Shonique Clarke v Omar Palmer
| Jurisdiction | Jamaica |
| Judge | Simmons J |
| Judgment Date | 24 May 2019 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2015 HCV 00187 |
| Date | 24 May 2019 |
[2019] JMSC Civ 106
IN THE SUPREME COURT OF JUDIC ATURE OF JAMAICA
CLAIM NO. 2015 HCV 00187
and
Miss Petrina Williams instructed by Zavia Mayne & Co for the claimant/respondent
The first defendant in person
Mr. Jahmar Clarke instructed by Myers, Fletcher & Gordon for the second defendant/applicant
Civil Procedure-Application to disallow amendment of defence after mediation- Civil Procedure Rules, 2002, Part 20 Summary judgment- Civil Procedure Rules, 2002, Part 15
By way of Notice of Application for Court Orders filed on June 22, 2017, the second defendant, Accent Marketing Jamaica Limited, applied to the court seeking the following orders: -
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(i) The court disallow the amendments to the pleadings made by the first defendant filed on July 27, 2015;
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(ii) Summary judgment for the second defendant against the claimant;
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(iii) Costs of the application to the second defendant to be taxed if not agreed.
The grounds on which the second defendant relies are stated to be as follows: -
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(i) That the amendment was made in furtherance of discussions at mediation that was held on June 22, 2015;
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(ii) the effect of the amendments, if allowed to stand, would create a new defence to be presented, distinctly different from that which was pleaded on April 9, 2015;
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(iii) the amendment was not made in good faith but made to meet the evidential difficulties faced by the claimant and the first defendant;
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(iv) the amendment did not arise as a result of a mistake or carelessness;
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(v) the amendment creates an injustice to the second defendant;
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(vi) if the amendment is disallowed the claimant has no real prospect of success against the second defendant in accordance with rule 15.2 of the Civil Procedure Rules, 2002.
The application is supported by the affidavit of Kareen Mair, the Human Resources Manager of the second defendant.
The claimant, Miss Shonique Clarke and the first defendant, Mr. Omar Palmer were employees of the second defendant. According to the claimant, on or about January 28, 2011 whilst executing her duties as a Customer Care Representative, the first defendant, in an attempt to gain her attention, caused and/or permitted her to fall from a chair on which she was seated. As a result, she sustained injuries. She initiated proceedings against both the first defendant and the second defendant. The claim against the defendants for “ damages for breach of its common law duty to care, Negligence and/or breach of Statutory Duty and/or common law duty to care.”
In the Particulars of Claim, the claimant repeats the averment in the claim form that the first defendant caused and or permitted her to fall from a chair. The particulars of negligence are stated to be as follows: -
“(i) Failing to provide a safe place for its employees.
(ii) Failing to take reasonable care in all the circumstances to carry out its business in such a manner so as not to expose the Claimant and other employees to reasonably foreseeable risks.
(iii) Failing to take such care as in all the circumstances was reasonable to see the Claimant would be reasonably safe while working.
(iv) Failing to provide a safe system of work.
(v) Failing to modify, remedy and/or improve a system of work which was manifestly unsafe and likely at all material times to (sic-words omitted)
(vi) Causing and/or permitting the Claimant to fall from a chair.
(vii) Inviting and/or permitting the Claimant to sit on a chair which was manifestly unsafe.
(viii) Injuring the claimant.”
The claimant's particulars of injuries and special damages are also outlined but need not be recited for the purposes of this application.
The first defendant's defence was filed on April 09, 2015. It states that on or about January 21, 2011, the claimant and the first defendant whilst at work were engaged in a playful interaction, during which, the claimant wilfully and forcefully used her body to pull away the chair on which she was seated, causing her to fall from her chair.
The first defendant asserts that the accident was not caused by any negligence on his part. Further or alternatively, he states that the accident was wholly caused or was contributed to by the negligence of the claimant.
The particulars of negligence of the claimant are outlined as follows: -
“(a) failing to keep any or any sufficient regard for her own safety by participating in the act of pulling the chair back and forth;
(b) in the circumstances failing to take any or any sufficient care for her own safety;
(c) failing to stop so as to avoid the accident;
(d) causing and/or permitting herself to fall from the chair;
(e) injuring herself;
(f) res ipsa loquitor”
An amended defence was filed on July 27, 2015.
The second defendant's defence was filed on March 5, 2015. The company admits that the first defendant was its employee at the material time. He ceased employment with the second defendant since 2011.
It states that on or about January 26, 2011, the claimant reported that the first defendant had played a prank on her by pulling the chair from under her as she was in the process of sitting. It also states that, if the first defendant was attempting to gain the claimant's attention, it was for personal reasons and was not connected in any way to the functions that he had been employed to perform. The first defendant was not acting in the course of his employment at the time of the alleged incident and was quite literally on a frolic of his own.
It further states that the second defendant does not encourage or condone practical jokes or horseplay at the office.
The second defendant avers that it did not breach any duties owed to the claimant and states that the actions of the first defendant were not foreseeable. It also states that the claimant's chair was not defective in any way.
It further states, in the alternative, that the claimant contributed to her injuries by engaging in practical jokes with the first defendant.
The second defendant also avers that the first defendant at the time, accepted responsibility for his actions and agreed to pay or contribute to the claimant's medical bills.
The claimant filed a reply to defence on March 17, 2015. In the first paragraph the claimant states that she joins issue with the first defendant on its defence.
The claimant asserts that on the material day the first defendant, while trying to resolve a customer's complaint, sought her assistance. She pointed to her headset to indicate that she was engaged with a customer. The first defendant having not understood her signal, held on to the chair on which she was seated and caused her to fall.
She states that she was not engaged in any practical jokes and/or horse playing activities with the first defendant and that the incident was reported to the second defendant in a reasonable time.
Mr. Clarke submitted that the amendment should be disallowed. He then outlined the chronology of events and stated that it was only after it was pointed out at the mediation that the first defendant had admitted to “playful interaction” with the claimant that the defence was amended to omit those words. He argued that it is improper for a party to amend their statement of case in those circumstances. It was also submitted that the amendment represents a radical shift in the first defendant's defence.
In this regard, he relied on Moo Young and another v Chong and others (2000) 59 W.I.R. 369 in which the court stated that an amendment would not be permitted if it is “in conflict with and contrary to a specific allegation of fact previously made”. 1
Where the application for summary judgment is concerned, Mr. Clarke submitted that there is nothing in the pleadings which ground the causes of action for occupiers' liability, employer's liability or negligence.
With respect to occupier's liability, reference was made to Errol Hanna v University of the West Indies (unreported), Supreme Court, Jamaica, Claim No. C.L. 2000/H-104, judgment delivered 19 October 2004, in which Daye J said: -
“The purpose of the Occupier's Liability Act was to provide ‘New rules and institute a “common duty of care” by the occupier to all visitors be they invitees or licensee’…Under section 3(2) of the Act the “common duty of care” is defined as:
“the duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there.” 2
After emphasising the word ‘reasonable’ in the foregoing extract, Mr. Clarke stated that an occupier is only liable for, firstly, the dangerous physical condition of the premises and secondly, for the dangers arising from things done or omitted to be done on the premises by himself or others for whose conduct he is under a common law liability. Counsel submitted that in the instant case, there was no threat posed by virtue of the condition of the premises nor were there any dangers arising from things done or omitted to be done on the premises by the second defendant or others for whose conduct the second defendant is under a common law liability. Mr. Clarke also argued that the actions of the first defendant were outside the scope of his employment and do not create an inherent danger that arose from things done on the premises and was not reasonably foreseeable by the second defendant. In the circumstances, it was submitted that a claim for breach of the Occupiers’ Liability Act is bound to fail.
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