Brown (Erldine Henry) v Jamcon Engineering Ltd and Rupert Murray
| Jurisdiction | Jamaica |
| Judge | COURTENAY ORR J |
| Judgment Date | 21 September 2000 |
| Judgment citation (vLex) | [2000] 3 JJC 1601 |
| Court | Supreme Court (Jamaica) |
| Date | 21 September 2000 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
NEGLIGENCE - Motor car/Backhoe accident - Whether default judgment should be set aside - Whether leave should be granted to file defence
On 21 st September last, I gave a brief oral summary of my reasons for judgment in this matter, but in view of the importance of some of the issues raised, I have decided to put my reasons in writing more fully.
The plaintiff's claim sounds negligence and in paragraphs 2 and 3 of her statement of claim she avers as follows:
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2. "The Defendants were at all material times the owners and/or operators and/or controllers of a Back Hoe with Registration No. Temp. 0677 which was at all material times being driven by their servant or agent.
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3. On or about the 2 nd day of November, 1992, along Bog Walk Gorge in the parish of Saint Catherine, the said servant and/or agent of the Defendants so negligently drove managed and/or controlled the Defendant's said Back Hoe as to cause same to collide into the rear of the plaintiff's said motor vehicle.
She further alleges that she suffered personal injuries as a result of the accident and claims special damages for the cost of medical treatment and loss of earnings, and general damages.
Interlocutory judgment in default of defence was entered against the first defendant (the company) on 28 December 1998. This is an application by the company to set aside that interlocutory judgment and for leave to file a defence out of time.
Three affidavits were filed in support of this application : one by Miss Carol Malcolm, the Attorney-at-Law, for the applicant; the others by Mr Winston George Atkinson, Managing Director of the applicant company. Miss Malcolm's affidavit was based on information and belief, the source being the defendant company. In it she deposed to the following facts:
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1. An apppearance was entered on behalf of the company on the 23 rd day of November, 1998.
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2. On 23 rd December, 1998, she prepared and filed a defence, but withdrew it when she realized that she had inadvertently omitted to obtain the consent of the plaintiff's attorney-at-law to file the defence out of time.
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3. She wrote the attorneys-at-law for the plaintiff on 28 th December, 1998, seeking their consent, and they informed her that interlocutory judgment in default of defence had been filed on the 28 day of December, 1998.
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4. The delay in filing the defence and in taking steps to set aside the judgment was not deliberate, but was due to administrative difficulties experienced as a result of relocating her office from Kingston to Savanna-la-Mar in Westmoreland.
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5. That she believed that the defence which was exhibited to her affidavit is a good one and is likely to succeed.
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6. By reason of information received and her belief the second defendant's version of how the accident happened is as follows:
" ... On or about the 2 nd day of November, 1992, Brenton Carter who was employed at the time to the first Defendant was driving the first defendant's Back Hoe along the Bog Walk Gorge whilst being piloted by another motor vehicle.
The plaintiff who was driving motor vehicle 1 licensed RR - 2175 proceeded to overtake the said Back Hoe whilst another motor vehicle was approaching from the opposite direction.
The plaintiff then suddenly cut in between the said Back Hoe and the pilot vehicle, out of the path of the oncoming vehicle but in so doing collided with the First defendant's said Back Hoe".
Mr Winston George Atkinson deposed to the same facts regarding the failure to file a defence and as to the way in which the accident took place. For the former issue he did so on information from Miss Carol Malcolm, and regarding the latter issue on information of Mr Brenton Carter who was employed to the company at the time of the accident and was driving the Back Hoe.
In its proposed defence, the company admits that the collision took place at the time and place alleged, but denies liability and in the alternative pleads contributory negligence. The following particulars of negligence on the part of the Plaintiff are alleged:
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(a) Failing to keep any or any proper look out or to have an or any sufficient regard for other traffic on the said road.
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(b) Overtaking or attempting to overtake when it was unsafe to do so.
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(c) Driving too close to the 1 S defendant's Back Hoe.
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(d) Failing to stop, slow down, to swerve or in any other way, to manage or control the said motor car so as to avoid the said collision".
In exercise of the Court's inherent jurisdiction to dispense with the rule of the Supreme Court where this is in the interests of justice I permitted the plaintiff to give sworn oral testimony in addition to her affidavit and in response to the affidavits of Winston George Atkinson and Miss Malcolm. Support for this ruling may be found in the article. "The Inherent Jurisdiction of the Court" by Jack Jacobs in Current Legal Problems Vol. 23 (1970) P. 23. At page 25, he writes:
"The inherent jurisdiction of the Court may be exercised in any given case notwithstanding that there are Rules of Court governing the circumstances of such case. The powers conferred by Rules of Court are in addition to, and not in substitution of powers arising out of the inherent jurisdiction of the Court.
In her affidavit the plaintiff denied that the accident occurred as alleged in Miss Malcolm's affidavit, and made the following statements:
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4. "That immediately after the collision the said driver of the vehicle (the Back Hoe) apologized for the accident and further stated that the brakes for the said Back Hoe were not working properly.
That the said driver's employer, the 1 st defendant to this suit subsequently also admitted liability for the accident and reimbursed me for the monies I had to spend to repair the motor vehicle I was driving at the time of the accident.
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6. That the said defendant also reimbursed me sums I incurred to rent another motor vehicle for three days."
She exhibited to her affidavit a copy of the company's cheque requisition and cheque in payment of the sums mentioned in paragraph 6 of her affidavit quoted above. The total of the sums in those documents is $6,841.14.
The requisition was addressed to the plaintiff/respondent and gave the following details of expenditure:
| (1) | "Reimbursement for rental of motor car - 3 days | $4,091.14 |
| (2) | Reimbursement for purchase of lens for motor car | $2,750.00 |
| $6,841.14 |
Her affidavit further stated:
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8. "That I have been diagnosed with and undergone treatment for cancer which ... is now in remittance (sic)".
In her oral testimony she deposed that she made no request of anyone attached to the company for assistance in paying for the rental of the car she had been driving at the time of the accident or to repair it. It was repaired at the company's garage at Grove Road in Kingston. She was not experiencing financial difficulty. She had said that she would report the accident to the rental company from which she had hired the car, and the Defendant company's agent, that is the man who drove the company's van to pilot the Back Hoe, had urged her not to do so as it would involve the forfeiture of the company's (insurance) deposit. She had agreed.
The rental payment was brought about by the fact that she was late in returning the car to the rental company and so she had to pay an extra fee.
She did not know Mrs Atkinson or any of the directors of the company.
Miss Malcolm put forward the following arguments:
The applicant company had shown that its defence had merit.
There had been no undue delay.
The Court ought not to regard the payment as an admission of liability.
There can be no prejudice to the plaintiff as she waited until only eleven days before the limitation period would take effect, to file her writ.
The Court ought to accept the evidence of Winston Atkinson that the company's agent acted without the benefit of legal advice in making the payment.
The case of Lady Elizabeth Auson T/A Party Planners v Trump [1998] 3 ALL E.R.331. is relevant. There the plaintiff had obtained a judgment in default of defence with regard to a claim for money owed for organising a lavish party for the defendant.
The Court of Appeal allowed an appeal against the refusal to set aside the default judgment and held, inter alia:
"Since the defendant's defence acknowledged that some moneys were due but challenged the reasonableness of the bill, and the plaintiff's solicitors had refused sight of the documentation in support of the claim, the defence was not hopeless but eminently arguable. It followed that the judge had erred in the exercise of his discretion, and exercising the discretion afresh, the court would set aside the default judgment and give the defendant leave to defend the disputed balance of the claim. Accordingly to that extent the appeal would be allowed."
Early in his presentation the Court brought to Mr Brook's attention; the case of Day v R.A.C Motoring Services Ltd. [1999] 1ALL ER 1007, and in particular the test propounded by the English Court of Appeal for deciding...
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