Kumar v Commissioner of Police [2006] FJSC 17; CBV0003U.2006S (19 October 2006)

IN THE SUPREME COURT OF the FIJI ISLANDS
AT SUVA
CIVIL APPEAL NO. CBV0003 OF 2006S
(Fiji Court of Appeal No. ABU0059 OF 2004S)
BETWEEN:
MUNI LATA KUMAR
Appellant
AND:
THE COMMISSIONER OF POLICE
First Respondent
AND:
THE COMMISSIONER OF PRISONS
Second Respondent
AND:
THE ATTORNEY GENERAL
Third Respondent
Coram: The Hon Justice Robert French, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice David Andrew Ipp, Judge of the Supreme Court
Hearing: Monday, 16th October 2006, Suva
Counsel: J Cameron for the Appellant
L Daunivalu for the Respondents
Date of Judgment: Thursday, 19th October 2006, Suva
JUDGMENT OF THE COURT
[1] This is an appeal, by leave granted by the Court of Appeal under section 122(2)(a) of the Constitution, from the dismissal of the appellant’s appeal to that Court from the decision of Scott J who dismissed her action for damages under the Compensation to Relatives Act. The appellant is the widow of Corporal Raj Kumar (the deceased) who was killed by an escaped prisoner on 8 August. The prisoner, Alifereti Nimacere, escaped from prison with others during the general breakdown of law and order which followed the takeover of the Parliament by George Speight and his confederates on 19 May 2000.
[2] Following their escape Nimacere and his fellow escapees acquired a pistol and three M16 rifles.
[3] The deceased was in uniform on duty at Nausori Police Station on the night of 7 August. About midnight he told Constable Ali that they had to drive police vehicle F25 to Sawani. On arrival they were approached by an Army Sergeant who asked them to drive him and three armed soldiers to the Qiolevu road block to look for a missing vehicle and some armed insurgents.
[4] After waiting at Qiolevu road block the police vehicle, with the soldiers, was driven along Qiolevu Road for about 6 km until they came upon the missing vehicle. When one of the soldiers got out of the police vehicle shots were fired. Everyone in the police vehicle got out and took cover except the deceased. He was in the middle of the front seat and was captured and killed by Nimacere.
[5] Scott J held that the Commissioner of Police did not owe a duty of care to the deceased in the situation which existed that night and in any event the plaintiff had failed to establish negligence by that defendant. He also held that the Commissioner of Prisons did not owe a duty to the deceased, and in any event the plaintiff had failed to establish negligence by that defendant.
[6] The Court of Appeal first considered the claim against the Commissioner of Prisons. In accordance with Home Office v Dorset Yacht Co Ltd [1970] UKHL 2; [1970] AC 1004 (Dorset Yacht) they held that a duty of care could be owed by the Commissioner to persons: [34] "in sufficient proximity to be likely to be injured or to sustain loss as a result of the escape of a prisoner." They also held: [39] that "the duty was confined in terms of vicinity and time", that "constraints of time and place will be strictly imposed ", and that the scope of potential liability was narrow.
[7] They concluded: [39] that the two months or more that had elapsed since the escape, and the substantial distance between the prison and Qiolevu meant that the deceased’s injuries occurred at a time and place too remote from the escape to attract a duty of care.
[8] They also held that Prison authorities do not owe a duty to "the whole world", and there was nothing to indicate that the deceased was "a likely and foreseeable target" of the escaped prisoner so as to establish a special duty owed to him. They concluded: [39]:

".... there is no evidence [that the prisoner had a] propensity to violence nor any evidence that he presented a particular risk to members of the police let alone to Mr Kumar individually."

[9] The Court of Appeal held: [45] "that the Commissioner of Police could owe a duty of care to his police officers in particular circumstances", and [46] that a duty existed not to expose the deceased "to an unnecessary or avoidable risk where the nature and extent of that risk could be foreseen and precautions taken to avoid it."
[10] They said that there was no evidence that the Commissioner could have foreseen the situation that developed that night, or that any instructions could have prevented the death of the deceased. They therefore concluded that the plaintiff had not established any breach of duty by the Commissioner.
Commissioner of Prisons

[11] Counsel for the plaintiff did not call any evidence to establish how Nimacere and his fellow escapees escaped, when they did, or even the prison from which they escaped. He called a court officer who produced the High Court record of the trial of three of Nimacere’s associates for the murder of the deceased and a soldier, but this was not made an exhibit (High Court Record page 29).

[12] The witness also produced a copy of "the judgment" of the High Court Judge at that trial (not the summing up), the remarks on sentence, and the statement of agreed facts at that trial. These became exhibits 1, 2, 3 (Record page 29). Although these documents comprise only 8 pages they were not reproduced in the Supreme Court Record, and Mr Cameron, counsel for the appellant, (who did not appear at the trial) informed us that he did not rely on them. Counsel for the defendants at the trial admitted "that the escapees killed Mr Kumar" and that "the causes and circumstances of death are not in dispute." (Record page 28).

[13] The appellant’s case against this respondent is based on the proposition that the escape of a prisoner from lawful custody, unless explained, is evidence of negligence on the part of the Prison Service. Mr Cameron also invoked the principle enshrined or obscured by the Latin maxim Res Ipsa Loquitur (proof of an escape, without more, speaks for itself, and is evidence of negligence).

[14] We cannot accept these arguments. Proof of the means of escape from prison in normal times might establish a prime facie case of negligence on the part of the Prison Service. In Scott v. London and St Katherine Docks Co [1865] EngR 220; (1865) 159 ER 665, 667 Erle CJ delivering the judgment of the Court of Exchequer Chamber said that the maxim applied "where... the accident is such as in the ordinary course of things does not happen if those who have the management use proper care." However, the situation which prevailed following the breakdown of law and order after George Speight and his confederates seized the Parliament were not "the ordinary course of things." In that situation proof of an escape without more cannot possibly establish a prima facie case of negligence by the Prison Service.

[15] The breakdown of law and order may have extended to the prisons and prison officers may have refused to do their duty. If so, they may, as result, have acted outside the scope of their employment so as to exclude the vicarious liability of the Prison Service for their acts and omissions. There may have been absolutely nothing that the Commissioner and his senior officers could have done to prevent the escape.

[16] The State is not generally liable in damages to those who suffered personal injuries or property damage following the breakdown of law and order in Fiji in May 2000. The law would lack coherence if the Courts created a limited exception for injuries and damage inflicted by prisoners who escaped at that time.

[17] In our judgment therefore the appellant failed to establish a prima facie case of negligence, and in these circumstances the fact that the Commissioner called no evidence, where the facts were peculiarly within his knowledge, cannot assist the appellant. We therefore agree with the Court of Appeal that the claim against the Commissioner of Prisons fails on this ground which, in any event, raised no question of general principle.

[18] Since the Court of Appeal granted leave to appeal we will also consider the duty question. Dorset Yacht [1970] UKHL 2; [1970] AC 1004 is authority for the proposition that in England there are some circumstances in which the prison authorities will owe a duty of care to third parties who may be injured in person or property as the result of the criminal activities of escaped prisoners. Lord Reid held that "a mere foreseeable possibility" of loss or damage was not enough to create a duty (page 1030), and recovery was only available where loss or damage was something "very likely to happen" (page 1030). Lord Morris said (page 1034) that the risk of damage was "glaringly obvious", and the prison authorities owed a duty of care to the plaintiff because there was "a manifest and obvious risk" to its property nearby if the prisoners were allowed to escape (page 1035). Later he said that there was a special relation between the parties because the "prisoners might well do some damage to property near at hand" (page 1039).

[19] Lord Pearson said that damage to the plaintiff’s property "was eminently foreseeable as likely to happen" unless care was taken (page 1053), and he distinguished that case from one where prisoners "had completed their escape from control and are fully at large and acting independently (page 1055). Lord Diplock said (page 1070):

"The risk of sustaining damage from the tortious acts of criminals is shared by the public at large. It has never been recognised at common law as giving rise to any cause of action against any one but the criminal himself. It would seem arbitrary and therefore unjust to single out for the special privilege of being able to recover compensation from the authorities responsible for the prevention of crime a person whose property was damaged by the tortious act of a criminal, merely because the damage to him happened to be caused by a criminal who had escaped from custody before completion of his sentence instead of by one who had been lawfully released or who had been put on probation or given a suspended sentence or who had never been previously apprehended at all. To give rise to a duty on the part of the custodian owed to a member of the public to take reasonable care to prevent a [prisoner] from escaping from his custody before completion of [his] sentence there should be some relationship between the custodian and the person to whom the duty is owed which exposes that person to a particular risk of damage in consequence of that escape which is different in its incidence from the general risk of damage from criminal acts of others which he shares with all members of the public."

[20] Later he said (page 1070):

"What distinguishes a [prisoner] who has escaped from one who has been duly released from custody, is his liability to recapture, and the distinctive added risk which is a reasonably foreseeable consequence of a failure to exercise due care in preventing him from escaping is the likelihood that in order to elude pursuit immediately on the discovery of his absence the escaping [prisoner] may steal or appropriate and damage property which is situated in the vicinity of the place of detention from which he has escaped."

[21] In Hill v. Chief Constable of West Yorkshire [1989] AC 53 the House of Lords considered a claim that the police owe a duty of care to individual members of the public who suffered injury to person or property through the activities of a criminal. Lord Keith, delivering the principal speech, referred to Dorset Yacht [1970] UKHL 2; [1970] AC 1004, and (at 60-62) to the speech of Lord Diplock including the passages quoted above. He treated that case (page 61) as authority for the proposition that the duty of the prison authorities to the members of the public was limited, and depended (page 62) on "special characteristics" beyond reasonable foreseeability of likely harm.

[22] He held that the police owed no duty to an individual who (page 62) "was at no special distinctive risk", unlike the owners of yachts moored off the island in the Dorset Yacht case. Lord Keith continued (page 62):

"It appears from the passage quoted from the speech of Lord Diplock in the Dorset Yacht case that in his view no liability would rest upon a prison authority, which carelessly allowed the escape of an habitual criminal, for damage which he subsequently caused, not in the course of attempting to make good his getaway to persons at special risk, but in further pursuance of his general criminal career to the person or property of members of the general public. The same rule must apply as regard failure to recapture the criminal before he had time to resume his career."

[23] In State of New South Wales v Godfrey [2004] NSW CA113 paras [31, 34] Spigelman CJ said:

"There is no authority which recognises a duty of care to the public at large, beyond the immediate vicinity of the gaol from which an escape occurred. Indeed the possibility that the Home Office could have been held liable for a burglary committed by the escapee [prisoners] at the other end of the United Kingdom has been described as ‘ludicrous’ (Lamb v Camden LBC [1981] EWCA Civ 7; [1981] QB 625,647, per Watkins LJ )... If Dorset Yacht does represent the law in Australia, its application should, in my opinion, be confined to the course of the escape, where control is capable of being reasserted by the persons who should have prevented the escape. No such duty has ever been found an encompass conduct 100 km from, and months after, an escape."

[24] The Court of Appeal (Ward P, Eichelbaum and Gallen JJA) said [39] that the decision in Godfrey’s case "is unduly restrictive of the principles expressed in the Dorset Yacht case." The remarks of Spigelman CJ should probably be understood as directed to the duty of prison authorities "to the public at large" which was the question in that case. So understood they appear to be unexceptionable. The possibility of a special and wider duty to a particular individual or individuals is supported by the statement of Lord Morris in Dorset Yacht (page 1039):

"If a person who is in lawful custody has made a threat, accepted as seriously intended, that, if he can escape, he will injure X, is it unreasonable to assert that in those circumstances a duty is owed to X to take reasonable care to prevent an escape?"

[25] A court faced with that situation might well consider that the prison authorities were under a special duty to the subject of such threats although he or she lived at a considerable distance from the prison. Moreover, the principles stated by Lord Diplock (1070) would also be applicable:

"To give rise to a duty on the part of the custodian owed to a member of the public to take reasonable care to prevent [a prisoner] from escaping from his custody before completion of [his] sentence there should be some relationship between the custodian and the person to whom the duty is owed which exposes that person to a particular risk of damage in consequence of that escape which is different in its incidence from the general risk of damage for criminal acts of others which he shares with all members of the public."

[26] Such a case would not involve a duty to the public at large, or to a member of the public, but a special duty to a particular person. This exception or possible exception does not assist the appellant. The deceased was not targeted by Nimacere, and the risks he faced on the night in question were no different from those faced by others who were present or who had to confront armed insurgents elsewhere. As the Court of Appeal said [39] "there is no evidence ... that the prisoner concerned presented a particular risk to members of the police let alone to Mr Kumar individually." Accordingly the appellant’s case against the Commissioner of Prisons must fail on this ground as well.

The Commissioner of Police

[28] The Court of Appeal held that the Commissioner could owe a duty of care to his police officers, but that no breach of duty had been established. Counsel for the appellant submitted that the Commissioner should have issued a general instruction to police officers, who in Fiji are not armed, that they should avoid situations where they might confront armed insurgents, and allow the army to deal with them. Such an instruction he submitted would have allowed the deceased to hand over police vehicle F25 to the army sergeant and either remain at the police post at Sawani, or return home on foot.

[29] Counsel for the appellant also relied on the Health and Safety At Work Act 1996 but this does not impose a statutory duty on employers enforceable by an action for damages, and the criminal offences it creates are irrelevant.

[30] The deceased received an instruction from a superior officer to take the police vehicle and proceed from Nausori police station with Constable Ali to the police post at Sawani to pick up an off duty policeman and take him to Navuso [Record page 34]. On arrival at Sawani they were asked, not ordered, to drive an army sergeant and three armed soldiers to the Qiolevu Road block. Thus the police officers proceeded from this point with an armed escort. There is no evidence that any of the soldiers could drive the police vehicle, and as Constable Ali [Record pages 34,35] and Acting Superintendent Singh said [Record page 37] the police officers were duty bound to assist the soldiers.

[31] A number of reported cases support the view of the Court of Appeal that Police Authorities may owe a duty of care, direct, or vicarious, to persons, including police officers, who suffer loss or damage as a result of the negligence of the police. In Knightly v. Johns [1981] EWCA Civ 6; [1982] 1 WLR 349 the Court of Appeal held that the Chief Constable of the West Midlands Police was liable for the negligence of a Police Inspector in his control of traffic following an accident in a tunnel as a result of which the plaintiff, a police motor cyclist, was injured.

[32] In Rigby v. Chief Constable of Northamptonshire [1985] 1 WLR 1242 Taylor J found that the defendant was liable for the negligence of a Chief Superintendent in charge of the siege of a gunsmith’s shop that had been broken into by a psychopath who was shooting from the premises. The Chief Superintendent decided that a gas canister should be fired into the premises to subdue the intruder but he failed to ensure that fire fighting equipment was on hand before the canister was fired. The canister started a fire which severely damaged the shop and the shop owner recovered damages from the police. Both cases were cited with approval by Lord Keith in Hill v. Chief Constable of West Yorkshire [1989] AC 57, 59.

[33] In the other case to which we were referred, Costello v Chief Constable of the Northumbria Police [1998] EWCA Civ 3536; [1999] 1 ALL ER 550, the Court of Appeal held the defendant was vicariously liable for the failure of a police officer to go to the assistance of a female colleague who was being assaulted by a woman prisoner.

[34] However, the most relevant case is Hughes v. National Union of Mineworkers [1991] 4 ALL ER 278. The plaintiff, a serving police officer, was required to assist in maintaining order at a colliery where striking miners were picketing working miners who were being escorted to work. The plaintiff was injured when a large number of pickets surged against the police line and he was knocked over. He alleged that the officer in charge deployed the police negligently so as to expose him to an excessive and avoidable risk of injury. May J concluded (page 288):

"... in my judgment, public policy requires that senior police officers should not generally be liable to their subordinates who may be injured by rioters or the like for on the spot operational decisions taken in the course of attempts to control serious public disorder. That in my judgment, should be the general rule in cases of policing serious public disorders."

[35] In this case the only instruction from a superior officer to the deceased was to collect an off duty policeman at Sawani and drive him to Navuso (Record page 34). This did not involve looking for armed insurgents (ditto) and none were encountered on the journey to Sawani. The decision to drive the soldiers to Navuso and then along the Qiolevu Road was made by the deceased.

[36] As the Court of Appeal held [45] the obligations which the police officers accept exposes them to risks in the course of their duty and it would be quite unreasonable to impose liability on the Commissioner because an officer was exposed to such a risk.

[37] We therefore agree with the Court of Appeal that no breach of duty by the Commissioner, direct or vicarious, was established and that it would be contrary to public policy to recognise a duty of care where police are seeking to control public disorder. The claim against the Commissioner therefore fails, and the appeal must be dismissed with costs.

Hon Justice Robert French

Judge of the Supreme Court

Hon Justice Kenneth Handley

Judge of the Supreme Court

Hon Justice David Andrew Ipp

Judge of the Supreme Court

Solicitors:

Maharaj Chandra and Associates, Suva for the Appellant

Office of the Director of Public Prosecutions, Suva for the Respondents

CBV0003U.06S