Finn v Attorney General
| Jurisdiction | Jamaica |
| Judge | Wolfe, J. |
| Judgment Date | 19 May 1981 |
| Court | Supreme Court (Jamaica) |
| Docket Number | C.L. 1979/F027 |
| Date | 19 May 1981 |
Supreme Court
Wolfe, J.
C.L. 1979/F027
Dennis Daley and Mrs. Donna Scott-Bhoorasingh for the plaintiffs
Rupert Lopez of the Attorney General Department for the defendant
Damages - Personal injury — Fracture of the left clavicle with soft tissue injury to left shoulder, thigh, peritoneal cavity and anterior chest wall — Quantum
Arising out of an incident, which may best be described as a tragedy, the plaintiff, George Finn, was shot and severely injured by the police on Sunday the 30th day of April, 1978.
Consequent thereto he commenced an action against the Attorney General by virtue of the Crown Proceedings Act 1959.
Paragraph three (3) of the Statement of Claim sets out the particulars of the plaintiff's claim thus:
“On or about the 30th of April, 1978 at or in the region of Salisbury Avenue off Barbican Road in the parish of Saint Andrew the plaintiff was riding a motor circle when Albert Reid and Rupert Johnson, both members of the Jamaica Constabulary Force attached to the office of the Commissioner of Police, acting maliciously and without reasonable or probable cause, assaulted the plaintiff by deliberately discharging firearms several times at him and shooting him in several places in the region of his back. “
issues to be resolved in this action were essentially factually involved no intricate principles of law, but the allegations against of the security forces are of a sufficiently grave and weighty nature to merit a written judgment.
The plaintiff testified that he was on the 30th April, 1978, employed as a Headman at the Sites and Services Division of the Ministry of Housing. On the eventful day he was the driver of a motorcycle accompanied by a pillion rider, Stanley Daley, now deceased, along Barbican Road in Saint Andrew. Somewhere along the Barbican Road he stopped the motorcycle and George Daley alighted and spoke to a lady who was walking along Barbican Road. Having spoken to this lady, Daley remounted and they continued on their journey turning on to Salisbury Avenue which runs off Barbican Road.
While travelling along Salisbury Avenue, the plaintiff observed a motorcar proceeding behind him. He continued on his journey. Then suddenly he heard a shot from behind, his motorcycle wobbled and the pillion rider, Daley, fell therefrom. Two more explosions were heard and the plaintiff experienced “a terrible burning” in his back. Following third explosion, he felt a burning sensation to his right leg whereupon he lost control of the motorcycle, collided into the sidewalk and fell to the ground on his right side.
The motorcar, which had been travelling behind, came to a stop men alighted and one of the two men shot him in his left shoulder and his thigh as he lay helpless on the ground.
He shouted to, the man to spare his life. The man placed his foot on the plaintiff's face and threatened to finish him off. A crowd gathered and this apparently averted the demise of the plaintiff.
The plaintiff was placed on the back seat of the car and the corpse of Stanley Daley thrown on top of him. On arrival at the University Hospital, the plaintiff lost consciousness. He regained consciousness the following day in the hospital. He remained a patient he institution until the 6th June, 1978, and upon discharge he was placed in custody at the Matildas corner Police Station for some nine months before being admitted to bail.
Charges were preferred against him for Larceny from the Person as evidenced by Exhibits Five and Six and on the 22nd of February, 1979, the records were endorsed “No order made. Complainants cannot be found.”
By consent two medical reports were tendered and admitted in evidence as Exhibits One and Two.
The court wishes to record its disappointment at the failure of the parties to call the medical practitioner to testify. The court is of the view that the viva voce evidence of the medical expert would have been of greater assistance to it than the bare medical reports , which were tendered in evidence.
For reasons which shall become apparent, I set out herein the details of the Medical Reports.
Exhibit 1 Medical Report dated 16th March, 1979:
“MEDICAL REPORT
George Finn
UHWI No. 37178
This patient was admitted to the University Hospital on 30 April 1973 having sustained multiple gunshot wounds.
On admission he was conscious, alert and sweating. He was in obvious shock, peripheral pulses were not palpable and his blood pressure was unrecordable. He had pale mucous membranes and cold extremities. He, had multiple gunshot wounds of the left shoulder the back and both thighs. There was marked abdominal rigidity and evidence of free fluid within the abdomen.
X Rays revealed a fracture of the left clavicle with a fragmented bullet in the soft tissues of the left shoulder; a bullet in the soft tissues of the right thigh; free air in the peritoneal cavity and a bullet in the anterior chest wall.
He was rapidly resuscitated with intravenous fluids and immediately taken to the Operating Theatre. At laparotomy he was found to have multiple perforations of the colon and small intestine and a fracture of the left kidney. Left nephrectomy was preformed, the damaged small intestine was resected and primary anastomosis accomplished, extended right hemicolectomy with ileo-transverse colostomy performed, the perforations of the sigmoid colon closed and the loop exteriorised, and a gastroatomy tube placed. Left tube throacostomy was performed at the start of the procedure and urethral dilatation had to be done in order to facilitate the passage of a urethral catheter. He had a cardiac arrest at the start of the procedure but was rapidly and easily resuscitated.
Post-operatively he did fairly well. He was nursed in the Intensive Care Unit for two days before being returned to the Surgical wards. He developed a fever in the post-operative period which settled on antibiotics. The exteriorised colon healed without event and was replaced on 29 May 1978. He was discharged from the University Hospital on 6 June 1978.
He has continued to do satisfactorily following discharge. He was last seen on 12 December 1978 at which time he was well and was discharged from the Clinic. “
Exhibit 2 Medical Report dated 12th May, 1981
SUPPLIMENTAL MEDICAL REPORT
ON
George Finn
U.H.W.I. #37–17–08
This patient was admitted to the University Hospital on 30th April 1978 having sustained multiple gunshot wounds. The details of his hospitalisation have, for the most part, outlined in my report of 16th March 1979.
In regard to the number of bullet wounds sustained by the patient a review of his hospital records revealed the following: –
There were eight entry wounds, one in the left shoulders two in the left back, two in the right thigh and one in the left thigh. Two of these entry wounds — the one in the left thigh posteriorily and the one on the inner aspect of the right thigh — were believed to have been caused by one bullet.
I last saw the patient on 7th February 1981 at which time he had no specific complaints and, apart from the scars of surgery and of his injuries I could find no specific disabilities.
His injuries were of a very serious nature and he is fortunate to have survived. The loss of one kidney should not in any way incapacitate him. He has, in my opinion, made a complete recovery. “
The defendant's case: is diametrically opposed to that of plaintiff's. Corporal Rupert Johnson testified that on the 30th April, 1978, he was on mobile patrol, in an unmarked police vehicle, along with Constable Silbert Reid at approximately 9:30 in the afternoon. Upon reaching the intersection of Barbican and Widcombe Roads he observed a girl of about 15 – 16 years of age at the intersection, She was in tears. He enquired of her what was the matter with her whereupon she pointed to two men riding motor cycle along Barbican Road saying that the men had just held her up with guns and knife and robbed her of a chain, bandles and a ring. He invited the young girl, Carmen Evans, into the vehicle and went in pursuit of the men. On approaching the men along Barbican Avenue, so says Corporal Johnson, he sounded his horn and Reid and himself shouted police. The driver of the motor cycle accelerated and turned on to Salisbury Avenue. The chase continued along Salisbury Avenue, amidst shouts of “Police, Stop!”
It would seem, from the evidence of Corporal Johnson, that the pillion rider realising the police were closing in on them, pulled a gun from his waist, jumped from the motor cycle and engaged the police in a gun battle. Johnson identified the plaintiff as being the pillion rider.
The plaintiff made good his escape by jumping over a fence onto nearby premises, while the other man fell mortally wounded. Upon search of the nearby premises, the plaintiff was removed from the cellar of a building, wounded and bleeding, minus gun. A search premises in an attempt to recover the gun proved fruitless. A search of the deceased Daley's person led to the recovery of a knife three gold chains, three gold rings and three bandles. Carmen Evans identified and claimed in the presence of the plaintiff one gold chain, one gold ring and two gold...
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