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Court awards EC$1 million for death of Oscar Bartholomew – Part III

Attorney Derick Sylvester - filed the civil lawsuit against the State and five police officers

A court in Grenada has handed out a one million $EC award in damages to the family of Grenadian-born Canadian naturalised citizen Oscar Bartholomew who met his death in December 2011 after he was badly beaten by several police officers at a police station in St. David.

Master Jan Drysdale handed down the ruling in a civil suit brought by Colette St Cyr, the wife of Bartholomew and Shem Pierre, on behalf of the Administrators of the Estate of the deceased.

Attorney-at-law Derick Sylvester was retained by the Bartholomew family to represent them in the lawsuit.

The 39-year old Bartholomew was on a Christmas visit to his homeland when he met his death in an incident that attracted worldwide media attention.

His wife had stopped at the St David’s police station to use the washroom when Bartholomew gave his trademark bear hug to a female police officer who cried out for help and her male colleagues attempted to arrest him.

There was some kind of altercation and he was taken into custody and mauled by police officers who were then charged with Manslaughter in 2017.

The civil lawsuit was filed by Attorney Sylvester against the Attorney General of Grenada along with police officers Kenton Hazzard, Edward Gibson, Shaun Ganness, Rody Felix and Wendell Sylvester.

Master Drysdale ordered that the Defendants pay the following in the Oscar Bartholomew case:

  • Special damages in the sum of $4,000.00 with interest thereon at the rate of 3% per annum from the date of the accident to the date of judgment on assessment.
  • Damages for loss of expectation of life in the sum of $5,000.00.
  • Loss of income in the sum of $947,463.39.
  • Damages for pain and suffering and loss of amenities in the sum of $10,000.00 with interest thereon at the rate of 6% per  annum.

As a public service, THE NEW TODAY reproduces in full the 17- page judgement of the Master:-

Stage 2- Future Loss
[52] According to Cookson v Knowles the future pecuniary loss should be calculated by utilising the multiplicand determined as at the date of trial. The multiplier should be determined by taking in account the age of the Deceased the probable length of his working life at the date of death.

[53] The Deceased was a relatively young man of 39 years at the time of his death. He was expected to work until retirement, which in Canada where the Deceased resided is 65 years. There is also no suggestion that the Deceased suffered from any health ailments, which would have curtailed his expected working life Therefore, the Deceased had another 26 years of working life before his expected retirement.

[54] Judicial authority is varied on the value of the multiplier to be used in these circumstances. In the cases of Irma Smith et al v Phillip and Plummer et al v Conway Bay Limited et al a multiplier of 14 was adopted in circumstances where the deceased was 39 and 37 years old, respectively. However, in the cases Compton v Nathaniel et al and Philbert v Raye a multiplier of 15 was utilized where the deceased was a 34 and 30 years of age, respectively. Although in these cases the expected retirement age would have been around 60 years old, based on especially the two latter authorities, the various ages of those deceased would make their the expected remaining working life comparable to that of the Deceased. Therefore, taking into account the number of remaining working years of the Deceased, the retirement age and the various legal authorities I find the multiplier of 15 to be reasonable. The loss of future earnings is CAN$19,290.69 x 15 = CAN$289,360.35 or $596,434.78.

[55] Taking into account the award of damages for each stage, the Claimant is awarded the aggregate loss of earnings in the sum of $947,463.39.

Pain and Suffering and Loss of Amenities
[56] The Claimant claims that the sum of $10,000.00 is a reasonable sum for the pain and suffering endured by the Deceased prior to his demise. The fact that the Claimant was repeatedly beaten by servants of the Crown thereby resulting in significant and severe bruising, contusions and lacerations all over his body is not challenged. I am also mindful of the evidence of the widow of the Deceased who documented his several screams of pain and for help during the time these numerous batteries which were being committed against him.

[57] The incident occurred approximately 3p.m. on the 26th day of December 2011. Although the Deceased died the following day the evidence is such that by at approximately 4.30p.m. he had been rendered unconscious. During that window, the pathologist opines the Deceased would have suffered with severe pain.

[58] The undermentioned cases give a helpful guide in determining damages where the deceased died or was rendered unconscious within moments to days after the fatal incident. These cases however do not deal with death arising out of the tort of assault and battery and that will be taken into account in assessing damages. Voland Rodney v Osborne Quow – the deceased was a passenger in a vehicle driven by the defendant. The vehicle plunged and fell 100 feet over an embankment on a winding remote mountain road In the North Leeward part of St. Vincent. He died instantly. The court found that the deceased would have been aware throughout that fatal plunge of his impending injury and as it turned out his death. Despite the brevity of the period it was thought that the deceased’s agony must have been acute. A sum of $2,000.00 was awarded. George v Glasgow the court awarded the sum of $4,000 for pain and suffering and loss of amenities where the accident occurred at 2p.m. on 26th December 2008 and the deceased succumbed to his injuries the following morning. Carmillus Emmanuel v Punnet – the court awarded EC$2,000.00 for pain and suffering where the deceased was found to have died instantaneously or within 1 hour of sustaining the injuries. The court was of the opinion that Jasmine must have been aware even for a brief moment of her impending injuries and death and must have felt the impact of the collision just before her death.

[59] In addition to the above authorities, I take cognisance of the case of Richardson v Howie which suggests that in cases of assaults and similar torts that is appropriate to compensate for feelings of indignity mental suffering or distress that might be caused by an attack.

[60] Having considered the relevant factors being in particular that the Deceased would have been in severe pain prior to being rendered unconscious; the repeated unlawful battery against the Deceased which would have increased the level of pain felt; the duration of the battery which the Court estimates to be about one hour, the mental distress and anxiety that the Deceased must have felt being beaten and restrained for seemingly a minor offence as well as the above authorities I agree with the Claimant that damages in the sum of $10,000.00 for pain and suffering and loss of amenities is reasonable and so make this award.

Dependency
[61] This allows for a claim by eligible persons financially dependent on the Deceased prior to his death. Dependency claims are an acknowledgment of the loss of financial support that the Deceased would have provided his dependants and the dependants would have reasonably expected would have continued but for his death.

[62] The Claimant has identified the widow then aged 51 and the daughter then aged 13 as being the two dependants of the Deceased. The Claimant has also averred that the Deceased had intended to support his daughter until she had finished her tertiary education. It is now some 9 years since the unfortunate and untimely death of the Deceased. Although Rhea, the Deceased daughter is no longer a minor and no evidence has been provided that she is currently undergoing any tertiary education and his widow is more advanced in years, this would not preclude an award from being made as damages under a dependency action arises at the date of death.

[63] Having said this I note that the Sixth Defendant has raised the issue of whether an award of damages under this rubric would lead to double compensation. Whilst the Claimant has not expressly dealt with this in the submissions filed, the Claimant did annex section 2(5) of the Law Reform Miscellaneous Act which states that ‘rights conferred by this section for the benefit of the estates of the deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Compensation for Injuries Act.’ Logically it would appear that the Claimant is relying on this section to counter the Sixth Defendant’s argument of double compensation.

[64] As with the claim of lost years, the beneficiaries under the estate of the Deceased are also the dependants in this matter. Georges J in the case of Bertha Compton qua Administratrix of the Estate of Macrina Blaize v Nathaniel et al accepted the submissions of counsel for the Defendants who expressed that ‘where the dependants and the beneficiaries under the estate are the same that the law will not allow both the damages under the dependency action and the sums quantified under the survival action to be collected.’ This is understandable as it is out of the monies earned that the Deceased would have maintained his daughter and wife.

[65] Following that decision, the issue was explored in the Privy Council case of George v Eagle Air Services. In that case it was held that a claim for dependency amounted to an overlap with a claim for lost years. Lord Mance in reciting the words of Lord Atkin’s in Rose v Ford being ‘[i]f those who benefit under the [Law Reform (Miscellaneous Provisions) Act] and the Fatal Accidents Acts also benefit under the will or intestacy of the deceased personally, their damages under those Acts will be affected’ found that regard should be given to any sum awarded in order to prevent an overlap and thereafter declined to award for dependency. It should be noted that in the George v Eagle Air Services case that Saint Lucia which is the jurisdiction from which this case emanated had a similar provision in its Civil Code28 to section 2(5) of the Law Reform Miscellaneous Act. Therefore, I am of the view that the ruling articulated above must have taken this into account in determining whether a claim for dependency may have amounted to an overlap.

[66] The Claimant already having made a claim for lost years and being granted damages under that head which far exceeds any calculable damages for dependency, I am of the considered opinion that a further award for dependency in these circumstances would result in double compensation. In light of the above I decline to make an award for damages.

Aggravated Damages
[67] Aggravated damages are awarded in cases where the conduct of the wrongdoer is malicious and humiliating and is awarded to redress special injury to the innocent party’s dignity or pride. Rookes v Barnard identifies two components germane to the determination of an award for aggravated awards, being, ‘first, exceptional or contumelious conduct or motive on the part of the defendant in committing the wrong and second, intangible loss suffered as a result by the plaintiff, that is injury to personality.’

[68] The Claimant has contended that the Deceased’s estate is entitled to aggravated damages for the injury to feelings, mental distress indignity and humiliation that he would have suffered from being arrested and severely beaten by the Defendants without cause. Further that the conduct of the Defendants demonstrated malice, spite and ill will and a total disregard for the life and liberty of the Deceased. The Sixth Defendant argues that no pronouncement was made by the Learned Trial Judge that the servants of the Crown were actuated by malice, spite or ill will and as such this disentitles the Claimant to such an award.

[69] I am inclined to agree with counsel for the Sixth Defendant. The Learned Trial Judge who examined the evidence and the witnesses although found that the actions of the servants of the Crown resulted in the death of the Deceased made no findings or pronouncements on the motives of the Defendants and or whether the actions of these Defendants were egregious or malicious. In fact, the Learned Trial Judge, save for her statement that she found the Defendants to be less than honest and therefore did not believe the version of events as advanced, made no comment on the actions of the Defendants which this Court could utilise to make an award for aggravated damages. Moreover, the Claimant was not present in the interrogation room with the Deceased and as such could not give evidence on what occurred during that time.

[70] Ergo although the injuries sustained by the Deceased appeared to have been extensive this is not sufficient to warrant an award of aggravated damages. Further in accordance with the authority of Richardson v Howie which adjudged that it was ‘no longer appropriate to characterise the award for damages for injury to feeling as aggravated damages,’ as well as the fact that these were pertinent considerations in the quantum of damages awarded pain and suffering and loss of amenities, I decline to make an award for aggravated damages.

Interest
[70] As it relates to the issue of interest, the relevant guiding principles for determining the measure are found in the case of down in Alphonso v Ramnath British Virgin lslands and are as follows:

ORDER

  1.  Damages for pain and suffering and loss of amenities, the court should award interest from the date of the service of the claim to the date of trial at the rate payable on money in court placed on short term investment and, in the absence of such evidence of that rate, the statutory rate of interest is to be used.
  2. In relation to special damages, interest is to be awarded for the period from the date of the accident to the date of trial at half of the rate payable on money in court placed on short term investment.

[71] Based on the foregoing it is hereby ordered that the Defendants shall pay the Claimant the following:

  1. Special damages in the sum of $4,000.00 with interest thereon at the rate of 3% per annum from the date of the accident to the date of judgment on assessment.
  2. Damages for loss of expectation of life in the sum of $5,000.00.
  3. Loss of income in the sum of $947,463.39.
  4. Damages for pain and suffering and loss of amenities in the sum of $10,000.00 with interest thereon at the rate of 6% per annum from the date of the accident to the date of judgment on assessment.
  5. Interest at the statutory rate until payment.
  6. Prescribed costs.

Jan Drysdale
Master
By The Court

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