Privy Council orders BVI Government to pay damages for negligence by Police Force

In what could turn out to be the most expensive personal injury case in the history of the British Virgin Islands, London's Privy Council this week ordered the BVI government to pay damages for negligence by the Royal Virgin Islands Police Force in the shooting injury of an English visitor here ten years ago.

On 2nd February 1994, between 10.30pm and 11pm, Police Constable Kelvin Laurent unlawfully shot and injured Mr. Craig Hartwell with a police service revolver at the Bath and Turtle Pub at The Valley, Virgin Gorda, causing him serious bodily injury, loss and damage.

According to the particulars of the case, on 2nd February, 2004, Laurent, who was still on probation, was the sole police officer stationed on Jost Van Dyke. It was the last day of his 3-day tour of duty on the island. During the event, Laurent abandoned his post, left the island, taking with him the police revolver and ammunition, went by boat to Tortola and then to the Bath and Turtle bar and restaurant in Virgin Gorda, where his partner or former partner and mother of his two children, Lucianne Lafond, worked as a waitress.

At about 10.30pm, he entered the bar and found Hickey Vanterpool, who, so it was said, was associating with Ms. Lafond.

Without further ado and without any warning, Laurent fired four shots with his police service revolver. He was apparently intent on maiming Mr. Vanterpool and possibly, Ms. Lafond herself.

Two of the shots caused minor injuries to Ms. Lafond and a tourist. A further shot struck and caused serious injuries to Craig Hartwell, a customer at the pub, who as standing near the doorway. The bullet allegedly entered his right shoulder blade and his vertebral spine at the back and caused his right lung to collapse, severed an artery and chipped bones prior to exiting through the front of his chest just below the sternal notch. P.C. Laurent was charged on indictment and pleaded guilty at the Criminal Assizes on Monday 10th October, 1994 to two charges: unlawfully and maliciously wounding the plaintiff and having a firearm with intent to do grievous bodily harm.

Solicitors for Hartwell, J.S. Archibald & Co. sued the government on the subsidiary grounds of negligence as the employer of the one who did the shooting, as the owner of the gun with which the shooting was done, the owner of the ammunition which entered Hartwell's body and the owner of the keys and the strong box in which the gun was kept.

The primary allegation was that the police force, under Commissioner Vernon Malone, who employed P.C. Laurent on behalf of the government, knew from his previous misconduct of 19 infractions within two years, that Laurent was an unfit person to whom to give access to a gun. Two of the 19 infractions included his threat on 16 June 1994 to kill a man with an 8-inch blade knife which was reported in the police diary the same day, and also walking with a police service revolver in Jost Van Dyke openly the night before he went to Virgin Gorda to shoot, which was also reported in the police diary prior to the shooting. Counsel argued therefore, that when Laurent used the gun for shooting at someone and incidentally shot someone else, government was liable.

The Attorney General's argument was that the defendant committed the criminal offence on his own and as such government could not be liable. On 15th May 1995, judgment in default of appearance was entered against him as first defendant with damages to be assessed. The action continued against the second named defendant his employer the Government of the British Virgin Islands. Laurent was duly sentenced to five years imprisonment, dismissed from the force and subsequently left the territory for his native Dominica.

In the High Court, the salient facts of the case were by and large not in dispute, rather the legal issues which arose from them, so as to determine whether the defendant owed a duty of care to the plaintiff so that it could be held responsible for Laurent's acts when he shot and injured the plaintiff Craig Hartwell with a police service revolver and whether in all the circumstances, P.C. Laurent could be said to have been acting within the scope of his employment so as to render the defendant vicariously liable. High Court Judge His Lordship Justice Ephraim Georges found that the police were not liable in negligence for the criminal acts of persons in the absence of a special relationship between themselves and the injured party. He said no duty of care is owed to the public in general for the actions of criminals.

The High Court threw out the civil case and the appellant's action for damages for the injuries which he suffered was dismissed. The matter was then taken to the Court of Appeal, which ruled that the police authorities ought to have been aware of the violent propensity of Laurent towards Lucy Lafond and her paramour Murphy Flavian and persons close to them, as indeed was the appellant.

The Court of Appeal judges The Hon. Chief Justice Sir Dennis Byron, The Hon. Mr. Satrohan Singh and The Hon. Mr. Albert Redhead ruled that it was beyond argument that the first named respondent was placed in possession of police service revolver and ammunition which he used to seriously injure the appellant.

The Court of Appeal allowed the appeal, after ruling that the learned trial judge erred when he held that there was no proximity between the appellant and the first named respondent. He also erred when he held that there was no special relationship between the appellant and the first named respondent. The judgment of the learned trial judge was set aside and the case was remitted to the High Court for assessment of damages. Mr. Sydney Bennett QC of JS Archibald & Co. represented Mr. Hartwell in the Court of Appeal. The Attorney General appealed against the Court of Appeal decision and the case went to the Privy Council in London, which upheld the Court of Appeal decision.

The Privy Council of five judges unanimously agreed that in deciding to entrust PC Laurent with the key to the strong box in the Jost Van Dyke police substation, the police authorities owed a duty of care to Mr. Hartwell in respect of damage arising in the way it did. They also preferred the Court of Appeal's conclusion regarding breach of duty to that of the trial judge.

Their Lordships dismissed the appeal and said they would consider written submissions on costs to be delivered by the parties in accordance with directions to be given by the Registrar.

The case will now go back to the High Court for damages to be evaluated. The Privy Council case was argued by Mr. James Dingemans Q.C., one of the leading QC's in England, who was advisor to Lord Hutton in Hutton report case with British Prime Minister Tony Blair. He was also junior counsel to Mr. J S Archibald QC in the Privy Council in the Village Cay appeal case, which J. S. Archibald & Co. won in 1998.