Carl Barnett v Donovan Pearce
| Jurisdiction | Jamaica |
| Judge | Morrison P,Phillips JA,McDonald-Bishop JA |
| Judgment Date | 28 November 2016 |
| Neutral Citation | JM 2016 CA 108 |
| Docket Number | RESIDENT MAGISTRATE'S CIVIL APPEAL NO 16/2015 |
| Court | Court of Appeal (Jamaica) |
| Date | 28 November 2016 |
[2016] JMCA Civ 54
JAMAICA
IN THE COURT OF APPEAL
The Hon Mr Justice Morrison P (AG)
The Hon Miss Justice Phillips JA
The Hon Mrs Justice McDonald-Bishop JA
RESIDENT MAGISTRATE'S CIVIL APPEAL NO 16/2015
and
Leonard S Green instructed by Chen, Green & Co for the appellants
Respondent unrepresented
Morrison P (AG)
I have read the reasons for judgment of McDonald-Bishop JA and agree with her reasoning and conclusion. I have nothing to add.
I, too, have read the reasons for judgment of my learned sister, McDonald-Bishop JA. I agree with her reasoning and conclusion and have nothing useful to add.
This is an appeal against the judgment of the Resident Magistrate for the parish of Westmoreland delivered on 16 June 2015, following a trial at the sitting of the court in Savanna-la-mar. She adjudged the appellants, Mr Carl Barnett and Mrs Wendy Barnett, to be liable in damages to the respondent, Mr Donovan Pearce, in the sum of $108,000.00 plus costs in the sum of $2,516.00.
On 7 December 2015, we heard arguments from counsel for the appellants, the respondent being absent and unrepresented, and on 10 December, 2015, we gave our decision and made the following orders:
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“(1) The appeal is allowed.
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(2) The judgment of the learned Resident Magistrate dated 16 June 2015 is set aside.
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(3) Judgment for the appellants.
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(4) No order as to costs.”
We promised then to reduce our reasons to writing, which we now do.
By a plaint dated 18 June 2013, the respondent brought an action against the appellants to recover damages in the sum of $108,000.00. He claimed that the appellants' dogs entered on his goat farm, situated on the White Hall lands in the parish of Westmoreland, and killed eight goats belonging to him.
In seeking to establish his entitlement to the specific sum claimed in damages, the respondent relied on a valuation report prepared by Mr Robert Smith, District Constable, who valued the loss sustained by the respondent at $98,000.00 plus $10,000.00 for valuation fee.
The appellants challenged the claim. They denied that dogs belonging to them had caused any damage to the respondent's goats. They averred that the dogs they owned were not able to leave their premises at the material time because the premises were properly secured.
The learned Resident Magistrate, after hearing the case presented by both sides, found that the respondent's evidence was “credible and forthright” and that the appellants were liable to him in damages in the sum claimed plus costs.
The appellants were not satisfied with that decision of the Resident Magistrate and so they filed their appeal in which they set out three grounds of appeal as follows:
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“1) That the Learned Resident Magistrate erred in that she failed to make any or any proper analysis of the evidence presented by the Appellants and their witnesses and erroneously concluded that the [Appellants] were liable to pay damages for injury to the [Respondent's] property notwithstanding compelling evidence to the contrary.
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2) The Learned Resident Magistrate misunderstood the evidence of the Appellants and failed to fairly consider the evidence presented by them in coming to her conclusion.
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3) The Learned Resident Magistrate failed to properly deal with the material discrepancy arising on the [Respondent's] case and wrongly found on a balance of probabilities that the Appellants were liable to pay the [Respondent's] damages.”
The case presented by the respondent before the learned Resident Magistrate on the issue of liability, was, in summary, as follows. On 6 May 2013, at about 5:00 am, he heard dogs rushing his goats that were tethered on the White Hall property in the parish of Westmoreland. The property was situated about half mile from the residence of the appellants who are husband and wife. The appellants lived in a gated community and he had known them and their residence before the day in question.
He saw three “big black dogs” “hauling” and biting the goats. He described the dogs as being black Rottweilers. He chased away the dogs by stoning them and he then trailed them. He followed them through a barbed wire fence that led to the housing scheme in which the appellants lived. While chasing the dogs, the dogs jumped inside the appellants' yard. He saw the dogs enter the yard.
He did not speak to the appellants at that time because it was too early but he returned later in the morning. At that time, he saw and spoke to the 2 nd appellant who told him to go and get the police and take them to the house and that, if the injury to the goats was done by the appellants' dogs, she would compensate him.
The respondent subsequently called the valuator and took him to where the goats were for the valuation to be done. He then reported the matter at the Negril Police Station. Two policemen later accompanied him to the appellants' house but the appellants were not seen. He returned in the evening with the police where he again spoke to the 2 nd appellant. She asked how much was the value of the damage and he advised her. He tried to negotiate payment with her but she told him that she did not have any money and that she would speak with the 1 st appellant when he arrived home.
The respondent subsequently spoke to the 1 st appellant who told him that he was not accepting responsibility for the injury to the goats and so would not be compensating him for the goats. The 1 st appellant told him that his dogs had not escaped from his premises because the premises were securely fenced and so his dogs did not injure the respondent's goats.
The respondent, however, insisted that the premises were not properly fenced. He contended that he saw damage to the fence at a point close to a tank, which he pointed out to the police who accompanied him to the premises. The police, he said, told the 2 nd appellant to fix the fence, which was subsequently done.
In explaining in cross-examination how the dogs gained entry to the appellants' premises after he trailed them, the respondent stated that although the appellants' house was completely fenced, “there is a hill where there is a tank on and they go there and jump the fence”.
He further explained in answer to the court on this point:
“There's a rock in the corner of Mr. Barnett's fence. The dogs jump on the rock and jump the fence. Rock is about 3' from ground. Fence another 6' up.”
The appellants gave evidence on their own behalf and also relied on the evidence of Mr Fernando Patterson, a security supervisor who was employed to Guardsman Security Company, as well as Constable Omarie Rowe, one of the policemen who accompanied the respondent to the premises, following his report at the Negril Police Station.
The evidence adduced by the appellants and on their behalf will now be outlined. They denied that dogs belonging to them had killed the respondent's goats. They stated that they had four Rottweilers that were all black with brown spots. Two of the dogs were over 10 years old and suffering from hip dysplasia.
At all material times, their entire premises were completely secured by a chain link fence. There was a concrete section at the bottom of the fence and the fence was approximately 6 to 7 feet high. The entire yard was secured so that the dogs could not get out and no one could get in when the gate was closed. There was no damage to the fence in 2013. Neither the respondent nor the police who visited the premises had pointed out any opening in or damage to the fence that could allow dogs to go through. The dogs have never jumped over the fence. On the day in question, their dogs were in their yard and so did not go to the respondent's goat farm.
Mr Patterson testified that the appellants were clients of Guardsman and that for nine years he would go to the appellants' premises from time to time to carry out security checks on behalf of the company. The premises, he said, were properly secured with metal fencing and the dogs could not leave the property. He was not able to enter the premises but he could walk around the perimeter with the assurance that the dogs could not get out. He had never seen a breach in or damage to the fence that could allow the dogs to escape. There was no place where the dogs could jump over the fence because if they could jump the fence, he would not have gone to the premises.
Constable Rowe stated that at the time the respondent attended on the police station to make his report, the respondent told him that he did not witness the dogs attacking the goats. The respondent, he said, pointed to a young man who he said had witnessed the incident.
Constable Rowe stated that when he went to the premises, he made checks of the perimeter fence to see if there was any breach or opening for the appellants' dogs to exit the premises. He found that the perimeter was secured. The respondent did not point out to him any breaches or opening in the fence. He was present when the respondent was trying to negotiate payment with the 2 nd appellant but she told him that she could not say that it was their dogs that were responsible for the damage. She told the respondent that she would speak to the 1 st appellant and get back to him.
The learned Resident Magistrate concluded, after a review of some aspects of the evidence, that:
“[The respondent's] evidence was forthright and credible leaving the court sufficiently satisfied that the [appellants'] house is on an incline/hill and that it was possible for the dogs to jump the fence from some point at the...
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