Odane Edwards v Attorney General

• Jurisdiction: Jamaica
• Judge: Fraser J
• Judgment Date: 23 August 2013
• Neutral Citation: [2013] JMSC Civ 116
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2009HCV05532
• Date: 23 August 2013

Between

Odane Edwards

Claimant

and

The Attorney General

Defendant

[2013] JMSC Civ 116

CLAIM NO. 2009HCV05532

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Assessment of Damages — Claimant unlawfully shot and detained by police — Bullet fragments lodged in claimant's head — Whether in addition to damages for assault and battery claimant entitled to aggravated, exemplary and vindicatory damages

Mr. Dale Staple instructed by Kinghorn & Kinghorn for the Claimant

Mr. Nigel Gayle instructed by The Director of State Proceedings for the Defendant

Fraser J

THE CLAIM

1 On October 23, 2009 the claimant Odane Edwards filed a Claim Form and Particulars of Claim in this matter seeking damages for assault and battery arising from an incident that occurred on May 20, 2009. The Acknowledgment of Service filed on November 17, 2009 by the defendant, disclosed that service of the Claim Form and Particulars of Claim was effected on November 11, 2009.

2 On March 5, 2010 the defendant filed a Defence admitting liability for injuring the claimant. However, the claimant was put to strict proof of the relief claimed. That relief to be assessed by the court was fivefold: i) Damages; ii) Special Damages iii) Aggravated Damages; iv) Exemplary Damages; and v) Vindicatory Damages. Additionally the claimant sought interest pursuant to the Law Reform (Miscellaneous Provisions) Act and Costs. Judgment on Admission for the claimant to recover damages to be assessed and costs to be taxed, was filed on April 6, 2010 and entered at Volume 749 Folio 456 of the Judgment Book.

THE INCIDENT

3 The claimant's witness statement dated and filed May 9, 2011 was received as his evidence in chief at the hearing. He was cross examined by counsel for the defendant. The claimant's evidence is that on May 20, 2009 he was on his way to school, in a car being driven by his in-law Andrew Bonnick. Upon reaching the square at Mango Valley in the parish of St. Mary, he saw his grand uncle Mr. Winston Jackson. They pulled over to talk to him. The claimant was in the front passenger seat and Mr. Jackson was at the front passenger door. In his statement the claimant said this was about 8:30 p.m., but under cross examination he indicated this was an error and the time was actually 8:30-9:00 a.m. The unchallenged fact that some subsequent events, to be recounted later, occurred, make it clear that the incident unfolded in the morning rather than the evening.

4 The claimant's narrative continued with him indicating that as he was talking to Mr. Jackson, Mr. Jackson touched him on his left shoulder and looked towards the back of the vehicle. This caused the claimant to look over his right shoulder towards the back of the vehicle. He saw the figure of a gun being held by someone who was at the back of the car, but not close enough to touch the car. In his statement he said he saw the face of the individual with the gun but in cross-examination he said that was a mistake. He saw the hand holding the gun, but not the face of the person who held it.

5 He then looked at Andrew, he felt the car rock a bit and then he heard the first explosion which came through the left side of the back window. The force of it pushed him to the dash board of the car. He then told Andrew to drive him to his mother's house which was a few blocks away. When they drove off he heard a second explosion which was directly between the door jamb which pushed him against the dashboard. In his statement he indicated that he felt a bump come up on his head and he realized he was bleeding after the first shot. However in cross examination he said he felt the bump after the second shot. Nothing of moment however turns on that inconsistency.

6 There was then a third explosion which went into the gas tank. They drove to his mother's house in Bamboo Walk at which point he realised there was a police van that came and stopped behind their car. Two men in police vests came out of the vehicle along with one without a vest and were asking them where they threw the gun. While they made this query they were handcuffing Andrew and searching the vehicle.

7 The claimant was there holding his head, crying and telling them that something was in his head. The police were saying that it was the splinter from the glass. The claimant was begging them to take him to the hospital.

8 The police told the claimant to sit on the railing of the verandah. He remained standing and was making a lot of noise. They then handcuffed him. One police was left with him and Andrew and the other two went to search the bushes of the drive way of the house. The other two then returned from searching the bushes. One Mrs. Powell came out of the house and told the police she knew them and that they lived there. Mrs. Powell called the claimant's mother and other neighbours started to gather and make a lot of noise.

9 The police then sent Andrew and the claimant to sit in the vehicle, instructing the claimant to use his hand to break out the already shattered glass to open the car door. The claimant was in the car for about 20 minutes then he was driven with Andrew to the Retreat Police Station in the parish of St. Mary where they were put to sit on a bench and handcuffed to a railing. Andrew was taken into a room to be questioned and then he was similarly taken in and questioned. They were then both placed back on the bench to sit down. The police called his mother and he started to cry saying that he was feeling pain. They came and pulled the handcuff off the railing, handcuffed both his hands and took him to the nearby clinic.

10 There the police told the nurse it was just splinters in the claimant's head and that the wound should just be cleaned and dressed. The claimant was still handcuffed at this time.

11 The claimant was then taken back to the station. He, his mother and Andrew were in one section. The police were still trying to get some information on the car to see if it was stolen. The claimant continued at paragraph 19 of his statement, ‘ They were talking about how they could put something on us like seen on television. They also offered us money for us to forget about the case. They were trying to be friendly to us after they realized that they did not find anything to charge us for .’

12 The claimant further indicated in his statement that there was a police officer who his father knew, who came and took him to Dr. Wright in Ocho Rios. Dr. Wright gave him some medication and sent him to do an X-ray and then to the St. Ann's Bay Hospital with the X-ray and letter.

13 The claimant received treatment at the St. Ann's Bay Hospital and then subsequently from Doctors Micas Campbell, Terrence Bernard, Carl Bruce, Lodian Wright and Denton Barnes.

THE SPECIAL DAMAGES

14 The claimant and the defendant agreed Special Damages in the sum of $139,060.90. The court will therefore make the award under this head in the agreed sum.

THE GENERAL DAMAGES (Pain and Suffering and Loss of Amenities)

15 On the date of hearing the claimant was granted an amendment to the particulars of injury outlined in the Particulars of Claim. With the amendments highlighted by underlining, those particulars now read:

• (a) Headache;

• (b) ringing in both ears;

• (c) pain in the right ear;

• (d) Bullet fragments noted in the soft tissue adjacent to right parietal bone;

• (e) Gunshot wound to the head;

• (f) Retained foreign body to the skull;

• (g) Facial nerve damage;

• (h) Moderately severe post traumatic stress disorder; and

• (i) Post concussion syndrome with associated psychiatric stress disorder .

16 Counsel for the defendant submitted that as liability was admitted months before the claimant was allowed to amend his particulars of injuries, no award should be made for any uncorroborated evidence of injuries and their impact on the claimant. In keeping with established principles concerning the application of the burden and standard of proof the court will assess the evidence adduced and accordingly make the appropriate award.

The Statement of the Claimant (Pain and Suffering Alleged)

17 In his statement the claimant indicated that he was still feeling pain in his head especially when the time was cold. He further said that there were times when the right side of his body was numb and he could not feel anything. He continued that sometimes the pain would move to a different section of his head. Further, that when he was reading at night he would feel pain in his head and have to be straining his eyes. He also stated that since the incident he had become very aggressive and he was not like that before.

The Medical Reports

18 The following medical reports and radiology report were received in evidence as exhibits. The reports of:

• (a) Dr. Lodian P. Wright (exhibit 1)

• (b) Dr. Micas Campbell dated December 7, 2009 (exhibit 2a)

• (c) Dr. Micas Campbell dated March 23, 2010 (exhibit 2b)

• (d) Dr. Carl Bruce dated May 17, 2010 (exhibit 3)

• (e) Dr. Terrence Bernard (exhibit 4)

• (f) Dr. Denton Barnes dated January, 24, 2011 (exhibit 5)

• (g) Dr. Wesley Sinclair dated May 21, 2009 (radiology report) (exhibit 6)

The Report of Dr. Wright

19 He was the first to see the claimant on May 20, 2009 the day of the incident and noted that the claimant complained of having a headache, pain from a wound, ringing in both ears and being nervous and having palpitations. On examination the claimant was not found to have any apparent painful distress. A small puncture wound to the right temporal area was noted. Medication was prescribed and an X-Ray recommended.

The Reports of Dr. Campbell

20 In his first (interim) report Dr. Campbell noted that on presentation on June 24, 2009 the claimant complained of severe anxiety problems and difficulty sleeping and thinking, due to constant flashbacks. He...