THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Civil Division
COMMONWEALTH OF DOMINICA
Claim No. DOMHCV2018/0064
BETWEEN:
[1] ARCHIPELAGO TRADING LTD
[2] GREENS WHOLESALE & CO. LTD
[3] H.H WILSON & CO. LTD
[4] JOSEPHINE GABRIEL & CO. LTD
[5] L.A DUPIGNY & CO. LTD
[6] PIRATES LTD
Claimants
-and-
[1] THE COMMISSIONER OF POLICE
[2] THE MINISTER OF JUSTICE, IMMIGRATION & NATIONAL
SECURITY
[3] THE ATTORNEY-GENERAL OF THE COMMONWEALTH
OF DOMINICA
Defendants
Before Master Alvin S. Pariagsingh
Appearances: Prof. Leslie Thomas KC leading Noelize Knight – Didier, Joelle Harris and
Indira St. Jean for the Claimants; and
Antony Astaphan SC (abs) leading Dr. David Dorsette, Vanica Sobers –
Joseph Pearlisa Morvan and Kayan Toussaint for the Defendant
——————————
2022: November 10;
2023: January 31
——————————
DECISION
Defendants’ application to strike out
[1] PARIAGSINGH, M: – Before the Court is the Defendants’ application seeking an order
that the Claimants’ statement of case be struck out.1
1 Filed on March 15, 2022
THE APPLICATION:
[2] The application is made pursuant to Part 26 Rule 26.3(1)(b) and (c) of the Civil
Proceedings Rules 20002 as well as under the inherent jurisdiction of the Court.
[3] The Applicants seek, as it relates to the Second and/or Third Defendant only, that the
claim be dismissed as it discloses no reasonable cause of action against them. The
Applicants also seek, as it relates to all Defendants, an order that the claim be struck
out as it discloses no reasonable cause of action and/or it is an abuse of process of the
Court. The Applicants also seek an order that judgment be entered in favour of the
Defendants and costs.
[4] At the commencement of the hearing, it was indicated that the Claimants concede that
that they have no claim for breach of statutory duty. The Claimants contend however,
that they do have a claim in negligence and rely on the same pleadings.
[5] For the purposes of this decision, I would only consider the submissions and arguments
as it relates to the claim in negligence and the alleged breach of a common law duty.
[6] The grounds of the application are that:
1. The Claimants have not pleaded any reasonable cause of action against the
Second and/or Third Defendant.
2. There is no reasonable cause of action pleaded concerning the alleged
common law duty owed to the Claimants by the Defendants or for damages for
the alleged breaches.
2 After referred to as CPR
3. The pleaded case for a common duty of care owed by the Defendants is, in the
premises, substantially, if not solely, on alleged failures to stop violence or
looting of private businesses after hurricane Maria;
4. The common law precludes a claim for damages for an alleged breach of a duty
of care against the Defendants and in particular the First Defendant especially
in operational matters, unless it is pleaded, and it is not, that the Defendants by
their own actions caused, or contributed to the damage and/or the damage was
caused by the persons under the control of the Defendants, and not third parties
or other members of the public;
5. There is no pleaded allegation or case that the Defendants or persons under
their control caused the damage or loss allegedly suffered by the Claimants;
6. Mere omission or failure by the First Defendant and his commanding or other
officers to act in the circumstances of devastation and violence as pleaded by
the Claimants is wholly insufficient to create any duty of care to the Claimants;
7. Public policy, or the law, requires especially after a Hurricane Maria, and the
island wide devastation caused by it, that no private or other duty of care was
owned by the Defendants to the Claimants as individual members of the public.
[7] The application is supported by an affidavit of Daniel Carbon.3 The affidavit is expressed
to be made in support of the Defendants’ application. The affidavits simply says that the
deponent has read the grounds of the application and he was advised by his Attorneys
at Law that the grounds are true.4 The Defendants have filed no affidavit in opposition.
Pereira CJ in Dr. Martin Dider et at v Royal Caribbean Curses Ltd et al 5at paragraph
28 outlined the approach the court ought to take in an application to strike out:
3 Filed on March 15, 2022
4 Paragraph 4 of the Affidavit of Daniel Carbon filed on March 15, 2022.
5 SLUHCVAP2014/0024
‘Therefore, for the strike out procedure, the pleadings alone are examined
and if the court finds that they are untenable as a matter of law a party may have
his/her claim or defence struck out. This does not preclude that party however,
from remedying the faults of their claim or defence and bringing further
legal proceedings in relation to the same dispute. They are perfectly entitled to do
so. The situation is different, however, with the summary judgment procedure
since this procedure gives a judgment on the merits which operates as issue
estoppel. No further litigation on the same issue(s) will be entertained by the court’
emphasis mine.
[8] Accordingly, there was no need for an affidavit in support of the application and
consequently no need to reply. In any event, the affidavit was of no assistance in
resolving the issues to be determined.
THE APPROACH TO STRIKING OUT:
[9] The power to strike out is contained in CPR 26.3 1(b) and (c) which states:
‘26.3(1) In addition to any other power under these Rules, the court may strike out
a statement of case or part of a statement of case if it appears to the court
that –
(a) ………….
(b) the statement of case or the part to be struck out does not
disclose any reasonable ground for bringing or defending the
claim;
(c) the statement of case or the part to be struck out is an abuse of
the process of the court or is likely to obstruct the just
disposal of the proceedings; or …..’
[10]The approach to applications to strike out has been settled in a series of authorities in
this jurisdiction including those set out in the written submissions of both parties. In
general, the court will not strike out a party’s case unless it is clear that the case is
doomed to fail and there is no other alternative that can be used that would lead to the
case being determined on the merits. The court’s approach always favours cases being
determined on its merits whilst not being divorced of the notion of procedural justice and
fairness.
THE TIMING OF THIS APPLICATION:
[11]The statement of claim in this matter was filed on March 20, 2018, five (5) days short of
the fourth year anniversary that this claim has been pending. Pleadings have been
closed since June 28, 2018. The matter is at the stage of being fixed for pre-trial review
all witness statements having been filed.
[12]The Court is compelled to highlight the lateness of this application and the disservice
that does to the Court and the litigants. Nothing is raised in the application that was not
at the disposal of the Defendants four (4) years ago. Instead, the Defendants stood silent
and waited in the curtains until the eve of the matter progressing to trial and in particular
until the Claimants have put their intended evidence before the Court to make this
application.
[13]The lateness of this application interrupts the case flow management and the Court now
has to go back to looking at the pleadings when the parties have put themselves in a
place for trial. Whilst no time is prescribed in the rules for the making of an application
to strike out, it must be that an application with the potential to dispose of a case entirely
ought to be made at the earliest possible opportunity. The Defendants have not made
this application with any promptness having regard to how long they have had this claim
in their possession. In this regard, the lateness of making this application will be taken
into account in treating with the issue of costs, if it arises.
THE STATEMENT OF CLAIM:
[14] In light of the concession of Counsel for the Claimants that the claim for breach of
statutory duty is not being pursed, I will only focus on the relevant parts of the statement
of claim.
[15] In summary, the Claimants are all businesses in close proximity to the Dame Eugenia
Charles Blvd, Rouseau. The First Defendant is the Commissioner of Police who the
Claimants allege commanded and was responsible for the good conduct, control and
discipline of the police force under the general orders of the Minister, the Second
Defendant. The Third Defendant is the Attorney General who is vicariously liable for
the actions of the servants and/or agents of the State pursuant to Section 14 of the State
Proceedings Act.6
[16]The Claimants’ claim is that a general duty of care was owed by the Defendants to
enforce the criminal law both during the passage and for a reasonable period after
hurricane Maria. Their case is that the Defendants negligently breached that duty
resulting in them suffering damages and loss as a result of looting and general
destruction after the hurricane.
[17]Each Claimant has pleaded specified facts in relation to their claim. In relation to the
First Claimant, its case is that on September 20, 2017 its business place was opened
and entered by persons unknown and looted.
[18]The Second Claimant contends that its place of business was flooded by river waters
and from high tides from the sea. Its case is that on September 19 and 20, the business
was broken into and looted.
[19]The Third Claimant contends that following the hurricane its business was broken into
and looted on September 19, 2017. This looting continued and the Third Claimant
closed its operations permanently.
[20]The Fourth Claimant contends that on September 20, 2017 its business place was
broken unto and looted. This continued until September 22, 2017.
[21]The Fifth Claimant contends that on September 19, 2017 after the hurricane, its
premises were looted and this continued.
6 Chapter 7:08 of the Laws of Dominica.
[22]The Sixth Claimant contends that September 19, 2017 its business place was broken
unto and looted.
[23]All the Claimants contend that the looting after the hurricane continued unchecked for a
significant period and was directly caused by the Defendants collective breach of
statutory duty or negligence.
[24] In relation to their assertion of negligence, the Claimants plead that the Defendants
failed to exercise a general duty of care to enforce the criminal law. They also contend
that Defendants failed to reasonably foresee the danger of looting occurring at the
Claimants’ business places; failed to take reasonable steps to prevent the occurrence
of looting at the Claimants’ business places; failed to protect the Claimants’ from loss
and damage after assuming responsibility by issuing assurances upon which the
Claimants’ relied; and failed to have an operational plan and/or an adequate operational
plan in order to execute the said assurances to the Claimants.
[25] In addition, specific allegations are made by each Claimant as to how the duty to act
which they alleged was owed to them was trigged. In particular:
1. The First Claimant pleaded that the looting was reported to the police who were
unwilling and refused to assist.
2. The Second Claimant pleaded that on Tuesday September 19, 2017 to
Wednesday September 20, 2017 police officers were seen armed and walking
within the vicinity of its business place but made no attempts to stop looters. It
is also pleaded that on September 20, 2017 armed police officers were seen
standing near and within the crowd of looters while other looters tossed looted
items from the roof top and the police officers did not stop or arrest the looters,
did not taken the looted items away from the looters or prevent them from going
into the business place. The same complaint of failing to act on September 21,
2017 whist in the vicinity of the business place and seeing the looting taking
place is made. The Second Claimant contends that the police simply stood by
and watched while the looters passed by with the items looted from its business.
The Second Claimant also pleaded that on October 23, 2017 a looter was
apprehended by the Managing Director of the Second Claimant whilst
attempting to steal and this looter was handed over to the police but was
subsequently released by the police as he was a police cadet.
3. The Third Claimant pleaded that on September 19, the police was called, the
looting was reported and their assistance was requested but such assistance
was not forthcoming. Further the Third Claimant contends that on September
20, repeated calls for assistance were made to the police as their business was
being looted. After several calls two (2) armed police officers came to the
premises and looting did in fact stop until the officers left. The Third Claimant
contends that the looting continued unchecked until September 21. It is pleaded
that on Friday September 22 and then on Monday September 26 through to
Wednesday September 28, about 8 to 10 armed police officers were deployed
for a few hours to facilitate the loading of salvaged stock for distribution to the
Red Cross. It is also the Third Claimant’s case that on September 23 and 24
its business was once again burgled as it remained unchecked despite
assurances given that security would be provided under an arrangement with
the Government.
4. The Fourth Claimant pleaded that one or more officers including Inspector
Lincoln Corbette, was present at its business place but failed to stop the looting
and did not make any attempts to take the looted items or to arrest the looters.
It is further pleaded that the police officer(s) facilitated the looting by controlling
the amount of water each person took. It is contended that the police officer(s)
were able to halt the looting in order to load trucks with water for the essential
services by firing shots into the air, and also got some members of the crowd to
assist in loading the truck. It is pleaded that an agreement was entered into
between the said Inspector Lincoln Corbette and the Fourth Claimant to provide
continuous armed police security to the Fourth Claimant’s business place in
exchange for the said water for the essential services. Under this agreement,
the Fourth Claimant was also to provide meals for these police officers however,
such continuous police security was not provided and looters once again broke
into and looted the Fourth Claimant’s business place.
5. The Fifth Claimant pleaded that on Tuesday September 19, 2017, looters
descended on the O.D. Brisbane premises in several hundreds and looters
were allowed to loot and vandalize the buildings and vehicles on the said
premises unchecked and unstopped by the Police for several weeks. It is
further pleaded that armed police officers were at the Rubis gas station in
Rockaway and at no time did these officers or any of them make any attempt to
stop, or arrest any of the looters nor did they make any attempt to confiscate
the looted items from the said looters.
6. The Sixth Claimant pleaded that on Tuesday September 19, the Sixth
Claimant’s manager was able to apprehend and restrain a looter who he caught
exiting the premises. Members of the police force who were in the direct vicinity
and viewed this incident were unwilling and refused to arrest the looter, and
instead caused the said looter to be released without arrest or charge. It is
contended that the looting continued the following day.
[26]The Claimants also each claim a sum representing the loss of their stock, equipment
and hardware as well as their loss of profits.
SUMMARY OF THE DEFENDANTS SUBMISISONS:
[27]The crux of the Defendants’ submission is that the law which is determinative of this
claim is succinctly summarised in Mitchell v Glasgow City Council.7 The Defendants
7 [2009] AC 874 submit that the foreseeability of harm is not of itself enough for the imposition of a duty
of care; the law does not normally impose a positive duty on a person to protect others,
the common law does not impose liability for what, without more, may be called pure
omissions; and the law does not impose a duty to prevent a person from being harmed
by the criminal act of a third party based simply on foreseeability.
[28]The Defendants also submit that in general, public policy mitigates against the
imposition of liability upon the police when they fail to present injury.8 They further submit
that for there to be a cause of action against public authorities in negligence there must
be established a sufficient proximity of relationship between the public body and those
who have suffered injury.9
[29]The Defendant further submitted that there was no duty of care owed to the Claimants
as a matter of law and policy. The law on the duty of care owed to victims of crime and
wrongdoing was definitely laid and is settled. 10 The pleaded case advanced no facts
which establish a duty of care owed and the claim is “plainly just bad in law”.
SUMMARY OF THE CLAIMANTS’ SUBMISSIONS:
[30]The Claimants’ contention is that they have pleaded positive acts of the police which
give rise to a claim in negligence. They make specific reference to Paragraphs 26C to
H of their statement of claim. Their submission is that the pleaded facts are that the
police facilitated the looting. They further submit that there are special circumstances
which if proven will establish that a duty to act existed and was breached.
[31]The Claimants submit that the seminal authority of Hill v Chief Constable of West
Yorkshire11 sets out the principles regarding whether a duty of care is owed by police
8 Costello v Chief Constable of Northumbria [1999] ICR 752
9 Yuen Ken Yeu v Attorney General of Hong King [1988] AC 175 and Hill v Chief Constable of west Yorkshire
[1989] AC 53
10 Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50 applied in Michael v Chief
Constable of South Wales Police [2015] UKSC 2.
11 [1988] 2 All ER 238, to victims of crime. They contend that whilst as a general proposition no duty of care
existed, that is subject to establishing the requisite proximity of relationship between the
parties. The Claimants submit that this case falls squarely within exceptions to the Hill
principle. They submit that the facts pleaded take their claim outside the Hill principle
on three grounds:
1. Assumption of duty of care/ assumption of responsibility given specific
assurances given
2. Wilful acts or omissions of the police
3. Exceptional circumstances and lack of alternative remedy.
[32]Whether the Claimants’ pleaded case puts them within the exception to the Hill principle
the Claimants submit is an issue that can only be resolved at a trial. Further, the
Claimants submit that no issue of public policy or immunity was pleaded by the
Defendants. They further contend that issues of reliance on the representations of the
First and Second Defendants and what was operating in their minds at the time they
were made are not issues for determination at this stage but rather trial.
[33]The Claimants also submit that any issue of immunity generally conferred on police
officers as matter of public policy from actions in negligence involved a balanced
assessment of all public policy considerations. This it is submitted can only be decided
on at a trial when all the facts are known to the Court.12
ANALYSIS:
[34]The central issue for determination on this application is simply whether the Claimants
statement of case discloses grounds for bringing the claim or if the statement of claim is
an abuse of the process of the Court or is likely to obstruct the just disposal of the claim.
12 Swinney v Chief Constable of Northumbria Police Force – 1999 WL 477396
[35]The test to be applied to this type of application was stated by the Court of Appeal in
Baldwin Spencer v the Attorney General of Antigua and Barbuda et al.13 The
remedy of striking out should be granted except in a clear and obvious case where it is
certain that the claim is unsustainable, cannot succeed or in some other way is an abuse
of process. As stated in Operation Dismantle v the Queen14 “… the claim should not
be struck out if there is even a scintilla of a cause of action.”
[36] In this claim the reference to Blackstone’s Civil Practice15 by Edwards JA (as she then
was) in Citco Global Custody NV v Y2K Finance Inc16 to circumstances where the
Court should not strike out a statement of case is of note:
‘…where the argument involves a substantial point of law which does not admit of a
plain and obvious answer; or the law is in a state of development; or where the
strength of the case may not be clear because it has not been fully investigated’
[37] I have considered the test commended by the Defendants which was recently stated by
the Board in Frank & Anor v Attorney General of Antigua and Barbuda17 that is;
whether the claim has a realistic prospect of success. Noteworthy is that Frank was a
constitutional claim which the Board concluded was straightforward as the facts were
not in dispute and the Court below was presented with a pure question of law. That
certainly is not the case here. There is a vast disagreement between the parties on the
law in relation to whether a duty of care was owed by the police in this case.
[38]The Defendants submitted as a general proposition that the Court should hold that as a
matter of law no duty was owed by the police. This proposition is not based in statute
but based on the common law.
[39] I agree with the Counsel for the Claimants that as a general proposition no duty is owed.
This is however subject to exceptions. A review of the following authorities (in
13 Civil Appeal No. 20A of 1997 (Antigua & Barbuda)
14 (1986) LRC (Const) 421
15 2009 (at page 432)
16 Civil Appeal No. 22 of 2009 (BVI)
17 [2022] UKPC 25
chronological order) in my view accords with the submissions of the Claimants. An
exception to the general position is if exceptional circumstances are shown. It is not a
blanket position as contended by Counsel for the Defendants.
[40] In Hill v Chief Constable of West Yorkshire18 it was held that:
“The question of law which is opened up by the case is whether the individual
members of a police force, in the course of carrying out their functions of controlling
and keeping down the incidence of crime, owe a duty of care to individual members
of the public who may suffer injury to person or property through the activities of
criminals, such as to result in liability in damages, on the ground of negligence, to
anyone who suffers such injury by reason of breach of that duty …
“There is no question that a police officer, like anyone else, may be liable in tort to
a person who is injured as a direct result of his acts or omissions. So he may be
liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious
prosecution, and also for negligence. Instances where liability for negligence has
been established are Knightly v. Johns [1982] 1 WLR. 349 and Rigby v. Chief
Constable of Northlamptonshire [1985] 1 WLR. 1242. Further, a police officer may
be guilty of a criminal offence if he willfully fails to perform a duty which he is bound
to perform by common law or by statute: Rec. v. Dytham [1979] Q.B. 722, where a
constable was convicted of wilful neglect of duty because, being present at the
scene of a violent assault resulting in the death of the victim, he had taken no steps
to intervene …
“The common law, while laying upon chief officers of police an obligation to enforce
the law, makes no specific requirements as to the manner in which the obligation is
to be discharged. That is not a situation where there can readily be inferred an
intention of the common law to create a duty towards individual members of the
public.
“The foundation of the duty of care was said to be reasonable foreseeability of harm
to potential future victims if Sutcliffe were not promptly apprehended. Lord Atkin’s
classic propositions in Donoghue v. Stevenson [1932] AC 562. 580 were prayed in
aid. As was Lord Wilberforce’s well-known two stage test of liability in negligence in
Anns [1978] AC 728, 751, 752. It has been said almost too frequently to require
repetition that foreseeability of likely harm is not in itself a sufficient test of liability in
negligence. Some further ingredient is invariably needed to establish the requisite
proximity of relationship between plaintiff and defendant, and all the circumstances
of the case must be carefully considered and analysed in order to ascertain whether
such an ingredient is present. The nature of the ingredient will be found to vary in a
number of different categories of decided cases. In the Anns case there was held to
18 [1988] 2 All ER 238
be sufficient proximity of relationship between the borough and future owners and
occupiers of a particular building the foundations of which it was decided to inspect,
and there was also a close relationship between the borough and the builder who
had constructed the foundations.
“The conclusion must be that although there existed reasonable foreseeability of
likely harm to such as Miss Hill if Sutcliffe were not identified and apprehended,
there is absent from the case any such ingredient or characteristic as led to the
liability of the Home Office in the Dorset Yacht case. Nor is there present any
additional characteristic such as might make up the deficiency. The circumstances
of the case are therefore not capable of establishing a duty of care owed towards
Miss Hill by the West Yorkshire Police.
“That is sufficient for the disposal of the appeal. But in my opinion there is another
reason why an action for damages in negligence should not lie against the police in
circumstances such as those of the present case, and that is public policy”
[41] In Van Colle and another v Chief Constable of Herefordshire19 it was held that:
“it was a core principle of public policy that, in the absence of special
circumstances, the police owed no common law duty of care to protect individuals
from harm caused by criminals since such a duty would encourage defensive
policing and divert manpower and resources from their primary function of
suppressing crime and apprehending criminals in the interest of the community as
a whole; that the public interest was best served by maintaining the full width of the
core principle and an exception which imposed a duty of care in circumstances such
as arose in the claimant’s case, where the police were discharging their general
public duty of law enforcement, could not be accommodated within it; and that,
accordingly, the judge had been correct to strike out the claimant’s action.”
[42] In Michael v Chief Constable of South Wales Police20 it was held that :
” … that the duty of the police for the preservation of the peace was owed to
members of the public at large and did not involve the kind of close or special
relationship necessary for the imposition of a private law duty of care; that it did not
follow from the setting up of a protective system from public resources that if it failed
to achieve its purpose, through organisational defects or fault on the part of an
individual, the public at large should bear the additional burden of compensating a
victim for harm caused by the actions of a third party for whose behaviour the state
was not responsible; that to impose such a duty, which could not be rationally
confined, would be contrary to the ordinary principles of the common law.
19 [2009] 1 AC 225
20 [2015] UKSC 2
[43] In Robinson v Chief Constable of West Yorkshire Police21 it was held that:
” … that the police generally owed a duty of care in accordance with the ordinary
principles of the law of negligence unless statute or the common law provided
otherwise, and there was no general rule that they were not under such a duty
of care when discharging their functions of preventing and investigating
crime”
“68 4 . … The central point is that the law of negligence generally imposes duties
not to cause harm to other people or their property: it does not generally impose
duties to provide them with benefits (including the prevention of harm caused by
other agencies). Duties to provide benefits are, in general, voluntarily undertaken
rather than being imposed by the common law, and are typically within the domain
of contract, promises and trusts rather than tort. It follows from that basic
characteristic of the law of negligence that liability is generally imposed for causing
harm rather than for failing to prevent harm caused by other people or by natural
causes. It is also consistent with that characteristic that the exceptions to the general
non-imposition of liability for omissions include situations where there has been a
voluntary assumption of responsibility to prevent harm (situations which have
sometimes been described as being close or akin to contract), situations where a
person has assumed a status which carries with it a responsibility to prevent harm,
such as being a parent or standing in loco parentis, and situations where the
omission arises in the context of the defendant’s having acted so as to create or
increase a risk of harm.
70 … it follows that there is no general rule that the police are not under any
duty of care when discharging their function of preventing and investigating
crime. They generally owe a duty of care when such a duty arises under
ordinary principles of the law of negligence, unless statute or the common
law provides otherwise. Applying those principles, they may be under a duty of
care to protect an individual from a danger of injury which they have themselves
created, including a danger of injury resulting from human agency, as in the Dorset
Yacht case (1970] AC 1004 and Attorney General of the British Virgin Islands v
Hartwell (2004] 1 WLR 1273. Applying the same principles, however, the police are
not normally under a duty of care to protect individuals from a danger of injury which
they have not themselves created, including injury caused by the conduct of third
parties, in the absence of special circumstances such as an assumption of
responsibility.
21 [2018] UKSC 4
[44] In Tindall v Chief Constable of Thames valley Police22 it was stated:
” …. when considering whether the police are to be taken as having assumed
responsibility to an individual member of the public so as to give rise to a duty to
exercise reasonable care to protect them from harm, I must apply the principles
derived from the decisions of high authority to which I have referred . In particular:
i) Where a statutory authority (including the police) is entrusted with a mere
power it cannot generally be made liable for any damage sustained by a
member of the public by reason of a failure to exercise that power. In
general the duty of a public authority is to avoid causing damage, not to
prevent future damage due to causes for which they were not responsible:
see East Suffolk, Stovin;
ii) If follows that a public authority will not generally be held liable where it
has intervened but has done so ineffectually so that it has failed to confer a
benefit that would have resulted if it had acted competently [emphasis
supplied]: see Capital & Counties, Gorringe, Robinson;
iii) Principle (ii) applies even where it may be said that the public authority’s
intervention involves it taking control of operations: see East Suffolk, Capital
& Counties;
iv) Knowledge of a danger which the public authority has power to address
is not sufficient to give rise to a duty of care to address it effectually or to
prevent harm arising from that danger: see Stovin;
v) Mere arrival of a public authority upon, or presence at, a scene of
potential danger is not sufficient to found a duty of care even if members of
the public have an expectation that the public authority will intervene to
tackle the potential danger: see Capital & Counties, Sandhar;
vi) The fact that a public authority has intervened in the past in a manner
that would confer a benefit on members of the public is not of itself sufficient
to give rise to a duty to act again in the same way (or at all): see Gorringe;
vii) In cases involving the police the courts have consistently drawn the
distinction between merely acting ineffectually (e.g. Ancell, Alexandrou) and
making matters worse (e.g. Rigby, Knightly, Robinson);
viii) The circumstances in which the police will be held to have assumed
responsibility to an individual member of the public to protect them from
harm are limited. It is not sufficient that the police are specifically alerted
22 [2022] EWCA Civ 25
and respond to the risk of damage to identified property (Alexandrou) or
injury to members of the public at large (Ancel/) or to an individual (Michael);
ix) In determining whether a public authority owes a private law duty to an
individual, it is material to ask whether the relationship between the
authority and the individual is any different from the relationship between
the authority and other members of the same class as the individual: see
Gorringe, per Lord Scott.
[45] In Royal Bank of Scotland International Ltd v JP SPC 423 it was stated that:
“82. The Supreme Court has extensively examined the law on the duty of care in
the context of such failures in Michael and N v Poole. In Michael, the deceased had
rung the police to report that her former partner had threatened to return to kill her.
The police delayed in responding to that call and, in the interim, the deceased was
stabbed to death by her former partner. It was held that there was no duty of care
owed by the police to prevent the harm to the deceased. In N v Poole, the claimant
children, along with their mother, were placed by the defendant public authority in
accommodation where they were subjected to harassment and abuse by a
neighbouring family. It was again held that no duty of care was owed by the public
authority to prevent the harm to the children. In both cases it was emphasised that
the common law does not generally impose liability for failure to prevent harm
caused by others. As Lord Toulson expressed it at para 97 in Michael:
“It is one thing to require a person who embarks on action which may harm
others to exercise care. It is another matter to hold a person liable in
damages for failing to prevent harm caused by someone else.”
83. In those cases, therefore, the Supreme Court recognised that for a duty of care
to arise restrictive principles needed to be satisfied. Those principles are, most
importantly and relevantly, that the defendant has some special level of control over
the source of danger or has assumed a responsibility to protect the claimant from
the danger: see Micha at paras 99-100; and N v Poole at para 76.”
[46] In my view the authorities spanning between Hill in 1989 to JP in 2022 states as a
general rule that no common law duty exists unless exceptional circumstances are
shown. These exceptional circumstances are not defined in any exhaustive list. From
these authorities, they can relate to the proximity of the police and the Claimant as well
as any agreements, contracts or assumption of risk.
23 [2022] UKPC 18
[47]The Court accept and agrees with Counsel for the Claimants that the issues of the duty
existing is not settled as the Defendant submits. There are exceptions to the general
rule. This very involved argument on the state of the law alone in my view is sufficient
not to grant this application following the guidance of the Court of Appeal in Citco.
[48]The case of C.O. Williams Construction Ltd v Blackman & Anor 24 reinforces the
positon and approach in Citco. This case concerned an appeal against a decision
striking out the proceedings on the ground that it disclosed no cause of action. In
reversing both courts below it was held that even if the court was of the view that there
was merit in the argument that the “prospect of obtaining effective relief” was doubtful,
the better course is to let the matter go to trial. Evidential analysis is not generally
necessary. This was especially so where difficult and important issues were involved.
The following passages highlight the approach taken by the court:
“It is well settled that proceedings may only be struck out if it is clear that they are
bound to fail….
[…]
In considering an application to strike out it is normally not necessary to look beyond
the pleaded case of the party against whom the order is sought.
[…]
It would be quite inappropriate at this stage for their lordships to comment in detail
on the effect of this evidence. They need say no more than that it is, in their
judgment, sufficient to sustain a prima facie case for impugning the Cabinet’s
decision on one or more of the grounds on which it is attacked under section 4 of
the Administrative Justice Act.
The question whether the appellant has any prospect of obtaining effective relief in
the proceedings is, in their lordships’ judgment, the most difficult question which
arises, although it was not canvassed in the courts below. It is obviously impossible
now, when Rayside has finished or nearly finished the contract works, to put the
clock back and reverse the effect of the Cabinet’s decision. The relief claimed by
the appellant is a declaration that the Cabinet’s decision was invalid and damages.
In these circumstances Mr Newman, for the Attorney-General, forcibly argued: (i)
that the possible grant of a declaration alone would be academic and of no value to
the appellant and could not justify the continuation of the proceedings; (ii) that the
24 (1994) 45 WIR 94
appellant, even if successful in striking down the Cabinet’s decision, has no remedy
in damages at common law; and (iii) that section 5(2)(f) of the Administrative Justice
Act, on its true construction, was only intended to authorise the recovery in judicial
review proceedings of damages otherwise recoverable at common law, not to create
an independent cause of action for damages sustained in consequence of an
administrative malfeasance under section 4.
Their lordships appreciate the force of these arguments and would be included to
accede to the first and second. But the interpretation of section 5 of the
administrative Justice Act raises a question of difficulty and importance which it
would be quite inappropriate for their lordships to determine without the benefit of
any opinion expressed by the courts in Barbados and on an application to strike
out.”
[49] I consider that there are important issues raised in the case at bar and it is prudent to
allow a trail in the public interest.
[50]The next issue to be determined is whether the statement of claim properly pleads any
facts which goes towards establishing any exceptional circumstances.
[51]The Court is satisfied that the pleadings are paragraphs 25 and 26 C to H taken at its
highest to be true, does disclose grounds for bringing of a claim on the basis of a duty
of care existing as an exception to the general rule.
[52]For completeness I will deal with the ground that the Claimants have not pleaded any
reasonable cause of action against the Second and Third Defendants.
[53]The Claimants’ pleading is that the Second Defendant is the Minister responsible for the
police force pursuant to Section 3 (2) of the Police Act25. It is pleaded that the
Commissioner of Police’s command to the force is subject to the general orders of the
Second Defendant. In their defence, the Defendants admit this paragraph but say it is
irrelevant.
25 Chapter 14:01 of the Laws of the Commonwealth of Dominica
[54]The Claimants further pleaded that it was the responsibility of the Government through
the Second Defendant to ensure that the force is adequately manned, armed and
equipped to provide security. The Defendants do not deny this in their defence. Instead,
they say that the imposition of such a responsibility in light of the magnitude of the
hurricane was unreasonable.
[55]Save that the responsibility of the Second Defendant is admitted, no other factual
allegations are made against him.
[56]The Third Defendant was sued pursuant to Section 14 of the State Proceedings Act.26
This section gives the Claimants a statutory right to sue the Attorney General.
[57]The Claimants pleaded case in a nutshell is that a duty of care arose by assumption of
duty, specific assurances given, wilful acts or omissions or exceptional circumstances.
Their factual contention is that the police officers were under the command of the First
Defendant who subject to the general orders of the Second Defendant.
[58]Whilst no robust arguments were made at the hearing regarding striking out the Second
and Third Defendants, although raised as a ground, the Court is of the view that it is not
in the good administration of justice or furtherance of the overriding objective to strike
out any parties at this stage. This is so as:
1. The proceedings have been pending for four (4) years and the parties point was
never raised;
2. The parties including those sought to be removed, have all participated in these
proceedings;
3. The parties including those sought to be removed, have all filed evidence in
these proceedings;
26 Chapter 7:80 of the Laws of the Commonwealth of Dominica
4. The Defendants are represented by the office of the Attorney General and do
not have separate legal representation;
5. The Defendants have filed one joint defence to this claim;
6. There is very little prejudice in the Defendants remaining parties to the claim;
and
7. Based on the pleaded defence, it is unlikely that any personal liability will attach
to the First or Second Defendant personally if the Claimants are successful.
[59]For these reasons, the Defendants’ application to strike out is dismissed.
COSTS:
[60]The general rule is that costs follow the event. There are no reasons to depart from the
general rule. Given the lateness of this application, the Court is not minded to apply
reduction to the costs recoverable by the Claimants on this application. Applications to
strike out ought to be made early or certainly at least as soon as a party feels the
conviction to make them. They ought not to be made on a pleading point after witness
statements are filed. Such a litigation decision will be met with an order for costs to
reflect the Court’s displeasure at the timing that this application was made.
[61]The Defendant must therefore pay the Claimants’ costs of this application to be
assessed by this Court in default of agreement within 28 days from today on the
application of either party.
ORDERS:
[62] In the circumstances, it is hereby ordered that:
1. The Defendants’ application filed on March 15, 2022 is dismissed; and
2. The Defendants shall pay the Claimants’ costs of the application to be assessed
by this Court in default of agreement within 28 days of the today’s date on the
application of either party.
Alvin Shiva Pariagsingh
High Court Master
By the Court,
Registrar
POSTSCRIPT
I would like to place in record my sincerest thanks to Counsel for this assistance in this
matter.