THE government says it will make an ex-gratia payment to a man who was crippled by a policeman’s bullet in 1990, but whose suit for damages was dismissed because of a law that protects the state from prosecution when citizens are injured by rogue cops acting outside of their duties.

According to Jamaica House, Prime Minister P J Patterson said that irrespective of what might be the strict interpretation of the law, the requirements of justice suggest that the person who suffers as a result of an improper act by a police officer should be properly compensated.

“In that regard, the attorney-general, A J Nicholson, has been instructed to bring a submission before Cabinet for consideration, which will allow the government to make such a payment,” said the statement.

The administration’s decision comes almost three months after Appeal Court judges Donald Bingham, Clarence Walker and Seymour Panton, appealed to the government to review the law relating to vicarious liability.

The judges made the plea after they reluctantly overturned a Supreme Court ruling to compensate 32 year-old Clinton Bernard, who was shot and crippled by Constable Paul Morgan outside the Central Sorting Office (CSO) on South Camp Road on February 11, 1990.

“That I find it necessary to express myself in such extreme undertones is due in no small measure to the state of the law as it relates to vicarious liability which, on the uncontroverted facts in this case, now appears to be occurring with the most alarming regularity and cries out for justice to be done,” Justice Bingham said.

The law forced the judges to overturn Justice Zaila McCalla’s ruling in 2000 that the Attorney-General’s Office should pay Bernard $2.5 million.

Bernard, who eventually had to give up his job as a lithographic printer, had gone to the CSO with his mother to use a public telephone. They took their place in a line of about 15 persons. When it came Bernard’s turn to use the telephone, Morgan came on the scene and demanded to use the phone before him. Bernard refused, telling Morgan to join the line and wait like everyone else.

But Morgan, who is quoted in the judgement as saying “Bwoy, me naw join no line, give me the phone”, shoved and shot Bernard. The cop subsequently made a report resulting in Bernard being arrested and charged with assaulting a police officer. The charges were eventually dropped and Bernard filed a suit seeking compensation.

Morgan was dismissed from the constabulary the following month for being absent from the job for more than 48 hours. He has since left the island and cannot be found.

The Appeal Court judges, who pointed out that as a matter of law the state was not liable to pay Bernard, suggested that the parliament take another look at the law with a view to ensuring that citizens like Bernard get justice.

“Such a cry can only be answered by the state instituting some measure of reform aimed at assisting the innocent victims of the barbarous conduct of some agents of the state,” Justice Bingham said.