Court name
Supreme Court of Turks and Caicos Islands
Case number
CL 8 of 2021
CL 42 of 2021
CL 49 of 2021

(1) Paintimilkavalan and Ors. (2) Srikanth and Ors. (3) Ravikkumar v. The Dir. of Immigration, Min. of Border Control and Anor. (CL 8 of 2021, CL 42 of 2021, CL 49 of 2021) [2022] TCASC 13 (12 May 2022);

Media neutral citation
[2022] TCASC 13
Case summary:

These consolidated proceedings concern the assessment of damages for false imprisonment. The Plaintiffs entered the Turks and Caicos Islands (TCI) illegally and were apprehended and detained at the Immigration Detention Centre (IDC) for different periods of either 316 or 320 days. The Plaintiffs subsequently filed claims (CL8/2021, CL42/2021 and CL49/2021) seeking damages for false imprisonment, breaches to their constitutional rights and exemplary damages. The Defendants admitted liability.

Headnote and holding:

In CL 8/21 the Court awarded each Plaintiff $76,500.00. In CL 42/2021 the Court awarded the First and Third Plaintiff $75, 700.00 and the Sixth Plaintiff $76,500.00. In CL 49/2021 the Court awarded the Plaintiff $75,700.00. 

In assessing damages, the Court's considerations included the Plaintiffs’ initial shock of the first arrest, their injury to liberty, injury to their feelings including loss of reputation, humiliation and disgrace, their pain and suffering, their loss of enjoyment of lives, their period of detention, the conditions of the detention center and aggravating factors including the need to vindicate the breaches of their constitutional rights.

The Court declined to award exemplary damages on the ground that the damages awarded were adequate compensation for false imprisonment and to vindicate the Plaintiffs constitutional rights.

Coram
Simons QC, J

 

 

 

 

 

 

 

 

 

IN THE SUPREME COURT

TURKS AND CAICOS ISLANDS

CIVIL

 

 

CL 8/21

  1. Kajeepan, Paintamilkavalan
  2. Rasaratnam, Varatharaj
  3. Sivalapan, Jeseepan Swapalan

 Plaintiffs

v.

Director of Immigration Derek Been

Min. of Border Control Vaden D. Williams

The Attorney General of the Turks and Caicos Islands

Defendants

CL 42/21

  1. Thambyrasa, Srikanth
  2. Vinojan, Theivendram
  3. Kugagnanam, Nesarupan
  4. Paskaran, Vithursan
  5. Kenkatharan, Kokulan
  6. Varatharajah, Senkeeran
  7. Sivaloganathan, Gouthaman
  8. Karunkaran, Logithan
  9. Kugenthiran,Rupilan

Plaintiffs

v.

The Director of Immigration, Derek Been

Min. of Border Control, Vaden D. Williams

The Attorney General of the Turks and Caicos Islands

Defendants

 

CL 49/21

Ariaputhiran, Ravikkumar

v.

Director of Immigration, Derek Been

Min. of Border Control, Vaden Delroy Williams

The Attorney General of the Turks and Caicos Islands

 

__________________________________

JUDGMENT

__________________________________

 

Before:                                           The Hon. Mr. Justice Carlos W. Simons OBE QC

 

Appearances:                             

In Action No. CL 8/21               Mr. Yuri Saunders of Prudhoe Caribbean for the Plaintiffs

Ms. Clemar Hippolyte of The Attorney General’s Chambers for the Defendants

In Action No. 42/21                  Mr. Yuri Saunders – Prudhoe Caribbean for the Plaintiffs

Ms. Clemar Hippolyte of The Attorney General’s Chambers for the Defendants

In Action No. 49/21                  Mr. Yuri Saunders of Prudhoe Caribbean for the Plaintiffs

Ms. Clemar Hippolyte of The Attorney General’s Chambers for the Defendants

 

Hearing Dates:                            2 March and 21 April 2022

Venue:                                            Court No. 5, Graceway Plaza, Providenciales

 

Date to be Delivered:               12 May 2022 at 4:00 pm via email

 

Brief Factual Background

  1. These proceedings concern the assessment of damages for false imprisonment. The Plaintiffs entered the Turks and Caicos Islands (TCI) illegally and were apprehended and detained at the Immigration Detention Centre (IDC).

 

  1. The Plaintiffs subsequently filed Writs of Summons (CL 8/2021, CL 42/2021 and CL 49/2021) supported by Statements of Claim seeking inter alia damages for false imprisonment, breaches to their constitutional rights and exemplary damages. The Defendants admitted liability.

Consent Orders

 

  1. In CL 8/2021, by Order dated 5 May 2021 the parties consented to Judgment being entered for the Plaintiffs, with damages to be assessed.

 

  1. In CL 42/2021, by Order dated 13 July 2021 the parties consented to Judgment being entered for the 1st, 3rd and 6th Plaintiffs, with damages to be assessed.

 

  1. In CL 49/2021, by Order dated 13 July 2021 the parties consented to Judgment being entered for the Plaintiff, with damages to be assessed.

 

  1. By order dated 1 November 2021, these proceedings were consolidated.

Principles of Law on the Assessment of Damages for False Imprisonment

  1. The parties agree on the applicable principles of law on the assessment of damages for false imprisonment. The parties have submitted that in determining the quantum of damages this Court should fix a sum and award it for each day the Plaintiffs were detained[1]. The Plaintiffs ask for a daily rate of $350.00 per day. The Defendants ask for a daily rate of $200 per day. The Defendant submits that this Court should also award a sum for the initial shock of detention. The parties disagree whether an award of exemplary damages is appropriate in this case.

 

  1. In assessing damages this Court’s considerations include the Plaintiffs’ initial shock of the first arrest, their injury to liberty, injury to their feelings including loss of reputation, humiliation and disgrace, their pain and suffering, their loss of enjoyment of lives, their period of detention, the conditions of the detention center and aggravating factors including the need to vindicate the breaches of their constitutional rights[2]. The damages awarded to each Plaintiff is a composite figure and will be expressed in the round[3]. This Court has carefully considered the awards made in authorities supplied by the parties and compared the facts to the present case[4].

Evidence about Imprisonment

  1. The evidence of the Plaintiffs about the conditions of detention were identical in each claim. They were detained at the Immigration Detention Center (IDC), they were not allowed to leave, the treatment was described broadly as “bad” without further particulars and they were given bare necessities such as food and limited clothing. They all admit that conditions improved after March 2020. The Plaintiffs were not cross examined.

 

  1. The evidence of the Defendants in answer was contained in the witness statement of Mr Peter Parker the Assistant Director of Immigration within the Ministry of Immigration Citizenship Labour and Employment Services. Mr Parker was not cross examined.

 

  1. Mr Parker deposed that the cells within the IDC are reasonably sized, the cells can comfortably accommodate twenty persons and are at less than half capacity, the cells are cleaned daily, there is adequate ventilation as there are windows in each cell which are kept open (except when it rains heavily), the cells are manned by security twenty four hours a day, detainees are given clothing and laundry essentials, they are allowed to change their clothes after they shower and are permitted to wash regularly, detainees are given two hours of daily exercise, they are permitted to go outside and during their leisure time engage in playing soccer basketball and volleyball with supplies provided by the IDC, movie nights are arranged by Officials in the IDC, the Plaintiffs received three meals a day which were catered by an outside restaurant service. A balanced diet was provided, special diets were catered for. Religious rituals and observances were accommodated. Any time medial complaints are received detainees are taken to the hospital to seek further medical attention. Required medication is provided as prescribed. The Plaintiffs made no claims in respect of medical assistance during their detention, or if they were made they were immediately dealt with. The Plaintiffs were provided with all basic essentials including toothpaste, toilet paper and soap to be used on a daily basis. Efforts are made to accommodate requests by the detainees for use of the telephone, which is limited to local calls. The Plaintiffs were provided access to overseas calling via WhatsApp communication to communicate with their family members overseas.

 

  1. Mr Parker also deposed that in response to the Covid-19 pandemic, comprehensive protocols were implemented for the protection of the health and safety of detainees. These included the providing detainees with alcohol-based hand sanitizer in entrance, exits and waiting areas, in addition to the soap for the shower and handwashing which was ordinarily provided. Detainees were encouraged to communicate with staff when additional hygiene supplies or products are needed. Further to minimize contact, staggered recreation times were introduced. Doctors and nurses reported to the IDC on a weekly basis and performed screening and an assessment of the physical wellbeing of the detainees. Doctors and nurses undertook routine checks for Covid-19 and there were no confirmed cases of Covid 19 at the IDC.

 

  1. The Court finds that the conditions at the IDC were not as degrading or inhumane as those described in the authorities relied on by the parties in support of the daily rate.[5] The Court finds a daily rate of $200 per day is suitable.

The Period of Detention

  1. The parties agree when the detention commenced and ended. However, they both made different submissions in respect of the calculation of the number of days of detention. The Court finds that the period of detention includes the date on which the detention commenced and ended.

 

  1. In CL 8/2021 the Plaintiffs Mr. Paintamilkavalan, Mr. Varatharaj and Mr. Swapalan alleged that they were detained at the IDC from 10 October 2019 to 24 August 2020. The Court finds that Plaintiffs were detained for 320 days.

 

  1. In CL 42/2021 the 1st and 3rd Plaintiffs Mr. Srikanth, Mr. Nesarupan alleged that they were detained at the IDC from 10 October 2019 to 20 August 2020. The Court finds that Plaintiffs were detained for 316 days.  In CL 42/2021 the 6th Plaintiff Mr. Sekeeran alleged that he was detained from 10 October 2019 to 24 August 2020. The Court finds that Plaintiffs were detained for 320 days.

 

  1. In CL 49/2021 the Plaintiff Mr. Ravikkumar alleged that he was detained at the IDC from 10 October 2019 to 20 August 2020. The Court finds that Plaintiffs were detained for 316 days.

Heads of Damage and Quantum

  1. Having read and heard the submissions of Counsel and having reviewed the case law authorities I have been referred to for guidance, I make the following awards:

CL  8/2021

    1. In respect of the First Plaintiff Mr. Paintamilkavalan:                 $76,500.00.
    2. In respect of the Second Plaintiff Mr. Varatharaj:                         $76,500.00.
    3. In respect of the Third Plaintiff Mr. Swapalan:                              $76,500.00.

CL 42/2021

    1. In respect of the First Plaintiff Mr. Srikanth:                                  $75,700.00.
    2. In respect of the Third Plaintiff Mr. Nesarupan:                           $75,700.00.
    3. In respect of the Sixth Plaintiff Mr.  Sekeeran:                               $76,500.00.

CL 49/2021

    1. In respect of the Plaintiff Mr. Ravikkumar:                                    $75,700.00.

Exemplary Damages

  1. I decline to award exemplary damages on the ground that the damages awarded are adequate compensation for false imprisonment and to vindicate the Plaintiffs constitutional rights[6].

Costs

  1. The Plaintiffs in all proceedings shall have their costs of the action to be taxed if not agreed

 

 

Hon. Carlos W. Simons OBE QC

Judge of the Supreme Court

12 May 2022

 

 

 

[1]  Everette Davis v The Attorney General of St Christopher and Nevis [2014] ECSCJ No. 142.

[2] Thompson and Hsu v Commissioner of Metropolitan Police [1998] QB 498; Millette v McNicolls (2000) 60 WIR 362 at p 367 to 369; Everette Davis v The Attorney General of St Christopher and Nevis [2014] ECSCJ No. 142 at [60]; Subiah v The Attorney General of Trinidad and Tobago [2008] UKPC 47 at [11]; Turbyfield v Attorney General and anor. [2022] TCASC 9.

[3] Millette v McNicolls (2000) 60 WIR 362.

[4] Singh v Toony Fong Omnibus Co. ltd [1964] 3 All ER 925 at 927.

[5] Takitota v Attorney General 2009 UKPC 11; Wakeem Gishard v Attorney General of the British Virgin Islands [2021] 1 LRC 510; Ngumiv Attorney General of Bahamas CV 6 of 2021; Sapkota v Secretary of State for the Home Department [2017] EWHC 2857.

[6] Holden v. Chief Constable of Lancashire [1987] QB 380; AB v. Southwest Water [1993] QB 507 and Kuddus v. Chief Constable of Leicestershire [2001] UKHL 29; Takitota v Attorney General 2009 UKPC 11 at [13] – [15]; Inniss v A-G of Saint Christopher and Nevis [2008] UKPC 42.