Rev Dr Ralph Griffiths v Attorney General of Jamaica and Others

• Jurisdiction: Jamaica
• Judge: Anderson, K.
• Judgment Date: 30 January 2015
• Neutral Citation: [2015] JMSC Civ 34
• Docket Number: CLAIM NO. 2011 HCV 04377
• Court: Supreme Court (Jamaica)
• Date: 30 January 2015

[2015] JMSC Civ. 34

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2011 HCV 04377

Between

Reverend Dr. Ralph Griffiths

Claimant

and

Attorney General of Jamaica

1st Defendant

and

Constable Nelson

2nd Defendant

and

The Transport Authority

3rd Defendant

Nelton Forsythe and Gloria Forsythe , instructed by Forsythe and Forsythe, for the Claimant

Tamara Dickens , instructed by the Director of State Proceedings, for the 1 ^st and 3 ^rd Defendants

NEGLIGENCE — WHETHER DUTY OF CARE OWED — WHETHER BREACH OF DUTY OF CARE HAS OCCURRED — WHETHER CLAIM FOR “PURE ECONOMIC LOSS” CAN BE MAINTAINED IN RESPECT OF TORT OF NEGLIGENCE — DETINUE — WHETHER UNLAWFUL SEIZURE OF MOTOR VEHICLE OCCURRED — ELEMENTS OF TORT OF DETINUE — NEED TO PROVE UNEQUIVOCAL DEMAND — NEED TO PROVE UNQUALIFIED REFUSAL — PROOF OF SPECIAL DAMAGES — WHETHER TRANSPORT AUTHORITY FUNCTIONS AS A CROWN SERVANT OR AGENT — PARTY TO BE SUED IN CLAIMS WHEREIN ALLEGED TORTFEASOR WAS ALLEGEDLY FUNCTIONING AS A CROWN SERVANT OR AGENT WHEN TORT WAS COMMITTED

IN OPEN COURT

Anderson, K., J

Reasons for Judgment

1 The Crown is sued and it is alleged that the Crown, as represented by the Attorney General, is vicariously liable for certain allegedly unlawful actions of the 2 ^nd and 3 ^rd defendants.

2 Claimant is seeking to be awarded judgment in his favour against all defendants and if he is to be awarded that judgment, it will be because he has proven his claim against the defendants for damages for negligence and damages for unlawful detention of his motor vehicle, with registration no. PB 9407 and which is a Toyota motor car.

3 The defendants have been sued jointly and severally, in that, the Attorney General, is, as the Crown's representative for the purposes of this claim, sued in accordance with the legal principles of vicarious liability, this on the basis that, the allegedly unlawful actions of the 2 ^nd defendant and 3 ^rd defendants were committed by them, in their capacity as Crown servants or agents. Even if though, this court disagrees with the applicability of vicarious liability to the facts of this particular case, as such alleged applicability is being disputed by defence counsel, nonetheless, the 2 ^nd and 3 ^rd defendants have also been sued, severally. In other words, it is open to this court, for the purposes of this claim, to conclude that the 2 ^nd and/or 3 ^rd defendant (s) are liable or not liable to the claimant, as a person (in the case of the 2 ^nd defendant), or statutory corporation (in the case of the 3 ^rd defendant), capable of being sued in their own name (s).

4 On the point as to whether the Transport Authority is a Crown servant or agent this court has taken careful note, of the dicta from England's Court of Appeal, in the case of Tomlin v Hannaford– [1950] 1 K.B. 18. Whilst it is true therefore, that a great deal of ministerial and thus, governmental control is exercised over the Transport Authority, that authority is nonetheless a corporation and has within its powers, all of the powers of a corporation, as set out in section 28 of the Interpretation Act . There is no provision in the Transport Authority Act which expressly provides that the Transport Authority is either to be treated as being a Crown servant or agent, or as a government servant or agent. In the circumstances, as there is expressly provided in the Transport Authority Act, at section 3 thereof, that the Transport Authority shall be a body corporate, to which, the provisions of section 28 of the Interpretation Act shall apply, this court has no doubt in its mind, that the Transport Authority is not a servant or agent of the Crown. On that legal point alone therefore, the claimant's claim must fail in its entirety, since the claimant has alleged that at all material times, the 3 ^rd defendant was functioning as a Crown servant or agent. As such, it will be recognized, further on in these reasons, that this court's considered opinion, is that, as such, the claimant could not properly have maintained his claim against the 3 ^rd defendant and also, since it is also this court's considered opinion that the 3 ^rd defendant, does not, when carrying out its functions under the Transport Authority Act, or even when merely purporting to carry out those functions, do so, as a Crown servant or agent, it inevitably follows that this court is also not of the view that the claimant's claim against the 3 ^rd defendant can properly succeed.

5 In the event though, that this court is wrong in both of those respects, it will hereafter go on to set out its reasons for concluding that the claim as particularized, is only properly maintainable against the 1 ^st defendant – if it can properly be maintained at all and also, to set out other important conclusions of law and fact which are pertinent to the claimant's case

6 The claimant has alleged that, at all material times, the 2 ^nd and 3 ^rd defendants were functioning as Crown servants or agents, and has not alleged, even in the alternative, that either the 2 ^nd defendant was acting in his personal capacity, or that the 3 ^rd defendant was acting in any private capacity. It was, in the absence of such allegations, not open to the claimant, to properly or successfully pursue his claim as against the 2 ^nd and 3 ^rd defendants. What was the only option available to the claimant, if he wished to have any chance at successfully proving his claim against either the 2 ^nd or 3 ^rd defendants, is that he would have had to have made the appropriate allegation, as against them, as aforementioned, further or alternative to that which was the main thrust of his allegation. That main thrust, if there had been an alternative allegation as to the capacity in which the 2 ^nd and 3 ^rd defendants had been functioning when they carried out their respective actions in respect of which complaint to this court is being made, would have been that at all material times, they were functioning as Crown servants or agents. As it was though, as particularized in the claimant's third further amended particulars of claim, no alternative allegation has been made in that respect. The claimant has instead, solely contended, in that respect, that at all material times, the 2 ^nd and 3 ^rd defendants were functioning as Crown servants or agents.

7 That being so, this claim, it must be declared by this court, can only, if it is to succeed at all, properly succeed as against the Attorney General. This is so because, the Crown Proceedings Act, at section 13 (a) provides that – “Civil proceedings against the Crown shall be instituted against the Attorney General.” As a matter of law, since that statute – Crown Proceedings Act , has clearly specified the party against whom claims against the Crown are to be instituted, it is not open to a claimant, who is not claiming against anyone or any entity, other than someone or some entity whom or which he alleges, was, at the material time, functioning as a Crown servant or agent, to pursue his claim against anyone other than the Attorney General. The statutory provision at section 13 (2) would be redundant if it were otherwise. The latin maxim – “expressio unius est exclusio alterius,” which is a principle that may be used as a guide by the courts in interpreting certain statutory provisions, can properly and should and indeed, will be applied by this court, in interpreting the legal effect of section 13 (2) of the Crown Proceedings Act . See: The Attorney General and Gladstone Miller – Supr. Ct. Civ. App. no. 95 of 1997.

8 In the circumstances, for that reason alone, the claimant's claim against, the 3 ^rd defendant fails and judgment on that claim is awarded in favour of the 3 ^rd defendant. The costs of that claim are also awarded to the 3 ^rd defendant, with such costs to be taxed, if not sooner agreed. As there was no acknowledgement of service or defence filed by the 2 ^nd defendant, this court made enquiry of counsel, at the onset of the trial of this claim, as to whether the 2 ^nd defendant, was ever served with these claim form proceedings. This court was then informed by the claimant's counsel that the 2 ^nd defendant was never served and therefore, it follows that the claim against him, has now expired. See rule 8.14 of the CPR in that regard. Even if service of these claim form proceedings had been lawfully effected upon the 2 ^nd defendant and he had been in default of filing and serving, either an acknowledgement of service, or a defence within the requisite time period, nonetheless, a default judgment could not lawfully have been entered against him by the Registrar, since it follows, from the wording of portions of my reasons for judgment, as earlier set out, that no judgment against him personally, can lawfully be obtained, in view of the manner in which the claimant chose, through his attorneys, to particularize his claim.

9 As regards the claim against the Crown, with the Attorney General being the 1 ^st defendant and the only defendant against whom, if it is to succeed at all, this claim can properly be proven, it is this court's conclusion that the claimant needed to have proven, not merely that his vehicle was unlawfully detained, but furthermore that that there was made by him or by an agent of his, or employee of his, such as for instance, an attorney-at-law (agent), an unqualified demand for the return of his vehicle to him and an unjustifiable and unqualified refusal by the relevant Crown servant or agent, to have delivered the same to him, within a reasonable time after such demand had been made. See: Suit No. C.L. 1990/ G 096 – Owen Grant and Supt. Gladstone Grant and The Attorney General; and George and Branday Ltd. v Lee– [1964] 7 WIR 275.

10 Even if the claimant had been able to prove that there was the unlawful detention of his motor...