THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE...
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THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
Claim No. CV2013-05208
Between
GARETH WISEMAN
Claimant
And
ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
Defendant
Appearances:
Claimant: Mr. Mark Seepersad and Mr. Terrence Davis.
Defendant: Mr. Paul Isaac and Ms. Rishma Ramrattan.
Before the Honourable Mr. Justice Devindra Rampersad
Date of Delivery: October 9, 2019.
JUDGMENT
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Table of Contents
Introduction ........................................................................................................................ 3
Procedural Background ....................................................................................................... 3
The 18 July 2013 Incident ................................................................................................... 5
General Damages for pain and suffering arising from the incident on the 18th July, 2013 9
The 8 October 2013 Incident ............................................................................................ 12
Injuries other than the eye ............................................................................................... 17
Quantum for General Damages ........................................................................................ 18
The Eye Injury .................................................................................................................... 19
Aggravating Factors .......................................................................................................... 24
Exemplary Damages .......................................................................................................... 25
The Order .......................................................................................................................... 26
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Introduction
1. The claimant brought this action against the defendant on the 20 December, 2013
claiming damages including aggravated and exemplary damages for injuries he
received arising from two incidents of assault and battery on him by prison
officers. The first incident occurred on the 18 July, 2013 in which one Officer
Alleyne assaulted and battered the claimant. In the second incident, which
occurred on 8 October, 2013 the said Officer Alleyne and other officers, whose
names are unknown, assaulted and battered the claimant. At the time of the
incident the claimant was a prisoner of the State.
Procedural Background
2. The defendant initially defended the claim by filing its defence on the 29 April,
2014 and which was amended on the 16 September, 2014. The claimant filed a
reply on the 7 October, 2014 responding to and denying the allegations made in
the defendant defence.
3. At the trial, the defendant chose not to offer any evidence and did not file any
witness statements.
4. The claimant filed three (3) witness statements done by him. The first statement
was filed on the 18 March, 2016, a second further statement was filed on the 24
March, 2016 and a third supplemental witness statement was filed on the 3
March, 2017 pursuant to an order of the court dated 19 January, 2017. The
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claimant also filed witness statements from Christopher Selby and Shakeil Isaac in
support of his claim.
5. A trial bundle was also filed and no objection was taken as to the admissibility of
any of the claimant’s evidence. On the 6 March, 2018 an agreed bundle of
documents were filed detailing the medical reports and qualifications of one Dr.
Justo, who was the agreed expert witness.
6. The defendant produced no evidence and offered none at the trial. The defendant
filed a Notice on the 13 May, 2016 indicating that it admitted the authenticity of
the witness statements filed on behalf of the claimant and that it did not wish to
cross-examine the witnesses.
7. The defendant having offered no evidence nor cross-examined the witnesses
means that the evidence of the claimant remained uncontested and unchallenged
and therefore stands as the only evidence before this court since the evidence was
not so incredible as to suggest that it ought not to be accepted.
8. On the 13 December, 2018 this court made orders regarding the filing and
exchange of submissions by the parties. At item (5) of this order, this court stated:
“In the event of the default by any party in respect of the filing and service
of any submission on the days prescribed, the court will proceed to render
its judgment without that submission.”
9. It is worth noting that the defendant did not file any submissions in this matter.
The claimant filed his submissions on the 14 January, 2019. Therefore, this court
proceeded to render its decision without any assistance from the defendant.
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The 18 July 2013 Incident
10. The claimant was assaulted and battered by the said Prison Officer Alleyne on the
18 July, 2013. Officer Alleyne hit the claimant several times with his staff in the
thigh, head, ribs and chest area. The claimant describes the incident in his witness
statement filed 18 March, 2016 as follows:
“8. Officer Ralph was there at least I know him as Ralph. I signalled to Mr.
Ralph with a nod for me to go to the gate and collect the cigarette. Mr.
Ralph watch me and nod which I took as confirmation that permission was
granted for me to go to the gate and collect the cigarette. I had to walk
through an initial gate that separates the cells in the cell block from the
officer’s area before I met the mesh gate between the officer’s area of the
cell block from the main prison gate. When I got there I stretched my hand
out and got the cigarette from the inmate. When I turned around Alleyne
was standing up with his staff drawn. Now in jail my experience has taught
me that an officer don’t draw his staff just so. The only time that the
officers draw the staff is when they looking to hit you with it. Most of the
officers don’t hit you just so, especially if they know you. So when I see
Alleyne with the staff I say to myself that he looking to lash me with the
staff and there was no reason for that. I did not do anything. He did not
even say anything to me before I see the staff in his hand.
9. Alleyne was holding the staff out lengthways and instructed me to sit. I
refuse on account of how he was moving aggressive with the staff pointing
out at me. If I sit down he could hit me with the staff easier. Alleyne just
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push out the staff towards me as if he was using the staff to force me down
into a sitting position. The way the staff was coming it looked to me as if
the staff was going to go across my neck. I went to push the staff away from
hitting me but before I could he shift and hit me with the staff in the thigh
first. When this happen I brakes but was too slow and Alleyne then hit me
in my head. I also felt a lash across the ribs and chest area but that one I
can’t say if he pushed me with the baton or hit me with the baton, or hand
or foot. But I know that he hit me. The reason why is that it happened real
quick and I was in shock trying to brakes the lash. Thankfully the lash to the
head was not bad as if he did not get to connect me properly. But I know
that I did nothing to Alleyne to deserve those lashes.
10. Officer Ralph jumped up from where he was and come across saying
something like “what dat” and “cool it”. I believe it was Officer
Ralph who parted Alleyne from me but by that time it had other
officers from the main prison who came and removed me from the
area. I was in shock and I really don’t recall who the officers were
or if I knew them at all.
11. The claimant was taken back to his cell and thereafter taken to the infirmary
where he was examined by the infirmary officer and was given painkillers, which
he believed to be Panadol. The claimant asked to go to the hospital as his leg and
head was in pain, however he was referred to the Prison Medical Officer and
subsequently examined by the Medical Officer. He later reported the incident to
one ASP Johnson.
11.1.1. The claimant submitted that Officer Alleyne was the aggressor and
antagonist and was motivated by ill-will and spite in provoking and harassing the
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claimant, which culminated in the savage beating of the claimant. The claimant
also contended that a breakdown in the relationship between himself and Officer
Alleyne was the motivating factor behind the calculated actions of assault and
battery. The claimant alleged that these factors together with his savage beating
differentiate the facts of this case from the “run of the mill” assault and battery.
12. In this regard, the claimant referred to an incident which took place few days prior
to this incident:
“There was an incident between Officer Alleyne and Alan Martins (who is
now deceased). Officer Alleyne had slammed the gate on Martins, which
he blocked from hitting his face. Officer Alleyne was going to hit Martins
with the staff, when the claimant who was observing what was going on,
bawled out to Officer Alleyne telling him that he can’t lash Martins just so
and something like he can’t hit nobody like that. Officer Alleyne turned to
the claimant with the staff as if he was going to hit him. He started to come
towards the claimant but Officer Sequa stopped him.”1
13. The claimant explains that he and Officer Alleyne used to “go down good” and he
used to bring cigarettes for him when he was in the division. There was a time
when he was supposed to bring cigarettes for him and he did not. This led to the
deterioration of the relationship. The claimant stated the following in his witness
statement:
“4. …The truth is that me and Alleyne used to go down good. I would
go so far to say kind of friendly. He was a cool officer in the sense
that he used to give me lee way with cigarettes. When I say lee
1 See paragraph 6 of the claimant’s witness statement filed 18 March, 2016.
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way I mean that Alleyne used to turn the other way when he see
me and other inmates or if we was smoking in the division and he
was passing he sometimes would say things like “don’t hide it- it
cool” things that made me realize that he was a cool officer in the
sense that the did not stick to all the rules. …
5. … Alleyne used to bring cigarettes for me when I was in his division.
That started years ago. Sometimes when I smoking he would pass
and take a few pull from the cigarette and then go his way. A time
Alleyne was supposed to bring cigarettes for me and he did not.
When I ask him he start to coast on me about the cigarettes and
treat me a kind of way. It was then I realise that I did not want to
trust him and I end up coasting on him or it. I remember a day he
pass and ask me for a cigarette and I remind him what he do and
me and he had some hard talking - I call him a hungry dog and he
get vex. He did not get any from me after that. Since then he hold
me in mind – watching me hard and so on. …”
14. As a result of the assault and battery the claimant suffered personal injury as
follows:2
“i. Swelling and welts to the left upper thigh;
ii. Swelling and pain to the chest and ribs
iii. Swelling and bruising to the head;
v. The Claimant experienced difficulty walking for days
following the assault.”
15. The claimant submitted that the injuries are perfectly in line with the assault
described by the claimant in his witness statement and that on the weight of the
2 See paragraph 10, Amended Statement of Case.
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evidence the claimant has made out the assault of the 18 July, 2013 and the
injuries as pleaded.
16. Having regard to the evidence as stated above this court agrees with the
claimant’s submissions and accordingly holds that the defendant is liable for the
assault and battery of the claimant on the 18 July, 2013.
General Damages for pain and suffering arising from the incident on the 18th July, 2013
17. The claimant contends that the injuries suffered by him on the 18th July, 2013 was
not severe and, in terms of assault and battery, are relatively minor. In fact, they
are pale in comparison to the injuries suffered by him in October, 2013. The
claimant commended the following authorities as setting the range for mile to
moderate injuries. These figures are subject to the inflationary upward revision
17.1. Ijaz Bernadine v Attorney General CV2010-02956
The claimant was awarded the sum of $55,000 in respect of general
damages. The injuries were (i) right eyebrow laceration; and (ii)
Ecchymosis of right eye together with soft tissue injuries about the body.
17.2. Russell Seaton v Attorney General CV2009-03667
The claimant was awarded the sum of $45,000 for the following injuries:
(i) soft tissue injury to left wrist, knee and to the upper back; (ii) soft tissue
injury and forehead with swelling to left forehead; (iii) soft tissue injury
and forehead with bruising to right forehead; (iv) multiple (x3) superficial
abrasions to left elbow.
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17.3. Ivan Neptune v Attorney General CV2008-03386
The claimant was awarded the sum of $25,000 for the following injuries:
(i) multiple hematoma to the scalp; (ii) left facial swelling; (iii) left
peritoneal hematoma; (iv) hematoma to the left anterior shoulder; (v) soft
tissue injury to abdominal and chest wall; and (vi) large hematoma to the
right thigh.
17.4. Kerron Welcome v Attorney General CV2012-01444
The claimant was awarded the sum of $50,000 in general damages for
serious and multiple tooth damage requiring surgery and treatment.
17.5. Dwain Kirby Henry v Attorney General CV2008-03079
The claimant was awarded the sum of $35,000 in general damages for the
following injuries: (i) left ear laceration with bleeding; (ii) right occipital
area swelling and tenderness; and (iii) right forearm abrasions and
bleeding.
17.6. Frankie Bartholomew, Terrel Toney, Randy St Rose, and Leon King v
Attorney General CV2009-04755
The claimant Frankie Bartholomew was awarded the sum of $60,000 as
general damages. He suffered a 1 cm laceration to his left eye that was
swollen and tender; swollen right elbow; red? to lateral aspect of right
elbow; tender and swollen right forearm; tender and swollen left forearm;
puncture wound visualized to posterior aspect of left forearm; tender
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mildly swollen anterior aspect of left foot; 0.5 cm superficial abrasion to
anterior aspect of left foot; tender mildly, swollen left ankle; tender,
swollen anterior aspect of right foot; and 0.5 cm laceration to anterior
aspect of right foot.
Terrel Toney was awarded the sum of $25,000 as general damages. He
suffered soft tissue injuries to both forearms and left thigh with a shallow
laceration to his left third??? Cleft.
Randy St Rose was awarded the sum of $25,000 as general damages. He
suffered a tender mildly swollen right knee; tender, swollen right forearm;
tender, swollen left arm; tender swollen left forearm.
Leon King was awarded the sum of $35,000 as general damages. He
suffered laceration to right side of forehead 1 cm x skin deep; bruise right
calf; bruise right side of back; bruise over old retained bullet right side of
upper sternum; soft tissue injury to lateral aspect of left hand.
18. The claimant submitted that the awards of damages in the above cases require
updating to the Net Present Value for inflation so as to factor into consideration
the fall in the purchasing power. The claimant accepted that his injuries are on
the lower end of the scale of loss. The claimant is also claiming aggravated
damages on the basis of the following:
18.1. Mental distress suffered by him over and above that associated with the
personal injuries suffered.
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18.2. This was an unprovoked attack, stemming from the personal ill will of an
officer whose ill will was brought about by his own conduct in the officer
breaching the rules and regulation of the Prison Service.
18.3. The assault occurred in full view of other officers and inmates.
18.3.1. The defendant proceeded with a sham defence wasting the
resources of the court and putting the claimant through the
unnecessary aggravation of proceeding to trial.
19. The claimant submitted that the appropriate Net Present Value range for an
award of damages in relation to the injuries sustained by him on the 18 July, 2013
with an uplift for aggravating circumstances is between $35,000 and $50,000.
20. Accordingly, the court find that an appropriate award for general damage in the
sum of $30,000.00 which includes an uplift for aggravated damages.
The 8 October 2013 Incident
21. On the 8 October, 2013 the claimant was assaulted and battered by the said
Officer Alleyne and other officers, who he is unable to identify, while they were
acting in the course of duty at the Port of Spain Prison. The claimant was escorted
to the visit room for a visit with his family. Shortly after the visit commenced
Officer Alleyne tapped the claimant on his shoulder and indicated to him that the
visit was over. The claimant attempted to explain to Officer Alleyne that the
stipulated period for his visit had prematurely ended and as a result, there was an
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exchange of words between the Claimant and Officer Alleyne in which Officer
Alleyne, threatened to kill the claimant “in jail”.
22. The claimant in his witness statement filed on the 18 March, 2016 stated that:
“19. So me and Shakeil walk out of the main prison and across the courtyard to
where the visit room is. The courtyard is when you enter the prison – you
pass through a big gate then the yard and to go to the main prison it have
another gate to pass through. The visit room is on the eastern side of the
yard. The inmates enter through a door facing the yard where you take
your visit… When I get to the visit room I see Officer Alleyne was
working visit. I pay him no mind cause I was not on him and had no
dealings with him.
20. … The visit started with me talking to Shakeil mother and he talking to his
sister-Chantelle. Then we change visitors so we was both getting to speak
to each visitor. Selby was also getting a visit at the same time.
21. I did not notice Alleyne by the door. It was Charmaine who point out to me.
She ask me what that officer have with me and why he looking at me so.
Or words to that effect. I tell she don’t study he and I don’t know why that
officer always on me. I tell her that but I know that since the earlier
incidents Alleyne was likely to hold me in mind. After about 5 minutes
Alleyne come up to me and say “visit over”. I watch him and I could not
believe that this man cut my visit. I get up grab my visit bag and leave the
visit room. It is when I see Alleyne by the tables outside the visit room that
I get vex. I see it in his face – a kind of look that tell me he cut my visit for
spite and he was happy about it. I won’t lie – I get real vex and I start to
coast on Alleyne. I start to quarrel and tell him why he always coming
round me. I call him an asshole and a bullerman. I not proud that I get vex
but that is the truth. I sure I must have used some obscene too - … Alleyne
turn and tell me “you only talking talking. I done tell you I go kill your … in
jail”.
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23. The claimant complained to Officer Fraser about the denial of his visit and the
conduct of Officer Alleyne. The claimant walked off in the direction of the main
prison gate. In front of him was a group of inmates who had finished taking visit
and was being escorted back to the main prison. Officer Seejagat was escorting
them. The claimant was not in that group, he was way behind them as he was still
supposed to be getting his visit. Selby had finished his visit and was in that group
of prisoners.
24. When the claimant was about three-quarter way through the yard, he sensed
something and he turned to look behind him and he saw Officer Alleyne coming
towards him walking kind of fast. The claimant on realising Officer Alleyne was
coming to attack him, stopped and dropped his bag because there was nowhere
for him to go. The claimant stated that he know that licks was coming so he braced
himself but he did not realise that this was going to get out of hand.3
25. Officer Alleyne sped up to the claimant and fired a punch towards the claimant’s
jaw. The claimant side stepped the punch and Alleyne missed him and he fell flat
on his face or chest. While Alleyne was in the ground he grabbed the claimant’s
foot and pulled him down. The claimant described what happened next as
follows:
“25. I went down next to Alleyne, I did not fall on him but more to the side. He
was still trying to grab me when I went down … I struggle to get back up but
Alleyne was still grabbing me wildly. That was a scuffle on the ground but I
did not hit Alleyne. I was only trying to get away from his grip. I manage to
3 See paragraph 23 of the Claimant’s Witness statement filed 18 March, 2016.
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get up and while I was almost erect I just feel a force pulling me from behind
and down. At this point I could not do anything. I feel my legs give way like
either a push ro pull at my legs because I lose my footing while I was trying
to counter the force pulling me back and down. When I lose my footing that
was it I went down on the ground flat on my back. At this point I could not
see who or what pulled me from behind or what cause me to lose my
footing. Then I see officers around me and the kick started.
25.1. I feel, what I believe, was kicks from right around me. All in my ribs, chest,
leg, head and so on … I was getting kick all over ad all around… Iwas trying
to brakes the lashes to my vital points – my face and temple. But I could
not do very much. I was squirming on the ground with the lashes and
kicks while trying to brakes … Then the kicks ease up. I was in pain all over
but I start to feel pressure on my head, neck, chest, arm and legs. Someone
was standing on my body. Most likely more than one officer cause I feel
the weight of more than one part at the same time. I was trying to move
but I could not. I feel like someone grab my hands and hold them down
towards my side and, I believe, straight out. I could not see who was doing
this to me. I was getting lash on my head but I could not see what it was
but all I could feel was the blows coming down on my head.
25.2. All I could see was straight up and I saw Alleyne with a staff in his hand.
He, Alleyne, came over me and kneel down on my chest, turned the
staff so he was holding it downwards and not by the handle end. I could
not do anything because I was still held down. Then Alleyne jam the point
of the staff into my eye. With each jam into the left eye I feel such pain
that I never feel before and I thought my eye was either buss or falling out.
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I was bawling out and he jam it again into my eye. I can’t say how many
times cause I start to faint or drift away but I’m sure it was more than
twice. It was incredible pain. And then I start to feel the warm blood
running down my fact. I did not know what happened to the eye. I could
not protect myself or resist anything as I was being held down.
25.3. After the last lash I feel all the weight lift off my body and I could move. I
was operating like on instinct and I manage to struggle and get up. When
I get up I realise that I was bleeding badly. I was wearing a white t-shirt
and it was covered in blood. I remember standing up and seeing Alleyne.
I9 pointed to him and I start to drift from side to side and collapse. My
memory of this part is not too good but I think the last thing I remember
was pointing to Alleyne and then telling the officers get me to a hospital.
black out… the next thing I remember was coming to in what I believe as
an ambulance or van. And then I black out again.”
26. The claimant was taken to the hospital and attended to by a doctor. On returning
to the prison, the claimant was able to get a phone and he removed the bandage
from his eye and he took photographs of his injured eye and face and leg. The
claimant continued to have pain all over his body, and headaches and he could
not sleep. Those photographs were marked “GW1” and form part of the evidence
to support the claimant’s claim. The claimant had to keep going to clinic for the
injury to his eye and he obtained medical records which were annexed as “GW2”.
This also formed part of the evidence to support the claimant’s case. The claimant
eventually had surgery conducted on his eye at the Port of Spain General Hospital
and was informed that there may be need for further eye surgery.
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27. The claimant’s evidence was supported two witnesses, namely Shakeil Isasc and
Christopher Selby who witnessed the assault and battery of the claimant. Shelby
was also visiting but finished his visit before the claimant and was proceeding back
into the prison. Selby witnessed the assault from across the courtyard looking
east while Isaac witnessed same from the other side of the courtyard looking west.
28. The evidence were not contradicted in any way. Accordingly, this court holds that
the defendant is liable for the calculated assault and battery on the claimant by its
officers engaged in the conduct of their duties and in the course of their
employment.
Injuries
29. The injuries suffered by the claimant are as follows:4
“(i) Bruising, pain and swelling to the left eye and side of earlobe;
(ii) Laceration below left eye requiring 5 stitches;
(iii) Bleeding inside the left eye for a two day period;
(iv) Damages to left eye requiring continuing treatment and surgery (particular
to be supplied upon receipt by the claimant;
4 See paragraph 14 (Particulars of Personal Injury), Amended Statement of Case.
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V Abrasions to the left leg in two places approximately each being 1 inch in
length below left knee, and above ankle;
(vi) Laceration to his left leg;
(vii) Visible bruising to left thigh and leg;
(viii) Swelling to nose with bruising;
(ix) Claimant fainted away en route to the Port of Spain hospital;
(x) Soreness and bruising to the sternum area;
(xi) Welts and bruising to the right leg;
(xii) Headaches, dizziness and inability to sleep for weeks following the injuries;
Quantum for General Damages
30. The claimant’s attorney described these injuries as moderate injuries and offered
the following authorities for the court’s consideration:
30.1. Chet Sutton v Attorney General CV2011-01191
The claimant was awarded the sum of $70,000 as general damages. The
claimant suffered an attack for at least 15 minutes resulting in jaw damage
requiring a soft diet and soft tissue injuries about the body.
30.2. Lester Pitman v Attorney General CV2009-0638
The claimant was awarded the sum of $90,000. The claimant was beaten
in the Port of Spain Prison by Prison Officers using fists and one officer
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using his riot staff. The injuries suffered by the claimant from this attack
consisted mainly of soft tissue injuries.
30.3. Lincoln Marshall v Attorney General CV2011-03274
The claimant was awarded the sum of $100,000 in general damages. The
claimant was beaten by three (3) officers and suffered loss of 2 teeth and
had 4 broken, welt marks about the body, tender swelling about the body,
tender hematomas about the body, swelling of the face and jaw area,
inability to eat food and difficulty talking, bleeding from the jaw area, soft
tissue injury about the body.
31. The claimant submitted that the above awards are subject to upward revision on
the basis of inflationary pressures. Having regard to the above injuries the
claimant is asking the court for a range of between $50,000 and $70,000 exclusive
of aggravated damages.
The Eye Injury
32. The claimant received injury to his left eye as a result of the assault and battery
on him and pleaded with regard to same as follows:5
“(iii) Bleeding inside the left eye;
5 See paragraph 14 (Particulars of Personal Injury), Amended Statement of Case.
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(iv) Damage to left eye requiring continuing treatment and surgery
(particulars) to be supplied upon receipt by the Claimant;
(xiii) The Clamant continues to experience difficulty in seeing with the
left eye and has obscured vision in same.
33. The claimant explained the gravity of injury to his left eye when the incident
happened in his witness statement filed 24 March, 2016 that:
“3. Following the incident in October, 2013 when Officer Alleyne beat
me in the eye it took more than a week for the bleeding inside the
eye to stop. I say that there was bleeding in the eye because my
eye were constantly red inside and looked like fresh blood. It was
two weeks before I could open the eye but I could not see in the eye.
Slowly I started to see shadows in the eye. This went on for about
2 more weeks – it may have been up to two months afterwards I
started to have blurry vision in the eye. I could not see anything
clearly only blurs.”
34. Dr. Justo Luis̒-Noriega Martinez treated and operated on the claimant. He was
appointed the expert witness and he gave evidence and produced the relevant
reports for the court’s consideration. The Medical Report states as follows:
“Name: Gareth Wiseman Age: 26 years Date of Birth: 06/10/1981.
He received trauma in his left eye: 10/08/2013
Positive data to the physical examination at the moment of the trauma: OS
Annexes: Eyelid edema; folds in descemet, hemosiderosis.
Anterior Chamber: Cellularity in chamber, active bleeding.
Crystalline: Opacified
Vitreo: No details are presumed due to poor conditions of the previous segment.
Retina: No details are presumed due to poor conditions of the previous segment.
Diagnosis: Closed eye trauma. Blunt trauma of ocular globe OS.
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Traumatic hyphema
Irididialysis
Traumatic cataract
Traumatic vitreous hemorrhage
Date of surgery: 04/28/2016
Surgical technique: Phaco Emulsification in traumatic cataract with Crystalline
Subluxated to Vitreous in 300ᵒ, Zonulolisis.
Diagnosis: Pseudo Phakia OS
Secondary Glaucoma Traumatic (by traumatic angular recess)
Traumatic Macular Scar
Posterior Capsulotomy
Plan: Appointment every 6 month
Combigen 1 drop every 12 Hour
Lumigan 1 drop every 12 hour”
35. The claimant submitted that, in giving evidence, Dr. Martinez explained that the
claimant was in his expert opinion considered to be blind in his left eye and that
his permanent partial disability stands at 50% as to his sight. The claimant is
clinically blind in one eye. Dr. Martinez further explained that as a result of the
blunt force trauma the claimant suffered extensive haemorrhaging in the eye, a
continued build up of pressure in the eye requiring consistent treatment with
medication to alleviate the pressure in the eye to prevent further damage and a
cataract developed from the trauma and secondary glaucoma. The surgery
performed involved removal of the lens and replacement. The claimant’s sight is
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permanently damaged and will not improve given the fact that he has suffered
macular scarring which will continue to cause clinical blindness.
36. In his witness statement filed on 24 March, 2016, the claimant deposed as to the
effects the injured eye has on his capability to conduct day to day activities:
“4. As I said I had no complaints about my eyesight before the incident. Since
the incident I have difficulty with what I call depth-perception .cannot
gauge things with the eye open. If I try to take anything in my hand from
someone else most of the time I miss it and drop it. Things like a bottle of
sweet drink. I cannot gauge distances and in front or below. I have
difficulty with steps and I always stumble with steps if I keep my two eyes
open. I have to remember to close my damages eye before I do any of these
things.
5. Right now I cannot stand lights shining in the eye. The doctors have
told me that I may have to wear an eye patch if the eye continues
like this. I do not have any. I don’t know if I will be able to drive or
operate machinery with that eye open. Bright lights hurt my eye
and I experience strange flashes in the eye: flashes but nothing in
there when I look. It’s like something pass across my vision very
quickly. Sometimes I see a dot when I look through the eye. That
dot is sort of blurry but it is a dot in my vision. I told the doctors
about all these things and I was told that the dot may be from a bit
of blood stuck in the eye. Right now I don’t know about what is
happening with the eye and the doctors have not been able to tell
me anything in answer to my questions.
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37. The claimant submitted that the assessment of permanent partial disability of 50%
in terms of sight must weigh heavily on the assessment of the court. The claimant
is blind in one eye and Dr. Justo Martinez did indicate that the claimant would now
have to exercise special care with the “good eye” as the loss of sight or damage to
that eye would make the claimant totally blind. Further, even though the claimant
cannot prove loss of earnings as he is incarcerated, the court must take this
disability into consideration in the assessment of damages regardless of whether
the claimant can rely upon same in terms of loss of earnings.
38. In assessing damages for the eye injury, the claimant relied on the following three
cases:
38.1. Anil Reds v Nyan Rattan CV2007-00903
The claimant was awarded the sum of $320,000. The claimant claimed damages
for assault and battery including aggravated and exemplary damages. It was the
claimant's case that he was severely beaten on his face and head with a steel
chain to which a hook was attached, and it caused him to lose his right eye and
to suffer gross facial disfigurement. At the time of the incident, the claimant was
a thirty one year old man.
38.2. Premnath Jaikaran v Saiscon CV2007-02813
The claimant was awarded the sum of $200,000 representing 80% of his claim for
personal injury and consequential loss. The claimant sustained injuries during the
course of his employment on 16 September, 2011. The accident occurred when
he was taking off the screws from the cap of a barrel, when the entire lid
exploded and struck him in his face and right eye.
Page 24 of 27
His injuries were loss of consciousness; loss of right eye; resulting problems
with vision; difficulty watching television or reading; headaches;
embarrassed to go out in public; back pain; pain in knees; lash on forehead;
cut to index finger; facial scar; lash to jaw; difficulty eating; large right C-
shaped corneo-scleral laceration with loss of lens, vitreous and retina; right
upper and lower lid laceration. He was hospitalized for 12 days and had to
undergo a number of surgeries. Owing to the loss of his right eye, the
claimant states that he is unable to maintain permanent employment as a
welder/straightener/painter, the trades in which he has working
experience. The claimant was 16 years old at the time of the accident.
38.3. Racquel Rampersad v Shaffick Mohammed and Ors HCA No. S-
1121/1998.
The claimant was awarded the sum of $150,000 for her injuries, pain and
suffering and loss of amenities, inclusive of the nominal award for disability
in the job market arising out of a motor vehicle accident. Her injuries were
her right eye; laceration of her right lower eyelid and a puncture wound of
the pinna of her right ear; multiple lacerations to her forehead. The
plaintiff is now permanently blind in her right eye. She was three months
short of her 19th birthday.
Aggravating Factors
39. The claimant submitted that the court should take into consideration the
following aggravated factors in awarding damages for the eye injury:
39.1. The Claimant’s 50% permanent partial disability (ocular).
Page 25 of 27
39.2. The fact the Claimant will be handicapped in terms of his going about his
everyday activities (not to mention the obvious handicap in terms of
appearance in having to wear an eye patch).
39.3. The loss of amenity described by the Claimant in his further witness
statements in terms of his depth perception.
39.4. The continued blurred vision and flashes in the eye together with light
sensitivity – which Dr. Justo did explain were symptoms and effects of the
injury sustained o the eye and the resulting medical conditions.
39.4.1. The fact that the Claimant requires continued medical care and attention
at the eye clinic at the Port of Spain Hospital. The court can take judicial
notice of the fact that it took several months to complete this matter on
account of the fact that no final prognosis was being offered as the Claimant
was not being taken to the eye clinic in a timely fashion and which required
intervention by the Claimant and thereafter by the Court.
39.5. The fact that the Claimant’s right eye is now in greater jeopardy – the Claimant
now being more susceptible to total blindness.
40. The claimant suggested an award of a range of between $220,000 and $250,000
for the eye injury with an uplift for aggravated damages.
Exemplary Damages
41. The claimant submitted that there are two incidents of assault and both require
consideration of an award of exemplary damages. The claimant further submitted
that while the cases have established a tentative range for exemplary damages
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ranging from $20,000 to $100,000, the case of Owen Goring v Attorney General 6
and in the recent case of Oja Brathwaite v Attorney General 7 the Court of Appeal
approved the sum of $80,000 as exemplary damages showing an increase in the
level of the award.
42. The claimant contends that the award of exemplary damages in relation to the 18
July, 2013 assault should be $25,000. In relation to the 8 October, 2013 the
clamant commends the comments made by the High Court in Owen Goring and
again in Oja Brathwaite whereby it is clear that the awards of exemplary damages
are not proving to be a deterrent to the infliction of this type of unconstitutional
and oppressive behaviour. Having regard to the circumstances of the case, the
claimant submits that there should be an award of exemplary damages in relation
to the assault of the 8 October, 2013 of $120,000.
43. In that regard, the court referred to and relied upon its discussion on this topic in
its decision of even date as this in CV2017-01506 Miguel Benoit v PC Hanooman
Et Al. As a result, the court accepts the claimant’s attorney’s submission and will
award the sum of $120,000.00 for exemplary damages.
The Order
44. According, the court makes the following orders:
6 CV2010-03643.
7 CV2010-04502.
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44.1. There shall be judgement for the claimant against the defendant.
44.2. The defendant shall pay to the claimant the sum of $ 30,000.00 as general
damages for assault and battery with an uplift for aggravated damages
with respect to the incident on 18 July, 2013.
44.3. The defendant shall pay to the claimant the sum of $ 50,000.00 as general
damages for assault and battery and the sum of $225,000.00 general
damages for injury to his left eye with an uplift for aggravated damages
with respect to the incident on 8 October, 2013.
44.4. The defendant shall pay to the claimant the sum of $120,000.00 as
exemplary damages.
44.5. The defendant shall pay interest on the damages awarded at the rate of 3
per cent from the filing of the claim on 20th December, 2013 to the 9th
October, 2019, the date of this judgment.
44.6. The defendants shall pay to the claimant the prescribed costs of the claim
quantified by the court in the sum of $ 70,944.38.
/s/ D. Rampersad J.