Jascinth Davis v Delroy Reid Topenga Properties (Jamaica) Ltd

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: Staple, J.
• Judgment Date: 30 July 2025
• Year: 2025
• Docket Number: SU2023CV00808

Jascinth Davis

and

Delroy Reid Topenga Properties (Jamaica) Limited

Staple, J.

SU2023CV00808

Supreme Court

Appearances:

Mr. Garnett Spencer, instructed by Robinson, Phillips & Whitehorne for the Claimant

Mr. Glenford Mellish, with Ms. Stacy Kirkland, instructed by Byfield, Mellish & Campbell for the 1st Defendant

Staple, J.

BACKGROUND

1 The Claimant is a senior citizen who, based on her evidence, enjoyed taking walks in the early morning with her husband in her community. She claims that it was on one such occasion, on the 14th November 2020, that she injured herself whilst walking.

2 She asserts that she was walking in the cul-de-sac in her community when she tripped and fell over some steel that was protruding in the roadway from the side of the road.

3 In her Particulars of Claim, she claimed that the steel was negligently placed in the road by the 1st and/or 2nd Defendant, and she fell as a consequence. She further asserted that she was seriously injured from the fall and incurred losses. She seeks compensation for her injuries.

4 The 1st Defendant, in his amended defence, denies that it was he who placed the steel negligently and denies that he is liable to the Claimant for her injuries.

5 During the course of the progress of the case to trial, the Claimant filed several witness statements to provide the evidence to support her claim. Crucially, there was no evidence from the Claimant that showed that the 1st Defendant placed the steel in such a manner which caused it to protrude. Instead, the evidence presented suggested that the Claimant's assertion now is that the 1st Defendant, essentially, knowingly caused the steel to remain as an obstruction in the roadway, resulting in her being injured.

6 The Claimant has not, to date, amended her statement of claim or applied so to do. So, at the close of the evidence, the Claimant's case remains that it was the 1st Defendant who placed the steel in the road, and his placement of the steel in the road was negligent.

7 It is to be noted that whilst she sued the 2nd Defendant, the Claimant has not served the 2nd Defendant, and so they are not a part of this claim.

8 On July 22, 2025, the 1st Defendant filed and served an application to further amend their Defence by inserting the word “not” so that the second sentence reads, “The 1st Defendant did not place nor authorise the placing of steel on the roadway or in the bushes on the side of the road.” The Court was minded to abridge time for the service and hearing of the application, and I granted same. There was no prejudice to the Claimant as they did not, in my view, suffer any prejudice by the granting of the amendment. The paragraph clearly was meant to be a complete denial of the assertion, as evidenced by the use of the word “nor” after place and the very first sentence, which was a clear denial. They also indicated that it was a supplier that placed the steel in the road. Crucially, the evidence from the Claimant's own witness accords with this evidence.

THE LAW ON NEGLIGENCE

9 I remind myself that it is the Claimant who must satisfy me that it was more likely than not that the 1st Defendant owed her a duty of care and that her fall and injury was the consequence of the 1st Defendant's breach of that duty to her.

10 Lord Griffiths, in the case of Ng Chun Pui and Ng Wang King v. Lee Chuen Tat et al. [1998] U.K.P.C. 7, reminds us of the burden and standard of proof in a negligence matter. He stated at pages 3 and 4 of his judgment that:

“The burden of proving negligence rests throughout the case on the plaintiff. Where the plaintiff has suffered injuries as a result of an accident which ought not to have happened if the defendant had taken due care, it will often be possible for the plaintiff to discharge the burden of proof by inviting the court to draw the inference that on the balance of probabilities the defendant must have failed to exercise due care, even though the plaintiff does not know in what particular respects the failure occurred…… it is the duty of the judge to examine all the evidence at the end of the case and decide whether on the facts he finds to have been proved and on the inferences he is prepared to draw he is satisfied that negligence has been established.”

11 Negligence is proven by establishing that the 1st Defendant owed the Claimant a duty of care; that the 1st Defendant breached that duty; and that the breach led to loss, injury or damage to the Claimant that was foreseeable.

12 In establishing this duty of care, the damage to the Claimant caused by the Defendant's negligent act must have been foreseeable, and there must exist a sufficient proximate relationship between the Claimant and the Defendant to make it just to impose this duty of care on the Defendant to the Claimant.

PLEADINGS – THEIR IMPORTANCE.

13 It is exceedingly important for the Claimant to set out all the material facts upon which they rely to ground their claim.

14 Rule 8.9 sets out the requirement for the Claimant to plead their case fully:

• (1) The claimant must include in the claim form or in the particulars of claim a statement of all the facts on which the claimant relies.

• (2) Such a statement must be as short as practicable.

• (3) The claim form or the particulars of claim must identify or annex a copy of any document which the claimant considers is necessary to his or her case.

• ….

15 This is given further power by rule 8.9A, which says that a Claimant cannot rely on any allegation or factual argument not set out in the particulars unless the Court gives permission.

16 The case of Charmaine Bernard ( Legal Representative of the Estate of Reagan Nicky Bernard) v. Ramesh Seebalack [2010] U.K.P.C. 15 is instructive. This was an appeal to the Privy Council from the Court of Appeal of Trinidad and Tobago, regarding the interpretation to be placed on provisions in the Civil Proceedings Rules of Trinidad and Tobago. That case held, speaking generally, that the claimant's duty in setting out his or her case to include a short statement of all facts relied on meant that each head of loss the claimant was seeking to recover should be identified in the statement of case. Where that was not done, an amendment is required.

17 The Privy Council had regard to the case of McPhilemy v. Times Newspapers Ltd [1999] 3 All E.R. 775 and Lord Woolf's observation that even in the new CPR era, the Witness Statement was no substitute for a properly pleaded case and that parties were required to set out a short statement of all the facts being relied on by the pleader.

18 A pivotal case on this point is Rasheed Wilks v. Donovan Williams [2023] J.M.C.A. Civ. In that case, the Respondent (Defendant in the court below) failed to properly set out the facts in his defence that would show why the driver of his car, at the time of a fatal collision, was not acting as his servant and/or agent as asserted by the Claimant in her pleadings.

19 However, the Defendant/Respondent inserted in his witness statement more detailed evidence to support his defence. Counsel for the Appellant/Claimant objected, at the trial, to the evidence on the basis that those facts were not present in the Defence. The trial judge overruled the objection and allowed the evidence to be presented and relied upon. The Claimant/Appellant appealed this decision.

20 The Court of Appeal allowed the appeal and ordered that those aspects of the Claimant's evidence that purported to give evidence of facts not pleaded in the defence could not be relied upon and should be struck out.

21 Edwards, J.A., delivering the judgment of the Court of Appeal, said as follows from paragraphs 38–40:

• “[38] The case of McPhilemy v. Times Newspapers Limited was also cited by the appellant. This case held that pleadings were not made superfluous because of the requirement for witness statements, but that pleadings were still necessary “ To mark out the parameters of the case being advanced by each party and to identify the issues and extent of the dispute between the parties” (emphasis mine). In that regard, it said, no more than a concise statement is required. At page 793 of that case, it was said that:

  “What is important is that the pleadings should make clear the general nature of the case of the pleader.”

• [39] It is clear, therefore, that although only a short statement of facts is required, a witness statement cannot be issued as a substitute for it. Although the authorities mostly deal with the inadequacies in a claimant's statement of case, the principles would obviously hold true for a defendant's statement of case.

• [40] I, therefore, agree with the appellant that the respondent, having failed to plead facts or information in his defence to dispute that Mrs. Williams was driving his car as his servant and/or agent at the relevant time, he cannot now seek to do so in a witness statement…”

22 Although the Wilks case had to do with the Defence, the same principles apply to the Particulars of Claim.

23 A case which illustrates the application of the rule from the perspective of the Claimant is Vinnett White v. Sandra Brown & Anor [2021] J.M.S.C. Civ. 151. In this case, the Claimant did not plead that there was negligence on the part of the Defendant due to failure to maintain the vehicle, and as such, she was not allowed to rely on that evidence.

24 While it was stated that one can only include in one's particulars of claim information which, with reasonable diligence, could have been available, the claimant would have been aware of the defendant's case as early as when the defence was filed. They could have applied for permission to amend their statement of case.

25 In examining rule 8.9A, it was the court's view that this rule did not lay down any absolute position and left same to the...