Shtern (Adele) v Villa Mora Cottages Ltd, Monica Cummings and Keith Black
| Jurisdiction | Jamaica |
| Judge | PANTON, P. , HARRIS, J.A. , DUKHARAN, J.A. |
| Judgment Date | 14 December 2007 |
| Neutral Citation | JM 2007 CA 72 |
| Judgment citation (vLex) | [2007] 12 JJC 1405 |
| Court | Court of Appeal (Jamaica) |
| Date | 14 December 2007 |
CIVIL PROCEDURE - Extension of time - Application - Restoration of struck-out defence
I agree with the reasoning and conclusion of Hazei Harris, J.A. and I have nothing to add.
This is an appeal from an order of McDonald, J. (Ag.) refusing an application by the appellants for leave to extend the time within which to file witness statements and to restore their defence which had been struck out.
The action herein is grounded in negligence. The 1 st appellant is a hotel at Norman Manley Boulevard, Negril in the parish of Westmoreland, owned and operated by the 2 nd appellant. The respondent was at all material times a guest at the hotel.
It is necessary for the procedural history of this case to be outlined. On October 26, 1999 the respondent filed a Writ of Summons and Statement of Claim, claiming damages against the appellants for injuries sustained by her by reason of severe electrical shock while using a refrigerator located in the office of the 1 st appellant. Paragraphs 4 and 5 of the Statement of Claim reads:
"4. During her stay at the said hotel, the Plaintiff was permitted and/or authorised by the First and/or Second and/or Third named Defendant to use a refrigerator located in the office of the said hotel for the purpose of storing items belonging to the Plaintiff.
5. On or about the 15 th day of February 1996 while the Plaintiff was in the office of the said hotel and in the process of using the said refrigerator for the purposes for which she was permitted and/or authorised to use the same, she received a severe electric shock from the said refrigerator as a consequence of which she sustained injuries and has suffered loss and damage and incurred expenses."
On March 20, 2000 the appellant, with the consent of the respondent, filed a defence denying liability. A reply to the defence, with the consent of the defendant, was filed by the respondent on May 11, 2000. On June 27, 2000 Summons for Directions was filed. An Order on the Summons for Directions was made on September 26, 2000. The action came on for trial on two occasions, July 22 and November 25, 2002, but was adjourned.
On July 9, 2004 an amended Statement of Claim was filed. By these amendments, several particulars of injuries and particulars of special damages were added to the claim.
A Case Management Conference was held on July 9, 2004 and the following orders were made:
"1. That the Claimant be given permission to put in signed expert reports from the following of the Claimant's doctors:
Dr. Charles Kaplan M.D [sic]
Dr. Bernard Cohen M.D.
Dr. Eric R. Brown Ph.D [sic]
Dr. Chris Morrison Ph.D [sic]
Dr. David Levine M.D [sic]
Dr. Glenton Smith M.D.
Dr. Nelson Hendler M.D., M.S.
2. All expert reports to be filed & served on the Defendant on or before Wednesday 14 th July, 2004.
3. Defendant to be given permission to file and serve an amended Defence on or before 14 th July, 2004.
4. That both parties give to the other Standard Disclosure on or before 16 th September, 2004. That there be inspection of documents served by 23 rd September, 2004
5. Witness statements by each witness to be exchanged on or before 30 th November, 2004 [sic]
6. Listing questionnaire to be filed by both parties on or before 30 th May, 2005 [sic]
7. Trial to be by judge alone.
8. Witnesses limited to 3 for Claimant and 5 for Defendant.
9. Pre-trial conference set for 6 th June, 2005 at 10:00 a.m. for 1 hour.
10. Trial to be set for 3 days the 26 th , 27 th , 28 th February, 2007 [sic]
11. Costs of case management conference to be costs in the claim.
12. Formal order to be prepared filed and served by Claimant's Attorney-at-law."
On July 13, 2004 an Amended Defence was filed. It is important that paragraphs 4, 5 and 6 of the Amended Defence be rehearsed. They state:
"4. The Defendants deny paragraph 4 of the Amended Statement of Claim and say that the Plaintiff had a refrigerator in her allotted room which she impliedly had permission to use, and which was in good working order , but it was not true that the Plaintiff [sic] permission to use the refrigerator which was in the office, and that the refrigerator in the office was the 2 nd Defendants private refrigerator.
5. The 3 rd Defendant admitted that the Plaintiff complained of receiving an electrical shock on the date set out in paragraph 5 of the Amended Statement of Claim, but if her complaint was genuine, which is doubted , it was not severe as alleged, and in any case it would have been caused by her going to the refrigerator on her way from the beach, barefooted and wet, without permission from the Defendants.
The Defendants say the complaint by the Plaintiff is faked, because the said refrigerator was mounted on two pieces of board which insulated it, and say further a representative from the Tourist Board to whom the plaintiff had complained, attended and inspected the refrigerator , touched it and it did not shock him it, [sic] if which is denied, [sic] the Plaintiff did receive an electric shock, the Defendants say that the Plaintiff by the unauthorized use of the refrigerator, and by going barefooted and wet to the said refrigerator, and with full knowledge of the risk of being shocked, accepted such risk, and by reason of such acts voluntarily agreed to waive such claim for any injury received. Furthermore the Defendants say that the matters complained of by the Plaintiff were occasioned without any negligence or breach of duty on the part of the Defendant and further the Defendants deny the particulars of injuries set out in paragraph 5 of the Amended Statement of Claim AND do not admit the special damages claim as set out in the Amended Statement of Claim.
6. The Defendants deny paragraph 6 of the Amended Statement of Claim and the particulars pleaded therein, and say if which is denied the Plaintiff did sustain electric shock and consequential injury, she was the author of her own misfortune."
On September 24, 2004 a List of Documents was filed by the respondent and on June 2, 2005, a Listing Questionnaire was filed by her. On June 6, she filed a Witness Statement. On that date a Pretrial Review was held and the following order made:
"1. Permission granted to the Claimant to call and put in evidence at the trial report of Mr. Levi Sommerville, professional engineer.
2. The Defendants to file and serve list of documents by 29 th July, 2005, failing which the Defence stands struck out.
3. Pre-trial Review adjourned to 6 th December, 2005 at 2:00 p.m. for 1 hour.
4. Time for exchange of witness statements extended to 25 th November, 2005.
5. Costs to be costs in the claim.
6. Claimant's Attorney-at-Law to draft, file and serve the order [sic]"
On July 29, 2005 Listing Questionnaire was filed by the appellants.
On December 6, 2005 the following order was made:
"1. Defence struck out.
2. Claimant's...
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