Court awards security guard $10m after rape

A security guard who was raped while working alone on a night shift at a car lot in Montego Bay, St James has been awarded more than $10 million in damages after the Supreme Court found her former employer, Marksman Limited, negligent in its duty to provide a safe working environment.

In a judgment delivered by Justice Dale Staple, the court held that the company failed to take reasonable steps to protect the employee, identified as A.C., who was stationed alone in a guardhouse at Island Car Rentals Limited on February 5, 2018.

“In my view, the Defendant failed to have any system in place that contemplated the safety of a female employee deployed to a location alone at night. This was a lesson they should have learnt from the Lavern Anderson case, but clearly have not,” the judge said.

Citing the Anderson case, the court noted that Marksman had previously been subject to judicial criticism in an earlier matter involving a lone female security guard who was attacked while on duty.

Staple said it was “baffling” that, despite this history, there remained no adequate policy governing lone worker deployment or the risks associated with female guards working alone at night.

"A security guard is not always required to be a hero or perform heroic duties. He is simply to take reasonable steps, in the circumstances, to secure life and property," the judge noted.

Staple assessed general damages at $10 million, comprising $6.5 million for assault and battery and $3.5 million for pain, suffering and loss of amenities arising from post-traumatic stress disorder (PTSD).

The court also ordered interest on general damages at three per cent per annum from December 20, 2023, to June 16, 2026, and awarded costs to the claimant, to be taxed if not agreed.

The court heard that the claimant was assigned as a last-minute replacement and stationed in a wooden guardhouse beside the property’s main entrance.

The premises were enclosed by a chain-link fence, which the court found provided inadequate protection, while the guardhouse door had no functioning locking mechanism.

Staple found that Marksman failed to implement basic safeguards, including written policies governing lone night-duty assignments, adequate training, and proper safety equipment such as panic buttons or reliable communication systems. 

The judge also pointed to the absence of effective patrol monitoring and said evidence showed there was no real-time supervision of CCTV footage, even where cameras were installed.

He reaffirmed that an employer’s duty to provide a safe system of work is personal and non-delegable and exists even where the job carries inherent risk.

He also found that there was no evidence of adequate improvement in training or supervision systems following the earlier incident.

The court accepted the claimant’s evidence that she was raped after an intruder breached the premises and later fled. While minor inconsistencies were noted in aspects of the incident report, Justice Staple found her account credible.

Medical evidence showed that A.C. suffered significant psychological trauma and was diagnosed with PTSD, requiring ongoing treatment including psychotherapy and medication.

The court also noted that a perpetrator was later identified and brought before the courts, which it said supported the claimant’s credibility. The outcome of that case remains unknown but did not affect the matter.

Marksman, in its defence, argued that the claimant contributed to her injuries by failing to secure the guardhouse. However, the court rejected this defence, finding that the door had no working lock and that the employer had not ensured its maintenance or tested its functionality.

The judge also found no evidence that the claimant failed to remain alert, noting that she had observed suspicious activity and reported it to a supervisor. He accepted that she acted reasonably in the circumstances.

“In my view, the defendant’s failures, as outlined above, resulted in the heightened risk of the incident happening to the claimant and left her exposed to the assault without adequate means to protect herself from the harm” the judge said.

Counsel for the Defendant also heavily emphasised the absence of any signs of trauma on the genitalia of the Claimant; no torn or damaged clothing; or any bodily or semenal fluid,” the judge said.

However, Staple further rejected arguments that the absence of visible physical injuries undermined the claim, stating that victims of rape may respond in different ways, including compliance due to fear or shock. 

Additionally, the guard had testified that the alleged rapist had branded himself one of St James' most wanted and had threatened to kill her. 

In assessing damages for assault and battery, the court noted that although the claimant did not suffer visible physical injuries such as bruises or lacerations, she was subjected to a serious and intrusive violation of her bodily integrity.

Staple described the circumstances as among the most serious forms of assault, justifying the award of $6.5 million.

“In my view, that award ought to be increased to take into account the fact that in this case, the assault was rape. There was the added feature that there was no condom, and the assailant discharged in the claimant.

“The claimant was also forced to perform oral sex and had the same done to her despite her protestations. There can be no greater violation than all of what she went through,” he said.
The court concluded that Marksman’s failures significantly exposed the claimant to risk and materially contributed to the incident. It rejected the submission that the absence of prior similar incidents absolved the company of liability.

Staple said the company’s own experience with a prior attack on a lone guard underscored the foreseeability of harm, adding that greater safeguards ought to have been implemented.

Attorney-at-law Melissa Cunningham Cuff represented the claimant, while Houston Thompson, along with Shanelle Nelson, represented Marksman Limited, instructed by the law firm Nunes, Scholefield, DeLeon & Co.

tanesha.mundle@gleanerjm.com