Island Car Rentals Ltd (Montego Bay) v Headley Lindo

• Jurisdiction: Jamaica
• Judge: Brooks JA,McDonald-Bishop JA,Sinclair-Haynes JA
• Judgment Date: 21 January 2015
• Neutral Citation: JM 2015 CA 5
• Docket Number: APPLICATION NO 159/2014
• Court: Court of Appeal (Jamaica)
• Date: 21 January 2015

Between

Island Car Rentals Ltd (Montego Bay)

Applicant

and

Headley Lindo

Respondent

[2015] JMCA App 2

Before:

The Hon Mr Justice Brooks JA

The Hon Mrs Justice McDonald-Bishop JA (Ag)

The Hon Mrs Justice Sinclair-Haynes JA (Ag)

APPLICATION NO 159/2014

JAMAICA

IN THE COURT OF APPEAL

DAMAGES - Motor vehicle - Negligence - Vehicle on contract for hire involved in accident causing injury to respondent - Whether applicant negligently allowed vehicle which it knew to be defecive to be on public roadway - Application for permission to appeal - Res ipsa loquitor doctrine - Whether application has real prospect of success

David Johnson instructed by Samuda and Johnson for the applicant

Norman Hill QC and Raymond Samuels instructed by Samuels and Samuels for the respondent

Brooks JA

1 Avis Rent-a-Car Ltd v Maitland (1980) 32 WIR 294 has long been accepted as the authority for the principle that a person who lets a motor vehicle out on hire, is not, by virtue of that transaction, vicariously liable for the negligent driving of the person to whom he hires the vehicle. The applicant, Island Car Rentals Ltd (Island) relied heavily on that principle in its application for summary judgment in Mr Headley Lindo's claim against Island and other defendants. Island sought an order that Mr Lindo could not succeed against it in his claim for damages for negligence, because its vehicle, when it was involved in the collision that caused him injury, was out of its control by virtue of a contract of hire.

2 King J refused Island's application on the basis that, despite that well established principle, there was another issue joined between Mr Lindo and Island on the pleadings. That issue was whether Island had negligently allowed the vehicle, which it knew to be defective, to be driven on the public roadway. It was an issue, King J ruled, that required a trial.

3 Island is aggrieved by that ruling and seeks permission to appeal against King J's refusal. King J had also refused permission to appeal, hence Island was obliged to make a fresh application for permission, to this court. Island complains that King J erred in his ruling because, in his answer to the application for summary judgment, Mr Lindo made no attempt to support his assertion in his pleadings that Island knew or ought to have known that its vehicle ‘was defective in that the brake system was not working properly’.

4 The main question to be decided, in assessing whether or not to grant permission to appeal, is whether Island's complaint has any reasonable prospect of success if it is granted permission to appeal. It is first necessary to outline the relevant facts of the case and the pleadings which preceded Island's application for summary judgment.

Background

5 On 16 November 2005, Mr Lindo had been injured in a motor vehicle collision involving one of Island's vehicles and another vehicle in which he was a fee-paying passenger. He filed a claim, in 2008, against the owners and drivers of both vehicles. Island was named as the 2 ^nd defendant to the claim.

6 In his particulars of claim, Mr Lindo asserted that the driver of Island's vehicle, Mr Erwin Dostal, was its servant or agent at the time of the collision. In addition to that assertion, Mr Lindo's pleadings alleged that Island was negligent because it had allowed the vehicle to be driven on the road in a defective condition. Mr Lindo's particulars of negligence against Island also stipulated that he would ‘also rely on the Res Ipsa Loquiture [sic] doctrine’.

7 Island filed a defence to the claim. Firstly, it denied that Mr Dostal was negligent. Secondly, it denied that he was its servant or agent. Thirdly, it asserted that it had rented the vehicle to Mr Dostal's wife under a rental contract dated 1 November 2005, under which contract only Mrs Dostal was entitled to drive. It asserted that neither Mr nor Mrs Dostal was its servant or agent. It denied the allegations of negligence against it and, at page 2 of the defence, specifically denied the allegation of the defective braking system.

‘The allegation that the braking system of [its motor vehicle] was defective at the material time as alleged or at all [is denied], as [sic] 2 ^nd Defendant puts the Claimant to proof and says the said motor vehicle was free of any such defect when hired and was not in its custody and control thereafter being in the custody and control of the hirer.’

8 Mr Lindo filed at least three applications for court orders in the course of the litigation, prior to Island's application for summary judgment. One of those applications included a request for permission to amend his particulars of claim. The proposed amended particulars of claim alleged that the rental contract was fraudulent. It also asserted Island's failure to ensure that its vehicle was insured for operation on the roadway.

9 Island's application for summary judgment was filed in November 2011. That application, along with Mr Lindo's three applications, came on before K Anderson J on 4 July 2012. At that time, counsel for Mr Lindo withdrew his application to amend the particulars of claim, but did so without prejudice. Anderson J made various orders in respect of each application and fixed a date for a case management conference during which they would be considered.

10 Island's application sought summary judgment in respect of the entire claim. The affidavit that Island filed in support of its application was sworn to by Mr Martin Gutzmer. In his affidavit, Mr Gutzmer addressed the contract of hireage between Island and Mrs Dostal. He stressed that during the period of hireage the vehicle was in the custody of Mrs Dostal and its use exclusively determined by her. He made it clear that Island sought summary judgment on the entire claim. After deposing that Mr Dostal was in no way connected to Island, Mr Gutzmer concluded his affidavit with the following paragraph:

‘9. In light of the matters previously referred to I verily believe that the Claimant has no real prospect in Law of succeeding on the claim filed herein. In the circumstances, I respectfully ask that the Court make the Orders sought in the Application for Summary Judgment filed herein on the 2 ^nd Defendant's behalf.’

Mr Gutzmer made no mention of the question of the state of the vehicle or whether or not it was defective.

11 Mr Lindo filed an affidavit responding to the application for summary judgment. Apart from asserting generally that ‘there are numerous issues of fact and law which exist making this case inappropriate for summary judgment dispositions’, and that there were ‘legal issues as to the negligence of the 2 ^nd Defendant in that it…allowed the said motor vehicle…to be used on the road’, Mr Lindo made no mention of the state of the vehicle. Nowhere in that affidavit did he assert that it had defective brakes or any other defect.

The proceedings before King J

12 Island's attorneys-at-law, in their written submissions to King J, devoted one paragraph to the issue of the defective vehicle. In that paragraph, the submission was made that there was no evidence that the vehicle was defective. The paragraph concluded with a submission that an application for summary judgment could not be answered by reliance on the relevant pleadings. The relevant submissions are set out in full below:

‘11. The question therefore is whether the claimant has established on the available evidence that the 2 ^nd Defendant's summary judgment application is in fact misconceived. The core issues which have been distilled from the written submissions filed on the Claimant's behalf are:

a) The contention that the 2 ^nd Defendant was negligent in permitting the 1 ^st Defendant to drive a defective motor vehicle on the public roadway.

There is no evidence on affidavit from the Claimant or otherwise which confirms that the vehicle was defective either at the date of hireage or when the collision in issue occurred. It is therefore submitted that the Claimant cannot simply rely on an assertion of this nature in his pleadings to defeat the summary judgment application.’ (Underlining as in original)

13 In his written response, counsel for Mr Lindo submitted, on the point of the issue of the defective vehicle, that it had not been shown that Mr Lindo had no real prospect of succeeding at trial. Learned counsel submitted that the issue required assessment at a trial. He said, in part, at paragraph 17 of his written submissions:

‘17. In this particulars [sic] case it cannot be said at this stage that the Claimant has no real prospect of succeeding at the trial as the issues raised on the claim require findings of fact before applicable legal principles can be applied:

(i) In [sic] case of the claim for negligence in relation to sub-para (a) under Particulars of Negligence [sic] 2 ^nd Defendant, the question as to whether the motor vehicle is defective would depend on the evidence at trial of the action in particular those witnesses who can testify as to how and why the collision occurred and subsequent inspection of the vehicle.’

14 In his ruling on the application, King J pointed out that the amended claim forms and particulars of claim sought to add new causes of action but had been filed after the six-year limitation period had expired and without the permission of the court. After recording the basis for Island's application as being the principle in Avis v Maitland, the learned judge noted that that was not the only issue raised on the pleadings. He then addressed the issue of the defective vehicle and pointed out that it was a live issue on the pleadings, and that Mr Lindo was entitled to have it tried. He said in this regard:

‘The...