Sonia Wilson v Muffler Specialist Ltd
| Jurisdiction | Jamaica |
| Judge | HARRIS JA , PHILLIPS JA , HIBBERT JA (Ag) |
| Judgment Date | 28 October 2011 |
| Neutral Citation | JM 2011 CA 104 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 31/2006 |
| Date | 28 October 2011 |
[2011] JMCA Civ 37
JAMAICA
IN THE COURT OF APPEAL
THE HON MRS JUSTICE HARRIS JA
THE HON MISS JUSTICE PHILLIPS JA
THE HON MR JUSTICE HIBBERT JA (Ag)
SUPREME COURT CIVIL APPEAL NO 31/2006
Lord Anthony Gifford QC, Miss Marlene Uter and Miss Tiffany Lofters instructed by Alton E Morgan & Co for the appellant
Garth McBean instructed by Garth McBean & Co for the respondent
OCCUPIER'S LIABILITY - Negligence - Personal injuries - Nova causa interveniens - Damages
I have read in draft the reasons for judgment written by my learned brother Hibbert JA (Ag). I agree with his reasoning and conclusion and have nothing to add.
I too have read the draft reasons for judgment of Hibbert JA (Ag) and agree with his reasoning and conclusion.
On 29 July 2011 we gave our decision dismissing the appeal and awarding costs to the respondent. The reasons are now put in writing.
The appellant, Sonia Wilson, was, on 6 October 1993 seriously injured when the bell housing of her 1980 Volkswagen Sirocco motor car exploded while the muffler system was being inspected by employees of the respondent company, at the respondent's premises. As a result, the appellant brought an action against the respondent for damages for negligence and for breach of its statutory duty under the Occupiers' Liability Act.
The particulars of negligence and breach of statutory duty were stated as follows:
‘PARTICULARS OF DEFENDANT'S SERVANT'S/EMPLOYEE'S NEGLIGENCE
(a) Running and/or operating the engine of the said vehicle at a rate which was excessive in the circumstances;
(b) Running and /or operating the engine of the said vehicle knowing that the Plaintiff was underneath same and;
(c) Running and/or operating the said vehicle at a time when it was manifestly unsafe to do so.
7. That the Defendant and/or it's [sic] servants/employee also acted in breach of its duty to the Plaintiff under Section 3 of the Occupier's [sic] Liability Act 1969.
PARTICULARS OF DEFENDANT'S SERVANT'S/EMPLOYEE'S BREACH OF STATUTORY DUTY
(a) Failing to warn the Plaintiff of the dangers of being in close proximity to a running and defective vehicle;
(b) Failing to stop or cease running and/or operating the engine of the said vehicle knowing that the Plaintiff was underneath same;
(c) Inviting the Plaintiff to enter into the repair pit in circumstances where it was manifestly unsafe for her to do so;
(d) Failing to use a safe method of examining and repairing the said vehicle.
8. That as a result of the Defendant's and/or it's [sic] servants” and/or employees” breach of statutory duty and/or negligence, and the consequent explosion of the vehicle's underside or portions thereof the Plaintiff has suffered injuries, loss and damage.’
At the trial before Straw J, the appellant gave evidence that a problem had developed with the clutch system of her car and about two weeks prior to 6 October 1993, she sent the car to Thwaites Auto Centre to have the gear box repaired. Work was said to have been done to the clutch and pressure plate. The problem, however, persisted as the ‘car was still not going into second gear’. She reported this to Thwaites Auto Centre and was advised to return after getting the muffler system checked.
About two days before 6 October 1993, she took the car to the respondent where repairs were done to the muffler system. On her way home she heard a sound which she perceived to be caused by a hole or some other defect in the muffler system. She reported this to Mr Gerald Lacey Snr, the respondent's managing director, and as a consequence, returned to the respondent on 6 October 1993.
The car was driven onto a ramp over a pit and the exhaust system was examined. The appellant further testified that Mr Gerald Lacey Jnr, informed her that he had found no fault with the muffler system. She, however, insisted that there was a hole in the system. Mr Lacey Jnr, she said, invited her to where the car was to see for herself that there was no hole in the muffler pipe. She said she entered the repair pit under the car. While she was there with Mr Lacey Jnr, an employee of the respondent remained in the car and was revving the engine. She was pointing out the location from which she heard the sound she complained of, when she heard a violent explosion coming from the underside of the vehicle, then found herself on the ground in pain and unable to move. She realized, then, that she had suffered serious injuries to her legs.
Mr Gerald Lacey Jnr, was the first witness called on behalf of the respondent. He was then a junior manager at the respondent. He stated that on 6 October 1993 the appellant drove her Volkswagen Sirocco motor car to his place of business and complained of hearing a strange sound in the vehicle. The motor car was driven onto a ramp over a pit. He entered the pit and proceeded to examine the exhaust system while Linval Dixon, another employee of the respondent, revved the engine. At some stage during the examination the appellant entered the pit and pointed to an area where she said the sound came from. He denied inviting her into the pit. While the engine was being revved, he heard an explosion coming from under the vehicle. He immediately felt a blow to his right jaw, caused by a piece of metal. He noticed that he was bleeding from his jaw and that the appellant was also injured. He also noticed a hole in the gearbox bell housing of the motor car, and metal parts, including the flywheel from the gearbox, strewn all over the ground in the vicinity of the car.
Linval Dixon also gave evidence supporting that of Mr Lacey, Jnr, as to the events leading up to the explosion. After the explosion, he also noticed injuries to Mr Lacey Jnr, and the appellant, as well as the hole in the gearbox bell housing, the flywheel and other parts from the gearbox on the ground.
Mr Gerald Lacey Snr, stated that after the incident the motor car was removed to the premises of D.B. Motors Limited where he and a motor vehicle assessor subsequently examined it to confirm the cause of the explosion. During cross-examination, he said that since the respondent company started business in 1979 there were only two reported cases of injuries caused to persons. In one instance, an employee damaged his fingers while using a chisel and in the other, an employee, who refused to wear the safety goggles supplied to him, got particles in his eyes. He admitted that there may be some danger to persons operating in the pit under motor vehicles. This he, however, confined to hot oil leaking from the vehicle or from a hot exhaust system.
Michael Forrest, the then managing director of Trans Jam Loss Adjusters for over 24 years, prepared an expert report for the court based on his examination of the 1980 Volkswagen Sirocco motor car. In this report he concluded as follows:
‘(a) There was damage to the Gearbox Bell Housing, Flywheel assembly and Bolt.
(b) Based on the nature of the damage it is my opinion that the Flywheel disintegrated causing damage to the other components.
(c) From an invoice shown to me by Mr. Lacey Snr, a copy of which was provided to the Claimant's Attorneys-at-law through the Defendant's Attorneys-at-law Messrs. Garth McBean & Co, it appears that previous repairs were carried out to the Gearbox which in my opinion resulted in this mechanical failure namely the disintegration of the flywheel.’
While giving evidence, Mr Forrest stated:
‘For fly wheel to disintegrate the bolts will have to give and the flywheel will fly off. If this happens while vehicle is running, in some cases, it can just fly off and rest in the bell housing. This is dependent on the revolution per minute applied. Paragraph 5(b), in this particular case it caused damage to other components… An engine can explode as a result of over-rewing. But term “explode” not happy with it. If engine over-rewed would not expect anything to happen with gearbox.’
He later stated:
‘In normal course of things would not expect a gearbox to disintegrate.’
The learned trial judge, in arriving at her decision, found that on a balance of probabilities the appellant had not proved that the vehicle was being over-rewed. In finding that the respondent was not liable, she stated:
‘Even if the court were to find that the defendant invited or allowed the claimant to be in the pit, the claimant has not proved on a balance of probabilities that it was the defendant's negligence or breach of duty that was the immediate cause of the explosion.’
Accordingly, judgment was entered for the respondent with costs to be agreed or taxed.
It is from this judgment, which was delivered on 17 March 2006 that the appellant has appealed. Notice and grounds of appeal were filed on 28 April 2006. These were, however, replaced by amended notice and grounds of appeal which were filed on 30 August 2010. The grounds of appeal were stated as follows:
‘(1) The learned judge erred in not holding that on the evidence (both that of the Claimant and that called on behalf of the Defendant) the Defendant had breached its duty of care by inviting and/or permitting the Claimant to enter a dangerous part of its premises, namely the repair pit, at the time that the engine of her car was being revved.
(2) The learned judge erred in relying on her finding that the Defendant could not have foreseen that the gearbox of the Claimant's car would explode; and in not holding that if (as the evidence showed) the Defendant ought reasonably to have foreseen the happening of an accident of the type which did occur, as a result of its breach of [sic] duty of care, the Defendant would be liable.
(3) The learned judge failed to apply the principle...
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