Merson v Cartwright & Anor (Bahamas) [2005] UKPC 38 (13 October 2005)

ADVANCE COPY

	Privy Council Appeal No. 61 of 2003

Tamara Merson	Appellant
	v.
(1) Drexel Cartwright and
(2) The Attorney General 	Respondents

	FROM

	THE COURT OF APPEAL OF THE BAHAMAS
	---------------

	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 13th October 2005
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	Present at the hearing:-
			Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
		       [Delivered by Lord Scott of Foscote]
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The isssue
1.	This appeal raises an issue about damages.  Tamara Merson, the appellant before your Lordships, established her entitlement against the respondents, Sergeant Cartwright, an officer of the Bahamian police, and the Attorney General of the Bahamas, to damages for assault and battery, false imprisonment, malicious prosecution and contravention of her constitutional rights.  She did so in a ten day trial at the end of which, on 11 March 1994, the judge, Sawyer J as she then was, announced that judgment would be entered for Ms Merson with reasons to be given later.

2.	The learned judge gave her reasons in a written judgment handed down on 22 June 1994.  She awarded Ms Merson $8,160 by way of special damages, $90,000 damages for assault, battery and false imprisonment, $90,000 damages for malicious prosecution and $100,000 for the contraventions of Ms Merson’s constitutional rights.  It is clear that the two awards of $90,000 and the award of $100,000, taken together, included amounts on account of aggravated and exemplary damages.  But these amounts were not separately identified.

3.	The respondents did not appeal the issue of liability, whether in respect of the torts or in respect of the breaches of Ms Merson’s constitutional rights, but they appealed the damages awards.  They contended, first, that the awards of tortious damages were inordinately high and, second, that in relation to the award of $100,000 she had been “improperly and erroneously compensated twice for the same unlawful act”.  In the hearing before Sawyer J no reliance had been placed by the defendants on the proviso to Article 28(1) of the Constitution.  Article 28(1) gives the Supreme Court original jurisdiction to grant redress for infringements of constitutional rights but the proviso says that the jurisdiction is not to be exercised if the Supreme Court “… is satisfied that adequate means of redress are or have been available to the person concerned under any other law”.  In their Notice of Appeal the respondents contended, also, that the Article 28(1) proviso barred the judge from making the $100,000 award.  The $100,000, they contended, should be disallowed.

4.	The judgment of the Court of Appeal (Churaman JA, Ganpatsingh JA and Osadebay JA) dated 29 January 2002 was given by Churaman JA.  They declined to interfere with the awards on the ground that they were too high and concentrated on the attack on the $100,000.  Having referred to Article 28(1), they said this
“… the Constitution did not provide, nor did it intend to provide for a duplication of damages on the self-same facts both in tort … as well as under the fundamental rights provisions of the Constitution … 

Indeed, the proviso precludes the Supreme Court from exercising its powers under the Constitution for breaches of fundamental rights, not in spite of, but rather because of adequate means of redress being available under our law.” (p.6 of the judgment).

They referred also to Tynes v Attorney General of Bahamas (unreported) Civil Appeal No 18 of 1994, in which the Court of Appeal, in a judgment given on 11 May 2001, had said –
“… the proviso to Article 28 of the Bahamian Constitution should have been considered as the claim in tort for false imprisonment would have provided an adequate means of redress for the wrong suffered by the respondent.  It was therefore wrong for the judge to award separate damages” (p 13).

5.	The Court of Appeal in the present case plainly regarded the award of $100,000 as a similar duplication of damages and therefore set aside that award.  They did not, however, explain the reasoning that had led them to their conclusion or set out any textual analysis of the judgment of Sawyer J to support it.

6.	Ms Merson has appealed to the Privy Council.  She is seeking the restoration of the $100,000 award.  The issue is a narrow one.  Mr Frederick Smith, her counsel, does not contend that she can recover twice over for the same wrongs, first by way of damages for tort and, again, by way of constitutional redress under Article 28(1).  Mr Dingemans QC, counsel for the respondents, does not repeat the attack in the Court of Appeal on the level of the awards.  He simply contends that because Ms Merson had been fully compensated by the tortious damages awards for the tortious wrongs she had suffered, there was no room for any award of constitutional redress. Any such award was barred by the Article 28(1) proviso.  The question, therefore, is whether in making the award of $100,000 for the infringements of Ms Merson’s constitutional rights, the learned judge was duplicating the awards she made under the tortious heads.  If she was, then the constitutional award cannot stand.  Whether she was or was not doing so must depend, in their Lordships’ opinion, on a textual analysis of her judgment.

Sawyer J’s judgment
7.	The judgment was a lengthy one.  It began with a detailed exposition of the facts that had led to the litigation.  The learned judge’s indignation at the outrageous treatment to which, with no shadow of justification, Ms Merson had been subjected by officers of the Bahamian police and by the Bahamian prosecuting authority permeates this part of her judgment (see pages 2 to 24).  The Court of Appeal endorsed her indignation.
“In short, the learned judge irresistibly found that the police had behaved in a callous, unfeeling, high handed, insulting and malicious and oppressive manner both with respect to the arrest and false imprisonment as well as the malicious prosecution, the latter on the basis that the police falsely alleged that she had abetted the commission of the alleged offences of illegally operating a bank.  The charges were clearly a ruse to justify the arrest.  All the charges were subsequently withdrawn.” (p 3 of the Court of Appeal judgment)

and
“… the learned judge showed in our respectful view an acute but balanced awareness of the humiliation and degradation to which the police officers had subjected the plaintiff, as well as the affront to humanity and womanhood which their conduct so shamelessly evinced” (p.4 of the Court of Appeal judgment).

Their Lordships, too, would endorse the learned judge’s reaction and need not add to the Court of Appeal’s coruscating summary cited above, save to note the “irresistible inference” drawn by Sawyer J that 
“… the sole reason for the arrest of the plaintiff was to force her father who had been named in the search warrant to return to the Bahamas to check his daughter’s welfare – a Gestapo-type tactic if ever there was one”. (p 24 of Sawyer J’s judgment)

8.	Sawyer J dealt separately with each of the torts of assault and battery, false imprisonment and malicious prosecution, rehearsing the facts relevant to each, including those facts which aggravated the tort, and explaining her conclusion that the tort had been committed.  She then dealt with Ms Merson’s complaint of breaches of her constitutional rights.  Those in play were

Article 17(1)	“No person shall be subject to torture or to inhuman or degrading treatment or punishment.”

Article 19(1)	“No person shall be deprived of his personal liberty save as may be 	authorised by law in any of the following cases – 
					…
					(c)  for the purpose of bringing him before a court in execution of the order of court;

					(d) upon reasonable suspicion of his having committed, or of being about to commit, a criminal offence.”

Article 19(2)	“Any person who is arrested or detained shall be informed as soon as reasonably practicable … of the reasons for his arrest or detention and shall be permitted … to retain and instruct without delay a legal representative of his own choice and to hold private communication with him …”

Article 19(3) “Any person who is arrested or detained in such a case as is mentioned in sub-paragraph (1)(c) or (d) of this Article and who is not released shall be brought without undue delay before a court …”

In relation to each of these constitutional guarantees the learned judge set out the facts which showed Ms Merson’s rights thereunder had been infringed.

9.	There is no doubt but that there is a potential measure of overlap between the tort of assault and battery on the one hand and the Article 17(1) guarantee against torture or inhuman and degrading treatment on the other, or between the tort of false imprisonment on the one hand and the Article 19(1) guarantee of personal liberty and/or the Article 19(3) guarantee of an appearance without undue delay before a court on the other hand.  In some cases the overlap may be complete – two concentric circles of equal radius, so to speak.  In other cases, the circles may simply intersect, with each having a segment common to both.

10.	In the present case there was an undoubted overlap between the facts constituting the tortious assault and battery and the facts constituting the Article 17(1) infringement.  But the overlap was not complete.  For example, the unlawful arrest of Ms Merson and her incarceration in a police lock-up cell inevitably involved some degree of bodily contact with her by police officers.  This bodily contact was not necessarily inhuman or degrading treatment.  The same is true of the process whereby her fingerprints were taken.  There may be other examples.  And many of the items mentioned by the judge (at pp. 54-55) that constituted the Article 17(1) inhuman or degrading treatment would not have constituted any of the torts.  Examples are the refusal by the police to allow Ms Merson to change her clothes (item (2)), the threat that if she were not out of the bathroom in two minutes they would kick the door down (item (3)), restrictions on her ability to use the bathroom at the police station (item (7)) and refusal to allow her to take her medication (item (8)).

11.	On the other hand it is true that a number of the items mentioned by the judge as constituting the Article 17(1) infringement would have constituted aggravating factors relevant either to the assault and battery tort or to the false imprisonment tort (see particularly items (9) to (13) inclusive at pages 55 and 56 of Sawyer J’s judgment).

12.	All the facts constituting the Article 19(1) infringement do appear to fall within the facts constituting the false imprisonment tort.  But, on the other hand, the facts constituting the Article 19(2) and Article 19(3) infringements overlap only marginally, and in the case of Article 19(3) perhaps not at all, with the facts constituting the nominate torts.

13.	Sawyer J, having concluded that Ms Merson’s complaints of the torts committed against her and of infringements of her constitutional rights to be well-founded then turned to assessment of damages.  She noted, correctly, that in the re-amended Statement of Claim Ms Merson was claiming damages for the nominate torts and for breaches of her constitutional rights and, also, aggravated damages and exemplary damages.
“As indicated above the plaintiff in this case seeks damages not only on a compensatory basis nor even only bearing in mind the aggravating features which the facts, as I have already found them show but also damages on an exemplary basis …” (p.79)

After citing at some length from Rookes v Bernard [1964] AC 1129 and Broome v Cassell & Co Ltd [1972] AC 1027 she concluded that the assessment of damages on an exemplary basis would be permissible (p.84) and, in an important passage at pages 91 and 92, expressed her approach to that assessment
“In my view, the plaintiff is entitled to damages to compensate her for the wrongs done to her by officers of the Crown (the State) and the factors to be taken into account in assessing those damages should include an amount for the humiliation, ie. the injury to the plaintiff’s dignity and pride which she endured as well as the insanitary conditions in which she was incarcerated at CPS.  In addition, she is entitled to be compensated for the loss of her personal liberty, the mental and physical suffering, the fear induced by the implicit threats, e.g., by the police officers at CPS who told her that he ‘would not put up with any nonsense’ from the plaintiff, the oral abuse by Sgt. McCoy as well as the humiliation of having to use the prisoners’ bathroom in the presence of male police officers both at CPS and at APS even if their backs were turned.

In addition, the plaintiff who has since studied for, and been admitted to the Bar in California, U.S.A. was kept incommunicado from her family members, had her passport seized and retained by the police without any legal or moral justification and they knew that she was a visitor to The Bahamas at the time.

Since the police officers involved in this incident were all servants of the State, acting, or purporting to act in their official capacities in dealing with the plaintiff, and since, in my view the conduct of the 1st defendant, Sgt. McCoy and Officer Pratt at CPS in particular, was high-handed, and the way in which the defence was conducted, e.g., by the attempt to the very end, to justify the arrest and detention of the plaintiff and the attempt to justify the seizure of the plaintiff’s passport on the ground that she had refused to give her name to the 1st defendant, the fact that liability has never been conceded in respect of the torts of false imprisonment, assault and battery or malicious prosecution, nor has any genuine apology been offered, I can only view the conduct of the 1st defendant in particular as high-handed and outrageous.  Furthermore, that conduct showed an extreme disregard for rule of law and the rights of the plaintiff to the protection of the law.  I therefore hold that the damages awarded in this case should include a reasonable sum by way of exemplary damages.”     

14.	In the above-cited passage the learned judge was describing compendiously the approach she should adopt to an award of exemplary damages in relation to the causes of action that she had found proved.  After referring to one or two other points on which their Lordships need not dwell she then made the awards.

15.	The learned judge did not identify in relation to the $90,000 award for assault and battery and false imprisonment what sum was being attributed to each tort.  There were several events she had found proved each of which constituted in law the assault and battery tort.  It was entirely reasonable, in their Lordships’ opinion, for the judge to have made a single award to cover all of them.  It would, however, have been preferable, in their Lordships’ view, to have had separate awards for the assault and battery damages and the false imprisonment damages.  Nor did the learned judge identify in relation to any of the awards the element attributable to compensatory damages, including aggravated damages, on the one hand and the element attributable to exemplary damages, which are punitive in character, on the other.  A reading of the judgment from the above cited passage to the announcement of the amount of the awards (pages 92 to 96) suggests, their Lordships think, that the learned judge, having directed herself impeccably as to the approach she should adopt, formed a view as to the totality of the damages that Ms Merson should receive and then divided the sum, in round figures, between the three headings under which the awards were made.  Their Lordships do not wish to be unduly censorious of this approach but it does make difficult a critical review of the quantum of the awards.  It is to be noted that in the Tynes case (referred to in para.4 above), in which Sawyer CJ (as the learned judge had become) was the trial judge and in which the same causes of actions as were found proved in the present case were found proved (but where, measured in degrees of outrageous behaviour, the facts were several degrees below those of the present case) the Court of Appeal said
“We wish to indicate that it would be more appropriate for the damages to be awarded under each head.  The award should indicate the amount of damages awarded for assault and battery.  There should be an identifiable award for false imprisonment and similarly for aggravated damages and also for exemplary damages.” (p. 14 of the judgment of Zacca P)

Their Lordships respectfully concur.

16.	Two critical issues remain for decision on this appeal, namely, first, whether, in view of the proviso to Article 28(1) of the Constitution, there was any room for an award of damages for breach of Ms Merson’s constitutional rights in addition to the awards of damages for the nominate torts, and, secondly, if the answer to that question is ‘yes’, whether the actual awards made by the learned judge involved duplication.
17.	As to the first issue, the function of constitutional damages has been reviewed recently by the Privy Council in Attorney-General of Trinidad and Tobago v Ramanoop [2005] UK PC 15; [2005] 2 WLR 1324.  The case involved claims for damages for “quite appalling misbehaviour by a police officer” (para 2 of the judgment).  A police officer had, quite unjustifiably, roughed up, arrested, taken to the police station and locked up for some few hours the unfortunate Mr Ramanoop.  Mr Ramanoop instituted proceedings against the Attorney-General for constitutional redress, including exemplary damages.  He did not claim damages for the nominate torts that had certainly been committed.  Counsel for the Attorney General submitted that constitutional redress, in so far as it took the form of an award of damages, should be confined to compensatory damages.  The Privy Council dealt with this submission in paragraphs 17 to 20 inclusive of the judgment delivered by Lord Nicholls of Birkenhead.
“17.  Their Lordships view the matter as follows.  Section 14 recognises and affirms the court’s power to award remedies for contravention of chapter I rights and freedoms.  This jurisdiction is an integral part of the protection chapter I of the Constitution confers on the citizens of Trinidad and Tobago.  It is an essential element in the protection intended to be afforded by the Constitution against misuse of state power.  Section 14 presupposes that, by exercise of this jurisdiction, the court will be able to afford the wronged citizen effective relief in respect of the state’s violation of a constitutional right.  This jurisdiction is separate from and additional to (“without prejudice to”) all other remedial jurisdiction of the court.

18.	When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, the constitutional right which has been contravened.  A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words.  If the person wronged has suffered damage, the court may award him compensation.  The comparable common law measure of damages will often be a useful guide in assessing the amount of compensation.  But this measure is no more than a guide because the award of compensation under section 14 is discretionary and moreover, the violation of the constitutional right will not always be coterminous with the cause of action at law.

19.	An award of compensation will go some distance towards vindicating the infringed constitutional right.  How far it goes will depend on the circumstances, but in principle it may well not suffice.  The fact that the right violated was a constitutional right adds an extra dimension to the wrong.  An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches.  All these elements have a place in this additional award.  “Redress” in section 14 is apt to encompass such an award if the court considers it is required having regard to all the circumstances.  Although such an award, where called for, is likely in most cases to cover much the same ground in financial terms as would an award by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object.  Accordingly, the expressions “punitive damages” or “exemplary damages” are better avoided as descriptions of this type of additional award.

20.	For these reasons their Lordships are unable to accept the Attorney General’s basic submission that a monetary award under section 14 is confined to an award of compensatory damages in the traditional sense.  Bereaux J stated his jurisdiction too narrowly.  The matter should be remitted to him, or another judge, to consider whether an additional award of damages of the character described above is appropriate in this case.  Their Lordships dismiss this appeal with costs.”

18.	These principles apply, in their Lordships’ opinion, to claims for constitutional redress under the comparable provisions of the Bahamian constitution.  If the case is one for an award of damages by way of constitutional redress – and their Lordships would repeat that “constitutional relief should not be sought unless the circumstances of which complaint is made include some feature which makes it appropriate to take that course” (para 25 in Ramanoop) – the nature of the damages awarded may be compensatory but should always be vindicatory and, accordingly, the damages may, in an appropriate case, exceed a purely compensatory amount.  The purpose of a vindicatory award is not a punitive purpose.  It is not to teach the executive not to misbehave. The purpose is to vindicate the right of the complainant, whether a citizen or a visitor, to carry on his or her life in the Bahamas free from unjustified executive interference, mistreatment or oppression. The sum appropriate to be awarded to achieve this purpose will depend upon the nature of the particular infringement and the circumstances relating to that infringement.  It will be a sum at the discretion of the trial judge.  In some cases a suitable declaration may suffice to vindicate the right; in other cases an award of damages, including substantial damages, may seem to be necessary.

19.	In the present case, leaving aside for the moment the duplication issue, an award of damages, and a substantial award at that, to vindicate Ms Merson’s rights that had been so grievously infringed was, in our opinion, clearly justified.

20.	We turn to the duplication issue.  Many of the things done to Ms Merson were ingredients of one or other of the nominate torts as well as being infringements of her constitutional rights.  But there was not a complete overlap.  Moreover the wholesale contempt shown by the authorities, in their treatment of Ms Merson, to the rule of law and its requirements of the police and prosecution authorities, makes this, in our opinion, a very proper case for an award of vindicatory damages.  There can be no objection, on the facts of this case, to an award to Ms Merson both of damages for the nominate torts and of vindicatory damages for the infringements of her constitutional rights.

21.	The absence in the learned judge’s judgment of details of how the damages awards were made up makes it possible that there was some duplication.  For example, the exemplary damages elements included in the awards of tortious damages may have taken into account some of the same factors that were reflected in the $100,000 constitutional award.  But we think that possibility is, on balance, unlikely.  The learned judge had directed herself as to the correct approach to the assessment of damages.  We can find nothing the matter with that approach, and none has been suggested.  The totality of the damages she awarded was, in our opinion, reasonable as a global figure to reflect what had been done to Ms Merson.  As a global figure there would have been no real room for an inference of duplication in the assessment.  So while we accept that the form the awards took, the absence of details as to the elements that make up each award, and, in particular, the absence of any real indication of how the $100,000 figure for the constitutional award was reached, make an inference of a degree of duplication understandable, we conclude that if the judgment as to damages is read as a whole the inference is unsound.  In our opinion the complaint that in making her award the judge awarded damages under different heads for the same matters is not made out. On the extreme facts of this case we would regard an award of $100,000 by way of vindicatory damages as high but within the bracket of discretion available to the judge.

22.	Their Lordships will humbly advise Her Majesty that the appeal ought to be allowed and the order made by the judge to be restored.