Carl Brown v Attorney General of Jamaica and Another

• Jurisdiction: Jamaica
• Judge: Anderson, K., J.
• Judgment Date: 18 October 2013
• Neutral Citation: [2013] JMSC Civ 151
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2005HCV 01141
• Date: 18 October 2013

[2013] JMSC Civ 151

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2005HCV 01141

Between

Carl Brown

Claimant

and

Attorney General of Jamaica

1st Defendant

and

Constable Clive Nicholson

2nd Defendant

Judith Brown — Ramanand , instructed by Judith Brown-Ramanand & Company for the Claimant

Cheryl-Lee Bolton , instructed by the Director of State Proceedings for the Defendants

ASSAULT — BATTERY — SHOOTING BY POLICE OFFICER — SELF DEFENCE — BURDEN OF PROOF IN RESPECT OF SELF DEFENCE IN CIVIL CASES — TRESPASS TO GOODS — CONVERSION — DETINUE — NEGLIGENCE — SELF DEFENCE — ASSESSMENT OF DAMAGES

Anderson, K., J.

1 By this claim, the claimant is seeking to recover compensation by order of this court, from the Crown, arising from certain events which he has alleged, occurred on April 25, 1999, along West Road, Port Antonio, in the parish of Portland, involving in particular, himself and a police officer who was serving in that capacity at the material time and who is, as such, an admitted servant or agent of the Crown, for the purposes of the events which have given rise to the claimant's claim.

2 There are, as is typical in court cases of this nature, both accepted, as well as disputed matters of fact, between the parties to this claim. That which is not disputed is that the relevant events occurred during the night of April 25, 1999, along West Road, Port Antonio, in the parish of Portland and that those events began whilst the claimant was driving a motor car with licence number — 5790 BS, this being a motor vehicle which was, at that time, unregistered and uninsured. The second defendant had also been driving a marked police vehicle that night and at some point in time, the claimant stopped the vehicle in which he had, up until then on that night, been travelling and got out of said vehicle, in the immediate vicinity and in full view, of the second defendant. At some point in time thereafter, the second defendant with a firearm, shot the claimant in the upper left side of his left buttock. Thereafter, the claimant ran away, even though he was, at no time, being physically chased by anyone and reached his home via a taxi. Later that night, he was seen by the second defendant at the police station where the second defendant was then stationed for work. The claimant had gone there and was then accompanied by relatives of his, who complained about his having been shot by the second defendant. The second defendant transported the claimant to the hospital in Port Antonio, where he was treated and later released. The claimant incurred expense for the treatment which he receive as an in-patient, as well as an out-patient, at the hospital and also, incurred expense, for, the medical advice which he thereafter received from various medical doctors and also, for the preparation of a medical certificate in respect of the injury which he suffered. The claimant was assessed as having suffered, as a consequence of the gunshot injury to his left buttock, a temporary partial disability, to the extent of 25% over three months. The claimant was earning $7,800.00 per week and has claimed loss of earnings for the period of time during which he was temporarily disabled. At the time, the claimant used to work with a building contractor, as a mason. In addition, the claimant's vehicle was seized by the second defendant, purportedly in proper pursuit and carrying out his duties as a police officer.

3 This court accepts as truthful and accurate in all respects, the evidence which has not been disputed — as set out above. The factual issues which are in dispute however, need to be resolved by this court, not only for the purposes of enabling this court to conclude on exactly what transpired between the claimant and the defendant during their interaction on the relevant night and also on the sequence thereof, but also, for the purpose of enabling this court to conclude on one of the most important issues in this case, at least insofar as the claim for damages for assault and battery and/or negligence, is concerned, this being, as first raised by the second defendant in the joint defence as filed by the defendants and thereafter, responded to at trial, by the claimant, that being:— Whether or not the second defendant, when he shot the claimant, was then acting in self defence. For present purposes though, insofar as the defence of self defence as has been put forward on behalf of the defendants, is concerned, it is to be noted that there was no evidence placed before this court by anyone, that on the questioned night, the claimant had ever, in fact, had any weapon in his possession. There was also no evidence presented to the court on behalf of the defendants, as could even remotely suggest that the second defendant was physically attacked in any way. The evidence as presented to this court by both the claimant and the second defendant, makes it clear that there never was any physical attack committed by the claimant in relation to the second defendant. As will clearly be understood from this judgment at a later juncture though, the absence of such evidence, or of evidence that on the questioned night, the claimant had in fact had in his possession, a weapon or even, for that matter, any object readily capable of being utilized as a weapon in such a manner that serious harm or injury could have been caused to the second defendant, thereby having justified the second defendant, in defence of himself, to have fired the shot towards the claimant and thus, to have injured the claimant by means of a bullet which was thereby lodged in his left bullock, does not, in and of itself, deprive the second defendant, of the defence of self defence. This will be addressed in greater depth, later on in this judgment.

4 Apart from the issue of whether or not, at the material time, the second defendant had acted in self defence, there are other issues of factual dispute as between the parties. One of these is as to the precise concatenation of circumstances which eventually led to the claimant having stopped the vehicle which he had, up until then on that night, been driving and having thereafter, exited the said vehicle.

5 The disputed evidence as between the claimant and the defendants in that regard, is as follows:— According to the claimant, he was driving the vehicle which is his, albeit registered in the name of his brother — Christopher Brown. This was at about 10:30 p.m. on April 25, 1999. Upon reaching the intersection of West Street and Boundbrook Crescent, he saw two cars coming in his direction and he stopped and allowed them to pass. He identified one of those vehicles to be a taxi and the other, as being a police vehicle. There was only one person who was in the police vehicle at that time and that was, of course, the driver thereof. After these vehicles had overtaken his vehicle, the claimant then proceeded to drive his vehicle behind the police vehicle. The taxi and the police vehicle were, at that time, driving only about a chain apart from one another. The police vehicle thereafter came to a stop, not far away from where the claimant's vehicle had, on that night, been overtaken by the police vehicle — At that stage, according to the claimant, he put on his vehicle's indicator light and passed the police vehicle. While passing the said police vehicle, the claimant's evidence is that he then looked at the person then driving the police vehicle and that person is the second defendant. After having driven his vehicle past the police vehicle, the claimant drove on for about another minute and had just reached the Singer store, when he saw the blue flashing lights of the police vehicle in his rear — view mirror. The claimant's further evidence is that he then immediately put on his vehicle's indicator and came to a stop in the vicinity of the Navy Island gate, which is across from (“opposite” was how the claimant termed it) the Esso gas station.

6 The claimant has further alleged and given evidence in support of the allegation that having stopped his vehicle, the police car then drove up and stopped right beside his. The second defendant, according to the claimant, then said to him —“Hey blood cloth bwoy, you neva see police a blood cloth stop you!' The claimant then said “good night” to the officer, but that gesture was seemingly ignored by the second defendant and thus, the claimant said “good night” to the second defendant again. The claimant also gave evidence that the second defendant then said to him, “Mi notice say unno a gwan like say unno a bad man.” To that, the claimant then responded for a third time with the salutation —“good night,' to which the second defendant responded by saying —“Come out of the blood cloth car, mi notice say unno a gwan like say unno a bad man, but mi deh yah fi unno.” It was at that point in time, after having heard of all this from the second defendant, that the claimant then came out of his vehicle. The claimant also gave evidence that when he came out of the vehicle which he was driving on that night, he came out with a coconut cake in one hand and his key in the other and raised his hands high in the air. This court finds it strange that he would have come out of the said vehicle with coconut cake in one of his hands. Why would he have taken the coconut cake out of the car, in one of his hands, when he exited the car? This particular aspect of the claimant's version of events, seems highly improbable to this court.

7 The claimant also, testified that after he had exited the said vehicle, he told the second defendant that he was going to stand over by a nearby gas station, where there were then some people standing. According to the claimant, he did this because he thought that the second defendant, who was then visibly armed with a handgun, would not harm him in full view of so many persons. He went on to...