Debbie Powell v Osmond Pugh and Others

JurisdictionJamaica
Judge SYKES J
Judgment Date19 March 2010
Judgment citation (vLex)[2010] 3 JJC 1902
Date19 March 2010
CourtSupreme Court (Jamaica)
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CONSOLIDATION WITH
CLAIM NO C.L. 1997/P - 160
CLAIM NO. C.L. 2000/P - 037
BETWEEN
DEBBIE POWELL
CLAIMANT
AND
BULK LIQUID CARRIERS LTD
1 ST DEFENDANT
AND
OSMOND PUGH
2 ND DEFENDANT
AND
CARIBIC VACATIONS LTD
3 RD DEFENDANT
BETWEEN
DEBBIE POWELL
CLAIMANT
AND
OSMOND PUSH
DEFENDANT

IN OPEN COURT

Norman O. Samuels for the claimant
David Batts instructed by Livingston Alexander and Levy for the first defendant
David Johnson instructed by Samuda and Johnson for the second defendant
Camille Wignall instructed by Nunes Scholefield Deleon and Co for the third defendant

VICARIOUS UABIUTY - WHETHER PERSON EMPLOYEE OF COMPANY - INDEPENDENT CONTRACTOR - WHETHER COURT ON MOTION CAN RAISE ISSUE OF SUMMARY JUDGMENT AT TRIAL

TORT - Vicarious liability - Person - Whether person employee of company - Independent contractor - Whether court on motion can raise issue of summary judgment at trial

SYKES J
1

Miss Debbie Powell works in the hospitality industry in Ocho Rios in the garden parish of St. Ann. On September 29, 1994, she accepted a ride from Mr. Roderick Ellis, an employee of the Caribic Vacations Limited ("CVL"), who was driving one of CVL's buses from Ocho Rios to Montego Bay, St. James.

2

The trip turned out to be quite disastrous. When the bus reached that stretch of road known as the Rose Hall main road, it slammed into the rear of a trailer owned by Bulk Liquid Carriers Ltd ("BLC") which was drawn by a trailer head owned and driven by Mr. Osmond Pugh. Mr. Roderick Ellis succumbed to his injuries.

3

Miss Powell suffered injuries herself for which she now seeks compensation from BLC, CVL and Mr. Pugh. Her claim against BLC and CVL are predicated on the principle of vicarious liability which itself rests on the idea that an employee of BLC or CVL was negligent. Miss Powell alleges that Mr. Pugh and Mr. Ellis were the employees of BLC and CVL respectively at the time of the collision.

CVL's liability

4

I shall deal with question of whether CVL is liable first since that is easier to dispose of. I have concluded that CVL is not liable to Miss Powell because Mr. Ellis, although an employee of CVL at the time, was not acting within the scope of his employment at the time of the accident.

5

The evidence in the case is that Mr. Ellis was dispatched by CVL to pick up passengers at the Donald Songster International Airport in Montego Bay. He was to take them to a hotel in Ocho Rios. This group of passengers was on an island tour. According to Mr. Oliver Townsend who testified for CVL, the driver of the bus is more than a driver. He is a driver/chaperone/tour guide/host. His company provides a unique service for its clients. The driver does not simply take the passenger to the hotel. He remains with the guests from their arrival to their departure. He stays at the same properties as the guests wherever they may be in the island.

6

The evidence is that Mr. Ellis was required to pick up the passengers, take them to their hotel and stay with them throughout their tour. To this end, hotel accommodations were also made for Mr. Ellis. On the face of it there was no need for Mr. Ellis to be traveling back to Montego Bay for any reason connected with company business.

7

In this particular case, no evidence was presented to the court to suggest that Mr. Ellis had any reason to be traveling back to Montego Bay from Ocho Rios. On the evidence, it is a fair inference to say that Mr. Ellis picked up the passengers and took them to Ocho Rios. He then decided to return to Montego Bay. It was on this trip back to Montego Bay that he picked up Miss Powell. There is no evidence that he was summoned to or was asked by the company to return to Montego Bay. There is no evidence that anything had happened that would necessitate a return to Montego Bay on company business. Neither is there any evidence that he was taking any of the passengers on any trip connected with the company's business at the time he was driving back to St. James.

8

Despite the valiant effort of Mr. Samuels I am unable to conclude that when Mr. Ellis was driving back to Montego Bay he was still on CVL's business. This trip was not a deviation within the scope of his employment. The evidence points to the conclusion that it was Mr. Ellis' independent decision to return to Montego Bay without any known reason when the totality of the evidence suggest that he would have no need to do so.

9

Mr. Samuels tried to say that since Mr. Ellis was an experienced and trusted employee of CVL, then he must have been coming back to Montego Bay for reasons connected with his employment, therefore he must have been acting within the scope of his employment and thus, CVL is vicariously liable. Speculation is not a substitute for evidence. My conclusion therefore is that assuming, Mr. Ellis was negligent, there is no factual basis for CVL to be held vicariously liable. The claim against CVL is...

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