or that he was acting contrary to express instructions, or that his conduct was the very negation of the employer’s duty.”
14. In Clinton Bernard v. AG of Jamaica, P.C. App. No. 30 of 2003, the Claimant went to the Central Sorting Office to make a long distance telephone call. He joined a queue of about fifteen (15) people. When his turn came he dialled. Suddenly a man identifying himself as a police officer demanded the phone from him so that he could use it. That man was Police Constable Paul Morgan. The Claimant refused to release the phone. P.C. Morgan said “boy me naw join no line, give me the phone.” There was evidence that in an emergency, it would be normal for an officer to go to the head of the line and demand to use the phone. The Claimant again refused to release the phone whereupon P.C. Morgan slapped him on the hand and then shoved him in his chest. When the Claimant still resisted, P.C. Morgan took two steps backwards, pulled out his service revolver and shot the Claimant at point blank range in his head. When the Claimant regained consciousness a short while after in the hospital, he was surrounded by police officers, including P.C. Morgan. In the hospital P.C. Morgan placed the Claimant under arrest for allegedly assaulting a police officer and handcuffed him to a bed. The charges against the Claimant were withdrawn a few months later. P.C. Bernard then sued the Attorney-General, whom he alleged was vicariously liable for P.C. Morgan’s acts, for assault, false imprisonment and malicious prosecution.
15. The Privy Council adopted the principles enunciated in the House of Lords in Lister as being of general application to intentional torts. The Privy Council favoured the adoption of the test propounded in Lister, which would make an employer vicariously liable where the torts of the employee were so closely connected with his employment, that it would be fair and just to hold the employers vicariously liable.
16. The correct approach, the Board emphasised, was “to concentrate on the relative closeness of connection between the nature of the employment and the particular tort, and to ask whether looking at the matter in the round, it is just and reasonable to hold the employers vicariously liable. In deciding this a relevant factor is the risks to others created by an employer who entrusts duties, tasks and functions to an employee”: para. 18.
17. The Privy Council held, applying Lister, that vicarious liability was established as the connection between the tort and the nature of the officer’s employment was sufficiently close. The Board assumed that P.C. Morgan was off-duty at the time, that the shooting had not taken place within the area for which he was responsible, and that P.C. Morgan said “police” as a pretext to allow him precedence. At paras 25-27 Lord Steyn stated:
“Three features of the case must be considered. It is of prime importance that the shooting incident followed immediately upon the constable’s announcement that he was a policeman, which in context was probably calculated to create the impression that he was on police business. As a matter of common sense that is what he must have intended to convey. It may be that the plaintiff, and others in the queue, viewed this invocation of police authority with some scepticism. But that purported assertion of police authority was the event which immediately preceded the shooting incident. And it is the fact that the plaintiff was not prepared to yield to the purported assertion of police authority which led to the shooting: compare Weir v Bettison (CA) [2003] ICR 708, para 12, per Denys Henry.
Approaching the matter in the broad way required by Lister, the constable’s subsequent act in arresting the Plaintiff in the hospital is explicable on the basis that the constable alleged that the plaintiff had interfered with his execution of his duties as a policeman. It is retrospectant evidence which suggests that the constable had purported to act as a policeman immediately before he shot the Plaintiff.
Moreover, one must consider the relevance of the risk created by the fact that the police authorities routinely permitted constables like Constable Morgan to take loaded service revolvers home, and to carry them while off duty. The social utility of allowing such a licence to off-duty policemen may be a matter of debate. But the State certainly created risks of the kind to which Bingham J A made reference. It does not follow that the using of a service revolver for a policeman would without more make the police authority vicariously liable. That would be going too far. But taking into account the dominant features of this case, viz that the constable at all times purported to act as a policeman, the risks created by the police authorities reinforce the conclusion that vicarious liability is established.”
18. The common law position is explicitly recognised in section 4 (2) of the State Liability and Proceedings Act, Chapter 8:02 by use of the words: “or purporting to perform those functions.” Section 4 (1) (2) and (4) of that Act provides:
“4. (1) Subject to this Act, the State shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject –
in respect of torts committed by its servants or agents;
…………………
(2) No proceedings shall lie against the State by virtue of subsection (1) (a) in respect of any act or omission of a servant or agent of the State unless the act or omission would apart from this Act have given rise to a cause of action in tort against that servant or agent or his estate.”
(4) Where any functions are conferred or imposed upon an officer of the State as such either by any rule of the common law or by statute, and that officer commits a tort while performing or purporting to perform those functions, the liabilities of the State in respect of the tort shall be such as they would have been if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the State.” [Emphasis Added]
19. The effect of the provision is to make the State vicariously liable for a tort committed by a police officer while performing or purporting to perform his functions.
20. The general duties of police officers are set out in section 35 of the Police Service Act, Chapter 15.01 and establish that police officers have wide powers:
“35 All police officers shall -
preserve the peace and detect crime and other infraction of the law;
apprehend and bring before Justices persons found committing any offence rendering them liable to arrest without warrant, or whom they may reasonably suspect of having committed any such offence, or who may be charged with committing any such offence;
summon before Justices and prosecute persons reasonably suspected of having committed offences in the following cases, namely –
in all cases of offences punishable on indictment where the alleged offence is of a serious nature, and it is, in the opinion of a police officer, desirable in the public interest that the prosecution should be undertaken by the Police Service, and
in all cases of offences, whether punishable on summary conviction or on indictment, where an order to that effect is made by the President or the Director of Public Prosecutions.
serve and execute at any time (including Sundays) all processes which they may be directed by competent authority to serve and execute;
keep order in and within the precincts and in the vicinity of all courts of competent jurisdiction during all sittings of such courts;
repress internal disturbances;
generally, do and perform all the duties appertaining to the office of a constable.
C. THE EVIDENCE
(i) Assault or accident?
21. It is now possible to examine the evidence against that background. The major issue of fact I must determine is whether the injuries sustained by the Claimant were as a result of the assault by Cpl. Bridgelal and the driver of the vehicle, Ashram Ramsaran, as the Claimant contends, or whether the injuries were sustained as a result of the Claimant, in a drunken stupor, falling to the left front side of the vehicle, as the Defendant contends.
(ii) General observations on the evidence
22. Having seen the witnesses, and considered the entirety of the evidence, I am satisfied that the Claimant has established on a balance of probabilities that he was assaulted by Cpl. Bridgelal and Ashram Ramsaran. In coming to my conclusion on this issue, I was impressed by the demeanour of the Claimant, who appeared to me to be a very simple person, notwithstanding the fact that he had attended secondary school. Further, even though Cpl. Bridgelal looked composed throughout, his version of the events just did not make sense . Moreover, when the testimony of Cpl de Leon is put in the mix, it appears to me that there was a deliberate attempt by Cpl de Leon to try as far as possible to record a sanitised version of the report made by the Claimant, which version would prove the least harmful to Cpl. Bridgelal. Additionally it appears to me that Cpl. De Leon, at some time after the statement was recorded from the Claimant, inserted at the end of that statement an additional statement, “I need no further action,” to assist in suppressing any police investigations taking place with respect to the conduct of Cpl. Bridgelal.
23. In all the circumstances of the case, I accept the Claimant’s version as to the manner of the assault. Moreover I have attached significant weight to the medical evidence which corroborates the testimony of the Claimant, and which makes it unlikely that the injuries were sustained in the manner contended for by the Defendant. Additionally the Defendant filed a witness statement with respect to Ashram Ramsaran, the driver of the motor vehicle. However, even though Ramsaran was present on the day of the trial after Cpl Bridgelal had been cross-examined, Mr. Ramkaransingh chose not to call Ramsaran. No explanation was offered as to the course adopted by Mr. Ramkaransingh until pressed by the Court at the stage of closing submissions. Mr. Ramkaransingh submitted that he was free to call any witness he chooses. When asked by the Court whether the Court could draw adverse inferences in the circumstances, Mr. Ramkaransingh contended that his decision was based on a strategic assessment of the case. In my view his assessment was flawed. Given the fact that the medical evidence was independent testimony which tended to support the Claimant’s contention that he was assaulted, and which tended to refute the Defendant’s contention of an accidental fall, coupled with the fact that the Claimant was alleging that not only was Cpl Bridgelal purporting to act in the execution of his duty, but Ramsaran as well participated in a brutal assault on him, the Court is entitled in all the circumstances to draw an adverse inference against the Defendant. The evidence of Ramsaran went to the very heart of the case. Phipson on Evidence, 16th Edn. (2005) at para. 11-15 makes the point that
“(W)here a party declines to call a witness in respect of whom he has served a witness statement, the court cannot compel the party to call him as a witness, but the court may draw an adverse inference against a party who fails to call a witness to deal with certain evidence.”
In Jaffray and Others v Society of Lloyd’s (2002) WL 1654876 Waller LJ at paras. 406-407 summarised the principles where such an inference could be drawn.
“406. Mr. Randall was not called to give evidence. It was somewhat unsatisfactory that a statement by him had been prepared and placed before the judge for his pre-reading. This case had many problems for the judge in terms of simply managing the case and, as explained in Part VIII below, he held that he had no power to compel Lloyd’s to call those witnesses whose statements had been read by him and that the appropriate course was to put the statements out of his mind, and treat the witnesses as uncalled. There was no challenge to his ruling on this aspect by the names represented by Mr. Goldblatt. Certain of the names in person have drawn attention to this aspect in their contention that the trial was unfair. We will deal with the ruling under that section of the judgment. But that still leaves the question of whether the judge should have drawn an adverse inference against Lloyd’s. It seems to us that on aspects where the evidence points in a direction against Lloyd’s in an area which could have been dealt with by Mr. Randall the judge should have drawn an adverse inference from Lloyd’s failure to call Mr. Randall deal with it. This does not mean that any allegation that the names make against Mr. Randall must be accepted because he did not give evidence. It simply means that where the evidence points in a certain direction an adverse inference can be drawn from a failure to call the witness to deal with it.
407. This conclusion seems to us to be in accord with the principles as to the drawing of adverse inferences summarised by Brooks LJ, after an extensive review of the authorities, in Wisniewski v Central Manchester Health Authority [1998] PIQR 324:
‘From this line of authority I derive the following principles in the context of the present case:
In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.
If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.
There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.
If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”
25. Finally Cpl. Bridgelal claimed that before this incident he did not know the Claimant. However the Claimant has provided a great deal of detail about Cpl Bridgelal and members of his family to make it more likely than not that the Claimant’s evidence is to be preferred on this issue. That would explain why Cpl. Bridgelal wanted to distance himself from any knowledge of the Claimant. It may also serve to explain to some extent why Ramsaran was not called.
(iii) Detailed examination of the evidence
26. Having regard to my observations on the testimony I find as follows:
The Claimant alleged that on May 29. 2001 he was at home. He denied drinking any alcohol on that day. He left home to go to the local parlour to purchase cigarettes. That parlour was a short distance from his home. At around 7, 7.30 p.m., while walking along the Eastern side of the Guayaguare Main Road, he noticed the headlights of a vehicle approaching him very quickly. That vehicle was travelling in a southerly direction. He turned around and the vehicle was about to hit him. He twisted his body on his right foot to avoid being hit. In doing so, he fell on the fender and bonnet of the left side of the vehicle. At that particular location where this happened, there was no pavement in the Eastern side, but only a short wall.
27. Suddenly a man jumped out of the car and shouted, “Police yuh under fucking arrest!” The man then proceeded to hit him with his closed fist on his nose bridge. He then recognised the man as a police officer by the name of Ernest Bridgelal. Cpl. Bridgelal was not in police uniform. He had known Cpl Bridgelal before. Cpl Bridgelal was the brother-in-law of his former employer, Nazim. He knew Cpl Bridglal was a police officer and knew him by his nickname “Chunky Dado.” No doubt this was in reference to Cpl Bridgelal’s size. He knew that Cpl Bridgelal lived in the vicinity of Agostini Settlement, Rio Claro.
28. After being hit by Cpl Bridgelal, he asked him why he was under arrest, and why did he hit him, and Cpl Bridgelal replied, “for interfering Nazim.” He then told Cpl. Bridgelal that he had never interfered with Nazim. Cpl Bridgelal then called out to the driver of the vehicle and said, “Boy he think he is ah fucking Magistrate or wat! Come leh we teach him ah lesson.”
29. The other man then jumped out of the vehicle. Cpl Bridgelal and this other man then proceeded to beat him mercilessly. He fell to the ground and blacked out during the beating. He vaguely remembered someone pulling his jersey and saying, “Yuh lock up! Who de fuck goh pay for this?” That was the driver of the vehicle speaking. The driver was pointing to a pair of glasses which seemed to be broken. He then recognised the driver as the brother-in-law of Cpl Bridgelal. It is common ground that the other person present at the scene was Ashram Ramsaran, also called Bobby, the brother-in-law of Cpl. Bridgelal. Having regard to the fact that the Claimant had blacked out and then set out what his vague recollection was, it seems unlikely that Ramsaran would, in those circumstances, be pointing to Bridgelal’s glasses, and saying to the Claimant that he “lock up etc.” In those circumstances I find that words ascribed to Ramsaran were in fact uttered by Bridgelal.
30. Cpl Bridgelal then told him to go inside the vehicle because he was under arrest. He was about to go into the vehicle, he was halfway in, when the driver said, “Doh let he dirty up my car nah! Yuh better walk to the station!” At that point he was in excruciating pain, bleeding from his nostrils and mouth, and his cream jersey was covered with blood. He then started walking towards the police station. On his way to the Rio Claro Police Station he had to pass in front of his house. He collapsed in front of his gate. When he woke up the following morning (May 30), he was in his bed.
31. On the morning of May 30th his brother took him to their family doctor, Dr. Carl Ferdinand. He was bleeding from both nostrils, was coughing up blood and cold, and had a sharp pain over his heart and a headache. Dr. Ferdinand advised him to seek further treatment at the San Fernando General Hospital because of the possibility of a fractured nasal bone and fractured ribs. Later on that said day he went to the San Fernando General Hospital where he was medically examined.
(iii)(a) Medical Evidence
32. The medical report of Dr. Carl Ferdinand was, save for one sentence, admitted as evidence of the truth of the contents. Dr. Ferdinand’s examination revealed the following:
Tender and swollen nose bridge.
Bilateral periorbital haematoma (i.e bilateral “ black eyes”).
Tenderness and swelling of both temples.
Tenderness and swelling of left anterior chest wall.
Abrasions anterior aspect of both knees.
33. The medical report from the San Fernando General Hospital was also, save and except for part of one sentence, admitted as evidence of the truth of the contents. This revealed that after being seen in the Accident and Emergency Department, the Claimant was referred to the Ear, Nose and Throat Department.
34. On examination, the Claimant was found to have a fractured nose, bruises to both knees, and some left lower chest mass tenderness. The Claimant was advised to use ice packs and analgesics and given a clinic appointment. Based on an assessment by the Ear, Nose and Throat Registrar on June 14, 2001, the Claimant was advised of the need for Rhinoplasty for which he was given the date June 6, 2002.
35. On September 23, 2001 Dr. Carl Ferdinand saw the Claimant again. The Claimant complained of recurrent swelling under the left eye and in the left cheek. His examination revealed a non-tender swelling in the prominence of the cheek in the left infraorbital area.
(iii)(b) The report of the incident
36. With respect to the incident of May 29, 2001 the Claimant testified that on May 30, 2001 he went to the Rio Claro Police Station to make a report. It is not disputed that the report was made to WPC Fonrose at 5.00 p.m. The station diary extract of May 30, 2001 revealed that the Claimant complained that two men alighted from a car and dealt him several blows to his head. One of the men he knew as “Chunki Dado,” and the other was unknown to him. I pause here to note that the Claimant was from the very inception claiming that he was assaulted by two men. The station diary extract also revealed that the Claimant left the station at 5.15 p.m. after being advised to return at 9.00 a.m. on May 31, 2001.
37. On May 31, 2001, the Claimant did not show up at the Rio Claro Police Station at the appointed time. As a result Cpl. De Leon sent a group of uniformed police officers in a van to fetch the Claimant. The officers informed him that he had to make a statement about his arrest by Cpl. Bridgelal. The Claimant went to the station and gave a statement to Cpl de Leon. There was some issue as to whether the Claimant gave that statement to Cpl de Leon.
38. I accept the Claimant’s version as to the circumstances in which the statement was given. The Claimant testified that during the recording of that statement, Cpl. de Leon asked him certain questions and he answered same. After Cpl de Leon recorded the statement, he read over the statement to the Claimant. The Claimant told Cpl de Leon there was certain information missing, such as the fact that Cpl Bridgelal had told him that he was under arrest. Cpl de Leon then pointed his finger at the Claimant and said, “Look, doh give no trouble here you know. Make sure the man doh lorse he wuk!” The Claimant testified that he became scared at this point and despite his objections, he was asked to sign a statement which omitted several relevant matters.
39. In cross-examination the Claimant expanded on his evidence-in-chief. The Claimant testified that after Cpl de Leon had finished reading the statement to him and he had told de Leon that certain things were missing, such as Cpl Bridgelal telling him he was under arrest, Cpl de Leon got vex, Cpl de Leon “had an attitude.”
40. As I said earlier, I find that there was a deliberate attempt by Cpl de Leon to try, as far as possible, to record a sanitised version of the report made by the Claimant, which version would prove the least harmful to Cpl Bridgelal. That would explain as well why, on the day before (May 30, 2001), the Claimant made a report of being assaulted by two men, and in the report of May 31, 2001, there was reference to an assault by Cpl. Bridgelal alone. It seems to me, and I so find, that the aim was to try and confine the assault to Cpl Bridgelal alone, and not make any reference in that statement to Ashram Ramsaran.
41. That would also explain why Cpl de Leon, at some time after the statement was recorded from the Claimant, inserted at the end of that statement an additional sentence, “I need no further action,” to assist in suppressing any police investigations into the conduct of Cpl Bridgelal and Ashram Ramsaran. It follows that I accept the evidence of the Claimant on this issue.
42. In coming to this latter finding, I note that there was not one iota of evidence either in chief or in the initial cross-examination of Cpl de Leon, which hinted at the Claimant not wanting any further police action in this matter. Indeed Cpl de Leon was proceeding all day as though he expected, given the report, that the matter would be investigated by someone of a rank higher than that of corporal. Rhetorically, why would Cpl de Leon expect the matter to be investigated when the Claimant had indicated he wanted no further action!
43. It was only after the matter was adjourned and the Court requested the presence of Cpl de Leon some three weeks later, that he revealed for the first time that the Claimant had indicated that he wanted no further action. In passing, I note that this issue seemed to have escaped the scrutiny of both Attorneys.
(iii) (c) Harassment of the Claimant
44. Another disturbing feature of this case is that the Claimant, who was a man of good character, testified in chief that since this incident he has been constantly harassed by the officers of the Rio Claro Police Station. Whenever he passed in front the station, officers would stop and interrogate him as to, for example, where he was going, where he was coming from, and what he was doing for a living. From time to time they would mock him by saying, “Dis is the man dat Chunky Dado beat up boy!” As a result of the taunts and constant harassment, he had to move out of the area shortly after the incident and live with his brother at Borde Narve Village, San Fernando for about a year.
45. In that regard the conduct of the police officers of the Rio Claro Police Station involved in such despicable behaviour as is outlined in this judgment amounted to a gross abuse of power, violating the very motto of the police service, “To protect and serve,” by applying same in a discriminatory manner designed to close ranks and protect one of their own. It is once again an example of abuse of power by persons who wield a great degree of influence or power over the poor and the powerless.
(iii) (d) Rejection of Bridgelal’s evidence
46. It follows from what I have found that I have rejected Cpl Bridgelal’s account of the manner in which the injuries were sustained by the Claimant.
D. CONCLUSION ON ASSAULT AND BATTERY
47. Having regard to the testimony of Cpl. Bridgelal, there being no other evidence to the contrary, I am inclined to accept that he was off duty at the material time. However police officers have wide powers, including the powers of arrest while not on duty. In considering the powers of the police, the Court of Appeal [UK] in Weir v Bettison [2003] I.C.R 708 highlighted the wide powers conferred on police officers and the consequential greater prospect of their employers being vicariously liable. At para.11 Sir Denis Henry stated:
“The powers of a police officer are conferred on him by law, by virtue of his office, so there is no need for any authorisation by his superiors.
That authority gives the constable ample powers, and in practice ‘the liability of a chief constable for wilful acts by police officers is more extensive than the vicarious liability of an employer but is not without limit’ (Winfield and Jolowicz 16th edn. Para. 20.14.)”
48. It is of paramount importance, having regard to my findings of fact, that immediately prior to the assault, and indeed at various times during and after the assault, Cpl Bridgelal was purporting to act as a police officer. Moreover the conduct of certain police officers at Rio Claro police station subsequent to the assault only served to prevent an independent and impartial investigation into this incident, and was designed to at least protect one of their own.
49. Approaching the matter in the broad way required by Lister and applying the test of whether Cpl Bridgelal’s acts were so closely connected with his employment that it would be just and reasonable to hold his employer liable, the answer must be a resounding yes. In those circumstances I hold that the Attorney General is vicariously liable for the assault and battery committed against the Claimant. For the tort of assault and battery, I am also of the view that this is an appropriate case for the award of exemplary damages for the oppressive arbitrary or unconstitutional action by the servants of the State.
E. FALSE IMPRISONMENT
50. A minor issue arose as to whether or not the claimant was unlawfully arrested and imprisoned. With respect to the claim for false imprisonment, the facts reveal that after the Claimant was struck by the vehicle, Cpl Bridgelal immediately jumped out of the vehicle and shouted, “Police yuh under fucking arrest!” The Claimant was then subjected to a vicious assault, after which he was told to go inside the vehicle because he was under arrest. He was halfway in the vehicle when the driver (Ashram Ramsaran) said, “Doh let he dirty up my car nah! Yuh better walk to the station!” The Claimant then began walking towards the station but collapsed in front of his gate. The Claimant did not indicate how long the incident lasted, but Cpl. Bridgelal said between 25 to 30 minutes.
(i) AN ANALYSIS OF THE LAW ON FALSE IMPRISONMENT
51. Clerk and Lindsell on Torts, 18th edn. (2003) para 13-19 defines the tort of false imprisonment as follows:
“The tort of false imprisonment is established on proof of:
the fact of imprisonment; and
absence of lawful authority to justify that imprisonment.
Imprisonment is complete deprivation of liberty for any time, however short, without lawful cause.”
52. In Bastien v Kirpalani’s Ltd (1979) H.C.A No. 861 of 1975, Deyalsingh J explained the principle:
“It is clear from the authorities that to constitute false imprisonment there must be a restraint of liberty ….. a taking control over or possession of the plaintiff or control of his will. The restraint of liberty is the gist of the tort. Such restraint need not be by force or actual compulsion. It is enough if pressure of any sort is present which reasonably leads the plaintiff to believe that he is not free to leave or if the circumstances are such that the reasonable inference is that the plaintiff was under restraint, even if the plaintiff was himself unaware of such restraint. There must in all cases be an intention by the defendant to exercise control over the plaintiff’s movements or over his will, and it matters not what means are utilized to give effect to this intention. The circumstances of each case have to be considered and these circumstances will, of course, vary and sometimes vary considerably from case to case. In each the question is: “On the facts as found, did the defendant exercise any restraint upon the liberty of the plaintiff?” It is a question of fact, turning sometimes on an isolated link in the chain of circumstances, and the authorities, with rare exceptions, are helpful only on the general principles laid down.”
(ii) CONCLUSION ON FALSE IMPRISONMENT
53. In the instant case, the Claimant was expressly informed that he was under arrest prior to the assault. After the assault, he was told to get inside the vehicle because he was under arrest. After attempting to get into the vehicle he was then commanded to walk to the station, but collapsed on the way. It is clear that the Claimant was completely deprived of his liberty for approximately half-an-hour without lawful cause, and that the Defendant would be liable for the tort of false imprisonment. By parity of reasoning, it would also follow that the State would be vicariously liable for the tort of false imprisonment. I would hasten to add, however, that the quantum of damages should be small.
(i) Reliefs Claimed
54. I now turn to the assessment of damages. The Claimant by his amended Writ of Summons claimed damages for the following:
Damages for unlawful arrest and/or detention including exemplary and/or aggravated damages;
Damages for assault and battery, including exemplary and/or aggravated damages;
A declaration that the arrest and/or detention of the Claimant was unconstitutional and illegal;
A declaration that the refusal and/or omission of the police to inform the Claimant of the reason for his arrest and/or detention was unconstitutional and illegal;
A declaration that the refusal and/or omission of the police to inform the Claimant upon his arrest and/or detention of his right to retain and/or instruct without delay a legal adviser of his own choice and to hold communication with him was unconstitutional and illegal;
A declaration that the refusal and/or omission of the police to inform the Claimant upon his arrest and/or detention of his right to communicate with a friend or relative by way of a telephone call or otherwise and/or failure to allow him to make such a telephone call is unconstitutional and illegal.
55. As is immediately apparent, the claim includes damages for nominate torts as well as certain constitutional reliefs inclusive of damages. In Tamara Merson v AG of Bahamas et al [2005] UKPC 38 the Privy Council cautioned against duplication where both types of awards were being contemplated.
(ii) Damages for assault and battery
56. With respect to the assault and battery, the Claimant suffered the following injuries:
a tender and swollen nose bridge. (A subsequent examination revealed a fractured nose.)
bilateral periorbital haematoma (i.e. bilateral “black-eyes”);
tenderness and swelling of both temples;
tenderness and swelling of left anterior chest wall;
abrasions anterior aspect of both knees.
Further the Claimant has to date not had the Rhinoplasty on his nose.
57. Where an assault and battery results in physical injury to a claimant, the damages will be calculated as in any other action for personal injury. Mc Gregor on Damages, 16th edn. (1997) para. 18-44, The same heads of general damages, such as pain and suffering, loss of amenities, loss of expectation of life, and loss of earnings, are therefore applicable. “However, beyond this, the tort of assault affords protection from the insult which may arise from interference with the person. Thus a further important head of damage is the injury to feelings, i.e. the indignity, mental suffering, disgrace and humiliation that may be caused.”: Mc Gregor ibid.
58. The Claimant was assaulted for allegedly interfering with someone who was related to a senior police officer in the district. Even after denying same, he suffered the indignity of being belittled and humiliated “Boy he think he is ah fucking Magistrate or wat! Come leh we teach him a lesson”, and then put in his place by suffering a severe beating. In the circumstances I am of the view that an award of aggravated damages would also be appropriate.
59. In Merson ibid. at para. 15, their Lordships expressed a preference for itemizing the damages awarded under each tort, and indicating in an appropriate case the amounts ordered for aggravated damages and exemplary damages.
60. There is a dearth of authority on the damages awarded for a broken nose simpliciter. However Daly’s Supplement on Damages for Personal Injuries (2007) provides a range of awards for minor injuries to the face from six thousand three hundred and forty-three dollars ($6,343.00) to eighteen thousand, one hundred and seventy-five dollars ($18,175.00).
61. In Ramanoop v AG [2005] UK PC 15, Bereaux J at first instance (H.C.A. No.
S-0047/2004) assessed damages in the sums of eighteen thousand dollars ($18,000.00) and thirty-five thousand dollars ($35,000.00) respectively for breaches of the Applicant’s constitutional right to liberty and security of the person. Bereaux J. at page 19 found:
“The wrongs perpetuated on the Applicant were outrageous. He was wrongly detained at the police station for two (2) hours without being charged. He had been severely beaten and taken from his home to the police station by motorcar, dressed only in his underwear. While at the station he was again beaten, his head banged against a wall, he was soaked in the shower and rum poured onto his wounds. These actions were particularly egregious breaches of the Applicant’s right to liberty and security of the person.”
62. In Mitra Harracksingh v. AG, H.C.A. No. 2241 of 1992, Mendes J (as he then was) assessed damages for assault and battery in the sum of $15,000 (award made on September 7, 1998). The Claimant in that case suffered injuries resulting from the blows to his head when he was slammed into the car door and against the rear of the driver’s seat when the police officer stopped the car suddenly. He also lost a tooth in the melee, had abrasions to his head, finger and toes, and suffered a whiplash injury causing him to wear a cervical collar for about six (6) months. The Claimant was rendered incapable of lifting moderately heavy things, and gets migraine headaches from time to time. He also received a sharp kick to the groin area. It is important to note that a substantial sum of thirty thousand dollars ($30,000.00) was awarded as aggravated damages to cover the assault and battery, false imprisonment and malicious prosecution.
63. In all the circumstances I assess the Claimant’s damages for assault and battery in the amount of twenty-five thousand dollars ($25,000.00). Additionally this is an appropriate case for the award of aggravated damages and I award the sum of ten thousand dollars ($10,000.00) for same.
64. I am also of the view that this is an appropriate case for the award of exemplary damages for the oppressive, arbitrary or unconstitutional action by the servants of the State. The outrageous conduct on the part of the servants of the State is deserving of public condemnation and excoriation. The central requirement for exemplary damages has always been the presence of outrageous conduct disclosing malice, fraud, insolence, cruelty and the like. Mc Gregor ibid. para. 447
65. After the unlawful assault and battery and imprisonment, the Claimant was ordered to walk to the police station as he was too dirty to get into the car. Two days after (May 31, 2001) officers came and collected him and took him to the police station. There he was to report his victimization. Instead he was further victimized. He was made to sign a sanitised statement which did not truly reflect the extent of Cpl Bridgelal’s culpability, and which omitted any reference to Ashram Ramsaran’s (Cpl Bridgelal’s brother-in-law) complicity. At a later point in time Cpl de Leon dishonestly inserted a sentence to the effect that the Claimant wanted no further police action. Certain members of Rio Claro police station were closing ranks to protect one of their own. To date Cpl Bridgelal has not been questioned by a single officer as to his role in this sordid affair. Nor has Ashram Sinanan. Additionally certain members of the Rio Claro police station by their mocking and jeering of the Claimant effectively “ran him out of town” for a while. It seems to me that in the circumstances of this case an award of exemplary damages can play an important role in sending the right message that the courts will intervene to protect the poor, the powerless and the downtrodden.
66. As Lord Nichols said in Kuddus v Chief Constable of Leceistershire [2002] AC122 at para. 63:
“The availability of exemplary damages has played a significant role in buttressing civil liberties, in claims for false imprisonment and wrongful arrest. From time to time cases do arise where awards of compensatory damages are perceived as inadequate to achieve a just result between the parties. The nature of the defendant’s conduct calls for a further response from the courts. On occasion conscious wrongdoings by a defendant is so outrageous, his disregard of the plaintiff’s rights so contumelious that something more is needed to show that the law will not tolerate such behaviour. Without an award of exemplary damages, justice will not have been done. Exemplary damages, as a remedy of last resort, fill what otherwise would be a regrettable lacuna.”
67. I have considered the Court of Appeal’s decision in Alphie Subiah v AG Civ. Appeal No. 10 of 2005. Archie JA writing for the majority observed that awards for punitive damages tend to be conservative. In Mitra Harracksingh ibid. Mendes J awarded exemplary damages of twenty-five thousand dollars ($25,000.00)
68. In the instant case I had proposed to award exemplary damages in the sum of twenty-five thousand dollars ($25,000.00), but as I am granting a declaration that the Claimant’s constitutional right to security of the person has been breached, and bearing in mind the admonition in Tamara Merson, I award exemplary damages in the sum of twenty thousand dollars ($20,000.00).
(iii) Damages for False Imprisonment
69. In assessing the Claimant’s damages for false imprisonment for approximately half-an-hour, Mc Gregor ibid describes the computation thereof at para 1850:
“The details of how the damages are worked out in false imprisonment are few: generally it is not a pecuniary loss but a loss of dignity and the like, and is left much to the jury’s or judge’s discretion. The principal heads of damage would appear to be the injury to liberty, i.e. the loss of time considered primarily from a non-pecuniary viewpoint, and the injury to feelings, i.e. the indignity, mental suffering, disgrace and humiliation, with any attendant loss of social status.”
70. In quantifying the damages, I have been assisted by Alphie Subiah ibid.where Kangaloo JA at paras. 8 and 9 summarised the awards made for deprivation of liberty.
71. In Mitra Harracksingh ibid. Mendes J in 1997 awarded the sum of five thousand dollars ($5,000.00) for damages for false imprisonment, where the plaintiff was detained over a period of one-and-a-half (1½) to two (2) hours. Also in 1997, Stollmeyer J in Dipchand Surujbally awarded twenty-seven thousand five hundred dollars ($27,500.00) for detention over a period of fifty-five (55) hours. In HCA No. 801 of 1997 Smith J in Ronnie Abraham v AG awarded thirty-five thousand dollars ($35,000.00) for two (2) hours of unlawful detention (the award consisting of ten thousand dollars ($10,000.00) compensatory, ten thousand dollars ($10,000.00) aggravated, and fifteen thousand dollars ($15,000.00) exemplary damages).
72. In 1999 Bereaux J in Mark Jones v AG, HCA No. 19 of 1998, awarded the sum of fourteen thousand dollars ($14,000.00) for unlawful detention in prison over a period of fourteen (14) days. Again in 1999 Mendonca J (as he then was) in Huggins v AG HCA No. 1714 of 1998 awarded the sum of seventy thousand dollars ($70,000.00) ($60,000.00 compensatory and $10,000.00 aggravated damages) as damages.
73. In 2000 Master Doyle in Stephen Singh v. AG, H.C.A. No. 3490 of 1991 awarded thirty-five thousand dollars ($35,000.00) for unlawful detention for a period of two (2) hours ($10,000.00 compensatory, $10,000.00 aggravated and $15,000.00 exemplary damages). In H.C.A. Nos. 1403 of 2000 and 1404 of 2000, Master Sobion in Arsho Mahabir v AG awarded the sums of ten thousand dollars ($10,000) and thirty thousand dollars ($30,000.00) for periods of detention of nine (9) hours and fifty-two (52) hours respectively.
74. In 2002 Mendonca J (as he then was) awarded ten thousand dollars ($10,000.00) for false imprisonment for a period of about six (6) hours.
75. In December 2006, in Alphie Subiah ibid, the Court of Appeal awarded the sum of seventy thousand dollars ($70,000.00) in a public law action involving the deprivation of the Applicant’s liberty for a period of approximately six (6) hours in police custody.
76. In the instant case I am of the view that a sum of six thousand dollars ($6,000) ought to be awarded as damages for false imprisonment for the period of detention of approximately half-hour.
G. CONSTITUTIONAL BREACHES
77. The enshrined rights are set out at Chapter 1, Part 1 of the Constitution. The relevant parts of section 4 of the Constitution provide:
“4. It is hereby recognized and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex the following fundamental human rights and freedoms, namely:-
the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;
the right of the individual to equality before the law and the protection of the law;
the right of the individual to respect for his private and family life;
5.(1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgment or infringement of any of the rights and freedom hereinbefore recognised and declared.
(2) Without prejudice to subsection (1), but subject to this Chapter and to section 54, Parliament may not –
authorise or effect the arbitrary detention, imprisonment or exile of any person;
impose or authorise the imposition of cruel and unusual treatment or punishment;
deprive a person who has been arrested or detained:-
of the right to be informed promptly and with sufficient particularity of the reason for his arrest or detention.
of the right to retain and instruct without delay a legal adviser of his own choice and to hold communication with him;
………………
deprive a person of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the aforesaid rights and freedoms.
At Part V of the Constitution section 14 (1) and (2) provide:
14(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion
(2) The High Court shall have original jurisdiction -
(a) to hear and determine any application made by any person in pursuance of subsection (1); and
(b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (4),
and may, subject to subsection (3), make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this Chapter to the protection of which the person concerned is entitled.”
78. In my view there is a degree of overlap between the tort of assault and battery and the fundamental right of the individual to security of the person under section 4 (a) of the Constitution. However to underscore the importance of this particular constitutional right in the circumstances of the instant case, where there has been misuse of State power, I am of the view that I ought to make an appropriate declaration. I have already awarded a discounted sum for exemplary damages for the tort of assault and battery to allow me to award a reasonable sum as damages by way of constitutional redress.
79. In the circumstances there will be a declaration that there has
been a breach of the Claimant’s constitutional right to
security of the person. (See section 4 (a) of the Constitution.) In
the exercise of my discretion I award the sum of fifteen thousand
dollars ($15,000.00) as damages for the said breach. (See Tamara
Merson ibid paras. 16-20; AG of Trinidad
and Tobago v. Ramanoop [
2005] UKPC 15 paras. 17-20).
80. The other two declarations that I am prepared to make without making an award for damages are:
a declaration that the refusal and/or omission of the police to inform the Claimant of the reason for his arrest or detention was unconstitutional and illegal (see section 5 (2)(c)(i) of the Constitution); and
(ii) a declaration that the refusal and/or omission of the police to inform the Claimant upon his arrest and/or detention of his right to retain and/or instruct without delay a legal adviser of his own choice and to hold communication with him was unconstitutional and illegal. (See section 5 (2)(c) (ii) of the Constitution).
The violation of these constitutional rights are not coterminous with the Claimant’s cause of action at common law: Tamara Merson ibid para. 18.
81. In Ramsarran v AG of Trinidad and Tobago [2005] 2AC 614 the Privy Council in construing section 5 (2) (c) of the Constitution stressed the need for a single and straightforward rule which can be applied in the case of all arrests. At paras 11 and 12, Lord Carswell stated:
“11. In their Lordships’ view the fundamental reason why section 5(2)(c) covers cases of non-payment of fines is that it is necessary to ensure that persons incorrectly arrested or detained for reasons other than suspicion of having committed a criminal offence have an effective and practical means of securing their release as soon as possible. That may be illustrated by the case before the Board. If the appellant had been informed of his right to legal advice and had been given the necessary facility to contact a lawyer, the lawyer could have lent his weight to a demand that the records be checked forthwith for payment of the fine, and could have made a speedy habeas corpus application if this did not secure the appellant’s early release. One would have expected that a lawyer’s intervention would had effected the appellant’s release long before three days had elapsed. One may readily envisage other cases in which access to legal advice would be of material assistance to a person arrested and detained. In a case of mistaken identity he may be arrested for non-payment of a fine imposed upon another person. It is possible to envisage other occasions apart from pre-retrial situations on which unjustified arrests might take place. In none of them could it be said that the requirement of access to legal advice would be unnecessary, let alone “farcical”, as Sharma JA suggested. On the contrary, it seems to their Lordships that it would constitute a very real help in time of trouble.
12. Mr. Knox suggested, as a fallback position in case his main argument was not accepted, that the right to legal advice should be limited to cases where there was a real challenge to the legality of the arrest. Whether or not this would be sufficient in principle to satisfy the requirements of due process of law, as he submitted, it does not appear to their Lordships that such a provision would be workable in practice. In their opinion a simple and straightforward rule is required, which can be operated in the case of all *620 arrests, a rule that does not demand that police officers draw distinctions between real challenges and others and would not give rise to avoidable litigation. This can only be effectively achieved if there is a comprehensive rule that on any occasion when persons are arrested or detained they are entitled to the constitutional protection specified in section 5 (2) (c). They accordingly conclude that the apparent meaning of that provision is correct, and there is no good reason to cut it down or dilute it. On its true construction it is not limited in the way accepted by the Court of Appeal.”
82. In the instant case, if the Applicant had been informed upon arrest of his right to retain and/or instruct a lawyer, his lawyer could have prepared an accurate statement as to what transpired for submission by the Claimant to the police, or could even have accompanied him to the police station the next day.
83. In the circumstances there will be judgment for the Claimant. I make the following orders:
1. (a) Damages for assault and battery $25,000.00
(b) Aggravated damages $10,000.00
(c) Exemplary damages $20,000.00
2. Damages for false imprisonment $ 6,000.00
There will be interest on the damages awarded at paragraphs (1) and (2) at the rate of 6% per annum from date of writ, namely 3rd February, 2003 until judgment herein.
A declaration that there has been a breach of the Claimant’s constitutional right to security of the person.
Redress for breach of the constitutional right $15,000.00
A declaration that the refusal and/or omission of the police to inform the Claimant of the reason for his arrest or detention was unconstitutional and illegal. (See section 5 (2) (c) (i) of the Constitution).
A declaration that the refusal and/or omission of the police to inform the Claimant of the reason for his arrest or detention was unconstitutional and illegal. (See section 5 (2) (c) (i) of the Constitution).
Costs are to be paid by the Defendant to the Claimant assessed in the sum of Twenty-five thousand dollars ($25,000.00).
DATED 15th day of October, 2007.
………………………………..
PRAKASH MOOSAI
JUDGE
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