Mitcham Black Claimant v Attorney General of Saint Lucia CPR. 451 Bernard Darcheville Defendants [ECSC]
| Jurisdiction | St Lucia |
| Judge | Hariprashad-Charles J |
| Judgment Date | 22 March 2004 |
| Judgment citation (vLex) | [2004] ECSC J0322-2 |
| Court | High Court (Saint Lucia) |
| Docket Number | CLAIM NO. SLUHCV2001/0728 |
| Date | 22 March 2004 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
CLAIM NO. SLUHCV2001/0728
Tort — Battery — Shooting by Police — Defences — self defence — use of reasonable force — ex turpi causa — contributory negligence — defences not available without direct testimony of defendant seeking to rely on them.
Damages —Personal Injuries — General Damages —Fenton Auguste v Francis Neptune and Suzanna Jules v Long (unreported) (Saint Lucia) applied
Damages — special damages — cost of medical treatment abroad — duty to mitigate loss — need to prove that medical treatment unavailable locally
Damages — aggravated damages — need to prove malice on part of defendant — need to prove humiliation or disgrace suffered by claimant
On 22nd March 2001, Mitcham Black, a mentally unstable resident of La Clery was shot in his left leg by Corporal Darcheville in an attempt to apprehend him to take him to Victoria Hospital to seek medical attention. Mr. Black alleges that as a result of the unlawful and unjustified shooting, he suffered an injury to his leg. He now sues the Attorney General and Corporal Darcheville (the Corporal) for damages.
There are two inconsistent versions of the events. Mr. Black's version is that on the day in question, he went to Grass Street in Castries where he was seriously beaten by a number of individuals. He received cutlass wounds to his left arm and back and as a result, he lost a lot of blood. He went to the beach to soak his wounds. Then he returned home. He fainted several times due to loss of a lot of blood. His family called the ambulance. When he came from his little room downstairs to go to the ambulance, he realized that the place was swarmed with armed policemen. He then retreated to his room. His sister pleaded with him to go to the hospital with the policemen. He came out of the room and went into the balcony of the house. He sat there. The police asked him to come outside but he refused. He kept shouting responses at the police. He was careful not to arm himself as he had been shot by the police for no apparent reason prior to this incident. Later, he heard the police instruct members of his immediate family to go inside their house and to lock the door and stay inside. Then the Corporal came up to the balcony near to where he sat and pointed a gun at him. He heard two loud explosions. He felt extreme pain and realized that he had been shot in his left leg.
Mr. Black alleged that the armed police officers made no serious attempt to subdue him although they would have had no reason to do so since he was not behaving in a violent or threatening manner. He also alleged that after he was shot, he was dragged by the Corporal and other police personnel in full view of the public and thrown into the back of a waiting ambulance. He was taken to Victoria Hospital where he was treated for the gunshot injury. Three days after, he was admitted to Golden Hope Hospital.
Mr. Black called his brother David and sister, Mosa to give evidence on his behalf. Except for a few inconsistencies, Mosa's evidence more or less corroborated Mr. Black's account of what transpired on that fateful night in question.
David Black was not present throughout the incident. On his arrival, he noticed policemen running from the backyard of their house and his brother throwing objects. Although unable to see the objects, he was able to conclude that they were not dangerous. He felt that the police were determined to injure his brother despite his many warnings to them not to do so.
Mr. Black alleged that as a result of the gunshot wound, he is crippled for the rest of his life.
The defendants' version of events is significantly different. Their case is that Fireman Faucher received a call from a Control Room Attendant in respect of a mentally ill patient who was threatening persons in the La Clery area. He left the Fire Service Headquarters in an ambulance together with Fireman #341 Sidoine who was the driver. When they got to the area, Mr. Sidoine parked the ambulance on the La Clery main road while he walked down the lane to Mr. Black's house. Family members from the upstairs of the house indicated to him that Mr. Black was downstairs. He saw Mr. Black and identified himself to him as from the Fire Service. Mr. Black shouted back "all of you fellas is the same" and he started shouting things like "Selassie-I" and "Jah." Mr. Faucher concluded that Mr. Black was not normal so he sought police assistance.
About 20 minutes later, 3 police officers including P.C. Wilson arrived. Mr. Sidoine reversed the ambulance closer to the house. By then a crowd had gathered on the main road near the junction of the lane. They all proceeded to the house. P.C. Wilson spoke to Mr. Black in an attempt to convince him to go with him to the hospital for treatment but he was unsuccessful. Mr. Black got very agitated and violent when P.C. Wilson began to approach slowly. He began hurling objects at them and threatened the police officers withviolence. They all ran up the lane and out to the main road to avoid being hit. The Special Services Unit (SSU) was called for assistance. The Fire Service Personnel left when SSU arrived at about 11.00 p.m.
The team from the SSU was headed by the Corporal. P.C. Prospere was part of the team. The Corporal and P.C. Prospere made repeated attempts to persuade Mr. Black to accompany them to the hospital so that he would be treated. Instead, Mr. Black got more violent. The Corporal then ordered P.C. Prospere to fire rounds of rubber bullets at Mr. Black's legs in order to subdue him. P.C. Prospere fired about 5 rounds of rubber bullets at his legs but Mr. Black was unhurt. Instead, he retaliated by throwing the rubber bullets back at the officers.
When he had stopped throwing rubber bullets, the Corporal walked towards the balcony pleading with him to come with them to the hospital. The Corporal had his shotgun in his possession. Mr. Black then threatened the Corporal by saying "don't come any closer or else I will kill you." The Corporal then walked closer to the balcony railing. Mr. Black pushed his hand in his pocket and pulled out a knife. At this stage, the Corporal made his shotgun ready to fire at Mr. Black. Mr. Black suddenly leaned over the balcony and tried to stab the Corporal on his head. It is at that point that Corporal Darcheville shot him on his leg.
I am afraid that I could not rely on the evidence of Mr. Black or his witnesses where it conflicted with that of the officers. I did not believe the account given by Mosa or David. There were significant discrepancies in their evidence. David arrived at the scene late. He was unable to recognize the objects being thrown at the policemen but he was quick to say that they were not dangerous objects.
In contrast, the Defendants' witnesses gave their evidence in a clear, convincing and forthright manner. I believe them to a certain extent as to how the events unfolded themselves on the night of 22nd March 2001. As to the defences which they put forward, I was unable to make a determination because the principal witness, Corporal Darcheville did not avail himself for cross-examination before the court.
Based on the evidence, I make the following findings of facts. On the night in question, Mr. Black was behaving violently and in a threatening manner. His family members were unable to contain him and take him to the hospital so they sought police assistance. An ambulance from the Fire Service Department arrived with two firemen on board. Fireman Faucher was unable to persuade Mr. Black to go with him to the hospital. He decided to seek police assistance. Police officers from Central Police Station arrived. P.C. Wilson who knows Mr. Black very well tried to persuade him to go with them to the hospital. Mr. Black greeted them with a barrage of obscenities. Coupled with that, he pelted objects at the officers and was behaving violently and disorderly. When P.C. Wilson and his team failed, they turned to the SSU for assistance.
The SSU came shortly after the distressed call for assistance. Mr. Black's threatening and violent behaviour did not subside when these lawmen arrived. He continued to spit obscenities and threaten them. After several failed attempts to persuade him to go with them, the Corporal ordered P.C. Prospere to fire some rounds of rubber bullets in order to subdue Mr. Black. The rubber bullets did not achieve the intended purpose. In fact, Mr. Black became more agitated. He became more violent and threatening. He began throwing the rubber bullets at the officers. After he had stopped throwing the rubber bullets, the Corporal walked towards the balcony where Mr. Black was. He continued pleading with Mr. Black to go with them. Mr. Black refused to and threatened him by saying: "don't come any closer or else I will kill you." The Corporal was not afraid of Mr. Black's threat as he kept on moving closer to the balcony railing, armed with his shotgun. Then Mr. Black put his hand in his pocket and pulled a knife. The Corporal fired a shot wounding Mr. Black in his leg.
Mr. Black was then handcuffed, strapped and taken to Victoria Hospital where he received medical attention. A few days later, he was taken to Golden Hope Mental Hospital.
Mr. Black brought his claim under Article 985 of the Civil Code which states:
" 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."
Mr. Williams, on behalf of the Attorney General raises the following answers to the...
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