Robison (Dave) and anor v Inez Brown
| Jurisdiction | Jamaica |
| Judge | DOWNER, J.A. |
| Judgment Date | 03 April 2003 |
| Neutral Citation | JM 2003 CA 9 |
| Judgment citation (vLex) | [2003] 4 JJC 0304 |
| Date | 03 April 2003 |
| Court | Court of Appeal (Jamaica) |
EMPLOYER'S LIABILITY - Security guard - Whether first defendant an employee or independent contractor - Whether incident occurred during course of employment
Introduction
The order of this Court at the conclusion of the hearing of the appeal was as follows:
"Appeal allowed.
Costs to the appellant both here and below to be agreed or taxed.
Stay of execution on interest bearing sum discharged. Sum to be paid to appellant."
The facte to be outlined are that the appellant provided security services and retained security guards to perform these services. Dave Robinson, the first defendant in the court below was retained by the appellant as one such security guard. His duties on 1 st October 1985, was to allow authorized persons to enter Sabina Park through gate 2 to see a football match.
The initial issue to be decided is whether Robinson was retained as an employee or an independent contractor. If Robinson was retained as an independent contractor, then the appellant would not be liable. If, on the other hand, Robinson was retained as an employee then the appellant would be vicariously liable for the torts he committed during the course of his employment.
Since there is no appeal by Robinson on liability or quantum this Court ought to be bound by the findings of the learned judge, that he was liable. So the findings of Courtenay Orr J. on this issue are of importance. However, the appellant in grounds 3 and 4 of its appeal at pages 2–3 of the Record states that:
"3. The Learned Trial Judge erred in finding as he did that the deceased did not stab at the First Defendant when he was shot and that therefore the First Defendant was not acting in self defence. Such a finding is unreasonable having regard to the following evidence:-
(a)The evidence of Dr. Batchelor that he agreed that if the assailant stood before the deceased and the deceased raised his hands then the trajectory he saw would not have been possible.
(b)The evidence of Dr. Batchelor to the effect that it was unlikely or improbable that the deceased was shot while both his hands were up in the air.
(c)The evidence of the First Defendant Dave Robinson as a whole but in particular his evidence that he was stabbed by the deceased at the gate.
(d)The evidence of Mr. Tyrone Chuck that he saw the First Defendant with blood on his shirt and a tear on his shirt
(e)The evidence of the First Defendant that he now has a scar on his chest which he showed to the Learned Trial Judge.
(f) The evidence that a letter opener was exhibited in previous Court proceedings."
Then ground 4 reads:
"4. The Learned Trial Judge erring as he did as outlined in grounds 1–3 above also erred in giving judgment against the Second Defendant/Appellant."
The Relevant Grounds
It is therefore convenient to set out grounds 1 and 2 at pages 1–2 of the Record since these grounds form the substance of the appeal. They read as follows:
"1. The Learned Trial judge erred in finding as he did that the contract between the First Defendant Dave Robinson and the Second Defendant/Appellant is a contract of service and not a contract for services. Such a finding is unreasonable having regard to the evidence as a whole but in particular the following evidence:-
(a) The evidence contained in the written agreement between the First Defendant Dave Robinson and the Second Defendant/Appellant particularly an express term in the said agreement that the First Defendant was an independent contractor and not a servant.
(b)The evidence of Mr. Tyrone Chuck and the overall evidence including the said written agreement which revealed more factors which were consistent with a contract for services.
2. The Learned Trial Judge erred in finding as he did that the First Defendant Dave Robinson was acting to the course of his employment. Such a finding is unreasonable having regard to the evidence as a whole but in particular the following evidence:-
(a)The evidence of the First Defendant Dave Robinson that he was stabbed by the deceased who ran and that he chased the deceased to apprehend him.
(b)The evidence of Desmond Robinson to the effect that he was unable to say whether the First Defendant was stabbed by the deceased.
(c)The evidence of Mr. Tyrone Chuck as follows:
(i)That the First Defendant Dave Robinson was placed at one gate to man that gate and to allow only authorized persons to enter
(ii)That the First Defendant's role would be to protect life and property.
(iii)That guards including the First Defendant were instructed not to use their firearms until their lives are threatened and that apprehension is to be done with minimal force.
The Learned Judge's finding that the First Defendant was acting within his employment is also inconsistent with his finding that the deceased had not stabbed the First Defendant and that the deceased was not stabbing at the First Defendant when he was shot."
It is in this context that the findings of the learned judge must be considered.
The important findings of the learned judge read at page 26–27 of the Record:
" I find that while Robinson was on duty to ensure that only authorized persons entered the park through the gate at which he was stationed, the deceased and other members of the crowd gathered there were pushing in the line in an effort to enter improperly; that as the deceased Reid pushed, Robinson hit him with a baton to deter him and Reid pushed Robinson, went under the rails and ran into the road. Robinson gave chase. He fired a shot, and Reid stopped running. Thereafter Robinson was trying to apprehend Reid but the latter kept evading him by dodging behind parked cars. Then Reid stopped. Robinson advanced toward him. Reid raised his hands in the air and said he would not run as he had done nothing. At that time Robinson had his gun pointed at Reid and said "You want mi shot you bwoy?, you want mi kill you?"
Reid replied "after you cant shot mi because me nuh do nuttin." Robinson then fired one shot which hit Reid in the left axilla or armpit. Reid dropped to the ground. At no time did Reid stab at Robinson."
Another crucial finding runs thus at 49 of the Record:
"The crowd was unruly. Robinson was trying to restrain them, when the deceased Reid, assaulted him and ran, Robinson set out in hot pursuit down the road. When he fired a warning shot, and then pursued Reid, this way and that around a parked car, he was still within the scope of his employment. I find that his words "you want mi shoot you boy?" were uttered to impress upon the deceased that he had done wrong and ought to be punished and clearly implied that Robinson felt he ought to be taught a lesson. I find that Robinson sought to do just that and to exact swift retribution for Reid's earlier behaviour and impose a general deterrence and his authority, so that thereafter good order would prevail. I find therefore that Robinson's conduct was an authorized act which was within the scope of his duty to preserve order at one of the gates at Sabina Park."
The growth of private security services has had such an impact on society that these services are now regulated by the 1992 Private Security Regulation Authority Act. This Act was not in force on October 8, 1983 when the incident occurred. In any event, this Act may need amendments to protect third parties as the respondent herein and that issue will be addressed later.
Assuming Robinson was an employee does the finding in the above passage, establish that Robinson was acting during the course of his employment when he shot Paul Andrew Reid? The context in which the above findings were made will answer this question. The judge's narrative obtained from the sole eyewitness is of importance. It reads at pages 15–16 of the Record:
"The procedure for entering the ground was that one had to buy a ticket and then join the line to enter the stand. Reid was some four (4) or five (5) persons ahead of him. There were rails there (apparently to control access to the stands).
The people in the line began to push. The pushing began from behind him and was therefore extended to the front of the line. He saw the first defendant Robinson, dressed in the uniform of a security guard at the front of the line, swinging a baton at the crowd, and in doing so he hit Reid. Reid "eased off" or pushed Robinson, went under the rails and ran into the road which leads away from Sabina park to North Street. As he ran the Holy Trinity Cathedral was to his left and St Georges College to his right. There were cars parked on that road.
The first defendant Robinson gave chase. He pulled out his firearm and fired a shot. Reid ran around a parked car. Robinson caught up with Reid, who was then on the sidewalk whilst Robinson was on the road. They were just the length of a car apart and Robinson was trying to catch Reid, as they went round and round the car. Then Reid stopped. He held his hands in the air over his head and said he would not run as he had done nothing. Robinson said, "You want me shot you boy?" twice.
Reid replied, "after you can't shot mi because mi nuh do nuttin." Then Robinson shot Reid, the bullet entering his left armpit. He was about two (2) steps away from Reid when he shot him. A crowd began to...
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