Samuel Rose v Galaxy Leisure and Tours Ltd
| Jurisdiction | Jamaica |
| Judge | Mott Tulloch-Reid J (AG) |
| Judgment Date | 21 May 2021 |
| Neutral Citation | [2021] JMSC Civ 93 |
| Docket Number | CLAIM NO: SU2020 CV 01376 |
| Court | Supreme Court (Jamaica) |
CLAIM NO: SU2020 CV 01376
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
Civil Procedure — Application to strike out claim for an abuse of the process of the Court — application for an extension of the validity of the claim form — the impact of a Notice of Discontinuance — whether the hirer under a rental car agreement is vicariously liable for the negligent acts of the hiree of the rental car — CPR 26.3(1)(b), CPR 8.15(1). CPR 37.7
Mr Lance Lamey instructed by Bignall Law for the Claimant/Respondent.
Jacqueline Cummings and Matthew Palmer instructed by Archer Cummings and Co for the Defendants/Applicants.
CORAM: Mott Tulloch-Reid J (AG)
There are two applications before me. They are the Defendant's application to strike out the claim for an abuse of the Court's process and the Claimant's application to extend the validity of the claim form. The Claimant tried to have his application to consolidate claim number 2015HCV00825 Samuel Rose v Galaxy Leisure and Tours Limited and Franklin Bosheuvel, with this claim heard at today's hearing but counsel for the Defendant, Ms Cummings, objected to this course of action as she was not served with the application and was therefore not in a position to respond to it. I need not concern myself with that latter application in any event as claim number 2015HCV00825 is no longer before the Court as a Notice of Discontinuance concerning that claim was filed on September 11, 2020 and served on the Defendants' attorneys-at-law. Since that claim was discontinued, there is therefore nothing to consolidate. I need not consider the application to extend the validity of the claim form because Mr Vaughn Bignall in his affidavit in response to the Defendant's affidavit in support of the application to strike out claim, has indicated that he now discontinues the application made on behalf of the Claimant to extend the validity of the claim form as serving the 2 nd Defendant “ will be an exercise in futility”. This would therefore bring us back to the position the parties would have been in the 2015 claim, for in this claim, the parties still remain Samuel Rose against Galaxy Leisure and Tours Limited and Franklin Bosheuvel.
I wish to however comment on the effect of filing and serving a Notice of Discontinuance. CPR 37.7 provides that
“Where -
(a) a claimant discontinues a claim after the defendant against whom the claim is discontinued has a filed a defence; and
(b) the claimant makes a subsequent claim -
(i) against the same defendant;
(ii) arising out of the facts which are the same or substantially the same as those relating to the discontinued claim; and
(iii) the claimant has not paid the defendant's costs of the discontinued claim,
the court may stay the subsequent claim until such time as the costs of the discontinued claim are paid.”
The Claimant has discontinued the 2015 claim which he brought against the First and Second Defendants. This was not with the consent of the Defendants and has in essence filed the same claim against the same two Defendants. With respect the claim 2015, the Claimant has not yet paid the costs associated with that claim. This has brought into play CPR 37.7 and as such, since the Defendants will be asked to face the same claim under a new suit, and would have incurred costs for defending the 2015, claim it is only fair that before the new proceedings are continued against them, the Claimant is made to pay the costs associated with the 2015 claim.
CPR 26.3(1)(b) provides that:
“In addition to any other powers under these Rules, the court may strike out a statement of case or part of a statement of case if it appears to the court that the statement of case or the part to be struck out is an abuse of the process of the court or is likely to obstruct the just disposal of the proceedings”
The Defendant says the Claimant's case should be struck out because the filing of this claim is an abuse of the process of the court when another claim exists. The other case does not exist as it has been discontinued. The point is therefore moot. I would therefore in the circumstances not strike out the claim.
Ms Cummings raised an interesting point in her oral submissions on the hirer/hiree contract in a rental agreement. I wish to comment on it. She argues that the person who rents a car from a rental car company is not the servant and/or agent of the rental car company. I agree with this point because when a person rents a motor vehicle, he is using it for his own purposes and benefit and not for the purpose and benefit of the rental car company. Ms Cummings continues by arguing that if you are in the business of renting car and can prove you had a contract of hireage you are not liable vicariously. This is also correct as vicarious liability arises in situations of master/servant and agency, that is, when the servant or agent of the owner is driving on the instructions of or for the benefit of the owner of the motor vehicle.
Ms Cummings relies on the case of Avis Rent-A-Car Ltd v Maitland [1980] 32 WIR 294 to support her argument. In that case the appellant rented its car to the second defendant who used it for his own purposes of conducting private investigation. The second defendant drove the car in a negligent manner so that it crashed and the passenger in the car was killed. The trial judge held that the rental car company was liable as the second defendant was driving as its agent. The Court of Appeal disagreed with the finding of the trial judge and held that there was no agency relationship between the second defendant and the rental car company as the second defendant was not driving the motor vehicle for the benefit of the rental car company, albeit that the rental car company would have benefitted by earning an income from the rental. The Court of Appeal's reasoning and decision are supported by the case of Morgans v Launchbury [1973] AC 127 in which Lord Wilberforce said
“For I regard it as clear that in order to fix vicarious liability upon the owner of a car in such a case as the present, it must be shown that the driver was using it for the owner's purposes, under delegation of a task or duty… The owner ought to pay, it says, because he has authorised the act, or requested it, or because the actor is carrying out a task or duty delegated, or because he is in control of the actor's conduct. He ought not to pay (on accepted rules) if he has no control over the actor,...
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Davian Townsend v Atl Automotive Ltd, Henry Campbell
...between “permitted driver” and “agent” is succinctly laid out in Samuel Rose v Galaxy Leisure and Tours & Franklin Bosheuvel [2021] JMSC Civ 93. Discussion and Analysis 9 The relevant rule of the Civil Procedure Rules (“CPR”) governing summary judgments is rule 15.2. The effect of the rule ......