Attorney General of the British Virgin Islands v Hartwell
| Jurisdiction | UK Non-devolved |
| Judge | Lord Nicholls of Birkenhead |
| Judgment Date | 23 February 2004 |
| Neutral Citation | [2004] UKPC 12 |
| Court | Privy Council |
| Docket Number | Appeal No. 70 of 2002 |
| Date | 23 February 2004 |
[2004] UKPC 12
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Privy Council
[Delivered by Lord Nicholls of Birkenhead]
On 2 February 1994 Police Constable Kelvin Laurent was the sole police officer stationed on the island of Jost Van Dyke in the British Virgin Islands. It was the last day of his three day tour of duty on the island. Jost Van Dyke is a small island with a population of about 135 people. Laurent was still on probation. He was subject to daily supervisory visits by a police sergeant from the West End police station on the nearby larger island of Tortola.
As the officer in charge of the Jost Van Dyke police substation PC Laurent had a key to the substation's strongbox. Kept in this metal box were a .38 calibre service revolver and ammunition. The Royal Virgin Islands Police Force is not an armed force. Police officers do not normally carry arms. Guns are kept in police stations and only issued to police officers when needed.
During the evening of 2 February 1994 PC Laurent abandoned his post. He left the island, taking with him the police revolver and ammunition. He went five miles by boat to West End, Tortola. He then travelled nine miles by road across Tortola to Road Town and from there 13 miles by boat to the island of Virgin Gorda. Presumably he was not wearing his police uniform.
PC Laurent next made his way to the Bath & Turtle bar and restaurant at The Valley where his partner, or former partner, and mother of his two children, Lucianne Lafond worked as a waitress. The bar was busy and full of local residents and tourists. It was a popular evening, with a band playing. At about 10.30 pm Laurent entered the bar in search of Ms Lafond. He wanted to see if she had anyone with her. In the bar was Hickey Vanterpool who, so it was said, was associating with Ms Lafond. Without further ado and without any warning Laurent fired four shots with his police service revolver. He was, apparently, intent on maiming Mr Vanterpool and, possibly, Ms Lafond herself. Two of the shots caused minor injuries to Ms Lafond and a tourist. A further shot struck and caused serious injuries to Craig Hartwell, a customer at the pub, who was standing near the doorway. Mr Hartwell was a British resident visiting the island.
Laurent was prosecuted and pleaded guilty to charges of unlawfully and maliciously wounding Mr Hartwell and Ms Lafond and having a firearm with intent to do grievous bodily harm. He was sentenced to five years' imprisonment and dismissed from the police force.
Mr Hartwell then brought these civil proceedings against Laurent and the Attorney General as the representative of the Government of the British Virgin Islands. The claim was for damages. It is common ground that as a police constable PC Laurent was an employee of the Government. Judgment in default of appearance was entered against Laurent. On 21 November 2000 Georges J dismissed the action against the Attorney General. On 17 September 2001 the Court of Appeal, comprising Byron CJ and Singh and Redhead JJA, allowed an appeal by Mr Hartwell and gave judgment in his favour for damages to be assessed. The Attorney General appealed against that decision to your Lordships' Board.
PC Laurent's police career
PC Laurent's career as a police officer was short. He was appointed a police constable on 2 July 1992 subject to satisfactory completion of two years' probationary service. He was then 26 years old. He underwent five months' training at the regional police training centre in Barbados. He performed satisfactorily. His training included use of a .38 revolver. During his period of training he committed a number of misdemeanours such as being improperly turned out, disobedience to orders, malingering, absent without leave, and stating a falsehood. In the context in which they occurred these transgressions were minor. Laurent's overall performance was well regarded by the commandant: "quite commendable … He has the potential to develop into a useful police officer".
After completing his training Laurent had postings at Road Town, Tortola, and at Virgin Gorda. In September and again in November 1993 he was warned about his conduct, once concerning absences from duty and once over telling a falsehood. In his annual report in December 1993 PC Laurent received good or average grades. The personal assessment of the Commissioner of Police, Commissioner Malone QPM, was that PC Laurent was well above average. The commissioner considered Laurent had extremely good promise and was "certainly" one of the persons in the force who could reach senior rank quickly.
The threat incident
On 16 January 1994 there occurred the first of two events of prime importance. On that day, as recorded in the Virgin Gorda police station diary, Murphy Flavien, who lived at The Valley, Virgin Gorda, came to the station and complained about the conduct of PC Laurent. Flavien complained that Laurent had assaulted him with an eight inch blade white-handled knife. Laurent had threatened he would kill "the mother's cunt" the next time he, Laurent, met Flavien at Ms Lafond's apartment. Flavien requested police assistance.
PC Joseph and another police constable went to Ms Lafond's apartment and interviewed PC Laurent. Laurent said Flavien was having an intimate relationship with Lucianne Lafond but denied he had threatened Flavien. Laurent's account of the incident was that he was in Ms Lafond's apartment, for whose rent he was responsible, peeling an orange with a knife when Flavien came into the apartment with Laurent's two young children. Laurent had told Flavien to leave at once, which Flavien did, and not return.
PC Joseph told Laurent that if there were problems in his relationship with his girl friend he should handle them in a more professional way. PC Laurent was warned about his behaviour. The entry in the Virgin Gorda station diary recorded that the inspector, Inspector Pickering, was to be informed.
The White Bay incident
The second incident occurred two weeks later on the morning of 2 February 1994. It was on the evening of this day that the shooting took place at Virgin Gorda. On this day, as already noted, PC Laurent was stationed on Jost Van Dyke. During the morning Sergeant Dean Fahie made a routine supervisory visit to Jost Van Dyke from Tortola. He met Laurent, who said all was quiet. Sgt Fahie then told Laurent that he, Fahie, had received information that Laurent had been seen walking in the neighbourhood with a gun at his waist. Laurent's explanation was that during the night he had received a call from White Bay, a small cay on Jost Van Dyke, that an armed man was in the area. This was why he, Laurent, had gone out armed with his gun.
Sergeant Fahie was satisfied with this explanation. He told Laurent that in future he should not take the gun without Fahie's permission. Laurent accepted this. When this conversation took place Laurent had not entered a report of his night call in the substation diary. He should have already done this. He told Sgt Fahie he was about to do so.
Vicarious liability
The immediate cause of Mr Hartwell's injuries was the deliberate, reckless act of Laurent firing his revolver in the crowded bar. Laurent was consumed by anger and jealousy at the sight of Ms Lafond in company with Mr Vanterpool on the fateful evening. He fired shots at one or other or both of them. So this is not a case where a police officer used a service revolver incompetently or ill-advisedly in furtherance of police duties. Laurent used a service revolver, to which he had access for police purposes, in pursuit of his own misguided personal aims.
Mr Hartwell's claim is that, nonetheless, the Government of the British Virgin Islands is liable in law for the consequences of PC Laurent's wrongful acts. There are many circumstances where one person may be liable for a wrong deliberately committed by another. Foremost among such instances are those giving rise to "vicarious" liability of an employer for acts done by an employee in the course of his employment. Mr Hartwell has advanced a case based on the Government's vicarious liability as employer for acts done by Laurent as a police officer.
This is not Mr Hartwell's primary case, but it will be convenient to mention it first as the outcome of this claim is clear cut. The applicable test is whether PC Laurent's wrongful use of the gun was so closely connected with acts he was authorised to do that, for the purposes of liability of the Government as his employer, his wrongful use may fairly and properly be regarded as made by him while acting in the ordinary course of his employment as a police officer: see Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215, 230, 245, paras 28, 69, and Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366, 377, para 23,. The connecting factors relied upon as satisfying this test are that Laurent was a police constable on duty at the time of the shooting (working his three day shift on Jost Van Dyke), that his jurisdiction extended to Virgin Gorda, and that before leaving Jost Van Dyke he had improperly helped himself to the police revolver kept in the substation on that island.
These factors fall short of satisfying the applicable test. From first to last, from deciding to leave the island of Jost Van Dyke to his use of the firearm in the bar of the Bath & Turtle, Laurent's activities had nothing whatever to do with any police duties, either actually or ostensibly. Laurent deliberately and consciously abandoned his post and his duties. He had no duties beyond the...
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