Denniehal Myers v Byron Fletcher

• Jurisdiction: Jamaica
• Judge: Tracey-Ann Johnson, J
• Judgment Date: 20 June 2023
• Docket Number: CLAIM NO. 2014HCV04977
• Court: Supreme Court (Jamaica)

Between

Denniehal Myers

Claimant/Applicant

and

Byron Fletcher

Defendant/Respondent

Between

CONSOLIDATED WITH CLAIM NO. 2014HCV04978

Tanica Jones

Claimant/Applicant

and

Byron Fletcher

Defendant/Respondent

[2023] JMSC CIV 123

Tracey-Ann Johnson, J (AG.)

CLAIM NO. 2014HCV04977

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

APPLICATION FOR SUMMARY JUDGMENT — APPLICATION TO STRIKE OUT STATEMENT OF CASE — WHETHER DEFENCE IS A BARE DENIAL — WHETHER DEFENCE OF INEVITABLE ACCIDENT ESTABLISHED — LIABILITY FOR NEGLIGENCE

IN CHAMBERS

Mr. Nicholas Granger instructed by Bignall Law for the Claimants/Applicants.

Mrs. Racquel Dunbar instructed by Dunbar & Company for the Defendant/Respondent.

Tracey-Ann Johnson, J (AG.)

THE APPLICATION

1 The Claimants, Denniehal Myers and Tanica Jones (hereinafter “the Applicants”) in Claim number 2014HCV04977 and Claim number 2014HCV04978 respectively, filed separate applications in this court for Summary Judgment or alternatively for the Defendant (hereinafter the Respondent), Byron Fletcher's statement of case to be struck out. Both claims were consolidated on June 7, 2023 pursuant to an application by the Applicants' Attorneys-at-Law. Therefore, the Court heard the applications for both claims together and this ruling is applicable to both applications. In the Notices of Application for Court Orders both filed on June 14, 2021, the Applicants seek the following orders that:–

“1. Summary Judgment be entered for the Claimant on the issue of liability with damages to be assessed;

2. A declaration that the Defendant has no reasonable prospect of successfully defending the claim on the issue of liability;

3. Alternatively, that the Defendant's statement of case be struck out;

4. The cost of this Application and costs herein be to the Applicants; and

5. There be any such further and other relief as this Court deems just.”

2 The grounds upon which the Applicants seek the Orders are as follows:

• 1. Pursuant to Rule 15.2 (b) the Defendant's Defence has no real prospect of successfully defending the issue of liability;

• 2. Pursuant to Rules 16.4(1) and 16.4(2) (b) which empowers this Honourable Court to give directions for the trial of an issue of quantum on the hearing of an application for Summary Judgment;

• 3. Pursuant to Rule 26.3(1) (b) and (c) the court may strike out a statement of case or part of a statement of case if it appears to the court that the statement of case is an abuse of the process of the court and is likely to obstruct the just disposal of the proceedings, and that the statement of case discloses no reasonable grounds for defending the claim; and

• 4. Pursuant to Rule 1.1 and in particular, Rule 1.1(2) (b) and (d) the granting of the orders herein will enable the court to proceed with the claim fairly and expeditiously.”

3 The Applications are supported by the Affidavits of Vaughn O. Bignall in Support of Notice of Application for Court Orders for Summary Judgment filed on the 14th day of June 2021. Counsel for the Claimants also made written and oral submissions. The Respondent did not file any Affidavit in Response. However, he opposed the application and set out his reasons for doing so in the form of written and oral submissions made by his Attorney-at-Law.

BACKGROUND/THE CLAIM

4 The Applicants both filed claims in this court against the Respondent by way of a Claim Form and Particulars of Claim, which were filed on the 22nd day of October 2014 in which they seek damages for negligence. They allege that on or about the 19th day of August 2013, they were passengers in the Respondent's motor vehicle, which the Respondent was driving along the Discovery Bay Road, in the parish of St. Ann. The Defendant negligently drove, managed or controlled the vehicle that it lost control and ran off the roadway, causing the Claimants to suffer injury, loss, damage and incur expenses. They assert that the accident was wholly caused and/or contributed to by the negligence of the Defendant. Both Claimants annexed separate interim medical reports dated 8th July 2014 prepared by Dr. George W. Lawson.

5 The Respondent filed a Defence in claim number 2014HCV04978, Tanica Jones v Byron Fletcher, on the 17 ^th day of February, 2017 and in claim number 2014HCV04977, Denniehal Myers v Byron Fletcher on the 15 ^th December, 2017, which were in similar terms. In his Defence, he indicated that he admits that the Claimants were passengers in his motor vehicle and that they were lawful users of the roadway. He further admitted that on or about the 19th day of August 2013, he was the driver of his vehicle at the time of the accident and that his vehicle ran off the roadway. He denied that he was negligent together with the Particulars of Negligence. He averred that the accident was an inevitable one in that he was driving along the Liberty Hill main road, St. Ann when his car ran over an object that caused it to run off the roadway. He indicated that the roadway was dark and it was foggy so he had no opportunity of seeing the object his car ran over. He further indicated that if, which is not admitted, the Claimants suffered injuries, loss and damage, same was not caused by or contributed to by any negligence on the part of the Defendant. In relation to the Particulars of Injury and Particulars of Special Damage, he denied that the Applicants suffered the alleged personal injuries, loss and damage as a result of the accident on the 19th day of August 2013. He objected to the medical reports of Dr. George Lawson dated the 8th day of July 2014 as they are not contemporaneous with the accident on the 19th day of August 2013 and required that Dr. Lawson attends for cross-examination. In relation to the Claimant, Denniehal Myers, he indicated that the injury she sustained was trauma to her breast from the seatbelt squeezing it. He further stated that Miss Myers was his girlfriend and they were going home at the time of the accident. He saw her daily in the days, weeks and months after the accident and she did not suffer from any of the injuries alleged in her claim.

SUBMISSIONS ON BEHALF OF THE APPLICANTS

6 Counsel on behalf of the Applicants made written submissions which were amplified by oral submissions which can be summarised as follows:

• (i) He cited the relevant rules of the Civil Procedure Rules (“CPR”) that are applicable to the application which are, Rules 15.2 (b), 10.5 (4),26.3(1) (b) and (c) and 1.1(2)(b).

• (ii) He directed the court to a number of authorities that deal with applications for summary judgment and which can provide guidance to the Court. These were Swain v Hillman [2001] 1 All E.R 91, 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, Gordon Stewart, Andrew Reid and Bay Roc Limited v Merrick (Herman) Samuels (unreported), Court of Appeal, Jamaica, Supreme Court Civil Appeal No 2/2005, judgment delivered 18 November 2005.

• (iii) Counsel submitted that in assessing whether the test has been satisfied, there must be shown a defence on the merits; a defence of substance and quality with a high threshold of real prospect of success: Forrest v Walker and Pitt [2019] JMSC Civ 25. He posited that the defence is a bare one and does not display a real prospect of successfully defending the claim.

• (iv) Paragraphs 17 to 19 of the written submissions dealt with negligence in circumstances where the Defendant collided into the back of a vehicle, which is different from the circumstances of this case. Therefore, the authorities cited in these paragraphs, although considered, were not relied on by the Court.

• (v) No evasive action was taken by the Respondent to avoid the [accident]. The extent of the case put by the defence is that the Respondent acted at a necessary level of skill as a roadway user. Such a defence is a weak one and does not display a real prospect of successfully defending the claim.

• (vi) Under the general principles of negligence, the Defendant breached his duty of care to the Applicants which arose under the proximity ingredient in proving negligence: Le Lievre v Gould [1893] 1 QB 491.

• (vii) The defence does not equate to a defence with a reasonable prospect of success, as it is not sufficient for a trial. He asked that the Court give effect to the overriding objective in the CPR of enabling the court to deal with cases justly, saving expense, achieving expedition and ensuring that the court's resources are not used up on cases, which are unmeritorious.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

7 Counsel on behalf of the Respondent made written submissions which were amplified by oral submissions which can be summarised as follows:

• (i) In a claim for damages for negligence in order for liability of the Defendant to be properly established it must be proven that the Defendant was negligent and that the Defendant's negligent actions caused the Claimant harm arising from which the Claimant suffered loss and damage.

• (ii) In relation to the definition and elements of negligence, she pointed the court to the text of Commonwealth Caribbean Tort Law, 4th Edition by Gilbert Kodilinye at page 61. She also relied on Lochgelly Iron & Coal Co. Ltd. V McMullan [1934] A.C. 1.

• (iii) To determine whether a duty of care is owed to the Claimant in question, she pointed the Court to the case of Anns v London Borough of Merton [1977] 2 All E.R 492 at 498.

• (iv) In relation to the test and approach to be applied in summary judgment applications, she relied on Swain v Hillman [2001] 1 All E.R. 91; Sasha Gaye Saunders v Michael Green and Others Claim No 2005 HCV 2868 delivered February 27, 2002; E.D.F. Man Liquid Products Ltd. v Patel & Anor [2003] All E.R. 75; Jamaica Creditors Investigation & Consultant Bureau Ltd. v Michmont Trading Limited SCCL 2002/J-015 delivered May 9, 2003.

• ...