Campbell, Allan v National Fuel & Lubricants Ltd et Al
| Jurisdiction | Jamaica |
| Judge | Sykes J (Ag) |
| Judgment Date | 02 November 2004 |
| Judgment citation (vLex) | [2004] 11 JJC 0201 |
| Date | 02 November 2004 |
| Court | Supreme Court (Jamaica) |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
CIVIL PROCEDURE - Negligence - Vicarious liability - Amendment to statement of case - Whether amendment was necessary
1. Near to Greenwich Farm in the parish of St. Andrew there is an oil refinery known as the PetroJam Oil Refinery. It provides petrol and petroleum products to its customers. Tankers are allowed to load petrol on its compound and take it to its ultimate destination. The petrol is purchased for retail purposes by a number of petrol marketing companies. The first defendant is one such company.
2. On July 9, 1994, Mr. Solomon Russell, the third defendant, who was, on that date, employed to National Fuels & Lubricants Ltd, the first defendant, picked up a load of fuel from the PetroJam Oil Refinery on Marcus Garvey Drive. The product was to be delivered to a petrol station in Mona Heights, St. Andrew.
3. Also on July 9, 1994 there was a fire on the tanker while it was parked in the vicinity of 32 and 34 Fourth Street, Greenwich Farm. The fire occurred during the off loading of petrol. This case is about that fire and whether any of the defendants are liable to the claimant for damage to a building located at 34 Fourth Street which he says was damaged by the fire.
4. At 32 Fourth Street, next to 34, there was what was known as a "gas yard". This gas yard was in the business of selling petrol. Apparently it is not an authorised selling point for petrol. How would such a place obtain its products? Mr. Errol Reid, a witness for the claimant, provides part of the answer. He says that Mr. Solomon Russell, despite his name, engaged in the not-so-Solomonic act of taking petrol to this premises. According to Mr. Reid he has personally seen Mr. Russell delivering gas there "on a number of occasions". He has seen Mr. Reid for about four years before the fire in 1994 delivering gas to the gas yard.
5. Mr. Reid also knows Mr. Russell in another capacity. It seems that Mr. Reid's culinary skills have achieved legendary status among tanker drivers. He prepares meals which he sells from 29 Fourth Avenue, Greenwich Farm. This is just across the road from the gas yard. Mr. Reid says that Mr. Russell was one of his customers. So well does Mr. Reid know Mr. Russell that he even knows that he is called Cap by the other tanker drivers.
6. Mr. Russell has sought to refute these perfidious allegations. He says that he does not know Mr. Reid. He has never bought food from him. He has never been to or near any gas yard at 32 Fourth Street. The first time he went there was on July 9, 1994 when two marauding gunmen held him up at gun point shortly after he left the PetroJam Oil Refinery. These hoodlums, he said, simply gave him instructions which he followed. This is his account of how the petrol-laden tanker was parked in the vicinity of the gas yard.
7. Needless to say, if this is true and the fire occurred while the gunmen or their accomplices were discharging gasoline then no fault can be attributed to Mr. Russell and by extension, no liability can be attributed to the first two defendants since their liability is derived from the liability of Mr. Russell. Is Mr. Russell's account of the hold-up true? This is one of the critical issues in this case.
8. The claimant's case is that the third defendant's disposition of the petrol at Fourth Street was so unsafe and unprofessional that it exposed the claimant's property to the foreseeable risk of damage by fire.
9. The first two defendants stoutly resist the claim on the basis that Mr. Solomon Russell was on a frolic of his own and they are not liable for whatever act of negligence he may have committed. The first two defendants go even further to say that if Mr. Russell was engaged in a criminal act or to use the language of the civil law, an intentional tort, they could not possibly be liable because the claim is pleaded in negligence and the principles of vicarious liability when an intentional tort is committed do not apply here. The implication being that the case of Clinton Bernard v The Attorney General Privy Council Appeal No. 30 of 2003 delivered October 7, 2004 cannot assist the claimant because that case only applies to intentional torts. They say the Bernard case, has not altered the law in so far as the hackneyed phrase "on a frolic of his own" captures the defence of an act committed outside the scope of the employee's job thereby deflecting any claim based on vicarious liability.
10. The second defendant has forged an additional shield against liability. He says that although he was the owner of the truck at the material time, the truck was on the exclusive business of the first defendant. The fact that he is a director of the first defendant and its Chief Executive Officer does not abrogate the long established principle that a company is a different legal entity from its directors.
11. Mr. Russell told the court that when he arrived at Fourth Street he was ordered out of the truck and while being held at gun point, the men began to unload some of the petrol in buckets and during this process the fire began. He said that the fire began in a bucket near the tanker. The fire followed a trail of petrol that led from the bucket to the tanker. He tried to put out the fire but his efforts were fruitless.
12. Mr. Russell contends that the claimant is exaggerating his losses and the only damage the building suffered was from "smoke [blackening] its side a part of the cantilever".
13. One of the issues in this case is the question of vicarious liability. In determining this issue, the effect of Clinton Bernard v The Attorney General has to be considered. Before addressing this and other questions there is a procedural matter of some importance that I will now deal with.
Application to amend
14. At the commencement of the trial Mr. George QC applied to amend the particulars of claim to include additional items of special damages. This amendment would have inflated the claim to over $9,000,000 from the humble figure of $2,410,000. Naturally, this was resisted by the defendants who say that they would be severely prejudiced in their defence. They added that the manner in which they pleaded and prepared for the trial was to a large extent influenced by the way in which the claimant pleaded his case.
15. Mr. Shelton relied on the literal reading of rule 20.4 (1) and (2) of the Civil Procedure Rules (CPR). They read:
(1) An application for permission to amend a statement of case may be made at the case management conference.
(2) The court may not give permission to amend a statement of case after the first case management conference unless the party wishing to make the amendment can satisfy the court that the amendment is necessary because of some change in the circumstances which became known after the date of that case management conference. (my emphasis)
16. Mr. Shelton submitted that rule 20.4(1) gives the court the power to amend a statement of case at a case management conference. The power is a discretionary one and the manner of its exercise is governed by rule 20.4(2). There is a precondition that must be met. The precondition is signified by the word "unless". In short, Mr. Shelton was saying that the discretion cannot be activated " unless " the applicant enters through the narrow gate of "change in the circumstances which became known after" the first case management.
17. The first question is whether there has been any change of circumstance since the first case management conference that only became known after that conference. It was admitted by the claimant that the circumstances have not changed since the conference.
18. Mr. George QC posited two solutions. The first is what I call the accrued rights theory. It goes like this: since this case began under the old Rules of the Supreme Court then whatever rights accrued to the claimant under those rules were carried over into the CPR and survived unless they have been expressly abrogated or modified by the CPR. If it were not so, he said, then litigants who commenced an action under the old rules and had their trials conducted under the new rules would be at a disadvantage in that the goal posts were being changed during the course of the litigation. This, he submitted, would be unfair to the litigants.
19. This analysis does not give sufficient weight to the transitional provisions in rule 73. Rule 73.3 (1) and (7) states:
(1) These Rules do not apply to any old proceedings in which a trial date has been fixed to take place within the first term after the commencement date unless that date is adjourned and a judge shall fix the date.
...
(7) These Rules apply to old proceedings from the date that notice of the case management conference is given.
20. If Mr. George's theory is to find a comfortable resting place it would have to be rule 73.3(1). Only persons who had a trial date within the first term of the commencement of the CPR will have the "benefit" of litigating under the old Rules of the Supreme Court; and even then, if the trial is adjourned to another date then the litigants are brought under the new regime. This is reinforced by rule 73.3(3) which states:
(3) Where in any old proceeding an application is made to adjourn a...
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... ... the date of that case management conference (see Campbell v National Fuels & Lubricants Claim No. C.L. 1999/ C 262 ... ...