Dion Moss v Superintendent Reginald Grant and The Attorney General

• Jurisdiction: Jamaica
• Judge: Morrison P,McDonald-Bishop JA,Sinclair-Haynes JA
• Judgment Date: 30 May 2017
• Neutral Citation: JM 2017 CA 50
• Docket Number: SUPREME COURT CIVIL APPEAL NO 111/2013
• Court: Court of Appeal (Jamaica)
• Date: 30 May 2017

[2017] JMCA Civ 13

IN THE COURT OF APPEAL

Before:

THE HON Mr Justice Morrison P

THE HON Mrs Justice McDonald-Bishop JA

THE HON Mrs Justice Sinclair-Haynes JA

SUPREME COURT CIVIL APPEAL NO 111/2013

Between

Dion Moss

Appellant

and

Superintendent Reginald Grant

1 ^st Respondent

and

The Attorney General of Jamaica

2 ^nd Respondent

Mrs Nesta-Claire Hunter and Ms Marsha Smith instructed by Ernest A Smith & Co for the appellant

Miss Carla Thomas instructed by the Director of State Proceedings for the respondents

Damages - Assessment of damages — Confiscation of aircraft — Whether the judge's award of damages should be disturbed — Whether the judge erred in not awarding the full sum claimed for the replacement value of the aircraft — Whether the judge erred in awarding damages for loss of use of the aircraft for only three months — Appropriate quantum of damages for loss of use of the aircraft — Appraiser's assessment — Whether any allowance ought to be made for the appellant's failure to mitigate — Whether the judge erred in refusing to make an award for legal expenses incurred including travel to Jamaica — Travel expenses — Whether the judge erred in making no award for exemplary damages — Whether the judge erred in awarding interest for only nine years — Walters v. Mitchell (1992) 29 JLR 173 — Strand Electric and Engineering Co Ltd v. Brisford Entertainment Ltd [1952] 2 QB 246 — Rosenthal v. Alberton and Sons Ltd [1946] 1 KB 374 — Bonham-Carter v. Hyde Park Hotel Ltd (1948) 64 TLR 177 — Rookes v. Barnard and Others [1964] AC 1129 — Kuddus v. Chief Constable of Leicestershire Constabulary [2002] 2 AC 122 — Workers Savings and Loan Bank and others v. Shields Jamaica Supreme Court Civil Appeal 113/1998 — Uzinterimpex JSC v. Standard Bank plc [2008] EWCA Civ 819 — George Finn v. Attorney General (1981) 18 JLR 120.

Morrison P

1 The lamentable facts of this case have been fully stated in the admirable judgment prepared by my learned sister McDonald-Bishop JA, with which I find myself in general agreement. There is therefore no need for me to rehearse the facts for the purposes of this brief contribution. In summary, the appellant, who is a Bahamian national, brought his privately licensed airplane to Jamaica in June 1995 in order to explore a business opportunity. The airplane was seized and the appellant was taken into custody by the narcotics police. However, he was later released and sent back to The Bahamas by the police on a commercial flight, without having been charged with anything.

2 The 2 ^nd respondent, in the defence filed in the Supreme Court on 29 November 1996, did not indicate what had happened to the airplane after it was seized by the narcotics police. However, in a statement of facts and issues, filed on 30 November 2007, the 2 ^nd respondent indicated that the aircraft was, on 15 November 1995, seized by the United States Government and on 16 May 1996 it was forfeited by the United States authorities and sold at a public auction. Hardly surprisingly, the appellant sued the 1 ^st respondent, who was at the material time the police officer in charge of the narcotics division, and the Government of Jamaica for damages for false imprisonment, detinue and/or conversion. For various reasons which it is not now relevant to recount, the case meandered through the court system for close on 20 years. But, in 2012, matters took a decisive turn in the appellant's favour when the respondents admitted liability in detinue in respect of the seizure and non-return of the airplane. For his part, the appellant dropped his claim for false imprisonment.

3 In an assessment of damages conducted in 2013 upon the entry of judgment on admission against the respondents, F Williams J (as he then was) awarded the appellant damages for detinue as follows:

The learned judge also awarded interest on these sums at the rates of 3% per annum from 26 June 1995 to 30 June 1999 and 6% per annum from 1 July 1999 to 26 June 2004 (a period of nine years).

Replacement cost of the aircraft	US$47,722.14
Cost of obtaining an amended market analysis	US$910.00
Three months' loss of earnings from the airplane	US$36,288.00

4 The appellant contends on appeal that the quantum of damages awarded to him was inadequate; while the respondents maintain (by and large) that the learned judge's award should not be disturbed. My sisters have both concluded that the appeal should be allowed and I agree with them. However, there is a disagreement between them as to the increased quantum of damages due to the appellant as a result. This is therefore my attempt at a tie-breaker, so to speak.

5 Particularly in issue is the appellant's contention that the learned judge ought to have awarded him (i) the full replacement value of the aircraft; (ii) a greater amount for loss of income from use of the aircraft; (iii) his travelling expenses from The Bahamas to Jamaica; (iv) legal expenses incurred by him to secure the release of the aircraft; (v) exemplary/punitive damages; and (vi) interest for the full 18 years.

6 McDonald-Bishop JA and Sinclair-Haynes JA are agreed that the learned judge erred in not giving the appellant the full amount claimed for the replacement of the airplane, a conclusion with which, for the reasons given by them, I entirely agree. However, there is a difference between them on the question of interest on the replacement cost, in that McDonald-Bishop JA would give it, while Sinclair-Haynes JA would not. On this, I agree with McDonald-Bishop JA: first, it appears to be clear from the authorities referred to by her that interest is in principle payable on this amount; and, second, it not having been demonstrated that the tortuous path of the litigation through all its various stages was attributable to any fault of the appellant, I can see no basis for depriving him of interest on the replacement cost of his airplane.

7 On the question of damages for loss of use of the airplane, my sisters are again in agreement that (i) the learned judge erred in imposing a duty to mitigate on the appellant in the circumstances of this case; and (ii) the appellant is entitled to compensation for the loss of his income-earning chattel from the date of the filing of the writ (which is used since there is no clear evidence as to the date of refusal of a formal demand for the aircraft's return) to the date of judgment. McDonald-Bishop JA would discount this amount by four years, to take into account imponderables and vicissitudes; while Sinclair-Haynes JA would apply a two-year discount, taking into consideration the time the aircraft would be out of commission for general maintenance, inspection and during vacation periods. However, as regards the actual amount to be awarded for loss of income, my sisters have arrived at different totals, principally as a result of a somewhat different approach to calculating the loss. The difference in the end result is not insignificant: McDonald-Bishop JA would award US$1,826,832.00 under this head, while Sinclair-Haynes JA would award US$2,101,279.36. It suffices to say that, on balance, I prefer McDonald-Bishop JA's analysis and conclusion, essentially on the basis of the reasons she has given. I would therefore award the lower figure of US$1,826,832.00 under this head.

8 The question of interest on this amount is, I think, more problematic. I was initially inclined to leave the learned judge's award of nine years' interest on the loss of use figure intact, primarily because there was no cross-appeal against it. However, having considered the matter further, I am concerned that, with the court now proposing to award damages for loss of use calculated on an annual basis for most of the period up to judgment, interest on the total amount going all the way back to the date of detention must inevitably involve a significant element of double-counting. At the time when the learned judge issued his judgment, this was hardly a significant issue, since his award was limited to three months' loss of use. But now that what the majority of the court has in mind is 14 years' loss of use, it appears to me to assume far more importance.

9 Both of my sisters refer to the statement in Halsbury's Laws of England, Third Edition, Volume 38, paragraph 1325, that “[i]t is doubtful…whether interest could be awarded in addition to damages…for loss of use in an action of detinue without infringing the rule against giving interest upon interest”. The learned editors refer specifically to proviso (a) to section 3(1) of the English Law Reform ( Miscellaneous Provisions) Act, which is in identical terms to proviso (a) to section 3 of our Act of the same name. I would in the circumstances of this case take this to be sufficient authority militating against the making of an award of interest on the damages for loss of use.

10 It seems to me that in these circumstances, even without a ground of appeal, the court ought not to sanction a result that is not only contrary to principle, but also produces a substantial windfall for the appellant. If authority is needed for disturbing the learned judge's award of interest without it having been appealed against, I would pray in aid rule 2.15(b) of the Court of Appeal Rules 2002, which empowers the court to “give any judgment or make any order which, in its opinion, ought to have been made by the court below”. On this basis, I would therefore, in agreement with McDonald-Bishop JA, make no order as to interest on the damages for loss of use of the airplane.

11 On the question of special damages for travel and legal expenses, I was also initially drawn to Sinclair-Haynes JA's view that sufficient proof of them had been put forward in the circumstances, particularly given the modest sums involved. But McDonald-Bishop JA's careful analysis has persuaded me that it would not be right to disturb the learned judge's...