Rose (Paulette) (on her behalf as mother dependent and near relative of deceased (Delnielo Authers) v Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: MCDONALD J. (Ag)
• Judgment Date: 10 July 2001
• Judgment citation (vLex): [2001] 7 JJC 1001
• Court: Supreme Court (Jamaica)
• Docket Number: SUIT NO. C.L. 1999/R-048
• Date: 10 July 2001

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO. C.L. 1999/R-048

BETWEEN

PAULETTE ROSE (On her behalf as mother dependent and near relative of the deceased DELNIELO AUTHERS)

PLAINTIFF

AND

THE ATTORNEY GENERAL OF JAMAICA

DEFENDANT

CIVIL PROCEDURE - Interlocutory judgment - Leave to file defence - Damages for wrongful death - Fatal Accidents Act

MCDONALD J. (Ag)

1 This application seeks an order to set aside interlocutory judgment in default of defence and for leave to file and serve a defence.

2 The claim is one against the defendant to recover damages under the Fatal Accidents Act for wrongful death of the deceased on or about the 22nd day of September, 1997 caused by the negligence of the servant and/or agents of the Crown.

3 Chronology of Events:

• 1. On the 29th April 1999 the Plaintiff filed a Writ of Summons and Statement of Claim.

• 2. Appearance was entered on 25th May, 1999: but thereafter the defendant failed and/or neglected to file any defence

• 3. Summons for leave to enter Judgment in default of defence was filed on 22nd June, 1999 and order granted on 20th July, 1999. There is no dispute that the judgment was a regular one.

• 4. On 15th May 2000, summons for order to proceed to Assessment of Damages was heard and granted -

• 5. On 31st October 2000 the hearing of the Assessment of Damages was adjourned - summons to set aside judgment pending.

• 6. On 27th October 2000 summons to set aside Interlocutory Judgment was filed and set for hearing on 28th June, 2001. Affidavit of Mrs. Foster-Pusey in support was filed on 25th June, 2001.

4 The Affidavit deposed inter alia that:- paragraph 9 ..... "I am informed by the Commissioner of Police and do verily believe the following facts:-

• (a) The lock-ups were being supervised at the time of the incident. The officers supervising were at their proper location in the reception area of the lock-ups. Lock-ups are not constructed to include police personnel beyond the reception area.

• (b) The officers on duty acted with dispatch on hearing noise from the cells. Upon investigation, Authers was found with injuries whereupon he was rushed to the Kingston Public Hospital for treatment.

• (c) The police officers search food and clothing coming in for inmates and also search cells and inmates on a regular basis to prevent the entry of weapons into the cells. Despite the best efforts of the authorities, inmates find ingenious ways to smuggle in weapons and to also utilize ordinary things, e.g. a toothbrush, to fashion weapons.

• (d) The deceased had not indicated to any police officer that he was in any special danger or had received any threats on his life.

• (e) The attack on the deceased was entirely unforeseen by the police administration.

• (f) Investigations were launched into the murder of the deceased and five inmates were listed on the information; however the matter is yet to be determined".

5 A draft defence was exhibited to this affidavit

6 I have advised myself as to section 258 of the Judicature (Civil Procedure Code) Law which gives the Court or Judge a discretion when it comes to the setting aside of default judgments; and of the principles governing the exercise of this discretionary power enunciated in Evans v Bartlam (1937) 2 ALLER 646 at page 650 which reads:-

"The discretion is in terms unconditional. The Courts however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that, where the judgment was obtained regularly, there must be an affidavit of merits, meaning that the applicant must produce to the Court evidence that he has a prima facie defence".

7 The primary consideration is whether or not the defence has merits to which the Court should pay heed. As stated by Bowen LJ in Evans v Bartlam (supra) at page 656.

"If merits are shown, the Court will not prima facie desire to...