Spl. Cpl. Aggrey Crooks and Another v Jennifer Ebanks
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hutton |
| Judgment Date | 30 March 1999 |
| Judgment citation (vLex) | [1999] UKPC J0324-2 |
| Date | 30 March 1999 |
| Court | Privy Council |
| Docket Number | Appeal No. 32 of 1997 |
[1999] UKPC J0324-2
Privy Council
Present at the hearing:-
Lord Slynn of Hadley
Lord Steyn
Lord Clyde
Lord Hutton
Sir Andrew Leggatt
[Delivered by Lord Hutton]
On 24th March 1999 their Lordships agreed humbly to advise Her Majesty that the appeal should be dismissed and that they would deliver their reasons later. This they now do.
On the morning of 28th September 1991 a Special Corporal in the police force, Aggrey Crooks, was on duty in plain clothes in Coronation Market, Kingston, armed with a revolver. He saw a robber seize a gold chain from another man and run off. Corporal Crooks drew his revolver and pursued the robber. During the chase Corporal Crooks tripped over rubbish lying on the ground and fell, and the revolver fell from his hand and went off discharging one round. Most unfortunately, the bullet struck Mrs. Jennifer Ebanks, who was shopping in the market, and she sustained a wound to her head with resultant serious brain damage.
Mrs. Ebanks commenced proceedings in the Supreme Court of Jamaica against Corporal Crooks and the Attorney-General. The statement of claim contained the following paragraphs:-
"2. That the First Defendant was at all material times acting in the performance of his duties as the servant and or agent of the Second Defendant.
3. That the liability of the Second Defendant arises by virtue of the Crown Proceedings Act in that the First Defendant is a Special Corporal in the Island Constabulary Force which falls under the Jurisdiction of the Ministry of National Security and Justice which is a Department of the Government of Jamaica.
4. That on the 28th of September, 1991, at approximately 11.00 a.m. the First Defendant wrongfully and negligently shot the Plaintiff in the Head, while she stood in a crowd at the Coronation Market in the parish of Kingston.
5. That as a result of the aforesaid acts the Plaintiff has suffered severe head injuries, neurological damage, has lost materially the ability to support herself, has suffered loss and damage and has been put to expense."
Paragraphs 3 and 4 of the Defence were as follows:-
"3. Save that it is admitted that the Plaintiff was shot on the 28th day of September, 1991 at the Coronation Market paragraph 4 of the Statement of Claim is denied. The Second Defendant will contend that on the date and place aforementioned the First Defendant while in the process of giving chase to an alleged robber, tripped over some rubbish in the market and fell face down. On falling one shot went off from his firearm and the Plaintiff was hit.
4. Paragraph 5 of the Statement of Claim is denied for reasons aforesaid."
However at the trial the defendants were given leave to amend the Defence by adding a plea under section 33 of the Constabulary Force Act 1935, and paragraph 4 was amended to plead:-
"Paragraph 5 of the Statement of Claim is denied for reasons aforesaid. Further that the Writ of Summons and/or Statement of Claim discloses no cause of action against the Defendants by virtue of Section 33 of the Constabulary Force Act."
Section 33 of the Constabulary Force Act 1935 provides:-
"Every action to be brought against any Constable for any act done by him in the execution of his office, shall be an action on the case as for a tort; and in the declaration it shall be expressly alleged that such act was done either maliciously or without reasonable or probable cause; and if at the trial of any such action the plaintiff shall fail to prove such allegation he shall be non-suited or a verdict shall be given for the defendant."
At the trial Theobalds J. held in a judgment, of which there is only a short note, that section 33 applied to Mrs. Ebanks' action and dismissed her claim on the ground that she had failed to plead and prove that the act done by Corporal Crooks was done "either maliciously or without reasonable or probable cause".
In the Court of Appeal, Carey and Forte JJ.A., with Patterson J.A. dissenting, allowed Mrs. Ebanks' appeal and ordered the case to be remitted to be tried on its merits. The judgments in the Court of Appeal contained a helpful discussion of the historical background to section 33 of the Constabulary Force Act and of the nature of an action on the case. Carey and Forte JJ.A. decided, in essence, that the section related only to a direct act by a police officer against another person in the execution of his office and that as an action on the case had been the only appropriate remedy under the common law for an indirect act the section was not intended to apply to such an act. Carey J.A., referring to the judgment of Theobalds J., also stated:-
"The effect of this judgment is that in actions for negligence against police officers, a plaintiff would be obliged to plead and prove that the 'act' i.e. negligence was done maliciously or without reasonable or probable cause. I must confess that I would entertain considerable difficulty in conceiving of the possibility of such proof for I...
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Cases
...163JP408513CPSv Jowle (1999) 163 JP 85 305ClarkevKato[1998] I WLR 1647 148Colesv East Penwith JJ (1998) 162 JP687 104Crooksv Ebanks [1999] 1 WLR 1287 580Cutterv EagleStar InsuranceCo.Ltd [1998]I WLR 1647 148DPPv Armstrong-Braun [1999] 163 JP271 402DPPv Barber (1999) 163 JP457527DPPvJackson ......
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Cases
...163JP408513CPSv Jowle (1999) 163 JP 85 305ClarkevKato[1998] I WLR 1647 148Colesv East Penwith JJ (1998) 162 JP687 104Crooksv Ebanks [1999] 1 WLR 1287 580Cutterv EagleStar InsuranceCo.Ltd [1998]I WLR 1647 148DPPv Armstrong-Braun [1999] 163 JP271 402DPPv Barber (1999) 163 JP457527DPPvJackson ......