Demetrius Seixas v Tricia Maddix-Blair
| Jurisdiction | Jamaica |
| Judge | Master C. Thomas |
| Judgment Date | 07 July 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. SU2020/CV02168 |
[2022] JMSC Civ 103
CLAIM NO. SU2020/CV02168
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Civil Procedure — Rule 15.2 of Civil Procedure Rules — summary judgment — whether the defendant has real prospect of success — Rule 26.3(1) of the Civil Procedure Rules — whether the defendant's case should be struck out.
Lance Lamey instructed by Bignall Law for the Claimant
Miguel C. Palmer for the Defendant.
Master C. Thomas (AG)
The application before the court is one for summary judgment to be entered for the claimant against the defendant. In the alternative, the claimant seeks an order to have the defendant's statement of case struck out by the court.
The claim filed herein was commenced by way of claim form and particulars of claim filed on 23 rd June 2020. The claimant alleges that on 4 th March 2018, he was driving along Old Harbour Road, when the defendant negligently drove her motor vehicle, causing it to collide into the rear of the car that was being driven by the claimant. The claimant asserts in his particulars of claim that as a result of the accident, he suffered multiple and serious injuries, necessitating extensive medical treatment, loss, damage and he also incurred expense.
A defence was filed in response on 22 nd October 2020. The defendant admits that there was a collision involving herself and the claimant. She however avers particulars of negligence of the claimant, and further asserts that the collision was caused solely by or contributed to by the negligence of the claimant.
Subsequently, on 2 nd March 2021, the claimant filed the application for summary judgment, with which this judgment is concerned.
It should be stated at the outset that although the claimant applied for summary judgment, and alternatively for the defence to be struck out, the arguments advanced by counsel on both sides were centred on the summary judgment application.
In support of the application, it was submitted that no account was given by the defendant in her defence as to the steps that were taken to avoid the collision. This, it was contended, means that an inference can be drawn that if the claimant's motor vehicle was stopped then this would have reasonably allowed the defendant's vehicle a fair opportunity to either slow down or stop. Counsel argued that the conclusion must be drawn that the defendant's motor vehicle was either travelling at an inappropriate speed or following too closely to take evasive action to avoid the collision. Counsel further submitted that the defendant did not take any steps to mitigate the impact of the accident. No emergency brakes were employed nor was the horn sounded.
It was submitted that the defendant's case is a weak one and does not display a real prospect of successfully defending the claim against her. The defendant did not put forward enough to ground a defence that would necessitate a trial. In grounding this submission, reference was made to part 15 of the Civil Procedure Rules, 2002 (“CPR”), and the locus classicus of Swain v Hillman [2001] 1 All ER 91.
Counsel also relied on Ocean Chimo Ltd v Royal Bank (Jamaica) Ltd (RBC) et al [2015] JMCC Comm. 22, Sagicor Bank Jamaica Limited v Taylor-Wright [2018] UKPC 12 and Gordon Stewart, Andrew Reid and Bay Roc Limited v Merrick (Herman) Samuels SCCA No 2/2005, (delivered 18 November 2005) in exploring the threshold of “real prospect of success”.
It was submitted by Mr Lamey that the defendant was negligent in that there existed a duty of care and this duty was breached by the actions of the defendant. For this submission, reliance was placed on Le Lieve v Gould [1893] 1 QB 491, page 497.
Learned counsel highlighted that all users of the road owe a duty of care to other road users. Further, he submitted, motorists have a statutory duty and a common law duty to exercise reasonable care while operating their vehicles on the roadways. Counsel argued that drivers must maintain a proper distance whilst driving on the road to provide for exigencies on the roadway. Counsel referred to the dicta of Lord Cooper in the authority of Brown and Lynn v Western Scottish Motor Traction Co. Ltd. [1945] SC 31, [1944] SN 59 to support this submission.
Counsel also relied on Granger v Murphy Court of Appeal, The Bahamas, No. 11 of 1974 (unreported) for the submission that the defendant drove in such a manner that caused the collision into the back of the claimant's vehicle that had stopped ahead of him. This, it was submitted, displays a high degree of being potently causative of the injuries suffered by the claimant. Counsel argued that the collision and the claimant's injuries were attributable to the defendant's breach of duty of care and the accident could not have been caused by the reasonable man traversing prudently on the roadway.
Learned counsel submitted that the defence, even if proven could not relieve a defendant of his duty of care to follow at an appropriate distance behind another motor vehicle, so as to be prepared for exigencies which may arise. Mr Lamey argued that there could be no merit to a defence of ‘sudden stop’ resulting in a rear-end collision, and consequently, the defendant has no real prospect of successfully defending the claim.
Mr Palmer submitted that there was no dispute in relation to the law governing a summary judgment application; however, the point of departure was as to the application of the law to this case. He relied on Sagicor Bank Jamaica Limited v Taylor-Wright in relation to the approach of the court in summary judgment applications.
Mr Palmer relied on the text, Gilbert Kodilinye, Commonwealth Caribbean Civil Procedure 2 nd edn, to support his submission that summary judgment applications are not usually granted in negligence matters. He referred to the case of Cecilia Laird v Ayana Critchlow and Kinda Venner [2012] JMSC Civ 157 and submitted that the claimant has the burden of proving that the defendant has no real prospect of succeeding on her defence. Mr Palmer argued that the claimant's affidavit, which was filed on 2 nd March 2021, does not speak to the circumstances of the accident. In light of this, he argued that the court would have to consider the pleadings filed by both parties.
He submitted that it is accepted that there is a duty of care owed by a road user to all other road users to ensure that he proceeds carefully and cautiously. He referred to paragraphs four (4) and five (5) of the particulars of claim and submitted that these averments only touch on the circumstances, but not in great detail. He submitted that there were not sufficient facts to guide the court as to how the accident occurred. Counsel emphasised that there are only two vehicles involved in the accident, and so, he argued, the inference to be drawn is that the claimant is asking the court to consider whether he had contributed to the accident. Consequently, Mr Palmer submitted, in these circumstances, liability is not a foregone conclusion and therefore, this issue should be reserved for determination at trial.
Mr Palmer pointed out that the defendant is alleging, among other things, that the claimant failed to alert her of his intention to stop and also failed to keep a proper lookout. As a result, the defendant has also pleaded that the claimant contributed to the accident. Mr Palmer submitted that the issue of contribution has been raised by both parties and that as such, it should properly be ventilated by a court. He argued that this can only be properly achieved after the hearing of evidence from both parties. He submitted that the motor vehicle cases relied on by the claimant were distinguishable because they were decided on the particular facts of each case.
The issues requiring the court's determination are as follows:
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i. Whether summary judgment should be granted against the defendant;
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ii. Alternatively, whether the defendant's statement of case should be struck out.
Summary judgment applications have the effect of actualizing the court's overriding objectives of dealing with cases in a manner that saves expense and ensures that the court's resources are not used up on unmeritorious matters.
The procedure is outlined in part 15 of the CPR. The court is empowered to give summary judgment on either the entire claim or on a particular issue. The bases or grounds upon which the court can do so are set out in rule 15.2 of the CPR. It states:
“ Grounds for summary judgment
15.2 “The Court may give summary judgment on the claim or on a particular issue if it considers that—
(a) the claimant has no real prospect of succeeding on the claim or the issue; or
(b) the defendant has no real prospect of successfully defending the claim or the issue.”
In determining whether to grant the application for summary judgment, I am guided by Swain v Hillman, which is authority for the test applicable to applications of this nature, that is, the prospect of success must be realistic as opposed to fanciful. I also take into consideration the following principles, which are not exhaustive, that have emanated from various authorities:
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(i) The case must be more than just arguable; however, it does not require a party to convince the court that his case must succeed ( International Finance Corporation v Utexafrica SPRL [2001] EWHC 508, relied on by Simmons J (as she was then) in Cecelia Laird).
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(ii) The burden of proof is on the applicant to prove that the other party's case has no real prospect of success ( Island Car Rentals v Lindo 2015 JMCA App 2; ...
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