Chang, Victor v Minott Services Ltd & Derrick Brown

• Jurisdiction: Jamaica
• Judge: Straw, J (Ag.)
• Judgment Date: 25 March 0004
• Judgment citation (vLex): [2004] 3 JJC 2501
• Year: 2004
• Date: 2004
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. HCV 0210/2003

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. HCV 0210/2003

BETWEEN

VICTOR CHANG

CLAIMANT

AND

MINOTT SERVICES LTD.

1 ^ST DEFENDANT

AND

DERRICK BROWN

^2ND DEFENDANT

NEGLIGENCE - Motor vehicle accident - Personal injuries - Application for interim payment - Civil Procedure Rules 2002, Rule 17.1 - Whether claimant would obtain judgment against defendant, Rule 17.6(1)(d) - Whether contributory negligence applicable

Straw, J (Ag.)

1 The claimant, Mr. Victor Chang collided in the back of a Leyland truck in the early morning of 21.01.02 along East Kings House Road. This truck is owned by the 1 ^st defendant.

2 The 2 ^nd defendant, Derrick Brown was the driver at the material time and had experienced some mechanical difficulties, as a result of which the truck had been left in a stationary position on the roadway.

3 The claimant suffered personal injuries and is suing both defendants for damages. The trial date has been set for 13.10.05. The application for consideration before the court is by the claimant for an order for interim payment of One Million Dollars ($1,000,000.00) by virtue of Rule 17.1 (1) of the Civil Procedure Rules (2002).

4 Conditions to be satisfied

5 Rule 17.6 describes the conditions to be satisfied before any such order for interim payment can be made. The relevant factors to be considered in this particular case are as follows:

6 17.6 (1) the court may make an order for an interim payment only if-

• (a) ---

• (b) ---

• (c) ---

• (d) Except where paragraph (3) applies, it is satisfied that, if the claim went to trial, the claimant would obtain judgment against the defendant from whom an order for interim payment is sought for a substantial amount of money or for costs.

7 Rule 17.6 (2) is also relevant.

8 17.6 (2) in addition, in a claim for personal injuries the court may make an order for the interim payment of damages only if the defendant is:

• (a) insured in respect of the claim;

• (b) a public authority; or

• (c) a person whose means and resources are such as to enable that person to make the interim payment.

9 Rule 17.6 5 (a) states that the court must take into account contributory negligence (where applicable).

10 The first hurdle that the claimant must clear is that the court must be satisfied on a balance of probabilities that the claimant would obtain judgment.

11 In the affidavits of Victor Chang and Roderick Graham, it is alleged that the truck was parked in...