Lascelles Sales v Aldean McBean
| Jurisdiction | Jamaica |
| Judge | V Harris JA |
| Judgment Date | 01 March 2023 |
| Neutral Citation | JM 2023 CA 25 |
| Docket Number | PARISH COURT CIVIL APPEAL NO COA2022PCCV00012 |
| Court | Court of Appeal (Jamaica) |
[2023] JMCA Civ 13
THE HON Miss Justice P Williams JA
THE HON Miss Justice Edwards JA
THE HON Mrs Justice V Harris JA
PARISH COURT CIVIL APPEAL NO COA2022PCCV00012
IN THE COURT OF APPEAL
Wilwood Adams instructed by Robertson Smith Ledgister and Company for the appellant
Mrs Denise Senior Smith instructed by Oswest Senior Smith and Company for the respondent
This appeal has its genesis in a claim for negligence brought by the respondent, Ms Aldean McBean, against the appellant, Mr Lascelles Sales, arising from a fire that destroyed her motor car, a grey 2007 Toyota Wish, at Manchester Road, Mandeville, in the parish of Manchester on 27 May 2019. On 3 May 2022, following a trial before His Honour Mr John Tyme, senior judge of the Manchester Parish Court (‘the learned judge of the Parish Court’), the appellant was found liable for negligence and ordered to pay damages of $909,000.00 plus costs.
The respondent's case at trial was that on 27 May 2019, at about 5:30 am, Mr Nigel Williams, the respondent's stepfather, was driving her motor car, which was being operated as a taxi, on Manchester Road, Mandeville, in the parish of Manchester. On reaching the vicinity of Sinclair Bargain Centre, the motor car, according to Mr Williams, “just shut down”. Later that morning, he went in search of an electrician and found the appellant at his workplace on Ward Avenue. Mr Williams had prior knowledge that the appellant was an auto electrician. Having explained his dilemma to the appellant, Mr Williams travelled with him to where the disabled motor car was. Mr Williams testified that the appellant used his “tester” to check under the bonnet of the motor car to see if any fuse had “blown” but found nothing. The appellant then checked the gas pump beneath the back seat. Mr Williams observed two wires connected to the gas pump, one of which was covered with tape. The appellant removed the tape and instructed Mr Williams to switch on the ignition. Nothing happened. At this point, the appellant removed the hose from the gas pump and gas spilt from the hose in the general area where the pump was located. He then connected a wire from the battery to the gas pump. After the appellant touched the wire, there was a spark, which caused a fire. Despite their best efforts to extinguish the fire, it quickly engulfed the motor car and completely destroyed it. The motor car was assessed as unrepairable, with a total loss value of $900,000.00. The respondent also relied on the doctrine of res ipsa loquitur to prove her case.
The appellant's evidence was that he is an auto electrician. At about 7:15 am on 27 May 2019, he stated that Mr Williams came to his garage on Ward Avenue and told him that his vehicle was not starting, but he did not explain why this was so. They went to where the car was. When they arrived, the car's bonnet was up, and he checked to see if any wires were burnt. The appellant said he told Mr Williams to start the car for him “to see what was going on”. On the first try, the appellant said he heard a click and instructed Mr Williams to try again. On the second attempt, there was another click, and the car burst into flames. The appellant denied using his tester, removing the gas hose and the tape from the wire connected to the gas pump, as well as running a wire from the battery to the gas pump. In summary, the appellant denied that he was liable for negligence.
In his analysis of the evidence, the learned judge of the Parish Court decided that the appellant owed a duty of care to the respondent by applying the test in Anns and others v London Borough of Merton [1977] 2 All ER 492 (‘ Anns v Merton’). He also considered the principles in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 (‘ Bolam’). Having done so, he opined that as an auto electrician who offers his service to the general public, the appellant was expected to demonstrate the average competence of persons who engage in this line of work, and should he fall short of this standard, he would be negligent. The learned judge of the Parish Court, having accepted Mr Williams' evidence, found that the appellant's conduct fell short of the standard expected; he breached the duty of care owed to the respondent, and her motor car was destroyed due to his negligent act. The learned judge of the Parish Court concluded that the damage caused by the appellant's negligence was foreseeable and awarded damages as indicated at para. [1]. However, he did not find the doctrine of res ipsa loquitur to be applicable in light of the evidence adduced on the respondent's case.
The appellant filed notice and grounds of appeal on 9 May 2022, challenging several findings of fact and law. The grounds as filed are:
“a. The Judge wrongly concluded that the parties were engaged in an employment contract.
b. The concept of Duty of Care:
(i) Foreseeability
(ii) Proximity
(iii) Fairness were not properly established by the [respondent]/Court in the circumstances, whereby the [appellant] was found to be negligent.
c. Whether in the light of the evidence, a duty of care can be put on the [appellant].”
The appellant's position, as advanced by learned counsel Mr Adams, was that the respondent's case was anchored on the doctrine of res ipsa loquitur, and once the learned judge of the Parish Court found that this principle was inapplicable to the case, he should have non-suited the respondent. However, having failed to do so, he went on to consider whether the appellant owed a duty of care to the respondent and incorrectly applied the test in Anns v Merton, which was outdated and had been replaced by the three-tier test in Caparo Industries plc v Dickman and others [1990] 1 All ER 568 (‘ Caparo’). As a consequence, the learned judge of the Parish Court's misapprehension of the law was fatal to his decision.
On the respondent's behalf, learned counsel Mrs Senior Smith indicated that her written submissions were tailored to address the appellant's grounds of appeal. Accordingly, the respondent's position was that firstly, regarding ground a, the learned judge of the Parish Court, in his written reasons for decision, made no finding that the parties were engaged in an employment contract; secondly, in respect of ground b, in determining whether a duty of care ought to be ascribed to the appellant, the learned judge of the Parish Court placed heavier reliance on Bolam, which is still good law, than on Anns v Merton; and finally, concerning ground c, given the evidence that the learned judge of the Parish Court accepted, he did not fall into error when he found that the appellant owed a duty of care to the respondent.
The appellant has not challenged the learned judge of the Parish Court's findings of fact. Instead, the focus of the appellant's attack has raised the issue of whether the learned judge of the Parish Court misapprehended the applicable law and thereby erred when he ascribed a duty of care, as well as liability for negligence, to him. However, before addressing this issue, it is necessary to consider the relevant authorities that will assist the court in resolving it.
It is now well-settled that to prove the tort of negligence, the existence of a duty of care, a breach of the duty, a causal link between the...
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