Kenya Tulloch v District Constable Lloyd Jones and Attorney General

• Jurisdiction: Jamaica
• Judge: CORAM: MORRISON, J
• Judgment Date: 07 June 2011
• Judgment citation (vLex): [2011] 6 JJC 0701
• Court: Supreme Court (Jamaica)
• Date: 07 June 2011
• Docket Number: CLAIM NO. 2007 HCV 00526

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. 2007 HCV 00526

BETWEEN

KENYA TULLOCH

CLAIMANT

AND

DISTRICT CONSTABLE LLOYD JONES

1ST DEFENDANT

AND

THE ATTORNEY GENERAL

2ND DEFENDANT

Mr. Alexander Williams instructed by Usim, Williams and Company for Claimant

Miss C. Barnaby instructed by the Director of State Proceedings for the Defendants

Assault – Vicarious liability – Whether 1st Defendant servant/agent for 2nd Defendant – Whether 1st Defendant acted maliciously – Whether 1st Defendant's purported post factum behaviour deems him to be a police officer – Damages – Aggravated Damages

CORAM: MORRISON, J

Hinc ilae lacrymae is the Latin expression for: hence these tears. More to the point, it is the cause of the vexation.

1 In this vexation it is alleged by the Claimant that the first Defendant, a District Constable, maliciously and without reasonable cause or probable cause, assaulted him in that the first Defendant pushed and then shot him after their engagement in a verbal spat. This incident, it is to be noted, took place at the Canton Enterprise in Bridgeport, St. Catherine and not at the Total Care Pharmacy where the first Defendant was ostensibly engaged as a Security Guard when he was not on duty.

2 The second Defendant is sued by virtue of the Crown Proceedings Act. What are the facts?

3 In the case of the Claimant the witness statements mirrors his pleadings. For the defence the pleadings were unsupported for want of relevant witness statements and evidentiary support.

The Claimant's Particulars

4 The Claimant who resides in the Drewsland area of Kingston 20, conducts his jerk chicken vending business from a stall that is located in front of a popular entertainment club called Cactus Night Club located in the Bridgeport area of St. Catherine. This self-help informal entrepreneur is no freeboater. He is purposive in action and is at full tilt (5) nights per week from 6.00 p.m. to 4.00 a.m. the forthcoming morning in peddling his produce. This he has been doing since he was fourteen years old.

5 At about 7.00 p.m. on Saturday 25th February 2006, the Claimant went to a wholesale shop called ‘Canton Enterprise’ and there ordered some goods. He then proceeded to the delivery section of the Enterprise where he ‘saw a man who I always see in a Pharmacy on the Plaza.’ This man, he says, ‘come and stand in front of me.’ The Claimant was less than urbane in his intemperate use of colourful language in reacting to the affront: ‘Shit belly, yuh nuh nave no manners.’ A shoving match, initiated by the first Defendant ensued. Continuing,, exclaims the Claimant, ‘I saw when he pulled a gun from his waist and painted it at me and shot me. I tried to run but I fell at the door outside’…

6 The Claimant's account of the incident is unsupported. His brother, Kevin Tulloch, also a jerk chicken vendor, was by his stall along Port Henderson main road in the vicinity of Magic Wholesale. His stall is near to that of Kenny's.

7 At about 7.30 p.m. he heard, he says ‘… a shot fire and after (3) minutes I went over to the door of Canton enterprise.’ There he saw a crowd, which had ostensible gathered amidst the excitement. He saw his brother lying on the ground. However, he asserts, that before he got to his injured brother ‘I saw Jones in the pathway. He stuck me up with gun. By that I mean he pointed gun at me … asked him, what happen, what!’ He said to me “Police, police!” He then walked away into the Total Care Pharmacy.’

8 The Claimant's injuries are particularized as: gun shot wound to lower abdomen; painful distress; abdomen tender throughout with rebound and guarding; bilateral renal angle tenderness; acute abdomen ladder injury. A medical report from Dr. Dave Marshall of the Spanish Town Hospital is annexed to the claim form.

The Defence

9 The plaint of the Claimant was traversed by the second Defendant. Except for admitting that the first Defendant was a District Constable the particulars of claim were peremptorily refuted. In fact, though there is a Defence for the second Defendant, the first Defendant having met his decease in December 2006, there is no Defence filed on his behalf. In the result the announced representation was for the second Defendant only. Paragraph 4 of the Amended Defence is therefore more than passing curious. ‘Paragraph 4 is denied. The 2nd Defendant further says that a struggle developed between the Claimant and the 1st Defendant as a consequence of what the 1st Defendant was hired to do as a ‘Security Guard.’

10 Paragraph 5 avers that at the material time the first Defendant was licensed to carry a private firearm and did carry a Smith and Wesson revolver serial No. CBP 3144, while paragraph 7 avers that, the injuries occasioned to the Claimant were not the result of the actions of its servant or agents.

11 The factual divide having been brought into relief I now set out rival contentions and the resultant issues.

Submissions By The Claimant

12 The Claimant has urged this Court to say that on the facts: -

The Claimant anchored his repose on these facts and on the authority of Clinton Bernard v Attorney General of Jamaica, 65 W.I.R. 245

Submissions By The Second Defendant

• a) there is clear evidence, on the Claimant's case, that he was shot by the first Defendant;

• b) the first Defendant by shouting the word ‘police!’ was co ipso asserting the authority of his office as a police officer;

• c) it matters not whether he acted from motives peculiar to him or that he acted under the auspices of his police function. Either way, he sought to so closely connect his actions with that of being a police officer and in so doing he vicariously constituted the second Defendant's liability;

• d) the second Defendant, on its pleadings, ‘has not proven almost any aspect of the pleaded case’; as

  • i) there is no proof that the first Defendant was off duty;

  • ii) there is no proof regarding the first Defendant's engagement as a Security Guard on the 25th day of February 2006;

  • iii) the incident did not occur in the alleged designated working area of the Pharmacy where the first Defendant ought to have been at the germaine time;

  • iv) on the second Defendant's case, there is nothing to suggest that the alleged struggle was as a result of what he was hired to do as a Security Guard;

  • v) there is no proof that the Claimant shot himself;

  • vi) there is no proof that the offending bullet which injured the Claimant had come from the private firearm of the first Defendant, even if it was pleaded, which it did not.

13 Firstly, it is posited, that the first Defendant was assigned to the Central Police Station and from early as June 2001, was exclusively assigned to secure the buildings and content of the Court of Appeal or the Supreme Court.

14 Therefore, as the first Defendant was ‘never detailed to work anywhere else other than these Courts’ any unassigned, unauthorized activity undertaken by him took him outside the place of his authority and bailiwick

15 Secondly, they insist that there is no nexus between the acts which the first Defendant was authorized to perform and the wrongful acts he allegedly committed on the Claimant. In order to fix the second Defendant with vicarious liability, they further contend, the alleged wrongful acts would have to be unauthorized modes of doing that which the first Defendant was authorized to perform.

16 Thirdly, pro confesso even if it is accepted that the first Defendant had used the expression, ‘Police, police!’, it was not contemporaneous with the altercation between the Claimant and himself and indeed the eventual shooting of the Claimant.

17 Further, they advance, the fact that the Claimant was not arrested and charged with an offence arising from the evidence, cannot be regarded as retrospectant evidence to suggest that that Constable had purported to act as a policeman.

18 The second Defendant's rebuke of the claim apart from its factual contention is built upon the rampart of statute law and on the authorities of Clinton Bernard v The Attorney General [2004] U.K. P.C. 47; Lister v Hesley Hall Ltd [2002] 1 A.C. 215; Attorney General v Oswald Reid and Others (1994) 31 J.L.R. 237.

The Issues

19 In fine the issues are:

The Law

• a) whether at the material time the first...