Hon. Andrew Fahie, Representative of the First District

Photo Credit: BVI Platinum News

Hon. Andrew Fahie, Representative of the First District

Photo Credit: BVI Platinum News

A High Court Judge has ruled against First District Representative, Hon. Andrew Fahie and Petra Benjamin in a private claim brought against the National Bank of the Virgin Islands following an armed robbery in 2007.

High Court Judge Viki Ann Ellis delivered judgement in favour of the bank and ordered that Hon. Fahie and Benjamin pay the defendant's costs in the sum of $7,500.

According to the statement of claim filed in 2008, on August 15, 2007 the claimants were at the bank conducting various banking transactions when three masked men wielding guns entered the bank and began demanding money from the bank staff.

According to court documents, during the course of the robbery, the claimants were injured by a ricochet bullet fired from the gun of one of the robbers and as a result, sustained injuries, loss and damages.

Both claimants had accused the bank of failing to take any or any reasonable care to ensure that they would be reasonably safe in visiting its premises to transact business.

Additionally, the claimants had accused the bank of failing to provide adequate security personnel on the premises, failing to provide adequately trained security personnel on the premises and failing to provide armed security personnel on the premises capable of dealing with a robbery and other criminal activities at the bank, particularly given the recent spate of robberies in the Territory.

Hon. Fahie and Benjamin claimed general damages, interest at such rate and for such period as the court deemed just, cost and other relief. Additionally, Hon. Fahie claimed special damages in the sum of $5,080, while Benjamin sought special damages in the sum of $1,662.16.

The Judge found that the decisive factor in the determination of the claim is the burden and the standard of proof. Further, the legal and evidential burden rests on the claimants, who must satisfy the court on a balance of probabilities of the merits of the case.

In her judgement, the Judge pointed out that while there can be no doubt that the claimants sustained injuries during the course of the robbery, they failed to prove on a balance of probabilities that a negligent breach of the bank in fact resulted in the injuries.

The court accepted that where banking businesses cater to the public, they have a duty to protect invitees when they know or have reason to know that criminal acts have occurred or are likely to occur.

The Judge stated that in assessing the bank's culpability, the court must consider the evidence of its knowledge of prior criminal incidents.

Justice Vicki Ann Ellis pointed out that based on the facts presented in the case, the court cannot conclude as a matter of law that the intervening criminal act in the case - the robbery of the bank by three masked men - was a foreseeable consequence of the alleged breach of its duty to protect the claimants.

According to the Judge, the claimants also did not satisfy the court that had the bank taken the purported precautionary measures, that this would have averted their injuries and loss.

The Judge noted that the court was also persuaded that stationing an armed guard at the defendant's premises would not have been possible. She pointed out that even if the court accepted that it would have been prudent for the bank to employ two unarmed guards at its premises, the court is not satisfied on a balance of probabilities that this would have made any real difference against three armed criminals' intent on their chosen illegal enterprise.

As it relates to injuries, Hon. Fahie claimed to have suffered a fracture of the left lateral malleolus (outside bone of the ankle joint), difficulty in mobility, severe pain in left ankle, difficulty in sleeping because of nightmares relating to the incident and difficulty in perfroming daily tasks.

The former Education Minister cited that his medical expenses were in the sum of $5,086.

Benjamin claimed to have suffered a fracture of one of the phalanx of the fourth toe, difficulty in mobility, difficulty sleeping because of nightmares relating to the incident, severe pain in the left foot and difficulty in performing daily tasks.

She claimed particular damages for medical expenses in the sum of $962.16 and payment of housekeeper/babysitter for 10 days of $700.

The claimants were represented by Mr. Terrence B. Neale of Mc W Todman and Co, while the bank was represented by Mr. Paul Webster, QC of O'Neal Webster.