Carlton Graham v The Attorney General for Jamaica
| Jurisdiction | Jamaica |
| Judge | Palmer Hamilton J |
| Judgment Date | 18 September 2023 |
| Court | Supreme Court (Jamaica) |
| Year | 2023 |
| Docket Number | CLAIM NO. 2016HCV05293 |
[2023] JMSC Civ 167
CLAIM NO. 2016HCV05293
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Civil Practice & Procedure — Defendant not permitted to rely on any witness statement — Undisputed evidence — Quantum of Damages to be awarded — Damages for False Imprisonment — Damages for Malicious Prosecution — Aggravated and Exemplary Damages — Special Damages
Ms. Catherine Minto instructed by Nunes Scholefield DeLeon & Co for and on behalf of the Claimant
Ms. Nicola Richards instructed by Director of State Proceedings for and on behalf of the Defendant
By way of an Amended Claim which was accompanied by an Amended Particulars of Claim, the Claimant averred that he was falsely imprisoned and maliciously prosecuted by an agent of the State arising from the purchase by the Claimant of an AC Delco Battery with serial no. 201101 on January 6, 2011 and sought the following reliefs:
-
(a) Damages for False Imprisonment
-
(b) Damages for Malicious Prosecution
-
(c) Aggravated and Exemplary Damages
-
(d) Interest at such suitable rate as the Court will determine pursuant to the Law Reform (Miscellaneous Provisions) Act
-
(e) Costs
-
(f) Such further and/or other relief as this Honourable Court deems fit
The Claimant alleged that on or about the 6 th day of January, 2011 he went to Stewart Industrial Limited to purchase an AC Delco Battery bearing serial no. 201101. He further alleged that he was issued with a cash receipt in respect of the said purchase which was duly stamped as “paid” and signed by the cashier and it was also stamped by the security guard also as “checked.” On the 14 th day of January, 2011, the Claimant was arrested for the offences of Obtaining Goods by False Pretence and Conspiracy to Defraud, taken to the Fraud Squad and to the Kingston Central Lock Up, before he was released on bail. The Claimant made several appearances in the Half-Way-Tree Parish Court and was acquitted after a full trial on the 28 th day of February, 2014.
The Defendant in its defence, stated that Sergeant Hardley had an honest belief that the Claimant fraudulently represented to Stewart Industrial Limited that he was purchasing the battery for Jamaica Biscuit Company Limited (JAMBISCO) based on information received and investigations conducted. It was further stated that the Claimant's arrest and charge were justifiable as there was reasonable and probable cause to do so and it was not actuated by malice.
I wish to note here, that the Defendant did not comply with the Case Management Conference Orders that were made on the 10 th day of January, 2019 for the filing and exchanging of witness statements. They filed an application for relief from sanctions which was refused by Master Carneige. It therefore follows that the Defendant is not able to rely on any witness statement in this matter. The only witness statement before this Court is for the Claimant. Therefore, there is no need for this Court to delve into a determination of the factual evidence regarding liability of the Defendant.
In the light of the above, it is for me to determine the quantum of damages that is to be awarded to the Claimant arising from the January 14, 2011 arrest and charge.
I wish to thank Counsel for their submissions and supporting authorities which provided valuable assistance in deciding the issues. They were thoroughly considered and will be dealt with under each issue below. I also wish to note that I do not find it necessary to address all the submissions and authorities relied on but will refer to them to the extent that they affect my findings.
It is prudent for me to note that there are some discrepancies with the figures submitted by Learned Counsel for the Claimant and the Defendant. In some instances, I did not arrive at the same updated figures that they submitted. Therefore, I will endeavour to explain those discrepancies as they arise. For ease of understanding, I will only use the CPI for July 2023 throughout this judgment.
The Claimant alleged that he was detained in custody for approximately eight (8) hours before he was released on bail. The Defendant in its Defence denied this. The Amended Particulars of Claim lists the particulars of damages for false imprisonment as follows:
-
(a) Loss of liberty for approximately eight hours
-
(b) The Claimant was gainfully employed at the time and suffered loss of income and was put to other expense
-
(c) The Claimant was held in deplorable conditions
-
(d) The Claimant faced the fear and anxiety of groundless detention, charges and prosecution against him
-
(e) The Claimant was suspended from his employment as Fleet Supervisor with Jamaica Biscuit Company, and later terminated, based on his arrest
-
(f) Injured and hurt feelings
-
(g) Embarrassment
-
(h) Inconvenience
I found the case of John Crossfield v The Attorney General of Jamaica and Corporal Ethel Hamilton [2016] JMCA Civ 40 to be useful. Morrison P in that case relied on the following passage from Harvey McGregor QC, McGregor on Damages, 17 th edition, para 37-007 for the basis upon which a court will ordinarily make an award of damages for false imprisonment:
“ 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 very 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 and injury to reputation.”
Learned Counsel for the Claimant submitted that the parties have agreed the sum of FOUR HUNDRED THOUSAND DOLLARS ($400,000.00) 1 under this head of damages.
Learned Counsel for the Defendant submitted that the practice of the Courts in calculating damages for false imprisonment is to make a single award, having considered the principal aspects as listed in John Crossfield and the Court is to
look at comparable awards and apply the Consumer Price Index (CPI) to them as stated in The Attorney General v Glenville Murray [2010] JMCA Civ 50. Learned Counsel submitted several cases of which I found Inasu Everald Ellis v The Attorney General and Ransford A. Fraser (unreported) Supreme Court Civil Appeal No. 37/01 delivered December 20, 2004 to offer useful guidanceIn Inasu Everald Ellis, the Appellant was detained and interrogated for seven (7) hours, and on the same day was charged with several offences. He was thereafter released on bail. The Court of Appeal held that an award of $100,000.00 was an appropriate award given the trial judge's findings that she accepted that the period of imprisonment caused him to feel humiliated, embarrassed and disgraced which would have resulted in a loss of dignity, loss of liberty and further, caused mental suffering. Likewise, in the case at bar, the Claimant has claimed that he was fearful, anxious, embarrassed, inconvenienced and had injured and hurt feelings.
Learned Counsel for the Claimant submitted that there was an error in the calculations utilized by Learned Counsel for the Defendant as where the Court of Appeal increases or decreases an award in the Court below, the Court of Appeal's award is to be substituted for and thereby replaces the award made by the trial judge as at the date of the judgment in the Court below. I agree with Learned Counsel for the Claimant, therefore the award made by the Court of Appeal in Inasu Everald Ellis is as at September 2001, which was the date of judgment in the Court below.
The award in Inasu Everald Ellis updates to SIX HUNDRED AND TWO THOUSAND SEVEN HUNDRED AND SIXTY-FOUR DOLLARS AND NINETY-EIGHT CENTS ($602,764.98) using the CPI for July 2023. I agree with the parties that a similar award would be appropriate given the circumstances.
Learned Counsel for the Claimant, in relying on the case of Inasu Everald Ellis, submitted that it would be appropriate to consider malicious prosecution and aggravated damages together where the criminal prosecution continued for an inordinately long time as the 2 heads of damages would be inextricably bound up. There are several cases where the 2 heads of damages are considered together and an award is made for both (see Inasu Everald Ellis, Herman Needham v The Attorney General of Jamaica (unreported) Suit No. C.L. 2000/N037 delivered on the 10th day of April, 2003 and Allan Currie v The Attorney General of Jamaica (unreported) Claim No. CL 1989/C-315 delivered on the 10th day of August, 2006). I find favour with the submissions of Learned Counsel for the Claimant and I will adopt the approach of the Court of Appeal and consider the aggravating circumstances in this case.
Learned Counsel for the parties both relied on the factors outlined in the case of Roderick Cunningham v The Attorney General for Jamaica, Superintendent Clinton Laing and Corporal Horace Fitzgerald [2014] JMSC Civ. 30 and which were affirmed by the Court in Rosalee Stewart v The Attorney General of Jamaica [2017] JMSC Civ. 104. Edwards J in Roderick Cunningham stated that:
Damages for malicious prosecution are usually awarded where a Claimant proves that he was charged for a criminal offence, the law being put in motion against him by the defendant; that the case was determined in his favour by virtue of being acquitted or otherwise and that the prosecutor in setting the law in motion had been actuated by malice or had acted without reasonable or probable cause. The Claimant must also prove that he suffered damage as a result....
To continue reading
Request your trial