IN THE HIGH COURT OF JUSTICE. CPL (Ag) STEVE DAHARI (Regimental No )

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CLAIM NO. CV BETWEEN CPL (Ag) STEVE DAHARI (Regimental No ) Claimant AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO First Defendant PC CAMBRIDGE (Regimental No ) Second Defendant Before the Honourable Mr. Justice Frank Seepersad Appearances 1. Mr. Rampersad, Ms Ramdial, Mr. Pheerangee for the Claimant 2. Mr Jones, Ms. Roberts, Mr. Grant and Ms. Alleyne for the Defendant Date of Delivery: 14 th November, 2016 Oral Judgment reduced into writing Page 1 of 5

2 JUDGMENT Overview 1. Before the Court is the Claimant s Amended Statement of Case dated April 10, 2015 where he is seeking the following reliefs: i. Damages for personal injuries, loss and damage occasioned to the Claimant by reason of the bodily collision between the Second Defendant and the Claimant on April 6, 2011 which was caused by the Trinidad and Tobago Police Service s negligence and or breach of statutory duty provided by section 6 of the Occupational Health and Safety Act Chap 88:08 of the laws of Trinidad and Tobago and or breach of duty of care owed by an employer to his employee and or breach of the Claimant s contract of employment for which the First Defendant is liable. Further and or alternatively, the said bodily collision was caused by the negligence of the second Defendant; ii. Interest pursuant to section 25 of the Supreme Court of Judicature Act Chap 4:01 of the laws of Trinidad and Tobago at such rate and for such period as the Court deems fit in the circumstances; iii. Costs; and iv. Such further and/or other relief as the nature of the case may require. The Claimant s Case 2. The Claimant was a member of the Trinidad and Tobago Police Service (TTPS) holding the rank of Acting Police Corporal (RN 13041). At the material time he was a duty officer and a lecturer attached to the Police Academy in the St. James Barracks. On April 6, 2011 while on duty at the St. James Barracks, he received a call from his superior officer Sergeant (Ag) Romeo-Dick who instructed him to deliver a message to PC Joseph who was supervising cadet training on the savannah of the St. James Barracks. 3. When the Claimant entered the savannah, the cadets were in the process of doing a competitive sprinting exercise, so the Claimant walked around the perimeter of the field which was about 10 feet around from where the cadets were assembled. He then delivered Page 2 of 5

3 the message and proceeded along the same path to make his exit when the crowd of cadets suddenly parted and the Second Defendant shot out running at a high rate of speed and collided with him, and knocked him down and caused him to suffer personal injuries, loss and damage. 4. The Claimant contends that the St. James Barracks and its grounds are solely under the care and control of the Trinidad and Tobago Police Service and that only persons authorised to traverse the area are allowed to do so and therefore, as a person authorised to traverse the area, the TTPS owed him a duty of care to provide a safe system that would have allow him to traverse the area without being exposed to the danger of injury. This failure, along with the failure to provide a safe system of communication, he alleges amounted to negligence. The Defendant s Case 5. The Defendant s position is that the Claimant was not authorised to be present on the savannah at the time that he entered to deliver the message, since the field was reserved from 6am to 7am for cadet training exercises and that the restriction on persons authorised to enter during that period was a safety measure. The Defendant also avers that the path taken and the time chosen to deliver the message by the Claimant were all within his and discretion and did not form part of the instructions that he received from Sgt (Ag) Romeo- Dick. Moreover, the Defendant emphasised that there were other methods of delivering the message although the possession or use of cellular phones was forbidden while training exercises were being conducted. Furthermore, the Defendant asserted that are no national or international standards which call for the erection of warning signs on fields to alert bystanders of impending danger or of the fact that training was in progress. Findings and Analysis 6. It is not in dispute that at the time the Claimant was on active duty. It was also not disputed that the Claimant was charged with conveying a message to Officer Joseph. Page 3 of 5

4 7. The Claimant s case as it related to the conveying of any message was that there were no systems in place which outlined the procedure for a safe system of communication between officers off-field and officers on-field. Mr Simmons in his witness statement at paragraph 8 specifically stated that the trainers and trainees do not have cellular phones or walkietalkies while the exercises are being conducted since that would impede training. How then are messages to be conveyed when a circumstance arises and there is a need to communicate with a particular officer and/or trainee during the training exercise? There was not placed before the Court any clear or established protocol that governs such a circumstance nor was there evidence that the Claimant in particular or any officer in general was informed of any established protocol as to how to deal with such a circumstance. As it relates to the message, the Court only had the Claimant s evidence that he received a message that was time sensitive and he conveyed that message as directed. 8. Mr Simmons who was called on behalf of the Defendants accepted that where a superior officer gives a directive to a subordinate or junior officer, then that directive should be followed. In the circumstances, the Court finds that there did exist a duty of care because Mr Dahari was not on a frolic of his own. He was working that day and was charged with the task of relaying a message, which in his view was time sensitive and there was no established protocol as to the procedure that should have been adopted to convey such a message. It may very well be that the establishment of a clear protocol to deal with such a circumstance when active training exercises are ongoing, is something that the Police Service should consider. 9. The fact that no one previously came on to the field as Mr Simmons alluded to when the exercise was engaged, does not remove the foreseeability of risk when you have 30 odd people engaged in sprinting exercises. There should have been a clear, cordoned off area which was demarked but there was no border or demarcation in place that could have prevented the collision which took place. 10. Mr Simmons attempted to demonstrate why it would be difficult for any such system to be implemented. On the facts however, the Court finds that there was an overshooting of the line because based on the evidence of the second- named Defendant, after he tagged his teammate he did not stop but he moved forward and then the collision occurred. Page 4 of 5

5 11. Ultimately the Court finds, guided by the authority of Tajo Beharry v BWIA International Airways Ltd Civ App 27 of that a duty of care existed having regard to the nature of the Claimant s employment and the fact that the he was carrying out his duties by conveying a message issued to him by a superior officer. That duty was breached by failure to have an area cordoned off, in the vicinity where the exercise was taking place from the other paths along that field, so as to prevent an overshooting of the start and finish line by persons engaged in the exercise. In addition there should have been in place a system for the delivery of messages. 12. There were no signs or warnings and there was no system in place to prevent the Claimant and/or any officer engaged in the activities in the building from entering the field between 6am and 7am when these exercises were taking place. In the absence of any such clear and established procedure, it was foreseeable that any other officers who are not actively engaged in the exercises could have entered the field. 13. For the reasons that have been outlined, the Court finds that the First Defendant in its capacity pursuant to the provisions of the State Liabilities and Proceedings Act is liable for the damages occasioned by the Claimant as a result of the incident which occurred on the April 6, The issue of quantum and costs will be assessed by a Master in Chambers. FRANK SEEPERSAD JUDGE 1 Per Mendonca JA at paragraph 22: (22) There are three (3) criteria for the imposition of a duty of care and these are foreseeability of damage, proximity of relationship and justice and reasonableness Page 5 of 5