Raphael George Westcar v Constable Mark Tomlinson

JurisdictionJamaica
Judgment Date25 February 2021
Docket NumberCLAIM NO. 2011 HCV 03995
CourtSupreme Court (Jamaica)

[2021] JMSC Civ 42

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

[DIVISION]

CLAIM NO. 2011 HCV 03995

Between
Raphael George Westcar
Claimant
and
Constable Mark Tomlinson
1 st Defendant

and

The Attorney General of Jamaica
2 nd Defendant

Mr. Sean Kinghorn instructed by Kinghorn and Kinghorn for the claimant

Mr. Carson Hamilton instructed by the Director of State Proceedings for the first and second defendants

Malicious Prosecution — Trespass — Assessment of Damages Pettigrew-Collins: J

IN OPEN COURT
THE CLAIM
1

The claimant filed a Claim Form and Particulars of Claim on the 22 nd of June 2011 seeking damages for malicious prosecution and trespass against the first and second defendants.

2

He claims that on or about the 15 th of October 2009, the first defendant unlawfully, maliciously and/or without reasonable and probable cause, prosecuted him by proffering a false charge against him for the offence of operating a public passenger vehicle without a public passenger licence and that on the 14 th of June 2010, the charge against him was dismissed for want of prosecution.

3

He also claims that the first defendant unlawfully, maliciously and/or without reasonable and probable cause seized and detained his motor vehicle, which said motor vehicle was returned to him on the 15 th of February 2010. He also claims aggravated damages, exemplary damages and vindicatory damages.

4

The second defendant is sued by virtue of the provisions of the Crown Proceedings Act as admittedly, the first defendant was at all material times a member of the Jamaica Constabulary Force who acted or purported to act as the servant and/or agent of the Crown.

THE DEFENCE
5

The defendants admit that the first defendant charged the claimant with the offence of operating a vehicle as a public passenger vehicle without a road vehicle licence and that the charge was dismissed as alleged by the claimant. It is contended however that the claimant was prosecuted because he was seen picking up passengers, letting them off and collecting money. He had therefore committed the offence for which he was prosecuted and thus the first defendant had reasonable and/or probable cause to prosecute the claimant for the offence. The defendants also admit that the first defendant seized the claimant's motor vehicle but that there was reasonable and/or probable cause to do so.

THE ISSUES
6

The issues to be decided are whether the first defendant acted without reasonable or probable cause or acted maliciously when he prosecuted the claimant and whether he had reasonable and probable cause to seize the claimant's motor car.

THE DECISION
7

The claimant is entitled to succeed in his claim for damages for Malicious Prosecution and Trespass.

PRELIMINARY MATTERS
8

At the commencement of the trial, counsel for the defendant made an application for paragraphs 9, 10, 11, 13, and part of 19 of the claimant's witness statement to be struck out. The basis for seeking to have paragraphs 9 and 10 struck out was that they contained evidence relevant to an assault but that no claim was made in respect of an assault and therefore the evidence was irrelevant.

9

In relation to paragraphs 11 and 19, it was said that that evidence supported a claim for false imprisonment which was not pleaded, and the defendants therefore had no opportunity to respond to those allegations.

10

The court declined to strike out any of the paragraphs. I took the view that paragraph 13 would not be admissible as to the truth of its contents but was nevertheless admissible under the Subramaniam principle. The other paragraphs contained the narrative as to what the claimant said transpired and although they contained evidence which could potentially give rise to an additional cause of action, they were not inadmissible.

11

Upon enquiries made by the court, the claimant's Attorney at Law advised the court that the claim would proceed against the second defendant only.

12

The first defendant was permitted to amplify his witness statement. In doing so he clarified that the offence for which the claimant was prosecuted was operating his motor vehicle as a public passenger vehicle without a road licence and not operating his motor vehicle as a public passenger vehicle without public passenger vehicle insurance. It was also made clear that the claimant was prosecuted for one offence and not two offences as paragraph 10 of the first defendant's witness statement would imply.

THE CASE AGAINST THE SECOND DEFENDANT
13

There is no question that the first defendant purported to act pursuant to his duties as a crown servant when he prosecuted the claimant. Section 13(2) of the Crown Proceedings Act in essence, provides that civil proceedings against the Crown shall be instituted against the Attorney General. The provisions of the Act extend the principle of vicarious liability to the Crown and the Crown's servants where the alleged tortious act is committed by a Crown servant during the course of his employment. It was not strictly necessary that the first defendant be joined as a party. He was however a necessary witness in the matter.

THE CLAIMANT'S EVIDENCE
14

The claimant in his Witness Statement filed on the 15 th of January 2015, stated that on the 15 th of October 2009, approximately 8:00 am, he was returning home from the Guy's Hill area. On his way home, he offered a male student a ride to school. While passing the police station, he noticed a marked police vehicle leaving the station with several police officers including the first defendant, Constable Mark Tomlinson, who was the driver. Constable Tomlinson stopped him and told him to park the car on the police station's compound and leave the keys inside the car before he drove off. The claimant said he did as he was instructed by Constable Tomlinson. According to the claimant, he accompanied the male student he had picked up earlier to the taxi stand and placed him on a taxi. He then returned to the police station to check on his motor vehicle.

15

The claimant also stated that when he returned to the police station, his motor vehicle was not on the compound. He was later informed that his vehicle had been taken to the pound. He said that he was given a ticket by Constable Tomlinson for the offence of Operating a Vehicle without a Public Passenger Licence. He stated that he was never asked the circumstances under which the student was travelling in his vehicle. He said Constable Tomlinson then demanded the ticket which he had given to him and when he refused to give back same to him, Constable Tomlinson became angry, grabbed him by the waist of his pants and dragged him to a cell in the view of several members of the public and he was told by Constable Tomlinson that he would remain there until he made up his mind what to do with him. He said he was placed in a cell with another person and he remained there between the hours of 9:30 am and 4 pm.

16

The claimant further stated that he had known Constable Tomlinson before as someone who attended drink-out events in the Guy's Hill area which he would also attend sometimes.

17

He said that he tried to retrieve his car from the Lake's Pen pound but was unsuccessful in doing so without a court order. Consequently, he retained the services of Attorney-at-Law Mr. Kinghorn. He said he was charged a fee of $100,000.00 but to date he has only paid $20,000. He further stated that he was able to secure the release of his car by court order on the 15 th of February 2010.

18

The claimant gave evidence that between the 15 th of October 2009 and the 15 th of February 2010, he was inconvenienced because of not having his motor vehicle and he also incurred expenses. He said he expended no less than $3,000 per day for the loss of use of his vehicle. He said there were instances where he had to pay persons to take things from his farm. He did so 3–4 times weekly and it cost him no less than $5,000.00 per trip. He spent at least $1,000.00 each day when he took public transportation.

19

He said that he attended court on several occasions and finally on the 14 th of June 2010, the matter was dismissed for want of prosecution. He said the entire incident was embarrassing to him and he further suffered the humiliation of attending court in Linstead on several occasions in the presence of hundreds of persons.

20

The claimant was cross examined at length regarding his evidence that he was giving a boy previously unknown to him a lift to school that morning. Reference will be made to that evidence at an appropriate juncture.

THE FIRST DEFENDANT'S EVIDENCE
21

In his witness statement filed on the 19 th of January 2018, the first defendant stated that at the time of the incident, he was a Constable of Police stationed at the Guy's Hill Police Station. He stated that on the day in question, he was the driver of a marked police service vehicle and that he was parked along the Guy's Hill main road in the vicinity of Hay's Hardware. He observed that the claimant had six (6) passengers in the motor vehicle, one (1) in the front passenger seat and five (5) persons on the back seat. He observed the claimant letting off passengers, collecting money, picking up passengers and making change. He drove off behind the claimant's motor vehicle and followed behind him to the Guy's Hill High School. There, he saw the claimant let off five (5) school children, then came from the car, collected money from them and made change. He then approached the claimant and indicated to him that he was operating contrary to the terms and condition of his licence and that he would be ticketed for the offence for which he was ultimately prosecuted.

22

He also stated that he instructed the claimant to proceed to the Guy's Hill Police Station. The claimant did so, and at the police station, he issued him with the ticket and confiscated the motor vehicle in question. He said he did...

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