3236822
Hall of Justice, Port-of-Spain.

Derek Achong

The Court of Appeal has reduced the compensation due to a teenager, with a rare genetic disorder who suffered physical, verbal and sexual abuse at the St Michael’s Home for Boys and the St Ann’s Psychiatric Hospital, by more than a half.

Delivering a 90-page judgement yesterday, Appellate Judges Charmaine Pemberton, Peter Rajkumar, and Mira Dean-Armorer ruled that High Court Judge Avason Quinlan-Williams made errors in determining the breaches of the constitutional rights in the case and the compensation awarded to the teenager, who is no longer a minor but still cannot be named due to an order of the court.

While Justice Quinlan-Williams ordered that the teen receive a little over $2 million in compensation, the appeal panel felt $844,650 was more appropriate based on the circumstances of his case.

Justice Rajkumar, who wrote the judgement, stated that the teen’s admissions to St Michaels in 2012 and the hospital in 2016 were not unlawful.

However, he ruled that his constitutional right to the protection of the law was continually infringed when he was kept at both facilities after the Children’s Act, which prescribes that such children be kept at suitable community residences, took effect in 2015.

Based on the finding, the appeal panel reduced the time period that the teen’s compensation for the breach should be calculated based on. However, it calculated the compensation based on a higher per diem than used by Justice Quinlan-Williams.

Justice Rajkumar stated that the teen’s right to security of the person was breached at both facilities as he was exposed to danger. However, he disagreed that such amounted to cruel and unusual punishment.

“The treatment to which he was exposed did not have the hallmarks of deliberation and intention by the State or its agents that would have also characterised it as cruel and unusual punishment and treatment,” Justice Rajkumar said, as he noted that all but one of the incidents of abuse at the home was committed by fellow residents.

He also ruled that his treatment at the hospital, which included being placed in solitary confinement and being administered medication, could not be considered cruel or unusual.

“Any finding that being in seclusion would have been physically painful was not a conclusion open to the court on the evidence,” he said.

Justice Rajkumar awarded the teen $394,650 for his unlawful time at both facilities and a total of $450,000 for specific incidents of abuse he suffered at each facility.

He ruled that his colleague was wrong to award $1 million in vindicatory damages to express her abhorrence at what the teen endured.

Justice Rajkumar noted that by dispassionately considering the evidence of what transpired, who was responsible and whether it constituted gross negligence or highhandedness, such an award was not valid.

Justice Rajkumar also ruled that the judge erred when she ordered that the compensation be held on trust with his mother as trustee.

“Creation of a trust where there is the possibility of conflict between the duty of a trustee and his interest would be a flawed exercise of discretion,” he said.

Instead, Justice Rajkumar ordered that the money be held in an interest-bearing account with payments being made by a Supreme Court Registrar or Master for his continued care.

According to the evidence in the case, the teenager was nine years old when he was first taken into the State’s care after his mother was arrested and charged for abandoning him and his sister in 2012.

He was placed at the home, where he was first diagnosed with Prader-Willi Syndrome, a genetic disorder that causes extreme obesity and speech disorders.

The abuse allegedly started a short while after there was a transition in the management of the home.

“On more than one occasion he told her that he was made to perform oral sex on male residents of St Michael’s and when he refused they became aggressive and beat him which were evidenced by large blue-black marks visibly apparent to her about his body,” Quinlan-Williams said as she detailed a report compiled by a social worker, who spoke with the teenager.

The report also detailed several incidents of physical abuse including one when he had been beaten with a piece of wood by a member of staff and another when his arm was burned by three fellow residents using an aerosol can and a lighter.

The abuse allegedly continued up until October 2016, when a decision was taken to transfer him to the hospital.

While at the hospital, the teenager was allegedly sexually assaulted by an adult patient although doctors at the facility claimed that there was not any medical evidence to substantiate the claim.

The hospital also claimed that he was resistant to the treatments being provided.

The teenager was eventually removed from the hospital and placed at the Children’s Authority’s centre after his mother brought the lawsuit in 2017.

While in the authority’s care, the teenager participated in specialised programmes which helped him lose 25 kilos and improved his condition. The authority spent $108,000 a month on 12 nurses to provide round the clock care for him.

As the authority can only deal with minors, when the teen turned 18-years-old, earlier this year, he was transferred to an adult mental health home in Heights of Guanapo, where he currently remains.

The teenager was represented by Anand Ramlogan, SC, Jayanti Lutchmedial, Ganesh Saroop, and Jared Jagroo.

The Office of the Attorney General was represented by Fyard Hosein, SC, Rachel Theophilus, Tinuke Gibbons-Glen, Svetlana Dass and Diane Katwaroo. The North West Regional Health Authority, which operates the hospital, was represented by Justin Phelps and Salisha Baksh.

Damali Nicholls, Sharlene Jaggernauth and Denelle Singh represented the authority, while Kofi McIntyre and Karen E Piper represented the home.