Airlift Handlers Ltd v The Administrator General for Jamaica
| Jurisdiction | Jamaica |
| Judge | Simmons JA |
| Judgment Date | 15 June 2023 |
| Neutral Citation | JM 2023 CA 80 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2022CV00106 |
| Court | Court of Appeal (Jamaica) |
and
[2023] JMCA App 20
Simmons JA
SUPREME COURT CIVIL APPEAL NO COA2022CV00106
APPLICATION NO COA2023APP00026
IN THE COURT OF APPEAL
Miss Catherine Minto instructed by Nunes Scholefield DeLeon & Co for the applicants
Ms Jacqueline Cummings instructed by Archer Cummings & Co for the respondent
This is an application for an order for security for costs by Airlift Handlers Limited and Michael Angelo Daley (‘the applicants’). The application is supported by the affidavit of Catherine Minto sworn to on 26 January 2023. The orders sought are as follows:
“1. That the [Administrator General] be ordered to give security for Airlift Handlers costs of the appeal in the amount of $3,000,000.00 within 30 days of the date hereof.
2. That the [Administrator General] pays this sum of $3,000,000.00 into an interest bearing account in the joint names of the Attorneys-at-Law for the respective parties at a financial institution to be agreed upon by the parties within 7 days of the date of the order.
3. If the security for costs is not paid within 30 days as provided by the order then the appeal shall stand struck out with costs to [Airlift Handlers Limited].
4. Costs of the application to be taxed if not agreed.”
The grounds on which the applicants rely are as set out below:
“1. Pursuant to Part 2.11 (2) and 2.12 of the Court of Appeal Rules.
2. There was no delay on the part of [Airlift Handlers Limited] in applying for security for costs, as:
(a) A written request has been made for security of costs. And [sic] the [Administrator General for Jamaica] has indicated they have no funds to pay Costs.
(b) That accordingly, if the Appeal fails, there is no likelihood that [the applicants] will recover the Costs of the Appeal.
(c) This is an Appeal where the [Administrator General for Jamaica] had no witness as to negligence before the Court, and sought to rely on Res Ipsa, based on the bare evidence that Weston Wilson was a passenger in a vehicle. That was all the evidence advanced by the [Administrator General for Jamaica].
(d) No time period has been set down in the Rules for filing an Application for Security for Costs
(e) All applications ought properly to be made at a Case Management Conference and no Case Management Conference date has been scheduled in this matter.
(f) No appeal date has been scheduled in this matter.
3. The Application for Security for Costs is necessary.”
The application was opposed by the Administrator General for Jamaica (‘the Administrator General’) who relied on the affidavit of Geraldine Bradford sworn to on 27 March 2023 and the further affidavit of Geraldine Bradford sworn to on 29 May 2023.
On 5 October 2005, Mr Weston Wilson, an employee of the 1st respondent, Airlift Handlers Limited (‘Airlift Handlers’), was travelling in a staff bus en route to his home. The bus was owned by Airlift Handlers and was being driven by Michael Angelo Daley, the 2nd respondent, who was the servant and/or agent of Airlift Handlers. Whilst travelling along Waltham Park Road, the bus was involved in a collision with a vehicle that was being operated by Nicole Dwyer, who was the servant and/or agent of Merrick Myrie. Several persons, including Weston Wilson (‘the deceased’), suffered fatal injuries.
The deceased died intestate leaving four children. Letters of Administration were granted to the Administrator General who commenced proceedings on behalf of the deceased's estate against the applicants in the Supreme Court, pursuant to the Fatal Accidents and the Law Reform (Miscellaneous Provisions) Act. That claim was consolidated with claim no 2011HCV05998 which was brought by the Administrator General against Merrick Myrie and Nicole Dwyer.
Airlift Handlers' defence was that the accident was caused solely by the negligence of Nicole Dwyer. The Administrator General and Airlift Handlers Limited obtained a judgment in default of defence against Merrick Myrie and Nicole Dwyer.
At the trial before Wint-Blair J (‘the learned judge’), the only witnesses who gave evidence on behalf of the Administrator General were children of the deceased who were not present at the accident. The Administrator General relied on the doctrine of res ipsa loquitur and submitted to the learned judge that the fact that the accident occurred was evidence of negligence on the part of the applicants.
At the close of the Administrator General's case, a no case submission was made on behalf of the applicants on the basis that the Administrator General had not adduced any evidence to establish a claim in negligence against them. The learned judge, in upholding the no case submission, held that the doctrine of res ipsa loquitur did not apply. She stated thus at para. [63]:
“[63] … the evidence adduced by the [applicants] has discharged their evidential burden of proof and rebuts the prima facie case of negligence. I also find that the [Administrator General has] therefore failed to prove that the death of [the deceased] was caused by the negligence of the either [Airlift Handlers] or Michael Daley jointly and/or severally. The balance of probabilities favours these defendants. The [Administrator General's] action in negligence therefore fails.”
The learned judge made the following orders
“1. Judgment entered for Airlift Handlers Limited and Michael Daley
2. The following awards are made by the court:
Special Damages
a. Funeral expenses of $200,000.00 awarded to the claimant to [sic] against Merrick Myrie and Nicole Dwyer.
b. Administration expenses of $91,439.20 awarded to the claimant against Merrick Myrie and Nicole Dwyer.
General Damages
2. Damages under the Law Reform (Miscellaneous Provisions) Act of $3,939,219.33 awarded to the claimant against Merrick Myrie and Nicole Dwyer.
3. Costs awarded to the claimant against Merrick Myrie and Nicole Dwyer to be taxed if not agreed.
4. Costs awarded to Airlift Handlers Limited and Michael Daley to be taxed if not agreed.”
The Administrator General, who was dissatisfied with the learned judge's decision, filed notice and grounds of appeal on 21 October 2022. The grounds of appeal are as follows:
“i. The Learned Judge erred when she refused to allow the [Administrator General] to amend the pleading to correct the error therein and bring it in line with the documentary evidence showing the deceased's earning with Airlift Handlers Limited were not paid monthly but fortnightly.
ii. The Learned Trial Judge erred when she stated that Leon Stephenson was called as a witness by Counsel for Airlift Handlers Limited and failed to realized [sic] that the [applicants] made a no case submission at the end of the Claimant's case and called no evidence but elected to stand on their submissions.
iii. The Learned Trial Judge erred when she relied on the statement given by a person who did not attend the trial and gave no evidence at the trial.
iv. The Learned Trial Judge erred when she held that the fact that the deceased was a passenger does not cause a shifting of both legal and evidential burden to the [applicants].
v. The Learned Trial Judge erred when she held that the Court of Appeal [in] Igol Coke adopted the decision of Hummerstone and Another v Leary and Another.
vi. The Learned Trial Judge erred when she held that the doctrine of res ispa loquitur does not apply.
vii. The Learned Trial Judge erred when she held that the [applicants] has [sic] discharged their evidential burden of proof and rebutted the prima facie case of negligence.
Viiii. The Learned trial [sic] Judge ought to have computed the general damages based on the earning[s] of the deceased as being the gross sum of $24,432.69 for fortnight or net earnings of $14, 902.97 per fortnight.”
The applicants have filed a counter notice of appeal, on 17 April 2023, seeking an order for the decision of the learned judge to be affirmed.
Miss Minto, in her affidavit filed 26 January 2023, stated that the estimated costs that were likely to be incurred in the appeal amounted to $3,654,700.00. She stated further, that her firm had requested security for costs from the Administrator General in the sum of $3,000,000.00 and was advised that there were no funds in the estate from which that sum could be paid. Miss Minto averred that if the applicants are successful in the appeal, the Administrator General will not be in a position to pay the costs of the appeal.
Miss Bradford, in response, by affidavit filed 28 March 2023, agreed that the deceased's estate was impecunious but stated that the Administrator General should not be called upon to give security for costs as such an order would stifle the appeal, which she described as strong. In her further affidavit, she stated that the Administrator General was only able to contact one of the beneficiaries who indicated that he could not assist in offering security.
Counsel for the applicants, Miss Catherine Minto, submitted that an order for security for costs on an appeal is to ensure that there is a fund available to a successful respondent to recover the costs he has incurred in defending the appeal. She stated that as a general rule, an appellate court will grant an order for security for costs if the appellant is impecunious, and it seems likely that if his appeal is unsuccessful, the respondent may experience difficulty in recovering his costs. Reference was made to Speedways Jamaica Ltd v Shell Company (WI) and another (unreported), Court of Appeal, Supreme Court Civil Appeal No 66/2001, judgment delivered 20 December 2004 (‘ Speedways Jamaica Ltd’), in support of that submission.
Miss Minto submitted that it is now well settled that the court will not...
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