Shaunette Nunes v The Board of Shortwood Teacher's College

• Jurisdiction: Jamaica
• Judge: D. Palmer, J
• Judgment Date: 12 August 2019
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2013HCV02508
• Date: 12 August 2019

[2019] JMSC Civ 167

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2013HCV02508

Between

Shaunette Nunes

Claimant

and

The Board of Shortwood Teacher's College

1 ^st Defendant

and

The Ministry of Education

2 ^nd Defendant

and

The Attorney General

3 ^rd Defendant

Richard Reitzin instructed by Reitzin & Hernandez for the Claimant

Monroe Wisdom instructed by Nunes, Scholfield, DeLeon & Co. for the 1st Defendant

Disclosure — Unless order — Whether there has been compliance - Application for security for costs — Rules 28 and 24 of the Civil Procedure Rules 2002.

IN CHAMBERS

D. Palmer, J

1 The issues relate to a Claim filed by Ms. Nunes on April 23, 2013 seeking damages for injuries, loss and damage she suffered as a result of the alleged negligence of the 1 ^st Defendant in causing her to slip and fall on November 2, 2011. The first issue that concerns the Court is whether or not the 1 ^st Defendant has complied with an order for standard disclosure as directed by the learned Master in Chambers. The consequence of non-compliance would be that the 1 ^st Defendant's defence would stand as struck out and the matter would proceed to an assessment of damages. The secondary issue concerns an application for security for costs made by the 1 ^st Defendant, and its consideration will depend on my ruling on the Claimant's contention that the unless order has taken effect. It would be a useful starting place to give a brief history of the claim and the circumstances that gave rise to the first issue.

Background

2 The Claimant, Shaunette Nunes, was at the material time employed to the Shortwood Teacher's College as a pantry maid and alleges that she slipped and fell while lawfully traversing a ramp located on the premises of the College in November 2011. Subsequent to the incident, she sought medical care and attention for injuries she sustained from the fall. She commenced legal proceedings against the 1 ^st Defendant and others in April 2013, and currently resides abroad having left the employ of the College. Her claim sought, inter alia, damages for negligence, breach of duty of care under the Occupier's Liability Act and breach of employer's duty of care relating to the incident. In its Defence, the 1 ^st Defendant has denied liability for the incident and say that the fall and any consequences alleged to have flowed from it were caused solely, or materially contributed to, by Ms. Nunes' own negligence.

3 At the Case Management Conference (“CMC”) on September 24, 2018, orders were made inter alia for standard disclosure. The learned Master in Chambers also adjourned the CMC and directed that any application for specific disclosure be filed by November 30, 2018. That application was filed in compliance with that order, and is pending. At the adjourned CMC on December 19, 2018, Master Mason made orders that unless the 1 ^st Defendant filed and serve a new List of Documents by January 25, 2019 that complied in all respects with the Civil Procedure Rules (“CPR”), including rule 28.8 (3), and to furnish the Claimant with a copy of a particular memo by December 12, 2018, the defence would stand as struck out.

4 An amended List of Documents was filed by the date directed, but on January 28, 2019, the Claimant's Attorneys-at-law wrote to the 1 ^st Defendant's Attorneys-at-Law indicating that the defence was considered as struck out due to the 1 ^st Defendant's failure to comply with the learned Master's order; in particular, regarding the filing of the amended List of Documents. There appears to have been no reply to this letter and thereafter the issue of whether the 1 ^st Defendant had in fact fully complied with the order was raised before Thompson-James, J who made the following order, inter alia:

Submissions and List of authorities relating to (i) question as to whether or not the First Defendant has complied with orders 1 & 2 made by Master Mason on December 19, 2008; (ii) Security for costs…

5 Affidavits were filed on the Claimant's behalf outlining the reasons for the belief that the ‘unless order’ had taken effect and the defence stands as struck out. The Court has been invited to enter judgment for the Claimant and to have a date fixed for an assessment of damages. I must therefore first determine whether there has been noncompliance with the order with the result that the 1 ^st Defendant's defence stands struck out, and then, if not, to consider the application for security for costs.

Issue 1: Is the 1st Defendant in breach of the unless order and defence struck out

6 The case for the Claimant is that the 1 ^st Defendant has flouted Master Mason's unless order by reason of the fact that its amended List of Documents cannot be said to comply “in all respects with the rules”, as required by the order. Specifically, the Claimant avers that the 1 ^st Defendant has failed to disclose critical documents which are “directly relevant”, within the meaning of rule 28.1(4) of the CPR, to the matters in question in the proceedings because they tend to support the Claimant's case and damage the Defendant's case. In addition, according to the Claimant, the Defendant's defence does not satisfy the certification requirements prescribed in the CPR, and so cannot be said to be in compliance with the dictates of the rules.

7 The 1 ^st Defendant's position is that it has fully complied with the unless order insofar as it served on the Claimant a copy of the memo referenced in the order and also filed and served an amended List of Documents conforming to the stipulations of the order on the prescribed date. For this reason, the 1 ^st Defendant maintains that its defence does not stand as struck out.

The Claimant's Submissions

8 The Claimant contends that neither the List of Documents filed on January 25, 2019 pursuant to Master Mason's unless order, nor predecessor List, have complied with the rules regarding standard disclosure. Counsel, Mr. Reitzin, submitted that a critical distinction ought to be made between standard disclosure and specific disclosure; this is not the latter where the court would need to satisfy itself as to the relevance of the documents sought, that they are or have been in the party's control, or at least that there is a prima facie case that the requirements will be met.

9 It was further submitted that pursuant to rule 28.4 (1) of the CPR, a party is mandated under an order for standard disclosure to disclose all documents which are “directly relevant” to the matters in question in the proceedings. Under rule 28.1(3) of the CPR, a party “discloses” a document by revealing that the document exists or has existed. In line with Rules 28.1 (4) (a)-(c), to be “directly relevant” the document must be one that the party with control of the document intends to rely on; that tends to adversely affect that party's case; or tends to support another party's case.

10 Counsel therefore argued that because the 1 ^st Defendant was under an order to give standard disclosure, it was duty-bound to reveal the past or present existence of all documents upon which it intended to rely, including those which tended to adversely affect its case and those which tended to support its case. In support for his proposition, Counsel relied upon the dictum of Morrison JA (as he then was) in Marcia Jarrett v South East Regional Health Authority, Dr. Robert Wan and The Attorney General of Jamaica [2010] JMCA Civ 15 on rule 28.1(4), that disclosure has within its contemplation:

“every document… which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may — not which must — either directly or indirectly enable the party requiring [discovery] either to advance his own case or to damage the case of his adversary.”

11 Counsel submitted that documents relating to the following, ought to have been disclosed:

• • previous slips and falls on the same ramp;

• • previous complaints about the safety of the ramp;

• • requests for a central hand rail;

• • remedial action by way of remodeling the ramp undertaken within about 5 months of the claimant's slip and fall; and

• • the claimant's statement made shortly after her slip and fall;

• • documents relating to the alleged issuing of appropriate footwear;

• • documents relating to refitting the ramp with anti-slip tiles several years before the claimant's slip and fall;

• • the attendance register;

• • the claimant's letter to the Principal of Shortwood Teacher's College and copied to Mrs. Arlene Hewitt;

• • sick leave and fitness certificates issued by the claimant's medical practitioner;

• • correspondence and/or claim forms prior to the drafting of the Report of West Indies Alliance Insurance Company Limited on Employers (sic) Liability dated 3 March 2012.

12 Counsel submitted further that it would be reasonable to suppose that these documents might directly or indirectly enable the Claimant to advance her case or damage the Defendant's case. He also pointed out that the qualifying words “tends to” as expressed in rule 28.1(4) of the CPR, have the effect of relieving the party seeking standard disclosure of definitively proving, or being capable of proving, that the documents are adverse to the case of their opponent or definitively supportive of their own case. Instead, it is enough if it merely has that tendency to be adverse or be supportive, and once it did, the party required to give disclosure of that evidence is duty bound to reveal its existence.

13 For this reason, Mr. Reitzin reiterated that the aforementioned documents, some of which have yet to be disclosed, should have been disclosed, as they are directly relevant to the matters in question in the. Counsel argued that having received reports from other employees, relating to multiple slip and fall incidents on the same ramp, prior to the Claimant's own fall, documents reflecting the said reports would...