Godmar (Judith) v Ciboney Group Ltd
| Jurisdiction | Jamaica |
| Judge | BINGHAM, J.A. , PANTON, J.A. , SMITH, J.A: , BINGHAM, J.A: |
| Judgment Date | 03 July 2003 |
| Neutral Citation | JM 2003 CA 30 |
| Judgment citation (vLex) | [2003] 7 JJC 0303 |
| Court | Court of Appeal (Jamaica) |
| Date | 03 July 2003 |
NEGLIGENCE - Statement of claim - Application to amend to add further claim to Particulars of Special Damages - Whether finding of "mala fides" on part of plaintiff reasonable on the evidence - Whether application for amendment made outside of limitation period permissible - Whether post traumatic stress disorder may be added to particulars of injury
ORDER:
BINGHAM, J.A:Appeal allowed in part and orders made in the terms proposed by Smith J.A. and set out at 1–6 at the end of his judgment.
Having read in draft the judgment prepared in this matter by Smith, J.A., I am in agreement with his reasoning and the conclusion he has reached that the appeal be allowed in part. Because of the importance of the issues raised in the appeal I shall venture to add a short contribution of my own in response to the submissions of counsel.
The arguments before us have raised once more the question: in what circumstances can an appellate tribunal interfere with the exercise by a judge of first instance of his discretionary powers? Although in the final analysis such circumstances may on examination appear to be exceedingly rare our task in reviewing this matter has been made that more difficult, as the learned judge below in coming to his decision has not found it necessary to provide us with his reasons for refusing what was in effect the second application made by the attorneys for the plaintiff/appellant to amend her claim for special damages. It was this refusal that has resulted in the present appeal
In the result this Court is, therefore, unable to determine, if in coming to his decision, the learned judge applied the correct legal principles. This leaves the matter at large for this Court to examine the issues which were raised before him, to make its own independent assessment of the matter and if necessary to differ from the conclusions reached by the learned judge: per dictum of Lord Thankerton in Watt or (Thomas) v. Thomas [1947] A.C. 484; [1947] 1 All E.R. 582.
The claim in negligence was the result of the appellant being seriously injured on 3 rd July, 1995, while swimming in the sea off the north coast of the Island while a guest at the Shaw Park Hotel. A resident of the United States of America, she was on vacation in the Island at the time of the incident.
As a result of her injuries she has undergone a long and extended period of recuperation. As is ordinarily to be expected, during the period of her incapacity, the sums chargeable for the medical and other incidental expenses would increase with the passage of time.
In support of the amendment being made learned counsel for the appellant submitted that the circumstances facing the learned judge below in this matter called for him, in exercising his discretion, to adopt a more liberal approach in granting the amendment as the trial had not yet commenced and there was no attempt being made to alter the statement of claim. He relied in support on the dictum of Harrison, J.A. in Gloria Moo Young and another v. Geoffery Chung et al S.C.C.A. 177/99 (unreported), delivered 23 rd March, 2000. There the learned judge of appeal in dealing with the discretionary powers of the Court to amend said (at page 6):
"The Court will view the exercise of the discretionary power quite liberally as long as it will not do any injustice to the opponent of the party seeking the amendment and particularly if the said opponent may be adequately compensated in costs, on such amendments."
Mr. Morrison, Q. C. submitted that, in this case the defendant/respondent would not be prejudiced, that no injustice would be done to the defendant/respondent, and that the defendant/respondent would be adequately compensated in costs.
The reasoning adopted by the learned judge of appeal in Gloria Moo Young and another v. Geoffery Chung et al (supra) had followed closely upon that of Dillon L.J. in Easton v. Ford Motor Company [1993] 4 All E.R. 257 where the learned Lord Justice said (at page 264):
"Quite obviously there is more to be said for refusing an amendment when the action is in the course of a trial or very nearly ready for trial."
Much earlier the eminent common law Jurist Bowen, L.J., in Cropper v. Smith [1884] 26 Ch. D. 710–711 had remarked that:
"It is a well established principle that the object of the Court is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights ... I know of no kind of error or mistake which if not fraudulent or intended to overreach the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendments as a matter of favour amendments as a matter of favour or grace." (Emphasis supplied)
Learned Counsel for the respondent, Mrs. Minott-Phillips, submitted that on the state of the evidence, the learned judge properly exercised his discretion. She adverted to the history of the claim which was filed on April 1, 1997, and in respect of which was pleaded special damages in the amount of US$12,678.36. This figure was later amended in December 1999 and increased to US$35,926.69. The appellant subsequently sought leave to further amend the amended Statement of Claim by summonses dated July 3, 2001 and October, 2001 to increase the special damages claim to US$83,710.07.
In June 2001, before the filing of the two summonses seeking further amendment to the Statement of Claim, the attorneys acting for the appellant were informed by the respondent's attorneys that they intended to make a payment into Court.
The attorneys for the appellant responded by letter dated June 21, 2001, in which they said that they would be referring the matter to their client and would get back in touch with them the following week.
Two weeks later rather than contacting the respondent's attorneys they filed a summons on July 3, 2001, seeking leave to amend the statement of claim.
Counsel submitted that the conduct of the appellant's attorneys-at-law in filing a summons to further amend their Statement of Claim without getting back in touch with them as promised raises the question of a lack of bona fides on their part.
In my view the conduct of the attorneys-at-law for the appellant has to be considered against the background of the nature of the injuries suffered by the appellant. It is a feature of personal injury claims such as this one, that when the Statement of Claim is filed unless the plaintiff had by that time made a complete recovery from the injuries suffered, the claim for special damages which would be in the nature of a continuing one, would only relate to such expenses as have accrued up to that stage. The claim being made in that manner would allow for the defendant to be put on notice that there is every likelihood of further amendments being made from time to time to bring the claim for special damages in line with the existing conditions of the plaintiff as at the date of the application to amend. It is also to be expected that this course of events may continue right up to the moment in time when the action if contested, has reached the trial stage.
In this case while the incident out of which the claim arose occurred in 1995, and the Writ of Summons and Statement of Claim were filed in 1997, one is here dealing with a second application to further amend the particulars of special damages, one year and eleven months after the first amendment was made and granted by the Court, and in circumstances where such applications are not granted as of right, but on terms that the applicant bear the costs. More importantly it needs to be borne in mind that it does not relieve a successful applicant (plaintiff) of the burden placed on her of alleging and strictly proving at trial that which she has alleged and set out to establish by the amended particulars of special damages.
It is with this in mind that the Judicature (Civil Procedure Code) Law (the "CPC") at Title 27 headed "Amendment" containing provisions governing applications for amendments also contains a wide scope for a plaintiff to amend his pleadings. Section 259 provides that:
"The Court or a Judge may at any stage of the proceedings, allow either party to alter or amend his endorsements or pleadings in such a manner and on such terms as may be lust and all amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties." (Emphasis added)
The effect of this rule when applied in practice allows for the pleadings to be amended on terms at any stage of the proceedings and up to the period before judgment is handed down at a trial of the action.
When the principles are examined governing the manner in which applications for amendments fall to be considered by a Court, in my opinion, and in the absence of anything emanating from the learned judge to the contrary, there existed no rational basis for a refusal of the application to amend the claim for special damages relating to loss of earnings and medical and other incidental expenses. I am therefore in agreement with the granting of the application as it relates to the particulars relating to loss of earnings and medical and other incidental...
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