Romauld James v The Attorney General of Trinidad and Tobago (Trinidad and Tobago)

Under constitutional redress provisions conferring a discretion to make appropriate orders, monetary compensation is not automatic after a rights violation. The court must decide what is needed to vindicate the right, having regard to the nature and gravity of the breach, its consequences, the claimant’s circumstances and the need to deter repetition. The fact of discrimination may itself constitute compensatable damage, including non-pecuniary injury, but evidence of the claimant’s actual impact is required where compensation depends on that impact. A declaration may suffice where the claimant suffered no material disadvantage and the declaration, or other relief, fully vindicates the right. An additional award may be available in an appropriate case to mark public outrage, the importance and gravity of the breach, or the need for deterrence, but that issue was reserved.

A police officer sought constitutional redress after being denied an exemption from the English-language component of a promotion examination, although other officers had received exemptions through administrative error. Kokaram J found unfair and discriminatory treatment and declared that the appellant was exempt from future examinations, but declined damages.

The Court of Appeal of the Republic of Trinidad and Tobago dismissed the appeal. Kangaloo JA held that damage had to be shown before compensatory damages could be considered and found no acceptable evidence of pecuniary loss or injury to feelings. The central issues before the Board were whether additional damage was required before compensation could be considered and whether the constitutional breach required a monetary award.

1. Appeal dismissed. The Board held that section 14(2) of the Constitution confers a discretion to make the orders, writs and directions appropriate to enforce the protected rights. Vindication may require more than a declaration, but the court must examine the individual circumstances, including the nature and gravity of the breach, its effects and the need to prevent repetition.
2. The Court of Appeal was wrong to require damage additional to the fact of being the victim of discrimination before monetary compensation could be considered. Discrimination can itself cause compensatable damage. The sense of having been wronged, uncertainty about status and distress associated with exposing and correcting discrimination may amount to damage, even without physical or financial consequences. Non-pecuniary injury can be assessed on the available material despite the inherent difficulty.
3. Nevertheless, the Court of Appeal was right to refuse compensation in this case. The appellant’s evidence did not establish injury to feelings, distress or particular loss. His promotion and subsequent acting appointment, together with the exemption obtained through the proceedings, meant that he had suffered no material disadvantage. His access to the court’s discretion did not create an entitlement to an award.
4. A declaration may therefore provide sufficient vindication in an appropriate case. The Board rejected the proposition that compensation should normally follow automatically from a constitutional violation, while recognising that constitutional rights require emphatic vindication and that a declaration alone may be insufficient in more serious cases.
5. The Board reserved its opinion on whether an additional award could theoretically be made without a compensatory award. Such awards, described in Attorney General v Ramanoop, may mark public outrage, the importance and gravity of the breach and the need for deterrence. This was not such a case, and no additional award was made.

1. Court of Appeal of the Republic of Trinidad and Tobago: dismissed the appellant’s appeal on 27 February 2009. Kangaloo JA gave the only reasoned judgment.
2. Privy Council: dismissed the appeal against refusal of compensatory and additional damages. The declarations and exemption were sufficient redress on the facts.