Mr. Nicholas Dujon and Cecil Ramirez for the Plaintiff
Mr. Mark Anderson and John Rivero for the Defendants

Damages - Whether Defendant negligently shot the Plaintiff - Whether shooting accidental - No evidence to support intentional shooting - section 20(1) (a) of Police Act, Chapter 109 - Police constable not to act in a reckless manner - Robley v Placide (1966) 11 W.I.R. 58 Defendant negligent.

Quantum of damages - Cornillac v St. Louis 7 W.I.R. 491 - Special damages - pain and suffering and loss of amenities - Future medical care - Interest - Special damages.

D E C I S I O N

On Sunday, 22nd April, 1990 sometime between 6:30 and 9:00 p.m. Anthony Tillett, the Plaintiff, was shot in the back by the first Defendant, Inspector Chrispin Jefferies with a .38 revolver.

The Plaintiff alleges that the shooting was done either intentionally or in the alternative, negligently and as a consequence the Plaintiff suffered severe injuries and has incurred loss and damages.

The first Defendant on the other hand claims that the Plaintiff was accidentally shot, when the first Defendant discharged his firearm towards the ground away from the Plaintiff, and that as a result of the first Defendant making a turning motion, the Plaintiff was shot and therefore claims inevitable accident.

The facts on which the Plaintiff bases his case are as follow -

On the 22nd of April, 1990, between the hours of 6:30 and 7:30 p.m., Anthony Tillett, the Plaintiff was in Margaret Domingo's yard in the Port Loyola area. He was taking to Margaret Domingo when he heard Inspector Jefferies, who he knew well, shout the words, "I got you this time mother fucker". He then saw Inspector Jefferies running towards him with a gun in his hand. He then told Margaret Domingo that he would turn himself in to Inspector Jefferies as he had escaped from prison. After he had said this to Margaret Domingo, he heard the first Defendant shout again, "put your hands on your head". As a result of these words, he put his hands over his head. The first Defendant, who was close by at this time, touched him on his back with the gun and said, "you are a bad man", to which Tillett replied that he was not a bad man. He also told the first Defendant that he had handcuffs and could use it. The first Defendant replied that his gun was his handcuff. The first Defendant then began searching the Plaintiff's left pants pocket with his left hand and the right pants pocket while holding the gun and touching Tillett's back. After the search, the gun went off while it was still touching the upper portion of Tillett's back. As a consequence of the shot, Tillett fell to the ground. He remained on the ground for about twenty five minutes after which he was placed in a police vehicle by two police officers and a nearby neighbour and taken to the hospital.

Tillett testified that as a result of the gun shot he cannot walk and has lost both urine or stool control. He also suffered pain in his back and private daily.

In his evidence in chief, Tillett testified that before he was remanded into custody, and the evidence suggest that this is so, just prior to his being shot, he was earning $140.00 per week and from the time of the shooting to the taking out of the writ, 84 weeks had expired and that his hospital expenses was $400.00. As a result of the shooting incident he damaged a pants and shirt and the cost of those two items of clothing is $100.00.

Tillett also testified that he spent $418.00 in transportation. His mother provided him with nursing care, namely, to change his clothes, bathe him and arrange his bedding for which he owes her $200.00 per week for 84 weeks. As a result of the injuries he suffered on account of the shot, he can no longer play basketball, take part in bicycle race or play football, and he can no longer go out with his girlfriend. He has, since receiving the injury, bought a wheel chair for $300.00. Tillett had to see a doctor three times which cost him $30.00 a month and his transportation expenses from Belmopan to Belize was $14.00. In my view this witness was not shaken in cross-examination.

Mr. John Waight, a surgeon, specialist, testified that he had seen an x-ray of Tillett's body known as an intravenous polygram taken on the 12th June, 1991, and that according to that x-ray Tillett had a large stone in his bladder and that it was not emptying properly. The x-ray also disclosed that the upper urinary tract was grossly dilated. He was of the opinion that Tillett's spinal cord was damaged and as a result the muscle of the lower limbs, were paralysed and somewhat weakened and that this is a permanent condition and that Tillett would not be able to walk and that his locomotion depended on a wheel chair. Mr. Waight was of the opinion that Tillett would have a permanent impaired function of his bowel and urinary system. Mr. Waight also testified that he had seen on the x-ray, a circular scar to the top of the lower right rib which is consistent with a gun shot. In his opinion the gun shot had passed near the spinal cord and had damaged not only the spinal cord permanently, but also the general area of the spinal cord.

On the 18th of July, 1993, Mr. Waight examined Tillett and assessed him as 90 percent disabled. He found Tillett's muscle power of the lower limb as, had been previously recorded and had developed a score in the sacrum measuring 2 by 5 centimeters. There was a mild and high weakness to a total paralysis of the muscle below the bone.

On the 8th of August, Mr. Waight again saw another x-ray of Tillett and this showed an increase in the size of the bladder stone. The reason for the increase in size was on account of the fact that the bladder was not emptying properly and was getting infectious. In his opinion, Mr. Waight said, Tillett was a paraplegic but could live for another 30 to 40 years. The pain Tillett suffered as a result of the gun shot wound and the injury was severe. Tillett, a man of 26 years of age would become depressed and would not have a normal sex life but could possibly get an erection and father children. Mr. Waight further testified that he had seen another recent x-ray of Tillett and in his opinion Tillett's condition had deteriorated since July 18, 1993.

Mr. Waight was recalled, without objection from Crown Counsel, Mr. John Rivero, on 27th October, 1993.to give limited testimony. He testified that he had seen Tillett, in a professional capacity, after he had first testified and had ordered x-rays. These x-rays showed a. fracture of the 3rd lumbar vertebra. He also saw some fragments of metal compatible with fragments of a bullet, scattered in a horizontal direction in the region of the fractured 3rd lumbar vertebra. He observed a sear of the entry wound caused by a bullet near the tip of the right 12th rib and that in relating the tip of the 12th rib and 3rd lumbar vertebra coupled with the fact that fragments of metal were lying in a more or less horizontal position, he concluded that the bullet had travelled in a horizontal direction and entered the body of Tillett while he was standing up. It is on this evidence of Mr. Waight and Anthony Tillett that this Court is asked to crime to a conclusion that the first Defendant, Inspector Jefferies, intentionally and willfully shot Tillett or in the alternative that he negligently shot him and as a result he was injured severely with the result that Mr. Waight concluded that Anthony Tillett was 90% disabled.

Now, the version of events of the Defence is that the first defendant, Inspector Jefferies, did shoot the Plaintiff, Tillett but alleges that the shooting incident occurred accidentally. The Defence called the Defendant, Inspector Jefferies, to testify as to their version of the events which occurred on the 22nd of April, 1990.

Inspector Jefferies testified that on the 22nd of April, 1990, at about 9 p.m., while on his way to church he observed Anthony Tillett, the Plaintiff, coming in the opposite direction on T-Street and entered Margaret Domingo's yard, and Domingo and Tillett engaged in a conversation. He was in a yard behind Margaret Domingo's yard at the time, about 50 feet away. Jefferies then went to approach Tillett with the service revolver he had been issued with on that same day. On reaching a distance of about 50 feet, he called Tillett telling him that he was under arrest and continued towards him. When he approached him, at about 4 to 5 feet, Tillett was facing him at an angle. Jefferies told Tillett to turn his back to him and to raise his hands. Tillett complied. At this time Margaret walked away remarking, "this man has a gun". Jefferies continued to approach Tillett. He bowed down and again told him to raise his hands, but Tillett did not comply though he did begin moving them up as his hands were in front of his body. He got near enough and touched him and he began searching him. After he had searched the front of the left pants waist and on touching between the side and centre of his body, he touched a solid object.

Tillett in a swift body movement put his right hand on Inspector Jefferies' left hand and pulled away his right hand. On doing this his right shoulder went backwards and also the upper part of his body.

By this time Jefferies left hand was holding the object in his pants waist. The object felt like something cylindrical and solid. He held the object and it was then that he discharged the firearm, firing one shot. Jefferies testified that he fired the shot because he was in fear of an attack but went on to testify that when he aimed the gun he did so away from the body of Tillett but that it was when he touched the solid object, and Tillett made a sudden movement that he fired the gun, land Tillett got shot. The shot, he paid, was a warning shot. According to Jefferies, when he fired the shot, Tillett said that he got shot. Jefferies then told Tillett to lie down because he had seen a red spot to the back of the shirt more to the lower part of Tillett's body, Jefferies testified that he could not explain how Tillett got shot.

Inspector Jefferies further testified that it was while Tillett was lying down on the ground that he removed a screw driver from Tillett's pants waist. The screw driver was a standard screw driver with an 8 inch blade which he kept and handed it at the police station along with the gun and the clothing. Jefferies then went to Margaret Domingo's house and telephoned the police station for assistance. The police came to the scene between ten to fifteen minutes afterwards. When the police came, Tillett was taken to the Belize City Hospital. He went along to the hospital and remained there with Tillett for about one and a half hours while Tillett received medical attention and was taken to the Operating Ward.

Now the issues which arise from the evidence for my consideration are as follows -

a.) was, the of the first defendant Chrispin Jefferies intentional and willful, or negligent when he fired the ,gun the 20th of April, 1990-

b.) was the act of the first defendant in firing the gun on the 20th of April, 1990 accidental-

On perusal of the evidence I have come to the conclusion that there is no evidence in this case from which I can come to the conclusion that the first defendant intended to shoot and injure the plaintiff or willfully fire his firearm at the plaintiff although the first defendant did say in his testimony that he was fully aware when he discharged his .38 pistol assigned to him at the plaintiff. I, therefore, hold that there was no intention or wilfulness on the part of the first defendant to shoot and injure the plaintiff, Anthony Tillett.

Having considered and decided this point, as I have done, I now turn to the issues of whether the first defendant was negligent when he caused the injury with the firearm to the plaintiff on 22nd of April, 1990 or whether when the first defendant fired the gun on that day he did so accidentally.

Now by Section 20 (1) (a) of the, Police Act Chapter 109 a police constable is, under a duty to apprehend any person whom lie knows has committed an offence in his view or who he reasonable suspects to have committed an offence. In this case the first defendant did not only suspect that the plaintiff had committed an offence, but he also knew that the accused was a wanted man by the police. The evidence as adduced by the defendant is that the first defendant recognized the plaintiff who had committed the crime of escape from lawful custody, and indeed there is no dispute about the plaintiff's escape from custody in that he himself admitted that he had escaped from custody. In his evidence in chief the plaintiff testified as follows:- "I was remanded for three months when I escaped." The first defendant having seen Anthony Tillett whom he knew had escaped from lawfully custody set about carrying out, his duty as spelled out to him by Section 20 (1) (a) of the Police Act. The Act says that a police constable acting in the course of his duty in apprehending a person he knows to have committed an offence is under no legal duty to retreat if confronted with any type of violence or intended violence.

However, a police constable is not entitled to act in a rash reckless or unreasonable manner or to take such steps for his protection as were not warranted by the necessity of the occasion. This law is also well enunciated in the case of Robley v Placide (1966), 11 W.I.R. 58 at p.p. 61 I and 62 A.

So the question for my determination is whether the first defendant carried out his duty in a rash reckless and unreasonable manner on the 22nd of April, 1990.

The pertinent and crucial evidence for the plaintiff which is of assistance to the Court and on which it must rely on is follows:- "Put your hands on your head. I put up my two hands on my head…" He then leaned and began searching my pocket with his left hand. His right hand was holding the gun touching my back. With the same left hand, he searched the other pocket on the right side. His right hand was still holding the gun touching my back. After he had searched me the gun gone off. The gun was still touching my back when it gone off. I then fell to the ground.

If the evidence of the plaintiff as it stands were to be considered to the exclusion of the first defendant's evidence, the conclusion that would be reached is that the first defendant perhaps intentionally discharged and injured the plaintiff when he fired the gun. However, the first defendant has given a different version of the events which occurred on the 22nd of April, 1990.

The first defendant's version is that when he was searching the plaintiff and on holding a cylindrical object which was on the back portion of the waist of the plaintiff, the plaintiff made a sudden move and at the same time, he fired a shot slightly downward as a warning to the plaintiff with the consequence that the plaintiff got shot in the area of his back. In cross-examination the first defendant provides the details as to how this incident took place. In cross examination he testified that it was while the plaintiff's hand was on his hand, that he, the first defendant, pulled back at an angle and on moving away his right should towards the Plaintiff, the first defendant fired a warning shot. The gun was slightly away from the right midsection of the Plaintiff and when he fires everything happened in a split second. He went on to say in cross-examination "I agree that I had a duty not to fire at him under the circumstances." On further cross examination by counsel for the plaintiff, the first defendant said that he had riot panicked when he discharged the gun and that the shooting of the plaintiff was not a palm and calculated discharge of the firearm, but he immediately contradicted himself by saying that the discharge of the firearm was calm and calculated. In the first defendant's pleading, the first defendant stated that he approached the plaintiff and stopped about an arms length away from him and began to search him as done by all policemen when conducting an arrest. The plaintiff, he stated, then made a sudden movement as if he was taking something out of his pocket. On seeing this the first defendant apprehended danger to his life and fired off a round from his revolver in the direction of the ground away from the plaintiff to warn the plaintiff to remain still.

In answering the evidence of the plaintiff in his pleading the following defence emerged, namely, (1) that the first defendant having apprehended the plaintiff and while searching him the plaintiff made a sudden move as if to take something from his pocket and apprehending danger to his life the first defendant discharged a round from his revolver towards the ground to warn the plaintiff to remain still; (2) while searching the first defendant he held on to a cylindrical object, and the plaintiff made a sudden move and at the same time he fired a shot slightly downward as a warning but the shot nevertheless caught the plaintiff in the region of the back which resulted in the plaintiff getting shot.

The plaintiff's position, however, when one looks at the whole of the evidence is that he made no sudden movement as stated by the first defendant. It is on this state of the evidence that I must decide whether the first defendant used all reasonable care in the circumstances in the use of his firearm when he fired it during the search of the plaintiff.

Now in my view the first defendant was not justified in firing the gun as he did. It is my view that the plaintiff may have made some movement but that movement must have been a slight one. I come to this conclusion from the whole of the evidence including that of Mr. John Waight who testified that in his opinion the plaintiff was in a standing or upright position when the bullet entered his body. I further hold that the first defendant ought to have foreseen, that in firing the gun at the plaintiff from such close proximity in the manner that he said he did, that is, in a slightly downward movement with his shoulder moving towards him, he was very likely to hit the plaintiff and cause him injury. And, indeed, in cross-examination of the first defendant, the first defendant agreed that he had a duty not to fire at the plaintiff under those circumstances. I, therefore, hold that the first defendant did not foresee, as he should have foreseen, that in firing the gun as he did, he would have caused the plaintiff injury. The first defendant, therefore, failed in his duty of care to the plaintiff, Anthony Tillett, not to shoot and injure him as he did, and I, therefore, find that the first defendant was negligent in the use of his gun and I hold him liable in negligence and the second and third defendants vicariously liable in negligence in the circumstances.

Having found the first defendant liable in negligence, it is unnecessary for me to go into evidence in respect to the issue of inevitable accident because this defence does not arise from the facts. As Lord Esher, M.R. said in the Schwan sub. nom. The Albano (1) [18921 p. 419 at p. 429, "a person relying on inevitable accident must show that something happened over which he had no control, and the effect of which could not have been avoided by the greatest care skill". The evidence in this case does not in my view disclose the defence of inevitable accident.

I now turn to this issue of quantum of damages to be awarded to the plaintiff. In assessing damages, I kept in mind the considerations outlined in the case of Cornillac v. St. Louis 7 WIR 491 and having regard to the evidence in this case, I have considered an award on the following heads.

(1) Special damages until trial,
(2) pain and suffering and loss of amenities
(3) cost of future medical care and related expenses; and interest.

I make no award for loss of earnings as special damages nor for loss of prospects. This plaintiff, Anthony Tillett, claims loss of earnings as special damages at $140.00 per week and asks for this figure to be used in calculating his future pecuniary loss. However, in deciding whether or not I will make this particular award, I have relied on the evidence in this case. The evidence is that he had worked as a mason for a period of six months prior to the incident. The Plaintiff testified that he worked on a "ketch and kill" basis. I understand this Creole phrase to mean off and on. He went on to say in his testimony that he worked at the Citrus Company in 1988 but could not remember how long or in what capacity. He was unable to say whether or not he paid Social Security or whether it was deducted from his salary. From this evidence, and recalling the plaintiff's demeanour when testifying on this portion of his evidence, I find it difficult to believe that he had worked as he claimed. Indeed it is my view that not only was this Plaintiff not working when he said he did but that he may not have worked at all since the evidence tend to indicate that he was living a life of a criminal. For these reasons as aforementioned, I make no award under this head.

SPECIAL DAMAGES

With respect to this head of damages, I award the following by reason that these damages were incurred by the plaintiff and were never disputed by the defence.

PAIN AND SUFFERING AND LOSS OF AMENITIES

With respect to this head of damage, I was referred to several cases two of which I found of some assistance to me. These cases are Flowers v Batra et al Supreme Court of Belize, Action No. 210/79 and Briceno v West and another Supreme Court of Belize, Action No. 107/84. 1 have borne in mind that the awards under the above-mentioned cases turn on their own facts but I have considered them as providing an indication as to the general amount of awards to be made under this head.

In the Batra case (supra) an award was made of $50,000.00 under this head. And three years later in the Briceno case (supra) Moe C.J. as he then was, increased the award to $60,000.00, in order as he said, to reflect the real value of the award. Now having regard to the passage of time, almost twelve years since the Briceno case and using as a guide, it is my view that a fair compensation under this head would be $100,000.00 and I, therefore, make an award in this sum under this head.

PROSPECTIVE MEDICAL AND RELATED EXPENSES

The evidence in this case discloses that I must consider an award under this head. Mr. Waight when giving evidence on this aspect of the case testified that a person of 26 years of age as the plaintiff was or in his condition could live for at least forty years and he gave in his evidence various prospective medical expenses based upon a forty year period.

I have determined that a multiplier of half that amount namely twenty years is appropriate in this case. I, therefore, make the following award:

Under this head there is also the question of future nursing care. I have found it proper to use the figure which I accepted when considering the pre-trial nursing care, namely, $200.00 per week. I then decided on an appropriate multiplier. I took into account that on the evidence, these medical expenses will continue throughout the plaintiff's entire life. I have taken into consideration the uncertainties, of life or the fact that the plaintiff will be receiving a lump sum and 1 have come to a conclusion that a multiplier of twenty years to be fair. I, therefore, award the sum of $208,000.00 for future nursing care. The total award under this head is $231,900.00 with interest. I, therefore, make a. total award to the plaintiff in the sum of $349,6l8.00 with interest at rate of 6 percent.

Cost to be agreed or taxed. Judgment accordingly.

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