Haye v Bruce & Stephenson
| Jurisdiction | Jamaica |
| Judge | Fox, J.A.,Smith, J.A.,Graham-Perkins, J.A. |
| Judgment Date | 04 February 1972 |
| Neutral Citation | JM 1972 CA 8 |
| Docket Number | Resident Magistrate's Civil Appeal No. 18 of 1970 |
| Court | Court of Appeal (Jamaica) |
| Date | 04 February 1972 |
Court of Appeal
Fox, P.; Smith, J.A.; Graham-Perkins, J.A.
Resident Magistrate's Civil Appeal No. 18 of 1970
Dr. L.G. Barnett for plaintiff/appellant.
Norman Hill Q.C. for 1st defendant/respondent.
Tort - Negligence — Vicarious liability.
This is an appeal from a decision of the resident magistrate, Saint Ann, in an action of negligence in which he gave judgment for the 1st defendant Roy Bruce against the plaintiff, and for the plaintiff against the 2nd defendant Elmer Stephenson. Bruce is a lumber dealer living in Kingston. He is the owner of a motor truck. Stephenson was employed by Bruce to drive the truck. On the instructions of Bruce, and for the purpose of buying lumber, Stephenson drove the truck from Kingston to Lodge in Saint Ann on 7th November, 1966. Bruce did not go on the journey. Stephenson was accompanied by other men including sidemen. After collecting its load of lumber in the area surrounding the village of Lodge, the truck, now fully loaded, was driven by Stephenson to the square of Lodge. There the truck stopped and its occupants came out.
The plaintiff is a farmer and a district constable living at Lodge. In November, 1966, he was employed as a watchman and a gardener for a home at Upton Country Club. He was at Lodge square when Stephenson drove up and stopped the truck. His case was that he asked, and Stephenson agreed to give him a drive on the truck as far as Upton Gate. Accordingly he entered the body of the truck and sat on the lumber. The truck was then driven off by Stephenson. It was common ground that at that time, two men were with Stephenson in the cab, and two sidemen were in the body of the truck. When the truck reached Upton Gate, a sideman called out and it stopped a short distance beyond the gate. The plaintiff proceeded to alight from the truck. Whilst he was doing this, the truck drove off. He fell to the ground and broke his leg.
The magistrate accepted the evidence of the plaintiff that he had entered the truck with the permission of Stephenson, and rejected the testimony of the defence to the contrary. He found that Stephenson was negligent in failing to satisfy himself that the plaintiff had safely alighted from the truck before driving off. He held further, however, that in the act of coming from the truck the plaintiff was also negligent by using the back wheel of the truck as a step in his decent to the ground. He took the view that “there was no necessity for the plaintiff to have put his foot on the wheel, a thing which rotates and therefore a source of danger.” He concluded that “a prudent and reasonable man would not have stepped on the tyre at all but would hale proceeded from the ledge” (outside the rails of the truck and above the tyre) “directly to the ground, a height of only four feet two inches.” Mr. Hill conceded that in coming from the truck the plaintiff had acted reasonably. He did not attempt to support the finding of contributory negligence. I agree. On the evidence, the accident was entirely caused by the negligence of Stephenson and the finding of contributory negligence in the plaintiff must be reversed.
Bruce did not give evidence. The magistrate found that the plaintiff's travelling on the truck was the result of a personal arrangement between himself and Stephenson. He took the view that the position was analogous to a case in which a servant who is the driver of a motor vehicle goes off on a private frolic of his own. In giving the plaintiff a ride in the truck Stephenson had embarked on a personal and private venture. There was no evidence that Stephenson had Bruce's authority to give rides to passengers, and no room for the presumption that in giving the ride to the plaintiff, Stephenson was acting in the course of his master's business. In his reasons for judgment, the magistrate said:
“In my view where the accepted evidence is that the servant clearly acted on his own initiative in an exclusively private arrangement and there is not evidence that the master either permitted or forbade the particular kind of act then the servant cannot be held to have performed the act in the course of his master's business.”
The magistrate therefore held that Bruce was not liable to the plaintiff in negligence and gave judgment accordingly. Dr. Barnett contended that this decision was wrong. He relied upon the circumstances that in stating the defence at the trial as required by section 184 of the Judicature (Resident Magistrates) Law Cap. 179, Mr. Whitehorn, the solicitor who appeared for both defendants, admitted ownership and agency; the agency specifically admitted being “the agency of the defendant Bruce.” Dr. Barnett submitted that this admission recognized as an established fact, Stephenson's position as the servant of Bruce who was acting in the course of his employment at all times and on all occasions, including the taking up of the plaintiff as a passenger in the truck. The case was contested on that basis. The existence of a duty of care in Bruce towards the plaintiff was acknowledged. The singly issue at the trial was whether the truck had been driven negligently, and whether as a result Bruce was vicariously in breach of his duty. This was in accordance with the only defence which was stated, and which was recorded in these terms “Neither defendant was negligent but if either was negligent there was contributory negligence on the part of the plaintiff.” As a consequence, all the evidence led, and the submissions made on both sides were for the purpose of deciding that single issue and no other. Finally, Dr. Barnett stressed that in his closing address for the defence Mr. Whitehorn did not contend that Bruce was not liable for the reasons given by the magistrate. To the contrary Mr. Whitehorn had conceded that once it was proved that Stephenson had been negligent, the vicarious liability of Bruce was established.
In my view, these submissions of Dr. Barnett are unavailable. Resident Magistrates' Courts are creatures of the Judicature (Resident Magistrates) Law, Cap. 179. Actions are commenced in these courts, not by a writ of summons, but by the lodging of a plaint at the office of the clerk of the court. This plaint must state briefly the names and addresses the parties, and must set out “the nature of the claim made, or of the relief or remedy required in the action in such short form as may be prescribed …” (s.143). The several sections which follow make provisions for continuation of the action, summonses and other process, miscellaneous matters before trial, and the mode and the actual trial of Causes. Section 184 provides that on the day of the hearing,
“the plaintiff shall appear, and thereupon the defendant shall be required to answer by stating shortly his defence to such plaint; and on answer being so made in court, the magistrate shall proceed in a summary way to try the cause, and shall give judgment without further pleading, or formal joinder of issue.”
The defence stated pursuant to these provisions must be adequate. It must enable the plaintiff to understand what defence was being set up. The magistrate must not permit any defence to be conducted without a proper plea. All this was made clear by MacGregor, C.J. in Wallace v. Whyte (1961) 3 W.I.R. 521. At p.523 the learned judge concluded his opinion on the subject with this observation,
“It is to be remembered that the Resident Magistrates' Courts are not courts of pleading. Except when a special defence is pleaded under s.150 of the Judicature (Resident Magistrates) Law, the plaintiff has no means of knowing what is the defence until the defendant states it in court at the opening of the trial of the action. It is the defendant's duty then to plead so that his defence is disclosed as if he was pleading to a statement of claim in the High Court.”
Mr. Hill submitted that notwithstanding the admission of agency, the magistrate was at liberty to arrive at conclusions which were in keeping with the evidence. He relied upon a decision of the Court of Appeal in Fredco Estates Ltd. v. Bryant and another [1961] 1 All E.R. 34. In that case, pursuant to a notice to admit facts, a landlord had admitted figures as to the rates payable on certain premises. These figures did not justify the amount of the increase of rent. They were erroneous in that they did not include figures which were admittedly paid for water rates. In a claim by the tenant against the landlord to recover amounts overpaid for rent, the figures for the water rates were not before the county court judge, but, on appeal, they were before the Court of Appeal. It was held that notwithstanding the admission the appeal would be decided on the true figures.
The case deals with a particular situation. It is no authority for determination of the significance and the consequence of admissions made and defences stated at the commencement of a trial in a Resident Magistrate's Court. If Bruce intended to rely on the defence that Stephenson was not acting in the course of his employment when he permitted the plaintiff to come on the truck as a passenger, and that as a consequence Bruce did not owe a duty of care to the plaintiff, that position should have been clear at the commencement of the trial. In this way the plaintiff would have been alerted to the evidential burden upon him to establish the contrary. Not having done so, that particular defence was not available to Bruce. It was also not available to the magistrate as a reason for a decision in favour of Bruce, not only on account of the failure of the defence to identify it as an issue for the magistrate's determination, but even more so because of the unqualified admission of agency which was made by the defence before any evidence was given. That admission was intended to traverse the entire range of the legal incidents...
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