Stewart v Attorney General
| Jurisdiction | Jamaica |
| Judge | Brown, Y.J. |
| Judgment Date | 07 July 2017 |
| Neutral Citation | [2017] JMSC Civ 104 |
| Docket Number | CLAIM NO. 2015HCV03386 |
| Court | Supreme Court (Jamaica) |
| Date | 07 July 2017 |
[2017] JMSC Civ. 104
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Brown, J.
CLAIM NO. 2015HCV03386
Mr. Aon Stewart instructed by Knight Junior and Samuels for the Claimant.
Miss Faith Hall instructed by the Director of State Proceedings for the Defendants.
False Imprisonment — Malicious Prosecutions — Assessment of Damages-Aggravated Damages — Exemplary or Vindicatory Damages.
CORAM: Brown, Y.J., (Ag.)
On or about July 1, 2014, at approximately 6:30p.m, the Claimant avers that she was exiting Basu Superstore at 77 1/2 Slipe Road in the parish of Kingston, when in full view of a crowd, she was arrested, restrained and detained by two members of the Jamaica Constabulary Force (JFC).
These officers she identified as Corporal Dane Frater and Constable Nicoy Martin, both of whom were attached to Cross Roads Police Station in the parish of St. Andrew.
The Claimant contends that she was ushered to the Cross Roads Police Station where she was detained for two hours. During that period, at the behest of Corporal Frater, she went into a room and as ordered, she undressed before a female officer to display a tattoo which she has on her lower right side.
Subsequently, she was charged for obstructing a police officer; using abusive and calumnious language; and disturbance of peace and good order. When she appeared in the Corporate Area Petty Sessions Court on December 10, 2014 and February 25, 2015, the Claimant was acquitted of all the charges.
Noting that on that fateful day of July 1, 2014, the police officers in execution of their duties as servants and or agents of the state, acted either maliciously or without reasonable and probable cause; the Claimant said she suffered embarrassment, humiliation and disgrace.
As such, she filed a claim against the Attorney General seeking damages for false imprisonment and malicious prosecution, as well as aggravated and exemplary damages or vindicatory damages.
On the 22 nd of July 2015, the defendant filed an Acknowledgement of Service in relation to the Claim Form and Particulars of Claim. However, the defendant was denied an extension of time to file a defence when that application was heard before the learned Master R. Harris on May 5, 2016.
A Judgment in Default of Defence was therefore entered against the defendant on May 10, 2016 and the matter was referred for an assessment of damages.
At the assessment of damages, the Claimant's witness statement was admitted as her evidence-in-chief. This was unchallenged and the submission of $359,000 for special damages found favour with the defendant.
Consequently, I will not hesitate to make an award of $359,000 for special damages.
My attention will now be centered on the issue of general damages for false imprisonment and malicious prosecution, as well as aggravated and exemplary damages or vindicatory damages.
Both Counsels contended that the case of Keron Campbell v Keroy Watson and the Attorney General of Jamaica; CLC 383 of 1998 was a most suitable guide for an award for false imprisonment in the case at bar.
In the case aforenamed, the Claimant who was falsely imprisoned for 2 1/2 to 3 hours, was awarded the sum of $70,000 in January 2005. That figure updates to $199,180 using CPI of April 2017.
Being mindful that the Claimant at bar was detained for 2 hours, I will not depart too far from the figure stated in the Keron Campbell case, and so, I deem an award of $195,000 appropriate. Nevertheless, I must indicate that, that figure is limited solely to the claim for false imprisonment.
Now, the element of embarrassment, humiliation and disgrace permeated the Claimant's evidence. This, I believe, must be addressed under the rubic of False Imprisonment. The remark at paragraph 37-007 McGregor on Damages (17 th edition), is very instructive.
It states:
“The details of how damages are worked out in false imprisonment are few: generally it is not a pecuniary loss but of dignity and the like…the principal heads of damage would appear to be the injury to liberty ie. loss of time…and the injury to feelings, ie. the indignity, mental suffering, disgrace and humiliation, with any attendant loss of social status and injury to reputation. This would all be included in the general damages which are usually awarded in these cases…”
As a result of her ordeal, the Claimant stated that when the incident took place she was “so depressed, ashamed, physically shaken so much that it cause me to be withdrawn emotionally and sexually from my spouse Errol Pearson for a week…”
In his evidence, Mr. Pearson confirmed that bit of the Claimant's testimony regarding her detachment from him.
While it is comprehensible that this experience would have engendered an emotional trauma, the degree or extent of Miss Stewart's emotional pain was not captured in a medical or psychological report.
This however, does not overshadow or downplay the fact that she must be awarded for this type of suffering. Furthermore, subjecting her to putting her body on display so that an officer could view her tattoo was unfathomable.
Neither Counsel dealt specifically with the emotional element as deserving separate consideration for compensation, however, I will include this in the award for false imprisonment. Thus the award under this head will be augmented by $100,000 thereby bringing its total to $295,000.
Roderick Cunningham v Attorney General of Jamaica ; 2014 JMSC Civ 30 underscored the factors which are of relevance to a court in determining the award for malicious prosecution They are:
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(1) The seriousness of the offence
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(2) Length of time the prosecution lasted
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(3) The number of times the Claimant attended court
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(4) Any damage to reputation or credit
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(5) Mental distress or anxiety
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(6)...
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Carlton Graham v The Attorney General for Jamaica
...Horace Fitzgerald [2014] JMSC Civ. 30 and which were affirmed by the Court in Rosalee Stewart v The Attorney General of Jamaica [2017] JMSC Civ. 104. Edwards J in Roderick Cunningham stated that: Damages for malicious prosecution are usually awarded where a Claimant proves that he was charg......