One love, Donna?

Anybody wondering whether the Privy Council should continue as Jamaica's final court should study the story of the beautiful and talented Donna Engerbretson.

Donna was a young beautician pregnant with her first child who, 20-odd years ago, answered our tourism advertisements touting an idyllic Jamaican vacation.

"One love, one heart

Let's get together and feel all right."

She believed Bob. Instead, her experience was terrifying. Ocho Rios Constable Errol Thompson, on special duty to protect tourists from drug pimps and touts, had instead become a preferred customer. Known to hotel security, he gained entry to the ladies' room where he accosted, robbed and brutally assaulted Donna. In the vicious attack, Constable Thompson used his fully loaded police service revolver. He also shot and injured a hotel security guard who had come to Donna's assistance. Donna sustained severe injuries to her dominant hand, resulting in significant disabilities.

Constable Thompson spent several years in prison. Donna began a long, painful medical recovery and an even longer, more painful legal process to obtain compensation from the Jamaican Government. She never flinched. Despite her trauma, she returned to Jamaica for the trial. She also brought carton boxes of toys and spent a day at the Maxfield Park Children's Home distributing the toys and playing with the children. I repeat: a beautiful girl. Inside and out.

Her injuries left her unable to work as a beautician, so she retrained and retooled herself, becoming new and improved as a nuclear power plant technician. At trial, the Government defended her claim on the basis:

"... The acts complained of were not done by the Constable Thompson in the course of his employment ... and were wholly unauthorised by the Crown."

Wholly unauthorised? He was on 'special duty' at the hotel. He was carrying a police service revolver which he used to brutalise Donna. He gained access to the ladies' room because of the guard's familiarity with him as a policeman. The trial judge awarded her record damages, reasoning:

"The evidence of the defendant, Thompson, as to the nature of his role on the night in question ... can be regarded as so closely connected with the events which followed in the ladies' room as to lead me to regard the event as being ... an unauthorised mode of doing something which [he] in his capacity as a police constable was authorised to do. His acts, therefore, were such for which the Crown, as his employer, ... was liable."

Legal nightmare

Thus Donna's legal nightmare began. The Government appealed. The Court of Appeal overturned her judgment. Delivering the lead judgment, Forte J.A. propounded that the result would mean "chaos" if, in situations where the specific acts were unauthorised, Government was to be found liable.

"Hear the children crying (one love)

Hear the children crying (one heart)

Sayin' give thanks and praise to the Lord

and I will feel all right

Sayin' let's get together and feel all right."

No one heard Donna's cry. She obtained leave to appeal to the Privy Council but couldn't afford the upfront fee quoted by a British solicitor. Jamaican lawyers weren't permitted to file papers in this Jamaican final court but could appear as counsel if granted a visa. Despite pleas to the attorney general, the solicitor general and the prime minister, no assistance to pay the English solicitor's fees came. To this day Donna has not received one penny in compensation for her injuries, medical expenses or other losses.

Years later, Clinton Bernard, a Jamaican, was making a call on a public telephone when Constable Paul Morgan demanded the phone. Bernard declined and was beaten, shot in the head, arrested and accused of assault. This one made it to the Privy Council, which opined:

"The correct approach is to concentrate on the ... closeness of the connection between the nature of the employment and the particular tort, and to ask whether ... it's just and reasonable to hold the employer vicariously liable. Notwithstanding that Constable Morgan's act of shooting was ... unlawful, if the wrongful conduct is so connected with [authorised acts], the employer can still be made vicariously liable for the tort committed by the employee."

The Engerbretson decision was overruled. Bernard was compensated. A final court of appeal, illusory for Donna, existed for Clinton Bernard. Isn't it time we let go of this illusion and embrace a final court of appeal accessible for all litigants at a reasonable cost?

And an honourable nation would now compensate Donna Engebretson, however belatedly, with the full amount of the original judgment in today's money.

Peace and love.

Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.