Mario Matthew Claimant v [1] The Commissioner of Police [2] Attorney General Defendants

• Jurisdiction: British Virgin Islands
• Judge: Ellis, J
• Judgment Date: 15 June 2015
• Neutral Citation: VG 2015 HC 8
• Judgment citation (vLex): [2015] ECSC J0615-2
• Court: High Court (British Virgin Islands)
• Docket Number: CLAIM NO. BVIHCV2011/0223
• Date: 15 June 2015

[2015] ECSC J0615-2

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO. BVIHCV2011/0223

Between:

Mario Matthew

Claimant

and

[1] The Commissioner of Police

[2] The Attorney General

Defendants

Appearances:

Mr. Lewis Hunte QC and Shelly Bend for the Claimant

Ms. Khadia Edwards-Allister for the Defendants

JUDGMENT

[1] Ellis, J.: The Claimant is the owner of a black 2001 Toyota Corolla motor vehicle, Registration No. PV0396. On or about 1^st May 2007 between 7:00 p.m. and 7:30.p.m, the Claimants was driving his vehicle from Josiah's Bay when the members of the Royal Virgin Islands Police (the Police) attempted to stop his vehicle.

[2] A vehicular chase ensued which eventually resulted in the Police discharging several rounds of ammunition into the vehicle damaging the body of the vehicle and the rear tires. The driver's side window of the vehicle was also smashed in the process in order to retrieve the Claimant who was pulled through the broken window.

[3] The Defendants submit that on that day the Anti-Drug and Violent Crime Task Force were conducting an armed operation which resulted in the search of the Claimant's vehicle. Illegal drugs were found in the vehicle and later, illegal substances and ammunition were also found in the Claimant's residence.

[4] The vehicle was seized by the Police and detained in Police custody at the Road Town Police Station. The Claimant was later criminally charged and bailed. He contends that while he was on bail, he attempted to retrieve his vehicle from Police custody but he was informed that the vehicle was evidence in the ongoing police investigation and prosecution and could not be released.

[5] The Claimant was granted bail on 1^st August 2007 and remained on bail until 19^th August 2009 when he was convicted and sentenced to 2 1/2 years' imprisonment. The vehicle remained at the Road Town Police Station until the Claimant was released from prison on 27^th May 2011. He thereafter sought the return of the vehicle which was eventually released into his custody.

[6] After securing the services of an auto mechanic, the Claimant attended the Police Station where he observed damage to the vehicle which he alleges was caused by the negligence of the Police. On 14^th September 2011, he filed the Claim Form herein, in which he claims damages arising from the negligence of the Defendants.

[7] The Defendants have challenged these proceedings on the basis that the Claim is statute barred.1 They contend that the Claim Form should be dismissed on the basis that it was filed outside the time prescribed by section 2 of the Public Authorities Protection Act Cap 62 of the Laws of the Virgin Islands (the Act) for the bringing of a claim against a public authority. This was raised as a

preliminary point and the Defendants contend that in the event that they are successful, that it would dispose of the proceedings. It is therefore critical that this point in limine be decisively determined.

Is the Claim statute barred?

[8] Section 2 of the Act 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 Act or Ordinance, or of any public duty or authority or of any alleged neglect or default in the execution of any such act, duty, or authority, the following provisions shall have effect –

(a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within six months next after the act, neglect or default complained of, or, in the case of a continuance of injury or damage, within six months next after the ceasing thereof."

(b)…

(c)…

(d) …"

[9] The section sets a time limit of six months for a claimant to institute a claim against any person for alleged neglect or default in the execution of a public duty or authority or for acts done in pursuance or execution or intended execution of a statute.

[10] It is not disputed that the Defendants are public authorities as contemplated by the Act and are therefore entitled to rely on the protection afforded by this statutory provision provided that the conditions for the application of the Act apply.2 The Crown is however guided by the dicta of Lord Goddard in Western India Match Company Limited v Lock3 where at page 606 paragraph 2, he notes:

"It is beyond question that the Crown (and for this purpose the Minister and his officers must be regarded as the Crown) is a public authority, and whether a public authority is protected by the section depends on whether the act complained of arose out of the discharge of a public duty or the exercise of a public authority: see Bradford Corporation v Myers [1916] 1 A.C. 242."

[11] If the Defendants are to have the benefit of this statutory protection, it is therefore imperative that the Court determine whether the alleged acts or omissions have a public character. In that regard, the Court is guided by the words of Lord Buckmaster LC in Bradford Corporation v Myers.4 At pages 247 – 248 he stated:

"… it is not because the act out of which an action arises is within their power that a public authority enjoy the benefit of the statute. It is because the act is one which is either an act in the direct execution of a statute, or in the discharge of a public duty, or the exercise of a public authority. I regard these latter words as meaning a duty owed to all the public alike or an authority exercised impartially with regard to all the public. It assumes that there are duties and authorities which are not public, and that in the exercise or discharge of such duties or authorities this protection does not apply."

[12] What then are the alleged acts or neglect or default out of which this Claim arises? The answer is found in the Claimant's Amended Statement of Claim. At paragraph 15 of that pleading, the Claimant states:

"The deterioration of the Vehicle from its previous excellent condition is exclusively due to the negligence of the police while it was stored at the Road Town Police Station and physical damage inflicted by the Police at the time the vehicle was seized."

[13] The Claimant then particularised the negligence and physical damage which he alleged was inflicted by the Police. In support of his claim in negligence he pleads:

1. (1) Failure to exercise proper care in choosing an area for storage of the vehicle.

2. (2) Failure to take care to secure the exterior and interior of the vehicle from the effects of the elements.

3. (3) Failure to prevent the vehicle being used as a dumpster for garbage.

4. (4) Failure to secure the vehicle so as to preserve it serviceable for delivery to the Claimant in due time.

[14] In the case of the latter, he pleads:

1. (1) Discharge of bullets into the rear tires of the vehicle.

2. (2) Smashing of the left front glass window of the vehicle.

3. (3) Damage to the rear bumper and trunk of the vehicle.

[15] In advancing that the Claimant's action is statute barred under the Act, Counsel for the Defendants relied on section 4 of the Police Act Cap 165 of the Laws of the Virgin Islands which provides that the objects of the Force are:

1. (a) The maintenance of law and order;

2. (b) The preservation of peace;

3. (c) The defence of the territory from external aggression or threat thereof;

4. (d) The protection of life and property;

5. (e) The prevention and detection of crime; and

6. (f) The enforcement of all laws that is required to enforce.

[16] Additionally, section 21 of the Police Act sets out the general duties of every member of the Police Force. It provides that:

'The general duties of every member of the Force are —

1. (a) to preserve the peace and prevent and detect crimes and other breaches of the law;

2. (b) to serve and execute at any time (including Sundays) all process which may be directed by any court of criminal jurisdiction or by any Magistrate or Coroner, or by any Justice of the Peace in any criminal matter, to serve or execute;

3. (c) to summon before a Magistrate and to prosecute –

   1. (i) persons found committing any offence; or

   2. (ii) persons whom he reasonably suspect of having committed any offence or may be charged with having committed any offence;

4. (d) to apprehend and bring before a Magistrate—

   1. (i) persons found committing any offence that renders them liable to arrest without warrant;, or

   2. (ii) persons whom he reasonably suspect of having committed any such offence, or may be charged with having committed any such offence;

5. (e) to stop, search, and detain –

   1. (i) any aircraft, vessel, boat, vehicle, cart or carriage in or on which he suspects that any stolen or unlawfully obtained or any smuggled goods may be found; and

   2. (ii) any person whom he reasonably suspects of having or conveying in any manner anything stolen or unlawfully obtained or any smuggled goods;

6. (f) to apprehend smugglers or others found in the commission of offences against the revenue laws, and to seize all goods liable to seizure for any breach of the revenue laws, and otherwise to aid in the detection of such offences and to give such assistance as may be necessary to the officers of the revenue in all departments;

7. (g) to keep order in and within the precincts and in the vicinity of the Legislative Council and of all courts during all sittings thereof;

8. (h) to repress internal disturbance;

9. (i) to defend the Territory against external aggression or the threat thereof when called out to do so;

10. (j) generally to do and perform all the duties that relate to the office of constable.

[17] Counsel for the Defendants also relied on section 24 (2) of the Drug (Prevention of Misuse) Act Cap 178 of the Laws of the Virgin Islands which provides that:

"If any member of the Police Force has reasonable grounds to suspect that any person is in possession of a controlled drug in contravention of this Act or any regulations made thereunder, the...