Carol Campbell v Transport Authority of Jamaica

• Jurisdiction: Jamaica
• Judge: Mcdonald J
• Judgment Date: 15 September 2016
• Neutral Citation: [2016] JMSC Civ 148
• Docket Number: CIVIL DIVISION CLAIM NO. 2011 HCV 01215
• Court: Supreme Court (Jamaica)
• Date: 15 September 2016

[2016] JMSC Civ 148

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Mcdonald J

CIVIL DIVISION CLAIM NO. 2011 HCV 01215

Between

Carol Campbell

Claimant

and

The Transport Authority of Jamaica

Defendant

Mr. Sean Kinghorn and Ms. Danielle Archer instructed by Kinghorn & Kinghorn for the Claimant

Mr. Leslie Campbell instructed by Campbell & Campbell for the Defendant

Wrongful Interference with Chattels/Goods — Trespass to Property — Detinue — Conversion — The Transport Authority Act — The Road Traffic Act — Burden of Proof where an Affirmative Defence is raised

OPEN COURT

RELEVANT BACKGROUND/PROCEDURAL HISTORY

1 The Claim Form and Particulars of Claim (the “initiating documents”) were originally filed on the 16 ^th of March 2011, both documents were duly served on the Defendant on the 5 ^th of May 2011.

2 The general rule is that the period for filing an Acknowledgement of Service is 14 days after the date of service and the Defence is 42 days after the date of service (see: rules 9.3(1) and 10.3(1) respectively).

3 The Defendant was tardy in both regards. The Acknowledgement of Service was filed on the 26 ^th of May 2011, i.e. 21 days after service and the Defence was filed on the 23 ^rd of September 2011, some 142 days after service.

4 Not surprisingly, the Claimant sought and obtained an Interlocutory Judgment in Default (“Default Judgment”) on the 27 ^th of July 2011. This Default Judgment was however set aside by consent of the Parties, which is duly reflected in paragraph 1 of the Order(s) granted by Beckford J on the 26 ^th of February 2013.

5 It is necessary to recount the procedural history of this matter in order to explicitly make the point that the only Defence before the Court is the one filed on the 23 ^rd of September 2011 in response to the original initiating documents notwithstanding the fact that an Amended Claim Form together with an Amended Particulars of Claim were filed by the Claimant on the 23 ^rd of October 2013 and a Further Amended Claim Form and Further Amended Particulars of Claim was filed on the 29 ^th of February 2016 which was allowed to stand pursuant to an order made by this Court on the 18 ^th of April 2016, the first trial date. It should be noted that there was no objection by Counsel for the Defendant, Mr. Campbell.

Accordingly, the Court must have regard to rule 10.7 which states the consequences of not setting out one's defence —

The defendant may not rely on any allegation or factual argument which is not set out in the defence, but which could have been set out there, unless the court gives permission.

6 It should be noted that the Further Amended Claim Form adds trespass to property as a cause of action and the Further Amended Particulars of Claim contains an updated figure for loss of earnings under the Particulars of Special Damages; to which to Defendant has provided no response.

THE CLAIMANT'S CASE

7 The Claimant, Mrs. Carol Campbell, is seeking to recover damages for trespass to property, detinue or alternatively for conversion.

8 Mrs. Campbell is a Bus Operator and the owner of a 1997 Toyota Coaster motor vehicle (the “motor vehicle”), which she claims was duly licensed and used as a public passenger vehicle 1 . She contends that on the 15 ^th of September 2010, the said motor vehicle was seized by the Defendant unlawfully, maliciously and/or without reasonable/probable cause. She further contends that for the last five (5) years, the Defendant has unlawfully detained her motor vehicle and continues to do so.

9 The Claimant alleges that she has made numerous requests to the Defendant to return her motor vehicle, however the Defendant has failed to accede to these requests. As a consequence of the Defendant's alleged refusal, the Claimant claims that she has suffered loss and damage and is now seeking —

• (i) Damages

• (ii) Aggravated Damages

• (iii) Exemplary Damages

• (iv) Vindicatory Damages

• (v) Interest pursuant to the Law Reform (Miscellaneous Provisions) Act

• (vi) Costs

THE DEFENDANT'S CASE

10 The Defendant, the Transport Authority, is a body corporate established by virtue of the Transport Authority Act and is liable to be sued in its corporate name pursuant to section 28(1)(b) of the Interpretation Act .

11 The Defendant admits that it seized the Claimant's motor vehicle, however it denies that this was done on the 15 ^th of September 2010 and further denies that the seizure was done maliciously and/or without reasonable/probable cause.

12 The Defendant contends, in its Defence, that the seizure took place on the 7 ^th of March 2011 (but in its witness statements and cross-examination seems to adopt September 2010) and was carried out because the motor vehicle was being operated without a valid licence in breach of the Transport Authority Act and the Road Traffic Act .

13 The Defendant denies that the Claimant is entitled to the relief sought or any relief at all.

THE APPLICABLE LAW

14 A brief recital of the law in relation to interference with chattels/goods is necessary. The learned author, John G. Flemming in The Law of Torts 8 ^th edition, at page 55, concisely states —

There are three (3) ways in which one might deprive another of his property: by wrongfully taking it, detaining it, or disposing of it. In the first, the defendant gains possession by wrongful appropriation, in the second he might acquire possession rightfully but retains it wrongfully, and in the third he neither takes nor retains it wrongfully but so disposes of the chattel that it is lost to the owner, as for example by destruction or sale. Corresponding to these modes of dispossession, the common law has provided three actions: trespass for the first, detinue for the second and trover for the third.

15 The Claimant by virtue of her Further Amended Claim Form has taken a wide approach and is claiming trespass to property, detinue and in the alternative conversion (also known as trover). In more common terms the Claimant is alleging that the Defendant has interfered with her motor vehicle by wrongfully taking it, detaining it, and/or disposing of it

16 As an aside, it should be noted that in the UK the law has changed, specifically the tort of detinue has been abolished by statute. This had been succinctly summarised by the learned authors of Halsbury's Laws of England (Volume 97 (2015)) at paragraph 602 —

Until 1978, two main causes of action lay for the protection of proprietary interests in goods. These were trover (now more commonly called “conversion”) and detinue. The Torts (Interference with Goods) Act 1977 abolished the former tort of detinue but expanded the scope of conversion, which now lies in every case in which detinue formerly lay before it was abolished.

Today the law on wrongful interference encompasses the specific torts of conversion, trespass to goods, and negligence so far as it results in damage to goods or to an interest in goods, and any other tort so far as it results in damage to goods or to an interest in goods.

17 There does not appear to be any statute in Jamaica akin to the Torts (Interference with Goods) Act , 1977 and as such the common law actions of trespass to goods, detinue and trover/conversion remain available to aggrieved persons to claim. Since the Claimant in the case at bar has claimed all three, each will be addressed in turn.

Trespass to Goods

18 Trespass to goods is a wrongful physical interference with them. I would adopt the formulation of the learned authors of Clerk & Lindsell on Torts (17 ^th ed.) at paragraph 13–02 —

The action of trespass has always been a remedy affording compensation for injury to a chattel in the plaintiff's possession. The sole question is whether the defendant has directly interfered with the plaintiff's possession. Trespass remedies any damage thus caused; it is also actionable per se, that is, without proof of actual damage to the chattel.

19 It should be noted however that merely being in possession of another's goods without his authority is not a tort. In some instances even direct/intentional interference will not amount to trespass. This is so as there may be instances in which the goods are lawfully acquired. Such an instance may be created by statute which may provide for the lawful acquisition or seizure of another's goods/chattel in certain circumstances. The Transport Authority Act (the TAA ) is one such Act.

The relevant sections of the TAA (with emphasis supplied) are —

13 (1) An Inspector or a Constable may at any time —

• (a) stop and inspect any public passenger vehicle to ensure compliance with the terms of the road licence and any relevant road traffic enactments;

• (b) stop and inspect and vehicle which he reasonably suspects is operating as a public passenger vehicle contrary to relevant road traffic enactments;

• (c) monitor the frequency of public passenger vehicles on any route;

• (d) carry out an inspection of conductors and drivers of public passenger vehicles and the licences held by these conductors and drivers;

• (e) carry out such powers or duties in relation to relevant road traffic enactments as may be prescribed.

(2) An Inspector or a Constable shall have power —

• (a) To seize any vehicle which —

  • (i) is licensed as a stage carriage, express carriage or route taxi and is not being operated on the route for which it is licensed to operate;

  • (ii) is licensed as a hackney carriage and is being operated as a stage carriage, route taxi or express carriage;

  • (iii) is licensed as a contract carriage and is being operated as a stage carriage, route taxi or express carriage;

  • (iv) is licensed as a express carriage and is being operated as a stage carriage or route taxi; or

  • (v) is being...