Richard R Reitzin v Thomas & Sons Developers Ltd

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: McDonald-Bishop, P.,‘Straw, J.A.’,V Harris, J.A.
• Judgment Date: 25 July 2025
• Neutral Citation: JM 2025 CA 57
• Year: 2025
• Docket Number: COA2024CV00074

Richard R Reitzin

and

Thomas & Sons Developers Limited

Joseph Thomas Snr

McDonald-Bishop, P.; Straw, J.A.; Harris, J.A.

COA2024CV00074

Court of Appeal

Appearances:

Written submissions filed by Reitzin & Hernandez for the appellant

Written submissions filed by Beecher-Bravo Hanson & Associates for the respondents

McDonald-Bishop, P.

1 I have read, in draft, the judgment of Straw, J.A., and I agree with her reasoning and conclusion.

‘Straw, J.A.’

2 This is a procedural appeal against a decision of Master T Dickens (Ag.) (the learned master), made on 9 November 2023, by which she dismissed the appellant's preliminary objections to an application for summary judgment made against him by the respondents herein.

BACKGROUND

3 This appeal finds its genesis in a claim brought by the appellant, Richard Reitzin, against Mrs. Jacqueline Thomas, Thomas & Sons Developers Limited (‘the company’), Mr. Joseph Thomas Snr and Mr. Jahkeem Thomas, the first to fourth defendants to the claim, respectively. The claim concerns a motor vehicle accident that occurred on 30 October 2015, while the appellant was operating his Honda XR 125L motorcycle and Jahkeem Thomas was driving a 2004 Toyota Tundra pick-up truck. As a result of the collision, the appellant suffered injuries, loss and damage, which he alleges were the result of Jahkeem Thomas' negligence.

4 Mrs. Jacqueline Thomas, mother of Jahkeem Thomas, was the registered owner of the pick-up truck. The appellant also asserted in his claim that, at all material times, Jahkeem Thomas was acting in the course of his employment and was the servant and/or agent of Mrs. Thomas, the company and Mr. Thomas Snr (his father), thereby making them liable for his negligent acts and/or omissions.

5 The company and Mr. Thomas Snr are both represented by Beecher-Bravo Hanson and Associates and are represented separately from Mrs. Thomas and Jahkeem Thomas. By their defence filed on 20 January 2021, the company and Mr. Thomas Snr denied liability for the claim. The defence contended that neither party had any connection to the cause of action, as they were not directly or indirectly involved with the accident. It was further asserted that at the time of the accident, Jahkeem Thomas was an adult and was driving the pick-up truck on personal business. Particularly, he was returning from a friend's house. As such, he was not acting as an agent of any of the other defendants and was not using the pick-up truck during the course of his employment with the company, or carrying out any task on behalf of the other defendants or the company. Therefore, the proceedings against them should be struck out

THE APPLICATION FOR SUMMARY JUDGMENT AND STRIKING OUT

6 In keeping with their defence, on 26 April 2022, a notice of application for court orders to strike out the claim form and particulars of claim and for summary judgment to be entered in favour of the company and Mr. Thomas Snr was filed. The application was made on six grounds as follows:

• “1. The [appellant] has no real prospect of succeeding on the claim;

• 2. The [respondents] have a total Defence to the claim as at no time did either of them own the Toyota Tundra bearing registration number 2811 EJ which was being driven by [Jahkeem Thomas] at the time of the accident with the [appellant], nor was the said vehicle being driven at the said time by [Jahkeem Thomas] as their servant and/or agent, or upon their direction either individually and/or jointly;

• 3. [Jahkeem Thomas] was not an officer of the [company] at the date of the accident on October 30, 2015, and cannot, in law, be held vicariously liable for his acts and/or omissions.

• 4. [Mr. Thomas Snr] was at all material times the biological father of [Jahkeem Thomas], an adult, and had no connection with the accident, and cannot be held liable vicariously, or otherwise in his capacity as the father of [Jahkeem Thomas].

• 5. Neither the [company] nor [Mr. Thomas Snr] have ever accepted liability for the acts and/or omissions of [Jahkeem Thomas] in respect of the accident with the [appellant].

• 6. That judicial time would be saved by the grant of an order striking out the [appellant's] claim form and particulars of claim, and granting summary judgment in favour of the [respondents].”

7 This notice of application was supported by an affidavit of Mr. Thomas Snr, and it was this affidavit that gave rise to the preliminary objections that were ultimately dismissed by the learned master.

8 The full content of the affidavit is relevant to this court's consideration:

• “1) That I am a Businessman, the 3rd Defendant herein, and a Director of the [company] … and I am duly authorised to depone to this Affidavit on behalf of the [company] and myself, and my address for the purpose of this Affidavit is 2 Norbrook Acres Drive, Kingston 8 in the parish of St Andrew.

• 2) That the contents of this Affidavit are from my personal knowledge, and are true to the best of my knowledge, information and belief, and where not from my personal knowledge are from the source/s stated where applicable, which I believe to be true to the best of my information, knowledge and belief.

• 3) That at all material times I was father of Jahkeem Thomas the 4th Defendant herein, and at the date of the accident with the [appellant] on October 30, 2015 Jahkeem was an adult and he was driving the Toyota Tundra bearing registration number 2811 EJ on his personal business, and not as my servant and/or agent, or on my direction, and he has advised me and I do verily believe to be true, that at the time of the accident which was approximately 8:20 a.m. in the morning he was returning from a friend's house at which he had spent the night, and I had not spoken to him for that day prior to the accident, nor was I the owner of the Toyota Tundra being driven by Jahkeem.

• 4) That at the time of the accident [Jahkeem Thomas] was not an officer of the … company, nor did the … company own the Toyota Tundra, nor was [Jahkeem Thomas] engaged in any business for the company, as at the time as he was on his personal business, and I have been advised that in such circumstances the [company] would have no liability to the [appellant] for any loss, injuries or damage sustained as a result of the accident.

• 5) That my Attorney has by email requested that the [appellant] discontinue the claim against myself and the [company], however to date my Attorney has not received any Notice of Discontinuance, or an indication that the Claim will be discontinued against myself and the [company], and the Claimant has applied for summary judgment against [Jahkeem Thomas] solely.

• 6) That based on the contents of the Defence filed on behalf of myself and the [company] I have been advised that the [appellant's] claim has no real prospect of success against either of us, and that summary judgment should properly be entered against him, and in favour of myself and the [company], and I hereby apply for same.

• 7) That in the circumstances I pray that this Honourable Court will grant the orders as prayed for in the Notice of Application for Court Orders, and strike out the Claimant's Claim Form and Particulars and enter summary judgment in favour of myself and the [company] as doing so would be in the interests of justice and would save valuable judicial time and costs.”

THE DECISION OF THE LEARNED MASTER

9 By her judgment, the learned master indicated that at the hearing of the respondents' application, the appellant raised a preliminary objection to Mr. Thomas Snr's affidavit. She detailed the appellant's submissions as follows:

• “[8] The [appellant] submitted that paragraph 6 of the affidavit of [Mr. Thomas Snr] contains no statement of belief that the claimant has no real prospect of succeeding on the claim. The [appellant] argued that this is a fatal omission as it is a mandatory requirement under the rules and at common law for an applicant on an application for summary judgment against the claimant to state his belief that the claimant has no real prospect of succeeding on the claim. The [appellant] relied on the authority of ASE Metals NV v. Exclusive Holiday [of] Elegance Limited [2013] J.M.C.A. Civ. 37, in which Phillips, J.A. [sic] applied the authority of ED & F Man Liquid Products Ltd v. Patel and Another [2003] E.W.C.A. Civ. 472, at paragraphs 14 and 15.

• [9] The [appellant] further argued that at paragraph 6 of his affidavit, [Mr. Thomas Snr] merely deponed that he is advised that the [appellant] has no real prospect of succeeding on the claim, but failed to give the source of this advice. The [appellant] submitted that [Mr. Thomas Snr's] failure to state who advised him that the [appellant] has no real prospect of succeeding on the claim is fatal to the application, and as such, the application is to be dismissed. The [appellant] submitted that in this regard, the [respondents] are in breach of Rule 30.3(2)(b) of the Civil Procedure Rules (‘the CPR’).”

10 Faced with these contentions, the learned master identified two issues for her determination:

• “[12] Whether the application of the [respondents] should be dismissed on account of [Mr. Thomas Snr's] failure to depone in his affidavit that he is advised and verily believes that the [appellant] has no real prospect of succeeding on the claim.

• [13] Whether the application of the [respondents] should be dismissed on account of [Mr. Thomas Snr's] failure to depone in his affidavit, who advised him that the [appellant] has no real prospect of succeeding on the claim.”

11 In resolving these issues in favour of the respondents, the learned master examined the rules applicable to summary judgment and the case of ASE Metals NV v. Exclusive Holiday of Elegance Limited [2013] J.M.C.A. Civ. 37 (‘ ASE Metals’) and concluded that Brooks, J.A. (as he then was) sought to outline the burden of proof on an application for summary...