Morris Astley v Attorney General and Another

• Jurisdiction: Jamaica
• Judge: Morrison JA
• Judgment Date: 27 December 2012
• Neutral Citation: JM 2012 CA 128
• Docket Number: SUPREME COURT CIVIL APPEAL NO 57/2012
• Court: Court of Appeal (Jamaica)
• Date: 27 December 2012

Between:

Morris Astley

Appellant

and

The Attorney General of Jamaica

1st Respondent

and

The Board of Management of the Thompson Town High School

2nd Respondent

[2012] JMCA Civ 64

SUPREME COURT CIVIL APPEAL NO 57/2012

JAMAICA

JAMAICA IN THE COURT OF APPEAL

CIVIL PROCEDURE - Sanctions - Order refusing relief from sanctions - Leave to appeal - CPR 2002, Rule 26.8 - Failure to comply with Case Management conference orders - Failure to attend pre-trial review - Claimant's case struck out - Claim for negligence for personal injuries - Whether the defendant exposed the claimant to a risk of damage or injury of which they knew or ought to have known - Contributory negligence - Whether the claim should be struck out for failure to comply with Civil Procedure Rules 2002

Written submissions filed by K. Churchill Neita & Co for the appellant

Written sumissions filed by the Director of State Proceedings for the respondents

PROCEDURAL APPEAL

(Considered on paper pursuant to rule 2.4 of the Court of Appeal Rules 2002)

IN CHAMBERS

Morrison JA

Background

1 The appellant is the claimant in claim no. HCV 03552/2006 and the respondents are the defendants. This is an appeal against the decision of McIntosh J, made on 25 April 2012, to refuse the appellant's application for relief from sanctions imposed by the order of Beckford J made on 1 March 2011. The application was made pursuant to the provisions of rule 26.8 of the Civil Procedure Rules 2002 (CPR).

2 The matter arises in the following way. On 6 October 2006, the appellant, who was at the material time an 18 year old student at the Thompson Town High School in the parish of Clarendon, filed an action against the respondents arising out of the alleged negligence of Mr Trevor Wright, who was at the time the woodwork teacher at the school.

3 The appellant alleges that on 19 May 2004 he suffered serious injuries to his hand while attempting to carve a picture frame, using an electrical circular saw, during the course of a woodwork class supervised by Mr Wright. The accident which resulted in his injuries were, the appellant claims, occasioned by the failure of Mr Wright and the second named respondent to ensure that, among several other things, the saw was reasonably safe for use by students, when they knew or ought to have known that it was defective and inherently dangerous by reason of its age and state of disrepair; to provide protective wear to students; to ensure that teachers comply with proper safety procedures; and to provide a proper system of supervision in class. As a result, the appellant alleges, the respondents exposed him ‘to a risk of damage or injury of which they knew or ought to have known’.

4 The respondents for their part deny the allegations of negligence and contend that the accident and the appellant's injuries were caused or contributed to by his own negligence and wilful disobedience of the reasonable orders of Mr Wright, his teacher. Further, the respondents contend, the appellant voluntarily consented to accept the risks involved in the circumstances in which the accident occurred and accordingly agreed to waive any claim in respect of injury or damage occasioned to him by the alleged conduct of Mr Wright and the second named respondent.

5 By an application filed on 1 April 2010, the appellant sought an order dispensing with automatic mediation, pursuant to rule 74.3(3) of the CPR, but by an order made on 24 June 2010, Rattray J refused this application and ordered that the parties should go to mediation. The learned judge also made an order fixing a case management conference for hearing on 12 January 2011, pre-trial review for 25 July 2011 and the trial of the action for 21 and 22 September 2011.

6 The parties duly attended a mediation session on 15 September 2010. However, they were unable to arrive at an agreement and the case management conference scheduled for 12 January 2011 duly took place as scheduled. Neither the appellant, who was represented by counsel, nor Mr Wright was present at the case management conference and Brooks J (as he then was) ordered that they should attend at the pre-trial review scheduled for 25 July 2011. The learned judge also made a number of usual case management orders, requiring the parties to, among other things, (i) file and exchange witness statements by 31 March 2011; (ii) file an agreed statement of facts and issues on or before 21 April 2011 (failing which each party should file a statement of facts and issues on or before 6 May 2011); and (iii) file their respective listing questionnaires by 11 July 2011.

7 By the time the pre-trial review came on for hearing before Lawrence-Beswick J on 25 July 2011, the respondents had complied with all the case management orders, having filed their witness statements (in sealed envelopes) on 30 March 2011, their statement of facts and issues on 6 May 2011 and their listing questionnaire on 6 June 2011. Mr Wright and one other of the respondents' witnesses were present at the pre-trial review, but the appellant, although again represented by counsel, was not. As at that date, the appellant, although he did file his list of documents on 21 January 2011, had not complied with any of the case management orders, thus obliging his counsel to apply for an extension of time in which to comply with the orders. Lawrence-Beswick J accordingly vacated the trial dates of 21 and 22 September 2011, extended the time for compliance with the case management orders to 16 September 2011 and fixed new trial dates of 18 and 19 June 2012. The pre-trial review was rescheduled for 1 March 2012 and the appellant was ordered to pay the respondents' costs in the agreed sum of $10,000.00.

8 The appellant filed his statement of facts and issues in time on 1 September 2011, but his witness statement was not filed until 6 October 2011 and his listing questionnaire until 28 October 2011. However, on 17 January 2012, the appellant did file notice of an application for permission to allow amended particulars of claim filed on his behalf on that same date ‘to stand as a proper filing’.

Beckford J's order

9 It is against this background that the rescheduled pre-trial review came on for hearing before Beckford J on 1 March 2012. The respondents were represented by counsel, but neither the appellant nor his counsel was present. The learned judge therefore made an order, (i) striking out the appellant's claim and statement of case for his failure to attend the pre-trial review in person and/or to be represented by his attorneys-at-law on the record (rule 27.8(5)(a)), and his failure to comply with the case management orders made by Brooks J on 12 January 2011 and the pre-trial review orders made by Lawrence-Beswick J on 25 July 2011 (rule 26.3(1)(a)); and (ii) striking out the notice of application for court orders dated 17 January 2012. Costs in the claim were awarded to the respondents.

The application for relief from sanctions

10 By notice of application filed on 6 March 2012, the appellant moved the court for relief from the sanctions imposed by Beckford J on 1 March 2012, on the following grounds:

‘i. That the application for relief from sanctions is made promptly vide rule 26.8(1) ;

ii. The failure to attend the Pre-Trial Review was not intentional vide rule 26.8(2)(a) ;

iii. There is a good explanation for the failure to attend the Pre-Trial Review vide rule 26.8(2)(b) ;

iv. The Claimant has generally complied with all other relevant rules, practice directions, orders, and directions vide rule 26.8(2)(c) ;

v. It is in the interests of justice that the claim be re-instated vide rule 26.8(3)(a) ;

vi. The trial date can still be met if relief is granted vide rule 26.8(3)(d) ;

vii. The effect of the granting of relief would not be prejudicial on the Defendant. That the failure to grant relief would be highly prejudicial to the Claimant vide rule 26.8(3)(e) ;’

11 The application was supported an affidavit sworn to and filed on 15 March 2012 by Mr Oraine Nelson, attorney-at-law of the firm of K. Churchill Neita & Co, attorneys-at-law on the record for the appellant. Though lengthy, I cannot avoid reproducing the affidavit virtually in full, from paragraph six to the end:

‘6. That the circumstances surrounding my absence relate to my having matters before Court # 12, Court #2, and the Resident Magistrates' Court for the Corporate Area — criminal division.

7. That in this respect I attended the matter of Harold Spencer v Gary Robottom and ors (Claim No HCV 3361/2009) was scheduled for trial on the 29 ^th February, 2012 and the 1 ^st March, 2012. That exhibited hereto, marked ‘ON1’ for identification, is a copy of the Case Management Conference Orders.

8. That on a review of the Court's list on the day of the 29 ^th February, 2012 so as to ascertain the tribunal and number court before which the matter would be placed I observed that the matter was not on the list for the 29 ^th .

9. Further, that I observed that Mr Justice D. Frazer [sic] was sitting in Court 12 on the 1 ^st March, 2012. Accordingly, I attended Court 12 on the 1 ^st March, 2012 with a view to having the matter heard whereupon I was advised that the court had put off Trial matters since the judge was sitting in assessment court. That the said information was provided me [sic] by the judge's clerk and to whom I indicated that in the circumstances of the matter not appearing on the list I wished to address the bench so as to make the reasons for the matter not proceeding clear to the Claimant.

10. That as a part-heard assessment of damages was being heard at the material time I had to wait for a convenient time before I could address the Court.

11. That while waiting I took the opportunity to attend on court 2 before His Lordship Mr Justice Gayle in respect of whom I had a criminal matter set...