Supreme Court
Action No. 426 of 1982
21st March, 1984
Moe, CJ.

Mr. L. Welch, for the Plaintiff
Mr. N. Neal, Crown Counsel for the Defendants

Personal injury - Plaintiff entering into a fight with police officers effecting an arrest on Plaintiff for smoking marijuana - Plaintiff first striking police officer (first Defendant) - First Defendant shooting Plaintiff - Whether shooting justified - Plaintiff claiming exemplary damages - Whether exemplary damages appropriate - General damages for pain and suffering - Quantum - Special Damages - Defendants not challenging quantum of special damages - Whether court can adopt special damages which have not been challenged.

J U D G M E N T

In this Action, the Plaintiff claims damages on an exemplary or aggravated basis for a wound which he alleged the first Defendant unlawfully and maliciously inflicted by shooting him in his left leg with a gun. He averred that the first Defendant, a police officer at the time, in the exercise of his duties acted arbitrarily and intended to and humiliated and embarrassed the Plaintiff. The Defendants averred that the Plaintiff was accidentally shot while the first Defendant was effecting an arrest of the Plaintiff, and denied that the said Defendant acted arbitrarily or with any intention to humiliate and embarrass the Plaintiff.

As to how the Plaintiff got shot, there was divergence in the evidence from both sides. Of all the witnesses seen and heard, I was impressed by the way in which Juliana Rivero gave her evidence and I relied on her. Two aspects of her evidence which, to my mind, were important were not challenged nor tested, and those portions of her evidence confirmed in my mind the Plaintiff's allegation. She said that as a result of hearing the Plaintiff shout for one Mr. Jones, she went behind her stall at the Farmers Market. She saw the Plaintiff and two men like they were fighting. Mr. Jones came out also and asked, "What happen, what's going on here". One of them said they were police and they let go the Plaintiff. The Plaintiff lifted up his hands. One of the police was by his side and one in front (identified later to be the first Defendant). It was not challenged that there were more than one policeman fighting with the Plaintiff behind the Farmers Market. The Plaintiff himself said that he was approached by three men and they got into a fight. When Mr. Jones came out and asked certain questions, one of the men said "We are Police." Mr. Jones also gave evidence that when he went out he saw the Plaintiff with two other men.

Miss Rivero's further evidence is that Mr. Jones said to the first Defendant, "You don't have to shoot the man. Arrest him and carry him in." The policeman beside the Plaintiff said the same thing. Then the first Defendant pulled the gun and shot the Plaintiff. Again it was not challenged that one of the policemen said to the first Defendant, "you don't have to shoot, arrest him."

The evidence that the Plaintiff was seen fighting with policemen is consistent with evidence which came from the first Defendant that the Plaintiff was seen smoking Indian Hemp which was taken from him and a fight ensued. I accepted that the police officer, the first Defendant, had reasonable cause to suspect that the Plaintiff was in possession of Indian Hemp and took steps to take possession of the article. The Plaintiff got into a struggle with the police in the course of which he struck the first Defendant.

On the facts, as I found them, the first Defendant was entitled to take possession of the Indian Hemp and to arrest the Plaintiff. The Plaintiff, however, assaulted the first Defendant who was in the execution of his duty. The fact that the Plaintiff struck the first Defendant may very well have roused the Defendant's anger. He was entitled to defend himself from attack and to act reasonably in so doing; but on the facts I found the use of the gun was not necessary in the circumstances and totally unjustified. I must hold that on the evidence, I accepted the action of the first Defendant was high-handed and this circumstance is taken into consideration hereafter.

The Plaintiff is entitled to damages for the injury unlawfully inflicted on him by the first Defendant. He suffered an entry wound in the upper third of the left thigh and an exit wound in the gluteal region or buttocks. He remained in hospital for three days. He experienced some pain. The doctor's evidence was that the gunshot wound damaged only soft tissue, it would have taken about ten days to heal, and the injury shouldn't cause any deformity. I accepted the doctor's evidence, which was inconsistent with the Plaintiff's evidence, as to the effect of the injury received. The Plaintiff's evidence appeared to be an exaggeration of the situation and I rejected it. Acting on the doctor's evidence I considered the nature and extent of the injury, the pain and suffering which the Plaintiff would have endured. On that evidence there is no loss of amenities. Nor do I find any loss of pecuniary prospects as a result of the injury. In my judgment I award $2,500. The evidence as to loss of earnings as special damages was not challenged and is entirely consistent with the evidence as to the nature and extent

of the injury. I allow the amount claimed under this head, $450.00. The Plaintiff to have his costs.

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