Malabre v Gordon
| Jurisdiction | Jamaica |
| Judge | Luckhoo, J.A.,Graham-Perkins, J.A. |
| Judgment Date | 05 April 1974 |
| Neutral Citation | JM 1974 CA 21 |
| Docket Number | Resident Magistrate's Court Civil Appeal No. 76 of 1974 |
| Court | Court of Appeal (Jamaica) |
| Date | 05 April 1974 |
Court of Appeal
Luckhoo, P.; Fox, J.A.; Graham-Perkins, J.A.
Resident Magistrate's Court Civil Appeal No. 76 of 1974
H.G. Ewards, Q.C, and H.D. Carberry for the appellant.
Hugh Small for the respondent.
Tort - Negligence — Sign falling on head of appellant.
Tort - Nuisance — Sigh falling on head of appellatn
At about 11 a.m. on December 12th, 1968, the respondent Alfred Gordon was walking on a sidewalk on Barnett Street, a public highway in Montego Bay, when an advertising sign affixed to the exterior of a two-storeyed building adjoining the highway fell onto his head and shoulders causing bodily injury. The building to which the sign was affixed was owned by the appellant Mary Malabrea She resided on the upper flour of building. The lower floor which had a separate entrance had been let by the appellant to one Mary Anderson. At all material times one Ransford Bayfield carried on a liquor bar on the lower floor with the permission of Mary Anderson. Its a result of the injuries he sustained the respondent brought a claim in negligence in the Resident Magistrate's Court for the parish of St. James against the appellant, By field and Canada Dry Bottling Co. Ltd. Service of the plaint was never effected on Byfield who did not appear at the hearing before the learned resident magistrate. No admissible evidence was adduced before the learned resident magistrate that the sign referred to or was erected by or was under the control of Canada Dry Bottling Coo Ltd., and as a result the claim against that company was dismissed. The learned resident Magistrate found in favour of the respondent against the appellant holding that the sing at the material time was under the sole management and control of the appellant and applying the doctrine of res ipsa loquitur judgment was accordingly entered for the respondent against the appellant for $650 (inclusive of special damage) with costs $54.30. The appellant now appeals against the decision of the learned resident magistrate on the grounds that the judgment is against the weight of the evidence and is contrary to law.
At the outset of the hearing before us counsel for both the appellant and the respondent intimated to the court that they were of the view that the claim in negligence and the finding of the learned resident magistrate in negligence were misconceived but that rather this was a case to be decided as one of a public nuisance and further that the doctrine of res ipsa loquitur could have no application to the facts of the case. My own view on a full consideration of the matter is that in any event in a case of this kind it is necessary for a plaintiff to prove the breach of a duty of care and thus negligence in a defendant in order to succeed in nuisance and so it really matters little whether the claim is framed in negligence or in nuisance.
As to the question of the applicability of the doctrine of res ipsa loquitur in the instant case one should bear in mind what Morris, L.J. said in Roe v. Minister of Health (1954) 2 Q.B. 66 at pp 87-88-
“This convenient and succinct formula possesses no magic qualities; nor has it any added virtue, other than that of brevity, merely because it is expressed in latin. When used on behalf of a plaintiff it is generally a short way of saying: “I submit that the facts and circumstances which I have proved establish a prima facie case of negligence against the defendant. It must depend upon all the individual facts and the circumstances of the particular case whether this is so. There are certain happenings which do not normally occur in the absence of negligence, and upon proof of these a court will probably hold that there is a case to answer.”
And as Erle, C.J. said in Scott v. London and St. Katherine Docks Co. (1865) 3 H. & C. 596–
“There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”
In the instant case the accident to the respondent would not have happened in the ordinary course of things if the person who had the management or control of the sign had used proper care. The maxim therefore will be applicable if it can be said that the respondent has shown the sign to have been in the management or control of the appellant. It will of course observed that in the instant came nothing is known as to the circumstances in which the respondent was injured save that the sign fell upon the respondent. It is a matter of common experience that an advertising sign affixed to the exterior of a building will not fall onto a passer-by on the highway below if the person or persons in charge take proper care (see Byrne v. Boodle (1863) 2 H. & C.. 722). There is no explanation offered in the instant case as to the reason for or possible reason for the sign falling. In these circumstances the real question is whether the respondent has proved that the appellant was in the management or control of the sign which fell upon the appellant. Incidentally there is nothing in the evidence to suggest that when the sign was first affixed to the as to constitute a nuisance. Indeed the respondent testified that he had seen the sign in position on several previous occasions when passing along that street. We must now enquire whether the appellant was the occupier of that portion of the building to which the sign was affixed. The respondent's evidence in this regard when examined in chief was as follows–
“The sign which was missing used to be upstairs,” and when cross-examined–
“The sign which fell and hit me was hanging from the bottom of the upper floor of the building. That upper floor overhangs the sidewalk. …………………..
It is not because I saw the sign on the ground why I say it fell from the upstairs of the building. I say the sign came from upstairs because I heard when it was ‘cracking’ off from upstairs,”
After the court had visited lacus in quo [this view the appellant (defendant) had testified] the respondent was recalled at the instance of learned attorney for the appellant (defendant) and in answer to him said–
“I did go to the place where the incident had taken place with the Court this morning, I pointed to the Court the place from which I said the sign had been hanging before it fell unto my head. I pointed out this spot where I said the sign was hanging.”
The learned magistrate then recorded
“Witness had shown two hole in mid wires air-vats on upper (italics mine) roof as place for which sign had been hanging.”
and continued his note of furtue answers of the witness–
“I did nee some signs haning from the lower (italics mine) zinc overhan my (sic) roof that morning.”
Then the appellant; (defendant) was recalled and upon examination by her attorney said–
“With the Court I had this morning visited 73 Barnett Street. I heard the plaintiff give evidence this morning. In December, 1968 there was no sign hanging from my building which fell into Barnett Street.”
Earlier in her defence the appellant had spoken of the entrance from the street to the lower floor of the building being covered by a zinc roof to which a bit of board had been affixed without her knowledge or permission a long- time before the accident occurred.
It would appear that the respondent was asserting that the sign which fell upon him had been affixed to that portion of the building in the occupation of appellant and thereby under her control. At the end of the respondent's testimony there was a prima facie case which would have enabled the learned resident magistrate to apply the maxim res ipsa loquitur. The appellant by way of defence was asserting that the sign had been affixed by Mary Anderson or by Byfield without her (appellant's) knowledge or permission to that portion of the building let to Mary Anderson. The learned resident magistrate made no finding as to which on of the building the sign had been affixed. No doubt he refrained from making a finding in this regard because of his interpretation of a certain answer given by the appellant in cross-examination. From that answer he concluded that the sign was, at the material time, under the sole management and control of the appellant. The answer is recorded in notes of evidence as follows–
“I was in charge of the whole building (a two-storey building) the shop as well as the dwelling upstairs,”
The fact that a landlord states that he is “in charge of” that portion of a building let to a tenant does not necessarily imply that he is asserting that he has the management or control of a projection affixed without his knowledge or permission to that portion of building which is let to a tenant. Further, even if the nature of the tenancy is such that there is an express or implied term to enter and inspect and to effect repairs to the demised premises whereby the landlord might be liable for injuries resulting from his failure to effect necessary repairs, such a term embraces only the premises demised and not any projection affixed subsequent to the demise unless there is some statutory require contractual or contractual undertaking to remedy defects in such a projection. There is not suggestion in the instant case that there is any such statutory requirement or contractual undertaking. A number of reported authorities were cited to us on the question of a landlord's liability in nuisance or in negligence. I do not think it necessary to deal with these for they relate to cases where the falling material formed part of the demised premises e.g. in Tarry v. Ashton (1876) 1 Q.B.D. 314 where a heavy lamp attached to a public house fell...
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