Davian Townsend v Atl Automotive Ltd, Henry Campbell

• Jurisdiction: Jamaica
• Judge: Master C. Thomas (AG)
• Judgment Date: 01 July 2022
• Year: 2022
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. SU2021/CV01641

BETWEEN

Davian Townsend

Claimant

and

Atl Automotive Limited

1 ^st Defendant

Henry Campbell

2 ^nd Defendant

[2022] JMSC Civ 99

CLAIM NO. SU2021/CV01641

THE SUPREME COURT OF JUDICATURE OF JAMAICA

Civil Procedure — rule 15.2 of the Civil Procedure Rules — application for summary judgment — whether the claimant has a real prospect of succeeding on the claim against the 1 ^st defendant; Vicarious liability — whether hirer of a motor vehicle under a car rental agreement vicariously liable for the negligence of a party who hires the motor vehicle; whether the hirer to be named as party in claim for negligence of hiree

Ms. Alessandra Labeach instructed by Bignall Law for the Claimant.

Munroe Wisdom instructed by Nunes Scholefield for the 1 defendant.

Master C. Thomas (AG)

Introduction

1 On 23 August 2020, along the Old Harbour Main Road in the parish of Saint Catherine, an accident occurred involving a Toyota Rav 4 motor car registered 1607JM driven by the claimant, and a Kia Sportage motor car registered 7648HZ, owned by the 1 ^st defendant and driven by the 2 ^nd defendant. The accident occurred when the Kia Sportage collided into the rear of the Toyota Rav 4.

2 As a consequence of the accident, the claimant commenced the instant claim in which he averred, among other things, that the 2 ^nd defendant “whether in his own right or as the servant and/or agent or permitted driver of the [1 ^st] defendant so negligently drove, managed or controlled” the Kia Sportage motor car that it collided into the rear of the Toyota Rav 4 causing the claimant to “suffer injury, loss and damage and incur expense”.

3 On 13 May 2021, the 1 ^st defendant filed its defence in which it admitted, among other things that it was the owner and the 2 ^nd defendant was the driver of the Kia Sportage registered 7648HZ. It, however, denied that the 2 ^nd defendant was its servant or agent and averred that it is in the business of renting motor vehicles. It admitted that the 2 ^nd defendant was at all material times an authorized driver of the Kia Sportage motor car registered 7648HZ on “his own business unconnected with that of this defendant in accordance with rental agreement entered into on August 21, 2020”. Although it averred that a copy of the car rental agreement dated 21 August 2020 was attached to the defence, it does not appear that this was done. No acknowledgment of service or defence was filed on behalf of the 2 ^nd defendant and no affidavit of service was filed confirming whether the 2 ^nd defendant was served.

4 On 7 October 2021, the 1 ^st defendant filed the application which is now before me for consideration. The substantive orders being sought are as follows:

• 1. That referral to mediation in the civil jurisdiction of the court is dispensed with.

• 2. That summary judgment is entered against the claimant in favour of the applicant/1 ^st defendant.

• 3. In the alternative, that the claimant's statement of case as against the applicant/1 ^st defendant be struck out.

5 The grounds relied on are as follows:

• 1. Summary judgment is being sought on the ground that the Claimant has no real prospect of succeeding on the claim against the Applicant/2 ^nd Defendant pursuant to Part 15.2(a) of the Civil Procedure Rules, 2006.

• 2. Alternatively, the claim ought to be struck out against the Applicant/Defendant pursuant to Rule 26.3(1)(b) and/or (c) as it discloses no reasonable grounds for bringing the claim against the Applicant/2 ^nd Defendant.

• 3. The following issues arise for the Court's consideration:

  • (a) That the Applicant/1 ^st Defendant was at all material times a limited liability company duly registered under the Laws of Jamaica and operating as a rental company.

  • (b) That motor vehicle registered 7648HZ was subject to a rental agreement entered into on August 21, 2020 by the Applicant/Defendant and the 2 ^nd Defendant, Henry Campbell.

  • (c) That at the time of the accident, the 2 ^nd

    Defendant was not acting as a servant and/or agent of the Applicant/1 ^st Defendant.

  • (d) Furthermore, at the material time of said incident, the Applicant/1 ^st Defendant had no interest in the purpose for which the said motor vehicle was being used by Henry Campbell.

  • (e) Accordingly, the Applicant/1 ^st Defendant cannot be held vicariously liable for the actions of the 2 ^nd Defendant.

6 An affidavit in support of the application was sworn to by Mark Pike, the general manager of the 1 ^st defendant. Mr. Pike deponed that on 21 August 2020, the 1 ^st defendant entered into a car rental agreement with the 2 ^nd defendant and that the motor vehicle registered 7648HZ was scheduled to be returned on 26 August 2020. He deponed that the 2 ^nd defendant paid the application fee of US$242.92 and signed the document agreeing to its terms and conditions. A copy of the car rental agreement was exhibited. No affidavit in response was filed on behalf of the claimant.

Submissions

7 Mr. Wisdom submitted that the central issue is whether the 1 ^st defendant being a car rental company and having leased the motor vehicle to the 2 ^nd defendant, can be held vicariously liable for the 2 ^nd defendant's negligence. He referred to the rental agreement which was exhibited to Mr. Pike's affidavit and submitted that the vehicle was at all material times under a contract of rental. Mr. Wisdom argued that based on Island Car Rental (Montego Bay) Ltd v Lindo [2015] JMCA App 2, the owner and renter of a motor vehicle ought not to be held vicariously liable for the negligent driving of the person who hired it. Therefore, he submitted, in accordance with established principles of law, the claimant has no real prospect of succeeding on the claim on which it is alleging that the 1 ^st defendant ought to be liable for the 2 ^nd defendant's actions. Accordingly, summary judgment ought to be entered against the claimant.

8 Ms. Labeach submitted that the claimant was not merely claiming agency; rather, as was clearly stated in the particulars of claim, the claimant is asserting that the 2 ^nd defendant was the permitted driver of the 1 ^st defendant. The inclusion of the 2 ^nd defendant as permitted driver of the 1 ^st defendant would cover situations where there was a rental agreement between the defendants. Therefore, she submitted, authorities such as Island Car Rental (Montego Bay) Ltd v Lindo which applied Avis Rental Car v Maitland (1982) 32 WIR 294 are distinguishable in that they are dealing with situations where agency was alleged. By virtue of the rental agreement, the 2 ^nd defendant was permitted to make use of the 1 ^st defendant's motor vehicle and as such, she argued, the 2 ^nd defendant had the permission of the 1 ^st defendant to use its vehicle. Because of the use of “permitted vehicle”, the 1 ^st defendant was not put in a better position than anyone else who allows or permits another to use his vehicle. She submitted that the distinction between “permitted driver” and “agent” is succinctly laid out in Samuel Rose v Galaxy Leisure and Tours & Franklin Bosheuvel [2021] JMSC Civ 93.

Discussion and Analysis

9 The relevant rule of the Civil Procedure Rules (“CPR”) governing summary judgments is rule 15.2. The effect of the rule is that an applicant on a summary judgment application must show that the respondent has no real prospect of success. The burden of proof is on the applicant to satisfy the court that the respondent has no real prospect of success.

10 Rule 15.5 of the CPR requires that the applicant file affidavit evidence in support of the application. The effect of this rule as well as the decision of their Lordships’ Board in Sagicor Bank v Taylor Wright [2018] UKPC 12 is that the court will consider the evidence relied on in support of the application as well as the pleadings.

11 It is now trite law that the test as to whether there is a real prospect of success is whether there is a real as opposed to a fanciful prospect of success ( Swain v Hillman [2000] 1 All ER 92). It seems to me that this being a claim for negligence, in order to succeed in its application for summary judgment, the burden of proof is on the 1 ^st defendant to show that the claimant has no real prospect of success of establishing negligence against the 1 ^st defendant. Based on the particulars of claim, there are two bases on which the...