Michael Christopher Claimant v (1) PC 240 John Flavien (2) The Honourable Attorney General of Saint Lucia Defendants [ECSC]

• Jurisdiction: St Lucia
• Judge: EDWARDS, J.
• Judgment Date: 25 July 2007
• Judgment citation (vLex): [2007] ECSC J0725-1
• Court: High Court (Saint Lucia)
• Docket Number: CLAIM NO. SLUHCV 2004/0502
• Date: 25 July 2007

[2007] ECSC J0725-1

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO. SLUHCV 2004/0502

CLAIM NO. SLUHCV 2006/0182

Between:

Michael Christopher

Claimant

and

(1) PC 240 John Flavien

(2) The Honourable Attorney General of Saint Lucia

Defendants

Between:

Tamara Barrow

Claimant

and

(1) PC 240 John Flavien

(2) The Honourable Attorney General Of Saint Lucia

Defendants

Appearances :

Mr. Shawn Innocent for Mr. Michael Christopher

Mr. Collis Barrow for Ms. Tamara Barrow

Mr. Dwight Lay for Defendants

CONSOLIDATED WITH

INDEX TO JUDGMENT

	PARAGRAPHS
INTRODUCTION	1–2
PLEADINGS	3–9
THE LAW OF NEGLIGENCE	10–18
THE CROWN PROCEEDINGS ACT	19–20
LAW ON GOOD FAITH AND PRESCRIPTION	21–27
ISSUES	28–29
MS. BARROWS CLAIM	30–36
DISCUSSION AND CONCLUSION	37–52
HOW WAS MR. CHRISTOPHER INJURED	54–56
THE EVIDENCE	57–94
SUBMISSIONS	95–102
FINDINGS	103–113
WAS HE NEGLIGENT	114–119
THE LIABILITY OF THE CROWN	120–123
DAMAGES	124–126

INTRODUCTION

EDWARDS, J.

1 There was gunfire in the dancehall at the "Dub House" night club at Gros Islet, during the Friday night "street jam" of the 19 ^th December 2003. Among the many persons in the "Dub House" were two young women and a man. They got shot. The injured man was Mr. Michael Christopher. The 2 injured women were Ms. Tamara Barrow and Ms. Yasmin Alexander.

2 They allege that PC 240 John Flavien on active duty, had a gun pointing it at a man in a white knitted vest near the entrance in the night club immediately before this gun blast. They contend that he fired 2 shots in the dancehall and injured them.

THE PLEADINGS

3 By his claim filed on the 16 ^th June 2004 Mr. Christopher claims damages for personal injuries, damages and costs arising from the negligence of PC Flavien in discharging a firearm in the "Dub House", in a manner contrary to the safety of the general public or the occupants and or visitors, while in the course of his employment as servant and or agent of the Crown. He also claims $695.23 for loss of earnings, interest, exemplary damages and general damages, costs, and further or other relief. The liability of the Attorney General arises by virtue of Section 4 of the Crown Proceedings Ordinance Chapter 13 of the Revised Laws of Saint Lucia 1957; and section 13, which mandates that civil proceedings against the Crown must be instituted against the Attorney General.

4 By her claim filed on the 7 ^th March 2006 Ms. Barrow claims damages for personal injuries, damages and costs arising from the negligence of PC Flavien in discharging a firearm at the "Dub House", a public dancehall, in a manner contrary to the safety of the general public or the occupants and/or the visitors, while in the course of his employment as servant and/or agent of the Crown represented by the Attorney General of St. Lucia. She claims $1,240.15 for special damages, interest, general damages, exemplary damages, costs and further or other relief.

5 The Defendants by their defence filed on the 1 ^st December 2004 in Claim No. SLUHCV 0502/04, have pleaded that PC Flavien accompanied by PC 261 Durman, had gone to the "Dub house" after 1:10 am on the 20 ^th December 2003, because of a report from the Gros Islet Police Station, that a fight was taking place at the Dub house. The Defendants have pleaded that PC Flavien and PC Durman came under attack by the crowd when bottles were thrown at them from all directions; and upon hearing 3 loud blasts like gunshots the crowd began to disperse. The Defendants have averred, that while the crowd was dispersing, PC Flavien saw Mr. Christopher in the "Dub house" with a shining object in his hand, which appeared to be a firearm. That Mr. Christopher raised the object and pointed it at him, and he became fearful for his safety and the safety of others in the vicinity; and that PC Flavien discharged his loaded firearm in necessary self defence, in the lawful and bona fide execution of his duties as a police officer, in order to prevent Mr. Christopher's imminent commission of a serious crime.

6 The Defendants have denied the alleged negligence, or that Mr. Christopher has suffered the alleged loss or damage and personal injuries; that alternatively, in the event the Defendants be found liable, that Mr. Christopher contributed to the same.

7 By their defence filed on the 21 ^st April 2006, in Claim No. SLUHCV 0182/06, the Defendants have pleaded that PC Flavien was performing lawfully the functions of a police officer, in good faith and in accordance with established protocol. They deny the negligence alleged by Ms. Barrow, or that PC Flavien caused injury to Ms. Barrow.

8 Though the Defendants have not pleaded any special defence resulting from prescription, Learned Counsel Mr. Lay has argued confidently in his closing submissions, that Ms. Barrow's claim is prescribed. Mr. Lay has argued further that his claim cannot be maintained at all against the Defendants, in the absence of a specific pleading alleging, that PC Flavien was at the material time acting in bad faith.

9 These submissions of Mr. Lay have thrown up 2 preliminary issues which must be decided before dealing with the other central issues. However I shall identify and consider the issues after reviewing the relevant law on negligence, the liability of the Crown, good faith, and prescription.

THE LAW ON NEGLIGENCE

10 At paragraph 6 of Mr. Christopher's statement of claim he alleged that PC Flavien entered the night club and negligently discharged several rounds of ammunition into the crowded room and thereby caused injury to the Claimant.

11 The Particulars of Negligence pleaded are:

"(i) discharging a loaded firearm in a crowded public place to the danger of the visitors and or occupiers thereof;

(ii) discharging a firearm in a dark place where visibility and lighting conditions were poor;

(iii) failing to exercise due care, diligence and precaution in discharging his firearm;

(iv) failing to take the necessary or any proper or reasonable precaution to avoid causing injury to the Claimant;

(v) failing to give any or any proper warning of his intention to discharge his firearm;

(vi) in addition the Claimant will rely on the doctrine of res ipsa locquitur in support of his claim for negligence."

12 Ms. Barrow alleged at paragraph 5 of her statement of claim that PC Flavien while on active duty entered the said dancehall and negligently discharged rounds of ammunition into the room which was at that time crowded with persons, causing injury to the Claimant.

13 The Particulars of Negligence alleged are:

"(i) Discharging a firearm in a crowded room in a manner that was hazardous to occupants of the room;

(ii) Discharging a firearm in a dimly lit room where visibility was poor;

(iii) Failing to exercise due care in discharging his firearm;

(iv) Failing to take any proper precaution to avoid causing injury to persons."

14 Article 985 of the Civil Code of St. Lucia provides that:

"Every person capable of discerning right from wrong is responsible for damage caused either by his act, imprudence, neglect or want of skill, and he is not relievable from obligations thus arising."

15 The discharge of the firearm by PC Flavien was a human act which is therefore caught by Article 985. In Northbrock Ltd v Jardine (1992) 44 W.I.R. 160 at 165, Sir Vincent Floissac explained:

"There has never been any doubt that our Article 985 … place [s] on the Plaintiff the onus of proving as a precondition of the Defendant's delictual liability that the damage suffered by the Plaintiff was caused by the Defendant … Nor has there ever been any doubt that where the Plaintiff alleges that the damage was caused by the Defendant … or where the Plaintiff relies on our Article 985 … the onus is on the Plaintiff to prove as a precondition of the Defendant's delictual liability that the damage was caused by the Defendant's fault. I use the word "fault" in its technical sense to signify the concept which is expressed in the words "act, imprudence, neglect, or want of skill" appearing in our Article 989D (1) as—

"negligence; breach of statutory duty or other duty or other act or omission which gives rise to a liability in tort or would apart from this article give rise to the defence of contributory negligence."

16 "We are required by our Articles 917A and 1137 to interpret our Article 985 by reference to the English rules of evidence. This means that where the cause of action is in negligence, the Plaintiff must prove by reference to the English law of negligence and English rules of evidence: (1) that the Defendant owed to the Plaintiff a duty to take care; (2) that the Defendant was negligent, or in breach of that duty; and (3) that the damage suffered by the Plaintiff was caused by that negligence or breach of duty:" (PER Sir Vincent Floissac C.J. in Northrock supra at page 167 paras g–h).

17 In discharging the onus of proof Mr. Christopher has signaled his intention to rely on the presumption of negligence enshrined in the maxim "res ipsa loquitur." This is a "rule of evidence affecting onus. It is based on common sense, and its purpose is to enable justice to be done when the facts bearing on causation and on the care exercised by the Defendant are at the outset unknown to the Plaintiff and are or ought to be within the knowledge of the Defendant": ( Barkway v South Wales Transport Co. Ltd [1950] 1 All E.R. 392, Per Lord Normand at page 399), referred to by Sir Vincent Floissac C.J. in Northrock supra at page 169).

18 "Under the doctrine res ipsa loquitur a Plaintiff establishes a prima facie case of negligence where (1) it is not possible for him to prove precisely what was the relevant act or omission which set in train the events...