IN THE COURT OF APPEAL BETWEEN VISHNU RAMDATH AND THE MAYOR, ALDERMEN, COUNCILLORS AND CITIZENS OF THE CITY OF SAN FERNANDO

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1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Civil Appeal No: 154 of 2005 BETWEEN VISHNU RAMDATH AND Appellant KRISHNA JAIKARAN First Respondent THE MAYOR, ALDERMEN, COUNCILLORS AND CITIZENS OF THE CITY OF SAN FERNANDO Second Respondent PANEL: A. Mendonça, J.A. P. Weekes, J.A. P. Moosai, J.A. APPEARANCES: Mr. A. Newman Q.C., Mr. G. Ramdeen and Mr. A. Mohammed Appeared on behalf of the Appellant. Mr. E. Koylass, S.C., and Ms. D. Roopchand appeared on behalf of the Second Respondent. Mr. A. Sinanan S.C., Mr. D. Maharaj and Ms. A. Ramsook appeared on behalf of the Attorney General. DATE DELIVERED: November 27 th, 2013 Page 1 of 9

2 JUDGMENT Delivered by A. Mendonça, J.A. 1. This is an appeal from the decision of the trial judge dismissing the Appellant s claim against the second Respondent, the Mayor, Aldermen, Councillors and Citizens of the City of San Fernando (the City). 2. On March 28 th 2000 the Appellant was driving a vehicle along Coffee Street, San Fernando. He parked the vehicle in the Diamond Taxi Stand on Coffee Street and, according to him, in the process of so doing failed to observe a no entry sign. The first Respondent, Krishna Jaikaran (Jaikaran) was, at that time and at all times material to this action, a member of the City s Municipal Police Service. Jaikaran who was in his police uniform approached the Appellant and told him he had committed an offence and asked the Appellant for his driver s permit and insurance certificate. By that time the Appellant had gotten out of his vehicle and was standing on the pavement near to it. The Appellant gave Jaikaran the documents he requested and begged him for a chance. Jaikaran refused and told the Appellant he was going to be charged and that he was going to have issued to him a summons to attend Court. He told Jaikaran to get back into his vehicle and leave. Jaikaran got back into his vehicle, started it and drove off for a very short distance when Jaikaran called out to him to stop. He stopped. Jaikaran then drew his service revolver, came up to the vehicle and shot the Appellant striking him in the left side of his neck. As a consequence the Appellant suffered severe personal injuries. 3. On January 28 th, 2001 the Appellant commenced these proceedings against Jaikaran and the City. He alleged that Jaikaran negligently and/or maliciously and/or unlawfully assaulted him by shooting him in his neck. The claim against the City was on the basis that Jaikaran was its servant and or agent. The Appellant therefore claimed that the City was vicariously liable for the conduct of Jaikaran. 4. The action was defended by both defendants. Jaikaran served a defence and counterclaim. He averred, inter alia, that on the day in question the Appellant had driven his vehicle in such a manner as to put his (Jaikaran s) life at risk and in reasonable self defence and only to protect and Page 2 of 9

3 preserve his life from the Appellant s attack, as he was entitled to do, he shot the Appellant. He counterclaimed for damages for pain, injury and loss. 5. The City in its defence denied the Appellant was its servant or agent. It further denied that the incident occurred in the manner alleged by the Appellant but further averred that if it did, Jaikaran s conduct was outside the course of his service. 6. The trial Judge rejected the defence of Jaikaran and found that the incident occurred as alleged by the Appellant as outlined in paragraph 2 of this judgment. He therefore gave judgment for the Appellant with damages to be assessed. He however agreed with the City that Jaikaran was not its servant or agent. He held that Jaikaran as a municipal police officer was a servant of the State. He, therefore, dismissed the action against the City and ordered the Appellant to pay fifty percent of the City s costs of the action. 7. The Appellant now appeals. The Appellant contends that the Judge erred in law in finding that the City was not vicariously liable. The issue in this appeal is therefore whether the City is vicariously liable for the tortious conduct of Jaikaran. 8. Mr. Newman, Counsel for the Appellant, submitted that section 2 of the State Liability and Proceedings Act, Chap. 8:02 (the State Liability Act) is clear against the decision of the trial judge. This section provides, inter alia, that a servant in relation to the State does not include any officer, employee or servant of a statutory corporation. It is common ground that Jaikaran was at all material times an officer of a statutory corporation and so came within the definition. The effect of the State Liability Act is, therefore, that vicarious liability of the State does not extend to the City s police. The Judge was therefore wrong, it was submitted, to hold that Jaikaran was the servant of the State. Further Counsel referred to the decision of the Court of Appeal in Civil Appeal 36 of 2008 Curtis Lackhansingh v the Attorney General where it was held that the State was not vicariously liable for the acts of a municipal police officer in the service of the Arima Municipal Corporation acting within the scope of his employment. The Court was of the opinion that vicarious liability arose out of the employment. It therefore followed that the officer s employer, which was the Arima Municipal Corporation, and not the State would be vicariously liable for the tortious conduct of the officer in the course of his employment. Mr. Newman Page 3 of 9

4 submitted that this Court was bound by the decision in the Lackhansingh case and it was therefore not open to this Court to hold otherwise than that Jaikaran was not the servant of the State but of the City. 9. The Court had the benefit also of submissions by Mr. Sinanan on behalf of the Attorney General who responded to an invitation of the Court to assist it on the issue on whether the State can be held liable to the Appellant in this matter. Mr Sinanan agreed with the submissions on behalf of the Appellant. He submitted that the State Liability Act makes clear that the State may be held liable only for acts of its servants. Municipal police officers were not the servants of the State. Vicarious liability rests with the master in the master servant relationship and not with a third party. Accordingly as the City was the master in its relationship with Jaikaran, if there was to be a finding of vicarious liability, it was the City that was liable. 10. Mr Koylass, Counsel for the second Respondent acknowledged that section 2 of the State Liability Act was against him and as well the Lackhansingh case in contending that it was the State and not the City that was vicariously liable. He, however, submitted that that part of section 2 of the State Liability Act, on which Mr. Newman relied, was impliedly overruled by section 53 of the Municipal Corporations Act, this section provides as follows: 53. Every member of a Municipal Police Service, in addition to the special powers vested in him under this Act, has in respect of the whole of Trinidad and Tobago all the powers, privileges and immunities conferred on a constable by the Common Law, and also all the powers, privileges, immunities and liabilities conferred or imposed on a constable or on a First Division or Second Division police officer of corresponding rank by the Police Service Act and every act done by or to any member of a Municipal Police Service in the execution of his duty has the same effect and is attended with the same liabilities and other consequences and is punishable in the same manner as if done by or to a member of the Police Service in the execution of his duty. He argued that the question of implied repeal was not considered in Lackhansingh. The effect of section 53, he submitted was to establish vicarious liability in the State for the actions of city police. He argued therefore that Lackhansingh was decided per incuriam and should not be followed. Page 4 of 9

5 11. The Municipal Corporations Act does not expressly repeal any provisions of the State Liability Act. If any question of repeal arises, therefore, it does so by implication. The test of an implied repeal of an earlier statute by a later one is straightforward. It is this: are the provisions of the later act so inconsistent with or repugnant to the provisions of the earlier act that the two cannot stand together? (see Churchwardens and Overseers of West Ham v. Fourth City Mutual Building Society [1892] 1 QB 654, 658; Bennion on Statutory Interpretation (4 th ed.) at p. 254) and Civil Appeal No f 2009 The Inspector of Factories v NH International (Caribbean) Ltd. and others). The Court presumes that Parliament does not intend an implied repeal of an act (see Henry Boot Construction (UK) Ltd. v Malmaison Hotel (Manchester) Ltd. [2001] 1 All ER 257). The presumption is stronger where the Court is dealing with a modern statute, where the expectation is that the repeal of an earlier act would be clearly identified. It is also stronger the more weighty the enactment that is said to have been repealed. 12. Similar rules apply to the revocation of a common law rule. A statute may impliedly revoke a common law rule where the statute leaves no operation for the common law rule. Here too the Court presumes that Parliament did not intend an implied revocation of the rule (see Jennings v United States Government [1982] 3 All ER 104). 13. In this case we are dealing with a modern drafted statute. In so far as the section said to have been repealed is concerned, it the definition section of the State Liability Act and there can be no dispute that it is to be considered a weighty provision. We are also dealing with the principle of vicarious liability, which is a well entrenched construct of the common law. Such liability arises where the relationship of employer and employee exists. The employer is liable for the torts of the employee so long as they are committed in the course of the employee s employment. The effect of Mr. Koylass submission is that section 53 revoked and replaced the rule in relation to city police so as to impose vicarious liability on a third party, namely the State. In those circumstances, in our view, what is required is a clear intention in the later act to repeal the earlier statute and revoke the common law principle as it applies to city police. 14. Mr. Koylass submitted that there are clear words contained in section 53 which show that Parliament intended the repeal of section 2 of the State Liability Act and the revocation of the common law rule. He focused on the words other consequences. We do not agree. Page 5 of 9

6 15. As is mentioned in the marginal note to section 53 of the Municipal Corporations Act, which is an aid to the interpretation of the section, it deals with the general powers and immunities of police officers. That is clear from a proper reading of the section. Its effect and purpose is to clothe the municipal police with the same powers and privileges of a regular police officer. The section however also imposes on a police officer the same liabilities and other consequences for his actions in the execution of his duty as attendant upon a regular police officer. So that whenever a municipal police officer commits a tort he may be visited with the same liabilities and consequences of a regular police officer. It is not correct, however, to say that a tortfeasor has as a liability or other consequence of his tortious conduct vicarious liability. Vicarious liability attaches to the employer and arises by virtue of the relationship between the employer and his employee. Section 53 does not refer to the employer of the municipal police officer or seek to alter his relationship with his employer. The section in our view has nothing to do with vicarious liability and is not in any way inconsistent with or repugnant to the provisions of the State Liability Act which define who are the servants of the state. 16. Even if the words other consequences are capable of referring to vicarious liability, which we do not accept, vicarious liability attaching to the tortfeasor s employer is so well rooted a common law construct that, as we mentioned, it would require very clear words, which we do not see in section 53, to alter the application of that principle. What Mr. Koylass s submission requires is not simply an interpretation that would include vicarious liability within the meaning of other consequences but one that would also require us to say that it was the vicarious liability of a third party and not the employer of the municipal officer. That is a quantum leap which on the proper interpretation of the section it is not possible to successfully take. 17. In our view, therefore, the implied repeal argument fails and Lackhansingh is therefore binding on this Court in that it establishes that the employer of the municipal officer is potentially vicariously liable for the officer s tortious conduct. 18. In any event even if Lackhansingh were not binding authority, it is clear to us that the City is potentially vicariously liable for the torts of its police officers. Page 6 of 9

7 19. In Bushell v the Port Authority of Trinidad and Tobago (1998) 56 W.I.R. 460 the issue arose whether the State was vicariously liable for the acts of estate constables employed by the Port Authority. The Court held that there was no basis for treating them as servants of the State rather than servants of the Authority and so the State was not liable (see the judgment of Ibrahim, J.A). de la Bastide, C.J, in concurring with Ibrahim, J.A., stated: 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 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 would be a surprising result if vicarious liability did not rest with the party whose interests they are contractually obliged to serve and by whom they are effectively controlled. 20. That reasoning applies equally to municipal police officers. The Municipal Corporations Act makes it clear that municipal police officers are acting in the service of and in connection with the duties of the corporation (see section 48(1)). They may however act in the interest of the wider public and may at times be called upon by the Commissioner of Police (see sections 52 and 53) to perform within the municipality for which their service was established such duties as members of the police service may be required to perform and discharge. Those functions are however incidental to the officer s duty to act in the service of and in connection with the duties of the Page 7 of 9

8 corporations. They are employed by the corporations and paid by them. The municipal corporations are in no uncertain way their employers. As is noted in Bushell it would be surprising if in those circumstances that vicarious liability did not rest with the municipal officers employers whose interest they are obliged to serve and by whom they are effectively controlled. 21. The question that remains, however, is whether the City is vicariously liable for the conduct of Jaikaran in this matter. The test of vicarious liability where the tortfeasor commits an intentional wrong is whether the wrongful conduct was so closely connected with acts the tortfeasor was authorized to do, that for the purpose of liability of the employer, his wrongful conduct may fairly and properly be regarded as done by him while acting in the ordinary course of his employment (see Lister v Hesley Hall Ltd. [2001] UK HL 22 and Attorney General of British Virgin Islands v Hartwell [2004] UK PC 12). To relate that specifically to this case the applicable test is whether Jaikaran s assault on the Appellant was so closely connected with the acts he was authorized to do that for the purposes of liability of the City, his conduct may fairly and properly be regarded as done by him while acting in the ordinary course of his employment as a Municipal Police Officer. 22. We are of the view that the facts in this matter clearly demonstrate the close connection required to establish the vicarious liability of the City. Jaikaran was a municipal police officer. His jurisdiction extended to the place that the tort was committed. He was lawfully issued with a firearm in the performance of his duties and it is reasonable to infer that this was done with the authority of the City which thought him a fit and proper person to have access to and to be entrusted with a weapon. He was in the service of the corporation and carrying out the duties and functions of a municipal police officer while he interacted with the Appellant which led to the shooting of the Appellant. Those in our view are sufficient connecting factors to establish vicarious liability. 23. In the circumstances we find that the second Respondent is vicariously liable for the action of Jaikaran in shooting the Appellant. We accordingly allow the appeal and set aside the order of the Judge below dismissing the action against the City. There shall therefore be judgment for the Page 8 of 9

9 Appellant against the City with damages to be assessed. The City shall pay to the Appellant the costs both here and below. Such costs are to be taxed and with respect to the costs of the appeal are certified fit for senior counsel. A. Mendonça Justice of Appeal P. Weekes Justice of Appeal P. Moosai Justice of Appeal Page 9 of 9