Subiah v. The Attorney General of Trinidad &amp; Tobago (Trinidad &amp; Tobago) [2008] UKPC 47 (03 November 2008)

Privy Council Appeal No 39 of 2007

Alphie Subiah 								Appellant

v.

The Attorney General of Trinidad and Tobago	Respondent

FROM

THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO

- - - - - - - - - - - - - - - - -

JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 3rd November 2008

- - - - - - - - - - - - - - - - -

Present at the hearing:-

	Lord Bingham of Cornhill
	Lord Scott of Foscote
	Lord Carswell
	Lord Brown of Eaton-under-Heywood
	Lord Mance
	
- - - - - - - - - - - - - - - -

[Delivered by Lord Bingham of Cornhill]

1.	This appeal concerns the measure of damages recoverable by the appellant on his claim under section 14 of the Constitution for redress for infringement of his constitutional rights.

2.	At the material time the appellant, a well-qualified and experienced man aged 53, was Transport Co-ordinator for Trinidad and Tobago.  He was employed by the Public Transport Service Corporation, which he had served for 30 years.  On 4 May 2000 he boarded a bus at San Fernando.  He saw a uniformed police constable, PC Stoute-Khan (“the constable”), enter the bus without tendering a ticket.  The appellant pointed out to the driver that the constable required a ticket, and the constable was prompted to buy a ticket, which he went off and did.  The bus left San Fernando at about 8.45 am and approached Port of Spain about an hour later.  As it did so the constable interrogated the appellant in a hostile and aggressive manner, asking for his name, address and place of work.

3.	When the bus stopped the appellant got off but the constable followed him, shouted at him and continued to question him.  The constable then grabbed the appellant by his waist band and told him he was under arrest.  Asked why he had arrested the appellant, the constable replied “obscene language”.  The appellant and some onlookers protested, and the constable said “well, abusive language then”.  The constable then dragged the appellant through the terminal building and into the street, causing a passing car to stop.  In front of a large crowd which had gathered, the constable put the appellant into the stopped car and told the driver to take them to the Besson Street Police Station.  Unknown to the constable, that station had been vacated, a fact which increased the appellant’s apprehension.  The constable then, under the gaze of the public, dragged the appellant through the streets for about ten minutes to the relocated station.

4.	At the station the constable told other officers that the appellant had abused him, and he was shouted at.  After an absence, the constable returned with a document which he told the appellant to sign.  He did, despite the absence of any opportunity to read the document.  An officer of the Corporation who attended was allowed to speak to the appellant only briefly.  The constable required the appellant to sign further documents, and gave him copies of the charges preferred against him which were for causing malicious damage to property (the constable’s shirt), resisting a police officer in the execution of his duty and use of abusive language.

5.	At about 11.45 am an inspector interviewed the appellant, told him that he accepted his account and made a remark critical of the constable.  He then told the constable to take the appellant before a magistrate.  The constable took the appellant’s finger-prints on three occasions, and handcuffed the appellant with his hands behind his back in a painful manner.  The constable refused to remove the handcuffs, despite a suggestion by other officers that he should, and the appellant was abused by some of the other officers.  He was taken to court by car, with his hands still cuffed painfully behind his back.

6.	The appellant reached Port of Spain Magistrates’ Court at 2.10 pm, was put in a cell with another prisoner and his handcuffs were removed.  At 3.00 pm, handcuffed to another prisoner, he was taken into court.  The charges were read and the appellant was granted bail.  At 3.35 pm he was released.  The hearing of the charges was adjourned to 25 May, then to 1 September and finally to 6 November 2000, when the constable failed to appear and the charges were dismissed.

7.	On 4 and 6 May 2000 the appellant consulted his doctor, who found him to be depressed and shocked, and subject to insomnia and anxiety, experiencing vivid flashbacks.  He was referred to a psychiatrist at a hospital, by whom he was treated for some months.

8.	The appellant issued these proceedings claiming constitutional redress on 15 January 2001.  He supported his claim with affidavit evidence and medical certificates.  The respondent filed no counter-evidence, and on 22 March 2001 he consented to an order for judgment in favour of the appellant.  By the consent order declarations were made that the “arrest and/or detention and/or imprisonment” and the handcuffing of the appellant on 4 May 2000 were unconstitutional and illegal and it was ordered that “the damages and/or compensation including aggravated and/or exemplary damages be assessed by the Master of the Supreme Court” and paid to the appellant.

9.	The assessment of damages was made after hearing the parties by Master Doyle who, on 10 January 2005, ordered that the damages payable to the appellant be assessed in the sum of $80,000 together with interest at the rate of 12% per annum from the date of service of the notice of motion (15 January 2001) to the date of judgment.  The Master’s written reasons for his decision only became available later, after the hearing of the appeal and cross-appeal against his decision, which was unfortunate.  In these he quoted the terms of the consent order, summarised the salient facts and referred to several authorities.  He found unacceptable the claim advanced by the appellant’s counsel for a total of $165,000 (including aggravated damages of $20,000 and exemplary damages of $75,000) and quoted with approval authority discouraging the making of a separate award for aggravated damages and favouring the making of a single award of compensatory damages.  He considered that the respondent’s submissions paid inadequate regard to the “gruelling circumstances” of the appellant’s arrest and detention and failed to address the “repulsive circumstances so graphically described in the [appellant’s] (unchallenged) affidavit”, from which he quoted a number of highlights.  He referred to the “unacceptable conduct” of the constable and the “debilitating effect” of that conduct on the appellant and concluded:

“Having carefully considered the grief, agony, suffering and distress of this [appellant] (as per his evidence and the extreme depression and post-traumatic stress disorder described by [the doctors], the written submissions herein, the quantum of previous awards and the Court of Appeal’s guidelines, this Court, in the exercise of its discretion, awarded the [appellant] damages of $80,000 for breach of his constitutional rights together with interest thereon at the statutory rate of interest on judgment debts.”

It is agreed between the parties that the Master said at the oral hearing that his award did not include exemplary damages, although this point is not made or elaborated in the written reasons.

10.	Both parties challenged the Master’s award, the appellant on the ground that he should have awarded exemplary damages, the respondent on the ground that the award was excessive and unreasonable.  The appeal and cross-appeal came before the Court of Appeal (Kangaloo, Archie and Weekes JJA) who gave judgment on 15 December 2006.  That court had the benefit, which the Master had not, of two recent decisions of this Board:  Attorney General of Trinidad and Tobago v Ramanoop [2005] UKPC 15, [2006] 1 AC 328, and Merson v Cartwright and Attorney General [2005]  UKPC 38.  The three members of the court, understanding the Master’s award to be purely compensatory, agreed in regarding his award of $80,000 on that basis as grossly excessive and an entirely erroneous estimate of the damage suffered by the appellant.  They were agreed that the correct figure to be awarded as compensation was $45,000.  They further agreed that the appellant should be awarded an additional sum to mark the serious infringement of the appellant’s constitutional rights which the facts of this case disclosed.  But they differed on the quantum of this sum.  Archie and Weekes JJA considered that a total award, including $45,000 as compensation, would be $70,000 with interest (as compared with the Master’s award of $80,000).  Kangaloo JA would have added $50,000 as vindicatory damages to the compensatory award, making a total of $95,000 with interest.  Thus both parties were held to have succeeded, the appellant because he had established his right to an additional award over and above the award of pure compensation (although properly described as vindicatory rather than exemplary or punitive damages), the respondent because he had made good his complaint that the Master’s compensatory award had been excessive.  In this appeal the appellant contends that the Master’s compensatory award of $80,000 was correct and should be reinstated, but that the appellant should in addition recover a substantial sum to vindicate the constitutional right which the disgraceful treatment meted out to him had infringed.

11.	The Board’s decisions in Ramanoop, paras 17-20, and Merson, para 18, leave no room for doubt on a number of points central to the resolution of cases such as the present.  The Constitution is of (literally) fundamental importance in states such as Trinidad and Tobago and (in Merson’s case), the Bahamas.  Those who suffer violations of their constitutional rights may apply to the court for redress, the jurisdiction to grant which is an essential element in the protection intended to be afforded by the Constitution against the misuse of power by the state or its agents.  Such redress may, in some cases, be afforded by public judicial recognition of the constitutional right and its violation.  But ordinarily, and certainly in cases such as the present (and those of Ramanoop, and Merson, and other cases cited), constitutional redress will include an award of damages to compensate the victim.  Such compensation will be assessed on ordinary principles as settled in the local jurisdiction, taking account of all the relevant facts and circumstances of the particular case and the particular victim.  Thus the sum assessed as compensation will take account of whatever aggravating features there may be in the case, although it is not necessary and not usually desirable (contrary to the practice commended by the Court of Appeal of England and Wales for directing juries in Thompson v Commissioner of Police of the Metropolis [1998]  QB 498, 516 D-E) for the allowance for aggravated damages to be separately identified.  Having identified an appropriate sum (if any) to be awarded as compensation, the court must then ask itself whether an award of that sum affords the victim adequate redress or whether an additional award should be made to vindicate the victim’s constitutional right.  The answer is likely to be influenced by the quantum of the compensatory award, as also by the gravity of the constitutional violation in question to the extent that this is not already reflected in the compensatory award.  As emphasised in Merson, however, the purpose of such additional award is not to punish but to vindicate the right of the victim to carry on his or her life free from unjustified executive interference, mistreatment or oppression.  In its recent judgment (given after argument of this appeal) in Angela Inniss v Attorney General of St Christopher and Nevis [2008]  UKPC [42] , the Board derived valuable assistance from the judgments of the Supreme Court of New Zealand in Taunoa and others v Attorney General [2007]  5 LRC 680, which in turn cited (paras 253-254) the judgments of Didcott J in Fose v Minister of Safety and Security [1998]  1 LRC 198, para 82, and Ngcobo J in Hoffmann v South African Airways [2001]  2 LRC 277, para 45, but these judgments, while illuminating the approach outlined above, do not alter it.

12.	The Court of Appeal in the present case did not have the advantage of reading the Master’s written reasons before or during the hearing of the appeal, and he did not direct himself in the terms which he would have used had the decisions in Ramanoop and Merson been available to him.  But he recited the full terms of the consent order which provided his terms of reference, and the award which he made to the appellant was for breach of his constitutional rights.  He was, in the Board’s opinion, clearly intending to award the appellant full redress for the constitutional wrong he had suffered.  He did not, rightly, award exemplary damages, but he did not contemplate any additional financial redress and he fully recognised the gravity of the appellant’s constitutional complaint.  It was, the Board concludes, on that basis that he reached his total of $80,000.

13.	The Court of Appeal unanimously concluded that on a purely compensatory basis the appellant was entitled to $45,000.  The Board is inclined to wonder, given the passage of time and changes in the value of money since some of the earlier precedents relied on, whether the level of compensatory damages may call for upwards revision by the courts of Trinidad and Tobago.  But the Board has always deferred to the superior knowledge and experience of local courts in assessing levels of damages (see, recently, Brown v Robinson and Sentry Security Service Co Ltd [2004]  UKPC 56, para 16), and it is not persuaded that the Court of Appeal’s assessment of $45,000 is vitiated by such manifest error as would justify the Board in intervening.  Giving, however, a broader reading than the Court of Appeal did to the Master’s overall award, the Board cannot accept that the Court of Appeal majority was entitled, on familiar principles, to reduce that award by $10,000.  The quantum of a vindicatory addition to compensatory (including aggravated) damages cannot be calculated with scientific accuracy, and the difference in this case did not warrant interference by an appellate court.

14.	It is common ground in this case that all the matters complained of by the appellant were infringements of his constitutional rights. As the Board made clear in Ramanoop, a claim for constitutional redress may be appropriate (even though there may be substantial issues of fact) where there is “some feature which, at least arguably, indicates that the means of legal redress otherwise available would not be adequate” (p 337E) or where “the parallel remedy at law is to be regarded as inadequate” (p 338B-E). Here, the fact that the appellant was entitled to claim (and has indeed now recovered) vindicatory as well as compensatory damages demonstrates that no procedural objection could have been raised to his application for constitutional redress, and none was.

15.	For these reasons the Board allows the appellant’s appeal and reinstates the Master’s order with interest at the specified rate from 15 January 2001 until the date of this judgment.  The parties are invited to make written submissions on costs in the Court of Appeal and before the Board within 21 days.