Nattal Smith v Newton Wright
| Jurisdiction | Jamaica |
| Judge | Lindo, J |
| Judgment Date | 19 May 2020 |
| Date | 19 May 2020 |
| Docket Number | CLAIM NO. 2013HCV03750 |
| Court | Supreme Court (Jamaica) |
[2020] JMSC Civ 100
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
CLAIM NO. 2013HCV03750
Mr Seyon Hanson instructed by Seyon T. Hanson & Co for the Claimant.
Defendant absent and unrepresented
Damages — Assessment of — Assault & Battery — Trespass to land — Aggravated Damages — Whether appropriate in the circumstances
On June 24, 2013, the Claimant Nattal Smith filed a Claim and Particulars of Claim in which he sought, inter alia, damages for assault and battery; damages for trespass including aggravated damages; recovery of possession of premises and an injunction against the Defendant, Newton Wright.
Liability is not in issue as the Defendant was served personally with the claim form and accompanying documents on July 16, 2013 and on June 5, 2014 a Default Judgment was entered against him (Binder 761 Folio 283) with damages to be assessed. By virtue of the Default Judgment the Claimant is entitled to recover possession of premises located at Hermitage Dam Road, Kingston 9 consisting of an unfinished three story house on approximately one acre of land in the vicinity of Seaview. He is also entitled to an injunction restraining the Defendant whether by himself or by his servants or agents from entering, using or remaining on the said premises.
The matter came on for Assessment of Damages on a number of occasions between January 28, 2015 and December 17, 2018 and was adjourned on each occasion for varying reasons, including the fact that the Claimant needed to produce an updated medical certificate and the Defendant had not been served with documents relevant to the hearing.
On January 15, 2020, on proof of notice to the Defendant the court embarked on the hearing. The witness statement of the Claimant filed on April 23, 2018, stood as his evidence in chief and he gave further evidence by way of amplification of his evidence contained in the witness statement.
His evidence is that he is a farmer and upholsterer and that between June 1997 and September 14, 2008 he resided at an unfinished three story house located at Hermitage Dam Road in Saint Andrew where he planted crops on the property. He states that he was in open and undisturbed possession until early November 2007 when he was attacked and beaten by the Defendant who took away his key and chased him away from the said property. He states that he reported the matter to the police and remained on the property, residing in another section, until about September 14, 2008 when the Defendant attacked him, hit him on his upper left hand with a machete, “inflicting in total about seven (7) hits” and robbed him of $1,000.00. He adds that he attended the Stony Hill Clinic and was ordered to do x-ray and was prescribed medication.
He also states that after the attack he was prevented from returning to the property and the Defendant assumed possession of his belongings including furniture, tools, pets, clothing and other miscellaneous items with an estimated value of $445,750.00. He adds that the Defendant entered the property without his consent and continues to trespass on the property.
He states further that Marshaw Cockburn introduced him to Commissioned Land Surveyor, Dennis Clay who prepared a diagram in respect of the property on his behalf.
The following were tendered and admitted in evidence as Exhibits I and 2, respectively:
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1. Surveyor's diagram dated August 8, 2008
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2. Medical report of Dr Clivia Baird Chin dated February 26, 2018.
In his Particulars of Claim, the Claimant provided a list of items and their respective estimated value. These are items which he claims he was forced to abandon and the Defendant assumed possession of, when he was chased from the property. At no point was actual proof of the value of the items provided. This, I find, would appear to be a classic case of “throwing figures at the head of the court”, without proof of those figures, as was mentioned in Bonham-Carter v Hyde Park Hotel Ltd [1948] 64 TLR 177.
Learned Counsel for the Claimant submitted that the court should take a similar approach as in the case of Shaquille Forbes v Ralston Baker et al, Claim No. 2006HCV02938, unreported, delivered March 3, 2011, as it relates to a claim for special damages, without proof. In that case, the court considered relaxing the requirement for strict proof for special damages in relation to expenses incurred for taxi fare and at home care of the infant, where no receipts were tendered in support of these claims.
Although the Claimant has pleaded and particularised the sum claimed, but has failed to strictly prove the value of these items, I find that the circumstances of this case are such that there can be a relaxation of the general principle relating to strict proof. I am guided by the decision in Desmond Walters v Carlene Mitchell (1992) 29 JLR 173, where Wolfe J.A, (as he then was), at page 176, said:
“There is support for the approach which the judge adopted. At paragraph 1528 of McGregor on Damages, 12 th Edition the learned author states:
‘However, with proof as with pleading, the courts are realistic and accept that the particularity must be tailored to the facts: Bowen, L.J., laid this down in the leading case on pleading and proof of damage, Radcliffe v. Evans [1892] 2 Q.B. 524 (C.A.) In relation to special damage he said:
The character of the acts themselves which produce the damage and the circumstances under which the acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be proved. As much certainty and particularity must be insisted on in proof of damage as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”
I am also persuaded by the decision in Grant v Motilal Moonan Ltd and Another (1988) 43 WIR 372 in which articles belonging to the Claimant were damaged by a car owned by the 1 st Respondent and driven by the 2 nd Respondent. As in the case at bar, the special damages were particularised, the Defendant failed to enter an appearance and Judgment in Default was obtained by the Claimant. At the Assessment of Damages, the Claimant produced a list of the damaged articles and the value she assigned to each, but failed to produce any receipts or provide evidence as to when they were purchased. The Master held that the value had not been proved and awarded an ‘ ex gratia’ payment. On appeal, the Court of Appeal of Trinidad and Tobago allowed the appeal. The court held that although special damages must be pleaded, particularised and strictly proved, the appellant had prima facie established the cost of the articles.
Applying the principles from the cases to the instant case, I am of the view that the Claimant would in the circumstances be unable to provide documentary proof of the value of the items and would also not be able to have them valued by an independent person. I therefore find that this is an appropriate case for the relaxation of the rule and as the Defendant has not sought to defend the claim, I find that the Claimant has prima facie established the cost of the items and the values placed on the items have not been found to be unreasonable. There will therefore be an award of $445,750.00, as pleaded.
The medical report of Dr. Clivia Baird Chin dated February 26, 2018, admitted into evidence as Exhibit 2, indicates that the Claimant was assessed as having left upper limb contusion, secondary to an attack with the flat portion of a machete. He did not require any dressing or further follow up, was treated with Panadol and sent home
As it relates to the claim for damages for the personal injuries sustained, Counsel submitted the case of Peter Marshall v Carlton Cole et al, Recent Personal Injury Awards made in...
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