Attorney-General v Maurice Francis

• Jurisdiction: Jamaica
• Judge: RATTRAY, P. , HARRISON, J.A. , LANGRIN, J.A.(Ag).
• Judgment Date: 26 March 1999
• Neutral Citation: JM 1999 CA 17
• Judgment citation (vLex): [1999] 3 JJC 2607
• Court: Court of Appeal (Jamaica)
• Date: 26 March 1999

IN THE COURT OF APPEAL

COR:

THE HON. MR. JUSTICE RATTRAY, P THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE LANGRIN, J.A. (AG.)

BETWEEN

THE ATTORNEY-GENERAL

APPELLANT

AND

MAURICE FRANCIS

RESPONDENT

Nicole Foster and N. Simmonds Director of State Proceedings

Charles Campbell Arlene Harrison-Henry

ASSAULT AND BATTERY - Damages - Double counting - Whether damages awarded was too high

RATTRAY, P.

1 This appeal challenges the quantum of damages awarded to the respondent by Courtenay Orr, J in the Suit brought by the respondent against the Attorney-General and District Constable Owen Campbell. The respondent claimed damages for assault and battery. Liability was not contested and District Constable Campbell was not a party to the appeal. Indeed, he had not been served with the writ of summons and therefore did not participate in the trial.

2 The respondent was shot by District Constable Campbell whilst the District Constable was carrying out police duties. As a result the respondent suffered serious injuries.

3 The facts so far as they are necessary for the purpose of the assessment of damages are thus stated in the judgment of Orr, J under the heading:

"The Court's Findings of fact

On the 14th September, 1989 at about 5.00 p.m. the plaintiff was walking through a short cut behind the Annotto Bay Police Station when he saw the first defendant pointing a gun at him. The first defendant fired a shot at him. It missed him. He turned and ran but the first defendant fired a second shot which entered his body through his back over the 5th thoracic spine."

4 The findings of the Court with respect to the injuries suffered may be briefly summarised as follows:

• (i) bullet entry wound in the back at the level at the 4th and 5th thoracic vertebrae;

• (ii) total disruption of the spinal cord at that level;

• (iii) damage to the right lung which was partially collapsed;

• (iv) a wound to the mouth and one to the nose occurring when the respondent fell to the ground.

5 The consequences to the respondent of these injuries were:

• (i) complete paralysis from the level of the bullet wound down;

• (ii) permanent impotence as well as incontinence as to urine and faeces;

• (iii) pressure sores arising from his hospitalisation from which he will continue to suffer for the rest of his life.

6 The medical assessment was 60% permanent impairment of the whole person.

7 The trial judge's award on the assessment of damages was the sum of $9,170,173.52; being (a) special damages $57,935.52 with interest at 3% from 14th September 1989 to 20th of December, 1994 (b) general damages $9,112,240.00 being (i) $3.5.m for pain and suffering and loss of amenities (ii) $3.5m for exemplary damages and both items bearing interest of 3% from 20th of August, 1981 to 20th December, 1994 and (iii) sums amounting to $212,112, 240.00. comprised as follows:

• I. Handicap on the labour market $750,000.00

• II. Loss of future earnings $351,000.00

• III. Costs of replacement of wheelchairs $112,000.00

• IV. Costs of medical dressing $160,560.00

• V. Costs of Pampers $270,000.00

• VI. Costs of household attendant $468,000.00

8 During the final address at the trial of counsel then representing the appellant it was pointed out by him that the claim for exemplary damages was not properly pleaded because the facts on which this claim was made had not been particularised. This was admitted by counsel for the respondent who at that stage made an application to amend the statement of claim to cure this defect. The application was granted. In fact the amendment only repeated the circumstances under which the shooting had taken place and alleged "that the shooting of, and at, the plaintiff, by the first defendant, occurred at 5.00 p.m. in the vicinity of Annotto Bay Police Station, in view of the public, and was done in an unconstitutional, arbitrary, and oppressive and willful manner in breach of the plaintiff's constitutional rights."

9 The appeal therefore poses the following questions:

• 1. Was the trial judge in error in allowing the amendment which he did at the very late stage in the proceedings to wit during the final submissions of counsel for the appellant?

• 2. Was there "double counting" by the trial judge when having awarded (a) $3.5m for pain and suffering and loss of amenities (b)$351,000 for loss of future earnings, he proceeded further to award the sum of $750,000.00 under the heading of "Handicap on the Labour Market"?

• 3. Was the amount of $3.5m for exemplary damages manifestly excessive bearing in mind the substantial sum of $3.5m awarded for pain and suffering and loss of amenities?

• 4. In the absence of any evidence that the employer the State represented by the Attorney-General authorised, ratified or approved the act of the respondent or was blameworthy in some other manner in relation to its employment or supervision of the wrongdoer its servant or agent was it proper for the trial judge to make any award under the head of exemplary damages against the Attorney-General?

10 With respect to (1) the Statement of Claim at the time when counsel for the plaintiff/respondent made his application had indeed stated:

"And the plaintiff claims damages and exemplary damages by virtue of the fact that he was shot by the firstnamed defendant in a manner which constituted a breach of the plaintiffs constitutional rights and the exercise of brutal force by the firstnamed defendant in a manner which was an abuse of power and authority."

11 What was not pleaded or particularised as required were the facts upon which the plaintiff relied to support the claim for exemplary damages. Counsel for the plaintiff/respondent therefore applied to amend the Statement of Claim to insert the required particulars.

12 In these circumstances in my view the exercise of the discretion by the judge to permit the amendment did not result in any injustice to the appellant even though made at this late stage of the proceedings.

13 With respect to (2) having read in draft the judgment of Langrin, J. (Ag.) and for the reasons stated therein I agree with his reasoning and conclusion that no award should have been made in respect of handicap on the labour market as this item of damages would have already been dealt with and form a component of the award of loss of future earnings.

14 With respect to (3) I also agree with the reasoning and conclusion of Langrin, J (Ag.) that having made a substantial award of $3.5m for compensatory damages the award of a similar sum for exemplary damages in this case is manifestly excessive. Indeed it is surprising that the trial judge should have awarded the large sum he did as exemplary damages since in his judgment in stating the principles which he was following and referring to Lord Devlin's judgment in Rookes v. Barnard [1964] 1 All E.R 367 he stated - "Awards of exemplary damages should be moderate." I therefore concur with Langrin, J.A. (Ag.) that the sum of $100,000.00 would be appropriate.

15 With respect to (4) despite its attractiveness Miss Foster's well researched presentation on behalf of the appellant in her attempt to convince the Court that certain elements of blameworthiness must be established before the State can be saddled with the responsibility for the action of its servants or agents is in my view flawed.

16 In attempting to catalogue a list of situations in which it would be appropriate to award exemplary damages Lord Devlin in Rookes v. Barnard (supra) at page 410 stated as follows:

"The first category is oppressive, arbitrary or unconstitutional action by servants of the government. I should not extend this category, I say this with particular reference to the facts of this case, - to oppressive action by private corporations or individuals."

17 It would indeed be rare to find a case in which the State specifically authorised or condoned such actions. The State by employing the perpetrator as a protector of the rights of the citizens and the keeper of the peace does hold out to the public that the policeman will conduct his duties with due regard to the rights of the citizen. Section 3(1) of our Crown Proceedings Act provides:

"Subject to the provisions of this Act the Crown 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 -

(a) in respect of tort committed by its servants or agents;"

18 Section 3(3) provides:

"Where any functions are conferred or imposed upon an officer of the Crown 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 Crown 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 Crown."

19 These provisions are clear and unambiguous. In the face of these statutory provisions therefore, Miss Foster's submission that only in circumstances where the Crown ordered the Act to be done or was culpable in some way in employing the particular officer to perform these functions could the Crown suffer exemplary damages as a result of the act of the officer, must indeed fail.

20 I would allow the appeal and vary the award of the...