Debbie Powell v Bulk Liquid Carriers Ltd and Others

• Jurisdiction: Jamaica
• Judge: Harris JA,Phillips JA,Brooks JA
• Judgment Date: 27 September 2013
• Docket Number: SUPREME COURT CIVIL APPEAL NO 52/2010
• Court: Court of Appeal (Jamaica)
• Date: 27 September 2013

[2013] JMCA Civ 38

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mrs Justice Harris JA

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

SUPREME COURT CIVIL APPEAL NO 52/2010

Between

Debbie Powell

Appellant

and

Bulk Liquid Carriers Ltd

1st Respondent

and

Osmond Pugh

2nd Respondent

and

Caribic Vacations Ltd

3rd Respondent

Mrs Nicole Superville-Hall and Raymond Samuels instructed by Norman O Samuels for the appellant

Ms Tanania Small and Mrs Terri-Ann Gibbs instructed by Livingston Alexander and Levy for the 1 ^st respondent

David Johnson instructed by Samuda and Johnson for the 2 ^nd respondent

Patrick Foster QC and Mrs Camille Wignall-Davis instructed by Nunes Scholefield DeLeon and Co for the 3 ^rd respondent

NEGLIGENCE - Motor vehicle collision - Personal injuries - Vicarious lilability - Damages - Costs, Interest

Harris JA

1 I have read, in draft, the judgment of Brooks JA and fully agree with his reasoning and conclusions therein.

Phillips JA

2 I too have read the draft judgment of Brooks JA and agree with his reasoning and conclusions.

Brooks JA

3 On 29 September 1994, when Miss Debbie Powell accepted a ride in a tour bus from an acquaintance, Mr Roderick Ellis, little did she know that the trip from Ocho Rios in the parish of Saint Ann, to Montego Bay in the parish of Saint James, would have ended in tragedy. While traversing the main road at Rose Hall in the parish of Saint James, the tour bus that Mr Ellis was driving crashed into the rear of a parked tractor/trailer rig. Mr Ellis died in the crash and Miss Powell suffered severe injuries as a result of it. Her injuries have caused her significant loss and expense.

4 She filed a claim against three parties in a bid to recover damages for her injuries and loss. The first defendant to the claim is Bulk Liquid Carriers Ltd (BLC), the owner of the flat-bed trailer into which the bus crashed. BLC's goods were on the trailer at the relevant time. The second defendant is Mr Osmond Pugh, the owner of the tractor-head, to which the trailer was attached at the relevant time. It was Mr Pugh who had parked the tractor/trailer rig at the ill-fated spot. The third defendant is Caribic Vacations Ltd (CVL), the owner of the bus and Mr Ellis' employer. The claim against BLC and CVL was filed on 14 October 1997, whilst that against Mr Pugh was filed on 27 April 2000. All the defendants denied liability, and the consolidated claims came on for trial before Sykes J between September and December 2009.

5 Among the issues joined during the trial were, firstly whether BLC had any separate responsibility for its trailer while it was attached to Mr Pugh's tractor-head; secondly, whether an employer/employee relationship existed between BLC and Mr Pugh; thirdly, whether Mr Pugh had negligently parked the vehicle at the spot; and fourthly, whether Mr Ellis was acting within the scope of his employment at the time of the crash. Sykes J decided those issues in favour of the defendants and, on 19 March 2010, gave judgment for them. As a result of that decision the learned trial judge found that ancillary claims between BLC and CVL did not arise for consideration.

6 Miss Powell has appealed against that decision. All three defendants are respondents to Miss Powell's appeal. Neither BLC nor CVL has filed any counter-notice of appeal and they have supported the learned trial judge's decision. As a result, the issues that were raised at the trial remain live before this court. In addition to those issues, Miss Powell has complained that the learned trial judge:

• a. acted in such a manner that there is a real possibility that he was biased against her case;

• b. erred in refusing an application that he should recuse himself from the trial; and

• c. erred by refusing to admit into evidence, a letter penned by an executive of CVL, in respect of Mr Ellis' movements on the day in question, which letter CVL failed to disclose in accordance with court orders.

7 Mrs Superville-Hall, advanced the arguments for Miss Powell in a commendably organised manner. Learned counsel grouped the several grounds of appeal under four main headings. Although the headings have been expressed below in a slightly different way from the way Mrs Superville-Hall had formulated them, and will be assessed in a slightly different order, they may be identified as follows:

It is under those headings, and in that order, that this judgment will assess the appeal.

• a. Bias

• b. Disclosure

• c. Vicarious liability for Mr Ellis' actions

• d. Liability of Mr Pugh

• e. Vicarious liability for Mr Pugh's actions

Bias

8 The essence of Miss Powell's first complaint against the learned trial judge is that his comments at the beginning of the trial indicated a real possibility of bias against her case. Mrs Superville-Hall submitted that this was demonstrated when the learned trial judge indicated that he was of the view that BLC's counsel was correct in submitting that Miss Powell could not prove that Mr Pugh was employed to BLC. According to Mrs Superville-Hall, the learned trial judge, having heard submissions from CVL's counsel (concerning CVL's ancillary claim against BLC), relented and proceeded with the trial ‘without further comment’ on the matter.

9 According to Mrs Superville-Hall, the learned trial judge's comments on the issue, in his judgment, further justifies the complaint. Learned counsel intimated that those comments indicate that although the learned trial judge proceeded with the trial, he really had not resiled from his stance toward Miss Powell's case. Using language borrowed from Lord Hope of Craighead's judgment in Porter v Magill [2000] 2 AC 455, Mrs Superville-Hall submitted that ‘a fair minded and informed observer, having considered all the facts, would conclude that there was a real possibility that the tribunal was biased’. In those circumstances, learned counsel submitted, the learned trial judge ought to have acceded to the application that he should recuse himself. That application was made at the time that he had decided to proceed with the trial. Mrs Superville-Hall was at pains to point out that there is no suggestion being made that the judge was actually biased.

10 Learned counsel representing each of the respondents resisted these arguments. Ms Small, on behalf of BLC, argued that the papers in the trial bundle before the learned trial judge supported his stance. The papers indicated, learned counsel submitted, that both Mr Pugh and BLC had denied any employer/employee relationship. Yet, Miss Powell, on paper, had not advanced anything that supported an alternative position. Learned counsel pointed out that the learned trial judge made his comments in response to a submission by counsel (not Ms Small) who appeared for BLC at the trial. Ms Small submitted that the question of bias was a fact-specific issue, and that, in the instant case, it cannot be fairly said that, when he made his comment, the learned trial judge had arrived at a concluded view. She relied on JSC BTA Bank v Mukhtar Ablyazov [2012] EWCA Civ 1551, in support of her submissions.

11 The relevant test in assessing a complaint of bias in respect of a tribunal, was restated in Porter v Magill. The re-stated test, which has been accepted as representing the law, may be expressed as follows:

‘The [appellate] court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility…that the tribunal was biased.’ (Paragraphs 102–103)

12 Lord Hope of Craighead, who fashioned that re-statement, also condensed it somewhat, by saying, at paragraph [103] of his judgment:

‘The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.’

13 That fair-minded and informed observer was invested with additional characteristics by the court in Gillies v Secretary of State for Work and Pensions [2006] 1 All ER 731. Lord Hope of Craighead said, in part, at paragraph [17] of his judgment:

‘…The fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind that it is the appearance that these facts give rise to that matters, not what is in the mind of the particular judge or tribunal member who is under scrutiny. It is to be assumed … that the observer is neither complacent nor unduly sensitive or suspicious when he examines the facts that he can look at.

It is to be assumed too that he is able to distinguish between what is relevant and what is irrelevant, and that he is able when exercising his judgment to decide what weight should be given to the facts that are relevant.’

14 Against the background of the abovementioned re-statement of the test, Rix LJ, in JSC BTA Bank, carried out a comprehensive assessment of the authorities dealing with various scenarios in which a complaint of apparent bias may arise. At several points in his judgment, Rix LJ quoted from decided cases to demonstrate the point that the possibility of bias should not be inferred merely because a judge had expressed a provisional view as to the possible merits of a party's case.

15 The learned law lord, at paragraph 46 of his judgment, quoted from the judgment in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 in order to place the reasoning in context. The points that he extracted from that judgment, in relation to this issue, were that judges:

• a. are sworn to be impartial;

• b. have a duty to try cases;

• c. are required to bear in mind the need to recuse themselves in the event that...