Kern Garrett Francis v Peter Alexander Depass
| Jurisdiction | Jamaica |
| Judge | Hon. K. Anderson, J. |
| Judgment Date | 05 November 2015 |
| Neutral Citation | [2015] JMSC Civ 255 |
| Docket Number | CLAIM NO. 2011 HCV 00788 |
| Court | Supreme Court (Jamaica) |
| Date | 05 November 2015 |
[2015] JMSC Civ 255
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Anderson, K. J
CLAIM NO. 2011 HCV 00788
and
and
and
Lascine Wisdom-Barnett for the Claimant/1 st Ancillary Defendant and the 2 nd Ancillary Defendant
Racquel Dunbar instructed by Dunbar and Co. for the Defendant/Ancillary Claimant
TRAFFIC ACCIDENT — TWO VEHICLES APPROACHING SEPARATE STOP SIGNS AT SEPARATE INTERSECTIONS — CLAIM FOR DAMAGES FOR NEGLIGENCE — ANCILLARY CLAIM FOR DAMAGES FOR NEGLIGENCE — DUTY OF DRIVER OF VEHICLE WHEN VEHICLE BEING DRIVEN BY THAT DRIVER HAS RIGHT OF WAY — COUNTERCLAIM AND ANCILLARY CLAIM — WHETHER COUNTERCLAIM AND ANCILLARY CLAIM SHOULD BOTH BE COMPRISED IN A SINGLE COURT DOCUMENT
This matter pertains to a claim, counterclaim and ancillary claim, the latter-mentioned two (2) court documents having been filed by the defendant, whereas, the claim was initiated by the claimant.
Those court documents were filed as a consequence of a traffic accident which occurred on January 1, 2010, at the intersection of Paddington Terrace and Liguanea Avenue, in the parish of Saint Andrew, Kingston 6. At the time when the accident occurred, the claimant was the owner of a 2005 Toyota Hilux Surf motor vehicle with licence plate no. 5934 EZ, which was then being driven by Monique Williams who was, in so having driven said vehicle at that time, as had been specifically alleged by the claimant, functioning as the claimant's servant/agent and duly authorized driver thereof.
At the time of the said accident, the other vehicle involved in the accident was a 2003 Audi Sedan motor vehicle, with licence plate no. 9507 FC, which was then being driven by its owner, who is the defendant.
Arising from that accident, the claimant has claimed for special damages in the sum of $510,703.00, interest and costs. The defendant has, for his part, filed a counterclaim and ancillary claim, as against the claimant and the 2 nd ancillary defendant. By means of that counterclaim and ancillary claim, the defendant has sought, as against Kern Francis and Monique Williams, respectively, damages, inclusive of special damages, interest and costs.
It has been alleged by each driver and owner, that the said accident was either wholly caused or contributed to, by the negligence of the driver of the other vehicle.
This court, before it addresses in detail, the allegations and counter-allegations of the parties, wishes to make two (2) legal points in this judgment. Firstly, there was no need for the defendant to have filed a counterclaim and ancillary claim, as two separate documents. This was unnecessary because, with our Civil Procedure Rules (CPR) the “phrase —“counterclaim” has been substituted by the phrase —“ancillary claim.” The defendant's ancillary claim, as a single document, could properly have made and enabled the defendant to pursue his claim against the claimant, as well as, against the driver of the claimant's vehicle at the material time. That this is so, is made clear by the definition of the term —“ancillary claim,” as set out in rule 18.1 (2) of the CPR.
Rule 18.1 (2) of the CPR states that:
“ An “ancillary claim” is any claim other than a claim by a claimant against a defendant or a claim for a set off contained in a defence and include —
(a) a counterclaim by a defendant against the claimant or against the claimant and some other person ,
(b) a claim by a defendant against any person (whether or not already a party) for contribution or indemnity or some other remedy; and
(c) a claim by an ancillary defendant against any other person, (whether or not already a party). ”
It is very clear from the wording of rule 18.1 (2) of the CPR, that it was unnecessary for the defendant to have filed a counterclaim and ancillary claim. His ancillary claim could and should have included his claim against the claimant, as well as his claim against Monique Williams. That this is so, should have been recognized by the parties' counsel and by this court, prior to trial, at case management. The failure to do so, has caused the parties to waste time and costs.
The second legal point is this: This court has noted with interest, that in neither the defendant's counterclaim, nor ancillary claim, did he aver that at the material time, the claimant's vehicle was being driven by the servant or agent of the claimant. That omission is interesting, from a legal standpoint, because it is now to be taken as accepted law in this jurisdiction, that the mere driving of a vehicle which is owned by another, does not create, in and of itself, a presumption that at the time when that vehicle was being driven, it was being driven by a servant or agent of that vehicle's owner. The case of Launchbury v Morgans, as adjudicated on by England's House of Lords — [1973] AC 127, has laid down that if the owner of a vehicle is to be held liable for the negligence of the borrower or user of that vehicle, it is necessary that the owner should have some interest in the purpose (s) for which the vehicle was being used. That interest must be specific and identifiable. As such, there no longer is accepted in this jurisdiction, a presumption of agency, merely from the driving of a vehicle which is owned by another. That though, used to be the law in this jurisdiction. See: Brown v Stamp and others [1968] 13 WIR 146 and Rambarran v Gurrucharran [1970] 1 WLR 556 (P.C).
As I understand the law now though, that presumption no longer applies. The Launchbury v Morgans case has brought that presumption to an end. There is now a duty on a claimant to place before the court, a positive averment and evidence in support, as to the driver of the relevant vehicle having been driving same, as the servant or agent of the owner thereof. As Lord Wilberforce stated in Launchbury v Morgans (op.cit.), in reference to the use by the driver, of another person's vehicle —“ it must be shown that the driver was using it for the owner's purposes, under delegation of a task or duty. ” (At 135) See: Norwood v Navan [1981] R.T.R. 457.
In this case, there was no averment made by the defendant, in his statement of case, that at the material time the vehicle was being driven by Monique Williams, as the claimant's servant or agent, nor was there any averment made that at the material time the vehicle was being used by Monique Williams for any specific purpose, in which the claimant had a specific interest. That being so, the defendant may very well have been unable to prove his claim against the claimant. Fortunately for the defendant in that respect though, in the claimant's statement of case, it was averred that at the material time, Monique Williams was driving the claimant's vehicle as the servant or agent of the owner and with his specific authorization. Of course, that averment has not been disputed by the defendant.
In the circumstances, this court has no hesitation in concluding that, at the material time, the driver of the claimant's vehicle — Monique Williams, was driving same, as the owner's agent. Accordingly, if she is held liable to the defendant, for the vehicle accident, it follows inexorably, that the claimant, as the owner of the vehicle which she had been driving at the time of the accident, must also be held jointly and severally liable to the defendant, for same.
This court will treat with the defendant's counterclaim and ancillary claim accordingly. Additionally, hereafter, this court will treat with the defendant's counterclaim and ancillary claim as constituting, collectively, a single claim against the claimant, for damages for negligence. As such, the defendant's counterclaim and ancillary claim will hereafter, in these reasons for judgment, be referred to either as, “the defendant's claim” or “his claim.”
In this matter, three (3) witnesses testified on the claimant's behalf namely: The claimant, Monique Williams (hereinafter referred to as, “Ms. Williams”) and Norman Orane Myrie (hereinafter referred to as “Mr. Myrie”). It was only the defendant who testified on his own behalf. Whilst this may, at first glance, appear to be an “inequality of arms” from an evidentiary standpoint, that inequality is not nearly as stark, from a quality standpoint, as it may be seen as, at first glance. This is so because the claimant was not, in any respect, a witness to the relevant accident and secondly, Mr. Myrie's evidence as to how the accident occurred was limited in certain important respects.
There were ten (10) documents that were, by agreement of the parties, entered into evidence at trial and included amongst those documents are a police accident report, invoices, damage assessment reports, vehicle repair bill, radiology report — with the exception of that which is set out in that report, as “indications” and a receipt — except to the extent that such receipt refers to the sum of $2,000.00.
As regards the receipt which was so admitted into evidence and which is dated, “1/8/10,” this court had made it clear, when same was being admitted into evidence by consent, that the parties would be required to make submissions as regards this receipt in particular, in the event that anyone other than Mr. Depass is, to any extent, determined by this court as being liable, or partially liable for the defendant's loss/injuries. Those submissions were presented to this court, as part and parcel of the parties' respective written closing submissions and have been duly considered by this court.
Since the claimant was not in his vehicle when the accident occurred and thus suffered no...
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