Steven Astaphan v Delroy Julien
| Jurisdiction | Dominica |
| Judge | Colin Williams J |
| Judgment Date | 06 March 2024 |
| Neutral Citation | DM 2024 HC 2 |
| Docket Number | CLAIM NO: DOMHCV: 2021/0019 |
| Court | High Court (Dominica) |
CLAIM NO: DOMHCV: 2021/0019
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL DIVISION)
Ms Lisa deFreitas, of deFreitas, deFreitas and Johnson for the Claimants
Ms Perlisa Morvan and Mr Kevin Julien, State Attorneys for the Defendants
The First Claimant, Mr Steven Astaphan, is a civil engineer. He is the Managing Director of the Second Claimant, JARS (Sales and Services) Limited, a company incorporated under the laws of the Commonwealth of Dominica. During the course of the judgment, the First Claimant may be referred to either as the First Claimant or as Mr Astaphan or included in the collective the Claimants.
There was an incident on the E.O. LeBlanc Highway in the early evening of the 15 th of August 2020 which involved the First Claimant and the First Defendant, Mr Delroy Julien, a police constable who was attached to the Special Branch Unit of the Commonwealth of Dominica Police Force. In the course of this judgment, the First Defendant may also be referred to as Mr Julien, or Constable Julien, or Officer Julien.
The Second Defendant, the Attorney-General of the Commonwealth of Dominica, was joined in these proceedings pursuant to the State Proceedings Act, Chap 7:80 of the 1990 Revised Laws of the Commonwealth of Dominica.
On the 27 th of January 2021, the Claimants initiated these proceeding against the Defendants, seeking damages for:
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(i) Assault on the First Claimant;
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(ii) Battery of the First Claimant;
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(iii) False imprisonment of the First Claimant; and
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(iv) Trespass to a Toyota Harrier motor vehicle, registration number TO-530 owned by the Second Claimant.
The Defendants denied all of the Claimant's assertions regarding liability. The Defendants contended that the Claimants were not entitled to any damages – whether general, exemplary or aggravated – or to any relief at all.
The First Claimant resided at Morne Daniel. His neighbours were the Honourable Prime Minister, Mr Roosevelt Skeritt, and Dr Julian De Armas. When driving from the main road, one had to pass Mr Astaphan's property to get to his neighbour's residences.
At about 5.45 pm on the 15 th of August 2020, Mr Astaphan went to his home at Morne Daniel. He was driving the Harrier, TO-530, that was owned by the Second Claimant. Two persons, Mr Clifton ‘Keno’ Soanes, and Ms Mindela ‘Mindy’ Elie, were with the First Claimant in the Harrier vehicle. The First Claimant and the passengers, shortly after getting to the First Claimant's home, left the First Claimant's property in the Harrier T0-530. The First Claimant did not return to the main road but drove in the direction of the homes of the Honourable Prime Minister and Dr De Armas. The First Claimant then brought the vehicle to a stop on the roadway leading to the properties of his neighbours.
Both Dr De Armas and then shortly thereafter the Honourable Prime Minister, Mr Roosevelt Skerrit, returned to Morne Daniel while the First Claimant was parked on the access road to Dr De Armas and Mr Skeritt's residences. There was some verbal interaction among the neighbours. The police officers who provide security at the Prime Minister's residence intervened. Mr Astaphan proceeded to undress himself. The police personnel then ushered the Prime Minister into his house. One of the police security officers made a telephone call to the police headquarters, reporting the incident with Mr Astaphan. That call was received at the Special Branch Unit office at 6.05 pm.
Two vehicles with police officers from the Special Branch Unit were dispatched from Police Headquarters in Roseau to the Prime Minister's home. Some of the officers were in uniform and others were in civilian attire. The First Defendant, Mr Julien, was a passenger in the lead vehicle, GA-479. Constable Emran Joseph was also a passenger in that vehicle during the journey from Police Headquarters. Corporal Merlissa Esprit was the officer in charge of the team; she was in the second vehicle – a white pickup, TM-801.
The First Claimant, in the meantime, left Morne Daniel in the Harrier, TO-530 and headed towards Roseau, intending to drop off Mr Soanes and Ms Elie.
While Mr Astaphan was driving the Harrier TO-530 in a southerly direction along the E.O. LeBlanc Highway, at about 6.30 pm, in the area close to the S-Mart Supermarket, he was intercepted by the white police pickup vehicle, TM-801, in which Corporal Esprit was traveling. Mr Astaphan exited his vehicle, stripped off his clothes, save and except his boxer shorts. He instructed Ms Elie to video record the proceedings on her phone. There were verbal exchanges between Mr Astaphan and the police. The lead vehicle in which the First Defendant, Mr Julien, was traveling and which was ahead of the point of interception had, by the time of the video recording, looped back and returned to the scene.
Shortly after the First Defendant arrived at the scene, there was some physical contact between himself and the First Claimant as the police officer walked past Mr Astaphan. Ms Elie was able to capture almost half a minute of video footage at the scene on her cellular phone. The footage included the moment of contact between the First Defendant and the First Claimant.
Mr Astaphan was transported to the police headquarters in the white police vehicle, TM-801, along with Corporal Esprit. Constable Joseph also traveled in that vehicle on the journey back to the police headquarters. Mr Soanes and Ms Elie, who were passengers in the Harrier, TO-530, when it arrived at the scene, were also transported to police headquarters, but in the police vehicle, GA-479, in which Officer Julien was travelling.
Corporal Esprit instructed one of the Special Branch officers to drive the Harrier, TO-530, to the police headquarters.
While Mr Astaphan was at the Police Headquarters, his wife arrived there. The First Claimant was not charged with any offence. He was told that he could leave.
After Mr Astaphan left the Special Branch office, arrangements were made with Mr Soanes to leave Police Headquarters with the Harrier, TO-530, to drop Ms Elie home. The First Claimant and his wife remained at the Police Headquarters for a while after Mr Soanes left with the vehicle.
The Fist Claimant then sought to lodge a report against the police in relation to what transpired earlier at the E.O. LeBlanc Highway and he wanted to obtain copies of the police medical forms to take to a physician. The First Claimant's wife, who is a medical doctor, took Mr Astaphan to the Dominica-China Friendship Hospital where he was examined by Dr Mickey Elick.
Sometime on the following day, the 16 th of August 2020, the First Claimant went to see a private physician, Dr Portia Meade-Thomas, at the Valens Medical Centre.
On the 29 th of October 2020, the Claimants' counsel, Ms Lisa deFreitas, wrote a letter addressed to the Defendants as well as the acting Chief of Police, complaining of the events of the 15 th of August 2020 and demanding, inter alia, an apology and compensation for false imprisonment of the First Claimant, trespass to property in relation to the Harrier vehicle, as well as for Mr Astaphan's pain and suffering.
There was no written response from the Defendants to Ms deFreitas's letter.
On the 27 th of January 2021, this claim on behalf of the Claimants was filed against the Defendants.
At trial, the First Claimant and four witnesses – including two experts – testified for the Claimants. Six witnesses, including Mr Julien, testified for the Defendants.
Assault and battery are two separate and distinct torts. An assault has to do with the apprehension of fear, while battery is the actual application of force by one individual on another person. Often, an assault may precede battery. An assault is the threatening conduct. But there can be battery without any assault; and likewise, there can be an assault without any accompanying battery. (See Jones v Sherwood [1942] 1 KB 127).
Mr Gilbert Kodilinye in the first edition of his text, The Law of Torts in the West Indies Cases and Commentary, pointed out (at page 8) that:
“Although the distinction between assault and battery in the law of torts is clearly established, it has to be admitted that in West Indian and other jurisdictions the courts have tended to blur the distinction and describe as an ‘assault’ conduct which in strict law amounts to battery.”
Mr Kodilinye in an updated version of his text, titled Commonwealth Caribbean Tort Law, Fourth Edition, (at page 11) noted that:
“An assault is a direct threat made by the defendant to the plaintiff, the effect of which is to put the plaintiff in reasonable fear or apprehension of immediate physical contact with his person.”
Similarly, the authors of Clerk & Lindsell on Torts 19th edition, at paragraph 15-12 cite Collins v Wilcock [1984] 1 WLR 1172 at 1178 for the proposition that:
“An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person.”
A battery is, going back to the ancient case of Tuberville v Savage (1669) 1 Mod Rep 3, “a direct act of the defendant which has the effect of causing contact with the body of the plaintiff without the latter's consent.”
It is not every perceived battery that gives rise to an actionable tort. In Donnelly v Jackman [1970] 1WLR 562 the alleged battery by a constable was classified as a mere trivial interference with a citizen's liberty, insufficient to take the constable outside of his duty.
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