Attorney General v Reid et Al; Attorney General v Engerbretson et Al; Engerbretson v Americana Jamaica Corporation; Reid v Americana Jamaica Corporation

JurisdictionJamaica
JudgeWright, J.A.
Judgment Date30 May 1994
Neutral CitationJM 1994 CA 31
Docket NumberCivil Appeal No. 107 of 1992
CourtCourt of Appeal (Jamaica)
Date30 May 1994

Court of Appeal

Wright, J.A

Civil Appeal No. 107 of 1992

Attorney General
and
Reid et al
Attorney General
and
Engerbretson et al
Engerbretson
and
Americana Jamaica Corporation
Reid
and
Americana Jamaica Corporation

Evan Aenaeus, Douglas Less and Carlton Colman, instructed by Director of State Proceedings, for the appellants

Gordon Robinson, David Henry and Lowell Morgan, instructed by Winsome Gordon Sobers of Nunez, Scholefield, DeLeon & Co., for respondent Engerbretson

Jacqueline Cummings, instructed by Gaynair & Fraser for respondent Reid

Tort - Vicarious liability — Defendant, a constable of the Jamaica Constabulary Force was charged with assault and wounding and in the alternative in negligence — Whether the government is vicariously liable for the defendant's conduct which caused serious injuries to both plaintiffs — Respondents had to prove on a balance of probabilities that the acts of felonious wounding committed on the parties by the defendant were so connected with the authorised acts, that they could be considered modes of doing what he was authorised to do — The mere fact that the officer used an opportunity given to him by virtue of being a policemen, to commit an act independent of those authorised by the government cannot, in accordance with settled principles, create a vicarious liability in the government — Appeal allowed.

Wright, J.A.
1

After reading the judgment in draft of Forte, J.A. I find myself painfully constrained to agree with his reasoning and conclusion. And this is so because although I must abide by the governing principle and force of precedents, I fell very strongly that the circumstances of the traumatic encounter out of which these cases cry out for justice which is not met by a decision so constrained. The respondent Engerbretson, a resident of Mankato, Minneapolis, Minnesota, U.S.A. was lured by television advertisements to choose Jamaica for her vacation and while in a hotel she was brutally set upon by a law enforcement officer to whom she was entitled to look for protection had she been assaulted by any other person. She, like the respondent Reid, a security guard who went to her rescue and came close to loosing his life, fell victim to the cocaine indulgence of a policeman who was posted at the hotel to render patrons safe from pimps, prostitutes and drug pushers. It cannot, to my mind, be right for the government in these circumstances to distance itself from the woes of these unfortunate respondents by disclaiming liability. Accordingly, I strongly endorse Forte, J.A.'s suggestion that ex gratia payments be made to the plaintiffs/respondents. Indeed, I find there is a moral responsibility to do so. But I go even further and say that it cannot be in the best interest of the country for vacationers to be induced to come to Jamaica and to end up without any protection. A policy decision ought to have been taken which would have saved the country from ignominy of such a glance by the government.

2

This decision was based on the failure of the claims based on vicarious liability, but there was a claim in negligence by Engerbretson as appears at paragraph 4 of her Amended Statement of Claim as follows:

“Further or alternatively the plaintiff says that the incident complained of was caused and/or contributed by the negligence of the Commissioner of Police and/or other officers of the Jamaica Constabulary Force the servants and/or agents of the second Defendant who negligently and without reasonable or probable cause permitted and/or allowed the first Defendant to become a member of the Jamaica Constabulary Force thereby entitling the first Defendant to the powers and protection conferring by law and easy access to a firearm thereby facilitating the commission of the first Defendant's crime against the Plaintiff. Further or alternatively the said agents of the second Defendant negligently failed to monitor or regulate the first Defendant's access to, possession or use of a firearm properly or at all.

“PARTICULARS OF NEGLIGENCE OF THE SERVANT

AND/OR AGENT OF THE SECOND DEFENDANT

  • (a) Providing inadequate and/or unsatisfactory entry requirements for membership in the Jamaica Constabulary Force.

  • (b) Failing to implement or satisfactorily implement the said entry requirements in the case of the first Defendant.

  • (c) Failing to screen or satisfactorily screen applicants for membership in the Jamaica Constabulary Force.

  • (d) Permitting the first Defendant to perform functions of a special and sensitive nature in a particularly sensitive area despite the fact that it was manifestly unsafe so to do.

  • (e) Failing to or to properly supervise and/or monitor the actions of the first Defendant.

  • (f) Failing to ensure that the First Defendant relinquished his service revolver when not on specific assignment.

  • (g) Failing to so manage, administer and regulate the operations of the Jamaica Constabulary Force so as to avoid the assault and wounding of the Plaintiff by the first Defendant a member of the said Force.”

3

On this plea the respondent assumed a burden of proof, which it was impossible to discharge. Such a plea certainly does not bear the hallmark of the draftsman's best endeavour and did not feature in the respondent's effort to prove her case. A plea that the Commissioner of Police, well knowing of Constable Thompson's cocaine penchant, was negligence in placing him on such an assignment which exposed him to temptation or that he was negligent in not knowing of the Constable's weakness of which of which evidence was available if such, indeed, was the case, though onerous, would stand a far better chance of success than the negligence pleaded.

ORDER
4

In the result, therefore, the appeals are allowed and the judgment of the court below set aside. Having regard to the court's view of the government's attitude, the plaintiffs/respondents ought not to be required to pay any costs and, accordingly, there will be no order as to costs.

5

FORTE, J.A.: This is an appeal from the judgment of Bingham J sitting in the High Court in which, in consolidated actions claiming for assault and wounding and in the alternative in negligence, he made the following orders inter alia:

  • “1. Suit No. C.L. E. 032 of 1985 Judgment for the Plaintiff for:

    • i) Special Damages US$142,276.00

      (Subject to conversion into Jamaican dollars at the going market rate at the date of delivery of judgment).

    • ii) Interest on Special Damages of US$142,276.00 at 3% per annum from March 4, 1984 to October 16, 1992 amounting to US$ 36,788.09

    • iii) General Damages US $1,000,000.00

    • iv) Interest on General Damages of J$1,000,000.00 at 3% per annum, March 1, 1985 to October 16, 1992 amounting to US $ 228,290.32

    • v) Costs to the plaintiff to be agreed or taxed

  • 2 ……

  • 3. Suit No. C.L. R. 009A of 1985 Judgment for the plaintiff against both defendants for $253,373.00 being:

    • i) Special Damages $ 3,373.00

    • ii)Interest awarded on Special Damages at 3% from the 4th day of March, 1984 to the 16th day of October 1992.

    • iii) General Damages for pain and suffering and loss of amenities 250,000.00

    • iv) Interest awarded on General Damages at 3% from the first day of March, 1985 to the 14th day of January, 1992.

Cost to be agreed or taxed.

6

The awards were however made on the basis of the unlawful assault and wounding and the plaintiff by the defendant Thompson.

7

Having heard arguments over a period of three days we took time out to consider those arguments with a promise to deliver our judgment at a later date. The following are my conclusions.

8

As the outcome of this appeal will depend on the particular facts in the case, they are set out hereunder in summary form.

9

The case arose out of the conduct of Constable Errol Thompson, who though named at the trial, as a defendant, did not defend the action, and consequently is not a party to this appeal. It was his actions however, that resulted in the injuries to both plaintiffs/respondents and which resulted in these suits.

10

Mr. Thompson at the relevant time was Constable employed by the Government of Jamaica as a member of the Jamaica Constabulary Force. On the night of the incident, he was assigned duties in the resort area of Ocho Rios in which is situated the Americana Hotel (as it then was) the site of the incident. His duties then, related to investigations concerning the harassment of tourists by persons desirous of selling drugs, and in any other way interfering with the quiet enjoyment of our visitors.

11

On the 4th March 1993 the plaintiff Ms. Donna Engerbretson, an American on vacation in Jamaica, attended the Americana Hotel, for the purpose of watching a floorshow. After she had enjoyed the show, she along with friends enjoyed the facilities of the Disco situated in the hotel. At about 3.00 a.m., on leaving the Disco, she went unaccompanied to the ladies room which was located just off the lobby of the hotel. As she walked through the lobby, several persons were around, but she noticed, in particular, the other plaintiff, Mr. Reid, sitting at a desk. Mr. Reid was at the time employed as a security guard by the management of the hotel. Ms. Engerbretson, having entered the ladies room, was subjected to a vicious attack by the defendant Cons. Thompson in the course of which he held her up with a gun issued to him by the Jamaica Constabulary Force, robbed her, and thereafter on her attempt to escape from him, wounded her severely with a knife. She was cut in her neck, right arm and left palm, and received lesser wounds all over her body. While this was taking place, Mr. Engerbretson was struggling and screaming in the hope that this terrible ordeal would come to an end. The screams attracted the attention of the security guard in the hotel. As she screamed, Mr. Thompson ran in his effort to escape, and on coming in contact with the plaintiff Mr. Reid who...

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