Bryan v Lindo

• Jurisdiction: Jamaica
• Judge: Carberry,Ross, JJ.A.,Wright, J.A
• Judgment Date: 05 May 1986
• Neutral Citation: JM 1986 CA 26
• Court: Court of Appeal (Jamaica)
• Date: 05 May 1986
• Docket Number: Civil Appeal No. 22 of 1985

Court of Appeal

Carberry and Ross, JJ.A. and Wright, J.A (Ag.)

Civil Appeal No. 22 of 1985

Bryan

and

Lindo

Appearances:

Mr. Neville Frasier, Asst. Attorney General and Mr. Douglas Leys for the appellant

Mr. H. G. Edwards, Q.C. for the respondent

Tort - Damages — Assault of plaintiff — Plaintiff taken to Police Station and shot in connection with shooting incident — Public Authorities Protection Act — Appeal dismissed.

JUDGMENT OF THE COURT:

1 This was an appeal from a judgment of Downer, J. delivered on the 31st May, 1985 in which he found in damages for the plaintiff.

2 We heard and dismissed this appeal on the 13th November, 1985, and promised to put our reasons in writing. We do so now.

3 The respondent, hereafter called the plaintiff, was described thus by the trial judge, Downer J.:

“George Lindo is a diffident soft spoken Rastafarian, who wears his hair in locks.”

4 The appellant, hereafter called the defendant, was at all material times a private in the Jamaica Defence Force. On the 31st July, 1976, due to a State of Emergency declared on 19th June, 1976, he was required to assist the police in the execution of their duties, and in particular was on foot patrol in the Denham Town area, along with a party of policemen. It is not in dispute that this party was fired on, but thereafter most every item of the subsequent story was hotly disputed.

5 The plaintiff heard the sound of the exchange of fire: he lived nearby. After the shots had ceased, he went outside to see what had happened, and standing at the gate of premises called to his sister-in-law. While they were talking a police radio car drove up. The defendant emerged from it, and according to the plaintiff, the defendant demanded to know who had been shooting at him and the police a while ago, and suggested (expletives deleted) that they were friends of the plaintiff. Plaintiff was picked up, and taken to the Denham Town Police Station. At the station defendant when asked why he had brought the plaintiff in, replied that plaintiff had fired shots at him at Nelson Street. The police then replied in effect that defendant should have “cleaned” him (the plaintiff) up, i.e. shot him, before bringing him into the station. The defendant's response to this suggestion was to man-handle the plaintiff, and when the watching policemen remarked that he was “romping” with the (expletive deleted) boy, the defendant, who already had his gun drawn, fired two shots at him at point blank range. They entered his neck and his jaw. He fell. He was taken to the hospital and was there treated for very serious injuries to neck and jaw.

6 The defendant's story was very different. He claimed that when the police-military party was fired on all the others save himself fled. He stood his ground and returned the fire, and further that a civilian on a motor-bike came on the scene and gave him a lift in his efforts to pursue the gunmen, who ran, and that the plaintiff was one of them, and that plaintiff flung his gun away, and that he then held the plaintiff and took him to the station. At the station the defendant alleged the plaintiff attempted to wrest a gun from one of the policemen, one Hall, and that seeing this he shot the plaintiff who was trying to escape. He claimed, to have fired one shot only.

7 Faced with these two stories, (neither of which was supported by any other witnesses), Downer J. in his written judgment expressed himself thus:

“I find Bryan's story incredible. He gave his evidence, under obvious stress especially when he was being cross-examined by Mr. Kandekore (Plaintiff's counsel at the trial) about the previous criminal proceedings, to which I shall return. Lindo, on the other hand, was soft spoken but was never shaken by Mr. Fraser on this aspect of the evidence. His evidence has a ring of truth, I accept it rather than the soldier's tale.”

8 In the argument before us challenge to the trial judge's findings of fact was withdrawn. Downer, J. awarded damages in the sum of $2,230 special damages, and $35,000.00 for general damages, adding that if he had been asked to do so he would have awarded a further $7,000.00 for exemplary damages, following Rookes v. Barnard [1964] A.C at p. 1129. There was no appeal on the question of the damages awarded.

9 What happened subsequently to the incident of the 31st July 1976? It appears that no charge was brought against the plaintiff in respect of the allegation that he had fired at the police-military party. Instead, the defendant was tried at the Circuit Court, evidently on a charge of shooting or wounding the plaintiff with intent, and was convicted. He alleges that “the judge let me go” and that “I did not go to prison”. It is not clear exactly what this meant.

10 The plaintiff's writ was filed on the 25th February, claiming damages “for assault for that on or about the 31 ^st day of July, 1976, the defendant unlawfully shot the plaintiff in the Denham Town Police Station”. The original statement of claim was filed on the 23rd July, 1981. Judgment in default of appearance was obtained on the 6th November, 1981, and an assessment of damages was ordered. On the 20th October, 1982, at the instance of the Director of State Proceedings, the default judgment was set aside, and leave given to the defendant to file and deliver a defence within twenty-one days. The defence filed denied the plaintiff's allegations and set out those of the defendant, and in addition pleaded the Public Authorities Protection Act. Subsequently an amended statement of claim was filed and served: it deleted an allegation in the original statement of claim to the effect that the defendant “was in the course of his duty,” and it gave details of the special damages claimed. This prompted an amended defence in which the defendant alleged that he was acting in the course of his duty and by virtue of the powers prescribed by the State of Emergency declared on June 19, 1976.

11 The reference to the State of Emergency added nothing to this case. It was not argued that it gave the right to anyone to shoot a prisoner gratuitously.

12 It will however be observed that the plaintiff in this action did not sue the Attorney General under the Crown Proceedings Act, nor did he seek to argue that the employers of the defendant, (the Government of Jamaica) were liable for the wrong committed by the defendant on the ground that he was acting within the course of scope of his employment. Possibly it was thought that this would prevent the defendant praying in aid the Public Authorities Protection Act. This as will be shown later, was a mistaken idea, the Act protects not only the Authority but also its servants, but nevertheless the fact remains that the Attorney General, though his office intervened and conducted the defence vigorously, was not a party to the action. Nevertheless it is clear that in the circumstances of this case it was to be expected that the Government which had not only intervened and fought the case, would if it went against the soldier involved, honour the liability incurred and pay the damages. It would have been sufficient for the learned trial judge to so indicate, but in his written judgment, he went out of his way to state, in effect, that the plaintiff's advisers were at fault in not having sued the Attorney General, and that the Attorney General would in his view have been liable if sued.

13 The effect of these observations were to provide the defence with an ingenious argument. It ran like this: the judge found that the defendant was not within the protection of the public Authorities Act, because in shooting a prisoner he could not be said to be acting within the execution of his duty, yet the judge also found that the Attorney General would have, been liable on the ground that in doing what he did the defendant was acting within the course or scone of his employment: therefore, argued the appellants, there appears an inconsistency, and, if the latter finding is right, then the former is wrong. In any event they attacked the suggestion in the judgment that the Act did not protect those public officers who were guilty of a malicious act or a felonious tort or crime.

14 The argument is not well-founded, and results from an over simplification of the law relating to both the public Authorities Protection Act, and the law relating to vicarious liability.

15 The relevant sections or provisions of the public Authorities Protection Act read thus:

• “2 (1) Where any action, prosecution: or other proceeding, is commenced against any person for any act done in pursuance or execution, or intended execution of any law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such law, duty, or authority, the following provisions shall have effect –

  • (a) the action, prosecution, or proceeding, shall not lie or be instituted unless it is commenced within one year next after the act, neglect or default complained of, or, in the case of a continuance of injury or damage, within one year next after the ceasing thereof.”

16 The Act set out above reproduces almost verbatim the provisions of the English Public Authorities Protection Act, 1893, with this difference, that our Section 2 of Law 6 of 1967 substituted a period of one year for the original period of six months. It is to be noted however that in England the 1893 Act was amended by Section 21 of the Limitation Act of 1939, and has eventually been abolished by Section 1 of the Law Reform (Limitation of Actions) Act, 1954. It may he that at some time in the future those responsible for law reform will consider the desirability of making similar amendments to our own Act.

17 In cases where the Act is pleaded, three questions arise for determination: (1) Is the person or body claiming the protection of the pact a “public authority” within the...