In what is being viewed as a landmark ruling, The Privy Council in London has reversed a (crooked) Court of Appeal decision, which had substantially reduced the award of damages to an American woman, who sued Bahamian police for battery and malicious treatment nearly two decades ago.
Tamara Merson is shown with her attorney, Fred Smith, outside the Privy Council in London.
It means that she will be awarded more than $300,000 as had been ordered by a Supreme Court judge. But her attorney said with interest payments, the cost to taxpayers will be significantly more.
Fred Smith called the decision a “million-dollar ruling”.
Tamara Merson won her case in the Supreme Court back in March 1994 and Justice Joan Sawyer awarded her $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 her constitutional rights.
The respondents in the case were Sergeant Drexel Cartwright and the Attorney General of The Bahamas.
Justice Sawyer 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 court had found that the police falsely alleged that Ms. Merson had “abetted the commission of the alleged offences of illegally operating a bank.”
Police had suspected her father, a Grand Bahama resident, of actually illegally operating the bank. Ms. Merson was visiting the island in 1987 when police raided her father’s house and arrested her.
She was held in a cell for two days with a dozen men and denied the right to an attorney, according to Mr. Smith.
All the charges were subsequently withdrawn.
Following the Supreme Court ruling, the respondents did not appeal the issue of liability, but they appealed the damages awards.
The Privy Council ruling, which was handed down last Friday, notes that they contended, first, that the awards of tortious damages were inordinately high and, second, that in relation to the award of $100,000 Ms. Merson had been “improperly and erroneously compensated twice for the same unlawful act.”
The Court of Appeal had agreed, saying in its ruling that, “-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.”
But Ms. Merson appealed to the Privy Council seeking the restoration of the $100,000 award.
Counsel for the respondents contended that because Ms. Merson had been fully compensated by the tortious damages awards for the tortuous wrongs she had suffered, there was no room for any award of constitutional redress.
The question the Privy Council considered was whether by making the award of $100,000 for the infringements of Ms. Merson’s constitutional rights, the judge was duplicating the awards she made.
The high court said there is no doubt that there is a potential measure of overlap between the tort of assault and battery on the one hand and the constitutional guarantee against torture or inhuman and degrading treatment on the other, or between the tort of false imprisonment on the one hand and the constitutional guarantee of personal liberty.
“In the present case there was an undoubted overlap between the facts constituting the tortious assault and battery and the facts constituting the [constitutional infringement,” the Privy Council said in its ruling.
“But the overlap was not complete.”
The Privy Council said, “-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 the vindicatory damages for the infringements of her constitutional rights.”
Mr. Smith, Ms. Merson’s attorney, said as a result of the actions of the police, there will be a significant cost to taxpayers, given that there is a 10 percent interest that will have to be paid on the $300,000.
Mr. Smith said that legal costs also total hundreds of thousands of dollars.
He said the Privy Council decision is a significant one.
“In The Bahamas, not only can you get your tort damages, but where the degree of abuse is different, you can also get constitutional vindication damages which are quite different from ordinary compensatory damages, punitive damages, exemplary damages, aggravate damages or compensatory damages,” Mr. Smith told The Bahama Journal on Monday.
“If the constitution is to have any meaning at all it has to have teeth. What the Privy Council has done is to give the constitution muscle and teeth. Not only can you talk about constitutional rights, but the Privy Council has now given us a remedy in vindicatory damages. This means that our constitution has meaning. You can’t just mistreat someone.”
Mr. Smith said that there have been many other similar cases where judges have awarded constitutional damages, which were subsequently set aside by the Court of Appeal.
He said the Privy Council ruling means that persons affected can now go back to the courts to have their damages reinstated.
By: Candia Dames, The Bahama Journal
