RBTT Bank Jamaica Ltd v YP Seaton and Others

 
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[2014] JMSC Civ. 139

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2009 HCV 2885

Between
Delia Burke
Claimant
and
Deputy Superintendent Carol McKenzie
1 st Defendant

and

The Attorney General of Jamaica
2 nd Defendant

Aon Stewart instructed by Knight, Junor & Samuels for the claimant

Ms Marlene Chisholm instructed by the Director of State Proceedings for the defendants

TORT — FALSE IMPRISONMENT — TRESPASS — AWARD OF AGGRAVATED AND EXEMPLARY DAMAGES — AWARD OF SPECIAL DAMAGES — NOMINAL DAMAGES — APPLICABLE PRINCIPLES

McDonald-Bishop, J
The parties
1

The claimant was, at all material times, a bank manager residing in the parish of Saint Andrew. The 1 st defendant was at all material times a member of the Jamaica Constabulary Force at the rank of Deputy Superintendent and attached to the Constant Spring Police Station in the parish of Saint Andrew. The 2 nd defendant is joined in these proceedings by virtue of the Crown Proceedings Act on the basis that the 1 st defendant was at all material times a servant or agent of the Crown acting during the course of his employment.

The claimant's case
2

During the period 28 January 2008 to 20 February 2008, the claimant visited Phil's Hardware situated at Constant Spring Road, Kingston 10, in the Parish of Saint Andrew and purchased building materials for use at her premises in the Kingston 20 Area. She obtained receipts from Phil's Hardware evidencing her purchase, which she retained in her custody and control.

3

Upon concluding her purchase, the claimant secured the services of a neighbour who operated a haulage business to assist her in the delivery of the materials to her home. The delivery was made sometime in the evening of 20 February 2008. The material was placed in her driveway and on her front verandah in clear view of the main road.

4

At or around 9:30 p.m. that said night, the claimant, after having retired to bed, was awakened by loud shouts outside her premises. She heard her aged and infirmed mother saying ‘coming’ in response to the loud request being made to ‘open up’. She went outside to investigate the source of the noise. There she found her house was totally surrounded by numerous police cars with more than fifteen police officers strategically blocking both her gates. The 1 st defendant was the commanding officer of the operation.

5

The 1 st defendant and other officers were on the premises and demanded to look around her premises. She asked for the reason to allow them entry to her property. The 1 st defendant continued shouting that he needed to come inside to look around and that it would be necessary for the claimant to accompany him to the Constant Spring Police Station where she would be charged for the items in her possession. This was on the basis that they had received report that a woman had fraudulently purchased building materials from Phil's Hardware that day. This was already brought to the claimant's attention earlier in the day by her neighbour who took the materials she had bought to her house. Having received that information, she sent her mother for her handbag that contained her receipts as she was commanded not to go back in the house before opening the gate to allow the officers in.

6

The claimant took out the receipt for the goods purchased, her debit card used to conduct the business and the debit card receipt she received from the hardware and was showing them to the 1 st defendant. The receipt from the hardware bore numbers corresponding with the receipt from her debit card transaction. The 1 st defendant refused to look at the receipts and / or debit card but, instead, ordered her to go to the Constant Spring Police Station for further investigations to be conducted. The 1 st defendant was not interested in any explanation and he proceeded to threaten to arrest and charge her for the building materials that were on her premises. She also said that he told her that he could not verify the receipts because he did not have his glasses.

7

The 1 st defendant produced no search warrant even though asked by the claimant if he was in possession of one. As a result of the 1 st defendant's conduct, she was embarrassed, humiliated, intimidated. Due to the nature of her mother's illness and to prevent any further embarrassment and humiliation with the convergence of onlookers and neighbours, she, against her will, opened her front gate. The police then barged into her premises without her permission and consent. A female officer was ordered to take her to the confines of her bedroom for her to change from her nightwear for her to be taken to the police station. She was told that this was necessary because she was a flight risk.

8

The claimant was detained and taken under police escort to the Constant Spring Police Station in a waiting police service vehicle. Her neighbour who had transported the materials to her house earlier that evening was also ordered to accompany them to the police station. She described the ride to the police station and that she was embarrassed and humiliated by those actions in light of the fact that she knew she had done nothing illegal and she had repeatedly indicated to the 1 st defendant that she could provide the receipts for the materials on her premises.

9

At the police station, the claimant contacted her friend and attorney-at-law, Mr Bert Samuels, who attended the station. He had discussions with the 1 st defendant. The claimant was then released without being charged when the 1 st defendant was told that she was the wrong person detained in relation to the purchase at Phil's. An officer then apologised to her.

The claim
10

The claimant seeks against the defendants, by her claim form and particulars of claim filed on 4 June 2009 and amended on 10 July 2014, the following reliefs:

  • a. Damages for false imprisonment

  • b. Damages for Trespass

  • c. Aggravated and exemplary Damages

  • d. Legal Costs of $120,000.00

  • e. Interests

  • f. Costs

  • g. Further and such other relief as the court may deem fit.

11

The claimant's averments are that the 1 st defendant wrongfully and maliciously and without reasonable and probable cause trespassed upon her property, including her house and bedroom, for over five hours. That the 1 st defendant maliciously and without reasonable and probable cause arrested her in the full view of all her neighbours and took her to the Constant Spring Police Station where she was held for approximately four hours without being charged for any offence. The 1 st defendant, she averred, was actuated by malice in imprisoning her and not by a desire to bring a criminal to justice but in callous disregard for the rights of the citizen. She complained that by reason of the circumstances, she was greatly injured in her credit, character and reputation and suffered anguish and pain and embarrassment among her family and neighbours as a direct result of the action of the 1 st defendant and other officers.

12

The claimant set out the particulars of the bases on which she is seeking aggravated and exemplary damages that related to the conduct of the 1 st defendant and his party which she described as being high-handed, insolent, disrespectful and embarrassing to her.

The defence
13

The 1 st defendant is the sole witness for the defence. His evidence is summarized as follows. On 20 February 2008, he received information from his Commanding Officer that Phil's Hardware had made a report of building materials that were allegedly purchased fraudulently by a woman. He later received information from an intelligence officer, Detective Sergeant Orlando Lewis, that they had located the delivery truck alleged to have delivered the building materials in the Pembroke Hall area. As a result, he called for police assistance and deployed police personnel to the location.

14

On arrival at the location, he saw a truck that was pointed out to him by Detective Sergeant Lewis as the vehicle the police had been following earlier. He saw no building materials on the truck. He was, however, shown a house on the other side of the road with building materials in the yard. This was the claimant's yard. After speaking to the claimant's mother to open up the grill for them to gain access into the house, he saw and spoke to the claimant. He enquired of her whether the building materials were hers. She said they were hers and that she had bought them at Phil's Hardware. She told him that she had the receipts to prove it. He informed her that he could not verify the receipts at that location and that it was necessary for her to attend the station for further investigations. While the claimant was being taken to the vehicle by a female officer, he asked of intelligence officers whether she matched the description given of the woman who made the fraudulent purchase. He did not, however, indicate whether he got a response to that query.

15

After Mr Samuels arrived at the station, shortly after they got there, he explained to Mr Samuels the reason for taking the claimant to the station. He requested the attendance of the Intelligence officer who had taken the photograph of the woman. It was at that point that Det. Sergeant Lewis advised him that he had the wrong person. He...

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