IN THE HIGH COURT OF JUSTICE

OF

TRINIDAD AND TOBAGO

CV2009-04734

Karamchand Maharaj

Roshini Maharaj (as Executrix of the last Will of

Karamchand Maharaj, deceased, substituted by Order of

the Honourable Madam Justice Tiwary-Reddy dated the 15th

day of April, 2010)

And

(1) Balkaran Shivnauth (2) THE SOUTH WEST REGIONAL HEALTH AUTHORITY

(Amended pursuant to leave granted by the Honourable

Mr. Justice Aboud dated the 15th day of December, 2011)

***********************

Before Master Patricia Sobion Awai

Appearances:

For the Plaintiff

Mr. Malcolm Johnatty

For the Defendant:-

Mr. Jagdeo Singh instructed by Ms. Saira Lakhan

Page 1 of 23

INTRODUCTION

1. These proceedings for breach of breach of confidentiality,

false arrest and wrongful imprisonment were instituted on

December 29, 2011. The original Claimant was Karamchand

Maharaj(KM) who died and thereafter Roshini Maharaj as

Executrix of his estate was substituted as Claimant. There

were two Defendants when the matter was initiated but the

assessment proceeded only as against the South West

Regional Health Authority (SWRHA).

2. By Consent Order dated January 26, 2012, the claim was

compromised between the parties upon terms that the

Defendant, SWRHA, pay the Claimant such sum (inclusive of

costs) as might be agreed either out of court or at a

judicial settlement conference or as might be assessed by a

Judge or a Master. Pursuant to that Order, the matter came

up before me for assessment of damages and costs.

3. In the course of hearing the assessment of damages, two

issues unrelated to the substantive case arose.

4. The first issue concerned the disclosure by the Defendant

of correspondence between the parties containing settlement

proposals. I invited submissions from both parties after

which I ruled that there was an improper disclosure by the

Defendant of “Without Prejudice” correspondence, which were

struck out. In spite of the breach, I was satisfied that I

could continue to hear the matter without injustice to

either party. The Defendant was ordered to pay the costs

assessed in the sum of $4,000.

5. The second issue concerned gratuitous, uncomplimentary

remarks and personal attacks made by the attorney for the

Claimant against the instructing attorney for the Defendant

and other persons not before the court. An apology

proffered by the offending attorney was accepted and the

unfortunate wording was struck out from the Claimant’s

written submissions.

6. The latter issue in particular adversely affected the tenor

of the proceedings. Attorneys have an obligation as members

of the legal profession to avoid personal conflicts as this

may result in delay and unseemly wrangling, both of which

occurred in these proceedings. Section 41(1) of The Code

of Ethics (Third Schedule to the Legal Profession Act Chap.

90:03) is quite explicit. Such conduct is not in the best

interests of litigants or anyone.

BACKGROUND

7. This assessment of damages arose from the apprehension and

forced detention of KM, a Hindu Pundit, at the Psychiatric

Ward of San Fernando General Hospital for a period of some

seven (7) days from June 10, 2009 to June 16, 2009. KM was

only released when an Order from the High Court was

obtained in habeas corpus proceedings instituted by his

family. At the time of his detention, KM was 49 years old

and resided with his wife Roshini and daughters Kareshma

and Jayanti. KM subsequently died on January 13, 2010 and

this matter was continued by Roshini, as executrix of his

estate.

Page 3 of 23

THE DECISION

8. The Order made by the Court in this assessment was as

follows:

(a) The Defendant shall pay the Claimant general damages

assessed in the sum of $180,000.00 with interest at

12% per annum from December 21, 2009 to September 30,

2013.

(b) The Defendant shall pay the Claimant special damages

assessed in the sum of $4,500.00 with interest at 6%

per annum from June 10, 2009 to September 30, 2013.

(c) The Defendant shall pay the Claimant’s costs on a

prescribed costs basis in the sum of $36,675.00.

9. The Court also ordered that the Defendant pay the

Claimant’s costs in relation to the disclosure of

privileged documents issue assessed in the sum of

$4,000.00.

THE EVIDENCE

10. The Claimant called four (4) witnesses to give evidence at

the assessment. These were Roshini, Kareshma and Jayanti

Maharaj, the wife and daughters respectively of KM and

Kaloutie Sookdeo-Bissessar, a neighbor. These witnesses

were cross-examined by the Defendant’s attorney.

11. There was a bundle of agreed documents in addition to which

the Claimant filed three (3) Hearsay Notices dated June 6,

2011, June 13, 2011 and January 3, 2012 respectively. The

hearsay documents exhibited to the said Notices, including

the affidavit of KM made in the habeas corpus proceedings,

were admitted into evidence.

12. The Defendant elected to call no evidence.

13. The Claimant’s evidence dealt with issues of both liability

and quantum of damages. Set out below are portions of the

evidence before the Court that were of more relevance to

the assessment of damages:

Affidavit of Karamchand Maharaj

14. From the affidavit of KM, dated July 6, 2009:

2. I have seen the report by my brother

Krishna Maharaj applying for me to be

admitted. I never knew he was making such

an application. His reports on me are

untruthful. He does not live near me.

Gandhi Village is located miles from where I

live. No one including any doctor suggested

to me that I be admitted to any psychiatric

institution and therefore it is not possible

that I refused. I would have opted to be

treated in a private nursing home and not in

the San Fernando General Hospital and I can

afford private care.

3. Having spent 6 days there by courtesy of

the Respondents I can say that conditions

there are deplorable and the place is dirty

and the food scornful. The patients there

smoke weed and curse in front of the nurses

who say nothing. I do not curse or smoke

weed.

4. There are some people there who look as

though they belong there. But I do not

belong there. One day one of the patients

for no apparent reason pulled me off of the

bed while I was sleeping and I fell on the

floor.

Page 5 of 23

5. Since my release from the hospital I have

been treated first as an in-patient at a

private hospital and then as an out-patient.

That psychiatrist expressed to me and my

wife the view which I believe, that I can be

treated as an outpatient by medication which

I was taking.

Roshini Maharaj

15. From the principal witness statement of Roshini Maharaj

filed on June 13, 2011:

4. On 10th July 2009 we were all at home. It

was early in the morning. A police vehicle

and an ambulance were at the gate. The

deceased [Karamchand Maharaj] was in the

front porch. I had just brought his

breakfast to him and he had sat down to eat

it. The deceased waved to the police to

come in and he opened the gate with the

remote control. Two police officers came

in. One came upstairs where we were. He

said they had a Court Order to take the

deceased to San Fernando General Hospital

for a cancer check-up. I asked why and the

police just replied there was a Court Order

and held up a small piece of paper but did

not allow me to read it. I asked to read it

and he appeared to become angry.

5. I protested and so did my two daughters

and we all began crying, saying that the

deceased had not done anything. The police

took the deceased away. My younger daughter

Karishma went into the ambulance with him.

6. I phoned a friend from the area and asked

him to drive us to the hospital. We reached

San Fernando General Hospital at about 9.30

and asked for where they would be doing

cancer tests. The policeman had misled us

and after wandering around the hospital I

eventually found the deceased was in the

psychiatric ward. Jaya my older daughter

and I got there at about 10 a.m. and found

him with Kareshma.

……….

14. The deceased had been diagnosed with

cancer of the lung about two months earlier.

The deceased does not smoke or drink alcohol

but he used to be exposed to a good deal of

smoke during the course of the prayers he

said for people when small fires are lit as

part of the ceremony. The cancer affected

his voice box as well.

15. Following his diagnosis of cancer the

deceased sought to start to treat his cancer

with ayurvedic remedies including herbal

remedies, yoga, prayer and meditation which

he believed are a less invasive treatment

than chemotherapy, and he believed that in

any event that if he had to resort to

chemotherapy the ayurvedic remedies will

reduce his stress and make his body more

receptive to the chemotherapy.

16. On Thursday 11th June 2009 when I spoke

to Dr Foon I showed to her a report which

showed that the Deceased had cancer. It is

at page 1 of the bundle. She said that

cancer treatment is not available at that

hospital and when he is discharged I should

make arrangements for that treatment. She

also said that the deceased had told her

that God will heal him, and she expressed

the view to me that that alone showed that

the deceased was not in his right mind.

17. Over the past few years before he died

the deceased did in fact visit a

psychiatrist Dr Hari Maharajh from time to

time and received medication for depression.

His last visit to Dr Hari Maharajh was about

6 weeks before he was detained on 10th June

2009. I was present when he visited Dr Hari

Maharajh. At not time did Dr Hari Maharajh

say that the Deceased should be detained in

any psychiatric institution. He just

prescribed some tablets.

……….

Page 7 of 23

21. The deceased never at any time displayed

any outward signs of any mental disorder and

he functioned as a normal person would. He

was never hostile or aggressive whether in

or out of our home. …………

22. During the months of April and May 2009

Krishna Bobo Maharaj had come to me a few

times with a paper for me to sign for the

deceased to be committed to the psychiatric

ward. There was nothing from any doctor.

As far as I know that was only Bobo’s

request. I refused, believing that his

siblings wanted him to be proved to be mad

as a means of succeeding in their legal

dispute.

Kareshma Maharaj

12. From the witness statement of Kareshma Maharaj filed June

13, 2011:

2. I remember 10th June 2009. About 7.30 in

the morning my older sister Jayanti and I

were dressed and ready for school. Jayanti

is also known by the name Jaya. At the time

we both attended Parvati Girls Hindu College

in Debe. I still attend there.

3. My father was sitting in the porch with a

plate that my mother had just brought out to

him. A police jeep and an ambulance came to

the gate and my father opened the gate with

the remote and beckoned them to enter. Two

uniformed police officers got out of the

jeep and came into the yard. One came

upstairs saying they had a Court Order for

them to take him, which we now know to be

false.

4. One of them took my father downstairs and

put him into the ambulance. I changed out of

my school uniform and dressed in normal

clothes and I got into the ambulance with

him. On the way to San Fernando General

Hospital, my father was crying all the time.

5. When we got to the hospital they took my

father to the psychiatric ward known as Ward

One. I went into the ward with him. He sat

on a bench and I sat next to him. When we

got to the ward, Chaitram Rambharose who is

married to my father’s sister Indra was

there. My father’s brother Krishna also

called Bobo as well as Chaitram’s son

Clifford came about half hour later. My

mother and sister came at abour (sic) 10

a.m. My mother went to speak to the doctor,

a man who spoke with an Indian accent.

Chaitram has since died but he was at the

time a psychiatric social worker attached to

the hospital. Chaitram Rambharose told my

father, “Is long time we trying to get you

in here.”

6. I remember the following day 11th June

2009, Corpus Christi. On 11th June 2009 one

Dr Foon at the said Ward One spoke to my

sister Jaya and me. She asked us in my

father’s presence what we knew about

something my father was saying that there

was some dispute with his siblings about

land. Both Jaya and I told her we knew

about the dispute and there was land in

Barrackpore and his siblings, in particular

Krishna also called Bobo and Radhica came a

few times at nights to try to get him to

sign something and he was refusing. My

father was there and he told Dr Foon that it

was 49 acres of land.

Jayanti Maharaj

13. I did not find the evidence of Jayanti to be useful except

insofar as she was able to corroborate statements made by

her sister Kareshma regarding the apprehension of KM at

their home on June 10, 2009.

Page 9 of 23

Kalawatee Bissessar- Sookdeo

14. From the witness statement of Kalawatee Bissessar-Sookdeo

filed on June 13, 2011:

2. I knew Karamchand Maharaj and his wife

Roshini Maharaj since about 1993 when they

came to live in Laltoo Trace, Penal. I knew

him to be a Hindu Pundit known as Pundit

Aum. I knew him to be conducting of

religious services for members of the Hindu

faith.

3. I am aware that in June 2009 he was taken

to the psychiatric ward at San Fernando

General Hospital. I was extremely

surprised. At the request of his wife

Roshini Maharaj, I gave instructions to her

Attorney-at-Law and swore to an affidavit in

support of his application to be released.

4. I am aware of a report purporte (sic) to

have been signed by his brother. It alleged

that Karamchand Maharaj walked the street

semi-clothed and begging for money. That

brother never lived in this district.

Karamchand Maharaj was always fully clothed

when I saw him and I saw him many times in

his yard and on the street. As a Hindu

pundit he always carried himself about with

the decorum that one would expect. I swore

to a second affidavit saying this.

5. I have never seen or heard of Karamchand

Maharaj begging or asking for money. I know

almost everyone in Laltoo Trace and we are a

closely knit community and had such a thing

been going on I would have known.

…….

8. If Karamchand Maharaj suffered from any

psychiatric disorder, it was not apparent

from his behavior or demeanour and he

carried on his life like a normal person.

He was a very peaceful person and never a

nuisance or threat to anyone in the

community, and I never knew him to be in

trouble with the law.

EVIDENTIAL OBJECTIONS

16. The Defendant made submissions on evidence in the following

documents

Notice of Evidential Objections filed on September 15,

2011

Notice of Application filed on January 7, 2013

Defendant’s written submissions filed on March 5, 2013

17. The Claimant responded in the following documents:

Claimant’s submissions on evidential objections filed on

December 10, 2012

Claimant’s submissions on quantum of damages filed on

January 28, 2013.

18. Having considered the submissions of both parties, I found

as follows:

a) A significant portion of the witness statements of

Roshini Maharaj was irrelevant to the assessment.

b) The Defendant’s objections to paragraphs 7, 9 and 10

of the witness statement of Kalawatee Bissessar-

Sookdeo were upheld.

c) The Defendant’s objections to paragraphs 7, 10 and

11 of the witness statement of Kareshma Maharaj were

upheld.

d) Paragaraph 3 of the affidavit of Jayanti Maharaj was

irrelevant.

e) The objections relating to the affidavit of KM were

not upheld.

Page 11 of 23

FINDINGS OF FACT

The compromise

19. In this assessment the parties compromised on the issue of

liability and as such the trial judge made no express

findings of fact. However the claim as against SWRHA is for

damages for unlawful arrest and detention, particulars of

which were set out in the claim form and statement of case.

For the purposes of the assessment, the allegations which

constituted the tort of unlawful arrest and detention as

set forth in these documents must be deemed to be proved.

20. The short facts were that the Defendant, acting through its

servant or agent, purported to issue an apprehension order

dated June 9, 2009 which falsely stated that KM had failed

or refused to be admitted to a psychiatric ward. That

apprehension order directed the police to apprehend him and

convey him to the San Fernando General Hospital, which they

did on the morning of June 10, 2009. KM was detained

against his will at the Psychiatric Ward for several days.

He was released on June 16, 2009 after an Order was issued

by the High Court in habeas corpus proceedings.

The Mental Health Act Chap 28:02

21. SWRHA purported to detain KM as a medically recommended

patient. Pursuant to the Mental Health Act Chap 28:02, the

Psychiatric Hospital Director or the duly authorized

medical officer may issue an apprehension order upon

receipt of an application from a relative or friend

accompanied by two certificates of two medical

practitioners, one of whom shall be a Government Medical

Officer. To be valid, the medical certificates must be in

accordance with section 10(2) of the Act which requires,

inter alia, that both certificates must be done within

seven days of each other. Additionally, the Psychiatric

Hospital Director or duly authorized medical officer must

be satisfied that the person named in the certificates is

unable or unwilling to express himself as being in need of

care and treatment. This latter requirement was not

satisfied in the instant case.

Family dispute

22. Roshini Maharaj testified that KM’s siblings wanted him to

be proved mad as a means of succeeding in their legal

dispute concerning land.

23. Kareshma stated that at the Psychiatric Ward, a doctor

asked Jayanti and herself what they knew about KM’s dispute

with his siblings and they told her about the dispute over

49 acres of land in Barrackpore and about a document that

KM was refusing to sign.

24. There was no credible evidence to support the contention

that the SWRHA was implicated or took sides in any alleged

plot to have KM declared insane to further the interests of

his relatives. In my opinion, the family dispute was

irrelevant to this assessment.

The apprehension

25. On June 10, 2009, at about 7.30 am, KM was at home with his

wife and two daughters when a police vehicle and ambulance

came to the gate. KM who was seated upstairs in the porch

having his breakfast, opened the gate with the remote

control allowing the two uniformed police officers to come

in. The police officers indicated that they had a Court

Page 13 of 23

Order to take KM to the San Fernando General Hospital for a

cancer check-up.

26. Despite protests and cries from the family, the police

officers took KM and placed him into the ambulance. KM’s

younger daughter Kareshma accompanied him in the ambulance

to the San Fernando General Hospital. Kareshma reported

that KM cried all the time.

The detention

27. KM was detained at the Psychiatric Ward of San Fernando

General Hospital from 7:30 am on June 10, 2009 to 1:45 pm

on June 16, 2009, a period of 7 days.

28. In his affidavit, KM said conditions at the ward were

deplorable, the place was dirty and the food was

“scornful”. He said that patients smoked weed and cursed

in front of the nurses who said nothing. KM neither cursed

nor smoked weed.

29. KM recalled an incident one day when one of the patients

pulled him off the bed for no apparent reason causing him

to fall to the floor. He said some of the people in the

Ward appeared to belong there. He felt that he himself did

not belong there.

30. KM’s account of the conditions at the Psychiatric Ward was

accepted. Although no challenge by way of cross-examination

was possible, it was open to the Defendant to lead evidence

to contradict KM’s version. It failed to do so.

The release

31. The family was informed that KM was being detained under a

Court Order. They subsequently learnt that he was detained

as a medically recommended patient under an Apprehension

Order purportedly issued by a medical officer under the

Mental Health Act Chap. 28:02. A medically recommended

patient may be discharged on the receipt of a written

undertaking by a relative or friend if it is conducive to

the recovery of the patient that he should be under the

care and in the custody of such relative or friend: section

11(1) of the Mental Health Act Chap. 28:02.

32. Instead of the written undertaking, the family, believing a

Court Order had been issued, retained an attorney at law

who instituted habeas corpus proceedings on July 7, 2009.

On July 15, 2009, the High Court ordered the immediate

release of KM.

33. That Order for KM’s release was served on SWRHA on July 16

at 10.55 am. At 11.00 am, the doctor at the Psychiatric

Ward indicated that she would first have to speak to the

doctor in charge about KM’s release. At about 12.15 pm,

the same doctor indicated that they were seeking legal

advice about the Court’s Order. At about 1.05 pm, Roshini

Maharaj was invited into the Ward and the doctor in charge

spoke with her until about 1.30 pm. Roshini was then asked

to sign a document stating that the hospital was not

responsible for KM’s discharge. She signed the document

and KM was released at 1.45 pm.

Page 15 of 23

KM’s Social Standing in the Community

34. KM was a Hindu pundit. He conducted religious services for

members of the Hindu faith.

35. According to Kalawatee Bissessar-Sookdeo, “As a Hindu

pundit, he always carried himself about with the decorum

one would expect.” She was unaware that KM suffered from

any psychiatric disorder since it was not apparent from his

behavior or demeanour and he carried on his life like a

normal person. She described him as a very peaceful person

who was never a nuisance or threat to anyone in the

community. She was surprised to learn that he had been

taken to the Psychiatric Ward of the San Fernando General

Hospital.

SUBMISSIONS ON QUANTUM

36. The Claimant submitted that the Defendant was guilty of

outrageous conduct as evidenced by (a) the representation

that the detention was based on a Court Order, (b)the non-

compliance with several procedures set out in the Mental

Health Act Chap. 28:02, (c)the Defendant’s knowledge of the

land dispute involving KM’s siblings and himself, (d)the

failure to release KM immediately upon being served with

the Court Order dated July 15, 2009 and (e)the Defendant’s

attempt to set aside that Order.

37. In addition to the above matters, the Claimant identified

other factors such as KM’s humiliation at being arrested by

police at his home in the presence of curious neighbours

which warranted an award of aggravated damages.

38. Special damages were sought for travelling expenses, for

meals bought for the family during the period of detention

and for costs incurred for KM at a private medical

institution after his release from the Psychiatric Ward.

39. The Defendant for its part submitted that the Claimant was

not entitled to aggravated damages, or alternatively, such

an award should be low because the Claimant failed to plead

or prove immense physical and emotional harm and financial

hardship resulting from KM’s detention. Further, there was

no real evidence to show that the Defendant acted in bad

faith.

40. The Defendant also submitted that the injury to KM’s

reputation and humiliation was not proved on a balance of

probabilities, and that KM’s detention at a Psychiatric

Ward would, in any event, have been less severe than

detention in a prison in Trinidad.

41. As to special damages, the Defendant argued that no award

should be made under this head because there was no

apparent need for KM to stay at a private institution after

his release and there was no evidence to support the

claims.

42. Both parties cited numerous authorities from this

jurisdiction on the level of awards in cases involving

unlawful detention. While I am grateful for the authorities

provided, for convenience, I will refer only to some of the

more recent cases involving comparable periods of

detention.

Page 17 of 23

GENERAL DAMAGES

43. For the tort of false imprisonment or wrongful detention

the relevant heads of damages include injury to liberty,

injury to feelings and injury to reputation. Injury to

liberty refers to loss of time from a non-pecuniary

standpoint. Injury to feelings refers to mental suffering

encompassing loss of dignity, humiliation, disgrace and

loss of social status. Injury to reputation is damage done

to a person’s good name or character.

44. Additionally, the court may award aggravated damages where

the evidence justifies such an award. Aggravated damages

are an aspect of compensatory damages which must be

distinguished from exemplary or punitive damages. In

Takitota v The Attorney General, Director of Immigration

and Minister of National Security PC Appeal No 71 of 2007,

at paragraph 11, the Privy Council explained the rationale

for an award of aggravated damages as follows:

“In awarding compensatory damages the court

may take account of an element of

aggravation. For example, in a case of

unlawful detention it may increase the award

to a higher figure than it would have given

simply for the deprivation of liberty, to

reflect such matters as indignity and

humiliation arising from the circumstances

of arrest or the conditions in which the

claimant was held. The rationale for the

inclusion of such an element is that the

claimant would not receive sufficient

compensation for the wrong sustained if the

damages were restricted to a basic award.”

45. In this case, KM spent seven (7) days in the Psychiatric

Ward of the San Fernando General Hospital. He lost time

that would otherwise have been spent with his family and in

his community conducting religious services as a Hindu

pundit. He also lost time which would have been spent

receiving treatment for his cancer since such treatment was

not available at the Psychiatric Ward.

46. The manner of KM’s apprehension at his home by police

officers and the deplorable conditions at the Psychiatric

Ward where KM was detained aggravated the injury and

suffering of KM.

47. Because of the Defendant’s actions, which became known

within the community, the Claimant would have suffered

humiliation and loss of social standing. Prior to his

detention, KM was receiving psychiatric treatment including

medication. It was a private matter and he was able to

continue to perform his duties as a Hindu pundit without

the social stigma often associated with mental illness.

This would have changed after his enforced detention at the

Psychiatric Ward.

48. The fact that he had to bring habeas corpus proceedings to

secure his release was also an aggravating feature causing

distress to KM and his family.

49. However I did not accept the Claimant’s submission that the

family land dispute and the failure to release KM

immediately upon service of court order were aggravating

elements in this case. The evidence did not show that the

Defendant was implicated in the alleged family dispute.

The release was effected approximately three hours after

the service of the order. There was no inordinate delay

Page 19 of 23

since the Defendant was entitled to obtain legal advice and

ensure that the release was properly effected.

50. In assessing general damages for the wrongful detention,

the court must have regard to awards in this jurisdiction

for similar infringements.

51. In Thadeus Clement v The Attorney General CA 95 of 2010,

the appellant spent approximately six (6) days in wrongful

detention. He complained in particular about the four (4)

days he spent at the Remand Yard where conditions were

described as “sub-human”. The Court of Appeal in July 2013

awarded the sum of $160,000.00 inclusive of aggravated

damages.

52. In Uric Merrick v The Attorney General CA 146 of 2009, the

Appellant who pleaded guilty in the Magistrates’ Court was

sentenced to six (6) months in prison. He appealed and was

kept at the Remand Yard. He withdrew his appeal but instead

of being released, he was transferred to the Port of Spain

Prison to begin to serve his sentence. The trial judge

found he was wrongfully detained for thirty-five (35) days

and awarded the sum of $35,000.00 as general damages. The

Court of Appeal in February 2013 after comprehensively

reviewing awards for false imprisonment in this

jurisdiction increased the award to $200,000.00 which sum

was inclusive of aggravated damages.

53. In Siewnarine Buchoon, Johnny Buchoon and Nicole Webber v

The Attorney General CV2006-1846, the second Claimant was

wrongfully kept in custody for seven (7) days and charged

with felling, stealing and removing teak trees without a

proper licence. The charges were dismissed and the

claimant obtained judgment for malicious prosecution. In

assessing general damages, the Court took into account

verbal threats and abuses the claimant had to endure from

police officers and the deplorable conditions of his prison

cell. In September 2011, he was awarded $90,000.00

inclusive of aggravated damages.

54. In Kedar Maharaj v AG CV2009-1832, the Claimant who had

been detained at St Ann’s Hospital for many years was not

released until some twenty-nine (29) days after a warrant

for his release had been issued. His release was ordered

by the Court in habeas corpus proceedings. The Court

awarded the sum of $280,000.00 having regard to the length

of detention, the mental suffering of the Claimant and the

conditions of his detention which added an element of

aggravation.

55. In the circumstances of this case, I considered the sum of

$180,000.00 to be an appropriate award taking into account

the period of detention and the elements of aggravation

referred to above.

SPECIAL DAMAGES

56. The Special Damages claimed in the Amended Statement of

Claim were as follows:

a) Travelling from Penal to San Fernand General Hospital

and back: $200 x 7 = $1,400

b) Purchase of meal: $50 x 7 = $350

c) Cost of staying at Cross Crossing Medical Centre:

$6,500.

Page 21 of 23

57. With respect to the first two claims, there was no evidence

before the Court on those matters and no award was made

under those heads.

58. With respect to the claim for the cost of staying at Cross

Crossing Medical Centre, I considered this to be a

reasonable expense incurred by the Claimant because KM’s

emotional state following his unlawful detention would have

been unknown and therefore putting him under the care of a

psychiatrist who could determine what was in the best

interests was a good precaution to take. The receipt which

form part of the Agreed Bundle shows that the costs of the

stay at Cross Crossing Medical Centre was $4,500.00. That

sum was allowed.

EXEMPLARY DAMAGES

59. At the assessment, the Claimant did not pursue the claim

for exemplary damages.

60. In any event, this was a claim which survived for the

benefit of the estate of the deceased KM and such claims do

not attract exemplary damages: Section 27 (2) (a) of the

Supreme Court of Judicature Act Chap 4:01.

COSTS

61. The general rule is that where fixed costs are

inapplicable, costs should be determined on a prescribed

costs basis in accordance with Rule 67.5 of the Civil

Proceedings Rules.

62. The Court has been asked to consider reducing the costs

payable on the ground that the Claimant unreasonably

refused to accept its settlement offer. I rejected that

submission because the award made by the Court was more

than the Defendant’s offer and as such the Claimant’s

refusal could not be considered to be unreasonable.

63. The Claimant sought additional costs for the failure of the

Defendant’s application to strike out evidence admitted by

virtue of the Hearsay Notices and the other evidential

objections. In fact neither party was wholly successful in

respect of the evidential issues. Although documents were

admitted through the Hearsay Notices and no evidence was

struck out, many of those documents were not relevant to

the assessment and were therefore of little or no weight

and therefore not taken into account. In any event, the

evidential objections proceeded by way of written

submissions which were considered together with the

substantive submissions. These costs were therefore

included in the prescribed costs awarded to the Claimant:

Rule 67.7 of the Civil Proceedings Rules.

CONCLUSIONS

64. In this case, the failure of the SWRHA to follow the

procedures set out in the Mental Health Act Chap. 28:02

resulted in the unlawful detention of a citizen at the

Psychiatric Ward of the San Fernando General Hospital for

seven (7) days. The power of the Psychiatric Hospital

Director and authorized medical officers to issue

apprehension orders for the detention of medically

recommended persons is an important safeguard that protects

the public interest when properly invoked. However when it

is misused or when there is a failure to follow the

stringent requirements of the Act, the result is the

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unlawful deprivation of the liberty of a subject with dire

consequences as in this case.

Dated this 30th day of October, 2013

P. Sobion Awai

Master