Darwin Williams v The Transport Authority
| Jurisdiction | Jamaica |
| Judge | L. Pusey J |
| Judgment Date | 27 October 2023 |
| Court | Supreme Court (Jamaica) |
| Year | 2023 |
| Docket Number | CLAIM NO. 2011HCV04459 |
and
[2023] JMSC Civ 162
CLAIM NO. 2011HCV04459
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Tort — Malicious Prosecution — Wrongful Interference with Chattels/Goods — Detinue — Conversion — Whether motor vehicle was wrongfully detained — Whether there was reasonable and probable cause — The Transport Authority Act section 13; 13A; 15 and 16A — The Road Traffic Act sections 61(4A) and 61(4B)
Mrs. Jacqueline Cummings instructed by Archer, Cummings & Co. appeared for the Claimant.
Mr. Dale Austin instructed by The Director of State Proceedings appeared for the 1 st and 2 nd Defendants.
This matter came for hearing on the 18 th of December 2015. At the trial, the Court had embarked on a pilot project with audio recording equipment in which matters were tried without the usual note taking by the judge, as the Parties would rely on an audio recording system. Aspects of the project did not live up to expectations which contributed to the inordinate delay in the delivery of this judgment. Additional unforeseen circumstances created various challenges which further prevented the timely delivery of this judgment. The Court regrets this inordinate delay and sincerely apologizes to the Parties for the delay in the delivery of this judgment. Further, the Court wishes to indicate that it had sufficient material to decide upon this matter.
The Claimant, Mr. Darwin Williams, was at all material times the owner of a Nissan Station Wagon motor vehicle registered 1463 FC (“the vehicle”). Mr. Williams brings an action for malicious prosecution and wrongful detainment of the vehicle against the Defendants to recover general and special damages with interest thereon for loss of use of the vehicle.
The Claim began by way of Claim Form and Particulars of Claim (“originating documents”) which were filed on the 12 th day of July 2011. The Claimant sought the following Orders on the basis that he was maliciously prosecuted and his vehicle wrongfully detained:
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1. The Defendants forthwith deliver and/or return to the Claimant his 2002 Nissan station wagon motor vehicle registered 1463 FC.
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2. The Defendants do pay to the Claimant damages for the wrongful detention of his said motor vehicle.
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3. The Claimant do have damages for malicious prosecution.
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4. Costs and Interest
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5. Such further and/or other relief as this Honourable Court deems just.
The Claimant avers that on the 14 th day of January 2010, while he was traversing the Folly Main Road in the parish of Portland in the vehicle he was stopped by an employee of the 1 st Defendant and the vehicle was seized and brought to the pound in Norwich, Portland. The Claimant avers that this was done unlawfully and without reasonable and probable cause.
Thereafter, the Claimant was prosecuted in the Portland Resident Magistrate Court (now referred to as Portland Parish Court) for not having the proper documentation to operate a public passenger vehicle (“PPV”). The case was ultimately dismissed for want of prosecution by Her Honour Miss T. Reid on the 19 th day of November 2010.
Prior to the case being dismissed, on or about the 18 th day of June 2010, it was ordered by Her Honour Miss T. Reid that the Claimant's motor vehicle be returned to him (“the release order”). The Claimant alleges that he applied to have this done pursuant to the release order, but the Defendants refused, and/or neglected and/or failed to return his motor vehicle. Further, the Claimant alleges that subsequent requests were made for the motor vehicle to be returned to him, but to no avail.
As a consequence of this, the Claimant alleges to have suffered the loss of use of his motor vehicle, expenses, and damage and as such he has brought a Claim against the Parties.
In their Defence filed out of time on the 4 th day of January 2012 with the consent of the Claimant, the Defendants, perhaps unsurprisingly, denied that the vehicle was wrongfully seized as they had reasonable and probable cause to seize it. Further, the Defendants aver that upon inspection of the vehicle documents, it was observed that the Claimant did not have the requisite license and insurance to operate a PPV.
In fact, the Defendants aver that the employee of the 1 st Defendant to whom the Claimant refers, a Travel Inspector, was on special operations along the Folly Main Road in the parish of Portland. It is alleged that the Claimant was observed picking up and letting off passengers who paid the Claimant for same. Further, that one of the alleged passengers confessed that she was a paying passenger in the vehicle.
The Defendants further contend that the vehicle was brought to the pound in Norwich, Portland for safe keeping and that the Claimant did not seek to retrieve the vehicle until the 7 th day of February 2011 when he first visited the 1 st Defendant. The Defendants indicated that the Claimant was unable to retrieve the vehicle because he was unable to pay the storage fees pursuant to the release order.
Subsequent to his visit, it is averred that the 1 st Defendant contacted the Claimant and his Attorney-at-Law on multiple occasions via telephone and electronic mail, to advise the Claimant to retrieve the vehicle and he had not done so (up to the date of the filing of the Defence).
At the Case Management Conference (“CMC”) on the 30 th day of April 2014, the 2 nd Defendant made an Application by way of Notice of Application for Court Orders filed April 30, 2014, to have the Claimant's case struck out against them. The 2 nd Defendant sought the following orders:
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1. That the Claim herein be struck out against the 2 nd Defendant.
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2. Costs to be costs in the Claim.
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3. That the time for the Application be abridged.
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4. Further or any other relief as may be deemed fit.
The grounds on which the orders were sought are:
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1. The statement of case of the Claimant fails to disclose a cause of action or reasonable grounds for bring a claim against the 2 nd Defendant.
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2. The Claimant's response to the 2 nd Defendant's request for further information alleges that a Transport Inspector was acting as an agent and/or servant of the Crown. However, Transport Inspectors are not Crown Servants pursuant to the Crown Proceedings Act but rather are employee of the Transport Authority, a body corporate.
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3. That Rule 26.3 of the said Supreme Court of Jamaica Civil Procedure Rules, 2002 gives this Honourable Court the discretion to strike out a party's statement of case.
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4. That the granting of this Application is in fulfilment of the Overriding Objective, Rule 1.1 of the Supreme Court of Jamaica Civil Procedure Rules, 2002.
The Application was granted in terms of orders 1 and 3 sought in the Notice of Application for Court Orders by Master Mrs. Bertram-Linton (Ag.), as she then was. Therefore, the 2 nd Defendants are no longer parties to the substantive claim.
Further, it was gleaned, upon perusal of the witness statement of the Claimant filed on the 13 th day of July 2015 and the witness statement of Miss Arlene Smith filed on November 26, 2015, that subsequent to the filing of this Claim and prior to the trial, the Claimant had retrieved the vehicle in a state of disrepair sometime in 2012 from the Tower Isle Transport Authority branch. Therefore, the Court concludes that the 1 st Order being sought in the originating documents is no longer relevant.
Counsel in the matter made oral submissions on the liability of the Parties and on the quantum of damages to be awarded, if any, which the Court has duly considered in delivering this judgment. Their submissions will only be referred to as is necessary to explain the position of the Court on a particular issue.
The substantive issues which ought to be determined in this matter are as follows:
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(a) Whether the Claimant has established the elements of malicious prosecution to make out a case against the 1 st Defendant; and
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(b) Whether the Claimant has established the elements of conversion and/or detinue to make out a case against the 1 st Defendant.
The tort of malicious prosecution is committed where a defendant, in this case the agent of the 1 st Defendant, commenced criminal proceedings against the Claimant, maliciously, and without reasonable and probable cause, and the case is determined in the Claimant's favour. The Claimant, however, must first prove that there was damage which was as a result of the malicious prosecution.
In order for the Claimant to ground his claim for malicious prosecution, he must first establish that there was damage either to his reputation (that is, his fame or character), person or property (see: Savile v Roberts [1698] 1 Ld. Raym. 374 and Berry v British Transport Commission [1962] 1 QB 306). The Claimant need not prove damage to all three. Deckwerts LJ added, in Berry v British Transport Commission (supra), that proof of the expenses incurred by a Claimant to defend the charges against them is also sufficient to support an action for malicious prosecution.
In the matter at bar, the Claimant has asserted that he incurred travelling expenses to appear in Court to defend the charges laid against him. Mr. Williams asserted that he paid Three Thousand Dollars ($3,000) per round trip on about four (4) occasions. The Claimant has failed to provide documentary evidence of this, but the Court understands that not in all circumstances receipts will be provided to prove travel expenses, especially in...
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