The Attorney General of Jamaica v Clifford James

JurisdictionJamaica
JudgeF Williams JA,Harris JA,Laing JA
Judgment Date03 March 2023
Neutral CitationJM 2023 CA 20
Docket NumberSUPREME COURT CRIMINAL APPEAL NO COA2021CV00012
CourtCourt of Appeal (Jamaica)
Year2023
Between
The Attorney General of Jamaica
Appellant
and
Clifford James
Respondent

[2023] JMCA Civ 6

Before:

THE HON Mr Justice F Williams JA

THE HON Mrs Justice V Harris JA

THE HON Mr Justice Laing Ja (AG)

SUPREME COURT CRIMINAL APPEAL NO COA2021CV00012

IN THE COURT OF APPEAL

Miss Kamau Ruddock instructed by the Director of State Proceedings for the appellant

Anwar Wright instructed by Wright Legal for the respondent

F Williams JA
1

I have read in draft the judgment of Laing JA (Ag). I agree with his reasoning and conclusion and have nothing to add.

Harris JA
2

I, too, have read the judgment of my learned brother Laing J (Ag). I agree with his reasoning and conclusion and have nothing useful to add.

Laing JA (AG)

3

The appellant (being the defendant in the court below), appealed to the court against the judgment of K Anderson J (‘the learned judge’) delivered on 18 December 2020 following a trial (‘the judgment’).

4

The details of the order appealed are:

  • “1) The claimant is awarded general damages for false imprisonment, in the sum of one million, five hundred thousand dollars ($1,500,000.00), with interest at the rate of 3% per annum, from February 29, 2016, to the date of judgment.

  • 2) The claimant is awarded general damages for the breach of his constitutional right to protection from inhuman and degrading treatment, in the sum of three million dollars ($3,000,000.00) with interest at the rate of 3% per annum, from February 29, 2016, to the date of judgment.

  • 3) The Claimant is awarded vindicatory damages for the breach of his constitutional right to protection from inhuman and degrading treatment, in the sum of four hundred and fifty thousand dollars ($450,000.00), with interest at the rate of 3% per annum, from February 29, 2016, to the date of judgment.

  • 4) …”

The background
5

The judgment was the result of a claim by the respondent in the court below for false imprisonment, aggravated damages, and vindicatory damages for the violation of his constitutional rights to liberty, equality of treatment, non-discrimination, and protection from cruel and inhuman treatment.

6

In his amended particulars of claim, the respondent averred that on 15 February 2014, at approximately 3:30 am, he was attacked by a security guard with a machete and suffered chop wounds which caused him to be hospitalised at the Kingston Public Hospital. While there, he was visited by police officers who handcuffed his right hand to the hospital bed and placed him under police guard. On 18 February 2014, he was discharged from the hospital and taken into custody at the Half-Way-Tree Police Station. There he spent seven days, during which he was referred to as a homosexual by the police and beaten by other prisoners who accused him of being “gay”. He was rescued by police officers who placed him in another cell. He remained locked up at the police station until 25 February 2014, when he was released without being charged after no identification parade was held because the complained failed to attend.

7

The defence, as pleaded, was that the respondent and another man unlawfully entered premises located at Kings Creek Apartments at 9 Kingsway Avenue at approximately 3:30 am. The two men were armed and approached the security guard in a threatening manner. In fear for his life, the security guard grabbed his machete and chopped at them to defend himself from the impending attack.

8

There was a struggle between the respondent and the security guard during which the respondent sustained injuries, and the second man ran away. The respondent also broke off a piece of board from the apartment fence and challenged the security guard. Then he escaped over the fence.

9

It was admitted in the defence that the respondent was placed in custody but it was asserted that the police had reasonable and probable cause to do so based on the report received from the security guard, and the respondent was released after the security guard failed to identify him on the identification parade.

Grounds of appeal
10

In summary, the appellant has challenged the quantum of damages awarded to the respondent under the three heads of damages in the amended notice and grounds of appeal filed on 5 March 2021. The appellant relied on five grounds of appeal as follows:

  • “1. The award of the learned judge in respect of general damages for false imprisonment is inordinately excessive and no judge properly applying their mind to the evidence could reasonably have made such an award.

  • 2. The award of the learned judge in respect of general damages for the breach of the Respondent's constitutional right to protection from inhuman and degrading treatment is inordinately excessive and no judge properly applying their mind to the evidence could reasonably have made such an award.

  • 3. The learned judge erred in finding that the Respondent was entitled to vindicatory damages for the breach of his constitutional right to protection from inhuman and degrading treatment in circumstances where the award for general damages for the breach of his constitutional right to protection from inhuman and degrading treatment was already made to compensate for any breach of his constitutional right.

  • 4. The learned judge erred in making an award for both vindicatory damages and damages for breach of constitutional right which are effectively the same award thereby compensating the Respondent twice, in circumstances where he did not have before him a claim for constitutional redress under Section 19 of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011.

  • 5. The learned judge erred in awarding interest on the award of vindicatory damages and general damages for breach of constitutional rights.”

Ground 1
The submissions
11

Miss Ruddock, in arguing that the award for false imprisonment was inordinately excessive, relied on two cases. The first was Steve Oddman and anor v The Attorney General of Jamaica and Sergeant Carwood [2016] JMSC Civ 166, a decision of the learned judge delivered on 24 June 2016 in which he awarded the sum of $250,000.00 for 10 days' false imprisonment. The Consumer Price Index (‘CPI’) on that date was 88.5 and, updated to December 2020, would amount to $327,683.62.

12

The second was the case of Wilson (Rayon) and Hassock (Howard) v The Attorney General of Jamaica and others [Consolidated Claims] (unreported), Supreme Court Jamaica, Claim No 2006 HCV 3368, judgment delivered 18 May 2011 (‘ Wilson’) in which Mr Hassock was awarded the sum of $350,000.00 by a judge of the Supreme Court on 18 May 2011 for seven days' false imprisonment. The CPI on that date was 65.5, and this award, updated to December 2020, would amount to $619,847.33.

13

On the strength of these two cases, it was submitted that the sum of $600,000.00 is a reasonable award for the 11 days of detention experienced by the respondent.

14

Mr Wright, for the respondent, commended to the court the pronouncement of Lord Justice Greer in the case of Flint v Lovell [1934] All ER Rep 200, in which he referred to the general principle that the appellate court should be reluctant to interfere with an award of damages in the lower court. Mr Wright submitted that this principle has been reaffirmed by this court in a number of cases, including Jamalco (Clarendon Alumina Works) v Lunette Dennie [2014] JMCA Civ 29 and Stephen Clarke v Olga James-Reid (unreported), Court of Appeal, Jamaica, Supreme Court Civil Appeal No 119/2007, judgment delivered 16 May 2008, both of which were referred to in The Attorney General v Peter Bandoo [2020] JMCA Civ 10.

15

In advancing the position that the award of general damages for false imprisonment by the learned judge was not excessive, counsel placed heavy reliance on the case of Devon White v Lenworth Cammock and the Attorney General (unreported) Supreme Court, Jamaica, Claim No. 2006 HCV 787, judgment delivered 2 April 2009 and in particular pages 13 and 14 where Straw J (as she then was), in her usual meticulous style, examined the range of damages awarded for false imprisonment in nine cases. Straw J agreed with the application of the reducing scale approach which was utilised by Mangatal J in Maxwell Russell v The Attorney General et al (unreported) Supreme Court, Jamaica, Claim No 2006 HCV 4024, judgment delivered 18 January 2008 (‘ Russell’) and made an award of $90,000.00 for the first day and $50,000.00 per day for the next 29 days which, if adjusted using the CPI for December 2020, (the month of delivery of the judgment) updates to $184,398.50 for the first day and $102,443.61 for each of the subsequent 29 days.

16

Mr Wright also commended the case of The Attorney General v Peter Bandoo (‘ Bandoo’) to us, in which this court determined that on a claim for false imprisonment with aggravating factors, for a period of 23 days, a first day figure of $250,000.00 and $180,000.00 per day for the additional 22 days of detention resulting in an award of $4,210,000.00, was reasonable in the circumstances.

17

It was, therefore, submitted on the strength of the cases highlighted, that the learned judge did not vary from the accepted approach, and this would not amount to an erroneous assessment of damages so as to render the award for false imprisonment excessive, and which would invoke this court's jurisdiction to interfere with it.

Analysis
18

The starting point of the analysis of the submissions on this ground is equally applicable to the approach to the other grounds. In exercising its appellate jurisdiction, this court will be slow to interfere with the award of damages made by the learned judge and will only do so if it is determined that certain specific circumstances are met in accordance with the authorities referred to below. In that regard, the case of Flint v Lovell commended to us by Mr Wright is apposite and in particular, the...

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