Supreme Court rules that trespassers have rights too

A man who trespassed on a property and was shot in the head by a security guard has been awarded $2 million with interest by the Supreme Court, which has ruled that a trespasser is entitled to protection from reckless acts.

In the ruling handed down last month, the Supreme Court ordered the security firm Marksman to pay David Humphrey, who was shot in the back of the head by one of its security guards on November 22, 2003.

Humphrey and his friends had trespassed on the Carib Cement Company premises in Rockfort, St Andrew, to play football.

Luther Lewis, a security guard employed to Marksman, ordered them off the premises.

Humphrey said they obeyed and while they were walking away, he heard an explosion before feeling a burning sensation to the back of his head with blood flowing from the area. He lost consciousness and woke up in the Kingston Public Hospital where he was admitted for 13 days.

Represented by attorney-at-law Garth Lyttle, Humphrey sued Lewis, Marksman and the cement company to recover damages for negligence.

Lewis, a licensed firearm holder, in his defence, said on the day of the incident he saw a group of men, some armed with machetes, approaching the guardhouse. Humphrey was among the group.

He said he told the men that they were trespassing and ordered them to leave the premises, and they agreed to leave. When they reached the entrance of the premises, some of the men began chopping at a conveyor belt and electric wires.

Lewis said he fired his shotgun in the air, "to have them desist from their act of vandalism".

He told the court that the police, who were called, took away three men, two machetes and a wheelbarrow. He said he subsequently learned that someone might have been shot. He searched for the person but did not find him.

Arising from the incident, Lewis was convicted of illegal possession of firearm and shooting with intent and was put on probation for three years.

Attorneys-at-law Emile Leiba and Jonathan Morgan, who represented the Cement Company, argued that the claim against it should be dismissed because Lewis was not its employee and Marksman was contracted to provide security services at its premises.

Supreme Court judge Marcia Dunbar-Green agreed with this submission and dismissed the claim against the cement company, while ordering Marksman to pay the legal costs for the cement company and Humphrey.

In ruling in favour of Humphrey, the judge said she found that he was a trespasser but she was not convinced by Lewis as to what led to the discharge of his shotgun.

Dunbar-Green found that there was no supporting evidence of any damage to property and no indication of anyone being prosecuted for the alleged actions of the men. She said she did not believe Lewis that Humphrey was one of the men on the conveyor belt.

The judge stressed that if Humphrey was at the conveyor belt, Lewis would have seen that he was injured.

According to Dunbar-Green, there was a duty to a trespasser not to harm him by any intentional acts or by doing acts in reckless disregard for his safety.

However, the judge found that there was no evidence to sustain an intentional infliction of the injury. The next question for the judge's consideration was whether Lewis acted in reckless disregard for Humphrey's safety, and Dunbar-Green found he was reckless.

"As a trained user of a shotgun, the first defendant ought to have known that the angling of his weapon was an important consideration, if he intended to discharge it in proximity to the trespasser."

Dunbar-Green said Humphrey had established his claim in negligence and said: "In my view, there was no evidence that this incident was one over which the first defendant had no control and the effect of which could not have been avoided by the greatest care and skill."

The judge found Lewis liable in damages for negligence and Marksman vicariously liable for Lewis' negligence.

In making the award, the judge said that from the medical evidence, Humphrey had made excellent recovery from the injury but for a scar to the occipital nerve of the scalp which causes him to experience headaches and neuropathic pains in the territory of distribution of the nerve.

Humphrey was also seeking $3 million in damages for handicap on the labour market, but the judge upheld submissions from attorneys-at-law John Givans and Lori-Ann Givans, who represented Lewis and Marksman, that there was no evidence to support that award.