Walker (Marjorie), Michael Costa and Kenneth Neysmith, executors of the estate of Neville Walker (Deceased) v Victor Lobban
| Jurisdiction | Jamaica |
| Judge | FORTE, P. , K. HARRISON, J.A. , HARRIS, J.A. (Ag.) , ORDER |
| Judgment Date | 20 December 2005 |
| Neutral Citation | JM 2005 CA 79 |
| Judgment citation (vLex) | [2005] 12 JJC 2003 |
| Court | Court of Appeal (Jamaica) |
| Date | 20 December 2005 |
DEFAMATION - NEGLIGENCE
Employers' liability -
Having read in draft the judgment of Harris, J.A. (Ag.) I agree with the reasons and conclusions therein and have nothing further to add.
I too have read the judgment of Harris, J.A. (Ag.) and agree with the reasoning and conclusion therein.
This is an appeal against a decision of the Honourable Mr. Justice Dukharan in which he gave judgment for the respondent in an action for negligence.
The appellant Neville Walker has died since the filing of the appeal. His executors have been substituted as appellants. However, for convenience, reference will hereinafter be made to Mr. Walker as the appellant.
The appellant was the principal shareholder and Managing Director of two companies, namely, Triumph Car Specialist Ltd. and Triumph Commercial Ltd. Triumph Car Specialist Ltd. repaired motor cars while Triumph Commercial Ltd. sold and repaired trucks. In November 1987 the companies conducted business at adjoining premises on 18 Elgin and Lyndhurst Roads.
On November 11, 1987, the respondent, an apprentice welder, was carrying out work on a truck at 18 Elgin Road, when it fell from a jack on which it was mounted, fracturing his right foot and ankle.
The respondent's evidence was that he had been taken to 18 Elgin Road by a Mr. Michael Amos who introduced him to the appellant. He had commenced working there about 2½ months prior to the accident. He further stated that he was paid a salary of $80.00 weekly by Mr. Amos. On the evening of the accident, he related that the appellant removed him from a job on which he was engaged and sent him to build up a spring on the truck. In the process of installing the spring, the truck fell from the jack on his foot, causing the injury.
The appellant denied that the respondent had ever been employed by him. He had never paid him wages. He also refuted that he had been introduced to him by Mr. Amos. He further testified that he had never given him instructions to work on the truck on the day in question.
In the court below, Mr. Amos was named co-defendant with the appellant. Mr. Amos asserted that he was employed as a welder by Triumph Commercial Ltd. It was also denied by him that he had made the introduction as alleged by the respondent. He had known the respondent about seven years before the accident and had taken him to Triumph Commercial Ltd, to do work on truck bodies. It was however refuted by him that he had ever given him directions to work, or instructions to work on the truck spring on the day on which he was injured.
The learned trial judge found the appellant liable and awarded the respondent the following:
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Special damages - $508,850.00 with interest at 6% per annum from November 8, 1987 to September 20, 2002.
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General Damages- $1,600,000.00 for pain and suffering and loss of amenities with interest at 6% per annum from January 18, 1994, to September 20, 2002
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Future surgery - $60,000.00
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Handicap on the labour market $416,000.00
Seven grounds of appeal were filed, the first five of which concerns liability. The last two grounds relate to damages. Consideration will first be given to grounds 1 to 5 which are as follows:-
"1. The Learned Trial Judge erred in fact in holding that the Appellant was the employer of the Respondent, as this finding was against the weight of the Respondent's own evidence that the Respondent was unsure as to who was his employer and where the endorsement on the Respondent's own Writ of Summons alleges that the Respondent believed that he was employed to Triumph Car Specialist Limited and/or Triumph Commercial Limited.
2. The Learned Trial Judge erred in holding that the Appellant was the employer of the Respondent given the absence of any pleading or evidence that the Appellant was personally engaged in any business at premises at 18 Elgin Road, Kingston 5, housing a garage and where the Statement of Claim itself concedes that Triumph Car Specialist Limited and Triumph Commercial Limited were the ones carrying on business at the said premises and not the Appellant personally and further where the Respondent's evidence stated that Triumph Car Specialist operated the garage.
3. The Learned Trial Judge erred in law in failing to appreciate the difference between the Appellant and the said two companies of which he was a shareholder.
4. The Learned Trial Judge erred in failing to have due or any regard for the earlier suit filed by the Respondent arising out of the same accident, suit No. C.L. 1988/L063, Victor Lobban vs Triumph Car Specialist Limited which suit was determined by a judgment against the Respondent and in which suit the Respondent contended that his employer was the said company Triumph Car Specialist Limited.
5. The Learned Trial Judge erred because, even if the Appellant was in fact the employer of the Respondent, the Respondent furnished no evidence as to the system of work, the nature and competence of the staff, and the type and effectiveness of the plant and appliances at the garage, to give the Learned Trial Judge any sufficient material from which to conclude that the Appellant was negligent as the Respondent's employer. Further the sparse evidence furnished by the Respondent does not offer any material for the operation of the doctrine of Res Ipsa Loquitur. In particular, there was no evidence that either the truck which fell on the Respondent or the jack, was under the control of the Appellant."
Mr. Givans argued that the learned trial judge erred, in finding that the appellant was liable, as the pleadings and the evidence demonstrate that the respondent was uncertain as to whom he was employed. He argued that by the endorsement on the Writ of Summons, it was alleged that he was an employee of both the appellant and Mr. Amos but believed that Triumph Car Specialist Ltd. or Triumph Commercial Ltd. was also his employer. It was also argued by him that the premises at which the respondent was injured was occupied by the two companies which were engaged in the sale of cars, auto body repairs and mechanic work. He further submitted that there was no allegation in the pleadings that the appellant conducted business there in his personal capacity and no evidence had been proffered to show that at the material time, the appellant had been carrying out business in his personal capacity, yet the learned trial judge found him personally liable.
In arriving at his decision, the learned trial judge said:
"I find that there was a working relationship between the Plaintiff and the Defendants. The Second Defendant, Neville Walker was the employer of the Plaintiff. This is a finding of fact. Was the Second Defendant negligent ?
I find that the Second Defendant directed the Plaintiff to work on the truck and did not have regard for the Plaintiff's safety. The Second Defendant was negligent and liable for the Plaintiff's injury."
The question emerging from the learned trial judge's findings is whether there were averments in the pleadings and proof that the appellant was the respondent's employer. In finding that the appellant was the respondent's employer, the trial judge stated that there was a "working relationship" between them. The primary issue which arose for determination before the learned trial judge was whether there was evidence of a contractual relationship between the appellant and the respondent, or the respondent and any other at Elgin Road, so as to categorize that person the employer of the respondent.
There is no dispute that the appellant was the majority shareholder and Managing Director of the companies Triumph Car Specialist Ltd. and Triumph Commercial Ltd. An averment in the Statement of Claim speaks to this. The appellant's status with the companies had been acknowledged by his admission. It was also averred by the respondent that the appellant had employed and directed him to do the work which resulted in his injury.
It was further argued by Mr. Givans that a company is a distinct entity from its shareholders. It enjoys all rights and is subject to duties and liabilities exclusive of its members. In support of his proposal, he cited the case of Salomon v Salomon & Co. [1897] AC 22 in which Lord McNaughten at page 64 recognized this proposition in the following context:
"The company is at law a different person altogether from the subscribers; and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers or trustee for them. Nor are the subscribers, as members liable, in any shape or form, except to the extent and in the manner provided by the Act."
A company is in fact separate and distinct from its members or manager. A company acts through its agent, in this case the appellant.
A Managing Director would be a servant or agent of the company. It follows therefore, that all acts carried out by an agent acting on behalf of a company, within the scope of his authority renders the company and the agent liable. All liabilities incurred on its behalf by its Managing director, acting within the parameter of his status, under apparent or ostensible authority, are ascribed to the company.
On the evidence the learned trial judge found that a "working...
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