D & LH Services Ltd and Others v Attorney General and Commissioner of Jamaica Fire Brigade

• Jurisdiction: Jamaica
• Judge: Phillips JA,Brooks JA,Mcdonald-Bishop JA (AG)
• Judgment Date: 18 December 2015
• Neutral Citation: JM 2015 CA 131
• Court: Court of Appeal (Jamaica)
• Date: 18 December 2015

Bewteen

D & Lh Services Limited

1 ^st Appellant

And

Isadra International Limited

2 ^nd Appellant

And

Daley Walker & Lee Hing (firm by the Estate, Clifton Daley Represented by Executors Louise Daley And Clifton George Eustace Daley)

3 ^rd Appellant

And

The Estate Clifton Daley (Represented by the Executors Louise Daley And Clifton George Daley)

4 ^th Appellant

and

The Attorney General

1 ^st Respondent

And

The Commissioner of The Jamaica Fire Brigade

2 ^nd Respondent

[2015] JMCA Civ 65

The Hon Miss Justice Phillips Ja

The Hon Mr Justice Brooks Ja

The Hon Mrs Mcdonald-Bishop Ja (Ag)

IN THE COURT OF APPEAL

SUPREME COURT CIVIL APPEAL NO 139/2010

NEGLIGENCE - Fire - Whether members of the Jamaica Fire Brigade acted negligently when they failed to extinguish fire in a timely manner - Whether learned trial judge properly assessed evidence - Whether there was failure to pay sufficient regard to evidence of witnesses - Cross examination - Failure to have regard for inconsistencies/discrepancies questionable feature in evidence of respondents' witnesses - Facts not supported by evidence - Errors in assessing evidence

Allan Wood QC instructed by Livingston, Alexander & Levy for the appellants

Miss Althea Jarrett instructed by the Director of State Proceedings for the respondents

Phillips JA

1 I have read in draft the judgment of my learned sister, McDonald-Bishop JA (Ag). I agree with her reasoning and conclusion and have nothing useful to add.

Brooks JA

2 I too have read in draft the thorough judgment of my learned sister, McDonald-Bishop JA (Ag). I agree with her reasoning and conclusion and have nothing else to add.

Mcdonald-Bishop JA (AG)

3 The central question for determination in this appeal is whether members of the Jamaica Fire Brigade (the fire brigade) acted negligently when they failed to extinguish, in a timely manner, fire that destroyed a building situated at 114–120 Tower Street in the parish of Kingston on the night of 22 October 1997. This is an appeal against the judgment of Edwards J (Ag) (as she then was), delivered on 22 October 2010, in which she found that the fire brigade was not negligent and that the respondents, the Attorney-General and the Commissioner of the Jamaica Fire Brigade, are not vicariously liable for the damage. Accordingly, she entered judgment in favour of the respondents with costs.

The background

The parties

4 By a writ of summons, filed in the Supreme Court on 24 November 1997, the original claimants, D & L H Services Limited (D & L H), Isadra International Limited (Isadra), Daley Walker & Lee Hing (firm) (Daley Walker) and Mr Clifton Daley (an attorney-at-law) brought a claim against the respondents for breach of statutory duty and negligence of the fire brigade in respect of the destruction of the building by the fire.

5 At the time of the fire, D & L H (now 1 ^st appellant) was the registered proprietor of the premises. Isadra (now 2nd appellant) was the owner and operator of a private free zone at the premises. Daley Walker was a law firm carrying on business at the premises with Mr Daley as one of its partners. Mr Daley died in 2005 before the proceedings down below had been completed and so his estate was substituted and represented by his executors, Mrs Louise Daley, his wife, and Mr Clifton George Eustace Daley. The estate now stands in these proceedings as the 4 ^th appellant in place of Mr Daley and as 3 ^rd appellant in a representative capacity for Daley Walker.

6 The 1 ^st respondent, the Attorney General of Jamaica, was sued as the representative of the Government of Jamaica pursuant to section 3 of the Crown Proceedings Act on the basis that the acts or defaults complained of by the appellants arose from breaches of the Fire Brigade Act, 1988 (the Act), for which the Commissioner of the Jamaica Fire Brigade, the 2 ^nd respondent, as the servant or agent of the Crown, has statutory responsibility. The 2 ^nd respondent, according to the pleadings, is sued in his official capacity as being responsible for the efficient conduct and administration of the fire brigade pursuant to the provisions of the Act.

The case

7 The shape of the case is succinctly and vividly presented in the facts outlined in paragraphs 1 to 4 of the written judgment of Edwards J, which, for the sake of convenience, have been adopted verbatim . Those background facts are as follows:

• ‘1. In Kingston, Jamaica, at the corner of Temple Lane and Tower Street, there once existed a concrete building, identifiable as 114–120 Tower Street, with the enviable claim of being in close proximity to that great edifice, the Supreme Court of Jamaica.

• 2. On October 22, 1997, at the end of the work day, the owners and occupiers of this building, locked the doors, windows and grill, brought down the shutters, locked the locks and they and all their staff went home. But by the next day this building was a mere shell of its former self. It had gone up in smoke. However, it did not go up in a puff of smoke; instead, it fell victim to a slow burning fire that started from 8 pm that same evening, until it erupted and blazed well into the early hours of the next morning.

• 3. The owners say the destruction of the building was the fault of the fire brigade who were summoned to the scene quite early; from as early as 8 pm. The owners say that the fire men [sic], in breach of their statutory duty and or due to their negligence, caused the building to go up in flames when they failed to pour water on the fire as soon as they arrived on the scene. They further say that the fire was early evidenced by smoke spiraling under the shutters and rising through the windows, but the firemen did nothing to quell this smoke until the building became engulfed in flames and it was too late.

• 4. The witnesses for the [respondents] say this is not true; they say that everything possible was done to fight this fire but there was nothing more the fire men [sic] could do.’

The evidence at trial

8 Given the grounds of appeal raised for consideration in this appeal which, largely, direct attention to the learned trial judge's treatment of the evidence at trial, it is deemed necessary to provide from the outset a broad synopsis of the evidence presented at trial by the parties, particularly, in relation to what had transpired at the scene of the fire after the arrival of the fire brigade. This specific focus on that aspect of the evidence is in an effort to fit the impugned findings of the learned trial judge within their proper context. The core aspects of the evidence at trial that relate to the grounds of appeal being advanced will now be outlined, commencing with the case for the appellants.

The appellants' case

9 The appellants, in support of their case as to the occurrences at the scene of the fire, called four live witnesses and also relied on the affidavit evidence of Mr Clifton Daley, pursuant to the Evidence (Amendment) Act, he having died by the time of the trial. The four live witnesses on whom the appellants relied were: Inspector of Police Raymond Robinson (police officer in charge at the scene of the fire); Mrs Louise Daley (wife of Mr Clifton Daley and one of the executors of his estate); Mr Clive Savage (worker from a nearby building); and Mr Anthony Pearson (an attorney-at-law and an owner/ occupier of an office on the premises).

10 Inspector Raymond Robinson was the first witness for the appellants to have arrived there. The other witnesses later arrived at various times between 8:00 and 8:40 pm. On his arrival, Inspector Robinson saw one unit of the fire brigade at the scene and he called for others. Six units subsequently arrived.

11 At the material time that each of the appellants' witnesses arrived at the scene, they observed smoke coming from the ground floor of the building but saw no flames. Inspector Robinson advised members of the fire brigade to break a glass window on an upper floor to see if they could control the fire on the ground floor from above. They did so and entered the building but came back out saying that the heat was unbearable. Both Inspector Robinson and Mr Clive Savage told the firemen to pump water on the ground floor so as to extinguish any fire that might have been there, but they did not apply water to the ground floor as directed by the two witnesses. They indicated that they did not see any fire and so they could not apply water. Mr Anthony Pearson, after he arrived, also called the attention of the firemen to what was happening on the ground floor. The firemen expressed a view of getting into the first floor, which was not open.

12 The firemen eventually entered the first floor by breaking a glass across the width of the building. They remained on the first floor after gaining entry but took no steps to control the spread of fire on the ground floor. They began to ask for the keys to the front grill in order to gain access to the building. They did not enter the ground floor even when the keys came. There were padlocks on shutters that could easily have been chopped off or be opened by keys to gain access to the ground floor but no attempt was made to open the shutters from under which huge clouds of smoke were coming.

13 The firemen were not taking any firefighting action and the water in the hose was allowed to run on the road. It was not until fire was seen on the ground floor, after a shutter was opened, that being about two hours after the arrival of the fire brigade, that the firefighting (that is to say, the actual application of water to the ground floor) actually commenced.

14 The fire, however, continued to spread until it reached the ceiling of the first floor causing it to collapse and fuel the fire resulting in a huge blaze. The fire began to spread rapidly up the roof. By that time, it was too late to save the building. By...