Thornhill v The Attorney General

• Jurisdiction: St Lucia
• Judge: Pereira, C.J.
• Judgment Date: 16 April 2015
• Neutral Citation: LC 2015 CA 5
• Docket Number: SLUHCVAP2012/0035
• Court: Court of Appeal (Saint Lucia)
• Date: 16 April 2015

Court of Appeal

Pereira, C.J.; Baptiste, J.A.; Thom, J.A.

SLUHCVAP2012/0035

Thornhill

and

The Attorney General

Appearances:

Mr. Horace Fraser for the appellant.

Mr. Dwight Lay for the respondent.

Negligence - Appeal — Negligent discharge of a firearm — Whether on the evidence before the trial judge it was reasonable to conclude that the police officer was not at the relevant time acting as an officer of the Crown — Whether the police officer's actions on the day in question were done in bad faith.

Harvey Taliam, who was a police constable (“PC Taliam”), was on 15th May 2009, engaged in private security duties at Glace supermarket when he observed a fracas involving the appellant and others outside the supermarket. PC Taliam who said that he had anticipated a breach of the peace identified himself as a police officer to the persons involved in the fracas. He also stated that the appellant pointed a gun at him and as a result he (PC Taliam) shot at him (the appellant) causing him to be wounded. The matter was investigated by another officer who concluded that the appellant was a victim.

The appellant brought proceedings against the Attorney General on 21st May 2010 for damages for the negligent discharge of a firearm by PC Taliam. The Attorney General denied liability for PC Taliam's actions. The defence was that PC Taliam was neither a servant nor agent of the Crown in respect of the acts complained of and was, in respect of his public duties, exercising his independent discretion and common law powers of arrest when he sought to apprehend the appellant using such force as was reasonable in the circumstances; the appellant's claim was prescribed by Articles 2124 and 2129 of the Civil Code of Saint Lucia (“the Civil Code”); and that the appellant was the cause of his own injury.

The learned trial judge found that PC Taliam was, at the relevant time, exercising his common law powers of arrest. He was engaged in private security duties as such he was not an agent of the Crown and therefore the Crown could not be held liable for PC Taliam's actions. Further, that in any event, bad faith having not been proven, the claim was prescribed by the Civil Code.

The appellant has appealed the findings of law and fact as made by the learned trial judge.

Held: dismissing the appeal and ordering each party to bear their own costs; that

• 1. An appellate court will not impeach the finding of facts by a first instance or trial court that saw and heard witnesses give evidence except in very limited circumstances. Where a trial judge misdirects himself and draws erroneous inferences from the facts, an appellate court is in as good a position as the trial judge to evaluate the evidence and determine what inference should be drawn from the proved facts. In the present case, the learned trial judge paid undue regard to the fact that PC Taliam was at the supermarket performing private security services. In that regard, he came to the wrong conclusion as to the nature of the relationship between PC Taliam and the Crown. On that basis, the appellate court is in as good a position to evaluate the evidence and determine what inference should be drawn from the proved facts.

  East Pine Management Limited v. Tawny Assets Limited et al BVIHCVAP2012/0035 (delivered 24th March 2014, unreported) followed.

• 2. A police officer is not a servant or agent of the Crown in the strict sense, merely by virtue of his office or in respect of the performance of his general duty to serve, and protect the citizenry by enforcing the law of the land. Nonetheless, he or she is an officer or an employee of the Crown in the sense that he or she performs a very important public duty — that of peace officer charged with enforcing the law of the land by protecting citizens as they go about their daily lives in peace within a community. Therefore, the Crown would be 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.

  Section 4(3) of the Crown Proceedings Act, Cap. 2.05, Revised Laws of Saint Lucia 2008 applied; R v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 1 All E.R. 763 applied; Thornhill v. The Attorney General(1976) 31 W.I.R. 498 applied; Section 94 of the Constitution of Saint Lucia Cap. 1.01, Revised Laws of Saint Lucia 2008.

• 3. The evidence was that PC Taliam acted on the premise that he was in every respect a police officer at the time that he observed a breach of the peace was imminent at which time he assumed the full character and responsibilities of a police officer and acted in a manner to prevent a breach of the peace. At the relevant time, there was no doubt that he was acting as a police officer and was therefore an officer of the Crown. His action in discharging the firearm was closely connected with the acts he was authorised to do which include his duty to preserve the public peace. On the facts and circumstances of this case, the Crown, barring any limiting circumstances, would be liable for PC Taliam's actions if the performance of the functions he performed or purported to perform amounted to a delict or quasi-delict.

  Section 4(3) of the Crown Proceedings Act, Cap. 2.05, Revised Laws of Saint Lucia 2008 applied; Attorney General of the British Virgin Islands v. Hartwell[2004] U.K.P.C. 12 applied.

• 4. The liability of the Crown however is circumscribed by the requirement of bad faith where the action is commenced after six (6) months. In order to determine whether an act was done in good faith, one may look at the conduct not only at the time of the act amounting to the violation but also at the actions before and after as bad faith is usually to be inferred from a certain state of things which may include conduct not only at the specific point in time of the action complained of but also actions taken before and after, as all of these may be relevant in divining bad faith in respect of the act. The mere telling of a lie does not in and of itself amount to bad faith; it all depends on the circumstances of the case. The evidence in this case showed that PC Taliam's actions were as a result of perceived danger to life or limb. His actions could not be said to amount to gross recklessness or gross carelessness. On the particular facts of this case, PC Taliam's evidence and actions, when weighed with all the relevant circumstances surrounding the incident, does not meet the threshold requirement for a finding of bad faith. The learned trial judge was correct in his conclusion that bad faith had not been proven. There is therefore no reason to disturb that finding.

  Article 2124 of the Civil Code of Saint Lucia Cap 4.01, Revised Laws of Saint Lucia 2008 applied; R v. Dara M. Wilder 1997 CanLII 1616 (BC SC) applied; Finney v. Barreau du Quebec2004 SCC 36; [2004] 2 SCR 17 distinguished.

• 5. The learned trial judge, although he erred on the nature of the relationship between PC Taliam and the Crown, was nonetheless correct in his finding that bad faith had not been proven. Accordingly, the appeal fails for the reason that by the time the claim was brought it was time barred.

  Article 2124 of the Civil Code of Saint Lucia Cap 4.01, Revised Laws of Saint Lucia 2008 applied.

Pereira, C.J.

1 This appeal raises the issue as to the circumstances in which the Crown may be liable for the actions of an off-duty police officer, who discharged shots from his police issued firearm resulting in injury to the appellant. It also raises the issue as to the time limitation for commencing an action against the Crown.

THE BACKGROUND

2 Harvey Taliam, was a police constable bearing regulation No. 296 of the Royal Saint Lucia Police Force (“PC Taliam”). During his off-duty periods, PC Taliam rendered security services to a private business entity, Glace Motors Limited (“Glace”), which operates among other businesses, a supermarket situate at Marisule, in the Quarter of Gros Islet, Saint Lucia.

3 On 15th May 2009, PC Taliam's attention, while performing off-duty security services to Glace, was drawn by a loud commotion outside in the compound of the supermarket building. This commotion involved the appellant (“Thornhill”) and some other men over a vehicle. PC Taliam who said he apprehended a breach of the peace came out of the supermarket into the compound and announced that he was a police officer. PC Taliam also stated that Thornhill pointed a gun at him and as a result he shot at him causing him to be wounded.

4 Corporal Errol Henry (“Henry”) investigated the incident. No charges were brought against Thornhill. Corporal Henry concluded that he was a victim.

5 Thornhill brought proceedings against Glace and the Attorney General on 21st May 2010 for damages for the negligent discharge of a firearm by PC Taliam. The Attorney General defended the claim and asserted, so far as relevant to this appeal, that:

• (a) PC Taliam was neither a servant nor agent of the Crown in respect of the acts complained of and was, in respect of his public duties, exercising his independent discretion and common law powers of arrest when he sought to apprehend Thornhill using such force as was reasonable in the circumstances;

• (b) The claim by Thornhill was prescribed by virtue of Articles 2124 and 2129 of the Civil Code of Saint Lucia (“the Civil Code”) Cap 4.01; and

• (c) Thornhill was the cause of his own injury.

THE TRIAL JUDGE'S FINDINGS

6 The learned trial judge in an oral judgment delivered on 25th October 2012 identified two main issues for determination: firstly, that in order for the prescription defence not to succeed, (it being common ground that the claim was brought more than six (6) months after the claim arose) Thornhill was required to prove bad faith on the part of PC Taliam in relation to his actions and whether this had been shown; and secondly, whether PC...