Amy Bogle v Transport Authority

• Jurisdiction: Jamaica
• Judge: Anderson, K. J
• Judgment Date: 09 October 2015
• Neutral Citation: [2015] JMSC Civ 258
• Court: Supreme Court (Jamaica)
• Docket Number: IN THE CIVIL DIVISION CLAIM NO. 2011 HCV 06977 CONSOLIDATED WITH CLAIM NO. 2012 HCV 02555
• Date: 09 October 2015

2015] JMSC Civ 258

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION CLAIM NO. 2011 HCV 06977

CONSOLIDATED WITH CLAIM NO. 2012 HCV 02555

Between

Amy Bogle

Claimant

and

The Transport Authority

Defendant

Between

Amy Bogle

Claimant

and

Lloyd Bowen

1 ^st Defendant

And

Pauline Saunders

2 ^nd Defendant

And

The Transport Authority

3 ^rd Defendant

CLAIM FOR DAMAGES FOR DETINUE OR CONVERSION — CLAIM FOR DAMAGES FOR NEGLIGENCE — CONSOLIDATED CLAIMS — NEED FOR CLAIMANT TO PROVE UNQUALIFIED DEMAND FOR RETURN OF ITEM ALLEGEDLY UNLAWFULLY DETAINED — BURDEN OF PROOF OF “POSITIVE DEFENCE”— BURDEN OF PROOF AS REGARDS ISSUE OF MITIGATION OF DAMAGES

Anderson, K. J

INTRODUCTION

1 These claims, are consolidated — The 2011 claim was first in time and the claimant seeks to recover, by that claim, damages for negligence arising from a traffic collision/accident which occurred on February 5, 2011. The 2012 claim was later instituted — claimant seeks to recover, by that claim, damages for detinue or conversion. Although they were not set out as alternative claims — in either the Claim Form or Particulars of Claim, pertaining to the 2012 claim, learned counsel for the claimant has made it clear, during his closing submissions, that this court should treat with those two (2) claims, in the alternative.

2 Claim No. 2012 HCV 02555 was never served on either the 1 ^st or 2 ^nd defendant and accordingly, that claim as against those defendants has expired and thus, can no longer be pursued. Accordingly, when this matter came before this court for trial, the only disputing parties were: Amy Bogle and The Transport Authority.

3 The measure of damages for detinue, is not the same as that for conversion and in fact, detinue affords a successful claimant, a remedy which may be of greater value to a claimant than that which can properly be granted by a court, in a successful claim for conversion.

4 This is so because, in a claim for relief based on detinue, the court can order, in favour of a successful claimant, that the item/property/thing which was unlawfully detained, be returned to that claimant. In addition, the court can award damages for consequential loss.

5 On the other hand, in a claim for relief based on conversion, a successful claimant can be awarded nothing other than consequential loss — which would, of course, be assessed by the trial court and be awarded in the form of monetary compensation, known in law, as “damages.”

6 One of the leading cases in this jurisdiction, which has specifically addressed the issues of what constitutes conversion and what constitutes detinue and the measure of damages for each, is:The Attorney General and The Transport Authority and Aston Burey— Supreme Court Civil Appeal No. 109/2010. See also: Trevor Wright and D/Sgt. Yates and Inspector Canute Hamilton & The Attorney General of Jamaica [2012] JMSC Civ. 52, as well as —Carl Brown and Attorney General of Jamaica and Constable Clive Nicholson [2013] JMSC Civ. 151 and Kirk Lofters and Attorney General and Deputy Superintendent Cleon March [2012] JMSC Civ. 189.

7 Even if the claimant succeeds in proving her claim for relief based on either the tort of detinue or conversion, she would not be entitled to recover more as damages, through this court, then she had actually lost, monetarily. If she were therefore, to recover the value of her vehicle, either as at the date of judgment, or as at the date of the allegedly unlawful seizure of same by the Transport Authority and also to recover any sums spent by her to rent a comparable vehicle during the period leading up to the judgment order, such orders would merely result in the claimant being put in no worse of a position than she would have been in, had her vehicle not been “unlawfully seized”— if indeed this has been duly proven.

8 What it would mean though, is that the defendant would be put in a much worse position, than they would have been in, if they had not unlawfully seized the claimant's vehicle. This must be so, because, if they had unlawfully seized the claimant's vehicle and sold it, on the mistaken assumption that they were lawfully entitled to have so done, or even if they had not sold it and thus, are able to return it to the claimant, they would nonetheless, have to compensate the claimant also, for losses incurred by the claimant, as a consequence of the claimant not having had the use of her vehicle, up until thedate of judgment. In the circumstances, it would undoubtedly be, not only in accordance with common sense and fairness, for police and transport authority personnel alike, to act cautiously and overall, with prudence, in determining if and when a vehicle ought to be seized by them, but in addition, it would also be financially prudent for them to so act.

9 As regards the claim for damages for detinue, that claim must and does fail. The claimant has wholly failed to prove that she either personally, or through anyone acting on her behalf, such as an attorney, made at any time, an unqualified demand for the return of her vehicle to her. Enquiries made by her, as to the whereabouts of her vehicle, is by no means, the equivalent, or even close to the equivalent, of her having made any unqualified demand, at any time, for the return of her vehicle, to her. While the claimant provided evidence to this court of the former, she gave no evidence whatsoever, of the latter.

10 This court entirely rejects the claimant's counsel's submission to the contrary. Accordingly, having failed to prove that there was any unqualified demand, or for that matter, any demand at all, for the return of her vehicle to her, the claimant's claim for damages for detinue, must and does fail. On that point, see theCarl Brown case (op. cit.) , which, in that particular respect, applied what has been laid down in various cases from both England and Jamaica, through the years. See for example, George and Branday Ltd. v Lee— [1964] 7 W.I.R. 275, in which Waddington J.A. said —“The gist of the cause of action in detinue is the wrongful detention, and in order to establish that, it is necessary to prove a demand for the return of the property detained and refusal, after a reasonable time to comply with such demand.”

11 For the claim based on the tort of conversion though, it is not necessary to prove that any demand was made for the return of any goods. Indeed, that could not be an element of that tort, since if the claimant's item has been converted, at least as a matter of law, there ought not to be expected, any return of the converted item. All that theclaimant can recover, in respect of a claim founded on the tort of conversion, is damages for consequential loss. See: The Aston Burey case ( op.cit.).

12 The parties' counsel have, during the trial of these consolidated claims and in particular, Mr. Lyttle and Ms. Patel (for the claimant and the 3 ^rd defendant respectively), sought to make much of the Magistrate's Court having ordered the return of the claimant's vehicle to her, “on bond.”

13 In response to the claimant's counsel having made much of same, the defendant's response, as gleaned from their lead counsel's oral closing submissions, was that the Magistrate's Court ordered the claimant's vehicle to be released on bond and the claimant has not brought any evidence before this court, during this trial, such as could serve to satisfy this court, that the claimant had met the preconditions as were ordered by the court, in order for her to have her vehicle, be released to her, by the Transport Authority.

14 What was given in evidence by the defence witness and named defendant — Pauline Saunders, on the particular issue as to the precise nature of the traffic court (otherwise referred to as “the Magistrate's Court's) order for the return to the claimant, of her vehicle, is as follows: Firstly, it was the claimant's counsel who asked Ms. Saunders whether she was at the traffic court on the first day when the matter went before that court. To that question, Ms. Saunders answered —“Yes.” The next question asked of Ms. Saunders during cross-examination, was —“Did you hear, based on an application made by the claimant's counsel, the court ordered the return of the claimant's vehicle, on bond?” The answer to that question, was —“Yes sir.” The next question that followed, was —“Did the Transport Authority comply with the court's order to give back the vehicle to the claimant?” Answer —“I have no knowledge of that.” An exchange then followed between the Judge and that witness, as follows — Judge: “You have no knowledge as to them — the Transport Authority having given back the vehicle to the claimant, or is it that you have no knowledge as to whether or not the Transport Authority complied with the court's order to give back the vehicle to the claimant?”Answer —“I have no knowledge as to whether or not the Transport Authority complied with the court's order to give back the vehicle to the claimant.”

15 Taking that evidence carefully into account, what is clear, is this: The claimant's counsel suggested to the defence witness, that the Magistrate's Court had ordered that the claimant's vehicle be released to her, on bond. That having been what was suggested to the defence witness, by the claimant's counsel, the claimant cannot resile from that. In any event, the defence witness — Ms. Saunders agreed with that suggestion. As such, both parties agreed, during the trial of this claim, that the relevant vehicle was ordered to be released on bond, to the claimant. There is also, no dispute between the parties, that to date, the relevant vehicle has not been released to the claimant.

16 It is also the evidence that said vehicle has never in fact been released to the claimant. The claimant herself gave that evidence.

17 That means therefore, that the next question which ought to have been asked at the...