Nickisha Jonas v David Mowatt and Another

 
FREE EXCERPT

[2014] JMSC CIV. 76

IN THE SUPREME COURT OF JUDICATURE

Coram: Batts J.

CLAIM NO. 2010 HCV 03067

Between
Nickisha Jonas
Claimant
and
David Mowatt
1st Defendant

and

Atlas Protection Ltd.
2nd Defendant

Negligence — Vicarious liability — whether employer liable when employee, to the knowledge of the Claimant, is on a frolic of his own

1

At the commencement of this matter the parties agreed that the documents listed as 1 to 6 in the Claimant's Notice of Intention to Tender in Evidence Hearsay Statement dated 20 th January 2014 (and filed 22 nd January 2014), would be agreed. The Claimant expressly abandoned reliance on documents numbered 7 to 12. The 2 nd Defendant applied for an Order that its Ancillary Claim and the 1 st Defendant's acknowledgement be allowed to stand. There was no objection to that application and I ordered accordingly.

2

The Claimant Nickisha Jones then gave evidence. Her witness Statement signed on the 11 th February 2013 stood as her evidence in chief Exhibits 1 to 6 were admitted by consent being the documents so listed on Claimants Notice of Intent to Tender Hearsay Statements referred to above.

3

The Claimant's evidence in chief indicated that she now resides in the United States of America and is a 27 year old nurse's assistant. On the 18 th November 2007 she lived at Marverly Drive Kingston 10. She states that at one or two o'clock that morning her friend “Mr. Hutchinson’ called and asked if it was alright for himself and his friend (the First Defendant) to stay at her place until they got a call. She told them to come. She was aware they worked with Atlas Protection Ltd. (the 2 nd Defendant) as security guards. She stated that they were on ‘24 hour duty.’

4

The Claimant says further that she let them in to her premises and she made a bed available to them and they all went to sleep. At approximately 6:00 a. she got up and was getting ready for church. At 6:30 a.m. Mr. Hutchinson told her he received an urgent call. She gave him the keys to open the carport grill gate. He opened the carporte and reversed the car out onto the sloping driveway.. The 1 st Defendant opened the main gate for the car to go through. Mr. Hutchinson then came out of the car and up to her at the grill gate to say something. Her paragraphs 9 and 10 are as follows:-

  • ‘9. I was now outside the carporte in the process of closing the grill to the carporte. I was standing in front of the grill. I noticed that the 1 st Defendant was now in the driver's seat of the car. I continued closing the grill to the port and continued talking to Mr. Hutchinson.

  • 10. Suddenly I felt an impact to me and I heard Mr. Hutchinson shouting out and making a lot of noise. The next thing I recall was being pinned between the carporte grill and the front of the car.

5

She describes her pain and subsequent treatment and recovery, as also her losses costs and expenses.

6

When cross examined by Mr. Equiano, she stated that on the night in question she had been at a party at the Mas Camp on Oxford Road. She denied asking Mr. Hutchinson to come pick her up and take her home. She denied that he had picked her up at Mas Camp. She admitted he was driving a car belonging to the 2 nd Defendant. She denied that Mr. Hutchinson was her fiancé at the time. She denied having an intimate relationship with him. She admitted that the 1 st Defendant ‘chose to remain’ in the car that only Mr. Hutchinson entered her house. She says the 1 st Defendant joined them later. They sat around the dining table and had a few drinks. She said she was standing outside the carporte grill while closing it after the car had exited. She said that Mr. Hutchinson had gone to open the main gate. She admitted that her back was not to the grill gate while she was closing it. She denied that while the car was moving she placed herself in a position which was dangerous.

7

Mr. Patrick Thompson in his cross examination established that the Claimant had no contract with Atlas Protection Ltd for the provision of security services. When at the house she admitted they were not performing duties for Atlas Protection Services. She said that the 1 st Defendant and Mr. Hutchinson took her to hospital and did not respond to the urgent call. She knew other drivers in the company. After the accident the company's drivers would give her assistance to go to the hospital and get around. She denied knowing where Mr. Hutchinson was prior to coming to her house; and then having been refreshed by Para. 3 of her Statement admitted he had told her at what party they were working.

8

There was no reexamination of the witness. The Claimant's next witness was unavailable and the matter was adjoined to the 18 th February 2014. On that date the court as advised that he had been in a motor vehicle accident and was recovering. The matter was further adjourned to the 7 th March 2014 at which date the 21 st March was fixed for continuation. On that date the Claimant's Counsel indicated no other witness would be called and closed her case.

9

The First Defendant then gave evidence. His witness statement dated 6 th February 2014 was allowed to stand as his evidence in chief. In that statement he said that on the 18 th November 2007 he was assigned response duty along with Mr. Basil Hutchinson. They were to have been working in the Norbrook area. Mr. Hutchinson was his senior, the assigned driver and the team leader. At approximately 2:00 a.m. whilst they were still on duty Mr. Hutchinson stated that he wanted to go and pick up his girlfriend from Mas Camp on Oxford Road and take her to her home at Marverly Drive. The girlfriend, who was the Claimant, opened the gate when they reached her home and Basil Hutchinson drove the car inside. The First Defendant says he remained in the car whilst Mr. Hutchinson and the Claimant went inside. They stayed until approximately 5:30 a.m.

10

He says when they were ready to leave Mr. Hutchinson asked him to reverse the car outside. He stated,

‘9. Basil opened the gate and while I was backing out the car I heard when the Claimant screamed out and I realized that the motor vehicle had made contact with her.’

11

When Cross examined by the Claimant's Counsel the 1 st Defendant said he did not know about the Claimant reporting the accident to the police. He said at the time of the impact the Claimant was neither in front nor behind the car but a little to the side. He admitted that he was still on duty and if they got a call he would respond. He said he is a licensed diver but not a company driver. Mr. Hutchinson was supposed to drive the vehicle. He admitted that he did not see the Claimant and so was not able to avoid hitting her.

12

In answer to the 2 nd Defendant's Counsel, the 1 st Defendant stated that they were supposed to be working in the Norbrook area. They were to secure European Union premises in Cherry Gardens and Norbrook. Going to the Claimant's house was not part of their duty. They were not supposed to leave the base unless called to patrol or visit a property. He admitted that in going to the Claimant's house they were not acting on the Company's business. The incident occurred at dawn so it was not too dark nor too light. He said the car was in the carporte. Mr. Hutchinson pulled the carporte gate and instructed him to reverse. He then went to the gate at the road and opened it. The following exchange occurred,

  • ‘Q. When you began to reverse the car do you recall seeing Miss Jones

  • A. No, I did not see her I was looking behind while I reverse.’

13

The first Defendant indicated that he saw when the Claimant and Mr. Hutchinson exited the house but did not see her again until he heard her scream. It was the right front side of the car that squeezed her against the open grill gate. The rest of the car had safely reversed passed her when she received the injury. He denied there was any damage to the carporte gate or that he had paid for any such repairs.

14

There was no reexamination but in answer to the court the 1 st Defendant said:

‘A: While reversing first Mr. Hutchinson they were talking. I because the carporte was so narrow I slow down and listen to him say come back come back. Only front side was left to come out. Actually following his instructions.’

This ended the case for the 1 st Defendant.

15

The Second Defendant gave evidence via Ralson Pessoa its Managing Director. His witness statement dated September 27 th , 2013 stood as his evidence in chief. He corrected references in Paras. 11, 13, 21, 37, 38,39, 41,42,43 which said 2011. They should all read 2007. Claimant's Counsel objected as the witness was Managing Director of the Atlas Group of Companies. I overruled the objection as the statement indicates the witness was authorized to give evidence on behalf of the 2 nd Defendant which was a part of the group. Furthermore the matter could be explored in cross examination.

16

The evidence in chief details the duties that were assigned to the 1 st Defendant on the 17 th – 18 th November 2007. He said there was no contract to provide security at Mas Camp on that night. The First Defendant was not acting on behalf of the Company when he drove the Company's vehicle and injured the Claimant. The Company wanted an indemnity from the 1 st Defendant.

17

The Claimant's Counsel in cross examination sought to elicit that the witness did not personally give instructions to Mr....

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