The Transport Authority v Amy Hyacinth Bogle
| Jurisdiction | Jamaica |
| Judge | Phillips JA |
| Judgment Date | 19 October 2017 |
| Neutral Citation | JM 2017 CA 61 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 114/2015 |
| Court | Court of Appeal (Jamaica) |
| Date | 19 October 2017 |
[2017] JMCA App 31
IN THE COURT OF APPEAL
Phillips, J.A.
SUPREME COURT CIVIL APPEAL NO 114/2015
APPLICATION NO 87/2017
Mrs Angele Powell-Hylton instructed by Campbell McDermott for the applicant
Garth Lyttle instructed by Garth Lyttle & Co for the respondent
Civil appeal - Application for an extension of time to file skeleton arguments, written chronology of events and record of appeal — Delay in making application — Whether delay was inordinate — Reason for delay — Whether realistic prospect of success — Degree of prejudice to the parties if the application was granted — Whether the judge erred in admitting the receipts into evidence notwithstanding section 31E of the Evidence Act — Principles to be utilized in the exercise of judge's discretion to grant the application — CPR 28.19 — Commissioner of Lands v. Homeway Foods Ltd and another [2016] JMCA Civ 21.
The applicant is seeking an extension of time to file skeleton arguments, written chronology of events and a record of appeal. This application is being sought on the basis that although there was some delay in making the application for an extension of time, that delay was not inordinate and it had a good reason for the same. Moreover, it was the applicant's contention that its appeal has merit and that it would be severely prejudiced if it is not placed in a position to argue its appeal.
The respondent is the owner and driver of a 1989 white Toyota Mark II motor car registered 5912FQ. On 5 February 2011, while the respondent was driving her motor car along Waltham Park Road in the parish of Kingston, an accident occurred involving her motor car and a motor truck registered 9931DS driven by Mr Lloyd Bowen, a transport authority inspector. She claimed that the said transport authority inspector wilfully and negligently drove the motor truck into the front of her car, causing extensive damage to the motor car and also causing her physical injury. After the accident, the respondent's motor vehicle was placed on a wrecker by the transport authority inspectors and driven away. The respondent was prosecuted by Miss Pauline Saunders, a transport authority inspector, with operating her private passenger vehicle as a public passenger vehicle without a road licence, and no insurance coverage. Both charges were dismissed by a parish court judge in the Traffic Court, and an order was made that the vehicle should be returned to the respondent. However, to date, the whereabouts of the respondent's motor car remain unknown. The respondent claimed that the failure to return her motor car resulted in her being forced to rent a motor car at $6,000.00 per day between 15 February 2011 to 9 October 2015.
Subsequently, the respondent filed two claims, the first of which was filed in 2011 in which the respondent sought to recover damages for negligence arising from the traffic accident and the second claim, filed in 2012, was for damages for detinue and conversion. The second claim had not been served on Mr Lloyd Bowen and Miss Pauline Saunders, and so had not been pursued against those defendants but was pursued against the applicant.
Both claims were heard by K Anderson J on 7, 8 January, 5, 6 and 7 October 2015. The learned judge found, in reliance on Carl Brown and Another v Constable Clive Nicholson [2013] JMSC Civ 151 and George and Branday Ltd v Lee (1964) 7 WIR 275, that the respondent's claim for detinue had failed because the respondent had failed to prove that she either personally or through anyone acting on her behalf, such as an attorney, made at any time, an unqualified demand for the return of her motor car. He further indicated that enquiries made by her as to the whereabouts of her vehicle were not equivalent to making an unqualified demand.
The learned judge granted the respondent's claim for conversion on the basis that the applicant had failed to prove that the respondent's motor car was lawfully seized or that she had failed to satisfy all the prerequisites for the actual release of her motor car on bond. In assessing damages for conversion, the learned judge noted that while the respondent had produced receipts to the court proving that payments for a rental car were made, the applicant had not relied on any contention that the respondent had failed to adequately mitigate her loss, and instead chose to rest its case as regards the issue of damages. Since the respondent's motor car was not recovered, the learned judge found that in the interests of justice the respondent should be awarded $400,000.00 for the value of the said motor car. He also found that the respondent had successfully proved her claim for damages for negligence and pain. In all these circumstances on 9 October 2015, K Anderson J made the following orders:
“1. The [respondent] is awarded damages for conversion in the sum of Ten Million Four Hundred Thousand Dollars ($10,400,000.00) with interest at a rate of 3% from [M]ay 14, 2012 (the date of service of Claim Form) to the 9 th day of October, 2015 (the date of Judgment).
2. The [respondent] is awarded General Damages for negligence in the sum of Three Hundred and Fifty Thousand Dollars with interest at a rate of 3% from February 16, 2011 (date of service of Claim Form) to the 9 th day of October, 2015 (the date of Judgment).
3. The [respondent] is awarded Special Damages for negligence in the sum of Ninety Two Thousand Five Hundred Dollars ($92,500.00) with interest at a rate of 3% from November 22, 2011 (date of service of Claim Form) to the 9 th day of October, 2015 (the date of Judgment).
4. The Costs of this Claim are awarded to the [respondent] and are to be taxed, if not sooner agreed.”
On 20 November 2015, the applicant lodged an appeal against K Anderson J's decision, seeking to set it aside with costs being awarded to the applicant, on the following grounds:
“(a) The learned judge erred by making an award of Ten Million Dollars ($10,000,000.00) for loss of use of the Respondent's motor vehicle in that the learned judge admitted into evidence receipts tendered through the Respondent prior to the [applicant] being served with the Supplemental List of Documents listing the receipts. The [applicant] was not given an opportunity under Rules 28.19 of the Supreme Court of Jamaica Civil Procedure Rules, 2002, to serve a notice on the Respondent to prove the authenticity of the receipts.
(b) The learned judge erred in awarding an inordinately high figure for damages in relation to the value of the Respondent's vehicle at the time of the judgment, in circumstances where there was no evidence before the learned judge as to the value of the vehicle.
(c) The learned judge erred in finding that the [applicant] had raised a positive defence to the claim requiring the burden of proof to be reversed, in that the learned judge misguided himself by applying case law that was not relevant to the instant case.
(d) The learned judge erred in finding that it was for the [applicant] to prove that the Respondent did not attempt to retrieve her vehicle by entering into the required bond.
(e) The learned judge erred in his findings that the [applicant] unlawfully seized and detained the Respondent's vehicle without lawful cause, in circumstances where the evidence before the Court supported a finding to the contrary.
(f) The learned judge erred in placing too much weight on the Respondent's evidence and too little weight on that of the witnesses for the [applicant].
(g) The learned judge erred in awarding the Respondent loss of use of her motor vehicle from the day it was seized until the date of judgment, in that the learned judge failed to give any weight to the Respondent's duty to mitigate her loss notwithstanding the [applicant] cross examining the Respondent on the same.
(h) The...
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