Attorney General of Trinidad and Tobago (Respondent) v JM (A minor by his kin and next Friend NM) (Appellant) (Trinidad and Tobago)

The constitutional right to protection of the law may require positive State action to provide safe and legally appropriate arrangements for a vulnerable child in State care. A general statutory power to make orders for care and detention does not authorise placing a child in an institution that is unsuitable and unsafe. The right not to suffer cruel and unusual treatment is assessed by reference to minimum severity and the full context; intention to harm or malice is not essential.

Vindicatory damages are available where, if but only if, compensatory damages are inadequate to vindicate constitutional rights and reflect their importance, gravity, public outrage and the need for deterrence. Institutional inertia, negligence or incompetence may justify such an award. Appellate courts should not disturb a trial judge’s assessment of damages absent a clear error.

JM, a child with Prader-Willi Syndrome, was removed from his mother’s care and placed in St Michael’s Boys Industrial School, although he was neither an offender nor old enough for that institution. He was later transferred to St Ann’s Psychiatric Hospital, where he remained despite his condition not itself being a mental illness. He suffered serious abuse and ill-treatment in both institutions.

The trial judge found breaches of constitutional rights under sections 4 and 5 and awarded $921,200 in compensatory damages and $1,000,000 in vindicatory damages. The Court of Appeal reduced the compensatory award to $844,650 and removed the vindicatory award. The central issues before the Board were the period and assessment of compensatory damages, and whether vindicatory damages were justified and excessive.

Appeal allowed. The Board unanimously restored the trial judge’s awards of $921,200 compensatory damages and $1,000,000 vindicatory damages.

1. The right to protection of the law under section 4(b) was infringed from the beginning of JM’s detention. The power under section 11 of the Children’s Act (No 4 of 1925) to make orders required by the circumstances did not authorise placement in an institution that was unsafe or unsuitable. The statutory distinction between industrial schools and orphanages reinforced that conclusion. By analogy with Seepersad v Commissioner of Prisons of Trinidad and Tobago [2021] UKPC 13, the State had to ensure that safe options were available.
2. Although it was unnecessary to determine the issue for the result, the Board considered that section 5(2)(b) had also been infringed. The minimum-severity threshold had to be assessed in the full context, including JM’s age, condition, the duration and cumulative effect of the abuse and the conditions of detention. An intention to harm or bad motive was not required. The principles concerning article 3 of the European Convention on Human Rights, discussed in Ahmad v United Kingdom (2012) 56 EHRR 1, were helpful.
3. The Court of Appeal erred by compensating only particular incidents while accepting that the breach of security of the person was continuing from the start of detention. A per diem award therefore had to cover the entire period. The trial judge was entitled to apply different rates at St Michael’s and St Ann’s, and the Court of Appeal had not shown that her assessment was plainly wrong: Beacon Insurance Co Ltd v Maharaj Bookstore Ltd [2014] UKPC 21. The proposed tapering analogy with false imprisonment was inapposite.
4. Attorney General of Trinidad and Tobago v Ramanoop [2005] UKPC 15 established that vindicatory damages emphasise the importance and gravity of constitutional rights, reflect public outrage and deter further breaches, without imposing retributive punishment. They are available only if compensatory damages, including aggravated damages where relevant, are inadequate. Deliberate misconduct or malice is not a prerequisite; institutional inertia, negligence or incompetence may justify an award.
5. Given the exceptional facts, the trial judge was entitled to award $1,000,000. The award was within the range open to her and there was no clear flaw warranting appellate interference. The damages were to be paid into court and held in an interest-bearing account for JM’s necessary care, treatment, welfare and accommodation expenses.

• Privy Council: Appeal allowed. The awards made by Quinlan-Williams J were restored.
• Court of Appeal of the Republic of Trinidad and Tobago: Appeal partly succeeded. Compensatory damages were reduced to $844,650 and vindicatory damages were disallowed.
• Trial judge, Quinlan-Williams J: JM succeeded in his constitutional claim and was awarded $921,200 compensatory damages and $1,000,000 vindicatory damages.