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23rd Feb 2004
The Attorney General of the British Virgin Islands (BVI) appealed from the decision of the BVI Court of Appeal that the BVI government was liable in damages to a British tourist (H) who was shot and wounded by a BVI policeman (L) who had abandoned his post taking with him a police revolver and ammunition to settle a personal domestic dispute. L was the sole police officer stationed on the island of Jost Van Dyke and was on probation. As the officer in charge of the substation L had access to a service revolver and ammunition. On the last evening of his tour of duty on the island L abandoned his post taking the revolver and ammunition with him and travelled to another island where his former partner worked in a bar as a waitress. At the bar he opened fire without warning. H was seriously injured. L pleaded guilty to charges of unlawfully and maliciously wounding H and having a firearm with intent to do grievous bodily harm. H brought civil proceedings against L and the Attorney General as the representative of the BVI government. The judge dismissed the action against the Attorney General. The BVI Court of Appeal allowed an appeal and gave judgment for H. The Attorney General submitted that the BVI government owed no duty of care to H in respect of the persons to whom police entrusted firearms as there was no sufficiently proximate relationship between the police authorities and H.
(1) The government was not vicariously liable for L's actions. L was "on a frolic of his own" having deliberately and consciously abandoned his post and his duties. L's wrongful use of the gun was not 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 could be regarded as made by him in the ordinary course of his employment. (2) The Court of Appeal was right to find the government liable on the basis that the police authorities were negligent in permitting L to have access to the revolver kept at the substation. The police authorities knew or ought to have known that L was not a fit and proper person to be entrusted with a gun because, until his domestic problems were resolved, he was volatile and unstable. L's deliberate, wrongful conduct did not relieve the government of liability as an intervening event. The case was not one of omission because the alleged duty of care related to entrusting L with access to the gun. The standard of diligence expected of a reasonable person when entrusting another with a gun was high. The police plainly owed a duty to the public at large to take reasonable care to see that police officers to whom they entrusted weapons were suitable. The wide reach of the duty was proportionate to the gravity of the risks. It was reasonably foreseeable that someone like L might take and use the weapon for his own purposes. The police owed a duty of care to H in respect of damage arising in the way it did. Given L's previous history the police authorities failed to exercise the degree of care the situation demanded and were in breach of duty.
The police authorities of the British Virgin Islands were negligent in entrusting a probationary police officer with a hand gun which he fired, inadvertently wounding a British tourist.
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