$45-m payout stands after bullet leaves woman blind

Jamaica’s second-highest court has left in place a near-$50 million payout to a west Kingston woman, who was blinded in both eyes by a bullet believed to have been fired by members of the security forces.

However, a $2-million award for the woman’s future care was set aside by the Court of Appeal in a ruling handed down last Friday.

The decision comes nearly 23 years after the shooting incident that left Latoya Brown blind, and almost eight years after a Supreme Court judge ordered the government to pay her $45 million, plus interest, for her injuries.

The award was challenged by lawyers for the State, who argued that there were a dozen instances where Justice Evon Brown erred in making the multimillion-dollar award on May 12, 2015.

Brown, who was 19 years old at the time, immediately lost sight in both eyes after taking a bullet to the head near the intersection of North and Regent streets in downtown Kingston on July 9, 2001.

She had left her home with a female friend, but decided to turn back after they encountered a group of soldiers, she said in court papers.

The shooting occurred during a lull in nearly three days of fierce gunfight between armed thugs and members of the security forces in the community.

Twenty-five civilians and two members of the security forces were killed at the end of the operations.

A commission of enquiry subsequently exonerated the police and soldiers who participated in the operations.

Brown initially told police investigators she did not see who shot her, but insisted in court that it was a member of the security forces.

Justice Brown, in his decision, said that he accepted that the bullet which struck the woman was fired by a member of the security forces, but rejected her claim that it was intentional.

“Was it a member of the security forces who shot and injured the claimant? The unequivocal answer to that question is yes. The unchallenged evidence was that at the material time, only the members of the security forces fired their weapons,” Justice Brown concluded.

The woman recounted that after the shooting, she was taken to the Denham Town Police Station on a handcart with a handkerchief tied around the wound and blood oozing down her face.

But she said cops there told her there was no vehicle to transport her to the Kingston Public Hospital (KPH).

She was taken to the KPH on a handcart and rushed to the emergency room.

Doctors found “bilateral ruptured globes, right upper- and lower-lid lacerations, as well as lacerations and soft-tissue losses to both temporal regions”, Brown said in court papers, making reference to the areas where the bullet entered and exited.

Inconsistencies in statement

However, lawyers for the government argued before the Court of Appeal that there was no evidence to support Justice Brown’s finding that Brown was shot by a member of the security forces.

They pointed, also, to inconsistencies in the statement Brown gave to police investigators and the court.

A month after the shooting, the woman told the police that she did not see who shot her, but insisted 13 years later, in an affidavit filed in support of her lawsuit, that she saw the police firing at her.

The government’s lawyers argued, too, that there was no evidence on which Justice Brown could reasonably have found that the members of the security forces breached the duty of care owed to the woman.

But in dismissing those assertions, the Court of Appeal said Justice Brown’s findings were “entirely in keeping with the evidence”.

“On the evidence, it is difficult to see how the learned judge could have reasonably come to any other conclusion, than that the respondent [Latoya Brown] had been shot by a member of the security forces,” the judgment said.

The Appeal Court judges noted the “serious inconsistency” in the accounts given by the woman about who shot her, but said that, “ultimately”, did not affect the findings of the trial judge.

They also pointed out that it was never suggested to Latoya Brown or her female friend, Daleth Smith, that members of the security forces did not fire shots in their direction; that the bullet she took to the head was not from the gun of a member of the security forces, or that she was shot by someone other than a member of the security forces.

“The witness for the security forces gave no evidence in relation to the incident. The unchallenged evidence before the court was that the respondent and Ms Smith saw members of the JCF and JDF at the corner of Bond and North streets armed with guns,” the judgment by the Appeal Court said, referring to the Jamaica Constabulary Force and the Jamaica Defence Force.

“No one else was seen on the street. No one else was armed with guns. The shots that were fired came from the direction where the security forces were, towards the direction where the respondent was.”

The lawyers for the government also took issue with the $45 million award, arguing that Justice Brown did not demonstrate how he arrived at the “global figure” for general damages.

They complained that the figure was “arbitrary”, not supported by established principles and “entirely out of proportion with the injury”.

That argument, too, was rebuffed by the Court of Appeal.

“In a methodical manner, the learned trial judge compared and contrasted earlier cases with the instant case while assessing the particular effect of the loss on the respondent,” the judgment said.

“In what is admittedly not an exact science, the learned trial judge weighed the relevant factors and demonstrated how he sought to and did arrive at a fair compensation for the unfortunate loss suffered by the respondent.

“Money can never suffice to assuage such loss, but whatever amelioration is possible, was achieved by the balanced award made by the learned trial judge. It should not be disturbed.”

livern.barrett@gleanerjm.com