The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 57 of 1996

 

Lemuel Gordon (as administrator of the estate of

Desmond Gordon (deceased)) Appellant

v.

The Attorney General for Jamaica Respondent

 

FROM

 

THE COURT OF APPEAL OF JAMAICA

 

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 12th May 1997

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Present at the hearing:-

Lord Goff of Chieveley

Lord Lloyd of Berwick

Lord Nicholls of Birkenhead

Lord Hoffmann

Sir John Balcombe

  ·[Delivered by Lord Lloyd of Berwick]

 

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1. According to the facts alleged in the Statement of Claim the deceased, Desmond Gordon, was on 3rd October 1991 stopped by a plain clothes police officer in Royal Avenue, St. Catherine, Jamaica.  He was ordered to walk at gun point towards King Street, where they were joined by a second plain clothes police officer.  The police officers ordered the deceased to sit on the ground, whereupon they shot him through the head at point blank range.

 

2. The police officers were charged with murder, but have absconded.  The father of the deceased brings these proceedings as administrator of his estate claiming damages under the Fatal Accidents Act and the Law Reform (Miscellaneous Provisions) Act.

 

3. Proceedings were originally commenced on 9th December 1991.  But owing to an oversight the pleader did not allege that the act of   killing   the  deceased  was  done  maliciously  and  without reasonable or probable cause, as required by section 33 of the Constabulary Force Act.  That section provides:-

"Every action to be brought against any Constable for any act done by him in the execution of his office, shall be an action on the case as for a tort; and in the declaration it shall be expressly alleged that such act was done either maliciously or without reasonable or probable cause; and if at the trial of any such action the plaintiff shall fail to prove such allegation he shall be non-suited or a verdict shall be given for the defendant."

On 26th November 1992 the Attorney General applied by summons to strike out the plaintiff's statement of claim as disclosing no cause of action by reason of the failure to comply with section 33.  One would have thought that it would have been easy enough to cure the defect by amendment.  But that was not the view taken by the court, and the claim was struck out.

 

4. Thereafter the plaintiff commenced the present proceedings by writ issued on 7th May 1993, having in the meantime taken out Letters of Administration.  The two police officers are named as first and second defendants.  The Attorney General is named as third defendant.  Paragraph 5 of the statement of claim contains the following allegation:-

"The First and/or Second Defendant, while acting in the course of their duty as servants and or agents of the Third Defendant, maliciously, intentionally, oppressively, arbitrarily and unconstitutionally and without reasonable or probable cause, assaulted and shot the deceased through the top of the head, killing him."

 

5. No defence has been served.  Instead the Attorney General took out a fresh summons to strike out on the ground that the second action was statute barred under section 2(1)(a) of the Public Authorities Protection Act, and was in any event res judicata by virtue of the earlier order to strike out.  Bingham J. decided both points in favour of the Attorney General.  The Court of Appeal upheld the judge's decision on the first point, and did not find it necessary to decide the second point, which has now been abandoned.

The first point turns on section 2(1) of the Public Authorities Protection Act which provides as follows:-

"Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance, or execution, or intended execution, of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty, or authority, the following provisions shall have effect -

(a)the action ... shall not lie or be instituted unless it is commenced within one year next after the act ... complained of ..."

 

6. A question arises as to the meaning and scope of "any act done in pursuance, or execution, or intended execution ... of any public duty".  Mr. Henry who appeared for the appellant, and for whose submissions their Lordships are grateful, drew the Board's attention to the decision of the House of Lords in Newell v. Starkie (1919) LXXXIII J.P. at page 113.  That case was concerned with section 1 of the Public Authorities Protection Act 1893, where the language was to all intents and purposes identical to the Jamaica Act, including the reference to "intended execution".  Lord Finlay said at page 117:-

"The second observation I have to make is that the Act necessarily will not apply if it is established that the defendant had abused his position for the purpose of acting maliciously; in that case he has not been acting within the terms of the statutory or other legal authority; he has not been bona fide endeavouring to carry it out.  In such a state of facts he has abused his position for the purpose of doing a wrong, and the protection of this Act, of course, never could apply to such a case."

 

7. Lord Atkinson agreed with this observation at page 118.

 

8. Mr. Henry also helpfully referred their Lordships to a number of decisions of the High Court of Australia including the recent decision in Webster v. Lampard (1993) 177 C.L.R. 598, where again the language of section 47A of the Limitation Act 1935 was virtually identical, and where the law was stated to the same effect.  Of course the mere allegation of malice does not deprive the defendants of the protection of the Act; see Newell v. Starkie per Lord Birkenhead L.C. at page 116.  But on the facts of the present case it certainly raises an issue to be tried.  Accordingly this was not an appropriate case for striking out, unless there is some other ground on which the striking out can be justified.

 

9. The argument accepted by the Court of Appeal seems to have been as follows.  Either the police officers were acting in execution of their duty, or they were not.  If they were, then the defendants are entitled to the benefit of the Public Authorities Protection Act.  If they were not, then they must have been on a frolic of their own (to use the time honoured expression) and the Crown could not be vicariously liable.  So either way the plaintiff must fail.

 

10. The answer to this argument is to be found in the judgment of Carberry J.A. in Bryan v. Lindo (unreported) to which Carey J.A. in the present case paid just tribute.  In the former case Carberry J.A. said:-

"A master may be liable for the wrongful act of his servant, though clearly the servant was not acting in execution of his duty or intended execution of his duty."

 

11. Having examined a number of cases Carberry J.A. continued:-

"What these cases do illustrate is that depending on how closely connected the wrongful act is with the servant's employment a master may be held liable, though it is clear that the wrongful act could in no way be regarded as being done in the execution of the servant's duty, or the intended execution of that duty."

 

12. How then did Carey J.A. seek to distinguish Bryan v. Lindo?  He did so by reference to the pleadings.  He held that the plaintiff had, by the passage which their Lordships have already quoted from the statement of claim, admitted that the acts of the police officers had been done in the lawful execution of their duty, and that therefore there was no triable issue on the pleading as to the applicability of the Public Authorities Protection Act.

 

13. Their Lordships are unable to read the pleading in that way.  The plaintiff admits, and indeed asserts, that the police officers were acting in the course of their duty, so as to make the Crown liable for their acts on the principle of respondeat superior.  He does not admit that the defendants were acting in the bona fide execution of their duty, so as to entitle the defendants to rely on the protection of the Act; indeed he vigorously asserts the contrary.

 

14. Accordingly there are two issues or potential issues raised on the pleading as it stands.  The first is whether the police officers were acting bona fide in the execution of their duty.  The second is whether, if not, the Crown is vicariously liable.  Neither issue can be resolved without a trial.  Accordingly the grounds on which the Court of Appeal upheld the decision of Bingham J. cannot be sustained.

 

15. Mr. Rattray Q.C. advanced a further argument, which was not advanced below.  He submitted that section 2(1) of the Public Authorities Protection Act must be read in the light of section 33 of the Constabulary Force Act, which preceded it on the Statute Book.  Since section 33 requires the plaintiff to allege malice in any action against a police officer, section 2(1) could never apply to  such  an  action if malice always operated to negative protection under the Act.  Since the legislature cannot have intended such a consequence, section 2(1) of the Act must be read so as to protect police officers even if they are not acting bona fide.

 

16. Their Lordships are unable to accept this ingenious argument for two reasons.  In the first place the obligation imposed by section 33 is expressed in the alternative.  It does not require an allegation of malice in every case.  The section is complied with if it is alleged that the act, although done bona fide, was nevertheless done without reasonable or probable cause.  Thus there is ample scope for the application of section 2(1) in the case of claims against police officers.

 

17. Secondly, the argument proves too much.  It would mean that absence of bona fides would never be an answer to section 2(1) of the Act.  For otherwise it would be necessary to give section 2(1) a different meaning and effect according to whether the defendant was a police officer or a person employed in some other part of the public service.  There is nothing in the language of section 2(1) to justify so unusual a construction.

 

18. For the above reasons their Lordships will humbly advise Her Majesty that the appeal should be allowed and the order of 30th September 1994 whereby the plaintiff's action was struck out set aside, and that the plaintiff should be at liberty to relist for hearing his summons for leave to enter judgment in default of defence.  The Attorney General must pay the appellant's costs before their Lordships' Board and in the courts below.

 

© CROWN COPYRIGHT as at the date of judgment.