Douglas v Bowen

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Luckhoo, Ag. P.,Graham-Perkins, J.A.,Edun, J.A.,Devlin J.
• Judgment Date: 31 July 1974
• Neutral Citation: JM 1974 CA 53
• Docket Number: Supreme Court Civil Appeal No. 33 of 1971
• Date: 31 July 1974

Douglas

and

Bowen

Luckhoo, P.(Ag); Edun; J.A.; Graham-Perkins, J.A.

Supreme Court Civil Appeal No. 33 of 1971

Court of Appeal

Tort - Damages — Trespass to Good.

Real property - Landlord and tenant — Eviction.

H. G. Edwards, Q.C. and R. Taylor for the appellant.

Dr. L.G. Barnett and Hugh Small for the respondent.

Luckhoo, Ag. P.

1 In the month of October, 1969 the respondent Marjorie Bowen was unlawfully evicted by the appellant Brinkman Douglas from a building situate at 67 Constant Spring Road in the parish of St. Andrew in which she operated the business of a night club - the Q.C. Club - and resided with her family. At the time of her eviction she was in occupation of those premises as a monthly tenant under an oral agreement entered into by her as tenant and the appellant as landlord on July 17, 1967. As a result of the manner of her eviction she suffered the loss of or damage to a number of her personal belongings and articles used in connection with her business as well as loss of business. She sued the appellant for damages for (a) loss of the use and enjoyment of the house; (b) trespass to goods. The appellant did not seek to deny liability. The matter therefore came before Rowe, J. sitting without a jury on the issue of damages only. The respondent asked for an award of special, compensatory and exemplary damages. Rowe, J. awarded the sums of $9, 801.50 as special damages and $12, 500 as general damages, the latter comprising $5, 000 as compensatory damages and $7, 500 as exemplary or punitive damages. The appellant seeks to have the award of compensatory damages reduced as being much too great. He seeks to have the award of exemplary damages set aside on the ground that this is not a case for the award of exemplary damages; alternatively, to have the award under this head reduced as being much too great.

2 The evidence adduced before Rowe, J. disclosed that the appellant was at all material times the owner of premises known as 67 Constant Spring Road. On a part of those premises stood a dwelling house and on the remaining part stood a Block Factory owned and operated by the appellant. That part of the premises upon which the dwelling house stood was separated from the remainder of the premises by a dividing wall and indeed there were separate titles for the two parts of the premises. On July 17, 1967 the appellant let the dwelling house to the respondent for the purpose of her carrying on therein the business of a night club - a cocktail lounge and restaurant - with the respondent and some members of her family residing in the building. The rental was agreed at £40 per month. Later on the rental was by agreement increased to £50 per month. The amount fixed as rent included payment for the provision of water and electricity by the appellant. With the approval of the appellant the respondent made certain structural alterations and additions to the building for the better conduct of the business. This included the construction of a terrace surrounded by a wall at the front of the building. The building thus converted was tastefully furnished and carpeted. The respondent's business attracted a clientele which included professional men and it was not inappropriately named “Q.C. Club.” The respondent and one of her children resided in one of the rooms in the club building. Three o f her children end the manager of the club resided in an outbuilding on the premises which she caused to be furnished. In December, 1967 the respondent commenced operation of the night club. Everything seems to have gone without untoward incident until the respondent failed to pay the rent due on September 17, 1969. The respondent had been briefly absent from the premises in September, 1969. On her return she found that the electricity supply had been cut off. The rent was paid on September 20, 1969. In accepting the rent in arrear the appellant on that same day gave notice to the respondent to quit and deliver the premises by October 16, 1969. That notice was invalid as having been made for a lesser period than the rental month. On October 17, 1969, the appellant caused a bulldozer to enter the demised premises and to demolish the terrace and wall and the fence facing Constant Spring Road. A plastic sign bearing the club's name lit by fluorescent lights and mounted on a metal post was down. A piano which stood on the terrace - the terrace was used for dancing and was equipped with a bar - was found by the respondent on its side. The respondent was not present when this operation took place as she had gone to a hospital or post operation treatment. Having spent eight days in hospital she had returned but ton days before this bulldozing incident took place. Quite understandably she was most upset whim she saw what had occurred and she made a report to the police. As a result Police Inspector Hart telephoned the appellant and told him of the repast. The appellant's response was that he wanted his place. Inspector Hart advised him as to the proper procedure to be adopted for securing possession of the premises. The appellant told Inspector Hart that he did not agree with his advice.

3 Inspector Hart advised him to check with his lawyer before he did anything more. On the following day two men came and chopped down the hedge which was near to the gate of the demised premises. Both the electricity and water supplies were cut off and it was impossible for the respondent to carry on her business. The respondent locked up the club and put two men to watch the premises. She then went to stay at her sister's house.

4 The appellant took no further steps for a week to indicate that he would renew his assault on the demised premises. Then on Friday October 24, 1969, the appellant came to the premises. He caused the respondent's furniture to be removed. When the respondent saw what was happening she went to Half Way Tree Police Station and made a report to Inspector Hart. Again Inspector Hart telephoned the appellant; and told him of the respondent's report. The appellant remained silent. Woman police constable Williams was sent with the respondent to the premises where she spoke with the appellant about his causing the respondent's belongings to be put outside of the building. His reply was that he had given the respondent notice to leave the premises on October 16, and that up to that time (October 24) she had refused to leave. The demolition continued. It rained heavily and as a result the respondent's belongings including her furniture suffered considerable damage. The bulldozing of the main building proceeded and later the outbuilding was demolished. Two days after the bulldozing commenced the respondent returned and removed those articles which could be salvaged.

5 In the meanwhile as was to be expected after the fence was demolished some articles were stolen from the premises. The appellant in the course of his testimony admitted that he caused the demised premises to be demolished in the way related above and said that his reason for so doing was that he wanted the premises. He admitted that he caused the water and electricity supplies to be cut off. He further admitted that although he realised when he received a letter written by the respondent's solicitor that his actions were illegal he still pursued his illegal conduct and said that when he caused the destruction of the demised premises his state of mind was that he was prepared to pay for so doing though what the cost would be did not enter his mind. He denied that his actions were prompted by a desire to sell the premises and said that indeed up to the time of trial of the action nearly two years later the premises remained as it was after the demolition of the buildings had come to an end. Rowe, J. was of the view, in what he described as the exceptional circumstances of this case, the distress of the respondent must have been beyond that of ordinary human endurance. He found that, the appellant knew that the notice to quit he gave the respondent was invalid and that he was made aware by Inspector Hart that his actions were illegal. He came to the conclusion that the appellant did not want his premises for any particular reason but that the appellant “in a high handed, oppressive, vindictive, wanton manner destroyed the plaintiff's, means of livelihood, her house and that of her children.” Rowe, J. was clearly horrified by the nature of the instrument used in the destruction of the Premises for he described it as “the most cruel of destroyers the bulldozer.” In making the award of $7, 500 as exemplary or punitive damages he stated that this was “the most outrageous trespass, the most cold blooded disregard of anyone's rights, the most calculated misuse of personal power, the most cruel onslaught on a defenceless woman and her children without rhyme or reason that I have seen in these courts,” and that this was not a case of the poor or ignorant torn by passions acting impulsively and its recurrence must never be permitted at any time in this country.

6 It was not disputed that the respondent was entitled to an award of damages which would include (a) the special damages proved (b) compensatory damages for injury to the respondent's feelings including the mental distress to which she was subjected by reason of the appellant's conduct in evicting her from the demised premises. Although challenge was, by the amended ground of appeal filed, made to the quantum of damages awarded under each of these two heads it was not contended before us that the quantum awarded in respect of special damages should be disturbed. But in retard to the award of $5, 000 under the head of compensatory damages for trespass to goods it was submitted that an amount of $500 or perhaps $1, 000 would be nearer the mark as any inconvenience, distress or annoyance caused the respondent by reason of the appellant's acts were matters of a...