IN THE HIGH COURT OF TRINIDAD AND TOBAGO BETWEEN. CURTIS LACKHANSINGH Claimant AND

Transcription

1 TRINIDAD AND TOBAGO IN THE HIGH COURT OF TRINIDAD AND TOBAGO CV BETWEEN CURTIS LACKHANSINGH Claimant AND P. C. HAREWOOD No AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendants Before The Honourable Madam Justice Rajnauth-Lee Appearances: Mr. Dinesh Rambally instructed by Miss Adelle Rahamut for the Claimant Miss Keisha Prosper instructed by Miss Sharon Sharma for the Second Defendant *************************** REASONS 1. Before the Court was the Notice of Application dated and filed on the 19 th October, 2007 on behalf of the Attorney General of Trinidad Page 1 of 7

2 and Tobago, the Second Defendant, seeking (1) that the Attorney General be removed as a party to the proceedings and (2) that the Arima Borough Council be added as a party to the proceedings. The Court granted the relief sought at (1) but refused the relief sought at (2). RELIEF AT (1): 2. The main issue before the Court was that of vicarious liability: whether the Attorney General was liable for the actions of P.C. Harewood, the First Defendant. 3. It is not disputed that the First Defendant was a municipal police constable appointed by the Commissioner of Police and was employed by the Municipal Corporation of the Borough of Arima pursuant to the Arima Corporation Ordinance Chapter 39 No. 11 (1950 ed). 4. By virtue of the State Liability and Proceedings Act Chap. 8:02, the State is liable inter alia in respect of torts committed by its servants or agents. Section 2 of the Act defines servant in relation to the State as excluding (f) any officer, employee or servant of a statutory corporation. 5. By virtue of section 5 of the Arima Corporation Ordinance Chapter 39 No. 11 (later repealed and replaced by section 8(1) of the Municipal Corporations Act Chap. 25:04), the town of Arima shall continue to be a borough and the burgesses thereof shall be a corporate body bearing the name of The Mayor, Aldermen and Burgesses of Arima and by such name shall have perpetual succession. The Arima Borough Corporation is therefore a body corporate incorporated by Act Page 2 of 7

3 of Parliament and should be sued in its own capacity. If any employee, servant or agent of the Arima Borough Corporation has committed a wrongful act, the Corporation can be sued. 6. It has been argued on behalf of the Claimant that the powers of the Commissioner of Police to appoint and dismiss municipal officers in some way had the effect that the Attorney General was a proper party in the circumstances of this case. It was also argued on behalf of the Claimant that the First Defendant was exercising the police powers granted to him under section 51 of the Arima Corporation Ordinance (supra) when he preferred a charge of possession of narcotics for the purpose of trafficking against the claimant. 7. In the case of Bushell and Another v Port Authority of Trinidad and Tobago and Others (1998) 56 W.I.R. 460, it had been argued on behalf of the Port Authority and the other respondents that the estate constables employed by the Port Authority were acting in the exercise of their police powers and were accordingly, servants of the State. It was further argued that the State therefore was responsible for the acts and omissions of the estate constables and not the Port Authority. Hence, it was contended, the Attorney General was the proper party to the proceedings. These submissions were accepted by the High Court judge who dismissed the constitutional motion brought by the applicants on the ground that it was ill conceived and had been brought against the wrong person. 8. The Court of Appeal closely examined the relevant provisions of the law, including the Supplemental Police Act Chap. 15:02. Ibrahim J.A. in his well-reasoned judgment, after a detailed examination of several English cases, concluded that estate constables were appointed Page 3 of 7

4 principally to protect the property of their employer and the enhanced powers conferred upon them by the Act were designed to enable them to perform their duties more effectively and efficiently. They are not by that fact made servants of the State nor are their acts the acts of the executive nor of the State. They have always been employees of their employer and they remain so and, if their acts are wrongful and done in the course of their employment their employer must be vicariously liable and not the State. [p. 476]. 9. In the judgment of de la Bastide C.J., he stated at pages : The fact of the matter is that almost invariably (and this case is no exception) when estate police exercise the powers vested in them by the Supplemental Police Act Chap. 51:01 ( the Act ), they are about the business of their employers rather than the business of the State. They are acting in defence of the property or the persons of their employers, their employer s senior officials or their customers. They are also effectively at the disposition and subject to the instructions of their employers. It may be said that insofar as they prevent crime and apprehend and bring to justice those who commit crime, they are acting in the wider interest of the public and performing functions which would normally be performed by regular police, but this is wholly incidental and subsidiary to the service which they are providing to their employers. This hard truth is not altered by the form of oath which they take nor by the fact that they may be deprived of their status as estate constables by the police authorities nor by the marginal control which the Commissioner of Police exercises over them. These factors cannot serve to transfer the vicarious liability for the wrongs which they commit in the course of their employment from their employers to the State. It Page 4 of 7

5 would be a surprising result if that vicarious liability did not rest with the party whose interest they are contractually obliged to serve and by whom they are effectively controlled. (emphasis mine) 10. Ibrahim J.A. also considered the case of Fisher v Oldham Corporation [1930] 2 K.B He looked at how police forces were organized in England and Wales. According to Ibrahim J.A., since there was no single police force for the whole of England and Wales then the combined number of all the forces in the country made their members all officers of the Crown as they were fulfilling their duties as public servants. Ibrahim J.A. distinguished the arrangement in England and Wales from the position in Trinidad and Tobago where there is a single police force for the whole country regulated by the Police Service Act. (p.413). Accordingly, he found Fisher s case of only limited assistance. 11. I have also looked closely at section 51 of the Arima Corporation Ordinance (supra) which reads as follows: All borough constables appointed under this Ordinance shall have in addition to the special powers hereby vested in them, all the powers, authorities, privileges, immunities, and liabilities which any member of the Police Service now has and may hereafter have, and every act done by or to any borough constable in the execution of his duty as such shall have the same effect and be attended with the same liabilities and other consequences and shall be punishable in the same manner as if done by or to a member of the Police Force in the execution of his duty as such. Page 5 of 7

6 12. In the view of the Court, nothing in this section alters the status of the First Defendant or makes the First Defendant the servant or agent of the State. Despite the powers, authorities, privileges, immunities and liabilities vested in the First Defendant pursuant to section 51, he continues to be a servant or agent of the Arima Borough Corporation, his employer. This section cannot be interpreted as making the First Defendant a servant or agent of the State. Section 51 resembles section 14 of the Supplemental Police Act (supra). Indeed, de la Bastide C.J. in Bushell made the point that the fact that an estate constable has the same powers as a regular police officer does not mean that vicarious liability for the actions of both repose in the same legal persona. RELIEF AT (2) 13. The Court does not consider that this issue should be raised on the application of the Attorney General. In any case, the Arima Borough Corporation will have to be served and heard on such an application. This is really an issue for the Claimant to raise on application before the Court. COSTS: 14. As to the costs of the Notice of Application, the Court heard submissions on that issue. Having regard to all the circumstances, the fact that the Attorney General had succeeded on the main issue before the Court and having regard to the Practice Guide to the Assessment of Costs dated 20 th December, 2007, the Court ordered that the Claimant pay to the Attorney General costs of the application assessed in the sum of $2, Page 6 of 7

7 15. As to the costs of the claim, the Attorney General having been removed as a party to these proceedings, the Court ordered that the Claimant pay to the Attorney General prescribed costs in the sum of $7, A stay of execution as to costs was granted to the Claimant until the 29 th May, 2008 and to continue in the event of an appeal. Dated the 14 th day of April, MAUREEN RAJNAUTHL-LEE JUDGE Page 7 of 7