Joanna Joseph representative of the Estate of Arnold Jonah Joseph v The Attorney General of Saint Lucia
| Jurisdiction | St Lucia |
| Judge | John-Theobalds M |
| Judgment Date | 29 October 2021 |
| Judgment citation (vLex) | [2021] ECSC J1029-3 |
| Docket Number | SLUHCV2019/0545 |
| Court | High Court (Saint Lucia) |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(Civil)
Mrs. Michelle John-Theobalds Master [Ag.]
SLUHCV2019/0545
Mr. Eghan Modeste of Counsel for the Claimant
Mrs. Antonia Charlemagne of Counsel for the Defendants
John-Theobalds M [AG.]: On 22 nd May 2019, the second to fifth defendants who are members of Royal Saint Lucia Police Force were involved in a vehicular chase in central Castries with the driver of a motor car. During this chase, heavy gunfire ensued which resulted in the shooting of 17-year-old Arnold Jonah Joseph who was a passenger in the motor car. Mr. Joseph succumbed to his injuries on 23 rd May 2019.
In November 2019, the claimant who is Mr. Joseph's mother, filed a claim for damages naming the Attorney General of Saint Lucia and four police officers as defendants. The claimant asserts that pursuant to section 13(2) of the Crown Proceedings Act, 1 (“the Act”) the first defendant is the party against whom all proceedings against the Crown should be initiated and that the second to fifth defendants were at the material time employees and servants and/or agents of the Crown having been assigned and appointed to perform duties as police officers, and as such have been joined as parties to the claim.
The first defendant, in its defence filed on 17 th January 2020, conceded that the second to fifth defendants were acting as servants and/or agents of the Crown at the material time. Accordingly, on 22 nd January 2021, the defendants filed an application seeking an order removing the second to fifth defendants as parties to the claim. It is this application which is now before the court for determination.
The defendants contended that, as the second to fifth named defendants were at all material times acting as agents of the Crown, the second to fifth defendants ought to be removed as parties to the claim, the Attorney General being the proper party against whom all proceedings against the Crown are to be initiated pursuant to section 13(2) of the Crown Proceedings Act. Learned counsel for the defendants, Ms. Antonia Charlemagne, relied on Jewel Thornhill v The Attorney General 2 in support of this submission. In Jewel Thornhill, Pereira CJ opined at paragraph 23:
“Police officers in Saint Lucia are therefore without a doubt employees of the Crown. Accordingly, notwithstanding that police officers may not be regarded in the strict sense as servants or agents of the Crown, the Crown is nonetheless liable for any acts in the nature of a delict or quasi-delict committed by a police officer in the performance or purported performance of his police duties.”
Learned counsel also relied on the decision of Peter Clarke v The Attorney General et al 3 and the decision of the Supreme Court of Jamaica in Reverend Dr. Ralph Griffiths v Attorney General of Jamaica et al 4 in support of her submissions.
The crux of the claimant's submissions concerns the allegations in the statement of claim of bad faith against the second to fifth defendants. This pleading, learned counsel for the claimant submitted, has caused the action to be directed personally against the second to fifth named defendants. He further contends that servants or agents of the Crown cannot act in bad faith whilst acting on behalf of the Crown and therefore any act of bad faith will take them outside of the realm of being servants of the Crown and outside the scope of article 2124 of the Civil Code. 5
Learned counsel for the claimant also contends that the liability of the Crown in negligence can only be established if the negligence of the second to fifth defendants is established. He stated that it was therefore necessary for the second to fifth defendants to be named as parties to the claim.
Learned counsel for the claimant further asserts that, under section 4(1) of the Crown Proceedings Act, once it is established that a servant of the Crown has committed a delict or quasi-delict, the Crown becomes liable for the acts of the servants. He contended that this can only be established after a trial and as such the servants must be made a party to the claim. He also submitted that while section 13(2) of the Crown Proceedings Act is clear that civil proceedings against the Crown must be instituted against the Attorney General, the section does not stipulate that civil proceedings against the servants of the Crown shall only be instituted against the Attorney General. This, learned counsel stated, creates a distinction as these proceedings are not strictly proceedings against the Crown but instead are proceedings against servants of the Crown for acts of negligence for which the Crown is vicariously liable.
In support of his contention, learned counsel for the claimant relies on the decision in Tamara Barrow v P.C. 240 John Flavien et al. 6 In that case, Mason
“I agree with the submission of counsel for the claimant that while section 13 directs that actions against the Crown be in the name of the Attorney General, there is nothing to prevent the first defendant being the perpetrator of the alleged wrongdoing and servant and or agent of the Attorney General from being joined as a party to the action.” 8
Based on the learning in Tamara Barrow, learned counsel for the claimant contended that the defendants' application must be dismissed.
There is no doubt that the Attorney General is a proper party to these proceedings. This is undisputed. The issue in this case is whether the Attorney General should be the only defendant to the proceedings.
At this juncture, it is perhaps useful to outline the relevant provisions of the Crown Proceedings Act.
Section 4 (1) (a) of the Crown Proceedings Act provides:
“(1) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in delict or quasi-delict to which, if it were a private person of full age and capacity, it would be subject—
(a) in respect of delicts or quasi-delicts committed by its servants or agents;”
Sections 4(3) and 4(4) of the Crown Proceedings Act state:
...“(3) Where any functions are conferred or imposed upon an officer of the Crown as such by any enactment having the force of law in Saint Lucia and that officer commits a delict or quasi-delict while performing or purporting to perform those functions, the liabilities of the Crown in respect of such delict or quasi-delict shall be such as they would have been if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the Crown.
(4) Any enactment which negatives or limits the amount of the liability of any Government department or officer of the Crown in respect of any delict or quasi-delict committed by that department or officer shall, in the case of proceedings against the Crown under this section in respect
of a delict or quasi-delict committed by that department or officer, apply in relation to the Crown as it would have applied in relation to that department or officer if the proceedings against the Crown had been
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