Channus Block and Marl Quarry Ltd v Curlon Orlando Lawrence

• Jurisdiction: Jamaica
• Judge: Morrison JA
• Judgment Date: 10 May 2013
• Neutral Citation: JM 2013 CA 52
• Docket Number: SUPREME COURT CIVIL APPEAL NO 16/2013 APPLICATION NO 26/2013
• Court: Court of Appeal (Jamaica)
• Date: 10 May 2013

[2013] JMCA App 16

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT CIVIL APPEAL NO 16/2013

APPLICATION NO 26/2013

Between:

Channus Block and Marl Quarry Limited

Applicant

and

Curlon Orlando Lawrence

Respondent

Howard Hamilton QC and Miss Jodian Hammit instructed by Frankson & Richmond for the applicant

Dale Staple instructed by Kinghorn and Kinghorn for the respondent

NEGLIGENCE - Vicarious liability - Breach of duty to provide safe system of work - Damages - Quantum and liability challenged - Application for stay - Partial stay ordered by Court of Appeal

IN CHAMBERS

Morrison JA

1 On 23 September 2006, the respondent, who was an employee of the applicant, suffered catastrophic injuries in what Sykes J described as a ‘horrific accident’ at the workplace. As a result, both legs had to be amputated above the knees and his whole person disability was assessed at the time of trial at 64%.

2 On 11 January 2013, after a trial contested as regards both liability and damages, Sykes J gave judgment for the respondent against the applicant, the details of which are as follows:

General damages:

a. Pain, suffering and loss of amenities JA$19,000,000.00 at 3% interest

From the date of service of the claim for to January 11, 2013;

b. Handicap on the labour market — JA$2, 548,000.00 with no interest

c. Loss of future earnings — JA$2,548,000.00 with no interest

d. Cost of future domestic care — JA$8,008,000.00 with no interest;

e. Cost of prosthetic device — JA$2,152,000.00 with no interest

Special damages

f. Pre-trial loss of earnings — JA$1,145,000.00;

g. Medical expenses — JA$632,012.18;

h. Cost of transportation — JA$5,000.00

TOTAL - $36,038.012.00 plus interest on the general damages at 3%

General damages:

Special damages

3 Sykes J found that the applicant was liable on two bases: firstly, by virtue of its vicarious liability for the negligence of Mr Owen Bailey, a co-worker of the respondent; and secondly, on the basis that the applicant was in breach of its duty to provide a safe system of work for its employees.

4 By notice of appeal filed on 21 February 2013, the applicant challenges the learned judge's findings on seven grounds, four of which are directed at the judge's assessment of the evidence and three at the question of damages.

5 This is an application for a stay of execution pending the hearing of the appeal. The grounds of the application, as set out in the notice of application, are as follows:

• ‘1. The Applicant applies to a single Judge in Chambers pursuant to Rules 2.10 and 2.11 and will rely upon Rule 2.14 and 2.15 of the Court of Appeal Rules, 2002, for an Order to stay the execution of the judgment in the Supreme Court action pending the determination of this Appeal.

• 2. The stay is necessary to preserve the status quo and the Applicant's interest therein pending the determination of the Appeal.

• 3. That if the stay is not granted, the Appeal will be rendered nugatory as there would be no use in proceeding to challenge a Judgment which the Applicant is mandated to pay whilst challenging it and if the Applicant was required to pay the Judgment awarded to the Respondent prior to the hearing of the Appeal, the Applicant would be in jeopardy of financial ruin and their ability to pursue the said Appeal would be severely prejudiced.

• 4. Further, if required to pay the Judgment sum, and the Applicant subsequently succeeded on Appeal, the Appeal would be rendered nugatory as it is unlikely that the respondent would be in a position to repay the Judgment sum to the Applicant.

• 5. That whilst the Applicant will suffer irreparable harm, prejudice and loss if the stay of execution is refused, the Respondent will suffer none should the execution of this Judgment be stayed pending the Appeal of this matter.

• 6. That the interest and administration of justice will not be compromised by the stay of the Judgment pending the determination of the Appeal.

• 7. The Applicant believes that they have a real prospect of success on Appeal and it is in the interests of justice that the Applicant be allowed to have the Judgment of the Supreme Court stayed until this Honourable Court determines the Appeal.

• 8. The Court has jurisdiction to extend the time pursuant to Rule 1.7(2)(b) of the Court o Appeal Rules, 2002.’

6 The application is supported by an affidavit sworn to on 15 March 2013 by Mr Anthony Charley, a director of the applicant company. In that affidavit, Mr Charley contends that the trial judge erred in his findings against the applicant and that, on the basis of the grounds of appeal filed, the applicant has a good and arguable appeal with a real prospect of success. Pleading the poor financial condition of the applicant, particularly in the light of a severe downturn in business over the last two years, Mr Charley avers that, in the absence of a stay of execution, the applicant will be exposed to financial ruin. Mr Charley states that the applicant's current expenditure outweighs its income and exhibits the company's financial statements in support. Finally, he states:

‘24. Further, should the Applicant be required to pay the judgment sum as Ordered then it would cause the Applicant's Appeal to become nugatory as there...