The London-based Privy Council has restored an award of almost $2 million in damages to a young man who was tortured and abused sexually and physically at the St Michael’s Boys Industrial School and the St Ann’s Psychiatric Hospital.
In the landmark judgment, Law Lords Burrows, Hodge, Leggatt, Rose and Richards overturned the Court of Appeal’s decision and restored the initial compensatory and vindicatory damages that were awarded by the trial judge.
To protect the identity of the young man, who is now 19 years old, he will be referred to as JM in this article.
He suffers from a rare genetic disorder called Prader-Willi Syndrome (PWS).
This disorder inhibits physical and cognitive development, produces feelings of insatiable hunger leading to obesity, and is associated with behavioural problems.
Through his mother, JM filed a claim against the Attorney General, alleging that his constitutional rights had been infringed. He was successful in his claim before Justice Avason Quinlan-Williams, who awarded him compensatory damages of $921,200, plus vindicatory damages of $1,000,000.
However, the Attorney General appealed and the Court of Appeal reduced the compensatory damages to $844,650 and removed the vindicatory damages.
In the judgment, however, the Law Lords found that the Court of Appeal made an error in overruling the trial judge’s finding that JM’s entire detention at St Michael’s was unlawful.
“The impact on JM was real and substantial rather than trivial or technical and there was no prompt and effective legal remedy available to him. On these facts, therefore, to send JM to an institution designed for offenders over the age of ten when he was a non-offender under the age of ten was a breach of JM’s right to the protection of the law.
“It further follows that, in these circumstances, Rajkumar JA was incorrect to say, as he did, that, while the detention of JM was unlawful after his mother’s conviction on 30 June 2014, that did not constitute a breach of his right to protection of the law (so that there was only such a breach after 18 May 2015),” stated Lord Burrows.
The Board concluded that Quinlan-Williams was entitled to find, in the overall context, that what JM suffered was an infringement of his right not to be subjected by the State to cruel and unusual treatment.
The Law Lords also found that the trial judge was entitled to hold that on the exceptional facts of this case, vindicatory damages were appropriate.
“On these facts, the institutional inertia resulted in JM suffering appalling physical and sexual abuse and ill-treatment over a five-year period. He was a child, with a genetic disorder that is not itself a mental illness, who had committed no offences and was detained in inappropriate institutions for young offenders or for adults with mental illnesses. His rights to security of the person and to the protection of law were both infringed.”
The Board also found that the trial judge was justified in finding that his right not to be subjected to cruel and unusual punishment was infringed.
However, they noted that even if that particular right was not infringed, “there can be no denying that he was in a ‘living hell’ at St Michael’s and that at St Ann’s, he was regularly sent to a seclusion room, sometimes with physical restraints.”
The Board also ruled that the Court of Appeal erred in law in deciding that no vindicatory damages were appropriate.
“On the exceptional facts of this case, the Board considers that the trial judge was entitled to make the high award she did and therefore upholds that award,” stated Lord Burrows.
JM was removed from the care of his mother in September 2012 at the age of nine, after his mother was arrested and charged with child abandonment and neglect.
He was sent to St Michael’s and in 2013, he was diagnosed with PWS.
Nearly two years later, his mother was convicted and a magistrate then ordered that he be “committed” to the boys’ institution until he turned 18.
Evidence was led that the St Michael’s staff produced two care plans for JM, but none was implemented. JM was bullied and physically and sexually abused by other residents and staff.
Some of the incidents included being burnt with insect spray and a lighter by three boys, beaten with a piece of wood by a staff member and being subjected to oral sex and buggery by a 14-year-old resident.
A security guard was assigned to protect him from other residents in May 2016, but after 30 days he requested to be reassigned because JM’s behaviour was out of control, and no other guard was willing to take his place.
Months later, in October 2016, JM was transferred to the St Ann’s Hospital and he was certified as being mentally ill.
Multiple scars were observed about his chest, abdomen, arms and face.
Lord Burrows noted, “Staff at St Ann’s struggled to manage JM’s needs and there is no doubt that JM’s behaviour was very challenging.
“Among other things, the notes record abusive, aggressive and sexualised behaviour, and the regular need to resort to holding JM in seclusion sometimes using restraints.”
Based on her visit to the seclusion room at St Ann’s, the trial judge described it as a hole surrounded with walls, no furniture, no windows and no bathroom facilitates.
In line with the order of the Court of Appeal, the Law Lords ordered that the total amount of the damages to be paid into court be placed on an interest-bearing account.
It was further ordered that payments out of that account are to be paid on application to the Registrar or a Master for expenses necessarily incurred for the care, treatment, welfare and accommodation of JM, or for such other necessary expenses established to be in his best interests.
JM was represented Anand Ramlogan SC, Robert Strang, Adam Riley and Ganesh Saroop instructed by Freedom Law Chambers while the state was represented by Howard Stevens KC and Katherine Bailey instructed by Charles Russell Speechlys LLP.
Victim’s lawyer wants perpetrators brought to justice
While the Privy Council ruling is a victory for JM and his mother, their attorney Anand Ramlogan says their battle is not yet over.
JM is still institutionalised at a state-run facility, since his mother still lives under impoverished circumstances and does not have the finances to care for him and her home was deemed unsuitable.
“The mother is relieved and happy (at the ruling) but still sad at the fact that she has not yet been reunited with her son. The mother is struggling, unemployed and she loves her son very dearly and wants to try and provide a more loving, nurturing environment for them,” Ramlogan said following yesterday’s Privy Council ruling.
However, he said the HDC has allocated a home for them.
“We have an application before the court for the state to pay for the home and the Privy Council judgment will certainly help to expedite the application,” he said.
Ramlogan said the money spent by the state to fight the case over the past five years could have been better used to build a home for JM and his mother so that he could receive the rehabilitation and care he needs.
“We remain concerned that the child remains in the care of the state and whether he is still a victim of sexual abuse and torture, having regard to the history of abuse at state institutions and homes run by the state, and his vulnerability.”
Describing the case as the worst matter he has encountered in his 25 years of practice, Ramlogan said, “The torture and sexual abuse is a horror story that no child should ever have to undergo at such a tender age. Stories of sexual abuse at children’s homes are not new but the extent of the bullying and frightening torture of this child by both residents and staff alike must shock the nation’s conscience and prompt urgent reform.”
He said the system was guilty of turning a blind eye to JM’s plight and to date no one has been arrested and charged.
“This is a matter that has to be thoroughly investigated and those who are guilty of the abuse should be brought to justice... An investigation must be done to find how this case fell through the cracks,” he added.
He said it was appalling that when it was discovered JM was being abused at St Michael’s, he was sent to St Ann’s where the torture and sexual abuse became even worse, as adult patients took advantage of him.
Noting that the $1 million vindicatory damages was the highest ever award in legal history, Ramlogan said, “It reflects the court’s outrage and the gravity of the breaches that occurred. Whilst no amount of money can compensate this child for the pain and suffering he endured, I sincerely hope it can be used to get him the required help.”
