A policeman injured while on duty at the residence of former Chief Justice Sir David Simmons eight years ago has had his bid for monetary damages dismissed by the Barbados High Court.
In a decision delivered today by Justice Maureen Crane-Scott, Keithley Boyce’s negligence lawsuit against the Attorney General and fellow lawman Carlos Hall not only failed but costs were awarded to the Attorney General and Hall.
And while the court agreed it was reasonably expected that a police officer vested with a duty to protect life and property would “put himself in harm’s way to prevent injury or damage to life or property”, it said Boyce’s decision to use his body to stop a slowly moving vehicle was “so grossly foolish and disproportionate to the danger of damage to property” that it negated any claim of negligence in his case.
Boyce, who like Hall was assigned to the District “A” Police Station on July 19, 2005 when the incident occurred at Sir David’s Neil’s Plantation property while they were on patrol duty, had told the court that his neck and back were injured when he tried to stop an unoccupied MP413 from rolling down an incline.
He told the court there were several grounds under which Hall, the vehicle’s driver and second defendant, should be held negligent.
These included failing to engage the handbrake properly or at all, causing or allowing MP413 to roll backwards, failing to warn Boyce that the handbrake was not or not properly engaged, parking MP413 on an incline, failing to check and ensure that the handbrake was engaged before alighting the police vehicle, failing to take all reasonable care in the circumstances, and driving or causing the vehicle to be driven with a defective handbrake.
In the case of first defendant the Attorney General, Boyce said the negligence was failing to institute or enforce any or any adequate system for the inspection and maintenance of the vehicle whereby the existence of a defect in the handbraking system might have been detected and remedied before the accident.
This was in addition not causing or permitting the vehicle to be used upon the road when the handbraking system was in a defective condition.
And in relation to the two defendants, Boyce said the actual accident was evidence of the negligence.
During testimony, Boyce said among other things that the vehicle was “parked on an incline and at an angle” and that after the two exited and were walking he “observed MP413 rolling slowly backwards and down the incline.
At that time he “immediately alerted” Hall for help and “then dashed towards the moving MP413”, rushing to the driver’s side as it was closer to him, while Hall headed towards the passenger’s side.
“The claimant said that in any event he was unable to reach the handbrake and the vehicle had therefore continued to roll down the incline. It was for this reason, he said, that he had then instinctively positioned his body to push against the vehicle so as to slow it down,” Crane-Scott said in her written decision.
“According to the claimant, (Hall), by this time, had reached the passenger side of the vehicle and was able to push his hand through the open window on that side and engage the handbrake. MP413, said the Claimant, then came to a halt.” Hall’s account to the court varied, however, and he testified that he left Boyce in the vehicle asleep and alone and was patrolling the premises on foot when he heard the vehicle door slam and Boyce shout for him.
“He immediately ran back to the garage area where he observed the vehicle rolling backwards at a slow speed. He said that at the time he saw MP413, it had been about a car length from the sidewalk behind. He also observed the claimant jogging alongside the vehicle with his right hand on top of the door on the driver’s side of the vehicle which had been closed,” the court said.
“According to (Hall), by the time he reached the vehicle it had already stopped, its back wheels having struck a curb one and a half to two feet in height which lay to the rear. He indicated that the area with the mango trees by which he had begun his patrol was located behind this curb, but was about 18 feet from the curb — a good distance away.”
The court said Boyce also testified that “at the time there had been no property or any person near the curb or to the rear of the vehicle that was at risk” and he “strongly denied that he had at any time reached into the vehicle and engaged the handbrake of the moving vehicle or sought to do so”.
Hall also told the court that “aside from a problem with its power windows, MP413 had been working well both before and after the incident”.
In making her decision the judge said the court “was satisfied” that Hall’s account of events “was the more probable” and that Boyce’s decision to stop the vehicle with his body was novus actus, in other words the new intervening act which caused his injury.
“In short, the court finds that (Boyce’s) conduct in pushing his body against the slowly moving vehicle was so grossly foolish and disproportionate to the danger of damage to property as to be regarded as a novus actus and any ensuing injury ‘the result of a new cause intervening’ rather than the negligence of (the Attorney General and Hall),” Crane-Scott concluded
“In the circumstances, the court finds that — notwithstanding the (Hall’s) failure to apply the handbrake or to leave MP413 in first gear — that the injuries in question were not reasonably foreseeable and cannot in law be attributed to any breach of duty on the part of (Hall)”. (SC)
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