Allen Needham (Erica) and Fiona Clarke v Charmaine Senior

• Jurisdiction: Jamaica
• Judge: SYKES J
• Judgment Date: 24 March 2006
• Judgment citation (vLex): [2006] 3 JJC 2401
• Date: 24 March 2006
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

BETWEEN

ERICA ALLEN NEEDHAM

FIRST CLAIMANT

AND

FIONA CLARKE

SECOND CLAIMANT

AND

CHARMAINE SENIOR

DEFENDANT

IN CHAMBERS

Mr. Crafton Miller and Miss Stephanie Orr instructed by Crafton Miller and Company for the claimants

Defendant absent and not represented

HARASSMENT - INJUNCTIONS

SYKES J

1 1. Mrs. Erica Allen-Needham, first claimant, is the registered proprietor of the house where she lives in the parish of St. Andrew. Mrs. Fiona Clarke, the second claimant, lives in a studio at the same premises. Mrs. Clarke does not have known proprietary interest in the property and neither does she have or is entitled to exclusive possession. Mrs. Erica Allen-Needham is the mother of Mrs. Fiona Clarke. They have come to this court seeking an injunction to protect them from telephone calls Ms. Charmaine Senior, the defendant, made to the telephone number assigned to Mrs. Clarke on February 21, 22 and 23, 2006. The telephone is at the house where both claimants live. These telephone calls are the latest episode in a fifteen year saga during which Ms. Senior has been bothering Mrs. Allen-Needham. Mrs. Clarke does not appear to be the target of Ms. Senior's obsession.

2 2. The claimants seek an interim injunction in the following terms:

The defendant by herself or by her agent or whosoever on her instruction be restrained from

i. harassing, molesting, threatening, pestering, assaulting or otherwise interfering with the Claimants;

ii. communicating with them by telephone or otherwise;

iii. watching, besetting or coming or remaining within 500 feet of Claimant (sic), the first claimant's residence or behaving towards them in any other manner which is of such nature or degree as to cause annoyance or interference to the Claimant and amount to nuisance.

3 3. I have used the allegations from the amended particulars of claim to state the history of the matter. Since approximately 1991 Ms. Senior has been harassing Mrs. Allen-Needham. Ms. Senior believes that she is the abandoned daughter of Mrs. Allen-Needham and the Right Honourable Michael Manley (the former Prime Minister of Jamaica). Mrs. Allen-Needham emphatically denies that she had any relationship with Mr. Manley and she definitely did not have his daughter.

4 4. Ms. Senior's harassment of Mrs. Allen-Needham began when the claimant worked at the now defunct Jamaica Broadcasting Corporation. Mrs. Allen-Needham has changed jobs a number of times since 1991 and at each new work place Ms. Senior appears and tries to secure acknowledgment that she is the first claimant's daughter. Ms. Senior has, over the years, sent to the first claimant unwelcomed and unwanted cards and letters.

5 5. Ms. Senior has contacted Mrs. Allen-Needham by telephone at her places of employment. Mrs. Allen-Needham now works at Power 106 and Nationwide News Network. The defendant is at these premises almost daily. The defendant waits at the gate or across the street. The first claimant has another job at Advertising Consultants Ltd. The defendant contacts her there by telephone. There is no indication that the calls threaten violence but they are clearly annoying and upsetting to the first claimant.

6 6. Matters escalated since June 2005 when the defendant turned up at St. Jude's Anglican Church, Stony Hill, St. Andrew, where the first claimant worships and made quite a scene which caused Mrs. Allen-Needham grave embarrassment. On two occasions in December 2005, the defendant berated Mrs. Allen-Needham at the church. The constant fear of the defendant's presence at the church led to Mrs. Allen-Needham changing her place of worship where she has worshipped for approximately thirty years.

7 7. There is evidence to suggest that Ms. Senior is suffering from a psychiatric illness and that she has been treated and is being treated by psychiatrists. It is said that the defendant has admitted to having a fixation on Mrs. Allen-Needham.

8 8. The claimants allege that unless the defendant is restrained they fear that they will be unable to live free from fear of the defendant's harassment. Warnings from the police and the private security firm employed by Mrs. Allen-Needham have not had the desired effect. The claimants believe that the defendant will at some point arrive at the civic address of the claimants and behave in the same way that the she does at each new place of employment.

9 9. It was the calls made on February 21, 22 and 23, 2006, to the first claimant's home on a telephone line in the name of the second claimant that have precipitated this application. In one message left on the telephone answering service the defendant admitted that she has been, treated by numerous psychiatrists, has taken prescribed medication for her illness and has been hospitalised on at least fourteen occasions. Understandably, both claimants fear for their safety. The claimants hang their claim for the injunction on the peg of private nuisance.

10 10. It is observed that the terms of the injunction all speak to acts directed at the claimants in their personal capacity, that is to say, it affects the claimants whether or not they are registered proprietors or entitled to exclusive possession or have exclusive possession of land and does not diminish their enjoyment of the property as property. This observation, without more, is sufficient for me to say that the tort of nuisance cannot be used to ground this injunction. However, I shall not leave the matter there. I shall demonstrate by analysing the law that the injunction sought cannot be granted in this cause of action.

The law

11 11. It is well established law that an injunction is not a cause of action but a remedy flowing out of a cause of action, that is to say, facts which give rise to a claim recognised by law (see Siskina (cargo owners) v Distos Cia Naviera SA The Siskina [1979] AC 210 ). The claimants rely on private nuisance as the cause of action. The first question is whether the conduct alleged amounts to private nuisance.

12 12. Mrs. Allen-Needham obviously has a proprietary interest in the land where the telephone is located and so has locus standi to bring the action in nuisance. Mr. Miller has cited the case of Khorasandjian v Bush [1993] 3 All ER 669 in support of the proposition that telephone calls can constitute harassment which itself can amount to private nuisance. For reasons that I shall give later I do not agree with this proposition. What Khoransandjian and the instant case highlight is the yawning gap in the common law. It does not recognize any general right to privacy and up until now has not explicitly recognised the tort of harassment.

13 13. Dillon L.J. in Khoransandjian took the bold step of declining to follow a previous decision of the English Court of Appeal of Malone v Laskey [1907] 2 KB 141 in favour of a decision of the Alberta Supreme Court in Canada (...