Erlene Melbourne v Jamaican Infrastructure Operator Ltd
| Jurisdiction | Jamaica |
| Judge | A. Nembhard J |
| Judgment Date | 28 July 2022 |
| Year | 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2014 HCV 00645 |
(Administratrix in the Estate of the late Osbourne Melbourne, Deceased)
and
[2022] JMSC Civ 121
CLAIM NO. 2014 HCV 00645
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION
Tort — Breach of statutory duty — Whether a statutory duty of care is imposed on the highway authority — Whether the highway authority breached the statutory duty — Liability of highway authority
Occupiers' liability — Common duty of care — Degree of care — Use of the highway — Motorist injured while using the highway — Unidentified object thrown by unidentified persons from overhead bridge along the highway — Object impacted motorist — Whether the highway is considered to be premises in accordance with the statute — Whether the highway authority is an occupier — Whether motorist is a visitor — Whether motorist is a visitor of the highway authority — Liability of highway authority
Negligence — The duty of care owed by the highway authority to the lawful users of the highway — Whether the highway authority breached the duty of care — Liability of the highway authority
Res ipsa loquitur — Doctrine of — Whether the doctrine of res ipsa loquitur applies
Contract — Whether contract created between the highway authority and a user of the highway — Whether the highway authority owes a duty of care to a user of the highway by virtue of contract — Whether the highway authority is in breach of contract — Liability of highway authority
The Toll Roads Act, 2001, section 16, The Occupiers' Liability Act, 1969, sections 2 and 3, Main Roads Act, sections 4(1) and 4(2), 5(1)(a) and 5(1)(b)
Mr Aon Stewart instructed by Messrs. Knight, Junor & Samuels for the Claimant
Mesdames M. Georgia Gibson Henlin Q.C. and Ronece Simpson instructed by Henlin Gibson Henlin for the Defendant/Ancillary Claimant
Ms Faith Hall instructed by the Director of State Proceedings for the Ancillary Defendant
The afternoon of Sunday, 13 February 2011, is one that the Melbourne family will never forget. At approximately 12:30 p.m., that fateful afternoon, the patriarch of the family, Mr Osbourne Melbourne, was the driver of a Toyota Probox motor car, registered 2267FA (“the Toyota Probox”). He was accompanied by some of his family members, including his wife, Mrs Erlene Melbourne. His route lay along Highway 2000, Phase I, in the parish of St. Catherine.
As Mr Melbourne approached the Bernard Lodge Overhead Bridge (“the Bernard Lodge Bridge”), a missile was thrown from the Bernard Lodge Bridge by an unidentified person or persons. That object shattered the front windscreen of the Toyota Probox and directly impacted Mr Melbourne. As a consequence, Mr Melbourne sustained multiple injuries and ultimately, he lost control of the Toyota Probox.
Mr Melbourne was rushed to the Spanish Town Hospital where, tragically, he succumbed to his injuries. 1
It is in the context of these cataclysmic circumstances that the Claim Form was filed by Mrs Erlene Melbourne, the widow of the deceased, in her capacity as Administratrix of her late husband's estate. 2 The Claim is against the Defendant, the Jamaican Infrastructure Operator Limited (“JIO”), the operator of the East-West Corridor of Highway 2000, Phase I (“the highway”).
By way of a Claim Form, which was filed on 7 February 2014, Mrs Melbourne alleges that, on 13 February 2011, as a result of JIO's negligence, her late husband, who was at all material times, a lawful user of the roadway, crashed and suffered severe injuries, to which he later succumbed.
The Claim raises issues in relation to:-
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(i) Whether JIO owed a statutory duty of care to Mr Melbourne by virtue of The Toll Roads Act and/or The Occupiers' Liability Act;
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(ii) Whether JIO is liable in negligence; and
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(iii) Whether JIO is liable in contract.
The Claim raises the specific issue of whether JIO can properly be held liable for the injuries suffered by and the subsequent death of, Mr Melbourne.
On 24 March 2014, JIO filed a Defence and an Ancillary Claim Form. By virtue of the Ancillary Claim Form, JIO seeks against the Ancillary Defendant, the Attorney General of Jamaica, an indemnity and/or contribution for any sums of money in respect of which it is held liable.
The following issues are determinative of the Claim:-
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(i) Whether JIO owed a duty of care to Mr Melbourne by virtue of The Toll Roads Act and/or The Occupiers' Liability Act;
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(ii) Whether JIO is liable in negligence;
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(iii) Whether the doctrine of res ipsa loquitur applies; and
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(iv) Whether JIO is liable by contract.
Breach of statutory duty is concerned with the duties created by statute. The tort of breach of statutory duty arises in circumstances where a statute, which has as its main objective the imposition of a regulatory or criminal law framework, also gives rise to duties in tort. A claimant must demonstrate that the defendant breached a statutory obligation which was intended to confer a right of action in private law upon a class to which he belongs, and that the breach caused relevant harm.
At almost every stage in the legal framework for establishing a claim for breach of statutory duty, it is necessary to consider the proper interpretation to be applied to the relevant statute; the wording and overall scheme of the relevant statute or regulation; and the basic principles of statutory interpretation.
The tort of breach of statutory duty is conceptually an entirely separate tort from other related torts, such as negligence. Nor should it be confused with claims in negligence which can arise from the careless exercise of a discretion associated with a statutory duty or from the inadequate exercise of a statutory power. The statutory right has its origin in the statute but the particular remedy of an action in damages is given by the common law, in order to make effective for the benefit of the injured party, his right to the performance by the defendant of the defendant's statutory duty. It is not a claim in negligence in the strict or ordinary sense. There is an important distinction between the tort of breach of statutory duty and the action for negligence which can arise as a result of the careless or inadequate exercise of a statutory power. It is also critical to distinguish between statutory duties and the implied discretions associated with them and statutory powers in situations involving public authorities.
The common law duties of public bodies are no more extensive than those of a private person in similar circumstances, irrespective of the extent of the body's public law power and duties. Liability for the negligent exercise of statutory powers is likely to arise only where the public body has assumed responsibility to the claimant or exposed him to risk by its creation of a danger.
It is now settled law that no liability will arise in negligence out of a mere failure, without more, by a public body to confer a benefit by its omission to fulfil a public statutory duty or to exercise a statutory power, however irrational such failure may turn out to have been. 3 Similarly, as a general rule, the proximity created by a statutory relationship does not create a duty of care. 4
The following propositions must be proved, on a balance of probabilities, before a claimant can establish liability for breach of statutory duty:-
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(i) the statute must have been intended to create civil liability, so that a duty of care arises under the statute;
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(ii) the statutory duty must have been owed to the particular claimant;
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(iii) the statutory duty must have been imposed on the defendant;
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(iv) the defendant must have been in breach of the statutory duty;
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(v) the breach of the statutory duty must have resulted in damage of a type contemplated by the statute; and
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(vi) the breach of the statutory duty must have caused the damage of which the complainant complains. 5
It is trite law that, in a claim grounded in the tort of negligence, there must be evidence to show that a duty of care is owed to a claimant by a defendant, that the defendant acted in breach of that duty and that the damage sustained by the claimant was caused by the breach of that duty.
It is equally well established by the authorities that, where a claimant alleges that he has suffered damage resulting from a defendant's negligence, a burden of proof is cast on him to prove his case on a balance of probabilities. 6
This principle was enunciated by Lord Griffiths in Ng Chun Pi and Ng Wang King v Lee Chuen Tat and Another. 7 He stated at pages 3 and 4:-
“The burden of proving negligence rests throughout the case on the plaintiff. Where the plaintiff has suffered injuries as a result of an accident which ought not to have happened if the defendant had taken due care, it will often be possible for the plaintiff to discharge the burden of proof by inviting the court to draw the inference that on the balance of probabilities the defendant might have failed to exercise due care, even though the plaintiff does not know in what particular respects the failure occurred…
…it is the duty of the judge to examine all the evidence at the end of the case and decide whether on the facts he finds to have been proved and on the inferences he is prepared to draw he is satisfied that negligence has been established.”
In Miller v Minister of Pensions, 8 Denning J, speaking of the degree of cogency which evidence must reach in order that it may discharge the legal burden in a civil case, had the following to say:-
“That...
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