Maynard v Attorney General and Hodge

• Jurisdiction: Caribbean States
• Court: Eastern Caribbean Supreme Court
• Judge: Mathurin, J.
• Judgment Date: 22 May 2018
• Neutral Citation: AI 2018 HC 6
• Docket Number: Claim Number: AXAHCV2015/0087
• Date: 22 May 2018

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

Mathurin, J.

Claim Number: AXAHCV2015/0087

Between

Mr Rocklyn Maynard

Claimant

and

The Attorney General of Anguilla

1 ^st Defendant

and

Mr Jason Hodge

2 ^nd Defendant

Appearances:

Mr. Devin Hodge for the Claimant.

Mr. John McKendrick QC, Attorney General with him Mr. Ivor Greene for the 1 ^st Defendant.

Tort - Negligence — Vicarious liability — Employer-employee relationship — Whether crown was vicariously liable for actions of 2 ^nd defendant against claimant — Whether wrongful act closely connected with employment — Whether wrongful act was reasonably incidental risk to type of business conducted by 1 ^st defendant — Claim dismissed — Customs Act, s. 132.

1 Mathurin, J.; On 15 ^th September 2015 Mr. Rocklyn Maynard (Mr. Maynard) attended the customs warehouse in Road Bay, Anguilla to clear and retrieve goods he had received from Puerto Rico. Mr. Maynard states that while he was securing his vehicle after having packed his goods, there was a verbal exchange between himself and Mr. Jason Hodge (Mr. Hodge). Mr. Hodge was the customs official who attended to him that day. Mr. Maynard states that he was about to leave the warehouse and was securing his vehicle with his back turned to Mr. Hodge who was at least 30 feet away. He states in his statement to the police shortly after the incident that as he was about to leave the premises he told Mr. Hodge “that he was going to die worse than his mother did. Jason was standing in the doorway at the customs building at the time. I was 60 feet from Jason next to my truck standing. Jason then came towards me, “don't talk about my mother” and he chucked me into the truck.”

2 In his witness statement in these proceedings Mr. Maynard states as follows;

• “19. In my frustration I stated to the Second Defendant that he would die worse than his mother. At the time when I made the statement to the Second Defendant I was in the process of closing the flaps on the truck because the pallet had just been loaded, so my back was turned.

• 20. The Second Defendant asked me what I said to him, so I repeated that he will die worse than his mother. All this time my back remained turned. When I was done closing the truck I turned to enter the truck and observed the Second Defendant approaching me. He then pushed me in the chest with both hands causing me to fall backward impacting the bed of the truck…”

3 Mr. Maynard states that Mr. Hodge's actions caused him to fall backward hitting a stationary truck and then falling onto the ground. Mr. Maynard states, as does the medical evidence, that he suffered a severe back injury with consequential adverse repercussions. On the 8 ^th December 2015, Mr. Maynard filed this claim for damages against the Crown and Mr. Hodge.

4 The parties agree that one of the discrete issues to be determined is whether the Crown should be held vicariously liable for the actions of Mr. Hodge, the said actions having been the cause of the injuries suffered by Mr. Maynard. Mr. Hodge only intends to defend the claim as to the quantum of damages. The Attorney General however contends in his amended defence that in the circumstances as they obtained on that day, Mr. Hodge's actions were outside the scope of his employment as a customs officer and the claim against the Crown, should be dismissed. The parties agreed that by way of written representations to be presented to the court on 20 ^th February 2018, the issue of liability of the Crown would be heard. Counsel for the parties expanded on these submissions at a hearing on that day.

Claimant's Submissions

5 Counsel for the claimant, Mr. Devon Hodge, submits that in cases of intentional wrongs and vicarious liability, heed should be given to the guidance set out in Clinton Bernard v AG of Jamaica [2004] UKPC 18 at paragraphs 18 and 19 where Lord Steyn stated;

“The correct approach is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort, and to ask whether looking at the matter in the round, it is just and reasonable to hold the employers vicariously liable. In deciding this question a relevant factor is the risks to others created by an employer who entrusts duties, tasks and functions to an employee”

6 Counsel submits the following issues for the determination of the court;

• (a) Was the wrongful act so closely connected with his employment that it would be fair and just to hold the employers vicariously liable?

• (b) Can the wrongful act be fairly regarded as a reasonably incidental risk to the type of business carried on by the 1 ^st defendant?

7 Counsel demonstrated the applicability of the close connection test in the case of Mattis v Pollock [2003] 1 WLR 2158. In that case a bouncer (Mr. Cranston) left the premises of employment at a nightclub after a dispute with a patron and returned with a knife that he used to stab the patron's friend Mr. Mattis resulting in serious injuries. The Court of Appeal held the owner of the nightclub (Mr. Pollock) vicariously liable despite the bouncer's intent on revenge, the fact that Mr. Cranston went home to get a knife and the fact that the incident took place 100 feet away from the nightclub, due to the close connection of the tortious act to the bouncer's employment and duties.

8 Paragraph 19 in particular states;

“The essential principle we derive from the reasoning in Lister and Dubai Aluminium is that Mr. Pollock's vicarious liability to Mr. Mattis for Cranston's attack requires a deceptively simple question to be answered. Approaching the matter broadly, was the assault “so closely connected” with what Mr. Pollock authorised or expected of Cranston in the performance of his employment as doorman at his nightclub, that it would be fair and just to conclude that Mr. Pollock is vicariously liable for the damage Mr. Mattis sustained when Crantson stabbed him.”

9 Counsel also submits that the correct approach was stated in paragraphs 27 and 28 of Lister v Hesley Hall Limited [2001] UKHL 22 in that the court has to consider “whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. The facts in that matter were stated by Lord Steyn as follows:

“Between 1979 and 1982 while the appellants were in their early teenage years they attended a school for maladjusted and vulnerable boys which was owned and managed by the respondents. During the course of that period they were the victims of repeated sexual and physical abuse by the warden of a boarding house in which they were resident as students of the school. The warden was employed by the respondents to look after and care for the students resident in the house. The warden was later tried and convicted for a large number of offences against the appellants and other boys. The appellants have claimed damages from the respondents for personal injury. It is not now contended that the respondents had failed to take reasonable care in selecting or supervising the warden. The claims now rest on the basis that the respondents are vicariously liable for the acts of their employee.”

10 Counsel submits that on the facts, the House of Lords held that there was a sufficient connection between the work of a warden who was employed at a boarding school to run the school, organise activities and care for the boys after school and the sexual abuse that he committed, to hold his employer liable. He states that the House of Lords held as relevant that the abuse was committed at the time, premises and during the warden's care of the boys. Counsel added that the time and place at which an intentional wrong is committed will always be relevant but not necessarily conclusive to the issue of vicarious liability.

11 Counsel submits that it is therefore material that the assault by Mr. Hodge took place at a customs port during the hours of operation whilst Mr. Hodge was in customs uniform and executing his duties to the benefit of his employer. Counsel submits that the court ought to weigh heavily the connection between the wrongful act of Mr. Hodge and the duties he was employed to perform, as well as the risks incidental to the type of business that the customs carries on.

12 There is no dispute as to the duties of the customs officer referred to by counsel in the Customs Act and the Warehousing Regulations. In accordance with the restrictions imposed by the Comptroller of Customs, Mr. Maynard was permitted to remove only goods at risk of being destroyed by rodents. Mr. Hodge was required to ensure that Mr. Maynard did not exceed that restriction. Mr. Hodge was required to take account of those goods removed to be able to ascertain any duty payable.

13 It is submitted by counsel for the claimant that Mr. Hodge was obligated as an employee to be present and to supervise the entire process of Mr. Maynard separating and repacking his goods and removing the separated goods from the warehouse and up until Mr. Maynard's departure from the premises.

14 Counsel for Mr. Maynard further submits that customs officers are tasked with the responsibility for and authority to manage trade in and out of the jurisdiction and he asserts that there are reasonably incidental risks to the job of customs officers. Counsel further submits that it is a reasonably incidental risk that persons engaged in trade whether legitimate or illegitimate may be uncooperative, hostile, insulting, insubordinate and even dangerous and so it is expected that customs officers are trained to handle reasonably incidental risks to the type of business carried on. He asserts that Mr. Maynard's frustration and the consequent insult levied by him was not a bizarre occurrence or a far-fetched risk of the job.

15 Counsel submits that prior to the insult the interaction between...