General Engineering Services Ltd v Kingston and St. Andrew Corporation
| Jurisdiction | Jamaica |
| Judge | Carey, J.A.,White, J.A.,Wright, J.A. |
| Judgment Date | 02 October 1986 |
| Neutral Citation | JM 1986 CA 51 |
| Docket Number | Civil Appeal No. 3 of 1985 |
| Court | Court of Appeal (Jamaica) |
| Date | 02 October 1986 |
Court of Appeal
Carey, J.A; White, J.A.; Wright, J.A.
Civil Appeal No. 3 of 1985
R.C. Rattray, Q.C. and C. Cousins for the appellant.
Dr. L. G. Barnett and J. Vassell for the respondent.
Tort - Firemen on “go slow” — Industrial action — Company's operations destroyed — Whether the employers of firemen, the Kingston and St. Andrew Corporation, vicariously liable in negligence or breach of statutory duty for acts of its employees — Trade dispute.
General Engineering Services Ltd. (the company) carried on the business of mechanical and electrical engineers, manufacturers' representatives for electrical equipment, general estate services and consultants and owned premises 27 Dunrobin Avenue in St. Andrew at which were stored specialised medico-electrical equipment of various kinds, and other paraphernalia connected with the company's multifarious operations. On 13th October 1977, a fire occurred on those premises completely destroying not only a building which served as office and storeroom, but also the contents therein, the total loss being set at $6.2M.
That date, 13th October 1977, was no less inopportune for the Kingston and St. Andrew Corporation (the K.S.A.C.) because members of the Kingston and St. Andrew Fire Brigade services, had just shortly before that, initiated industrial action against the K.S.A.C. specifically the firemen had embarked upon that apology for work, quaintly called ‘a go-slow’. In the event, although a report of the fire at the company's premises was communicated to the Fire Brigade station at Half Way Tree within minutes of its discovery, the firemen, consistent with their industrial strategy, responded to the call with less than the usual alacrity. A distance of 1 1/2 miles ordinarily covered by the fire-unit in no more than 3 1/2 minutes, occupied on this occasion some 17 minutes. According to the respondent's own witness, had the Fire Brigade responded at their accustomed pace, the fire would have been speedily extinguished, and one supposes the company would have been spared the apparent total ruin of its business.
The company thereafter filed a Writ against the corporation for negligence and breach of statutory duty, hoping that like a veritable phoenix, it would rise again from the ashes of that disastrous fire. At a trial before Malcolm, J., that hope was not realised however, because the action was dismissed, judgment being given in favour of the K.S.A.C. with costs. This appeal is against that judgment which is dated 14th December, 1984.
In order to appreciate the appellant's case, I think it helpful to advert to the statement of claim which pleaded (so far as is material) as follows:–
“3. The aforementioned Kingston & Saint Andrew Fire Brigade has a statutory duty to extinguish all fires within the fire limits and to protect life and property in the case of any such fire.
4. The premises of the plaintiff situated at 27 Dunrobin Avenue, Kingston 10 in the parish of Saint Andrew aforementioned are within the fire limits referred to in paragraph 3 hereof.
5. The plaintiff claims that the statutory duty imposed on the Kingston & Saint Andrew Fire Brigade and referred to in paragraph 3 hereof is owed to the plaintiff in respect of premises 27 Dunrobin Avenue, Kingston 10 in the parish of Saint Andrew.
6. On the 13th October, 1977, a fire started on the premises of the plaintiff Company at 27 Dunrobin Avenue, Kingston 10 in the parish of Saint Andrew at approximately 5:45 a.m.
7. That the plaintiff claims that shortly after the outbreak of the said fire, the Fire Brigade at Half Way Tree was notified and requested to take immediate steps to attend to and extinguish the said fire in keeping with the duty of the Kingston & Saint Andrew Fire Brigade referred to in paragraph 3 hereof.
8. The plaintiff further claims that reasonable performance of the aforementioned duty would have resulted in the extinguishment of the said fire with minimal damage and loss to the plaintiff.
9. At the time of the said fire, the members of the Kingston & Saint Andrew Fire Brigade were engaged in industrial action, to wit a go slow for the purpose of obtaining increased emoluments and fringe benefits.
10. The Kingston & Saint Andrew Fire Brigade in breach of its statutory duty under the Kingston & Saint Andrew Fire Brigade Act failed to respond promptly to the call in respect of the fire at the plaintiff's premises and further failed to proceed at a reasonable pace to attend to the extinguishment of the said fire, delayed the arrival of the Fire Brigade to the scene of the fire and having arrived, failed to attend promptly and with due diligence to the extinguishment thereof. Further and/or alternatively the defendant failed to take the necessary steps to ensure its ability to carry out its statutory duty.
11. The Kingston & Saint Andrew Fire Brigade was negligent in:–
(a) Failing to respond promptly to the call in respect of the fire at 27 Dunrobin Avenue, Kingston 10 in the parish of Saint Andrew aforesaid.
(b) Failing to travel to the scene of the fire with due expedition.
(e) Deliberately refraining from acting promptly and efficiently in respect of extinguishing the said fire.
(d) Failing to deal efficiently with the extinguishing of the said fire.”
As to paragraph 10, particulars of negligence were requested and supplied as follows:
“(a) the defendant failed or neglected to advise the Minister responsible for Defence that having regard to all the circumstances he should direct members of the Jamaica Defence Force to carry out the statutory duty;
(b) the defendant failed or neglected to advise the Chief of Staff of the Jamaica Defence to place on alert those members of the Force, who he had nominated, to extinguish fires within the fire limit and to protect life and property as permitted by the Statute”.
The defence (so far as is relevant) was expressed as follows:
“3. The defendant denies paragraph 3 of the Statement of Claim and says that the duty of the defendant is to provide within the limits of its financial, material and human resources a fire service, but has no statutory duty to ensure or guarantee the protection or safety of any property. Further the control and discipline of the said service is vested in a statutory Committee.
5. The defendant denies paragraph 5 of the Statement of Claim and says that the statutory duty is owed to the public generally…
8. The defendant denies paragraphs 8, 10-12, inclusive of the Statement of Claim, and says that in any event the acts complained of are of non-Feasance for which the defendant is not liable.
9. The defendant further says that the slow response to the call in question was due to the fact that its employees who manned the fire service were engaged in an unlawful industrial action in contravention of the Labour Relations and Industrial Disputes Act, in breach of their contract of employment with the defendant, contrary to the orders and instructions of the defendant and in repudiation of their obligations to the defendant.
10. In acting as aforesaid, the said employees of the defendant were acting outside the scope of their employment and in criminal frolic of their own.”
The learned judge in a considered judgment, had little difficulty in finding that the firemen had been dilatory not only in responding to the call but in setting up operations to extinguish the fire. But they had quickly put out the fire thereafter.
Before considering the submissions, the following sequence of events prior to the fire must also be detailed. On 11th October 1977, the Assistant Town Clerk responsible for industrial relations, was advised that industrial action on the part of the firemen was being contemplated. He duly brought this situation to the attention of the Mayor and in the event, both visited the York Park Fire Station where the grievances of the firemen were aired. They advised the men that their complaints constituted no ground for dispute and required them to resume duty immediately. It was understood that “immediately” really meant that normalcy would be expected at the first shift on 12th October. On that day, the Assistant Town Clerk spoke with Colonel Mignon of the J.D.F. and alerted him to the fact of industrial unrest among the firemen. This communication was made with the full knowledge and acquiescence of the Mayor. The usual procedure was for the Mayor to advise the Minister of Local Government (under whose aegis the K.S.A.C. would fall) of the situation and military personnel would only assume duty at the point where there was a complete break down of services. The military, in fact, took over firefighting operations on 14th October, the day after the fire occurred on the appellant's premises.
The primary question which falls to be determined may be stated thus: is the Corporation vicariously liable in negligence or breach of statutory duty for the acts of its employees committed in pursuance or furtherance of an industrial dispute with the K.S.A.C.? But there are some other matters of principle raised before us, which must be settled before I come to deal with the question I have posed.
Mr. Rattray argued that a duty both at common law and by statute was imposed on the K.S.A.C. to extinguish fires, and protect life. Dr. Barnett took exception to the K.S.A.C. being sued in the first place, because as he argued, no duty either at common law or statute was imposed on it with respect to the extinguishment of fires.
The relevant statute is the Kingston and St. Andrew Fire Brigade Act under which the K.S.A.C.'s fire services are constituted. Section 3(1) provides as follows:
“For the purposes of protecting life and property in the case of fire within such limits of the Area as the...
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