Wilson (Dalton) v Raymond Reid
| Jurisdiction | Jamaica |
| Judge | HARRISON, P: , SMITH, J.A. , HARRIS, J.A. (Ag.) : , HARRISON, P . |
| Judgment Date | 07 April 2006 |
| Neutral Citation | JM 2006 CA 18 |
| Judgment citation (vLex) | [2006] 4 JJC 0712 |
| Court | Court of Appeal (Jamaica) |
| Date | 07 April 2006 |
CIVIL PROCEDURE - Grounds of Appeal - Amendment to
DAMAGES - Assessment of damages - Motor vehicle accident - Amendment fo grounds of appeal
This is an application for an amendment of the grounds of appeal in respect of a judgment of Mrs. Sinclair-Haynes, J. (Ag.) on 20 th December 2004 awarding general and special damages for personal injuries against the appellant Wilson.
The respondent had been injured in a motor vehicle accident on 9 th September 2002 whilst travelling as a passenger in a bus owned by the appellant.
The notice of appeal was filed on 2 nd February, 2005. The grounds thereon unamended read:
"(a) The Learned Trial Judge erred in law in her assessment of the quantum of damages for pain and suffering and loss of future earnings.
(b) That the aforesaid quantum assessed by the Learned Trial Judge is manifestly excessive.
(c) That the finding in respect of the head of damages for electrical work was not specifically proved."
The amendments sought were to include in paragraph (a) the words "past and" after the word "of" and before the word "future," and in paragraph (c) the words "security guard and for," after the word "for" and before the word "electrical". The effect of the amendments is that the "past" loss of earnings, and the damages assessed for loss of earnings as a security guard would now both be specifically challenged. An application to amend paragraph (c) of the general damages to delete the words and figures "cost of future operation $647,000.00" and substitute therefor "loss of past earnings $636,679.45" was not opposed.
Miss Phillips, Q.C., relied on the affidavit of Kevin Williams sworn to on the 3 rd February 2006 which recites that the grounds of appeal un-amended "did not expressly reflect the fact that the appellant intended to raise a challenge..." to the award for past earnings and the awards as a security guard and that the amendments would "reflect the position taken by the appellant since the trial of this matter in the Supreme Court and is clearly reflected in the skeleton arguments filed and served by the appellant since 19 th January 2006."
Mr. Reitzin, in opposition, argued that the amendments ought not to be granted because there had not been any challenge to the credibility of the respondent in the court below. There was a mere challenge that the bank passbook did not reveal the source of the funds. A review of the notes from the court below show that there was no attack on his credibility that he was a security guard. There was therefore no opportunity for the respondent to answer such a challenge. The notice of appeal Form A1 is deficient, in that it does not contain the findings of fact or law that are challenged. This court should not therefore exercise its discretion to grant the amendment.
Rule 1.12(2) of the Court of Appeal Rules, ("the Rules"), allows a Court to amend the notice of appeal. By rule 1.10, the notice of appeal, incorporates the grounds of appeal (rule 1.10(b)), and therefore the grounds of appeal may be amended under rule 1.12(2).
As a general rule, the amendment sought must be relevant to the issues in the appeal and must have been raised in the court below. This approach ensures that parties are not taken by surprise and maintains the element of fair play to all. In Browne v. Dunn [1894] 6 R 47 relied on by Mr. Reitzin, their Lordships in the House of Lords, laid down the proposition that a witness whom a court is being asked to disbelieve must be specifically challenged in cross-examination on material aspects of his evidence. Failure to do so may be taken as an acceptance of its truth. Lord Herschell, L.C. at page 71, inter alia said:
"...I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and it seems to me, that it is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses."
(See also Markem Corporation et al v ZipherLtd [2005] EWCA Civ 267 )
Although an appellate court may not be readily inclined to entertain an issue raised for the first time on appeal, there is no absolute prohibition against doing so. In Connecticut Fire Insurance Co v Kavanagh [1892] AC 473, Lord Watson, on behalf of their Lordships Board of the Judicial Committee of the Privy Council, at page 480 said:
"When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice, to entertain the plea. The expediency of adopting that course may be doubted, when the plea cannot be disposed of without deciding nice questions of fact, in considering which the Court of ultimate review is placed in a much less advantageous position than the Courts below."
Their Lordships, continuing, expressed a caution:
"But their Lordships have no hesitation in holding that the course ought not, in any case, to be followed, unless the Court is satisfied that the evidence upon which they are asked to decide establishes beyond doubt that the facts, if fully investigated, would have supported the new plea."
Fairness to all parties, the interest of justice, and the governing rules of practice are the influencing factors in the determination of the issue in an appellate court.
In the instant case, the learned trial judge did advert her mind to the credibility of the witness, the respondent Reid. In her "assessment of the evidence" at page 102 of the record, the learned trial judge said:
"Mr. Reid spent quite sometime in the witness box. I therefore had ample opportunity to assess his credibility. I found him to be a witness of truth. I find that the deposits in the bank account were in fact his salary as a security guard. The sum of $5,000.00 per week is reasonable in light of the fluctuations in his earnings." (Emphasis added)
The learned trial judge made this finding in the context of what she accepted as the challenge to the credibility of the respondent by Mr. Williams, counsel for the appellant. Also, at page 102, she said:
" Mr. Williams submitted that no award ought to be made under that head because the evidence adduced was insufficient to prove his exact income . He failed to prove how many hours he worked and to supply evidence as to the hourly rate. Further, the deposits in the passbook do not reflect the source of the entries, hence the court will be asked to draw inference where there is no evidential basis. The court cannot determine that the figures represent income from any particular source or whether it is income at all. " (Emphasis added)
I maintain that this is a clear challenge, as perceived by the learned trial judge, to the credibility of the respondent in respect of his earnings as a security guard.
In contrast, the learned trial judge regarded the evidence of the respondent in respect of his claim "... regarding electrical work..." as, "The unchallenged evidence ..." No specific challenge to the respondent's credibility arose here.
Additionally, although the notice of appeal was filed on 2 nd February 2005, the appellant's "statement of facts and issues" filed on 13 th January 2006 did raise the issue of the sufficiency of evidence to grant an award for "loss...
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