Dennis Graham v (1) Police Service Commission (2) Attorney General

Facts

The appellant police officer (G) appealed against a decision of the Court of Appeal of Trinidad and Tobago in relation to damages awarded for breach of his right to equality of treatment guaranteed by the Constitution of Trinidad and Tobago s.4(d).

 

G had complained that his promotion from Assistant Superintendent to Superintendent in 1997 should have been backdated so as to take effect on the same date as the promotion to Superintendent of other officers who were junior to him. He was awarded $35,000 damages by the High Court. G unsuccessfully appealed against the level of damages to the Court of Appeal. The Court of Appeal also refused to make an additional award by way of vindicatory damages.

G argued that (1) the court should have made an additional award by way of vindicatory damages; (2) the court should have held that the burden of adducing evidence to elucidate the extent of his loss fell on the respondent Commission; (3) an order should have been made for the case to be remitted to a Master for the damages to be assessed.

Held

(1) The award of vindicatory damages for breach of a constitutional right under the law of Trinidad and Tobago was to be distinguished both from compensation pure and simple, and from exemplary or punitive damages at common law. It was by no means required in every case of constitutional violation, Attorney General of Trinidad and Tobago v Ramanoop [2005] UKPC 15, [2006] 1 A.C. 328 considered. The statement in Merson v Cartwright [2005] UKPC 38 that "the nature of the damages … should always be vindicatory" did not imply a rule that a distinct vindicatory award should be made in every case of constitutional violation; it merely served to indicate the overall purpose of any award of damages in constitutional cases, Merson considered. No award of vindicatory damages was called for in the instant case. The constitutional breach was in the nature of a want of procedural fairness. There was no question of bad faith or deliberate wrongdoing. By contrast, there was no more than administrative error. There was no error of principle in the Court of Appeal's response to the claim for an additional award (see paras 15-17 of judgment). (2) A public authority, impleaded as a respondent in judicial review proceedings, owed a duty of candour to disclose materials which were reasonably required for the court to arrive at an accurate decision. Mainstream rates of police pay in Trinidad and Tobago were in the public domain. However, the Board was unable to accept G's underlying proposition that a public authority's duty of candour to the court imposed on a respondent in judicial review proceedings the burden of adducing the relevant evidence upon a question of compensatory damages. The existence and rationale of the duty were not to be equated with procedural rules and practices concerning the burden of proving facts or leading evidence. Its purpose was to engage the authority's assistance in supervising the legality of its decision. That exercise was logically prior to the assessment of compensation, a task which presumed that the pleaded wrong had been, or would be, established. The public authority's duty of candour was the servant of the first, but not the second, of those judicial functions (paras 18-19). (3) The information before the Board which bore on G's pecuniary loss was meagre and certainly incomplete. However, it tended to indicate that there was no firm basis on which to conclude that $35,000 represented a substantial undervalue of G's claim, or that that figure did not fairly reflect the damage suffered. Given the earlier conclusion that there should be no additional award for vindicatory damages and that it was for G to lead evidence of loss, the consequence had to be that no foundation for a separate assessment of damages before a Master was made out (para.27).

 

Appeal dismissed

Comment

The Court of Appeal of Trinidad and Tobago had not erred in dismissing a police officer's appeal against the level of damages awarded for breach of his right to equality of treatment guaranteed by the Constitution of Trinidad and Tobago s.4(d).

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