Gordon (Otis) v Carlton Brown

• Jurisdiction: Jamaica
• Judge: FORTE, P. , HARRISON, J.A: , PANTON, J.A.
• Judgment Date: 20 December 1999
• Neutral Citation: JM 1999 CA 79
• Judgment citation (vLex): [1999] 12 JJC 2010
• Date: 20 December 1999
• Court: Court of Appeal (Jamaica)

IN THE COURTOF APPEAL

BEFORE:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE PANTON, J.A

BETWEEN:

OTIS GORDON CARLTON BROWN

APPELLANT RESPONDENT

Maurice Manning instructed by Nunes Scholefield DeLeon and Co., for the appellant

Christopher Samuda, instructed by Brown, Llewellyn and Walters, for the respondent

NEGLIGENCE - Breach of duty of care - Whether applicant a passenger in a bus ir trespasser - Damages

FORTE, P.

1 Having read in draft the judgment of Panton, J.A. I agree with his reasoning and conclusion and have nothing further to add.

HARRISON, J.A:

2 I agree with the conclusions expressed. I have nothing further to add.

PANTON, J.A.

3 This appeal is from a judgment of Karl Harrison, J. delivered on March 31, 1998, in which he dismissed the plaintiff/appellant's claim and awarded judgment to the defendant/respondent with costs to be taxed, if not agreed.

4 In his amended Statement of Claim the plaintiff/appellant alleged that on April 25, 1992, he was a passenger in a public passenger vehicle (a bus) owned by the defendant/respondent and driven by his servant or agent. The bus stopped along the Constitution Hill main road in St. Andrew to permit passengers to disembark. While the appellant was in the act of disembarking, "the defendant's servant and/or agent so negligently drove managed and/or controlled the said bus that he caused the plaintiff to fall therefrom."

5 The appellant suffered injuries and loss which will be referred to later.

6 The defence that was filed contains an admission as to the stopping of the bus. However, it alleges that "the plaintiff along with other persons unknown forcefully entered the defendant's motor bus and that by virtue of this forced entry the plaintiff was at all material times a trespasser." Further, the defence indicated that the respondent would be relying on the doctrine of volenti non fit injuria in that the appellant attempted to end his trespass by jumping from the bus as a result of which he injured himself.

7 In that setting, the questions for determination were:

• (a) was the appellant a legitimate passenger or a trespasser?

• (b) did the appellant disembark in the normal manner, or did he jump from the bus?

• (c) did the respondent's servant or agent negligently drive the bus while the appellant was disembarking, causing the latter to fall and sustain injury?

8 The plaintiff/appellant gave evidence that he went on this bus that was plying the Papine to Constitution Hill route. He paid a fare of ten dollars. While he was disembarking at Constitution Hill, the bus was driven off. He then had one foot on the bus step and the other on the sidewalk. The door of the bus hit him on his right shoulder causing him to fall to the ground. The bumper also hit his side. He apparently became unconscious and next found himself in the University Hospital. He insisted that although he had seen the word "charter" on the bus, he had paid ten dollars as fare having taken the bus at a bus stop. He denied entering the bus with others with a knife, threatening the conductor and driver. He denied also that the injuries he sustained were due to his own fault.

9 The defence called one witness, the individual who claimed to have been the conductor on the bus on the evening of the incident. He is now a bus driver. On the night in question, according to him, the bus was on a "funeral trip." When they were leaving Constitution Hill, "three guys ... jump up on the bus" he said. They were advised that the bus was not working. There was a violent reaction by the men who threatened the driver and the conductor. Two of them jumped off while the bus was in motion. None of them was identified by the witness as he did not remember their faces although he was sitting on the front seat beside the driver. So, although the pleadings suggest that the appellant's presence on the bus was admitted, the sole witness for the defence testified that he didn't know if the appellant was on the bus.

10 In arriving at his "findings and decision", the learned trial judge said the following:

"It was my considered opinion after reviewing the evidence carefully, that the plaintiff was not frank with the court. I found him most evasive and untruthful and his credibility was...