Barbara Gayle, Staff Reporter THE UNITED Kingdom Privy Council yesterday handed down a ruling in favour of 44-year-old Jamaican lithographic printer Clinton Bernard who was shot and wounded in the head by an off-duty police constable at a telephone booth 14 years ago.
The Privy Council, in setting aside the Court of Appeal's ruling of November 9, 2001, ruled that the Government was liable to pay damages for the actions of the policeman. In doing so, the British law lords restored the Supreme Court judgement which was handed down by Justice Zaila McCalla in 2000, awarding Bernard $2.5 million with interest.
GOVERNMENT TO BE HELD LIABLE
The ruling also widens the scope for Government to be held liable for
the actions of its servants or agents,
particularly policemen who are allowed to keep their firearms while off-duty.
Bernard had asked the Privy Council to determine whether the policeman was acting within the scope of his employment when he fired his weapon.
In allowing Bernard's appeal, the Privy Council said: "But taking into account the dominant feature of the case, viz that the constable at all material times purported to act as a policeman, the risks created by the police authorities reinforce the conclusion that vicarious liability is established."
The Government has promised to pay the money awarded to Bernard at an early date.
Senator A. J. Nicholson, Q.C., Minister of Justice and attorney-general, told The Gleaner yesterday that "We will have to make every effort to ensure that he gets at least some of it quickly."
According to the Minister, "The
reasoning of the Privy Council is that there is, in Jamaica, a public interest in members of the Jamaica Constabulary Force having their firearms with them while they are on-duty or off-duty. The protection of the public requires it."
He continued: "It has to be conceded, however, that the public benefit
conferred by such a policy carries with it an element of risk, in that it may be seriously abused, as in this case."
NOT UNREASONABLE
Senator Nicholson added that in such circumstances, it was perhaps not unreasonable to say that the unlawfully injured person, Mr. Bernard, should be able to look to the State for compensation. He said that members of the police force should be made aware of that and should constantly act within the law.
Bernard, who currently suffers from epileptic seizures and has been
unemployed since the shooting incident, had petitioned the Privy Council for special leave to appeal against the
judgment of the Court of Appeal which allowed the Government's appeal and recommended that the Government give him a substantial ex gratia payment.
Lord Anthony Gifford, Q.C., who
represented Bernard, had argued that once a policeman invoked his authority as a law enforcement officer, the State should be liable for his actions.
In February 2003, in keeping with the Court of Appeal's recommendation, the Government awarded Bernard $2.5 million as ex gratia payment but without interest.
Lord Gifford said in a statement recently that when interest and costs were taken into account, they amounted to about a third of Mr. Bernard's full entitlement.
