Julius Roy v Audrey Jolly

• Jurisdiction: Jamaica
• Judge: Harris JA,Dukharan JA,Phillips JA
• Judgment Date: 23 November 2012
• Neutral Citation: [2012] JMCA Civ 53
• Court: Court of Appeal (Jamaica)
• Docket Number: RESIDENT MAGISTRATES' CIVIL APPEAL NO 18/2010
• Date: 23 November 2012

[2012] JMCA Civ 53

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mrs Justice Harris JA

The Hon Mr Justice Dukharan JA

The Hon Miss Justice Phillips JA

RESIDENT MAGISTRATES' CIVIL APPEAL NO 18/2010

Between

Julius Roy

Appellant

and

Audrey Jolly

Respondent

DAMAGES - Personal injuries - Pain and suffering, medical expenses and loss of income - Claim - Contributory negligence

Harris JA

1 Sometime in December 2006, the appellant, in the process of delivering sand at 15 Glen Drive caused some to spill on the wall of 16 Glen Drive. Following this, the respondent complained that her wall had been defaced by the sand. This led to an altercation between the parties resulting in the appellant sustaining injury to his left eye, inflicted by the respondent's fingers. Theappellant reported the matter to the police who sent him to seek medical attention which he obtained.

2 On 15 May 2007, the appellant brought an action against the respondent, in the Resident Magistrate's Court for the Corporate Area, claiming $200,000.00 for pain and suffering, medical expenses and loss of income. The appellant is dissatisfied with the decision of the learned Resident Magistrate made on 14 November 2007 and has now appealed.

3 The appellant testified that when the respondent registered her complaint about her wall, the person to whom the sand was delivered assured her that he would wash the wall after the sand was removed. The assurance given by him did not appease the respondent. Being unhappy with the state of affairs, she began to quarrel. He, the appellant, then said to her, ‘But lady you no hear the man say im will wash the wall.’ The respondent, who was on the opposite side of the road, ran across to him, rested her stomach against his chest and stuck two of her fingers in his left eye, damaging it.

4 The injury, he asserted, impaired his vision. He also said that he had no defect in his vision prior to the injury and that due to the injury he experienced severe pain in the eye for about three months, during which period he was unable to earn an income. He stated his income to be $25,000.00 weekly prior to receiving the injury. It was also disclosed by him that he met medical expenses,and receipts amounting to $9,934.80 were submitted by him and tendered into evidence.

5 It was the respondent's evidence that she lived at 16 Glen Drive and that she was at home when she heard a motor vehicle stop at her gate and ‘heard shoveling coming from the vehicle’. Her child went to investigate and upon her delay in returning, she also went to make investigations. Following this, she inquired of Mr Roy Edwards as to the ownership of the sand and was told that it belonged to a Mr Robert who lived across the street. She told Mr Edwards not to deposit the sand where it had been placed. Mr Edwards, she asserted, began to quarrel while she stood beside him alongside the truck.

6 The appellant, she declared, came over to her and said ‘Let the big nasty woman go bout her business so mi can finish mi wuk.’ In signifying her displeasure with the appellant's comments, she retorted by referring to him as ‘big and nasty’. She said that he then ‘flashed his hand towards her face,’ which she blocked with her hand. She denied injuring his eye or that she used her body to touch his.

7 The learned Resident Magistrate admitted into evidence testimony from the appellant that the respondent had been charged and convicted for the offence of assault occasioning bodily harm, in respect of the injury to the appellant's eye, she having pleaded guilty to the charge. In cross-examination,the respondent admitted the conviction but stated that she had not entered a guilty plea.

8 On the date of the determination of the trial, the learned Resident Magistrate made the following orders:

‘By trial judgment for the plaintiff in the sum of $3,578.00. Parties to bear own cost [sic].’

In her reasons for judgment she said:

‘Judgment that both the defendant and plaintiff contributed to the injury to the extent of 50% and there was no evidence to link the defendant with any damage which the plaintiff alleged flowed from the injury. The defendant should pay the plaintiff $3,578.00 with each party bearing their own legal costs.’

The first ground of appeal is as follows:

‘(a) The Court failed to take proper or any account whatsoever of the unchallenged evidence that the defendant had been convicted after a trial in the criminal court of assault occasioning bodily harm in respect of the same set of facts and circumstances which led to the injury inflicted on the claimant, and that he [sic] standard of proof in the said criminal court being that of beyond reasonable doubt superceded the standard of proof required for the claimant to prove that he [sic] injury was inflicted by the defendant intentionally.’

9 In her reasons for judgment the learned Resident Magistrate said:

‘The law is that the court is not bound by the decision of the criminal court. The civil court must look at the evidence before it. Since neither party called any witness and they both took the witness stand on theirown behalf, the court must assess which witness is more credible and on a balance of probabilities which evidence is more credible, and rule accordingly.’

10 On the evidence before the learned Resident Magistrate, Mr Beswick argued, all that was required to be proved was that the appellant's injury resulted from a deliberate act. There was evidence from the appellant as well as evidence from the respondent corroborating that of the appellant, which left the court with no other choice than to have found the respondent liable, he contended. The respondent, he submitted, admitted her conviction, yet the learned Resident Magistrate failed to properly assess and give due weight to this aspect of her evidence and although the learned Resident Magistrate essentially stated the general principles, she made no findings as to the criminal aspect of the evidence. In support of these submissions, counsel placed reliance onLane v Holloway [1967] 3 All ER 129 [1967] 3 All ER 129, Hunter v Chief Constable of West Midlands et al [1981] 3 All ER 727 [1981] 3 All ER 727, Ingram v Ingram [1956] 1 All ER 785 [1956] 1 All ER 785 and R v D; R v J [1996] 1 All ER 881 [1996] 1 All ER 881.

11 Counsel further submitted that even if the court is not bound by the decision of the criminal court as the learned Resident Magistrate stated, which view is inconsistent with principle and practice, the respondent, having admitted her conviction, was estopped from contending that the appellant had been criminally assaulted by her.

12 Mr Adaramaja, in response, submitted that the learned Resident Magistrate was correct in stating that she was not bound by the decision of the criminal court. CitingHollington v F Hewthorn [1943] 2 All ER 35 [1943] 2 All ER 35, counsel argued that it is not for a court to make a decision on what was decided in another court, nor was the learned Resident Magistrate duty bound to adhere to the fact that the respondent admitted that she was convicted by finding that she was estopped from denying such admission, he argued. What was important, he submitted, was the evidence before the learned Resident Magistrate and her findings of fact.

13 Mr Beswick's complaint as to the failure of the learned Resident Magistrate to treat the respondent's conviction as corroborating the appellant's evidence that he had sustained the wound to his eye at the hand of the respondent, is not well founded. Although the learned Resident Magistrate admitted the evidence of the respondent's conviction, she could not have acted upon it in keeping with the well recognized rule inHollington that a criminal conviction is not evidence in a civil proceeding that the person convicted committed the offence. Even if the admission of the conviction emanated from the respondent, this would not have rendered the conviction admissible in evidence.

14 InHollington, it was held that evidence could not be given in a civil case that one of the drivers involved in a motor vehicle collision was convicted of a road traffic offence in that accident. Hollington is still the law in this jurisdiction and until a change has been sanctioned by the legistature, this court is duty bound to adhere to it.

15 In his quest to persuade this court that serious consideration ought to be given to the respondent's conviction as being corroborative of the appellant's evidence, Mr Beswick sought assistance from the following statement of Lord Denning MR inLane v Holloway when he said:

‘… An objection was taken to the judge being told what took place there. It was said that what takes place in a criminal court is not evidence in a civil court. I have for a long time doubtedHollington v F Hewthorn & Co Ltd and hope that it may soon be done away with. I do not think that it prevents our being told that the magistrates found the defendant guilty of unlawful wounding.’ (emphasis added)

16 There can be no doubt that Lord Denning's dictum must be treated as a comment. His statement does not overrule the decision inHollington. Lord Denning was merely of the view that the criminal conviction could be brought to the attention of the civil court. His statement was not a positive or expressed pronouncement that the previous conviction should be admissible evidence and should be acted upon. The statement, therefore, would not be a guide which would encourage this court to depart from Hollington.

17 Counsel submitted by way of written submissions, that although the issue inHunter emanated from a criminal case decided against a plaintiff in a civil action, in principle the same procedure ought to be applicable to a defendant in a civil case.

18 There is nothing to prevent a party who has been convicted in a criminal case from being a plaintiff in a civil case. However,Hunter...