Muriel Fraser v Attorney General of Jamaica
| Jurisdiction | Jamaica |
| Judge | Justice T. Mott Tulloch-Reid |
| Judgment Date | 27 October 2022 |
| Neutral Citation | [2022] JMSC Civ 191 |
| Docket Number | CLAIM NO. 2012 HCV 04746 |
| Court | Supreme Court (Jamaica) |
| Year | 2022 |
(Administratrix of Estate of Imran Ferguson)
JM 2022 SC 178
[2022] JMSC Civ 191
CLAIM NO. 2012 HCV 04746
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Assessment of Damages — False Imprisonment — Fatal Accident Act — Law (Reform Miscellaneous Provision) Act — Lost Years — Loss of Expectation of Life — Personal Injuries — Constitutional right to life — Constitutional right to enjoyment of family — death pre Charter of Fundamental Rights and Freedoms — Aggravated Damages — Exemplary Damages — Vindicatory Damages
Ms Kimberley Facey instructed by Mr John Clarke, attorney-at-law for the Claimant
Mrs Taneisha Rowe-Coke instructed by the Director of State Proceedings attorney-at-law for the Defendant
Before I go into the details of this case, I wish to recognise the assistance given to me by my Judicial Clerk, Ms Abigail Leiba. Ms Leiba was very helpful in setting out the issues which the parties asked the Court to consider, summarising the facts of the cases which the parties relied on in support of their respective positions and pulling out the legal issues that were to be gleaned from them.
On January 10, 2010 Imran Ferguson was taken into custody for hitting the windshield of the motor vehicle being driven by a female. He was arrested and charged for malicious destruction of property. He was held in custody at the Spanish Town lock up where he was held in the holding cell in full view of police officers on duty.
On January 16, 2010, Mr Ferguson was found ill and unresponsive in his cell and was transported to the Spanish Town Hospital where he was later transferred to the Kingston Public Hospital. He received treatment at the hospital but did not recover as he was pronounced dead on the morning of January 19, 2010, having succumbed to his injuries.
The Claimant, Muriel Fraser, was appointed Administrator in the estate of her deceased son, Mr Ferguson. She is also the sole beneficiary in his estate. On August 30, 2012 the Claimant filed a claim seeking the following:
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a. a declaration that the deceased's right to life, security and integrity of person inter alia was contravened
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b. vindicatory damages for the contraventions of the provisions of the Charter of Fundamental Rights and Freedoms
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c. damages for assault, battery and false imprisonment
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d. damages under the Fatal Accidents Act (“FAA”)
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e. damages on behalf of the estate of the deceased, under the Law Reform (Miscellaneous Provisions) Act (“LRMPA”)
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f. Interest pursuant to the LRMPA
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g. Disclosure of all files, photographs, final post-mortem reports of Dr Dinesh Rao, investigations and the histology report
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h. Interim payment
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i. Exemplary and aggravated damages
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j. Costs
An Acknowledgment of Service was filed on behalf of the Defendant on September 7, 2012 stating that the Claim Form and the Particulars of Claim were served on the Defendant on August 30, 2012. The Defendant, however, failed to file a Defence and no attempts were made for an extension of time to file the said Defence. On January 22, 2018, by order of Master R Harris, a default judgment was entered against the Defendant for failure to file a Defence. The Defendant's failure to file a Defence means that liability is not in issue with respect to any of the causes of action raised, those being, false imprisonment, assault, breach of constitutional rights and loss arising under the FAA and the LRMPA and damages under each head, are now left to be determined.
At the Assessment of Damages hearing, the Claimant made an oral application to amend the Particulars of Claim to include special damages in the amount of $60,000 paid to Heart at Rest Funeral Home which was used to cover some of the funeral expenses. The amendment was allowed with the consent of counsel for the Defendant.
Mrs Rowe-Coke made an application for paragraphs 5–7, 10 and 12 of the Further Supplemental Witness Statement of Muriel Fraser to be struck out on the basis that they were prejudicial and also amounted to hearsay. She argued that Ms Fraser had no immediate knowledge of any of those things and should not be allowed to say them.
The relevant paragraphs read as follows:
“5. “It is also clear that my son was not taken to see a Resident Magistrate within twenty-four hours of his detention on 10 January 2010 despite the clear words and effects of the Bail Act.
6. On the 16 th January 2010, he was removed from the Spanish Town Police Station Lock Up to the Spanish Town Hospital. He was then taken to the Kingston Public Hospital. He was at this Hospital from the 16 th January 2010. He died on the 19 January 2010 at the Kingston Public Hospital around 10:02am.
7. I observed Mr Imran Ferguson's body at the post mortem on the 16 th February 2010. His skull was bashed in and one of his eyes was knocked out of the skull. I did not see the eye. His right hand was shorten [sic] and was in bandaged [sic]. His lips was [sic] broken it looked like a deflated football….
10. On the 13 th January 2015, I was in court when the Special Coroner's Jury held that the material police officer(s) should be charged for gross negligence or manslaughter as it concerns Mr Ferguson's death….
12. I believe that my son's constitutional right to life, due process was violated by the ineffective investigation in relation to the circumstances of my son's death. It is clear that no one has been held criminally or administratively responsible for the lapses which led to his death. I hope that his constitutional right including right to life, liberty and due process should be vindicated by an appropriate award to ensure that the relevant state organs give due regard to the violated rights.”
Ms Facey in rebuttal said that the statements contained in the paragraphs that Mrs Rowe-Coke was seeking to have struck out were relevant to the determination of the issue of damages. They are facts which arose on the claim and which were not disputed by the Defendant. With respect to paragraph 5, Ms Facey stated that Ms Fraser being the only witness and mother of the deceased was the best person to give evidence to substantiate the pleading. She said the statement contained in paragraph 5 was a fact that arose in the claim that was not disputed by the Defendant and that as such the Court can accept it as it is. With respect to paragraph 6, Ms Facey argued that these are facts that the mother could determine based on her investigations and when she went to the morgue on January 20, 2010 after her son died. She went to the morgue on the day following his death and she saw the injuries he received. She said the injuries are detailed in agreed documents which are labelled exhibits 1–4.
Ms Facey also argued that with respect to paragraph 7, these were observations that Ms Fraser made. This is first hand evidence of what she witnessed at the post mortem. They are neither prejudicial nor hearsay. Although the post mortem exists it does not preclude Ms Fraser from speaking to it and the court must consider the consistency in the evidence in its totality. As it relates to paragraph 10 she argues that Ms Fraser was in attendance at the Special Coroner's Court. The evidence from that court is that there was gross negligence/manslaughter and the fact that nobody was ever charged goes to constitutional redress. With respect to paragraph 12 Ms Facey argues that the Claimant is the administratrix of Mr Ferguson's estate and his mother. She can therefore make the statement, which is not prejudicial, as the Claimant is merely advancing a claim on behalf of the estate.
Having heard the submissions of both counsel with respect to the issue I made the orders and gave my reasons as follows:
“Paragraph 5 is struck out as it is hearsay and not within the immediate knowledge of the Claimant. In addition, the reference to the Bail Act is not evidence but submission. Paragraph 6 except for the last sentence is struck out as being hearsay. Paragraphs 7 and 10 are not struck out and Paragraph 12 is struck out as it is not evidence but a submission.”
I will also say that Lisa Palmer-Hamilton J had also made an order striking out paragraphs 30 and 31 of the Further Witness Statement filed on June 24, 2019.
The following documents were agreed and form a part of the evidence:
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a. Cell diary, St. Catherine Division, Spanish Town Station dated January 15, 2010 (Exhibit 1)
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b. South East Regional Medical data dated January 17, 2010 (Exhibit 2)
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c. Post Mortem Exam Report dated February 16, 2010 (Exhibit 3)
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d. National Public Health Lab report dated February 16, 2010 (Exhibit 4)
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e. Post Mortem Examination Report dated July 26, 2011 (Exhibit 5)
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f. Grant of Administration dated March 16, 2011 (Exhibit 6)
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g. Letter from the Office of the Prime Minister dated June 28, 2010 (Exhibit 7)
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h. Receipt in the amount of $60,000 from Heart at Rest Funeral Home dated February 22, 2010 (Exhibit 8)
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i. Receipt in the amount of $200 for registered mail to Owen Ellington, Commissioner of Police, dated July 6, 2020 (Exhibit 9).
Ms Monique Russell, Clerk of Court in the Special Coroner's Court was summoned to give evidence. She was not the Clerk of Court at the time of the coroner's inquest and indicated that Mr Leary Phillips who was the clerk at the time was no longer at the Special Coroner's Court but had been transferred to another court. Ms Russell said upon receiving the summons she did her investigations and found that the finding of the court as it relates to Mr Ferguson's incident was that there was...
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