X-Ray & Diagnostic Ultrasound Consultants Ltd v CAC 2000 Ltd

JurisdictionJamaica
CourtSupreme Court
JudgeSimmons J
Judgment Date21 October 2016
Neutral Citation[2016] JMSC Civ 180
Docket NumberCLAIM NO. 2007HCV01486
Date21 October 2016

[2016] JMSC Civ 180

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

Simmons J

CLAIM NO. 2007HCV01486

Between
X-Ray & Diagnostic Ultrasound Consultants Limited
Claimant
and
CAC 2000 Limited
Defendant

Mr. William Panton and Mr. Kristopher Brown instructed by DunnCox for the claimant

Mr. Patrick Foster Q.C. and Mrs. Kerry-Ann Sewell instructed by Nunes Scholefield, DeLeon & company for the defendant

Professional Negligence-liability of a repairer

1

The claimant is a company in the business of providing x-ray and diagnostic services with premises located at 1 Ripon Road, Kingston 5 in the parish of Saint Andrew (the premises).

2

The defendant is a company in the business of supplying, installing and servicing/maintaining air conditioning units.

3

On the 11 th day of May 2003 there was a fire at the premises which resulted in damage and destruction of part of the premises and items of equipment essential to the claimant's business.

4

The claimant has asserted that the fire originated from an air conditioning unit (the unit) that was being maintained by the defendant under a Service and Inspection Contract. It has also alleged that the unit caught fire as a result of the negligence and/or breach of contract by the defendant, its agents or servants. Consequently, it has filed a claim seeking damages for the loss occasioned by those breaches.

5

The particulars of the defendant's negligence are stated to be:

  • (i) Failing to provide any or any adequate maintenance of the unit

  • (ii) Failing to inspect or test the unit in particular the fan coil properly or at all as part of its service contract

  • (iii) Failing to discover or observe that the unit and in particular the fan coil was not functioning properly

  • (iv) Failing to give any warning to the claimant that any malfunctioning air conditioning unit was dangerous

  • (v) Acting as aforesaid although knowing that the unit would be used on a daily basis and knowing that it was located within close proximity of the claimant's sensitive equipment

6

The particulars of breach of contract were outlined as follows:

  • (i) Failing to provide any or any adequate equipment service or maintenance of the unit

  • (ii) Failing to inspect or test the unit in particular the fan coil properly or at all as part of the service contract

  • (iii) Failing to discover or observe that the unit and in particular the fan coil was not functioning properly

7

The claimant has claimed damages for the replacement of certain items of equipment, the customs charges associated with their importation, repairs and clean-up costs and loss of earnings.

8

In its further amended particulars of claim dated March 30, 2007 which were filed on October 8, 2014 it has also claimed interest at a commercial rate of 9.25% on the sum of United States five hundred and eighty six thousand one hundred and sixty five dollars and twenty one cents (US$586,165.21). Interest at a commercial rate of 14.13% has also been claimed on the sum of Jamaican one million fifteen thousand one hundred and seventy one dollars and thirty eight cents (J$1,015,171.38). That figure, represents the amount allegedly spent to effect the necessary repairs and to meet the customs duties associated with the importation of various items of equipment to replace those lost in the fire.

9

By way of a further Amended Defence dated and filed on July 21, 2008 the defendant stated that under the service contract it was required to service the unit at regular intervals and on an as needed basis when problems occurred.

10

The defendant stated that in January 2003 it serviced the unit as well as the claimant's other air conditioning units. It was further stated that the defendant responded to a problem call and replaced defective parts on the external component of the unit on February 13, 2003 and that since that date, the claimant has not contacted the defendant with respect to any complaints or concerns regarding the unit or any of the other air conditioning units.

11

The defendant has also alleged that at the material time the claimant was the owner of a Nuclear Gamma Machine (the camera) which had a long start up time and when not in use, was left in the on position and covered in plastic. It was stated that in such circumstances the camera would have been conducting electricity. It was also alleged that it was positioned directly below the unit.

12

The defendant averred that on May 11, 2003 the camera became overheated and ignited. It said that the fire spread to the unit and burned its exterior.

13

It has denied responsibility for the fire and stated that the fire and any consequent damage was caused solely and or mainly contributed to by the claimant's own negligence.

14

The particulars of the claimant's negligence were outlined as follows:

  • (i) Operating the camera in a manner which it knew or ought to have known was dangerous and against specification

  • (ii) Placing the camera under a plastic cover while the machine was still on and conducting electricity

  • (iii) Failed to have any or any adequate regard for the safety of its own premises and equipment

  • (iv) Leaving the camera on and conducting electricity in its building throughout a weekend period and while the said building was unoccupied and unmanned so that no-one was present to monitor the machine, especially since it was covered by plastic; and

  • (v) Placing the camera in the manner and condition that the claimant knew or ought to have known would increase the risk of a fire in the event that it overheated

15

The defendant also denied that it was in breach of its service contract with the claimant and stated that the unit was serviced on a regular basis and in accordance with the service contract. The defendant also stated that it did not receive any service calls from the claimant in the weeks immediately preceding the fire.

16

In order to determine whether the defendant is liable four questions arise for the court's consideration. They are:-

  • (i) What was the source of the fire?

  • (ii) What was the cause of the fire?

  • (iii) Whether the fire occurred because of the negligence of the defendant, its servants or agents?

  • (iv) Whether the defendant, its servants or agents breached its obligations under the service contract?

The evidence (cause and source of the fire)
17

The evidence in relation to these issues came from the claimant's experts Mr. Basil Nelson and Mr. Lockland Dunkley and the defendant's expert Mr. Mark Hook.

18

Mr. Nelson's findings are contained in five reports. The witness is an Electrical Engineer and has taken courses in air conditioning systems as part of his continuing education. He has been a member of the American Society of Heating, Refrigerating & Air Conditioning Engineers since 1992. Mr. Nelson also stated that he has investigated over one hundred fires of varying origins during his training and work as an engineer and consultant.

19

The reports that were prepared by Mr. Nelson are dated May 29, 2003, October 28, 2003 and June 18, 2004. He was appointed as an expert witness in March 2009 and gave two further witness statements/reports dated the 30 th October 2009 and the 5 th June 2015, respectively.

20

Mr. Nelson in his evidence in chief stated that on the 12 th May 2003 he was contacted by Dr. William Clarke, the Managing Director of the claimant, who asked him to investigate a fire that had occurred at its offices the previous night. His evidence is that he visited the scene that very week.

21

In his report dated the 29 th May 2003 he stated that the fan coil unit of the unit was completely destroyed by fire and the slag from its melted PVC enclosure had fallen on the camera which was situated immediately below the unit. He also noted that only the end of the electrical cable that was close to the unit was severely burnt.

22

Based on the above observations he concluded that the fire originated in the unit that was mounted on a wall in the room which housed the camera.

23

The second report which was prepared after he had received the Fire Report of The Jamaica Fire Brigade, states that he agreed with their opinion that the fire started in the unit. He stated specifically that its origin was in the fan coil unit and that the most likely cause was a malfunction of the electrical control system.

24

The report of the 18 th June 2004 was prepared after Mr. Nelson received correspondence from the claimant requesting a more detailed report on the cause of the fire. The letter states in part:-

“Our attorney, Dennis Morrison Q.C. has asked for us to get to the ‘micro’ level with reference to the cause of the fire.

Unfortunately, the insurance company BCIC has decided not to pursue the matter through their forensic expert, as was originally proposed by them.”

25

That letter also stated that during the life of the unit it would frequently appear “as a block of ice” and there were times when “water would be pouring from the unit and onto the gamma camera”. The writer also stated that as a result of the situation, a tarpaulin was used to cover the camera.

26

Mr. Nelson in his report of the 18 th June 2004 opined once again, that the fire was due to the malfunctioning of the electrical controls of the unit. He explained that this would cause the fan in the fan coil unit or evaporator to stop while the condenser continued to function. When that occurred ice would be formed which would cause water to drip from the unit. He further stated that the malfunctioning of...

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