Gillespie (David) v Chin's Construction Ltd and another

• Jurisdiction: Jamaica
• Judge: Sinclair-Haynes J
• Judgment Date: 27 November 2009
• Judgment citation (vLex): [2009] 11 JJC 2701
• Docket Number: CLAIM NO. HCV 00496/2006
• Court: Supreme Court (Jamaica)
• Date: 27 November 2009

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. HCV 00496/2006

BETWEEN

DAVID GILLESPIE

CLAIMANT

AND

CHIN'S CONSTRUCTION LTD.

1 ^st DEFENDANT

AND

ANDREW STAPLE

2 ^nd DEFENDANT

^st

^nd

NEGLIGENCE - Vicarious liability - Damages

1 Negligence - Vicarious Liability

Sinclair-Haynes J

2 On Monday, 20 ^th November 2004, Mr. David Gillespie (claimant) a severely hearing impaired electrician was pressed against an old chassis whilst on premises of Chin's Construction Ltd., (first defendant) by a truck owned by the first defendant. The movement of the truck was caused by an act of Mr. Staple (second defendant). The accounts as to what transpired are divergent. Mr. Gillespie claims damages for personal injury and loss.

3 The salient questions are:

• a. what act of Mr. Staple caused the backward movement of the truck which collided with Mr. Gillespie?

• b. was Mr. Gillespie at that time acting as the servant and/or agent of the first defendant?

4 The Claimant's Version

5 Mr. Gillespie's account is that Mr. Staple; the first defendant's employee negligently reversed the truck on him. It is his evidence that on the 19 ^th November 2004 Mr. Andre Chin invited him to the compound of Chin's Construction Limited to repair the starter of a truck. Whilst he was repairing that truck, Mr. Chin asked him to repair the rear lights of a Daihatsu truck. He returned to the compound the following day at 9:00 a.m. He completed work on the first vehicle at 6:00 pm. and completed the repairs to the lights of the Daihatsu truck at about 7:00 p.m. Whilst he was working on the second truck, Mr. Staple was hurrying him because he wanted to park the truck. Just as he completed working on the truck, he went behind it to pack his tool and told Mr. Staple he could have it. Mr. Staple went into the truck and reversed it. The truck moved backwards at a fast rate of speed. He realized the truck was coming at him when it was about two feet from him. He did not hear when Mr. Staple engaged the brake which is understandable because of his hearing disability. He, Mr. Gillespie ran backwards to avoid the collision but the truck collided with his middle section and pinned him to the chassis. It is also his evidence that the truck was about 13 feet from the chassis. His evidence is that he had seen Mr. Staple move trucks in the yard of the compound.

6 He testified that in order to test whether the lights and lamps were working he used a live wire and battery to bypass the switch. He did not have to turn the ignition switch or engage the gears because he attached a live wire to the live side of the battery. He explained that the reverse light was found under the pedal and it was not necessary to turn on the ignition to see if they worked. He connected a live wire to current from the battery. He ran the wire to the switch and lamp in order to energize the system. He further explained that if the lights fail to come on when the live wire is applied, it means there is a problem in the circuit and something is not functioning properly.

7 Similarly, in order to determine whether the brake worked, the wire was placed on the switch of the brake lights. The brake switch can be by- passed without pressing the brakes. It was not necessary to put the vehicle in reverse in order to determine if the brake lights worked because he applied the live wire.

8 There was no need to turn the key to test the light because the live wire was used in place of the switch. If the switch is not working, the vehicle would start. It is his evidence that when the switch is turned off in the truck, current goes off in the ignition system but not the lights. The ignition switch does not work the lights; the lights remain on because they are operated by another switch by unscrewing the switch and pressing the tongue of the switch. The switch is found under the dashboard. If that switch is pressed and' bucked' it keeps sending current. He was able to 'stick the switch' and went to the rear of the truck to see if the lights worked.

9 It is also his evidence that it is true in a sense that in order to find out whether the reverse light is activated, the gear may be put in reverse. He also agreed that the normal way for the brake lights to come on is to have the ignition on and the brakes pressed. However, he explained that an electrician uses a live wire and operates manually because he uses a live wire to test the system; there was no need to put the gear stick in reverse.

10 Under cross-examination by Mr. DeLisser, he explained that he connected the raw end of the live wire to one terminal of the battery. He held the other end in his hand; the wire was about 20 feet in length. He tested the circuits at the back of the truck. The live wire was used to test if current was reaching the circuits. When he conducted his test, the lights did not come on because the wires were not connected. The circuits were working but all the wires were disconnected. He connected the current and connected the wires to the circuits.

11 Mr. Staple's Version

12 Mr. Staple's version is entirely contrary to Mr. Gillespie. His evidence is that he is a mechanic employed to the first defendant. He repairs trucks, tractors and diesel vehicles. At about 4:30 p.m. that Saturday, Mr. Gillespie, was doing electrical work on a Daihatsu six (6) wheeler truck which was parked about 4 feet in front of another vehicle. Mr. Gillespie asked him to start the truck for him. As a result, he stood outside and opened the right door of the vehicle and turned the key in the ignition. Mr. Gillespie had turned on the ignition and left the gear in reverse. The vehicle jumped backwards but did not start. Mr. Gillespie was behind the vehicle working on the rear lights and was squeezed between both vehicles. The driver put the vehicle in neutral and they pushed the truck off him. It is his evidence that the vehicle is a standard shift. It is also his evidence that he volunteered to help Mr. Gillespie. Mr Staple testified that he has been a mechanic for nine years and he has worked with the Chins for three years. He is not permitted by his employer to drive. He does not have a driver's licence and he does not know how to drive. He has never sat in a driver's seat. He does not know how to move a vehicle forward and he does not know how to steer a vehicle. It is his evidence that that was the first time in the three years he worked with the Chins that he turned a key in a vehicle. He agrees that mechanics, in repairing vehicles test drive them to see if they work. However he does not test drive because he cannot drive.

13 Mr. Rodney Chin's Evidence

14 Mr. Rodney Chin's evidence is that Mr. Staple was not allowed to drive the vehicles. In driving the vehicle, he was not acting as his servant and/or agent. He testifies that he is a civil engineer but he is familiar with electrical workings in general. He did two electrical courses as a part of Physics course. He knows the theory and regarding the practical, he is able to do some 'simple things.' He is able to test the rear lights of the vehicle but according to him, he would not want to as he is equipped mentally but not physically. He understands the concept of attaching the wire to the battery in order to test the light. The use of a live wire can indicate if bulbs are working. His evidence is that that method it is like bypass surgery to see if the bulbs at the rear of the vehicle work.

15 To check if the brake lights are working, the brakes must be engaged because the lever presses a switch which closes the circuit. Alternately, the switch which is located under the dashboard and close to the brakes lever would have to be removed. The bottom could be manually pressed and it would be as if the brakes lever was pressed. That process is tedious because it requires going under the dash board and pulling it out. It also requires lying under the bottom of the vehicle. It is easier to have someone use his hand to press it from the outside.

16 It is his evidence that in order to determine whether the reverse lights work, the vehicle must be put in reverse to activate the switch and the ignition must be on. He agrees that the wire test can be applied to see if the bulbs work.

17 A similar result can be achieved by unscrewing the switch from the gear box and activating it manually. The reverse light is attached to the gear box. The gearbox is under the cab of the Daihatsu (which is where the driver sits). For the switch to be removed from the gear box the vehicle has to be jacked-up and it might require dropping the gear box and disengaging it from the engine. Also, it is his evidence that he has never examined the Daihatsu to see where the switch on the gear box is located. He is unable to say where it is located on the Daihatsu but according to him from his knowledge, that process is more tedious and would take fifteen (15) minutes to one (1) hour. He testifies that the same result can be achieved by putting the vehicle in reverse. It is also his evidence that this is the simplest method to check the reverse lights.

18 He also testifies that in order to test the indicator light, the ignition is turned on and the indicator switch is activated by using a lever. However, if the lever is not used it could be tested by screwing it off and operating it manually.

19 This witness also testifies that the vehicle would move about two (2) to six (6) feet if the vehicle's engine is disengaged; the vehicle is left in reverse and the ignition switch is turned to activate the engine. The distance the vehicle moves depends on the person's reaction time or if the person's hand slid off.

20 Mr. Andre Chin's Evidence

21 Mr. Andre Chin testifies that his father had always owned trucks and he has been around mechanics for 20 years. He himself owned a garage. It is his evidence that "I kind of have an idea" how to test defective lights...