COMMONWEALTH

CARIBBEAN TORT LAW

Fourth Edition

Tort law is a subject of primary importance in the study and practice of the common
law in Caribbean jurisdictions. This work is now well established as the leading text
on tort law in the region, and the fourth edition incorporates developments in law
and legal thinking, including recent case law concerning negligence, defamation and
vicarious liability. The chapters on employers’ liability and damages have been exten-
sively revised in order to highlight recent trends, while throughout the book extracts
of key cases have been more thoroughly integrated into the text in order to help
students grasp the salient points.
Although conceived primarily as a text for the LLB degree courses in Caribbean
universities, Commonwealth Caribbean Tort Law is also essential reading for students
preparing for the CAPE Law examinations and the various paralegal courses in the
region. Legal practitioners will find the book useful as a work of ready reference, and
it will also be of interest to those business executives, industrialists, insurance agents
and journalists who require some knowledge of this most important area of the law.

Gilbert Kodilinye is Professor of Property Law at the University of the West Indies.
Commonwealth Caribbean Law Series

The Commonwealth Caribbean Law Series is the only series of law books that covers
the jurisdiction of the English-speaking Caribbean nations. The titles in the series were
first published in 1995 to acclaim from academics, practitioners and the judiciary in
the region. Several editions followed, and they have now become essential reading for
those learning and practising Caribbean law.
This must-have series is required holdings for any law library specialising in
Caribbean legal information.

Titles in this series include:

Commonwealth Caribbean Business Law 2nd edn – forthcoming, Rajendra Ramlogan and
Natalie Persadie
Commonwealth Caribbean Civil Procedure 3rd edn, Gilbert Kodilinye and Vanessa
Kodilinye
Commonwealth Caribbean Law and Legal Systems 2nd edn, Rose-Marie Belle Antoine
Commonwealth Caribbean Law of Trusts 2nd edn, Gilbert Kodilinye
Commonwealth Caribbean Property Law 2nd edn, Gilbert Kodilinye
Commonwealth Caribbean Public Law 3rd edn, Albert Fiadjoe
Commonwealth Caribbean Tort Law 4th edn, Gilbert Kodilinye
Judicial Review in the Commonwealth Caribbean, Rajendra Ramlogan
Commonwealth Caribbean Land Law 2nd edn – forthcoming, Sampson Owusu
Commonwealth Caribbean Criminal Practice and Procedure 3rd edn – forthcoming,
Dana S. Seetahal
 COMMONWEALTH
CARIBBEAN TORT LAW

Fourth Edition

Gilbert Kodilinye
 First published 2009
by Routledge-Cavendish
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

Simultaneously published in the USA and Canada

by Routledge-Cavendish
270 Madison Avenue, New York, NY 10016

This edition published in the Taylor & Francis e-Library, 2009.

To purchase your own copy of this or any of Taylor & Francis or Routledge’s
collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.

Routledge-Cavendish is an imprint of the Taylor & Francis Group, an informa business

© 2009 Gilbert Kodilinye
First edition 1995
Second edition 2000
Third edition 2003
Fourth edition 2009
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
writing from the publishers.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
A catalog record for this book has been requested

ISBN 0-203-87423-4 Master e-book ISBN

ISBN10: 0–415–54578–1 (hbk)

ISBN13: 978–0–415–54578–5 (hbk)

ISBN10: 0–415–49277–7 (pbk)

ISBN13: 978–0–415–49277–5 (pbk)

ISBN10: 0–203–87423–4 (ebk)

ISBN13: 978–0–203–87423–3 (ebk)
To Vanessa
 PREFACE

The law of tort is an area of primary importance in the study and practice of the
common law in the Caribbean. This work has been conceived as a basic text for
students of tort law in the various institutions of higher learning in the region,
particularly for those reading for the LLB degree. It is expected that it will also be
essential reading for students following the CAPE Law syllabus, and for those taking
paralegal courses. Previous editions of the work have also been widely used by legal
practitioners, many of whom have said that they find the case references and com-
mentaries helpful in preparation for tort litigation. It is hoped that this new edition
will serve their needs to an even greater extent. Although primarily conceived for the
legal fraternity, the book contains much material that will be of interest to those other
professionals, such as business executives, insurance managers, industrialists and
journalists, who may require some knowledge of tort law in the Caribbean context.
The contents of the book have been dictated to a large extent by the availability of
Caribbean case law on the various topics, and those areas in which local litigation is
negligible or non-existent have been omitted, whilst those in which local case law
is abundant have been given extended treatment. The emphasis throughout this
edition is firmly on those topics which are of most relevance and importance to West
Indian society, and the materials utilised are those which most clearly explain and
illustrate the application of tort principles in the Caribbean context.
This fourth edition incorporates all the relevant new case law appearing since
2002, including important decisions of the superior Caribbean courts and Privy
Council appeals such as Seaga v Harper, AG v Bernard and AG v Hartwell. Further, to
assist in the reading, study and citation of unreported judgments of the Caribbean
courts, I have for the first time included all available references to Carilaw, that
magnificent but regrettably under-used database of unreported Commonwealth
Caribbean cases created by the Faculty of Law Library at the UWI Cave Hill Campus.
I am happy to record that Carilaw now encompasses about 95 per cent of the
unreported judgments delivered during the past 40 or so years, and both students and
practitioners in the region now have on-line access to the full range of judicial
decisions from all the Caribbean jurisdictions.
As always, I owe a debt of gratitude to my lovely wife, Vanessa Kodilinye
(Attorney at Law, Barbados), who was not only a constant source of encouragement to
me but also made many useful suggestions regarding the incorporation of additional
material and the improvement of the text. Needless to say, I remain solely responsible
for any errors of commission or omission that may exist in the work. The text was
prepared in the light of materials available to me up to the end of October 2008.

Gilbert Kodilinye
Faculty of Law
University of the West Indies
Cave Hill Campus
Barbados
12 January 2009
 CONTENTS

Preface vii
Table of Cases xvii
Table of Statutes xlvii

1 INTRODUCTION 1
DEFINITION 1

TORT DISTINGUISHED FROM OTHER LEGAL CONCEPTS 1

Tort and crime 1
Tort and contract 3

DAMNUM SINE INJURIA 4

INJURIA SINE DAMNO 5

THE FORMS OF ACTION 5

INTENTION AND NEGLIGENCE 6

STRICT LIABILITY 6

MOTIVE AND MALICE 7

RECEPTION OF THE LAW OF TORTS IN THE CARIBBEAN 7

Antigua 8
The Bahamas 8
Barbados 8
Dominica 8
Grenada 9
Guyana 9
Jamaica 9
St Lucia 9
Trinidad and Tobago 9

2 TRESPASS TO THE PERSON 10

INTRODUCTION 10
Assault and battery distinguished 10

ASSAULT 11
Words 12

BATTERY 12
x Commonwealth Caribbean Tort Law

DEFENCES TO ASSAULT AND BATTERY 13

Defence of person or property 13
Parents’ and teachers’ authority 14
Consent 15

ASSESSMENT OF DAMAGES FOR ASSAULT AND BATTERY 16

FALSE IMPRISONMENT 17

LAWFUL ARREST 23
Arrest with warrant 23
Arrest without warrant 25
Arrest on reasonable suspicion 27
Other statutory powers of arrest 30
Statutory protection for constables 35
Procedure during and after arrest 37
Arrest through agent 40
Signing the charge sheet 42
Assessment of damages for false imprisonment 44

3 MALICIOUS PROSECUTION 46
INTRODUCTION 46

REQUIREMENTS OF THE TORT 48

Institution of prosecution 48
Termination of prosecution in plaintiff’s favour 50
Absence of reasonable and probable cause 52
Malice 53
Section 33 of the Constabulary Force Act (Jamaica) 58
Damage 59

4 NEGLIGENCE 61
INTRODUCTION 61

DEFINITION 61

DUTY OF CARE 61
More recent trends 65

BREACH OF DUTY 67
The likelihood of harm 67
The seriousness of the injury that is risked 71
The importance or utility of the defendant’s activity 72
The cost and practicability of measures to avoid the harm 77
 Contents xi

INTELLIGENCE, KNOWLEDGE AND SKILL OF THE

REASONABLE MAN 77
Intelligence 77
Knowledge 77
Skill 78

OMISSIONS 83

PROOF OF NEGLIGENCE – RES IPSA LOQUITUR 85

Requirements of the doctrine 86
Traffic accidents 91
Skids 93
Tyre burst 96
Latent defect 97

CAUSATION 100
Causation in fact 100
Remoteness of damage 102
Other rules regarding remoteness 103
Foreseeable type of harm 103
The ‘egg-shell skull’ principle 106

LIABILITY FOR ECONOMIC LOSS 109

Negligent misstatement causing economic loss 109
Other cases of liability for economic loss 119

LIABILITY FOR PSYCHIATRIC INJURY 122

5 OCCUPIERS’ LIABILITY 126

THE OCCUPIERS’ LIABILITY ACTS 126
The occupier 126
Premises 127
Visitors 127
Common duty of care 128
Independent contractors 129

DEFENCES 129

EXCLUDING LIABILITY 130

WARNINGS 130

COMMON LAW LIABILITY 131

Liability to invitees 131
Liability to licensees 134
xii Commonwealth Caribbean Tort Law

LIABILITY TO TRESPASSERS 136

Trespassing employees 139

6 EMPLOYERS’ LIABILITY 140

PERSONAL DUTY OF EMPLOYER AT COMMON LAW 140
Competent staff of men 140
Adequate plant and equipment 141
Safe system of working and effective supervision 142
Safe place of work 144

STATUTORY DUTIES 145

7 NUISANCE 149
PUBLIC AND PRIVATE NUISANCE 149
Public nuisance 149
Private nuisance 151
Sensible material damage 152
Substantial interference with enjoyment of land 153
Locality 154
Utility of the defendant’s conduct 154
Plaintiff’s abnormal sensitivity 154
Defendant’s malice 155
Duration of the harm 155

WHO CAN SUE? 169

Private nuisance 169
Public nuisance 171

WHO CAN BE SUED? 172

The creator 172
The occupier 172
The landlord 173
Nuisance and strict liability 174
Abatement of nuisance 175

DAMAGES 176

DEFENCES 176
Statutory authority 177
Ineffectual defences 178

8 THE RULE IN RYLANDS v FLETCHER 179

INTRODUCTION 179

FORESEEABILITY 180
 Contents xiii

SCOPE OF THE RULE 181

Things within the rule 181
Bringing onto the land and accumulation 181
Escape 182
Non-natural user 182

DEFENCES 187
Consent of the plaintiff 187
Default of the plaintiff 188
Act of God 188
Act of a stranger 189
Statutory authority 194

DAMAGES 194

9 LIABILITY FOR ANIMALS 196

INTRODUCTION 196

LIABILITY FOR CATTLE TRESPASS 196

Statutory defence 197
Parties to an action in cattle trespass 198
Trespass from the highway 199

LIABILITY FOR DANGEROUS ANIMALS

(THE SCIENTER ACTION) 200
Who can be sued? 203
Defences 203
Scienter in the Caribbean 204

LIABILITY FOR DOGS 205

LIABILITY FOR NEGLIGENCE 212

10 DEFAMATION 218
INTRODUCTION 218

LIBEL AND SLANDER 218

PROOF OF DAMAGE 218

SLANDER ACTIONABLE PER SE 219

Imputation of crime 220
Imputation of certain diseases 221
Imputation of unchastity or adultery 223
Imputation affecting professional or business reputation 225

REMOTENESS OF DAMAGE IN LIBEL AND SLANDER 226

xiv Commonwealth Caribbean Tort Law

WHAT IS DEFAMATORY? 227

PRESUMPTION OF FALSITY 228

EXAMPLES OF DEFAMATORY STATEMENTS 228

Words must be defamatory 229
Reference to the plaintiff 236
Words must be published 241

DEFENCES 246
Justification (truth) 246
Fair comment 248
The matter commented on must be one of public interest 248
The statement must be a comment or opinion and not an assertion
of fact 249
The comment must be based upon true facts 249
The comment must be ‘honestly’ made 249
The comment must not be actuated by malice 250
Absolute privilege 263
Qualified privilege 266
Statements made in the performance of a legal, moral or social duty 267
Statements made to the proper authorities in order to obtain redress
for public or private grievances 269
Statements made in self-defence 269
Statements made between parties having a common interest 270
Where a newspaper or radio or television company makes a fair and
accurate report of proceedings in the legislature or in a court of law 271
Where a newspaper’s statement is privileged under statutory provisions 271
Reynolds privilege 271

ASSESSMENT OF DAMAGES IN DEFAMATION ACTIONS 284

11 PASSING OFF 288

DEFINITION 288
Marketing a product as that of the plaintiff 288
Imitating the ‘get-up’ or appearance of the plaintiff’s goods 289
Trading under a name so closely resembling that of the plaintiff
as to be likely to mislead the public into believing that the
defendant’s business and that of the plaintiff are one and the same 294
Marketing goods under a trade name already appropriated for goods
of that kind by the plaintiff, or under a name so similar to the
plaintiff’s trade name as to be mistaken for it 297
Marketing goods with the trade mark of the plaintiff or with
any deceptive imitation of such mark 298
 Contents xv

DEFENDANT’S CONDUCT MUST BE ‘CALCULATED TO DECEIVE’ 299

USE OF DEFENDANT’S OWN NAME 300

COMMON FIELD OF ACTIVITY 300

INJURY TO GOODWILL 301

12 VICARIOUS LIABILITY 306

DEFINITION 306

SERVANTS AND INDEPENDENT CONTRACTORS 307

LENDING A SERVANT 308

COMMISSION OF A TORT BY THE SERVANT 310

RES IPSA LOQUITUR 310

THE COURSE OF EMPLOYMENT 310

Manner of doing the work the servant was employed to do 311
Authorised limits of time and place 311
Express prohibition 313
Giving lifts to unauthorised passengers 314
Connection with employer’s business 319

IMPROPER DELEGATION 327

LIABILITY OF BAILEES 330

VEHICLE OWNERS AND CASUAL AGENTS 333

Wholly or partly on the owner’s business 333

THE PRESUMPTION OF SERVICE OR AGENCY 338

LIABILITY INSURANCE 342

LIABILITY FOR INDEPENDENT CONTRACTORS 342

Authorisation of tort 343
Torts of strict liability 344
Negligence 344

13 GENERAL DEFENCES 348

CONTRIBUTORY NEGLIGENCE 348
Seat belts 349
Standard of care 350
Road accidents 357
Apportionment 362
xvi Commonwealth Caribbean Tort Law

VOLENTI NON FIT INJURIA 363

Essentials of volenti in negligence cases 364
Volenti and scienti 365
Rescuers 366
Volenti and workmen 366

14 DAMAGES FOR PERSONAL INJURIES AND DEATH 368

PERSONAL INJURIES 368
Special damages 368
General damages 371
Heads of general damage 372
Deductions 378
Duty to mitigate 383

DEATH 386
Survival of actions 390

APPENDIX 1: DIGEST OF ADDITIONAL COMMONWEALTH

CARIBBEAN CASES 392

APPENDIX 2: EXTRACTS FROM FATAL ACCIDENTS LEGISLATION

IN THE BAHAMAS, BARBADOS, JAMAICA, AND TRINIDAD
AND TOBAGO 406

Index 415
 TABLE OF CASES

A v Bottrill [2003] 3 WLR 1406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286

Abbott v Refuge Assurance Co Ltd [1962] 1 QB 432. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Abelson v Brockman (1890) 54 JP 119 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164, 188
Abrath v North Eastern Rly (1883) 11 QBD 440 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Achama v Read [1938] LRBG 183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Adam v Ward [1917] AC 309 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269, 280
Adams v Coleridge (1884) 1 TLR 84 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
Adams v Rajkumar (2000) High Court, Trinidad and Tobago, No 1812 of 1997
(unreported) [Carilaw no TT 2000 HC95] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Addie v Dumbreck [1929] AC 358 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136, 137
Administrator General v Shipping Association of Jamaica (1983) Supreme Court, Jamaica,
No CL 1979/A-018 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
Airline Freight Services Ltd v Morris (2005) Court of Appeal, Barbados,
Civ App No 25 of 1997 (unreported) [Carilaw BB 2005 CA 22] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
Aitchison v Page Motors Ltd (1936) 52 TLR 137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
Al-Kandari v JR Brown and Co Ltd [1987] 2 WLR 469 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Alcan (Jamaica) Ltd v Nicholson (1986) 23 JLR 418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139, 144
Alco Shipping Agencies Co Ltd v Freeport Bunkering Co Ltd (1965–70) 1 LRB 260 . . . . . . . . . . . . . . . . . . . . . . . 87
Alcoa Minerals of Jamaica Inc v Broderick (1996) Court of Appeal, Jamaica,
Civ App No 15 of 1995 (unreported); on appeal (2000) The Times,
22 March (PC) [Carilaw JM 2000 PC 2] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
Alcock v Chief Constable of South Yorkshire [1992] 4 All ER 907 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123, 124, 125
Aldham v United Dairies [1940] 1 KB 507 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Alexander v Jenkins [1892] 1 QB 797 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
Alexander v North Eastern Rly Co (1865) 122 ER 1221 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
Alexander v Town of New Castle (ind 1888) 17 NE 200 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
Alfred v Thomas (1982) 32 WIR 183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
Ali v AG (1982) High Court, Trinidad and Tobago, No 1993 of 1978 (unreported)
[Carilaw TT 1982 HC 84] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Ali v Mustapha (1982) High Court, Trinidad and Tobago, No 1096 of 1979 (unreported)
[Carilaw TT 1982 HC 37] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Allen v Canzius [1920] LRBG 139 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Allen v Ebanks [1998] CILR 190 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
Allen v Flood [1898] AC 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
Allen v Miller (1967) 5 Gleaner LR 176 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Allen v Wates [1935] 1 KB 200 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383
Allerup v Paynter (1993) Court of Appeal. Bermuda, Civ App No 4 of 1993 (unreported)
[Carilaw BM 1993 CA 19] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Alleyne v AG (2005) High Court, Barbados, No 1144 of 1998 (unreported)
[Carilaw BB 2005 HC 10] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Alleyne vCaroni Sugar Estates (Trinidad) Ltd (1933) 7 Trin LR 102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
Alleyne-Forte v Trinidad Express Newspapers Ltd (1999) High Court, Trinidad and Tobago,
No S 1012 of 1989 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265, 266
Almon v Jones (1974) 12 JLR 1474 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Alphonso v Ramnath (1997) 56 WIR 183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339, 373, 376
Ambrose v Van Horn (1967) Court of Appeal, Trinidad and Tobago,
Civ App No 14 of 1967 (unreported) [Carilaw TT 1967 CA 110] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
Amory v Daniel (2003) High Court, St Kitts and Nevis, No 19 of 1999 (unreported)
[Carilaw KN 2003 HC 30] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
Anderson v Ledgister (1955) 6 JLR 358 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207–8
Anderson and Sons v Rhodes (Liverpool) Ltd [1967] 2 All ER 850 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 114
Andreae v Selfridge and Co Ltd [1938] 1 Ch 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
xviii Commonwealth Caribbean Tort Law

Andrews v AG (1981) 18 JLR 434 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

Anns v Merton LBC [1977] 2 All ER 492 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 65, 66
Appleby v Percy (1874) LR 9 CP 647 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
Araujo v Smith (1997) Court of Appeal, Bermuda, Civ App No 6 of 1997 (unreported)
[Carilaw BM 1997 CA 13] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342
Arnold v Johnson (1876) 14 SCR (NSW) 429 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Arpad, The [1934] P 189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Ashley v Chief Constable of Sussex [2008] 2 WLR 975 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Ashton v Turner [1980] 3 All ER 870 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365
Associated Industries Ltd v Ragnauth (1982) 32 WIR 249 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371
Atkinson v Howell (1985) Court of Appeal, Jamaica, Civ App No 38 of 1979
(unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282–3
AG v Clarke (2004) Court of Appeal, Jamaica, Civ App No 109/2002 (unreported)
[Carilaw JM 2004 CA 40] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370
AG v Doughty (1752) 28 ER 290 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
AG v Hartwell [2004] 1 WLR 1273 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323–4
AG v Manchester Corp [1893] 2 Ch 87 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
AG v Milne (1973) 2 OECSLR 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
AG v Reid (1994) 31 JLR 237 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
AG v Valle Jones [1935] 2 KB 209 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
AG for New South Wales v Perpetual Trustee Co [1955] AC 457 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
Auguste v Neptune (1997) 56 WIR 229 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
Augustus v Nicholas (1994) High Court, Dominica, No 262 of 1991 (unreported)
[Carilaw DM 1994 HC 1], on appeal, sub nom Nicholas v Augustus (1996)
Court of Appeal, Dominica Civ App No 3 of 1994 (unreported) [Carilaw DM 1996
CA 1] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
Austin v AG (1986) 21 Barb LR 259 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63–5
Austin v Dowling (1870) LR 5 CP 534 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Avis Rent-A-Car Ltd v Maitland (1980) 32 WIR 204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336–8
Ayers and Guelph v Hoffman (1956) 1 DLR (2d) 272 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
Aziz v Singh [1944] LRBG 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198, 204

B&D Trawling Ltd v AG (2006) Supreme Court, Jamaica, No CLB 105 of 2001
(unreported) [Carilaw JM 2006 SC 1] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
BT plc v One in a Million Ltd [1999] 1 WLR 903 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
Baboolal v Bharath (1999) High Court, Trinidad and Tobago, No S 77 of 1991 (unreported). . . . . . . . 341
Babwah v Harrinanan (1997) High Court, Trinidad and Tobago, No 136 of 1994
(unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Bacchus v Bacchus [1973] LRG 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231–3, 279–81
Bailey v Gore Bros Ltd (1963) 6 WIR 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354–5
Bain v Mohammed (1964) 7 WIR 213 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Baker v Hopkins (TE) and Sons Ltd [1959] 3 All ER 225 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
Baker v Snell [1908] 2 KB 825 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204, 207
Baldwin v Casella (1872) LR 7 Ex 325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
Bale and Church Ltd v Sutton (1934) 51 RPC 129 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
Balfour v Barty-King [1956] 2 All ER 555 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
Balkaran v Purneta (1967) High Court, Trinidad and Tobago, No 1262 of 1965
(unreported) [Carilaw TT 1967 HC 14] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
Ball v Ray (1873) 37 JP 500 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
Bank of Jamaica v Dextra Bank and Trust Co Ltd (1994) 31 JLR 361 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Banks v Globe and Mail Ltd [1961] SCR 474 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
Baptiste v AG (2005) High Court, Trinidad and Tobago, No 3617 of 2001 (unreported)
[Carilaw TT 2005 HC 22] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Barbados Automotive Appliances Ltd v Williams (1993) Court of Appeal, Barbados,
Civ App No 19 A 1990 (unreported) [Carilaw BB 1993 CA 24] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
Barbados Transport Board v Imperial Optical Co (Barbados) Ltd (1990) 25 Barb LR 346 . . . . . . . . . . . . . . . . . 87
 Table of Cases xix

Barbour v AG (1981) Court of Appeal, Trinidad and Tobago, No 18 of 1979 (unreported)

[Carilaw TT 1981 CA 36] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Barcoo v AG (2001) High Court, Trinidad and Tobago, No 1388 of 1989 (unreported)
[Carilaw TT 2001 HC 167] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Barkway v South Wales Transport Co Ltd [1950] All ER 392 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 100
Barnard v Gorman [1954] AC 378 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Barnard v Sully (1931) 47 TLR 557 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335, 338–42
Barnes v Lucille (1907) 96 LT 680 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Barnett v Belize Brewing Co Ltd (1983) 36 WIR 136 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Barnett v Chelsea and Kensington Hospital Management Committee [1968] 1 All ER 1068 . . . . . . . . . . . . . 100
Barr v AG (2001) Court of Appeal, The Bahamas, No 18 of 1994 (unreported)
[Carilaw BS 2001 CA 7] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Barrow v Caribbean Publishing Co Ltd (1971) 17 WIR 182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248, 250, 254–6
Bartlett v Cain (1983) 18 Barb LR 158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Bartlett v Tottenham [1932] 1 Ch 114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Barwick v English Joint Stock Bank [1861–73] All ER Rep 194 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332
Bascom v Da Silva [1933] LRBG 157 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42–4
Basébé v Matthews (1867) LR 2 CP 684 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Bata Shoe Co (Jamaica) Ltd v Reid (1980) 17 JLR 276 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
Batcheller v Tunbridge Wells Gas Co (1901) 84 LT 765 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Battoo Bros Ltd v Gittens (1975) Court of Appeal, Trinidad and Tobago,
Civ App No 7 of 1973 (unreported) [Carilaw TT 1975 CA 19]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316–17
Baugh v AG (2006) Supreme Court, Jamaica, No CLB 099 of 1997 (unreported)
[Carilaw JM SC 97] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Baume and Co Ltd v Moore Ltd [1958] Ch 907 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299
Baynes v Williams (2002) High Court, St Vincent and The Grenadines,
No HCV 483/2001 (unreported) [Carilaw VC 2002 HC 35] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
Beard v London General Omnibus Co [1900] 2 QB 530 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
Beech v Freeson [1972] 1 QB 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
Behrens v Bertram Mills Circus [1957] 2 QB 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200, 204
Beim v Goyer [1965] SCR 638 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Bellew v Cement Co Ltd [1948] IR 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Bello v Ayebola (1977) 1 CCHCJ 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
Benham v Gambling [1941] 1 All ER 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390
Benjamin v KPMG Bermuda (2007) 71 WIR 185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Benjamin v Storr (1874) LR 9 CP 400 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150, 165
Bennett v Skyers [1965] Gleaner LR 180 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Benning v Wong (1969) 122 CLR 249 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
Bent v AG (2006) Supreme Court, Jamaica, No 1998/B330 (unreported)
[Carilaw JM 2006 SC 116] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Bernard v AG (2004) Privy Council Appeal No 30 of 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
Bernard v The Jamaica Observer (2006) Supreme Court, Jamaica, No CL 2002/B-048
(unreported) [Carilaw JM 2006 SC 11] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268, 276
Berry v British Transport Commission [1961] 1 QB 149 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Berry v Golf Club Apartments Ltd (1999) Supreme Court, The Bahamas, No FP 186 of 1994
(unreported) [Carilaw BS 1999 SC 40] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Berry v Humm [1915] 1 KB 627 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388
Bidwell v Briant (1956) The Times, 9 May . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Birch v Thomas [1972] 1 WLR 294 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365
Bird v Jones (1845) 115 ER 668 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Bish v Leathercraft Ltd (1975) 24 WIR 351 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Bishop v JS Starnes and Son Ltd [1971] 1 Lloyd’s Rep 162 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
Black v AG (2004) High Court, St Lucia, No 2001/0728 (unreported)
[Carilaw LC 2004 HC 18] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384
Blackwood v Chen (1958) 1 WIR 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Blackman v The Nation Publishing Co Ltd (1997) 55 WIR 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247, 285
xx Commonwealth Caribbean Tort Law

Blackshaw v Lord [1983] 2 All ER 311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269

Blaize v Poyah (1976) High Court, Trinidad and Tobago, No 922 of 1970 (unreported)
[Carilaw TT 1976 HC 35] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Blake v Barnard (1840) 173 ER 985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Blake v Spence (1992) 29 JLR 376 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220, 224
Bliss v Hall (1838) 132 ER 758 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Blunt v Tilley [2006] EWHC 407 (QB) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
Blyth v Birmingham Waterworks Co [1843–60] All ER Rep 478 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 76
Boaler v Holder (1887) 51 JP 277 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Bodden v Brandon [1965] Gleaner LR 199 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
Bodden v Bush [1986] CILR 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218, 237, 258
Bodden v McField [1986] CILR 204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
Bodden v Solomon [2004–05] CILR 397 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362
Bolai v St Louis (1963) 6 WIR 453 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Bolam v Friern Hospital Management Committee [1958] 1 WLR 582 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 81
Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Bollinger v Costa Brava Wine Co Ltd [1961] 1 WLR 277 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298, 299
Bolton v Stone [1950] 1 KB 201; [1951] AC 850 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 69, 70, 156
Bombay Spirits Co Ltd v Todhunter-Mitchell and Co Ltd (1965–70) 1 LRB 143 . . . . . . . . . . . . . . . . . . . . . . . 301–2
Bonaby v The Nassau Guardian Ltd (1985) Supreme Court, The Bahamas,
No 730 of 1984 (unreported) [Carilaw BS 1985 SC 43] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234–6
Bonnick v Morris (1998) Supreme Court, Jamaica, No B 142 of 1992 (unreported)
[Carilaw JM 1998 SC 2] No 30 of 2001 (unreported) [2002] 3 WLR 820 (PC) . . . . . . . 247, 274–6, 285
Boodoosingh v AG (1999) High Court, Trinidad and Tobago, No 733 of 1993 (unreported)
[Carilaw No TT 1999 HC 84]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Bostien v Kirpalani’s Ltd (1979) High Court, Trinidad and Tobago, No 861 of 1975
(unreported) [Carilaw TT 1979 HC 113] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 22
Boston v Bagshaw [1966] 1 WLR 1126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271
Bourhill v Young [1943] AC 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Bourne v The Advocate Co Ltd (1994) High Court, Barbados, No 715 of 1991 (unreported)
[Carilaw BB 1994 HC 4] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
Bowditch v Balchin (1850) 155 ER 165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Bowen v Phillips (1957) 7 JLR 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330–1
Bower v Peate (1876) 1 QBD 321 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
Box v Jubb (1879) 4 Ex D 76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
Boxill v Grant (1978) 13 Barb LR 72 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165–6
Boxsius v Goblet Freres [1894] 1 QB 842 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280
Bradburn v Great Western Rly [1874–80] All ER Rep 195 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381, 382, 383
Bradford Corp v Pickles [1895] AC 587 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Brewster v Davis (1992) High Court, Barbados, No 944 of 1989 (unreported)
[Carilaw BB 1992 HC 12] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Brewster v Bridgemohan and Trinidad Publishing Co Ltd (1999) High Court,
Trinidad and Tobago, No 1222 of 1999 (unreported) [Carilaw TT 1999 HC 96]. . . . . . . . . . . . 247, 248
Bridgepaul v Reynolds Metal Co [1969] LRG 265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
Briggs v Mapp (1967) Court of Appeal, West Indies Associated States,
Civ App No 2 of 1964 (St Christopher-Nevis-Anguilla) (unreported)
[Carilaw KN 1967 CA 2] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228, 278, 282
British Celanese Ltd v Hunt [1969] 1 WLR 959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
British Guiana Rice Marketing Board v Peter Taylor and Co Ltd
(1967) 11 WIR 208 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219, 228, 249, 256–8
British Rlys Board v Herrington [1972] 1 All ER 749 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136, 137, 138, 139, 204
British Transport Commission v Gourley [1955] 3 All ER 796 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373, 378
British Vacuum Cleaner Co Ltd v New Vacuum Cleaner Co Ltd [1907] 2 Ch 312 . . . . . . . . . . . . . . . . . . . . . . . . 298
Brock v Copeland (1794) 170 ER 328 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204, 211
Brooke v Bool [1928] 2 KB 578 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
Brown v AG (1978) 2 OECSLR 331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
 Table of Cases xxi

Brown v Brown (1972) 12 JLR 883 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329

Brown v Clarke and AG (2007) Supreme Court, Jamaica, No CL 1998/B-219 (unreported)
[Carilaw JM2007 SC 19] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
Brown v De Luxe Car Services [1947] 1 KB 549 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Brown v Fung Kee Fung [1921] LRBG 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Brown v Hawkes [1891] 2 QB 718 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 54, 55
Brown v Henry (1947) 5 JLR 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204, 206–7, 209
Brown v Smith (1994) 31 JLR 312 Civ App No 11 of 1993 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . 203, 205
Brown v Tyrel (1990) Court of Appeal, Jamaica, Civ App No 52/90 (unreported) . . . . . . . . . . . . . . . . . . 107
Browne v Browne (1967) High Court (Appellate Jurisdiction), West Indies Associated
States, St Vincent Circuit, No 13 of 1967 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Browne v Thomson and Co [1912] SC 359 [Carilaw VC 1967 HC 7] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
Browning v The War Office [1963] 1 QB 750. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379, 380
Bruno v AG (1985) High Court, Trinidad and Tobago, No 671 of 1978 (unreported)
[Carilaw TT 1985 HC 164] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Bryan v Lindo (1986) 23 JLR 127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319, 332
Bryanston Finance Ltd v De Vries [1975] QB 703 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280
Buckland v Guildford Gas, Light and Coke Co [1948] 2 All ER 1086 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Buckle v Dunkley (1966) Court of Appeal, Jamaica, Civ App No 29 of 1965 (unreported)
[Carilaw JM 1966 CA 23] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Buckle v Holmes [1926] 2 KB 125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197, 206
Buckley v Dalziel The Times, 7 June 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
Buckpittv Oates [1968] 1 All ER 1145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364, 365
Budhoo v Campbell (2006) High Court, Trinidad and Tobago,
No S-2355 of 2004 (unreported) [Carilaw TT 2006 HC 14] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Burroughs v AG (1990) 1 TTLR 135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Bushell v Chefette Restaurants Ltd (1978) 13 Barb LR 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Butler v Smith (1996) High Court, British Virgin Islands, No 125 of 1993 (unreported)
[Carilaw VG 1996 HC 9]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Butt v Imperial Gas Co (1866) 2 Ch App 150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
Byfield v AG (1980) 17 JLR 243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 76
Byrne v Deane [1937] 2 All ER 204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
Byron v Johnston (1816) 35 ER 851 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289

Cachay v Nemeth (1972) 28 DLR (3d) 603. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Calliste v Spronk (2000) High Court, Grenada, No 559 of 1997 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . 159
Callow (FE) (Engineers) Ltd v Johnson [1970] 3 All ER 639. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
Cambridge Water Co v Eastern Counties Leather plc [1994] 1 All ER 53 . . . . . . . . . . . . 174, 180, 181, 183, 184
Caminer v Northern and London Investment Trust [1951] AC 88 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Campbell v AG (1992) 29 JLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Campbell v Bennett (2005) Supreme Court, Jamaica, No CLC 248 of 1995 (unreported)
[Carilaw JM 2005 SC 80] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
Campbell v Flash (2004) Supreme Court, Jamaica, No CLC 471 of 1997 (unreported)
[Carilaw JM 2004 SC 58] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
Campbell v (Whylie) (1999) 59 WIR 326. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
Campbell v Clarendon PC (1982) 19 JLR 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83–5
Campbell v Kingston and St Andrew Corp (1992) 29 JLR 476 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
Campbell v Paddington Corp [1911] 1 KB 869 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Campbell v Spottiswoode (1863) 122 ER 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255, 260
Campbell v The Jamaica Telephone Co Ltd (1991) 28 JLR 527 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Campbell v Watson (2005) Supreme Court, Jamaica, No CLC 385 of 1998 (unreported)
[Carilaw JM 2005 SC 1] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Canadian Pacific Rly Co v Lockhart [1942] AC 591 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
Caparo Industries plc v Dickman [1990] 2 WLR 358 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 66, 110
Capildeo v Trinidad and Tobago Electricity Commission (2007) High Court,
Trinidad and Tobago, No 3991 of 1993 (unreported) [Carilaw TT 2007 HC 47] . . . . . . . . . . . . . . . . . . 87
xxii Commonwealth Caribbean Tort Law

Carasco v Cenac (1995) Court of Appeal, OECS, Civ App No 6 of 1994 (unreported) . . . . . . . . . 229, 282
Carberry v Davies [1968] 2 All ER 817 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337
Cargo Consolidation Agency Ltd v Tarmac Construction (Caribbean) Ltd (2000) High Court,
Trinidad and Tobago, No S 889 of 1996 (unreported) [Carilaw No TT 2000 HC 46] . . . . . . . . . . . . 153
Caribbean Steel Co Ltd v Price Waterhouse (A Firm) (2006) Supreme Court, Jamaica,
No 1998/C-166 (unreported) [Carilaw JM 2006 SC 52] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Carr v Mercantile Produce Co Ltd [1949] 2 All ER 531 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356
Carr v Telecommunications Services of Trinidad and Tobago, (2004) High Court,
Trinidad and Tobago, No 1889 of 2000 (unreported) [Carilaw TT 2004 HC 56] . . . . . . . . . . . . . . . . . 132
Carrington v Montrose Poultry Farms Ltd (1997) 33 Bart LR 251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Carstairs v Taylor (1871) LR 6 Ex 217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Casey v Automobiles Renault Canada Ltd (1965) 54 DLR (2d) 600 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 51
Cass v Edinburgh and District Tramways Co 1909 SC 1068 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231, 233, 240, 241
Cassidy v Ministry of Health [1951] 1 All ER 575 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87, 310, 344
Castle v St Augustine’s Links Ltd (1922) 38 TLR 615 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150, 151, 171
Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354, 359
Caven v The Gleaner Co Ltd (1983) 20 JLR 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271
Cazaubon v Durahome Construction Ltd (1998) High Court, Barbados,
No 1339 of 1991 (unreported) [Carilaw BB 1998 HC 18] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Cellular Clothing Co v Maxton and Murray [1899] AC 326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292, 296, 298
Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co 1925 SC 796 . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
Central Soya of Jamaica Ltd v Freeman (1985) Court of Appeal, Jamaica,
Civ App No 18 of 1984 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369
Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] 1 All ER 491 . . . . . . . . . . . . . . 311
Chamberlain v Boyd (1883) 11 QBD 407 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
Chandat v Reynolds Guyana Mines Ltd (1973) High Court, Guyana,
No 249 of 1969 (unreported) [Carilaw GY 1973 HC 34] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150, 183
Chanderpaul v Raffudeen (1977) High Court, Guyana, No 2376 of 1975 (unreported)
[Carilaw GY 1977 HC 3] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
Chapman v Ellesmere [1932] 2 KB 431 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Chapman v Oakleigh Animal Products Ltd (1970) 114 SJ 432 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Charing Cross Electricity Supply Co v Hydraulic Power Co [1914] 3 KB 772 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Charles v Charles (1973) High Court, West Indies Associated States, St Vincent Circuit,
No 153A of 1967 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167–8
Charles v Ramnath (1991) High Court, Trinidad and Tobago,
No S 2584 of 1987 (unreported) [Carilaw TT 1991 HC 238] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Charman v Orion Publishing Group Ltd [2008] 1 All ER 750 (CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276
Chatterton v Secretary of State for India [1895] 2 QB 189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
Chaudry v Prabhakar [1989] 1 WLR 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Cheetham v Hampson (1791) 100 ER 1041 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Cheng v Tse Wai Chun [2000] HKCFA 88 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
Childs v Lewis (1924) 40 TLR 870 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Chokolingo v Chokolingo (2004) High Court, Trinidad and Tobago,
No CV 2685 of 1992 (unreported) [Carilaw TT 2004 HC 86] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271, 281
Chong v Miller [1933] JLR 80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 31, 36
Christie v Davey [1893] 1 Ch 316 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155, 160, 161, 164
Christie v Leachinsky [1947] AC 573 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 39
Christopher v Rampersad (2001) High Court, Trinidad and Tobago,
No SC 1063 of 1996 (unreported) [Carilaw TT 2001 HC 109] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369, 377
Ciba-Geigy Canada Ltd v Apotex Inc [1992] 3 SCR 120 (SCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
Clapham v Daily Chronicle [1944] LRBG 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249, 250–2
Clark v Molyneux (1877) 3 QBD 237 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
Clarke v Army and Navy Co-operative Society Ltd [1903] 1 KB 155 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Clarke v Bayliss (1992) 29 JLR 161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
Clarke v Davis (1964) 8 JLR 504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
 Table of Cases xxiii

Clarke v Dawkins (2004) Supreme Court, Jamaica, No CL 2002/C-047 (unreported)

[Carilaw JM 2004 SC 46] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
Clarke v Holmes (1862) 158 ER 751 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Clarke v William Brewer Co Ltd (1983) Supreme Court, The Bahamas,
No 27 of 1980 (unreported) [Carilaw BS 1983 SC 64] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
Clayton v Woodman [1962] 2 QB 533 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Cleary v Booth [1893] 1 QB 465 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Clifford v Challen and Sons Ltd [1951] 1 All ER 72 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Close v Steel Co of Wales Ltd [1962] AC 367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Cobb v Great Western Rly [1894] AC 419 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
Cobb v Saxby [1914] 3 KB 822 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
Coddington v International Harvester Co (1969) 113 SJ 265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Coelho v Agard (1975) High Court, Trinidad and Tobago, No 2394 of 1973 (unreported)
[Carilaw TT 1975 HC 28] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Colby v Schmidt (1986) 37 CCLT 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Cole v Turner (1704) 90 ER 958 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Coleman v McDonald (1979) 16 JLR 490 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369, 379–83
Coley v James (1964) 6 WIR 259 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203, 213
Colgate-Palmolive v Pattron [1978] RPC 635. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
Collingwood v Home and Colonial Stores Ltd [1936] 3 All ER 200 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185, 192
Collins v Hertfordshire CC [1947] KB 598 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307
Collins v Renison (1754) 96 ER 830 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Collins v Wilcock [1984] 3 All ER 374 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 25
Colls v Home and Colonial Stores Ltd [1904] AC 179 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156, 161
Collymore v The Argosy [1956] LRBG 183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285, 286
Colvilles Ltd v Devine [1969] 1 WLR 475 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Colwell v St Pancras BC [1904] Ch 707 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Cook v Beal (1697) 91 ER 1014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Cookson v Harewood [1932] 2 KB 478 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Cookson v Knowles [1978] 2 All ER 604 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389
Cooper v Cambridge [1931] Clark’s Rep 336 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Cooper v Crabtree (1882) 20 Ch D 589 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Cooper v Rly Executive [1953] 1 All ER 477 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Cooper v Ronald A Albury Ltd (1995) Supreme Court, The Bahamas,
No 146 of 1989 (unreported) [Carilaw BS 1995 SC 67]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Corby Group Litigation Claimants v Corby BC, The Times, 28 May 2008. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Cornilliac v St Louis (1965) 7 WIR 491 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371–2
Coupe Co v Maddick [1891] 2 QB 413 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
Coupland v Eagle Bros (1969) 210 EG 581 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
Courage Construction Ltd v Royal Bank Trust Co (Jamaica) Ltd (1992) 29 JLR 115 . . . . . . . . . . . . 86, 140, 309
Cox v Burbidge (1863) 143 ER 171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196, 199
Cox v Chan (1991) Supreme Court, The Bahamas, No 755 of 1988 (unreported)
[Carilaw BS 1991 SC 66] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Craig v Miller (1987) High Court, Barbados, No 317 of 1986 (unreported)
[Carilaw BB 1987 HC 41] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220, 253
Crandall v Jamaica Folly Resorts Ltd (1998) Smithfield Digest
(www.smithfield.com.jm/SD250698c.htm); on appeal, (1999) Court of Appeal,
Jamaica, Civ App No 102 of 1998 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Cranston v Mars Auto Parts Ltd (2005) Supreme Court, Jamaica, No CL 1996/C 117
(unreported) [Carilaw JM 2005 SC 116] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Crockwell v Haley (1993) Court of Appeal, Bermuda, Civ App No 23 of 1992 (unreported)
[Carilaw BM 1993 CA 12] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Cross v Kirby, The Times, 5 April 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Crowhurst v Amersham Burial Board (1878) 4 Ex D 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Cruise v Burke (1919) 2 IR 182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Cubby v CompuServe 766 F Supp 135 (SD NY 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
xxiv Commonwealth Caribbean Tort Law

Cudjoe v AG (1982) High Court, Trinidad and Tobago, No 683 of 1972 (unreported)
[Carilaw TT 1982 HC 26] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Cummings v Demas (1950) 10 Trin LR 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 32–5
Cummings v Granger [1977] 1 All ER 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Cunard v Antifyre Ltd [1933] 1 KB 551 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Cunliffe v Bankes [1945] 1 All ER 459 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
Cunningham v Harrison [1973] 3 All ER 463 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369
Cupid v Gould (1971) 2 OECSLR 162 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
Curtis v Betts [1990] 1 All ER 769 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Cutler v United Dairies [1933] 2 KB 297 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366

DPP v Nasralla [1967] 3 WLR 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 75
Daley v AG (2005) Supreme Court, Jamaica, No CLD044 of 1999 (unreported)
[Carilaw JM 2005 SC 4] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
Dallison v Caffery [1964] 2 All ER 610 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 37
Danby v Beardsley (1880) 43 LT 603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 49
Daniels v Whetstone Entertainments Ltd [1962] 2 Lloyd’s Rep 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
Dann v Hamilton [1939] 1 KB 509 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365, 366
D’Arcy v Prison Comr (1955) The Times, 17 November . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Darling v Heavy Equipment Construction Co Ltd (1980) Supreme Court, The Bahamas,
No 153 of 1976 (unreported) [Carilaw BS 1980 SC 19] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181, 184
Dash v AG (1978) High Court, Trinidad and Tobago, No 3293 of 1973 (unreported)
[Carilaw TT 1978 HC 92] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Davidson v Williams (1990) 1 TTLR 185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 37
Davie v New Merton Board Mills Ltd [1959] 1 All ER 346 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Davies v Powell Duffryn Associated Collieries Ltd [1942] 1 All ER 657 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
Davies v Swan Motor Co Ltd [1949] 1 All ER 620 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349, 358, 359, 360, 361
Davis v AG (1990) 25 Barb LR 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Davis v Noake (1817) 105 ER 1153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Davis v Renford (1980) 37 WIR 308. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Dawkins v Lord Paulet (1869) LR 5 QB 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
Dawrant v Nutt [1960] 3 All ER 681 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
Dayes v Chong (1999) Supreme Court, Jamaica, No CL D207 of 1995 (unreported)
[Carilaw JM 1999 SC 35] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
De Cordova v Vick Chemical Co Ltd (1951) 68 RPC 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293, 298
De Freville v Dill [1927] All ER Rep 205 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd (1914) 30 TLR 257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
De Verteuil v Bank of Nova Scotia (Trinidad and Tobago) Ltd (2002) High Court,
Trinidad and Tobago, No 2121 of 1995 (unreported) [Carilaw TT 2002 HC 85] . . . . . . . . . . . . . . . . . 144
Deen v Davis [1935] 2 KB 282 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Dehandschutter v Parkhill Holdings Ltd (1982) 17 Barb LR 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162–5
Dennis v London Passenger Transport Board [1948] 1 All ER 779 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378, 380
Deonarine v Ramlal (2007) Court of Appeal, Trinidad and Tobago,
Civ App No 28 of 2003 (unreported) [Carilaw TT 2007 CA 4] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 80
Deosaran v Barrow (2004) Court of Appeal, Trinidad and Tobago,
Civ App No 59 of 2002 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Department of Transport v North-West Water Authority [1984] 1 AC 336 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Derry v Peek (1889) 14 App Cas 337 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Desnoes and Geddes Ltd v Stewart (2005) Court of Appeal, Jamaica,
Civ App No 74/2002 (unreported) [Carilaw JM 2005 CA 57] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357
Devon Lumber Co Ltd v MacNeill (1988) 45 DLR (4th) 300 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151, 170
Dhoray v Dabiesaran (1975) High Court, Trinidad and Tobago,
No 476 of 1972 (unreported) [Carilaw TT 1975 HC 14] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358
Digby v Financial News Ltd [1907] 1 KB 502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
Dominion Natural Gas Co Ltd v Collins [1909] AC 640 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
 Table of Cases xxv

Donaghey v Boulton and Paul Ltd [1968] AC 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

Donnelly v Jackman [1970] 1 All ER 987 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Donnelly v Joyce [1973] 3 All ER 475 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369, 383
Donoghue v Stevenson [1932] AC 562. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 62, 63, 66, 69, 83, 119
Dorestant v City Markets Ltd (2002) Supreme Court, The Bahamas,
No 1239 of 1997 (unreported) [Carilaw BS 2002 SC 110] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
Dorset Yacht Ltd v Home Office [1969] 2QB 412 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 105
Douglas v Kingston and St Andrew Corp (1981) 18 JLR 338 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
Douglas v Reid’s Diversified Ltd (1995) 32 JLR 369. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Draper v Hodder [1972] 2 All ER 210 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212, 216
Draper v Trist [1939] 3 All ER 513 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293, 299
Dubai Aluminium Co Ltd v Salaam [2002] 3 WLR 1913 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326
Dulieu v White and Sons [1901] 2 KB 669 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106, 122
Dumbell v Roberts [1944] 1 All ER 326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Duncan v Associated Scottish Newspapers Ltd [1929] SC 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
Duncan v Finlater (1839) 7 ER 934 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
Dunkley v Howell (1975) 24 WIR 293 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
Dunn v Birmingham Canal Co (1872) LR 7 QB 244 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
Dunne v North Western Gas Board [1963] 3 All ER 916 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Dunster v Abbott [1953] 2 All ER 1572 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
Dwyer v Esmonde (1878) 2 Ir LR 243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
Dyer v Phillip and AG (2003) High Court, Trinidad and Tobago,
No 247 of 1995 (unreported) [Carilaw TT 2003 HC 50] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Dyer v Stone (1990) 27 JLR 268 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391

E v H [2000] CILR 347 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350

Easson v London and North Eastern Rly Co [1944] 2 All ER 425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89, 92
East Coast Estates Ltd v Singh [1964] LRBG 202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
East Demerara Water Conservancy Board v Saliman (1976) Court of Appeal, Guyana,
Civ App No 69 of 1973 (unreported) [Carilaw GY 1976 CA 13] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Eastern and South African Telegraph Co v Cape Town Tramways Co [1902] AC 381 . . . . . . . . . . . . . . . 188, 192
Eastwood v Holmes (1858) 175 ER 758 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
Ebanks v Crooks (1996) 52 WIR 315; on appeal (1999) PC App No 32 of 1997 . . . . . . . . . . . . . . . . . . . . . . . . . 76
Edghill v Corbin (1997) 33 Barb LR 98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
Edison, The, See Liesbosch Dredger v SS Edison
Edmondson v Birch [1907] 1 KB 371 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
Edwards v AG (1992) 29 JLR 386 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Edwards v Bell (1824) 130 ER 162 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
Edwards v Pommels (1991) Court of Appeal, Jamaica,
Civ App No 38 of 1990 (unreported) [Carilaw JM 1991 CA 156] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Edwards v Rly Executive [1952] AC 737 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Egger v Chelmsford [1965] 1 QB 248 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284
Ellis v Home Office [1953] 2 All ER 140 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Ellis v Jamaica Railway Corp (1992) 29 JLR 250 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Ellis v Johnstone [1963] 2 QB 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Ellis v Loftus Iron Co (1874) LR 10 CP 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Emanuel v Grove (1991) High Court, Dominica, No 94 of 1989 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . 339
Emanuel v Lawrence (1999) High Court, Dominica, No 448 of 995 (unreported)
[Carilaw DM 1999 HC 3] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228, 247
Emeralds of Colombia Ltd v Specific Investments (Management) Co Ltd (1989) 50 WIR 27 . . . . . . . . . . . 294–7
Engelhart v Farrant and Co [1897] 1 QB 240 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328
Esso Petroleum Co Ltd v Mardon [1976] QB 801 (CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Evans v London Hospital Medical College [1981] 1 All ER 715 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

F v West Berkshire HA [1989] 2 All ER 545 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Facey v AG (1994) 31 JLR 518 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
xxvi Commonwealth Caribbean Tort Law

Fagan v Metropolitan Police Comr [1968] 3 All ER 442 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Fairman v Perpetual Investment Building Society [1923] AC 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
Farfan v Warren-Davis (1968) High Court, Trinidad and Tobago, No 815 of 1966
(unreported) [Carilaw TT 1968 HC 39] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Favre v Lucayan Country Clubs Ltd (1990) Supreme Court, The Bahamas,
No 725 of 1985 (unreported) [Carilaw BS 1990 SC 64] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134, 135
Fay v Prentice (1845) 135 ER 789 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
Fazlic v Milingimbi Community Inc (1981) 38 ALR 424 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384, 385
Fearon v AG (2005) Supreme Court, Jamaica, No CL 1990/F-046 (unreported)
[Carilaw JM 2005 SC 36] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Fenton v Blair (2004) Supreme Court, Jamaica, No CL 1995/F-181 (unreported)
[Carilaw JM 2004 SC 38] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368, 384
Ferguson v Allen (2002) Supreme Court, The Bahamas, No FP/224 of 1999 (unreported)
[Carilaw BS 2002 SC 24] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Filburn v People’s Palace (1890) 25 QBD 258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Fisher v Atkinson (2000) Supreme Court, Jamaica, No CL 1993/F-202 (unreported)
[Carilaw JM 2000 SC 35] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127, 129
Fitten v Michael Black Ltd (1987) 24 JLR 252 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357
Fitzgerald v Cooke [1964] 1 QB 249 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
Fitzjohn v Mackinder (1860–61) 141 ER 1094 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Fleeming v Orr (1857) 2 Macq 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Flemming v Myers (1989) 26 JLR 525 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 40, 58, 59
Flower v Ebbw Vale Steel, Iron and Coal Co Ltd [1934] 2 KB 132;
on appeal [1936] AC 206 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353, 354, 356
Fontaine v British Columbia [1998] 1 SCR 424 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Fookes v Slaytor [1979] 1 All ER 137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363
Forbes v Burns House Ltd (2000) Supreme Court, The Bahamas,
No 432 of 1995 (unreported) [Carilaw BS 2000 SC 12] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141, 365
Forde v Grenada Steel Works Ltd (2004) Supreme Court, Grenada, No HCV 2001/0629
(unreported0 [Carilaw GD 2004 HC 12] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354
Forde v Shah and T & T Newspaper Publishing Group Ltd (1990) High Court,
Trinidad and Tobago, No 4709 of 1988 (unreported)
[Carilaw TT 1990 HC 78] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221, 228, 249, 285, 286
Foulger v Newcomb (1867) LR 2 Ex 327 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
France v Simmonds (1986) Court of Appeal, St Christopher and Nevis,
Civ App No 2 of 1985 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Francis v Baker (1992) 29 JLR 424 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Francis v Cornish and Commissioner of Police (2001) Supreme Court, The Bahamas,
No 1432 of 1999 (unreported) [Carilaw BS 2001 SC 66]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Francis v Nixon and AG (2001) Supreme Court, The Bahamas, No 113 of 1998
(unreported) [Carilaw BS 2001 SC 39] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 37, 45
Franklin v South Eastern Rly (1858) 3 H & N 211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388
Fritz v Hobson (1880) 14 Ch D 542 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
Froom v Butcher [1975] 3 All ER 520 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349
Fruit of the Loom Inc v Chong Kong Man (1972) 20 WIR 445 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289–91, 298, 299
Fuller v AG (1995) Supreme Court, Jamaica, No 152 of 1993 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . 398
Fun and Games Ltd v Smith (1994) 30 Barb LR 357 No 403 of 1992 (unreported) . . . . . . . . . . . . . . . . . . . . . 376

Gabriel v Manmohan and Trinidad Express Newspaper Ltd (2004) High Court,
Trinidad and Tobago, No HCA 2488/97 (unreported)
[Carilaw TT 2004 HC 97] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265, 266
Gafar v Francis (1980) 17 JLR 159; on appeal (1986) Court of Appeal, Jamaica,
Civ App No 45 of 1980 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
Gairy v Bullen (No 1) (1972) 2 OECSLR 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
Gallwey v Marshall (1853) 156 ER 126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
Gammell v Wilson [1981] 1 All ER 578 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
 Table of Cases xxvii

Garrard v AE Southey and Co Ltd [1952] 2 QB 174 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308

Gaunt v Fynney (1873) 37 JP 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
Gayle v Alcan Jamaica Co Ltd (2005) Supreme Court, Jamaica, No 2000/G-027
(unreported) [Carilaw JM 2005 SC 38] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267, 284
Gayle v Wright (2004) Supreme Court, Jamaica, No CL G050 of 2001 (unreported)
[Carilaw JM 2004 SC 81] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Geest plc v Lansiquot, See Lansiquot v Geest plc
Genas v Black River Hospital Board of Management (2006) Supreme Court, Jamaica,
No CLG-105 of 1996 (unreported) [Carilaw JM 2006 SC 98] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
General Cleaning Contractors Ltd v Christmas [1953] AC 180 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
General Engineering Services Ltd v Kingston and St Andrew Corp [1988] 3 All ER 867 . . . . . . . . . . . . . . . . 325
Ghanie v Bookers Shipping (Demerara) Ltd (1970) 15 WIR 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351–2
Gibbs v Cave Shepherd and Co Ltd (1998) High Court, Barbados,
No 35 of 1989 (unreported) [Carilaw BB 1998 HC 25] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
Gibbs v Rea (1998) 52 WIR 102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Gilchrist v Gardner (1891) 12 NSWLR 184. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Giles v Walker (1890) 62 LT 933 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Gill v Anthony (1990) 42 WIR 72 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Gittens v Interage Ltd (1995) High Court, Barbados, No 414 of 1992 (unreported)
[Carilaw BB 1995 HC 4] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388
Gladman v Johnson (1867) 36 LJCP 153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
Glanville v Sutton [1928] 1 KB 571 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Glasgow v Stanley (1999) High Court, Trinidad and Tobago, No CV 234 of 1993
(unreported) [Carilaw TT 1999 HC 65] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341
Glasgow Corp v Taylor [1922] 1 AC 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Gleaner Co Ltd, The v Munroe (1990) 27 JLR 167 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
Gleaner Co Ltd, The v Sibbles (1981) 27 JLR 577 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
Gleaner Co Ltd, The v Wright (1979) 16 JLR 352 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247, 271
Glinski v McIver [1962] AC 726 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 54, 55, 59
Gobin v Lutchmansingh (1987) High Court, Trinidad and Tobago, No MO 5361 of 1986
(unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Godfrey v Demon Internet [1999] 4 All ER 342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
Goffin v Donnelly (1881) 44 LT 141 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
Goldman v Hargrave [1966] 2 All ER 989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173, 181
Gomberg v Smith [1963] 1 QB 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Gonsalves v The Argosy [1953] LRBG 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
Gonzales v Trinidad Co-operative Bank Trust Co Ltd (1999) High Court,
Trinidad and Tobago, No 1595 of 1988 (unreported) [Carilaw TT 1999 HC 40] . . . . . . . . . . . . . . . . . . 66
Gooding v Jacobs (1973) High Court, St Vincent, No 5 of 1971 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . 365
Goodwin v Cheveley (1859) 28 LJ Ex 298 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Gordon v Chokolingo (1988) PC App No 19 of 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
Gordon v Panday (2000) High Court, Trinidad and Tobago, No CV 1443 of 1997
(unreported) [Carilaw TT 2000 HC 133]; on appeal,
(2005) 67 WIR 290 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226, 228, 243
Gorris v Scott (1874) LR 9 Ex 125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Gosden v Elphick (1849) 154 ER 1287 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Gough v Thorne [1966] 1 WLR 1387 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Gould v McAuliffe [1941] 1 All ER 515 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
Graham v Baker (1961) 106 CLR 340 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
Graham v St Ann Parish Council (1995) 32 JLR 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Granada Group Ltd v Ford Motor Co Ltd [1972] FSR 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300
Granger v Murphy (1975) Court of Appeal, The Bahamas, No 11 of 1974 (unreported)
[Carilaw BS 1975 CA 3] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92, 99–100
Gransaull v De Gransaull [1922] Trin LR 176 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242, 271, 282
Grant v Australian Knitting Mills Ltd [1936] AC 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Grant v National Coal Board [1956] AC 649 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
xxviii Commonwealth Caribbean Tort Law

Grant v Robin Hood Enterprises Ltd (1995) Court of Appeal, Bermuda,

Civ App No 25 of 1994 (unreported) [Carilaw BM 1995 CA 12] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
Grant v Samuel (1998) High Court, British Virgin Islands, No 72 of 1996
(unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390, 391
Gravesandy v Moore (1986) 23 JLR 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Gray v Jones [1939] 1 All ER 798 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Greaves v Corbin (1987) High Court, Barbados, No 972 of 1982 (unreported)
[Carilaw BB 1987 HC 66] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388, 391
Green v Chelsea Waterworks Co (1894) 70 LT 547 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Green v Colebrook (2004) Supreme Court, The Bahamas, No 651/1996 (unreported)
[Carilaw BS 2004 SC 110] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
Green v Vincent (1994) Supreme Court, Jamaica, No G 102 of 1988 (unreported)
[Carilaw JM 1994 SC 21] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Greenidge v Barbados Light and Power Co Ltd (1975) 27 WIR 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156–9
Greenock Corp v Caledonian Rly [1917] AC 556 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
Greenwood v Ryan (1846) 1 Legge 275 (Aus) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Gregory v Derby (1839) 173 ER 701. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Gregory v Kelly (1978) The Times, 15 March. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
Gregory v Portsmouth City Council [2000] 1 AC 419 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Grenada Electricity Services Ltd v Peters (2003) Court of Appeal, OECS,
Civ App No 18 of 2002 (unreported) [Carilaw GD 2003 CA 1] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Grey v John (1993) High Court, Trinidad and Tobago, No 1332 of 1985 (unreported) . . . . . . . . . . . . . . 369
Griffith v Resort Divers Ltd (2005) Supreme Court, Jamaica, No CL 200/G015
(unreported) [Carilaw JM 2005 SC 9] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
Griffiths v Dawson [1968] Gleaner LR 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Grinham v Willey (1859) 157 ER 934 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Guerra v AG (1994) High Court, Trinidad and Tobago, No 2208 of 1986 (unreported)
[Carilaw TT 1994 HC 85] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Guildford, The [1956] 2 All ER 915 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384
Gumbs v Browne (2004) High Court, St Vincent and The Grenadines,
No 182 of 2003 (unreported) [Carilaw VC 2004 HC 24] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Gunness v Ramdeo (2001) High Court, Trinidad and Tobago, No S 1606 of 1995
(unreported) [Carilaw TT 2001 HC 84] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91, 348, 365
Guyana and Trinidad Mutual Fire Insurance Co Ltd v Boodoosingh (2000) High Court,
Trinidad and Tobago, No 560 of 1984 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Habre v AG (1996) High Court, Trinidad and Tobago, No HCA 3800 of 1990 (unreported)
[Carilaw TT 1996 HC 128] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Hale v Jennings Bros [1938] 1 All ER 579 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182, 190
Hall v Jamaica Omnibus Services Ltd (1966) 9 JLR 355 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
Halliday v Baronville (1977) 2 OECSLR 138. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246, 264
Halliwell v Venables (1930) 99 LJ KB 353 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150, 158, 170
Hambrook v Stokes Bros [1925] 1 KB 141 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Hamilton v Singh (1978) High Court, Guyana, No 2460 of 1975 (unreported) . . . . . . . . . . . . . . . . . . . . . . . 352
Hanna v University of the West Indies (2004) Supreme Court, Jamaica,
No CL 200/H-104 (unreported) [Carilaw JM 2004 SC 89] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127, 128
Hardai v Warrick [1956] LRBG 213 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279, 282
Harper v GN Haden and Sons Ltd [1933] Ch 298 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
Harripersad v Mini Max Ltd (1978) High Court, Trinidad and Tobago, No 654 of 1973
(unreported) [Carilaw TT 1978 HC 102] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132–3
Harris v Bright’s Construction Ltd [1953] 1 QB 617 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
Harris v Empress Motors Ltd [1983] 3 All ER 561 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
Harris v Hall (1997) 34 JLR 190 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308, 334, 342
Harris v James [1874–80] All ER Rep 1142 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Hart v Blair (1979) 16 JLR 385 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
 Table of Cases xxix

Hartley v Gray’s Inn Sugar Factory Ltd (1995) 32 JLR 440 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Harvey v RG O’Dell Ltd [1958] 2 QB 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
Haseldine v Daw [1941] 2 KB 343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Haughton v Hackney BC [1961] 3 KIR 615 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Hawkins v Coulsdon and Purley UDC [1954] 1 All ER 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Hawthorne v Downer (2005) Court of Appeal, Jamaica, Civ App No 12 of 2003
(unreported) [Carilaw JM 2005 CA 52] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370
Hay v Hughes [1975] 1 All ER 257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
Haye v Bruce (1971) 18 WIR 313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
Haynes v Harwood [1934] All ER Rep 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108, 363, 366
Haynes v Johnson (1978) 31 WIR 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Heasmans v Clarity Cleaning Co Ltd [1987] IRLR 286 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337
Hedley Byrne and Co Ltd v Heller and Partners Ltd
[1963] 2 All ER 575 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109, 110, 112, 113, 115, 117, 118, 119, 120
Heeralall v Hack Bros (Construction) Co Ltd (1977) 25 WIR 117. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368, 371, 374
Henderson v Henry E Jenkins and Sons [1970] AC 282 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Henderson v Radio Corp [1960] SR (NSW) 576 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300, 305
Hendricks v Singh [1917–32] Clark’s Rep 252 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
Hendriks v Montagu (1881) 50 LJ Ch 456 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294
Henry v Superior Plastics Ltd (2002) Supreme Court, Jamaica, No H-104 of 1994
(unreported) [Carilaw JM 2002 SC 33] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147, 357
Henry v Thompson (1991) High Court, Grenada, No 439 of 1987 (unreported)
[Carilaw GD 1991 HC 20] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213, 215
Henry v Tracey (1997) Supreme Court, Jamaica, No CL 1992/H-107 (unreported) . . . . . . . . . . . . . . . 55, 59
Henry-Argus v AG (1994) Supreme Court, Jamaica, No H 111 of 1988 (unreported). . . . . . . . . . . . . . . . 144
Herd v Weardale Steel Co Ltd [1915] AC 67 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Hernandez v Alta Garcia Quarry Ltd (1981) High Court, Trinidad and Tobago,
No 2298 of 1979 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Herniman v Smith [1938] AC 305 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 58
Herring v Boyle (1834) 3 LJ Ex 344 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Herrnicht v Green (1989) Supreme Court, The Bahamas, No 737 of 1985 (unreported)
[Carilaw BS 1989 SC 27] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326
Hetherington v North Eastern Rly (1882) 9 QBD 160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388
Hewitt v Bonvin [1940] 1 KB 188. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340, 342
Hewson v Downs [1970] 1 QB 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378
Hibbert v AG (1988) 25 JLR 429 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 391
Hickey v Electric Reduction Co of Canada Ltd (1970) 21 DLR (3d) 368 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Hicks v Faulkner (1878) 8 QBD 167 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 57, 58
Hilder v Associated Portland Cement Manufacturers Ltd [1961] 1 WLR 1434 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Hill v Chief Constable of West Yorkshire [1989] AC 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Hills v AG (1980) High Court, Trinidad and Tobago, No 1009 of 1974 (unreported)
[Carilaw TT 1980 HC 89] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Hilton v Thomas Burton (Rhodes) Ltd [1961] 1 All ER 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
Hind v Craig (1983) 19 JLR 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Hinds v Lee (1952) 6 JLR 176 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
Hines v Winnick [1947] Ch 708 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
Hinkson v COX Ltd (1985) High Court, Barbados, No 451 of 1984 (unreported)
[Carilaw BB 1985 HC 13] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367
Hinsey v Bahamas Electricity Corp (2001) Supreme Court, The Bahamas,
No 1146 of 1996 (unreported) [Carilaw BS 2001 SC 72] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Hoare and Co Ltd v McAlpine [1923] 1 Ch 167 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
Hodge v Cable and Wireless (West Indies) Ltd (2006) High Court, Anguilla,
No 1998/0108 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271
Holgate-Mohammed v Duke [1984] 1 All ER 1054 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155, 161, 164
xxx Commonwealth Caribbean Tort Law

Holness v University College Hospital Board of Management (2007) Supreme Court, Jamaica,
No CL 2002/C-123 (unreported) [Carilaw JM 2007 SC 72] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 80
Home Office v Dorset Yacht Co [1970] AC 1004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 64
Honeywill v Larkin Bros [1934] 1 KB 191 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
Hope v Leng Ltd (1907) 23 TLR 243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
Hopkinson v Lall (1959) 1 WIR 382 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335
Hornal v Neuberger Products Ltd [1957] 1 QB 247 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Horrocks v Lowe [1972] AC 135. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
Hoye v Bush (1840) 133 ER 548 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Hoyte v Kirpalani’s Ltd, See Kirpalani’s Ltd v Hoyte
Hoyte v Liberator Press Ltd (1973) High Court, Guyana, No 269 of 1972 (unreported) . . . . . . . . . 267, 278
Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Hughes v Deonarine (2004) High Court, Trinidad and Tobago,
No S234 of 1998 (unreported) [Carilaw TT 2004 HC 90] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Hughes v Lord Advocate [1963] AC 837 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 355
Hughes v McLean (1921) 4 Trin SC 98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Hull v Ellis (1966) Court of Appeal, Jamaica, Civ App No 36 of 1965 (unreported)
[Carilaw JM 1966 CA 244] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Hulton v Jones [1909] 2 KB 444 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240, 241
Humphreys v Silent Channel Products [1981] CLY 1209 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357
Humphries v Cousins (1877) 2 CPD 239 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Hunt v National Insurance Board (1997) Supreme Court, The Bahamas,
No 620 of 1996 (unreported) [Carilaw BS 1997 SC 40]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
Hunt v Severs [1994] 2 All ER 385 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369
Hunt v Star Newspaper Co Ltd [1908–10] All ER Rep 513 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
Hunter v Canary Wharf Ltd [1997] 2 All ER 426 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151, 170
Hunter v Wright [1938] 2 All ER 621 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Hurdle v Allied Metals Ltd (1974) 9 Barb LR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Husbands v The Advocate Co Ltd (1968) 12 WIR 454 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271, 285
Hussain v East Coast Berbice Village Council (1979) High Court, Guyana,
No 308 of 1976 (unreported) [Carilaw GY 1981 HC 15] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214, 345
Hutchinson v London and North Eastern Rly [1942] 1 KB 781 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356, 357
Huth v Huth [1915] 3 KB 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Hydes v Ebanks [2002] CILR 242 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377

Ife Fund SA v Goldman Sachs International [2007] 2 Lloyds Rep 449 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Ifill v Rayside Concrete Works Ltd (1981) 16 Barb LR 193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141, 148
Ilkiw v Samuels [1963] 1 WLR 991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327, 329
Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306, 367
Imperial Life Assurance Co of Canada v Bank of Commerce (Jamaica) Ltd
(1985) 22 JLR 415 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111–15
Indermaur v Dames (1866) LR 1 CP 274 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131, 132
Invercargill City Council v Hamlin [1996] AC 624 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120, 121
IRC v Hambrook [1956] 1 All ER 578 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
IRC v Muller and Co [1901] AC 213 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304
Insurance Comr v Joyce (1948) 77 CLR 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365
Irish v Barry (1965) 8 WIR 177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 54
Irving v The Post Office [1987] IRLR 289 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337
Isaacs v Cook [1925] 2 KB 391 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264

JEB Fasteners Ltd v Marks [1981] 3 All ER 289 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

Jacobs v London CC [1950] 1 All ER 737 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
Jack v Bruce (1950) 10 Trin LR 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Jackson v High View Estate (1997) 34 JLR 325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
Jamaica Omnibus Services Ltd v Caldarola (1966) 10 WIR 117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Jamaica Omnibus Services Ltd v Gordon (1971) 12 JLR 487 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
 Table of Cases xxxi

Jamaica Omnibus Services Ltd v Hamilton (1970) 16 WIR 316 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88–91

Jamaica Public Service Co Ltd v Morgan (1986) 44 WIR 310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
James v Knowles (1999) High Court, Antigua and Barbuda, No 225 of 1994 (unreported)
[Carilaw AG 1999 HC 3] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
James v Seivwright (1971) 12 JLR 617 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91, 92
Jangoo v Gomez (1984) High Court, Trinidad and Tobago, No 2652 of 1978 (unreported)
[Carilaw TT 1984 HC 49] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29–30, 47, 55
Jay v Ladler (1888) 40 Ch D 649 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
Jennings v Hannon (1969) 89 WN (Pt 2) (NSW) 232 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346
Jhaman v Anroop [1951] LRBG 172 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 56–8
Joel v Morrison (1834) 172 ER 1338 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
Johnson v Deveaux and AG (2000) Supreme Court, The Bahamas, No 895 of 1998
(unreported) [Carilaw BS 2000 SC 23] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Johnson v Browne (1972) 19 WIR 382 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373, 384
Johnston v Wellesley Hospital (1970) 17 DLR (3d) 139 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Jones v Festiniog Rly (1868) LR 3 QB 733 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
Jones v Gleeson (1965) 39 ALJR 258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382
Jones v Jones [1916] 1 KB 351; [1916] 2 AC 481 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222, 225
Jones v Livox Quarries Ltd [1952] 2 QB 608 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348, 360, 361
Jones v Watney (1912) 28 TLR 399 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Jordan v The Advocate Co Ltd (1998) High Court, Barbados, No 727 of 1996 (unreported)
[Carilaw BB 1998 HC 22] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236–7
Joseph v Derrick (2004) High Court, Antigua and Barbuda, No 2002/0383 (unreported)
[Carilaw AG 2004 HC 63] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
Joseph v Hepburn (1992) Supreme Court, The Bahamas, No 762 of 1989 (unreported)
[Carilaw BS 1992 SC 39] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
Joseph v Partap and Daily News Ltd (2007) High Court, Trinidad and Tobago,
No CV 2005/00537 (unreported) [Carilaw TT 2007 HC 74] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270
Joyce v Yeomans [1981] 2 All ER 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
Joynt v Cycle Trade Publishing Co [1904] 2 KB 292 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
Junior Books Ltd v Veitchi [1983] 1 AC 520. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Kandalla v British Airways Board [1980] 1 All ER 341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391

Kariah v Maharaj (1992) High Court, Trinidad and Tobago, No 1002 of 1975 (unreported) . . . . . . . . . 92
Kassam v Aerated Water Co Ltd [1965] 2 All ER 875 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388
Kellman v Augustine (2004) High Court, Barbados, No 1119 of 2003 (unreported)
[Carilaw BB 2004 HC 25] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387
Kelly v Big Ben Ltd (1986) Supreme Court, The Bahamas, No 404 of 1980 (unreported)
[Carilaw BS 1986 SC 52] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
Kemsley v Foot [1952] 1 All ER 501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258, 259
Kennedy v Morris and AG (2005) Court of Appeal, Trinidad and Tobago,
Civ App No 87 of 2004 (unreported) [Carilaw TT 2005 CA 29]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 55
Keppel Bus Co Ltd v Ahmad [1974] 2 All ER 700 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
Kerr v Kennedy [1942] 1 KB 409 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Khan v Bhairoo (1970) 17 WIR 192 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348, 358–61, 376
Khan v Khan [1974] LRG 287. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386, 391
Khan v Singh (1960) 2 WIR 441 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 51
Khorasandjian v Bush [1993] 3 All ER 669 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Kiddle v Business Properties Ltd [1942] 1 KB 269 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
Kirpalani’s Ltd v Hoyte (1977) Court of Appeal, Trinidad and Tobago,
Civ App No 77 of 1971 (unreported), [Carilaw TT 1977 CA 16],
reversing sub nom Hoyte v Kirpalani’s Ltd (1972) 19 WIR 310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132, 133
Kirton v Rogers (1972) 19 WIR 191 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137–9, 181, 184
Kiskimo Ltd v Salmon (1991) Court of Appeal, Jamaica, Civ App No 13 of 1994 (unreported) . . . . . 377
K-Mart Corp v Kay Mart Ltd (1997) Supreme Court, Jamaica, No K 066 of 1995 (unreported) . . . . . 294
Knight v Fellick [1977] RTR 316. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
xxxii Commonwealth Caribbean Tort Law

Knott v London CC [1934] 1 KB 126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

Knuppfer v London Express Newspaper Ltd [1943] KB 80; on appeal [1944] AC 116 . . . . . . . . 237, 239, 240
Kohanian v Carnival Crystal Palace Resort and Casino (1999) Supreme Court, The Bahamas,
No 1421 of 1994 (unreported) [Carilaw BS 1999 SC 21]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Koodratali v Chin [1939] LRBG 218. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Koonoo v Ramoutar (1984) High Court, Trinidad and Tobago, No 3237 of 1978 (unreported) . . . . . . . . 2
Kunwarsingh v Ramkelawan (1972) 20 WIR 441 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92, 357

Lagos Chamber of Commerce Inc v Registrar of Companies (1956) 72 RPC 263 . . . . . . . . . . . . . . . . . . . . . . . . . . 303
Laird v AG (1974) 21 WIR 416 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 41, 49
Lamb v Camden LBC [1981] 2 All ER 408 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Lamont v Emmanuel (1966) Court of Appeal, Trinidad and Tobago, No 1 of 1965
(unreported) [Carilaw TT 1966 CA 14] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220, 224, 225, 241
Lander v Gentle [1941] LRBG 159 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Lane v Holloway [1968] 1 QB 379 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Lange v Atkinson [1988] 3 NZLR 424 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271, 272
Lange v Australian Broadcasting Corp (1997) 189 CLR 520 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271, 272
Lansiquot v Geest plc (2000) Court of Appeal, Eastern Caribbean States, No 1 of 1999
(unreported) [Carilaw LC 2000 CA 2], and [2002] UKPC 48,
sub nom Geest plc v Lansiquot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385
Latimer v AEC Ltd [1952] 2 QB 701; on appeal [1953] AC 643 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70, 77
Laufer v International Marbella Club SA (1988) 25 JLR 412 Jamaica, Civ App No 2 of 1986
(unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Launchbury v Morgans [1971] 2 QB 245; on appeal,
sub nom Morgans v Launchbury [1973] AC 127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334–5, 337, 338
Laurie v Raglan Building Co Ltd [1941] 3 All ER 332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93, 94
Lawrence v Davis and AG (2007) Supreme Court, Jamaica, No CL 1996 L-00103
(unreported) [Carilaw JM 2007 SC 33] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Lawrence v Lightburn (1981) 31 WIR 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
Laycock v Grayson (1939) 55 TLR 698 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
Le Fanu v Malcolmson (1848) 1 HLC 637 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
Leachinsky v Christie [1945] 2 All ER 395 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Leakey v National Trust [1980] 1 All ER 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173, 181
Lebrun v High-Low Foods Ltd (1968) 69 DLR (2d) 433 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Lee v Hin (1991) 28 JLR 114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353
Lee v Phillips (1993) High Court, Barbados, No 1/71 of 1985 (unreported)
[Carilaw BB 1993 HC 39] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387, 389
Legall v Skinner Drilling (Contractors) Ltd (1993) High Court, Barbados, No 1775 of 1991
(unreported) [Carilaw BB 1993 HC 14] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Lemmon v Webb [1895] AC 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Leslie v Olivierre (2003) 66 WIR 186 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Letang v Cooper [1965] 1 QB 232. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Levesley v Thomas Firth and John Brown Ltd [1953] 2 All ER 866 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Levy v Hamilton (1921) 153 LT 384 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
Lewis v Brookshaw (1970) The Times, 10 April . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Lewis v Daily Telegraph Ltd [1964] AC 234. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227, 229, 234, 235, 242
Lewis v High Duty Alloys Ltd [1957] 1 All ER 720 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Lewis (John) and Co Ltd v Tims [1952] AC 676, reversing sub nom Tims
v Lewis (John) and Co Ltd [1951] 2 KB 459. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Liesbosch Dredger vSS Edison [1933] AC 449 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107, 153
Liffen v Watson [1940] 1 KB 556 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383
Limpus v London General Omnibus Co (1862) 158 ER 993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
Lister v Hesley Hall Ltd [2001] 2 All ER 769 (HL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319–21, 323, 332
Lloyd v Grace, Smith and Co [1912] AC 716 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321, 332
Lloyde v West Midlands Gas Board [1971] 2 All ER 1240 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88, 96
Lochgelly Iron and Coal Co Ltd v McMullan [1934] AC 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 83
 Table of Cases xxxiii

Logie v National Broadcasting Network Ltd (2002) High Court, Trinidad and Tobago,
No CV 556 of 2001 (unreported) [Carilaw TT 2002 HC 165] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229, 276
London Artists Ltd v Littler [1968] 1 All ER 1085; on appeal [1969] 2 All ER 193 . . . . . . . . . . . . . . . . . . . . . 256
London Graving Dock v Horton [1951] AC 737 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Loutchansky v Times Newspapers Ltd (No 1) [2001] 4 All ER 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276
Loutchansky v Times Newspapers Ltd (No 2) [2002] 1 All ER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
Lundy v Sargent (1998) Supreme Court, The Bahamas, No 693 of 1998 (unreported)
[Carilaw BS 1998 SC 74] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Luther v The Argosy Co Ltd [1940] LRBG 88 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
Lyford Cay Co Ltd v Lyford Cay Real Estate Co Ltd (1988–89) 2 Carib CLR 93. . . . . . . . . . . . . . . . . . . . . . . . . . 297
Lynch v Nurdin (1841) 113 ER 1041 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351, 352

MacDougall v Knight (1886) 17 QBD 636 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266

Maharaj v AG (2004) High Court, Trinidad and Tobago, No 2404 of 1998 (unreported)
[Carilaw TT 2004 HC 41] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Maharaj v Hobbs and AG (2002) High Court, Trinidad and Tobago, No 2587 of 1998
(unreported) [Carilaw TT 2002 HC 48] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 55
Maharaj v Bishop (1985) High Court, Trinidad and Tobago, No 4546 of 1982 (unreported)
[Carilaw TT 1985 HC 107] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
Maharaj v Rampersad (1950) 10 Trin LR 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Maharaj v Republic Bank Ltd (1987) High Court, Trinidad and Tobago, No 1500 of 1983
(unreported) [Carilaw TT 1987 HC 188] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121–2
Malabre v Gordon (1974) 12 JLR 1407 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
Malcolm v Broadhurst [1970] 3 All ER 508 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Mallet v McMonagle [1969] 2 All ER 178 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
Malone v Laskey [1907] 2 KB 141. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151, 169
Malz v Rosen [1966] 1 WLR 1008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 53
Manawatu County v Rowe [1956] NZLR 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346
Manchester Beverages Ltd v Thompson (1999) Court of Appeal, Jamaica,
Civ App No 88 of 1994 (unreported) [Carilaw JM 1999 CA 61] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Manchester Corp v Farnworth [1930] AC 171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177, 194
Mandraj v Texaco Trinidad Inc (1969) 15 WIR 251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181, 190–1
Mansell v Griffin [1908] 1 KB 160. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Mapp v Newsgroup Newspapers Ltd [1998] 2 WLR 260 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
Maraj v Samlal (1982) High Court, Trinidad and Tobago, No 1058 of 1973 (unreported). . . . . . . . . . . 389
Marc, Rich and Co AG v Bishop Rock Marine Co Ltd (The Nicholas H) [1996] AC 211 . . . . . . . . . . . . . 66, 105
Market Investigations Ltd v Minister of Social Security [1968] 3 All ER 732 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308
Marley (Robert) Foundation v Dino Michelle (1994) 31 JLR 197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300, 302–5
Marlor v Ball (1900) 16 TLR 239 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Marshall v Thompson and AG (1979) 16 JLR 479 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Marston v Wallace [1960] Gleaner LR 277 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Martignoni v Harris (1971) 2 NSWLR 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202, 207
Martin v Watson [1994] 2 All ER 666; on appeal [1996] AC 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Martins v L King and Sons Ltd (1978) High Court, Guyana, No 1881 of 1977 (unreported)
[Carilaw GY 1978 HC 20] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177, 186
Matania v National Provincial Bank [1936] 2 All ER 633 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Matheson v Soltau [1933] JLR 72 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338, 339
Mathurin v Augustin (2008) Court of Appeal, OECS, No HCVAP 2001/041 (unreported) . . . . . . . . . 391
Mattis v Pollock [2003] 1 WLR 2158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326–7
Maxwell v Forde and St John (1974) 22 WIR 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
Mayers v AG (1993) High Court, Barbados, No 1231 of 1991 (unreported)
[Carilaw BB 1993 HC 31] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Mazawattee Tea Co Ltd v Psaila Ltd [1925] LRBG 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
McAree v Achille (1970) High Court, Trinidad and Tobago, No 438 of 1968 (unreported)
[Carilaw TT 1970 HC 21] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94–5
McCarey v Associated Newspapers Ltd (No 1) [1964] 2 All ER 335 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
xxxiv Commonwealth Caribbean Tort Law

McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285

McCarthy v Barbados Light and Power Co Ltd (1988) 23 Barb LR 504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387, 389
McCollin v Da Costa and Musson Ltd (1982) 17 Barb LR 212 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21–3
McCullough v May [1947] 2 All ER 845 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300, 305
McDonald Farms Ltd v The Advocate Co Ltd (1996) 52 WIR 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
McIntosh v McIntosh (1963) 5 WIR 398 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
McKinnon Industries Ltd v Walker [1951] 3 DLR 577 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
McKone v Wood (1831) 172 ER 850. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
McLoughlin v O’Brian [1982] 2 All ER 298, HL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123, 124
McManus v Beckham [2002] 1 WLR 2982. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
McQuaker v Goddard [1940] 1 KB 687 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
McQuire v Western Morning News [1903] 2KB 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
McSweeney v Super Value Food Store Ltd (1980) Supreme Court, The Bahamas,
No 481 of 1979 (unreported) [Carilaw BS 1980 SC 30] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133–4
McWilliams v Sir William Arrol and Co Ltd [1962] 1 WLR 295 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Mediana, The [1900] AC 113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
Mediana, The [1900] AC 113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374
Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21, 22
Mensah v R (1945) 11 WACA 2 (PC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Mensah v R (1945) 11 WACA 2 (PC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Merrett v Babb [2001] QB 1174. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd [1947] AC 1 . . . . . . . . . . . . . 309, 338
Mersey Docks Trustees v Gibbs (1866) 11 ER 1500 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Merson v Cartwright (1994) Supreme Court, The Bahamas, No 1131 of 1987 (unreported)
[Carilaw BS 1994 SC 53] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 18, 44, 50, 54
Metall und Rohstoff AG v Donaldson Lufkin and Jenretta Inc [1990] 1 QB 391. . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Metropolitan Asylum District v Hill (1881) 6 App Cas 193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Metropolitan Parks and Markets Ltd v Swaby (2004) Court of Appeal, Jamaica,
Civ App No 25 of 2004 (unreported) [Carilaw JM 2004 CA 47] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354
Metropolitan Police Receiver v Croydon Corp [1957] 2 QB 154. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378
Midwood v Manchester Corp [1905] 2 KB 597 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170, 179
Millen v University of the West Indies Hospital Board of Management (1984) Supreme Court,
Jamaica, No CL M-066 of 1980 (unreported) [Carilaw JM 1984 SC 30]; on appeal
(1986) 44 WIR 274 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Miller v Decker [1957] SCR 624 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365
Miller v Jackson [1977] QB 966 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Mills v AG (1980) High Court, Trinidad and Tobago, No 1009 of 1974 (unreported) . . . . . . . . . . . . . . . . 38
Mills v AG (2005) High Court, St Kitts and Nevis, No HCV 1998/0038 (unreported)
[Carilaw KN 2005 HC 5] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
Ministry of Housing and Local Government v Sharp [1970] 2 QB 223 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Mirchandani v Barbados Rediffusion Service Ltd (1992) 42 WIR 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
Mitchell v Antoine (2002) High Court, Trinidad and Tobago, No 1406/91 (unreported)
[Carilaw TT 2002 HC 153] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353
Mitchell v Charles (2002) High Court, Grenada, No 704 of 1998 (unreported) . . . . . . . . . . . . . . . . . . . . . . . 274
Mitchell v Fassihi (2004) Court of Appeal, OECS, Civ App No 22 of 2003 (unreported)
[Carilaw GD 2004 CA 16] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242, 286, 287
Mitchell v North British Rubber Co [1945] SC (J) 69 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Modeste v Jacobs (2004) High Court, Grenada, No HCV 2000/0582 (unreported)
[Carilaw GD 2004 HC 20] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
Moeliker v Reyrolle and Co Ltd [1977] 1 WLR 132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Moffat v Coates (1906) 44 Sc LR 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
Mohammed Amin v Bannerjee [1947] AC 322 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Mohammed v Taylor (1994) High Court, Trinidad and Tobago, No S 2410 of 1987
(unreported) [Carilaw TT 1994 HC 4] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 55
Monk v Warbey [1935] 1 KB 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342
 Table of Cases xxxv

Montgomery v Thompson [1891] AC 217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299

Morales v Ecclestone [1991] RTR 151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
Morgan v Foreman (2004) Supreme Court, Jamaica, No HCV 0427/2003 (unreported)
[Carilaw JM 2004 SC 86] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
Morgan v Jamaica Omnibus Services Ltd (1987) 24 JLR 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383
Morgan v Odhams Press Ltd [1971] 1 WLR 1239 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230, 236
Morgan v Valley Fruit Co Ltd (2006) Supreme Court, Jamaica, No HCV 0805 of 2003
(unreported) [Carilaw JM 2006 SC 17] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Morgans v Launchbury, See Launchbury v Morgans
Morris v Luton Corp [1946] 1 KB 114. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Morris v CW Martin and Sons Ltd [1966] 1 QB 716 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321, 333
Morris v Gutzmore (1992) Supreme Court, Jamaica, No CL 1990/M131 (unreported) . . . . . . . . . . . . . . 386
Morris v Murray [1991] 2 WLR 195 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365
Morris v National Sports Club (1993) Court of Appeal, Bermuda, Civ App No 25 of 1992
(unreported) [Carilaw BM 1993 CA 10] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
Morris v Point Lisas Steel Products Ltd (1989) High Court, Trinidad and Tobago,
No (1886) of 1983 (unreported) [Carilaw TT 1989 HC 142] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Morris v Seanem Fixtures Ltd (1976) 11 Barb LR 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
Morrison v Trinidad and Tobago Electricity Commission (1999) High Court,
Trinidad and Tobago, No 1272 of 1995 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
Mosley v News Group Newspapers Ltd [2008] EMLR 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
Mostyn, The [1928] AC 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
Mowser v De Nobriga (1969) 15 WIR 147 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68–71, 77, 363, 366
Mullings v Murrell (1993) 30 JLR 278 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Mungroo v AG (1993) High Court, Trinidad and Tobago, No 491 of 1984 (unreported) . . . . . . . . . . . . . 54
Murphy v Brentwood DC [1990] 3 WLR 414 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 120
Murphy v Mills (1976) 14 JLR 119 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368, 369
Murphy v Richards (1960) 2 WIR 143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Murray v Flowers (2002) Court of Appeal, Jamaica, Civ App No 117/2000 (unreported)
[Carilaw JM 2002 CA 45] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353
Murray v Ministry of Defence [1988] 2 All ER 521 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Murray v Shuter [1972] 1 Lloyd’s Rep 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388
Murray v Williams (1936) 6 JLR 180 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
Musgrove v Pandelis [1919] 2 KB 43. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Mutual Life and Citizens’ Assurance Co Ltd v Evatt [1971] 1 All ER 150 . . . . . . . . . . . . . . . . 111, 112, 113, 116
My Kinda Town Ltd v Soll [1983] RPC 407 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
Myers v Gooding (1989) High Court, Trinidad and Tobago, No S-825 of 1986 (unreported)
[Carilaw TT 1989 HC 116] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242

Nabi v British Leyland Ltd [1980] 1 All ER 667 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378

Namdeo v Citizens Insurance Co Ltd (2001) High Court, Trinidad and Tobago,
No (1121) of 1999 (unreported) [Carilaw TT 2001 HC 106] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342
Nance v British Columbia Electric Rly Co [1951] 2 All ER 448 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354, 359
Narayan v Kellar [1958] LRBG 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Nation v Collins (1962) 8 JLR 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
National Commercial Bank of Trinidad and Tobago Ltd v Sentinel Security Services Ltd (1996)
50 WIR 442 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332
National Incorporated Association v Barnardo Amalgamated Industries Ltd
(1950) 66 RPC 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381
Nauth v Alexander [1960] LRBG 313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
Needham v Senior (2006) Supreme Court, Jamaica, No HCV 0852/2006 (unreported)
[Carilaw JM 2006 SC 28] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Neely v Minister of Tourism (1996) Supreme Court, The Bahamas, No 1183 of 1994
(unreported) [Carilaw BS 1996 SC 66] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Nettleship v Weston [1971] 3 All ER 581 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 363
xxxvi Commonwealth Caribbean Tort Law

Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271

Newstead v London Express Newspaper Ltd [1940] 1 KB 377 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240, 241
Newsweek Inc v BBC [1979] RPC 441 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
Nicholas v Augustus (1996) Court of Appeal, Eastern Caribbean States (Dominica),
Civ App No 3 of 1994 (unreported) [Carilaw DM 1996 CA 1] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
Nicholls v Ely Beet Sugar Factory Ltd [1936] Ch 343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
Nicholls v Tutt (1992) 41 WIR 140 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
Nichols v Marsland (1876) 2 Ex D 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
Nield v London and North Western Rly (1874) LR 10 Ex 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Nisbett v Wheatley (1993) High Court, British Virgin Islands, No 113 of 1987 (unreported)
[Carilaw VG 1993 HC 8]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Noble v Harrison [1926] 2 KB 332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
Nocton v Ashburton [1914] AC 932 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Norman v Telecommunication Services of Trinidad and Tobago Ltd (1996) High Court,
Trinidad and Tobago, No S 1668 of 1992 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
North v Wood [1914] 1 KB 629 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [1936] AC 108 . . . . . . . . . . 67, 184, 190
Nottage v Super Value Food Stores Ltd (1997) Supreme Court, The Bahamas,
No 389 of 1994 (unreported) [Carilaw BS 1997 SC 64]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Nurse v Haley [1920] LRBG 174 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201, 204
Nurse v Trinidad and Tobago Electricity Commission (2000) High Court,
Trinidad and Tobago, No S 3037 of 1993 (unreported)
[Carilaw No TT 2000 HC 35]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

O’Brien v Eason (1913) 47 Ir LT 266 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238

O’Connell v Jackson [1972] 1 QB 270 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
O’Connor v Waldron [1935] AC 76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
Office Cleaning Services Ltd v Westminster Window and General Cleaners Ltd
(1946) 63 RPC 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296, 297
Ogwo v Taylor [1988] 1 AC 431 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Oliver v Sangster (1951) 6 JLR 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Olivierre v Maharaj (1994) High Court, Trinidad and Tobago, No 72 of 1985 (unreported)
[Carilaw TT 1994 HC 7] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Omo-Osagie v Okutubu [1969] 2 All NLR 175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
Orie v Preau (2003) High Court, Trinidad and Tobago, No 2223A of 1997 (unreported)
[Carilaw TT 2003 HC 138] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
Ormrod v Crosville Motor Services Ltd [1953] 2 All ER 753 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333, 334, 336, 337
Osadebay v Solomon (1983) Supreme Court, The Bahamas, No 803 of 1979
(unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248, 253, 258
Osborn v Boulter [1930] 2 KB 226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269, 280
Osbourne v Barned (2006) Supreme Court, Jamaica, No 2005 HCV 294 (unreported)
[Carilaw JM 2006 SC 19] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Outar v Sookram [1953] LRBG 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163–5
Owens v Brimmell [1976] 3 All ER 765 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91, 348, 365

Padilla v George (1967) High Court, Trinidad and Tobago, No 2143 of 1965 (unreported)
[Carilaw TT 1967 HC 10] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 37
Palmer v Morrison [1963] Gleaner LR 150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Panday v Gordon. See Gordon v Panday
Pan Trinbago Inc v Maharaj (2002) High Court, Trinidad and Tobago, No 1017 of 1995
(unreported) [Carilaw TT 2002 HC 173] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228, 257
Pannett v McGuinness (P) and Co Ltd [1972] 3 All ER 137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137, 139
Panton v Financial Institutions Services Ltd (2003) Privy Council Appeal No 93 of 2002 . . . . . . . . . . . . . . . 3
Panton v Sherwood (1961) 4 WIR 163 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Parejo v Koo (1966–69) 19 Trin LR (Pt IV) 272. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87, 93
Paris v Stepney BC [1951] AC 367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71, 72, 78
 Table of Cases xxxvii

Parker v Miller (1926) 42 TLR 408 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Parker-Knoll Ltd v Knoll International Ltd [1962] RPC 265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300
Parry v Cleaver [1969] 1 All ER 555 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378, 379, 380, 381, 382
Parsons v BNM Laboratories [1963] 2 All ER 658 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382
Paul v AG (1998) High Court, Trinidad and Tobago, No CV 369 of 1982 (unreported)
[Carilaw TT 1998 HC 71] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 54
Payne v Rly Executive [1951] 2 All ER 910 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
Payton v Snelling, Lampard and Co [1901] AC 308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
Peabody Donation Fund (Governors of) v Sir Lindsay Parkinson Ltd [1984] 3 All ER 529 . . . . . . . . . . . . 65, 66
Pedro v Diss [1981] 2 All ER 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Pellington v Maitland and AG (2007) Supreme Court, Jamaica, No CL 1998 P-191
(unreported) [Carilaw JM 2007 SC 34] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Pelter v University of the West Indies (1994) 30 Barb LR 169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Pemberton v Hi-Lo Food Stores Ltd (1991) High Court, Trinidad and Tobago,
No 6036 of 1988 (unreported) [Carilaw TT 1991 HC 86] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
Penny v Wimbledon UDC [1899] 2 QB 72. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Perch v Transport Board (1981) 16 Barb LR 102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
Perry v Kendricks Transport Ltd [1956] 1 All ER 154 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189, 190, 192, 194
Persad v Trinidad and Tobago Electricity Commission (2000) High Court,
Trinidad and Tobago, No S 1031 of 1992 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Persaud v Gajraj (1978) High Court, Guyana, No 1221 of 1976 (unreported)
[Carilaw GY 1978 HC 12] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Persaud v Kunar (1978) High Court, Guyana, No 435 of 1975 (unreported)
[Carilaw GY 1978 HC 15] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224, 285
Persaud v Verbeke [1971] LRG 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328–329
Philips v Whiteley [1938] 1 All ER 566 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Phillips v Barbados Light and Power Co Ltd (1972) 7 Barb LR 154 . . . . . . . . . . . . . . . . . . . . . . . 184, 192–3, 194–5
Phillips v Bourne [1947] 1 All ER 373 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
Phillips v Boyce (2006) 71 WIR 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283–4, 285
Pierre v St Lucia Water and Sewage Authority (2003) High Court, St Lucia,
No 354 of 1994 (unreported) [Carilaw LC 2003 HC 13] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151, 344
Pilgrim v Transport Board (1990) 25 Barb LR 122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
Pitters v Haughton (1978) 16 JLR 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355–6
Pitts v Hunt [1990] 3 All ER 344 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365
Plumb v Cobden Flour Mills Co Ltd [1914] AC 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
Pogas Distributors Ltd v McKitty (1995) Court of Appeal, Jamaica, Civ App No 13 of 1994
(unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Poland v Parr [1927] 1 KB 236 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
Polemis, Re [1921] 3 KB 560 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Polidore v Crusader Caribbean Publishing Co Ltd (2000) High Court, St Lucia,
No 380 of 1990 (unreported) [Carilaw LC 2000 HC 8] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228, 236
Polsue and Alfieri Ltd v Rushmer [1907] AC 121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
Pontadawe RDC v Moore-Gwyn [1929] 1 Ch 656 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Ponting v Noakes [1894] 2 QB 281 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Porter v Armin (1976) High Court, Guyana, No 3779 of 1970 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Powell v Bell’s Trucking and Heavy Duty Equipment Ltd (2006) Supreme Court, Jamaica,
No HCV 0897 of 2003 (unreported) [Carilaw JM 2006 SC 18] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Praed v Graham (1889) 24 QBD 53 [Carilaw GY 1976 HC 15] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
Premsagar v Rajkumar (1978) High Court, Trinidad and Tobago, No 244 of 1974
(unreported) [Carilaw TT 1978 HC 110] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348, 361
Prosser (A) and Son Ltd v Levy [1955] 3 All ER 577 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
Pumps and Irrigation Ltd v Pusey (1995) 32 JLR 326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140, 141

Quarman v Burnett [1835–42] All ER Rep 250 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307

Quartz Hill Gold Mining Co v Eyre (1883) 11 QBD 674 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Quashie v Airport Authority of Trinidad and Tobago (1992) 2 TTLR 591 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
xxxviii Commonwealth Caribbean Tort Law

Quashie v AG (1992) High Court, Trinidad and Tobago, No 30 of 1987

(unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44–5, 54

R v Harvey (1823) 107 ER 379 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

R v Hood (1830) 168 ER 1272 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
R v Howarth (1828) 168 ER 1243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
R v Lemsatef [1977] 2 All ER 835 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
R v Meade and Belt (1823) 1 Law CC 184 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
R v Sampson (1954) 6 JLR 292 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
R v Smart (1952) 6 JLR 132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38–9
R v St George (1840) 173 ER 921 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
R v St Pancras Assessment Committee (1877) 2 QBD 381 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
R v Wilson [1955] 1 WLR 493 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Raggett v Findlater (1873) LR 17 Eq 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
Railways Comr (NSW) v Cardy (1961) 104 CLR 274 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138, 201
Rainham Chemical Works Ltd v Belvedere Fish Guano Co [1921] AC 465 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Rambaran v Port Authority of Trinidad and Tobago (1991) [Carilaw TT 1991 HC 11]
High Court, Trinidad and Tobago, No 1040 of 1985 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Rambarran v Gurrucharran [1970] 1 All ER 749 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339–42
Ramdeen and Singh v AG (1999) High Court, Trinidad and Tobago,
No CV 807 of 1995 (unreported) [Carilaw TT 1999 HC 72] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Ramdhan Singh Ltd v Panchoo (1975) High Court, Trinidad and Tobago,
No 764 of 1976 (unreported) [Carilaw TT 1975 HC 33] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97, 98–9
Ramessar v Trinidad and Tobago Electricity Commission (1966–69)
19 Trin LR (Pt IV) 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343–4
Ramharack v Caroni 1975 Ltd (1998) High Court, Trinidad and Tobago,
No S 723 of 1996 (unreported) [Carilaw TT 1998 HC 69] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Ramkhelawan v Motilal (1967) 19 Trin LR (Pt II) 117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224–5, 228
Ramkissoon v Sorias (1970) High Court, Trinidad and Tobago, No 2170 of 1968
(unreported) [Carilaw TT 1970 HC 20] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Ramlakhan v T&T News Centre Ltd (2005) High Court, Trinidad and Tobago,
No S-634 of 1999 (unreported) [Carilaw TT 2002 HC 173] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
Ramsahoye v Peter Taylor and Co Ltd [1964] LRBG 329 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229, 234, 237–40
Ramsaran v Sandy (2004) Court of Appeal, Trinidad and Tobago, Civ App No 55 of 2003
(unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Ramsarran v AG (2001) High Court, Trinidad and Tobago, No S 1597 of 1986
(unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 46, 47, 49
Ramsarran v McLean (1972) High Court, Guyana, No 103 of 1971 (unreported)
[Carilaw GY 1972 HC 35] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Ramsay v Larsen (1964) 111 CLR 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Rands v McNeil [1955] 1 QB 253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Rayson v South London Tramways Co [1893] 2 QB 304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
REMS Co Ltd v Frett (1996) Court of Appeal, British Virgin Islands, Civ App No 4 of 1995
(unreported) [Carilaw VG 1996 CA 1] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
Read v Coker (1853) 13 CB 850 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Read v Great Eastern Rly (1868) LR 3 QB 555 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388
Read v Lyons [1945] KB 216; [1947] AC 156. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179, 182, 183, 194
Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968] 2 QB 497 . . . . . . . . . . . . . . . . . . . . . . . . 308
Reddaway v Banham (1896) 13 RPC 218 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296, 298
Redpath v Belfast and County Down Rly [1947] NI 167 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381
Reid v Mobile Welding and Engineering Works Ltd (2007) Supreme Court, Jamaica, No CL
2000 R-030 (unreported) [Carilaw JM 2007 SC 5] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Reid v Sylvester (1972) 19 WIR 86 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36
Reid v Tyson (1993) Court of Appeal, St Christopher and Nevis, Mag App No 6 of 1993
(unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
Reynolds v Times Newspapers Ltd [1998] 3 WLR 862 (CA); [1999] 3 WLR 1010 (HL) . . . . . . . . . . . . . . 271–7
 Table of Cases xxxix

Rhyna v Transport and Harbours Department (1985) Court of Appeal, Guyana,

Civ App No 56 of 1982 (unreported) [Carilaw GY 1985 CA 9] . . . . . . . . . . . . . . . . . . . . . . . . . 71–2, 78, 367
Richards v Clarke (1990) High Court, St Lucia, No 142 of 1989 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Richardson v Redpath Brown and Co Ltd [1944] 1 All ER 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385, 386
Richardson v Richardson (1993) Court of Appeal, Anguilla, Mag App No 5 of 1992
(unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Richardson v Tull [1976] Trin LR 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
Richley v Faull [1965] 3 All ER 109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Rickards v Lothian [1913] AC 263 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182, 184, 186, 191
Ricket v Metropolitan Rly Co (1867) LR 2 HL 175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Ricketts v Thomas Tilling Ltd [1915] 1 KB 644 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328
Ricks and Sari Industries Ltd v Gooding (1986) 21 Barb LR 281 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291–4, 299
Roberts v Roberts (1864) 33 LJ QB 249 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
Robinson v AG (1981) High Court, Trinidad and Tobago, No 941 of 1976 (unreported) . . . . . . . . . . . . . 45
Robinson v Balmain Ferry Co Ltd [1910] AC 295 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Robinson v Kilvert (1889) 41 Ch D 88 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
Robinson v YP Seaton and Associates (2004) Supreme Court, Jamaica, No CL 1999/R047
(unreported) [Carilaw JM 2004 SC 23] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360
Robley v Placide (1966) 11 WIR 58 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73–5, 76
Robson v Hallett [1967] 2 QB 939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Rodney v Binnie-Palmer (2005) Supreme Court, Jamaica, No HCV 1980 of 2004
(unreported) [Carilaw JM 2005 SC 27] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
Roe v Minister of Health [1954] 2 All ER 131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Rogers v News Company Ltd (1995) High Court, St Vincent and the Grenadines,
No 221 of 1993 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
Rojannenisha v Guyana Sugar Producers Association Ltd (1973) High Court, Guyana,
No 1713 of 1971 (unreported) [Carilaw GY 1973 HC 20] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78, 80
Romegialli v Marceau (1963) 42 DLR (2d) 481 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Rookes v Barnard [1964] AC 1129 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 286
Rose v Miles (1815) 105 ER 773 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Rose v Plenty [1976] 1 All ER 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315, 316, 318
Rose Hall Development Ltd v Robinson (1984) 21 JLR 76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127, 128
Ross v Caunters [1980] Ch 297 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119, 121
Rowe v Port of Spain CC (1978) High Court, Trinidad and Tobago, No 1413 of 1976
(unreported) [Carilaw TT 1978 HC 48] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47–8
Rowley v Sylvester (1985) High Court, Trinidad and Tobago, No 723 of 1978 (unreported)
[Carilaw TT 1985 HC 147] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55–6
Roy v Prior [1971] AC 470 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 47
Royal Bank Trust Co (Trinidad) Ltd v Pampellonne (1986) 35 WIR 392 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116–18
Ruddiman and Co v Smith (1889) 60 LT 708 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188, 311
Rullow v AG (2002) High Court, Trinidad and Tobago, No 1136 of 2000 (unreported)
[Carilaw TT 2002 HC 143] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Rushmer v Polsue and Alfieri Ltd [1906] 1 Ch 234 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
Rushton v Turner Bros Asbestos Co Ltd [1959] 3 All ER 517 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357
Ryan v Fildes [1938] 3 All ER 517 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Ryan v Simpson (1872) 6 SALR 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Rylands v Fletcher (1866) LR 1 Ex 265; on appeal (1868) LR 3 HL 330 . . . . . . . . . . . . . . . . . . . . 63, 168, 179–95

S v Distillers (Biochemicals) Ltd [1970] 1 WLR 114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376

S v McC [1972] AC 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 16
S&T Distributors Ltd v CIBC Jamaica Ltd (2007) Court of Appeal, Jamaica,
Civ App No 112/04 (unreported) [Carilaw JM 2007 CA 44] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Sabga v Llanos (1988) High Court, Trinidad and Tobago, No HCA 146 of 1979
(unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81–3
Sahabdool v Flaviney and AG (2002) High Court, Trinidad and Tobago,
No SCV 2176 of 1988 (unreported) [Carilaw TT 2002 HC 49]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
xl Commonwealth Caribbean Tort Law

Salmon v Roache (1995) 32 JLR 406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 41

Salmon v Seafarer Restaurants Ltd [1983] 1 WLR 1264 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Salmon v Stewart (1950) 5 JLR 236 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
Salsbury v Woodland [1970] 1 QB 324 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
Samlal v AG (1998) High Court, Trinidad and Tobago, No S-3801 of 1982 (unreported)
[Carilaw TT 1998 HC 95] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Sammy v BWIA (1988) High Court, Trinidad and Tobago, No 5692 of 1983 (unreported) . . . . . . . . . 142
Samuel v Surajh (2002) High Court, Trinidad and Tobago, No 2656 of 1998 (unreported)
[Carilaw TT 2002 HC 68] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91, 373, 386, 391
Samuels v AG (1994) Supreme Court, Jamaica, No S 415 of 1992 (unreported) . . . . . . . . . . . . . . . . . . . . . . . 13
Sanderson v Collins [1904] 1 KB 628 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
Sandiford v Prescod (1977) 12 Barb LR 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369
Sarch v Blackburn (1830) 172 ER 712 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136, 204, 211
Sarju v Walker (1973) 21 WIR 86 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Sattaur v Rapununi Development Co Ltd [1952] LRBG 113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214, 345
Savile v Roberts [1558–1774] All ER Rep 456 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Scantlebury v The Advocate Co Ltd (1997) 33 Barb LR 273 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228, 242
Scott v Firth (1864) 176 ER 505 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
Scott v London and St Katherine Docks Co (1865) 159 ER 665 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86, 88, 94
Scott v T&T News Centre Ltd (2007) High Court, Trinidad and Tobago, No 2506 of 2002
(unreported) [Carilaw TT 2007 HC 165] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
Scott v Wilkie (1970) 12 JLR 200 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17
Seaga v Harper (2008) Privy Council Appeal No 90 of 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
Seaman v Netherclift (1876) 2 CPD 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
Searchwell v Lennon (2004) Supreme Court, Jamaica, No CL 1999/S 191 (unreported)
[Carilaw JM 2004 SC 17] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211,212
Searle v Wallbank [1947] AC 341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213–15
Sedleigh-Denfield v O’Callaghan [1940] AC 880 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153, 169, 172, 173
Seebalack v Constance (1996) High Court, Trinidad and Tobago, No S 2704 of 1985
(unreported) [Carilaw TT 1996 HC 139] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Seeraj v Dindial (1985) High Court, Trinidad and Tobago, No 4696 of 1982 (unreported)
[Carilaw TT 1985 HC 180]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87, 345–6
Seetaram v AG (2001) High Court, Trinidad and Tobago, No 35 of 1999 (unreported)
[Carilaw TT 2001 HC 31] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Selvanayagam v University of the West Indies [1983] 1 All ER 824 . . . . . . . . . . . . . . . . . . . . . . . . . 368, 384–5, 386
Sewell v National Telephone Co Ltd [1907] 1 KB 557 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Sham v The Jamaica Observer Ltd (1999) Supreme Court, Jamaica, No S 292 of 1995
(unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
Shamina v Dyal (1993) 50 WIR 239 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
Sharpe v Gibson Construction Ltd (2003) Court of Appeal, OECS, Civ App No 18 of 2001
(unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Sheppard v Griffith (1973) High Court, Guyana, No 320 of 1971 (unreported)
[Carilaw GY 1973 HC 39] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159–63
Shiffman v Order of St John [1936] 1 All ER 557. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
Shiwmangal v Jaikaran and Sons Ltd [1946] LRBG 308. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 50, 51, 56
Sibbles v Jamaica Omnibus Services Ltd (1965) 9 WIR 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Sibbons v Sandy (1983) High Court, Trinidad and Tobago, No 1001 of 1975 (unreported)
[Carilaw TT 1983 HC 87] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27–9, 54
Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER 516 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
Sim v Stretch [1936] 2 All ER 1237 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
Simmons v Millingen (1846) 135 ER 1051 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Simon v Antigua Sun Ltd (2004) High Court, Antigua and Barbuda, No HCH 199/0046
(unreported) [Carilaw AG 2004 HC 47] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228, 242
Sims v McKinney (1989) Supreme Court, The Bahamas, No 996 of 1986 (unreported)
[Carilaw BS 1989 SC 7] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201, 205, 216–17
Sims v Wran [1984] 1 NSWLR 317 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
 Table of Cases xli

Sinclair v Lindsay [1968] Gleaner LR 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199

Singer Manufacturing Co v Loog (1882) 8 App Cas 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
Singh v AG (2005) Court of Appeal, Trinidad and Tobago, Civ App No 3 of 2002
(unreported) [Carilaw TT 2005 CA 15] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Singh v The Evening Post (1976) High Court, Guyana, No 2754 of 1973 (unreported)
[Carilaw GY 1976 HC 16] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248, 249, 285, 286
Sisnett v Gittens (1985) High Court, Barbados, No 365 of 1983 (unreported)
[Carilaw BB 1985 HC 57] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387
Slim v Daily Telegraph Ltd [1968] 1 All ER 497 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
Small v The Gleaner Co Ltd (1979) Supreme Court, Jamaica, No CL S-188 of 1976
(unreported) [Carilaw JM 1979 SC 31] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
Small v Trinidad Tesoro Petroleum Co Ltd (1978) High Court, Trinidad and Tobago,
No 540 of 1972 (unreported) [Carilaw TT 1978 HC 71] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Smart v Trinidad Mirror Newspaper Ltd (1968) High Court, Trinidad and Tobago,
No 875 of 1965 (unreported) [Carilaw TT 1968 HC 7] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246, 286
Smith v Adams (1982) 17 Barb LR 204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220, 229
Smith v AG (2005) Supreme Court, Jamaica, No CL 2001–S044 (unreported)
[Carilaw JM 2005 SC 17] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Smith v Baker [1891] AC 325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365, 367
Smith v Central Asbestos Co Ltd [1972] 1 QB 244 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374
Smith v Chesterfield and District Co-operative Society Ltd [1953] 1 All ER 447 . . . . . . . . . . . . . . . . . . . . . . . . . . 356
Smith v Crossley Bros Ltd (1951) 95 SJ 655 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Smith v Gaynor (1976) 14 JLR 132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
Smith v Leech Brain and Co Ltd [1962] 2 QB 405 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106, 107
Smith v Manchester Corp (1974) 17 KIR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Smith v Rodney (2004) High Court, Grenada, No HCV 1996/0226 (unreported)
[Carilaw GD 2004 HC 2] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353
Smith v Selwyn [1914] 3 KB 98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 54
Smith v Smith (2005) High Court, BVI, No HCV 2004/0018 (unreported)
[Carilaw VG 2005 HC 9] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Smith v Stages [1989] 1 All ER 833 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
Smith v Williams (CO) Construction Ltd (1981) 16 Barb LR 282 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96–7
Smithwick v National Coal Board [1950] 2 KB 335 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
Smoker v London Fire and Civil Defence Authority [1991] 2 All ER 449 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378
Smosher v Carryl [1921] LRBG 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Sochaki v Sas [1947] 1 All ER 344 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
Soltysik v Julien (1955) 19 Trin LR (Pt III) 623 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249, 258–61
Somairsingh v Harpaulsing [1942] LRBG 82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Sorzano v AG (2004) Court of Appeal, Trinidad and Tobago, Civ App No 101 of 2002
(unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
South v Bryan and Confidence Bus Service Ltd [1968] Gleaner LR 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
South Hetton Coal Co v North-Eastern News Association Ltd [1891–94] All ER Rep 548 . . . . . . . . . . . . . . 257
Southport Corp v Esso Petroleum Co Ltd [1954] 2 All ER 561 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Spalding v AW Gamage Ltd (1913) 30 RPC 388; on appeal (1915) 84 LJ Ch 449 . . . . . . . 290, 295, 301, 304
Spartan Steel and Alloys Ltd v Martin [1973] 1 QB 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Speed v Thomas Swift and Co Ltd [1943] KB 557 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Speight v Gosnay (1891) 60 LJ QB 231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
Spice Island Printers Ltd v Bierzynski (1994) Court of Appeal, [Carilaw GD 1994 CA 4]
Eastern Caribbean States (Grenada), Civ App No 5 of 1992 (unreported) . . . . . . . . . . . . . . . . . . . . . . . 228
Spicer v Smee [1946] 1 All ER 489 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156, 179
Spilsbury v Micklethwaite (1808) 127 ER 788 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
St Anne’s Well Brewery Co Ltd v Roberts [1928] All ER Rep 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
St Helens Smelting Co v Tipping (1865) 11 ER 1483 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152, 153
St James Coast Estates Ltd v Sunset Crest Rentals (1977) 29 WIR 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
St Lawrence Apartments Ltd v Downes (1995) 31 Barb LR 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156, 171
Stansbie v Troman [1948] 2 KB 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
xlii Commonwealth Caribbean Tort Law

Stapley v Gypsum Mines Ltd [1953] AC 663 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363

Star Industrial Co Ltd v Yap Kwee Kor [1976] FSR 256 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304
Stavely Iron and Chemical Co Ltd v Jones [1956] AC 627 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357
Stein v Gonzales (1985) 14 DLR (4th) 263 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Stella, The [1900] P 161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388
Stephens v Myers (1830) 172 ER 735. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Stern v Piper [1996] 3 All ER 385 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247, 266
Stevens v Midland Counties Rly Co (1854) 156 ER 480 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Stevenson, Jordan and Harrison Ltd v Macdonald and Evans Ltd [1952] 1 TLR 101 . . . . . . . . . . . . . . . . . . . . . 307
Steward v Routhier (1974) 45 DLR (3d) 383 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
Stewart v Green (1967) 10 JLR 220 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
Stopforth v Goyer (1978) 87 DLR (3rd) 373 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
Storey v Ashton (1869) LR 4 QB 476 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312, 339
Stovin v Wise [1996] AC 923 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Straker v Edey (1990) 25 Barb LR 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Stratton Oakmont Inc v Prodigy Services 1995 NT Misc, 23 Media L Rep 1794 . . . . . . . . . . . . . . . . . . . . . . . . 245
Stuart v Bell [1891] 2 QB 341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
Sturrup v Resorts International (Bahamas) 1984 Ltd (1991) [Carilaw BS 1991 SC 61]
Supreme Court, The Bahamas, No 83 of 1985 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Subhaga v Rahaman [1964] LRBG 112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
Suckoo v Mitchell (1978) 16 JLR 261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267, 283
Sudan v Carter (1992) High Court, Trinidad and Tobago, No 1735 of 1990
(unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 326
Summers (J) and Sons Ltd v Frost [1955] 1 All ER 870 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
Sunanansingh v Ramkerising (1897) 1 Trin LR 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
Sunbolf v Alford (1838) 150 ER 1135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Sutherland v Stopes [1925] AC 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
Sutherland Shire Council v Heyman (1985) 60 ALR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Swaby v Metropolitan Parks and Markets (2004) Supreme Court, Jamaica,
No CL S123 of 2000 (unreported) [Carilaw JM 2004 SC 18] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143, 312
Swan v Salisbury Construction Co Ltd [1965] 1 WLR 208 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Sycamore v Ley (1932) 147 LT 342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Syed Mohamed Yusuf-ud-Din v Secretary of State for India (1903) 19 TLR 496 . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Sykes v North Eastern Rly (1875) 44 LJCP 191 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388
Synagogue Trust Ltd v Perry (1988) 25 JLR 353 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181, 185, 189
Sylvester v Chapman (1935) 79 SJ 777 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Szalatnay-Stacho v Fink [1946] 1 All ER 303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264

Taff Vale Rly v Jenkins [1913] AC 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388

Tallents v Bell [1944] 2 All ER 474 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197, 216
Taylor v McPhee (2001) Supreme Court, The Bahamas, No 180 of 1999 (unreported) . . . . . . . . . . . . . . . . 42
Taylor v O’Connor [1970] 1 All ER 365 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
Taylor v The Nassau Guardian Ltd (2003) Supreme Court, The Bahamas, No CL 543 of 1999
(unreported) [Carilaw BS 2003 SC 21] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144, 368
Tewari v Singh (1908) 24 TLR 884 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 50
Texaco Trinidad Inc v Halliburton Tucker Ltd (1975) Court of Appeal, Trinidad and Tobago,
Civ App No 80 of 1970 (unreported) [Carilaw TT 1975 CA 39] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
Theaker v Richardson [1962] 1 WLR 151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Thomas v Arscott (1970) 11 JLR 496 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
Thomas v AG (2006) Supreme Court, The Bahamas, No CLT 095 (unreported) . . . . . . . . . . . . . . . . . . . . . 370
Thomas v Quartermaine (1887) 18 QBD 683 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
Thompson v AG (1969) Court of Appeal, Jamaica, Civ App No 73 of 1969 (unreported) . . . . . . . . . . . 199
Thompson v Gibson [1835–42] All ER Rep 623 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
Thompson v Renmote Mews Ltd (2006) Supreme Court, Jamaica, No CLT-138 of 2001
(unreported) [Carilaw JM 2006 SC 115] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
Thornhill v Williams (1979) 35 WIR 61. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
 Table of Cases xliii

Thorpe v Leacock (1965) 9 WIR 176 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

Thurston v Davis (1992) Supreme Court, The Bahamas, No 1146 of 1988 (unreported)
[Carilaw BS 1992 SC 82] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
Tidy v Battman [1934] 1 KB 319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Tillett v Ward (1882) 10 QBD 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197, 200
Tims v John Lewis and Co Ltd, See Lewis (John) and Co Ltd v Tims
Titus v Duke (1963) 6 WIR 135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
Tiwari v Singh (1976) Court of Appeal, Guyana, Civ App No 7 of 1974 (unreported)
[Carilaw GY 1976 CA 33] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Toogood v Spyring (1834) 149 ER 1044 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
Toogood v Wright [1940] 2 All ER 306 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
Toolsie v AG (1981) High Court, Trinidad and Tobago, No 3749 of 1979 (unreported) . . . . . . . . . . . . . . . 53
Toppin v Jordan (1991) 51 WIR 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387
Toussaint v Cul-de-Sac Industrial Zone Ltd (2002) High Court, St Lucia, No 470 of 1994
(unreported) [Carilaw LC 2002 HC 17] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346
Trinidad and Tobago Electricity Commission v Ramoutar (2004) Court of Appeal,
Trinidad and Tobago, Civ App No 18 of 2003 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Trinidad and Tobago Electricity Commission v Sookram (1999) 57 WIR 473. . . . . . . . . . . . . . . . . . . . . . . . . . 87, 194
Trinidad and Tobago National Petroleum Co v Trinidad Express Newspapers Ltd
(2002) High Court, [Carilaw TT 2002 HC 37] Trinidad and Tobago,
No S 862 of 1999 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257, 276
Trotman v North Yorkshire County Council [1999] LGR 584 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
Truth (NZ) Ltd v Holloway [1960] 1 WLR 997. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Tuberville v Savage (1669) 1 Mod Rep 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Tudor v Cox (1979) High Court, Barbados, No 128 of 1978 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369
Tugwell v Campbell [1965] Gleaner LR 191 [Carilaw BB 1979 HC 14] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Tulloch v Shepherd [1968] Gleaner LR 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Turner v Ambler (1847) 116 ER 98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 54
Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 255
Turner v Ministry of Defence (1969) 113 SJ 585 (CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382
Turnquest v Cargill (2004) Supreme Court, The Bahamas, No CLE/146/2001
(unreported) [Carilaw BS 2004 SC 121] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
Twine v Bean’s Express Ltd [1946] 1 All ER 202; on appeal (1946) 62 TLR 458 (CA) . . . . . . . 315, 316, 318
Twins Pharmacy Ltd v Marshall (1979) 26 WIR 320 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

Uddin v Associated Portland Cement Manufacturers Ltd [1965] 2 All ER 213 . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
Ultramares Corp v Touche (1931) 174 NE 441. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
United Africa Co Ltd v Owoade [1957] 3 All ER 216 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311, 332
United Estates Ltd v Durrant (1992) 29 JLR 468 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140, 141

Vaccianna v Bacchas (1964) 8 JLR 497 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

Van de Weg v Minister of Health and Social Services (1981) 32 WIR 161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Vanderbergh v Blake (1661) 145 ER 447. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Vanderpant v Mayfair Hotel Co Ltd [1929] All ER Rep 296 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153, 157
Vanvalkenburg v Northern Navigation Co [1913] DLR 649. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Vaughan v Menlove (1837) 132 ER 490 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Vaughan v Taff Vale Rly Co (1860) 157 ER 1351 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Velasquez t.a. Panaderia v EK (2003) Court of Appeal, Belize, Civ App No 3 of 2003
(unreported) [Carilaw BZ 2003 CA 10] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Vicars v Wilcox (1806) 103 ER 244 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244

Waaldyk v Trim (1977) Court of Appeal, Guyana, [Carilaw GY 1977 CA 12]

Civ App No 37 of 1975 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91, 92
Wade v Cole (1966) High Court, Trinidad and Tobago, No 882 of 1959 (unreported)
[Carilaw TT 1966 HC 8] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
xliv Commonwealth Caribbean Tort Law

Wagon Mound, The (No 1) [1961] AC 388 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 106

Wagon Mound, The (No 2) [1966] 2 All ER 709 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70, 77, 78, 103, 175, 180, 193
Waithe v Natural Gas Corp (1960) 3 WIR 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
Walker v Bletchley Flettons Ltd [1937] 1 All ER 170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
Walker v Clarke (1959) 1 WIR 143. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147, 356
Walker v Lobban (2005) Court of Appeal, Jamaica, Civ App No 132/02 (unreported)
[Carilaw JM 2005 CA 79] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Walker (John) and Sons Ltd v Henry Ost and Co Ltd [1970] 1 WLR 917 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
Wallace v Newton [1982] 1 WLR 375 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Walsh v Ervin [1952] VLR 361 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149, 150
Walter v Allfools (1944) 16 TLR 39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Walters v Mitchell (1992) 29 JLR 173 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370
Walters v WH Smith and Son Ltd [1914] 1 KB 595 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 44
Walwyn v Brookes (1993) High Court, St Christopher and Nevis, No 34 of 1992
(unreported) [Carilaw KN 1993 HC 5] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
Ward v London CC [1938] 2 All ER 341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Ward v Tesco Stores Ltd [1976] 1 All ER 219 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126, 133
Warnink v Townend and Sons Ltd [1979] AC 731 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288, 291, 303
Warren v Henly’s Ltd [1948] 2 All ER 935 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
Warren v Scruttons Ltd [1962] 1 Lloyd’s Rep 497 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Wasonv Walter [1861–73] All ER Rep 105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
Watkins v Lee (1839) 151 ER 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Watson v Arawak Cement Co Ltd (1998) High Court, Barbados, No 958 of 1990
(unreported) [Carilaw BB 1998 HC 30] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127, 128, 145
Watt v Hertfordshire CC [1954] 2 All ER 368 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 75
Watt v Longsdon [1930] 1 KB 130 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242, 267, 268
Webb v Rambally (1994) Supreme Court, Jamaica, No W 101 of 1990 (unreported) . . . . . . . . . . . . . . . . . 349
Weekes v AG (1986) 21 Barb LR 249 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130–1
Weldon v Home Office [1990] 3 WLR 465 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Wellington v AG (1997) Supreme Court, Jamaica, No W 034 of 1992 (unreported)
[Carilaw JM 1997 SC 93] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
Wells v Wells [1998] 3 All ER 481 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
West v AG (1986) 23 JLR 323 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
West v Reynolds Metal Co [1968] Gleaner LR 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
West and Son Ltd v Shephard [1964] AC 326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
Whatman v Pearson (1868) LR 3 CP 223 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
Wheat v Lacon and Co Ltd [1966] AC 552 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
Wheatle v Townsend (1998) Supreme Court, Jamaica, No W 380 of 1995 (unreported)
[Carilaw JM 1998 SC 48] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Wheatley v Cader (1999) High Court Trinidad and Tobago, No 1498 of 1992 (unreported)
[Carilaw TT 1999 HC 88] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
White v Gaskin (1990) 25 Barb LR 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363
White v Jamieson (1874) LR 18 Eq 303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
White v Jones [1995] 2 AC 207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119, 120
White v Stone [1939] 2 KB 827 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
White Hudson and Co Ltd v Asian Organisation Ltd [1964] 1 WLR 1466 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
Whiteford v Hunter [1950] WN 553 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Whonder v Courts Jamaica Ltd (2001) Supreme Court, Jamaica, No CLW 421 of 1995
(unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
Whylie v Campbell (1997) Supreme Court, Jamaica, No W 103 of 1994 (unreported)
[Carilaw JM 1997 CA 39] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Wicks v Fentham (1791) 100 ER 1000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
Wiffen v Bailey [1915] 1 KB 600 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 60
Wiggan v Morrison (2000) Supreme Court, Jamaica, No E 360A of 1996 (unreported)
[Carilaw JM 2000 SC 14] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
 Table of Cases xlv

Wight v Bollers [1936] LRBG 330 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220, 223

Wilchombe v Princess Margaret Hospital (2002) Supreme Court, The Bahamas,
No 1309 of 1996 (unreported) [Carilaw BS 2002 SC 25] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
Williams v AG [1966] Gleaner LR 51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Williams v Moxey and AG (2001) Supreme Court, The Bahamas, No 592 of 1995
(unreported) [Carilaw BS 2001 SC 32] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Williams v Bronnley (1909) 26 RPC 765 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
Williams v Grimshaw [1961] 3 KIR 610 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Williams v Martins [1920] LRBG 169; on appeal [1921] LRBG 137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201, 205
Williams v Murraine (1987) 40 WIR 160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Wills v Voisin (1963) 6 WIR 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48
Wilson v Caven (1993) Supreme Court, Jamaica, No W 029 of 1989 (unreported)
[Carilaw JM 1993 SC 37] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86, 91
Wilson v Pringle [1987] QB 237 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Wilson v Silvera (1959) 2 WIR 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209–12
Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
Wilson v Waddell (1876) 2 App Cas 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Wilsons and Clyde Coal Co v English [1938] AC 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104, 140
Wiltshire v Barrett [1965] 2 All ER 271 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Windsor v AG (1996) High Court, Trinidad and Tobago, No 1692 of 1990 (unreported)
[Carilaw TT 1996 HC 176] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 55
Wing v London General Omnibus Co [1909] 2 KB 625 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Winnipeg Electric Company v Geel [1932] AC 690 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Winterbottom v Derby (1867) LR 2 Ex 316 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Wisdom v Johnson (2002) Supreme Court, Jamaica, No CL 1996/W-240 (unreported)
[Carilaw JM 2002 SC 37] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Witter v Brinks (Jamaica) Ltd (1992) 29 JLR 344 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104–5
Wong v Campbell (1969) 11 JLR 435 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Woods v Duncan [1946] AC 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Woods v Francis [1985] CLR 510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349
Woodward’s Trade Mark, Re (1915) 85 LJ Ch 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
Wooldridge v Sumner [1962] 2 All ER 978 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77, 363
Woolford v Bishop [1940] LRBG 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
Wormald v Cole [1954] 1 All ER 683 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Worth v Gilling (1866) LR 2 CP1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Wotherspoon v Airports Authority of Trinidad and Tobago (1999) High Court,
Trinidad and Tobago, No CV 2533 of 1995 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Wright v Callwood [1950] 2 KB 515 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
Wright v Cheshire CC [1952] 2 All ER 789 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Wright v McLean (1956) 7 DLR (2d) 253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Wright v Pearson (1868) 4 QB 582 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207, 208
Wringe v Cohen [1940] 1 KB 229 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174, 175

Yachuk v Blais [1949] AC 386 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351, 352

Yasseen v Persaud (1977) Court of Appeal, Guyana, [Carilaw GY 1977 CA 2]
Civ App No 20 of 1975 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
Yearwood v Trinidad and Tobago Electricity Commission (1992) High Court,
Trinidad and Tobago, No 346 of 1986 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Ying v Richards (1972) Court of Appeal, Jamaica, [Carilaw JM 1972 CA 29]
Civ App No 80 of 1971 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Young v Black (2003) Court of Appeal, Jamaica, Civ App No 106/2001 (unreported)
[Carilaw JM 2003 CA 55] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370, 383
Young v Box and Co Ltd [1951] 1 TLR 789 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310

Zdasiuk v Lucas (1987) 58 OR (2d) 443 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396

Zepherin v Gros Islet Village Council (1978) 26 WIR 561 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
 TABLE OF STATUTES

Accident Compensation (Reform) Act, s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246

Cap 193A (Barbados) . . . . . . . . . . . . . . . . . . . 387–90 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248, 250
Administration of Justice Act s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
1982 (UK) s 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
s 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 s 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
Animals Act 1976 (Cayman Islands) s 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
s 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215 Defamation Act, Cap 6:03 (Guyana)
Animals Act 1971 (UK) . . . . . . . . . . . . . . . . . . 196, 201 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Animals (Civil Liability) Act 1980, s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
Cap 194A (Barbados) s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197, 206 s 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240
s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 s 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265, 271
s 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265, 271
Canada Shipping Act, RSC 1906, c 113
Defamation Act (Jamaica)
s 342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Civil Law of British Guiana
s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
Ordinance (Rev Laws 1953),
s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240
Cap 2 (Guyana) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Coal Mines Act 1911 (UK)
s 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275
s 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
Sched . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271
Coinage Offences Act, Ch 11:15
Defamation Act 1952 (UK)
(Trinidad and Tobago)
s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
s 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240
Common Law Procedure Act
s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
1852 (UK) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Dogs (injury to Persons, Cattle and Poultry)
Compensation for Injuries Act, Ch 8:05
Act, Cap 238 (BVI)
(Trinidad and Tobago) . . . . . . . . . . . . . . . . . . 386–90
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196, 206
Constabulary Force Act (Jamaica)
Dogs (Liability for Injuries by)
s 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Act (Jamaica)
s 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35–6, 58–9
s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205–12
s 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Constabulary Force Law, Cap 72 (1953 edn) Education Act, Cap 41 (Barbados)
(Jamaica) s 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
s 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
s 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Factories Act, Cap 347 (Barbados)
Constabulary Law (Law 8 of 1867) s 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
(Jamaica) s 10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 146–50, 151–3
s 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Factories Act, Cap 296 (Belize) . . . . . . . . . . . . . . . 146
Contributory Negligence Act, Cap 195 Factories Act, Cap 118 (Grenada) . . . . . . . . . . . . 146
(Barbados) Factories Act, Cap 95:02 (Guyana) . . . . . . . . . . . 146
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363 Factories Act, Cap 339 (St Kitts/Nevis) . . . . . 146
Contributory Negligence Act, Ch 75 Factories Act, Cap 335 (St Vincent) . . . . . . . . . . 146
(The Bahamas) Factories Act 1937 (UK)
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363 s 14(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Criminal Law Act, Ch 10:04 Factories Law, Cap 124 (Jamaica) . . . . . . . . . . . . 153
(Trinidad and Tobago) Firearms Act, Ch 213 (The Bahamas) . . . . . . . . . 30
s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Gambling Ordinance, Ch 4, No 20
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 (Trinidad and Tobago)
s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 s 7(1)(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Criminal Law Act 1967 (UK) . . . . . . . . . . . . . . . . . . 26 s 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Dangerous Drugs Act (Jamaica) Highways Act, Cap 289 (Barbados)
s 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 s 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Declaratory Act 1799 (The Bahamas) . . . . . . . . . . 8
Defamation Act, Cap 199 (Barbados) Interpretation Act, (Jamaica)
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 s 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
xlviii Commonwealth Caribbean Tort Law

Labour Relations and Industrial Disputes Libel and Slander Act, Cap 44
Act 1975 (Jamaica) . . . . . . . . . . . . . . . . . . . . . . . . . . 325 (St Kitts/Nevis)
Law of Libel Amendment Act 1888 (UK) s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Law Reform (Contributory Negligence)
Main Roads Act, (Jamaica)
Act (Jamaica)
s 25(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
s 27(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Law Reform (Contributory Negligence) Act
s 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
1915 (UK)
s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364 Occupiers’ Liability Act 1957 (UK) . . . . . . . . . . 126
Law Reform (Miscellaneous Provisions) Act, Occupiers’ Liability Act, Cap 208
Cap 205 (Barbados) (Barbados)
s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Law Reform (Miscellaneous Provisions) Act, s 3(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Cap 6:02 (Guyana) s 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368 s 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126, 128
s 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397 s 4(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
Law Reform (Miscellaneous Provisions) Act s 4(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
(Jamaica) s 4(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397 s 4(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Law Reform (Miscellaneous Provisions) Occupiers’ Liability Act (Jamaica)
Ordinance, Cap 4(Guyana) s 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364 s 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364, 367 s 3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
Libel and Defamation Act, Cap 169 s 3(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
(Belize) s 3(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 s 3(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241 s 3(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 s 3(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Libel and Defamation Act, Ch 11:16
Parishes Water Supply Act (Jamaica) . . . . . . . . . 85
(Trinidad and Tobago)
Police Act, Cap 187 (Antigua)
s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
s 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
Police Act, Cap 167 (Barbados)
s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223, 224
s 20(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
s 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
Police Act, Cap 138 (Belize)
Libel and Slander Act, Cap 248
s 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(Antigua and Barbuda)
s 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
Police Act, Cap 244 (Grenada)
s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
s 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Libel and Slander Act, Cap 42 (BVI)
s 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
Police Act, Cap 16:01 (Guyana)
s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
s 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Libel and Slander Act, Cap 7:04
Police Act, Cap 167 (Montserrat)
(Dominica)
s 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
Police Ordinance, Ch 11, No 1
s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
(Trinidad and Tobago)
Libel and Slander Act, Cap 171
s 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
(Grenada)
s 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
s 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 34
s 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Police Service Act, Ch. 15:01
Libel and Slander Act (Jamaica)
(Trinidad and Tobago)
s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
s 36(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
Prevention of Cruelty to Children Act 1904
s 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
(Barbados)
s 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Libel and Slander Act, Cap 89
s 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(St Vincent and The Grenadines)
Prisons Act, Cap 168 (Barbados) . . . . . . . . . . . . . . 64
s 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
s 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241 Road Traffic Act, Ch 220 (The Bahamas) . . . . . 30
 Table of Statutes xlix

Slander of Women Act 1891 (UK) . . . . . . . . . . . . 223 Supreme Court Act, Cap 28 (Dominica)
Summary Courts Act, Ch 4:20 s 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(Trinidad and Tobago) Supreme Court of Judicature Act,
s 36(1)(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Cap 117A (Barbados)
s 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 s 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
s 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32 s 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
s 106 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Supreme Court of Judicature Act 1962,
Summary Courts Ordinance, Ch 3, Ch 4:01 (Trinidad and Tobago)
No 4 (Trinidad and Tobago) s 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
s 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31, 32, 34 s 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363
Summary Jurisdiction Act, Cap 80 Survival of Actions Act Ch 79
(Antigua) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 (The Bahamas)
Summary Jurisdiction (Procedure) Act, s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390
Cap 10:02 (Guyana) Towns and Communities Act (Jamaica)
s 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 s 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Summary Offences Ordinance, Ch 4, No 17 Trade Marks Act, Ch 82: 81
s 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 (Trinidad and Tobago) . . . . . . . . . . . . . . . . . . . . . . 290
s 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Trade Marks Ordinance, 1955
s 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 (Trinidad and Tobago) . . . . . . . . . . . . . . . . . . . . . . 290
Supplemental Police Act, Ch 15:02 Trespass Act (Jamaica)
(Trinidad and Tobago) s 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
s 14(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 s 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
Supreme Court Act, Cap 81 (Antigua) . . . . . . . . . 8 s 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
 CHAPTER 1

INTRODUCTION

DEFINITION

A tort may be defined broadly as a civil wrong involving a breach of duty fixed by the
law, such duty being owed to persons generally and its breach being redressable
primarily by an action for damages.
The essential aim of the law of torts is to compensate persons harmed by the
wrongful conduct of others, and the substantive law of torts contains those principles
which have been developed to determine when the law will and when it will not
grant redress for damage suffered. Such damage may take any of several different
forms, such as physical injury to persons; physical damage to property; injury to
reputation; and damage to economic interests.
Monetary damages is the usual remedy for a tort. The other important remedy is
the injunction, which is a court order forbidding the defendant from doing or continu-
ing to do a wrongful act. Whether the plaintiff is claiming damages or an injunction,
he must first prove that the defendant has committed a recognised tort, for the law of
torts does not cover every type of harm caused by one person to another. The mere
fact that D’s act has caused harm to P does not in itself give P a right to sue D; P must
go further and show that D’s act was of a type which the law regards as tortious.

TORT DISTINGUISHED FROM OTHER LEGAL CONCEPTS

Tort and crime

The main purpose of the criminal law is to protect the interest of the public at large by
punishing those found guilty of crimes – generally by means of imprisonment or
fines, and it is those types of conduct which are most detrimental to society and to
the public welfare that are treated as criminal. A conviction for a crime is obtained by
means of a criminal prosecution, which is usually instituted by the state through the
agency of the police or at the discretion of the Director of Public Prosecutions. A tort,
on the other hand, is a purely civil wrong which gives rise to civil proceedings,
the purpose of such proceedings being primarily not to punish wrongdoers for the
protection of the public at large, but to give the individual plaintiff compensation for
the damage which he has suffered as a result of the defendant’s wrongful conduct.
Although it is not disputed that the basic function of the law of torts is to compen-
sate plaintiffs, there is a school of thought which points to what may be called the
‘deterrent’ aspect of tort law. The essence of this view is that the possibility of liability
in tort may have the effect of inducing persons to modify their behaviour so as to
avoid harming others; it is suggested that tort law ‘teaches people that wrongful acts
do not pay and, as a consequence, people will act more carefully’.1 Protagonists of
this view may mention, for example, the deterrent effect of the libel laws which are

1 McKendrick, LLB Tort Textbook, 5th edn, 1993, Sydney: HLT, p 2.

2 Commonwealth Caribbean Tort Law

designed to curb the power of newspapers to destroy the reputations of individuals

by publishing defamatory matter.
Even more significant, according to this school of thought, has been the expansion
of the tort of negligence, which has encouraged the governing bodies of professionals,
such as the accounting profession, to produce codes of practice which guide their
members as to the standard of care expected of them in the interest of the public.
Lastly, it is pointed out that the court has power in certain very limited circumstances
to award ‘exemplary’ or ‘punitive’ damages against a tortfeasor.
However, the ‘deterrent’ theory has two main weaknesses. In the first place, the
general principle of the law of negligence that a person has a duty ‘to take reasonable
care’ is too vague to have any realistic impact on most persons’ standard of behaviour.
Secondly, the deterrent theory fails to take into account that, in practice, tort damages
will most often be paid by the tortfeasor’s insurers on the terms of his liability insur-
ance policy. This significantly reduces the deterrent effect on the tortfeasor, because
he passes the bill on to the insurance company.
Although there are fundamental differences between criminal and tortious liabil-
ity, it is significant that some torts, particularly trespass, have strong historical con-
nections with the criminal law, and that the same act may be both a tort and a crime.
For example, assault, battery and false imprisonment are both crimes and torts, being
derived from the ancient writ of trespass, whereby ‘the defendant is not only accused
of a breach of the King’s peace, but, if he fails to appear to the writ, he will be
outlawed, and, if he is found guilty, he will be punished by fine and imprisonment’.2
Because of this common historical origin, today the ingredients of the torts are virtu-
ally identical to those of the crimes.
There are, in addition, several examples of conduct which may be both criminal
and tortious. For instance, if A steals B’s bicycle, he will be guilty of the crime of theft
(or larceny); at the same time, A will be liable to B for the tort of conversion. Again, if
A wilfully damages B’s goods, he is liable for the crime of malicious damage to
property and for the tort of trespass to chattels.
The effect in such cases is that the civil and criminal remedies are not alternative
but concurrent, each being independent of the other. The wrongdoer may be pun-
ished by imprisonment or fine, and he may also be compelled in a civil action for tort
to pay damages to the injured person by way of compensation. There is, however, a
principle, known as the rule in Smith v Selwyn,3 according to which, if the wrongful act
is a felony, no action in tort can be brought against the defendant until he has been
prosecuted for the felony, or a reasonable excuse has been shown for his not having
been prosecuted.4

2 Fifoot, History and Sources of the Common Law, 1949, London: Stevens, p 45.
3 [1914] 3 KB 98. Under this rule, the victim of an aggravated assault, for example, cannot sue his
assailant in tort unless and until the latter has been prosecuted.
4 In Hibbert v AG (1988) 25 JLR 429 (Supreme Court, Jamaica), Gordon J held that the production of a
letter from the Director of Public Prosecutions, indicating that no criminal prosecution for assault
was advised, satisfied the rule in Smith v Selwyn.
In Buckle v Dunkley (1966) Court of Appeal, Jamaica, Civ App No 29 of 1965 (unreported) [ Carilaw
JM 1966 CA 23], it was held that if the victim of an alleged felony reports the facts to the police and
the latter decide not to prosecute, the victim is entitled to go ahead with his civil action, since he
will have taken all the steps that the law requires him to take to procure the prosecution of the
alleged offender.
In Koonoo v Ramoutar (1984) High Court, Trinidad and Tobago, No 3237 of 1978 (unreported),
Collymore J held that the effect of the rule in Smith v Selwyn is not that the bringing of a criminal
 Chapter 1: Introduction 3

Lastly, an important distinction between tort and crime is that, to succeed in a

criminal trial, the prosecution must prove its case ‘beyond reasonable doubt’ whereas,
in an action in tort, the plaintiff is merely required to establish his claim ‘on a balance
of probabilities’. It is thus easier for a plaintiff to succeed in tort than for the prosecu-
tion to secure a conviction in crime. One effect of this difference between the standards
of proof is that, where the alleged tortfeasor has been acquitted in criminal proceed-
ings, such acquittal is not conclusive evidence of lack of fault in the civil action, where
a lesser degree of proof of wrongdoing is required.

Tort and contract

Tort and contract are both areas of the civil law and there is a much closer relationship
between them than there is between tort and crime. The precise relationship between
tort and contract is a matter of debate and there is a school of thought which argues
that tort and contract should be subsumed under a ‘law of obligations’.
The traditional distinction made between tort and contract is that in tort the duties
of the parties are primarily fixed by law, whereas in contract they are fixed by the
parties themselves. In other words, contractual duties arise from agreement between
the parties, whilst tortious duties are created by operation of law independently of the
consent of the parties.
This distinction may be misleading, however, for, in the first place, although it is
true that duties in contract are created by agreement between the parties themselves,
nevertheless parties to a contract are also subjected to those underlying rules of
contract which the law imposes upon them. Secondly, the duties owed by two con-
tracting parties towards one another are frequently not duties which they expressly
agreed upon but obligations which the law implies, such as the terms implied under
the sale of goods and hire purchase legislation.5 Conversely, some duties in tort can be
varied by agreement, for example, the duties owed by an occupier of premises to his
lawful visitors; and liability in tort can be excluded altogether by consent (under the
doctrine of volenti non fit injuria).
Sometimes, a wrongful act may be both a tort and a breach of contract. For example:
(a) if A has contracted to transport B’s goods, and due to A’s negligence the goods are
lost or damaged, A will be liable to B both for breach of the contract of carriage
and for the tort of negligence;

prosecution is a condition precedent to the plaintiff’s civil cause of action, but that his cause of action
will be stayed to allow the criminal prosecution to take precedence. Accordingly, the limitation
period for the civil action begins to run from the time of the wrongful act.
In any event, it appears that the rule in Smith v Selwyn has been discarded in England and similarly
may no longer be good law in Jamaica. In Bank of Jamaica v Dextra Bank and Trust Co Ltd (1994) 31
JLR 361 (per Carey JA) and Panton v Financial Institutions Services Ltd (2003) Privy Council Appeal
No 93 of 2002 (per Sir Kenneth Keith) it was stated that there is no longer any rule in England or in
Jamaica that civil proceedings must be stayed pending the conclusion of criminal proceedings
based on the same facts, but rather it was a matter of the court, in the exercise of its inherent
jurisdiction to control its own proceedings, balancing justice between the parties and taking
account of all relevant factors.
5 For examples in the Commonwealth Caribbean, see Sale of Goods Act, Cap 371, Hire Purchase Act
1987 (Antigua); Sale of Goods Act, Ch 310, Hire Purchase Act, Ch 342 (The Bahamas); Sale of
Goods Act, Cap 317, Hire Purchase Act, Cap 328 (Barbados); Sale of Goods Act, Cap 214, Hire
Purchase Act, Cap 220 (Belize); Sale of Goods Act, Cap 349, Hire Purchase Act 1874 (Jamaica); Sale
of Goods Act, Ch 82:30, Hire Purchase Act, Ch 82:33 (Trinidad and Tobago).
4 Commonwealth Caribbean Tort Law

(b) a dentist who negligently causes injury in the course of extracting a tooth may be
liable to the patient both for breach of an implied term in his contract with the
patient to take reasonable care, and for the tort of negligence.
In addition to those cases where the same set of facts can give rise to claims in both
contract and tort (as in the cases of the carrier and the dentist), there are areas where
there is an overlap between the principles of tort and contract, and it is here that the
argument that contract and tort are part of one law of obligations is at its most
persuasive. Such areas include fraudulent misrepresentation in contract, which is
the alter ego of the tort of deceit; negligent misrepresentation, which was developed in
the law of tort but applies equally to contract law; remoteness of damage, which is a
concept common to both contract and tort, although the concept is not applied in
exactly the same way in each branch of the law; and agency, which is recognised in
both, though again is not applied in quite the same way.
One of the most significant distinctions between tort and contract law concerns
the aim of an award of damages. Tort law is designed to protect the status quo, in that
the plaintiff’s position should not be made worse by the defendant’s acts. This aim is
expressed in terms of the quantum of damages, viz, that the plaintiff should be
restored, as far as possible, to the position he would have been in had the tort not been
committed. In contract, on the other hand, the defendant is liable to put the plaintiff
into the position he would have been in had the contract been carried out; in other
words, damages are intended to fulfil the plaintiff’s expectation of benefit from the
contract.

DAMNUM SINE INJURIA

This means literally ‘damage without legal injury’. It is a basic principle that damage
is not actionable in tort unless such damage amounts to legal injury. Thus, if the
defendant’s act is in itself lawful, he cannot be sued in tort, however much damage
the plaintiff may have suffered as a result of it.
It is for the courts themselves to decide what is and what is not legal injury. Social
and commercial life would become intolerable if every kind of harm were treated as a
legally redressable injury; for example, business competition which drives a trader
out of business is not actionable in tort,6 since the well-being of society depends upon
the right of every person to compete in business. There are many kinds of harm
which, for various reasons, fall outside the scope of the law of torts. In some cases, the
harm complained of may be too trivial (de minimis non curat lex), or too indefinite
or incapable of proof; in others, policy may require that the court should balance
the respective interests of the plaintiff and the defendant, and that the defendant’s
interest should prevail;7 in others, harm may be caused by the defendant in the exer-
cise of his own rights, or where he does damage to the plaintiff in order to prevent
some greater evil befalling himself.8 In other cases, the harm caused may be protected
by some other branch of the law, such as where a statute or the criminal law provides
a remedy, or where the harm consists merely of a breach of contract or breach of trust.

6 Unless it involves the deception of the public (ie, in passing off: see below, Chapter 11).
7 Eg, in the tort of nuisance. See below, Chapter 7.
8 The defence of necessity.
 Chapter 1: Introduction 5

INJURIA SINE DAMNO

This means literally ‘legal injury without damage’. Normally, in order to succeed in
tort, the plaintiff must prove that he has suffered actual damage (for example, injury
to his person or property or reputation) as well as legal injury. There are some torts,
however, where actual damage need not be proved and it is sufficient to show an
infringement of the plaintiff’s legal rights (that is, legal injury). Torts which are action-
able without proof of damage are known as ‘torts actionable per se’: examples are
trespass, which is actionable although no harm at all is caused to the land, person or
chattel, as the case may be, and libel (that is, defamation in written form), which is
also actionable although no actual damage9 is proved.

THE FORMS OF ACTION

In order to understand the categories, boundaries and definitions of modern torts, it is

necessary to look at their historical origins. Torts were developed in England from
about the 13th century onwards in the King’s common law courts, in which every
action had to be commenced by the issue of a royal writ. Each writ was in a set form,
known as a ‘form of action’. There was a limited number of recognised forms of action,
and each plaintiff had the difficult task of fitting his claim into an existing form: if his
claim did not fit, he had no remedy. This system of writs and forms of action domi-
nated the law of torts and, indeed, the whole common law system, until the forms of
action were eventually abolished by the Common Law Procedure Act in 1852. Before
the abolition of the forms of action, the question in every tort claim was not, ‘has the
defendant broken some duty owed to the plaintiff?’ but, ‘has the plaintiff any form of
action against the defendant and, if so, what form?’
The main forms of action in tort were: (a) the writ of trespass; and (b) the writ of
trespass ‘on the case’, or, simply, ‘the action on the case’. The writ of trespass lay only
for forcible, direct and immediate injury to land, persons or chattels, for example,
where the defendant throws a stone at the plaintiff, striking him as he walks along the
street. The action on the case, on the other hand, covered all injuries that were indirect
and consequential or non-forcible, for example, where the defendant negligently
leaves a heap of stones in the street over which the plaintiff stumbles and is injured
(indirect injury), or where the defendant interferes with the plaintiff’s enjoyment of
his land (non-forcible injury).
Before 1852, it was vital to choose the correct form of action – ‘trespass’ for direct,
forcible injury; ‘case’ for indirect or non-forcible injury – and, if the plaintiff made the
wrong choice, his claim failed. Today, all that the plaintiff needs to do is to set out the
relevant facts in his statement of claim. Nevertheless, the distinction between direct
and consequential injury still remains. Thus, the modern tort of trespass is concerned
with direct injuries, whilst the tort of nuisance (derived from the action on the case)
covers indirect injuries. It is no longer necessary for the plaintiff to plead any particu-
lar form of action, but he must nevertheless show that some recognised tort has been
committed, and he can do this only by showing that the defendant’s conduct comes
within the definition of trespass, nuisance, negligence etc, as the case may be. The

9 As to the meaning of ‘actual damage’ in this context, see below, pp 218, 219 et seq.
6 Commonwealth Caribbean Tort Law

boundaries and definitions of modern torts thus depend to a large extent on the
boundaries of the old forms of action; hence Maitland’s celebrated remark: ‘The forms
of action we have buried, but they still rule us from their graves.’10

INTENTION AND NEGLIGENCE

In the majority of torts, it must be shown that the defendant’s invasion of the plain-
tiff’s rights was either intentional or negligent. An act is intentional when it is done with
full advertence to its consequences and a desire to produce them. It is of course impossible to
prove what went on in the defendant’s mind, for ‘the Devil himself knoweth not the
thought of man’.11 However, the court may presume the defendant’s intention by
looking at what he said or did and at all the surrounding circumstances. Further, it is a
well-known principle of law that ‘a party must be considered to intend that which is
the necessary or natural consequence of that which he does’.12 Thus, for example, if
D fires a shot at P’s dog, intending to frighten it, and the bullet in fact kills the dog,
D cannot escape liability by pleading that he only intended to frighten the animal, for
it must be presumed that the natural consequence of shooting at the dog will be to
kill it.
Negligence differs from intention, in that intention denotes a desire for the con-
sequences of the act, whereas if the defendant is negligent, he does not desire the con-
sequences of his act but is indifferent or careless as to the consequences. Negligence in the
law of torts is used in two senses:
(a) to mean the independent tort of negligence; and
(b) to mean a mode of committing certain other torts – such as nuisance.
The tort of negligence is by far the most economically important of all torts, and its
ramifications are seen in many facets of modern society. Carelessness is the main
ingredient of this tort, but the concepts of ‘foreseeability’, ‘proximity’ and ‘public
policy’ are also necessary elements.

STRICT LIABILITY

In some torts, the defendant is liable even though the damage to the plaintiff occurred
without intention or negligence on the defendant’s part. These are usually called torts
of strict liability, the most important examples being liability for dangerous animals
and liability under the rule in Rylands v Fletcher.13 Thus, for instance, if D keeps a wild
animal, such as an elephant or a lion, he will be liable for any damage caused by the
animal, even though the damage was unintended by him and he was in no way
careless in allowing it to happen.

10 Maitland, Forms of Action at Common Law, 2nd edn, 1936 (repr 1962), Cambridge: CUP, p 296.
11 Year Book, Pasch 17 Edw 4 fol 2, pl 2, per Brian CJ.
12 R v Harvey (1823) 107 ER 379, p 383.
13 (1866) LR 1 Ex 265.
 Chapter 1: Introduction 7

MOTIVE AND MALICE

‘Motive’ means the reason behind a person’s doing of a particular act. Motive is
generally irrelevant in the law of torts. Thus, if the defendant’s act is unlawful, the fact
that he had a good motive for doing it will not exonerate him. For example, if D locks
his adult relative in her room to prevent her from going out with a man whom
D believes to be of bad character, D will be liable to her for false imprisonment, and
the fact that D had a good motive will not excuse him. Conversely, if the defendant’s
act is lawful, the fact that he had a bad motive for doing it will not make him liable.
Thus, where D was annoyed because the plaintiff corporation had refused to purchase
his land at an inflated price in connection with its scheme for supplying water to a
town and, by way of spite, abstracted water which flowed in undefined channels
under his land, thereby preventing the water from reaching the plaintiff’s adjoining
reservoir, he was not liable to the plaintiff, since he had committed no tort. Abstract-
ing the water was a lawful use of his own land, and the fact that his motives for doing
so were malicious was irrelevant.14
There are some torts, however, in which malice is relevant, such as malicious pros-
ecution, nuisance and defamation. Depending upon the context, malice may mean:
(a) ‘spite’ or ‘ill-will’;
(b) ‘wrongful or improper motive’, that is, a motive which the law does not recognise
as legitimate; or
(c) the intentional doing of a wrongful act without just cause or excuse.
In the first sense, the presence of malice in the defendant’s conduct is a factor to be
taken into account in determining liability in nuisance, whilst, in the second sense,
malice may prevent him from relying on certain legal defences, notably fair comment
and qualified privilege in defamation actions. Malice in this sense is also an essential
ingredient of the tort of malicious prosecution. Malice in the third sense, which means
simply ‘intentional conduct’, is a purely technical form of words used in pleadings.

RECEPTION OF THE LAW OF TORTS IN THE CARIBBEAN

The law of torts has been received into Commonwealth Caribbean jurisdictions as
part of the common law of England. The method of reception has varied from one
territory to another, principally according to whether the particular territory was
subject to settlement, or to conquest or cession.15 In the case of settled colonies, the
British subjects who settled there were deemed to have taken English law with them
and there was no need for statutory provisions expressly receiving the common law
into those territories. In the case of conquered or ceded colonies, on the other hand,
the law in force at the time of cession or conquest remained in force until altered by or
under the authority of the Sovereign. In the latter class of territory, English law would
not generally apply without statutory reception provisions.16

14 Bradford Corp v Pickles [1895] AC 587.

15 See Roberts-Wray, Commonwealth and Colonial Law, 1966, London: Stevens, pp 539–43;
Patchett, ‘Reception of Laws in the West Indies’ (1972) JLJ 17, p 55; Wylie, Land Law of Trinidad
and Tobago, 1981, Port of Spain: Government of Trinidad and Tobago, p 5.
16 Ibid, Roberts-Wray, pp 540–41.
8 Commonwealth Caribbean Tort Law

Although the distinction between settled colonies on the one hand and conquered
and ceded colonies on the other is a useful guide to the method of reception of English
law, it has rightly been pointed out that ‘the story of the reception of English law in
the various parts of the Caribbean is a tangled one’17 and it is by no means easy to
identify the precise method of reception in all the islands. Fortunately, this exercise
may be left to the legal historians, as it is clear that, in practice, all jurisdictions in the
Commonwealth Caribbean today apply the common law of England, including the
law of torts, as modified by local statutory provisions. It will be sufficient, therefore, to
give a few examples of methods of reception in the region.18

Antigua

There is no general statutory reception provision. The original settlers are deemed to
have taken with them English law in force in 1632. (The position in St Kitts-Nevis-
Anguilla, Montserrat and The Virgin Islands is similar.) The Summary Jurisdiction
Act, Cap 80 and the Supreme Court Act, Cap 81, by their terms assume that the rules
of common law and equity apply.

The Bahamas

The basic law in force is laid down in the Declaratory Act, passed in 1799, the effect of
which is that the common law in force in England in 1799 is in force in the islands so
far as it had not been altered by ‘enumerated’ statutes of the United Kingdom. The
Turks and Caicos Islands are subject to the same provision.

Barbados

The basic substantive law of England was brought to Barbados by the settlers in 1627.
Now, s 31 of the Supreme Court of Judicature Act, Cap 117 provides that, ‘in every
civil cause or matter commenced in the High Court, law and equity shall be adminis-
tered by the High Court’; and s 37 provides that ‘the court shall give effect to all legal
claims and demands and all estates, titles, rights, duties, obligations and liabilities
existing by the common law’.

Dominica

Dominica was originally acquired by conquest, not by settlement, and so English law
did not take effect without express application. A Proclamation dated 8 October 1763,
after stating that the Governors of certain colonies (including Dominica, Grenada,
St Vincent and Tobago) were directed to call Assemblies with power to make laws,
continued: ‘. . . in the meantime, and until such Assemblies can be called . . . all
persons inhabiting in or resorting to our said colonies, may confide in our Royal
Protection, for the enjoyment of the benefit of the law of our Realm of England.’

17 Ibid, Wylie, p 5.
18 Op cit, Wylie, fn 15, pp 843–65.
 Chapter 1: Introduction 9

Section 27 of the Supreme Court Act, Cap 28 provides that s 24 of the Judicature Act
1873 (England and Wales), which lays down that law and equity are to be concurrently
administered in the Supreme Court, ‘shall extend to, and be in force in the Colony’.

Grenada

Grenada was a colony acquired by cession under the Treaty of Paris 1763. In 1779,
it passed again into French hands, but it was finally restored to Britain, with the
Grenadines, by the Treaty of Versailles in 1783. A Proclamation of 1784 decreed that,
by the restitution in 1783 of the islands ‘to our Crown, all our subjects inhabiting the
same became entitled to the enjoyment of the benefits of the laws of England . . . that
such laws accordingly became in force and all other laws . . . ceased and determined’.

Guyana

When this territory was acquired by cession from Holland in 1814 and became ‘British
Guiana’, Roman-Dutch law was in force. By the Civil Law of British Guiana Ordin-
ance, Rev Laws, 1953, Cap 2, Roman-Dutch law ceased to apply, except as otherwise
provided by the Ordinance, and the common law of the colony was declared to be the
common law of England as at 1 January 1917, including the doctrines of equity, as
then administered in the English courts.

Jamaica

Jamaica was acquired by conquest, not by settlement. By s 37 of the Interpretation Act,

Cap 165, ‘all such laws and statutes of England as were, prior to the commencement
of 1 Geo II Cap 1 [that is, prior to 1727], introduced, used, accepted or received, as
laws of this Island, shall continue to be laws in the Island, save in so far as any such
laws or statutes have been or may be repealed or amended by a Law of the Island’.

St Lucia

The basis of the civil law of St Lucia is French law. The Custom of Paris was applied to
St Lucia in 1681 and French Ordinances also extended to the island. Since 1803, when
St Lucia was captured by the British, property rights under the existing laws were
preserved but, subsequently, substantial importation of English law took place. The
civil code, based on French law, has been assimilated to the law of England with
respect to, inter alia, contracts, torts and agency.

Trinidad and Tobago

At the time of Trinidad’s cession by Spain to Britain in 1797, Spanish law governed the
island, but thereafter English law was gradually substituted. Section 12 of the
Supreme Court of Judicature Act 1962, Ch 4:01, now provides that ‘the common law,
doctrines of equity, and statutes of general application of the Parliament of the United
Kingdom that were in force in England [on 1 March 1848] shall be deemed to have
been enacted and to have been in force in Trinidad as from that date and in Tobago as
from 1 January 1889’.
 CHAPTER 2

TRESPASS TO THE PERSON

INTRODUCTION

Trespass to the person comprises three torts:

(a) assault;
(b) battery; and
(c) false imprisonment.
These torts, which are derived from the ancient writ of trespass, protect persons from
interference with their personal liberty and are actionable per se, that is, without proof
of damage. In the words of Lord Reid:
English law goes to great lengths to protect a person of full age and capacity from
interference with his personal liberty. We have too often seen freedom disappear in
other countries, not only by coups d’état, but by gradual erosion; and often it is the first
step that counts. So it would be unwise to make even minor concessions.1

In the Commonwealth Caribbean, civil actions for assault and battery are compara-
tively rare (except as adjuncts to actions for false imprisonment), presumably because
litigants prefer to seek redress in the criminal rather than the civil courts. On the other
hand, actions for false imprisonment are common, and a considerable body of case
law has accumulated around the tort.

Assault and battery distinguished

Battery is the intentional application of force to another person. Assault is the

intentional putting of another person in fear of an imminent battery.
In popular speech, the word ‘assault’ connotes the application of physical force to
the person but, in the law of torts, the actual application of force to the person is not an
assault but a battery, and an assault means any act which puts the plaintiff in fear that
a battery is about to be committed against him. Thus, to slap the plaintiff on the face
is a battery, but to approach him menacingly with a clenched fist is assault; to throw an
object at him is an assault so long as the object is still in the air, but if the object strikes
him there is a battery. Very often, the threat of violence will be immediately followed
by the actual application of violence to the plaintiff’s person, so that the defendant will
have committed both an assault and a battery, for example, where the defendant first
points a loaded gun at the plaintiff and then fires a shot which hits him.
Although the distinction between assault and battery in the law of torts is clearly
established, it has to be admitted that, in Caribbean and other jurisdictions, the courts
have tended to blur the distinction and to describe as an ‘assault’ conduct which in
strict law amounts to battery. In Williams v AG,2 for instance, the plaintiff was leaving
the Montego Bay police station with a friend who had shortly before been released on

1 S v McC [1972] AC 24, p 43.

2 [1966] Gleaner LR 51 (Court of Appeal, Jamaica).
 Chapter 2: Trespass to the Person 11

bail, when the station guard, in hurrying them out of the station, used obscene
and insulting language. The plaintiff remonstrated with the officer, whereupon the
defendant constable held the plaintiff, pushed him against a wall so that his head and
elbow struck against it, hit him twice in the stomach and pushed him out of the
station. Such conduct clearly amounted to battery by the constable, but the Jamaican
Court of Appeal treated the plaintiff’s action as one for ‘assault’ and increased the
magistrate’s award of damages for the ‘high-handed and unwarranted attack’.
The tendency to describe a physical attack as an ‘assault’ rather than as a battery
may be due to the fact that, in criminal law, the offences of common assault and
aggravated assault connote the application of physical violence to the person. As
James J pointed out in Fagan v Metropolitan Police Comr,3 ‘for practical purposes today,
“assault” is generally synonymous with the term “battery” and is a term used to
mean the actual intended use of unlawful force to another person without his
consent’.

ASSAULT

An assault is a direct threat made by the defendant to the plaintiff, the effect of which
is to put the plaintiff in reasonable fear or apprehension of immediate physical contact
with his person. Thus, in Stephens v Myers,4 where, at a parish council meeting, an
altercation took place between the plaintiff and the defendant, and the defendant
approached the plaintiff menacingly with a clenched fist but his blow was intercepted
by a third party, the defendant was liable for assault. And in the Jamaican case of Hull
v Ellis,5 the defendant was held liable for assault when, holding a revolver in her
hand, she accosted the plaintiff as he was riding his donkey along a public road and
asked him where he had got the piece of wood he was carrying.
In assault, the act of the defendant must have been such that a reasonable man
might fear that violence was about to be applied to him. The test is objective, not
subjective. Thus, if a person of ordinary courage would not have been afraid, the fact
that the particular plaintiff was afraid will not make the defendant liable. Conversely,
the fact that the plaintiff was exceptionally brave and was not afraid will not prevent
him from succeeding in his claim if a person of ordinary courage would have been
afraid.6
Although it is clear that pointing a loaded gun at the plaintiff is an assault,7 it is
not clear whether there will be an assault where the gun is unloaded or a toy gun and
the plaintiff mistakenly believes the gun to be real and loaded. One view is that there
will be no assault because there would be no means of carrying the threat of shooting
into effect.8 Probably the better view, however, is that there would be an assault,9 on
the ground that an assault ‘involves reasonable apprehension of impact of something

3 [1968] 3 All ER 442, p 445.

4 (1830) 172 ER 735. Followed in Dyer v Phillip and AG (2003) High Court, Trinidad and Tobago,
No 247 of 1995 (unreported) [Carilaw TT 2003 HC 50].
5 (1966) Court of Appeal, Jamaica, Civ App No 36 of 1965 (unreported) [Carilaw JM 1966 CA 244].
6 Fleming, The Law of Torts, 8th edn, 1993, Sydney: LBC Information Services.
7 Mensah v R (1945) 11 WACA 2 (PC).
8 Stephens v Myers (1830) 172 ER 735, per Tindal J; Blake v Barnard (1840) 173 ER 985, per Lord
Abinger CB.
9 R v St George (1840) 173 ER 921, per Parke B.
12 Commonwealth Caribbean Tort Law

on one’s body, and that is exactly what happens when a firearm is pointed by an
aggressor’.10

Words

Whether words alone can amount to assault is debatable. Holroyd J in an old case had
said that ‘No words, or singing are equivalent to an assault’,11 but the better view is
that there will be an assault if the words are sufficient to put the plaintiff in reasonable
apprehension of a battery, as where threatening words are uttered in darkness and the
plaintiff cannot see the aggressor.12
While it is debatable whether words alone can constitute an assault, it is clear
that words may negative what would otherwise be assault. Thus, where, during a
quarrel between the plaintiff and the defendant, the latter put his hand on his sword
and said, ‘If it were not assize time, I would not take such language from you’, there
was no assault because the words had negatived the apprehension of immediate
contact caused by the placing of the defendant’s hand on his sword.13 Such a situation
must be distinguished, however, from a conditional threat, which can amount to
assault. For example, if the defendant approaches the plaintiff with the words, ‘If
you don’t give me your money, I’ll break your neck’, there would clearly be an
assault, because the situation would cause reasonable apprehension of immediate
violence.14
Since there must be apprehension of immediate contact, it is clear that threat-
ening words will not amount to assault if there is no capability of immediate
violence, for example, where threats are uttered over the telephone, or where the
defendant threatens the plaintiff as a bus is leaving the bus stop with the defendant
on board.

BATTERY

A battery has been defined as ‘a direct act of the defendant which has the effect of
causing contact with the body of the plaintiff without the latter’s consent’.15
Battery connotes an intentional act on the defendant’s part. It is not absolutely
clear whether or not a battery can be committed by negligence. The better, and more
modern, view is that trespass to the person cannot be committed negligently.16
It is not necessary that there should be any bodily contact between the defendant
and the plaintiff. It is sufficient if the defendant brings some material object into
contact with the plaintiff’s person.17 Thus, for example, it is battery to throw stones at

10 Winfield and Jolowicz, Tort, 17th edn, 2006, London: Sweet & Maxwell, p 97.
11 R v Meade and Belt (1823) 1 Law CC 184.
12 See R v Wilson [1955] 1 WLR 493; Trindade, FA (1982) 2 OJLS 211, pp 231, 232; Handford, PR
(1976) 54 Can BR 563.
13 Tuberville v Savage (1669) 1 Mod Rep 3.
14 See Read v Coker (1853) 13 CB 850.
15 Op cit, Trindade, fn 12, p 216.
16 See Letang v Cooper [1965] 1 QB 232; Wilson v Pringle [1987] QB 237.
17 Heuston and Buckley, Salmond and Heuston on the Law of Torts, 21st edn, 1996, London: Sweet &
Maxwell, p 121.
 Chapter 2: Trespass to the Person 13

the plaintiff; to spit in his face; to knock over a chair in which he is sitting;18 or to set a
dog upon him.19
It is not necessary that any physical harm should have been caused to the plaintiff.
Thus, for example, it is battery to hold a man’s arm in the process of arresting him
unlawfully,20 or to take his fingerprints without lawful justification.21 Nor, it seems, is
battery necessarily a hostile act.22 Thus, it may be battery to subject the plaintiff to
horseplay which involves physical contact, or to kiss a woman against her will.23 On
the other hand, ‘contacts conforming with accepted usages of daily life’24 are not
actionable. Thus, to jostle or push a person in a crowded bus or sports stadium will
not constitute battery, though it may be otherwise if the defendant uses violence to
force his way through in a ‘rude and inordinate manner’.25 Nor will it be battery to
touch a person in order to draw his attention to something.26

DEFENCES TO ASSAULT AND BATTERY

Defence of person or property

An assault or battery is justified if committed in reasonable defence of oneself or

another.27 What is reasonable depends on the circumstances. Two principles are clear:
(a) the battery must be committed in actual defence from attack and not by way of
retaliation after an attack;
(b) the self-defence or defence of another must be reasonably commensurate with the
attack. If P threatens D with a deadly weapon, D may defend himself with a deadly
weapon.28 On the other hand, if P merely punches D with his fist, D would be
justified in defending himself with his fists, but he would not be justified in pulling
out a gun and shooting P,29 unless, perhaps, P were a karate expert who was capable
of using his hands as deadly weapons. In Cachay v Nemeth,30 C, N and N’s wife
were present at a private party. C was acting in an irritating manner by attempt-
ing to kiss N’s wife, against the latter’s will. N struck C a karate blow to the side
of the head, breaking C’s jaw. It was held that N was entitled to act in defence
of his wife, but that he had used excessive violence and was liable in battery.

18 Scott v Wilkie (1970) 12 JLR 200 (Court of Appeal, Jamaica); ibid, Heuston and Buckley.
19 McKendrick, LLB Tort Textbook, 5th edn, Sydney: HLT, p 188.
20 See Collins v Wilcock [1984] 3 All ER 374; Merson v Cartwright (1994) Supreme Court, The
Bahamas, No 1131 of 1987 (unreported) [Carilaw BS 1994 SC 53], per Sawyer J; Lundy v Sargent
(1998) Supreme Court, The Bahamas, No 693 of 1998 (unreported) [Carilaw BS 1998 SC 74], per
Marques J.
21 See Padilla v George (1967) High Court, Trinidad and Tobago, No 2143 of 1965 (unreported)
[Carilaw TT 1967 HC 10]; Samuels v AG (1994) Supreme Court, Jamaica, No S 415 of 1992
(unreported).
22 F v West Berkshire HA [1989] 2 All ER 545, pp 563, 564, per Lord Goff.
23 Op cit, Winfield and Jolowicz, fn 10, p 91.
24 Collins v Wilcock [1984] 3 All ER 374, p 378.
25 Cole v Turner (1704) 90 ER 958.
26 Donnelly v Jackman [1970] 1 All ER 987.
27 Op cit, Heuston and Buckley, fn 17, p 128.
28 Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, p 471.
29 Cook v Beal (1697) 91 ER 1014.
30 (1972) 28 DLR (3d) 603. See, also, Lane v Holloway [1968] 1 QB 379.
14 Commonwealth Caribbean Tort Law

In a recent Trinidadian case, Budhoo v Campbell,31 Jamadar J emphasised that the onus
of proof was on the defendant to demonstrate (i) that his belief that he had to act in
self-defence was both honest and reasonable (even if mistaken) and (ii) that the action
taken by him in self-defence was reasonable (including that the force used was
reasonable) having regard to all the circumstances of the case, including the fact that
the act of self-defence was taken ‘in the heat of the moment’; and ‘the reasonableness
of the belief that a person needed to act in self-defence would depend on whether
that person reasonably thought (even if mistakenly so) that it was necessary to defend
himself against attack or the risk of imminent attack.’32 In the instant case, the evi-
dence was that the claimant approached the defendant’s place of business, a restaur-
ant and bar, uttering obscenities and threatening to kill the defendant. The defendant
drew his licensed firearm and called out to the claimant to ‘back off!’, but the claimant
continued to advance menacingly towards him. When the defendant realised that he
could retreat no further, and having caught sight of a ‘black handle object’ on the
claimant’s waist, he fired a single shot from the firearm, striking and wounding the
claimant in the leg. Jamadar J was ‘satisfied that, even if mistaken, the defendant both
honestly and reasonably believed that there in fact existed a real danger to him, in so
far as the plaintiff appeared armed, hostile and intent on attacking him in order to
cause him grievous bodily harm and even to kill him . . . Further, in my opinion the
defendant took reasonable action and used reasonable force in defending himself
from this perceived imminent attack.’33
Assault or battery is also justified if done in defence of one’s own property
(whether land or chattels)34 or property which one is defending as agent of the owner
or occupier. Again, the force used must be no more than necessary.35 Where the
battery is in defence of land, the following distinction is made: If P enters D’s land
forcibly, D may at once use reasonable force to remove him; but if P enters peaceably
and without force, then D must first request P to leave before any force will be justifi-
able. If P, after being requested to leave, resists D’s attempt to eject him, he may
himself be liable for assault and battery.

Parents’ and teachers’ authority

A parent or guardian has a right at common law to punish a child and will not be
liable for trespass to the person in so doing, provided that the amount of force or
detention used is reasonable in the circumstances.36

31 (2006) High Court, Trinidad and Tobago, No S-2355 of 2004 (unreported) [Carilaw TT 2006
HC 14].
32 See also Ashley v Chief Constable of Sussex [2008] 2 WLR 975.
33 Another ground for Jamadar J’s decision was ‘ex turpi causa non oritur actio’. In Cross v Kirby,
The Times, 5 April 2000, p 268, the English Court of Appeal had held that a claim for damages
for personal injuries, suffered as a result of an alleged assault and battery, failed on the ground
that the injury arose from the claimant’s ‘own criminal and unlawful acts in trespassing on the
defendant’s land and there assaulting and battering the defendant by hitting him with a
baseball bat’ (the defendant had responded by striking the claimant a single blow to the head,
fracturing the claimant’s skull). The ex turpi causa principle was held to be similarly applicable
in Budhoo ‘because the claimant received his injuries as a result of trespassing on the defend-
ant’s premises, uttering obscenities at the defendant and threatening to kill the defendant’.
The claimant’s action accordingly failed on this ground also.
34 Brazier, M, Street on Torts, 10th edn, London: Butterworths, p 88.
35 Collins v Renison (1754) 96 ER 830.
36 Op cit, Fleming, fn 6, p 91.
 Chapter 2: Trespass to the Person 15

Similarly, a schoolteacher having charge of a child has a right to discipline the

child by way of reasonable chastisement or confinement.37 It used to be thought that
this right arose from a delegation of authority by the child’s parent to the teacher,38 but
the modern view is that a schoolteacher has an independent right to punish pupils
for the purpose not only of training them in good behaviour, but also of maintaining
order and discipline in the school as an organisation.39
In Mayers v AG,40 K, the head teacher of a secondary school in Barbados, gave a
female pupil three lashes with a leather strap as punishment for rubbing ‘cow itch’ on a
teacher’s desk. The pupil suffered minor injuries as a result. The questions arose as to
(a) whether K had the right to administer corporal punishment; and (b) whether the
punishment was reasonable in the circumstances. Chase J held that K, as head teacher,
had the right to inflict corporal punishment both at common law and under s 4 of the
Prevention of Cruelty to Children Act 1904 and s 18 of the Education Act,41 and that
K’s decision to administer immediate punishment for the breach of discipline was
justified in the circumstances. He further held that K had used no more force than was
reasonably necessary in the circumstances, and that the minor injuries caused to the
girl’s person were accidental and unintended. K was, therefore, not liable for assault
and battery.

Consent

Where the plaintiff consents to what would otherwise amount to an assault or

battery by the defendant, the latter will have a complete defence.42 Thus, for ex-
ample, a participant in a boxing or wrestling match cannot recover damages from
his opponent for blows inflicted upon him during the bout, for he will be taken
to have consented to them.43 Nor can a footballer complain of tackles or other
bodily contact which he encounters during the normal course of the game. It is
possible, however, that a sportsman could recover damages from an opponent
who commits a deliberate ‘foul’ against him with the intention of causing actual
bodily injury:44 a fortiori, if the defendant delivers a blow quite unconnected with
the normal course of play, as where, in an off-the-ball incident, an amateur rugby
footballer struck an opponent a blow with his elbow which fractured the oppo-
nent’s jaw.45
Another example of consent is where a patient enters a hospital for a surgical
operation or a dentist’s surgery for dental treatment. Such a patient cannot sue for
battery or false imprisonment in respect of any force applied to him during the
treatment or any confinement under anaesthetic or otherwise.46 If the patient is a
minor, he may consent in law if he fully understands the nature and consequences

37 Ryan v Fildes [1938] 3 All ER 517.

38 Mansell v Griffin [1908] 1 KB 160; Cleary v Booth [1893] 1 QB 465, p 468.
39 Ramsay v Larsen (1964) 111 CLR 16.
40 (1993) High Court, Barbados, No 1231 of 1991 (unreported) [Carilaw BB 1993 HC 31].
41 Cap 41.
42 Chapman v Ellesmere [1932] 2 KB 431.
43 Wright v McLean (1956) 7 DLR (2d) 253.
44 Lewis v Brookshaw (1970) The Times, 10 April.
45 Colby v Schmidt (1986) 37 CCLT 1.
46 Unless the treatment is outside the scope of the patient’s express or implied consent.
16 Commonwealth Caribbean Tort Law

of the proposed treatment;47 otherwise, his parents may consent on his behalf to any
treatment to which a reasonable parent would consent.48
An apparent consent will be inoperative if it is induced by fraud or concealment.
Thus, there may be an actionable battery where, for example, the plaintiff permits the
defendant to touch him with a piece of metal which, unknown to him but known to
the defendant, is charged with electricity, or where a naive girl submits to indecent
contact by a doctor who deceives her into believing that his act is a necessary part of
the treatment.49

ASSESSMENT OF DAMAGES FOR ASSAULT AND BATTERY

Where the plaintiff is physically injured as a result of an assault and battery by the
defendant, damages are assessed in the same way as in cases of physical injury caused
by negligence, and the same heads of general damage, such as pain and suffering,
loss of amenities, loss of expectation of life and loss of earnings, apply.50 But apart
from the damages for any physical injury, which are compensatory, the plaintiff may
recover aggravated damages for injury to his feelings, that is, for any indignity, dis-
grace, humiliation or mental suffering occasioned by the assault. For instance, in
the Trinidadian case of Sudan v Carter,51 where a 26 year old student was knocked
unconscious by a karate ‘black belt’ who was employed as a ‘bouncer’ at a disco,
Hosein J considered that the circumstances surrounding the assault warranted an
award of aggravated damages. He said:
The plaintiff was assaulted in the presence of friends and a crowd of persons and
suffered the indignity of being knocked to unconsciousness by a bully who must have
found the plaintiff an easy prey upon whom to demonstrate his martial skills. The
second defendant’s unmitigated rancour still seemed to pervade his cold blooded
expression and attitude at the trial.
Further, the circumstances at the entry to the [disco] must have been such as to create in
the mind of the plaintiff a suspicion which found expression in an instantaneous accus-
ation that racism was practised, especially upon sight of persons of fair complexion
being admitted merely by payment of the required admission fee.
The result was that his dignity and pride must have been bruised . . . All these factors, to
my mind, would attract an award of aggravated damages.

Where the assault is carried out by a police officer or other government official,
exemplary (or ‘punitive’) damages may also be awarded under the rule in Rookes v
Barnard, which established, inter alia, that ‘oppressive, arbitrary or unconstitutional
action by a servant of the government’52 may attract an award of exemplary damages,
the purpose of such an award being ‘to punish the defendant and to deter him from
similar behaviour in the future’.53 In the case of Quashie v Airport Authority of Trinidad

47 Johnston v Wellesley Hospital (1970) 17 DLR (3d) 139.

48 S v McC [1972] AC 24, p 57.
49 Op cit, Fleming, fn 6, p 75.
50 McGregor, Damages, 15th edn, 1988, London: Sweet & Maxwell, para 1615; Butler v Smith
(1996) High Court, BVI No 125 of 1993 (unreported) [Carilaw VG 1996 HC 9], per Georges J.
51 (1992) High Court, Trinidad and Tobago, No 1735 of 1990 (unreported).
52 [1964] AC 1129, p 1226, per Lord Devlin.
53 Op cit, Winfield and Jolowicz, fn 10, p 942.
 Chapter 2: Trespass to the Person 17

and Tobago,54 two supplementary police officers who were employed by the Airport
Authority unlawfully seized the plaintiff, a taxi driver, at the Crown Point Airport in
Tobago. One officer held the plaintiff’s arms behind his back while the other struck
him repeatedly in the face. The plaintiff was then handcuffed and taken to the security
charge room, where he was detained for several hours. The plaintiff was later charged
with entering a protected area and resisting arrest. The charges were dismissed by the
magistrate. Wills J awarded exemplary, as well as aggravated, damages for the assault
and detention. He said:
In this case, there can be no doubt that beating and/or assaulting a person at a public
place and an international airport and then having him arrested and handcuffed and
taken to a cell or jail, where he is kept for hours without justification, could be a most
humiliating and traumatic experience, which must require a court to compensate him
for his injured feelings. In addition thereto, where the agency through which he has
suffered such a humiliating and harrowing experience is a state or statutory body, there
must also be awarded damages as a punitive measure to deter others who may be
like-minded.
In the circumstances of this case, I hold the view that aggravated and exemplary dam-
ages ought to be awarded, since the conduct of the defendants, Bernard and Guerra,
was, to say the least, outrageous and compounded by the fabrication of the charges as
justification for inflicting a severe and humiliating beating at an airport where people
had been arriving and departing. Can it be doubted that such conduct would certainly
send a bad signal to citizens and would-be visitors?

In the Jamaican case of Scott v Wilkie,55 however, where a lifeguard at a public beach
assaulted the plaintiff by knocking over a chair on which he was sitting and hitting
him with it, the magistrate’s award of exemplary damages was overruled by the
Court of Appeal, on the ground that there was ‘nothing in the evidence which sug-
gested that the defendant/appellant pretended in any way to act under a cloak or
disguise of authority; the incident was simply one of two individuals in their private
capacity’. Edun JA continued:
It may well be that, because of his physique and towering strength, the St Ann Parish
Council appointed the defendant/appellant a lifeguard because they must have con-
sidered that a lifeguard must be gifted with a greater strength of endurance to withstand
the ordeal of saving lives. But that is far from saying that every act of the appellant in
his employment must necessarily be clothed with authority oppressively exercised.
Therefore, the conclusion of the learned resident magistrate that the appellant’s action
was a gross abuse of authority was unwarranted by the evidence.

It was held, however, that aggravated damages could properly be awarded, since this
was a case of ‘a big man bullying a small man’, which must have been ‘a source of
humiliation’ to the plaintiff.

FALSE IMPRISONMENT

‘False imprisonment’ is a misleading term. ‘False’ normally means ‘fallacious’ or

‘untrue’, but in this tort it means merely ‘wrongful’ or ‘unlawful’. ‘Imprisonment’
usually involves locking a person in jail, but in this tort it has a much wider meaning

54 (1992) 2 TTLR 591 (High Court, Trinidad and Tobago).

55 (1970) 12 JLR 200 (Court of Appeal, Jamaica).
18 Commonwealth Caribbean Tort Law

and includes not only incarceration in prison, but any physical restraint; for example,
where a police constable restrains a suspect by taking hold of his arm, or where a
whimsical lecturer locks his students in a lecture hall after a lecture. As Coke CJ once
said: ‘Every restraint of the liberty of a free man is an imprisonment, although he be
not within the walls of any common prison’.56
It is a fundamental requirement of the tort that the plaintiff’s freedom of move-
ment in every direction must have been restricted. A partial restraint is not suffi-
cient.57 Thus, for example, if the plaintiff lives in a house with two outer doors, one
opening on to the street and the other into a yard in the possession of a third party,
it is not false imprisonment on the part of the defendant to bar the street door, for
the plaintiff can escape through the yard, and it is immaterial that, in so doing, the
plaintiff will commit a trespass against the third party. But the means of escape
must be reasonable. It will not be reasonable if it exposes the plaintiff to danger to life
or limb.58
Nothing short of actual detention and complete loss of freedom can support an
action for false imprisonment. Thus, for example, where an arrestee is subsequently
released on bail, the arresting officers cannot be liable for false imprisonment for the
period after the arrestee has been released from actual custody, notwithstanding that
his liberty may be circumscribed by the terms of the bail bond.59
In order to be an actionable false imprisonment, the restriction upon the plaintiff’s
liberty must be unlawful.60 It has been held, however, that a prisoner who was wrong-
fully confined to his cell by the prison authority in breach of prison rules had a good
cause of action in false imprisonment, even though his original imprisonment was
lawful.61
It seems that an occupier of premises is entitled to impose restrictions by way of
contract on the right of visitors to leave those premises, without being liable for false
imprisonment.62 This is, however, subject to the requirement that the restrictions must
be reasonable. In Robinson v Balmain Ferry Co Ltd,63 the defendants, who operated a
ferry, charged one penny on entry to the ferry and another penny on exit. R paid
to enter, but then decided not to travel on the ferry and demanded to be allowed to
leave. The defendants refused to allow R to leave until he paid the exit fee. It was held
that the defendants were not liable for false imprisonment in refusing to allow R to
leave, because the condition that one penny be paid on exit was a reasonable one
to impose.
Similarly, in Herd v Weardale Steel Co Ltd,64 the employers of a miner were held not
liable in false imprisonment for refusing to bring the miner to the surface of the pit on
demand and before the end of his shift. The reasoning of the court was that the miner

56 Statute of Westminster II, c 48.

57 Bird v Jones (1845) 115 ER 668.
58 Op cit, Heuston and Buckley, fn 17, p 125.
59 Syed Mohamed Yusuf-ud-Din v Secretary of State for India (1903) 19 TLR 496, p 499; Merson v
Cartwright (1994) Supreme Court, The Bahamas, No 1131 of 1987 (unreported) [Carilaw BS
1994 SC 53].
60 Weldon v Home Office [1990] 3 WLR 465.
61 Ibid.
62 See Tan, KF (1981) 44 MLR 166.
63 [1910] AC 295.
64 [1915] AC 67.
 Chapter 2: Trespass to the Person 19

had voluntarily gone down the mine and the employers were under no obligation to
bring him back up until the shift had ended. But both Herd and Robinson have been
criticised on the ground that the reasoning in those cases would seem to allow a
person to be imprisoned for a mere breach of contract65 (the agreement to pay the exit
fee in Robinson, and the contractual obligation to remain down the pit until the end of
the shift in Herd). Moreover, there is authority for the view that a defendant is not
entitled to impose unreasonable terms or conditions as he pleases. Thus, where an
innkeeper locked the plaintiff in the premises when the latter refused to pay his bill,
the innkeeper was liable for false imprisonment.66
It is now settled that it is false imprisonment to detain a person where that person
is unaware he is being detained. In Meering v Grahame-White Aviation Co Ltd,67 M was
suspected of stealing a keg of varnish from the defendant’s factory. He was taken to
the defendant’s office for questioning. While M was in the office, and unknown to M,
two of the company’s security officers stationed themselves outside to prevent him
from leaving. It was held that an action in false imprisonment might lie in such
circumstances. According to Atkin LJ:68
. . . a person could be imprisoned without his knowing it. I think that a person can be
imprisoned while he is asleep, while he is in a state of drunkenness, while he is
unconscious, and while he is a lunatic . . . Of course, the damages might be diminished
and would be affected by the question whether he was conscious of it or not.

Atkin LJ’s view was criticised on the grounds that it was inconsistent with an earlier
authority69 and that one of the reasons he gave for his view was that, while the captive
was unaware of his confinement, his captors might be boasting of it elsewhere
– a rationale which sounds more like defamation than trespass to the person. But
Atkin LJ’s view has been confirmed by the House of Lords in Murray v Ministry
of Defence.70
Another characteristic of the tort is that it may be committed without the use of
physical force: the use of authority is enough. Thus, if police officers wrongfully order
the plaintiff to accompany them to the police station for questioning and the plaintiff
obeys, the officers may be liable for false imprisonment, even though they never
touched the plaintiff. On the other hand, an invitation made by police officers to the
plaintiff to accompany them to the police station cannot be false imprisonment if they
make it clear to him that he is entitled to refuse to go, for then there will be no
restraint. Thus, for example, in Davis v AG,71 where the defendant police sergeant
‘invited the plaintiff to accompany him to the station and he agreed to go, after a full
explanation of the events and a caution’, King J (Ag) held that there was ‘nothing
amounting to compulsion . . . The plaintiff was not arrested, and . . . the action for
false imprisonment must fail’. The principle was explained by Deyalsingh J in Bostien
v Kirpalani’s Ltd,72 thus:

65 See Dias and Markesinis, Tort Law, 1984, Oxford: Clarendon, pp 242, 243.
66 Sunbolf v Alford (1838) 150 ER 1135.
67 (1919) 122 LT 44. See, also, below, p 21.
68 Ibid, p 53.
69 Ie, Herring v Boyle (1834) 3 LJ Ex 344.
70 [1988] 2 All ER 521.
71 (1990) 25 Barb LR 42 (High Court, Barbados).
72 (1979) High Court, Trinidad and Tobago, No 861 of 1975 (unreported) [Carilaw TT 1979 HC
113]. See also below, p 22.
20 Commonwealth Caribbean Tort Law

It is clear from the authorities that to constitute false imprisonment there must be a
restraint of liberty . . . a taking control over or possession of the plaintiff or control of his
will. The restraint of liberty is the gist of the tort. Such restraint need not be by force or
actual physical compulsion. It is enough if pressure of any sort is present which reason-
ably leads the plaintiff to believe that he is not free to leave, or if the circumstances are
such that the reasonable inference is that the plaintiff was under restraint, even if the
plaintiff was himself unaware of such restraint. There must in all cases be an intention
by the defendant to exercise control over the plaintiff’s movements or over his will, and
it matters not what means are utilised to give effect to this intention. The circumstances
of each case have to be considered and these circumstances will, of course, vary and
sometimes vary considerably from case to case. In each the question is: ‘On the facts as
found, did the defendant exercise any restraint upon the liberty of the plaintiff?’ It is a
question of fact, turning sometimes on an isolated link in the chain of circumstances,
and the authorities, with rare exceptions, are helpful only on the general principles
laid down.

It is thus a question of fact in each case as to whether there was a restraint or not. In
Clarke v Davis,73 for instance, C came under suspicion by the police, who were investi-
gating certain irregularities at the Public Works Department. On pay day, C was
allowed to draw his money and was then immediately accosted by a uniformed
constable and accused of having drawn pay without having worked for it. He was
invited to show the police where he had done the work, and later to accompany them
to the barracks at Lucea to make a statement. At no time was C physically man-
handled or restrained. On the issue of whether C had been under restraint sufficient
to ground an action for false imprisonment, Lewis JA, in the Jamaican Court of
Appeal, said:74
Assuming that he was invited to show the police where he had done this work, the
question arises whether, in the circumstances, he could have reasonably refused to go.
In my view, in those circumstances, the appellant could have done nothing other than to
go with the police, and he went with them . . . In the face of this situation, his salary
having been taken from him under circumstances of an implied accusation and the fact
that he was in a police car, surrounded by three police officers, was his agreement to go
to [the barracks at] Lucea, as the police say, a true consent, or was it merely a submission
to circumstances of authority against which he could not resist? He said in evidence that
he considered himself to be under arrest. I am clearly of the opinion that, in those
circumstances, the appellant was under restraint and was bound to submit to the wishes
of the police officers.

After making the statement, C’s money was returned to him and he was allowed to
go. The police officers were held liable for false imprisonment, as they had no reason-
able cause for detaining C, and the defence under s 39 of the Constabulary Force
Law75 was not, therefore, available to them.76
In Chong v Miller,77 a police constable, M, received a report that C was in posses-
sion of ‘Peaka Peow’ lottery tickets, which was an offence under the Gambling Law
(Laws of Jamaica, No 28 of 1926). C was entering a tram when M called out to him. C
got off the tram and, at the request of M, turned out his pockets without protest.

73 (1964) 8 JLR 504 (Supreme Court, Jamaica).

74 Clarke v Davis (1964) 8 JLR 504 (Supreme Court, Jamaica), p 505.
75 Cap 72, 1953 edn.
76 See below, pp 35, 36.
77 [1933] JLR 80 (Full Court, Jamaica).
 Chapter 2: Trespass to the Person 21

No illegal tickets were found in C’s possession and, in an action for false imprison-
ment brought against M, the first question was whether there had been an arrest or
detention of C. The Full Court held on the facts that there had been a detention, since,
although M never physically restrained or even touched C, C believed that if he
tried to escape M would seize him, and ‘in this he was correct, for [M], the defendant,
said so’.
Another common example of a detention without physical restraint which may
be sufficient to ground an action in false imprisonment is where a store detective
or security officer, suspecting that a woman has stolen an item from the store,
approaches her and ‘invites’ her to open her bag or to accompany him to the man-
ager’s office for questioning. In many cases, a person accosted in this way will comply
with the ‘invitation’, whether in submission to the show of authority or in order to
avoid an embarrassing scene in a public place.
An example of this type of situation is McCollin v Da Costa and Musson Ltd.78 Here,
the plaintiff entered the defendant’s department store in Bridgetown shortly before
closing time and selected an item. The cashier’s till had already been closed for the
day. The plaintiff therefore paid the exact purchase price to the cashier, but she could
not be given a receipt. The cashier omitted to remove the electronic tag from the item,
which she wrapped in the store’s bag and handed to the plaintiff. As the plaintiff
walked through the exit an alarm sounded and the fourth defendant, a security guard
employed by Brink’s Barbados Ltd, the third defendant, stepped across to the plaintiff
and asked her if she had purchased anything from the store. The second defendant, an
employee of Da Costa’s, suggested that the plaintiff should return to the cashier for
the tag to be removed. The plaintiff protested but handed the bag to the second
defendant, who took it to the cashier for the tag to be removed from the item. The
second defendant apologised to the plaintiff for any inconvenience that had been
caused to her, and the plaintiff left the store. The plaintiff claimed damages for false
imprisonment. Rocheford J (Ag) held that the actions of the fourth and second
defendants amounted to a detention of the plaintiff against her will and all four
defendants were liable for false imprisonment. He said:
Counsel for the plaintiff submitted that the invitation made by the fourth defendant to
the plaintiff to go further back into the store and the invitation made by the second
defendant to the plaintiff to go with him across to the counter nearby together
amounted to an invitation coupled with a compulsion, and that the plaintiff was not
free to go. He referred the court to Meering v Grahame-White Aviation Co Ltd.79 In that
case, the plaintiff was met at his house by a works’ police officer, a Mr Dorry, who
informed him that his presence was desired at the defendant company’s works. The
plaintiff along with Mr Dorry and another works’ police officer, a Mr Liddington, whom
they met on the way, went to the defendant company’s office. The plaintiff was taken or
invited to go to the waiting room of the office to wait until he was wanted. The two
works’ police officers remained in the immediate neighbourhood of the waiting room in
which was the plaintiff. The plaintiff asked what he was there for, what they wanted
him for, and said that if they did not tell him he would go away. They told him that
what they wanted him for was to make inquiries because there had been things stolen
and he was wanted to give evidence. On that statement, he stayed. Then, a Metropolitan
Police officer and a Mr Hickie arrived. The jury was asked the question, ‘Had the

78 (1982) 17 Barb LR 212 (High Court, Barbados).

79 (1919) 122 LT 44.
22 Commonwealth Caribbean Tort Law

plaintiff been detained in the waiting room before the detective and Hickie arrived?’.
The answer was ‘yes’. Warrington LJ said this:80
On behalf of the defendant company, it is contended before us that there was no
evidence that the plaintiff had been detained in the waiting room before the
detectives and Hickie arrived. They say that he was perfectly free to go when he
liked, and that he knew that he was free to go when he liked, that he could have
gone away if he pleased; he did not desire to go away, and, accordingly, that he
was never under any compulsion or under anything which could amount to
any imprisonment. In my opinion, there was evidence on which the jury might
properly come to the conclusion that, from the moment that the plaintiff had
come under the influence of these two men, Dorry and Liddington, he was no
longer a free man.
I have already found that the fourth defendant, who was dressed in a uniform that
conveys the possession of some authority to arrest, approached the plaintiff and asked
her if she had purchased anything from the store. It was reasonable for the plaintiff to
believe, at that point in time, that she had been required to prove to the fourth defend-
ant that she had purchased the item. She had not been given a receipt. This was a most
damaging omission on the part of an employee of the first defendant. It is the fact that
the plaintiff could not have proved, there and then, that she had purchased the item. It
was reasonable for her to believe, also, that the fourth defendant, in the absence of being
shown a receipt, would have been compelled to conclude that she had stolen the item. It
must be noted that the second defendant stated in his evidence in cross-examination:
If an innocent person goes through the door onto the sidewalk, he (the security
guard) would ask for a bill. If no bill was produced, he would suspect that the
person took the item from Da Costa and Musson without proof of purchase,
and detain him.
The plaintiff, at that moment in time, had the choice of leaving the store with the item
and no receipt and thereby running the considerable risk of being arrested by the fourth
defendant while on the sidewalk, or of abandoning the item in the store, and leaving the
store without it, a very suspicious manner of behaving indeed, or of remaining in the
store and proving that she had purchased the item. The first two choices were ruled out
altogether as not being genuine options. She chose the third, and decided to remain in
the store, notwithstanding the fact that she was in a hurry to get to her husband’s office
in time to obtain assistance in getting to her home. Her choice was not a free one. In my
opinion, the principles set out in the statement of Warrington LJ in Meering v Grahame-
White Aviation Co Ltd 81 should be adopted. There is, therefore, evidence on which I can
conclude that the plaintiff, from that point in time, was no longer a free woman, for it
cannot be said that she remained in the store willingly. In fact, she remained in the store
because to do otherwise might have resulted in her arrest and could certainly have
resulted in the forfeiture of her reputation for honesty.

Rocheford J (Ag) also found the second defendant, as well as the third and first
defendants (as employees of the fourth and second defendants respectively), liable for
false imprisonment.
The opposite conclusion was reached in Bostien v Kirpalani’s Ltd.82 In this case, the
plaintiff had purchased a bedspread at the defendant’s store. Two days later, she
returned to the store to exchange it for one of a different colour. She was unable to

80 Ibid, p 46.
81 Ibid, p 46.
82 (1979) High Court, Trinidad and Tobago, No 861 of 1975 (unreported) [Carilaw TT 1979
HC 113].
 Chapter 2: Trespass to the Person 23

produce the cash bill or the bag with which the bedspread had been sold. The store
manager mistakenly formed the impression that the plaintiff had ‘shoplifted’ the
bedspread that day and he refused to exchange it or to give it back to the plaintiff. The
plaintiff, who was a graduate teacher at a well-known school in San Fernando, became
extremely angry at the accusation made against her and she telephoned her brother to
come and ‘see the matter out’. The plaintiff was invited to accompany the manager to
his office and, after a brief discussion at which the plaintiff, her brother, a police
constable and the manager were present, the manager again refused to exchange or to
return the bedspread. The plaintiff and her brother then left the store.
Deyalsingh J held that the plaintiff had not been under restraint and the defendant
was not liable for false imprisonment. He explained:
I find as a fact that at no time at all did the manager exercise or intend to exercise
any restraint on the liberty of the plaintiff. There was no constraint over the plain-
tiff’s person or will, either before Mr Christian or the police arrived on the scene,
or after. She could, if she wished, have left at any time but chose to remain, not because
she was under any restraint or because of any belief on her part that she was under any
restraint, but rather to ‘see the matter out’. The manager had, out of deference to
her, invited her up to the office to inform her that he could not, as a result of his
investigation, exchange the bedspread for her. He intended to keep the bedspread, but
I am satisfied that no ‘charge’ or formal accusation was made to the plaintiff that
she had stolen the bedspread and that no restraint was intended or exercised over the
plaintiff’s liberty on that day; neither did the plaintiff believe that she was under any
such restraint.

LAWFUL ARREST

It is a defence to an action for false imprisonment (as well as for assault and battery)
that the restraint upon the plaintiff was carried out in the course of a lawful arrest,
the onus of proof of the lawfulness of the arrest being on the defendant.83 In the
Commonwealth Caribbean, the common law principles have been heavily overlaid
with statutory provisions giving powers of arrest and special defences to police
officers, and the topic is one of considerable complexity. An arrest may be either with
warrant or without warrant.

Arrest with warrant

A warrant of arrest is an authority in writing, issued by a justice of the peace or magis-

trate, or by any court having civil or criminal jurisdiction, addressed to a police officer
(the usual case) or to any other person, to arrest an offender and bring him before the
court. A police officer or other person who arrests within the terms of the warrant will
have a complete defence to any action for false imprisonment, assault or battery.
In most jurisdictions, statutory provisions give an arresting officer a defence
where he arrests a person in obedience to a defective warrant or a warrant issued
without jurisdiction. For instance, s 34 of the Constabulary Force Act (Jamaica)
(formerly s 40 of the Constabulary Force Law, Cap 72, 1953 edn) provides84:

83 Cummings v Demas (1950) 10 Trin LR 43 (West Indian Court of Appeal). See below, pp 32–35.
84 Section 42 of the Police Service Act, Ch 15:01 (Trinidad and Tobago) is similarly worded.
24 Commonwealth Caribbean Tort Law

When any action shall be brought against any constable for any act done in obedience to
the warrant of any justice, the party against whom such action shall be brought shall not
be responsible for any irregularity in the issuing of such warrant or for any want of
jurisdiction of the justice issuing the same . . .

Where a constable arrests the wrong person (that is, a person other than the one
named in the warrant), he may be liable for false imprisonment. In the Trinidadian
case of Dash v AG,85 a constable who arrested one Herbert Dash (of Diego Martin),
instead of another Herbert Dash (of Belmont) named in the warrant, was held liable
for false imprisonment. Characterising this as ‘a bona fide mistake by a careless and not
over-bright policeman’, Cross J pointed out that there was ‘no onus on a person
arrested on a warrant to prove he was not the person named therein’.
In another Trinidadian case, Maharaj v Hobbs and AG,86 the warrants named the
plaintiff as ‘Mary’, whereas her correct name was Kamaldaye Maharaj. The arresting
constables gave evidence that the plaintiff was known to them as ‘Mary’, and there
was no doubt that she was the person for whom the warrants were intended, and that
she was well aware of that fact. Nevertheless, Mendonca J held that the constables
had no defence to liability for false imprisonment. He explained:
Section 106(6) of the Summary Courts Act, Ch 4:20, provides, inter alia, that the warrant
of arrest shall name or otherwise describe the person to be arrested. The defendants will
be liable for the wrongful arrest of the plaintiff if she is not named or described in the
warrants, even though she was the person charged with the offences and the party for
whom the warrants were issued (see Hoye v Bush).87 The question, therefore, it seems to
me, comes to this: was the plaintiff named or described in the warrants?
The warrants named the plaintiff as Mary. According to the evidence on behalf of the
defendants, the plaintiff was known to them as Mary and was referred to by them as
Mary and she never protested that her name was otherwise. It has, however, been
established that the plaintiff’s name is Kamaldaye Maharaj and not Mary. I do not view
the defendants’ evidence as saying that they knew her only name to be Mary. I think
this is consistent with the fact that when the plaintiff was brought to the Arima Police
Station her name was recorded in the station diary as ‘Mary Maharaj’. The case of R v
Hood 88 demonstrates the importance of naming the person in the warrant fully and
accurately. In that case the warrant directed the constable ‘to arrest Hood by whatever
name or names he may be called, being one of the sons of Samuel Hood.’ Samuel Hood
had four sons living together. It appeared that the Hood arrested, namely George Hood,
was the right person. The Court held that the warrant gave no authority to arrest
George Hood. It is clear on the evidence that when the warrants were obtained, it
was intended to name the plaintiff, but the warrants failed to do so. As was stated in

85 (1978) High Court, Trinidad and Tobago, No 3293 of 1973 (unreported) [Carilaw TT 1978 HC
92]. In Laird v AG (1974) 21 WIR 416, where a constable served a summons on the wrong
person, Fox JA took the view (dissenting) that ‘the proper course for the person served is to
obey the summons in the first instance and then apply to the court to have the service set
aside. The fact that the constable may have been mistaken in the identity of the person whom
he has served should not be allowed to obviate the peril to the person of a warrant being
issued for his arrest if he disobeys the summons’ (p 426). This view was grounded in public
policy, since ‘in Jamaica at the present time, there is an overwhelming need to strengthen the
sense of responsibility and discipline and to assert the supremacy of law and order in all
sections of the community’.
86 (2002) High Court, Trinidad and Tobago, No 2587 of 1998 (unreported) [Carilaw TT 2002 HC
48]. This judgment also contains an interesting summary of recent awards of damages in
similar cases of false imprisonment.
87 (1840) 133 ER 548.
88 (1830) 168 ER 1272.
 Chapter 2: Trespass to the Person 25

Greenwood v Ryan,89 if a man whose name is AB calls himself CD he ought not to be

named as CD in the warrant as that is not his name. I therefore hold that the warrants do
not name the plaintiff.
Counsel for the defendants, however, submitted that Mary was an alias and therefore it
came within the requirement to ‘otherwise describe’ the person to be arrested in section
106(6) of the Summary Courts Act. However, it is clear that Mary was not intended to be
a description of the plaintiff but rather to name the plaintiff. ‘Mary’ in my judgment
cannot amount to a description of the plaintiff. It is important to note that the warrant is
directed to ‘all constables’. The person to be arrested must be described with sufficient
detail and clarity to enable any police officer to apprehend the correct person. There
could have been no objection if the warrants contained, for example, a physical descrip-
tion of the plaintiff with the addendum of such words as ‘known as Mary’ (see Greenwood
v Ryan, supra).
The warrants, therefore, in my judgment, failed to describe or to name the plaintiff. In
the circumstances, the arrest of the plaintiff was not in obedience to the warrants.90

Arrest without warrant

At common law, certain powers of arrest without warrant are given to police officers
and private citizens. One who carries out an arrest within the scope of any such
power will have a good defence to an action for false imprisonment, as well as
for assault and battery. It is a cardinal principle, however, that in the absence of
statutory authority a police officer has no right or power to detain a person for question-
ing unless he first arrests him.91 As White J emphasised in the Jamaican case of
Marshall v Thompson and AG,92 where a constable ‘takes a suspect to the police station
without arresting him in order to question him, then to decide, in the light of his
answers, whether to charge him, this would be unlawful and would constitute [false]
imprisonment’.
Common law powers of arrest without warrant may be summarised thus:
• A police officer or private citizen may arrest without warrant a person who, in his
presence, commits a breach of the peace, or who so conducts himself that he
causes a breach of the peace to be reasonably apprehended. There is no power to
arrest after a breach of the peace has terminated, unless the arresting officer or
private citizen is in fresh pursuit of the offender or reasonably apprehends a
renewal of the breach of the peace.
• A police officer or private citizen may arrest without warrant (a) a person who is

89 (1846) 1 Legge 275 (Aus).

90 Mendonca J also held that the constables were not protected by s 36(1)(h) of the Summary
Courts Act, Ch 4:20, which provides that ‘any police officer may arrest without a warrant . . .
any person for whom he has reasonable cause to believe a warrant of arrest has been issued’,
since this was not a case of arrest without a warrant but one of arrest under warrants which
had been issued, albeit that they were defective.
91 R v Lemsatef [1977] 2 All ER 835; Pedro v Diss [1981] 2 All ER 59; Collins v Wilcock [1984] 3 All ER
374; Jack v Bruce (1950) 10 Trin LR 68 (High Court, Trinidad and Tobago). In Davidson v Williams
(1990) 1 TTLR 185 (High Court, Trinidad and Tobago), it was explained that the police may
interrogate a person who has been lawfully arrested, provided that the interrogation is not
‘oppressive’.
92 (1979) 16 JLR 479 (Supreme Court, Jamaica) See also Francis v Commissioner of Police (2001)
Supreme Court, The Bahamas, No 1432 of 1999 (unreported) [Carilaw BS 2001 SC 66]; Francis v
Nixon and AG (2001) Supreme Court, The Bahamas, No 113 of 1998 (unreported) [Carilaw, BS
2001 SC 39].
26 Commonwealth Caribbean Tort Law

in the act of committing a felony;93 and (b) a person whom he suspects on reason-
able grounds to have committed a felony. But in (b), there is a distinction between
arrest by a police officer and arrest by a private citizen, in that a private citizen
who wishes to justify such an arrest must prove that a felony has actually been
committed, whether by the person arrested or by someone else; and if, in fact, no
such felony has been committed, he will be liable for false imprisonment and/or
assault and battery. It will be no defence that he had reasonable grounds for
believing the arrestee to be guilty. A police officer, on the other hand, has a good
defence, whether a felony has actually been committed or not, so long as he can
show that he had reasonable grounds for suspicion. This is known as the rule in
Walters v WH Smith and Son Ltd.94
• A police officer, but not a private citizen, may arrest without warrant any person
whom he suspects on reasonable grounds to be about to commit a felony.
The Criminal Law Act 1967 abolished the distinction between felonies and mis-
demeanours, as far as England and Wales was concerned, and, in codifying the com-
mon law powers of arrest on suspicion, replaced the term ‘felony’ with ‘arrestable
offence’. Sections 2 and 3 of the Criminal Law Act, Ch 10:04 (Trinidad and Tobago)
are along the same lines.95 Section 2(1) abolishes the distinction between felony and
misdemeanour, and s 3(1) defines ‘arrestable offence’ as including capital offences,
offences for which a person (not previously convicted) may be sentenced to imprison-
ment for a term of five years, and attempts to commit any such offences.
Section 3 further provides:96
(2) Any person may arrest without warrant anyone who is, or whom he, with reason-
able cause, suspects to be, in the act of committing an arrestable offence.
(3) Where an arrestable offence has been committed, any person may arrest without
warrant anyone who is, or whom he with reasonable cause suspects to be, guilty of
the offence.
(4) Where a police officer, with reasonable cause, suspects that an arrestable offence has
been committed, he may arrest without warrant anyone whom he with reasonable
cause suspects to be guilty of the offence.97

93 There is no power at common law to arrest on suspicion of commission of a misdemeanour.

Thus, in Shiwmangal v Jaikaran and Sons Ltd [1946] LRBG 308 (Supreme Court, British Guiana),
Luckhoo CJ (Ag) held that the defendant, a private person, could not justify the arrest of a
person suspected of having committed the offence of wilful trespass, as the offence was
merely a misdemeanour, ‘for which class of offence a private person can never justify an
arrest. So jealous is the law of the liberty of the subject that a private person cannot properly
arrest another for an offence which is a misdemeanour without going to a magistrate and first
obtaining a warrant’ (p 315). It may be added that a police constable would be in no better a
position, in the absence of a statutory power to arrest without warrant.
94 [1914] 1 KB 595. See also Narayan v Kellar [1958] LRBG 45 (Supreme Court, British Guiana),
p 64; Salmon v Roache (1995) 32 JLR 406 (Court of Appeal, Jamaica), per Patterson JA.
95 See Samlal v AG (1998) High Court, Trinidad and Tobago, No S 3801 (unreported) [Carilaw TT
1998 HC 95].
96 Section 3(3) and (4) reproduces the rule in Walters v WH Smith and Son Ltd [1914] 1 KB 595 in
statutory form.
97 See Paul v AG (1998) High Court, Trinidad and Tobago, No CV 369 of 1982 (unreported)
[Carilaw TT 1998 HC 71]; Olivierre v Maharaj (1994) High Court, Trinidad and Tobago, No 72 of
1985 (unreported) [Carilaw TT 1994 HC 7]; Barcoo v AG (2001) High Court, Trinidad and
Tobago, No 1388 of 1989 (unreported) [Carilaw TT 2001 HC 167]; Rullow v AG (2002) High
Court, Trinidad and Tobago, No 1136 of 2000 (unreported) [Carilaw TT 2002 HC 176]. Also,
powers of arrest in certain circumstances (eg, where a person is found in possession of any-
thing which may reasonably be suspected to be stolen property) are given to police officers in
 Chapter 2: Trespass to the Person 27

(5) A police officer may arrest without warrant any person who is, or whom he with
reasonable cause suspects to be, about to commit an arrestable offence.
(6) For the purposes of arresting a person under any power conferred by this section, a
police officer may enter (if need be, by force) and search any place where that person
is or where the police officer with reasonable cause suspects him to be.

Section 4(1) provides that:

. . . a person may use such force as is reasonable in the circumstances in the prevention
of crime, or in effecting or assisting in the lawful arrest of offenders or suspected
offenders or of persons unlawfully at large.

Arrest on reasonable suspicion

A police officer or private citizen who arrests a person without warrant on reasonable
suspicion of having committed a felony (or arrestable offence) has the burden of
proving that he had reasonable cause for believing that the arrestee was guilty of the
offence. In carrying out an arrest, a police constable may often be in a difficult pos-
ition. On the one hand, if he delays making an arrest, vital evidence may be lost and a
crime may go unpunished; on the other hand, if he acts too hastily in arresting, he
may be held liable for false imprisonment. The test for determining whether an arrest-
ing officer had reasonable cause for making the arrest is whether a reasonable person,
assumed to know the law and possessed of the information which was in fact pos-
sessed by the officer, would believe that there was at the time of the arrest reasonable
and probable cause for it.98
Among Caribbean illustrations of the exercise of powers of arrest are Sibbons v
Sandy and Jangoo v Gomez. In Sibbons v Sandy,99 the plaintiff was a vendor in the San
Fernando Central Market. Two other vendors in the market reported to the defendant

Trinidad and Tobago by s 36(1) and (2) of the Police Service Act, Ch 15:01. See Sibbons
v Sandy, below fn 99; Sahabdool v AG (2002) High Court, Trinidad and Tobago, No SCV 2176
of 1988 (unreported). In Singh v AG (2005) Court of Appeal, Trinidad and Tobago, Civ App No
3 of 2002 (unreported) [Carilaw TT 2005 CA 15], Mendonca JA opined that whereas both s 3 of
the Criminal Law Act and s 36(1) of the Police Service Act required the existence of reasonable
suspicion, there was a difference in that: (i) what matters under s 3 is what was in the mind of
the arresting officer, and s 3 requires that the arresting officer personally had reasonable
grounds for the suspicion, so that if the officer, knowing nothing of the case, arrests someone,
the arrest will be unlawful, whether or not in fact reasonable grounds to suspect, for instance,
that the thing found on the arrestee’s person was stolen and that he had stolen it, might have
existed; (ii) what matters under s 36(1) is the objective existence of reasonable grounds for
suspicion, and the enquiry is not confined to matters in the mind of the arresting officer.
Compare Police Act, Cap 167 (Barbados), s 20(1)(a), which empowers any member of the
police force to arrest without warrant any person whom he suspects upon reasonable grounds
to have committed a felony. See also Police Act, Cap 244, ss 22, 26 (Grenada); Police Act, Cap
187, s 22 (Antigua); Police Act, Cap 16:01, s 17 (Guyana); Police Act, Cap 138, ss 41, 43 (Belize);
Police Act, Cap 167, s 22 (Montserrat); Constabulary Force Act, s 15 (Jamaica). In Johnson v
Deveaux and AG (2000) Supreme Court, The Bahamas, No 895 of 1998 (unreported) [Carilaw BS
2000 SC 23], Marques J pointed out that s 30 of the Police Act, Ch 191, gives to a police officer
all the powers that he may be invested with at common law, including the common law power
to arrest on reasonable suspicion of the commission of a felony.
98 Dallison v Caffery [1964] 2 All ER 610, p 619, per Diplock LJ; Williams v Moxey and AG (2001)
Supreme Court, The Bahamas, No 592 of 1995 (unreported) [Carilaw BS 2001 SC 32]; Seetaram
v AG (2001) High Court, Trinidad and Tobago, No 35 of 1999 (unreported) [Carilaw TT 2001
HC 31].
99 (1983) High Court, Trinidad and Tobago, No 1001 of 1975 (unreported) [Carilaw TT 1983
HC 87]
28 Commonwealth Caribbean Tort Law

constable (S) that they had lost a bag of oranges which, they said, they had seen at the
plaintiff’s stall. As a consequence, S arrested the plaintiff and, later the same day,
handed him over to another police officer (F), who preferred charges of larceny of the
oranges against the plaintiff and locked him in a police cell. Before and after his
arrest, the plaintiff had insisted that he had bought the oranges from an Indian boy
who would be returning to the market the following Tuesday. The plaintiff sub-
sequently appeared before the magistrate and the charge of larceny of the oranges
was dismissed.
Edoo J held that the arrest was unlawful, as S and F had no reasonable and
probable cause to suspect that the plaintiff had stolen the oranges, and they were
liable for false imprisonment. He explained:
The questions which must be considered are:
(a) whether Sandy and Fortune had reasonable and probable cause for suspecting that
the plaintiff had stolen the oranges;
(b) whether they were justified in arresting and imprisoning him without a warrant.
As police officers, both Sandy and Fortune had the common law right to arrest without
warrant any person whom they reasonably suspected of having committed a felony
(now ‘an arrestable offence’), whether the offence had been committed or not. This has
been confirmed by the power conferred upon them by s 36(1)(d) of the Police Service
Act, Ch 15:01.
There is no doubt that both Sandy and Fortune acted on information received. They had
no personal knowledge of any of the relevant facts, and so, it is necessary to enquire
whether the information they had justified them in giving credit to it, and whether the
suspicion which it aroused was a reasonable suspicion.
There is also no doubt that the plaintiff, from the very inception of the accusation
against him, was making a claim of right to the oranges which he said he bought from
an Indian boy, and that the boy would be returning on the following Tuesday with
more oranges. The statement given to Fortune on the day of arrest is to the same
effect.
In Irish v Barry, Wooding CJ, speaking about ‘proper and sufficient grounds for suspicion’
and of arrest without warrant, had this to say:100
The right or power to arrest without warrant ought never to be lightly used.
Those who possess it ought, before exercising it, to be observant, receptive and
open minded, not hasty in jumping to conclusions on inadequate grounds.
Caution should be observed before depriving any person of his liberty, and
more especially so when no prejudice will result from any consequent delay. I
am not in the least concerned, because I think it wholly irrelevant, that further
enquiry may have elicited no additional information or thrown no greater light
on the investigation in hand. What is important is that in such a case as this, no
person should exercise the power of arrest unless he had proper and sufficient
grounds of suspicion. If he does, then he is acting hastily and/or ill-advisedly.
In all cases, therefore, the facts, known personally and/or obtained on informa-
tion, ought carefully to be examined . . .
I have no doubt that Sandy acted precipitately in arresting the plaintiff. The plaintiff
testified that he had been carrying on his business as a vendor at the Central Market
since 1941. He was known to Sandy and to Sonnyboy and Nanan, and presumably to
many other persons. Sandy made no inquiries, even though the plaintiff was insisting
that he had bought the oranges from an Indian boy who would be returning the follow-

100 (1965) 8 WIR 177, p 182.

 Chapter 2: Trespass to the Person 29

ing Tuesday. He made no inquiries from persons who were present or easily accessible,
for example, from Louisa James, who carried on her business at the adjoining stall. She
gave evidence in the magisterial proceedings in support of the plaintiff’s allegations.
The offence was compounded when the plaintiff was put into the custody of Fortune.
Although Fortune testified that he made inquiries before charging the plaintiff, it is
evident that he made no attempt to elicit information from Louisa James or other per-
sons who were accessible, more so having regard to the plaintiff’s insistence that he had
bought the oranges. There was no reason why either Sandy or Fortune could not have
waited until the following Tuesday when the plaintiff said that Koylass would be
returning. This was not a case where it was necessary to arrest the plaintiff in order to
prevent his escape, even if Sandy or Fortune harboured a suspicion that the plaintiff had
stolen the oranges.
The evidence given by Clifton Koylass in the magisterial proceedings was to the effect
that he had sold the oranges to the plaintiff. This evidence was not assailed in cross-
examination. That of Louisa James was to the effect that Koylass first approached her to
sell the oranges, and that, after she refused the offer, the plaintiff bought them. Her
evidence also was not assailed in cross-examination. It is evident that the magistrate
discharged the plaintiff on the basis of this evidence. It is reasonable to assume that, if
Sandy and Fortune had taken the trouble to enquire from these two witnesses the true
state of the facts, they would not have arrested and imprisoned the plaintiff so precipi-
tately. I hold that the defendants have failed to discharge the burden of proving that
they had reasonable or probable cause for arresting and imprisoning the plaintiff. His
claim for unlawful arrest and false imprisonment succeeds.

In Jangoo v Gomez,101 J was employed as a Senior Clerk at the Port Authority, where
he had worked for over 17 years. One Friday afternoon, as he was leaving the
premises on his way home, J found a parcel behind a container. He took the parcel to
S, a customs guard. S told J to take it to the nearby security office, which he did,
showing the parcel to G, an estate constable, and another security officer, and
explaining how he found it. G called J a ‘thief’ and accused him of having stolen the
parcel. G arrested J and later took him to a police station. J was kept in custody until
the following Monday morning. He was charged with the offence of unlawful pos-
session. The charges were dismissed by the magistrate. J sued G for, inter alia, false
imprisonment. Mustapha Ibrahim J held that G had no reasonable grounds for sus-
pecting that J had committed a theft and he was liable for false imprisonment. He
explained:
A claim for false imprisonment . . . is really an action of trespass to the person. Once the
trespass is admitted or proved, it is for the defendant to justify the trespass and he must
justify it by plea (see the judgment of Goddard LJ in Dumbell v Roberts).102 In this case,
the trespass is admitted and also proved. The defendant contends that the arrest and
detention was lawful. The duty of the police when they arrest without warrant is set out
in the judgment of Scott LJ in Dumbell v Roberts:103
The duty of the police when they arrest without warrant is, no doubt, to be
quick to see the possibility of crime, but equally they ought to be anxious to
avoid mistaking the innocent for the guilty. The British principle of personal
freedom, that every man should be presumed innocent until he is proved guilty,

101 (1984) High Court, Trinidad and Tobago, No 2652 of 1978 (unreported) [Carilaw TT 1984
HC 49].
102 [1944] 1 All ER 326, p 331.
103 Ibid, pp 329–33.
30 Commonwealth Caribbean Tort Law

applies also to the police function of arrest – in a very modified degree, it is true,
but at least to the extent of requiring them to be observant, receptive and open
minded, and to notice any relevant circumstance which points either way,
either to innocence or to guilt. They may have to act on the spur of the moment
and have no time to reflect and be bound, therefore, to arrest to prevent escape;
but where there is no danger of the person who has ex hypothesi aroused their
suspicion that he probably is an ‘offender’ attempting to escape, they should
make all presently practicable enquiries from persons present or immediately
accessible who are likely to be able to answer their enquiries forthwith. I am not
suggesting a duty on the police to try to prove innocence – that is not their
function; but they should act on the assumption that their prima facie suspicion
may be ill-founded. That duty attaches particularly where slight delay does not
matter because there is no probability, in the circumstances of the arrest or
intended arrest, of the suspected person running away.
These observations of the learned Lord Justice are very relevant to the facts and circum-
stances of this case. Estate constables are not police officers within the provisions of
the Police Service Act, Ch 15:01. They are constables within the provisions of the
Supplemental Police Act, Ch 15:02. Their general powers are set out in s 14(1) of
the Supplemental Police Act. It reads thus:
14(1) . . . Every estate constable, throughout the division in which the estate to
which he belongs is situated . . . shall have all such rights, powers, authorities,
privileges and immunities and be liable to all such duties and responsibilities as
any member of the police service below the rank of corporal now has or is
subject or liable to or may hereafter have or be subject or liable to either by
common law or by virtue of any law which now is or may hereafter be in force
in Trinidad and Tobago.
It is by virtue of this section that the estate constables exercise powers of arrest, and the
obligations and duties placed upon them in the exercise of these powers, as set out in the
judgment of the learned judge, are to ensure that the powers are not exercised arbitrarily.
In this case, the defendant, Gomez, made no enquiries of anyone. He acted in clear
breach of the directions set out above. I hold that there was no ground whatever for
arresting the plaintiff and preferring the criminal charge against him. The defendant,
Gomez, acted with great haste and without knowing or caring to know what were the
facts. He had made up his mind to arrest and prosecute the plaintiff . . . I hold that the
defendant has failed to justify the trespass and the plaintiff succeeds on the claim of
false imprisonment.

Other statutory powers of arrest

Police constables, customs officers, forestry agents, numerous other officials and even,
in some cases, private individuals, are given powers of arrest without warrant by a
wide variety of statutory provisions. Examples are: s 41 of the Highways Act, Cap 289
(Barbados); s 41 of the Firearms Act, Ch 213 (The Bahamas); s 48 of the Road Traffic
Act, Ch 220 (The Bahamas); s 70 of the Summary Jurisdiction (Procedure) Act, Cap
10:02 (Guyana); s 23 of the Dangerous Drugs Act, Cap 90 (Jamaica); s 28 of the Main
Roads Act, Cap 231 (Jamaica); s 26 of the Coinage Offences Act, Ch 11:15 (Trinidad
and Tobago); s 104 of the Summary Courts Act, Ch 4:20 (Trinidad and Tobago). These
powers of arrest are normally exercisable where a person is found committing, or is
reasonably suspected to be committing or to have committed, the offence or offences
covered by the statute. In considering whether a defendant is entitled to rely on such a
provision as a defence to an action for false imprisonment, the court may be faced
with difficult problems of statutory interpretation.
 Chapter 2: Trespass to the Person 31

A case in which there was no difficulty in applying a statutory provision giving a

power to arrest without warrant is the Trinidadian case of Habre v AG,104 which also
serves as a reminder that police officers in all jurisdictions have wide statutory
powers to regulate road traffic, and that indiscreet and unco-operative conduct by a
motorist can easily put him ‘on the wrong side of the law’. In this case, the plaintiff
had parked his car on the pavement for a few minutes, while he attended to closing
the store in which he worked. This constituted an offence under the Motor Vehicles
and Road Traffic Act, Cap 45:50. He was approached by the defendant constable, who
asked him for his driver’s licence and insurance certificate. The plaintiff did not pro-
duce the documents and, when asked for his name and address, replied, ‘You know
who I am; all that information will be given at the police station’. Jones J held that, in
these circumstances, the defendant was entitled to arrest the plaintiff under s 9 of Cap
45:50, which provides:
Any constable may arrest without a warrant the driver or conductor of any motor
vehicle who within view commits any offence under this Act or under the Regulations,
unless the driver or conductor either gives his name and address or produces his permit
for examination.
Particular difficulty has arisen in interpreting those provisions which give powers of
arrest to constables in relation to persons ‘committing’ or ‘found committing’105 (as
opposed to ‘reasonably suspected to be committing’) certain offences. If a constable
believes on reasonable grounds that a person is committing a particular offence and
arrests that person, but it is later established that the arrestee was not in fact commit-
ting the offence, the question may arise as to whether the constable is liable for assault
and false imprisonment grounded on the unlawfulness of the arrest. In the English
case of Wiltshire v Barrett,106 it was held that two constables who had, in purported
exercise of their statutory power under s 6(4) of the Road Traffic Act 1960 to arrest any
motorist ‘committing an offence’ under s 6 of that Act, arrested a motorist whom they
reasonably suspected to be drunk, were not liable for assault, notwithstanding that
the motorist was subsequently found to be innocent. It was held that it was sufficient
for the constables to show that the motorist was apparently committing an offence
under the statute.
Similar issues were under consideration in Jamaica and Trinidad and Tobago in
Chong v Miller and Cummings v Demas respectively, but the courts in those cases took a
different view from that taken in Wiltshire v Barrett.
In Chong v Miller,107 the plaintiff was arrested by the defendant constable on sus-
picion of being in possession of illegal lottery tickets. No such tickets were, in fact,
found in his possession. The defendant relied, inter alia, on s 19 of the Constabulary
Law (Law 8 of 1867), which empowered a constable to arrest without warrant any
person found committing any offence punishable upon indictment or summary
conviction. Clark J, delivering the judgment of the Jamaican Full Court, said that:
. . . ‘found committing’ means what it says. As was said by Maule J in Simmons v

104 (1996) High Court, Trinidad and Tobago, No HCA 3800 of 1990 (unreported) [Carilaw TT
1996 HC 128].
105 See, for example, Summary Courts Act, Ch 4:20, s 104 (Trinidad and Tobago), which provides
that any person who is found committing any summary offence may be taken into custody,
without a warrant, by any police officer.
106 [1965] 2 All ER 271.
107 [1933] JLR 80. See also R v Sampson (1954) 6 JLR 292 (Court of Appeal, Jamaica).
32 Commonwealth Caribbean Tort Law

Millingen,108 ‘found committing’ is equivalent to being taken in flagrante delicto. To justify

arrest under s 19 of Law 8 of 1867, the constable must have perceived with his own
senses (whether seeing, hearing or otherwise) the commission of the offence in ques-
tion. In fact, of course, the plaintiff was found in possession of no lottery tickets and
was, therefore, not committing any offence at all at the time he was arrested.

Thus, s 19 did not afford a defence to liability for false imprisonment in this case.
Similar questions of statutory construction were in issue in Cummings v Demas.109
In this case, D and another police constable were present at a public entertainment
known as a ‘Coney Island Show’. Believing that an illegal game of chance was being
played, D arrested R, who was in charge of the game. As D was attempting to collect
the money lying on the gaming board, the appellant, the manager of the show, held
D’s hand to prevent him from removing the money and refused to let go. D then
arrested the appellant for obstructing a constable in the execution of his duty. The
appellant struggled violently but was eventually subdued and taken to the police
station, where he was charged with obstructing a constable and resisting arrest. R was
later acquitted of the charge of carrying on a public lottery contrary to s 7(1)(e) of the
Gambling Ordinance, Ch 4, No 20, and the appellant was acquitted of the charges of
obstruction and resisting arrest. The appellant sued D for damages for, inter alia, false
imprisonment. The West Indian Court of Appeal held that (a) the arrest of R was not
justified; (b) in seizing the money, D was not acting in the execution of his duty; and
(c) when the appellant attempted to prevent D from removing the money, he was not
committing any offence for which his arrest could be justified. D was, therefore, liable
for false imprisonment.
[Section 104 of the Summary Courts Ordinance, Ch 3, No 4 (now Ch 4:20), which
provided that ‘any person who is found committing any summary offence may be
taken into custody without warrant by any constable’,110 and s 21(1)(a) of the Police
Ordinance, Ch 11, No 1, which provided that ‘it shall be lawful for any member of the
Force to arrest without a warrant any person committing an offence punishable either
upon indictment or upon summary conviction’,111 were interpreted as authorising
arrest by a constable only where an arrestee was in fact committing an offence at the
time of the arrest. It was not sufficient that the arresting officer reasonably believed
the arrestee to be committing an offence, if no offence was in fact being committed.]112
Collymore, Malone and Worley CJJ stated:113
The gist of the action [for false imprisonment] is the mere imprisonment: the plaintiff
need not prove that the imprisonment was unlawful or malicious, but establishes a
prima facie case if he proves that he was imprisoned by the defendant; the onus then lies
on the defendant of proving a justification and he is entitled to succeed if he pleads
and proves that the imprisonment was legally justifiable (Halsbury’s Laws of England,
2nd edn, Vol 33, paras 67 and 80).

108 (1846) 135 ER 1051.

109 (1950) 10 Trin LR 43.
110 In Bruno v AG (1985) High Court, Trinidad and Tobago, No 671 of 1978 (unreported) [Carilaw
TT 1985 HC 164], Davis J held that a constable was entitled to arrest a person under s 104 for
using obscene language (contrary to s 49), which was a summary offence.
111 See also Constabulary Force Act (Jamaica), s 15.
112 The principle in Cummings v Demas was followed in Bolai v St Louis (1963) 6 WIR 453, and in
Wade v Cole (1966) High Court, Trinidad and Tobago, No 882 of 1959 (unreported) [Carilaw
TT 1966 HC 8].
113 (1950) 10 Trin LR 43, p 46.
 Chapter 2: Trespass to the Person 33

Accordingly, when the appellant had proved that he was arrested and imprisoned by
the respondents, the onus lay upon them to justify their action. We agree that the action
of the appellant in grasping the hand of Demas and so hindering him, even temporarily,
from taking up the money lying on the gaming table constituted an obstruction, but it
was not an offence unless Demas was at the time acting in the execution of his duty, and
this depends upon the questions:
(a) whether the arrest of Romero was legally justified; and
(b) whether Demas had any right to seize the money either as a right ancillary to the
arrest of Romero, or as a right independent of the right to arrest.
The first question necessitates consideration of the right of a member of the police force
of the colony to arrest without a warrant for offences under the Gambling Ordinance
and for other summary conviction offences, and it is as well to approach the question
from the standpoint of the position of the police at common law.
Although many statutory duties are nowadays imposed upon the police, the principle
still remains that, in view of the common law, a policeman is only ‘a person paid
to perform, as a matter of duty, acts which, if he were so minded, he might have
done voluntarily’ and, as Scott LJ intimated in the Court of Appeal in his judgment in
Leachinsky v Christie,114 the foundation on which the freedom of the individual rests is
the protection afforded him by the court against unauthorised arrest. Every arrest,
whether made by a policeman or by a private individual, is unlawful and constitutes an
actionable wrong unless it falls within one or other of the clearly defined cases where
the law allows it.
A constable’s powers of arrest are derived from three sources: (1) the common law; (2)
particular statutes; and (3) the warrant of a magistrate. We observe, first, that s 11 of the
Gambling Ordinance115 provides that any justice who is satisfied by proof upon oath
that there is reasonable ground for believing that any place is kept or used as a common
gaming house (and this Coney Island show was being so used) may issue a warrant
authorising any constable to enter such place, make search therein, arrest all persons
there and seize all appliances for gambling and all moneys found therein. Moreover, the
section further provides that whenever, owing to the lateness of the hour or other
reasonable cause, it shall be inconvenient to obtain a warrant, then it shall be lawful for
any commissioned officer of police, or any non-commissioned officer of police not
under the rank of sergeant, by night or day, without warrant, to enter any place which
he has reasonable grounds for believing is kept or used as a common gaming house,
and any such officer shall, upon such entry, have the same powers of search, arrest and
seizure as may be exercised by a constable duly authorised by a warrant. It is, however,
further provided that no such entry without a warrant shall be made unless such officer
is, at the time of entry, in the dress and uniform of the police force.
Sergeant Demas had, it is admitted, not armed himself with such a warrant, nor was any
attempt made to bring his action within the purview of the above mentioned provisos to
the section. No other section of the Gambling Ordinance confers any power of arrest,
and the first named respondent’s action can therefore only be justified either at common
law or under other particular statutes conferring a general power of arrest.
The common law powers of arrest without warrant are confined to treasons, felonies
and breaches of the peace, and these powers the police share with every citizen. The
only additional power, under common law, that a constable possesses is the right of
arrest on reasonable suspicion that a treason or felony has been committed and of the
person arrested being guilty of it (Halsbury, Vol 25, para 533). A breach of the peace may
be committed when a person obstructs a public officer in the execution of his duty:

114 [1945] 2 All ER 395.

115 Replaced by the Gambling and Betting Act, Ch 11:19.
34 Commonwealth Caribbean Tort Law

Spilsbury v Micklethwaite,116 per Lord Mansfield CJ. The arrest of the appellant could,
therefore, only be justified under the common law provided that Demas was in truth
and in fact acting in the execution of his duty when the appellant obstructed him, which
brings us back to the justification of the arrest of Romero and/or the seizure of the
money.
This arrest was not made under authority of a warrant, nor was it justifiable under the
common law or under s 11 of the Gambling Ordinance, and there remain only two
statutory provisions available to the respondents; these are s 104 of the Summary Courts
Ordinance, Ch 3, No 4 and s 21 of the Police Ordinance, Ch 11, No 1. The former
provides (omitting words irrelevant to our present purpose), ‘any person who is found
committing any summary offence may be taken into custody without warrant by any
constable’. Sub-section (1) of s 21 of the Police Ordinance is as follows:
(1) It shall be lawful for any member of the Force to arrest without a warrant –
(a) any person committing an offence punishable either upon indictment or upon
summary conviction . . .
The respondents’ case, therefore, was based upon the contention that the two above
mentioned sections, which confer upon constables a general power to arrest persons
committing or found committing an offence punishable on summary conviction, must
be construed as conferring by implication power to arrest persons reasonably suspected
of committing such an offence: and in those few words lies the crux of this appeal.
The first observation on this is that if such were the intention of the legislature, nothing
would have been easier than to say so in express words. There are numerous instances
in other enactments where such express words have been used when the legislature
clearly intended to confer the power to arrest upon suspicion; see, for example,
Summary Offences Ordinance, Ch 4, No 17, ss 35, 44, 65, and Larceny Ordinance, Ch 4,
No 11,117 s 40 . . . But these comparisons, though significant, are not conclusive:
Our duty is to take the words as they stand and to give them their true construc-
tion, having regard to the language of the whole section and, as far as relevant,
of the whole Act, always preferring the natural meaning of the word involved,
but nonetheless always giving the word its appropriate construction according
to the context.118
It is the duty of the court in construing sections of this nature (said Lord Wright in the
same case (p 389)) ‘to balance the two conflicting principles, the one that the liberty of
the subject is to be duly safeguarded; the other that the expressed intention of the
legislature to give powers of arrest beyond those existing at common law should not be
too narrowly construed. But in the end, the issue falls to be ascertained by deciding
what is the correct meaning to be attributed to the words of the particular section which
gives the power, read according to the recognised rules for construing statutes.
In our view, therefore, the learned Chief Justice misdirected himself in holding that it
was sufficient justification for the respondents to show that they honestly and reason-
ably believed that Romero was committing an offence at the time of his arrest. So stated,
the terms of the proposition are far too wide and cannot be supported by authority.
We pass now to consider the Solicitor General’s contention that the respondent, Demas,
had a right to seize the money on Romero’s table, if he believed that an unlawful game
was being played, and that this right existed independently of any right to arrest
Romero. No authority was given for this proposition and, in the absence of any special
local statutory provision, the law on this point is the same as that of England, which is
stated in Halsbury, Vol 9, para 130, as follows:

116 (1808) 127 ER 788, p 789.

117 Now Larceny Act, Ch 11:12.
118 Barnard v Gorman [1954] AC 378, p 384, per Viscount Simon LC.
 Chapter 2: Trespass to the Person 35

A constable, and also, it seems, a private person, may upon lawful arrest of a
suspected offender take and detain property found in the offender’s possession,
if such property is likely to afford material evidence for the prosecution in
respect of the offence for which the offender has been arrested.
The origin of the right is the interest of the State in the person charged being brought to
trial, which interest necessarily extends as well to the preservation of material evidence
of his guilt or innocence as to his custody for the purpose of trial. But this presupposes a
lawful arrest.
The law is also stated rather more fully in Halsbury, Vol 25, para 538:
A constable may, upon the lawful arrest of a suspected offender, take and detain
property found in his possession if the property is likely to afford material
evidence in respect of the offence charged, and may retain it for use in court
against the person arrested until the conclusion of the trial. A constable should
not take property not in any way connected with the offence, but the seizure
and detention, otherwise unlawful, of documents and articles in the possession
and control of a person arrested will be excused if it should subsequently
appear that they are evidence of a crime committed by anyone.
The seizure of the money could, therefore, only be justified by establishing either that
Romero’s arrest was lawful or that he or someone had committed an offence of which
the money was material evidence. As the respondents have failed to establish either
of these justifications, it must follow that they have not discharged the onus of showing
that Sergeant Demas was acting in the execution of his duty in seizing the money and
that the appellant was committing an offence in obstructing him.

Statutory protection for constables

Section 33 of the Constabulary Force Act (Jamaica) provides:

Every action to be brought against any constable for any act by him in the execution
of his office, shall be an action on the case as for a tort; and in the declaration it
shall be expressly alleged that such act was done either maliciously or without reason-
able or probable cause; and if at the trial of any such action the plaintiff shall fail
to prove such allegation he shall be non-suited or a verdict shall be given for the
defendant.

This section in effect reverses the burden of proof in actions for false imprisonment by
requiring the plaintiff to establish lack of reasonable and probable cause or malice on
the part of the constable, whereas at common law, the onus is on the defendant to
show that he had reasonable cause for the detention of the plaintiff.
The section (and its identically worded predecessor, s 39 of the Constabulary
Force Law, Cap 72, 1953 edn) has been successfully relied upon in a number of
Jamaican cases.119
One question which has been addressed by the courts is whether the arrest by a
constable is ‘done in the execution of his office’ where the constable mistakenly
believed he had a statutory power of arrest when in fact he had not, so that the arrest
was unlawful. The issue was discussed in Reid v Sylvester.120 In this case, R, a street
vendor, was arrested by S, a special constable, for causing an obstruction on a main

119 Eg, West v AG (1986) 23 JLR 323 (Supreme Court, Jamaica); Marston v Wallace [1960] Gleaner
LR 277; Reid v Sylvester (1972) 19 WIR 86.
120 (1972) 19 WIR 86.
36 Commonwealth Caribbean Tort Law

road, and was charged with an offence under s 25(9) of the Main Roads Law, Cap 231.
Section 27(3) of the Law provided:
No person shall be liable to be arrested under this section if, on demand, he shall
give his name and address, unless the constable or other person having power of
arrest under this section has reason to believe the name and address given to be
false.

R was acquitted of the charge and sued S for false imprisonment. It was argued that
the arrest was unlawful, since, on a true construction of s 27(3), a prerequisite of a
constable’s power to arrest was a demand made of the offender for his name and
address, and either failure on the part of the offender to comply with the demand or
the giving of a name and address which the constable reasonably believed to be false.
The Jamaican Court of Appeal held: (a) that the demand of an offender’s name and
address was not a condition precedent to a constable’s power of arrest under the
section and the arrest was, therefore, lawful; (b) that even if the arrest was unlawful,
S was entitled to rely on s 39 of the Constabulary Force Law, Cap 72 (now s 33 of the
Constabulary Force Act). A constable could rely on the section, whether he had acted
under a mistake of fact or under a mistaken notion as to his powers of arrest under
s 27(3) of the Main Roads Law. Since there was no evidence of malice or lack of
reasonable and probable cause on the part of S, he was not liable for false imprison-
ment. In coming to this conclusion, the court overruled its earlier decision in Murphy v
Richards,121 in which it had held that a constable who carries out an arrest under a
mistake of fact (for example, where he is mistaken as to the identity of the arrestee)
will be protected by s 39, but a constable who arrests under a mistake as to the scope,
extent or existence of a power of arrest (a mistake of law) will not be protected. Fox JA
struck a cautionary note, however, when he pointed out that it had been emphasised
in Chong v Miller 122 that:
. . . where the defendant is a constable and claims to have acted under a bona fide
mistake as to his legal powers of arrest, this claim should naturally be subject to careful
scrutiny before it is accepted. A constable, above all people, may be presumed to know
the law as to his own powers of arrest, and it can be only in unusual circumstances that
any court would conclude that he was acting in good faith if he acted outside those
powers . . . [the decision was] in no way to be taken as authority for any general prop-
osition that a constable may make arrests which are unlawful and yet escape liability for
so doing.

On the facts in Reid, however, Fox JA took the view that where, as in the present case:
. . . an answer to the particular legal point upon which the lawfulness or otherwise
of the constable’s action depends is not immediately apparent, the fact that lawyers
ultimately conclude that the constable had acted illegally should be allowed very little,
if any, significance in deciding these matters . . . Even if it is conceded that Constable
Sylvester was acting under a mistaken notion of his powers of arrest under s 27 of
the Main Roads Law, he was nevertheless honestly endeavouring to discharge his func-
tion as a constable and is therefore entitled to the protection of s 39 of the Constabulary
Force Law.123

121 (1960) 2 WIR 143.

122 [1933] JLR 80, p 88.
123 (1972) 19 WIR 86, p 94.
 Chapter 2: Trespass to the Person 37

Procedure during and after arrest

An arrest which would otherwise be lawful will be unlawful if the arresting officer
neglects to follow the proper procedure during and after the arrest. An arresting
officer who fails to observe the required procedure may be liable for false imprison-
ment. In particular:
(a) the arrestee must be informed that he is under arrest, and he must be informed of
the true ground for the arrest either at the time of arrest or as soon as practicable
afterwards;
(b) after an arrest, the arresting officer must bring the arrestee before a magistrate as
soon as reasonably practicable.124 If a private person makes an arrest, he must give
the arrestee into the custody of the police (or a magistrate) as soon as reasonably
practicable.
It seems that a police officer, but not a private citizen, may make reasonable further
investigations before the arrestee is charged. For example, he may take him to his
home or place of work in order to inquire or search; or he may put him on an identifi-
cation parade.125 But the officer must not act unreasonably (for example, by detaining
the arrestee for three days before taking him before a magistrate, for the purpose of
collecting evidence against him).126
On the other hand, a lawful arrest is not rendered unlawful by reason of the fact
that the arrestee is later released without being charged with an offence before the
court. As Osadebay J explained in a recent Bahamian case:127
Where a police officer exercises his power of arrest without a warrant on the ground
that he honestly believes that he has reasonable cause to suspect that an arrestable
offence has been committed, he may release the person arrested without charging him
before a court with any offence where his investigation, although diligently pursued,
fails to produce prima facie proof which must be in the form of evidence that would be
admissible in a court of law. If the police, after a diligent investigation, come to the
conclusion that prima facie proof of the arrested person’s guilt is unlikely to be dis-
covered through further enquiries, it is their duty to release that person from custody
unconditionally.

The rule that an arrestee must be informed of the true ground for the arrest was

124 Padilla v George (1967) High Court, Trinidad and Tobago, No 2143 of 1965 (unreported)
[Carilaw TT 1967 HC 10], per Rees J; Campbell v AG (1992) 29 JLR 1 (Supreme Court, Jamaica).
What constitutes a reasonable time depends on the circumstances of the individual case, and
‘no hard and fast rule of inflexible application can be laid down’: Flemming v Myers (1989) 26
JLR 525 (Court of Appeal, Jamaica), p 527, per Carey P (Ag); Edwards v AG (1992) 29 JLR 386
(Supreme Court, Jamaica), p 394, per Smith J.
125 Edwards v AG (1992) 29 JLR 386 (Supreme Court, Jamaica), p 395, per Smith J.
126 See Dallison v Caffery [1964] 2 All ER 610; Holgate-Mohammed v Duke [1984] 1 All ER 1054;
Davidson v Williams (1990) 1 TTLR 185 (High Court, Trinidad and Tobago); Flemming v Myers
(1989) 26 JLR 525. In Fearon v AG (2005) Supreme Court, Jamaica, No CL 1990/F-046
(unreported) [Carilaw JM 2005 SC 36], Harris J held that the claimant, who had been arrested
and charged with receiving stolen goods, ought to have been taken before a justice of the
peace or resident magistrate on the day following his arrest, for the question of his bail to be
determined; or he could have been granted bail by a senior police officer at the police station.
Instead, he was detained for four days, which was unreasonable. He thus had a good cause
of action for false imprisonment.
127 Francis v Nixon and AG (2001) Supreme Court, The Bahamas, No 113 of 1998 (unreported)
[Carilaw BS 2001 SC 39].
38 Commonwealth Caribbean Tort Law

established in the leading case of Christie v Leachinsky,128 where it was held that it is the
constitutional right of every citizen to know why he is being detained, so that he will
be in a position to know whether he is entitled to resist the arrest. The rule applies
whether the person carrying out the arrest is a police officer or a private citizen
(including store detectives and private security guards). It is not necessary for the
ground of arrest to be expressed in precise technical language. It is sufficient if the
arresting officer conveys to the arrestee the substance of the alleged offence.
The rule that an arrestee must be told the reason for his arrest does not apply in
two types of circumstance:
(a) where the arrestee must be taken to have been aware of the reason for the arrest,
for example where he is caught ‘red handed’ in the commission of an offence; or
(b) where the arrestee made it impossible for him to be told the reason for the arrest
by counter-attacking or running away.129
In Davis v Renford,130 the Jamaican Court of Appeal held that these exceptions apply
equally to s 15(2) of the Jamaican Constitution, which provides that ‘any person who
is arrested or detained shall be informed as soon as reasonably practicable, in a lan-
guage which he understands, of the reasons for his arrest or detention’. Thus, where
P had been arrested whilst in the process of committing a breach of the peace, he was
taken to have been aware of the reason for his arrest and this was sufficient to satisfy
both the rule in Christie v Leachinsky and the provisions of s 15(2).
A case in which the application of the Christie v Leachinsky principle was in issue
is the Jamaican case of R v Smart.131 Here, a constable became suspicious when he saw
S receive some money from two sailors in a public place. He went up to S, asked for
his name and address (which S gave), and told S that he would report the incident
with a view to prosecuting him for a breach of the Road Traffic Law, Cap 346. S uttered
an obscene word at the constable and started to make a noise and gesticulate with his
hands. The constable told S to desist or he would arrest him, but he did not state what
offence he would arrest him for. S continued making a noise and a crowd gathered.
The constable arrested S without stating the offence for which S was being arrested. A
scuffle ensued, in the course of which S assaulted the constable. S was later charged
with, inter alia, assaulting a constable in the execution of his duty. One of the issues to
be decided was whether the arrest of S was unlawful on the ground that S had not
been informed of the reason for it.
Carberry J held that the arrest was lawful, since: (a) in the circumstances, S must
be taken to have known the reason for his arrest; and (b) by counter-attacking as soon
as the constable held him, S had made it practically impossible for the constable to
give the reason for the arrest. He said:132
Having regard to the charges which were entered against the appellant when he
reached the police station, it would appear that the offence for which the appellant was

128 [1947] AC 573. See Palmer v Morrison [1963] Gleaner LR 150 (Court of Appeal, Jamaica); Small
v Trinidad Tesoro Petroleum Co Ltd (1978) High Court, Trinidad and Tobago, No 540 of 1972
(unreported) [Carilaw TT 1978 HC 71]; Mills v AG (1980) High Court, Trinidad and Tobago,
No 1009 of 1974 (unreported); Gill v Anthony (1990) 42 WIR 72 (Court of Appeal, Belize).
129 Christie v Leachinsky [1947] AC 573, pp 587, 588.
130 (1980) 37 WIR 308.
131 (1952) 6 JLR 132.
132 Ibid, p 134.
 Chapter 2: Trespass to the Person 39

arrested was that of using indecent language, and, under s 2(1) of the Towns and
Communities Law, Cap 384, there was authority to arrest for that offence.
It was stated in the course of argument that the locally decided case of Cooper v
Cambridge 133 may have been impliedly overruled by the decision of the House of Lords
in Christie v Leachinsky.134
Cooper v Cambridge came before the full court on appeal from the decision of a resident
magistrate in an action in which damages were sought against a constable for false
imprisonment. The constable arrested the plaintiff for noisy and disorderly conduct,
which consisted of noisy and indecent language. In the course of his judgment,
Barrett-Lennard CJ said, ‘It was the commission of a particular offence in his presence,
not his label of it, which was the source of his (the constable’s) authority’, and ‘Justice
plainly demands that he should not be cast in damages because he called indecent
language disorderly conduct’.
In the Leachinsky case, Viscount Simon stated:135 ‘The requirement that he (the person
arrested) should be so informed (for what offence he was being arrested) does not mean
that technical or precise language need be used.’
As counsel for the appellant very properly conceded, there would be no conflict
between the Leachinsky case and Cooper v Cambridge if the latter case is understood as
having decided that if an offence is committed in the presence of a constable and he
intends to arrest for that particular act, the fact that he misdescribes the offence when
effecting the arrest does not prevent him from showing that the arrest was lawful. The
example given by appellant’s counsel very well illustrates this, viz: if a constable arrests
for obtaining money by false pretences a man whom he sees ‘ringing the changes’, the
arrest is not unlawful because the constable did not describe the offence as larceny by
a trick.
We now consider the alternative submission, that is, that Constable Lucas arrested the
appellant without telling him on what charge he was arrested and that, on the authority
of the Leachinsky case, such an arrest is unlawful.
We agree that it is a fair conclusion on the evidence that, when Constable Lucas held the
appellant, he did not say on what charge the appellant was being arrested, but we are of
the opinion that this case comes within the exception contained in the third proposition
stated by Viscount Simon in the Leachinsky case (p 587): ‘The requirement that the
person arrested should be informed of the reason why he is seized naturally does not
exist if the circumstances are such that he must know the general nature of the offence
for which he is detained’. This proposition was stated as approving the decision in R v
Howarth,136 where it is laid down that there is no need to tell a man why he is being
arrested when he must, in the circumstances of the arrest, know the reason already. The
circumstances which led to the arrest of the appellant occurred immediately before the
constable held him; so well was this recognised that, at the trial, no question was raised
as to the appellant not knowing on what charge he had been arrested. Moreover, the
appellant counter-attacked as soon as the constable held him and we think that the
failure to inform the appellant of the charge on which he was held could also be justified
on Viscount Simon’s fifth proposition, viz:
The person arrested cannot complain that he has not been supplied with the
above information as and when he should be, if he himself produces the situ-
ation which makes it practically impossible to inform him, for example, by
immediate counter-attack or by running away.

133 [1931] Clark’s Rep 336.

134 [1947] AC 573.
135 Ibid, p 587.
136 (1828) 168 ER 1243.
40 Commonwealth Caribbean Tort Law

As for the requirement that an arrestee must be brought before a magistrate as

soon as reasonably practicable, the Jamaican case of Flemming v Myers 137 is instructive.
Here, the plaintiff was taken into custody on the instructions of the defendant police
officer on suspicion of murder. He was detained at the police station for 13 days,
during which time he was subjected to several beatings by the defendant and other
police officers. He was eventually discharged by the magistrate, and he brought an
action against the defendant for false imprisonment. The trial judge found for the
defendant. On appeal to the Jamaican Court of Appeal, Forte JA held that, although
the initial arrest of the plaintiff was lawful, his subsequent detention for 13 days
before being brought before the magistrate was unreasonable and amounted to a
false imprisonment. His Lordship pointed out that, by s 15(3)(b) of the Jamaican
Constitution, ‘any person who is arrested or detained . . . upon reasonable suspicion
of his having committed or being about to commit a criminal offence, and who is not
released, shall be brought without delay before a court’. He continued:
At common law, a police officer always had the power to arrest without warrant a
person suspected of having committed a felony. In those circumstances, however, he
was compelled to take the person arrested before a justice of the peace within a reason-
able time. The fundamental rights and freedoms which are preserved to the people of
Jamaica by virtue of the Constitution are rights and freedoms to which they have
always been entitled. In DPP v Nasralla,138 Lord Devlin, in delivering the judgment of
the [Privy Council], acknowledged this proposition. In referring to Chapter III of the
Constitution, which preserves the fundamental rights and freedoms, he stated:
This chapter, as their Lordships have already noted, proceeds upon the pre-
sumption that the fundamental rights which it covers are already secured to the
people of Jamaica by existing law.
It is my view, therefore, that the words ‘without delay’ as used in s 15(3) ought to be
construed in the light of the common law which had previously existed and, in arriving
at the appropriate period which would constitute action ‘without delay’, all the circum-
stances of the particular case should be examined in order to determine whether the
person arrested was brought before the court within a reasonable time.

Forte JA further held in Flemming v Myers that the defendant was not protected by s 33
of the Constabulary Force Act, since the detention of the plaintiff for 13 days before he
was brought before the magistrate, without any explanation for the long delay, was
evidence that the defendant had no reasonable or probable cause for the detention,
albeit that the initial arrest was lawful.

Arrest through agent

A defendant in an action for false imprisonment may be liable even though he did not
personally arrest or detain the plaintiff. He will be liable if he directed or authorised a
purely ministerial officer of the law, such as a police constable, to carry out the arrest
or detention. In the Jamaican case of Mullings v Murrell,139 the plaintiff was employed
as a security guard by a company of which the defendant was personnel manager.

137 (1989) 26 JLR 525 (Court of Appeal, Jamaica). See also Baugh v Courts (Jamaica) Ltd and AG
(2006) Supreme Court, Jamaica, No CL B099 of 1997 (unreported), per Sykes J [Carilaw JM
2006 SC 97].
138 [1967] 3 WLR 13, p 18.
139 (1993) 30 JLR 278.
 Chapter 2: Trespass to the Person 41

Suspecting that the plaintiff had stolen some paint from business premises of a third
party, where the plaintiff had been assigned to duty the previous day, the defendant
called a police constable and, when asked by the constable what he (the constable)
should do with the plaintiff, the defendant replied, ‘Lock him up’. The plaintiff was
thereafter kept in custody by the police for 18 days. He was charged with larceny, but
the case was dismissed. Courtenay Orr J held that the defendant was liable for false
imprisonment, as he had ‘clearly requested, indeed demanded, that the constable, a
ministerial officer, should arrest the plaintiff, and so duly authorised the arrest’.
Similarly, in the Canadian case of Lebrun v High-Low Foods Ltd,140 the proprietors of
a supermarket, whose manager, suspecting that P had stolen an item from the store,
called the police, were liable for false imprisonment on account of the constable’s
detention of P for a few minutes in the car park while he searched P’s car and found
no stolen goods. And in the Guyanese case of Lander v Gentle,141 a doctor who, believ-
ing in good faith that P was a dangerous lunatic, caused him to be detained in a
mental hospital, was held liable for false imprisonment when it turned out that the
detention was unjustified. In such cases, the defendant is liable on the ground that he
used the ministerial officer as his agent to effect the arrest or detention.
On the other hand, a person who merely gives incriminating information to a
police officer who, in the exercise of his own independent discretion, decides to arrest
the plaintiff, will not be liable for false imprisonment;142 nor will he be liable for false
imprisonment if he wrongfully brings a complaint before a magistrate who then
issues a warrant for the plaintiff’s arrest, for a magistrate is a judicial, not merely a
ministerial, officer (though he may be liable for malicious prosecution or the analogous
tort of malicious arrest).143
An example of the effect of giving incriminating information is Hughes v
McLean.144 Here, the defendant, a wheelwright, thinking that certain cart wheels
manufactured in his shop were missing, told a constable of his loss and left the matter
in the constable’s hands for investigation. The constable later arrested the plaintiff on
suspicion of theft. No theft had in fact been committed. The plaintiff then sued the
defendant for false imprisonment.
It was held that the defendant did not authorise the constable to arrest the plain-
tiff, nor did he make any charge against the plaintiff which cast a duty on the con-
stable to carry out the arrest. The defendant was, therefore, not liable. Lucie-Smith
CJ said:
The whole question for decision is whether the defendant authorised the constable to
act in the matter or whether he bona fide gave information to the constable, leaving the
constable to make enquiry into the circumstances and act as he might think fit in the
matter. There is no proof that a felony had been actually committed, and the defendant
would be liable in damages if he authorised the constable to act in the matter; if he made
a charge on which it became the duty of the constable to act he would be responsible,
but it would be quite a different thing if he simply gave information and the constable
thereupon acted according to his own judgment.

140 (1968) 69 DLR (2d) 433.

141 [1941] LRBG 159.
142 Gosden v Elphick (1849) 154 ER 1287; Ryan v Simpson (1872) 6 SALR 38; Salmon v Roache (1995)
32 JLR 406 (Court of Appeal, Jamaica), per Rattray P and Patterson JA.
143 Laird v AG (1974) 21 WIR 416, p 423.
144 (1921) 4 Trin SC 98 (Supreme Court, Trinidad and Tobago).
42 Commonwealth Caribbean Tort Law

The defendant says that, as the plaintiff failed to find the cart wheels, he sent for the
constable and told him of the loss and that he left the matter in his hands to investigate.
The constable corroborates the defendant and says he suspected the plaintiff knew
something of the wheels from his demeanour, and arrested him on his own initiative.
On the evidence, I can only come to the conclusion that the defendant, having lost his
wheels, called a constable to make enquiry and the constable afterwards acted accord-
ing to his own judgment. The defendant is, therefore, not responsible and judgment
must go in his favour.

Signing the charge sheet

When a charge is drawn against a prisoner, the charge sheet will normally be signed at
the police station by a police officer,145 who will be responsible for the subsequent
detention of the prisoner. On rare occasions, however, a charge sheet may be signed
by a private person. Whether or not that person will be liable for the subsequent
detention of the prisoner will depend upon whether he is found to have directed or
authorised the detention, which is a question of fact in each case. Two Guyanese cases
on either side of the line are Allen v Canzius and Bascom v Da Silva.
In Allen v Canzius,146 the plaintiff, who was a tailor employed by a firm, was asked
by the defendant, a fellow employee, whether he had picked up an envelope which
the latter had dropped by accident. The envelope had the defendant’s name written
on it and contained $11. The plaintiff replied ‘No’ to the defendant’s question. The
defendant then complained to the secretary of the firm and went to the police station,
bringing a constable back with him. After making enquiries, the constable took the
plaintiff to the police station (the defendant accompanying), where the plaintiff was
searched. (The envelope was later found elsewhere, empty.) At the police station, a
charge of theft was made out against the plaintiff and the defendant signed the charge
sheet. Douglas J (Ag) said:147
There is not a word disclosed on the evidence showing that the defendant either
ordered the arrest of the plaintiff or gave him into custody. There is no doubt that the
steps he took were bona fide taken under the impression that the plaintiff had stolen his
money; and he left it to the police to investigate, and take what course they decided on.
In Sewell v National Telephone Co Ltd, it is said:148 ‘The act . . . ’ – that is, signing the
charge sheet – ’ . . . was merely to provide a prosecutor, and that does not let in liability
to an action for false imprisonment unless the person who takes that step has taken on
himself the responsibility of directing the imprisonment.’
I am not satisfied from the evidence that the defendant directly caused the imprison-
ment of the plaintiff. I accordingly find for the defendant.

In Bascom v Da Silva,149 the opposite conclusion was reached. Here, the defendant,
believing that the plaintiff had stolen a clamp belonging to him, directed L, a rural
constable, to arrest the plaintiff, ‘with no desire that the matter should come before the
magistrate, but only as a means of receiving what he thought was his property’. A

145 As in Taylor v McPhee (2001) Supreme Court, The Bahamas, No 180 of 1999 (unreported) (an
action for malicious prosecution).
146 [1920] LRBG 139 (Petty Debt Court, British Guiana).
147 Ibid, p 140.
148 [1907] 1 KB 557, p 560.
149 [1933] LRBG 157 (High Court, British Guiana).
 Chapter 2: Trespass to the Person 43

charge of theft brought against the plaintiff was dismissed by the magistrate and
the plaintiff sued for false imprisonment. One of the questions raised was the effect of
the defendant’s signing of the charge sheet at the police station after the plaintiff’s
arrest. McDowell J (Ag) said:
I find as a fact that, had the defendant not signed the charge sheet, Sergeant Green
would not have proceeded with the case. With regard to this latter point, it was argued
that the signing of the charge sheet was not a false imprisonment, and reliance was
placed on Grinham v Willey 150 and Sewell v National Telephone Co Ltd,151 but, in my opin-
ion, these cases are very easily distinguished. In Grinham v Willey, Bramwell B said:
An offence was committed; the defendant sent for a policeman, who made an
enquiry and on his own authority arrested the plaintiff. The defendant signed
the charge sheet; but in doing so he did nothing but obey the direction of the
police.
In Sewell v National Telephone Co Ltd, Collins MR said:
The defendants in this case had nothing to do, so far as appears in the evidence,
with the initiation of the charge against the plaintiff. The man had been taken
into custody and not until he was in custody at the police station did the
defendant appear on the scene. At that stage, their representative signed the
charge sheet on their behalf, and the case of the plaintiff is bare of everything
but that fact.
In view of my acceptance of Sergeant Green’s evidence, ‘I didn’t charge him but sent for
Da Silva, who came and found Licorish there . . . the defendant asked me to charge him;
I said I wouldn’t do it’, and ‘I didn’t charge Bascom, he was already under arrest and
I decided it was not a case for the police’, this case appears not to be within the
above mentioned cases, but rather within Austin v Dowling,152 where the defendant’s
wife gave the plaintiff in charge on an unfounded charge of felony and the defendant
subsequently signed the charge sheet. Willes J said:153
If the defendant had merely signed the charge sheet, according to Grinham v
Willey, would not have this amounted to no more than making a charge against
one already in the custody of a minister of the law who intended to keep him
there? But it is found in the case that, though the defendant gave no express
direction for the plaintiff’s detention, he was expressly told by the inspector on
duty that he (the inspector) disclaimed all responsibility in respect of the charge
and that he would have nothing to do with the detention of the plaintiff except
on the responsibility of the defendant; and that the inspector would not have
kept the plaintiff in custody unless the charge of felony was distinctly made by
the defendant. Signing the charge sheet with that knowledge, therefore, was the
doing of an act which caused the plaintiff to be kept in custody . . .
I have commented on this point as it was raised during the hearing, but it is only of
academic interest, as the claim is for damages for false imprisonment through the
medium of the rural constable, Licorish.
Now the common law power of arrest without warrant possessed by a constable qua
constable and that possessed by a private individual differ in an important way.
Briefly, a constable may arrest on reasonable suspicion of felony, whereas ‘a private
individual is justified in himself arresting a person or ordering him to be arrested where
a felony has been committed and he has reasonable ground of suspicion that the person

150 (1859) 157 ER 934.

151 [1907] 1 KB 557.
152 (1870) LR 5 CP 534.
153 Ibid, p 539.
44 Commonwealth Caribbean Tort Law

accused is guilty of it’: Walters v WH Smith and Son Ltd 154 and, as the learned Chief
Justice says:155 ‘When a person, instead of having recourse to legal proceedings by
applying for a judicial warrant for arrest, or laying an information or issuing other
process well known to the law, gives another into custody, he takes a risk upon himself
by which he must abide, and if in the result it turns out that the person arrested was
innocent and that, therefore, the arrest was wrongful, he cannot plead any lawful excuse
unless he can bring himself within the proposition of law which I have enunciated in
this judgment’, that is, the proposition quoted above.
In my opinion, the defendant has failed to prove the existence of either of the two things
which together would justify the action.

The defendant was accordingly held liable for false imprisonment, McDowell J
expressing ‘strong disapproval of abuses of the law by using threats of criminal
proceedings for purely personal ends’.

Assessment of damages for false imprisonment

There are few established rules as to the assessment of damages in cases of false
imprisonment, and the quantum is left very much to the judge’s discretion. The main
heads of damage appear to be the following:156
• loss of liberty;
• injury to feelings (that is, the indignity, disgrace, humiliation and mental suffering
arising from the detention);157
• physical injury, illness or discomfort resulting from the detention;
• injury to reputation;
• any pecuniary loss which is not too remote a consequence of the imprisonment
(for example, loss of business, employment or property).158
Some of these heads of damage were assessed in the Trinidadian case of Quashie v
AG.159 Here, the plaintiff, a member of a gang of labourers weeding and cutlassing the
roadside, was unlawfully arrested by two police constables. He was handcuffed160
and taken to the police station, where he was detained for 14 hours, without having
been told the reason for his arrest or detention. There was also evidence that he had
been struck and pushed several times by the constables. The plaintiff was later
charged with using obscene language, resisting arrest and assaulting a constable
in the execution of his duty. The charges were dismissed by the magistrate. The

154 [1914] 1 KB 595, p 605.

155 Ibid, p 607.
156 See op cit, McGregor, fn 50, para 1619.
157 See Merson v Cartwright (1994) Supreme Court, The Bahamas, No 1131 of 1987 (unreported)
[Carilaw BS 1994 SC 53].
158 Childs v Lewis (1924) 40 TLR 870.
159 (1992) High Court, Trinidad and Tobago, No 30 of 1987 (unreported).
160 In Ramsarran v AG (2001) High Court, Trinidad and Tobago, No S 1597 of 1986 (unreported),
the plaintiff, a well-known businessman who had voluntarily turned himself over to the
police, was handcuffed to a rail. Moosai J pointed out that the alleged offences for which the
plaintiff had been charged were summary offences, and s 109 of the Summary Courts Act,
Ch 4:20 (Laws of Trinidad and Tobago) provides that a person arrested shall not be hand-
cuffed except in cases of necessity, or of reasonable apprehension of violence, or of attempt to
escape, or by order of a court or magistrate. None of these circumstances were present in this
case, and the act of handcuffing amounted to oppressive, arbitrary and unconstitutional
conduct warranting an award of exemplary damages.
 Chapter 2: Trespass to the Person 45

constables were held liable for assault, false imprisonment and malicious prosecution.
On the question of damages, Hosein J had this to say:
In Walter v Allfools,161 Lawrence LJ said that ‘a false imprisonment does not merely
affect a man’s liberty, it also affects his reputation’ . . . When that is taken into account,
together with the fact of imprisonment for a considerable period without a charge
having been brought, the handcuffing for some 14 hours, thereby preventing the plain-
tiff from taking refreshment (even if that had been offered), and the fact that he was
never informed as to the reason for his arrest or told about his right to an attorney, were
circumstances which must attract aggravated damages. Further, the plaintiff must have
been injured and humiliated and must have sustained a loss of dignity by an unlawful
arrest effected in a high-handed and aggressive manner, and by a loss of his freedom
before his fellow workers who indeed were shouting, ‘leave the boy alone, he ain’t do
nothing’.

In addressing the plaintiff’s claim for exemplary damages, Hosein J continued:

The claim for exemplary damages is founded on the basis that the circumstances
surrounding the assault, false imprisonment and malicious prosecution of the plain-
tiff amounted to oppressive, arbitrary and unconstitutional action by servants of
the state.
Constitutional rights are not incidents of levity and their infringement by officers of the
state is, and would always remain, a matter of seriousness and concern. In this respect,
the plaintiff is entitled to exemplary damages for breach of his constitutional right not to
be deprived of his liberty without due process. Deyalsingh J awarded the plaintiff in
Robinson v AG 162 $15,000 for breach of his rights to freedom of expression of political
views and freedom of assembly. I consider an award of $9,500 to be an appropriate
amount in respect of exemplary damages.

Finally, the Bahamian Court of Appeal has emphatically held in Barr v AG 163 that a
plaintiff who has received damages for the tort of false imprisonment is not entitled to
a further award under Art 19164 of the Bahamian Constitution, where the facts sup-
porting both claims are similar, as ‘the Constitution does not envisage a duplication of
claims for unlawful arrest’. This conclusion was mandated by the proviso to Art 28,
which states that the Supreme Court shall not exercise its power to make awards
where it is satisfied that adequate means of redress are available to the plaintiff under
any other law.

161 (1944) 16 TLR 39, p 40.

162 (1981) High Court, Trinidad and Tobago, No 941 of 1976 (unreported).
163 (2001) Court of Appeal, The Bahamas, No 18 of 1994 (unreported) [Carilaw BS 2001 CA 7]);
see also Francis v Nixon and AG (2001) Supreme Court, The Bahamas, No 113 of 1998
(unreported) [Carilaw BS 2001 SC 39], per Osadebay J.
164 Art 19(1) provides that no person shall be deprived of his personal liberty unless authorised
by law, inter alia, upon reasonable suspicion of having committed or being about to commit a
criminal offence.
 CHAPTER 3

MALICIOUS PROSECUTION

INTRODUCTION

The tort of malicious prosecution is committed where the defendant maliciously and
without reasonable and probable cause initiates against the plaintiff a criminal pros-
ecution which terminates in the plaintiff’s favour, and which results in damage to the
plaintiff’s reputation, person or property.
In this tort, the law seeks to hold a balance between two opposing interests of
social policy, namely:
(a) the interest in safeguarding persons from being harassed by unjustifiable litiga-
tion; and
(b) the interest in encouraging citizens to assist in law enforcement by bringing
offenders to justice.
The courts have always tended to give more weight to the latter interest, with the
result that ‘the action for malicious prosecution is more carefully guarded than any
other in the law of tort’,1 and the number of successful actions is small.
In addition to the tort of malicious prosecution, there is, as the Privy Council
has confirmed, an analogous tort of maliciously procuring the issue and execution
of a search warrant.2 This is an instance of malicious institution of a process short of
actual prosecution.3 It is also established that an action in tort lies for the malicious
institution of bankruptcy or winding-up proceedings,4 though it seems that there is no
wider tort encompassing malicious institution of any civil proceedings.5
In the Commonwealth Caribbean, actions for malicious prosecution are often
combined with actions for false imprisonment. This will occur where P is first arrested
on suspicion of having committed an offence, and later charged and prosecuted for
the offence. If P is acquitted of the charge, he may sue the police officers who were
responsible for the arrest and subsequent prosecution for both false imprisonment
and malicious prosecution.
It is important to note the differences between the two causes of action. These
differences exist primarily because of the separate origins of the two torts, false
imprisonment being derived from the old writ of trespass and malicious prosecution
from the action on the case. Thus:

1 Fleming, The Law of Torts, 6th edn, 1983, Sydney: LBC Information Services, p 597.
2 Gibbs v Rea (1998) 52 WIR 102 (PC appeal from the Cayman Islands), where it was held, by a
majority, that the police had no reasonable and probable cause to procure the issue of a search
warrant to search the plaintiff’s home and place of work on suspicion of drug trafficking, in the
absence of any evidence of previous investigations or of any ‘tip off’ incriminating the plaintiff.
Further, if the police had no sufficient grounds for suspicion, yet satisfied the judge issuing the
warrant that they did, then ‘to procure the warrant in that state of mind was to employ the court
process for an improper purpose’ (such as a ‘fishing expedition’), which amounted to malice.
3 Another instance is the malicious procuring of a warrant for the plaintiff’s arrest: Roy v Prior [1971]
AC 470; Ramsarran v AG (2001) High Court, Trinidad and Tobago, No S 1597 of 1986 (unreported).
4 Quartz Hill Gold Mining Co v Eyre (1883) 11 QBD 674.
5 Metall und Rohstoff AG v Donaldson Lufkin and Jenretta Inc [1990] 1 QB 391; Gregory v Portsmouth City
Council [2000] 1 AC 419. See also Leslie v Olivierre (2003) 66 WIR 186 (Court of Appeal, OECS).
 Chapter 3: Malicious Prosecution 47

(a) false imprisonment is actionable per se, that is, without proof of damage, whereas
in malicious prosecution damage must always be proved;6
(b) a defendant who is sued for false imprisonment must justify the imprisonment,
for example, by establishing the defence of lawful arrest, whereas in malicious
prosecution the onus is on the plaintiff to show that the prosecution was
unjustified;7
(c) in false imprisonment, a defendant must show that he had reasonable cause to
detain the plaintiff, whereas in malicious prosecution it is for the plaintiff to show
that he was prosecuted without reasonable cause and with malice;8
(d) a defendant who causes a magistrate or other judicial officer to issue a warrant for
the plaintiff’s arrest cannot be liable in false imprisonment for the subsequent
arrest, but he may be liable for malicious prosecution or, where no prosecution is
instituted, for an analogous tort.9
A straightforward example of a successful claim for both false imprisonment and
malicious prosecution is Rowe v Port of Spain CC.10 Here, a stairway leading to the first
floor of the Town Hall in Port of Spain was barred by a chain and a crash barrier
placed in front of it. The plaintiff, a clerk employed by the council, removed the chain
and barrier and began to mount the stairway. As he did so, D, a constable, also in the
employ of the council, who was on duty as payroll escort, called out to the plaintiff
and told him not to use the stairway as the Mayor had given instructions that no one
was to pass there. On the plaintiff’s refusal to comply with the instruction, D arrested
him, dragged him to the police charge room and later took him to the magistrate’s
court, where he was charged with assaulting D and using obscene language. Both
charges were dismissed by the magistrate. The plaintiff sued D and the council for
assault, false imprisonment and malicious prosecution, and succeeded in all three
torts. Crane J said:
I believe that the defendant, Corporal Dalrymple, was detailed for escort duty in con-
nection with the collection of the pay-roll on the morning of 24 July 1975. I reject the
evidence of Inspector Kerr to the effect that he had detailed him the duty of enforcing a
directive restricting the use of the staircase on the Knox Street entrance of the Town Hall
so as to exclude members of the public and the employees of the City Council from
using it . . . I find . . . that the unfortunate incident arose out of the officiousness of
Corporal Dalrymple, who desisted from his detailed duty as pay-roll escort on that
morning in order to scotch the plaintiff’s use of the forbidden staircase. In doing so, it
was the defendant, Dalrymple, who assaulted the plaintiff, arrested him wrongfully,
there being no offence for which he could have been properly arrested, and then falsely
imprisoned him for over one hour.
When it comes to employees’ use of a staircase in order to get to work, if the use of a
particular staircase is out of bounds to them, they must be so informed through the
proper channels. Any breach of any such directive would open them to disciplinary

6 See below, p 60.

7 Ramkissoon v Sorias (1970) High Court, Trinidad and Tobago, No 2170 of 1968 (unreported) [Cari-
law TT 1970 HC 20]; Jangoo v Gomez (1984) High Court, Trinidad and Tobago, No 2652 of 1978
(unreported) [Carilaw TT 1984 HC 49].
8 Wills v Voisin (1963) 6 WIR 50.
9 Roy v Prior [1971] AC 470; Ramsarran v AG (2001) High Court, Trinidad and Tobago, No S 1597 of
1986 (unreported).
10 (1978) High Court, Trinidad and Tobago, No 1413 of 1976 (unreported) [Carilaw TT 1978
HC 48].
48 Commonwealth Caribbean Tort Law

action, again by the proper authorities. It was not challenged by the defence that neither
the plaintiff’s Departmental Head, Dr Siung, nor the Senior Administrative Officer,
Mrs Mahabir, had informed the plaintiff of the directive restricting the use of the stair-
case so as to exclude employees using it. No primary evidence as to either the circular
containing the directive in question or instructions to the police as to its enforcement
has been produced. Indeed, it would be as curious an administrative lapse to call in the
police without first notifying the employees as it would be to detail an armed plain
clothes officer to enforce the directive on the morning in question.
With regard to the action for malicious prosecution, I find all the elements present. The
plaintiff has established that he was prosecuted for two offences alleged to have been
committed by him and that the charges were dismissed and finally determined in his
favour. I find as a fact that when [Dalrymple] brought this prosecution, he had no
reasonable or probable cause so to do, and that in so doing he acted maliciously in order
to penalise the plaintiff for doing an act which did not in itself constitute a criminal
offence and concerning which he had no instructions to bestir himself. It was a gross
misuse of his office to drag the plaintiff (who was well known to him and a City Council
employee) to the city police charge room and later walk him to the magistrate’s court to
be charged before a justice of the peace under the guise of assault and obscene language.
The City Council, being the employer of [Dalrymple], is vicariously responsible for his
tortious acts, which are within the scope of, and connected with, his employment.

REQUIREMENTS OF THE TORT

In Wills v Voisin,11 Wooding CJ listed the essentials which must be proved by the
plaintiff in order to establish a case of malicious prosecution:
(a) that the law was set in motion against him on a charge of a criminal offence;
(b) that he was acquitted of the charge or that otherwise it was determined in his
favour;
(c) that the prosecutor set the law in motion without reasonable and probable cause;
(d) that, in so setting the law in motion, the prosecutor was actuated by malice.
Failure to establish any one or more of these requirements will result in the plaintiff
losing his action for malicious prosecution.
Each of the requirements must now be considered in turn.

Institution of prosecution

The plaintiff must show first of all that the defendant instituted the prosecution
against him or, in the words of Lopes J,12 that the defendant was ‘actively instrumental
in setting the law in motion’ against the plaintiff.
The following principles as to what constitutes ‘setting the law in motion’ have
been established by the authorities:
(a) It is not necessary that the defendant should have actually conducted the prosecu-
tion. It is sufficient for liability if, for example, he laid an information before a

11 (1963) 6 WIR 50, p 57; Khan v Singh (1960) 2 WIR 441, p 442, per Fraser J (Ag).
12 Danby v Beardsley (1880) 43 LT 603. See Kodilinye, G (1987) 36 ICLQ 157.
 Chapter 3: Malicious Prosecution 49

magistrate, on the basis of which the magistrate then issued a summons against
the plaintiff or a warrant for the plaintiff’s arrest.13 In such a case, the defendant
could not escape liability by pleading that the subsequent prosecution of the
plaintiff was initiated at the discretion of the magistrate, nor that it was technically
conducted by the police.14 On the other hand, a person who fairly and honestly
places the facts on which he relies and on which he bases his suspicion before a
magistrate who, in reliance thereon, orders the issue of a warrant for the plaintiff’s
arrest, is not liable for the exercise of the magistrate’s discretion.15
(b) At one time, it was thought that the defendant would not be liable unless the
prosecution could be said to have actually commenced, for example, by the issue
of a summons by the magistrate or by the preferring of a bill of indictment.16 It
was held by the Privy Council in Mohammed Amin v Bannerjee,17 however, that it
was sufficient for liability if the proceedings reached a point at which it could be
said that the plaintiff’s reputation was prejudiced; for instance where, without
issuing a summons or a warrant, the magistrate inquired into the merits of the
charge in open court and eventually dismissed the complaint;18 or where the
prosecutor himself withdrew the charge before a summons or warrant had been
issued.19 For the same reason, it is no defence that the magistrate, in issuing a
warrant, acted without jurisdiction, since the injury to the plaintiff’s reputation is
not mitigated by the fact that technically there was no prosecution at all.20
(c) Where the defendant merely informs the police of certain facts which incriminate
the plaintiff, and as a result the police decide to prosecute, the defendant will not
be regarded as having instituted proceedings,21 since the decision to prosecute is
not his and ‘the stone set rolling [by the defendant is] a stone of suspicion only’.22
However, it was held by the Privy Council in Tewari v Singh 23 that if the defendant
knowingly makes a false accusation to the police; if he misleads the police by
bringing suborned witnesses to support it; and if he influences the police to assist
him in sending an innocent man for trial, he cannot escape liability by pleading
that the prosecution was not technically conducted by him. In Tewari, the parties
were officials of adjoining agricultural estates, and the case arose out of a dispute
as to the ownership of some alluvial land lying between the two estates. The
defendant concocted a false story to the police to the effect that the plaintiff had

13 Davis v Noake (1817) 105 ER 1153; Casey v Automobiles Renault (Canada) Ltd (1965) 54 DLR (2d)
600; Campbell v The Jamaica Telephone Co Ltd (1991) 28 JLR 527 (Supreme Court, Jamaica), where
Clarke J held that ‘the police commenced the prosecution by laying an information before
a justice of the peace who issued the summons, a copy or which the police served on the
plaintiff. Plainly, then, the police set the law in motion by appealing to a justice of the peace, a
person clothed with judicial authority’.
14 Malz v Rosen [1966] 1 WLR 1008.
15 Ramsarran v AG (2001) High Court, Trinidad and Tobago, No S 1597 of 1986 (unreported), per
Moosai J; Laird v AG (1974) 21 WIR 416, p 422, per Fox JA (Court of Appeal, Jamaica).
16 Gregory v Derby (1839) 173 ER 701.
17 [1947] AC 322.
18 Ibid.
19 Casey v Automobiles Renault (Canada) Ltd (1965) 54 DLR (2d) 600.
20 Arnold v Johnson (1876) 14 SCR (NSW) 429.
21 Fitzjohn v Mackinder (1860–61) 141 ER 1094; Evans v London Hospital Medical College [1981] 1 All
ER 715.
22 Danby v Beardsley (1880) 43 LT 603, per Lindley J; Campbell v The Jamaica Telephone Co Ltd (1991)
28 JLR 527 (Supreme Court, Jamaica).
23 (1908) 24 TLR 884.
50 Commonwealth Caribbean Tort Law

participated in a riot connected with the dispute, and the plaintiff was prosecuted
for the alleged offence and acquitted. The Privy Council held the defendant liable
as prosecutor.
The facts of the Guyanese case of Jhaman v Anroop 24 were similar to those in Tewari. In
Jhaman, the defendant was engaged in a dispute with the plaintiff over the ownership
of an area of land. The defendant falsely accused the plaintiff of having stolen wood
from the land and, at the instigation and insistence of the defendant, the police
charged the plaintiff with larceny. Stoby J held that the defendant was liable as pros-
ecutor. Tewari v Singh was not cited, but the implication of Stoby J’s ruling is that
the defendant was liable as prosecutor because he had made a deliberately false
accusation and had influenced the police to send an innocent man for trial.
The principle in Tewari has been applied in a number of Commonwealth jurisdic-
tions, most recently by the House of Lords in Martin v Watson.25 In this case, the
parties were neighbours who had been at loggerheads for about 13 years. The defend-
ant made a deliberately false report to the police that the plaintiff had indecently
exposed himself to her, and the police brought a prosecution against the plaintiff,
which was subsequently dismissed. In the Court of Appeal, Ralph Gibson and
Hobhouse LJJ held that the defendant was not liable as prosecutor. They took the view
that, where D makes a deliberately false allegation against P to the police with the
intention that the police should prosecute P, D will not ipso facto be liable as prosecu-
tor. In particular, it was not sufficient for P to show that D maliciously provided false
evidence or, as in this case, that D held herself out as willing to give untruthful
evidence in order to secure the conviction of P.26 The House of Lords reversed the
Court of Appeal, holding that if a person falsely and maliciously gives a police officer
information indicating that the plaintiff is guilty of a criminal offence and states that
he is willing to give evidence in court of the matters in question, it may be inferred
that he desires and intends that the plaintiff should be prosecuted; and where the
circumstances are such that the facts relating to the alleged offence are exclusively
within the knowledge of the complainant, as in the Martin case, then it is virtually
impossible for the police to exercise any independent judgment; and if a prosecution
is brought by the police, the complainant should be liable for the institution of the
prosecution.

Termination of prosecution in plaintiff’s favour

The second requirement for a successful action in malicious prosecution is that the
prosecution ended in the plaintiff’s favour.
It is an inflexible rule that no person who has been convicted on a criminal charge
can sue the prosecutor for malicious prosecution, even though he can prove that he
was really innocent and that the charge was malicious and unfounded,27 for if a

24 [1951] LRBG 172 (see below, pp 56–58). See also Shiwmangal v Jaikaran and Sons Ltd [1946]
LRBG 308 (Supreme Court, British Guiana).
25 [1996] AC 74. See also Sorzano v AG (2004) Court of Appeal, Trinidad and Tobago, Civ App No
101 of 2002 (unreported), per Mendonca JA.
26 [1994] 2 All ER 606, pp 614–25, 629–40.
27 Basébé v Matthews (1867) LR 2 CP 684; Merson v Cartwright (1994) Supreme Court, The
Bahamas, No 1131 of 1987 (unreported) [Carilaw B5 1994 SC 53].
 Chapter 3: Malicious Prosecution 51

person were allowed to sue for malicious prosecution after the criminal trial had
ended adversely to him, it would entail a re-opening of the issue of his guilt, and this
would amount to a challenge to the propriety of the conviction and might lead to the
judgment in the criminal court being ‘blown off by a sidewind’.28
Although the plaintiff cannot sue for malicious prosecution if he was convicted,
this does not mean that he can sue only if he was acquitted on the merits, for what is
required is not judicial determination of his innocence but merely absence of judicial
determination of his guilt.29 ‘The crux is not so much whether he has been proved
innocent as that he has not been convicted’,30 the underlying principle being that a
man is presumed to be innocent until he is proved guilty. Thus, the requirement will
be satisfied where, for instance:
(a) the plaintiff was convicted in a lower court but his conviction was quashed on
appeal on the merits,31 or because of some irregularity of procedure;32
(b) the plaintiff was acquitted of the charge in question but convicted of a lesser
offence;33
(c) the plaintiff was acquitted on a technicality such as a defect in the indictment;34
(d) the prosecution discontinued the proceedings,35 or withdrew the charge, even if
without prejudice to the right to recommence;36
(e) the Attorney General entered a nolle prosequi, staying further proceedings on the
indictment;37
(f) the magistrate dismissed the charge for want of prosecution;38
(g) the court adjourned the information sine die.39

28 Vanderbergh v Blake (1661) 145 ER 447, per Hale CJ.

29 Heuston and Buckley, Salmond and Heuston on the Law of Torts, 21st edn, 1996, London: Sweet
& Maxwell, p 398.
30 Op cit, Fleming, fn 1, p 581.
31 Shiwmangal v Jaikaran and Sons Ltd [1946] LRBG 308 (Supreme Court, British Guiana).
32 Herniman v Smith [1938] AC 305; Romegialli v Marceau (1963) 42 DLR (2d) 481.
33 Boaler v Holder (1887) 51 JP 277.
34 Wicks v Fentham (1791) 100 ER 1000.
35 Watkins v Lee (1839) 151 ER 115.
36 Casey v Automobiles Renault (Canada) Ltd (1965) 54 DLR (2d) 600.
37 Gilchrist v Gardner (1891) 12 NSWLR 184; Khan v Singh (1960) 2 WIR 441 (Supreme Court,
British Guiana), where Fraser J (Ag) said that ‘the Attorney General’s right to bring
subsequent proceedings against the plaintiff on the same facts does not diminish the effect of
the termination of that particular indictment’.
38 Kennedy v Morris and AG (2005) Court of Appeal, Trinidad and Tobago, Civ App No 87 of 2004
(unreported) [Carilaw TT 2005 CA 29]. The requirement will certainly be satisfied where the
charge is dismissed on the merits: ibid.
39 B & D Trawling Ltd v Lewis and AG (2006) Supreme Court, Jamaica, No CLB 015 of 2001
(unreported) [Carilaw JM 2006 SC 1]. Though in Bent v AG (2006) Supreme Court, Jamaica, No
1998/B330 (unreported) [Carilaw JM 2006 SC 116] Brooks J took the view that, without more,
an adjournment sine die cannot be said to be a ‘determination’ of the matter, since the element
of finality is absent. The true status of such an adjournment, at least initially, was that the case
was in abeyance pending the request of the prosecutor. An adjournment was not to be equated
with a nolle prosequi which immediately brings the case to an end, even though the case may be
reinstated. However, according to Brooks J, a prosecution which has been adjourned sine die
and which has not been restored to the court’s list within a reasonable time, may be deemed
abandoned by the prosecutor and, as such, the prosecution may be deemed discontinued. See
also Facey v AG (1994) 31 JLR 518, per Reckord J.
52 Commonwealth Caribbean Tort Law

Absence of reasonable and probable cause

This third requirement is perhaps the hardest to satisfy. In the first place, it involves
proof of a negative by the plaintiff, which is a notoriously difficult task.40 Secondly,
although several attempts have been made to define ‘reasonable and probable cause’,
the concept still remains vague and difficult to apply in individual cases. The best
known definition is that of Hawkins J in Hicks v Faulkner:41
I should define ‘reasonable and probable cause’ to be an honest belief in the guilt of the
accused based upon a full conviction, founded upon reasonable grounds, of the exist-
ence of a state of circumstances which, assuming them to be true, would reasonably
lead any ordinarily prudent and cautious man, placed in the position of the accuser, to
the conclusion that the person charged was probably guilty of the crime imputed.
Other authorities have established the following principles:
(a) The overall question is a double one, both objective and subjective, namely:
(i) whether a reasonable man, having knowledge of facts which the defendant
knew at the time he instituted the prosecution, would have believed that the
plaintiff was probably guilty of the crime imputed (an objective test); and (ii)
whether the defendant did himself honestly believe that the plaintiff was guilty (a
subjective test).42
(b) Where the defendant acts under a mistaken impression as to the true facts, he ‘can
claim to be judged not on the real facts but on those which he honestly, and
however erroneously, believes; if he acts honestly upon fiction, he can claim to be
judged on that’.43
(c) The defendant’s belief must be based upon facts known to him at the time that he
initiated the prosecution. Thus, if incriminating facts which would have consti-
tuted reasonable and probable cause for the prosecution only come to light later,
the defendant cannot rely on them to justify his action.44
(d) Where reasonable and probable cause exists at the time of the institution of the
prosecution, but facts come to light later which show that the prosecution is

40 Abrath v North Eastern Rly (1883) 11 QBD 440. In false imprisonment, the defendant has the
burden of proving that there was reasonable cause for the detention of the plaintiff. See above,
Chapter 2.
41 (1878) 8 QBD 167, p 171. This dictum has been frequently cited in Commonwealth Caribbean
courts.
42 Glinski v McIver [1962] AC 726, p 768; Baptiste v AG (2005) High Court, Trinidad and Tobago,
No 3617 of 2001 (unreported) [Carilaw TT 2005 HC 22]. In Hills v AG (1980) High Court,
Trinidad and Tobago, No 1009 of 1974 (unreported) [Carilaw TT 1980 HC 89], Edoo J pointed
out that, in order to establish absence of reasonable and probable cause, the plaintiff ‘must
show the circumstances in which the prosecution was instituted. It is not enough to prove that
the real facts established no criminal liability against him unless it also appears that these facts
were within the personal knowledge of the defendant. If they were not, it must be shown what
was the information on which the defendant acted’. In Barbour v AG (1981) Court of Appeal,
Trinidad and Tobago, No 18 of 1979 (unreported), the court found that there was reasonable
and probable cause for the police to prosecute B where there was:
(a) an oral report of larceny provided by L, the complainant, whom the police had no reason
to doubt;
(b) a positive identification by L of B as the person responsible for the theft, very soon after
the commission of the offence; and
(c) a written statement by L in which he verified his report of larceny and confirmed his
identification of B as the offender.
43 Glinski v McIver [1962] AC 726, p 776, per Lord Devlin.
44 Turner v Ambler (1847) 116 ER 98.
 Chapter 3: Malicious Prosecution 53

groundless, the defendant will be liable unless he discloses the new facts to the
court.45
(e) If the defendant, believing in the plaintiff’s guilt, lays the facts fully and fairly
before counsel46 or the police,47 and is advised by either that a prosecution is
justified, the defendant will normally be held to have had reasonable and probable
cause for the prosecution, though there is no invariable rule to this effect.
(f) The fact that the plaintiff was committed for trial by a magistrate, or even that he
was convicted at first instance and acquitted only on appeal, is not conclusive that
there was reasonable and probable cause for the prosecution, for the committal or
the original conviction may have been procured by fraud or on evidence of which
the defendant was unaware when laying the charge.48
Although some of the above propositions are formulated in such a way as to imply
that reasonable and probable cause is a defence, this is, of course, a misleading inter-
pretation, since it is for the plaintiff to establish absence of reasonable and probable
cause, not for the defendant to establish its presence. In order to establish that the
defendant had no belief in the plaintiff’s guilt, the plaintiff must adduce sufficient
evidence from which an inference may be drawn as to what the defendant actually
believed. It may be sufficient for the plaintiff to show, for example, that the facts of
which the defendant had knowledge pointed so overwhelmingly to the plaintiff’s
innocence that no reasonable person could possibly have believed him to be guilty.49

Malice

As in the tort of defamation, ‘malice’ in the context of this tort has a wider meaning
than ‘spite’, ‘ill-will’ or a desire for vengeance, for it includes any improper purpose
or any ‘motive other than that of simply instituting a prosecution for the purpose of
bringing a person to justice’.50
Anger or indignation aroused by an imaginary crime is clearly not sufficient,
since these are emotions upon which the law sometimes relies in order to secure the

45 Tims v John Lewis and Co Ltd [1951] 2 KB 459, pp 459, 472–74.

46 Abbott v Refuge Assurance Co Ltd [1962] 1 QB 432; Toolsie v AG (1981) High Court, Trinidad and
Tobago, No 3749 of 1979 (unreported); Burroughs v AG (1990) 1 TTLR 135 (High Court, Trini-
dad and Tobago).
47 Malz v Rosen [1966] 1 WLR 1008. In Mohammed v Taylor (1994) High Court, Trinidad and
Tobago, No S 2410 of 1987 (unreported) [Carilaw TT 1994 HC 4], Ramlogan J held that the
defendant police officer who had laid a charge of larceny against the plaintiff (which was later
dismissed by the magistrate) not only had good grounds to lay the charge, but did what any
conscientious officer would have done. He investigated the allegations, interviewed witnesses
and caused statements to be taken. Those statements contained evidence which, if believed by
a court, would be enough to convict the plaintiff. All that the defendant was required to do
was to ensure that there was a proper case to lay before the court. The defendant had referred
the matter to his superior officer, who then referred it to the DPP: ‘Where a prosecutor puts all
the facts of the case fairly to his superior officer, who obtains the advice of the DPP, it must be
only in rare and exceptional circumstances that the plaintiff could prove lack of reasonable
and probable cause or malice.’ See also Windsor v AG (1996) High Court, Trinidad and Tobago,
No 1692 of 1990 (unreported) [Carilaw TT 1996 HC 176], per Sealey J, where the DPP advised
that there were grounds for prosecution.
48 Op cit, Heuston and Buckley, fn 29, p 396.
49 Op cit, Fleming, fn 1, p 585.
50 Stevens v Midland Counties Rly Co (1854) 156 ER 480, per Alderson B.
54 Commonwealth Caribbean Tort Law

prosecution of offenders.51 Nor is it malice to launch a prosecution in order to satisfy

the rule in Smith v Selwyn,52 which requires that where a felony, such as an aggravated
assault, has been committed, no civil action may be brought by the victim until the
offender has first been prosecuted. If, on the other hand, the prosecutor had no honest
belief in the guilt of the accused, this will be evidence both of lack of reasonable and
probable cause and of malice.53 Examples of an improper purpose amounting to
malice are: where a landlord institutes criminal proceedings against his tenant as a
device to procure the latter’s eviction from the premises;54 where a prosecution is
brought against a man in order to punish him for having given evidence against the
police on a previous occasion;55 where a prosecution is brought in order to extort
money from the accused;56 and where the purpose of the prosecution is to recover a
debt from the accused where recourse should properly be had to the civil and not the
criminal process.57
A definition of malice which has been cited in several Caribbean cases is that of
Cave J in Brown v Hawkes:58
Malice, in its widest and vaguest sense, has been said to mean any wrong or indirect
motive; and malice can be proved either by showing what the motive was and that it
was wrong, or by showing that the circumstances were such that the prosecution can
only be accounted for by imputing some wrong or indirect motive to the prosecutor.

In Irish v Barry, Wooding CJ expressed the opinion that:59

. . . the self-same circumstances showing that an arrest was without reasonable and
probable cause may be sufficient to establish malice on the part of the prosecutor. But
such cases must, I think, be rare in the case of a police prosecutor acting in the ordinary
course of his normal duty.

Thus, in Sibbons v Sandy,60 Edoo J held that, on the evidence, it appeared that the
defendant police constables did believe, though they had no reasonable or probable
cause for so believing, that the plaintiff had stolen the oranges; and since neither of
them had been shown to have ‘acted with any wrong or indirect motive’, they were
not liable for malicious prosecution. Similarly, in the more recent case of Paul v AG,61

51 Brown v Hawkes [1891] 2 QB 718, p 722.

52 [1914] 3 KB 98. See above, Chapter 1.
53 Winfield and Jolowicz, Tort, 15th edn, 1998, London: Sweet & Maxwell, p 687. It is a regrettably
common practice for police officers who have detained (and, often, assaulted) a person, in
circumstances where the officers are well aware that the detention is unjustified, to concoct
charges against the person in order to cover up their own wrongdoing. Commonly, an arrestee
is charged with using obscene language in a public place and/or assaulting or obstructing
a constable in the execution of his duty. See, for example, Ali v AG (1982) High Court,
Trinidad and Tobago, No 1993 of 1978 (unreported) [Carilaw TT 1982 HC 84], Quashie v AG
(1992) High Court, Trinidad and Tobago, No 30 of 1987 (unreported); Merson v Cartwright
(1994) Supreme Court, The Bahamas, No 1131 of 1987 (unreported).
54 Turner v Ambler (1847) 116 ER 98.
55 Glinski v McIver [1962] AC 726.
56 Op cit, Fleming, fn 1, p 587.
57 Op cit, Fleming, fn 1, p 587.
58 [1891] 2 QB 718, p 722.
59 (1965) 8 WIR 177, p 179.
60 See above, pp 27–29.
61 (1998) High Court, Trinidad and Tobago, No CV 369 of 1992 (unreported) [Carilaw TT 1998
HC 71]. See also Mungroo v AG (1993) High Court, Trinidad and Tobago, No 491/1984
(unreported).
 Chapter 3: Malicious Prosecution 55

Bharath J held that a constable who had laid a charge of larceny against the plaintiff
had acted incautiously and imprudently,62 but since there was no evidence of a
motive to ‘pull the plaintiff down’, malice had not been established. In Jangoo v Gomez,
on the other hand,63 Mustapha Ibrahim J found that the defendant security officer
‘did not honestly believe in the case he had put forward, and, having regard to the
statement made by him upon his arrival at Sankai’s office that the plaintiff was a
thief, the prosecution could be accounted for only on the basis of an improper motive.
It was both without reasonable and probable cause and malicious’.
It has been held in several Caribbean cases that where legal advice is taken by a
police officer from a higher authority, such as the Director of Public Prosecutions,64
a stipendiary magistrate acting as legal adviser to the Government,65 or a Clerk of the
Court,66 who advises that charges should be preferred, the officer cannot be said to
have been acting maliciously in instituting a prosecution.67
Although malice and lack of reasonable and probable cause are two separate
elements and both must be proved, there is an overlap between the two, in the sense
that proof that the defendant had no genuine belief in the plaintiff’s guilt will consti-
tute evidence both of lack of reasonable and probable cause and of malice.68 However,
it is well settled that proof of malice does not necessarily supply evidence of lack of
reasonable and probable cause;69 for however malicious the defendant may have
been, he will not be liable for malicious prosecution if he had reasonable cause to
believe the plaintiff to be guilty of the crime charged.
A case in which malice was inferred from a finding of lack of reasonable and
probable cause is Rowley v Sylvester.70 Here, the plaintiff, an employee of Texaco Trini-
dad Inc, was leaving the Point-a-Pierre Complex one night in his car, when he was
stopped at the gate by Constable H, who made a routine search of the car. In the trunk,
H found a bottle of oil wrapped in a newspaper which was positioned to prevent
spillage. When asked where he had obtained this oil, the plaintiff told H that he had
purchased it from Neal and Massy in Princes Town. H refused to believe the plaintiff
and called Sergeant S to the scene. After a search at his house, the plaintiff was unable
to produce the receipt for the oil, but W, a mechanic, told the officers that he had
changed the engine oil in the plaintiff’s car, using just over three quarts, and that the

62 Failure to make a proper enquiry as to the facts or haste in coming to a decision to prosecute
does not necessarily demonstrate malice or improper motive: Brown v Hawkes [1891] 2 QB 718;
Kennedy v Morris and AG (2005) Court of Appeal, Trinidad and Tobago, Civ App No 87 of 2004
(unreported) [Carilaw TT 2005 CA 29].
63 See above, pp 29, 30.
64 Mohammed v Taylor (1994) High Court, Trinidad and Tobago, No S 2410 of 1987 (unreported)
[Carilaw TT 1994 HC 4], per Ramlogan J; Windsor v AG (1996) High Court, Trinidad and
Tobago, No 1692 of 1990 (unreported) [Carilaw TT 1996 HC 176], per Sealey J.
65 Panton v Sherwood (1961) 4 WIR 163.
66 Henry v Tracey (1997) Supreme Court, Jamaica, No CL 1992/H-107 (unreported), per
Harrison J.
67 On the other hand, a police officer who admitted that he knew he was prosecuting the wrong
man was not entitled to shield himself from liability by the fact that he considered himself
duty-bound to obey his superiors’ instructions: Maharaj v AG (2004) High Court, Trinidad and
Tobago, No 2404 of 1998 (unreported) [Carilaw TT 2004 HC 41], per Tam J.
68 Brown v Hawkes [1891] 2 QB 718, p 722.
69 Glinski v McIver [1962] AC 726, p 744.
70 (1985) High Court, Trinidad and Tobago, No 723 of 1978 (unreported) [Carilaw TT 1985
HC 147].
56 Commonwealth Caribbean Tort Law

remainder had been poured into a brandy bottle which had been wrapped in a news-
paper and placed in the trunk. The plaintiff also told the officers that he was prepared
to take them in his car to the laboratory at Point-a-Pierre to have the oil analysed,
in order to demonstrate that the oil was not manufactured at Texaco, to which
S responded that he had ‘no time for that’. The plaintiff was arrested and charged
with unlawful possession of the oil. The charges were later dismissed by the magis-
trate, the plaintiff’s wife having in the meantime obtained a duplicate of the receipt
from Neal and Massy. Hosein J held, first of all, that there was no reasonable and
probable cause for the arrest or the charging of the plaintiff, because S ‘ought not to
have closed his eyes to the probability that what the plaintiff was saying was true’
and, in the circumstances, there was no reasonable cause for S and H to believe that
the plaintiff had stolen the oil from Texaco. He continued:
In the local vernacular, when [Constable S] replied that he had no time to take the
plaintiff to have the oil tested, the meaning of that reply was not as much a temporal one
as that he could not be bothered, thus giving rise to an implication of malice . . . There
are circumstances from which an implication of malice may be drawn from an absence
of reasonable and probable cause . . .
It is true that on a charge of unlawful possession it is for the accused to establish that he
has gained possession of the article lawfully, yet before a charge is preferred by a police
officer or, as in this case, an arrest is effected and a charge brought, it seems to me
that the explanations given by the plaintiff ought to have been duly investigated by
[Constable S], a fortiori in the light of what Williams had told him. Thus, even if the
belief was an honest belief, where it was founded upon an unreasonable basis, then
there may be malice: see Cruise v Burke.71
If someone is questioned about the origin of an article and he says it was purchased
from a well known source, it would appear to be unreasonable to check other explan-
ations which may be quite equivocal and to disregard that which may prove conclu-
sively whether a suspicion concerning its origin is well founded or not. Thus, it is
difficult to understand why [Constable S] chose not to be bothered about exploring the
possibilities of having the oil tested as requested or to put out of his contemplation a
visit to Neal and Massy at Princes Town to make reasonable investigations about the
source of the oil. The oil itself was, according to [Constable H], valued at no more than
about $1.50; the plaintiff had been employed by Texaco for a number of years; there was
no evidence that there was any risk of his absconding; the oil itself was in [Constable
S’s] custody, so there was no question of vital evidence being lost; and there was no
evidence of violent conduct on the part of the plaintiff, save that an allegation was made
that he refused to produce his badge; but he said, and I accept, that no request was made
by [Constable H] for the production of the badge. It seems to me, therefore, that the
belief in the plaintiff’s guilt was premature, precipitate, less than honest, and in any
event was founded on an unreasonable basis.

Another example of a case in which the prosecutor was held to have acted both
without reasonable and probable cause and with malice is Jhaman v Anroop.72 In this
case, the plaintiffs had occupied certain land for more than 30 years. In 1938, the
defendant purchased an interest in the land so occupied and built a dwelling house
on it. A dispute arose as to the ownership of the land. Both parties purported to
exercise acts of ownership and the land was surveyed at the instance of both. The

71 (1919) 2 IR 182, p 189.

72 [1951] LRBG 172 (Supreme Court, British Guiana). See also Shiwmangal v Jaikaran and Sons Ltd
[1946] LRBG 308 (Supreme Court, British Guiana).
 Chapter 3: Malicious Prosecution 57

dispute culminated in the plaintiffs being arrested and charged, at the instigation and
by the authority of the defendant, with larceny of wood taken from the land. The
charges were dismissed. The plaintiffs sued the defendant for, inter alia, malicious
prosecution.
Stoby J (Ag) held the defendant liable. He said:73
It is common ground that, in order to succeed [in malicious prosecution], the plaintiffs
must prove:
(1) that the defendant prosecuted them;
(2) that the prosecution ended in the plaintiffs’ favour;
(3) that the prosecution lacked reasonable and probable cause; and
(4) that the defendant acted maliciously.
Did the defendant prosecute the plaintiffs?
Sergeant Baynes advised the defendant to take proceedings in the Supreme Court in
order to determine whose claim to the land was justified. After the arrest of the plain-
tiffs, it was the defendant who insisted that they should be charged for larceny. That
the defendant was the complainant was proved by production of a certified copy of
the charge.
All this evidence indicates that the defendant was not content merely to make a report
to the police that an offence was being committed and rely on the result of their
investigations and their discretion as to whether the facts warranted a prosecution or
not, but that he had resolved on the prosecution of the plaintiffs and was not to be
deterred by an opinion inconsistent with his resolution.
Did the prosecution end in the plaintiffs’ favour?
There is no dispute that the charges were dismissed on 5 May 1948, and thereby the
prosecution ended in favour of the plaintiffs.
Did the prosecution lack reasonable and probable cause?
It was contended on behalf of the defendant that he is entitled to the land, or at least is of
an honest opinion that he is entitled to the land and, in addition, he honestly believed in
the plaintiffs’ guilt and therefore had reasonable and probable cause. Hicks v Faulkner,74
cited in support of that proposition, decided that the question of reasonable and prob-
able cause depends in all cases not upon the actual existence but upon the reasonable
bona fide belief in the existence of such a state of things as would amount to a justifica-
tion of the course pursued in making the accusation complained of. I accordingly agree
that if there is an honest belief that a person is stealing property, even though the belief
is mistaken, the charge may still be reasonable and probable. But there can be no honest
belief that a person is stealing property when the accuser is aware that the accused, too,
is equally sincere in laying claim to the property. Assuming without deciding that the
defendant’s wife and her relatives are the true owners of the land, and assuming with-
out deciding that the plaintiff, Bennie Jhaman, has acquired no possessory title, I am
convinced that the defendant is fully aware of Bennie Jhaman’s contention that he was
entitled to a declaration of ownership on account of his sole and undisturbed possession
of upwards of thirty years. I can well conceive of a thief caught in the act of stealing
property making some groundless claim to ownership in the vain hope of escaping
conviction. A situation may well occur where such a defence is successful and yet there
was reasonable and probable cause, as in subsequent proceedings it might be estab-
lished that the claim of right was suddenly raised and always groundless. But where for
years the parties have been at enmity, where the alleged theft is committed openly,

73 Ibid, p 173.
74 (1878) 8 QBD 167.
58 Commonwealth Caribbean Tort Law

where the alleged thief has for years exercised acts of ownership, and where the accuser
has been advised to seek redress in a civil court but refrains from doing so because of
expense, he can hardly be heard to say that he has an honest belief in the other party’s
guilt. The defendant, no doubt, ignorant of the law, could not understand why he,
armed with all his documents of title, should be helpless against an adversary devoid of
any document; but he was advised more than once by the sergeant and he was warned
by the ranger. Yet he was not prudent enough to avail himself of legal advice. In add-
ition to all of this, he knew that the plaintiff, Bennie Jhaman, had caused a sworn land
surveyor to survey portions of the land and was asserting his claim to the land. In
Herniman v Smith,75 the House of Lords approved of the definition of reasonable and
probable cause by Hawkins J in Hicks v Faulkner 76 as:
. . . an honest belief in the guilt of the accused based upon a full conviction,
founded upon reasonable grounds, of the existence of a state of circumstances
which, assuming them to be true, would reasonably lead any ordinarily pru-
dent and cautious man, placed in the position of the accuser, to the conclusion
that the person charged was probably guilty of the crime imputed.
Applying this test . . . I have come to the conclusion that there was an absence of
reasonable and probable cause.
Did the defendant act maliciously?
In Koodratali v Chin,77 Camacho CJ said:
If, as must be taken to be the fact, the accusation was false to the defendant’s
knowledge, there can be no reasonable and probable cause for it, and if a
false charge was made by the defendant and false to his knowledge, malice is
made out.
In the present case, the defendant did not institute the proceedings because of informa-
tion received; he instituted the charges and relied on facts known to him. The allegation
that he is representing the legal owners of the land may or may not be true, but he knew
that the plaintiffs were not thieves because, when their cows were impounded in 1947
and 1949, charges for illegal impounding were brought. He was, therefore, aware that
the plaintiff, Bennie Jhaman, was asserting a right to the land . . . He had decided . . . to
have recourse to the criminal law, not to vindicate the law but to terrorise an opponent
and force him to leave the land.
On account of the defendant’s conduct, malice has, in my opinion, been established, not
only because of an absence of reasonable and probable cause, but also because the sole
cause of the prosecution was a feud and [there was] no other motive.

Section 33 of the Constabulary Force Act (Jamaica)

As has been seen,78 the effect of this section is that, in Jamaica, an action for trespass to
the person against a police constable will fail unless the plaintiff shows that the
constable acted either maliciously or without reasonable and probable cause. In
Flemming v Myers,79 the majority of their Lordships in the Jamaican Court of Appeal
were of the view that, under the statute, in an action for malicious prosecution
brought against a police constable, there was no need for both lack of reasonable and

75 [1938] AC 305.
76 (1878) 8 QBD 167, p 171.
77 [1939] LRBG 218, p 220.
78 See above, pp. 35, 36.
79 (1989) 26 JLR 525.
 Chapter 3: Malicious Prosecution 59

probable cause and malice to be proved against the officer. It was sufficient to prove
either. As Forte JA explained:80
In Glinski v McIver,81 Lord Devlin affirmed that, at common law, in order to succeed in
an action for malicious prosecution, the plaintiff must prove both that the defendant
was actuated by malice and that he had no reasonable and probable cause for prosecut-
ing. However, by virtue of s 33 of the Constabulary Force Act, in Jamaica a plaintiff
suing a police officer for malicious prosecution as a result of an act done in the execution
of his duty is required to prove that the defendant acted either maliciously or without
reasonable and probable cause.

This view was later followed by Harrison J in Henry v Tracey,82 but it is submitted with
respect that it is hard to justify, in that it gives police officers less protection under the
Act than they would have at common law, which, bearing in mind that the purpose of
the Act is to give additional protection to constables, is clearly the opposite of what
the legislature had intended. It is submitted, therefore, that in actions for malicious
prosecution against police officers, the latter should be in no worse a position than
ordinary citizens, and should be entitled to depend on the common law position,
which is that both malice and lack of reasonable and probable cause must be proved
against them.83 This would mean that s 33 would be applicable only to actions for
trespass to the person against police officers.

Damage

The plaintiff must in all cases show that the prosecution brought against him has
caused damage to his:
(a) fame; or
(b) person; or
(c) property.84
In order to show damage to his fame, the plaintiff must satisfy the court that
the charge brought against him was ‘necessarily and naturally’85 defamatory. Thus,
damage to fame was established where the plaintiff was wrongfully accused of
having travelled on a bus without paying the fare,86 since the accusation implied that
he was a dishonest person and a cheat. But there will be no such damage where a

80 Ibid, p 535.
81 [1962] AC 726.
82 (1997) Supreme Court, Jamaica, No CL 1992/H-107 (unreported).
83 The view expressed in this paragraph was strongly criticised by Sykes J in Campbell v Watson
(2005) Supreme Court, Jamaica, No CL C 385 of 1998 (unreported) [Carilaw JM 2005 SC 1]. The
learned judge opined that Forte and Wilson JJA in the Court of Appeal in Flemming v Myers
(1989) 26 JLR 525 had correctly concluded that, in actions for malicious prosecution against
police officers, the common law requirement of proof of both lack of reasonable and probable
cause and malice had been superseded by the requirement in s 33 of proof of either malice or
lack of reasonable and probable cause. Sykes J accepted that s 33 gives less protection to
constables than the common law, and commented that he could not see how it could be said
that the purpose of the Act ‘was to give the police more protection than at common law, when
s 33 plainly does otherwise’. In any event, the learned judge considered himself bound by the
Court of Appeal’s interpretation of the effect of the section.
84 Savile v Roberts [1558–1774] All ER Rep 456, per Holt CJ.
85 Wiffen v Bailey [1915] 1 KB 600.
86 Rayson v South London Tramways Co [1893] 2 QB 304.
60 Commonwealth Caribbean Tort Law

landlord is prosecuted for having failed to carry out a statutory duty to cleanse his
tenants’ rooms,87 since the charge does not necessarily carry a defamatory imputation.
Nor, for the same reason, will there be damage to fame where, for example, the
plaintiff is prosecuted for riding a bicycle without a rear light, or for pulling the alarm
lever in a train without lawful excuse.88
Damage to the person will be established where the prosecution causes the plain-
tiff to be imprisoned or otherwise corporally punished, or where it puts him in
jeopardy of such punishment.89 As in the case of slander actionable per se,90 the crime
for which the plaintiff was charged must have been one punishable by imprisonment
in the first instance, and not one punishable by imprisonment only in default of
payment of a fine or other penalty.91
As regards damage to property, the costs incurred by the plaintiff in defending
the charge will be sufficient to ground the action for malicious prosecution, unless the
court trying the offence awarded him an allowance equivalent to the costs he actually
incurred.92 It seems, therefore, that damage will be most easily established under this
head, and in most cases it will be unnecessary to prove damage to fame or to the
person.

87 Wiffen v Bailey [1915] 1 KB 600.

88 Berry v British Transport Commission [1961] 1 QB 149.
89 Wiffen v Bailey [1915] 1 KB 600.
90 See below, p 220.
91 Wiffen v Bailey [1915] 1 KB 600.
92 Berry v British Transport Commission [1961] 1 QB 149.
 CHAPTER 4

NEGLIGENCE

INTRODUCTION

From a practical point of view, negligence is the most important and dynamic of all
torts. Its emergence as a separate tort in the early part of the 19th century coincided
with the industrial revolution in Britain and the advent of machinery, railways and
motor vehicles. To this day, it has retained its function as the principal means of
compensating the victims of accidents, particularly those occurring on the roads.
More recently, the tort of negligence has been extended to include certain types of
economic loss, including loss caused by careless words. In the Caribbean, the vast
majority of negligence actions are concerned with road accidents, and in many of
these the main issue is the assessment of damages. The courts in the Commonwealth
Caribbean have, in general, adopted a practical approach to negligence claims and
have eschewed the more theoretical discussions relating to the concept of the duty of
care which have so preoccupied the English courts.

DEFINITION

Not every act of carelessness or negligence is actionable under the tort of negligence,
for, as Lord Wright explained in Lochgelly Iron and Coal Co Ltd v McMullan:1
. . . in strict legal analysis, ‘negligence’ means more than heedless or careless conduct,
whether in omission or commission; it properly connotes the complex concept of duty,
breach and damage thereby suffered by the person to whom the duty was owing.

The tort of negligence may, therefore, be defined broadly as the breach of a legal duty
to take care which results in damage, undesired by the defendant, to the plaintiff.
There are three elements to the tort:
(a) a duty of care owed by the defendant to the plaintiff;
(b) breach of that duty by the defendant; and
(c) damage to the plaintiff resulting from the breach.

DUTY OF CARE

The first question to be determined in any action for negligence is whether the
defendant owed a duty of care to the plaintiff. In general, a duty of care will be owed
wherever in the circumstances it is foreseeable that, if the defendant does not exercise
due care, the plaintiff will be harmed. This foreseeability test was laid down by Lord
Atkin in the celebrated case of Donoghue v Stevenson 2 and is known as the ‘neighbour
principle’:

1 [1934] AC 1, p 25.
2 [1932] AC 562, p 579.
62 Commonwealth Caribbean Tort Law

The rule that you are to love your neighbour becomes, in law, you must not injure your
neighbour; and the lawyer’s question, ‘Who is my neighbour?’ receives a restricted
reply. You must take reasonable care to avoid acts or omissions which you can reason-
ably foresee would be likely to injure your neighbour. Who, then, in law is my neigh-
bour? The answer seems to be – persons who are so closely and directly affected by my
act that I ought reasonably to have them in contemplation as being so affected when
I am directing my mind to the acts or omissions which are called in question.

There are a number of common situations in which it is well established that a duty of
care exists, for example:
(a) the driver of a vehicle on the road owes a duty of care to other road users, pedes-
trians and occupiers of premises abutting the highway to drive carefully;
(b) the occupier of premises owes a duty of care to lawful visitors to ensure that the
premises are reasonably safe;
(c) the employer of a workman in a factory owes a duty of care to provide adequate
equipment and a safe system of working;
(d) a bailee of goods owes a duty to the bailor to take care of the goods entrusted
to him;
(e) a manufacturer of goods owes a duty of care to consumers to ensure that the
goods are free from harmful defects.
There is no closed list of duty situations, and those listed above are merely examples,
albeit those most commonly encountered, of circumstances in which a duty of care
will be held to arise. As Lord Macmillan emphasised, ‘the categories of negligence are
never closed’.3
By recognising new ‘duty situations’, the courts are able to expand the scope of
the tort of negligence, but at the same time it is accepted that public policy requires
some limits to be set to the range of liability, and when, in a particular case, the court
denies that a duty of care is owed, it is really coming to a decision that, on policy
grounds, the defendant ought not to be made liable. As Lord Denning put it:4 ‘It is,
I think, at bottom a matter of public policy which we, as judges, must resolve. This
talk of “duty” or “no duty” is simply a way of limiting the range of liability for
negligence.’
The need to take into account the dictates of public policy was expressed by Lord
Wilberforce in Anns v Merton LBC, where his Lordship laid down a two-stage test for
the existence of a duty of care:5
In order to establish that a duty of care arises in a particular situation, the question has
to be approached in two stages. First, one has to ask whether, as between the alleged
wrongdoer and the person who has suffered damage, there is a sufficient relationship of
proximity or neighbourhood such that, in the reasonable contemplation of the former,
carelessness on his part may be likely to cause damage to the latter, in which case a
prima facie duty of care arises. Secondly, if the question is answered affirmatively, it is
necessary to consider whether there are any considerations which ought to negative, or
to reduce or limit, the scope of the duty or the class of person to whom it is owed, or the
damages to which a breach of it may give rise.

3 Donoghue v Stevenson [1932] AC 562, p 619.

4 Dorset Yacht Ltd v Home Office [1969] 2 QB 412, p 426.
5 [1977] 2 All ER 492, pp 498–99.
 Chapter 4: Negligence 63

Lord Wilberforce’s test was applied in Austin v AG.6 In this case, H, a convicted
prisoner, escaped from the Glendairy Prison and entered the plaintiff’s dwelling
house, where he attacked and seriously injured her with a knife. On the day of his
escape, H was one of a number of prisoners being instructed in woodwork in the
carpenter’s shop at the prison. Two prison officers were in supervision. One of them
left for a short period and, during his absence, H escaped.
The plaintiff alleged that the escape of H was caused by the negligence of the
Superintendent of Prisons, whose duty it was to supervise, control and be responsible
for the conduct of prisoners, and that the defendant was vicariously liable for the
consequences of such negligence.
It was held that there was no sufficient relationship of proximity between the
Superintendent of Prisons and the plaintiff such as to give rise to a duty of care
towards the plaintiff. In the alternative, the damage suffered by the plaintiff was too
remote. Husbands J said:7
The plaintiff’s contention is not only that the Superintendent of Prisons and his officers
could have, by the exercise of reasonable care, prevented Hunte’s escape, but that it was
reasonably foreseeable by them that if Hunte escaped he would be likely to do the
damage which he did, that is to say, commit serious personal injury to the plaintiff.
The first question that arises is whether any duty of care to prevent the escape of a
prisoner is owed by the Superintendent of Prisons to persons likely to be injured by the
escaped prisoner’s tortious acts. In the consideration of this question, much learning is
to be found in the landmark authorities of Rylands v Fletcher 8 and Donoghue v Stevenson 9
as to the characteristics of conduct and relationships which gave rise to legal liability.
Lord Atkin’s celebrated guidelines in Donoghue v Stevenson are as follows:10
You must take reasonable care to avoid acts or omissions which you can reason-
ably foresee would be likely to injure your neighbour. Who, then, in law is my
neighbour? The answer seems to be – persons who are so closely and directly
affected by my act that I ought reasonably to have them in contemplation as
being so affected when I am directing my mind to the acts or omissions which
are called in question.
Before making use of these guidelines, one has to bear in mind that, in the present case,
the plaintiff’s injury was caused by a third person, the prisoner, responsible in law for
his own tortious acts; also that the prisoner’s tortious acts were not the natural con-
sequence of his escape.
In the arguments before this court, the cases of Ellis v Home Office 11 and D’Arcy v Prison
Comr 12 were cited. In these cases, the prisoner, at the time of his tortious act, was in the
actual custody of the defendant; also, the defendant, in the exercise of his legal right
to physical custody of the plaintiff, had required the plaintiff to be so placed that
the defendant ought reasonably to have foreseen that he was likely to be injured by
his fellow prisoner. In reviewing these cases in Home Office v Dorset Yacht Co, Lord
Diplock said:13

6 (1986) 21 Barb LR 259.

7 Ibid, p 262.
8 (1868) LR 3 HL 330.
9 [1932] AC 562.
10 Ibid, p 579.
11 [1953] 2 All ER 140.
12 (1955) The Times, 17 November.
13 [1970] AC 1004, p 1062.
64 Commonwealth Caribbean Tort Law

. . . I do not think that, save as a deliberate policy decision, any proposition of

law based on the decisions in these two cases would be wide enough to extend
to a duty to take reasonable care to prevent the escape of a prisoner from actual
physical custody and control, owed to a person whose property is situated
outside the prison premises and is damaged by the tortious act of the prisoner
after his escape.
In urging his claim in negligence . . . counsel for the plaintiff submits that the prisoner’s
background of violence was such that he should not have been selected for inclusion in
the carpentry class with its less than stringent security procedures. It was this circum-
stance, counsel claims, that led to the prisoner’s escape from the workshop. Now, the
Prisons Act (Cap 168) and Rules made thereunder authorise the prison authorities to
exercise a discretion in the classification of prisoners for the purposes of their training.
However, according to the cases, it is only if the prison authorities purport to act ultra
vires the statutory power conferred on them that a cause of action will arise for the
private citizen . . .
In the instant case, the selection of the convicted prisoner for training in carpentry in the
workshop was well within the proper exercise of the statutory powers conferred upon
the prison authorities. And it has not been shown that these powers were so carelessly
and unreasonably exercised as to amount to the non-exercise or abuse of the discretion
conferred by Parliament. In any event, it has not been shown that the prison authorities
were in any way negligent in their selection. The question, then, that arises is – has it
been shown that a duty of care was owed by the defendant to the plaintiff?
There can be no doubt that, on a review of the authorities, a Superintendent of Prisons
has a common law duty to be careful and in general must owe a prima facie duty of care
to members of the public with whom he is in a sufficient relationship of neighbourhood
that, within reasonable contemplation, carelessness on his part is likely to cause them
damage. But it is necessary to consider whether there are any considerations which
would negative or limit the scope of that duty. In this context, the nature of the relation-
ship, the nature of the damage suffered and its remoteness fall to be considered. In Home
Office v Dorset Yacht Co, Lord Diplock had this to say:14
The risk of sustaining damage from the tortious acts of criminals is shared by
the public at large. It has never been recognised at common law as giving rise to
any cause of action against anyone but the criminal himself. It would seem
arbitrary and, therefore, unjust, to single out for the special privilege of being
able to recover compensation from the authorities responsible for the preven-
tion of crime a person whose property was damaged by the tortious act of a
criminal merely because the damage to him happened to be caused by a crim-
inal who had escaped from custody before completion of his sentence, instead
of by one who had been lawfully released, or who had been put on probation, or
given a suspended sentence, or who had never been previously apprehended at
all. To give rise to a duty on the part of the custodian, owed to a member of the
public, to take reasonable care to prevent a Borstal trainee from escaping from
his custody before completion of the trainee’s sentence, there should be some
relationship between the custodian and the person to whom the duty is owed
which exposes that person to a particular risk of damage in consequence of that
escape, which is different in its incidence from the general risk of damage from
criminal acts of others which he shares with all members of the public . . .
A robust and sensible approach to . . . the study of remoteness will more often than not
produce, I think, an instinctive feeling that the event or act being weighed in the balance
is too remote to sound in damages for the plaintiff. I do not pretend that in all cases the

14 Ibid, p 1070.
 Chapter 4: Negligence 65

answer will come easily to the inquirer. But that the question must be asked and
answered in all these cases I have no doubt.
On the peculiar facts of this case, and applying the language of Lord Wilberforce in
Anns v Merton LBC, I do not think that there was a sufficient relationship of proximity or
neighbourhood between the Superintendent of Prisons and the plaintiff such that, in the
reasonable contemplation of the former, carelessness on his part might be likely to cause
damage to the latter of the type complained of, so that a prima facie duty of care arose.
However, if I am wrong in this, I am of the view that there are considerations which
would negative or limit the scope of the duty or the damages to which a breach of it
might give rise. Adopting the ‘robust and sensible approach’ suggested by Watkins LJ
in Lamb v Camden LBC,15 I have the instinctive feeling that the plaintiff’s damage here is
too remote. While it is true that prisoners in the act of escaping from custody will almost
inevitably cause damage to persons or property that may hinder them, no such inevit-
ability may be ascribed to the outlandish act of one who, being responsible for his own
acts and having successfully escaped from custody, subsequently waylays and commits
the criminal act of causing grievous bodily harm to a plaintiff in her own home.
For these reasons, I would hold that the damage caused by the prisoner is too remote to
be recovered from the Superintendent of Prisons or the Attorney General as vicariously
liable for the negligence of the Superintendent.

More recent trends

Lord Wilberforce’s test in Anns led to a significant expansion of liability in negligence

and, in the mid-1980s, the appellate courts in England sought to pull in the reins and
check the expansion. Two factors which influenced this new approach were:
(a) the incursion of tort into traditionally contractual areas;16 and
(b) the difficulties in obtaining adequate insurance to cover the new areas of liability.
It was feared that the first tier of the Anns test was so easily satisfied that it left too
much to the second tier, namely, ‘policy’; and the courts have always been reluctant to
admit any dependence on policy considerations as a basis for developing the law.
Lord Wilberforce’s two-stage test has thus fallen out of favour with the English courts,
which have criticised the tendency to treat it as being of a definitive character.
In Governors of the Peabody Donation Fund v Sir Lindsay Parkinson Ltd,17 Lord Keith
said that, ‘in determining whether or not a duty of care of particular scope was
incumbent on a defendant, it is material to take into account whether it is just and
reasonable that it should be so’. However, in Caparo Industries plc v Dickman,18 Lord
Bridge referred to the inability of any single general principle to provide a practical
test to determine whether a duty of care was owed or not in a particular situation,
and he suggested that the law should revert to ‘the traditional categorisation of dis-
tinct and recognisable situations as guides to the existence, the scope and the limits
of the varied duties of care which the law imposes’. In his view, the approach of

15 [1981] 2 All ER 408. Cf Hill v Chief Constable of West Yorkshire [1989] AC 53.
16 As in Junior Books Ltd v Veitchi [1983] 1 AC 520.
17 [1984] 3 All ER 529, p 534.
18 [1990] 2 WLR 358, pp 364, 365. See, also, Murphy v Brentwood DC [1990] 3 WLR 414.
In Boodoosingh v AG (1999) High Court, Trinidad and Tobago, No 733 of 1993 (unreported)
[Carilaw TT 1999 HC 84], Mendonca J relied heavily on dicta in Caparo in holding that no
duty of care was owed by the vehicle licensing authority to the purchaser of a vehicle who was
misled by an erroneous certificate of ownership issued by the authority.
66 Commonwealth Caribbean Tort Law

Brennan J in Sutherland Shire Council v Heyman 19 should be adopted, viz, that it was
preferable that:
. . . the law should develop novel categories of negligence incrementally and by analogy
with established categories, rather than by a massive extension of a prima facie duty of
care restrained only by indefinable considerations which ought to negative, or to reduce
or limit the scope of the duty or the class of person to whom it is owed.

The ‘incremental’ approach entails looking at the particular category that a case falls
into and developing specific rules within that category. Thus, for example, an eco-
nomic loss case would be subject to different rules from a physical damage case, as it
is inappropriate to base liability for economic loss on reasonable foreseeability alone.
It is now settled that Caparo has established a three-fold test for determining the
existence of a duty of care:
(i) it must be reasonably foreseeable that the defendant’s conduct will cause harm
or loss to the claimant;
(ii) there must be sufficient ‘proximity’ between the parties;
(iii) the situation must be one in which the court considers it fair, just and reasonable
to impose a duty of care.
It has been pointed out that this Caparo formula cannot provide an answer in all cases
to the question whether or not a duty of care exists, and it would be ‘reaching for
the moon . . . to expect to accommodate every circumstance which may arise within
a single short abstract formulation’.20 Be that as it may, the concepts of foreseeability
and proximity have been well established since Donoghue v Stevenson and, later, Anns
v Merton LBC, and the ‘fair, just and reasonable’ element, first applied in Governors
of the Peabody Donation Fund v Parkinson, is arguably not far removed from the ‘public
policy’ consideration in Anns. As one leading author has pointed out,21 despite
the discrediting of the Anns formula in the English courts, ‘other judicial formulations
at the highest level do not, upon close examination, seem to differ very much in
substance from it’.22
A good illustration of the principle that, despite the existence of a sufficient degree
of proximity, a duty of care may still be denied on the ground that it would not be
‘fair, just and reasonable’ to impose one, is Marc, Rich and Co AG v Bishop Rock Marine
Co Ltd (The Nicholas H).23 Here a ship carrying a cargo from South America to Italy
developed a crack in her hull. A surveyor employed by NKK, a marine classification
society, inspected the ship off the coast of Puerto Rico and negligently declared the
ship fit to complete the voyage after temporary welding. The voyage was resumed
but a few days later the ship sank and the cargo was totally lost. The claimants, the
cargo owners, obtained $500,000 (US) by way of settlement with the shipowners (this

19 (1985) 60 ALR 1, pp 43, 44.

20 Merrett v Babb [2001] QB 1174, p 1193, per May LJ.
21 Rogers, WHV, Winfield and Jolowicz on Tort, 16th edn, London: Sweet and Maxwell, para 5.15.
22 In Gonzales v Trinidad Co-operative Bank Trust Co Ltd (1999) High Court, Trinidad and Tobago,
No 1595 of 1988 (unreported) [Carilaw TT 1999 HC 40], Lucky J discounted the Anns test,
commenting that ‘the floodgates which were apparently left ajar after Anns have been closed
to a reasonable flow’; but in Ramdeen and Singh v AG (1999) High Court, Trinidad and Tobago,
No CV 807 of 1995 (unreported) [Carilaw TT 1999 HC 72], Jamadar J held that the test as
to whether a duty of care was owed was that set out by Lord Wilberforce in Anns.
23 [1996] AC 211.
 Chapter 4: Negligence 67

was the limit of the shipowner’s liability under the international conventions govern-
ing carriage of goods by sea), and they then sued NKK for the balance of the value of
the cargo, amounting to $5.7 million (US). It was held by a majority in the House of
Lords that NKK owed no duty of care to the cargo owners since, although there was a
sufficient degree of proximity between the parties, the cumulative effect of various
policy factors, such as the likelihood of an escalation in the cost of insurance and the
probability that classification societies would decline to survey ‘high risk’ vessels,
meant that it would not be fair, just and reasonable to impose a duty.

BREACH OF DUTY

Having decided that a duty of care was owed to the plaintiff in the particular circum-
stances, the court’s next task is to determine whether the defendant was in breach of
that duty. In the Caribbean, this question is the one which, in practice, is likely to
occupy most of the court’s time. In deciding the question, the court considers whether
or not a reasonable man, placed in the defendant’s position, would have acted as the
defendant did. In the frequently cited words of Alderson B in Blyth v Birmingham
Waterworks Co:24
Negligence is the omission to do something which a reasonable man, guided upon
those considerations which ordinarily regulate the conduct of human affairs, would do,
or doing something which a prudent and reasonable man would not do.

In deciding what a reasonable man would have done in the circumstances, and in
assessing the standard of care expected of the defendant, the court may take into
account what may be called the ‘risk factor’. This has four elements:
(a) the likelihood of harm;
(b) the seriousness of the injury that is risked;
(c) the importance or utility of the defendant’s conduct;
(d) the cost and practicability of measures to avoid the harm.

The likelihood of harm

The greater the likelihood that the defendant’s conduct will cause harm, the greater the
amount of caution required of him. In Lord Wright’s words:25 ‘The degree of care
which the duty involves must be proportioned to the degree of risk involved if the
duty of care should not be fulfilled.’
This may be illustrated by comparing the following cases. In Bolton v Stone.26 the
plaintiff was struck and injured by a cricket ball as she was walking along a public
road adjacent to a cricket ground. The plaintiff contended that the defendant, who
was in charge of the ground, had been negligent in failing to take precautions to
ensure that cricket balls did not escape from the ground and injure passers-by; but the
court held that, taking into account such factors as the distance of the pitch from the

24 [1843–60] All ER Rep 478, p 479.

25 Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [1936] AC 108, p 126.
26 [1951] AC 850.
68 Commonwealth Caribbean Tort Law

road, the presence of a seven-foot-high fence and the infrequency with which balls
had escaped previously, the likelihood of harm to passers-by was so slight that the
defendant had not been negligent in allowing cricket to be played without having
taken further precautions such as raising the height of the fence.
Bolton was followed in the Jamaican case of Hartley v Gray’s Inn Sugar Factory Ltd,27
where it was held that the likelihood of untrimmed cane leaves blowing into the
face of a cane cutter and causing blindness was so slight that the employer was not
liable in negligence for his failure to have the leaves trimmed. In Hilder v Associated
Portland Cement Manufacturers Ltd,28 on the other hand, where the plaintiff, whilst
riding his motorcycle along a road, crashed and sustained injuries after being struck
by a football kicked from the defendant’s adjacent land where children were in the
habit of playing, the defendant was held negligent in having failed to take precau-
tions to prevent footballs from being kicked onto the road since, in the circumstances,
the likelihood of injury to passers-by was considerable.
The application of this test is also illustrated by the Trinidadian case of Mowser
v De Nobriga.29 Here, the plaintiff was a spectator at a race meeting. A riderless horse
(Vileb) left the race track at a point where there was no outer rail or fence, and struck
and injured the plaintiff. She brought an action in negligence against the defendants,
the organisers of the race meeting.
It was held that the plaintiff was a person to whom a duty of care was owed. There
was a real risk of injury to spectators in the event of a horse galloping off the track,
and the defendants were negligent in having failed to take sufficient precautions to
protect the plaintiff and other spectators. Rees J said:30
There is no evidence in the present case that there was any act constituting negligence
on the part of Vileb’s jockey, and therefore, the plaintiff, in order to succeed, must prove
that the defendants themselves, as officers of the club, were negligent. There are many
definitions of negligence. Alderson B in Blyth v Birmingham Waterworks Co 31 said that
negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or
doing something which a prudent and reasonable man would not do. Willes J in
Vaughan v Taff Vale Rly Co 32 says that the definition of negligence is the absence of care;
but, whatever may be its general description, negligence is now judicially recognised as
an independent tort, the essential ingredients of which are: (a) the existence of a duty
to take care owing to the plaintiff by the defendant; (b) a breach of that duty; and
(c) damage suffered by the plaintiff which is legally deemed to be the consequence of
that breach of duty . . .
In the present case, the defendants were promoters of the race meeting and were
undoubtedly well experienced in this form of sport. De Verteuil, the second defendant,
said he knows of cases where horses have become riderless in the course of a race and
have run from the race track into a crowd, but quite apart from that, he remembers a
case where during the course of a race the horse bolted with its jockey. His view is that,
when this occurs, persons in the vicinity are likely to be injured. Arthur Ince, the trainer
of Vileb, who has had an interest in horse racing for the past 35 to 40 years, said that a

27 (1995) 32 JLR 440 (Supreme Court, Jamaica).

28 [1961] 1 WLR 1434.
29 (1969) 15 WIR 147.
30 Ibid, p 151.
31 [1843–60] All ER Rep 478, p 479.
32 (1860) 157 ER 1351, p 1355.
 Chapter 4: Negligence 69

jockey falling and leaving a riderless horse which runs off the race track is a regular
feature of horse racing. The defendants were fully aware that on race days there are
large crowds in the savannah and that some of these persons usually congregated about
400 ft from the race track in the vicinity of the Casuals Club. In my view, these persons
fell within that class of persons which Lord Atkin described as ‘neighbours’ in Donoghue
v Stevenson,33 and it was therefore the duty of the defendants to see that those persons
were, so far as reasonably practicable, protected from being injured by a horse escaping
from the race track during the course of a race. To my mind, there was clearly a risk of
injury to these persons.
However, there were no safety precautions in the form of a fence or outer rail erected at
the point where Vileb ran off from the race track. Counsel for the defendants argued that
the risk of injury to persons in that crowd, if any, was so small that there was no
necessity for erecting any form of protection. He pointed out that the degree of care to
be taken depends on the magnitude of the risk and placed reliance on Bolton v Stone,34
where a member of a cricket team drove a ball out of the ground to an unfrequented
adjacent public road and it struck and injured the plaintiff, who was standing on the
highway outside her house. This had happened about six times before. It was held that,
although the occupier of a cricket ground owes a duty of care to persons on an adjacent
highway or on neighbouring property, yet for an act to be negligent there must be not
only a reasonable possibility of its happening but also of injury caused thereby. On the
facts of that case, the risk of injury to a person resulting from the hitting of a ball out of
the ground was so small that the probability of such an injury could not be antici-
pated – as a result, the plaintiff failed. Lord Normand said:35
It is not enough for the respondent to say that the occupiers of the cricket ground
could have foreseen the possibility that a ball might be hit out of the ground by a
batsman and might injure people on the road. She must go further and say that
they ought, as reasonable men, to have foreseen the probability of such an
occurrence.
In the same case, Lord Porter put it this way:36
It is not enough that the event should be such as can reasonably be foreseen; the
further result, that injury is likely to follow, must also be such as a reasonable
man would contemplate before he can be convicted of actionable negligence.
In the light of these observations, it would seem that it is not enough to say in the
present case that the defendants could have foreseen the possibility of a riderless horse
running off the race track and knocking someone down. The further question in deter-
mining liability is whether it can be said that the accident was of such a kind that the
defendants as reasonable men ought to have foreseen the probability of its occurrence.
As to who are reasonable men must depend on the particular circumstances of the case,
the test being what would be foreseen by a reasonable observer of the class whose
conduct is in question, and if the accident is of a different type and kind from anything
that the defendants could have foreseen, they are not liable for it. Let me then examine
the facts of the present case to see if the defendants, as race promoters of experience,
were able to realise or foresee the consequences of their neglect to fence or erect an outer
rail at the point where Vileb ran off the race track . . .
But it was contended that the ordinary careful man does not have to take precautions
against every foreseeable risk. I agree with this contention because if we were all to
attempt to take precautions against every risk, life would be well nigh impossible.

33 [1932] AC 562. See above, pp 62, 63.

34 [1951] AC 850.
35 Ibid, p 861.
36 Ibid, p 858.
70 Commonwealth Caribbean Tort Law

However, there is warrant for saying that, if there is a real and substantial risk which is
foreseeable and reasonably likely to happen, the ordinary careful man must not neglect
to reduce or eliminate it. In spite of the reliance placed by counsel for the defendants on
the observations made in Bolton v Stone,37 there is in my view an essential difference
between that case and the present one, because, whereas in Bolton’s case there was no
real and substantial risk of injury, seeing that there was only a remote likelihood of
injury or damage being caused to anyone by a cricket ball on an unfrequented highway,
in the present case there was a strong probability that if a riderless horse escaped from
the race track in the vicinity of the Casuals Club and ran into the group of persons who
were about 400 ft from the race track, one or more of those persons would be knocked
down and injured. In my view, the risk of injury to those persons was a real and
substantial one which would have occurred to the mind of any reasonable promoter of
horse racing, and no such person would have neglected to afford some measure of
protection to those persons. But if I am wrong and the risk was merely one of small
magnitude, as counsel for the defendants so vigorously urged, then it is important to
observe the remarks of Lord Reid in The Wagon Mound (No 2), where he said:38
It does not follow that, no matter what the circumstances may be, it is justifiable
to neglect a risk of small magnitude. A reasonable man would only neglect such
a risk if he had some valid reason for doing so, for example, that it would
involve considerable expense to eliminate the risk.
Later, he said:39
If a real risk is one which would occur to the mind of a reasonable man in the
position of the defendant’s servant and which he would not brush aside as
far-fetched, if the criterion is to be what that reasonable man would have done in
the circumstances, then surely he would not neglect such a risk if action to
eliminate it presented no difficulty, involved no disadvantage and required no
expense . . .
Counsel submitted that, having regard to the elaborate nature of the remedial measures
required, the risk of injury was not so great as to require the defendants to go to the
lengths of erecting a fence sufficiently high to ensure that no horse would jump over it.
In support of his contention, he referred me to Latimer v AEC Ltd,40 where Lord Denning
remarked that in every case of foreseeable risk it is a matter of balancing the risk against
the measures necessary to eliminate it. In that case, a heavy rainstorm caused the floor
of a factory to be flooded with water. The water eventually drained away but it left an
oily film on the surface of the floor which was slippery. The defendants did their best to
reduce the danger by spreading sawdust on the floor, but, owing to the large area, there
was insufficient sawdust to cover the floor. In the course of his duty, the plaintiff slipped
and fell. Pilcher J, the judge of first instance, held that the defendants had been negligent
at common law in permitting the workmen to work in the factory when they knew it to
be in a potentially dangerous condition. The Court of Appeal reversed his decision and
the matter went to the House of Lords, where it was held that the company had taken
every step which an ordinary prudent employer would have taken in the circumstances
to secure the safety of the workmen, and so they were not liable to the workman for
negligence at common law. Every case must depend upon its particular facts, and, in
complete contrast to that case, where the judge had found that the defendants had taken
every step which could reasonably have been taken to deal with the conditions which
prevailed before the plaintiff came on duty, in the present case no steps of any kind

37 Ibid.
38 [1966] 2 All ER 709, p 718.
39 Ibid, p 719.
40 [1953] AC 643.
 Chapter 4: Negligence 71

were taken to secure the safety of the persons who had gathered in the savannah near
the Casuals Club, although, as I find, there was a substantial risk of injury to them
which any ordinary prudent person in the position of the defendants would at least
have attempted to eliminate or reduce. As I see it, the remedial measures necessary in
the instant case were merely to erect an outer rail 3 ft 6 in high, and taking these steps
would have been adequate to prevent a race-horse from escaping . . .
In the circumstances, it cannot be said that the erection of an outer rail 3 ft 6 in high at
the point where Vileb escaped would have involved considerable expense to eliminate
the risk which existed or that overcoming the risk was impracticable.
Counsel for the defendants submitted that the defendants had acted within a well
recognised practice, and common practice is prima facie evidence that they were not
negligent. I was referred to Wright v Cheshire CC,41 where it was held that the test of what
was reasonable care in ordinary everyday affairs might well be answered by experience
arising from practices adopted generally and followed successfully for many years. The
evidence in that case was that the defendants had adopted a generally approved prac-
tice. Taking into account the nature of the activity in question, it was held that they had
not been shown to have been negligent and accordingly they were not liable in dam-
ages. Although compliance with common practice is evidence that reasonable care has
been used, it is not conclusive and it is always a matter for the court in any given case to
determine whether adequate precautions have been taken to comply with the legal
standard of care. In this case, the question for consideration as to what is the common
practice adopted and followed must be not whether there is an outer rail erected all the
way around race tracks, but whether there is an outer rail in the vicinity of that portion
of race tracks where spectators are in the habit of congregating.
The evidence of common practice as related to local conditions does not, however,
support the defendants, because it is in substance that the outer rails of the race tracks in
Arima and Union Park go around that portion of the track where spectators assemble.
In any case, I am not satisfied that there is evidence to convince me that it is common
practice not to have a fence or outer rail on race tracks to afford some measure of
protection to spectators from racehorses escaping from a race track. If that is the com-
mon practice, speaking for myself, I would venture to suggest that it is about time that
such a practice came to an end.

The seriousness of the injury that is risked

The gravity of the consequences if an accident were to occur must also be taken into
account. The classic example is Paris v Stepney BC.42 There, the defendants employed
the plaintiff as a mechanic in their maintenance department. Although they knew that
he had only one good eye, they did not provide him with goggles for his work. While
he was attempting to remove a part from underneath a vehicle, a piece of metal flew
into his good eye and he was blinded. It was held that the defendants had been
negligent in not providing this particular workman with goggles, since they must
have been aware of the gravity of the consequences if he were to suffer an injury to his
one good eye; though it was pointed out that the likelihood of injury would not have
been sufficient to require the provision of goggles in the case of a two-eyed workman.
The principle in Paris was applied by the Court of Appeal of Guyana in Rhyna
v Transport and Harbours Department,43 where the plaintiff/appellant was employed by

41 [1952] 2 All ER 789.

42 [1951] AC 367.
43 (1985) Court of Appeal, Guyana, No 56 of 1982 (unreported) [Carilaw GY 1985 CA 9].
72 Commonwealth Caribbean Tort Law

the defendant/respondent as a casual watchman. The appellant had lost the sight in
his left eye as a result of a previous accident. The appellant was instructed to catch the
line from a vessel about to moor at the wharf, which was contrary to the established
system for the mooring of vessels and took no account of the appellant’s disability.
The rope struck the appellant in his right eye and he was blinded. The court held that
the respondent was in breach of its duty as employer to provide a safe system of work
and effective supervision. (As to the plea of volenti non fit injuria, see below, p 367.)
On the matter of the appellant’s disability, Ganpatsingh J said:
The appellant’s peculiar disability enhanced the risk of injury if the rope was not
thrown accurately. This risk, in my view, was not so remote or so small as to be
unforeseeable, notwithstanding that an accident of this nature involving personal injury
had not occurred before, for we do not know whether a one-eyed man was ever
instructed or attempted to catch the rope before.
It may not be necessary in the circumstances to provide supervision for a two-eyed man.
But that is not the criterion. The test is, what precautions would the ordinary reasonable
and prudent employer take in the circumstances? The relevant considerations would
include all those facts, including disability, which would affect the conduct of a reason-
able and prudent employer. In my view, the reasonable and prudent employer would
not be influenced merely by the greater or lesser probability of an accident of this nature
occurring, but also by the gravity of the consequences if it did occur. In effect, there was
no safe system in place for the receiving of lines by a one-eyed man.
The normal system, which operated very safely for a two-eyed man, was wholly
inadequate. In Paris v Stepney BC,44 Lord Simonds outlined the duty of care of a master
as follows:
His liability in tort arises from his failure to take reasonable care in regard to the
particular employee and . . . all the circumstances relevant to that employee
must be taken into consideration.
It was held in that case that where a workman, known by his employer to be one-eyed,
was employed in a garage, it was the duty of the employer to provide him with goggles
when he was employed on work involving the risk of a chip of metal entering his
remaining eye, although they might well be under no such duty towards a man with two
eyes, and notwithstanding that an accident of that nature had never happened before.

The importance or utility of the defendant’s activity

The seriousness of the risk created by the defendant’s activity must be weighed
against the importance or utility of such activity, and, where the defendant’s conduct
has great social value, he may be justified in exposing others to risks which would not
otherwise be justifiable. For instance, ‘if all the trains in this country were restricted to
a speed of five miles an hour, there would be fewer accidents, but our national life
would be intolerably slowed down. The purpose to be served, if sufficiently import-
ant, justifies the assumption of abnormal risk’.45 Thus, the driver of an ambulance or
fire engine answering an emergency is entitled to proceed at a speed and take some
traffic risks which would be unjustifiable for an ordinary motorist (such as going
through a red light on the way to a fire),46 and a policeman, in carrying out his duty to

44 [1951] AC 367, p 375.

45 Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333, p 336, per Asquith J.
46 Ward v London CC [1938] 2 All ER 341. But see below, p 75.
 Chapter 4: Negligence 73

apprehend criminals, may be justified in resorting to the use of firearms, thereby

exposing innocent bystanders to some risk.47 In all cases, ‘one must balance the risk
against the end to be achieved’, and ‘the commercial end to make a profit is very
different from the human end to save life or limb’.48
The cases of Robley v Placide and Byfield v AG, from Trinidad and Tobago and
Jamaica respectively, illustrate the application of this principle in the context of the
maintenance of law and order.
In Robley v Placide 49 the appellant was the leader of a party of police constables who
went to the compound of the General Hospital, Port of Spain, to investigate a report of
violence. There, they saw a number of men, armed with cutlasses, come out from one
of the buildings. They gave chase and the appellant and another constable eventually
caught up with the men, who turned round and started to advance menacingly
towards the appellant. When they were at a distance of 20–25 ft from the appellant, he
aimed his pistol at one of the men and fired a shot. The shot missed the man, but struck
the respondent, a pedestrian, in her leg. The trial judge held the appellant liable to the
respondent in negligence. The Court of Appeal of Trinidad and Tobago, however, held
that no legal duty to retreat could arise in circumstances where a police officer acted in
the execution of his statutory duty to arrest persons who were prima facie committing,
within his view, the offence of being armed with offensive weapons; and the necessity
of saving life and limb justified the appellant in taking the risk of possible injury to the
respondent. The appellant was, therefore, not liable in negligence. Phillips JA said:50
There was no suggestion made either in this court or in the court below that the appel-
lant, even though purporting to exercise a right of defending himself against his
attackers, did not owe a duty of care to the respondent in relation to his discharging the
firearm, and the sole question for determination is whether such discharge was
negligent having regard to all the relevant circumstances. In this connection, it is
appropriate to quote the classic definition of negligence given by Alderson B in Blyth v
Birmingham Waterworks Co:51
Negligence is the omission to do something which a reasonable man, guided
upon those considerations which ordinarily regulate the conduct of human
affairs, would do, or doing something which a prudent and reasonable man
would not do.
The foundation of the trial judge’s reasoning in relation to this matter seems to us to
have been that a distance of 20–25 ft separating the appellant from his would-be assail-
ants was so considerable as to afford the appellant ample opportunity of taking other
measures reasonably sufficient for his own protection, for example, retreating or firing a
warning shot, and that the exigencies of the situation did not necessitate his taking the
action which he did. In forming this opinion, the judge was influenced by the consider-
ation that, to use his own words, ‘the assailants were armed with cutlasses only’, the

47 Beim v Goyer [1965] SCR 638; Robley v Placide (1966) 11 WIR 58 (High Court, Trinidad and
Tobago); Byfield v AG (1980) 17 JLR 243 (Supreme Court, Jamaica). But a police officer is not
entitled to ignore entirely the safety of bystanders, and he must confine himself to measures
which are reasonably necessary to effect his purpose. Thus, in Andrews v AG (1981) 18 JLR 434
(Supreme Court, Jamaica), it was held that police officers had exhibited ‘a remarkable degree
of negligence for the welfare of the public’ in firing at a moving car in which they believed
certain fugitives to be present, and hitting the plaintiff, an innocent bystander.
48 Watt v Hertfordshire CC [1954] 2 All ER 368, p 371.
49 (1966) 11 WIR 58.
50 Ibid, p 61.
51 [1843–60] All ER Rep 478, p 479.
74 Commonwealth Caribbean Tort Law

implication being that, as cutlasses are not normally used as missiles, in order to use
them on the appellant the attackers would have had to traverse a distance of 20–25 ft.
In so far as the judge appears to have held that there was a duty on the appellant to
retreat, we think that he must have lost sight of the fact that the appellant was a police
officer acting in execution of his statutory duty to arrest persons who were prima facie
committing within his view the offence of being armed with offensive weapons, and
that no legal duty to retreat could arise in such circumstances. The situation, in our
judgment, remained unaffected (rather, the contrary) by the fact that the holders of
those weapons clearly displayed their intention of attacking the appellant and thus to
embark upon the commission of a more serious crime. To impose upon a police officer a
duty to retreat in such circumstances would clearly be acting contrary to the express
provisions of ss 19 and 20 of the Police Ordinance, Ch 11, No 1.
This is not to say that the appellant, being a police officer, was ipso facto entitled to act in
a rash, reckless or unreasonable manner, or to take such steps for his protection as were
not warranted by the necessity of the occasion. In considering this question, unlike the
trial judge, who accentuated the fact that cutlasses are not normally (though they can
be) used as missiles, we think it important to stress the fact that the appellant was
suddenly called upon to deal with a situation involving not one man, but six men
armed with lethal weapons, who by their whole conduct had made it clear that they
were determined to make a concerted attack upon the police, for which purpose they
had deliberately sharpened their weapons. Undeterred by the request to drop the cut-
lasses, they riotously proceeded to effect their object, which the appellant sought to foil
by the discharge of a single bullet fired at one of the men at knee level at a moment
when he was only 20–25 ft away. We fail to see that the time it would take the men to
traverse this distance would be such as either to permit calm reflection or to allow
ample opportunity to the appellant of escaping from the attack, for example, by taking
cover (as was suggested by counsel for the respondent) behind two motor cars that were
on the scene.
We have accordingly come to the conclusion that the firing of his pistol by the appellant
was in the circumstances a legally justifiable act vis à vis the six men, and it is interesting
to note that counsel for the respondent conceded this. We agree with him, however,
that this finding does not determine the question of the appellant’s liability for wound-
ing the respondent. Remembering the above quoted words of Alderson B in Blyth
v Birmingham Waterworks Co, that the problem involves ‘those considerations which
ordinarily regulate the conduct of human affairs’, we pose to ourselves the question:
is there anything in the evidence that shows any act or omission on the part of the
appellant which a reasonable and prudent man would have done or not have done,
having regard to the fact that the appellant was actually aware of the presence of the
respondent on the road at the time of the accident?
It may be appropriate to state here, in parenthesis, that the evidence disclosed that the
respondent was about 10 ft behind the men when they advanced towards the appellant,
and that at the moment when he pulled the trigger he was not aware of the actual
position of the respondent, because, as he stated, ‘I was not concentrating on the plain-
tiff. When I fired the shot the plaintiff was not in my view’. In our opinion, the sugges-
tion of the trial judge that the appellant should have been ‘fully aware of the presence of
the respondent in the direct line of fire’ is not justified by the evidence.
Enough has been said to illustrate the urgency of the circumstances which impelled the
appellant to discharge his pistol, and we think that, mutatis mutandis, the words of
Holmes J of the US Supreme Court are eminently applicable to the facts of the present
case, namely, ‘detached reflection cannot be demanded in the presence of an uplifted
knife’. Having regard to the springs of human conduct, which are undoubtedly what
Alderson B had in mind when, in Blyth v Birmingham Waterworks Co, he referred to
‘those considerations which ordinarily regulate the conduct of human affairs’, we do
not consider it to be a breach of his duty of care on the part of the appellant to have
 Chapter 4: Negligence 75

failed to ascertain the precise whereabouts of the respondent with a view to making
sure that she was not within range at the moment of firing, nor has it been suggested
that the mere fact that the appellant missed his target can be regarded as any evidence of
negligence. We reiterate that this was a single pistol shot fired at knee level and not,
for example, the discharge of several rounds of ammunition from a machine gun – a
situation to which other considerations would no doubt be applicable.
In considering the question we have posed above, we derive assistance from Daborn v
Bath Tramways Ltd, in which Asquith LJ said:52
In determining whether a party is negligent, the standard of reasonable care is
that which is reasonably demanded in the circumstances. A relevant circum-
stance to be taken into account may be the importance of the end to be served by
behaving in this way or that. As has often been pointed out, if all the trains in this
country were restricted to a speed of five miles an hour, there would be fewer
accidents, but our national life would be intolerably slowed down. The purpose
to be served, if sufficiently important, justifies the assumption of abnormal risk.
This passage was quoted with approval by Singleton LJ in Watt v Hertfordshire CC,53
where a fireman, going to a fire in an emergency in a lorry which contained a heavy jack
which could not be lashed to anything, was injured when the driver applied the brakes
suddenly and the jack moved forward and struck him. The fire authority were held not
liable, although they were held to be under a duty to take reasonable care to avoid
exposing the fireman to unnecessary risks, on the ground that in saving life they were
justified in taking greater risks than if they had been concerned in a commercial
enterprise.
Delivering a concurring judgment in Watt v Hertfordshire CC, Denning LJ said:54
It is well settled that, in measuring due care, one must balance the risk against
the measures necessary to eliminate the risk. To that proposition there ought to
be added this: one must balance the risk against the end to be achieved. If this
accident had occurred in a commercial enterprise without any emergency, there
could be no doubt that the servant would succeed. But the commercial end to
make profit is very different from the human end to save life or limb. The saving
of life or limb justifies taking considerable risk, and I am glad to say there have
never been wanting in this country men of courage ready to take those risks,
notably in the fire service.
In this case, the risk involved in sending out the lorry was not so great as to
prohibit the attempt to save life. I quite agree that the fire engines, ambulances
and doctors’ cars should not shoot past the traffic lights when they show a red
light. That is because the risk is too great to warrant the incurring of the danger.
It is always a question of balancing the risk against the end.
Applying this principle, mutatis mutandis, to the facts of the present case, which was
clearly one of an emergency for which the appellant was in no way to blame, we would
adopt the words of Denning LJ by stating that, in our judgment, the necessity of saving
life or limb justified the appellant in taking the risk of the possibility of injury to the
respondent, and we consider that there was absolutely no warrant in the evidence for
the judge’s finding that ‘the discharge of the firearm in all these circumstances
amounted to an act of a man in panic rather than the act of a police officer exercising
skill and caution in the performance of his duty’. We are of opinion that the trial judge
was wrong in holding that the appellant was guilty of negligence in discharging his
pistol in the circumstances we have described.

52 [1946] 2 All ER 333, p 336.

53 [1954] 2 All ER 368, p 370.
54 Ibid, p 371.
76 Commonwealth Caribbean Tort Law

Another significant case is Byfield v AG. 55 Here, two constables were chasing an
armed man who was wanted for various offences, including robbery and possession
of firearms. The man ran into the yard of the plaintiff’s house, from where he fired a
shot at the pursuing constables. The constables returned fire but accidentally shot the
plaintiff, who was also in the yard but had not been noticed by the constables. It was
held that the constables were not liable in negligence, since they were acting in the
execution of their duty in ‘hot pursuit’ of a gunman. They were entitled to defend
themselves and were under no duty to retreat. Gordon J (Ag) said:56
It must be recognised that the gunman was in 1976 an entity in the society and a force to
be reckoned with. The police in execution of their duty often come under fire from this
force, yet, despite the fearful odds, the police have continued to do their duty, even at
great personal risk.
The plaintiff was in his home, and a man’s home is his castle. He is entitled to be secure
in the safety of his home and to the protection of the law. Were the constables negligent,
having regard to all the relevant circumstances?
In considering this question, it is desirable to refer to the definition of negligence given
by Alderson B in Blyth v Birmingham Waterworks Co:57
Negligence is the omission to do something which a reasonable man, guided
upon those considerations which ordinarily regulate the conduct of human
affairs, would do, or doing something which a prudent and reasonable man
would not do.
There is no duty on the police to retreat. These constables were acting in the execution of
their duty in ‘hot pursuit’ to arrest a gunman who was prima facie in their view commit-
ting other offences, viz, illegal possession of a firearm and shooting with intent. They
were, at the time they fired their guns, the target of the gunman about to shoot again.
They were entitled to defend themselves. Section 33 of the Jamaica Constabulary Force
Act requires the plaintiff to allege and prove that the defendant acted maliciously, or
without reasonable or probable cause58 . . . In my view, the decision in Robley v Placide 59
is applicable to this case. The plaintiff has failed to establish negligence in the defendants.

55 (1980) 17 JLR 243 (Supreme Court, Jamaica). Followed in Smith v AG (2005) Supreme Court,
Jamaica, No CL2001–5044 (unreported) [Carilaw JM 2005 SC 17]. See also Finn v AG (1981) 18
JLR 120 (Supreme Court, Jamaica); Chin v AG (2005) Supreme Court, Jamaica, No CL2002/C–186
(unreported) [Carilaw JM 2005 SC 95].
56 Ibid, p 247.
57 [1843–60] All ER Rep 478, p 479.
58 The view that section 33 of the Constabulary Force Act requires a bystander, who is harmed
during the course of a police ‘shoot-out’, to prove that the defendant constables acted
maliciously or without reasonable and probable cause, was also taken by Anderson J in two
recent cases: Lawrence v Davis and AG (2007) Supreme Court, Jamaica, No CL 1996 L-00103
(unreported) [Carilaw JM 2007 SC 33] and Pellington v Maitland and AG (2007) Supreme Court,
Jamaica, No CL 1998 P-191 (unreported) [Carilaw JM 2007 SC 34]. However, the Jamaican
Court of Appeal held by a majority in Ebanks v Crooks (1996) 52 WIR 315 that s 33 of the
Constabulary Force Act does not apply to actions in negligence against police officers, so that
a person who is injured by the negligence of a constable does not need to prove malice or lack
of reasonable or probable cause. According to Carey JA (p 318), the object of the section is ‘to
protect police officers from frivolous and vexatious actions’; according to Forte JA (p 324), the
section ‘refers to direct acts done by a constable in the execution of his office, and not to
personal injuries which are the consequential effect of his acts; or, put in another way, it does
not apply to unintentional acts of the constable which amount to negligence’. Patterson JA,
dissenting, took the view (p 332) that a constable ‘is liable only for acts done maliciously or
without reasonable or probable cause whenever he is acting in the execution of his office. If he
acts fairly within the confines of his statutory powers, mere negligence, even if established,
would not alone create any liability.’ The Privy Council subsequently dismissed an appeal
against the decision of the Jamaican Court of Appeal: (1999) PC App No 32 of 1997.
59 (1966) 11 WIR 58. See above, pp 73–75.
 Chapter 4: Negligence 77

The cost and practicability of measures to avoid the harm

Another relevant question is how costly and practicable it would have been for the
defendant to have taken precautions to eliminate or minimise the risk, for ‘in every
case of foreseeable risk, it is a matter of balancing the risk against the measures
necessary to eliminate it’,60 and ‘a reasonable man would only neglect . . . a risk [of
small magnitude] if he had some valid reason for doing so, for example, that it would
involve considerable expense to eliminate the risk’.61 Thus, where a factory floor had
become slippery after a flood and the occupiers did everything possible to make the
floor safe, but nevertheless a workman slipped on it and sustained injuries, the court
held that the occupiers had not been negligent. The only other possible step they
could have taken would have been to close the factory, and the risk of harm created
by the slippery floor was not, in the opinion of the court, so great as to require such a
costly and drastic step.62
On the other hand, in Mowser v De Nobriga,63 as we have seen, Rees J considered
that the erection of a 3 ft 6 in high rail to prevent the escape of riderless horses into the
spectators’ area would not have been impracticable or have involved considerable
expense in eliminating the obvious danger to spectators.

INTELLIGENCE, KNOWLEDGE AND SKILL OF THE

REASONABLE MAN

Intelligence

In determining whether the defendant’s actions satisfied the standard of a reasonable

man, the court will measure those actions against the conduct expected of a person of
normal intelligence, and the defendant will not be excused for having acted ‘to the
best of his own judgment’ if his ‘best’ is below that to be expected of a man of ordinary
intelligence.64 Thus, it is no defence that the particular defendant had unusually slow
reactions or a lower than average intelligence quotient. On the other hand, a person of
higher than average intelligence or possessing unusually quick reactions will not be
judged by his own high standards, and will not be liable for having failed to use those
exceptional qualities.65

Knowledge

In the first place, a man is expected to have that degree of common sense or know-
ledge of everyday things which a normal adult would possess.66 For instance, a
reasonable person knows that gasoline is highly inflammable; that solid objects sink

60 Latimer v AEC Ltd [1952] 2 QB 701, p 711, per Denning LJ.

61 The Wagon Mound (No 2) [1966] 2 All ER 709, p 718, per Lord Reid.
62 Latimer v AEC Ltd [1952] 2 QB 701.
63 (1969) 15 WIR 147. See above, pp 68–71.
64 Vaughan v Menlove (1837) 132 ER 490.
65 Wooldridge v Sumner [1962] 2 All ER 978.
66 Caminer v Northern and London Investment Trust [1951] AC 88.
78 Commonwealth Caribbean Tort Law

in water; and that gas is poisonous when inhaled. Furthermore, where the defendant
holds a particular position, he will be expected to show the degree of knowledge
normally expected of a person in that position. Thus, for example, in The Wagon
Mound (No 2), 67 the Privy Council took the view that shipowners were liable for a fire
caused by discharging oil from their ship into Sydney Harbour, because their chief
engineer ought to have known that there was a real risk of the oil catching fire.
Similarly, it is clear that an employer is required to know more about the dangers of
unfenced machinery than his workmen.68
Secondly, with regard to the facts and circumstances surrounding him, the
defendant is expected to observe what a reasonable man would notice.69 The occupier
of premises, for example, will be negligent if he fails to notice that the stairs are in a
dangerous state of disrepair or that a septic tank in the garden has become danger-
ously exposed, so that lawful visitors to his property are put at risk. Moreover, a
reasonable occupier is expected to employ experts to check those installations which
he cannot, through his lack of technical knowledge, check himself, such as electrical
wiring or a lift.70
Lastly, a related point is this: where the defendant has actual knowledge of
particular circumstances, the standard of care required of him may be increased. An
example is Paris v Stepney BC,71 where, as we have seen, a higher measure of care was
owed by an employer towards a workman who, to the knowledge of the employer,
had only one good eye. Similarly, a higher standard of care will be owed towards, for
example, young children, elderly persons and pregnant women, because of their
special susceptibility to injury. In Lord Sumner’s words:72
A measure of care appropriate to the inability or disability of those who are immature or
feeble in mind or body is due from others, who know or ought to anticipate the presence
of such persons within the scope and hazard of their own operations.

Skill

A person who holds himself out as having a particular skill, either in relation to the
public generally (for example, a car driver) or in relation to a person for whom he is
performing a service (for example, a doctor), will be expected to show the average
amount of competence normally possessed by persons doing that kind of work, and
he will be liable in negligence if he falls short of such standard. Thus, for example, a
surgeon performing an operation is expected to display the amount of care and skill
usually expected of a normal, competent member of his profession;73 whereas a jewel-
ler who pierces ears is only expected to show the skill of a normal jeweller doing such
work, and not that of a surgeon.74 Somewhat surprisingly, however, it has been held

67 [1966] 2 All ER 709.

68 Clarke v Holmes (1862) 158 ER 751.
69 Mersey Docks Trustees v Gibbs (1866) 11 ER 1500.
70 Haseldine v Daw [1941] 2 KB 343.
71 [1951] AC 367. See also Rhyna v Transport and Harbours Department (1985) Court of Appeal,
Guyana, No 56 of 1982 (unreported) [Carilaw GY 1985 CA 9] (above, pp 71, 72).
72 Glasgow Corp v Taylor [1922] 1 AC 44, p 67.
73 Whiteford v Hunter [1950] WN 553; Rojannenisha v Guyana Sugar Producers Association Ltd (1973)
High Court, Guyana, No 1713 of 1971 (unreported) [Carilaw GY 1973 HC 20]. See below, p 80.
74 Philips v Whiteley [1938] 1 All ER 566.
 Chapter 4: Negligence 79

that a learner driver must comply with the same objective and impersonal standard as
any other driver.75 This decision may, perhaps, be explained on the ground that a car
is a potentially lethal weapon, and public policy requires that the strictest possible
standards of care be maintained, even by learners.

Medical negligence

In the Jamaican case of Millen v University of the West Indies Hospital Board of Manage-
ment,76 a surgeon employed by the defendant carelessly failed to remove part of a
suture which had been previously inserted into the plaintiff in an operation called
‘cervical encirclement’, thereby exposing the plaintiff to considerable danger in her
subsequent pregnancy and labour. Vanderpump J said:
Here, there was a situation involving the use of some special skill, and the test is the
standard of the ordinary skilled man exercising and professing to have that special skill.
If a surgeon fails to measure up to that standard in any respect [clinical judgment or
otherwise], he has been negligent and should be so adjudged. If [the surgeon in this
case] had used proper care in what he was about, he would not have left part of the
suture in the plaintiff. I find him negligent.

On the other hand, in Hind v Craig 77 it was emphasised, following the principle
established in Bolam v Friern Hospital Management Committee,78 that a medical man is
not guilty of negligence if he has acted ‘in accordance with a practice accepted as
proper by a responsible body of medical men skilled in that particular art . . . merely
because there was a body of opinion which would take a contrary view’. Thus, the fact
that preparations for surgery by the defendant surgeon at the University Hospital in
Jamaica differed from those which were made in the US, was not evidence of neg-
ligence on the defendant’s part, it being found that the defendant had followed a
general and approved practice for such surgery.79

75 Nettleship v Weston [1971] 3 All ER 581.

76 (1984) Supreme Court, Jamaica, No CLM-066 of 1980 (unreported) [Carilaw JM 1984 SC 30],
upheld by the Court of Appeal (1986) 44 WIR 274.
77 (1983) 19 JLR 81 (Supreme Court, Jamaica). See also Deonarine v Ramlal (2007) Court of Appeal,
Trinidad and Tobago, Civ App No 28 of 2003 (unreported) [Carilaw TT 2007 CA 4] (negligent
failure of junior doctor to administer ultrasound before making diagnosis of miscarriage);
Genas v Black River Hospital Board of Management (2006) Supreme Court, Jamaica, No CL G-105
of 1996 (unreported) [Carilaw JM 2006 SC 98] (delay in removing accident victim to specialist
hospital led to amputation of leg: standard of care ‘fell far short of what was required’);
Holness v University College Hospital Board of Management (2007) Supreme Court, Jamaica, No
CL 2002/C-123 (unreported) [Carilaw JM 2007 SC 72] (screening policy for donor blood held
consistent with measures that a reasonably prudent medical practitioner and blood collection
agency would take).
78 [1958] 1 WLR 582, p 587.
79 More recently, in Bolitho v City and Hackney Health Authority [1997] 4 All ER 771, p 778, Lord
Browne-Wilkinson stated that ‘the court is not bound to hold that a defendant doctor escapes
liability for negligent treatment or diagnosis just because he leads evidence from a number of
medical experts who are genuinely of opinion that the defendant’s treatment or diagnosis
accorded with sound medical practices . . . In the vast majority of cases, the fact that dis-
tinguished experts in the field are of a particular opinion will demonstrate the reasonableness
of that opinion . . . But if, in a rare case, it can be demonstrated that the professional opinion is
not capable of withstanding logical analysis, the judge is entitled to hold that the body of
opinion is not reasonable or responsible.’ His Lordship went on to suggest, however, that it
would be an exceptional case where the court would hold that a view held by competent
medical experts was unreasonable, since ‘the assessment of medical risks and benefits is a
matter of clinical judgment which a judge would not normally be able to make without expert
80 Commonwealth Caribbean Tort Law

It was established in Roe v Minister of Health 80 that the defendant is to be judged

according to the current state of medical knowledge and the prevailing standard at
the time of the act complained of, and not according to knowledge subsequently
gained by the profession. In that case, the plaintiff went into hospital in 1947 for a
minor operation. He was paralysed because a spinal anaesthetic which was given to
him became tainted with phenol whilst it was in a syringe which was stored in a
phenol solution. In 1947, it was not known by the medical profession that phenol
could seep into a syringe through invisible cracks in the syringe (though the risk was
known by 1954, the time of the action). It was held that the hospital authority was not
negligent, Denning LJ saying that the court should not look at a 1947 accident ‘with
1954 spectacles’.
A similar situation arose in the Bermudian case of Van de Weg v Minister of Health
and Social Services.81 There, the defendant, acting through the Chief Medical Officer,
introduced in Bermuda in 1976 a programme of vaccination against influenza, which
was confined initially to members of the essential services, including the police. The
programme was introduced shortly after a mass immunisation programme against
influenza in the US had been announced by the US President, following an outbreak
of swine flu at an army camp in New Jersey. At the time, there was little evidence of
serious side effects associated with influenza vaccines. The plaintiff, a police sergeant,
was vaccinated and subsequently developed a disease called Guillain Barre Syn-
drome (GBS). The US vaccination programme was halted in December 1976 after a
substantial number of persons vaccinated had developed GBS. It was held that the
defendant was not liable to the plaintiff in negligence, since, at the time the plaintiff
was vaccinated, ‘no association of GBS with influenza vaccination was recognised’ by
the medical profession and damage to the plaintiff could not have been foreseen.
Melville J continued:82

Tourism is the backbone of the economy of these islands, with the majority of the
tourists coming from the US. A massive immunisation programme is announced by
none other than the President of that country; a vaccine is to be used which almost
everyone in the medical profession thought, at that time, to be perfectly safe . . . On the
question of benefits as against the risk of immunisation, it appears to me that the
benefits of the vaccination far outweigh any remote risk that may have been associated
with the vaccination. Can it then be said that it was negligence for a medical officer of
health, in an area of 21 square miles and a population of approximately 56,000 people, to
inaugurate an immunisation programme in those circumstances, even if it had been no
more than the announcement of the President? Would it be unreasonable for him to try
to protect not only his own people, but visitors on whom the economy of the country
depended so much? The answer must unquestionably be ‘No’.

The Bolam and Roe principles were also applied in the Guyanese case of Rojannenisha v
Guyana Sugar Producers Association Ltd.83 In this case, while W was working as a

evidence’. Lord Browne-Wilkinson’s dicta were discussed in Deonarine v Ramlal (2007) Court
of Appeal, Trinidad and Tobago, Civ App No 28 of 2003 (unreported) [Carilaw TT 2007 CA 4],
per Mendonca J and in Holness v University College Hospital Board of Management (2007)
Supreme Court, Jamaica, No CL 2002/C-123 (unreported) [Carilaw JM 2007 SC 72], per Jones J.
80 [1954] 2 All ER 131.
81 (1981) 32 WIR 161 (Supreme Court, Bermuda).
82 Ibid, p 169.
83 (1973) High Court, Guyana, No 1713 of 1971 (unreported) [Carilaw GY 1973 HC 20].
 Chapter 4: Negligence 81

labourer in a field on V’s estate, a piece of greenheart wood stuck in her foot. W died
five weeks later from tetanus and, in an action for negligence, it was alleged that
A, the doctor who had attended W after the accident, had been negligent in failing
to give W an anti-tetanus injection immediately after the injury. Collins J pointed
out that:
. . . (a) the deceased was treated in 1968 and [the matter] must be judged in the light of
medical knowledge then and not in 1973 [the time of the action]; and (b) with respect
to the skill expected of a doctor, the test is the standard of the ordinary, competent
practitioner exercising ordinary professional skill.

It was a controversial issue in medical circles as to whether anti-tetanus serum should

be given at the time of injury. Dr A had taken the view that the serum was a danger-
ous drug and should be administered only if tetanus symptoms appeared. Collins J
concluded that, ‘in view of the fact that there is a difference of medical opinion as to
the proper time to use anti-tetanus serum, I do not think that Dr Abensetts can be
considered negligent when he adopted one opinion rather than the other’.

Other skills

Another example of the application of the principles relating to the standard of care in
cases where the defendant holds himself out as possessing a particular skill is Sabga v
Llanos.84 in this case the plaintiff, who operated a pizza business, wanted to have a
water tank installed. The defendant, a supplier of water tanks and fittings, sent his
plumber to install a tank at the plaintiff’s premises. The plaintiff ordered the plumber
to place the tank on a wooden stand, which he did. The plumber had warned the
plaintiff that the wood would eventually rot. Eighteen months later, the stand
collapsed and the tank fell down. It was held that the defendant was not liable
in negligence. The warning given by his plumber to the plaintiff was sufficient to
discharge his duty of care. Hamel-Smith J said:
The plaintiff relied on the skill and expertise of the defendant. To simply install the tank
on the wooden stand because the plaintiff had so directed could not be sufficient to
discharge the defendant’s duty to the plaintiff.
What, then, was the defendant’s duty in circumstances such as these?
In Bolam v Friern Hospital Management Committee,85 McNair J said:
Where you get a situation which involves the use of some special skill or com-
petence, then the test as to whether there has been negligence or not is not the
test of the man on the top of a Clapham omnibus, because he has not got this
special skill. The test is the standard of the ordinary skilled man exercising and
professing to have that special skill . . . A man need not possess the highest
expert skill; it is well established law that it is sufficient if he exercises the
ordinary skill of an ordinary competent man exercising that particular art.
It follows that, where a person holds himself out to be competent to do some special
kind of job, an action will lie in negligence for any damage which may be caused by the
failure to exercise due care and skill, either by proving that the defendant did not
possess the skill or by showing that, although he possessed it, he did not exercise it in
the particular case.

84 (1988) High Court, Trinidad and Tobago, No HCA 146 of 1979 (unreported).
85 [1958] 1 WLR 582, p 586.
82 Commonwealth Caribbean Tort Law

What, then, was the defendant’s duty to the plaintiff when the plaintiff instructed the
plumber to place the tank on the wooden platform? Could the plumber have simply
followed the instructions and so placed the tank or did he have to do more than that? In
my view, he had to do more. He had to warn the plaintiff that such an action was
inherently dangerous and unsafe.
In Charlesworth and Percy on Negligence, 7th edn, the learned authors were of the
view that:
. . . a retailer owes a duty to the person to whom he supplies products to warn
him of any danger in them of which he knows and of which he could not
reasonably expect the recipient to know. Likewise, he must warn him of any
defect in the products which renders them unfit for the purpose for which he
contemplates they will be used, provided that he knows of the defect.
No authorities were put to me, but I . . . came across the case of Clarke v Army and Navy
Co-operative Society Ltd.86 In that case, the plaintiff was supplied by the sellers with a tin
of disinfectant powder which, owing to previous complaints they had received, the
sellers knew would be likely to cause injury, unless the tins were opened with special
care. The sellers gave the plaintiff no warning of the danger and the plaintiff was held
entitled to recover damages for the injuries sustained. The defendants knew the tins
to be potentially dangerous and failed to warn the plaintiff. Collins MR was of the
view that:
. . . independently of any warranty, a relation arises out of the contract . . .
which imposes on the defendant a duty towards the plaintiff: namely a duty, if
there is some dangerous quality in the goods sold, of which he knows, but of
which the plaintiff cannot be expected to be aware, of taking reasonable precau-
tions in the way of warning the plaintiff that special care will be requisite.
Much argument turned on the extent of the duty of the defendant to advise the plaintiff
on the danger of using a wooden stand. Should the defendant have refused to install the
tank on the stand or should he have reduced his views into writing?
I am of the view that, since the plaintiff relied on the skill of the defendant, the defend-
ant was under a duty, when the plaintiff directed that the tank be placed on the wooden
stand, to warn the plaintiff in the clearest of terms of the inherent danger. A defendant
cannot be heard to say, ‘I don’t agree with you but I shall follow your instructions’. The
defendant was the person with the skill; he was the person with the experience. He was
the one who knew, or should know, that it was simply a matter of time before the tank
came tumbling down. The defendant knew from the moment the tank was placed on
the wooden stand that the plaintiff had blundered in his instructions. He was therefore
under a strict duty to warn him of what was bound to occur. If the plaintiff persisted
after such a warning, then he acted at his peril and cannot today attempt to attach blame
to the defendant.
Did the plumber so warn the plaintiff? I have only the evidence of the plumber. He said
that: ‘I told him (Joe Pizza) that if he built a wooden stand it would rot. He (Joe) said that
he was paying the company for the installation and he wanted it so.’ To the court, when
asked if he told Joe that he could get a steel frame for the tank, he said that he did not.
The plumber said that Joe ‘wanted the tank on the stand his carpenter had built’.
I can only come to one conclusion. The plumber warned Joe of the inherent danger and
Joe failed to appreciate the danger or, if he did, he opted for the cheaper and quicker
construction. If the inherent danger were something out of the ordinary, if it were
something that required some form of technical or scientific knowledge, I would have
concluded otherwise. But wood rots. Rot takes hold from the day the forester fells the
tree from which the planks are formed. Sometimes before. But rot it will. No one

86 [1903] 1 KB 155.
 Chapter 4: Negligence 83

can suggest otherwise. The warning in this case was a simple one and I find that it was
given.

OMISSIONS

Although Lord Atkin in Donoghue v Stevenson 87 spoke of a duty to take care to avoid
acts or omissions which were foreseeably likely to injure one’s neighbour, it is
established principle that there is no general duty to act positively for the benefit of
others88 and ‘there is no liability for a mere omission to act’.89
It seems that the ‘omission’ referred to by Lord Atkin is an omission in the course
of positive conduct, for example, where the driver of a car omits to apply the brakes,
or where he omits to keep a lookout when overtaking another vehicle. In such cases,
the omission will amount to negligence. But there is no liability for a mere omission to
do something for another person where there is no positive duty to act.90 For instance,
a passer-by who sees a person lying injured by the side of the road is under no duty
to stop and render assistance. The common law does not demand that a person be a
‘good Samaritan’ (cf Luke 10:29–37).
Another example of the principle is Campbell v Clarendon PC,91 which shows that a
public authority will not be liable in negligence for a failure to act or to provide a
service (that is, for ‘nonfeasance’) where there is no positive duty to act or provide the
service, even though it is foreseeable that failure to act may cause damage. Here the
plaintiff’s place of business in a small town called Frankfield was gutted by a fire of
unknown origin and its contents destroyed. The town’s fire brigade was unable to
save the building because the flow of water in the water mains and fire hydrants was
insufficient. The town was supplied with water from a public supply scheme under
statutory provisions. The plaintiff brought an action against the local parish council
for, inter alia, negligence in respect of its failure to provide a sufficient water supply for
use by the fire brigade.
It was held that the defendant was not liable for its failure to supply water in
sufficient quantity at the material time. An omission to act, otherwise than in the
performance of a duty to take care, does not amount to a breach of duty, even though
it can be reasonably foreseen that such omission is likely to cause damage. Patterson
J said:92
As to [the plaintiff’s] common law claim in negligence, one of the necessary factors is to
show the particular duty owed by the defendant to the plaintiff. Lord Wright expressed
it succinctly when, in Lochgelly Iron and Coal Co Ltd v McMullan,93 he had this to say:

87 [1932] AC 562, p 579. See above, p 62.

88 Winfield and Jolowicz, Tort, 15th edn, 1998, London: Sweet & Maxwell, p 117.
89 Heuston and Buckley, Salmond and Heuston on the Law of Torts, 21st edn, 1996, London: Sweet
& Maxwell, p 219.
90 The rule was regarded as justifiable by the House of Lords in Stovin v Wise [1996] AC 923.
91 (1982) 19 JLR 13 (Supreme Court, Jamaica). For the same reason, no action in tort lies against
a highway authority for failure to carry out the duties of maintaining and repairing the
highway, as the authority is liable only for ‘misfeasance’ and not for ‘nonfeasance’: Graham
v St Ann Parish Council (1995) 32 JLR 24 (Supreme Court, Jamaica).
92 (1982) 19 JLR 13, p 21.
93 [1934] AC 1, p 25.
84 Commonwealth Caribbean Tort Law

In strict legal analysis, negligence means more than heedless or careless con-
duct, whether in omission or commission; it properly connotes the complex
concept of duty, breach and damage thereby suffered by the person to whom
the duty was owing.
One must not lose sight of the distinction between acts that create injury or a positive
risk of injury and a failure to act or to efficiently act to prevent a threatened or obvious
harm. Where a person who is not under a duty to act does nothing but fails to act, he
cannot incur liability. Even if he undertakes a task which he is not obliged to perform, he
owes no duty to take care in its performance as long as he does not thereby add to the
damage which would have been caused had he done nothing. The duty of care required
of all men is not to injure the property or person of another. I share the view that a person
owes a duty to take care when he should foresee as a reasonable man that his acts and
conduct are likely to cause physical damage to the person or property of another or
others in the ordinary course of things, or in the circumstances actually known by him to
exist at the time. If he can foresee consequences not intended by him which, though
possible, are not probable, such consequences are regarded as too remote and he is under
no duty to take care in respect of them. An omission to act, otherwise than in the
performance of a duty to take care, is not a breach of duty to take care, even though it can
reasonably be foreseen that such omission is likely to cause physical damage to person
or property . . . It is a question of law whether a duty to take care arises in any given case.
It is interesting to note that similar principles to those mentioned above obtain in other
jurisdictions. The Appellate Division of the Supreme Court of Ontario seems to have
decided the case of Vanvalkenburg v Northern Navigation Co 94 on similar principles.
Charles Vanvalkenburg was a seaman employed on the defendant’s steamer, Hamonic.
While off duty, he and the rest of his watch were amusing themselves running around
the decks, and he slipped and fell backwards into the sea. One of his companions
immediately pressed the electric bell button which was the signal for ‘man overboard’.
After waiting a minute or two, his companion again signalled but the ship continued on
its way. Vanvalkenburg at this time could still be seen swimming. Not until after an oral
report was made to the captain some five minutes later was the ship turned around, and
Vanvalkenburg was then one to two miles astern. He was not rescued. The parents of
Vanvalkenburg brought an action for damages resulting from the death of their son. At
the trial, the plaintiffs were non-suited and they appealed. Mallock CJ, in delivering the
judgment of the court, said this:95
The evidence shows that the deceased was not on duty at the time of the acci-
dent, and had recklessly put himself in a position of great peril, and that his
own want of care caused the accident. Thus, the defendant company are not
responsible for his having fallen into the water. The question then arises
whether the defendants were guilty of any actionable negligence in not using all
reasonable means in order to rescue the drowning man . . .
It is further argued that the vessel was unseaworthy, in that the electric bell
system was out of order, thereby causing a fatal loss of time in attempting to
rescue.
The evidence, I think, warrants the finding that the bells were out of order, and
in this respect the vessel was unseaworthy, contrary to the provisions of s 342 of
the Canada Shipping Act, RSC 1906, c 113. The evidence also shows that the
seamen were instructed in regard to the use of lifebuoys, and it may be inferred
from Ray Dale’s failure to throw the lifebuoy overboard at once that he was an
incompetent and inefficient seaman, and that such inefficiency also constituted
unseaworthiness . . .

94 [1913] DLR 649.

95 Ibid, p 652.
 Chapter 4: Negligence 85

There was evidence, further, upon which the jury might have found that, if Dale
had promptly thrown the lifebuoy to the deceased on his falling into the water,
and if the vessel had reversed immediately on Dale touching the electric button,
the deceased could, in all reasonable probability, have been saved, and, if the
defendants owed to the deceased the legal duty of using all reasonable means to
rescue him, then they were guilty of negligence in not having done so; but . . . I
am unable to see wherein they owed such legal duty to the deceased. He fell
overboard solely because of his own negligence. His voluntary act in thus put-
ting himself in a position of danger, from the fatal consequence of which,
unfortunately, there was no escape except through the defendants’ interven-
tion, could not create a legal obligation on the defendants’ part to stop the ship
or adopt any other means to save the deceased . . .
There is no evidence before the court to say what caused the fire on the plaintiff’s pre-
mises; whether it was the work of arsonists, or through the negligence of the plaintiff or his
tenants, or some other reason, it is not known. It was never suggested that the lack of
water caused the building to commence burning. What the plaintiff is saying is that,
however the fire started, the defendant is under a duty to supply him with water from its
hydrants to put out that fire, and that that duty arises either from the specific provisions of
the Parishes Water Supply Act or at common law. The defendant has failed to perform the
duty of supplying the water and, as a result, more damage was done to his premises than
would have been done had he been supplied the water, and consequently the defendant
must pay. I find myself quite unable to agree with this contention. It is entirely novel. The
defendant is not an insurer so as to be liable to pay for the damage done by fire to the
plaintiff’s building. The defendant, acting under discretionary statutory powers,
supplies water to the Frankfield area, and the plaintiff is a person on whom a benefit is
bestowed as a result of the exercise of the statutory powers. The only duty that the
defendant owes to the plaintiff, whether it be in the exercise of its statutory powers or at
common law, is the common duty of care; to see that, by its acts or omissions in its
operations, it does not cause injury to the property or person of another through
negligence.
In my judgment, the defendant was under no obligation, either as a result of any statute
or at common law, to provide a constant flow of water in the water main and hydrant or
any sufficient flow therein. The Parishes Water Supply Act does not place a duty on the
defendant ‘to provide a proper water supply by which water would be available to the
fire brigade at all times’, nor have I been pointed to any statutory or common law
obligation on the defendant so to do. Having provided a public water system for the
town of Frankfield and its outlying districts, the defendant is not bound to keep water
in its mains and hydrants at all times. Indeed, the evidence is that the locking off of
water at nights was necessary in order to build up the quantity of water in the reservoir
by night to meet the demands by day. The source was proving inadequate to meet the
demands. This course of action is not unusual throughout the length and breadth of
Jamaica, and public policy demands it. The defendant is not to be made liable for failing
to provide water in the mains or hydrants at any given time.

PROOF OF NEGLIGENCE – RES IPSA LOQUITUR

The burden of proving negligence always lies on the plaintiff; but where the cause of
an accident is unknown,96 he may be assisted by the doctrine res ipsa loquitur (‘the facts

96 Where the facts are sufficiently known, res ipsa loquitur has no application. See Barkway v South
Wales Transport Co Ltd [1950] 1 All ER 392, p 394; Green v Vincent (1994) Supreme Court,
86 Commonwealth Caribbean Tort Law

speak for themselves’).97 This doctrine has been very frequently applied by courts in
the Caribbean, and a large body of case law has accumulated on the topic. It should be
noted, however, that it has been rightly pointed out that cases of res ipsa are really no
more than illustrations of the manner in which a court may draw an inference of
negligence from circumstantial evidence.98
The best known definition of res ipsa loquitur is that propounded by Erle CJ in Scott
v London and St Katherine Docks Co:99
Where the thing is shown to be under the management of the defendant or his servants,
and the accident is such as in the ordinary course of things does not happen if those who
have the management use proper care, it affords reasonable evidence, in the absence of
explanation by the defendant, that the accident arose from want of care.

Where res ipsa loquitur is successfully invoked, the effect is:

(a) to afford prima facie evidence of negligence, so that the defendant cannot succeed
in a submission of ‘no case to answer’; and
(b) to shift the onus on to the defendant to show either that the accident was due to a
specific cause which did not involve negligence on his part, or that he had used
reasonable care in the matter.

Requirements of the doctrine

In order to rely on the doctrine, the plaintiff must establish two things:
(a) that the thing causing the damage was under the management or control of the
defendant or his servants; and
(b) that the accident was of such a kind as would not, in the ordinary course of things,
have happened without negligence on the defendant’s part.

Control

It is a question of fact in each case as to whether or not the thing causing the accident
was under the defendant’s control. In the most common type of case, that of negligent
driving, the driver of a motor vehicle will be presumed to have sufficient control over
his vehicle and the surrounding circumstances to attract the doctrine.100
Where the activity causing the damage is under the control of one of several
servants of the defendant and the plaintiff is unable to identify which particular
servant had control, he may still invoke the doctrine so as to make the defendant

Jamaica, No G 102 of 1988 (unreported) [Carilaw JM 1994 SC 21]; Whylie v Campbell (1997)
Supreme Court, Jamaica, No W 103 of 1994 (unreported) [Carilaw JM 1997 CA 39]; Wilson v
Caven (1993) Supreme Court, Jamaica, No W 029 of 1989 (unreported) [Carilaw JM 1993 SC 37];
Courage Construction Ltd v Royal Bank Trust Co (Jamaica) Ltd (1992) 29 JLR 115 (Court of Appeal,
Jamaica).
97 This passage in the text was cited with approval by Blenman J in Gumbs v Browne (2004) High
Court, St Vincent and The Grenadines, No 182 of 2003 (unreported) [Carilaw VC 2004 HC 24].
98 Op cit, Rogers, fn 21, p 204. The Supreme Court of Canada has even suggested that res ipsa
should no longer be treated as a ‘separate component’ in the law of negligence: Fontaine v
British Columbia [1998] 1 SCR 424.
99 (1865) 159 ER 665, p 667.
100 Halliwell v Venables (1930) 99 LJ KB 353.
 Chapter 4: Negligence 87

vicariously liable.101 Thus, for example, a hospital authority has been held liable to a
patient in respect of negligent treatment, even though the patient could not show
which member of the hospital staff was responsible.102

Presumed negligence
Negligence will be presumed under the doctrine where the common experience of
mankind shows that the type of mishap which occurred would not normally have
happened unless the defendant had been careless. Thus, res ipsa loquitur has been
applied in the Caribbean where, for example, a car being driven along the road sud-
denly mounted the pavement and injured a bystander or collided with an electricity
pole;103 where a boat’s tow rope broke suddenly, causing the vessel to collide with
pipelines;104 where a large tree was felled onto a neighbouring house;105 where a dead
tadpole was found in a bottle of stout purchased by a customer in a restaurant;106
where a parked bus suddenly caught fire, resulting in the destruction of a nearby
building;107 where scaffolding, on which a workman was standing, collapsed;108 where
a crane collapsed suddenly;109 where a heavy knife fell from a hotel window, striking a
guest in the garden below;110 and where a fire which started in an electric power line
connected to a dwelling house destroyed the house and its contents.111

101 See below, Chapter 12.

102 Cassidy v Ministry of Health [1951] 1 All ER 575.
103 Parejo v Koo (1966–69) 19 Trin LR (Pt IV) 272 (below, pp 93, 94); Bartlett v Cain (1983) 18 Barb
LR 158 (High Court, Barbados); Richards v Clarke (1990) High Court, St Lucia, No 142 of 1989
(unreported).
104 Alco Shipping Agencies Co Ltd v Freeport Bunkering Co Ltd (1965–70) 1 LRB 260 (Court of
Appeal, The Bahamas).
105 Seeraj v Dindial (1985) High Court, Trinidad and Tobago, No 4696 of 1982 (unreported)
[Carilaw TT 1985 HC 180] (below, pp 345–47).
106 Barnett v Belize Brewing Co Ltd (1983) 36 WIR 136.
107 Barbados Transport Board v Imperial Optical Co (Barbados) Ltd (1990) 25 Barb LR 346 (Court of
Appeal, Barbados).
108 Nisbett v Wheatley (1993) High Court, British Virgin Islands, No 113 of 1987 (unreported)
[Carilaw VG 1993 HC 8].
109 Swan v Salisbury Construction Co Ltd [1965] 1 WLR 208 (Privy Council appeal from Bermuda).
110 Kohanian v Carnival Crystal Palace Resort and Casino (1999) Supreme Court, The Bahamas, No
1421 of 1994 (unreported) [Carilaw BS 1999 SC 21]. See McDowell, Z (2000) 10 Carib LR 87.
111 Yearwood v Trinidad and Tobago Electricity Commission (1992) High Court, Trinidad and Tobago,
No 346 of 1986 (unreported); Persad v Trinidad and Tobago Electricity Commission (2000) High
Court, Trinidad and Tobago, No S 1031 of 1992 (unreported); Grenada Electricity Services Ltd v
Peters (2003) Court of Appeal, OECS, Civ App No 10 of 2002 (unreported) [Carilaw GD 2003
CA 1]. A different approach was taken by the Trinidad and Tobago Court of Appeal in Trinidad
and Tobago Electricity Commission v Sookram (1999) 57 WIR 473, where it was held that the
plaintiff (whose house was destroyed by a fire which started at the point where the defend-
ant’s power line connected with the house wiring on a ‘bashboard’ under an eave at the side
of the house) had the onus of proving either a specific cause of the fire involving negligence on
the defendant’s part, or that the fire had occurred in circumstances in which prima facie it
could not have occurred without such negligence. De la Bastide CJ further opined (at p 485)
that, in order to render res ipsa loquitur inapplicable, it was sufficient for the defendant to show
that it was equally likely that the fire had been caused by negligence on the plaintiff’s part as
by negligence on its part, and that therefore it was highly relevant if the defendant could show
that the system of wiring in the plaintiff’s house might have been defective and this might have
caused the fire, or that the fire might have been caused by overloading of the circuits by the
plaintiff, coupled with the failure of their fuses or breakers to provide the necessary safe-
guards. The reasoning in Sookram was followed by Mendonca JA in Trinidad and Tobago Elec-
tricity Commission v Ramoutar (2004) Court of Appeal, Trinidad and Tobago, Civ App No 18 of
2003 (unreported). Cf Capildeo v Trinidad and Tobago Electricity Commission (2007) High Court,
Trinidad and Tobago, No 3991 of 1993 (unreported) [Carilaw TT 2007 HC 47], per Jamadar J.
88 Commonwealth Caribbean Tort Law

Res ipsa loquitur is thus a useful evidential aid to a plaintiff who is unable to
establish precisely how an accident occurred. Megaw LJ in Lloyde v West Midlands Gas
Board explained the principle thus:112
It means that a plaintiff prima facie establishes negligence where (1) it is not possible for
him to prove precisely what was the relevant act or omission which set in train the
events leading to the accident; but (2) on the evidence as it stands at the relevant time, it
is more likely than not that the effective cause of the accident was some act or omission
of the defendant or of someone for whom the defendant is responsible, which act or
omission constitutes a failure to take proper care for the plaintiff’s safety.
However, it has frequently been emphasized that the doctrine does not entirely relieve
the plaintiff of the burden of proof. He must still bring evidence sufficient to call for a
rebuttal from the defendant. Thus, for example, where a pedestrian is knocked down by
a vehicle as he is crossing a road and there are no eyewitnesses to the accident and no
evidence of excessive speed on the part of the driver of the vehicle, res ipsa loquitur
cannot be relied upon to establish negligence on the driver’s part since this is not the
sort of accident which only happens in the ordinary course of things by reason of the
driver’s negligence, and pedestrians frequently get run over when they attempt to cross
the road, having failed to see oncoming traffic. The mere fact that the court is unable to
decide precisely how an accident occurred does not make a defendant liable. There
must be some evidence upon which the plaintiff’s allegation of a breach of duty of care
can be based.113

A case which illustrates the requirements of the res ipsa loquitur doctrine is Jamaica
Omnibus Services Ltd v Hamilton.114 Here the plaintiff/respondent, a nine year old
boy, was a passenger in one of the defendant/appellant’s buses. As the bus rounded a
bend, the emergency door, beside which the plaintiff was seated, suddenly flew open
and the plaintiff was thrown through the open door, sustaining injuries. The plaintiff
relied on res ipsa loquitur.
It was held that the maxim applied. The emergency door was sufficiently under
the control of the defendant and its servants, and the presumption of negligence had
not been rebutted. Fox JA said:115
In Scott v London and St Katherine Docks Co,116 Erle CJ described the conditions for the
application of the doctrine res ipsa loquitur in a statement which has long been famous:
There must be reasonable evidence of negligence. But where the thing is shown
to be under the management of the defendant or his servants, and the accident
is such as in the ordinary course of things does not happen if those who have
the management use proper care, it affords reasonable evidence, in the absence
of explanation by the defendant, that the accident arose from want of care.
To obtain the assistance of the doctrine, a plaintiff must therefore prove two facts:
(1) that the ‘thing’ causing the damage was under the management of the defendant or
his servants; and
(2) that, in the ordinary course of things, the accident would not have happened without
negligence.

112 [1971] 2 All ER 1240, p 1246.

113 Adams v Rajkumar (2000) High Court, Trinidad and Tobago, No 1812 of 1997 (unreported)
[Carilaw TT 2000 HC 95], per Archie J; Knight v Fellick [1977] RTR 316. Cf Guyana and Trinidad
Mutual Fire Insurance Co Ltd v Boodoosingh (2000) High Court, Trinidad and Tobago, No 560 of
1984 (unreported).
114 (1970) 16 WIR 316 (Court of Appeal, Jamaica).
115 Ibid, p 318.
116 (1865) 159 ER 665, p 667.
 Chapter 4: Negligence 89

Mr Hines [counsel for the defendant/appellant] submitted that the first fact had not
been established because, on the evidence, the emergency door was not under the
continuous and sole control of the defendant’s servant, the driver or the conductor of
the bus. The authority advanced in support of this proposition was Easson v London and
North Eastern Rly Co. 117 In that case, the plaintiff, a boy aged four, had fallen through a
door of a corridor train about seven miles from its last stopping place. In the course of
his judgment, Goddard LJ said:118
It is impossible to say that the doors of an express train travelling from
Edinburgh to London are continuously under the sole control of the defendant
railway company in the sense in which it is necessary that they should be for the
doctrine of res ipsa loquitur, or a doctrine analogous to that expression, to apply.
People are walking up and down the corridors during the journey and people
are getting in and out at stopping places. I do not want it to be thought for a
moment that I am minimising the duty of the company. It is, of course, the duty
of the company to see before a train leaves a station that the carriage doors are
closed. I do not mean to say that I think there is a duty upon them to inspect the
off-side doors of the carriages at every stop. There must be reasonable inspec-
tion and they must do the best they can.
This statement must be understood in the light of the special circumstances of that case.
The learned judge was being mindful that in the course of a long journey, when passen-
gers on an express train were free to walk up and down the corridors, it was impossible
for the officers on the train to have all such passengers under constant surveillance so as
to prevent any one of them from interfering with the doors of the train.
It was also unreasonable to expect the officers to detect at once that a door had been
opened by an interfering passenger and to take steps to obviate the danger the moment
it occurred. The case is illustrative of circumstances in which a ‘thing’ is not under the
control of a defendant. It does nothing more. It does not lay down any principle of law
whereby a plaintiff is required to prove that the ‘thing’ was under the actual control of
the defendant at the time of the accident. If it is shown that the defendant had the right
to control, this is sufficient. Thus, in Parker v Miller,119 where the fact of a car which was
left unattended having run down a hill of itself was held to be sufficient evidence of
negligence, the defendant, the owner of the car, was held to be liable even though he
was not in actual control of the car and was not present at the time of the accident. He
had the right to control of the car, and this was enough. Also, it is not always necessary
that all the circumstances should be within the control of a defendant. This was the view
taken by Fletcher-Moulton LJ in Wing v London General Omnibus Co when, in obiter dicta,
he generalised:120
The principle (res ipsa loquitur) only applies when the direct cause of the acci-
dent, and so much of the surrounding circumstances as was essential to its
occurrence, were within the sole control and management of the defendants, or
their servants, so that it is not unfair to attribute to them a prima facie responsi-
bility for what happened . . .
The basic duty upon the defendant was to provide a vehicle which was as safe for the
use of passengers as reasonable care could make it. The defendant must have known
that the absence of reasonable care,
(1) in the maintenance of the lock mechanism of the emergency door so as to keep that
mechanism free of defects which may cause the door to fly open; or

117 [1944] 2 All ER 425.

118 Ibid, p 429.
119 (1926) 42 TLR 408.
120 [1909] 2 KB 625, p 663.
90 Commonwealth Caribbean Tort Law

(2) in securing the catches of the door; or

(3) in guarding against the irresponsible action of meddlers, including passengers,
who, as the driver said, generally interfered with the emergency door,
could result in the release of the catches of the door whilst the vehicle was in motion,
with the consequence of the door flying open and a passenger in the position of the
plaintiff being precipitated through the door and injured in the way in which the plain-
tiff was in fact injured. The defendant therefore owed a duty to the plaintiff to take that
reasonable care. The critical question which now arises is whether that duty has been
breached. Was the defendant negligent? In answer, the plaintiff is in a position to pray in
aid the assistance of the doctrine res ipsa loquitur. Negligence may be found as a matter
of inference from the mere fact that the door flew open whilst the vehicle was in motion.
Such negligence may be in terms of any of the three respects indicated above in which
the duty of care was owed. The plaintiff was not required to specify the exact respect
in which the duty was breached. It was for the defendant to rebut the inference of
negligence. This would have been accomplished if the defendant showed:
that the accident was just as consistent with (it) having exercised due diligence
as with (it) having been negligent. In that way, the scales which have been
tipped in the (plaintiff’s) favour by the doctrine of res ipsa loquitur would once
more balance, and the (plaintiff) would have to begin again and prove neg-
ligence in the usual way.121
Mr Hines contended that the evidence adduced by the defendant described a plausible
explanation which brought the scales more in balance. His submissions were based
upon two propositions which were, however, not mutually exclusive. First, he argued
that from the mere fact that the door was accessible to others, it was reasonable to infer
that the catches could have been released by a meddler in circumstances which were as
consistent with the diligence as with the negligence of the driver and the conductor of
the bus. The argument is based upon the view that the control of the door was not
exclusively in the servants of the defendant, but was shared by them with other per-
sons. It is a view which has already been discussed in relation to the applicability of the
doctrine to the facts of the case, but which must now be considered in connection with
the rebuttal of the inference of negligence. Accessibility of the door to persons other
than the servants of the defendant is not necessarily decisive of the issue of negligence
in favour of the defendant. It is a question of the demonstrated effect of the accessibility.
. . . The mere fact that it was shown that the door was accessible to persons other than
the driver and conductor of the bus, is not sufficient to bring the scales once more in
balance. The defendant must go further and show either directly or inferentially that the
catches of the door had been released by an unauthorised person in circumstances
which excluded the want of care in the driver or the conductor. The defendant was not
able to prove this by direct evidence. Mr Hines argued that it had been established
inferentially by the evidence of the driver and the chief engineer. Here, counsel
developed the second of his two propositions. It was to this effect. The door could have
flown open only if the catches had been released. The catches must have been secure up
to the point of the stage-fare stop before the accident. The door could not have been
interfered with by the driver or the conductor. The inescapable inference which was
dictated by the logic of this situation, argued Mr Hines, was that the door must have
been tampered with by some unauthorised person at or after the stage-fare stop.
. . . I do not think that interference with the door by an unauthorised person is the only
explanation which may be inferred as the cause of the door flying open. On the basis of
‘common sense and what the courts so aptly call the common experience of mankind’,
the magistrate was convinced – expert evidence notwithstanding – that ‘if there is a

121 Colvilles Ltd v Devine [1969] 1 WLR 475, p 479, per Lord Donovan.
 Chapter 4: Negligence 91

defect in its mechanism, or if the door or any part of its fastening is shaking loose from
not having been properly fastened in the first place, from being worn, or from any other
cause, that condition will worsen if not corrected with each mile the bus is driven
until – if it is that kind of defect – the door flies open’. With due respect to the magis-
trate, this view is essentially correct. It was not sufficient for the chief engineer to say
that if the catches were in a locked position, the occurrence of a defect in the door would
not cause it to fly open. Neither was it adequate for the driver to state that he had
checked the emergency door at 2 pm, when he came on duty, by looking at it. To
establish that the accident was equally consistent with the exercise of due diligence on
its part, the defendant ought to have proved:
(a) that the mechanism of the catches of that particular door was in fact free of any
defect which could have caused the catches to work loose during the course of a
journey; and
(b) that safeguards which were maintained to ensure that the catches of the door were
kept in a fastened position had not been tampered with.
As to (a), no evidence was adduced that the mechanism of the emergency door was in
good working order. The chief engineer might have been able to rectify this omission,
but he had not examined the door and was therefore unable to testify as to the actual
condition of the lock mechanism. As to (b), there was also no evidence. There was no
proof of periodic inspection of the catches of the door by the driver, or the conductor, or
the engineer, and no information as to the condition of the catches at or about or
immediately after the time of the accident. In the absence of such evidence in proof
of (a) and (b), on this ground also the defendant failed to restore the equilibrium of the
scales, which continued tipped in the plaintiff’s favour. In the result, it is clear that the
onus upon the defendant has not been discharged.

Traffic accidents

A driver of a vehicle on the road is under a duty to take proper care not to cause damage
to other road users122 (including drivers and passengers in other vehicles, cyclists and
pedestrians) or to the property of others. In order to fulfil this duty, he should, for
example, keep a proper lookout;123 observe traffic rules and signals;124 avoid excessive
speed;125 and avoid driving under the influence of alcohol126 or drugs. It is a question of
fact in each case as to whether the defendant has observed the standard of care required

122 Bourhill v Young [1943] AC 92.

123 Almon v Jones (1974) 12 JLR 1474 (Court of Appeal, Jamaica); Wilson v Caven (1993) Supreme
Court, Jamaica, No W 029 of 1989 (unreported) [Carilaw JM 1993 SC 37]; Ramharack v Caroni
1975 Ltd (1998) High Court, Trinidad and Tobago, No S723 of 1996 (unreported) [Carilaw TT
1998 HC 69]; Samuel v Surajh (2002) High Court, Trinidad and Tobago, No 2656 of 1998
(unreported) [Carilaw TT 2002 HC 68].
124 James v Seivwright (1971) 12 JLR 617 (Court of Appeal, Jamaica).
125 Waaldyk v Trim (1977) Court of Appeal, Guyana, Civ App No 37 of 1975 (unreported)
[Carilaw GY 1977 CA 12]; Ali v Mustapha (1982) High Court, Trinidad and Tobago, No 1096 of
1979 (unreported) [Carilaw TT 1982 HC 37]; Samuel v Surajh (2002) High Court, Trinidad and
Tobago, No 2656 of 1998 (unreported) [Carilaw TT 2002 HC 68]. A driver must adjust his
speed according to the prevailing conditions; eg, where a road is wet, owing to heavy rain, he
must reduce his speed so as to be able to manoeuvre the vehicle in the event of an emergency:
Tiwari v Singh (1976) Court of Appeal, Guyana, Civ App No 7 of 1974 (unreported) [Carilaw
GY 1976 CA 33], per Luckhoo JA.
126 Owens v Brimmell [1976] 3 All ER 765; Gunness v Ramdeo (2001) High Court, Trinidad and
Tobago, No S 1606 of 1995 (unreported) [Carilaw TT 2001 HC 84].
92 Commonwealth Caribbean Tort Law

of him in the particular circumstances.127 Failure to observe any of the provisions of the
Highway Code may be prima facie evidence of negligence.128
In deciding whether there has been a breach of duty, the courts in the Common-
wealth Caribbean have frequently had recourse to certain presumptions of neg-
ligence. Negligence is commonly presumed where, for example, a moving vehicle
collides with a stationary one which is properly parked129 or correctly positioned in a
line of traffic;130 or where an unlighted vehicle is parked on the road at night, with the
result that another vehicle collides with it;131 or where the defendant’s vehicle collides
with the plaintiff’s vehicle which is travelling in the opposite direction, the point of
collision being on the plaintiff’s side of the road.132
One particular facet of road accident cases is that ‘no one case is exactly like
another’.133 For instance, the state of the road, the weather conditions and the speed
of the vehicles involved will vary considerably from one case to another. It has
thus been emphasised that the courts should be careful to avoid ‘exalting to the status
of propositions of law what really are particular applications to special facts of
propositions of ordinary good sense’.134 And, in Lord Greene’s words:
There is sometimes a temptation for judges, in dealing with these traffic cases, to decide
questions of fact in language which appears to lay down some rule which users of the
road must observe . . . That is a habit into which one perhaps slips unconsciously . . . but
it is much to be deprecated, because these are questions of fact dependent on the
circumstances of each case.135

Thus, for example, it has been pointed out in several cases that, where there is an
unlighted obstruction on the road, such as a vehicle parked at night without lights,
there is no rule of law that a careful driver of another vehicle is bound to see it in time
to avoid it and must, therefore, be guilty of negligence if he runs into it.136

127 Tidy v Battman [1934] 1 KB 319, p 322.

128 Jamaica Omnibus Services Ltd v Gordon (1971) 12 JLR 487 (Court of Appeal, Jamaica), p 490, per
Edun JA; Charles v Ramnath (1991) High Court, Trinidad and Tobago, No S 2584 of 1987
(unreported) [Carilaw TT 1991 HC 238], per Maharaj J; Kariah v Maharaj (1992) High Court,
Trinidad and Tobago, No 1002 of 1975 (unreported), per Maharaj J.
129 Sibbles v Jamaica Omnibus Services Ltd (1965) 9 WIR 56; Coelho v Agard (1975) High Court,
Trinidad and Tobago, No 2394 of 1973 (unreported) [Carilaw TT 1975 HC 28]; Seebalack v
Constance (1996) High Court, Trinidad and Tobago, No S 2704 of 1985 (unreported) [Carilaw
TT 1996 HC 139].
130 Granger v Murphy (1975) Court of Appeal, The Bahamas, No 11 of 1974 (unreported) [Carilaw
BS 1975 CA 3].
131 Wong v Campbell (1969) 11 JLR 435 (Court of Appeal, Jamaica); Nation v Collins (1962) 8 JLR 25
(Supreme Court, Jamaica); Waaldyk v Trim (1977) Court of Appeal, Guyana, Civ App No 37 of
1975 (unreported) [Carilaw GY 1977 CA 12]; Ramsarran v McLean (1972) High Court, Guyana,
No 103 of 1971 (unreported) [Carilaw GY 1972 HC 35]; Porter v Armin (1976) High Court,
Guyana, No 3779 of 1970 (unreported) [Carilaw GY 1976 HC 15]; Farfan v Warren-Davis (1968)
High Court, Trinidad and Tobago, No 815 of 1966 (unreported) [Carilaw TT 1968 HC 39];
Blaize v Poyah (1976) High Court, Trinidad and Tobago, No 922 of 1970 (unreported) [Carilaw
TT 1976 HC 35].
132 James v Seivwright (1971) 12 JLR 617 (Court of Appeal, Jamaica).
133 Tidy v Battman [1934] 1 KB 319, p 322.
134 Easson v London and North Eastern Rly Co [1944] 2 All ER 425, p 430, per Du Parcq LJ.
135 Morris v Luton Corp [1946] 1 KB 114, p 115.
136 Tidy v Battman [1934] 1 KB 319; Waaldyk v Trim (1977) Court of Appeal, Guyana, Civ App No
37 of 1975 (unreported) [Carilaw TT 1977 CA 12]; Farfan v Warren-Davis (1968) High Court,
Trinidad and Tobago, No 815 of 1966 (unreported) [Carilaw TT 1968 HC 39]; Blaize v Poyah
(1976) High Court, Trinidad and Tobago, No 922 of 1970 (unreported) [Carilaw TT 1976 HC
35]. But see Kunwarsingh v Ramkelawan (1972) 20 WIR 441, p 444, per Rees J (below, p 357).
 Chapter 4: Negligence 93

Skids, tyre bursts and latent defects

Where res ipsa loquitur applies, a common plea of defendants is that the collision
causing the damage was due to a skid, a tyre burst or a latent defect in the defendant’s
vehicle. It is well established that such a plea will not in itself absolve the defendant.
Rather, he must go further and show that the skid occurred without fault on his
part, or that the tyre burst or mechanical failure of his vehicle was not due to faulty
inspection or maintenance for which he is responsible.
The following are examples of the application of the doctrine in this context.

Skids

In Parejo v Koo,137 D, a 14-year-old boy, was fatally injured when he was struck by a car
which skidded on a wet road and mounted the pavement where he was playing with
some other boys. One of the issues in the case was whether, in accordance with the
maxim res ipsa loquitur, a presumption of negligence was raised against the driver of
the car. Rees J said:
Prima facie, the fact of the car leaving the road and mounting the pavement on its offside
raises a presumption of negligence against the driver of the car. The evidence clearly
discloses that the accident was due to a skid and a skid by itself is neutral, but the fact
that the car skidded on a wet road does not displace the burden which rests upon the
driver of rebutting the prima facie presumption of negligence which is raised by the
extraordinary manoeuvre of the car and the position in which it struck the deceased.
This is the proposition illustrated in Laurie v Raglan Building Co Ltd,138 the facts of which
bear a close resemblance to the facts of the present case. There, a lorry was travelling on
a road which was in an extremely dangerous condition from a fall of snow which had
frozen. It skidded and killed the plaintiff’s husband, who was on the pavement. At the
hearing, counsel for the defendant submitted that there was no case to answer on
the ground that it had not been proved that the accident was due to the negligence of
the defendant’s driver. Lord Greene MR in his judgment held that there was, and had
this to say:139
. . . the plaintiff gave evidence which showed . . . that the position of the lorry
over the pavement was due to a skid, and it is contended on behalf of the
defendants that, assuming that a prima facie case of negligence arose, the cir-
cumstances establishing that the accident was due to a skid are sufficient to
displace that prima facie case. In my opinion, that is not a sound proposition. The
skid by itself is neutral. It may or may not be due to negligence. If, in a case
where a prima facie case of negligence arises, such as that with which I have been
dealing, it is shown that the accident is due to a skid, and that the skid hap-
pened without fault on the part of the driver, then the prima facie case is clearly
displaced, but merely establishing the skid does not appear to me to be suf-
ficient for that purpose . . .
In the present case, there is evidence that, as the car turned into King Street, there was a
screeching of tyres. I am unable to say why this should be so, but it is clear from the
authorities that, if a driver brings a car on to the public road and is involved in an
accident which in the ordinary course of things does not happen if proper care is used,

137 (1966–69) 19 Trin LR (Pt IV) 272 (High Court, Trinidad and Tobago).
138 [1941] 3 All ER 332.
139 Ibid, p 336.
94 Commonwealth Caribbean Tort Law

then the driver is prima facie negligent and he must give some satisfactory explanation
that he was not negligent. Benjamin gave an explanation, but, as it is not acceptable, the
prima facie case of negligence has not been displaced.140 (The car might have skidded
through the negligence of the driver or without his negligence, but it is for the driver to
show that the skid occurred without any negligence on his part.) In the circumstances,
I can come to no other conclusion than that this accident was caused solely by the
driver’s negligence.

Violent skidding

In Bushell v Chefette Restaurants Ltd,141 Douglas CJ pointed out that, in Richley v

Faull,142 where the defendant’s car suddenly went into a violent skid and collided with
another vehicle on the other side of the road, MacKenna J had referred to Laurie
v Raglan Building Co Ltd 143 and said:144
I of course agree that where the defendant’s vehicle strikes the plaintiff on the pavement
or, as in the present case, moves on to the wrong side of the road into the plaintiff’s path,
there is a prima facie case of negligence, and that this case is not displaced merely by
proof that the defendant’s car skidded. It must be proved that the skid happened with-
out the defendant’s default. But I respectfully disagree with the statement that the skid
by itself is neutral. I think that an unexplained and violent skid is in itself evidence of
negligence.

Douglas CJ then continued:

In the instant case, it is clear that the accident was caused by the van suddenly skidding,
striking the left curb and then going out of control across the carriageway. The second
defendant’s explanation, apart from his saying that the road was wet, is no explanation
at all. The result is that, here, all the evidence points to the accident being caused
by a sudden, violent and unexplained skid, which is, without more, evidence of neg-
ligence. On the issue of negligence, the plaintiff must, therefore, succeed as against the
second defendant.

One case in which the presumption of negligence was rebutted on the facts is McAree
v Achille 145 where the defendant’s car skidded diagonally across the road and struck
a stationary car which was parked immediately behind the plaintiff’s car, pushing
it into the plaintiff’s car and causing damage. Rees J held that the skid was caused by
the oily surface of the road and the defendant was not at fault. He said:
In matters of this kind, where a stationary car is parked on one side of the road and is
struck by a moving one which ought to be on the other side of the road, reference is
usually made to a passage in the judgment of Erle CJ in Scott v London and St Katherine
Docks Co, where he said:146

140 See also Tugwell v Campbell [1965] Gleaner LR 191 (Court of Appeal, Jamaica).
141 (1978) 13 Barb LR 110 (High Court, Barbados).
142 [1965] 3 All ER 109. Followed in Wisdom v Johnson (2002) Supreme Court, Jamaica, No
CL 1996/W-240 (unreported) [Carilaw JM 2002 SC 37], per Anderson J.
143 [1941] 3 All ER 332.
144 [1965] 3 All ER 109, p 110. See also Babwah v Harrinanan (1997) High Court, Trinidad and
Tobago, No 136 of 1994 (unreported), per Maharaj J.
145 (1970) High Court, Trinidad and Tobago, No 438 of 1968 (unreported) [Carilaw TT 1970
HC 21].
146 (1865) 159 ER 665, p 667.
 Chapter 4: Negligence 95

There must be reasonable evidence of negligence. But where the thing is shown
to be under the management of the defendant or his servants, and the accident
is such as in the ordinary course of things does not happen if those who have
the management use proper care, it affords reasonable evidence, in the absence
of explanation by the defendant, that the accident arose from want of care.
In the ordinary course of things, a car does not leave its proper side and run into another
vehicle which is at a standstill on the other side of the road. As the defendant did this,
there is a prima facie case of negligence against him and the burden is cast on him to give
an explanation. He can only escape liability if he is free from fault.
The defendant’s account, which was substantially supported by his witness, Othello
Pagus, is that he ran into a patch of oil on the surface of the road and this caused his car
to skid. Although I accept this explanation, a skid in itself does not displace the prima
facie presumption of negligence arising from the defendant’s car being in a position
where it had no right to be. On the contrary, a skid raises a presumption that the driver
was either going too fast or applied his brakes too suddenly, having regard to the road
conditions prevailing at the time. However, I find that in this case the defendant was
driving his car at 15 mph before the skid and this was not an excessive speed. The
defendant unexpectedly got into the skid because of the oily surface of the road and the
skid was not in any way due to his fault.
It was argued by counsel for the plaintiff that there is no evidence that, having picked
up the skid, the defendant did all that he could which was reasonable to correct it.
I agree that there was no evidence by the defendant as to what efforts he made to get out
of the skid or deal with the situation to avoid causing damage to other users of the road.
It is quite conceivable that some act or omission of the driver of a vehicle who gets into a
skid might have the effect of causing the results of the skid to be worse than they would
be but for that act or omission, in which case the driver would be at fault. If he is found
to be at fault, he has not discharged the burden that lies upon him.
However, every case must depend on its particular facts and, in the present case,
although there was no direct evidence as to what the defendant did after he got into the
skid, in my opinion the time and space at his disposal in which to remedy the skid were
so short that he was unable to do anything to avoid striking Moss’ car. The defendant’s
car, on getting into the oil patch, skidded and shot diagonally across the street for a
distance of 30 ft, so that the car travelled 30 ft between the skid and Moss’ car.
In Hunter v Wright,147 the defendant was driving a car when it skidded and subsequently
mounted the pavement and injured the plaintiff who was walking thereon. It was found
that the skid was not due to any negligence on the part of the defendant, but it was
contended that she had been negligent (a) in steering the wrong way to correct the skid;
and (b) in accelerating after the skid. Before the accident, the speed of the car was
estimated at 16–20 mph, and the car travelled 13–20 ft between the skid and the pave-
ment. It was held by the Appeal Court that the time and space at the disposal of the
defendant in which to remedy the skid were so short that, it being proved that the skid
was not due to any fault of hers, she had discharged the onus of showing how her car
came to be on the pavement, and could not be said to have been in any way to blame for
the accident.
In the present case, I find that the skid was not due to any fault of the defendant and the
time and space at the disposal of the defendant in which to remedy the skid were so
short that the defendant is in no way to be blamed for this accident.148

147 [1938] 2 All ER 621.

148 A similar decision was reached in Oliver v Sangster (1951) 6 JLR 24 (Court of Appeal, Jamaica).
Cf Maharaj v Rampersad (1950) 10 Trin LR 65 (Supreme Court, Trinidad and Tobago).
96 Commonwealth Caribbean Tort Law

Tyre burst

In Smith v CO Williams Construction Ltd 149 the plaintiff was employed by the defendant
company to drive its truck, which transferred marl fill from the defendant’s quarry
to various worksites. On one such journey, the front off-side tyre burst, the cab door
flew open, and the plaintiff was thrown from the vehicle and seriously injured. The
plaintiff relied on the maxim res ipsa loquitur.
It was held that the defendant had shown that it had a system of routine examin-
ation and inspection of its trucks and that the tyre burst was not attributable to any
negligence on its part. Husbands J said:150
One of the difficulties in this case is that there was no evidence given as to the cause of
the tyre bursting. The tyre was not produced in evidence and no expert opinion was
expressed about the tyre’s condition immediately before or after the accident or the
reason for its failure. Indeed, very little was said about the tyre after the accident.
Thomas, the workshop foreman, was the only witness who spoke of seeing any damage
to the tyre after the accident. All he says is, ‘It was blown out at the side. It has treads on
it. Good treads’. The question that poses itself is whether on the established facts a
reasonable inference may be drawn as to the cause of the tyre bursting. Was it fabric
fatigue? Was it an inherent manufacturing defect? Was it the result of previous tyre
abuse? Was it the defendant’s negligence? In the cases cited, there is some evidence or
opinion given as to the probable cause of the happening. Here there is none, nor any
setting in which the ‘res’ may speak for itself with clarity. There is no evidence of the life
expectancy of a tyre such as the one that burst, and no assistance was given to the court
as to the amount of tread such a tyre used for the said purposes should have so as to be
safe. On this aspect, counsel for the plaintiff urges that the tyre damage may have been
caused by the quarry roads, whose condition was known to the defendant company.
But what of the condition of the quarry roads? Nothing was said about this and it would
be hazardous to guess. For nowadays, with Barber Green surfaces sometimes seen in
the most unlikely places and often in no place at all, it is futile to speculate. Counsel
for the plaintiff submits that the sudden bursting of the tyre raises the res ipsa loquitur
rule. In Lloyde v West Midlands Gas Board, Megaw LJ said:151
I doubt whether it is right to describe res ipsa loquitur as a ‘doctrine’. I think it is
no more than an exotic, though convenient, phrase to describe what is in
essence no more than a common sense approach, not limited by technical rules,
to the assessment of the effect of evidence in certain circumstances. It means
that a plaintiff prima facie establishes negligence where: (a) it is not possible for
him to prove precisely what was the relevant act or omission which set in train
the events leading to the accident; but (b) on the evidence as it stands at the
relevant time it is more likely than not that the effective cause of the accident
was some act or omission of the defendant or of someone for whom the defend-
ant is responsible, which act or omission constitutes a failure to take proper care
for the plaintiff’s safety.
In Woods v Duncan, Viscount Simon, discussing the application of the rule of res ipsa
loquitur, said:152
. . . that principle only shifts the onus of proof, which is adequately met by

149 (1981) 16 Barb LR 282 (High Court, Barbados).

150 Ibid, p 285.
151 [1971] 2 All ER 1240, p 1246.
152 [1946] AC 401, p 419.
 Chapter 4: Negligence 97

showing that the defendant was not in fact negligent. He is not to be held liable
because he cannot prove exactly how the accident happened.
And Lord Simonds said:153
But to apply the principle is to do no more than shift the burden of proof. A
prima facie case is assumed to be made out, which throws upon the defendant
the task of proving that he was not negligent. This does not mean that he must
prove how and why the accident happened; it is sufficient if he satisfies the
court that he personally was not negligent. It may well be that the court will be
more easily satisfied of this fact if a plausible explanation which attributes the
accident to some other cause is put forward on his behalf; but this is only a
factor in the consideration of the probabilities. The accident may remain
inexplicable, or at least no satisfactory explanation other than his negligence
may be offered: yet, if the court is satisfied by his evidence that he was not
negligent, the plaintiff’s case must fail.
So a defendant may, by affirmative proof that he was not negligent, discharge
the burden that shifts upon him without satisfying the court how otherwise the
accident happened.
In this case, I accept the defendant company’s evidence that there was a system of
routine examination and inspection of their trucks, and I do not find them negligent in
this regard. Also, I accept the evidence that the replacement tyre was road worthy when
it was fitted to the truck. I find that the truck door flew open because of the structural
damage to the cab’s frame after the tyre burst. On the facts established, I do not hold
that the sudden bursting of the tyre is attributable to any negligence on the part of the
defendant company. Consequently, the action fails.

Latent defect

In Browne v Browne 154 the respondent was driving his taxi with the appellant as a
passenger. On reaching a steep hill, the respondent lost control. The vehicle mounted
a bank and the appellant was injured. The respondent’s defence was that the brakes
had failed owing to a latent defect.
St Bernard J held that the respondent had failed to displace the presumption of
negligence raised against him. He said:
In our view, the mere statement ‘I had no brakes’ is a neutral event equally consistent
with negligence or due diligence on the part of the defendant. To displace the presump-
tion of negligence, the defendant must go further and prove, or it must emerge from the
evidence, the specific cause of the failure of the brakes. If the statement ‘I applied brakes,
no brakes’ were a defence, then all a motorist would have to do to escape damages for
his negligence would be to say ‘I had no brakes’. He must go further and prove that he
exercised due diligence in the driving of his car and equal diligence in the maintenance
and use of his vehicle, and that negligence was not a probable cause of the accident . . .
The mere statement ‘I applied my brakes, no brakes’ is not sufficient to displace the

153 Ibid, p 439.

154 (1967) High Court (Appellate Division), West Indies Associated States, St Vincent Circuit, No
13 of 1967 (unreported) [Carilaw VC 1967 HC 7]. This case, together with Ramdhan Singh Ltd v
Panchoo, below, were followed by Blenman J in Gumbs v Browne (2004) High Court, St Vincent
& The Grenadines, No 182 of 2003 (unreported) [Carilaw VC 2004 HC 24], where a vehicle
in which the claimant was a passenger ran off the road, causing injury to the claimant.
The defendant’s assertion, unsupported by any expert evidence, that the accident had
been caused by the near wheel axle of the vehicle suddenly breaking off, was held to be
insufficient to displace the presumption of negligence.
98 Commonwealth Caribbean Tort Law

presumption of negligence on the part of the respondent in this case. The statement ‘I
had no brakes’ is equal to saying ‘My tyre burst’ or ‘I had a skid’. These statements are
not defences in actions for negligence and do not, in our view, rebut the presumption of
negligence.

Another example of failure to displace the presumption of negligence in the context of

latent defects is Ramdhan Singh Ltd v Panchoo.155 Here the plaintiff’s car was being
driven on the proper side of the road when it was struck by the defendant’s van,
which was travelling in the opposite direction. The defendant’s defence was that the
collision was caused by the sudden breaking of the main leaf of the right front spring
assembly, which caused his vehicle to swerve across the road. The defendant sought
to attribute this to a latent defect in the vehicle for which he was not responsible.
Hassanali J held that the defendant had failed to rebut the presumption of
negligence raised against him. He said:
The defence of a latent defect in a vehicle was considered in the House of Lords in
Henderson v Henry E Jenkins and Sons.156 There, a lorry owned by the first respondents
was descending a hill when the brakes failed and the lorry struck and killed a post office
driver who had just alighted from his van. The failure was due to the sudden escape of
brake fluid from a hole in a pipe in the hydraulic braking system, resulting from corro-
sion of that pipe. The pipe was fixed under the lorry’s chassis and only 60% of the pipe
could be seen on visual inspection with the pipe in situ: only the unseen part of the pipe
had been affected by corrosion. The claim against the respondents alleged, inter alia, that
they had been negligent in failing to keep the braking system in efficient repair. The
respondents pleaded that the accident had been caused by a latent defect which had
occurred without any fault on their part and the existence of which was not discernible
by the exercise of reasonable care.
The evidence showed that the lorry was about five years old; the weekly maintenance
had included washing the lorry and inspection of the pipe in situ. Nine months prior to
the accident, the lorry had been steam cleaned. The Ministry of Transport and the
manufacturers did not advocate the removal of the pipes and it was stated that there
was a danger of fracturing or kinking if they were removed for inspection, but there was
no evidence as to the lorry’s mileage, the loads it had carried or the areas in which it had
been used. None of the experts stated an opinion as to the cause of the corrosion, but it
was suggested that leakage from a corrosive substance carried by the lorry, travelling
near the sea, or travelling over snow treated with salt, might cause corrosion.
It was held by a majority of the members of the House that the respondents could not rely
on the defence of latent defect not discoverable by the exercise of reasonable care unless
they showed that they had taken all reasonable care in the circumstances, and to do so
they had to show that there were no special circumstances in the past use of the vehicle to
indicate that the lorry might have been subjected to a corrosive agent resulting in the
corrosion of the pipe. Accordingly, since the respondents had not adduced evidence of
the past history of the vehicle, they could not rely on the defence of a latent defect, and,
therefore, they had not discharged the inference that they had been negligent.
In the instant case, the van was about six to seven years old on the day of the accident.
The defendant had bought it about four months before. It had been examined and
passed for licensing some four months before 26 May 1969 – that it was in good work-
ing condition does not provide an ‘adequate answer’ in this case. The defendant is not a
mechanic, as he himself testified. Nor is it enough that he never had reason to suspect
any latent defect. Further, the fact that the van was ‘passed for inspection’ a mere two or

155 (1975) High Court, Trinidad and Tobago, No 764 of 1976 (unreported) [Carilaw TT 1975 HC 33].
156 [1970] AC 282.
 Chapter 4: Negligence 99

three weeks before 26 May 1969 does not rebut the inference of negligence raised
against the defendant. Mr Charles himself testified that an examination of a vehicle for
licensing purposes is not an adequate inspection for the proper maintenance of a
vehicle. Indeed he might, he testified, without any fault on his part, fail to observe a
cracked or otherwise defective main spring in the course of such an inspection (for
licensing purposes) if, as sometimes happened, the spring was covered with a layer of
grease. At all events, for the like reason, the effects of a defect in the spring due to wear
and tear may not be noticed on such inspection.
In Mr Charles’ view, one cannot, for the purposes of good maintenance and efficiency of
a given vehicle, make a general statement as to how frequently its undercarriage ought
to be examined. If he had to express any such general opinion – and it would be too loose
an opinion – he would say every 5,000 miles is a good frequency. However, the fre-
quency of such examination depends on several factors, including the roads over which
the vehicle travels, the manner in which it is driven, the nature and extent of the loads
which it carries, etc. Depending on all the relevant circumstances, such inspection may
be desirable and necessary more frequently or less frequently than every 5,000 miles.
Finally, it is to be observed that there has been no evidence of any examination of the
vehicle – for its maintenance – or of the form or method of maintenance, if any, prac-
tised in respect of the van from the time of its purchase, when it was already six years
old. Nor has there been any evidence of the history of the vehicle prior to the accident or
since its purchase by the defendant relating to the nature of the driving to which it was
subjected, of the loads it carried or of the roads over which it travelled.
The defendant has failed to discharge the onus cast upon him in this case and the
plaintiff succeeds in his claim in negligence.157
Finally, there is Granger v Murphy,158 where G’s vehicle ran into the back of M’s car,
which had stopped at an intersection. G alleged that the collision was caused by the
failure of his brakes and pleaded ‘inevitable accident’.
Georges JA held that the fact that G’s vehicle ran into M’s car when the latter
was at a standstill and was properly positioned in the line of traffic was prima facie
evidence of negligence, and the onus lay upon G to establish that the collision was not
due to any negligence on his part. G had failed to do this. He said:
If it can be shown that the accident was due to a latent defect in the mechanism which
the plaintiff could not by reasonable diligence have discovered, then the accident would
indeed have been inevitable. Such indeed was the plea in Winnipeg Electric Company v
Geel,159 the facts of which bear a striking resemblance to the facts of this case. Perhaps the
position is most logically analysed by Lord Greene, who stated in Brown v De Luxe Car
Services:160
I do not find myself assisted by considering the meaning of the phrase ‘inevit-
able accident’. I prefer to put the problem in a more simple way namely: has it
been established that the driver of the car was guilty of negligence?
In this case, the appellant’s vehicle ran into the respondent’s car when it was at a
standstill and properly positioned in the line of traffic. This is prima facie evidence of
negligence and the burden would, therefore, lie on the appellant to establish that the
collision was not due to any negligence on his part.
The learned trial judge, after a careful analysis of the evidence, concluded that the
appellant had not discharged the onus of establishing that the failure of the brakes was

157 See also Bain v Mohammed (1964) 7 WIR 213 (Court of Appeal, Trinidad and Tobago).
158 (1975) Court of Appeal, The Bahamas, No 11 of 1974 (unreported) [Carilaw BS 1975 CA 3].
159 [1932] AC 690.
160 [1947] 1 KB 549, p 552.
100 Commonwealth Caribbean Tort Law

not due to any negligence on his part. The broken cylinder or brake line was not pro-
duced. No evidence was led to show what may have caused the break – whether a
latent defect or some other cause which reasonable care could not have discovered and
prevented. No competent mechanic inspected the vehicle after the accident, so that
there was no technically reliable evidence as to its condition. The evidence was conflict-
ing and unsatisfactory as to what part of the mechanism had ruptured – whether the
master cylinder or the brake line. The service personnel who attended to the pick-up
were not called, so that there was no evidence as to the nature of the maintenance
inspection which the vehicle regularly underwent. The only evidence on that point was
that of the appellant, who said that the vehicle was regularly serviced. Assuming that
the evidence of the appellant is accepted that the collision was caused by the failure of
his brakes, the conclusion of the learned judge that he had failed to show that this was
not due to negligence on his part appears eminently correct.
The argument for the appellant, as I understand it, was that since the appellant’s vehicle
was not a public service vehicle, the standard of care required of him was less than that
required in the case of such vehicles, and that accordingly the high standards prescribed
in cases such as Barkway v South Wales Transport Co Ltd 161 were not applicable.
Even if this proposition were accepted, it would avail the appellant nothing. He has led
no precise evidence establishing exactly what part of the braking mechanism failed or
the cause for such failure. He has led no evidence detailing the type of inspection
carried out in the periodic maintenance services of which he testified. One is left, there-
fore, in doubt as to precisely what was the defect which caused the brakes to fail, and
similarly one cannot tell whether failure to discover the defect may not have been due to
obviously faulty maintenance procedures. The issue is not whether a sufficiently high
standard of care was achieved but an absence of reliable evidence as to whether any care
had been taken at all.

CAUSATION

Having established that the defendant owed a duty of care to him and that the
defendant was in breach of that duty, the plaintiff must then prove that he has suf-
fered damage162 for which the defendant is liable in law. There are two aspects to this
requirement:
(a) causation in fact; and
(b) remoteness of damage in law.

Causation in fact

The first question to be answered is: did the defendant’s breach of duty in fact cause
the damage? It is only where this question can be answered in the affirmative that the
defendant may be liable to the plaintiff. A useful test which is often employed is the
‘but for’ test; that is to say, if the damage would not have happened but for the defendant’s
negligent act, then that act will have caused the damage.
The operation of the ‘but for’ test is well illustrated by Barnett v Chelsea and

161 [1950] 1 All ER 392.

162 Negligence is not actionable per se; accordingly, where no damage is proved, no action lies.
See Richardson v Richardson (1993) Court of Appeal, Anguilla, Mag App No 5 of 1992
(unreported).
 Chapter 4: Negligence 101

Kensington Hospital Management Committee.163 In this case, the plaintiff’s husband, after
drinking some tea, experienced persistent vomiting for three hours. Together with
two other men who had also drunk the tea and were similarly affected, he went later
that night to the casualty department of the defendant’s hospital, where a nurse
contacted the casualty officer, Dr B, by telephone, telling him of the man’s symptoms.
Dr B, who was himself tired and unwell, sent a message to the men through the
nurse to the effect that they should go home to bed and consult their own doctors
the following morning. Some hours later, the plaintiff’s husband died of arsenic
poisoning and the coroner’s verdict was one of murder by a person or persons
unknown. In a subsequent action for negligence brought by the plaintiff against the
defendant hospital authority as employer of Dr B, it was held that, in failing to
examine the deceased, Dr B was guilty of a breach of his duty of care, but this breach
could not be said to have been a cause of the death because, even if the deceased had
been examined and treated with proper care, he would in all probability have died
anyway. It could not, therefore, be said that ‘but for the doctor’s negligence, the
deceased would have lived’.
A more severe application of the ‘but for’ test occurred in McWilliams v Sir William
Arrol & Co Ltd. 164 There, a steel erector was killed when he fell from a building on
which he was working. Had he been wearing a safety harness, he would not have
fallen. The defendants, his employers, were under a statutory duty to provide safety
harnesses for all their employees working on high buildings, and they were in breach
of that duty by failing to provide them. Nevertheless, they were held not liable since
they proved that, on previous occasions when safety harnesses had been provided,
the plaintiff had never bothered to wear one. The inference, therefore, was that even if
a harness had been provided on the day of the accident, the plaintiff would not have
worn it. Thus, it could not be said that the failure to provide a harness was a cause of
death.
A third example of the application of the ‘but for’ test is the Guyanese case of
Twins Pharmacy Ltd v Marshall.165 In this case, the plaintiff, a seven-year-old child, was
injured while playing with a bicycle. The plaintiff’s mother purchased a bottle of
‘Ioderm’ ointment from a drug store. Ioderm ointment was of two kinds: one, called
‘Ioderm plain’, contained iodine only; and the other, ‘Ioderm compound’, contained
both iodine and methyl salicyl. Ioderm compound was to be used only where the
patient’s skin was unbroken, whilst Ioderm plain was suitable for use on broken skin.
The Ioderm sold to the plaintiff’s mother was Ioderm compound, but the bottle was
wrongly labelled with an ‘Ioderm plain’ label.
Following one application of the ointment on her leg, the plaintiff became ill and
subsequently developed necrosis of the skin at the spot where the ointment had been
rubbed in. The plaintiff’s action for negligence against the defendants as manufactur-
ers and bottlers of Ioderm ointment failed on the ground, inter alia, that the negligent
act of the defendants in putting the wrong label on the bottle was not the cause of the
damage to the plaintiff, because the plaintiff’s skin was unbroken and the ointment
had been used in exactly the same circumstances as the correct label would have
directed. Put in another way, even if the correct ‘Ioderm compound’ label had been on

163 [1968] 1 All ER 1068.

164 [1962] 1 WLR 295.
165 (1979) 26 WIR 320 (Court of Appeal, Guyana).
102 Commonwealth Caribbean Tort Law

the bottle, the result would have been the same. It could not be said that, but for the
defendant’s negligence, the damage would not have occurred. Crane JA, in the Court
of Appeal of Guyana, said:166
It is clear that, apart from the [defendants’] negligent omission to sell the [plaintiff’s]
mother and next friend Ioderm compound without having statutorily complied by
declaring the presence of methyl cum salicylate on the label of the package, that omis-
sion could not have been the cause of the damage to Denise Marshall’s leg. As we have
seen, Ioderm cum methyl salicylate (that is, Ioderm compound) has not been proved to
be dangerous per se, as the [plaintiff] had set out to show. So, no real point can be made
of the fact that methyl salicylate did not appear on the label of the bottle. The [plaintiff]
could not successfully contend that the ointment was used on broken skin in contraven-
tion of the ‘directions for use’, which cautioned that it should be used on unbroken skin,
because Dr Nauth was clear that the patient’s skin was intact and the judge found as a
fact that Denise’s skin was unbroken; so, notwithstanding that there was a negligent
omission by the [defendants] to put the appropriate label on Ioderm compound, the
fact remains that Denise’s mother had complied, albeit in ignorance, with the ‘directions
for use’ on which it was plainly written – ‘where the pain is severe and the skin is not
open, “Ioderm” cum methyl salicylate is the preparation of choice, because it contains
wintergreen oil which is a remarkable pain-reducing agent’.
It seems to me that what the plaintiff had to establish to prove her case was that Ioderm
compound, as sold to her mother, had been negligently compounded, so was harmful
and had caused her necrosis. However, the initial negligence of putting the wrong label
on the bottle, although it created a wrong impression of the composition of Ioderm
compound, could not have caused her necrosis. In my opinion . . . apart from the neg-
ligent act of the [defendants] in putting the wrong label on the wrong bottle, which did
not matter in this case, there was no evidence of any negligent compounding of Ioderm
compound which caused the alleged necrosis.

It has been pointed out, however,167 that although the ‘but for’ test is sufficient for
cases in which there is a single breach of duty and a single defendant, it is not
adequate to deal with cases where there are two or more breaches of duty, that is,
where there are multiple causes of damage and two or more tortfeasors. For example,
D1 and D2 both negligently start fires, and the two independent fires converge simul-
taneously on P’s house and destroy it. Assuming that either fire alone would have
been sufficient to destroy the house, the result of applying the ‘but for’ test would be
that neither D1 nor D2 would be liable for the damage, since it could not be said that
the damage would not have occurred ‘but for’ D1’s fire or, equally, ‘but for’ D2’s fire.
The courts, therefore, do not apply the test in such cases, but simply hold both
tortfeasors fully liable for the whole loss, subject to the right of each to obtain a
contribution from the other.

Remoteness of damage

The consequences of an act of carelessness on the part of a defendant may be far-

reaching. The concept of remoteness of damage is one way in which the law sets limits
to the extent of a person’s liability for the consequences of his negligence, and the
basic rule is that a defendant will be liable only for those consequences of his

166 Ibid, p 334.

167 Strachan, DMA (1970) 33 MLR 386.
 Chapter 4: Negligence 103

negligent act which are not too remote in law, even though such act may be said, on an
application of the ‘but for’ test, to have caused the damage complained of.
According to the Judicial Committee of the Privy Council in the leading case
of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound
(No 1)),168 consequences are too remote if a reasonable man would not have foreseen
them. Thus, foreseeability is the criterion not only for the question of whether a duty
of care is owed, but also for the question of whether damage is or is not too remote.
The foreseeability test was applied to the facts of the case itself, which were as
follows: the defendants negligently discharged oil from their ship into Sydney
Harbour, where the plaintiffs were carrying out welding operations at their wharf.
Molten metal from the welding operations set fire to some cotton waste floating on the
oil beneath the wharf. The waste, in turn, set fire to the oil and, in the ensuing con-
flagration, the wharf was severely damaged. The oil also found its way onto the
plaintiffs’ slipways adjoining the wharf and interfered with the plaintiffs’ use of them.
The Privy Council held that since, on the evidence, the defendants neither knew nor
ought to have known that the oil was capable of catching fire when spread on water,
they could not reasonably have foreseen that their act of discharging the oil would
have resulted in the plaintiffs’ wharf being damaged. The damage was thus too
remote and they were not liable for it. But they were liable for the fouling of the
slipways, since that was a foreseeable consequence of the discharge of the oil.

Other rules regarding remoteness

Apart from the basic rule in The Wagon Mound (No 1), there are certain other well-
established principles, which are discussed below.

Foreseeable type of harm

The harm which was foreseeable must be of the same kind, type and class as that
which actually occurred.169 Thus, for example, if the damage which occurs is damage
by fire, the defendant will be liable only if damage by fire was foreseeable; foresight of
any other kind of damage will not suffice. Similarly, if D carelessly allows an 11-year-
old boy to handle his gun, and the boy drops the gun onto P’s foot and injures it,
D will not be liable to P for the injury because the type of harm which was foreseeable
was damage by shooting, which is quite different from the injury which actually
occurred.170 However, so long as the damage which occurs is of the same kind as that
which is foreseeable, it matters not that the precise sequence of events leading to the
damage was not foreseeable. In Hughes v Lord Advocate,171 the defendants left a man-
hole in the street uncovered and protected only by a tent and paraffin lamps. A child
climbed down into the hole and, as he was coming out, kicked over one of the lamps,
which fell into the hole, causing an explosion by which he was burned. The lower
court held that the defendants were not liable on the ground that, although injury by

168 [1961] AC 388. Cf Re Polemis [1921] 3 KB 560, which laid down that, provided that some
damage is foreseeable, the defendant is liable for all the direct consequences of his act,
whether those consequences are foreseeable or not.
169 The Wagon Mound (No 2) [1966] 2 All ER 709.
170 Brazier, M, Street on Torts, 10th edn, London: Butterworths, p 254.
171 [1963] AC 837. See also Malcolm v Broadhurst [1970] 3 All ER 508, p 511.
104 Commonwealth Caribbean Tort Law

burning was foreseeable, as the child might easily have come into contact with one
of the lamps, burning by means of this sequence of events was not. The House of
Lords reversed the lower court, holding that once the type or kind of damage was
foreseeable, it was irrelevant that the precise sequence of events was not.
The question of foreseeability of harm was in issue in Witter v Brinks (Jamaica)
Ltd. 172 In this case, the plaintiff was employed by the defendants as a ‘clearance
driver’. His duties included the transporting of cheques between various banks and a
data processing centre, for which purpose he was supplied with an unmarked car and
a firearm. The plaintiff had been having trouble starting the vehicle and he returned it
to his employers, whose serviceman later assured the plaintiff that it had been
checked and was starting properly. That same evening, the plaintiff was driving the
car home before beginning his early morning rounds, when it suddenly stalled and
would not restart. The plaintiff got out of the car, opened the bonnet and was looking
at the engine when a gunman walked up to him and threatened to kill him. In
attempting to disarm the man, the plaintiff received a gunshot in his hand, which
became partially paralysed.
The plaintiff brought an action for negligence against the defendants, contending
that, by supplying him with a defective and unreliable vehicle, they were in breach of
a duty of care owed to him. The defendants argued that, at the material time, the
plaintiff was not doing anything inherently dangerous, that is, he was not transpor-
ting cheques, and it was unforeseeable that, as a consequence of the vehicle breaking
down, he would be held up and shot by a gunman. Harrison J, in the Jamaican
Supreme Court, agreed with the defendants’ contention. He said:173
This court holds that the employer has a duty of care at common law to his employee
to provide, inter alia, proper plant and appliances and a safe system of work during
the course of such employment. The employer has this general personal duty to take
reasonable care for the safety of his workmen.174
This duty does not extend to the protection of all risks, but only such risks as may
be reasonably foreseeable or reasonably contemplated. The reasonable employer is
required to foresee the probable consequences of his act, not the possible consequences.
As a result, the law seeks to restrict, within a certain range, the liability even of apparent
wrongdoers . . .
In the instant case, the plaintiff, as an employee, was required to take the motor vehicle
home prior to the commencement of his actual transportation duties. Though he devi-
ated to visit his friend, at the time of the occurrence he was on his way home and,
therefore, is deemed to have been in the course of his employment. On the evidence,
which is unchallenged, the said motor vehicle had a defect, that is, a difficulty in star-
ting. This defect was known to the defendant company, who attempted, unsuccessfully,
to correct it. In this regard, therefore, the defendant was in breach, in failing to provide a
defect-free vehicle to its employee, the plaintiff . . .
This court needs to determine whether or not provision of the defective vehicle was a
breach of duty which created the type of risk which, in the reasonable contemplation of
the parties, would probably give rise to the situation that the plaintiff would be attacked
and shot by a gunman.
The motor vehicle provided by the defendant company was for the transportation of the
plaintiff and the cheques. There is no evidence that it was regarded as a part of the

172 (1992) 29 JLR 344 (Supreme Court, Jamaica).

173 Ibid, pp 348, 350.
174 See Wilsons and Clyde Coal Co v English [1938] AC 57 (below, pp 140 et seq).
 Chapter 4: Negligence 105

security system of the employment. Whereas a firearm is clearly so, a motor vehicle in
itself is not. If, of course, the vehicle was, for example, armoured, it could be so
regarded.
The defect in the said vehicle was not, therefore, referable to the obligation as to the
provision of a safe system of work. The action of the gunman was not referable to any
enticement caused by the ostensible activity or patent conduct of the plaintiff transpor-
ting valuable cargo. Nor was the gunman’s action suggestive of an attempt to rob any
such property contained in the vehicle. One may not import into the case circumstances
that are not supported by the facts. The court cannot say that it is reasonable to assume
that, when a car stalls in the streets of Kingston, and particularly in Seaview Gardens,
the driver thereof is likely to be held up and shot by a gunman.

The plaintiff’s action succeeded, however, in the Bahamian case of Nottage v Super
Value Food Stores Ltd. 175 Here, armed robbers shot and injured the plaintiff, who was
employed by the defendants as a store manager, when he went to open the defen-
dants’ supermarket one morning. Strachan J held that the defendants were in breach of
their duty to take reasonable precautions to protect the plaintiff,176 such as by provi-
ding a security officer to accompany the plaintiff at opening times, since ‘they did
foresee that there would be armed robbers at their food stores. They may not have
known the hour or the day, but they certainly foresaw that there would be robberies.
There had been in the past, and they anticipated that there would be in the future’.
Strachan J continued:
Since Dorset Yacht Co Ltd v Home Office,177 as Lord Steyn observed in Marc Rich and Co
AG v Bishop Rock Marine Co Ltd (The Nicholas H),178 it is settled law that the elements of
foreseeability and proximity as well as considerations of fairness, justice and reason-
ableness are relevant to all cases of negligence, whatever the nature of the harm sus-
tained by the plaintiff. This, among other things, provides in my view the answer to a
real concern that Mr Ward had about the effect of a conclusion that the defendant was
liable. As he saw it, an obligation to take precautions against criminal acts would be
simply too burdensome for many small operators; indeed, if I understood him correctly,
even the cost of leaving the car park lights on was considered too onerous for those
concerned in the present case. Cost is a relevant factor and a court will have regard to it
in the context of ‘fairness, justice and reasonableness’. The point is, however, that profit-
ability is not invariably linked to scale and there are, apart from cost, other relevant and
material considerations, for example, that the system of work of the small operator is
not likely to be substantially the same as Super Value’s.
Here, as I see it, the employee was at the material time performing a duty under circum-
stances which, in the absence of appropriate precautions, amounted to negligence by
omission on the part of his employer.

A similar situation obtained in the Jamaican case of Wheatle v Townsend.179 Here, the
plaintiff was employed by the defendant as a delivery man, his duty being to deliver
products in the defendant’s van to individuals and shops in St Andrew. One morning,
the plaintiff was returning to the van after making a delivery to a shop in the
Cavallers area when he was attacked and wounded by a gunman. Harris J held

175 (1997) Supreme Court, The Bahamas, No 389 of 1994 (unreported) [Carilaw BS 1997 SC 64]).
176 An aspect of the employer’s common law duty to provide a safe place of work (see below,
pp 144, 145).
177 [1969] 2 QB 412.
178 [1996] AC 211.
179 (1998) Supreme Court, Jamaica, No W 380 of 1995 (unreported) [Carilaw JM 1998 SC 48].
106 Commonwealth Caribbean Tort Law

the defendant liable in negligence for failing to take precautions for the security of the
plaintiff, as previous robberies had occurred in the Cavallers area and ‘the defendant
knew that there was a distinct possibility that the plaintiff could have been attacked
and some violence could have been committed against him . . . A duty resides with
the employer to exercise reasonable care for the safety of his employee when that
employee is performing his task’.180

The ‘egg-shell skull’ principle

This principle was concisely explained by Kennedy J thus:181

If a man is negligently run over or otherwise negligently injured in his body, it is no
answer to the sufferer’s claim for damages that he would have suffered less injury, or no
injury at all, if he had not had an unusually thin skull or an unusually weak heart.

In other words, a tortfeasor takes his victim as he finds him, and the latter can claim
damages for the entire injury to his person even though, because of some special
physical weakness or sensitivity unknown to the tortfeasor, the harm suffered was
greater than would have been suffered by a normal person. Thus, for example, one
who carelessly inflicts a minor cut on a haemophiliac, with the result that the latter
bleeds to death, will be fully liable for the consequences, even though a normal person
would have suffered little injury.182 And where the defendant negligently inflicted a
burn on the plaintiff’s lip which, owing to a pre-malignant condition in the tissues of
the lip, caused cancer to develop, from which the plaintiff died, the defendant was
held fully liable for the death.183
This principle can be reconciled with the rule in The Wagon Mound (No 1) by
saying that, once the type of damage (for example, the cut or burn) was foreseeable,
‘any consequence which results because the particular individual has some peculiar-
ity is a consequence for which the defendant is liable’.184
The ‘egg-shell skull’ principle was applied in the Barbadian case of Brewster v
Davis.185 Here, the defendant negligently drove into the back of the plaintiff’s car
while the latter was waiting in a line of stationary traffic. The plaintiff suffered no
apparent physical injuries but she became anxious and nervous. At the time of the
accident, the plaintiff was suffering from an auto-immune disease known as lupus
nephritis, and the stress and anxiety caused by the accident exacerbated her condition,
which ultimately resulted in acute renal failure. Holding the defendant liable for the
consequences of the renal failure, Williams CJ said:
I hold that the ‘egg-shell skull’ rule is still part of the law of Barbados and for the
purposes of that rule there is, in my judgment, no difference between inflamed kidneys
and a thin skull, a bad heart or a pre-cancerous condition. Accordingly I hold that a
causal link has been established between the defendant’s negligence and the plaintiff’s
acute renal failure.

180 Cf Williams v Grimshaw [1961] 3 KIR 610; Haughton v Hackney BC [1961] 3 KIR 615.
181 Dulieu v White and Sons [1901] 2 KB 669, p 679. See Rowe, PJ (1977) 40 MLR 377.
182 Bidwell v Briant (1956) The Times, 9 May.
183 Smith v Leech Brain and Co Ltd [1962] 2 QB 405.
184 Warren v Scruttons Ltd [1962] 1 Lloyd’s Rep 497, p 502, per Paull J.
185 (1992) High Court, Barbados, No 944 of 1989 (unreported) [Carilaw BB 1992 HC 12].
 Chapter 4: Negligence 107

In the more recent Jamaican case of Crandall v Jamaica Folly Resorts Ltd,186 the plaintiff,
a guest at the defendant’s hotel, fell from an unstable chair in the hotel bar and
sustained injuries which necessitated two operations. The plaintiff was obese and,
after the second operation, he suffered a heart attack. Ellis J held that the defendant
was in breach of its duty of care under the Occupiers’ Liability Act187 and was
fully liable for the consequences, including the heart attack, which was not too
remote an injury. The learned judge expressly referred to Smith v Leech Brain and Co
Ltd 188 as laying down the principle that the defendant must ‘take his victim as he
finds him’.

Quantum of damages

Another aspect of the principle that a tortfeasor must take his victim as he finds him is
the rule that if the defendant injures a high-income earner or a particularly valuable
chattel, he cannot argue that he could not have foreseen that the amount of the loss
would be so great, and he will be liable for the full loss of earnings of the victim or the
full value of the chattel, as the case may be.189 Foreseeability is, in any case, irrelevant
here, since the issue is one of assessment of damages rather than of remoteness.190

Plaintiff ’s impecuniosity

In contrast with the ‘egg-shell skull’ principle, it has been held that a defendant is not
liable to compensate the plaintiff for any extra damage he suffers because of his (the
plaintiff’s) own impecuniosity:
The [plaintiff’s] financial disability [is not] to be compared with that physical delicacy or
weakness which may aggravate the damage in the case of personal injuries, or with the
possibility that the injured man in such a case may be either a poor labourer or a highly
paid professional man.191

Thus, where the defendant’s ship, through careless navigation, damaged and sank the
plaintiffs’ vessel, the plaintiffs were entitled to recover the full value of their ship, but
they could not recover the additional expenses they had incurred in hiring a ship in
order to fulfil an existing contract, because the need to hire the ship arose only on
account of the fact that they were too poor to buy an immediate replacement for their
lost vessel.192

186 Smithfield Digest 1998 (www.smithfield.com.jm/SD250698c.htm). The decision has been

upheld by the Jamaican Court of Appeal: (1999) Court of Appeal, Jamaica, Civ App No 102 of
1998 (unreported). See also Neely v Minister of Tourism (1996) Supreme Court, The Bahamas,
No 1183 of 1994 (unreported) [Carilaw BS 1996 SC 66], where Osadebay J emphasised that
under the egg-shell skull rule, the plaintiff’s weight and height had nothing to do with the
issue of liability.
187 See below, Chapter 5.
188 [1962] 2 QB 405.
189 The Arpad [1934] P 189, p 202.
190 Op cit, Winfield and Jolowicz, fn 88, p 220.
191 Liesbosch Dredger v SS Edison [1933] AC 449, p 461. See Kodilinye, V (2000) 10 Carib LR 75.
Cf Brown v Tyrel (1990) Court of Appeal, Jamaica, Civ App No 52/90 (unreported); Hughes
v Deonarine (2004) High Court, Trinidad and Tobago, No S234 of 1998 (unreported).
192 Liesbosch Dredger v SS Edison [1933] AC 449, p 461.
108 Commonwealth Caribbean Tort Law

Novus actus interveniens193

Where, subsequently to the defendant’s breach of duty, an independent event occurs

which causes damage to the plaintiff, the question arises as to whether the defendant is
to be held liable for the damage, or whether the intervening event is to be treated as a
novus actus interveniens which ‘snaps the chain of causation’ and thus relieves the
defendant from liability. There are no firm principles as to when the court will and
when it will not regard an occurrence as a novus actus interveniens, and the answer
depends largely on the policy to be pursued in allocating responsibility for negligent
conduct.
Of the various tests which have been suggested for deciding this difficult ques-
tion, perhaps the clearest and most useful is whether a reasonable man would have
said that the damage caused by the intervening event was within the likely or fore-
seeable risk created by the defendant’s negligence.194 Thus, for instance, where a
decorator, working alone in a house, had been told by the owner to lock the front door
whenever he had to go out, and he carelessly left the door unlocked while he went
away for two hours, with the result that a thief entered and stole some jewellery and
clothes, it was held that the act of the thief was within the foreseeable risk created by
the decorator’s breach of duty and he could not plead novus actus interveniens. He was,
therefore, liable for the loss.195
Similarly, where the defendant’s servant negligently left a horse-drawn van
unattended in a street where children were playing, and a mischievous boy threw a
stone at the horses, causing them to bolt and run the plaintiff down, the act of the boy
was not a novus actus, since it was a foreseeable consequence of leaving the horses
unattended where children were about.196 On the other hand, a contractor who care-
lessly leaves an open pit in a road is not liable to a policeman who is deliberately
thrown into it by an escaping prisoner;197 nor is a railway company which negligently
allows a train to become overcrowded liable to a person who has his wallet stolen by a
pickpocket, since such events are not within the foreseeable risk of the defendant’s
carelessness.198
An intervening act may be the act of a third party (as in all the above examples), or
it may be the act of the plaintiff himself. In many cases, the careless act of the plaintiff
will constitute contributory negligence; alternatively, it may be treated as a novus
actus interveniens which breaks the chain of causation. The court will more readily
accept a plea of novus actus where the intervening act is that of the plaintiff himself,
due to the rule that it is the plaintiff’s duty to mitigate the damage, and he cannot
recover damages for an aggravation or prolongation of his injuries which is due to his
own neglect or wilful default.199 Thus, ‘if a man suffering from a sprained leg wishes
to win a prize in a high-jumping competition and proceeds to endeavour to win it and
makes his leg so much worse that it takes an additional six months to recover, he is

193 See Millner, MA (1971) 22 NILQ 168.

194 See Clerk and Lindsell, Torts, 15th edn, London: Sweet & Maxwell, paras 11–53.
195 Stansbie v Troman [1948] 2 KB 48.
196 Haynes v Harwood [1934] All ER Rep 103.
197 Alexander v Town of New Castle (Ind 1888) 17 NE 200.
198 Cobb v Great Western Rly [1894] AC 419.
199 Op cit, Heuston and Buckley, fn 89, p 525. For a case in which a plea of novus actus failed, see
Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006.
 Chapter 4: Negligence 109

only entitled to damages for such part of his suffering as was not due to such heedless
conduct’.200

LIABILITY FOR ECONOMIC LOSS

As a general rule, no damages can be claimed for ‘pure’ economic loss in the law
of torts.201 Pure economic loss is financial loss which is not consequent upon any
physical damage to the person or property of the plaintiff. Economic loss which is
consequent upon physical damage to the plaintiff or his property is compensable.
A simple example may clarify the distinction: if D negligently runs down P, a fashion
model, with his car, P can recover damages for loss of earnings, including such items
as a lucrative modelling contract which P is prevented, by her injuries, from obtain-
ing. But P’s agent, Q, who expected to earn a large commission from the modelling
contract, cannot recover damages for his loss of earnings caused by the injuries to P,
because his loss is not consequent upon any physical damage to him; it is consequent
only upon damage to P. The leading case on this point is Spartan Steel and Alloys Ltd v
Martin and Co Ltd,202 where it was held that a person who negligently damaged a cable
belonging to the power authority, thereby cutting off the electricity supply to the
plaintiffs’ nearby factory, was not liable to the plaintiffs for loss of profits arising from
the stoppage of steel production during the power cut, because there was no duty to
avoid causing purely economic loss. It is significant, however, that in this case the
plaintiffs did recover for financial loss arising from damage to molten metal which
was in their furnace at the time of the power cut, because this loss was consequent
upon physical damage to the metal.

Negligent misstatement causing economic loss

The most important and well-established exception to the rule that damages for pure
economic loss are not recoverable in the law of torts is the principle arising from the
case of Hedley Byrne and Co Ltd v Heller and Partners Ltd,203 which established that
damages can be recovered in tort for economic loss caused by careless misstatements.
A negligent misstatement may have either of the following effects:204
(a) it may cause physical damage to the person who relies on it; or
(b) it may cause purely financial (or economic) loss to such person.
There has never been any difficulty in holding a defendant liable for physical harm
caused by his careless misstatement. For example, an architect who carelessly gave
wrong instructions to a bricklayer, which resulted in the collapse of a wall and

200 Jones v Watney (1912) 28 TLR 399, p 400.

201 Laufer v International Marbella Club SA (1988) 25 JLR 412 (Court of Appeal, Jamaica); S & T
Distributors Ltd v CIBC Jamaica Ltd (2007) Court of Appeal, Jamaica, Civ App No 112/04
(unreported).
202 [1973] 1 QB 27.
203 [1963] 2 All ER 575.
204 Where a misstatement is fraudulent, ie, made without belief in its truth or made recklessly as
to whether it is true or false, the representor may be liable for the tort of deceit: Derry v Peek
(1889) 14 App Cas 337.
110 Commonwealth Caribbean Tort Law

consequent injury to the bricklayer, was held liable in negligence;205 and a doctor who
carelessly certified a man as being of unsound mind was held liable for the sub-
sequent detention of the man in a mental hospital.206 Until 1963, however, it was a firm
rule that, except where there was a fiduciary relationship between defendant and
plaintiff (for example, as between solicitor and client), there was no duty of care to
avoid causing purely economic loss through negligent misstatements.
It was the leading case of Hedley Byrne and Co Ltd v Heller and Partners Ltd 207 which
established for the first time that a negligent misstatement, whether spoken or
written, which causes financial loss may give rise to an action in damages for
negligence, despite the absence of any fiduciary or contractual relationship between
the parties. The facts of the case were that the plaintiffs, who were advertising agents,
asked their bankers to inquire into the financial stability of E Co, with whom the
plaintiffs were contemplating entering into certain advertising contracts. In answer to
inquiries by the plaintiffs’ bankers, the defendants, E Co’s bankers, carelessly gave
favourable references about E Co. Relying upon these references, the plaintiffs went
ahead with the advertising contracts, but shortly afterwards E Co went into liquid-
ation and the plaintiffs lost £17,000. The plaintiffs’ action in negligence failed because
the defendants had expressly disclaimed responsibility208 for their references, but the
House of Lords held that, if it were not for this express disclaimer, the defendants
would have owed a duty of care to the plaintiffs not to cause financial loss by their
statements. All five judges of the court proceeded to expound their views as to the
basis of liability for negligent misstatements, but unfortunately there was no uniform-
ity of approach among their Lordships, and subsequent cases have done little to
clarify the position. However, the following points are sufficiently clear:
(a) A duty of care will exist only where there is a ‘special relationship’ between the
parties. A majority of the judges in Hedley Byrne considered that a special relation-
ship would arise whenever, in the circumstances: (i) it was reasonable for the
plaintiff to have relied upon the care or skill of the defendant who made the
statement; and (ii) the defendant knew or ought to have known that the plaintiff
was relying on him. Thus, professional advisers, such as accountants,209 bankers,
commission agents and surveyors, will owe a duty of care to their customers in
respect of any professional advice given.
(b) No duty of care will arise where advice is given on a purely social occasion (for

205 Clayton v Woodman [1962] 2 QB 533.

206 De Freville v Dill [1927] All ER Rep 205.
207 [1963] 2 All ER 575.
208 See also Ife Fund SA v Goldman Sachs International [2007] 2 Lloyd’s Rep 449, where it was held
that where the terms on which someone was prepared to give advice or make a statement
negatived any assumption of responsibility, no duty of care would be owed.
209 In JEB Fasteners Ltd v Marks [1981] 3 All ER 289, Woolf J held that auditors preparing com-
pany accounts owed a duty of care to any person whom they ought reasonably to have
foreseen might rely on those accounts; though in Caparo Industries plc v Dickman [1990] 2 WLR
358, the House of Lords held that the duty of care of an auditor of a public company is owed
only to his client company and its shareholders, collectively and individually, and not to
potential investors. Caparo was distinguished in Caribbean Steel Co Ltd v Price Waterhouse (A
Firm) (2006) Supreme Court, Jamaica, No 1998/C-166 (unreported) [Carilaw JM 2006 SC 52],
where Jones J held that the defendant, an international firm of auditors and accountants,
owed a duty of care to company A in respect of (i) a valuation of the shares of company B
which company A had engaged the defendant to conduct prior to company A’s acquisition of
the shares, and (ii) a subsequent audit of company B after the acquisition of the shares. But
see Benjamin v KPMG Bermuda (2007) 71 WIR 185 (Supreme Court, Bermuda).
 Chapter 4: Negligence 111

example, advice ‘cadged’ at a cocktail party, or given on a bus or aeroplane by one

passenger to another), since it would be neither foreseeable by the defendant that
the plaintiff would rely on the advice, nor reasonable for the plaintiff to do so.
(c) A non-professional person who gives information or advice on a ‘business occa-
sion’ (for example, one trader advising another as to the creditworthiness of a
potential buyer) owes a duty of care, at least if he has a financial interest in the
transaction in question.210
The requirements for liability for economic loss caused by negligent misstatements
were further considered by the Privy Council in Mutual Life and Citizens’ Assurance Co
Ltd v Evatt.211 In this case, the plaintiff was a policyholder with the defendant insur-
ance company. He sought gratuitous advice from the company as to the wisdom of
investing in the defendant’s sister company. He was advised that the sister company
was financially stable, and so he went ahead and invested in it. When the sister
company crashed, he brought an action against the defendant company, alleging that
it had been negligent in giving the advice. The Privy Council held, by a majority of
3:2, that the defendant was not liable since, being an insurance company, it was not in
the business of giving investment advice.
The majority held that, where the defendant is not in the business of giving advice
and does not hold itself out as competent to give the advice sought, the only duty
owed is a duty of honesty, and that duty had been fulfilled in this case. It did, however,
recognise that where the defendant has a financial interest in the advice given, then the
requirement that the defendant be in the business of giving advice does not apply. The
dissenting minority in Evatt took the view that a duty of care is owed by anyone who
takes it upon himself to make a representation, knowing that another will justifiably
rely on his representation. According to the minority, foresight of reasonable reliance
being placed upon the representor’s words is the critical test, and it is this more liberal
view of the scope of Hedley Byrne which has found favour with the English courts.
On the other hand, it was the majority view in Evatt which was applied by the
Jamaican Court of Appeal in Imperial Life Assurance Co of Canada v Bank of Commerce
(Jamaica) Ltd. 212 In this case, A, the registered fee simple owner of premises mort-
gaged the property to the Imperial Life Assurance Co of Canada to secure a loan of
$50,000 in October 1970 and the mortgage was registered. In unexplained circum-
stances, the certificate of title was made available to the solicitors representing the
First National City Bank, in whose favour a mortgage was executed and registered in
January 1971 to secure another loan. This latter mortgage was endorsed on the title
which was returned to Imperial Life through their solicitors, J & Co.
In 1974, A approached Imperial Life for an additional loan on the security of the
premises. Imperial Life was prepared to entertain the request but, owing to an
unfavourable cash flow position, was unable to make an immediate disbursement. H,
an official of Imperial Life, explored with S, a manager of the Bank of Commerce
(Jamaica) Ltd, the possibility of the Bank of Commerce providing A with bridging
financing. H led S to understand that Imperial Life was in the process of granting an
additional mortgage of $80,000 to A and that, if the Bank of Commerce would provide
A with a bridging loan, they would be repaid in full by Imperial Life. Later, both

210 Anderson v Rhodes [1967] 2 All ER 850.

211 [1971] 1 All ER 150.
212 (1985) 22 JLR 415 (Court of Appeal, Jamaica).
112 Commonwealth Caribbean Tort Law

Imperial Life and J & Co wrote to Bank of Commerce, confirming that Imperial Life
was prepared to grant A an additional loan subject to satisfactory completion of the
mortgage formalities.
In February 1975, the Bank of Commerce decided to grant the bridging loan to
A, and $55,000 was disbursed to him.
In May 1975, J & Co discovered the existence of the mortgage to First National,
and Imperial Life accordingly declined to proceed with the additional mortgage
transaction, informing the Bank of Commerce of its decision.
The Bank of Commerce brought an action against Imperial Life for, inter alia,
negligence, contending that the disbursement of $55,000 to A had been made in reli-
ance upon the negligent misstatements of Imperial Life, its servants and agents, to the
effect that the additional loan to A had been approved. The trial judge found for the
plaintiff.
It was held on appeal (Carberry J A dissenting) that Imperial Life was in breach of
its duty of care owed to the Bank of Commerce in failing to inspect the certificate of
title to the property before advising the Bank of Commerce that the mortgage loan to
A had been approved. Rowe P said:213
On the findings of fact of the learned trial judge, Bank of Commerce can only succeed
if the evidence discloses the making of negligent misstatements by the appellants in
circumstances which give rise to a cause of action in negligence under the principles
adumbrated by the Privy Council in Mutual Life and Citizens’ Assurance Co Ltd v Evatt.214
On this crucial question, counsel on both sides in the course of their arguments did not
find it necessary to go outside the decision in Mutual Life v Evatt and a commentary
in Spencer Bower and Turner, Actionable Misrepresentation (3rd edn, 1974, London:
Butterworths, p 414 et seq). I will similarly confine myself.
The respondent contends that a duty of care arises in relation to representations made
by one person to another where the representations concern business transactions
which by their nature make it clear that the information contained in the representations
are matters of importance and will be significant in relation to the contemplated action
by the party to whom the representations are made. In a case where a person carries on
a business or profession which requires special skill and competence, or where by his
conduct he makes it appear that he possesses special skill and competence in the subject
matter, then, if he gives information to a person which is negligently given, and that
person, in reliance on that information, suffers damage, he will be liable in damages to
that other person.
Not every kind of negligent misstatement will give rise to a cause of action in
negligence. Lord Diplock summarised the position as it existed at common law before
the decision in Hedley Byrne and Co Ltd v Heller and Partners Ltd 215 in Mutual Life v
Evatt, thus:216
Prior to Hedley Byrne, it was accepted law in England that, in the absence of
contract, the maker of a statement of fact or opinion owed to a person, whom he
could reasonably foresee would rely on it in a matter affecting his economic
interest, a duty to be honest in making the statement. But he did not owe any
duty to be careful, unless the relationship between him and the person who
acted on it to his economic detriment fell within the category of relationships

213 Ibid, p 420.

214 [1971] 1 All ER 150.
215 [1963] 2 All ER 575.
216 [1971] 1 All ER 150, p 154.
 Chapter 4: Negligence 113

which the law classified as fiduciary. Hedley Byrne decided that the class of
‘relationships between the maker of the statement and the person who acted on
it to his economic detriment which attracted the duty to be careful was not so
limited, but could extend to relationships which, though not fiduciary in char-
acter, possessed other characteristics’.
The relationships possessing characteristics other than fiduciary ones came to be termed
‘special relationships’. Should there be rigid rules or classifications or categorisations of
the classes of case which can give rise to that special relationship? The powerful dissent-
ing speech by Lord Reid and Lord Morris of Borth-y-Gest in Mutual Life v Evatt was
against such rigid classification, and in their opinion the true test should be whether the
reasonable man would think that, in the particular circumstances, he had some obliga-
tion beyond merely giving an honest answer. But the majority opinion of the Privy
Council limited the special relationship to two kinds of case. Spencer Bower in his
treatise . . . listed them as:
First, the case where, by carrying on a business or profession which involves the
giving of advice calling for special skill and competence, the defendant has let it
be known that he claims or possesses and is prepared to exercise the skill and
competence used by persons who give such advice in the ordinary course of
their business.
Secondly, the case where, though the defendant does not carry on any such
business, he has let it be known in some other way that he claims to possess skill
and competence in the subject matter of the particular enquiry comparable with
that of persons who do carry on the business of advising on that subject matter,
and is prepared to exercise that skill and competence on the occasion in
question.
The facts in Mutual Life v Evatt were entirely different from those in Hedley Byrne, as are
the facts in the instant case different from those two cases above. But, as Lord Diplock
said in Mutual Life v Evatt,217 the categories of negligence are never closed:
As with any other important case in the development of the common law,
Hedley Byrne should not be regarded as intended to lay down the metes and
bounds of the new field of negligence of which the gate is now opened. Those
will fall to be ascertained step by step as the facts of particular cases which come
before the courts make it necessary to determine them. The instant appeal is an
example; but their Lordships would emphasise that the missing characteristic
of the relationship which they consider to be essential to give rise to a duty of
care in a situation of the kind in which the respondent and the company found
themselves when he sought their advice is not necessarily essential in other
situations, such as, perhaps, where the advisor has a financial interest in the
transaction on which he gives his advice. The categories of negligence are never
closed . . .
In the instant case, Imperial Life carried on the business of lending money on long term
mortgages. The method of operating this business, as the instant case shows, involved a
scheme or a series of transactions in which Imperial Life would first consider and
approve a mortgage loan, then a willing bank would be asked to provide immediate
finance as a bridge between the approval of the mortgage loan and the date of dis-
bursement. When, therefore, Imperial Life, as the long term lender, makes a statement
of the approval of the mortgage loan and conveys that approval to the short term lender,
Imperial Life must reasonably have contemplated and anticipated that the short term
lender would place reliance upon its statement of approval and be influenced thereby
into the grant and disbursement of the bridging finance. The statements were made by

217 Ibid, p 161.

114 Commonwealth Caribbean Tort Law

Imperial Life in a context in which it fully appreciated that short term advances would
be made before the completion and registration of the mortgage, and the entire series of
negotiations were conducted on the basis that immediate advances would be made to
Andrade and the Bank would be reimbursed from the proceeds of the mortgage some-
time in the future.
The representations made through the agents of Imperial Life orally and in writing
conveyed the information to Bank of Commerce that a binding agreement to grant a
first mortgage existed between itself and Andrade, and from these representations it
could be reasonably inferred that all the essentials relating to the grant of a first mort-
gage had been agreed and settled satisfactorily between Andrade and Imperial Life and
that there was no existing or easily ascertainable factor which would provide an
impediment to the grant of the mortgage.
In my opinion, Imperial Life owed a duty of care to Bank of Commerce and failed to use
reasonable care in giving the assurances to Bank of Commerce, in that it failed to inspect
the certificate of title which was in its own possession before advising Bank of
Commerce that it had approved the mortgage loan to Andrade. The learned trial judge
was entirely correct when he concluded that Imperial Life led the manager of Bank of
Commerce to assume or believe that all was clear for the advances to be made to
Andrade. Indeed, it was the opinion of Imperial Life that Bank of Commerce was being
unduly protective of itself when dealing with assurances given by so reputable a com-
pany as Imperial Life in such a very simple and straightforward transaction. Indeed,
Imperial Life was impatient at what it considered to be undue delay on the part of Bank
of Commerce to make the short term advance to Andrade.
A special relationship was established between the two financial institutions, both being
money lenders, the one on long term mortgages and the other on short term ‘bridging
financing’. The long term lenders’ assurances of a mortgage loan in a specified sum, to a
named person, to be disbursed at a stated future time, was in the instant case intended
to be acted upon by the short term lender, who, acting upon the faith of those represen-
tations, incurred loss. The long term lender owed a duty of care to the short term lender
and was in breach of that duty. I would dismiss the appeal of Imperial Life.

Carberry JA (dissenting) said:218

The special relationship necessary to support the imposition of a duty of care in making
representations has been found in a number of cases:
In Anderson and Sons v Rhodes (Liverpool) Ltd,219 it was found to exist between dealers in
the fruit market, where one enquiring as to the creditworthiness of a newcomer was
told by the other (negligently), ‘they are quite all right’. In fact, the newcomer owed
thousands of pounds to the representor’s firm, but, due to the negligence of the account-
ing department, this was unknown to him.
In Esso Petroleum Co Ltd v Mardon,220 the company in pre-contract discussions told the
intending lessee that their estimated through-put of gasoline likely to be sold at the
station was 200,000 gallons a year. The estimate was negligently made, or rather, not
reconsidered in the light of the local planning authority having refused to allow the
pumps to front on the main highway, and the actual through-put proved to be some
78,000 gallons. The Court of Appeal found: (a) that the representation was in fact a
contractual warranty; (b) that it was also a negligent representation by a party holding
itself out as having special expertise, and that there was a duty to take reasonable care to
see that the representation was correct. In short, that there was a special relationship . . .

218 (1985) 22 JLR 415, p 441.

219 [1967] 2 All ER 850.
220 [1976] QB 801.
 Chapter 4: Negligence 115

I would hold that, on the facts of this case, and possibly in all situations involving the
relationships between a borrower, a long term lender and a short term lender, there is a
‘special relationship’ which imposes on the long term lender who knows that the short
term lender is depending upon the long term loan being ultimately made, a duty
to exercise care in the making of representations to the short term lender. There is a
relationship of proximity equivalent to contract.
It is, however, not enough to establish that the situation gives rise to a duty of care: it is
necessary to go further and find that that duty of care has been broken. This involves, as
I understand it, that the representor has made a false statement of fact; or possibly
advanced an opinion which itself is one that he could not honestly have entertained or
which involves directly the existence of facts which are false.
In all of the cases which have been discussed above, the representation of fact has been
clear. There are none that have involved a representation as to future intent, and in that
respect the case before us is not only unique, but involves a very substantial extension of
the duty to use care in the making of representations. I think that, in the absence of such
authority, the courts will have to fall back on the principles established in the cases
dealing with deceit or the known making of false statements.
The statement or representation, ‘we intend to lend $80,000 to Andrade on a mortgage
to be consolidated with a first mortgage that we already have on his premises at Hagley
Park Road’, was true when made, and honestly believed. Can any false statement of fact
be inferred from it? I regret that I cannot find it possible to infer from it any representa-
tion of fact that is untrue. It may perhaps be implied that we have examined his circum-
stances and are of the view that we can safely lend him money. But how much further
can it be taken? The real complaint is: ‘You promised to lend money to Andrade, and
you have changed your mind because of something which you had the means of dis-
covering before.’ For such a complaint to succeed, it seems to me that it must amount to
a contract, an enforceable agreement; nothing less will sustain it. I have already pointed
out that the promise to Andrade was at best a ‘subject to contract’ one, and that it was
conditional on the satisfying of the requirements as to title and the completion and
registration of a new mortgage, and there was no direct contract between the bank and
the insurance company . . .
For these reasons, I am of the view that the insurance company is not liable in neg-
ligence to the bank, and I would allow the appeal on this ground also.

The proposition that there is no liability under Hedley Byrne for advice given on a
social occasion was put to the test in Chaudry v Prabhakar.221 In this case, the defendant,
who was a friend of the plaintiff, offered to help her to find a suitable used car to
purchase. The defendant was not a mechanic, but he did profess to have some know-
ledge of cars. The plaintiff had insisted that she did not want a car that had been
involved in an accident. The defendant found and recommended a car which had low
mileage but which he knew had had its hood repaired or replaced. The plaintiff
bought the car in reliance upon the defendant’s recommendation, but it turned out
that the car was unroadworthy, having been inadequately repaired after an accident.
The plaintiff successfully brought an action in negligence against the defendant,
the majority of the Court of Appeal being of the view that this was not a purely
social relationship because the plaintiff had relied on the defendant’s skill and
judgment and the defendant was aware of that reliance. The decision is a weak
authority, however, since the defendant had conceded that he owed a duty of care
under Hedley Byrne. This concession arguably should not have been made, since it was

221 [1989] 1 WLR 29.

116 Commonwealth Caribbean Tort Law

not reasonable for the plaintiff to have relied solely on her friend’s advice when, for
example, she could have had the car properly surveyed by a mechanic. May LJ,
dissenting, doubted that the concession was correct because he did not consider to be
‘entirely attractive’ the imposition of a duty of care on a family friend giving gratuit-
ous assistance as a personal favour. It is submitted with respect that May LJ’s view is
preferable to that of the majority.
Another rather dubious decision is the majority ruling of the Privy Council in
the Trinidadian case of Royal Bank Trust Co (Trinidad) Ltd v Pampellonne.222 The
respondents, Mr and Mrs Pampellonne, were customers of the appellant bank. They
invested sums of money in a deposit-taking company (Pinnock Finance Co) on vari-
ous occasions over a period of two years. When Pinnock later went into liquidation,
the respondents lost most of their money. They brought an action in negligence
against the bank, alleging that the investments in Pinnock had been made on the
advice of K, the bank manager. The trial judge found on the facts that K had given
information to the respondents about Pinnock and had supplied them with relevant
literature and application forms, but that the respondents had not relied upon the skill
and judgment of K, nor did K believe that they were relying upon such skill and
judgment. Thus, no special relationship between the bank and the respondents giving
rise to any duty of care on the part of the bank had been created.
The Court of Appeal of Trinidad and Tobago reversed the decision of the trial
judge, holding that the information given by K was equivalent to ‘advice’. A special
relationship had been created between the respondents and the bank which gave rise
to a duty of care on the part of the bank, ‘whose business it was to supply, and who
supplied, information which influenced [the respondents] to invest’ within the prin-
ciple in Mutual Life and Citizens’ Assurance Co Ltd v Evatt.223 In giving this advice, the
bank ‘carried on, and held itself out as carrying on, the business of giving advice as to
reliable financial investments’ and ‘the bank fell short of the standard of care expected
of a prudent investment adviser, when it failed to make adequate inquiries into the
personal circumstances of [the respondents] and the financial position of Pinnock . . .
before tendering the advice’.
It was held on appeal to the Judicial Committee of the Privy Council, by a majority
of 3:2, that the question of whether the information provided by the bank was equiva-
lent to advice depended upon the facts of the case, and in particular upon the circum-
stances in which the information was given. There was ample evidence on which the
trial judge could find that the bank could not be responsible for any investment or
reinvestment by the respondents in Pinnock, and the Court of Appeal was not entitled
to substitute its own view of the facts for that of the trial judge. Lord Goff (delivering
the opinion of the majority of the members of the Board) said:224
Before their Lordships, Mr Longmore for the bank submitted that the Court of Appeal,
in reversing the decision of the judge on the question whether there was a duty of care
with regard to the Pinnock investments, substituted their own view for that of the judge
on questions of fact when they had no right to do so. In the opinion of their Lordships,
that submission is well founded. Kelsick JA treated the information provided by
Mr Kennedy regarding Pinnock as equivalent to advice; he held that ‘a duty-care situ-
ation’ arose when, at the first meeting, Mr Pampellonne requested Mr Kennedy to

222 (1986) 35 WIR 392.

223 [1971] 1 All ER 150, p 154.
224 Ibid, p 403.
 Chapter 4: Negligence 117

recommend a suitable UK deposit-taking company in which he should invest, and

Mr Kennedy then mentioned Pinnock and supplied Mr Pampellonne with relevant
literature and application forms. However, the question whether the furnishing of
information is in any particular case to be treated as equivalent to advice must depend
upon the facts of the case, and in particular upon the precise circumstances in which the
relevant information has been given. It was the judge who heard, at length, the evidence
of Mr Kennedy and the Pampellonnes concerning the two meetings in the autumn of
1964; and he, having heard that evidence, formed the opinion that Mr Kennedy gave
no recommendation to the Pampellonnes that it was safe to invest in Pinnock, simply
providing Mr Pampellonne with such information concerning Pinnock as was available
to him. It was not, in their Lordships’ opinion, open to the Court of Appeal to conclude,
on the basis of the judge’s notes of the evidence, that he erred in reaching that conclu-
sion of fact . . .
If the bank had provided advice to the Pampellonnes about their investments, it would
in all probability have been held that the occasion was one of sufficient gravity to give
rise to a duty of care, in which event the evidence of Mr Girdharrie concerning the
extensive inquiries which, in his opinion, the bank should have made, would have
become relevant; although it is usual for any such advice to be contained in, or regu-
lated by, some form of document. But once it was held, as the judge held, that at a brief
meeting the bank was prepared to do no more than provide such information as was
available to them, the judge was entitled to form the opinion on the evidence before him
that no duty of care arose, other than (no doubt) to pass such information accurately to
Mr Pampellonne. For these reasons, in the opinion of their Lordships, the decision of
Kelsick JA that a duty of care rested upon the bank in relation to advice concerning the
Pinnock investments (and the like decision of Sir Isaac Hyatali CJ and Cross JA) cannot
stand.
Lord Templeman and Sir Robin Cooke (dissenting) said:225
In our opinion, the reversal by the Court of Appeal of Trinidad and Tobago of the
decision of Roopnarine J in favour of the trust company did not involve the Court of
Appeal in submitting their own view for that of the judge on questions of fact.
The Court of Appeal held from the facts as found a legal duty of care by Mr Kennedy to
Mr Pampellonne in connection with the investment by Mr Pampellonne of his deposit
of £6,250. We agree. That duty of care arose when Mr Kennedy, the expert, supplied
to Mr Pampellonne, the layman, information about Pinnock which influenced Mr
Pampellonne to invest in Pinnock. That duty of care would not have arisen if Mr Pam-
pellonne had been familiar with finance companies and their accounts. But the naive
inquiry from Mr Pampellonne for the name of a deposit-taking company was an indica-
tion of Mr Pampellonne’s ignorance. If Mr Kennedy failed to appreciate the significance
of that inquiry, nevertheless Mr Kennedy had no right to assume that Mr Pampellonne
would understand the relevance of information contained in or omitted from the
Pinnock brochure which Mr Kennedy handed over in order to assist Mr Pampellonne.
The trial judge appears to have held that there was no special relationship and no duty
of care at all, because Mr Kennedy only gave information and, of the two relevant
interviews, the second took only half an hour. While agreeing that the Court of Appeal
went too far if they meant that the trust company was bound to make further investiga-
tions into the financial position of the Pinnock group, we think that Mr Pampellonne’s
two visits to the manager, Mr Kennedy, were manifestly not merely casual or devoid of
serious business purpose. At the very least, Mr Pampellonne was seeking information.
In the words of Lord Reid in Hedley Byrne and Co Ltd v Heller and Partners Ltd,226 he was

225 Ibid, p 407.

226 [1963] 2 All ER 575.
118 Commonwealth Caribbean Tort Law

‘trusting the other to exercise such a degree of care as the circumstances required’. So,
on principles that we regard as settled, there must have been a duty of care, a duty not
onerous, for it entailed no more than what was reasonable in the circumstances.
Mr Kennedy’s duty of care could have been satisfied in a number of ways. He could
have offered to study the literature fully; make any necessary further inquiries and
advise Mr Pampellonne (no doubt for a fee); or he could have advised Mr Pampellonne
to take other professional advice. At the very least, Mr Kennedy could have warned
Mr Pampellonne that Mr Kennedy had inadequate information about Pinnock to enable
him to recommend the company as an investment and, without further investigation,
had no means of knowing whether Pinnock was a safe haven for Mr Pampellonne’s
money. In the circumstances, the duty naturally extended to warning Mr Pampellonne
of the shortcomings of the information passed on by Mr Kennedy about Pinnock.

It is submitted with respect that the view of the minority of the Privy Council on
Pampellonne is to be preferred. The distinction drawn by the majority between giving
advice and passing on information seems artificial in the circumstances, where a
‘naïve’ layman goes to his bank manager and asks him to recommend a suitable
deposit-taking company in which to invest. The minority view certainly seems more
consistent with the rationale of Hedley Byrne.
A more recent, and straightforward, application of the Hedley Byrne principle in
the Caribbean is Wiggan v Morrison.227 In this case, the plaintiffs, a Jamaican couple
who were residing in England but wished to return to live in Jamaica, decided to
purchase land with the intention of building a house thereon for their occupation. The
lot which they purchased was No 90, Greenwich Park, St Ann. Before starting to
build, they engaged the defendant, a qualified land surveyor, to survey the property
for the purpose of verifying its location. The defendant carried out a survey and
identified a particular lot as being ‘Lot 90’. Relying on the defendant’s representation,
the plaintiffs started construction of a house, but when the building was about 40%
completed, they discovered that they had been building on Lot 91, a neighbouring
property, which had been wrongly identified as Lot 90 by the defendant. The plain-
tiffs were obliged to demolish the building.
McIntosh J held that under the Hedley Byrne principle, the plaintiff had to show six
factors:
(a) that representations were made by the defendant;
(b) that a special relationship ‘equivalent to contract’ existed between the parties, and
that the defendant held himself out in his profession or otherwise as being in a
position to give an opinion or advice on which reasonable persons would rely;
(c) that the defendant was aware that the plaintiff would rely on his representations;
(d) that the plaintiff did rely on those representations;
(e) that the representations were made negligently; and
(f) that, as a result, the plaintiff suffered loss.
Finding that all six factors were present in this case, McIntosh J held the defendant
liable for the losses incurred by the plaintiffs.

227 (2000) Supreme Court, Jamaica, No E 360 A of 1996 (unreported) [Carilaw JM 2000 SC 14].
 Chapter 4: Negligence 119

Other cases of liability for economic loss

Another important exception to the rule that compensation for pure economic loss is
not recoverable in tort arose in Ross v Caunters.228 In this case, the defendant solicitor
carelessly failed to warn or advise a testator, his client, that attestation of the will by
the spouse of a beneficiary would invalidate a bequest to the beneficiary. The plaintiff,
whose husband had attested the will, lost her bequest under the will and brought an
action in negligence against the solicitor. This was a case in which the defendant’s
negligence had caused financial loss to a third party. Megarry VC held that the plaintiff
was entitled to recover the value of the lost bequest, not under the Hedley Byrne
principle, because the plaintiff had not relied on any advice from the solicitor, but
under Donoghue v Stevenson.229
The rationale for the decision was that the solicitor should be held liable for
economic loss caused by his negligence when he could reasonably foresee that the
specific plaintiff, as opposed to a general class of persons, would suffer economic loss
as a result of such negligence. In Ross, there was a close relationship of proximity
between the defendant and the plaintiff, in that the plaintiff, as an intended bene-
ficiary under the will, must have been in the defendant’s direct contemplation as the
specific person likely to be affected by his negligence. In such a case, it is easier for the
court to find the existence of a duty of care because there is no danger of liability in an
indeterminate amount . . . to an indeterminate class’230 of persons.
The reasoning, though not the result, in Ross v Caunters was later disapproved by
the House of Lords in the landmark case of White v Jones.231 In this case, following a
family dispute, a testator had made a will disinheriting his daughters. He later
became reconciled with them and instructed his solicitors to prepare a new will in
which they were beneficiaries, but, owing to the negligence of his solicitor, the new
will was not prepared in time before the testator died. The result was that, on the
testator’s death, the original will took effect and the daughters received nothing. The
House of Lords held, by a majority, that the daughters had a good cause of action in
negligence against the solicitor. Lord Goff’s view was that the beneficiaries’ claim was
based on the Hedley Byrne principle, not on Donoghue v Stevenson as Megarry VC had
stated in Ross v Caunters, in the sense that the ‘assumption of responsibility by the
solicitor towards his client should be held in law to extend to the intended beneficiary
who (as the solicitor can reasonably foresee) may, as a result of the solicitor’s neg-
ligence, be deprived of his intended legacy in circumstances in which neither the
testator nor his estate will have a remedy against the solicitor’,232 and this satisfied a
strong ‘impulse for practical justice’.233
It is submitted with respect that the reasoning of Lord Goff fails to address the
objection which Megarry VC clearly expressed in Ross v Caunters, namely that it is not
correct to base cases such as these on Hedley Byrne, on account of the absence of any
reliance by the plaintiff beneficiary on advice given by the defendant solicitor. How-
ever, the reasoning of Lord Browne-Wilkinson in White seems more persuasive. In his

228 [1980] Ch 297. See also Ministry of Housing and Local Government v Sharp [1970] 2 QB 223.
229 [1932] AC 562. On the meaning of ‘reliance’, see Stapleton, J (1991) 107 LQR 249.
230 Ultramares Corp v Touche (1931) 174 NE 441, per Cardozo.
231 [1995] 2 AC 207. See Haydon, A [1995] CLJ 238; Weir, T (1995) 111 LQR 357.
232 Ibid, p 262.
233 Ibid, p 260.
120 Commonwealth Caribbean Tort Law

view,234 ‘assumption of responsibility’ was actually derived from the much earlier
case of Nocton v Ashburton,235 which established that liability arose in equity from the
existence of a fiduciary relationship, and reliance was not necessary in the case of a
special relationship of the fiduciary type. In White v Jones there was no fiduciary
relationship between plaintiff and defendant, and it was not a case of careless mis-
statement; however, there was no reason, according to his Lordship, why the law
should not recognise new categories of ‘special relationships’ and no reason why
reliance should always be required: ‘What is important is not that A knows that B is
consciously relying on A, but that A knows that B’s economic well being is dependent
upon A’s careful conduct of B’s affairs.’236
The ‘assumption of responsibility’ principle was recently applied by the Court of
Appeal of Trinidad and Tobago in Deosaran v Barrow.237 In this case, the claimants had
entered into a contract with the defendant, a developer, to purchase a parcel of land at
Diego Martin owned by the defendant, together with a dwelling house which the
defendant promised to build on the land, and did build, according to the defendant’s
design and specifications and with his materials. Some time later, cracks appeared in
the building, and the claimant eventually resold the land and building at a reduced
value. The claimant brought an action in negligence to recover the cost of remedial
work as well as the pecuniary loss sustained on the resale of the property. The claimant
alleged, inter alia, that the defects in the building were attributable to the defendant’s
negligent failure to carry out ‘bores and digs’ on the land before laying the foundation.
Warner JA, delivering the judgment of the Court of Appeal, referred to Murphy v
Brentwood DC,238 where the House of Lords had held that no action in negligence
could be brought by an owner-occupier of a defective building against persons who
were concerned with its construction (including local authorities who had approved
the plans), unless the defects in the building had caused personal injury or damage to
property other than the building itself. Warner JA went on to note, however, that in
the later case of Henderson v Merrett Syndicates Ltd,239 it was settled that the ‘assump-
tion of responsibility’ principle enunciated in Hedley Byrne and Co Ltd v Heller and
Partners Ltd 240 was not confined to statements, but could apply to any assumption of
responsibility for the provision of services. The extended Hedley Byrne principle was
‘the rationalisation adopted by English law to provide a remedy for the recovery of
damages in respect of economic loss caused by the negligent performance of services,
and . . . once a case is identified as falling within the extended Hedley Byrne principle,
there is no need to embark on any further inquiry whether it is “fair, just and reason-
able” to impose liability for economic loss’. Warner JA further noted that in Invercargill
City Council v Hamlin,241 the Privy Council had upheld the decision of the New
Zealand Court of Appeal that a local authority owed a duty of care to a building
owner in respect of the inspection of foundations, and was liable for economic loss
caused by the building inspector’s negligence in approving defective foundations. It

234 Ibid, pp 270, 271.

235 [1914] AC 932.
236 Ibid, p 275.
237 (2004) Court of Appeal, Trinidad and Tobago, Civ App No 59 of 2002 (unreported).
238 [1990] 3 WLR 414.
239 [1995] 2 AC 145.
240 [1963] 2 All ER 575.
241 [1996] AC 624.
 Chapter 4: Negligence 121

was also significant that the Privy Council in Invercargill had taken cognizance of the
fact that in New Zealand there was no legislation corresponding to the Defective
Premises Act 1972, enacted in England in order to give statutory protection to home
owners, and ‘the court ought not to be deflected from developing the common law as
appropriate in its own setting’. That was the Privy Council’s rationale for refusing to
apply Murphy, and this rationale would be equally applicable in Trinidad and Tobago,
which also had no defective premises legislation.
Accordingly, since it was clear in the instant case that the defendant had under-
taken ‘all aspects of the work, from the ground up, and from start to completion’,
reliance by the claimants on the defendant’s assumption of responsibility had been
established, and the defendant was liable in damages for the losses sustained.
A Caribbean example of negligence of a solicitor causing loss to a third party is
Maharaj v Republic Bank Ltd.242 In this case, M (the plaintiff) wished to purchase a car
which was offered for sale for $45,000. M had only $27,000, so he approached the
defendant bank for a loan of $18,000. M supplied the bank with a certificate of regis-
tration of the car obtained from the vendor, R, which contained the name of R as
owner and the vehicle’s registration number. Unknown to M, R had himself obtained
a loan from another branch of the same bank when he purchased the car and a bill of
sale (bill of sale A) relating to the loan had been registered. At the time of the pro-
posed sale of the car to M, R had not completed repayment of his loan and bill of sale
A was still effective, but R did not divulge this fact to M. Before approving the loan to
M, the bank instructed a firm of solicitors, N & Co, to carry out a search in the
Registrar General’s Department for any incumbrances there might be on the car. N
& Co made a search but failed to discover the existence of bill of sale A. M obtained
the loan of $18,000 from the bank and a second bill of sale (bill of sale B) was regis-
tered in favour of the bank against the car. M later repaid the $18,000 to the bank, but
R never repaid the balance of his loan, and the bank sought to repossess the car on the
basis of bill of sale A.
Blackman J held that N & Co were liable in negligence both to the bank and to
M. He said:
I have come to the conclusion that the failure on the part of [N and Co] to discover the
first bill of sale was due to negligence on their part. It seems obvious that if a search was
made . . . the registered number of the car PAE 2350 would have been discovered and
such a discovery would certainly have put [N & Co] on enquiry. In Trinidad and
Tobago, two cars would not have the same registration number . . .
Did [N and Co] owe the plaintiff a duty of care in carrying out the search?
In Al-Kandari v JR Brown and Co,243 French J said (quoting Sir Robert Megarry VC in Ross
v Caunters 244):
A solicitor who is instructed by his client to carry out a transaction that will
confer a benefit on an identified third party owes a duty of care towards that
third party in carrying out that transaction, in that the third party is a person
within his direct contemplation as someone who is likely to be so closely and
directly affected by his acts or omissions that he can reasonably foresee that the
third party is likely to be injured by those acts or omissions.

242 (1987) High Court, Trinidad and Tobago, No 10 of 1983 (unreported) [Carilaw TT 1987
HC 188].
243 [1987] 2 WLR 469, p 477.
244 [1980] Ch 297, pp 322, 323.
122 Commonwealth Caribbean Tort Law

[N & Co] knew, or ought to have known, that they were having a search done in
circumstances in which Deonarine Maharaj, the plaintiff, could have been affected by
their acts or omissions. I have reached this conclusion because it is clear [from the
certificate of registration] that the current owner of the car was Behmal Ramgolam. A
letter from N & Co to the bank reads:
Re: Searches one motor vehicle registration No PAE 2350 – Deonarine Maharaj-
Behmal Ramgolam.
This letter contains the names Behmal Ramgolam, the owner, and Deonarine Maharaj,
the plaintiff. It can obviously be inferred from these facts that [N & Co] would have
known or ought to have known that Mr Maharaj was a person who might be affected by
the search. [N & Co] should, therefore, have had the plaintiff in their contemplation as a
person who could be adversely affected by their acts or omissions. Therefore, [N & Co]
owed the plaintiff a duty of care. There was, in my view, a breach of that duty of care.
[N & Co] are therefore liable for any damage sustained by their omission to discover the
true position in respect of the car. In addition, [N & Co] also owed a duty of care in the
performance of their functions, that is, in carrying out a search, to the defendant bank,
and would therefore be liable to the bank in failing in that duty.

LIABILITY FOR PSYCHIATRIC INJURY

Another special area of liability in negligence concerns what is known as ‘nervous

shock’ or ‘psychiatric injury’. Although, in medical terms, psychiatric injury may be
considered an aspect of personal injury, in tort law it has always been treated differ-
ently from bodily injury, and the courts have traditionally been reluctant to accept it
as a type of damage for which the law of tort can provide compensation, particularly
where shock is caused to A (a ‘secondary victim’) by harm or the threat of harm to B.
It is clear, first of all, that there is a parallel between psychiatric damage which is
consequent upon bodily injury and economic loss consequent on physical damage:
both types of consequential damage are compensable in tort, and in both cases
recovery for the consequential damage is a question of causation and remoteness.
However, the area of difficulty concerns what may be called ‘pure psychiatric dam-
age’, where the claimant has not suffered any physical injuries. The reluctance of the
courts to countenance a duty of care to avoid causing pure psychiatric damage was
based partly on judicial scepticism about the genuineness of such claims and perhaps
even about psychiatry as a medical discipline, and partly on the fear that the enter-
taining of genuine claims would open the floodgates of litigation.
Nonetheless, despite the misgivings of the courts, the ambit of liability for causing
psychiatric injury has been gradually extended. First, it was accepted that a person (as
a ‘primary victim’) could recover damages for shock caused by fear for his own safety
caused by the defendant’s negligence, as where a barmaid in a public house suffered
shock and a consequent miscarriage when a van was negligently driven into the
bar.245 Secondly, it became accepted that a person (as a ‘secondary victim’) could
recover for shock suffered as a result of fear for the safety of another person,246 but only in
restricted circumstances. In fact, most of the difficulties surrounding recovery of
damages for psychiatric injury concern the secondary victim, that is a person who is

245 Dulieu v White and Sons [1901] 2 KB 669.

246 Hambrook v Stokes Bros [1925] 1 KB 141.
 Chapter 4: Negligence 123

not himself physically injured or threatened with injury, but who has suffered a
psychological reaction after witnessing the scene of an accident where another person
(especially a near relative) has been killed or injured or put in jeopardy as a result of
the defendant’s negligence.
In McLoughlin v O’Brian, Lord Wilberforce summarised the current state of the
law thus:247
(1) While damages cannot be awarded at common law for grief and sorrow caused by
the defendant’s negligence, a claim for damages for nervous shock caused by
negligence can be made without the necessity of showing direct impact or fear of
immediate personal injury to oneself.
(2) A claimant may recover damages for nervous shock brought on by an injury caused
not to himself/herself but to a near relative, or by the fear of such injury.
(3) A claimant cannot recover damages for nervous shock where the injury to the near
relative occurred out of sight and earshot of the claimant.
(4) By way of exception to (3), a claimant can recover damages for nervous shock where
he/she is not present at the scene of an accident involving her near relatives, but
comes upon its immediate aftermath.

In Alcock v Chief Constable of South Yorkshire,248 the House of Lords established that
since shock is capable of affecting a wide range of people, it is necessary for the law to
place some limitation on the range of admissible claims, and certain ‘control mechan-
isms’ were needed. Accordingly, to establish liability, reasonable foreseeability and
medical proof of causation are not sufficient and the court must also take into account
the following elements: (i) the class of persons whose claims should be recognised;
(ii) the proximity of those persons to the accident; and (iii) the means by which the
shock is caused.

(i) The class of persons whose claims should be recognised

According to Lord Keith in Alcock,249 it would not be desirable to lay down any
arbitrary list of relationships, such as parent and child or husband and wife, which
would qualify a secondary victim to bring a claim for damages for nervous shock, for
‘the kinds of relationships which may involve close ties of love and affection are
numerous, and it is the existence of such ties which leads to mental disturbance when
the loved one suffers a catastrophe. They may be present in family relationships or
those of close friendship.’ The question, therefore, in each case is whether there was
in fact a sufficiently close relationship of love and affection between the injured or
endangered person and the secondary victim. Such relationship will be presumed to
exist as between near relations such as parent and child, grandparent and grandchild,
husband and wife, and even fiancé and fiancée, but the claims of more distant rela-
tives will be examined with circumspection for evidence of such close relationship.

247 [1982] 2 All ER 298, HL, pp 301, 302.

248 [1991] 4 All ER 907.
249 Ibid, p 914.
124 Commonwealth Caribbean Tort Law

(ii) Sufficient proximity of time and space

The second element which is required is that the secondary victim must have been at
or sufficiently close to the scene of the accident. This requirement was extended,
however, in McLoughlin,250 to cover the ‘immediate aftermath’. In that case, the claim-
ant’s young daughter was killed and her husband and her other children seriously
injured in a road accident caused by the defendant’s negligence. At the time of the
crash, the claimant was at home, two miles away. An hour later, she was informed of
the accident by a friend, who drove her to the hospital. There she saw the injured
members of her family in circumstances which were ‘distressing in the extreme and
capable of producing an effect going well beyond that of grief and sorrow’.
In Alcock, the House of Lords expressly adopted Lord Wilberforce’s proximity test.
It was emphasised that ‘shock in the context of this cause of action involves the
sudden appreciation by sight or sound of a horrifying event, which violently agitates
the mind’,251 and ‘in every case the underlying and essential postulate is a relationship
of proximity between the claimant and the defendant . . . The necessary element is
furnished, at least in part, by both physical and temporal propinquity and also by the
sudden and direct impression on the claimant’s mind of actually witnessing the event
or its immediate aftermath.’252

(iii) The means by which the injury was caused

There is clearly an overlap between this and the requirement of proximity, since what
is required here is that the claimant must have seen or heard the accident with his own
unaided senses. Notification by third parties, such as through an acquaintance or
from a newspaper or radio broadcast does not suffice, though the House of Lords in
Alcock did not rule out entirely the possibility that there might be liability where the
shock is caused by ‘live’ TV transmission of the incident.253 In Alcock, the TV transmis-
sion showed spectators in a football stadium being progressively crushed as the
crowd pushed its way into a confined space from which there was no escape, but the
broadcast did not show the suffering of identifiable individuals, and so those watch-
ing the broadcast, who feared for the fate of their loved ones believed to be present in
the crowd, had no claim.

It seems that claims for damages for psychiatric injury are extremely rare in the
Caribbean and only two cases, both actions involving negligence by hospitals, have so
far come to light. In the first of these, Wilchombe v Princess Margaret Hospital,254 the
defendant admitted that the death of the claimants’ baby had been caused by its
negligence; however, it denied responsibility for the clinical depression and panic
attacks suffered by the claimants after they arrived at the hospital for the mother to
breast feed the baby, only to see tubes leading into the baby’s body and medical
personnel attempting to resuscitate her, and to learn shortly afterwards that the infant
had died.

250 [1982] 2 All ER 298, HL.

251 [1991] 4 All ER 907, p 918, per Lord Ackner.
252 Ibid, p 930, per Lord Oliver.
253 Ibid, p 921, per Lord Ackner.
254 (2002) Supreme Court, The Bahamas, No 1309 of 1996 (unreported) [Carilaw BS 2002 SC 25].
 Chapter 4: Negligence 125

Small J, in the Supreme Court of The Bahamas, held the hospital authorities liable
for the psychiatric injury. He said:
I am satisfied that the hospital and its servants ought reasonably to have foreseen that
the exposure of the baby to an acinetobacter germ was likely to lead to its injury and
death, especially given the circumstances of its birth with the umbilical cord around its
neck. The hospital owed the plaintiffs a duty of care to shield them from the experience
of witnessing medical procedures on their baby that might cause them distress. I am
also satisfied that the hospital could have foreseen the likelihood of nervous shock or
psychiatric injury to the plaintiffs, especially in circumstances where they had not told
the plaintiffs the nature of the crisis that existed.

It seems, however, that the decision in Wilchombe can be justified only on the ground
that the claimants witnessed the death of their child (such death being caused by the
negligence of the hospital). The mere sight of tubes leading into the baby’s body and
attempts to resuscitate her would not foreseeably cause nervous shock, as such pro-
cedures are common in hospitals, even where there has been no negligence. In any
event, it seems that, on policy grounds, the courts may be reluctant to allow claims for
damages against medical institutions by ‘secondary victims’ who suffer nervous
shock through witnessing the effects of negligent treatment of patients, as this would
open the floodgates of litigation and might lead to hospitals adopting an overly
defensive posture towards the near relations of patients.
In the second Caribbean case, Alleyne v AG,255 the plaintiff claimed that her baby,
who had died in hospital without any negligence on anyone’s part, had later been
mistakenly and negligently incinerated by the hospital staff, and that this had caused
her to suffer post-traumatic stress disorder. Reifer J, after pointing out that a cross-
section of the decided cases showed that the law in this area was in a state of devel-
opment, found that the causal link between the plaintiff’s psychiatric illness and the
defendant’s negligence was deficient, as there was ‘extreme difficulty on the evidence
in accepting the submission of counsel for the plaintiff that her post-traumatic stress
disorder is a direct result of the burning of the baby and not as a result of the death of
the baby’. In the view of Reifer J, the plaintiff had failed to show that there was a
‘situation in which it was reasonably foreseeable that a person of reasonable robust-
ness and fortitude would be likely to suffer psychiatric injury’. Further, the case did
not satisfy the ‘control mechanism’ criteria laid down in Alcock. The plaintiff’s claim
therefore failed.

255 (2005) High Court, Barbados, No 1144 of 1998 (unreported) [Carilaw BB 2005 HC 10].
 CHAPTER 5

OCCUPIERS’ LIABILITY

In Barbados and Jamaica, the liability of occupiers of premises to lawful visitors is

governed by the respective Occupiers’ Liability Acts (OLAs).1 In other Commonwealth
Caribbean jurisdictions, such as The Bahamas and Trinidad and Tobago, the liability
of occupiers is governed by common law principles.

THE OCCUPIERS’ LIABILITY ACTS

Both the Barbadian and the Jamaican statutes are closely modelled on the English
OLA 1957. Under the Acts, ‘an occupier of premises owes the same duty, the common
duty of care, to all his lawful visitors, except in so far as he is free to and does extend,
restrict, modify, or exclude his duty to any visitor by agreement or otherwise’: s 4(1) of
the OLA (Barbados), Cap 208; s 3(1) of the OLA (Jamaica).
It has been suggested that the differences between an action in negligence and one
under the Acts are minimal2 and, in some cases, plaintiffs have succeeded in ordinary
negligence where the facts appeared to fall more naturally within the Acts.3
The duty under the Acts is a duty to take such care as in all the circumstances of
the case is reasonable to see that the visitor will be reasonably safe in using the
premises for the purposes for which he is invited or permitted by the occupier to be
there: s 4(2) of the OLA (Barbados); s 3(2) of the OLA (Jamaica). Thus, there was a
breach of the duty where, for example, a slippery substance left on a shop floor caused
a customer to slip and fall, there being no proper system for removing spillages and
no warning notices;4 and where the management of a sports club failed to prevent
spectators from sitting on a dangerous wall, with the result that a visitor fell off and
sustained injuries from which he died.5

The occupier

The occupier may be defined as a person having possession or control of the pre-
mises. ‘The foundation of occupiers’ liability is occupational control, that is to say,
control associated with and arising from presence in and use of or activity in the
premises.’6 The owner of the property, if in possession, will be deemed to be the
occupier; but if he is out of possession, for example, where the property is let to a
tenant, then the tenant will be the occupier for the purposes of the statutes, not the
owner.

1 See also Occupiers’ and Highway Authorities’ Liability Act 1978 (Bermuda).
2 Jones, Textbook on Torts, 6th edn, 1998, London: Blackstone, p 265.
3 See, eg, Ward v Tesco Stores Ltd [1976] 1 All ER 219.
4 Gibbs v Cave Shepherd and Co Ltd (1998) High Court, Barbados, No 35 of 1989 (unreported) [Carilaw
BB 1998 HC 25]; cf Ward v Tesco Stores Ltd [1976] 1 All ER 219.
5 Morris v National Sports Club (1993) Court of Appeal, Bermuda, Civ App No 25 of 1992
(unreported).
6 Wheat v Lacon and Co Ltd [1966] AC 552, p 589, per Lord Pearson.
 Chapter 5: Occupiers’ Liability 127

It is possible for there to be more than one ‘occupier’ at the same time, as for
example where an occupier engages a contractor to do repairs or building work,7 in
which case the contractor may be a co-occupier as well as a visitor.

Premises

The term ‘premises’ is defined very widely to include not only land and buildings
thereon, but also any fixed or movable structure, including any vessel, vehicle or
aircraft: s 2(3) of the OLA ( Jamaica); ss 2 and 3(3) of the OLA (Barbados).8

Visitors

The common duty of care is owed to all visitors to the premises, and visitors are those
persons who would, at common law, have been treated as invitees or licensees. Thus,
in effect, any person who enters lawfully, that is, not as a trespasser, will be a visitor
for the purposes of the statutes. Trespassers are not protected by the statutes, and
special rules apply to them.9
Where the plaintiff enters under the express permission or invitation of the occu-
pier, there is no difficulty in holding that he is a visitor. Problems sometimes arise,
however, in determining whether a plaintiff had implied permission to enter. It is well
established that any person who enters the premises in order to communicate with
the occupier will be regarded as having implied permission to enter, unless he knows
or ought to know that his entry is forbidden,10 but otherwise it seems that each case
must be decided on its own facts, and there are no firm rules for determining the
question, except that:
(a) the burden of proving implied permission rests on the plaintiff; and
(b) the plaintiff must show that it can be inferred from the occupier’s conduct that he
permitted entry. It is not sufficient to show that he merely tolerated it,11 since
knowledge of an intrusion does not constitute consent to it and ‘failure to turn
one’s premises into a fortress does not confer a licence on anyone who may seek to
take advantage of one’s inaction’.12

7 As in Fisher v Atkinson (2000) Supreme Court, Jamaica, No CL 1993/F-202 (unreported)

[Carilaw JM 2000 SC 35], where the work site on college premises was fenced around by the
contractor, and the college’s representatives gave directions concerning the conduct of the
work, so that the college and the contractor were both ‘occupiers’ for the purposes of the Act.
In such circumstances, each occupier owes independently of the other the statutory duty of
care under the Acts: Rose Hall Development Ltd v Robinson (1984) 21 JLR 76, p 92, per Campbell
JA; Hanna v University of the West Indies (2004) Supreme Court, Jamaica, No CL 2000/H-104
(unreported) [Carilaw JM 2004 SC 89], per Daye J.
8 In Watson v Arawak Cement Co Ltd (1998) High Court, Barbados, No 958 of 1990 (unreported)
[Carilaw BB 1998 HC 30], Chase J held that the owners of a ship were liable as occupiers to a
visitor who was injured when he fell from an unlit walkway inside the ship.
9 See below, pp 136–39.
10 Robson v Hallett [1967] 2 QB 939.
11 Edwards v Rly Executive [1952] AC 737.
12 Winfield and Jolowicz, Tort, 15th edn, 1998, London: Sweet & Maxwell, p 295.
128 Commonwealth Caribbean Tort Law

Common duty of care

The common duty of care owed to all visitors is defined as ‘a duty to take such care as in
all the circumstances of the case is reasonable to see that the visitor will be reasonably
safe in using the premises for the purposes for which he is invited or permitted by the
occupier to be there’: s 4(2) of the OLA (Barbados); s 3(2) of the OLA ( Jamaica). It is a
question of fact in each case as to whether the occupier has taken reasonable safety
precautions. For example, the occupier of a dwelling house should ensure that ceil-
ings and stairs are in an adequate state of repair and that electrical fittings, such as
light switches, are in a safe condition; the occupier of a hotel should ensure that
bathrooms are fitted with non-skid bathtubs, including handrails;13 and the occupier
of a ship will be in breach of his duty of care if he fails to provide adequate lighting for
walkways inside the vessel.14 In Whonder v Courts Jamaica Ltd,15 the claimant entered
the defendants’ store to make a hire-purchase payment. She fell down some steps,
which were not visible to her before she fell, and suffered injury. There was no sign
indicating where the steps were, and no railing. McDonald J (Ag) said that the ques-
tion was whether the defendants were in breach of their duty of care owed under
section 3 of the Act ‘by failing to take reasonable care to prevent injury to the claimant,
and whether this breach caused the claimant injury and loss’. In determining whether
what was done or not done by the occupier was in fact reasonable, the court could
consider various matters such as the obvious nature of the danger, whether there were
any warnings, lighting or fencing, the age of the visitor, the purpose of the visit, the
conduct to be expected of the visitor, and the state of knowledge of the occupier. It
was held that, in the circumstances, the defendants had failed to take reasonable care
and were liable.
On the other hand, it was emphasised in another recent Jamaican case, Hanna v
University of the West Indies,16 that, as Campbell JA (Ag) had stated in the Court of
Appeal in Rose Hall Development v Robinson,17 an occupier is only liable for (i) the
dangerous physical condition of the premises, ie the static condition, and (ii) dangers
arising from things done or omitted to be done on the premises by the occupier him-
self or by others for whose conduct he is under a common law liability. Accordingly,
in Hanna, the University was held not liable under the Act where an unknown gun-
man entered the Mona Campus in broad daylight and shot and wounded a contractor
who was there supervising building work. As Daye J explained:
Mr Hanna could be classified as a visitor within the terms of the statute while the
University would be classified as the occupier. The shooting of Mr Hanna and the
injuries he sustained cannot firstly be regarded as arising from the dangerous condition
of the University premises. The University had private security and police security on
its premises. It undertook to oversee security at the construction site. These were
reasonable steps to ensure that Mr Hanna was safe in using the premises for construc-
tion. In my view, the University of the West Indies had discharged its common duty of
care to Mr Hanna and was not in breach of its statutory duty.

13 Thompson v Renmote Mews Ltd (2006) Supreme Court, Jamaica, No CLT-138 of 2001
(unreported) [Carilaw JM 2006 SC 115].
14 Watson v Arawak Cement Co Ltd (1998) High Court, Barbados, No 958 of 1990 (unreported)
[Carilaw BB 1998 HC 30].
15 (2001) Supreme Court, Jamaica, No CLW 421 of 1995 (unreported).
16 (2004) Supreme Court, Jamaica, No CL 2000/H-104 (unreported) [Carilaw JM 2004 SC 89].
17 (1984) 21 JLR 76 (Court of Appeal, Jamaica).
 Chapter 5: Occupiers’ Liability 129

The risk or potential risk of the construction site being invaded by rival gangs
from the adjacent communities was not the type of danger that the occupier had a
duty to guard against under the Act.
The Jamaican statute also gives some guidance as to the standards of care required
in two circumstances, by providing that an occupier:
(a) must be prepared for child visitors to be less careful than adults; and
(b) is entitled to expect that a person, in the exercise of his calling, will appreciate and
guard against special risks ordinarily incident to that calling: s 3(3) of the OLA
( Jamaica).
With respect to (a), the occupier must have regard to the fact that what may not be a
danger to an adult might well be a danger to a child. For instance, children might be
tempted to eat brightly coloured but poisonous berries in a garden, or to play with a
disused vehicle in a yard; and if a child is injured thereby, the occupier may be liable
for failing to remove the objects, or at least for failing to take reasonable precautions to
prevent children from tampering with them.
With respect to (b), the occupier is entitled to assume that a skilled, professional
worker doing a job on the premises, such as a carpenter, electrician or window
cleaner, will exercise sufficient care for his own safety when carrying out his work and
will guard against the dangers normally associated with work of that kind.18
The common duty of care is owed only where the visitor is using the premises for
the purposes for which he is invited or permitted to be there. Thus, if he is injured
whilst using the place in an unauthorised way or for an unauthorised purpose, the
occupier will not be liable.19

Independent contractors
Where the injury to the visitor is caused by the faulty execution of any work of
construction, maintenance or repair by an independent contractor employed by the
occupier, the latter will not be liable if:
(a) he acted reasonably in entrusting the work to the contractor; and
(b) he took reasonable steps to satisfy himself that the contractor was competent and
that the work had been properly done: s 4(6) of the OLA (Barbados); s 3(6) of the
OLA ( Jamaica).20

DEFENCES
The defences of volenti non fit injuria and contributory negligence (see below, Chapter
13) are available to the occupier under s 4(7) and (8) of the OLA (Barbados) and s 3(7)
and (8) of the OLA (Jamaica).

18 See, however, Salmon v Seafarer Restaurants Ltd [1983] 1 WLR 1264 and Ogwo v Taylor [1988] 1
AC 431 and 443.
19 See also Allerup v Paynter (1993) Court of Appeal, Bermuda, Civ App No 4 of 1993
(unreported) [Carilaw BM 1993 CA 19].
20 But where the occupier knows that an unsafe system of work is being used by the contractor, it
may be reasonable to require the occupier to take steps to ensure that the system is made safe:
Ferguson v Walsh [1987] 3 All ER 777, p 783, per Lord Keith; Fisher v Atkinson (2000) Supreme
Court, Jamaica, No CL 1993/F-202 (unreported) [Carilaw JM 2000 SC 35], per Clarke J.
130 Commonwealth Caribbean Tort Law

EXCLUDING LIABILITY

The occupier may restrict or exclude altogether his duty of care ‘by agreement or
otherwise’ with the visitor. Thus, the occupier may escape liability by, for example,
posting a notice at the entrance to the premises to the effect that every person enters at
his own risk and should have no claim against the occupier for any damage or injury,
howsoever caused: s 4(1) of the OLA (Barbados); s 3(1) of the OLA ( Jamaica).

WARNINGS

Merely to give a warning of a danger to a visitor will not absolve the occupier from
liability unless in the circumstances the warning was sufficient to enable the visitor to
be reasonably safe in using the premises: s 4(5) of the OLA (Barbados); s 3(5) of the
OLA ( Jamaica).
This provision is illustrated by Weekes v AG,21 where the plaintiff slipped and
fell on a wet floor as she walked towards the check-in counter at Grantley Adams
International Airport. She claimed that the defendant was liable for breach of its duty
under s 4 of the Occupiers’ Liability Act, Cap 208 (Laws of Barbados). The defendant
alleged that there were adequate notices warning of the wet floor and that the acci-
dent was caused by the negligence of the plaintiff in failing to observe the notices and
to take care for her own safety.
Rocheford J held that the warning given by the defendant was sufficient to enable
the plaintiff to be reasonably safe within s 4(5) of the Act, and the defendant was not
liable. He said:22
As I have found that the damage was caused to the plaintiff by a danger of which she
had been warned, the provisions of s 4(5) are crucial to the determination of this case.
[Section 4(5) provides:
Where damage is caused to a visitor by a danger of which he had been warned
by the occupier, the warning is not to be treated without more as absolving the
occupier from liability unless in all the circumstances it was enough to enable
the visitor to be reasonably safe.]
The question to be answered is: ‘Was the warning given to the plaintiff enough, in all the
circumstances, to enable the plaintiff to be reasonably safe?’ . . . The plaintiff admitted
seeing two [‘Caution – Wet Floor’] signs. The warning was not a verbal warning (see
Bishop v JS Starnes and Son Ltd);23 the signs were not in unsuitable places (see Coupland v
Eagle Bros);24 nor in too low a position to be seen (see Steward v Routhier) 25 . . . [The
plaintiff] saw the janitors and the scrubbing machine and she saw the floor being
scrubbed . . . There were more than 12 signs placed around the boundary of the area
being scrubbed . . . The plaintiff ought to have seen these signs. I must answer the
question posed in the affirmative. The warning given by the defendant to the plaintiff
was enough, in all the circumstances, to enable the plaintiff to be reasonably safe. The
defendant had done all that a reasonable occupier could be expected to do. He had

21 (1986) 21 Barb LR 249 (High Court, Barbados).

22 Ibid, p 253.
23 [1971] 1 Lloyd’s Rep 162.
24 (1969) 210 EG 581.
25 (1974) 45 DLR (3d) 383.
 Chapter 5: Occupiers’ Liability 131

thereby discharged the duty imposed on him by s 4 of the Act. The sole cause of the
accident was a failure on the part of the plaintiff to do what was reasonable to safeguard
herself.

COMMON LAW LIABILITY

Liability to invitees

At common law, the occupier of premises owes an invitee a duty to exercise reason-
able care to prevent damage to the invitee from an unusual danger known to the
occupier or of which the occupier ought to have known.
An ‘invitee’ was defined in the leading case of Indermaur v Dames as a person who
enters premises ‘upon business which concerns the occupier, and upon his invitation,
express or implied’,26 the commonest case being that of a customer in a shop. An
‘unusual danger’ is one which is ‘not usually found in carrying out the task or fulfil-
ling the function which the invitee has in hand’.27 Whether a danger is unusual or
not depends not only on the character of the danger itself, but also on ‘the nature
of the premises on which it is found and the range of experience with which the
invitee may fairly be credited’.28 Thus, for example, a defective ceiling in a shop
might be an unusual danger for a customer, but not for a pest control expert; and an
unrailed gangplank on a ship might be an unusual danger for a passenger, but not
for a seaman; and a quantity of white powder on the floor of a bar where pool was
played was held not to be an unusual danger to a pool player who had visited the
bar on a number of previous occasions, and who was aware of the conditions existing
in the bar and of the fact that it was customary for pool players to use powder on
their hands.29
As Sawyer J pointed out in the Bahamian case of Cox v Chan,30 the occupier’s duty
is ‘not an absolute duty to prevent any damage to the plaintiff, but is a lesser one of
using reasonable care to prevent damage to the plaintiff from an unusual danger of
which the defendant knew or ought to have known, and of which the plaintiff did not
know or of which he could not have been aware’. In a case where it was alleged that a
ramp giving access to a shop was an unusual danger, the shop owner’s duty was ‘to
ensure that the plaintiff was aware of that danger either by posting a notice or taking
other reasonable steps to let him know of its existence or by taking reasonable steps to
prevent him from falling on the ramp’.31

26 (1866) LR 1 CP 274, p 288.

27 London Graving Dock v Horton [1951] AC 737, p 745.
28 Fleming, The Law of Torts, 6th edn, Sydney: LBC Information Services, p 433. In Rambaran v Port
Authority of Trinidad and Tobago (1991) High Court, Trinidad and Tobago, No 1040 of 1985
(unreported) [Carilaw TT 1991 HC 11], Deyalsingh J held that a crane was a necessary piece of
equipment in a container terminal and was not an unusual danger to a truck driver who was
delivering containers.
29 Ferguson v Allen (2002) Supreme Court, The Bahamas, No FP/224 of 1999 (unreported)
[Carilaw BS 2002 SC 24], per Mohammed J. See also Smith v Smith (2005) High Court, British
Virgin Islands, No HCV2004/0018 (unreported) [Carilaw VG 2005 HC 9], per Rawlins J.
30 (1991) Supreme Court, The Bahamas, No 755 of 1988 (unreported) [Carilaw BS 1991 SC 66].
31 Cox v Chan (1991) Supreme Court, The Bahamas, No 755 of 1988 (unreported) [Carilaw BS 1991
SC 66]. See also Berry v Golf Club Apartments Ltd (1999) Supreme Court, The Bahamas, No FP
186 of 1994 (unreported) [Carilaw BS 1999 SC 40].
132 Commonwealth Caribbean Tort Law

In the Trinidadian case of Kirpalani’s Ltd v Hoyte,32 the plaintiff slipped and fell
whilst shopping in the defendants’ supermarket. It was alleged that the cause of the
fall was a substance called ‘Sweep Clean’, which the defendants admitted to having
used on the floor earlier in the day. Des Iles J held33 the defendants liable because the
‘Sweep Clean’ was an unusual danger, as evidenced by the plaintiff’s fall; however,
the Court of Appeal (Hyatali CJ and Corbin JA, Rees JA dissenting)34 overruled the
trial judge on the ground that it was not proved that the ‘Sweep Clean’ was slippery,
that it had rendered the premises unsafe or that it had caused the plaintiff to fall. It
could not be said that the ‘Sweep Clean’ was an unusual danger merely because the
plaintiff had fallen; nor was this a case where negligence could be presumed or
inferred under the res ipsa loquitur maxim, since the substance was not in the same
category as oil, yoghurt or cream, which are inherently slippery.
Two further examples of the application of the rule in Indermaur v Dames in the
Caribbean are Harripersad v Mini Max Ltd and McSweeney v Super Value Food Store Ltd.
In Harripersad v Mini Max Ltd 35 the plaintiff was shopping in the defendants’
supermarket when she slipped and fell to the ground, injuring her knee. It was
proved that the plaintiff had fallen in a part of the store where water, dripping from
an air conditioner, had collected on the floor. The defendants had placed sheets of
newspaper on the floor to absorb the water but, after some time, the paper became
saturated and the water continued to collect there. The floor itself was made of ter-
razzo tiles, which were known to have a very smooth surface, and the presence of the
water made it ‘slippery and potentially dangerous to customers’. It was held that the
plaintiff’s fall was caused by the wet floor, which was an unusual danger known to
the defendants, who were therefore liable in negligence. Maharaj J said:
The question of whether an existing state of affairs rendering premises dangerous is to
be considered unusual or not must depend upon the particular facts and circumstances
of each case, including the actual nature and degree of the danger involved, whether the
type of risk is generally known to be associated with the particular type of premises, or
whether the dangerous condition of the premises was open for all to see, and so could
have been avoided with the exercise of reasonable care on the part of the injured party,
and other matters of that sort, and that finally this question is to be answered on the
facts of the case and is not, therefore, one of law as counsel contends . . .
In my judgment, the condition of the floor . . . amounted to what is called in this branch
of the law an unusual danger . . . I am of the view that the presence of the water on the
floor was not easily visible, for obvious reasons, and in fact the plaintiff did not see it
and was not aware of its presence. Even so, I am not persuaded that, had the plaintiff
been aware of the water on the floor, the position would have been any different. Let it
be supposed that there was nowhere else for the plaintiff to pass except over that

32 (1972) 19 WIR 310. See also Wotherspoon v Airports Authority of Trinidad and Tobago (1999) High
Court, Trinidad and Tobago, No CV 2533 of 1995 (unreported).
33 Hoyte v Kirpalani’s Ltd (1972) 19 WIR 310.
34 (1977) Court of Appeal, Trinidad and Tobago, Civ App No 77 of 1971 (unreported) [Carilaw
TT 1977 CA 16].
35 (1978) High Court, Trinidad and Tobago, No 654 of 1973 (unreported) [Carilaw TT 1978 HC
102]. But in Carr v Telecommunications Services of Trinidad and Tobago (2004) High Court, Trini-
dad and Tobago, No 1889 of 2000 (unreported) [Carilaw TT 2004 HC 56], where a customer
slipped and fell on a stairway in the defendants’ premises, Smith J pointed out that in Trinidad
and Tobago rainfall was ‘a common occurrence of life’ and the presence of rainwater on an
external landing or stairway was not, in the circumstances of the case, an unusual danger.
Further, the defendants had installed high grade non-skid tiles on the premises and there had
been no other reports of skidding or falling on the stairway or landing.
 Chapter 5: Occupiers’ Liability 133

slippery portion of the floor; would it have availed the defendants that she knew of the
slippery condition of the floor, or had notice of its condition? I do not think so.
The danger with which the plaintiff was there confronted that morning was not only
unusual, it was covert and insidious and one of which the defendants were fully
aware, or at least had anticipated and taken steps to avoid, albeit inadequate steps. The
least that could be said is that the defendants ought to have known of the dangerous
condition of the shop’s floor and should have taken the necessary steps to see that
no one came to harm because of it . . . The defendants showed scant regard indeed
for the safety of their customers in the steps they took to prevent such a situation
developing . . .
In my opinion, the facts of Kirpalani’s Ltd v Hoyte 36 are distinguishable from those of
the present [case], the crucial difference being that the floor of the defendants’ premises
in the instant case became slippery and dangerous by reason of the presence of
the water thereon. This state of affairs amounted, in my view, to an unusual danger
which caused the plaintiff to slip and fall, and so renders the defendants liable for the
plaintiff’s injury.

In McSweeney v Super Value Food Store Ltd,37 the plaintiff slipped on some liquid and
fell whilst shopping at the defendant’s supermarket, sustaining injuries. She brought
an action for damages against the defendant, claiming that the defendant, as occupier
of the premises, had failed to exercise reasonable care to prevent damage to her, an
invitee, from an unusual danger known to it or of which it ought to have known.
It was held that the defendant had failed to exercise reasonable care in the oper-
ation of the system it had for keeping the floor of the supermarket clear of unusual
dangers, and was liable.38 Malone J said:
There is no reason to doubt that the defendant was not aware that there was liquid on
the floor of the aisle, and I am also satisfied that the presence of the liquid on the floor
constituted an unusual danger. Because of those findings . . . the real question posed by
this case is whether the unusual danger was one which the defendant ought to have
known of by the exercise of reasonable care. If the defendant should have known of it
by the exercise of reasonable care, then as it did not, it will be liable. On the other hand,
if reasonable care was exercised by the defendant, the fact that it did not know of the
unusual danger will not render it liable. That the burden is on the defendant to show
that it did exercise reasonable care is, I think, made clear by the judgment of Lawton LJ
in Ward v Tesco Stores Ltd. He said:39
If an accident does happen because the floors are covered with spillage, then, in
my judgment, some explanation should be forthcoming from the defendants
to show that the accident did not arise from any want of care on their part;

36 (1977) Court of Appeal, Trinidad and Tobago, Civ App No 77 of 1971 (unreported) [Carilaw
TT 1977 CA 16].
37 (1980) Supreme Court, The Bahamas, No 481 of 1979 (unreported) [Carilaw BS 1980 SC 30]. A
more recent example is Dorestant v City Markets Ltd (2002) Supreme Court, The Bahamas, No
1239 of 1997 (unreported) [Carilaw BS 2002 SC 110], where a supermarket shopper slipped
and fell on liquid detergent which had not been mopped up from the floor. Holding the
defendants liable in negligence, Lyons J commented that, in such ‘slip and fall’ cases, a shop-
per could not be found guilty of contributory negligence merely because at the material time
she had been looking at the goods on display on the shelves rather than where she was
walking.
38 See also Pemberton v Hi-Lo Food Stores Ltd (1991) High Court, Trinidad and Tobago, No 6036 of
1988 (unreported) [Carilaw TT 1991 HC 86] (plastic bag on floor of supermarket was unusual
danger: defendant liable to shopper who slipped on bag and fell).
39 [1976] 1 All ER 219, p 222.
134 Commonwealth Caribbean Tort Law

and, in the absence of any explanation, the judge may give judgment for the
plaintiff. Such burden of proof as there is on defendants in such circumstances
is evidential and not probative.
The nature of the explanation was also, I think, indicated by Lawton LJ in that case,
when he said:40
. . . there must be some reasonably effective system for getting rid of the
dangers which may from time to time exist.
In this case, the defendant recognised that it did have an evidential burden to discharge.
On its behalf, evidence was led of a system of cleaning the floor of the shop. That task
was primarily performed by Mrs Miller, but she would also be assisted by employees
described as the packaging boys. Mrs Miller’s job was to sweep the aisles with a push
broom and/or a mop and, if spills occurred, she was to be summoned to remove them.
There was evidence also that other employees were instructed that if they should see a
spill, they should not only cause Mrs Miller to be summoned, but should stand by the
spill or in some way mark it, as by putting a trolley over it, so as to give warning to
customers. By that evidence the defendant has, on the face of it, raised an issue as to the
exercise of reasonable care by it. It still, however, remains for me to decide whether I
should accept that evidence and by the standard of the greater probability be satisfied
that reasonable care was exercised by the defendant.
How a system should operate can, of course, be very different from how it in fact
operates. When I consider the evidence relating to the duties that Mrs Miller was
required to perform, it appears to me that a very great deal was expected of her by the
defendant. As willing a worker as she might be – and Mrs Miller certainly appeared to
be most willing – it is expecting a lot of the worker that throughout the working hours
she should be constantly in motion like a machine. Even allowing for the fact that
Mrs Miller must have exaggerated when she said that she did not take time off for lunch
and could not afford to get tired, it still seems to have been expected of her that, on
completing a sweep of the floor, Mrs Miller would immediately begin the next sweep.
In fact, such evidence as there is tends to confirm the reasonable supposition that
Mrs Miller was not as active as that.

Malone J concluded on the evidence that the defendant did not exercise reasonable
care in the operation of the system it had instituted for keeping the floor of its super-
market clear of unusual dangers.

Liability to licensees

At common law, a distinction is drawn between an invitee and a licensee. Whereas the
former enters the premises on business which concerns the occupier (the typical
example, as we have seen, being the customer who enters a shop), a licensee is a
person to whom the occupier ‘voluntarily concedes a benefit or privilege . . . without
deriving a corresponding material advantage from [his] presence’,41 or simply ‘a per-
son who has permission from the occupier to enter premises where, without that
permission, his presence would be unlawful’.42 The typical example of a licensee is a
person who is invited by the occupier for some social or recreational purpose. Herein
lies a paradox, since a friend who has been invited to dinner or to play tennis on the

40 Ibid, p 221.
41 Op cit, Fleming, fn 28, p 425.
42 Favre v Lucayan Country Clubs Ltd (1990) Supreme Court, The Bahamas, No 725 of 1985
(unreported) [Carilaw BS 1990 SC 64] per Smith J.
 Chapter 5: Occupiers’ Liability 135

occupier’s court will be a licensee, whereas a person who comes to do business with
the occupier, without any express invitation, will be classed as an ‘invitee’. It seems
that, in the modern law, the main distinction between the duty owed to a licensee and
that owed to an invitee is that whereas, in the case of the invitee, the occupier is under
a duty to maintain a reasonable system of inspection and safeguards against latent
dangers, in the case of the licensee the occupier’s only duty is to warn of concealed
dangers or traps actually known to him,43 and the licensee must otherwise ‘take the
occupier’s premises as he finds them’.44
In the Bahamian case of Favre v Lucayan Country Clubs Ltd,45 the plaintiff was a
non-paying member of a privately run club with a 250 acre golf course. While he was
out on the course alone one morning, he was robbed and shot by two masked gunmen
who had been hiding in the bushes. On the previous day, an official of the club had
been held up and robbed by a gunman near the same part of the course and at about
the same time of day. Smith J held that the plaintiff was a mere licensee, being ‘a
person who was given, without cost to him, the privilege of playing golf on the
course. He did not have to pay greens fees and, if he wanted to, he was free to go
around the course on foot and would not have to spend one cent for a cart’. The
learned judge nevertheless held the club liable for the injuries sustained by the plain-
tiff, on the ground that its officials knew of the risk of attacks by bandits on the golf
course, yet did not warn the plaintiff of the danger. He said:
It is admitted by the defendant that on the day before the plaintiff was robbed and
injured, Mr Walter Graf, an important official of the defendant, was also robbed at the
point of a sawed off shotgun on the same course near the same spot and at about the
same time of the day. The plaintiff suffered his injuries as a result of being shot by a
robber who trespassed on the golf course occupied by the defendant and on which the
plaintiff was a licensee of the defendant. It was known by the defendant that Walter
Graf was robbed by a gun-toting bandit at the seventh tee of the golf course at about
9 o’clock in the morning of the 19 June 1983.
The plaintiff avers that the injuries he suffered on 20 June 1983 came directly from the
danger to which he was exposed on that day and it was a danger known to the defend-
ant. In the circumstances, the defendant ought properly to have warned the plaintiff or
provided ample security. I am satisfied that the defendant knew of the danger or ought
to have known of the likelihood of the plaintiff being injured by armed thugs as in fact
he was, and should have warned the plaintiff of the danger. No warning was given to
the plaintiff, although there was ample time and opportunity to give him that warning.
It has been stated before and I believe it is still good law to state that, if the possibility of
danger emerging is reasonably apparent, then to take no precautions, when there is a
duty to, is negligence.
The defendant also claims that it had no actual knowledge of the armed robber’s pres-
ence on the course; but, in the light of what can be reasoned out of the decision in
Hawkins v Coulsdon and Purley UDC,46 this would make no difference when the evidence
is that the presence of a gun-toting robber there earlier was something the defendant
knew. The likelihood of the gunman’s return would almost have become a certainty, in
the light of his success on 19 June 1983.

43 Op cit, Fleming, fn 28, p 436.

44 Favre v Lucayan Country Clubs Ltd (1990) Supreme Court, The Bahamas, No 725 of 1985
(unreported) [Carilaw BS 1990 SC 64].
45 Ibid.
46 [1954] 1 All ER 97.
136 Commonwealth Caribbean Tort Law

In all the circumstances, I am satisfied that the injuries suffered by the plaintiff on the
premises occupied by the defendant were due to the negligence of the defendant in its
failing to warn the plaintiff, its licensee, of the earlier robbery and the likelihood of
being attacked by armed thugs on the golf course while playing alone. There was no
negligence on the part of the plaintiff.

LIABILITY TO TRESPASSERS

The liability of an occupier to trespassers on his land falls outside the OLAs and
remains governed by common law principles. Until 1972, the rule was that an occu-
pier owed no duty to trespassers other than a duty to refrain from deliberately or
recklessly causing harm to them.47 Thus, for example, he would be liable to a tres-
passer who was injured by a man-trap or a spring gun set with the intention of
injuring intruders, or by the reckless blasting of rocks in a quarry, but he would not be
liable if a trespasser fell down a dangerous well or pit on his land or was electrocuted
on some dangerously exposed electrical wires, where those hazards were not created
deliberately or recklessly. This rule was felt to be unduly harsh to trespassers, particu-
larly ‘innocent’ ones such as playful children or wandering adults, and was altered in
1972 by the leading case of British Railways Board v Herrington.48 There, it was laid
down that whereas an occupier does not owe a duty of care to trespassers, he does
owe a duty of ‘common humanity’, or a duty to act ‘in accordance with common
standards of civilised behaviour’. This, according to Lord Pearson,49 means that:
. . . if the presence of the trespasser is known to or reasonably to be anticipated by the
occupier, then the occupier has a duty to the trespasser, but it is a lower and less onerous
duty than the one which the occupier owes to a lawful visitor . . . It is normally sufficient
for the occupier to make reasonable endeavours to keep out or chase off the potential or
actual intruder who is likely to be or who is in a dangerous situation. The erection and
maintenance of suitable notice boards or fencing, or both, or the giving of suitable oral
warnings, or a practice of chasing away trespassing children, will usually constitute
reasonable endeavours for this purpose . . . If the trespasser, in spite of the occupier’s
reasonable endeavours to deter him, insists on trespassing or continuing his trespass, he
must take the condition of the land and the operations on the land as he finds them, and
cannot normally hold the occupier of the land or anyone but himself responsible for
injuries resulting from the trespass, which is his own wrongdoing.50

In Herrington, the defendant railway authority was held liable for injury sustained
by a 6-year-old child who had trespassed on the defendant’s electrified railway
line, having gained access to the line through a dilapidated fence bordering a field.
Railway employees knew that children had been trespassing on the line but no steps
had been taken to repair the fence or to otherwise deter trespassers. According to Lord
Pearson, there had been a clear breach of the duty of common humanity.
In Ellis v Jamaica Railway Corporation,51 Rowe P stated that ‘an occupier is required

47 Addie v Dumbreck [1929] AC 358.

48 [1972] 1 All ER 749.
49 Ibid, p 783.
50 A landowner has a right to keep a guard dog to protect his premises: Sarch v Blackburn (1830)
172 ER 712, p 713 (see below, p 211). The effect of the Herrington principle appears to be that a
warning notice, eg, ‘Beware of the Dog’, should be placed at the entrance to the premises.
51 (1992) 29 JLR 250 (Court of Appeal, Jamaica).
 Chapter 5: Occupiers’ Liability 137

in accordance with his duty of common humanity to take reasonable care regarding
the well-being of a trespasser where (1) there is a foreseeable risk of his acts doing
harm to a trespasser, or (2) he knows of the presence of the trespasser’. In the instant
case, a trespasser tripped and fell on a railway track and was seriously injured when
struck by a passing train. It was held in the Jamaican Court of Appeal52 that the
defendant railway authority ‘could not contemplate a person prone on the railway
line. Whilst it is reasonably foreseeable that persons could walk across the line, it
would not be within one’s contemplation that someone, whilst crossing, would fall
and would therefore be lying across the track.’ Accordingly, in the present case there
was no breach of the duty of common humanity, and any liability of the defendant
would have to be based on the failure of the train driver to brake in time to avoid
striking the plaintiff. On the evidence, it was clear that the driver had applied his
brakes as soon as he spotted the plaintiff on the track, and he had not been in any way
negligent.
The Herrington principle was applied in Barbados in Kirton v Rogers.53 In this case,
the plaintiff, an eight-year-old boy, was struck on the forehead by a stone expelled
from the defendant’s land, where explosives were being used for the purpose of
quarrying. The evidence was not clear as to whether the plaintiff was trespassing on
the defendant’s land at the material time.
It was held that, on the assumption that the plaintiff was a trespasser, the defend-
ant ought to have anticipated that potential trespassers were likely to be present and
was under a duty to take reasonable steps to avoid the danger to them. This duty
could be fully discharged only by posting someone to warn persons approaching to
keep out of the range of the blasting until the danger was past. Hanschell J said:54
By the Occupiers’ Liability Act 1957 in England and Wales, a ‘common duty of care’ was
enforced on occupiers towards all persons lawfully on their land. That act pointedly
omitted to alter the existing law as to trespassers. The Occupiers’ Liability Act (Cap 208)
of this Island is a similar statutory provision which likewise does not alter the existing
law as to trespassers.
In British Rlys Board v Herrington,55 decided by the House of Lords, the draconian rule of
Addie v Dumbreck 56 [which was that an occupier owed no duty to a trespasser other than
a duty not to harm him deliberately or with reckless disregard of his presence] was not
followed, and the House recognised and explained a duty on the part of the occupier
towards trespassers on his land, as well as trespassers likely to come there in certain
circumstances.
To quote the headnote in part:
That duty would only arise in circumstances where the likelihood of the tres-
passer being exposed to the danger was such that, by the standards of common
sense and common humanity, the occupier could be said to be culpable in
failing to take reasonable steps to avoid the danger.
The actual decision in its entirety in the Herrington case contains considerably more than
the portion quoted above, and since that case there has been decided in the Court
of Appeal the case of Pannett v P McGuinness and Co Ltd. 57 In the judgment of Lord

52 Ibid, p 251.
53 (1972) 19 WIR 191 (High Court, Barbados).
54 Ibid, p 196.
55 [1972] 1 All ER 749.
56 [1929] AC 358.
57 [1972] 3 All ER 137.
138 Commonwealth Caribbean Tort Law

Denning MR, the decision in Herrington is considered, and he explains and interprets
the Herrington case as deciding that there is now no general rule to be applied to all
trespassers; that each case depended on its special circumstances and whether on those
a duty was owed to the trespasser. Lord Denning went on to show that reasonable steps
taken by the occupier to avoid the danger would vary according to the occupier and the
particular circumstances; such steps may amount to fencing out the trespassers, warn-
ing them or doing something to keep them away, but that may not be regarded in every
sense as sufficient. In part, it was held in the Herrington case that, where an occupier (or
contractor doing work on the land) knew of circumstances that made it likely that
trespassers would come on to his land and also knew of some activity carried out on the
land which would constitute a serious danger to persons on the land who were
unaware of those facts, the occupier (or contractor) was under a duty to take reasonable
steps to enable the trespasser to avoid the danger. Such a duty would arise in the
circumstances quoted above from the headnote.
At the risk of repetition, I shall proceed to relate to the facts of the instant case the
essence of the Herrington decision.
The defendant was, by his agent, Crichlow, carrying out blasting operations in his
quarry. The plaintiff failed or omitted to put in evidence the boundaries of the defend-
ant’s land in relation to the place on the track where the plaintiff was struck. The
defendant did not lead any such evidence as is fit and proper in our adversarial pro-
ceedings. The result is that it cannot be decided whether the plaintiff was a person
outside the boundary of the defendant’s land or a trespasser on the defendant’s land. If
the plaintiff was not a trespasser and he was passing within the range of the explosion,
as is the fact, he was clearly a neighbour, to whom a duty of care was owed by the
defendant who was in breach of that duty. If the plaintiff was a trespasser, he was, in my
view, in the particular circumstances of this case, no less a neighbour although he
remained a trespasser, for, by the standards of common sense and common humanity,
the defendant was clearly culpable in failing to see to it, in the use of explosives on his
land, that proper care was taken by Crichlow, whom he employed to use the same, to
take reasonable steps to avoid danger to the trespassing plaintiff. In this case, reasonable
steps would at least amount to ensuring that any person within range of the results of
the explosion but obscured from view by the bush, as well as any person about to come
within that range, is at least adequately warned that the charge is about to be ignited
before this is done.
In applying the decision in Herrington in a case such as the present one, the defendant
ought to have anticipated that potential trespassers were likely to arrive, and in my
opinion that duty to take reasonable steps to avoid the danger could only be fully
discharged by posting someone in a position to continue the warning and thereby
keeping those approaching out of range until the danger is past. Such steps would not
involve any considerable work, staff or expense, and in the circumstances of the instant
case would in my opinion have been reasonable.
In the words of Lord Reid in Herrington’s case:58
By trespassing, they [the trespassers] force a neighbour relationship on him [the
occupier]. When they do so he must act in a humane manner – that is not asking
too much of him – but I do not see why he should be required to do more.
Lord Reid also said:59
I think that current conceptions of social duty do require occupiers to give
reasonable attention to their responsibilities as occupiers, and I see nothing in
legal principle to prevent the law from requiring them to do that.

58 [1972] 1 All ER 749, p 758.

59 Ibid, p 759.
 Chapter 5: Occupiers’ Liability 139

This last passage is, in my opinion, most apt in relation to the instant case which has
arisen in our densely populated Island with its maze of footpaths and thousands of
adults and children daily walking along them, and in many instances in the vicinity of
quarries which are in operation.

Trespassing employees

As will be seen in Chapter 6, an employer owes a duty at common law to his

employees to take reasonable care to provide a safe place of work, but this duty
is confined to those areas of the workplace which the employee is authorised to
enter. If he enters a part of the premises which he knows to be ‘out of bounds’ to
him, he will be generally treated as a trespasser. The issue has arisen in two Jamaican
cases.
In Alcan (Jamaica) Ltd v Nicholson,60 a welder, during his lunch break, left his area of
work at a bauxite installation and entered a location called a ‘precipitation area’, in
search of cigarettes. There, he suffered a serious eye injury when caustic soda, which
was stored in tanks, splashed into his eye. The employer/occupier was held not liable
for the injury, since the welder was a trespasser in the area who knew he had no right
to be there and was well aware of the dangers of caustic soda. Applying the principle
in the Herrington case, Carey JA emphasised that:
. . . a balance must be struck between a sensitivity for human suffering and a reluctance
to place too heavy a burden on the occupier of land . . . and the duty of an occupier to a
trespasser, despite its humanising patina, is not to be assimilated to the duty of an
occupier vis à vis a visitor under the Occupiers’ Liability Act.

On the other hand, in the more recent case of Manchester Beverages Ltd v Thompson,61
where an employee was injured by the careless operation of a fork lift truck in a
warehouse on his employer’s premises which he had no permission to enter, Langrin
JA in the Jamaican Court of Appeal agreed with the statement of the trial judge that
there was little, if any, difference between the kind of duty which an occupier owes
towards trespassers and the ordinary duty of care in negligence. The learned judge
considered that, following certain observations of Lord Denning in Pannett v P
McGuinness and Co Ltd,62 it was relevant in the instant case that the plaintiff’s trespass-
ing was ‘not malicious’, such as that of a thief or poacher, in that ‘he went to have a
shower . . . in the warehouse bathroom . . . there being only two showers on the
property’, and that ‘the incident could . . . have happened to any worker, and was not
resultant from the plaintiff’s trespass per se’. It is submitted with respect, however,
that it is not correct to assimilate the duty of common humanity owed to trespassers
with the duty of care owed to lawful visitors; and, on the facts, liability was more
correctly founded on breach of the employer’s duty to provide a safe system of work
on its premises.63

60 (1986) 23 JLR 418 (Court of Appeal, Jamaica).

61 (1999) Court of Appeal, Jamaica, Civ App No 88 of 1994 (unreported) [Carilaw JM 1999 CA
61].
62 [1972] 3 All ER 137, p 141.
63 See below, pp 142–44.
 CHAPTER 6

EMPLOYERS’ LIABILITY

The basis of the liability of an employer for negligence in respect of injury suffered
by his employee during the course of the employee’s work is twofold:
(a) he may be liable for breach of the personal duty of care which he owes to each
employee;
(b) he may be vicariously liable for breach by one employee of the duty of care which
that employee owes to his fellow employee.1

PERSONAL DUTY OF EMPLOYER AT COMMON LAW

The common law duty of an employer to his employees was enunciated in Davie v
New Merton Board Mills Ltd 2 as a duty to take reasonable care for their safety. The duty
is not an absolute one and can be discharged by the exercise of due care and skill,
which is a matter to be determined by a consideration of all the circumstances of the
particular case.3
The duty is a non-delegable one, and the employer is accordingly not absolved
from his responsibility by the employment of an independent contractor.4
It is well established that every employer has a duty at common law to provide:
(a) a competent staff of men;
(b) adequate plant and equipment;
(c) a safe system of working, with effective supervision;5 and
(d) a safe place of work.6

Competent staff of men

An employer will be in breach of this duty if he engages a workman who has had
insufficient training or experience for a particular job and, as a result of that work-
man’s incompetence, another employee is injured. An employer will similarly be
liable where he continues to employ a man who is known by him to be a bully,
addicted to practical jokes or ‘skylarking’, or is in other respects a danger to his fellow
workmen, and another employee is harmed by the man.

1 See below, Chapter 12. For a recent example, see Nurse v Trinidad and Tobago Electricity Commission
(2000) High Court, Trinidad and Tobago, No S 3037 of 1993 (unreported) [Carilaw TT 2000 HC 35],
where the defendant was liable both for failure to provide a safe system of working and vicari-
ously liable for the failure of its foreman to supervise his crew (per Morean J).
2 [1959] 1 All ER 346.
3 United Estates Ltd v Durrant (1992) 29 JLR 468, p 470, per Wolfe JA.
4 Courage Construction Ltd v Royal Bank Trust Co (Jamaica) Ltd (1992) 29 JLR 115 (Court of Appeal,
Jamaica), p 120, per Rowe P; Pumps and Irrigation Ltd v Pusey (1995) 32 JLR 326 (Court of Appeal,
Jamaica), p 343, per Downer JA.
5 Wilsons and Clyde Coal Co v English [1938] AC 57, p 78, per Lord Wright.
6 This passage in the text was cited by Anderson J in Reid v Mobile Welding and Engineering Works Ltd
(2007) Supreme Court, Jamaica, No CL 2000 R–030 (unreported) [Carilaw JM 2007 SC 5].
 Chapter 6: Employers’ Liability 141

In Ifill v Rayside Concrete Works Ltd,7 for instance, the plaintiff and J were employed
by the defendants as labourers in their block-making factory. They were both known
to the defendants to have a propensity for skylarking and ‘playing the fool’ at work,
and had been warned on at least two occasions to desist. One day, while attempting to
cradle lift the plaintiff, J tripped over a pipeline and both men fell into a cement mixer,
which was only partly covered. Both sustained injuries. It was held, inter alia, that the
defendants were in breach of their duty at common law not to expose the plaintiff to
the risks of danger emanating from undisciplined fellow employees, and were liable
in negligence.8 Douglas CJ said:
In the context of a block-making factory with its tractors, forklifts, cement mixers and
block-making machines in operation, the skylarking [of the plaintiff and J] constituted a
menace not only to themselves but to their fellow workers. [The employers] were aware
of their skylarking and sought to put an end to it by warnings. In my view, mere
warnings were totally inadequate for such serious cases of indiscipline. After the first
warning proved ineffectual, the only reasonable course open to [the defendants] as
responsible employers was to suspend or dismiss the offending worker, because it must
have been obvious to [the defendants] that this sort of undisciplined conduct would
expose their employees to the risk of injury . . . I also find that the plaintiff was contribu-
torily negligent in participating in the skylarking activity which caused his injury.

Adequate plant and equipment

An employer must take the necessary steps to provide adequate plant and equipment
for his workers, and he will be liable to any workman who is injured through the
absence of any equipment which is obviously necessary or which a reasonable
employer would recognise as being necessary for the safety of the workman. For
instance, the employer should ensure that dangerous machinery is fitted with the
necessary safety devices, including fencing, and that goggles are provided for those
types of work in which there is a risk of eye injuries. He must also take reasonable
steps to maintain plant and equipment, and he will be liable for harm resulting from
any breakdown or defect which he ought to have discovered by reasonable diligence.
Thus, in United Estates Ltd v Durrant,9 the Jamaican Court of Appeal held that the
appellants, who were cane farmers, were liable to a sideman employed by them for
injuries suffered when a ‘chain dog’ broke suddenly and caused the sideman to be
thrown off a truck. ‘Chain dogs’ had been supplied by a third party, and the appel-
lants had no proper system for examining them to ensure that they were in good
working order. It was not reasonable in the circumstances to rely upon the sidemen to
carry out checks on the condition of the chains and to take defective ones out of
service. And in a recent Bahamian case, Forbes v Burns House Ltd,10 where an office
worker was injured at the workplace when a swivel chair on which she was sitting
collapsed, it was held that the employer was in breach of its duty to inspect and
maintain office equipment, including the chair.
In the Trinidadian case of Morris v Point Lisas Steel Products Ltd,11 the plaintiff was

7 (1981) 16 Barb LR 193 (High Court, Barbados).

8 Following, on similar facts, Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 848.
9 (1992) 29 JLR 468.
10 (2000) Supreme Court, The Bahamas, No 432 of 1995 (unreported) [Carilaw BS 2000 SC 12].
11 (1989) High Court, Trinidad and Tobago, No 1886 of 1983 (unreported) [Carilaw TT 1989
HC 142].
142 Commonwealth Caribbean Tort Law

employed as a machine operator at the defendant’s factory. While the plaintiff was
using a wire cutting machine, a piece of steel flew into his right eye, causing a com-
plete loss of sight in that eye. Holding the employer in breach of its common law duty
of care in failing to provide goggles, Hosein J said that:
. . . since the risk was obvious to the defendant and not insidious, the defendant ought
to have made goggles available and also given firm instructions that they must be worn,
and the defendant ought to have educated the men and made it a rule of the factory that
goggles must be worn, since, if an accident did happen, the probability was likely to be
the loss of sight of one or both eyes.

Similarly, in Sammy v BWIA,12 the plaintiff, who was employed by the defendant as a
mechanic, was sent to repair a vehicle which had broken down on a ramp at Piarco
Airport. While attempting to start the vehicle, it caught fire. No fire extinguishers
were provided either in the vehicle being repaired or in the service vehicle and, in
attempting to put out the fire with a cloth, the plaintiff suffered burns. Gopeesingh J
held the defendant liable for breach of its common law duty to the plaintiff to take
reasonable care for his safety:
. . . by not exposing him to any unnecessary risk during the performance of his duties as
an employee . . . By failing to provide fire extinguishers on these vehicles, the defendant
clearly exposed the plaintiff to an unnecessary risk when the fire started on the vehicle
. . . The defendant was under a duty to provide proper safety appliances on these
vehicles to safeguard the plaintiff in the event of such an occurrence.

On the other hand, in Sharpe v Gibson Construction Ltd 13 it was held that the employers
of a mason on a construction site in St Vincent, who had sustained injury to his eye
when a piece of plaster fell into it, were under no duty to supply goggles for plaster-
ing work, in the absence of any norm in the industry to supply goggles to masons
doing that type of work. According to Byron CJ:
The duty of the employer can be briefly expressed by stating that an employer dis-
charges his duty to provide his employees with a safe working environment when he
does all a reasonable employer could be expected to do for the safety of his workers
having regard to the degree of risk posed to his workers by the nature of their work.

Safe system of working and effective supervision

An employer must organise a safe system of working14 for his employees and must
ensure as far as possible that the system is adhered to. A system of work has been
defined as:
. . . the physical layout of the job; the setting of the stage, so to speak; the sequence in
which the work is to be carried out; the provision in proper cases of warnings and

12 (1988) High Court, Trinidad and Tobago, No 5692 of 1983 (unreported). See also Walker v
Lobban (2005) Court of Appeal, Jamaica, Civ App No 132/02 (unreported) [Carilaw JM 2005
CA 79] (failure to provide suitable jack for welder working under a truck). The failure to
provide a necessary item of safety equipment may also amount to a breach of the duty to
provide a safe system of working: see Pumps and Irrigation Ltd v Pusey (1995) 32 JLR 326 (failure
to provide linesman with insulated cutter or gloves); Douglas v Reid’s Diversified Ltd (1995) 32
JLR 369 (failure to provide equipment for securing building materials on board a flat-bed
truck).
13 (2003) Court of Appeal, OECS, Civ App No 18 of 2001 (unreported) [Carilaw VC 2003 CA 4].
14 This includes a duty to take reasonable precautions to protect employees from attacks by
armed bandits. See above, pp 104, 106.
 Chapter 6: Employers’ Liability 143

notices, and the issue of special instructions. A system may be adequate for the whole
course of the job, or it may have to be modified or improved to meet the circumstances
which arise.15

The duty to supervise workmen includes a duty to take steps to ensure that any
necessary item of safety equipment is used by them. In devising a system of work, an
employer must take into account the fact that workmen are often careless as to their
own safety. Thus, in addition to supervising the workmen, the employer should
organise a system which itself reduces the risk of injury from the workmen’s foresee-
able carelessness.
In the Barbadian case of Legall v Skinner Drilling (Contractors) Ltd,16 the defend-
ant company was engaged in oil drilling. The plaintiff was employed by the
defendant as a derrick man, one of his duties being the removal of nuts and bolts
from the rigs as part of the ‘rigging down’ operation. In order to remove a bolt
from a rig platform about 10 ft from the ground, the plaintiff was given an empty
oil drum to stand on. The drum toppled over and the plaintiff fell to the ground
and was injured. It was held that the defendant, by failing to ensure that its work-
ers used ladders to reach high platforms and to warn the plaintiff of the danger of
standing on the oil drum, was in breach of its common law duty to provide a safe
system of work.
Another example of failure to provide a safe system of work is the Jamaican case
of Bish v Leathercraft Ltd.17 Here, the plaintiff was operating a button pressing machine
in the defendants’ factory when a button became stuck in the piston. While attempt-
ing to dislodge the button with her right index finger, the plaintiff’s elbow came
into contact with an unguarded lever, which caused the piston to descend and crush
her finger. The Jamaican Court of Appeal held that the defendants were in breach of
their common law duties to provide adequate equipment and a safe system of
work, in that: (a) the button had not been pre-heated, which was the cause of its
becoming stuck in the position; (b) no three inch nail, which would have been
effective to dislodge the button, was provided for the plaintiff’s use, with the result
that the plaintiff had to resort to using her finger; and (c) the lever was not provided
with a guard, which would most probably have prevented the accident which
occurred.
Where the employee is young and/or inexperienced, there will be a breach of the
duty to provide a safe system of working if insufficient training and instruction are
not given for the particular job. In Hurdle v Allied Metals Ltd,18 the 16-year-old plaintiff
was employed by the defendants as a machine operator. Without any prior training or
instruction, she was put in charge of a power press set up to stamp out heart shapes
for lockets. Whilst the plaintiff was operating the press, her hand became trapped
in the machine and she was seriously injured. Douglas CJ, in the Barbados High
Court, held the defendants to be in breach of their duty of care, in that no adequate

15 Speed v Thomas Swift and Co Ltd [1943] KB 557, pp 563–64, per Lord Greene MR.
16 (1993) High Court, Barbados, No 1775 of 1991 (unreported) [Carilaw BB 1993 HC 14]. See also
Cazaubon v Durahome Construction Ltd (1998) High Court, Barbados, No 1339 of 1991
(unreported) [Carilaw BB 1998 HC 18]; Morgan v Valley Fruit Co Ltd (2006) Supreme Court,
Jamaica, No HCV 0805 of 2003 (unreported) [Carilaw JM 2006 SC 17]; Swaby v Metropolitan
Parks and Markets (2004) Supreme Court, Jamaica, No CLS 123 of 2000 (unreported) [Carilaw
JM 2004 SC 18].
17 (1975) 24 WIR 351.
18 (1974) 9 Barb LR 1.
144 Commonwealth Caribbean Tort Law

instruction and training had been given to the plaintiff, having regard to her age and
inexperience and the potential risk involved. He said:19
In considering whether the employers have instituted and maintained a proper system
of working, it must be remembered, as Denning LJ pointed out in Clifford v Challen and
Sons Ltd,20 that allowance must be made for the imperfections of human nature, and that
people doing a routine task are often heedless of their own safety and may become
careless about using precautions. It must also be remembered that when young people
or trainees are employed in a factory, the need for supervision is greater than in the case
of skilled and experienced workpeople . . . It appears to me that the plaintiff should not
have been allowed to operate a power press unless she had been fully instructed as to
the dangers arising in connection with it and the precautions to be observed, and had
received a sufficient training in work at the machine and had adequate supervision by a
person possessing a thorough knowledge and experience of the machine.

Safe place of work

An employer has a duty to take care to ensure that the premises where his employees
are required to work are reasonably safe.21 The duty exists only in relation to those
parts of the workplace which the employee is authorised to enter. An employee who
enters an area which he knows to be ‘out of bounds’ will generally be treated as a
trespasser.22 It appears that this duty is greater than that owed by an occupier to his
visitors or invitees, since it is not limited to unusual dangers, nor is it necessarily
discharged by giving warning of the danger.23 But the employer’s duty is not absolute;
it is sufficient that the premises are maintained ‘in as safe a condition as reasonable
care by a prudent employer can make them’,24 and if the employer ‘has an efficient
system to keep (the workplace) clean and free from obstruction, that is all that can be
reasonably demanded from him’.25
At one time, it was thought that where an employee was sent to work at premises
over which the employer had no control, the employer would owe no duty in respect
of those premises; but the modern view is that whether the employer is relieved of the
duty or not will depend upon the nature of the premises.26 For instance, if an

19 Ibid, p 4.
20 [1951] 1 KB 495.
21 Sturrup v Resorts International (Bahamas) 1984 Ltd (1991) Supreme Court, The Bahamas, No 83
of 1985 (unreported) [Carilaw BS 1991 SC 61], per Hall J.; Taylor v The Nassau Guardian Ltd
(2003) Supreme Court, The Bahamas, No CL 543 of 1999 (unreported) [Carilaw BS 2003 SC 21],
per Small J (exposure to chemicals at printing press); Cranston v Mars Auto Parts Ltd (2005)
Supreme Court, Jamaica, No CL 1996/C117 (unreported) [Carilaw JM 2005 SC 116], per Straw J
(office helper fell on slippery stairs).
22 See, eg, Alcan (Jamaica) Ltd v Nicholson (1986) 23 JLR 418 (Court of Appeal, Jamaica) p 139
above.
23 Fleming, The Law of Torts, 8th edn, 1993, Sydney: LBC Information Services.
24 Ibid. See Henry-Angus v AG (1994) Supreme Court, Jamaica, No H 111 of 1988 (unreported)
(hospital liable to ward attendant who slipped on wet floor, for failure to take reasonable care).
25 Levesley v Thomas Firth and John Brown Ltd [1953] 2 All ER 866, p 869, per Denning LJ. See De
Verteuil v Bank of Nova Scotia (Trinidad and Tobago) Ltd (2002) High Court, Trinidad and Tobago,
No 2121 of 1995 (unreported) [Carilaw TT 2002 HC 85], per Jamadar J. (Bank not liable to
employee who slipped in kitchen, as bank had employed professional cleaners to clean up
after working hours, and staff had responsibility for cleaning up during the day. The floor’s
surface was not inherently slippery, and there had been no previous mishaps or complaints
about the safety of the floor.)
26 Op cit, Fleming, fn 18.
 Chapter 6: Employers’ Liability 145

employer sends his technician to install cable television in a private house, the
employer will not be required to inspect the house to ensure that there are no poten-
tial hazards; but an employer who sends a stevedore onto a ship may be required to
inspect the ship for potential dangers, such as defective hatches, and to ensure that
any necessary remedial action is taken.27
In Watson v Arawak Cement Co Ltd,28 the plaintiff was employed by the defendant
as a general worker. He was sent to work on a ship which was in the possession of a
third party. While attempting to leave the ship at the end of his day’s work, the
plaintiff fell from an unlit walkway inside the ship and sustained injuries. Chase J, in
the Barbados High Court, held the defendant liable on account of its failure to provide
a suitable means of egress from the ship and to instruct the plaintiff as to the method
of leaving the vessel. He said:
Another aspect of the employer’s duty to exercise reasonable care and not to expose his
servants to unnecessary risk is his duty to provide a reasonably safe place of work and
access thereto. This duty does not come to an end merely because the employee has
been sent to work at premises which are occupied by a third party and not the employer.
The duty remains throughout the course of his employment: General Cleaning Contractors
Ltd v Christmas.,29 In each case, however, the degree of care to be taken by the employer
will vary according to the circumstances. In Wilson v Tyneside Window Cleaning Co,30
Parker LJ noted as follows:
The duty is there, whether the premises on which the workman is employed are
in the occupation of the master or of a third party . . . but what reasonable care
demands in each case will no doubt vary.
Pearce LJ31 also echoed the principle in these terms:
The master’s own premises are under his control. If they are dangerously in
need of repair, he can, and must, rectify the fault at once if he is to escape the
censure of negligence. But if a master sends his plumber to mend a leak in a
respectable private house, no one could hold him negligent for not visiting the
house himself to see if the carpet in the hall creates a trap.
Between these extremes are countless possible examples in which the court may
have to decide the question of fact.
In view of the circumstances in the present case, it is in my opinion appropriate to limit
my consideration of the merits of the plaintiff’s claim against the defendant to whether
or not the defendant had exercised due care and skill to ensure that, in the course of his
employment, the plaintiff was provided with safe means of access to and egress from
the [third party’s] motor vessel.

STATUTORY DUTIES

In addition to the duty of care owed at common law, an employer may be under a
statutory duty to provide safety equipment to protect his employees from injury,
especially where they are operating dangerous machinery.

27 Op cit, Fleming, fn 18.

28 (1998) High Court, Barbados, No 958 of 1990 (unreported) [Carilaw BB 1998 HC 30].
29 [1953] AC 180. See Charlesworth and Percy, Negligence, 8th edn, 1990, London: Sweet &
Maxwell.
30 [1958] 2 QB 110, p 124.
31 Ibid, pp 121–22.
146 Commonwealth Caribbean Tort Law

An employer who fails to provide equipment as required by statute will be liable

for breach of statutory duty. An employee who is injured as a consequence of a breach
of statutory duty must show:
(a) that the act which caused the damage was regulated by the statute;
(b) that he was one of the persons whom the statute was intended to protect; and
(c) that the damage suffered was of a kind that the statute was intended to prevent.
The first two requirements are normally easy to satisfy, but the third may be
problematic. In the leading case of Gorris v Scott,32 a shipowner was required by
statute to provide pens for cattle on board his ship. He failed to do this, with the
result that the plaintiff’s cattle were swept overboard. It was held that the ship-
owner was not liable for the loss, because the damage that the statute was
intended to prevent was the spread of contagious diseases, not the sweeping over-
board of the cattle. Similarly, it was held in Close v Steel Co of Wales Ltd 33 that a
workman who is injured by a dangerous part of machinery which flies out of a
machine and injures him cannot base a claim on the statutory obligation that dan-
gerous parts of machinery ‘shall be securely fenced’, because the purpose of the
statutory duty is ‘to keep the worker out, not to keep the machine or its product
in’.34 On the other hand, as in the case of negligence, if the plaintiff’s damage is of
the same kind as that which the statute was designed to prevent, he will have a
good cause of action, notwithstanding that the damage occurred in a way not
contemplated by the statute. Thus, a statute requiring the use of crawling boards
on roofs covered with fragile material was interpreted as being aimed not only
against workmen falling through such material, but equally against a workman
falling through a hole uncovered in the course of re-roofing;35 and a statute requir-
ing that roofs in a coal mine be made secure was interpreted as covering not only
the obvious risk of a miner being struck from above, but also a bogie in which he
was travelling being derailed by falling debris.36
An important example of a statutory duty in the Commonwealth Caribbean is
s 7 of the Factories Act, Cap 347 (Barbados), which provides:37
7(1) Every dangerous part of machinery on premises to which this Act applies must be
securely fenced unless such machinery is in such a position or is so constructed as to be

32 (1874) LR 9 Ex 125.
33 [1962] AC 367.
34 Ibid.
35 Donaghey v Boulton and Paul Ltd [1968] AC 1.
36 Grant v National Coal Board [1956] AC 649.
37 This section replaces the previous s 10(1) of the Act. The Safety and Health at Work Act 2005
has been enacted to replace the Factories Act, but has not yet been brought into force. Similar
provisions are in force in other jurisdictions, eg, Factories Regulations 1961, reg 3 (Jamaica).
Cf Factories Act, Cap 95:02 (Guyana); Factories Act, Cap 339 (St Kitts/Nevis); Factories Act,
Cap 118 (Grenada); Factories Act, Cap 296 (Belize); Factories Act, Cap 335 (St Vincent).
Another example of a statutory duty is reg 9 of the Factories Regulations, Ch 30, No 2
(Trinidad and Tobago), which provides:
9(1) In any process which involves a special risk of injury to the eyes from particles or
fragments thrown off in the course of the process, suitable goggles or effective screens
shall be provided to protect the eyes of persons employed in the process.
(2) Suitable goggles or effective screens shall be provided to protect the eyes of persons
employed at welding or cutting of metals by means of an electrical, oxyacetylene or
similar process, and effective arrangements shall be made by the provision of screens or
otherwise to protect the eyes of other persons working near to such process.
 Chapter 6: Employers’ Liability 147

safe to every person employed or working on the premises as it would be if securely

fenced.
(2) Where the dangerous part of any machinery, by reason of the nature of an operation,
cannot be securely fenced by means of a fixed guard, the requirements of sub-section (1)
shall be deemed to have been complied with if a device is provided that automatically
prevents the operator from coming into contact with that part of the machinery while it
is in motion or use.

Such legislation imposes an absolute obligation to provide the necessary safety

equipment, and failure to do so renders the employer liable in damages to an
employee injured as a consequence of the breach of duty.
An essential issue in every case of injury suffered as a consequence of failure
to fence a machine or part of a machine is whether the machine or part was in
fact ‘dangerous’. A number of tests have been suggested for determining the
question, perhaps the most useful being that articulated in Mitchell v North British
Rubber Co 38 by Lord Cooper, who said that a machine, or part of a machine, is danger-
ous if:
in the ordinary course of human affairs, danger may reasonably be anticipated from its
use unfenced, not only to the prudent, alert and skilled operator intent upon his task,
but also to the careless or inattentive worker whose inadvertent and indolent conduct
may expose him to risk of injury or death from the unguarded part.

In a Jamaican case, Henry v Superior Plastics Ltd,39 Sykes J emphasised that the test as
to whether a machine is dangerous is an objective one:
A finding that the machine is dangerous is not necessarily a poor reflection on the
employer. He may think that he has installed the safest machine that money can buy. He
may even be the most caring employer in the world. His benevolence and munificence
may be legendary. On the other hand, the employer may be a penny-pinching cur-
mudgeon presiding over a sweat shop. A factory inspector may think that the machine
is dangerous or he may think it is quite safe. None of this matters. The test is objective
and impersonal. In applying the test, the court can take into account the history of the
machine. It may be that no-one has been injured since the machine has been in use. This
is not conclusive proof that the machine is not dangerous but it certainly cannot be
ignored.

Lord Cooper’s test has frequently been applied in Commonwealth Caribbean courts.
In Walker v Clarke,40 where a worker in a bakery was injured by the rollers of a dough-
brake machine, the Jamaican Court of Appeal stated that the proper questions to be
asked by the court were:
(1) Are the rollers a dangerous part of the machinery? If the answer to that question is
‘yes’, then
(2) Is that dangerous part securely fenced? If the answer to that question is ‘no’, then

38 [1945] SC (J) 69, p 73.

39 (2002) Supreme Court, Jamaica, No CL H-104 of 1994 (unreported) [Carilaw JM 2002 SC 33].
40 (1959) 1 WIR 143. Cf Reid v Mobile Welding and Engineering Works Ltd (2007) Supreme Court,
Jamaica, No CL 2000 R-030 (unreported) [Carilaw JM 2007 SC 5], where a machine used for
rolling sheet metal was held by Anderson J not to be ‘dangerous’. It posed no threat to any
worker unless, as in the present case, the worker decided to climb onto a metal sheet while
rolling was in progress. See also Henry v Superior Plastics Ltd, above, where Sykes J held that a
fully automatic machine was not ‘dangerous’ since, ‘without deliberate and reckless conduct it
is difficult to see how anyone could come into contact with the taddle’.
148 Commonwealth Caribbean Tort Law

(3) Is the machine in such a position or of such a construction as to be safe to every

worker as it would be if securely fenced?

Since the evidence in this case showed that the rollers were dangerous, that they were
unfenced, and that they were unsafe to the operator without a fence, the employer
was held liable for breach of statutory duty.
Again, in Ifill v Rayside Concrete Works Ltd,41 the facts of which have been stated
above,42 the employer was held liable for breach of statutory duty in failing to fence the
‘whirling shaft and blades’ of a cement mixer; and in Morris v Seanem Fixtures Ltd,43
where an employee, in the course of operating a ‘planer’, sustained injury to her hand
when it became caught in the machine’s rotating blades, there was held to be a breach
of statutory duty on the part of the employer because of its failure to securely fence
the machine. Husbands J said: ‘In Summers (J) and Sons Ltd v Frost,44 a revolving
grindstone was held not to be securely fenced when there was a space between an
upper and a lower guard, so that the hands of an operator could reach the revolving
wheel. It is clear that where there is danger of injury by contact, there is a duty to fence
so as to prevent contact, and a dangerous machine is not securely fenced unless such
contact is precluded.’

CONTRIBUTORY NEGLIGENCE

[For the principles relating to contributory negligence of employees, see pages 353–
57, below.]

41 (1981) 16 Barb LR 193.

42 See pages 140, 141.
43 (1976) 11 Barb LR 104.
44 [1955] 1 All ER 870.
 CHAPTER 7

NUISANCE

The word ‘nuisance’ is used in popular speech to mean any source of inconvenience
or annoyance, but the tort of nuisance has a more restricted scope and not every
inconvenience or annoyance is actionable. Nevertheless, this tort ‘has become a catch-
all for a multitude of ill-assorted sins’,1 such as the emission of noxious fumes from a
factory, the crowing of cocks in the early hours of the morning, the obstruction of
a public highway, the destruction of a building through vibrations, and the interfer-
ence with a right of access to private property. The remedies available to one who
complains of a nuisance are:
(a) damages;
(b) an injunction to restrain further nuisance; and
(c) abatement.

PUBLIC AND PRIVATE NUISANCE

Public nuisance

A public nuisance is committed where a person carries on some harmful activity

which affects the general public or a section of the public, for example, where the
owners of a factory cause fumes and smoke to pollute the atmosphere in the locality,
or where an obstruction is caused on the public highway. Public nuisance is basically
a crime, actionable by the Attorney General. It is a tort, actionable by an individual
plaintiff, only where the latter can show that the defendant’s conduct has caused him
‘particular damage’ over and above that suffered by the general public.2 The reason
for this requirement of proof of particular damage is that where a wrong is committed
against the community at large, it is considered to be more appropriate to leave the
action in the hands of the Attorney General as the representative of the public, rather
than to allow the defendant to be harassed by an unlimited number of suits by private
individuals, all complaining of the same damage. As to the meaning of ‘particular
damage’, one view is that the plaintiff must show that he has suffered damage which
is different in kind, and not merely in degree, from that suffered by the general
public;3 another view is that it is sufficient for the plaintiff to show that he has suffered
damage which is appreciably greater in degree than any suffered by the general
public.4 Particular damage will include not only special damage in the sense of actual

1 Fleming, The Law of Torts, 6th edn, 1983, Sydney: LBC Information Services, p 378. See, generally,
Buckley, The Law of Nuisance, 2nd edn, 1996, London: Butterworths.
2 Ramsaran v Sandy (2004) Court of Appeal, Trinidad and Tobago, Civ App No 55 of 2003
(unreported), per Sharma CJ.
3 Stein v Gonzales (1985) 14 DLR (4th) 263, p 267; Hickey v Electric Reduction Co of Canada Ltd (1970) 21
DLR (3d) 368; Ricket v Metropolitan Rly Co (1867) LR 2 HL 175.
4 Southport Corp v Esso Petroleum Co Ltd [1954] 2 All ER 561, p 570, per Lord Denning; Metropolitan
Board of Works v McCarthy (1874) LR 7 HL 243, p 263, per Lord Penzance; Walsh v Ervin [1952] VLR
361, p 366, per Scholl J. See Kodilinye, G (1986) 6 LS 182, pp 189, 190.
150 Commonwealth Caribbean Tort Law

pecuniary loss,5 but also general damage, such as delay or inconvenience, provided
that it is substantial.6
In Chandat v Reynolds Guyana Mines Ltd,7 the plaintiff farmers adduced evidence
that their crops had been damaged by dust escaping from the defendants’ bauxite
works, but they were unable to recover damages under public nuisance individually,
because none could show ‘particular damage’. George J stated that ‘before a nuisance
can be a public one, it must affect the reasonable comfort and convenience of a class of
the citizenry’, and he found that ‘whether one uses the yardstick of a class of citizenry
affected by the nuisance complained of or its effect and widespread range, the only
reasonable conclusion which can be arrived at in this case is that the nuisance com-
plained of must be a public nuisance’. He continued:
Despite the fact that the nuisance which the plaintiffs complain of is a public nuisance, it
is well settled that if they or any of them suffer direct and substantial injury or damage
‘other and greater’ than that which is common to all, they or those who so suffer have a
remedy both at law and in equity.
The expression used in the case of Benjamin v Storr 8 is ‘injury . . . other and greater
than that which is common to the Queen’s subjects’, that is, the body or group
of persons affected by the nuisance. In the present case, the plaintiffs, who are
all farmers, complain of the same type of nuisance which affects them all to the
same degree. And in my opinion they are a sufficiently large number of persons to
constitute a class of the citizenry. Indeed . . . the nuisance complained of is sufficiently
widespread in its range and indiscriminate in its effect as to warrant action by the
community at large rather than individuals. None of them can claim to have suffered
any damage, loss or inconvenience which can be said to be greater in quality than the
others.
Examples where ‘particular damage’ was established are:
(a) where the defendant wrongfully obstructed a public navigable creek by mooring
his barge there, thus compelling the plaintiff to unload his boats and transport his
cargo by land at great expense;9
(b) where the plaintiff intended to let rooms in her house to persons wishing to watch
a procession, and the defendants unlawfully created a structure in the public
street which obstructed the view from the rooms, thus reducing their letting
value;10
(c) where the plaintiff’s sleep was disturbed by the noise of the defendant’s vehicles,
and the paintwork of his car, which was parked in the street, was damaged by
acid smuts from the defendant’s factory;11
(d) where the plaintiff, a taxi driver, was struck and blinded in one eye by a golf ball
driven from the defendant’s golf course situated next to the highway;12
(e) where a telecommunications company allowed a broken telegraph pole, with

5 Eg, where a shopkeeper loses customers.

6 Walsh v Ervin [1952] VLR 361.
7 (1973) High Court, Guyana, No 249 of 1969 (unreported) [Carilaw GY 1973 HC 34].
8 (1874) LR 9 CP 400.
9 Rose v Miles (1815) 105 ER 773.
10 Campbell v Paddington Corp [1911] 1 KB 869.
11 Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145.
12 Castle v St Augustine’s Links Ltd (1922) 38 TLR 615.
 Chapter 7: Nuisance 151

cable attached, to overhang a public road, with the result that a motorist collided
with it and sustained damage;13
(f) where, in the course of carrying out works for the laying of drains, a contractor
obstructed the vehicular access to a hotel by placing there large mounds of earth.14
On the other hand, no particular damage was proved where, in an action for obstruct-
ing a public way, the plaintiff proved no damage peculiar to himself other than being
delayed on several occasions in passing along the way and being obliged, in common
with everyone else who attempted to use it, either to take another route or to remove
the obstruction.15

Private nuisance

The rationale and origins of private nuisance are quite different from those of public
nuisance. Whereas public nuisance involves injury to the public at large, and the
rights of the private individual receive protection in tort where he can prove particu-
lar damage to himself, irrespective of his ownership or occupation of land, the law of
private nuisance is designed to protect the individual owner or occupier of land from
substantial interference with his enjoyment thereof. Therefore, the main differences
between the two species of nuisance are these:
(a) public nuisance is a crime, and is a tort where particular damage is proved.
Private nuisance is a tort only;
(b) to succeed in private nuisance, the plaintiff must have an interest in land.16 In
public nuisance, there is no such requirement;17
(c) damages for personal injuries can be recovered in public nuisance.18 Whether such
a claim will lie in private nuisance is doubtful.19
Notwithstanding these basic differences, there may be occasions where the facts of a
particular case will give rise to liability in both public and private nuisance, for
example, where large scale pollution of the atmosphere causes particular damage to

13 Norman v Telecommunication Services of Trinidad and Tobago Ltd (1996) High Court, Trinidad and
Tobago, No S 1668 of 1992 (unreported).
14 Pierre v St Lucia Water and Sewage Authority (2003) High Court, St Lucia, No 354 of 1994
(unreported).
15 Winterbottom v Derby (1867) LR 2 Ex 316.
16 Malone v Laskey [1907] 2 KB 141. But this restriction was not applied in the Canadian case of
Devon Lumber Co Ltd v MacNeill (1988) 45 DLR (4th) 300, where the child of an occupier
recovered damages for private nuisance (below, p 170); nor in Khorasandjian v Bush [1993] 3 All
ER 669, where a person who had no proprietary interest in land was granted an injunction to
restrain unwanted telephone calls. In Needham v Senior (2006) Supreme Court, Jamaica,
No HCV 0852/2006 (unreported), the claimant sought an injunction to restrain unwanted
telephone calls. In dismissing the action, Sykes J expressed the view that Khorasandjian v Bush
had been overruled by Hunter v Canary Wharf Ltd in so far as Khorasandjian had decided that
unwanted phone calls could amount to the tort of private nuisance. The learned judge went on
to suggest, however, that a tort of harassment should be recognised in Jamaica. The elements
of the tort were ‘deliberate conduct directed at the claimant and resulting in damage: the
damage being anxiety and distress, short of physical harm or a recognised psychiatric illness’.
17 Brazier, M, Street on Torts, 9th edn, 1993, London: Butterworths, p 347.
18 See Castle v St Augustine Links Ltd (1922) 38 TLR 615; Corby Group Litigation Claimants v Corby
BC, The Times, 28 May 2008.
19 Op cit, Brazier, fn 17, p 363. Damages for personal injuries were recovered in Devon Lumber Co
Ltd v MacNeill (1988) 45 DLR (4th) 300.
152 Commonwealth Caribbean Tort Law

the plaintiff’s property. Furthermore, the two causes of action share some common
principles. For instance, in both public and private nuisance, the interference com-
plained of must be substantial and unreasonable, and ‘the law of give and take’
applies to both.

Categories of private nuisance

Private nuisance falls into three categories:

(a) physical injury to the plaintiff’s property, for example, where the plaintiff’s crops
are destroyed by fumes from the defendant’s factory, or where vibrations from the
defendant’s building operations cause structural damage to the plaintiff’s house;
(b) substantial interference with the plaintiff’s use and enjoyment of his land, for
example, where the plaintiff is subjected to unreasonable noise or smells emanat-
ing from the defendant’s neighbouring land;
(c) interference with easements and rights of access, for example, where the defend-
ant wrongfully obstructs the plaintiff’s right of way, right to light or right of access
to his property.

Basis of liability in private nuisance

The main problem in the law of private nuisance is in striking a balance between the
right of the defendant to use his land as he wishes and the right of the plaintiff to be
protected from interference with his enjoyment of his land. In order to strike this
balance, two main requirements have been developed:
(a) the injury or interference complained of will not be actionable unless it is
(i) sensible (in the case of material damage to land); or (ii) substantial (in the case
of interference with enjoyment of land);
(b) the defendant will not be held liable unless his conduct was unreasonable in the
circumstances.

Sensible material damage

‘Sensible material damage’ means damage:

(a) which is not merely trifling or minimal; and
(b) which causes a reduction in the value of the plaintiff’s property.20
It is easier for a plaintiff to succeed in nuisance where he can show material damage to
his property than where he complains of interference with his enjoyment of land,
since tangible damage can be more easily observed and measured than personal
discomfort or inconvenience arising from, for example, noise or smells. The leading
English case on sensible material damage is St Helens Smelting Co v Tipping,21 where

20 Op cit, Brazier, fn 17, p 350.

21 (1865) 11 ER 1483. This case was followed in Alcoa Minerals of Jamaica Inc v Broderick (1996)
Court of Appeal, Jamaica, Civ App No 15 of 1995 (unreported) (damage to roof of plaintiff’s
house caused by emissions from defendants’ aluminium plant). The decision was upheld by
 Chapter 7: Nuisance 153

the plaintiff, who lived in an industrial area, proved that his trees and shrubs had
been damaged by fumes from the defendant’s copper-smelting works. It was held by
the House of Lords that the plaintiff’s action in nuisance succeeded, since there had
been sensible material damage to his property. In the course of his judgment, Lord
Westbury drew an important distinction between cases of material injury and cases of
interference with enjoyment of land. He stated22 that where there is an interference
with enjoyment of land, the nature of the locality is a factor to be taken into account in
deciding whether the acts complained of are actionable, so that a person who chooses
to live in the heart of an industrial town or in a densely populated part of a large city
is not entitled to expect such a high degree of peace and quiet as one who lives in a
residential area. Where there is material damage to property, however, the nature of
the locality is irrelevant and the defendant cannot escape liability by pleading that his
activities were carried on in an industrial district.

Substantial interference with enjoyment of land

Where an action in nuisance is founded on interference with enjoyment of land, such

as where the plaintiff complains of inconvenience, annoyance or discomfort caused by
the defendant’s conduct, the interference must be shown to be substantial. The classic
formulation of the rule is that of Luxmoore J in Vanderpant v Mayfair Hotel Co Ltd:23
Every person is entitled as against his neighbour to the comfortable and healthy enjoy-
ment of the premises occupied by him; and, in deciding whether, in any particular case,
his right has been interfered with and a nuisance thereby caused, it is necessary to
determine whether the act complained of is an inconvenience materially interfering
with the ordinary physical comfort of human existence, not merely according to elegant
or dainty modes and habits of living, but according to plain and sober and simple
notions obtaining among the English people.

Reasonableness of defendant’s conduct

Whether the plaintiff claims in respect of injury to property or in respect of interfer-

ence with enjoyment of land, the primary question in any action for private nuisance
is: ‘Was the defendant’s activity reasonable according to the ordinary usages of man-
kind living in . . . a particular society?’24 There are no precise criteria for determining

the Privy Council ((2000) The Times, 22 March), which also held that, where a plaintiff was
unable to pay immediately for repair damage caused to his property by the defendant’s
nuisance and, owing to rampant inflation, the cost of repairs had quadrupled between the
date on which the damage occurred and the date of judgment, the plaintiff was entitled to
recover as damages the cost of repair at the date of judgment. The principle in Liesbosch
Dredger v SS Edison [1933] AC 449 (above, p 107) had no application in the instant case, since,
in The Liesbosch, the cost of hiring was a separate head of damage from the cost of replacing the
dredger, the cost of hiring being due to a separate cause, namely, the plaintiff’s impecuniosity.
In the present case, there was only one head of damage, namely, the cost of repairing the
building, and the increase in that cost was due to runaway inflation and the fall in the value of
the Jamaican dollar. Further, in the circumstances, the plaintiff was not in breach of his duty to
mitigate his loss. See also Cargo Consolidation Agency Ltd v Tarmac Construction (Caribbean) Ltd
(2000) High Court, Trinidad and Tobago, No S 889 of 1996 (unreported) [Carilaw TT 2000 HC
46]. And see, generally, Kodilinye, V (2000) 10 Carib LR 75.
22 St Helens Smelting Co v Tipping (1865) 11 ER 1483, p 1486.
23 [1929] All ER 296, p 308.
24 Sedleigh-Denfield v O’Callaghan [1940] AC 880, p 903, per Lord Wright.
154 Commonwealth Caribbean Tort Law

this question; all depends upon the circumstances of the individual case. However, a
number of factors have been taken into account in determining this issue, and these
must now be examined briefly.

Locality

As we have seen,25 the nature of the locality where the acts complained of have
occurred may be taken into account in cases of interference with enjoyment of land,
but not in cases of physical injury to property.

Utility of the defendant’s conduct

In general, the court will not find for the defendant merely because he shows that his
conduct was beneficial or useful to the community, for that would compel the plain-
tiff ‘to bear the burden alone of an activity from which many others will benefit’.26
Thus, in one case, an injunction was granted in a nuisance action against a cement
company, the effect of which was to close down its cement factory for three months.
The court was unmoved by the defendants’ argument that their production of cement
was vital to the public interest at a time of expansion in house building, and that they
were the only producers of cement in the country;27 and in Miller v Jackson,28 it was
held that the playing of cricket on a particular ground had for many years been a
benefit to the whole community, but that it had become a nuisance to the owners of
houses built close to the ground because it interfered substantially with the use and
enjoyment of the houses.
On the other hand, the utility of the defendant’s activity may be relevant, in the
sense that if such an activity is carried out not for any useful purpose but merely for
the purpose of annoying or spiting the plaintiff, it will be actionable in nuisance.39
Secondly, there is no doubt that ‘some consideration will be given to the fact that the
offensive enterprise is essential and unavoidable in the particular locality, like a coal
mine, quarry or some public utility or service’.30 Thirdly, since an injunction is a
discretionary remedy, the court may refuse to grant it even though the plaintiff has
established that the tort of nuisance has been committed.31

Plaintiff’s abnormal sensitivity

If the plaintiff suffered damage only because he or his property was abnormally
delicate or sensitive, and he would not otherwise have been harmed, the defendant
will not be liable in nuisance, for the law expects a person to conform to a reasonable
standard of conduct, not to some unusually high standard which the plaintiff seeks
to impose. Thus, for example, a plaintiff who has an unduly sensitive nose cannot

25 See above, p 153.

26 Winfield and Jolowicz, Tort, 15th edn, 1998, London: Sweet & Maxwell, p 500.
27 Bellew v Cement Co Ltd [1948] IR 61.
28 [1977] QB 966. See Buckley, RA (1978) 41 MLR 334.
39 See below, p 155.
30 Op cit, Fleming, fn 1, p 390.
31 See Miller v Jackson [1977] QB 966.
 Chapter 7: Nuisance 155

complain of smells which would not have disturbed a normal person. The leading
case concerning abnormal sensitivity is Robinson v Kilvert.32 Here, the defendant, the
occupant of a cellar, heated the cellar to a temperature of about 27°C. The heat dam-
aged some unusually sensitive paper which was being stored by the plaintiff in
adjoining premises. The plaintiff’s claim in nuisance failed, because ordinary paper
would have been unaffected by the heat.
On the other hand, if the ordinary use of land would have been affected by the
defendant’s activities, the claim may succeed. Thus, in McKinnon Industries v Walker,33
where a crop of delicate orchids was damaged by smoke from neighbouring premises,
the plaintiff succeeded in a nuisance action, despite the fact that the flowers were
unusually delicate, because ordinary flowers would have been similarly affected.
At first sight, the rule in Robinson v Kilvert might appear to be contrary to the ‘egg-
shell skull’ rule in negligence,34 under which abnormally sensitive plaintiffs can
recover damage for the full extent of their loss, whether such loss was foreseeable or
not. However, the rule in nuisance is not really inconsistent with the egg-shell skull
principle, since the McKinnon case shows that, once the defendant’s conduct is found
to be unreasonable, the plaintiff can recover for the full amount of his loss, including
damage to abnormally sensitive or delicate property.35 Thus, abnormal sensitivity is
relevant only to the initial question: ‘was the defendant’s conduct reasonable?’ If that
question is answered in the negative, the egg-shell skull rule will be applied.

Defendant’s malice

That the defendant carried on his activity with the sole or main purpose of causing
harm or annoyance to the plaintiff is a factor to be taken into account in deciding
whether his conduct was reasonable. ‘Malice’ in this context means ‘spite’, ‘ill-will’ or
‘evil motive’. Thus, where, out of spite, the defendant fired guns on his land close to
the boundary of the plaintiff’s land during breeding time in order to cause the plain-
tiff’s silver foxes to miscarry, he was held liable in nuisance for the damage to the
foxes, since harmful conduct cannot be reasonable where it is motivated by malice.36
And where, in retaliation for the noise made by the plaintiff’s music lessons in an
adjoining house, the defendant persistently whistled, shouted and beat trays against
the party wall, it was held that the conduct of the defendant was an actionable nuis-
ance and would be restrained by an injunction, since its purpose was malicious,
whereas the plaintiff’s conduct was reasonable and, therefore, not actionable.37
(A Caribbean example is Outar v Sookram (see below, pp 163–65).)

Duration of the harm

The question of the duration of the harm complained of may arise in two contexts:
(a) It has been said that the essence of nuisance is a continuing state of affairs on the

32 (1889) 41 Ch D 88.
33 [1951] 3 DLR 577.
34 See above, pp 106, 107.
35 McKinnon Industries Ltd v Walker [1951] 3 DLR 577, p 581.
36 Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468.
37 Christie v Davey [1893] 1 Ch 316.
156 Commonwealth Caribbean Tort Law

defendant’s land which causes damage to the plaintiff,38 for example, a factory
emitting constant noise and fumes, or a golf course or cricket pitch so sited
that balls are frequently struck on to the plaintiff’s adjacent land. The actual dam-
age to the plaintiff’s property may arise from a single isolated occurrence (such
as where, owing to defective electrical wiring in the defendant’s house, a fire
broke out which destroyed the plaintiff’s neighbouring house),39 but the essence
of the nuisance is the continuing state of affairs (in this latter example, the faulty
wiring).
(b) A relevant factor in determining the reasonableness of the defendant’s conduct is
whether it is temporary or permanent. Thus, a mere temporary inconvenience,
such as noise and dust from demolition or building work on the defendant’s land,
may not be unreasonable, whereas a permanent inconvenience, such as noise and
smoke emanating from the defendant’s factory, is more likely to be held
unreasonable and, therefore, actionable. Furthermore, it is a well-established prin-
ciple of equity that an injunction will not be granted to restrain a nuisance which
is merely temporary, except in extreme cases,40 and the plaintiff will thus be con-
fined to seeking damages.

Private nuisance in the Commonwealth Caribbean

Some of the factors relating to reasonableness in nuisance actions which may be taken
into account by courts in the Caribbean were discussed in Greenidge v Barbados Light and
Power Co Ltd, Sheppard v Griffith, Dehandschutter v Parkhill Holdings Ltd and Outar v
Sookram.
In Greenidge v Barbados Light and Power Co Ltd,41 the plaintiff owned a number of
apartments, two of which he and his family occupied and the remainder of which he
let out to tourists. He complained that the defendant’s power station discharged
offensive fumes and smoke over his property and caused excessive noise in and
about the apartments. He claimed that annoyance and discomfort were being caused
to himself, his family and his tenants, and that he had suffered loss in the business of
letting his apartments. He called three visitors to the island as witnesses in support
of his allegations.
It was held that, in determining whether or not an actionable nuisance existed, the
court was to apply the standards of the ordinary, reasonable resident of the particular
district. Since there was no evidence that such persons were inconvenienced by the
defendant’s activities, the defendant was not liable in nuisance.42 Williams J said:43
The law of nuisance undoubtedly is elastic, as was stated by Lord Halsbury in Colls v
Home and Colonial Stores Ltd.44 He said:

38 Bolton v Stone [1950] 1 KB 201, p 213.

39 Spicer v Smee [1946] 1 All ER 489.
40 De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd (1914) 30 TLR 257.
41 (1975) 27 WIR 22 (High Court, Barbados).
42 Compare St Lawrence Apartments Ltd v Downes (1995) 31 Barb LR 78 (High Court, Barbados),
where a number of local residents gave evidence that they had been disturbed by excessive
noise from the defendant’s night club. The plaintiff’s claim in nuisance was successful. See
below, p 171.
43 (1975) 27 WIR 22, p 24.
44 [1904] AC 179, p 185.
 Chapter 7: Nuisance 157

What may be called the uncertainty of the test may also be described as its
elasticity. A dweller in towns cannot expect to have as pure air, as free from
smoke, smell and noise as if he lived in the country, and distant from other
dwellings; and yet an excess of smoke, smell and noise may give a cause of
action; but in each of such cases it becomes a question of degree, and the ques-
tion is in each case whether it amounts to a nuisance which will give a right of
action. This is a question of fact.
The following is a much quoted passage from the judgment of Luxmoore J in Vanderpant
v Mayfair Hotel Co Ltd:45
Apart from any right which may have been acquired against him by contract,
grant or prescription, every person is entitled as against his neighbour to the
comfortable and healthy enjoyment of the premises occupied by him, and, in
deciding whether in any particular case his right has been interfered with and a
nuisance thereby caused, it is necessary to determine whether the act com-
plained of is an inconvenience materially interfering with the ordinary physical
comfort of human existence, not merely according to elegant or dainty modes
and habits of living, but according to plain and sober and simple notions obtain-
ing among the English people . . . It is also necessary to take into account the
circumstances and character of the locality in which the complainant is living.
The making or causing of such a noise as materially interferes with the comfort
of a neighbour, when judged by the standard to which I have just referred,
constitutes an actionable nuisance, and it is no answer to say that the best
known means have been taken to reduce or prevent the noise complained of, or
that the cause of the nuisance is the exercise of a business or trade in a reason-
able and proper manner. Again, the question of the existence of a nuisance is
one of degree, and depends on the circumstances of the case.
The present case is concerned with nuisance by noise, smell and smoke. As the passages
cited above amply show, such nuisance is something to which no absolute standard can
be applied and it is always a question of degree whether the interference with comfort
or convenience is so substantial as to constitute a nuisance. In determining whether or
not a nuisance exists, all relevant circumstances must be taken into account. The char-
acter of the neighbourhood is an important one of these considerations and the test to be
applied is an objective one to accord with the standard of the ordinary reasonable and
responsible person living in the locality.
The premises of the defendant company are situated in an area zoned for industrial
development. There are oil installations in the same area. The premises of the West
Indian Rum Refinery are there and so also is an undertaking at which gas imported
in bulk is put into cylinders. There is a fish shed at which persons assemble to buy
fish when the boats bring them in. In the Physical Development Plan for the Island,
which, according to Mr Luther Bourne, was completed in 1967 and published in 1970,
35 acres were set aside for an industrial zone . . . It would clearly be a grave matter for
those living in the Island if the defendant company had to shut down its generating
plant at Spring Garden even for a day. But the court, though it would grieve to have
to impose such a hardship on the Island’s inhabitants, can only apply the law of the
land, and the law has always insisted that an owner of property cannot use his pro-
perty unreasonably, and it is an unreasonable use of property to cause substantial
damage to another.
The law of nuisance does not allow as a defence that the place is a convenient or suitable
one for committing the nuisance or that the business or operations causing the nuisance
is useful to persons generally in spite of its annoyance to the plaintiff. It is likewise no
defence to say that the best known means have been taken to reduce or prevent the

45 [1929] All ER 296, p 308.

158 Commonwealth Caribbean Tort Law

nuisance complained of, or that the cause of the nuisance is the exercise of a business or
trade in a reasonable and proper manner. Moreover, the fact that an area is an industrial
one does not rule out the possibility of an actionable nuisance on the ground of exces-
sive noise. In Rushmer v Polsue and Alfieri Ltd, Cozens-Hardy LJ said:46
It does not follow that because I live, say, in the manufacturing part of Sheffield,
I cannot complain if a steam-hammer is introduced next door, and so worked as
to render sleep at night almost impossible, although previously to its introduc-
tion my house was a reasonably comfortable abode, having regard to the local
standard; and it would be no answer that the steam-hammer is of the most
modern approved pattern and is reasonably worked.
In this case, therefore, the defendant cannot simply point to the fact that its operations
are in an industrial area or that the plaintiff chose to put up his apartments next to this
area, and claim immunity from action.
On the other hand, the plaintiff cannot put up his apartments next to an industrial area
and expect to apply standards of noise, smoke and smell which are alien to that locality.
As I said earlier, the standard in respect of discomfort and inconvenience from noise,
smoke and smell that I have to apply is that of the ordinary reasonable and responsible
person who lives in the Spring Garden locality. As Veale J said in Halsey v Esso Petroleum
Co Ltd,47 this is not necessarily the same as the standard which the plaintiff chooses to set
up for himself. Neither, I may add, is it the standard which tourists and visitors to the
Island expect or seek to demand. It is, as Veale J said in the same case:48
. . . the standard of the ordinary man, who may well like peace and quiet, but
will not complain, for instance, of the noise of traffic if he chooses to live on a
main street in an urban centre, nor of the reasonable noises of industry if he
chooses to live alongside a factory.
The plaintiff gave evidence himself and reinforced this by the testimony of three visitors
to the Island. In doing so, he gave the court the unenviable task of determining whether
the standard of the ordinary, reasonable and responsible local has been breached, by an
evaluation of evidence given by visitors from other countries who do not live in com-
parable settings and whose standards may be vastly different from those of the ordinary
Spring Garden local, and who furthermore are here on vacation and may well be expect-
ing their surroundings to match their mood.
This difficulty is a real one. I have not the slightest doubt that there is noise, and at times
there is smoke and smell, emanating from the defendant’s premises. But whether or not
the interference with comfort and convenience has reached the stage at which it consti-
tutes the tort of nuisance is a matter of degree. And it depends on what the locals who
live there think. There is evidence that there are about 15 chattel houses in the vicinity of
the defendant’s premises – some even nearer to those premises than the plaintiff’s
apartments. People live in these houses. I have not had the benefit of the views and
experience of any of these persons . . .
In my view, the crucial evidence in this case is that of the plaintiff himself, and the
success or failure of his case depends on whether or not I can conclude from his testi-
mony that the defendant has interfered in a substantial way with the comfort and
convenience of the ordinary, reasonable and responsible resident of the district. As
indicated earlier, this depends essentially on whether or not I can regard the plaintiff as
speaking as such a person, or whether, in testifying about the excessive noise and the
offensive smoke and smell, he is applying standards alien to the locality. His evidence
must be carefully evaluated.

46 [1906] 1 Ch 234, p 250.

47 [1961] 2 All ER 145, p 151.
48 Ibid, pp 151–52.
 Chapter 7: Nuisance 159

(Williams J evaluated this evidence and concluded that it was unsatisfactory. He

therefore found for the defendant.)
In Sheppard v Griffith 49 the defendant operated a hotel in New Amsterdam, Berbice.
The plaintiff lived in an adjacent house situated only about two metres from the hotel.
The plaintiff complained of noise from a juke box which was played in the hotel at
all hours, especially between midnight and 4 am every night, and from ‘dancing,
clapping and loud talking’ and the pelting of glasses and bottles. The plaintiff alleged
that he was compelled to move from his bedroom, which was near to the hotel
boundary, and sleep on the floor in another part of the house. The plaintiff protested
to the defendant but his protests were ignored.
It was held that the defendant’s conduct amounted to an unreasonable interfer-
ence with the plaintiff’s enjoyment of his land and constituted an actionable nuisance.
The plaintiff was entitled to damages and an injunction restraining the defendant
from playing the juke box after midnight.50 Massiah J said:
The issue for determination is whether or not that situation constitutes a nuisance to the
plaintiff. In my judgment, it does. Generally speaking, a nuisance is an interference with
a person’s use or enjoyment of land or of some right connected with it but such interfer-
ence must, of course, be substantial if the plaintiff is to succeed.
One cannot define what degree of noise in terms of decibels constitutes a nuisance. The
circumstances of each case must be closely examined and the position determined
thereby, and not by an abstract consideration of the particular offending act per se. I had
to weigh up and consider, therefore, all the circumstances of this matter, including the
respective interests of the parties, bearing in mind the fact that the defendant runs a
hotel and that music must obviously be good for his business. It may well be that many
of the hotel’s patrons who are devotees of music and with whom this nightly playing
seems to have become almost a cult, would not go there if there were not a coin oper-
ated juke box on the premises. The defendant said that he requires a juke box for his
business, and I believe him.
But this does not give the defendant the right to make as much noise as he cares. The
juke box has to be played with due consideration for the peace and quiet to which the
defendant’s neighbours are entitled. That is not to say that the plaintiff must expect to
enjoy absolute and permanent stillness as if living in a classic void; he would have to
bear a reasonable degree of noise from the hotel, occasioned by the juke box and the
patrons for whom the hotel caters, but he must not be made to suffer the nightly
torment of loud noise which persists until almost dawn.
It appears to me that it is in this civilised balancing of the competing and divergent
interests of the respective parties that the tort of nuisance has its jurisprudential roots.
For though it is true that one has freedom to make noise, one does not have an absolute
right to make as much noise as one pleases. The restraint which the law in its wisdom
accordingly imposes was explained with admirable felicity by Lord Watson in Allen v
Flood. He said as follows:51
No proprietor has an absolute right to create noise upon his own land, because
any right which the law gives him is qualified by the condition that it must not
be exercised to the nuisance of his neighbours or of the public. If he violates that
condition, he commits a legal wrong.
I regard that as a correct statement of the law and I would adopt it.

49 (1973) High Court, Guyana, No 320 of 1971 (unreported) [Carilaw GY 1973 HC 39].
50 See also Calliste v Spronk (2000) High Court, Grenada, No 559 of 1997 (unreported).
51 [1898] AC 1, p 101.
160 Commonwealth Caribbean Tort Law

This question is discussed in Halsbury’s Laws of England, 3rd edn, Vol 28, p 136, under the
heading ‘General Principles’. The passage reads thus:
Apart from any limit to the enjoyment of his property which may have been
acquired against him by contract, grant, or prescription, every person is
entitled, as against his neighbour, to the comfortable and healthful enjoyment of
the premises owned or occupied by him, whether for pleasure or business. In
deciding whether in any particular case this right has been invaded and a
nuisance thereby caused, it is necessary to determine whether the act com-
plained of is an inconvenience materially interfering with the ordinary physical
comfort of human existence, not merely according to elegant or dainty modes
and habits of living, but according to plain and sober and simple notions . . .
The next passage on the same page, under the heading ‘Noise and Vibration’, reads thus:
The making or causing to be made of such a noise or vibration as materially
interferes with the ordinary comfort of the neighbouring inhabitants, when
judged by the standard previously stated, is an actionable nuisance, and one for
which an injunction will be granted.
In my view, the noise of which complaint is made materially interferes with the ordin-
ary comfort of the plaintiff. In reaching that conclusion, I addressed my mind generally
to the circumstances of the case and, in particular, to the following factors, that is to
say, the nearness of the buildings to each other, the time when the noise is made,
the frequency of the noise, the nature and degree of the noise and the effect produced by
the noise. I shall deal briefly with each of those heads.
Nearness of the buildings
The Fountain is about eight feet north of the plaintiff’s house and is separated from it by
a fence 10 ft high. The fence does not appear to reduce the noise very much, if at all.
Time when noise is made
The plaintiff’s evidence is that the coin operated juke box is ‘mostly played after cinema
hours, from about 12 midnight until 4 am next day’. That bit of evidence weighed very
heavily with me. Night is meant for sleep, and although one’s neighbour would have to
endure some noise during the night, and perhaps even up to midnight, it is wrong
to expect him to put up with loud noise after midnight and up to 4 am. (In Christie v
Davey,52 the court expressed the view that a neighbour should cease playing a cello at
11 pm – houses separated by a party wall.)
Frequency of noise
The plaintiff’s evidence is that the noise from the juke box is heard every day; Simon
said ‘almost every night’. This continuous situation is clearly an interference with the
comfort to which the plaintiff is entitled.
Nature and degree of noise
The noise comes from a juke box and is very loud. Loud music, even when euphonious,
can be disturbing. But quite apart from that, the plaintiff had to cope with clapping,
noisy talking and, sometimes, crashing bottles and drinking glasses.
The noise produced by those collective sources in the early hours of the morning must
be quite unbearable.
Effect of the noise
The noise prevents the plaintiff from listening to his radio and makes normal conversa-
tion in his home impossible. But, much worse than that, it affects his sleep and has
forced him, for three years now, to give up the comfort of his bedroom and sleep on the
floor in a southern gallery. This situation appears to be permanent . . .

52 [1893] 1 Ch 316, pp 326, 327.

 Chapter 7: Nuisance 161

Counsel for the defendant urged on me that ‘unless there is malice or motive to disturb,
then the defendant’s intention must be considered as well as his conduct’. He was no
doubt referring to the principle that a degree of noise not otherwise actionable may be
regarded as an actionable nuisance if it is caused maliciously – see Christie v Davey;53
Hollywood Silver Fox Farm Ltd v Emmett 54 – and was asserting that in this case the
defendant was not acting maliciously. Counsel stressed that the defendant obtained
police permission to hold the dances and that the plaintiff did not oppose the defend-
ant’s application for a hotel licence or for its renewal.
The true position is that if there is no malice, the test for nuisance by noise is one of
degree. Lord Selborne put it this way in Gaunt v Fynney:55
A nuisance by noise (supposing malice to be out of the question) is emphatically
a question of degree. If my neighbour builds a house against a party wall next to
my own, and I hear through the wall more than is agreeable to me of the sounds
from his nursery or music room, it does not follow (even if I am nervously
sensitive or in infirm health) that I can bring an action to obtain an injunction.
Such things, to offend against the law, must be done in a manner which beyond
fair controversy ought to be regarded as exceptional and unreasonable.
On this aspect of the matter, the words of Lord Loreburn LC in Polsue and Alfieri Ltd v
Rushmer 56 are worth repeating. He was dealing with a complaint that noise from a
printing works situated in an industrial environment specially devoted to the printing
trade amounted to a nuisance to the plaintiff who lived next door. The court at first
instance found for the plaintiff and the House of Lords affirmed that decision. Lord
Loreburn said:57
The law of nuisance undoubtedly is elastic, as was stated by Lord Halsbury in
the case of Colls v Home and Colonial Stores Ltd. He said:58
What may be called the uncertainty of the test may also be described as its
elasticity. A dweller in towns cannot expect to have as pure air, as free from
smoke, smell and noise as if he lived in the country, and distant from other
dwellings; and yet an excess of smoke, smell and noise may give a cause of
action; but in each of such cases it becomes a question of degree, and the
question is in each case whether it amounts to a nuisance which will give a
right of action. This is a question of fact.
And later, on the same page, he said as follows:
I agree with Cozens-Hardy LJ when he says: ‘It does not follow that because
I live, say, in the manufacturing part of Sheffield, I cannot complain if a
steam-hammer is introduced next door and so worked as to render sleep at
night almost impossible, although previously to its introduction my house
was a reasonably comfortable abode, having regard to the local standard;
and it would be no answer to say that the steam-hammer is of the most
modern approved pattern and is reasonably worked.’
I accept that the defendant obtained police permission for the dances he used to hold
and no one questions that his premises are properly licensed, but it cannot be too
strongly emphasised that the defendant cannot with justification play his juke box and
make noise of an unreasonable and excessive degree to the detriment of his neighbour,
although this is done in pursuance of his business. To think otherwise is to misconceive

53 Ibid.
54 [1936] 2 KB 468, pp 474–76.
55 (1873) 37 JP 100.
56 [1907] AC 121.
57 Ibid, p 123.
58 [1904] AC 179, p 195.
162 Commonwealth Caribbean Tort Law

the legal position. I agree with the opinion expressed by Blackburn J in Scott v Firth. He
said as follows:59
A further point has been raised by the plea that the grievances complained of
were caused by the defendant in the reasonable and proper exercise of his trade
in a reasonable and proper place. My opinion is that, in law, that is no answer to
the action. I think that that cannot be a reasonable and proper exercise of a trade
which has caused such injury to the plaintiff as she complained of.
In that case, the plaintiff complained that the defendant had built a mill near to her
cottages and fitted it with steam-hammers, the vibration and noise from which had
caused her tenants to abandon the cottages. The evidence was that the vibration had
cracked the cottage walls. (See, also, Ball v Ray,60 where a stable keeper was restrained
from using his stable in such a way as to be a nuisance to the plaintiff; and Thorpe v
Leacock,61 where loud noises were caused by hammering and welding machines in the
defendant’s workshop.)
It is true that in this matter the question of malice did not arise and that the juke box is
an important facet of the defendant’s business, but I found, for reasons already stated,
that the degree of noise was excessive and unreasonable, and disturbing to the plain-
tiff’s comfort and enjoyment of his premises.

In Dehandschutter v Parkhill Holdings Ltd,62 the plaintiff sought damages for nuisance
arising out of the construction by the defendant of a block of apartments at St Lawrence
Gap, Christ Church, Barbados. The plaintiff lived in a house adjacent to the land on
which the building operations were carried out. The works lasted for a period of
about 10 months. The plaintiff complained of, inter alia, noise, dust, smells from burn-
ing tyres, and the projection of a bright light into her bedroom. There was evidence of
animosity between the defendant’s manager, E, and the plaintiff, who had from the
beginning objected to the construction of the apartment block next to her premises.
Williams J held, on the evidence, that nuisance had been established and the plain-
tiff was entitled to damages. He said:63
Bearing in mind that from the start [the plaintiff] opposed the project as it was planned,
I must take care to see that her complaints about nuisance do not really mask an inten-
tion to get back at Mr Edghill for having failed to have his project modified to suit her
wishes. In other words, if I am to give damages to the plaintiff for any nuisance, the
whole of the evidence must be considered and not the mere word of the plaintiff. Noise
there was, dust there was, and no doubt some smoke and some smell, but what I must
always seek to determine is whether the noise, dust, smoke or smell interfered in a
substantial measure with the comfort, convenience and enjoyment by the plaintiff of her
residence.
I wish to refer to two passages from the judgment of Sir Wilfred Greene MR in Andreae v
Selfridge and Co Ltd. He said:64
The judge’s views on those matters came into the reasoning of his judgment in
this way. He found that, by reason of all three operations, there was a substan-
tial interference with the comfort of the plaintiff in the reasonable occupation
and use of her house, such that, assuming damage to be established, an

59 (1864) 176 ER 505, p 506.

60 (1873) 37 JP 500.
61 (1965) 9 WIR 176.
62 (1982) 17 Barb LR 48 (High Court, Barbados).
63 Ibid, p 50.
64 [1938] 1 Ch 1, p 5.
 Chapter 7: Nuisance 163

actionable nuisance would be constituted. But it was said that when one is
dealing with temporary operations, such as demolition and rebuilding, every-
body has to put up with a certain amount of discomfort, because operations of
that kind cannot be carried on at all without a certain amount of noise and a
certain amount of dust. Therefore, the rule with regard to interference must be
read subject to this qualification, and there can be no dispute about it, that in
respect of operations of this character, such as demolition and building, if they
are reasonably carried on and all proper and reasonable steps are taken to
ensure that no undue inconvenience is caused to neighbours, whether from
noise, dust or other reasons, the neighbours must put up with it.
The other passage, on which counsel for the plaintiff relies heavily, is as follows:65
I desire here to make one or two general observations on this class of case.
Those who say that their interference with the comfort of their neighbours is
justified because their operations are normal and usual and conducted with
proper care and skill are under a specific duty, if they wish to make good their
defence, to use that reasonable and proper care and skill. It is not a correct
attitude to take to say: ‘We will go on and do what we like until somebody
complains.’ That is not their duty to their neighbours. Their duty is to take
proper precautions, and to see that the nuisance is reduced to a minimum. It is
no answer for them to say: ‘But this would mean that we should have to do the
work more slowly than we would like to do it, or it would involve putting us to
some extra expense.’ All those questions are matters of common sense and
degree, and quite clearly it would be unreasonable to expect people to conduct
their work so slowly or so expensively, for the purpose of preventing a transient
inconvenience, that the cost and trouble would be prohibitive. It is all a question
of fact and degree, and must necessarily be so.

Williams J then reviewed the evidence and concluded that there was substance in the
plaintiff’s complaints. He continued:
In my opinion, the very close proximity of the plaintiff’s dwelling made it imperative on
the defendant to exercise care and take proper steps to see that its activities on the site
did not cause undue and unreasonable discomfort or disturbance to the plaintiff in the
enjoyment of her dwelling. In my judgment, Mr Edghill never addressed his mind to
these matters. The consideration uppermost in his mind was the meeting of the dead-
line set for opening. And he never gave a thought to any adjustment or modification of
the operations he had planned. After a while he came to regard the plaintiff as a nuis-
ance and this explains the actions which he took to annoy her; the placing of the tyres on
the fire and directing the light on her bedroom.
The plaintiff’s most severe discomfort came from the noise. She was only a matter of a
few yards away from it on the occasions when the machines were working in the late
evening. It was only occasional, but it cannot be ignored. The dust would have caused
inconvenience and some discomfort. The light would have interrupted her sleeping
habits. She presumably would have done as Mrs Mitchell did and sought her rest in a
part of the house away from the light. The discomfort from the smoke and smell caused
by the burning of the tyres would have been of a transient character.

In Outar v Sookram 66 the lower flat of a two-storey building was let by the defendant to
the plaintiff. The defendant occupied the upper flat and, during the continuance of
the tenancy, the plaintiff complained of various acts of annoyance emanating from the
defendant’s premises, such as excessive noise and the dripping of water and/or urine

65 Ibid, pp 9, 10.
66 [1953] LRBG 51 (Supreme Court, British Guiana).
164 Commonwealth Caribbean Tort Law

from the upper flat to the apartment below. There was some evidence that the defend-
ant wished the plaintiff to vacate the lower flat so that the defendant could use it in
expanding her business, and that the plaintiff was unwilling to move.
Stoby J held that the acts of the defendant, if isolated, would not amount to
a nuisance, but the cumulative effect was such that a nuisance was established,
especially since they were done maliciously. He said:67
The authorities are clear that, in the absence of motive, the question of noise as a
nuisance is one of degree; see Christie v Davey.68
Putting the plaintiff’s evidence at its highest, I could not regard the hammering on the
night of 18 April as by itself constituting a nuisance.
The occupier of a house in a busy village area cannot expect the quietude associated
with residence in a lonely country district, where the silence of night is unbroken save
for the noises expected in tropical parts.
A neighbour who selects the night time to repair his signboard is being inconsiderate of
the welfare of his fellow citizens, but he is not necessarily thereby committing a nuis-
ance. I said ‘not necessarily’ because his conduct must be examined in the light of past
and subsequent events.
I turn now to the subsequent events of 27 April, 7 May and 9 July. I say at once that the
occupier of the lower flat of premises should not be over-sensitive in relation to the
behaviour of the occupants of the upper flat. This type of dwelling house in this colony
is not soundproof, nor is the flooring of the average house waterproof. The accidental
upsetting of a vase or water jug, causing water to percolate below, ought to be over-
looked by a reasonable tenant, but this does not mean that conduct which, if isolated,
would not be actionable does not become actionable when repeated and the cumulative
effect thereof is considered. Believing as I do that it was urine and not water which
descended into the plaintiff’s quarters on the dates abovementioned, and bearing in
mind the conduct of the defendant’s husband when remonstrated with on the first
occasion, I have come to the conclusion that the dripping of urine was no mere domestic
misfortune but deliberately done to annoy and inconvenience the plaintiff.
Taking this view of these acts, the hammering of 18 April is placed in its true perspective
and was done, I have no doubt, with a malicious motive.
In coming to the conclusion that the defendant’s conduct was actuated by malice, I have
taken note of the condition of the premises as seen by me when I visited at the request of
the defendant’s counsel. An extension of the lower portion of the building was in
progress. This extension, according to the defendant, was for the purpose of letting it,
when completed, as a parlour. The plaintiff carries on a parlour, and if there is no enmity
between him and the defendant, then it is an extraordinary act of friendship to install a
competitor next to him in the same building. The more plausible explanation is that the
defendant is intent on expanding her own business, and the plaintiff’s reluctance to
move is delaying this expansion.
I have endeavoured to show that while the acts of the defendant, her servants or agents,
if isolated, may not be treated as a nuisance, yet the cumulative effect of those acts
causes me to so regard them. I have also found that there was malice within the prin-
ciple of such cases as Christie v Davey and Hollywood Silver Fox Farm Ltd v Emmett.69
On these findings, I conceive that the defendant would also be liable in negligence.
In Abelson v Brockman,70 the plaintiff occupied the ground floor and the defendant the

67 Ibid, p 52.
68 [1893] 1 Ch 316.
69 [1936] 2 KB 468.
70 (1890) 54 JP 119.
 Chapter 7: Nuisance 165

third and fourth floors of the same building. The defendant’s employees, without
his knowledge, were in the habit of emptying tea leaves into a sink leading from
his premises to a pipe, and in consequence the pipe was choked and an overflow of
water ensued. The water came through the ceiling of the plaintiff’s rooms and did
damage to certain goods. It was held that the plaintiff was entitled to recover, as a duty
was cast upon the defendant to prevent an overflow, which duty he had failed to
discharge.
The defendant owed a duty to the plaintiff to prevent water or urine going through the
plaintiff’s ceiling. The acts which took place were not the malicious acts of strangers, nor
were they due to latent defects.

Interference with rights of access

This is an aspect of the law of nuisance which has been before courts in the Common-
wealth Caribbean on a number of occasions. Where an obstruction on the highway
prevents the owner or occupier of property adjoining the highway from gaining
access to his property, the person responsible for the obstruction may be held liable in
public nuisance (on the ground that the owner or occupier has suffered particular
damage over and above that suffered by the general public) or in private nuisance (for
interference with a private right).
In Boxill v Grant,71 the plaintiff complained that access from the public road to his
workshop was being blocked by the defendant’s parking of vehicles in such a way as
to prevent the plaintiff and his customers from entering and leaving the plaintiff’s
premises with their vehicles. In considering the applicable principles of law, Williams
CJ (Ag) said:72
I can hardly do any better than quote from the judgment of Lord Hanworth MR in
Harper v GN Haden and Sons Ltd where, after examining the authorities, he set out the
propositions which the cases established:73
(1) A temporary obstruction to the use of the highway or to the enjoyment of adjoining
premises does not give rise to a legal remedy where such obstruction is reasonable
in quantum and duration.
(2) If either of those limitations is exceeded, so that a nuisance to the public is created,
the obstruction is wrongful, and an indictment to abate it will lie.
(3) If an individual can establish (a) a particular injury to himself beyond that which is
suffered by the rest of the public; (b) that the injury is directly and immediately the
consequence of the wrongful act; (c) that the injury is of a substantial character, not
fleeting or evanescent, he can bring his action and recover damages for the injury he
has suffered.
These propositions had earlier been stated in similar terms by Brett LJ in Benjamin v
Storr.74
In Fritz v Hobson,75 Fry J considered not only those principles which are applicable when
an individual suffers private injury from a public nuisance, but he also considered the

71 (1978) 13 Barb LR 72 (High Court, Barbados).

72 Ibid, p 75.
73 [1933] Ch 298, p 304.
74 (1874) LR 9 CB 400.
75 (1880) 14 Ch D 542.
166 Commonwealth Caribbean Tort Law

principles applicable where there is interference with the private right of entrance from
the highway to adjoining property. He stated:76
Where the private right of the owner of land of access to a highway is unlaw-
fully interfered with, he may recover damages from the wrongdoer to the extent
of his loss of profits in his business carried on at the place.

Williams CJ (Ag) held that, in the present case, ‘a nuisance to the public was created,
but on the evidence the plaintiff can point to nothing constituting an injury to his
business . . . The access to his premises was obstructed for a short while, but the
plaintiff has not shown any way in which his business would have suffered. If indeed
there was injury, there can be no escape from the conclusion that it would not have
been of a substantial character’. The plaintiff’s claim therefore failed.
Another example of this type of case is Hall v Jamaica Omnibus Services Ltd,77 where
the claim in nuisance succeeded. Here, the appellant erected a wall along the bound-
ary of his premises adjacent to a public sidewalk in Kingston, for the purpose of
providing advertising spaces for rent. Shortly afterwards, the respondents erected a
bus shelter on the sidewalk immediately in front of the main advertising space of the
appellant’s wall, despite the appellant’s objections. The bus stop was placed about
8 cm from the wall and was so close that it not only prevented the appellant from
displaying and advertising material, but deprived him of access to the wall for the
purposes of cleaning and painting it.
The Jamaican Court of Appeal held that the appellant had a right of access to his
wall and he had been denied this right by reason of the bus shelter. The respondents
were therefore liable for damages in private nuisance. Duffus P said:
I am of the view that Rowlatt J in Cobb v Saxby 78 stated the law quite correctly when he
said that the owner of land adjoining a highway has the right of passing from his
premises on to the highway, and if that right is obstructed he is a person who has a
cause of action by reason of the interference with or obstruction to his private right, and
similarly, I agree with him that the owner of a wall on his land has the right (subject, of
course, to various statutory restrictions) to do anything he likes to the wall, for example,
to display advertisements thereon; but I think that the learned judge went too far when
he stated that if anyone prevented the public from gazing at the advertisements on the
wall, the rights of the owner of the wall were invaded. To my mind, if this were so, it
would mean that the owner of land would be entitled to a right of view from his land
which Hardwicke LC (in AG v Doughty)79 and Chelmsford LC (in Butt v Imperial Gas
Co)80 have stated clearly is not the law, and so, a fortiori, it surely cannot be the law that
the owner has a right for the public passing along the public highway to view his land.
On the facts established by the appellant in the instant case, it seems quite clear, how-
ever, that the appellant has been denied the right of access to his wall by reason of the
bus shelter. It is quite clear that the shelter is so constructed and is placed so close to the
plaintiff’s wall that he is prevented not only from placing advertisements thereon, but
from cleaning, painting or repairing the wall, and this would be a clear negation of his
right of access thereto.

76 Ibid, pp 553–54.
77 (1966) 9 JLR 355 (Court of Appeal, Jamaica).
78 [1914] 3 KB 822, p 825.
79 (1752) 28 ER 290.
80 (1866) 2 Ch App 150.
 Chapter 7: Nuisance 167

Overhanging trees

Where the branches of trees growing on the defendant’s land overhang neighbouring
land, the owner or occupier of the latter property has the right to abate the (private)
nuisance by cutting off the overhanging branches; and if the overhanging trees cause
damage to crops on the neighbouring land, the owner of the latter may also recover
damages for the harm suffered.81 And where trees overhang the highway and cause
injury or damage to a person on the highway, the occupier will be liable in public
nuisance, on the ground that the person injured has suffered ‘particular damage’ over
and above that suffered by the general public. In the Caribbean, Somairsingh v
Harpaulsingh is an example of the former case and Charles v Charles is an example of
the latter. Further, Titus v Duke is authority for the proposition that no action lies in
private nuisance in respect of damage suffered by a person in occupation of the same
premises on which the nuisance arose – in this case, damage from a falling sapodilla
tree.
In Somairsingh v Harpaulsingh,82 S was the tenant of a room on certain premises
over the yard of which hung the branches of a breadfruit tree growing on the adjoin-
ing premises occupied by H. S cut down the overhanging branches of the tree, and the
question was whether he had a right to do so by way of abatement of nuisance.
H argued, inter alia, that S was not entitled to abatement, since he was not the owner
of the premises affected by the nuisance, but was only a tenant of one room situated
on the premises. Verity CJ said:
There does not appear to be anything in the authorities . . . which limits the right to
abate a nuisance to the legal owner of the premises . . . We are of the opinion that the
rights of the tenant or occupier do not differ in this matter either in kind or degree from
those of the owner.
The question then arises as to whether or not the overhanging branches constituted a
nuisance in fact at the time when the appellant cut them, even though there is no
evidence that at that time they were actually dropping leaves or fruit in the premises
occupied by the appellant. It appears from the opinion of the Lord Chancellor in
Lemmon v Webb 83 that the mere fact that branches overhang the adjoining land gives the
owner of that land a right to cut them, though his Lordship expressed the view that ‘it
may be and probably is generally a very unneighbourly act to cut down the branches of
overhanging trees unless they are really doing some substantial harm’ . . . If the branch
was a nuisance by the mere fact of its overhanging, which is so, and if the appellant had
the right to cut it in order to abate that nuisance, which he had, then his motive in doing
so is immaterial.

In Charles v Charles,84 the plaintiff, a police constable, was walking along a public
highway when a coconut fell from one of the defendant’s trees, which was overhang-
ing the highway, and fractured his shoulder. On two previous occasions, persons on
the highway had been struck by coconuts falling from the defendant’s trees and the
defendant had been informed of this but had done nothing about it. She had been
served with a notice by the Public Works Department requiring her to have her
overhanging trees cut, but she had failed to comply.

81 Smosher v Carryl [1921] LRBG 45 (Supreme Court, British Guiana).

82 [1942] LRBG 82 (Full Court, British Guiana).
83 [1895] AC 1.
84 (1973) High Court, West Indies Associated States, St Vincent Circuit, No 153A of 1967
(unreported).
168 Commonwealth Caribbean Tort Law

The defendant was held liable in both negligence and nuisance.85 Peterkin JA said:
To those who live in colder climates, there is nothing quite so capable of conjuring up a
picture of seventh heaven as a tropical strand fringed with coconut palms. The tree is
seldom ever associated with harm. The ensuing facts, however, bear testimony that in
other given circumstances it is capable of causing considerable hurt. They stand
uncontroverted, and are as follows . . . [Peterkin JA narrated the facts and continued]
...
There is little authority on the question of liability for accidents caused by trees over-
hanging the highway from adjoining property. The matter, however, is of importance to
all persons who have land with trees growing upon that land close to the road.
It has been contended on behalf of the defendant that in this case there was a natural
user of the land, and that the plaintiff, having become aware of the danger, ought to
have avoided it. With regard to user, it is conceded that the principle in Rylands v
Fletcher 86 has no application to the present case. Coconut trees are a usual and normal
incident of the West Indian countryside. To grow such a tree is one of the natural uses of
the soil. On the question of avoidance, the plaintiff does admit in the course of his
evidence that he was aware that the trees were overhanging the highway, and that it
was within his knowledge that two people had previously been struck in passing,
namely, his mother, and one Durrant. However, he went on to explain that, on the day
he was struck, he did not know that there were dry coconuts on the trees overhanging
the highway. According to plaintiff’s witness, Arthur King, the road was 12 ft wide, and
the trees were overhanging to such an extent that to avoid any risk one would have had
to walk alongside the drain on either side. We know, then, that to have avoided being
struck, the plaintiff could have used the drains, trespassed on adjoining soil, or even
perhaps have run the proverbial gauntlet. But all this is, to my thinking, beside the
point. The fact is that the plaintiff was exercising his common law right in relation to the
highway of passing and repassing.
Now, what is the law in those circumstances? The plaintiff has sued in nuisance, or
alternatively in negligence, but what has to be determined in this case is the same thing:
whether the claim is in nuisance or in negligence. The plaintiff has to show that the
defendant was guilty of the neglect of some duty in allowing such a position to have
arisen and continued, having become aware of it.
As to negligence, the law, as I see it, is that the owner of land which has trees upon it
adjoining the highway, and which are found to be dangerous, has a duty cast upon him
to have them removed if there is a danger of their causing harm to anyone who is
lawfully upon the roadway.
As to nuisance, the law is laid down in the case of Noble v Harrison 87 and approved in the
case of Cunliffe v Bankes.88 It is as follows:
A person is liable for a nuisance constituted by the state of his property:
(a) if he causes it;
(b) if, by the neglect of some duty, he allows it to arise; and
(c) if, when it has arisen without his own act or default, he omits to remedy it within a
reasonable time after he did or ought to have become aware of it.

85 It is noteworthy that Peterkin JA spoke of liability in ‘nuisance’, without specifying whether

the basis of liability was public or private nuisance. On principle, public nuisance seems more
applicable, since injury was caused to a user of the public road, and the plaintiff had no
interest in land. However, Noble v Harrison [1926] 2 KB 332 is authority for the actionability in
private nuisance of damage caused by tree branches overhanging the highway.
86 (1866) LR 1 Exch 265. See below, Chapter 8.
87 [1926] 2 KB 332.
88 [1945] 1 All ER 459.
 Chapter 7: Nuisance 169

As Singleton J puts it in the case of Cunliffe v Bankes,89 those who have property of this
kind have to realise there is a duty to the public. In the instant case, the danger was
made manifest to the defendant, and she has failed lamentably in her duty to remedy it.

In Titus v Duke,90 the defendants/appellants let a dwelling house to the plaintiff/

respondent. On the premises, at the back of the house, there was a large sapodilla tree
whose branches overhung a shed which the respondent had erected for use as a
garage for his car. The respondent alerted the appellants to the fact that the tree had
become affected by wood ants and that there was a danger that a branch would fall
and cause damage, but the appellants retorted that the respondent should leave the
tree as it was and that, if he was not satisfied with the situation, he should quit the
premises. Later, a branch suddenly snapped and fell, wrecking the shed and dam-
aging the respondent’s car which was parked there. The respondent brought an action
against the appellants for, inter alia, nuisance.
The Court held that the appellants were not liable in nuisance, since the respond-
ent was the occupier of the very premises from which the nuisance arose. Wooding CJ
said:91
The learned petty civil court judge who tried the action held the appellants liable in
nuisance and awarded the respondent damages in the sum of $175 together with his
costs of suit. In so doing, he appears not to have appreciated that, in effect, the respond-
ent’s claim was for damage suffered upon premises occupied by him, which was attrib-
uted to a nuisance proceeding from the self-same premises. The essence of a private
nuisance, which is the allegation in the instant case, is that there has been some wrong-
ful interference with the use or enjoyment of land or premises by the continuance of a
state of things, notwithstanding awareness of the danger thereby threatened, upon
other premises in the occupation or, it may be in some cases, in the ownership of the
person to whom it is sought to attach liability. Thus, in Sedleigh-Denfield v O’Callaghan,92
Lord Atkin stated that, for the purpose of ascertaining whether the plaintiff therein
could establish a private nuisance:
. . . nuisance is sufficiently defined as a wrongful interference with another’s
enjoyment of his land or premises by the use of land or premises either occu-
pied or in some cases owned by oneself.
As there must, therefore, be offending premises separately occupied from the premises
affected by the alleged nuisance, no question of nuisance can properly arise herein.

WHO CAN SUE?

Private nuisance

Since private nuisance is essentially an interference with the use and enjoyment of
land, the traditional view is that only a person who has an interest in the land affected
is entitled to bring an action.93 Thus, an owner in fee simple or a lessee under a lease
will have a sufficient interest in the land to maintain an action. A person having no
legal or equitable interest in the property, such as a guest, a lodger or a member of the

89 Ibid.
90 (1963) 6 WIR 135 (Court of Appeal, Trinidad and Tobago).
91 Ibid, p 136.
92 [1940] AC 880, pp 896–97.
93 Malone v Laskey [1907] 2 KB 141.
170 Commonwealth Caribbean Tort Law

owner’s family, cannot sue for private nuisance;94 their only course will be to sue in
negligence in respect of any damage they may have suffered personally. A departure
from this rule occurred in Canada, where the Court of Appeal of New Brunswick held
in Devon Lumber Co Ltd v MacNeill 95 that an occupier’s children, who had no legal or
equitable interest in the family home, could nevertheless maintain an action in nuis-
ance for interference with their enjoyment of the property by reason of dust emanat-
ing from the defendant’s cedar mill; but the rule has been emphatically re-affirmed by
the House of Lords in Hunter v Canary Wharf Ltd,96 where it was held that the tort of
private nuisance is concerned with the plaintiff’s enjoyment of his rights over land,
and only a person with a right to exclusive possession of the land affected, such as a
freeholder, a tenant in possession or a licensee with exclusive possession, can sue.97
Even a person who has an interest in the land cannot sue if he is not in possession
but has only a reversionary interest. Thus, where property is let to a tenant having
exclusive possession, the landlord cannot maintain an action in nuisance in respect of
any activity of the defendant which occurs during the tenancy,98 unless he can show
that the activity has caused or is likely to cause permanent damage to the property, for
example, damage due to vibrations set up on the defendant’s land,99 which will injure
his reversionary interest.
It is uncertain whether even a plaintiff who has an interest in land can recover
damages for harm to chattels or for personal injuries. Damages have been awarded in
some cases of harm to chattels100 and refused in others.101 It appears that there is no
English case in which damages for personal injuries have been recovered in private,
as opposed to public, nuisance, though the Canadian courts have allowed such
claims.102 It is arguable that, once the plaintiff has established an interference with his
use of land, he should be able to recover by way of consequential damages for harm to
his chattels and for personal injury. Thus, for example, the owner of land who proves
a nuisance caused by noxious fumes from the defendant’s factory should be able to
recover damages for any illness he has suffered thereby. However, in Hunter v Canary
Wharf Ltd, Lord Lloyd appeared to deny this possibility. He said:103
The essence of private nuisance is easy enough to identify . . . namely, interference with
land or the enjoyment of land . . . The effect of smoke from a neighbouring factory is to
reduce the value of the land. There may be no diminution in the market value. But there
will certainly be loss of amenity value so long as the nuisance lasts . . . If the occupier of
land suffers personal injury as a result of inhaling the smoke, he may have a cause of
action in negligence, but he does not have a cause of action in nuisance for his personal

94 Ibid.
95 (1988) 45 DLR (4th) 300. See Kodilinye, G (1989) 9 LS 284.
96 [1997] 2 All ER 426.
97 Thus in Velasquez t.a. Panaderia v Ek (2003) Court of Appeal, Belize, Civ App No 3 of 2003
(unreported), it was held, following Hunter, that claimants who complained of being affected
by smoke from the defendant’s bakery had no locus standi to sue, having no legal or equitable
interest in the property in which they resided, nor even being licensees with exclusive
possession.
98 Cooper v Crabtree (1882) 20 Ch D 589.
99 Colwell v St Pancras BC [1904] Ch 707.
100 Eg, Midwood v Manchester Corp [1905] 2 KB 597; Halsey v Esso Petroleum Co Ltd [1961] 2 All
ER 145.
101 Cunard v Antifyre Ltd [1933] 1 KB 551.
102 Devon Lumber Co Ltd v MacNeill (1988) 45 DLR (4th) 300.
103 [1997] 2 All ER 426, p 442.
 Chapter 7: Nuisance 171

injury, nor for interference with his personal enjoyment. It follows that the question of
damages in private nuisance does not depend on the number of those enjoying the land
in question. It also follows that the only persons entitled to sue for loss in amenity value
of the land are the owner or the occupier with the right to exclusive possession.

In the Barbadian case of St Lawrence Apartments Ltd v Downes,104 the plaintiff company
brought an action in nuisance, complaining that the nightly playing of excessively
loud music in the defendant’s nearby night club seriously interfered with its busi-
ness – an apartment hotel catering to tourists – and had caused loss of profits. The
defendant argued that, as a limited liability company, the plaintiff was not competent
to bring the action, as it was incapable of residing in property and of suffering the
sensation of discomfort from noise. King J rejected this contention, holding that a
company may sue in nuisance by, inter alia, noise, provided that it pleads occupation
of the premises affected and can show that its property has diminished in value or has
suffered loss through interference with its business.105 He continued:106
Occupation by a company must be different from that by an individual, about whom
Lush J said in R v St Pancras Assessment Committee:107 ‘If however, he furnishes it and
keeps it ready for habitation whenever he pleases to go to it, he is an occupier, although
he may reside in it one day a year.’
A company may furnish a place and keep it ready for habitation, but it cannot ever
reside as an individual can. Occupation must, therefore, be based on different cri-
teria. I would think that if a company carries on its business at a place, keeps staff
there and through them provides services for its clients, it is in occupation. I hold
that the plaintiff herein, by owning the hotel, carrying on its business there and
maintaining its staff there over a 24 hour period to provide services for its guests, is
in occupation.

Public nuisance

As we have seen, any person who can show that he has suffered particular damage
over and above that suffered by the general public can sue for public nuisance.108
Particular damage includes, inter alia, injury to land and chattels and personal injur-
ies. The range of persons who may sue for public nuisance is, therefore, wider than
that of private nuisance, in that in public nuisance:
(a) the plaintiff need not have an interest in land; and
(b) the plaintiff can recover damages for personal injuries.
In Castle v St Augustine’s Links Ltd,109 for example, a taxi driver was driving his taxi
along a public highway when he was hit in the eye by a golf ball which was struck
from the defendants’ nearby golf course. His action for damages for the loss of the
eye succeeded on the ground that the positioning of the golf course so close to the
highway as to endanger passers-by constituted a public nuisance, and the plaintiff

104 (1995) 31 Barb LR 78 (High Court, Barbados).

105 Following St James Coast Estates Ltd v Sunset Crest Rentals (1977) 29 WIR 18 (High Court,
Barbados), p 20, per Douglas CJ.
106 Ibid, p 93.
107 (1877) 2 QBD 381.
108 See above, pp 149–51.
109 (1922) 38 TLR 615.
172 Commonwealth Caribbean Tort Law

had suffered particular damage. No action in private nuisance would have been
possible, since the plaintiff had no interest in land and he had suffered only personal
injuries.

WHO CAN BE SUED?

The proper defendant in an action for public or private nuisance is the person who
bears ‘some degree of personal responsibility’110 for it. He may be:
(a) the creator of the nuisance;
(b) the occupier of the premises from where the nuisance emanates; or
(c) in certain circumstances, the landlord who is out of occupation of such premises.

The creator

Whoever creates a nuisance may be sued for it, whether or not he is in occupation of
the land from which it emanates.111 The example commonly given of liability of the
creator of a nuisance is that of the builder of a house which obstructs the neighbour-
ing landowner’s easement of light or easement of way.112 The liability is a continuing
one, including not merely the wrongful act itself, but the continuance of the wrongful
state of affairs which results from it; and it has been held that it is no defence that the
creator of the nuisance has no power to remove it without committing a trespass
because the land from which the nuisance emanates is in the occupation of a third
party.113

The occupier

Usually, the occupier of the land from which the nuisance emanates will be liable for
it. ‘Occupier’, as is usual in the law of torts, means the person having control of
premises, whether personally or through his servants or agents. In most cases, the
occupier will also be the creator of the nuisance (for example, where he causes
unreasonable noise or noxious fumes to be emitted from his factory; or where he
builds a wall on his land which collapses and damages the plaintiff’s adjoining pro-
perty), but that will not necessarily be so. Where the occupier is not also the creator, the
following principles will apply:
(a) if the nuisance is created by the occupier’s servant acting in the course of his
employment, the occupier will be liable on ordinary principles of vicarious
liability;
(b) if it is created by an independent contractor engaged by the occupier, the latter
will generally not be liable. But where the contractor is employed to do a job
which involves special risk of nuisance, for example, construction work on or near

110 Sedleigh-Denfield v O’Callaghan [1940] AC 880, p 897, per Lord Atkin.

111 Op cit, Winfield and Jolowicz, fn 26, p 514.
112 See Heuston and Buckley, Salmond and Heuston on the Law of Torts, 21st edn, 1996, London:
Sweet & Maxwell, p 68.
113 Thompson v Gibson [1835–42] All ER Rep 623.
 Chapter 7: Nuisance 173

the highway, the occupier will be under a ‘non-delegable’ duty to ensure that care
is taken,114 and if the contractor creates a nuisance, the occupier will be liable for it;
(c) if it is created by a licensee of the occupier, for example, the occupier’s guest,
lodger or visiting relative, the occupier will not be liable unless he knew or
ought to have known of the nuisance and failed to take steps to control the
licensee;115
(d) if it is created by a trespasser (over whom the occupier has no control) or results
from an act of nature, the occupier will not be liable, unless:
• he knows or ought to know of its existence; and
• he ‘adopts’ the nuisance by using the state of affairs for his own purposes, or
‘continues’ the nuisance by failing to take reasonably prompt and effective
steps to abate it;116
(e) if the nuisance existed before the occupier acquired the property, he will not be
liable unless he knew or ought to have known of its existence and failed to take
reasonable steps to abate it;117
(f ) in all of the above cases, the creator of the nuisance118 will himself be liable;
(g) if the nuisance is created by natural forces, for example, by storm or landslide, the
occupier will be liable if he fails to take reasonable steps to abate it and damage is
caused thereby.119 Thus, in the Trinidadian case of Hernandez v Alta Garcia Quarry
Ltd,120 the defendant was held liable in nuisance where, as a result of heavy rains
and flooding, silt and rubble were brought down from the defendant’s quarry and
settled on the plaintiff’s cocoa and avocado pear trees. Des Iles J considered that
the working of the quarry was a hazard and that some damage was foreseeable.

The landlord

Where land is let to a tenant, he has exclusive possession and, generally, it is he, and
not the landlord, who can be sued for any nuisance occurring during the period of the
tenancy121 But a landlord can be sued where:
(a) he expressly or impliedly authorised the tenant to create the nuisance, for
example, where L let premises to T for a purpose which both parties knew would
cause unreasonable noise;122

114 Matania v National Provincial Bank [1936] 2 All ER 633.

115 White v Jamieson (1874) LR 18 Eq 303.
116 Sedleigh-Denfield v O’Callaghan [1940] AC 880.
117 St Anne’s Well Brewery Co Ltd v Roberts [1928] All ER Rep 28.
118 Ie, the servant, the independent contractor, the licensee or the trespasser.
119 Goldman v Hargrave [1966] 2 All ER 989; Leakey v National Trust [1980] 1 All ER 17; Cudjoe v AG
(1982) High Court, Trinidad and Tobago, No 683 of 1972 (unreported) [Carilaw TT 1982
HC 26].
120 (1981) High Court, Trinidad and Tobago, No 2298 of 1979 (unreported). Cf Wheatley v Coder
(1999) High Court, Trinidad and Tobago, No 1498 of 1992 (unreported) [Carilaw TT 1999 HC
88] (defendant liable in negligence for damage caused by a tall coconut tree falling onto
plaintiff’s neighbouring property, as the defendant should have been aware of the dangerous
state of the tree and had taken no steps to remove or give warning of the danger).
121 Cheetham v Hampson (1791) 100 ER 1041.
122 Harris v James [1874–80] All ER Rep 1142; St Lawrence Apartments Ltd v Downes (1995) 31 Barb
LR 78.
174 Commonwealth Caribbean Tort Law

(b) he let land on which there was already a nuisance for which he was himself
responsible, and he knew or ought to have known of the existence of the nuisance
before he let the land;123 or
(c) in the case of a nuisance arising from failure to repair, where he covenanted in the
lease to repair, or he reserved to himself a right to enter and repair, or he had an
implied right to enter and repair.124

Nuisance and strict liability

A question which has long been debated is whether or not private nuisance is a tort of
strict liability. Put in another way, must the plaintiff prove fault on the defendant’s
part in order to succeed in a nuisance action? This question was given an authoritative
answer by Lord Goff in Cambridge Water Co v Eastern Counties Leather plc.125 Lord Goff’s
analysis may be summarised thus:
(a) in cases where an injunction is claimed, fault is irrelevant because the sole issue is
whether future conduct should be restrained, not whether the defendant is to be
made liable for what has happened in the past;
(b) in cases where nuisances arise from natural causes or the acts of third parties,
liability in effect depends on negligence on the defendant’s part, and so, proof of
fault is necessary;
(c) in cases where the defendant or his servant or agent is the creator of the nuisance,
liability is strict, in the sense that the fact that the defendant has taken all reason-
able care is not in itself a defence. If the defendant’s use of his land is unreasonable
and interferes with his neighbour’s enjoyment of his land, he will be liable for the
harm, however carefully he may have tried to avoid it.

The rule in Wringe v Cohen

Under the rule in Wringe v Cohen:126

If, owing to want of repair, premises on a highway become dangerous and, therefore, a
nuisance, and a passerby or an adjoining owner suffers damage by their collapse, the
occupier, or the owner if he has undertaken the duty of repair, is answerable, whether
he knew or ought to have known of the danger or not.

This principle was applied by Fox JA in the Jamaican Court of Appeal in Malabre v
Gordon.127 In this case, the plaintiff/respondent was walking on the sidewalk of a
public highway when a sign board, which was affixed to the wall of a two-storey
building, fell on him and caused injury. Luckhoo and Graham-Perkins JJA found for
the defendant on other grounds, but Fox JA, dissenting, took the view that the rule in
Wringe v Cohen was applicable and that the landlord of the building, of which part had
been let to a tenant, was liable to the plaintiff. He explained the position thus:128

123 St Anne’s Well Brewery Co Ltd v Roberts [1928] All ER Rep 28.
124 See op cit, Winfield and Jolowicz, fn 26, p 521.
125 [1994] 1 All ER 53.
126 [1940] 1 KB 229.
127 (1974) 12 JLR 1407.
128 Ibid, p 1416.
 Chapter 7: Nuisance 175

[The dictum in Wringe v Cohen] is obiter because the case was concerned with the liability
of the owner of tenanted premises for damages in nuisance caused by the fall of a
projection, a decayed gable-end, onto the roof of an adjoining shop; the case had noth-
ing to do with the fall of a projection over a highway. The actual decision has been the
subject of adverse comment (see notes in (1940) 56 LQR pp 1–5; 140–44). In excluding
negligence from the liability for artificial projections over the highway, and in making
liability in that special category of nuisance nearly as strict as the rule in Rylands v
Fletcher, the dictum in Wringe v Cohen runs counter to the trend in recent cases towards
subsuming the tort of nuisance under the general standard of care denoted by liability
for negligence. This trend was intensified in The Wagon Mound (No 2) 129 when Lord Reid
said in a sentence ranked as an example of judicial legislation based on policy rather
than upon reason, logic or precedent:130
It could not be right to discriminate between different cases of nuisance so as to
make foreseeability a necessary element in determining damages in those cases
where it is a necessary element in determining liability, but not in others. So the
choice is between it being a necessary element in all cases of nuisance or in none.
Just before these observations,131 Lord Reid had noticed Wringe v Cohen with neither
approval nor denial. Perhaps Lord Reid recognised that where the safety of the general
public was at stake, particularly when artificial projections on premises adjacent to a
highway collapsed, there was substance in the proposition that the liability of the owner
or occupier of the building to a person on the highway who was injured as a result of
the collapse, should be gauged not in terms of fault, or of a lapse from the standards
of the reasonable man, but by the resolution of opposing interests and needs in order
that the lesser in social value is made to give way before the greater.

Abatement of nuisance

The normal judicial remedies for nuisance are damages and/or an injunction to
restrain continuance. There is also the ancient extra-judicial remedy of abatement, an
example of which is the right of an occupier of land to cut off the branches of a
neighbour’s tree which overhang his property.132 Another example of the availability
of the remedy in the Caribbean occurred in Gobin v Lutchmansingh.133 There, a wall on
G’s land, near to the boundary with L’s land, collapsed, depositing rubble and dirt on
L’s property. It was held that L had the right to abate the nuisance by entering G’s
property and excavating a portion of land on the common boundary in order to
remove the debris. Davis J explained the nature of the remedy thus:
Halsbury’s Laws of England, 3rd edn, Vol 28, para 202, p 150, lays down what is meant by
abatement. It provides as follows:
Abatement means the summary removal or remedy of a nuisance by the party
injured without having recourse to legal proceedings. It is not a remedy which
the law favours and is not usually advisable. There is authority for saying that
its exercise destroys any right of action in respect of the nuisance.
Normally, notice of abatement ought to be given, but this is subject to the exception
that, in case of emergency, a nuisance may be abated without notice in order to protect

129 [1966] 2 All ER 709.

130 Ibid, p 717.
131 Ibid, p 716.
132 See above, p 167.
133 (1987) High Court, Trinidad and Tobago, No MO 5361 of 1986 (unreported).
176 Commonwealth Caribbean Tort Law

life or property. Further, abatement without notice may be justified, although involving
entry on the land of another, where [that other] is the original wrongdoer bringing into
existence the nuisance . . . The exercise of the right of abatement destroys any right of
action in respect of the nuisance . . .
It seems to me that the principles I have set out above apply in the circumstances of this
case, having regard to the facts as I have found them. In other words, the defendant in
my view had a right which he exercised to abate a nuisance. The question is, did he do
more damage than was necessary? If he did more damage than necessary, he would be
liable in trespass.

Davis J concluded on the evidence that the defendant had not done more damage
than was necessary.

DAMAGES

Nuisance is derived from an action on the case and not from trespass, and so is not
actionable per se: damage must normally be proved by the plaintiff. Thus, as we have
seen, in public nuisance the plaintiff must prove that he has suffered some particular
damage over and above that suffered by the general public; and in private nuisance
he must show sensible material injury to his property or substantial interference with
his enjoyment of his land. But there are three classes of case where damage need not
be proved. They are:
(a) where, on the facts, damage can be readily presumed. For example, where the
defendant built a house so that one of the cornices projected over the plaintiff’s
adjoining land, the court presumed that damage would be caused by rain water
dripping from the cornice on to the plaintiff’s land;134
(b) where the defendant interferes with an easement or right of access of the
plaintiff;135
(c) where harm to the plaintiff is reasonably feared to be imminent though none has
actually occurred, then an injunction may be granted in a quia timet action.136

DEFENCES

Certain general defences are available to defendants in nuisance actions, though most
are somewhat restricted in their application. For instance, it seems that contributory
negligence can be invoked only where the nuisance complained of is based on neg-
ligent conduct, and not where it is the intended result of an intentional act of the
defendant;137 volenti non fit injuria may be available, provided that there is no neg-
ligence on the defendant’s part;138 and ‘act of a stranger’ will be a defence only where
the defendant was not at fault in failing to notice the nuisance or in failing to

134 Fay v Prentice (1845) 135 ER 789.

135 Nicholls v Ely Beet Sugar Factory Ltd [1936] Ch 343.
136 AG v Manchester Corp [1893] 2 Ch 87.
137 See op cit, Brazier, fn 17, p 371. Winfield and Jolowicz (op cit, fn 26, p 527) assume that the
defence of contributory negligence is available in private nuisance; Salmond and Heuston
(op cit, Heuston and Buckley, fn 111, p 70) suggest that the defence is available in public
nuisance, but not in private nuisance.
138 Kiddle v Business Properties Ltd [1942] 1 KB 269.
 Chapter 7: Nuisance 177

take steps to abate it. Another possible defence is necessity, which lies where, in order
to avoid an imminent peril to himself, the defendant takes some action which
unavoidably causes damage to the plaintiff. For example, it has been held that a
landowner whose property is threatened by an incursion of flood water is entitled to
erect barricades on his land, even if the foreseeable result is the flooding of his neigh-
bour’s property by the diverted water.139

Statutory authority

An important defence to liability in nuisance is statutory authority. In modern times,

legislatures frequently impose duties upon or give powers to public authorities to
perform certain functions for the public benefit, such as the supply of water and
electricity or the disposal of sewage. Where a nuisance is caused in the course of
carrying out such duties or powers, the public authority may sometimes escape liabil-
ity by pleading statutory authority. The rule seems to be that, where a statute author-
ises the doing of a particular act which will inevitably cause a nuisance, any resulting
harm will not be actionable, provided that all reasonable care and skill, according to
the current state of scientific knowledge, has been taken.140
A distinction is drawn between statutory provisions which are mandatory (that is,
impose a mandatory obligation upon a public authority to supply a service) and those
which are merely permissive (that is, give the authority a discretion as to whether to
execute the authorised works). Where damage is caused in the course of carrying out
a mandatory obligation, the authority will not be liable in nuisance141 or under the
rule in Rylands v Fletcher,142 provided that it was not negligent. In Lord Sumner’s
words, ‘if the legislature has directed and required the undertaker to do that which
caused the damage, his liability must rest upon negligence in his way of doing it, and
not upon the act itself’.143 This is so even where the statute contains a ‘nuisance
clause’, that is, a clause to the effect that nothing in the statute should exonerate the
undertaker from liability in nuisance,144 for, as Sellers LJ pointed out, gas, electricity
and water are all capable of doing damage, and a strict or absolute liability for any
damage done by them would convert the undertakers of these services into
insurers.145 In the case of permissive powers, on the other hand, ‘the fair inference is
that the legislature intended the discretion to be exercised in strict conformity with
private rights’.146 This means that, in carrying out a permissive power, the undertaker

139 Nield v London and North Western Rly (1874) LR 10 Ex 4, p 7. But in Vaccianna v Bacchus (1964) 8
JLR 497 (Court of Appeal, Jamaica), it was held that the defendant must not do more than is
reasonably necessary for the protection of his land. Thus, where the defendant did not
merely dig a drain on his own land, leading water off his land, but also dug a drain from a
pond on adjacent land, which caused excessive flooding of the plaintiff’s property, he was
liable in nuisance.
140 Manchester Corp v Farnworth [1930] AC 171; Hinsey v Bahamas Electricity Corp (2001) Supreme
Court, The Bahamas, No 1146 of 1996 (unreported) [Carilaw BS 2001 SC 72]. See Kodilinye,
G (1990) 19 Anglo-Am LR 72.
141 Department of Transport v North-West Water Authority [1984] 1 AC 336.
142 Green v Chelsea Waterworks Co (1894) 70 LT 547; Martins v L King and Sons Ltd (1978) High
Court, Guyana, No 1881 of 1977 (unreported) [Carilaw GY 1978 HC 20].
143 Charing Cross Electricity Supply Co v Hyaraulic Power Co [1914] 3 KB 772, pp 782, 783.
144 Dunne v North Western Gas Board [1963] 3 All ER 916.
145 Ibid, p 922.
146 Metropolitan Asylum District v Hill (1881) 6 App Cas 193, p 213, per Lord Watson.
178 Commonwealth Caribbean Tort Law

may be strictly liable in nuisance or under Rylands v Fletcher for any harm caused,
whether it has been negligent or not, at least where there is a nuisance clause. How-
ever, the question as to whether statutory authority is a defence in a given case
depends upon a construction of the particular statute.
In East Demerara Water Conservancy Board v Saliman,147 the appellant was under
a mandatory statutory duty to construct and manage an artificial reservoir (the ‘con-
servancy’) for the supply of water to the general public. A breach occurred in the dam
and, owing to the appellant’s negligence, a large volume of water escaped and caused
damage to the respondents’ rice cultivation and livestock. Luckhoo JA, in the Court of
Appeal of Guyana, held that the appellant could not be liable for any damage not
caused by its negligence:
On a construction of the provisions of the Act, I would hold that the legislature did not
intend to impose a liability on the appellant for a thing which no reasonable care and
skill could obviate, and, as the whole question depends upon the construction of the
particular Act, I could find nothing in the wording of the Act to indicate . . . strict
liability.
However, since the evidence showed negligence on the part of the appellant, it was
liable for the damage.

Ineffectual defences

We have already seen that it is no defence to an action in nuisance that the activity
complained of was for the benefit of the community;148 nor is it a defence that the
defendant exercised all care and skill in carrying out his activity,149 though this is a
factor which may be taken into account in determining whether his conduct was
reasonable or not. It has also been established that it is no defence that the plaintiff
‘came to’ the nuisance. Thus, where a plaintiff bought a house close to a noisy and
smoky factory, he was held to be entitled to succeed in nuisance, and it was no
defence that the factory had been in existence for three years before the plaintiff
arrived, since he ‘came to the house . . . with all the rights which the common law
affords, and one of them is a right to wholesome air’.150 This, however, is subject to the
principle already mentioned that, where interference with enjoyment of land is com-
plained of, the character of the district must be taken into account. Thus, a plaintiff
who chooses to live in an industrial or manufacturing district must put up with the
discomfort which the average inhabitant of that district might reasonably expect. In
other words, the plaintiff has no right to expect more than the ‘local standard’ of the
district. Thus, in Barbados, for example, what would be a nuisance in Paradise
Heights would not necessarily be so in Baxter’s Road.

147 (1976) Court of Appeal, Guyana, Civ App No 69 of 1973 (unreported) [Carilaw GY 1976 CA
13]. Cf Guerra v AG (1994) High Court, Trinidad and Tobago, No 2208 of 1986 (unreported)
[Carilaw TT 1994 HC 85] (Ministry of Agriculture held liable for negligent exercise of statu-
tory power to carry out water works to prevent flooding).
148 See above, p 154.
149 See op cit, Heuston and Buckley, fn 111, p 72.
150 Bliss v Hall (1838) 132 ER 758.
 CHAPTER 8

THE RULE IN RYLANDS v FLETCHER

INTRODUCTION

Traditionally, the rule in Rylands v Fletcher 1 has been regarded as a rule of strict
liability. Liability is strict in cases where the defendant is liable for damage caused by
his act, irrespective of any fault on his part, or, as it has been expressed, ‘where a man
acts at his peril and is responsible for accidental harm, independently of the existence
of either wrongful intent or negligence’.2
In Rylands, the defendants employed independent contractors to build a reservoir
on their land. The contractors carelessly omitted to block up some disused shafts on
the site which communicated with the plaintiffs’ coal mine beneath the reservoir, so
that, when the reservoir was filled, water escaped down the shafts and flooded the
plaintiffs’ mine. The defendants’ conduct did not appear to come within the scope of
any existing tort: they were not liable for trespass, because the damage was not direct
and immediate; nor for nuisance, because the damage was not due to any recurrent
condition or state of affairs on their land; nor for negligence, because they had not
been careless, and they were not liable for the negligence of their independent con-
tractors.3 However, they were held strictly liable for the damage on the basis of the
following rule propounded by Blackburn J, which is now known as the rule in Rylands
v Fletcher.4
The person who for his own purposes [and in the course of a non-natural user of his
land]5 brings on his land and collects and keeps there anything likely to do mischief if it
escapes, must keep it at his peril and if he does not do so, is prima facie answerable for all
the damage which is the natural consequence of its escape.6

The rule in Rylands v Fletcher has some affinities with nuisance, and it has been said
that ‘the law of nuisance and the rule in Rylands v Fletcher might in most cases be
invoked indifferently’.7 It is certainly true that the same facts may easily give rise to
liability in both causes of action,8 but there are some fundamental differences:
(a) Rylands v Fletcher liability is confined to the accumulation of physical objects which
escape and do damage; nuisance is not so confined and covers interference caused
by intangibles such as noise and smells;
(b) in Rylands v Fletcher liability, there must be an accumulation of things, such as

1 (1866) LR 1 Exch 265, affirmed (1868) LR 3 HL 330.

2 Heuston and Buckley, Salmond and Heuston on the Law of Torts, 21st edn, 1996, London: Sweet &
Maxwell, p 307.
3 The case was decided before the emergence of the principle that an employer may be liable for the
negligence of his independent contractor where ultra-hazardous activities are involved. See below,
pp 344 et seq.
4 (1866) LR 1 Exch 265, p 279, 280.
5 This requirement was added by Lord Cairns in the House of Lords, which affirmed the decision of
Blackburn J in the lower court.
6 Emphasis added.
7 Read v Lyons [1947] AC 156, p 183, per Lord Simonds.
8 See, eg, Midwood v Manchester Corp [1905] 2 KB 597. Cf Spicer v Smee [1946] 1 All ER 489.
180 Commonwealth Caribbean Tort Law

water, gas, chemicals or explosives; in nuisance, there is no requirement of

accumulation;
(c) in Rylands v Fletcher cases, there must be an escape of the accumulated material
from the defendant’s land to a place outside that land; in nuisance, an escape is
not necessary;
(d) a plaintiff who is not an occupier of adjoining land may sue under Rylands v
Fletcher, whereas such a person could not sue in private nuisance;
(e) liability under Rylands v Fletcher is confined to cases of non-natural user of land;
there is no such limitation in nuisance.

FORESEEABILITY

The future of the rule in Rylands v Fletcher as a form of strict liability has been put in
doubt by the decision of the House of Lords in Cambridge Water Co v Eastern Counties
Leather plc,9 in which it was established that the language of Blackburn J in Rylands v
Fletcher implied that damage must be foreseeable (‘the person who for his own pur-
poses brings on his land . . . anything likely to do mischief if it escapes’).10 It was held
that since Rylands was essentially an extension of nuisance to cases of isolated escape,
the decision in The Wagon Mound (No 2),11 that foreseeability was essential for liability
in nuisance, should also extend to liability under Rylands.
The facts of the Cambridge Water Co case illustrate the requirement of foresee-
ability. The defendants in this case were leather manufacturers. Some time before
1971, a chemical known as PCE was spilled on the concrete floor of the defendants’
tannery. At that time, the only foreseeable harm from the spillage was that an
employee might be overcome by fumes. The chemical seeped into the ground and
eventually contaminated water in a borehole more than one mile away, from which
the plaintiffs started drawing water in 1979. Following a European Community
Directive in 1985, water containing PCE was declared unwholesome and could not
lawfully be supplied as drinking water. The plaintiffs incurred expenditure of almost
£1 million in developing a new source of water supply, and they claimed that the
defendants were liable for this amount. The House of Lords, overruling the Court of
Appeal, held that the defendants could not be liable for the loss under nuisance or
Rylands v Fletcher, as it was unforeseeable.
It remains to be seen whether courts in the Commonwealth Caribbean will follow
the principle in the Cambridge Water Co case. If past experience is any guide, it is very
likely that, being a House of Lords decision, it will be followed. The development is
regrettable, however, as public policy on protection of the environment would seem
to demand some form of strict liability for ultra-hazardous activities. The House of
Lords concluded by suggesting that strict liability was more appropriately imposed
by the legislature than by the courts, particularly in the area of environmental pollu-
tion; and this may well be the route which Commonwealth Caribbean jurisdictions
have to take.

9 [1994] 1 All ER 53.

10 (1866) LR 1 Exch 265, pp 279, 280.
11 [1966] 2 All ER 709.
 Chapter 8: The Rule in Rylands v Fletcher 181

SCOPE OF THE RULE

Things within the rule

According to Blackburn J, things within the rule include ‘anything likely to do mis-
chief if it escapes’.12 They therefore include not only inherently ‘dangerous’ materials
such as explosives,13 gas,14 petrol15 or chemicals,16 but also relatively innocuous things
which become hazardous only when accumulated in large quantities, such as water,17
crude oil18 and sewage.19 There may also be liability under the rule for the escape
of fire.20

Bringing onto the land and accumulation

The defendant must have brought the thing onto his land and accumulated it there,
for the rule applies only to ‘things artificially brought or kept upon the defendant’s
land’.21 Thus, for example, if water flows from the defendant’s underground tunnels
into the plaintiff’s mines, whether by percolation or by force of gravity, the defendant
will not be liable under the rule if the water is naturally on the defendant’s land and
he has done nothing to accumulate it there.22 But he will be liable if, as in Rylands v
Fletcher itself, he accumulates the water on his land by constructing a reservoir. Again,
the defendant will not be liable for damage caused by the escape of rocks, since they
are naturally on the land,23 but he will be liable if the rocks are thrown onto adjacent
land by blasting with explosives.24 In the case of vegetation, there will be no liability
under Rylands v Fletcher for its escape if it grows naturally on the land in the form of
weeds or other uncultivated growth,25 but the defendant will be liable for the escape
of anything which he plants on his land, since that will constitute an ‘accumulation’,26
and he may be liable even for the escape of things growing naturally on the land in
negligence or in nuisance if, knowing of the existence of the danger, he does nothing
to abate it.27

12 Rylands v Fletcher (1866) LR 1 Exch 265, p 279.

13 Rainham Chemical Works Ltd v Belvedere Fish Guano Co [1921] AC 465; Kirton v Rogers (1972) 19
WIR 191 (see above, p 137); Darling v Heavy Equipment Construction Co Ltd (1980) Supreme
Court, The Bahamas, No 153 of 1976 (unreported) [Carilaw BS 1980 SC 19].
14 Batcheller v Tunbridge Wells Gas Co (1901) 84 LT 765.
15 Musgrove v Pandelis [1919] 2 KB 43.
16 Cambridge Water Co v Eastern Counties Leather plc [1994] 1 All ER 53.
17 Rylands v Fletcher (1866) LR 1 Exch 265.
18 Mandraj v Texaco Trinidad Inc (1969) 15 WIR 251 (see below, pp 190, 191).
19 Humphries v Cousins (1877) 2 CPD 239.
20 Musgrove v Pandelis [1919] 2 KB 43; Synagogue Trust Ltd v Perry (1988) 25 JLR 353 (see below,
pp 185–87).
21 Bartlett v Tottenham [1932] 1 Ch 114, p 131, per Lawrence J.
22 Wilson v Waddell (1876) 2 App Cas 95.
23 Pontadawe Rural DC v Moore-Gwyn [1929] 1 Ch 656.
24 Brazier, M, Street on Torts, 9th edn, 1993, London: Butterworths, p 383.
25 Giles v Walker (1890) 62 LT 933.
26 Crowhurst v Amersham Burial Board (1878) 4 Ex D 5.
27 Goldman v Hargrave [1966] 2 All ER 989; Leakey v National Trust [1980] 1 All ER 17.
182 Commonwealth Caribbean Tort Law

Escape

There must be an escape of the accumulated substance from the land where it is kept
to a place outside. In the words of Lord Simon:28 ‘Escape, for the purpose of applying
the proposition in Rylands v Fletcher, means escape from a place where the defendant
has occupation or control over land to a place which is outside his occupation or
control.’ Thus, for instance, there was no escape and, therefore, no liability where the
plaintiff, while carrying out her duties inside the defendant’s factory, was injured by
an explosion which occurred within the factory premises;29 nor where a poisonous
tree on the defendant’s land caused the death of a horse which ate its leaves by
reaching over from adjacent land, the tree never having extended beyond the defend-
ant’s boundary.30 On the other hand, it was held that there was a sufficient escape
where a piece of equipment was thrown from one part of a fairground to another,
since each part was occupied by different persons.31
It seems that the actual damage caused by the escape need not be immediately
caused by the thing accumulated. Thus, for example, where the defendant accumu-
lates explosives for quarrying purposes, and later, during blasting operations, rocks
are thrown on to the plaintiff’s adjacent land, the plaintiff can recover under Rylands v
Fletcher for damage caused by the rocks, even though they were not the things which
were accumulated.32

Non-natural user

The word ‘natural’ is used in two distinct senses in this tort. First, it means ‘that which
exists in or by nature and is not artificial’.33 Thus, as we have seen, there is no liability
for an escape of things naturally on the land, such as rocks. Secondly, it means ‘that
which is ordinary and usual, even though it may be artificial’,34 and it is in this
latter sense that the term ‘non-natural user’ is generally understood. The best known
definition of non-natural user is that of Lord Moulton: ‘It must be some special use
bringing with it increased danger to others, and must not merely be the ordinary use
of land or such a use as is proper for the general benefit of the community.’35 It has
also been emphasised that non-natural user is a question of fact and ‘all the circum-
stances of time and practice of mankind must be taken into consideration, so that
what may be regarded as dangerous or non-natural may vary according to the
circumstances’.36
Thus, in deciding whether a particular user is non-natural, the court will look ‘not
only at the thing or activity in isolation, but also to the place and manner in which it is
maintained and its relation to its surroundings’.37

28 Read v Lyons [1947] AC 156, p 168.

29 Ibid.
30 Ponting v Noakes [1894] 2 QB 281.
31 Hale v Jennings Bros [1938] 1 All ER 579.
32 Op cit, Brazier, fn 24, p 267.
33 Newark, FH (1961) 24 MLR 557, p 561.
34 Ibid.
35 Rickards v Lothian [1913] AC 263, p 279.
36 Read v Lyons [1947] AC 156, p 176.
37 Fleming, The Law of Torts, 6th edn, 1983, Sydney: LBC Information Services, p 308.
 Chapter 8: The Rule in Rylands v Fletcher 183

One advantage of this flexible concept of non-natural user is that it can be

adjusted to meet changing social needs. In recent times, it has been used by the courts
to restrict the scope of the Rylands v Fletcher principle, on the ground that what may
have been a non-natural user in 1900 would not necessarily be so in 1960 or 1990. For
instance, it has been held that:
. . . the manufacturing of electrical and electronic components in the year 1964 . . . can-
not be adjudged to be a special use, nor can the bringing and storing on the premises of
metal foil be a special use in itself . . . The metal foil was there for use in the manufacture
of goods of a common type which at all material times were needed for the general
benefit of the community.38

And as far back as 1947, the court hesitated ‘to hold that in these days and in an
industrial community it was a non-natural use of land to build a factory on it and
conduct there the manufacture of explosives’.39 On this view, even a case such as
Rylands v Fletcher itself might have been decided differently, for it is arguable that the
accumulation of water in a reservoir serving a large city or town is, at the present day,
a sufficiently ordinary user of land and sufficiently beneficial to the community to be
considered ‘natural’.
The process of widening the definition of ‘natural user’ was arrested and even put
into reverse by the House of Lords in Cambridge Water Co v Eastern Counties Leather
plc.40 In this case, the trial judge had held that the accumulation of chemicals by the
defendants was a natural user of the land because the creation of employment in the
defendants’ tannery was for the benefit of the local community. Lord Goff did not
accept that the creation of employment was in itself sufficient to make an activity a
natural use of land; on the contrary, he considered that the storing of large quantities
of industrial chemicals on industrial premises was a classic example of non-natural
user. This suggests that Lord Moulton’s definition of non-natural user must now be
modified – in particular, the part which speaks of ‘a use as is proper for the general
benefit of the community’. Lord Goff’s judgment also casts doubt on Read v Lyons,
where it was suggested that the manufacture of explosives in wartime was a natural
user of land, presumably because it was for the benefit of the community. Lord Goff
concluded by suggesting that, since it is now settled that foreseeability of harm is
required for liability under Rylands, the courts should be less inclined to give a wide
definition to natural user.

Non-natural user in the Caribbean

The question as to whether the defendant’s user of his land was natural or non-
natural has frequently arisen in Commonwealth Caribbean cases. In Chandat v
Reynolds Guyana Mines Ltd,41 as we have seen, the plaintiffs’ crops were damaged by
emissions of dust from the defendants’ bauxite installation. As an alternative to the
claim in public nuisance, the plaintiffs contended that the defendants’ user of their
land was non-natural and that they were liable under Rylands v Fletcher. George J

38 British Celanese Ltd v Hunt [1969] 1 WLR 959, p 963.

39 Read v Lyons [1947] AC 156, p 174, per Lord Macmillan.
40 [1994] 1 All ER 53; Weir, T [1994] CLJ 216.
41 (1973) High Court, Guyana, No 249 of 1969 (unreported) [Carilaw GY 1973 HC 34]; see above,
p 150.
184 Commonwealth Caribbean Tort Law

seemed to have anticipated the approach of the House of Lords in the Cambridge Water
Co 42 case when he said that he was not unmindful of the importance of the bauxite
industry to the economy of Guyana, but this was not a sufficient reason for holding
that the user of the land was natural. Having regard to the existing authorities, George
J came to the conclusion that the setting-up and operation of a plant for the drying of
bauxite ore mined elsewhere was a non-natural user of land and the defendants were
liable under Rylands v Fletcher.43
In the Commonwealth Caribbean, the artificial generation of electricity (notwith-
standing that it is for ‘the general benefit of the community’) has been held to be a
non-natural user of land;44 similarly, the use of explosives for blasting in a quarry45 or
in construction works46 is a non-natural user. But in Bata Shoe Co (Jamaica) Ltd v Reid,47
it was held that the storage of a 100 lb butane gas cylinder for domestic use in a
private house was not a non-natural user, and the occupiers of the property were not
liable under Rylands v Fletcher for damage caused to neighbouring premises when the
cylinder exploded. Campbell J explained the position thus:48
The circumstances disclosed by the evidence would not bring into play the rule in
Rylands v Fletcher. This is so because, even though gas is a dangerous thing, being
inflammable and explosive, its supply and installation in quantities as in 100 lb cylin-
ders or 25 lb cylinders on premises for domestic purposes do not constitute a non-
natural user of such premises but rather a natural, normal and reasonable modern-day
use of the premises. Cases such as Dominion Natural Gas Co v Collins 49 and Northwestern
Utilities Ltd v London Guarantee and Accident Co Ltd 50 doubtlessly reaffirm the principle
that persons who extract natural gas from gas-bearing strata, or otherwise accumulate
gas in their works and mains for distribution through their mains to consumers as a
commercial product, are prima facie within the principle of Rylands v Fletcher. The gas
accumulated in such large quantities constitutes an extraordinary danger and, apart
from being dangerous per se, represents a non-natural user of land. However, in Rickards
v Lothian,51 Lord Moulton re-echoed in substance certain words of Lord Cairns in
Rylands v Fletcher in the House of Lords when he said:
It is not every use to which land is put that brings into play [the principle of
Rylands v Fletcher]. It must be some special use bringing with it increased danger
to others, and must not merely be the ordinary use of land or such a use as is
proper for the general benefit of the community.
This case clearly affirms the fact that the principle of Rylands v Fletcher comes into play
only when there is some special use of land, bringing with it increased dangers to
others, and that the said principle cannot be invoked where the use to which the land is
put consists merely in the ordinary use, or is a use which is proper for the general
benefit of the community. In that case, it was held that damage caused to the plaintiff,

42 Cambridge Water Co v Eastern Counties Leather plc [1994] 1 All ER 53.

43 But in Bridgepaul v Reynolds Metal Co [1969] LRG 265, Vieira J held that operating a bauxite
plant was not a non-natural use of land in Guyana.
44 Phillips v Barbados Light and Power Co Ltd (1972) 7 Barb LR 154 (see below, p 192).
45 Kirton v Rogers (1972) 19 WIR 191.
46 Darling v Heavy Equipment Construction Co Ltd (1980) Supreme Court, The Bahamas, No 153 of
1976 (unreported) [Carilaw BS 1980 SC 19].
47 (1980) 17 JLR 276 (Supreme Court, Jamaica).
48 Ibid, p 281.
49 [1909] AC 640.
50 [1936] AC 108.
51 [1913] AC 263, p 280.
 Chapter 8: The Rule in Rylands v Fletcher 185

Lothian, a tenant on the second floor, by water overflowing from a lavatory basin
installed by the defendant, Rickards, on the fourth floor of a multi-storey building let to
different tenants, did not render Rickards liable under the rule in Rylands v Fletcher,
since the installation of a proper supply of water to various parts of a house, together
with such conveniences like wash hand basins, was a reasonable use of the premises in
modern times. Such a use of premises carries with it some danger of leakage and
overflow, but the fact of such danger does not make those who install and/or keep such
conveniences do so at their peril. They will only be liable on the basis of negligence,
even though the duty of care may be very high relative to the danger created.
In Collingwood v Home and Colonial Stores Ltd,52 a fire originated in premises adjoining
those of the plaintiff, due to some unknown defect in the electric wiring. The plaintiff’s
premises were damaged by the water used in extinguishing the fire. It was held that the
doctrine of Rylands v Fletcher does not apply to the use of water, gas or electricity for
ordinary domestic purposes, which must be distinguished from the handling of them in
bulk in mains or reservoirs.

In Synagogue Trust Ltd v Perry,53 on the other hand, the term ‘natural user’ was treated
as referring to something which existed by nature, so that ‘non-natural user’ meant
the artificial creation of a dangerous state of affairs which did not ‘occur according to
nature’. Here, the defendant had lit a bonfire on his land for the purpose of burning
dry mango limbs and other debris. The flames were fanned by the wind and quickly
spread to the plaintiff’s adjoining land, where they destroyed the plaintiff’s building
and its contents.
It was held that the defendant was liable under the rule in Rylands v Fletcher. There
had been an escape of fire, which was a dangerous thing, from the defendant’s land in
the course of a non-natural user of that land. Morgan J said:54
It was not denied that there was a fire or that it got out of control. Fire by itself is a
dangerous thing. There was no denial that it was brought on to the land to set fire to
leaves and trimmings to burn them. The evidence is that it escaped and did damage
to the plaintiff’s building. The defendant, however, averred in his defence that ‘the
use of the fire constituted a natural, ordinary and reasonable use of the defendant’s
premises’.
The rule of Blackburn J in the case whose name the rule bears is well known:
A person who for his own purpose brings on his land and collects and keeps
there anything likely to do mischief if it escapes must keep it at his peril, and if
he does not do so he is prima facie answerable for all the damage which is the
natural consequence of its escape.
It was Lord Cairns, at the hearing in the House of Lords, who introduced the restriction
that the rule must apply only to circumstances where the defendant had made a non-
natural use of the land.
The fact of what is a non-natural use elicited much argument from counsel for the
defence. Indeed, there is no authoritative determination of what a non-natural user of
land may be, and so it has become a question of fact for the judge to determine in each
case. This has spurred defence counsel to submit that, in making a decision, consider-
ation must be given to all the circumstances of the time and place and that ordinary
domestic use does not constitute ‘non-natural use’ of land. He argued that the burning
of bush in Jamaica in one’s backyard is so prevalent that it becomes a natural use, and

52 [1936] 3 All ER 200.

53 (1988) 25 JLR 353 (Supreme Court, Jamaica).
54 Ibid, p 356.
186 Commonwealth Caribbean Tort Law

should be considered as a natural, ordinary, domestic use of the land, exempting the
occupier of land from strict liability, should damage occur.
Fire is one of the elements like water which is legally regarded as a dangerous thing,
and consequently, the principle of Rylands v Fletcher applies. (See Clerk and Lindsell on
Torts, 14th edn, para 1511.)
The tort book speaks of fire in the context of the English situation where, because of
climatic conditions, fires are lit inside houses and, following the rule, fire can in certain
circumstances be called ‘natural use’. As Lord Goddard said in a case where fire escaped
from an open fireplace and did damage:
There was an ordinary, natural, proper, everyday use of a fireplace in a room. The
fireplace was there to be used.55
Jamaica happily does not enjoy the climatic changes which England enjoys, and so the
use of fire for any such situations as the case above would rarely, if at all, arise. But fire is
classified as a dangerous thing in England even though an open fire is a natural use in a
house. It is the statute which modifies its strict liability by making available the defence
of accident in certain cases. The English Act is the Fires Prevention Metropolis Act 1774.
Jamaica has no equivalent statute. This brings me to the very point – if fire which is used
ordinarily in England is classified as ‘a dangerous thing’, what classification ought to be
used in Jamaica where fire is not in ordinary use as it is there?
‘Natural use of land’ means use according to nature, or provided by nature. So leaves
falling on the ground littering the land and put in a heap is indeed a ‘natural use’,
that being ‘things occurring according to nature’, things happening naturally on the
land. If, then, the breeze blows and scatters the leaves and fills the neighbour’s
swimming pool, thereby causing damage to it, that action would undoubtedly in
my view be one of ‘natural use’ and it would escape the strict liability rule. The non-
natural use commences only when fire (which is not naturally there) is placed in the
heap and the wind blows and the sparks fly and injury results to the roof by setting it
on fire.
As was said by Lord Moulton, to make the rule applicable:56
It must be some special use, bringing with it increased danger to others, and
must not merely be the ordinary use of the land or such a use as is proper for the
general benefit of the community.
Following that language, I would say that lighting a fire in an open backyard is a
‘special use’ which has its dangers in the wind blowing and causing sparks to fly, or
danger by way of the fire getting out of hand and travelling to the neighbour’s land. Can
it be said that it is not a special use of an open fire lit in an area where dwelling houses
are situated?
I concur with counsel that fire is commonly used to burn leaves and twigs in the city.
True enough, the authorities who are responsible for removing garbage do not regard
leaves and trimmings as garbage. The garbage trucks do not remove them from our
dwellings, so alternative methods have to be initiated by householders which will
not cause harm to the neighbours. Some persons dig holes and bury them, some heap
them in a corner or dry them out and use them as mulch, some more affluent persons
use incinerators, and there are other alternatives which, though not numerous, are
available. Prevalence or common use could never be a standard by which natural use

55 Sochaki v Sas [1947] 1 All ER 344.

56 Rickards v Lothian [1913] AC 263, p 280. Somewhat surprisingly, in the Guyanese case of
Martins v L King and Sons Ltd (1978) High Court, Guyana, No 1881 of 1977 (unreported)
[Carilaw GY 1978 HC 20], it was held that the loading and unloading of cement for the
purpose of sale by the defendant was ‘some special use of the object . . . bringing with it
increased danger to others’.
 Chapter 8: The Rule in Rylands v Fletcher 187

is judged, and so, an open fire, for whatever purpose, however often it is done, by
whatever number of households, must be looked at in the same context of what is a
non-natural use. The act of setting fire is not something of nature; it is by itself danger-
ous and it is being used in a manner which exposes someone or something to harm if
it escapes.
Indeed, as defence counsel said, consideration must be given to all the circumstances of
time and place. Circumstances differ and the difference and consideration given to the
specific cases may well be because of an absence of an authoritative principle. Jamaica
has a tropical climate, and the scenic beauty which our visitors enjoy comes from the
abundance of flora and vegetation with which we are blessed and also as an island
surrounded by the sea. From the sea, gusts of wind are forever blowing and prevalent in
every nook and cranny of our island. To set fire to your land and allow it to escape by
the sea wind or land wind or wind from the trees can be nothing less than a non-natural
use of the land. It matters not whether it is a fire heap in your backyard or a fire set on
open land. It is my finding that, in this case, it was a non-natural use and strict liability
applies.
It is my view that the ‘bold approach’ which counsel urged with respect to this aspect of
the case is not appropriate to these circumstances.

DEFENCES

It has been rightly said that there are so many defences and exceptions to liability
under the Rylands v Fletcher principle that it is ‘doubtful whether there is much left of
the rationale of strict liability as originally contemplated in 1866’.57 These defences are
described briefly below.

Consent of the plaintiff

Where the plaintiff has expressly or impliedly consented to the presence of the
source of danger, the defendant is not liable unless he has been negligent.58 This
is merely an application of the maxim volenti non fit injuria. The defence is most
often applied in cases where a tenant in an apartment building suffers damage
as a result of water escaping from an upper floor; where, for example, a pipe
connected to the mains supply bursts, or where a rat gnaws a hole in a tank on
the roof.59
The rationale behind this rule is that the water has been brought to the building
and collected there for the mutual benefit of both parties and with their express or
implied consent; therefore, there is ‘no sufficient reason why the risk of accident
should lie upon the upper rather than the lower occupant, and the only duty is one of
reasonable care’.60
Although, in such cases, the plaintiff is denied the benefit of strict liability, he will
succeed if he can prove lack of care on the defendant’s part. For example, he will not
be deemed to have consented to a flood caused by carelessness in forgetting to turn off

57 Op cit, Fleming, fn 37, p 314.

58 Carstairs v Taylor (1871) LR 6 Ex 217.
59 Ibid.
60 Op cit, Heuston and Buckley, fn 2, p 316. An additional ground which will exonerate the
defendant in such a case is that the user of the land is natural.
188 Commonwealth Caribbean Tort Law

a tap,61 or in blocking up a drain with tea leaves.62 And if the escape was caused by the
act of a stranger, the defendant will be excused only if he was not careless in failing to
guard against such act.

Default of the plaintiff

It was suggested in Rylands v Fletcher itself that there would be no liability under the
rule if the escape were due to the plaintiff’s own default.63 Thus, in a later case, where
the plaintiffs worked a mine under the defendant’s canal and were indifferent to the
risks of flooding, the defendant was not liable for the escape of water from the canal
and the consequent inundation of the mine, since ‘the plaintiffs saw the danger
and may be said to have courted it’.64 Alternatively, where the plaintiff’s conduct
amounts to contributory negligence, the statutory apportionment rule will apply and
the damages will be reduced. Another aspect of this defence is that, by analogy
with nuisance,65 there will be no liability if the damage would not have occurred but
for the abnormal sensitivity of the plaintiff’s property or the use to which it was put.
Thus, where the plaintiffs complained that an escape of electricity stored on the
defendant’s premises interfered with the sending of messages by the plaintiffs
through their submarine cables, the action failed, since ‘a man cannot increase the
liabilities of his neighbour by applying his own property to special uses, whether for
business or pleasure’.66 It has been held, however, that, where the plaintiff complains
that vibrations from pile-driving on the defendant’s land have caused damage to his
building, it is no defence to an action under Rylands v Fletcher that the plaintiff’s
building was old and, therefore, abnormally vulnerable to damage from vibrations,67
since the plaintiff in such a case has not put his property to any special or unusually
sensitive use.

Act of God68

Where the escape is the result of ‘the operation of natural forces, free from human
intervention’,69 the defence of Act of God may be available. Thus, for example, an
escape caused by an extraordinarily violent storm, wind or tide, or by an earthquake,
may not be actionable. However, the courts have kept this defence within a very
narrow compass, and there appears to be only one reported case in which it has
been allowed. In this case, Nichols v Marsland,70 the defendant had, for many years,
been in possession of some artificial pools formed by damming a natural stream. An
extraordinary rainfall, ‘greater and more violent than any within the memory of wit-
nesses’, broke down the embankments, and the rush of escaping water swept away

61 Ruddiman and Co v Smith (1889) 60 LT 708.

62 Abelson v Brockman (1890) 54 JP 119.
63 (1866) LR 1 Exch 265, p 279.
64 Dunn v Birmingham Canal Co (1872) LR 7 QB 244, p 260.
65 See above, pp 154, 155.
66 Eastern and South African Telegraph Co v Cape Town Tramways Co [1902] AC 381, p 393.
67 Hoare and Co Ltd v McAlpine [1923] 1 Ch 167.
68 See, generally, Hall, CJ (1993) 13 JLS 227.
69 Op cit, Fleming, fn 37, p 316.
70 (1876) 2 Ex D 1.
 Chapter 8: The Rule in Rylands v Fletcher 189

the plaintiff’s bridges. It was held that the defendant was not liable for the damage to
the bridges because there had been no negligence on his part and the accident was
due directly to an Act of God. The defendant was not to be made liable for an extra-
ordinary act of nature which she could not reasonably have anticipated. Since this
case was decided, however, a more stringent test has been formulated. It seems that it
is now no longer sufficient to show that the occurrence could not reasonably have
been anticipated; it must be shown that human foresight and prudence could not
reasonably have recognised the possibility of such an event.71 Or, in the more colourful
language of Lord Blanesburgh, there must have been ‘an irresistible and unsearchable
Providence nullifying all human effort’.72
The defence of Act of God was pleaded in the Jamaican case of Synagogue Trust Ltd
v Perry.73 There, it was argued that the spread of a fire by wind was an Act of God for
which the defendant was not liable. Not surprisingly, the contention was rejected
by Morgan J. She said:
To avail the defendant, the act must be something which no human foresight could
provide against, and something which human prudence was not bound to recognise as
possible. A windy day in our fair island is something everyone is bound to recognise,
and which every citizen expects and can guard against or take precautions . . . That
windy day clearly did not fall within what can be determined as an Act of God.74

Similarly, in Brown v AG,75 where the deceased had been electrocuted when she came
into contact with a live electric wire which had fallen to the ground, the defendant’s
contention that the blowing down of the wire by the wind was an Act of God was
rejected. Hewlett J said:76
Act of God is only a defence if it is impossible to provide against the occurrence, and
in this case the evidence is that there were some strong winds in Nevis on the night of
8 March 1977. But there is nothing so unusual about occasional strong gusts in the
Caribbean. In fact, we are in a hurricane zone, and we know to prepare against hurri-
canes every year, so it cannot be true to say that strong winds could not reasonably be
anticipated.

Act of a stranger

It is a defence to liability under Rylands v Fletcher that the escape complained of was
caused by the deliberate act of a stranger which could not reasonably have been
anticipated by the defendant. For example, the owner of a vehicle was not liable for
damage caused by the act of mischievous children in throwing a lighted match into
the petrol tank;77 nor were the owners of a reservoir liable for the flooding of
neighbouring land caused by the deliberate act of a third party in emptying his own
reservoir into theirs.78

71 Greenock Corp v Caledonian Rly [1917] AC 556.

72 The Mostyn [1928] AC 57, p 93.
73 (1988) 25 JLR 353 (see above, pp 185–86).
74 Morgan J’s decision was upheld by the Jamaican Court of Appeal (1991) 28 JLR 354.
75 (1978) 2 OECSLR 331 (High Court, St Christopher/Nevis).
76 Ibid, p 333.
77 Perry v Kendricks Transport Ltd [1956] 1 All ER 154.
78 Box v Jubb (1879) 4 Ex D 76.
190 Commonwealth Caribbean Tort Law

It has been said that, for the defence to lie, the stranger’s act must have been
‘mischievous, deliberate and conscious’.79 According to this view, merely negligent
acts of strangers are not within the defence. This restriction has been rightly criticised
on the ground that the basis of the defence is the absence of any control by the
defendant over the unforeseeable acts of a stranger on his land, and it ought to be
irrelevant whether the stranger’s act was deliberate or negligent.80
Where, in the circumstances, the defendant should reasonably have anticipated
and guarded against the act of the stranger, and yet failed to do so, he will have
no defence and will be liable for his failure to take reasonable care.81 It is at this
point that the torts of Rylands v Fletcher and negligence merge, for it seems that ‘the
ordinary negligence test applies in determining whether, and what, measures of pro-
tection against outside interference should appropriately be taken’.82 Moreover, it
seems that a defendant in a Rylands v Fletcher situation who fails to take reasonable
care to guard against the foreseeable act of a stranger is liable not under Rylands v
Fletcher but in negligence. Thus, a public utility company which carried natural gas at
high pressure under the streets of a city was held liable in negligence for the destruc-
tion of the plaintiff’s hotel due to an escape of gas and consequent explosion caused
by the activities of a third party in constructing an underground sewer in the vicinity.
The defendants were liable because the risk involved in their operation was so
great that a high degree of care was expected of them; and in failing to guard against
the conspicuous activities of the third party, they had failed to discharge their duty
of care.83
The class of ‘strangers’ clearly includes trespassers,84 but there is no clear author-
ity as to which other persons are included. The occupier will be vicariously liable for
the defaults of his servants and, in this tort, for those of his independent contractors;85
and it has been held that the occupier of a fairground was liable for the act of a lawful
visitor in tampering with equipment provided for the entertainment of customers.86
The status of other visitors, however, such as members of the occupier’s family,
guests, lodgers and casual visitors (for example, messengers delivering messages), is
uncertain. Probably the correct view is that the occupier will be liable for the defaults
of any such person, unless it is shown that, in the circumstances, he had no control
over that person’s conduct.87
The defence of act of a stranger has succeeded in two Commonwealth Caribbean
cases: Mandraj v Texaco Trinidad Inc, where the stranger’s act was deliberate and mis-
chievous; and Phillips v Barbados Light and Power Co Ltd, where the act was negligent.
In Mandraj v Texaco Trinidad Inc,88 the appellants occupied land at Penal, on which
they cultivated rice and reared cattle. The respondents’ trunk oil pipeline passed
through the Penal area and crossed a watercourse which flowed close to the appellants’

79 Perry v Kendricks Transport Ltd [1956] 1 All ER 154, p 157, per Singleton LJ.
80 Ibid, p 160, per Jenkins LJ.
81 Winfield and Jolowicz, Tort, 15th edn, 1998, London: Sweet & Maxwell, p 552.
82 Op cit, Fleming, fn 37, p 318.
83 Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [1936] AC 108.
84 Mandraj v Texaco Trinidad Inc (1969) 15 WIR 251.
85 Balfour v Barty-King [1956] 2 All ER 555.
86 Hale v Jennings Bros [1938] 1 All ER 579.
87 Perry v Kendricks Transport Ltd [1956] 1 All ER 154.
88 (1969) 15 WIR 251 (Court of Appeal, Trinidad and Tobago).
 Chapter 8: The Rule in Rylands v Fletcher 191

land. An oil leak occurred in the pipeline at the point where it crossed the watercourse
(which, at the time, was in flood), with the result that a large quantity of oil became
deposited on the appellants’ land, causing damage both to their cattle and their rice
cultivation. The leakage was found to have been caused by an unknown person’s
deliberately drilling a hole in the pipeline. The respondents promptly stopped the
leakage by affixing a metal screw clamp over the hole, but two months later a second
leakage occurred. It was discovered that the metal clamp had been removed, again by
an unidentified person. The respondents again promptly stopped the leakage, but
not before further damage had been caused to the appellants’ property.
It was held that the facts were within the rule in Rylands v Fletcher, but the
respondents were entitled to rely on the defence of ‘act of a stranger’ over whom
the respondents had no control. De la Bastide JA said:89
It was conceded by counsel that the legal liability of the respondent company was prima
facie governed by the rule in Rylands v Fletcher, in which the House of Lords affirmed
the decision of the Court of Exchequer Chamber, speaking for whom Blackburn J formu-
lated the rule as follows:90
The question of law therefore arises, what is the obligation which the law casts
on a person who, like the defendants, lawfully brings on his land something
which, though harmless while it remains there, will naturally do mischief if it
escapes out of his land? It is agreed on all hands that he must take care to keep
in that which he has brought on the land and keeps there, in order that it may
not escape and damage his neighbours: but the question arises whether the
duty which the law casts upon him under such circumstances is an absolute
duty to keep it at his peril or is, as the majority of the Court of Exchequer
Chamber have thought, merely a duty to take all reasonable and prudent
precautions in order to keep it in, but no more . . .
We think that the true rule of law is that the person who, for his own purposes, brings
on his land and collects and keeps there anything likely to do mischief if it escapes, must
keep it at his peril, and if he does not do so is prima facie answerable for all the damage
which is the natural consequences of its escape. He can excuse himself by showing that
the escape was owing to the plaintiff’s default; or, perhaps, that the escape was the
consequence of vis major or an Act of God; but, as nothing of the sort exists here, it is
unnecessary to inquire what excuse would be sufficient.
It has long been recognised that the deliberate act of a stranger ousts the application of
the rule in Rylands v Fletcher. In Rickards v Lothian, Lord Moulton, delivering the judg-
ment of the Judicial Committee of the Privy Council, after reviewing the relevant
authorities, said:91
Their Lordships . . . are of opinion that a defendant is not liable on the principle
of Rylands v Fletcher for damage done by the wrongful act of third persons.
This principle is expressed in 28 Halsbury’s Laws, 3rd edn, para 196, as follows:
[The rule] also does not apply if the escape was due to the act of a stranger over
whose acts the defendant had no control and which was not an act which the
defendant ought reasonably to have anticipated and guarded against. It is not
material that the stranger was incapable of deliberate volition. The onus of
proof that the event causing damage was due to the subsequent deliberate act of
a stranger, where the defendants would be liable unless it were so caused, is on
them.

89 Ibid, p 252.
90 (1866) LR 1 Exch 265, p 297.
91 [1913] AC 263, p 279.
192 Commonwealth Caribbean Tort Law

In Phillips v Barbados Light and Power Co Ltd 92 a tractor, being driven by B, was
ploughing a field when it struck a stay-wire fixed in the ground. The stay-wire
was part of the defendant’s installation, erected for the purpose of supplying elec-
tricity to the district, and the wire was connected to a pole bearing the transmission
lines. P, who was standing nearby, was struck by the wire and electrocuted. P’s
widow brought an action on behalf of P’s estate, relying on the rule in Rylands v
Fletcher.
It was held that (a) the artificial generation of electricity was a non-natural user of
land and the escape of electric energy of a lethal voltage was within the rule; (b) an
action in respect of personal injuries was within the rule; but (c) the harm was caused
by the unforeseeable act of a stranger and the defendant was, therefore, not liable.
Douglas CJ said:93
Mr Dear’s [counsel for the defendant’s] first submission is that the transmission of
electricity is not a non-natural user of land. He refers to Collingwood v Home and Colonial
Stores Ltd,94 where it was held that the domestic use of electrical installations is an
ordinary and natural user of land. In the Privy Council decision of Eastern and South
African Telegraph Co v Cape Town Tramways Co,95 the escape of electricity from the tram-
way company’s system was held to be prima facie actionable. In giving the advice of the
Board, Lord Robertson said:96
Electricity (in the quantity which we are now dealing with) is capable, when
uncontrolled, of producing injury to life and limb and to property; and in the
present instance it was artificially generated in such quantity, and it escaped
from the respondents’ premises and control. So far as the respondents are con-
cerned, it appears to their Lordships that, given resulting injury such as is
postulated in Rylands v Fletcher, the principle would apply.
In the instant case, it appears to me that the escape of electricity energy of a lethal
voltage from the company’s system would come prima facie within the rule in Rylands
v Fletcher . . .
Mr Dear submits that the entire cause of the accident is to be found in the actions of the
tractor driver, Martin Brathwaite, and the deceased; or, put in another way, the effective
cause of the accident was the act of a stranger over whom the company had no control
and whose act could not reasonably have been foreseen by it.
Counsel cited Prosser (A) and Son Ltd v Levy,97 in which the plaintiffs suffered damage
when, in circumstances unknown, the stop tap of a redundant pipe was left turned on
and water seeped into their shop. The Court of Appeal held that the principle in Rylands
v Fletcher applied because the owners, being in occupation and control of the passage-
way where the redundant pipe was situated, and knowing or having the means of
knowing of its existence and condition, which rendered it a potential source of danger,
were guilty of negligence in failing to take reasonable steps to prevent the escape of
water in the event of the stop tap being accidentally turned on. In Perry v Kendricks
Transport Ltd 98 the plaintiff suffered injury by an explosion of petrol fumes from the
tank of a disused coach. The explosion was caused by the act of a stranger, and
the Court of Appeal held that the defendants were not liable under the rule unless the

92 (1972) 7 Barb LR 154 (High Court, Barbados).

93 Ibid, p 160.
94 [1936] 3 All ER 200.
95 [1902] AC 381.
96 Ibid, p 392.
97 [1955] 3 All ER 577.
98 [1956] 1 All ER 154.
 Chapter 8: The Rule in Rylands v Fletcher 193

plaintiff could show that the act which caused the escape was of a kind which the
defendants could reasonably anticipate and guard against . . .
Here, the stay-wire was a few feet from the highway in an open field, and was part of a
system in which electricity was transmitted by wires raised on poles erected along a
public road. In these circumstances, I accept Mr St John’s submission that the deceased
was not a trespasser vis à vis the company and was entitled to the benefit of whatever
duty the company was under to take care of likely comers.
All the cases show that the degree of care which that duty involves must be pro-
portioned to the degree of risk involved if the duty should not be fulfilled. As Dixon
CJ pointed out in Cardy’s case, which, like Buckland’s case and Herrington’s case,
involved child trespassers, that duty may be sufficiently discharged by warning of the
danger, by taking steps to exclude the intruder, or by removal or reduction of the
danger.
In the circumstances of this case, the placing of the transmission wires on poles serves
both to warn the public that it would be dangerous to come into contact with them and
to exclude the intruder. The provision of earth wires and insulators removes any danger
that would otherwise exist for persons coming into contact with stay-wires in the instal-
lation. I cannot see that in the company’s system there was any need for warning signs
to be placed on the stay-wire, as is suggested on behalf of the plaintiff. There was no
danger that would require such a course of action. The company’s system complied
with the requirements of the statutes regulating electrical undertakings, and the
Government Electrical Inspector describes it as a normal or standard installation, and I
find that it was a safe system. I also find that the accident was caused solely by the
interference with that system by the tractor driver, placing such tremendous pressure on
the stay-wire in an attempt to free his plough as to cause the stay-pole to lean from the
vertical, and thus causing a live wire to touch and momentarily energise that portion of
the stay-wire beyond the insulator.
The only question remaining on this part of the case is whether any electrical under-
taker, mindful of his duty towards likely comers, would foresee and guard against this
sort of interference with his system. In this I derive some assistance from The Wagon
Mound (No 2), where Lord Reid99 restated the general principle that a person must be
regarded as negligent if he does not take steps to eliminate a risk which he knows or
ought to know is a real risk and not a mere possibility which would never influence the
mind of a reasonable man.
In my judgment, it would be unreasonable to expect any electrical undertaker to
guard against the concatenation of events which took place at Leard on the day the
deceased was electrocuted. These events were, in my view, so unlikely that even the
most careful and cautious electrical engineer would not have foreseen them. As to
guarding against the possibility of it happening, the suggestion is that the stay-wire
should have been fenced around to prevent agricultural activity taking place too near to
it. I do not think that the law would demand that any such measure be taken. If an
undertaker had to guard against interference with the poles supporting the system, he
would have to construct protective works to prevent damage to the system as a result,
for example, of motor vehicles colliding with any part of it – in my view, a clearly
impossible burden.

99 [1966] 2 All ER 709, p 718.

194 Commonwealth Caribbean Tort Law

Statutory authority

Sometimes, public authorities charged with providing a particular public service, for
example, the collection and disposal of sewage, or the supply of electricity,100 are
exempted from liability by statute, provided that they have not been negligent.101 As
in the case of nuisance,102 it is a question of construction of the statute in question as to
whether, and to what extent, liability under Rylands v Fletcher has been excluded. This
defence is examined above, Chapter 7.

DAMAGES

The rule in Rylands v Fletcher is not a tort actionable per se, and so damage must be
proved. As to what types of injury are compensable, the harm primarily protected by
the tort is damage to land, buildings and fixtures thereon. The plaintiff may also
recover for harm to his chattels.103 Whether damages are recoverable for personal
injuries is more doubtful. Despite dicta to the contrary,104 it seems to be settled that a
person having an interest in land can recover for personal injuries. It has even been
suggested that a non-occupier can recover for injuries to his person,105 and this view
was implicitly accepted by Douglas CJ in Phillips v Barbados Light and Power Co Ltd,106
where, as we have seen, a bystander was electrocuted by a high voltage electricity
wire. The learned Chief Justice said:107
For the company it is further submitted that the rule in Rylands v Fletcher does not apply
to cases of personal injuries. Attention is drawn to Read v Lyons.108 In that case, an
inspector of munitions was injured in the defendants’ munitions factory by the explo-
sion of a shell. In the absence of negligence, it was held that the rule did not apply
because there had been no escape of any dangerous thing from the premises. Lord
Macmillan’s dictum that the rule in Rylands v Fletcher had nothing to do with personal
injuries is, therefore, purely obiter. The view was expressed by Parker LJ in Perry v
Kendricks Transport Ltd 109 that the Court of Appeal in England is bound by one of its
own decisions granting relief for personal injuries under the rule, and that the matter
will have to be decided by the House of Lords when the issue arises there. On this
question, it is worthy of note that the High Court of Australia, whose decisions are
accorded such great respect in all common law countries, held in the case of Benning

100 See Trinidad and Tobago Electricity Commission v Sookram (1999) 57 WIR 473 and Morrison v
Trinidad and Tobago Electricity Commission (1999) High Court, Trinidad and Tobago, No 1272
of 1995 (unreported), where the effect of ss 49(3), 96 and 97 of the Trinidad and Tobago
Electricity Commission Act, Cap 54:70, was considered.
101 It was emphasised by de la Bastide CJ in Trinidad and Tobago Electricity Commission v Sookram,
ibid, pp 484, 485, that the burden of proving negligence lay on the plaintiff. However,
cf Manchester Corp v Farnworth [1930] AC 171, where it was held that where a nuisance had
been created by the emission of poisonous fumes, the onus of proving that all reasonable care
had been taken to prevent the nuisance lay on the defendant.
102 See above, pp 177, 178.
103 Jones v Festiniog Rly (1868) LR 3 QB 733.
104 Read v Lyons [1947] AC 156, p 182, per Lord Macmillan.
105 Shiffman v Order of St John [1936] 1 All ER 557, p 561.
106 (1972) 7 Barb LR 154 (see above, pp 192, 193).
107 Ibid, p 161.
108 [1947] AC 156.
109 [1956] 1 All ER 154.
 Chapter 8: The Rule in Rylands v Fletcher 195

v Wong 110 that the damages for which a defendant is liable in an action based on the rule
in Rylands v Fletcher include damages for personal injuries. Barwick CJ could discover
no reason why personal injuries should not be included in damages awarded in a case
based on Rylands v Fletcher.
In my judgment, it is too late in the day to limit the rule in Rylands v Fletcher in the way
suggested by Lord Macmillan in Read v Lyons.

110 (1969) 122 CLR 249.

 CHAPTER 9

LIABILITY FOR ANIMALS

INTRODUCTION

Tortious liability for animals may be classified thus:

(a) liability for cattle trespass;
(b) liability for dangerous animals (the ‘scienter action’);
(c) liability for dogs;
(d) liability in negligence.
In the Caribbean, the common law principles have been modified by statute in certain
jurisdictions. For instance, the Animals (Civil Liability) Act 1980, Cap 194A (Barbados)
has codified much of the law relating to liability for animals, using as its model the
Animals Act 1971 of England and Wales; and the Trespass Act, Cap 392 (Jamaica) has
amended the law relating to cattle trespass in that country. Also, legislation imposing
strict liability for harm by dogs has been introduced in some jurisdictions.1
Apart from the main heads of liability for animals enumerated above, there are
several ways in which a person may incur tortious liability through the instrumenta-
lity of his animals. For instance, the keeper of pigs or goats may be liable in private
nuisance if the stench from the animals unreasonably interferes with his neighbour’s
enjoyment of his land;2 or he may be liable in public nuisance if his animals are
allowed to obstruct the highway and thereby cause particular damage to the plaintiff.
And one who deliberately sets his dog upon a person will be as liable for battery as
if he had struck the person a blow with his fist. It has even been suggested that one
who trains his parrot to defame someone may be liable for slander.3

LIABILITY FOR CATTLE TRESPASS

This, one of the most ancient causes of action known to the common law, lies where
cattle in the possession or control of the defendant are either intentionally driven
on to the plaintiff’s land or stray on to such land independently. The essence of the
tort has been expressed thus:
If I am the owner of an animal in which, by law, the right of property can exist, I
am bound to take care that it does not stray onto the land of my neighbour; and I
am liable for any trespass it may commit, and for the ordinary consequences of that
trespass; whether or not the escape of the animal is due to my negligence is altogether
immaterial.4

1 Eg, Dogs Act, Cap 71:05, s 3 (Guyana); Dogs (Liability for Injuries by) Act, s 2 (Jamaica); Animals
(Civil Liability) Act, Cap 194A, s 8 (Barbados); Dogs (Injury to Persons, Cattle and Poultry)
Act, Cap 238, s 3 (British Virgin Islands).
2 Walwyn v Brookes (1993) High Court, St Christopher and Nevis, No 34 of 1992 (unreported)
[Carilaw KN 1993 HC 5].
3 Winfield and Jolowicz, Tort, 13th edn, 1989, London: Sweet & Maxwell, p 456.
4 Cox v Burbidge (1863) 143 ER 171, p 174, per Williams J.
 Chapter 9: Liability for Animals 197

Thus, the owner of cattle (which, at common law, includes not only cows and bulls,
but also horses, donkeys, sheep, pigs, goats and poultry)5 is strictly liable for all
damage done by such cattle when trespassing on the land of another.6 Damages are
recoverable not only for harm to the plaintiff’s land and crops caused by the trespass,
but also for injury to his animals7 and chattels8 and for any injuries inflicted upon the
plaintiff himself.9 The principle is illustrated by East Coast Estates Ltd v Singh.10 Here,
cattle belonging to the defendant strayed onto the plaintiffs’ land and damaged ‘pan-
gola grass’ which the plaintiffs were cultivating. The defendant alleged that, as he was
driving his cattle along the road, rain began to fall and he was forced to drive the
cattle into a nearby common whence, through no fault on his part, they strayed onto
the plaintiffs’ land. Crane J held that liability in cattle trespass is strict, and the
defendant was liable irrespective of any intention or negligence on his part. He said:11
The cattle trespass principle is a species of strict liability – one of the oldest grounds of
liability in English law . . . It is clear from his defence that Thakur Singh is urging that
he did not deliberately depasture his cattle in area ‘J’ and that the trespass is not
attributable to any wrongful act of his . . . On both principle and authority it seems to
me that this defence cannot be sustained, for the law is that a defendant is liable for any
damage done to another’s land by his straying cattle . . . irrespective of any intention or
negligence on his part.
Assuming what Thakur Singh has stated about rain putting him in a dilemma to be the
truth, he would, it seems, still be liable to the plaintiffs for trespass by animals escap-
ing, not from the roadway to area ‘J’, but from the field where they were driven by him.
There is no analogy, as counsel for the first defendant seems to think, between the facts
of his client’s case and those in Goodwin v Cheveley.12 Counsel’s argument is that his
client acted reasonably by driving his cattle during the rainstorm to the common from
which they escaped to area ‘J’, before going in search of the one which had escaped into
area ‘I’. Though I agree it might have been reasonable for the first defendant to have
done so, the fact remains that the trespassing cattle escaped, not directly from the
roadway to the plaintiffs’ ‘pangola pasture’, but thereto from the common where
the defendant had driven them – which fact makes all the difference and serves to
distinguish this case from Goodwin’s, where the animals strayed into the defendant’s
close directly from the roadway along which they were being driven; for it is a defence
to an action for cattle trespass that the animals strayed from the roadway where they
were being driven, into an adjacent close.13

Statutory defence

Section 14 of the Trespass Act ( Jamaica) provides a defence for the owner of trespass-
ing livestock who has properly fenced his land:

5 At common law, ‘cattle’ does not include dogs (Tallents v Bell [1944] 2 All ER 474) or cats
(Buckle v Holmes [1926] 2 KB 125).
6 In Barbados, liability for cattle trespass is governed by s 5 of the Animals (Civil Liability) Act,
Cap 194A, which has preserved strict liability.
7 Ellis v Loftus Iron Co (1874) LR 10 CP 10. See Carrington v Montrose Poultry Farms Ltd (1997) 33
Barb LR 251 (High Court, Barbados).
8 Cooper v Rly Executive [1953] 1 All ER 477.
9 Wormald v Cole [1954] 1 All ER 683.
10 [1964] LRBG 202 (Supreme Court, British Guiana).
11 Ibid, p 204.
12 (1859) 28 LJ Ex 298.
13 Tillett v Ward (1882) 10 QBD 17. See below, pp 199, 200.
198 Commonwealth Caribbean Tort Law

If in any action brought to recover any damages under this Act, the owner of the
stock shall prove that his land is enclosed by good and sufficient fences, and that he
has adopted all other reasonable and proper precautions for the confinement of his
stock, and that they have nevertheless, through some cause or accident beyond
his control and which he could not reasonably have provided against, escaped from his
land, the party complaining shall not be entitled to recover any sum unless he can
show that he has fenced his land with a fence sufficient to keep out ordinary tame cattle
and horsekind.

This section provides a wider defence to cattle trespass than the defences at common
law, and shows that liability under the Act is far from strict. At common law, in
Salmond’s view,14 the only established defences are volenti non fit injuria, plaintiff’s
own default in failing to perform a duty to fence imposed by law or by prescription,
and Act of God; and the weight of authority is against admitting act of a third party
and other forms of inevitable accident as defences.
The statutory defence does not apply where the plaintiff ‘can show that he has
fenced his land with a fence sufficient to keep out ordinary tame cattle and horse-
kind’. This was, no doubt, designed to encourage farmers to fence their land not only
to protect themselves against the straying cattle of others, but also to prevent their
own cattle from escaping.
In West v Reynolds Metal Co,15 it was held that where the defendant’s land bordered
on the plaintiff’s on two sides, north and east, and both were ‘enclosed by good and
sufficient fences’, this was not sufficient to bring him within the protection of the
section when his cattle escaped on to the plaintiff’s land, since the defendant’s land
was not enclosed on all sides.

Parties to an action in cattle trespass

As in other forms of trespass to land, the right to sue arises from occupation of land
and only a person with an interest in the land can sue.
In Aziz v Singh,16 the defendant’s steers had trespassed upon Y’s land, where the
plaintiff’s steers were tethered with Y’s permission, and there inflicted fatal injuries
upon the plaintiff’s animals. The plaintiff’s action succeeded on the ground of scienter
but, as regards cattle trespass, Verity CJ held that:
. . . the mere acquisition of permission to tie animals upon the land of another confers
upon the holder no interest in or right to possession of the land sufficient to ground
an action in cattle trespass, nor could the plaintiff plead that he was entitled to
damages for the harm he had sustained as a consequence of a trespass on the land of
a third party.

It appears, however, that under the Trespass Act (Jamaica), the right to sue for cattle
trespass may not be restricted to a person having an interest in the land upon which
the offending cattle have trespassed, for s 12 gives a right of action in respect of ‘any
injury done by stock trespassing on to the land of other persons’, which would be
wide enough to include injury to non-occupiers and their property.
The question as to who is the proper defendant in an action in cattle trespass was

14 See Salmond on Torts, 13th edn, 1961, London: Sweet & Maxwell, pp 620, 621.
15 [1968] Gleaner LR 63.
16 [1944] LRBG 104 (Supreme Court, British Guiana).
 Chapter 9: Liability for Animals 199

discussed in a trilogy of Jamaican cases in which liability both at common law and
under the Trespass Act was mentioned. Section 12 of the Act (formerly, ‘Law’)
provides that:
It shall be the duty of the proprietor of any stock to take proper and effective measures
to prevent such stock from trespassing on to the land of other persons, and subject to
the provisions hereinafter contained, such proprietor shall be responsible in damages
in respect of any injury done by such stock trespassing on to the land of other persons.
In the majority of cases, the owner of cattle will also be in possession and control of
them; but where the owner of cattle has depastured them on another person’s land
whence they stray and cause damage, the question will arise as to whether the owner
of the cattle or the owner of the land, as the person in control, is to be held respon-
sible. In Sinclair v Lindsay 17 the Jamaican Court of Appeal held that under s 12,
liability was imposed on ‘the proprietor’, which meant the owner of cattle, and that
the lower court had been in error in placing liability on the person who was in
possession and control but who was not the owner. In Thompson v AG,18 however,
where cattle owned by X and Y were depastured on an estate belonging to and in the
possession of the Ministry of Agriculture and Lands under a ‘revolving herd’
scheme, whence they trespassed upon the plaintiff’s land and caused damage,
Eccleston JA held that, in the circumstances, ‘the unqualified duty of keeping [the
cows] from straying rested upon the owner or occupant of the land, which is the
Government, on which they were with consent to be levant and couchant’. In coming
to this conclusion, the learned judge relied on a passage from another Jamaican case,
Hendricks v Singh:19
At the conclusion of the hearing of this case, the Court was inclined to think that
the test of unqualified liability for cattle trespass is an affirmative finding that the
defendant was at the time of such trespass in possession and control of animals whose
habit it is to go in pursuit of herbage. Subsequent reflection has, however, satisfied
us that this view is incorrect. Cox v Burbidge 20 and other authorities show that the
unqualified duty of keeping cattle from straying rests upon the owner or occupant of
the land on which they happen with his consent to be levant and couchant, or detained
for any time.

In Thompson’s case,21 it was clear that the Jamaican Court of Appeal regarded liability
under the Trespass Act as being based, in this respect, on the same principle as liabil-
ity at common law, so that, in appropriate circumstances, a person in possession or
control who is not the owner of the cattle may be liable; and such possessor will
normally be the occupier of the land on which the cattle are placed and from which
they have strayed.

Trespass from the highway

At common law, there is no liability in cattle trespass where animals lawfully on the
highway, without negligence on the part of the person bringing them there, stray

17 [1968] Gleaner LR 22.

18 (1969) Court of Appeal, Jamaica, Civ App No 73 of 1969 (unreported).
19 [1917–32] Clark’s Rep 252.
20 (1863) 143 ER 171.
21 (1969) Court of Appeal, Jamaica, Civ App No 73 of 1969 (unreported).
200 Commonwealth Caribbean Tort Law

therefrom on to the plaintiff’s land and do damage.22 The rationale behind the rule is
that the owner of land abutting on a public road is deemed to have consented to run
the risk of the dangers incident to the ordinary, non-negligent use of the highway.
Section 13 of the Trespass Act (Jamaica) reproduces this rule in statutory form,
with the modifications that:
(a) the immunity does not apply where the plaintiff has fenced his land to keep out
livestock; and
(b) the onus is on the defendant to show that his stock were being lawfully driven
along the highway, and not on the plaintiff to show the unlawfulness of the
defendant’s conduct.
Section 13 is worded:
No person in occupation of any land abutting on a public road shall be entitled to
recover any damages in respect of any trespass on such land by any stock while the
same are being lawfully driven on such road, under proper care and control, unless
such land is secured by a fence along such road sufficient to keep out ordinary stock of
the class of animals committing the trespass.
The onus of showing that any stock were being so driven as aforesaid shall lie on the
owner of the stock.

LIABILITY FOR DANGEROUS ANIMALS

(THE SCIENTER ACTION)
In this area, the common law classifies animals into two categories:
(a) animals ferae naturae, that is, those belonging to a naturally fierce, wild or danger-
ous species, such as lions, tigers, gorillas, bears and elephants; and
(b) animals mansuetae naturae, that is, those belonging to a naturally tame, harmless
and, in most cases, domesticated species, such as horses, donkeys, cows, sheep,
goats, cats and dogs.
The owner or keeper of an animal ferae naturae is strictly liable for any harm which
it causes, and it is irrelevant whether or not the particular animal has shown a
propensity for that kind of harm in the past. Thus, for example, the keepers of a ‘tame’
elephant in a circus were held liable when the animal, without any aggression,
knocked down and injured the plaintiff.23
The owner or keeper of an animal mansuetae naturae, however, is liable for harm
caused by the animal only if:
(a) the particular animal has shown a propensity in the past to do harm of that
kind; and
(b) the owner or keeper is proved to have had knowledge of such propensity.

22 Tillett v Ward (1882) 10 QBD 17. Section 22 of the Cattle Trespass Act, 1982, Cap 22, of Antigua
and Barbuda, has introduced a novel head of liability for damage to any person or thing
resulting from cattle straying ‘in any public place, square, quay, wharf or highway’, unless the
owner or person in charge of the cattle can prove he did not know or had no reason to suspect
that his cattle had strayed, and that he had taken all reasonable precautions to prevent the
straying. See James v Knowles (1999) High Court, Antigua and Barbuda, No 225 of 1994
(unreported) [Carilaw AG 1999 HC 3].
23 Behrens v Bertram Mills Circus [1957] 2 QB 1.
 Chapter 9: Liability for Animals 201

Proof of knowledge of an animal’s vicious propensity, the onus of which is on the

plaintiff, is called ‘scienter’, a term derived from an ancient form of declaration char-
ging the defendant with knowingly keeping a dangerous animal. In its origin, the
scienter action was one of negligence, but later, ‘by somewhat dubious legal reason-
ing’, liability became strict. Instead of saying that the defendant was liable for neg-
ligence, the mere keeping of a dangerous animal being negligent, it was said that
the defendant was liable without proof of negligence, the obligation being to keep the
animal safe ‘at his peril’.24
The following principles of liability under the scienter action have been estab-
lished by the cases:
(a) Whether a species of animal is to be classified as ferae or mansuetae naturae is a
question of law for the judge, to be decided either on the basis of judicial notice
or on expert evidence.25
(b) The requisite knowledge of an animal’s vicious propensity must relate to the
particular propensity that caused the damage. For instance, if a dog attacks a
man, it must be shown that the animal had a propensity to attack humans: it
would not be sufficient to show a propensity to attack other animals.26
(c) In establishing scienter, it is not necessary to show that the animal had actually
done the particular type of damage on a previous occasion: it is sufficient to
prove that it had exhibited a tendency to do that kind of harm.27 For instance, in
proving a dog’s propensity to attack humans, it is sufficient to show that it habit-
ually rushed out of its kennel, where it was chained, and attempted (unsuccess-
fully) to bite passers-by.28 Thus, the common saying that ‘every dog is allowed
one free bite’ is not accurate;29 though, if the plaintiff can show that the animal did
on a previous occasion actually cause the particular type of harm, then his case
will presumably be stronger.
(d) Knowledge of an animal’s vicious propensity will be imputed to the defendant
where it is acquired by someone to whom the defendant delegated full custody or

24 Williams and Hepple, Foundations of the Law of Torts, 2nd edn, 1984, London: Sweet & Maxwell,
p 111; Williams v Martins [1920] LRBG 169 (Petty Debt Court, British Guiana), p 171; Brown v
Fung Kee Fung [1921] LRBG 5 (Petty Debt Court, British Guiana), p 6. In Barbados, liability for
dangerous animals is governed by ss 3 and 4 of the Animals (Civil Liability) Act, Cap 194A,
which is modelled on s 2 of the Animals Act 1971 (UK). For the application of the latter section,
see Curtis v Betts [1990] 1 All ER 769; Wallace v Newton [1982] 1 WLR 375. See also Cummings v
Granger [1977] 1 All ER 104.
25 McQuaker v Goddard [1940] 1 KB 687, p 700. It was held by the Court of Appeal of the
Eastern Caribbean States in Williams v Murraine (1987) 40 WIR 160 that bees were not ferae
naturae.
26 Glanville v Sutton [1928] 1 KB 571.
27 Barnes v Lucille (1907) 96 LT 680; Nurse v Haley [1920] LRBG 174 (Petty Debt Court, British
Guiana).
28 Worth v Gilling (1866) LR 2 CP 1. In Nurse v Haley [1920] LRBG 174 (Petty Debt Court, British
Guiana), p 175, Douglas J (Ag) said that ‘the mere fact that a man keeps a dog tied up is not in
itself evidence of his knowledge of a savage disposition, but may become material when
combined with other facts’, such as where a dog is kept as a guard dog. On the other hand,
in Achama v Read [1938] LRBG 183 (Supreme Court, British Guiana), p 184, Langley J held that
the fact that a dog was kept chained for more than a year was evidence of the owner’s
knowledge of a vicious propensity because ‘surely such an existence would not be inflicted
on any animal unless he had shown signs of viciousness,’ and ‘after so prolonged an
imprisonment, undoubtedly [the dog] would develop viciousness’.
29 Sims v McKinney (1989) Supreme Court, The Bahamas, No 996 of 1986 (unreported) [Carilaw
BS 1989 SC 7], per Georges CJ; Nurse v Haley [1920] LRBG 174.
202 Commonwealth Caribbean Tort Law

control of the animal;30 and, in certain other cases, it may be inferred that know-
ledge gained by a third party (for example, the wife of the keeper31 or a servant
in charge of premises where the animal is kept)32 had been communicated to the
keeper.
(e) For the purposes of the scienter action, it is immaterial where the animal’s attack
took place; whether, for example, on the plaintiff’s land, on the defendant’s prem-
ises, on the land of a third party, or on the highway or other public place.33
(f) In the case of harm caused by an animal mansuetae naturae, the propensity of
the animal must be shown to be vicious or hostile. The defendant will not be liable
if the animal was merely indulging in a propensity towards playfulness or some
other non-aggressive behaviour, especially where such propensity is common to
most animals of that species, for instance, the frolicking of high spirited horses,34
or dogs chasing each other or running across traffic.35
In a similar vein, it has been held in Jamaica that, in the case of an animal mansuetae
naturae, there is no liability where, in causing harm, the animal was displaying a
‘natural’ as opposed to a ‘mischievous’ propensity. This is illustrated by McIntosh v
McIntosh.36 In this case the plaintiff was riding his jenny along a bridle track when the
defendant’s jackass jumped onto it in an attempt to serve it, causing injuries to both
the plaintiff and the jenny. There was evidence that on a previous occasion the jackass
had attempted to serve the jenny while it was in a lying position and had kicked it,
and that the defendant knew about this.
The defendant was held not liable, since the jackass, in attempting to serve the
jenny, was merely displaying a natural propensity. Lewis JA said:37
The learned trial judge gave judgment for the defendant on the grounds that, first of all,
the donkey was a domesticated animal, and secondly, that for a jack to try to serve a
jenny was the mere exercise of a natural propensity; and that, even if this were held to
be a mischievous propensity, there was no evidence that the jack was known to be in the
habit of serving a jenny while it was being ridden.
Learned counsel for the plaintiff/appellant in this case has submitted that the learned
trial judge, having found that the defendant was aware that the donkey had previously
tried to serve this jenny, ought to have held that this was evidence of scienter of a
mischievous propensity and should have given judgment for the plaintiff; or that, alter-
natively, this court ought to allow an amendment to enable him to plead that the jenny
had been attacked, and on the basis of the learned judge’s finding the court should enter
judgment for the plaintiff.
I agree with the [trial judge’s] finding that for a jack to serve a jenny is a natural
propensity. The damage which the plaintiff suffered as a result of the exercise of that
natural propensity was merely incidental to what the jack was trying to do –
endeavouring to serve the jenny. The donkey, as the learned judge has held, is a
domesticated animal, and the authorities show that where a domesticated animal does

30 Baldwin v Casella (1872) LR 7 Ex 325.

31 Gladman v Johnson (1867) 36 LJ CP 153.
32 Appleby v Percy (1874) LR 9 CP 647.
33 Fleming, The Law of Torts, 6th edn, 1983, Sydney: LBC Information Services, p 332.
34 Fitzgerald v Cooke [1964] 1 QB 249.
35 Martignoni v Harris (1971) 2 NSWLR 103.
36 (1963) 5 WIR 398 (Court of Appeal, Jamaica).
37 Ibid, p 399.
 Chapter 9: Liability for Animals 203

something which is merely an exercise of its natural propensity, damage caused as a

result is not recoverable.

Unlike under the scienter action, in an action for negligence in respect of harm caused
by an animal, the owner or keeper will be liable for damage caused by the animal in
following its natural propensities, since such damage will be foreseeable and not too
remote. Conversely, if the animal exhibits an unnatural tendency and causes damage
thereby, the defendant will not be liable, since the damage will then be too remote.
Thus, in Coley v James,38 Lewis JA said:39
If the animal avails itself of the opportunity created by the negligent act of the defend-
ant’s agent to do something which is in accordance with its nature and thereby causes
damage, then the defendant is liable. But if it does something that is contrary to its
nature, some spontaneous act which an animal of that class would not normally be
expected to do, then the defendant is not liable.

In Brown v Smith,40 where the claimant was bitten on the leg by a pig which had
apparently stretched across from adjacent land where it was tethered, Wolfe JA, in the
Jamaican Court of Appeal, stated that the likelihood of the animal causing damage
was clearly relevant in determining the existence of negligence, and the spontaneous
action of an animal could be equated with the novus actus of a human being. Accord-
ingly, even if the defendant had been negligent in leaving his animal unattended or
improperly tethered (which had not been established in the present case), he would
‘not be liable for damage resulting from any violent departure from its ordinary
docility’.

Who can be sued?

Liability under the scienter action rests on the person who harbours and controls
the animal. In most cases, the owner of the animal will be its keeper, but this is not
necessarily so. For instance, an occupier who took care of a vicious dog left on the
premises by a previous tenant was held liable for injury caused by the animal.41
However, the mere fact that an occupier has tolerated the presence of someone else’s
animal on his land does not fix him with responsibility for its mischief. Thus, for
example, a father was not liable for an injury inflicted by a dog owned and fed by
his 11-year-old daughter;42 and a school authority was not liable when a dog kept
on school premises by the caretaker attacked and injured a cleaner.43

Defences

It seems that the only well-recognised defences to liability under the scienter action are
default of the plaintiff, contributory negligence and volenti non fit injuria.44 With
respect to the first, it is probably a good defence to show that the plaintiff, at the time

38 (1964) 6 WIR 259 (Court of Appeal, Jamaica).

39 Ibid, p 260.
40 (1994) 31 JLR 312.
41 McKone v Wood (1831) 172 ER 850.
42 North v Wood [1914] 1 KB 629.
43 Knott v London CC [1934] 1 KB 126.
44 See op cit, Fleming, fn 33, p 333.
204 Commonwealth Caribbean Tort Law

he was injured by the animal, was trespassing on the defendant’s land, unless the
animal was kept with the deliberate intention of injuring, rather than of merely
deterring, trespassers.45 It is unlikely that the decision in British Railways Board v
Herrington 46 has affected the principle that ‘every man has a right to keep a dog for the
protection of his yard or house’,47 without being liable to a trespasser who enters and
is there attacked. Default of the plaintiff will also be a defence where the plaintiff
brings the injury upon himself by, for example, stroking a zebra at a zoo48 or teasing a
dog;49 though it is not sufficient that the plaintiff merely walked close to the animal,
unless this was in unreasonable disregard of obvious danger.50 If the plaintiff were
entirely responsible for his injury, his action would fail altogether; but if he were
merely contributorily negligent, his damages would be reduced under the statutory
apportionment provisions.51
Volenti non fit injuria may also afford a defence,52 and will most often apply where
persons whose livelihood it is to deal with dangerous animals, such as zoo keepers
and animal trainers,53 are injured in the course of their work.
There is no authority as to whether Act of God is a defence, and there is a conflict of
authority as to the availability of the defence of act of a stranger. In one case,54 it was
held that the keeper of a fierce dog was not liable for injuries caused when a trespasser
maliciously let the animal off its chain; but more recent cases55 seem to have decided
that act of a stranger is no defence to a claim in scienter, on the ground that the interven-
tion of a stranger should be taken to be within the foreseeable risk created by the
possession of a dangerous animal. In Brown v Henry,56 the Jamaican Court of Appeal
preferred the view of certain textbook writers that the defence of act of a stranger is
available but qualified, and can succeed only if the evidence shows that the owner
of the animal took all reasonable care to prevent third parties from meddling with it.

Scienter in the Caribbean

There are relatively few examples of the scienter action in the Caribbean. This is no
doubt due to the fact that liability for dogs, which are the animals most likely to
cause harm by their aggressive behaviour, is now governed in several jurisdictions by
statutory provisions imposing strict liability.57 One example of a successful action in
scienter is Aziz v Singh,58 where the defendant was found to have had knowledge of the
vicious propensity of his steers to attack other animals, and was therefore held liable

45 Sarch v Blackburn (1830) 172 ER 712; Nurse v Haley [1920] LRBG 174 (Petty Debt Court, British
Guiana), p 175.
46 [1972] 1 All ER 749. See above, pp 136–39.
47 Brock v Copeland (1794) 170 ER 328, per Lord Kenyon.
48 Marlor v Ball (1900) 16 TLR 239.
49 Sycamore v Ley (1932) 147 LT 342.
50 Filburn v People’s Palace (1890) 25 QBD 258.
51 See below, Chapter 13.
52 Sylvester v Chapman (1935) 79 SJ 777.
53 Rands v McNeil [1955] 1 QB 253.
54 Fleeming v Orr (1857) 2 Macq 14.
55 Baker v Snell [1908] 2 KB 825; Behrens v Bertram Mills Circus [1957] 2 QB 1.
56 (1947) 5 JLR 62.
57 See below, pp 205–12.
58 [1944] LRBG 104 (Supreme Court, British Guiana) (see above, p 198).
 Chapter 9: Liability for Animals 205

for fatal injuries inflicted by them on the plaintiff’s steers. And in another Guyanese
case, Williams v Martins,59 the owner of a horse who knew of its vicious propensity
to attack other horses was held liable for injuries inflicted on the plaintiff’s horse
which had been pastured with it. On the other hand, a plea of scienter failed in Sims v
McKinney.60 There, the plaintiff, a visitor to the Bahamas, was walking down a public
road when the defendant’s two small mongrel dogs (‘locally known as potcakes’)
rushed from the defendant’s driveway and bit the plaintiff on the leg. On the plea
of scienter, Georges CJ said:
I agree with the submission by Mrs Gibson [counsel for the plaintiff] that the popular
belief that every dog is entitled to its first bite is not well grounded in law. An owner
may be well aware that his dog is likely to attack persons and take effective precautions
to prevent it from doing so. If on a particular occasion . . . the dog escapes and bites
someone, the owner will certainly be liable even though it was the dog’s first bite. It
may well be, for example, that a sign on the owner’s premises stating ‘Beware of the dog’
may be evidence of knowledge on the part of the owner that the dog is likely to bite.
In this case, however, there is no evidence that the defendant was aware, prior to
20 February 1985, that either of his dogs was of a vicious nature or was liable to bite
anyone. Indeed, as the plaintiff herself testifies, his immediate reaction was to express
surprise on the basis that his dogs did not behave that way. Mrs Gibson contends that
this was a self serving statement, but it appears to me to be a spontaneous reaction to a
complaint and for that reason likely to be true. A claim in this case cannot, therefore, be
rested on the basis of damage due to a mischievous propensity known to the owner.

Similarly, in Reid v Tyson,61 where the defendant’s dog ran out of her shop and bit the
plaintiff on her leg, it was held by the Court of Appeal of the Eastern Caribbean States
that the defendant was not liable under the scienter principle in the absence of any
evidence that the defendant knew of any propensity in her animal to attack people.
One successful scienter action concerning a dog was Ambrose v Van Horn,62 a case
from Trinidad and Tobago, where, as in The Bahamas and St Christopher and Nevis,
there is no statutory provision imposing strict liability for harm by dogs. Here, the
plaintiff’s sow was attacked in its pen and killed by the defendant’s boxer dog. There
was evidence that, on at least three previous occasions, the dog had attacked other
animals and that the defendant was aware of this. Accordingly, the Court of Appeal
found the defendant liable for the value of the sow.

LIABILITY FOR DOGS

There are several reasons why the law has treated the dog as a special type of animal
mansuetae naturae. First, the dog population is very high (and this is no less so in the
Caribbean); secondly, dogs are kept for a variety of purposes – as pets, guard dogs or
hunters; thirdly, they are notoriously energetic and difficult to keep under restraint,
and are therefore particularly prone to stray; and, fourthly, dogs are not within the

59 [1920] LRBG 169; upheld on appeal [1921] LRBG 137.

60 (1989) Supreme Court, The Bahamas, No 996 of 1986 (unreported) [Carilaw BS 1989 SC 7].
61 (1993) Court of Appeal, OECS, Mag App No 6 of 1993 (unreported). See also Brown v Smith
(1994) 31 JLR 312 (Court of Appeal, Jamaica) where the plaintiff was bitten on her thigh by
a pig.
62 (1967) Court of Appeal, Trinidad and Tobago, Civ App No 14 of 1967 (unreported) [Carilaw
TT 1967 CA 110], per Wooding CJ.
206 Commonwealth Caribbean Tort Law

definition of ‘cattle’ at common law, so that a defendant cannot be liable in cattle

trespass for damage caused by his dog’s straying on to the plaintiff’s land.63 It has
long been apparent that the ordinary common law heads of liability were insufficient
to deal with the special case of the dog, and legislation has been enacted in Australia,
Canada and some Commonwealth Caribbean jurisdictions to provide for forms of
strict liability for harm caused by dogs.64
For instance, s 2 of the Dogs (Liability for Injuries by) Act (formerly, ‘Law’)
(Jamaica) provides:65
The owner of every dog shall be liable in damages for injury done to any person, or any
cattle or sheep by his dog, and it shall not be necessary for the party seeking such
damages to show a previous mischievous propensity in such dog, or the owner’s know-
ledge of such previous propensity, or that the injury was attributable to neglect on the
part of such owner.

The effect of the section was considered in Brown v Henry, Salmon v Stewart, Anderson v
Ledgister, Smith v Gaynor and Wilson v Silvera.
In Brown v Henry 66 the plaintiff, a 12-year-old boy, brought an action to recover
damages for injuries received as a result of an attack upon him by the defendant’s
dog. There was evidence that the dog had been set upon the plaintiff by two small
boys as they were walking down a public road.
It was held that strict liability was imposed by the Dog (Liability for Injuries by)
Law. The defence of act of a stranger was available only where the owner of the dog
had done everything he could have done to prevent third parties from meddling
with it, which was not the case here. Savary J said:67
The Liability for Injuries by Dogs Law, Cap 406 imposes a strict liability on the owner
of a dog which causes injury to any person without proof of a previous mischievous
propensity in the dog or of neglect on the part of the owner. This is a departure from the
common law, where it was necessary to prove that the owner knew of its mischievous
propensity in order to establish liability. It does not follow from what we have said
that the provisions of our Law exclude the defence being raised by the owner of a dog
that the damage caused by his dog was the result of the intervening act of a third party.
But in our opinion it can be raised successfully only where the owner of a dog has done
everything he reasonably could be expected to do to prevent third persons from med-
dling with it. In respect of this defence, we think that the owner of a dog in Jamaica,
where liability is independent of scienter, is in the same position as the owner of a dog
in England where scienter has been proved.
Two leading textbooks on the law of torts express the view that the defence of the act of
a stranger, in the case of injury by a dog where scienter is proved, is in England qualified

63 Buckle v Holmes [1926] 2 KB 125.

64 See Kodilinye, G (1987) 16 Anglo-Am L Rev 174. According to the New South Wales Law
Commission, ‘what places dogs in a special position is that, despite their canine characteristics
and the rapidly increasing urbanisation of our society, it is still popularly accepted that,
broadly speaking, dogs are privileged to roam and that, in ordinary circumstances, the owner
of a dog does not act unreasonably towards others in permitting it to do so. No like privilege is
conceded to any other animal which is as likely as a dog to inflict serious injury. The position
of dogs is special; and this warrants the imposition of special liability in respect of them.’
65 See also Animals (Civil Liability) Act, Cap 194A, s 8 (Barbados) (applied in Edghill v Corbin
(1997) High Court, Barbados, No 794 of 1991 (unreported)); Dogs Act, Cap 71:05, s 3 (Guyana);
Dogs (Injury to Persons, Cattle and Poultry) Act, Cap 238, s 3 (BVI).
66 (1947) 5 JLR 62 (Court of Appeal, Jamaica).
67 Ibid, p 63.
 Chapter 9: Liability for Animals 207

and can succeed only if the evidence establishes that the owner of the dog took all
reasonable care to prevent it from doing mischief or, as we have said, has done every-
thing he reasonably could be expected to do to prevent third persons from meddling
with it. We refer to Salmond on Torts, 10th edn, p 553 and Winfield on Torts, 3rd edn, p 519.
Although Baker v Snell 68 indicates a contrary view, all the textbooks on torts express
the opinion that the decision is unsatisfactory and should not be followed. We agree.

In Salmon v Stewart,69 the plaintiff was riding his bicycle along a public street when the
defendant’s dog, which was sitting on a wall beside the road, jumped on the plain-
tiff’s knee and caused him to fall off his bicycle and fracture his foot. It was not known
whether the dog intended to attack the plaintiff or whether it was acting in frolic.
It was held that the defendant was strictly liable under the Liability for Injuries
by Dogs Law. Carberry CJ (Ag) cited s 2 of the Law and continued:70
The section does not merely relieve the plaintiff from the proof of scienter, that is, the
knowledge of the defendant of the mischievous propensity of his dog, but the section
goes on to relieve the plaintiff from proving negligence by the defendant, so that in this
case the injured plaintiff need only prove that the defendant’s dog caused him injury
and liability attaches to the defendant.
In a judgment of this court delivered by Savary J . . . in the case of Brown v Henry,71 this
passage appears:
The Liability for Injuries by Dogs Law, Cap 406 imposes a strict liability on the
owner of a dog which causes injury to any person without proof of a previous
mischievous propensity in the dog or of neglect on the part of the owner. This is
a departure from the common law, where it was necessary to prove that the
owner knew of its mischievous propensity in order to establish liability.
In this case the plaintiff’s dog jumped on the defendant, causing him to fall, and his
resulting injuries were therefore done by the dog, and the section says such damages
shall be recoverable in any court of competent jurisdiction by the person injured.
Consequently the plaintiff is entitled to succeed.72

In Anderson v Ledgister,73 the respondent’s dog entered the appellant’s land and there
killed the appellant’s goats. There was no proof of any mischievous propensity in
the dog.
It was held that the respondent was strictly liable under s 2 of the Liability for
Injuries by Dogs Law. The word ‘cattle’ as used in the section was wide enough to
include goats. Rennie J said:74
In Wright v Pearson,75 the court construed the words ‘cattle and sheep’ . . . [used in ss 1,
28 and 29 of the Dog Act (Vict), Cap 60, which enacts that the owner of every dog shall

68 [1908] 2 KB 825.
69 (1950) 5 JLR 236 (Court of Appeal, Jamaica).
70 Ibid, p 237.
71 (1947) 5 JLR 62. See above, p 206.
72 The courts in New South Wales, interpreting similarly worded legislation, have held dog
owners liable for conduct such as a dog’s dashing into the road and colliding with a passing
vehicle on the basis of strict liability, acknowledging that there would have been no liability at
common law for such conduct, as the animal would merely have been pursuing its natural
propensities. On this view, statutes such as the Liability for Injuries by Dogs Act (Jamaica)
and the Dog Act 1966 (NSW) have introduced a wider area of liability than under the scienter
action at common law: see Martignoni v Harris (1971) 2 NSWLR 103.
73 (1955) 6 JLR 358 (Court of Appeal, Jamaica).
74 Ibid, p 359.
75 (1868) 4 QB 582.
208 Commonwealth Caribbean Tort Law

be liable in damages for injury done to any cattle or sheep by his dog without the
necessity to show any previous mischievous propensity in such dog or the owner’s
knowledge of such previous propensity] to include horses and mares . . . The reason for
the decision in Wright v Pearson is that the Act was a remedial one and horses are likely
to be bitten by dogs. This view is strengthened by the judgment of Atkinson J in Phillips
v Bourne.76 He said:77
I have had a number of cases cited to me in which the word ‘cattle’ had to be
construed, and in every one of them the narrow meaning was rejected and the
wider meaning was adopted. I agree that they were all decisions on a particular
Act, but they do establish that, in interpreting the word ‘cattle’ in an Act, one
has to look at what is the evil aimed at – what it is that the section wishes to deal
with. If one finds that the word ‘cattle’ must have been used in the wider sense,
one must give effect to it. The conclusion to which I have come is that the word
‘cattle’ in this section does include pigs . . .
With these authorities to guide us, we have come to the conclusion that the words ‘cattle
or sheep’ include goats. Cattle in its wider meaning includes goats, and goats are likely
to be bitten by dogs. The Law in our view was designed to protect such animals as are
reared for profit and are capable of coming within a definition of ‘cattle’.

In Smith v Gaynor,78 it was alleged that the defendant’s dog had killed the plaintiff’s
pig. One of the main issues was whether pigs were within the definition of ‘cattle’ in
s 2 of the Liability for Injuries by Dogs Act. Watkins JA considered a number of
English cases in which ‘cattle’, as used in statutory provisions, was given a wide
definition, and continued:79
In Anderson v Ledgister 80 . . . Rennie J, expressing the unanimous decision of the Court
[of Appeal] said: ‘The law in our view was designed to protect such animals as are
reared for profit and are capable of coming within the definition of “cattle”.’ For the
same reasons we can see no valid reason why the word ‘cattle’ as used in Jamaica in
our local Dogs Act should not be construed in the wider sense to include pigs. These
creatures have been known in the Caribbean from earliest times. Buccaneers for whom
Port Royal was a haven in the 17th and early 18th centuries derived their name from the
word ‘boucan’, by which the manner of curing the flesh of pigs was described. That
these animals grew and increased in numbers over the succeeding years is witnessed by
the legislative attention the subject attracted, as for example 21 VC 8 (1857), an Act to
prevent hogs, dogs and goats from being at large in any town and for other purposes,
22 VC 17 (1858), an Act to repeal and amend 21 VC 8 relative to hogs, dogs and goats
found at large in towns and for other purposes, and 36 VC 16 (1872), a Law to amend
22 VC 17 and to make better provisions respecting stray pigs and other animals. This
latter law, it must be noticed, antedated by only five years the parent statute to our
present Dogs (Liabilities for Injuries by) Act, namely, Law 2 of 1877, a Law defining
liabilities for injuries done by dogs. It seems to us repugnant to reason and to history
that the legislature of 1877, in providing a better remedy against canine ravages of
‘cattle’, could have meant to exclude from this protection swine which, no less than
goats, were then obviously reared for profit and existed in such numbers as to call
for legislative control. We are therefore of opinion that the word ‘cattle’ in the Dogs
(Liabilities for Injuries by) Act includes pigs.

76 [1947] 1 All ER 373.

77 Ibid, p 377.
78 (1976) 14 JLR 132 (Court of Appeal, Jamaica).
79 Ibid, p 136.
80 (1955) 6 JLR 358 (Court of Appeal, Jamaica).
 Chapter 9: Liability for Animals 209

An important decision under the Liability for Injuries by Dogs Act is Wilson v
Silvera.81 In this case the appellant called at the respondent’s house one Christmas
Day to leave a present for a friend who resided there as a paying guest of the respon-
dent. The gate to the premises was closed but the front door of the house was open.
Having called out several times, the appellant entered, and while she was standing
on the steps leading to the front door, she heard a voice say, ‘Come in’ or ‘Coming’.
Immediately, two dogs belonging to the respondent dashed through the open door
and savagely attacked her, causing severe injuries. Three questions were to be
determined:
(a) whether the Liabilities for Injuries by Dogs Law created an absolute liability for
injuries by dogs;
(b) if it did not, whether the appellant was a trespasser, and if so, whether the
respondent could rely on this as a defence;
(c) whether the appellant was guilty of contributory negligence.
It was held that
(a) the Law did not create an absolute liability. It merely relieved a plaintiff from
proof of scienter and negligence. Other defences, such as ‘plaintiff a trespasser’
and contributory negligence, could be raised, as at common law;
(b) in the circumstances, the appellant was not a trespasser, nor was she guilty of
contributory negligence.
MacGregor CJ said:82
Professor Glanville Williams in his book, Liability for Animals, says:83
In New South Wales, on the construction of similar legislation that extends even
to injuries to human beings, it has been held permissible to show that the
plaintiff was a trespasser, and this was put upon the broad ground that all
common law defences except lack of scienter applied.
There is an interesting footnote:
Otherwise a burglar could recover damages for injury to him by a watchdog. But the
liability of owners of dogs has been considered recently in this court. In Brown v Henry,
Savary J, delivering the judgment of the court, said:84
It does not follow . . . that the provisions of our Law exclude the defence being
raised . . . that the damage caused by his dog was the result of the intervening
act of a third party.
The court was there setting out that one of the common law defences was open to a
defendant in certain circumstances, and was clearly laying down the proposition that
there was no absolute liability.
In our judgment, the Dogs Law does not create an absolute liability. It relieves the
plaintiff of proof of scienter and the proof of negligence. Other defences which are open
at common law may still be raised.
We turn now to the second question: was the appellant, in the circumstances in which
she entered, a trespasser?
In Salmond on Torts, 11th edn, p 581, the learned author states:

81 (1959) 2 WIR 40 (Court of Appeal, Jamaica).

82 Ibid, p. 42.
83 Williams, Liability for Animals, 1939, Cambridge: CUP, p 356.
84 (1947) 5 JLR 62, p 63 (see above, pp 206, 207).
210 Commonwealth Caribbean Tort Law

But it is sometimes difficult to distinguish between a trespasser and a person

entering lawfully by the tacit permission of the occupier. Thus, the occupier
tacitly invites and permits certain classes of persons to enter his garden gate and
come to the front door. If his dog bites a person so entering, liability will depend
on whether that person falls within the class of persons so tacitly invited; for
otherwise he is a mere trespasser to whom no duty is owing. Who, then, are
thus entitled to enter, and to complain of injuries received? What shall be said,
for example, of hawkers, beggars, tract distributors, canvassers, strangers enter-
ing to ask their way? The only acceptable conclusion would seem to be that no
person is to be accounted a trespasser who enters in order to hold any manner
of communication with the occupier or any other person on the premises,
unless he knows or ought to know that his entry is prohibited.
In Winfield on Torts, 6th edn, p 705, we read:
To the head of implied permission may perhaps be referred persons who call
upon the occupier for purposes which may be described as of business interest
to themselves and which they believe or hope may be of like interest to him, but
which usually excite none in the occupier or may even be distasteful to him; for
example, persons who canvass in the interest of trade, politics or religion, or
who are ordinary beggars. It is quite true that many householders dislike tract
distributors, pedlars and tramps, but common usage appears to sanction their
visits except when they are expressly prohibited; for example, by a notice, ‘No
canvassers, hawkers or circulars’.
It is of interest to note that, in Dunster v Abbott,85 a canvasser who called on the
defendant to sell him advertising space and who had no appointment was held to
be a licensee. The question of his being a trespasser did not arise and was not
considered.
In Fairman v Perpetual Investment BS,86 the plaintiff lodged with her sister in a flat on
the fourth floor of a block of flats. She was injured when she fell when descending the
common staircase. It was held that she was a licensee of the landlord.
In Jacobs v London CC,87 the plaintiff, a pedestrian in a public street, in order to approach
a shop stepped from the pavement to a forecourt between the shop and the pavement.
Owing to the defective state of the forecourt she was injured. It was held that she was
a licensee . . .
Do the facts in the instant case disclose an implied permission to enter? The evidence
of the plaintiff is that when she was at the step and called out from there, the answer she
received was either ‘Come in’ or ‘Coming’. The answer was not one forbidding her
entry or requiring her to leave.
In our view, the plaintiff in this case was not a trespasser. Whether she was a licensee
or an invitee is of no matter, as counsel for the respondent admits that if she was not a
trespasser, she was entitled to recover.
We turn now to the third question: was the plaintiff guilty of contributory negligence?
In his reasons for the judgment, the learned resident magistrate stated:
I find the defendant liable, but the plaintiff, by entering the defendant’s
premises in the manner she did, was guilty of contributory negligence.
Unfortunately, he did not state what it was about her entry that he found to be neg-
ligent. What are the facts that were proved and from which he could have found
negligence?

85 [1953] 2 All ER 1572.

86 [1923] AC 74.
87 [1950] 1 All ER 737.
 Chapter 9: Liability for Animals 211

(1) The plaintiff had visited the premises before but had not previously entered.
(2) She stood outside for about a minute, knocking, and received no reply.
(3) The gate was latched and the premises fenced.
(4) After knocking and receiving no reply and waiting a minute, she pulled the latch
and entered.
(5) There was no notice on the gate, either to warn her to beware of the dogs or advising
her not to enter.
(6) The plaintiff did not state whether or not she knew that dogs were kept at the
premises, but she did state in cross-examination that when she was at the gate and
before she went in, the idea of dogs did not occur to her. We may infer, therefore,
that she did not know of the presence of dogs at the premises.
It is to be noted that there was no finding of negligence in respect of anything she did
after her entry.
Professor Glanville Williams, in Liability For Animals, states:88
Nowadays it is a familiar principle that the plaintiff cannot recover if he
brought the injury upon himself wilfully or negligently; but reasonable conduct
on his part does not affect the defendant’s liability.
We desire to refer to the case of Sarch v Blackburn.89 The plaintiff was a watchman
employed in the neighbourhood of where the defendant carried on the business of a
milkman. The dog was chained in a yard near a cowshed by a chain about four yards
long. There was a painted notice – ‘Beware of the Dog’ – but the plaintiff could not read.
The plaintiff entered the defendant’s premises by a way which might pass the dog in
proceeding to the house. The plaintiff was bitten by the dog.
In reply to a submission of no case to go to the jury, Tindal CJ stated:90
The question I propose to leave to the jury is whether there was any negligence
in the plaintiff in going where the dog was. If it was a way in which he might
reasonably go to the house for a lawful purpose, then this action is maintain-
able, otherwise not.
Later, the learned Chief Justice said:
Undoubtedly, a man has a right to keep a fierce dog for the protection of his
property, but he has no right to put the dog in such a situation, in the way of
access to his house, that a person innocently coming for a lawful purpose may
be injured by it. I think he has no right to place a dog so near to the door of his
house that any person coming to ask for money, or on other business, might be
bitten. And so with respect to a footpath, though it be a private one, a man has
no right to put a dog with such a length of chain, and so near that path, that he
could bite a person going along it.
It will be seen that the learned Chief Justice left two matters for the consideration of the
jury. First, did the plaintiff have a justifiable and reasonable cause for being on the spot,
as distinct from being a wrongdoer? And secondly, was there negligence on the part
of the defendant? . . .
In Brock v Copeland,91 Lord Kenyon CJ recognised that a man has a right to keep a dog
for the protection of his yard or house, that the dog had been properly let loose at night,
and that the plaintiff who had entered the yard after dark, with the knowledge where
the dog was stationed, after the yard had been shut up and after the dog had been

88 Op cit, Williams, fn 83, p 331.

89 (1830) 172 ER 712.
90 Ibid, p 713.
91 (1794) 170 ER 328, p 329. Applied in Searchwell v Lennon (2004) Supreme Court, Jamaica, No CL
1999/5 191 (unreported), per Mangatal J (Ag) [Carilaw JM 2004 SC 17].
212 Commonwealth Caribbean Tort Law

unchained, had entered incautiously and that the injury had arisen from his own
fault.92
We can see no difference in the principles laid down in these two cases . . .
We have given very careful and serious consideration to this matter and cannot see on
what evidence the learned resident magistrate came to the conclusion that the plaintiff
was negligent in entering the defendant’s premises.93 In the words of Singleton J [in
Gould v McAuliffe,94 ‘she was not bound to look and see whether or not there was a
dangerous dog in the yard’]. Why should she assume that the gate was closed because
there were dangerous dogs in the yard, especially when there was no sign to that effect,
and although she knocked for a minute, heard neither an answer from the occupants,
nor a bark from any dog? We think that on this issue also the reply that she did receive
when she entered is most significant. We can see no evidence to justify the decision
of the learned resident magistrate that the plaintiff was guilty of any contributory
negligence.

LIABILITY FOR NEGLIGENCE

Quite apart from any liability in cattle trespass or under the scienter rule, the keeper
of an animal owes a duty to take care that it does not become a source of harm to
others.95 In most cases, it will be unnecessary for a person harmed by an animal to
establish negligence on the part of its keeper, but if, for any reason, an action under
the scienter rule or in cattle trespass is not available, the plaintiff may still recover in
negligence. For instance, where the plaintiff, an infant, was attacked and badly
injured by a pack of Jack Russell terrier dogs which suddenly dashed out of the
defendant’s premises, the plaintiff could not recover in cattle trespass because dogs
are not included within the definition of ‘cattle’; nor under the scienter rule, because
he could not prove that the defendant had knowledge of a vicious propensity on
the part of any particular dog. He did succeed in negligence, however, on the ground
that the defendant knew or ought to have known that Jack Russell terriers could be
dangerous if allowed to roam about in packs, and yet he had taken no steps to fence
them in or otherwise prevent them from escaping and doing damage.96
There are, however, limits to the liability in negligence. It has been stated that
‘where no special circumstances exist, negligence cannot be established merely by
proof that a defendant has failed to provide against the possibility that a tame animal
of mild disposition will do some dangerous act contrary to its ordinary nature’.97 It
seems, therefore, that the plaintiff will not succeed unless:

92 Cf Searchwell v Lennon, fn 91 above, where a tenant was attacked by her landlord’s dog in a
part of the premises which she had been instructed not to enter unescorted, and was thus held
to have been a trespasser.
93 The Liability for Injuries by Dogs Act, s 3, provides: ‘The occupier of any house or premises
where any dog was kept or permitted to live or remain at the time of such injury shall be
deemed to be the owner of such dog, and shall be liable as such, unless the said occupier can
prove that he was not the owner of such dog at the time the injury complained of was
committed, and that such dog was kept or permitted to live or remain in the said house or
premises without his sanction or knowledge.’ For examples of the application of the section,
see Thomas v Arscott (1970) 11 JLR 496; Searchwell v Lennon (2004) Supreme Court, Jamaica,
No CL 1999/5 191 (unreported) [Carilaw JM 2004 SC 17].
94 [1941] 1 All ER 515, p 520.
95 Op cit, Fleming, fn 33, p 334.
96 Draper v Hodder [1972] 2 All ER 210.
97 Wright v Callwood [1950] 2 KB 515.
 Chapter 9: Liability for Animals 213

(a) there is a special risk of injury to others; and

(b) the particular kind of injury which occurred was foreseeable.98
With regard to the latter requirement, if, for example, a horse bit a human, it would
not be sufficient for the victim to show that the horse was high-spirited and, therefore,
likely to knock people down, for harm from a bite is of a totally different kind from
harm by accidental collision.99
An important exclusion from liability in negligence is the rule in Searle v Wall-
bank,100 which is to the effect that the occupier of premises adjoining a highway is
under no duty to users of the highway to prevent his domestic animals, not known to
be dangerous, from straying onto the highway and causing accidents there. Thus, at
common law, there is no duty upon the owner of land to maintain a fence or other
obstacle around the property to keep his animals in. In Henry v Thompson,101 Patterson
J, in the Grenadian High Court, explained the genesis of the rule thus:
The rule in Searle v Wallbank is steeped in medieval antiquity. The rule was formulated
when commons were not enclosed; when there were tracks, not roads, leading from one
community to another. Demarcating hedges and fences were unknown and domestic
cattle roamed the terrain with unrestrained freedom and abandon. With the passage of
time and the progress of civilisation into the industrial revolution and beyond, fences
began to appear, roadmaking became a welcome part of community development and
traffic thereon became faster and numerous; but the common law – that the owner of
land abutting on to the highway incurred no liability to fence his land so as to prevent
animals straying from it on to the road – stood remarkably still.

There are, however, two exceptions to this rule:

(a) exceptional circumstances may require fencing; for example, where a dog dashed
on to the road so often that it became ‘more like a missile than a dog’;102
(b) if the defendant actually brings, leads or drives an animal on to the highway, he
is under a duty to take reasonable care that it does not cause damage there.103
What constitutes reasonable care is a question of fact in each case; for instance,
greater care may need to be taken in an urban area than in the country.104
The second of these exceptions was applied by the Jamaican Court of Appeal in Coley
v James,105 where the defendant’s servant brought a cow onto a busy suburban high-
way and negligently left it unattended so that it trotted off home and, in the course of
doing so, collided with and damaged the plaintiff’s car. The defendant was held liable
in negligence. On the other hand, in another Jamaican case, Blackwood v Chen,106 the
appellant’s mule was being led along a road with a rope by the appellant’s servant. It
was dark and, being startled by the lights of the respondent’s van, the animal reared
up and struck and damaged the front of the van. It was held that the appellant was

98 Op cit, Fleming, fn 33, p 335.

99 Aldham v United Dairies [1940] 1 KB 507, p 511.
100 [1947] AC 341.
101 (1991) High Court, Grenada, No 439 of 1987 (unreported) [Carilaw GD 1991 HC 20].
102 Ellis v Johnstone [1963] 2 QB 8, p 26.
103 Deen v Davis [1935] 2 KB 282.
104 Gomberg v Smith [1963] 1 QB 25.
105 (1964) 6 WIR 259.
106 (1958) 1 WIR 66.
214 Commonwealth Caribbean Tort Law

not liable, since his servant had made every effort to control the animal and was in no
way negligent. Hallinan CJ said:107
In the circumstances of this case, the burden of proving that the appellant’s boy
holding the mule was guilty of negligence was on the respondent. The respondent had
to establish that the appellant’s agent, having brought an animal on to the highway,
had not taken reasonable care to prevent it from doing damage to persons or property
thereon. What constitutes reasonable care is a question of fact in each case and the
standard of reasonable care may vary according to the circumstances.

An interesting example of liability in negligence for failure to control animals brought

onto a public road is the Guyanese case of Sattaur v Rapununi Development Co Ltd.108 In
this case, the defendant’s cattle were being driven along a busy public street in New
Amsterdam when one of the steers suddenly rushed at the plaintiff and caused him
injury. None of the cattle in the herd was restrained by a head rope and none was
yoked. Bell CJ held that the drover in charge of the cattle was liable in negligence for
failure to control the animals, pointing out that, unlike in England, where cattle were
accustomed to being driven through the streets of busy market towns, in this case the
cattle had been reared in remote parts of Guyana and were unaccustomed to crowds
of people, ‘the noise and bustle of human activity’ and the sound of cars and motor-
cycles. Moreover, this herd had recently been released from the confinement of a river
boat. The Chief Justice went on to say that the drover ought to have been aware that,
in the circumstances, the cattle ‘were very likely to stampede or run wildly about
to the danger of persons lawfully using the Stelling Road’.
A straightforward example of the application in the Commonwealth Caribbean
of the rule in Searle v Wallbank itself is the Barbadian case of Thornhill v Williams.109
Here, the defendant left his cow in an unenclosed field adjacent to a busy public road.
The plaintiff was driving his car along the road when the cow suddenly dashed across
the road and collided with the car, damaging it. It was held that the defendant was
not liable in negligence. Tulloch J (Ag) said:
The statement of claim alleges that the cow strayed on to the highway, colliding with
the plaintiff’s motor car; and that the collision was due to the defendant’s negligence.
At the close of the plaintiff’s case the defendant submitted that there was no case to
answer and relied on Searle v Wallbank 110 to show that there is no duty to prevent
animals mansuetae naturae from straying on to the highway unless they were known to
be vicious; he pointed out that there was no allegation of mischievous propensity. Searle
v Wallbank is a House of Lords decision which, even though not binding, is of the
highest persuasive authority and, although the subject of protests, has been acted upon
for some time. Salmond on Torts (13th edn) records111 that the rule is only one aspect of
the principle that users of the highway must take it subject to ordinary risks, one of
which is that domestic animals not known to be vicious might be found straying there.
As Lord du Parcq put it, ‘the motorist must put up with the farmer’s cattle; the farmer
must endure the motorist’.
[Further, Lord du Parcq pointed out that] where no special circumstances exist,
negligence cannot be established merely by proof that a defendant has failed to provide

107 Ibid.
108 [1952] LRBG 113. See also Hussain v East Coast Berbice Village Council (1979) High Court,
Guyana, No 308 of 1976 (unreported) [Carilaw GY 1981 HC 15].
109 (1979) 35 WIR 61 (High Court, Barbados).
110 [1947] AC 341.
111 Op cit, Salmond, fn 12, p 624.
 Chapter 9: Liability for Animals 215

against the possibility that a tame animal of mild disposition will do some dangerous
act contrary to its ordinary nature; and, even if a defendant’s omission to control or
secure an animal is negligent, nothing done by the animal which is contrary to its
ordinary nature can be regarded, in the absence of special circumstances, as being
caused by such negligence.

On the other hand, in the Grenadian case of Henry v Thompson,112 where a cow with
a chain around its neck ran through a gap in the fence on the defendant’s adjacent
land onto a busy highway, and there collided with and damaged the plaintiff’s car,
Patterson J held the defendant liable on the grounds that:
(a) to keep cattle on land abutting a busy urban link road was a ‘special circum-
stance’, displacing the general rule that there was no duty to prevent the straying
of domestic animals onto the highway; and
(b) the fact that the defendant had invested this particular cow with a long chain
around its neck was evidence of his knowledge of the animal’s mischievous ten-
dency to ‘escape onto the highway with great speed’.
The obvious danger in modern times of large animals such as cows and bulls straying
from unfenced land onto the highway and coming into contact with fast-moving
vehicles has prompted some jurisdictions to abolish the rule in Searle v Wallbank. It
has been pointed out that the effect of the rule under modern conditions is to subsi-
dise the farmer at the expense of the motorist, and that the risk to the latter is dis-
proportionately heavy compared with the burden on the former. In the Caribbean, it
is a common practice for the owners of cows and bulls to depasture them on land
adjacent to public roads, without having any interest in such land or any legal right
to place their cattle there. In such circumstances, it would not be justifiable to require
the owners or occupiers of the land to fence their land in order to prevent other
persons’ animals from straying onto the highway. On the other hand, in the Cayman
Islands, s 31 of the Animals Act 1976 imposes strict liability on the owner of livestock
for harm caused by their straying onto the highway:
It is the responsibility of the owner of any livestock113 other than dogs, cats and honey
bees, to take proper and effective measures to prevent such livestock from trespassing
. . . onto any road . . . and, subject to the provisions of this law, such owner shall be
responsible in damages for any injury done by such livestock in so trespassing.

In the Cayman case of Bodden v McField,114 P was driving her car along the road when
a cow approached her. In swerving to avoid the cow, she ran into another ‘black
bovine beast’, later identified as a young bull belonging to D, resulting in damage to
her vehicle. At the time of the collision, the bull was on the left hand side of the road
and was untethered. The evidence was that the bull was normally tethered to a stake
in the ground to prevent it from straying, but the stake was moved from time to
time to fresh pasture. Summerfield CJ held that D was strictly liable under s 31 of
the Animals Act 1976. The word ‘injury’ in the section was used in its wider sense, to
include any loss or damage caused, and therefore included the damage to P’s car.

112 (1991) High Court, Grenada, No 439 of 1987 (unreported) [Carilaw GD 1991 HC 20].
113 ‘Livestock’ is defined in s 2 as any domestic animal kept for profit.
114 [1986] CILR 204, (Grand Court, Cayman Islands). The same approach was taken by Panton J
in the Jamaican Supreme Court in Clarke v Bayliss (1992) 29 JLR 161, where it was held that
the owner of a dog was liable under s 2 of the Dogs (Liability for Injuries by) Act for damage
to a motorcycle caused by the dog’s jumping onto the rider while the cycle was in motion.
216 Commonwealth Caribbean Tort Law

Another example of the application of the principles relating to negligence in

controlling animals is Sims v McKinney.115 As an alternative to the claim based on the
scienter action, the plaintiff pleaded that the defendant was liable in negligence for
failure to secure his premises to prevent the escape of his dogs onto the public road,
and failure to restrict the freedom of movement of the dogs in the interests of safety.
Georges CJ found for the defendant on both claims. He said:
Mrs Gibson [counsel for the plaintiff] conceded that the following passage in
Charlesworth on Negligence 116 accurately stated the law in the Commonwealth of The
Bahamas:
Under the common law, there was an important exception to the general prin-
ciples of negligence. It was that, in the absence of special circumstances relating
to the behaviour of an animal, which was known to the landowner, there was no
duty to fence or maintain existing fences on land adjoining a highway so as to
prevent an animal straying on to it.
By itself, therefore, it was not negligence on the part of the defendant . . . to fail to secure
adequately or at all the premises owned by him so as to prevent the escape of the dogs
therefrom . . .
Mrs Gibson quoted extensively from the case of Draper v Hodder.117 The facts of that case
are so different from those of this case that great care is needed in drawing analogies. In
that case, the defendant bred Jack Russell terriers. He had 30 dogs on his premises,
including puppies. A pack of seven terriers rushed through the ungated back yard of
the defendant’s premises across the lane to the ungated back yard of the house of the
plaintiff’s parents and severely injured the plaintiff, a child of three, who was playing
there. A claim for damages based on scienter failed, but a claim in negligence succeeded.
Edmund-Davies LJ had doubts about the claim. He stated:118
I must confess that the question whether the conclusion at which the judge
arrived was really justified on the evidence has troubled me a good deal. There
was a complete absence of evidence of any previous misbehaviour on the part
of any of the defendant’s dogs, except perhaps of minor, and it would seem
unimportant, snapping at the heels of Mrs Draper or her visitors . . .
The logical conclusion from the evidence of Mr Watson and Mr Webster would
seem to be that, wherever two or more dogs are allowed out alone, the owner
ought to foresee that they will or may do damage, including even an attack on
mankind. For it is difficult for the non-expert to understand that, in this respect,
there can be any difference between Jack Russells and any other dogs, for
example alsatians, or, as in Toogood v Wright,119 greyhounds or, as in Tallents v
Bell,120 other dogs. And the proposition that in all such cases the owner is or
may be liable is somewhat surprising.
But there was evidence, open to criticism though it was, that there was in the
circumstances a serious risk of a happening such as did occur in the present

115 (1989) Supreme Court, The Bahamas, No 996 of 1986 (unreported) [Carilaw BS 1989 SC 7] (see
above, p 205). See also Alleyne v Caroni Sugar Estates (Trinidad) Ltd (1933) 7 Trin LR 102
(company’s mule trotted out from trace and collided with bus on public road: no negligence
on part of youths in charge of mule).
116 Charlesworth and Percy, Charlesworth on Negligence, 7th edn, 1983, London: Sweet &
Maxwell, paras 14–42.
117 [1972] 2 All ER 210.
118 Ibid, p 216.
119 [1940] 2 All ER 306.
120 [1944] 2 All ER 474.
 Chapter 9: Liability for Animals 217

case, and that the defendant as an experienced breeder should have anticipated
and foreseen it.
Edmund-Davies LJ preferred to rest his judgment on the ground that it was foreseeable
that a pack of dogs would overrun a child and cause physical harm. The defendant
could not escape liability by reason of the fact that the damage had been caused by bites.
I find this approach attractive.
Roskill LJ stated:121
If the present claim were to succeed, it was in my view essential for the plaintiff
to show, since he could not prove scienter, that the propensity of a pack of Jack
Russell terriers allowed to wander was such that the appellant knew or ought to
have known and thus ought to have foreseen that there was a real risk of attack
on a small child whom the pack might encounter in its unchallenged
wanderings.
In this case, there is no evidence that the defendant was a breeder of dogs to whom
might be imputed any special knowledge of their propensities. Potcakes are perhaps
the most common class of dogs in the island of New Providence and it cannot be
said that there is any special risk of attack from potcakes when wandering in pairs or
larger numbers.

121 Draper v Hodder [1972] 2 All ER 210, p 229.

 CHAPTER 10

DEFAMATION

INTRODUCTION

The tort of defamation, which protects a person’s interest in his reputation, occupies a
prominent place in Caribbean jurisdictions. The pre- and post-independence periods
in Commonwealth Caribbean countries have been characterised by vigorous political
activity supported by an articulate and free press. As Summerfield CJ has pointed out,
journalists play their part ‘in the rough and tumble of politics in this part of the
world’, and they ‘add spice to the interplay of politics’.1 Many newspapers have
featured as defendants in defamation actions, and many of the leading cases in
defamation in the region have a political background.

LIBEL AND SLANDER

A defamatory statement may be either (a) libel; or (b) slander.2 The historical
origins of libel and slander are different, slander being derived from the common
law action on the case and libel from the criminal proceedings in the Star Chamber.
The main difference between the effects of slander and libel is that, whereas libel
is always actionable per se, slander is not actionable per se, except in certain defined
instances.
Libel is a defamatory statement in a permanent form, most usually consisting of
written words in a newspaper, book, pamphlet, printed notice or letter. It also includes
defamatory paintings, cartoons, photographs, effigies, films and computer-derived
exposure, such as e-mail messages, bulletin boards, newsgroups and the World Wide
Web. Also, by s 3 of the Defamation Act, Cap 6:03 (Guyana) and s 3 of the Defamation
Act (Jamaica), defamatory words in radio and television broadcasts are to be treated
as being in permanent form, that is, as libel.
Slander is a defamatory statement in a transient form, principally by means of
spoken words or gestures.
It is sometimes said that libel is addressed to the eye, whilst slander is addressed
to the ear. It is doubtful whether defamatory statements contained in audio discs,
cassettes or tape recordings are libel or slander, for they are in permanent form and
yet are addressed to the ear. Most commentators consider such statements to be libel,
but there appears to be no firm judicial authority on the point.

PROOF OF DAMAGE

Since libel is actionable per se, the law presumes that damage has been caused to the
plaintiff’s reputation and he will be awarded general damages by way of compensation

1 Bodden v Bush [1986] CILR 100 (Grand Court, Cayman Islands), p 118.
2 Defamation Act 1996, Cap 199 (Barbados), s 3(1) abolishes the distinction between libel and
slander. Under the Act, actions lie only for ‘defamation’.
 Chapter 10: Defamation 219

in any event.3 If he does prove that he has suffered actual loss, he will be awarded a
further sum as special damages.
In slander, on the other hand, the plaintiff has no cause of action unless he
can show he has suffered actual loss, meaning temporal or material loss, for example,
that as a consequence of the defamatory statement he has been dismissed from his
employment, or that he has been refused credit by a bank. The mere loss of the
consortium of friends or associates is insufficient. This principle is illustrated by the
Trinidadian case of Sunanansingh v Ramkerising 4 where, at an East Indian meeting
called a ‘Panchayite’, the defendant had made certain imputations to the effect that
the plaintiff had cohabited with his sister-in-law and that she had become pregnant
by him. The plaintiff alleged that, in consequence of these imputations, he had been
banished from the society of members of his caste. He sued the defendant for slander.
It was held that the plaintiff’s claim disclosed no cause of action. In an action for
slander, it must be proved that the plaintiff has suffered special damage as a con-
sequence of the words uttered, and such damage must be the loss of some temporal
benefit. Mere loss of the consortium of friends or associates was not sufficient.
Goldney CJ said:
In law, words spoken are different from words written, and special damage is necessary
to support an action for slander, not imputing crime, misconduct in a profession or
trade, or some kinds of disease: Chamberlain v Boyd,5 per Bowen LJ.
The same principle of law is laid down by Channel B in Foulger v Newcomb:6
Where words are spoken which are of a defamatory nature, yet such that the
law will not imply [as in this case] damage from them, still they are actionable
if they are shown actually to cause (as their legal and natural consequence)
damage of a character which the law will recognise.
Practically all that was attempted to be proved was a loss of ‘consortium’. Such
a loss is not sufficient; the loss must be temporal in its nature; there must be a
loss of some temporal benefit: Roberts v Roberts;7 Chamberlain v Boyd.8 I think the
plaintiff has failed to show the loss of any temporal benefit, or that such incon-
venience as he has suffered is the natural consequence of the words spoken by the
defendant.

SLANDER ACTIONABLE PER SE

In the following cases, slander is actionable without proof of damage, in the same way
as libel.

3 British Guiana Rice Marketing Board v Peter Taylor and Co Ltd (1967) 11 WIR 208, p 219 (below,
pp 256–58).
4 (1897) 1 Trin LR 54.
5 (1883) 11 QBD 407, p 415.
6 (1867) LR 2 Ex 327, p 330.
7 (1864) 33 LJ QB 249.
8 (1883) 11 QBD 407, p 416.
220 Commonwealth Caribbean Tort Law

Imputation of crime

Where the defendant alleges that the plaintiff has committed a crime punishable by
imprisonment or corporal punishment, such as theft, drug offences,9 blackmail10 or
corruption in public office,11 such slander is actionable per se. The offence imputed
must be punishable by imprisonment in the first instance. An imputation of a crime
punishable by fine only is not within the exception, notwithstanding that failure to
pay the fine may be punishable by imprisonment, or that the offence is one for which
the offender may be arrested summarily.12
In Cupid v Gould,13 the offence imputed (‘making use of threatening language’)
was punishable by a penalty of $24 or by imprisonment for one month. The trial
magistrate interpreted this to mean that the offence was punishable by a $24 fine and
by one month’s imprisonment only in default of payment of the fine; he thus held that
the slander was not actionable per se. However, on appeal, Lewis CJ held the magis-
trate’s interpretation to be incorrect; in Lewis CJ’s view, the fine and imprisonment
were alternative punishments, either of which might be imposed in the first instance.
The offence imputed had, therefore, to be taken to have been punishable by
imprisonment in the first instance, and the slander was thus actionable per se.
To be actionable per se, there must be a direct assertion of guilt. A mere allegation
of suspicion is not sufficient.14 Thus, to say that the plaintiff ‘is a thief’ would be
actionable per se, but to say that he ‘is suspected of having stolen’ would not.
The words used by the defendant must be looked at in the context in which they
were spoken, in order to determine what was actually imputed. Thus, words which,
taken by themselves, would be defamatory, might not be so when taken together with
other words spoken by the defendant, or when considered in the light of the circum-
stances in which they were uttered. Thus, for example, the words ‘P is a thief’ would
not be actionable per se if followed by, ‘the cloth he has sold me is not worth half of
what he charged me for it’, since, taken together, the words do not impute any crim-
inal offence, but only that P has not given value for money. Nor will spoken words be
actionable at all if they constitute mere vulgar abuse. Words will amount to vulgar
abuse and not slander if:
(a) they were words of heat and anger; and
(b) they were so understood by persons who were present when they were uttered.
Thus, disparaging or insulting words spoken at the height of a violent quarrel may be
vulgar abuse and not actionable,15 but the same words spoken ‘in cold blood’ may
amount to slander.16

9 Craig v Miller (1987) High Court, Barbados, No 317 of 1986 (unreported) [Carilaw BB 1987
HC 41].
10 Ibid.
11 Smith v Adams (1982) 17 Barb LR 204 (Court of Appeal, Barbados).
12 Nauth v Alexander [1960] LRBG 313.
13 (1971) 2 OECSLR 162.
14 Wight v Bollers [1936] LRBG 330, p 332.
15 Ie, in Jamaican parlance, a ‘contest of verbal stones’: Blake v Spence (1992) 29 JLR 376.
16 In Lament v Emmanuel (1966) Court of Appeal, Trinidad and Tobago. No 1 of 1965 (unreported)
[Carilaw TT 1966 CA 14]. Wooding CJ held that where specific defamatory charges are made
(eg, that a married woman has committed adultery), the defence of vulgar abuse is not
available.
 Chapter 10: Defamation 221

The Jamaican case of Griffiths v Dawson 17 illustrates the requirement that the
words complained of must be considered in the context in which they were spoken.
Here, the defendant/respondent, in the presence of witnesses, spoke to the plaintiff/
appellant, an estate overseer, the following words: ‘You, Griffiths, are a . . . criminal;
you are sabotaging my life, stop me from getting work and blackball me all around;
you are a . . . criminal.’ Luckhoo JA held that no reasonable person, hearing the words
uttered in the particular circumstances, could come to the conclusion that the defend-
ant was accusing the plaintiff of having committed a criminal offence for which the
plaintiff might be liable to imprisonment. The words amounted only to vulgar abuse
and were not actionable. He explained:
In the present case, it is necessary to remember that one must have regard to the context
in which the words were used by the defendant and to the circumstances under which
they were used. There was no doubt in this case, upon the evidence given by the
plaintiff and by his witnesses, that the defendant was, before he uttered these words,
abusing some other person or persons in the crowd, and that upon remonstration by the
plaintiff he made use of the words about which complaint has been made. It is also
necessary to observe that the word ‘criminal’ was not used in isolation. The context in
which the word ‘criminal’ was used makes it clear, in my view, that the defendant was
using that word in relation to what he believed had been the act of the plaintiff in
preventing him getting work at the estate for which the plaintiff was overseer; that his
complaint by the use of the words was really that the plaintiff was against him by reason
of the fact that he had prevented him from getting work; that because of that he
considered the plaintiff to be a criminal.
I do not think that a reasonable person hearing the words uttered in the particular
circumstances could come to the conclusion that the defendant was accusing the plain-
tiff of having committed a criminal offence or criminal offences for which the plaintiff
might be rendered liable to imprisonment. I agree with the conclusion reached by the
learned magistrate that the words complained of, looked at in the context in which they
were used and the circumstances of the case, amounted only to vulgar abuse. The learned
magistrate was right in dismissing the action and giving judgment for the defendant
with costs.

Imputation of certain diseases

It is actionable per se to allege that the plaintiff is infected with certain contagious or
repulsive diseases, since this would tend to cause other persons to shun or avoid him.
There is uncertainty, however, as to what diseases are included within this exception.
It is established that contagious venereal diseases (including AIDS)18 are included,
and leprosy, plague or any contagious skin disease caused by personal uncleanliness
may be within the exception.19 But it has been held in at least two Jamaican cases that

17 [1968] Gleaner LR 17 (Court of Appeal, Jamaica). On the other hand, in Tulloch v Shepherd
[1968] Gleaner LR 5, where the defendant said to the plaintiff in the presence of witnesses,
‘You will soon go back to prison because you have been there already. I can prove that while
you were abroad you went to prison’, it was held by a majority of the Jamaican Court of
Appeal that the words, in their natural and ordinary meaning, did convey the imputation of a
crime punishable by imprisonment and were actionable per se. See also Gray v Jones [1939] 1
All ER 798.
18 Forde v Shah (1990) 1 TTLR 73 (High Court, Trinidad and Tobago) (below, pp 261–63, 286).
19 Winfield and Jolowicz, Tort, 15th edn, 1988, London: Sweet & Maxwell, p 395.
222 Commonwealth Caribbean Tort Law

an imputation of tuberculosis is not included.20 In Murray v Williams 21 the defendant

spoke the following words concerning the plaintiff, a shopkeeper: ‘The damn long
neck consumption coolie man Murray think it is him alone can get truck to trust, but
him can’t help it. Him catch the consumption from his wife. Every pickney him have
catch it. A it dey kill them out.’ It was held that the slander was not actionable per se.
Brown JA said:
There are three questions which fall for decision:
(1) Are the words defamatory?
(2) Are they actionable without proof of special damage?
(3) If they are not actionable without proof of special damage, has special damage been
proved?
These questions are settled by legal decisions and the textbooks.
(1) In our opinion, the words are capable of being defamatory as used in the circum-
stances of this case. It is defamatory to impute insanity in certain cases or to attribute to
the plaintiff certain contagious and infectious diseases of a loathsome nature, and it has
been pointed out that no substantial distinction can be drawn between an imputation of
mental disease and one of bodily disease (Clerk and Lindsell on Torts, 8th edn, p 502).
As to (2), if the matter were one of principle, small pox, scarlet fever, measles and similar
contagious diseases would be within the rule; but small pox is not and it is improbable
that the list will be extended. For practical purposes, the rule may be taken to be limited
to statements attributing venereal disease (Clerk and Lindsell on Torts, 8th edn, p 506).
In Jones v Jones,22 affirmed in the House of Lords, the case is thus stated by Swinfen
Eady LJ:
If the court were at liberty to deal with this case (an action for imputing immoral
conduct to a teacher) upon principle, there would be much to be said in favour
of this view; but the law of slander is an artificial law, resting on very artificial
distinctions and refinements, and all the court can do is to apply the law to
those cases in which heretofore it has been held applicable. It is not like a law
founded on settled principles, where the court applies established principles to
new cases, as they arise, which fall within them.
In Alexander v Jenkins,23 Lord Herschell said: ‘I feel very strongly in this case what was
said by Pollock CB in delivering the judgment of the court in the case of Gallwey v
Marshall,24 that we ought not to extend the limits of actions of this nature beyond those
laid down by our predecessors. When you are dealing with some legal decisions which
all rest on a certain principle, you may extend the area of those decisions to meet cases
which fall within the same principle; but where we are dealing with such an artificial
law as the law of slander, which rests on the most artificial distinctions, all you can do is,
I think, to say that if the action is to be extended to a class of case in which it has not
hitherto been held to lie, it is the legislature that must make the extension and not the
court.’
Thus, the Slander of Women Act 1891 in England made the imputation of unchastity or
adultery to a woman or girl actionable without proof of special damage, but it was not
until 1905 that this was done in Jamaica [see now s 18 of the Libel and Slander Act].
In our opinion, we cannot go beyond the cases, and we agree with the passage already
referred to from Clerk and Lindsell on Torts, that, ‘for practical purposes the rule may be

20 Murray v Williams (1936) 6 JLR 180 (Court of Appeal, Jamaica); Hinds v Lee (1952) 6 JLR 176.
21 Ibid.
22 [1916] 1 KB 351, p 358.
23 [1892] 1 QB 797, p 801.
24 (1853) 156 ER 126.
 Chapter 10: Defamation 223

taken to be limited to statements attributing venereal disease’ and apparently also

leprosy.
Nor do we consider that the words used can be said to have been spoken of the plaintiff
in reference to his occupation as a shopkeeper.
As to (3), [special damage was not proved].
On the other hand, in Allen v Miller 25 the defendant/respondent uttered words of a
disgusting nature which the plaintiff/appellant alleged to mean that the plaintiff
was suffering from a venereal disease. The resident magistrate had held that the
words were defamatory of the plaintiff, but he was not satisfied that they conveyed
the imputation that the plaintiff was suffering from a venereal disease so as to make
the words actionable per se. The Jamaican Court of Appeal took the view that the
words carried the imputation alleged by the plaintiff. Duffus P said:
I am sorry that I am unable to support the judgment of the learned resident magistrate
for Westmoreland. There can be no doubt that he went into the matter very thoroughly
and very carefully. Unfortunately, he erred in applying as a test the test of the purist
in the use of the English language. Perhaps on an interpretation in the classroom of
the words used by the defendant it could be said that there was no imputation that
the plaintiff was suffering from venereal disease. Similarly, on the very literal, very
technical interpretation of the word ‘sick’ which was used by the plaintiff’s witness in
describing what she thought was meant by the words used by the defendant, it could be
said that this too did not embrace venereal disease; but the test to be applied is not the
test of the purist of English or the test of the school teacher in a girls’ school; the test to
be applied is, what would a reasonable man in the canepieces of Westmoreland have
understood by the use of these words; and in the language of the workers of the cane-
fields, beyond a shadow of a doubt, these words, even without the innuendo, would
have borne but one meaning, and that is that this unfortunate plaintiff was suffering
from venereal disease. It seems to me that it is that test which should have been applied
by the learned resident magistrate; the test which the persons hearing the words in the
particular circumstances and particular area would have understood them to mean.
There can be no doubt that the defendant succeeded in packing the maximum of
offensiveness into the few horrible obscene words used in this slander, which, as my
learned brother indicated, even we of the Bench will not repeat.

Imputation of unchastity or adultery

By s 1 of the Slander of Women Act 1891 (UK), an imputation of unchastity26 or adultery

concerning any woman or girl is actionable per se. Section 6 of the Libel and Defamation
Act, Ch 11:16 (Trinidad and Tobago), s 6 of the Defamation Act, Cap 6:03 (Guyana)
and s 18 of the Libel and Slander Act (Jamaica) contain similar provisions.27
It was held by Savary J in the Guyanese case of Wight v Bollers 28 that, in order to be
actionable per se, the words must amount to a definite imputation that the plaintiff is
guilty of adultery or unchastity, and words which do no more than raise a doubt
about the plaintiff’s chastity are not within the statutes. Thus, where the defendant

25 [1967] Gleaner LR 176 (Court of Appeal, Jamaica).

26 ‘Unchastity’ includes lesbianism: Kerr v Kennedy [1942] 1 KB 409.
27 See also, eg, Grenada, Cap 171, s 6; Dominica, Cap 7:04, s 10; BVI, Cap 42, s 10; St Kitts/Nevis,
Cap 44, s 10; Belize, Cap 169, s 6; Antigua, Cap 248, s 10; St Vincent and The Grenadines, Cap
89, s 14.
28 [1936] LRBG 330.
224 Commonwealth Caribbean Tort Law

said to the plaintiff’s husband, ‘You may not be Oscar’s father’, which suggested that
the plaintiff had had an adulterous union from which the child, Oscar, had been born,
the words were held merely to have raised a doubt about the plaintiff’s chastity and
were not actionable per se.
In the Trinidadian case of Ramkhelawan v Motilal,29 the defendant called the plain-
tiff, a respectable married woman, a ‘nasty whore and a prostitute’ in the presence of
witnesses, and accused her of having brought men to her house. Rees J held that the
words amounted to slander actionable per se within s 6 of the Libel and Defamation
Ordinance, Ch 4, No 10 (see now s 6 of the Libel and Defamation Act, Ch 11:16). The
defence of ‘vulgar abuse’ failed. He said:
To call a married woman a nasty whore and a prostitute, and at the same time and place
to specify a date on which she had men in her house, are words which clearly impute
adultery to the plaintiff and, as such, must fall into one of those categories of slander
wherein an action will lie without specifying damage. I refer to s 6 of the Libel and
Defamation Ordinance, Ch 4, No 10, which provides as follows:
Words spoken and published which impute unchastity or adultery to any
woman or girl shall not require special damage to render them actionable.
As I see it, it is only necessary for the plaintiff to prove that the defendant used and
published to others the defamatory words contained in her pleadings, and that is
enough to constitute an actionable wrong.
The defendant, however, contends that the words used were merely words of vulgar
abuse. The burden is therefore on him to prove that which he asserts. If he is successful
in proving that the words used were mere vulgar abuse, for which no action lies, then he
must succeed. Gatley on Libel and Slander, 5th edn, para 205, p 126, contains an accurate
and clear commentary on the burden of proof in cases where the words complained of
are defamatory and publication is satisfactorily proved; the writer says:
The onus lies on the defendant to prove from the context in which the words
were used, or from the manner of their publication (for example, in slander, the
tone in which the words were pronounced) or other facts known to those to
whom the words were published, that the words would not be understood by
reasonable men to convey the imputation suggested by the mere consideration
of the words themselves, for example, that they were understood merely as a
joke, or (in an action for slander) as vulgar abuse, or as in no sense defamatory
of the plaintiff. The defendant will not discharge this burden merely by proving
that he did not intend his words to convey the meaning suggested by the words
themselves. He must satisfy the jury that reasonable persons who read or heard
them would not understand them in that meaning.
On an examination of the evidence of the defendant and his witnesses in the instant
case, I do not think that the burden which lay on the defendant has been discharged, in
that he has not proved to my satisfaction that this was mere vulgar abuse. I will not
dispute that the words used were vulgar, abusive or obscene, but I do not think that the
law is that a man may with impunity use words to a married woman which are inher-
ently offensive, false and calculated to expose her to hatred, contempt and ridicule and
then be permitted to shelter under the umbrella of vulgar abuse. To succeed in such a
defence he must go further and prove to the court’s satisfaction that the words were

29 (1967) 19 Trin LR (Pt II) 117. Other successful actions for slander of women in the Caribbean
include Bennett v Skyers [1965] Gleaner LR 180 (Court of Appeal, Jamaica); Blake v Spence (1992)
29 JLR 376 (Court of Appeal, Jamaica); Lamont v Emmanuel (1966) Court of Appeal, Trinidad
and Tobago, No 1 of 1965 (unreported) [Carilaw TT 1966 CA 14]; Persaud v Gajraj (1978) High
Court, Guyana, No 1221 of 1976 (unreported) [Carilaw GY 1978 HC 12]; Persaud v Kunar (1978)
High Court, Guyana, No 435 of 1975 (unreported) [Carilaw GY 1978 HC 15].
 Chapter 10: Defamation 225

spoken in the heat of altercation, but even that alone is not sufficient. He must go yet
further and show that the words were not intended to convey the defamatory meaning
which they have ordinarily; and finally, that the words were not understood by
his audience, who are presumed to be reasonable persons, to convey a defamatory
meaning. In this case I think that no reasonable and intelligent bystander would have
understood the words used to convey a meaning other than what is the ordinary and
natural meaning of the words ‘whore and prostitute’, particularly as the defendant
actually gave a specific date when the plaintiff was having, by inference, an immoral
association with other men in her house. In fact, the evidence disclosed that the men
referred to were none other than her brothers. Enough has been said to indicate that, in
my opinion, the defence of mere vulgar abuse must fail, and there will be judgment
for the plaintiff.
On the question of damages, in addition to the other considerations to which I shall
hereafter refer, I must bear in mind the observations of the Chief Justice in the local case
of Lamont v Emmanuel,30 where he had this to say:
The second point taken was that this was mere vulgar abuse. The sooner
that people understand that they cannot licentiously use bad language to
women, and particularly to married women, the better for all concerned. It is an
unfortunate fact – and this is, I suppose, what counsel was referring to when
he suggested that we should approach the matter differently from the way they
do in England or that we should regard the language in some different sense –
that some men are so utterly lacking in respect for women that they allow
themselves tremendous licence. But no such yardstick will be accepted by this
court. This court will demand for the women of this country respect from their
menfolk, or from menfolk generally, to no less extent than is accorded to women
in any country.
I think that the slander in the present case is a particularly mischievous and odious one,
because not only were the words spoken in the presence of several people, but in the
presence of her husband and her husband’s employees.

Imputation affecting professional or business reputation

Examples of such statements are: that a doctor is incompetent;31 that a banker is

fraudulent; that an engineer has no technique; that a lawyer knows no law; and that
a trader is insolvent.
At common law, the scope of this exception is considerably restricted by the rule
that slander is not actionable per se under this head unless it amounts to a disparage-
ment in the way of the plaintiff’s profession or business. This means that the words
must have been ‘spoken of a person following a calling, and spoken of him in that
calling, which impute to him unfitness for or misconduct in that calling’.32 The severity
of this rule is illustrated by Jones v Jones,33 where it was held not actionable per se to say

30 (1966) Court of Appeal, Trinidad and Tobago, No 1 of 1965 (unreported) [Carilaw TT 1966 CA
14], per Wooding CJ.
31 In Ying v Richards (1972) Court of Appeal, Jamaica, Civ App No 80 of 1971 (unreported)
[Carilaw JM 1972 CA 29], R said to L: ‘You should not have gone to that gangster doctor. He is
no good and no one recognises him.’ These words were held to be slander actionable per se.
See also Haynes v Johnson (1978) 31 WIR 95 (High Court, Barbados), where an allegation at a
political meeting that the plaintiff, a physician as well as a prominent politician, was in the
habit of overcharging and extorting money from his patients and of neglecting them, was a
slander actionable per se.
32 Jones v Jones [1916] 2 AC 481, p 500 per Lord Sumner.
33 Ibid.
226 Commonwealth Caribbean Tort Law

that a schoolmaster had committed adultery with a married woman employed at the
school as a cleaner, because although the statement imputed moral misconduct to the
plaintiff and would certainly be injurious to him in his profession, it did not allege
misconduct in the course of his duties as a schoolmaster.
In the recent Trinidadian case of Gordon v Panday,34 the plaintiff was the proprietor
of the Trinidad Express newspaper and the defendant was Prime Minister. During a
public speech, the latter had referred to the plaintiff as a ‘pseudo-racist’. One of the
issues in the case was whether this defamatory imputation disparaged the plaintiff in
his profession or calling. Jamadar J had no doubt that the statement did disparage the
plaintiff in his calling in the media business, as the defendant had implied that the
plaintiff had used, or misused, racism in order to maintain a monopolistic advantage
over his competitors in the business.35
Section 2 of the Defamation Act 1952 (UK), s 4 of the Defamation Act, Cap 6:03
(Guyana) and s 4 of the Defamation Act (Jamaica) have altered the position in those
jurisdictions by providing that:
In an action for slander in respect of words calculated to disparage the plaintiff in any
office, profession, calling, trade or business held or carried on by him at the time of
publication, it shall not be necessary to allege or prove special damage, whether or not
the words are spoken of the plaintiff in the way of his office, profession, calling, trade or
business.

The effect of the statutes is that any words spoken of the plaintiff which are reason-
ably likely to injure him in his office, profession, etc, will be actionable per se even
though not spoken ‘in the way of his office, profession’ etc.36 Thus, cases such as Jones v
Jones would be decided differently under the statutes.

REMOTENESS OF DAMAGE IN LIBEL AND SLANDER

In accordance with general tort principles, the damage complained of as a result of a

defamatory statement must not be too remote. The plaintiff may recover compensa-
tion only for those consequences of the defendant’s defamatory statement which
were foreseeable. It was held in one case37 that, if A slanders B, so that B is wrongfully
dismissed (that is, in breach of contract) from his employment by C, A is not liable to
compensate B for the dismissal since, being wrongful, it is too remote a consequence
of the slander. But this is no longer regarded as good law. The modern view is that A
will be liable if B’s dismissal was the natural and probable result of the slander,
whether B’s dismissal by C was wrongful or not.38
Again, if A slanders B to C, and C repeats the slander to D, who then dismisses B,
A is not liable for B’s dismissal since the damage is too remote. But A will be liable if:

34 (2000) High Court, Trinidad and Tobago, No CV 1443 of 1997 (unreported) [Carilaw TT 2000
HC 133].
35 The Privy Council (per Lord Nicholls) regarded Jamadar J’s conclusion as ‘unanswerable’:
(2005) Privy Council Appeal No 35 of 2004.
36 In Chanderpaul v Raffudeen (1977) High Court, Guyana, No 2376 of 1975 (unreported) [Carilaw
GY 1977 HC 3], it was held that an imputation that the plaintiff had fathered the child of a
married female neighbour was not likely to injure him in his business as a sanding contractor.
37 Vicars v Wilcox (1806) 103 ER 244.
38 Op cit, Winfield and Jolowicz, fn 19, pp 393, 394.
 Chapter 10: Defamation 227

(a) he authorised the repetition; or

(b) C had a legal or moral duty to repeat it; or
(c) A should have foreseen that his slander would be repeated by C.
These rules of remoteness apply equally to cases of libel.39

WHAT IS DEFAMATORY?

A defamatory statement is one which tends:

(a) to lower a person in the estimation of right-thinking members of society gener-
ally;40 or
(b) to expose a person to hatred, contempt or ridicule; or
(c) to cause other persons to shun or avoid him; or
(d) to discredit a person in his trade, profession or calling; or
(e) to damage a person’s financial credit.41
A statement which tends to lower a person’s reputation not in the minds of right-
thinking members of society generally, but only in the minds of a particular section of
the community, such as the members of a private club, is not defamatory. In Byrne v
Dean,42 the plaintiff and defendant were both members of a golf club. The plaintiff
alleged that the defendant had defamed him by putting up a notice in the club to the
effect that the plaintiff had made a report to the police about certain illegal gaming
machines kept in the club premises. It was held that the defendant’s statement could
not be defamatory since, although the other members of the club might think less well
of the plaintiff for ‘sneaking’ to the police as the notice alleged, right-thinking mem-
bers of the general public would approve rather than disapprove of a person who
reported a criminal offence to the police.
In assessing the standard of the average right-thinking member of the public, the
court will:
. . . rule out on the one hand persons who are so lax or so cynical that they would
think none the worse of a man whatever was imputed to him, and on the other hand
those who are so censorious as to regard even trivial accusations (if they were true)
as lowering another’s reputation, or who are so hasty as to infer the worst meaning
from any ambiguous statement . . . The ordinary citizen . . . is neither unusually
suspicious nor unusually naive, and he does not always interpret the meaning of
words as would a lawyer, for he is not inhibited by a knowledge of the rules of
construction.43

It must also be borne in mind that what may be defamatory in one society will not
necessarily be so in another, and that, as time passes and social attitudes change,
words may cease to be or become defamatory, as the case may be.44 The former point

39 See below, p 243.

40 Sim v Stretch [1936] 2 All ER 1237, p 1240, per Lord Atkin.
41 See, generally, Gatley on Libel and Slander, 9th edn, 1998, London: Sweet & Maxwell, Chapter 2.
42 [1937] 2 All ER 204.
43 Op cit, Winfield and Jolowicz, fn 19, p 398; Lewis v Daily Telegraph Ltd [1964] AC 234, p 258, per
Lord Reid.
44 Op cit, Gatley, fn 38, para 47. See also below, pp 231–33.
228 Commonwealth Caribbean Tort Law

is illustrated by the case of Rogers v News Company Ltd,45 where Cenac J, in the High
Court of St Vincent and The Grenadines, held that to refer to the plaintiff, who was
a Superintendent of Police, in a newspaper report as ‘Bat’ Rogers was defamatory,
since, in Vincentian society, to call a person ‘bat’ imputed ‘ignorance, stupidity and
eccentricity’.

PRESUMPTION OF FALSITY
In a defamation action, a defamatory statement is presumed to be untrue; but if the
defendant can prove that his statement was true of the plaintiff, he will have a com-
plete defence, for the plaintiff is not entitled to protect a reputation he does not really
possess. This is the defence of justification (see below, pp 246–48).

EXAMPLES OF DEFAMATORY STATEMENTS

• that a businessman was involved in the cocaine trade;46

• that a corporation’s cheques had ‘bounced’;47
• that the plaintiff had ‘stolen money’;48
• that a married woman was a ‘prostitute’;49
• that the plaintiff had associated with a person infected with the AIDS virus;50
• that a university lecturer had committed plagiarism;51
• that a university lecturer had been dismissed for failure to publish;52
• that a lawyer was dishonest, incompetent and discourteous;53
• that a newspaper proprietor was a ‘pseudo-racist’;54
• that a journalist was a ‘racist’;55

45 (1995) High Court, St Vincent and The Grenadines, No 221 of 1993 (unreported).
46 Spice Island Printers Ltd v Bierzynski (1994) Court of Appeal, Eastern Caribbean States, Civ App
No 5 of 1992 (unreported) [Carilaw GD 1994 CA 4]. See also Scantlebury v The Advocate Co Ltd
(1997) 33 Barb LR 273 (High Court, Barbados).
47 British Guiana Rice Marketing Board v Peter Taylor and Co Ltd (1967) 11 WIR 208 (below, pp 256–58;
Simon v Antigua Sun Ltd (2004) High Court, Antigua and Barbuda No 1999/0046 (unreported)
[Carilaw AG 2004 HC 47].
48 Briggs v Mapp (1967) Court of Appeal, West Indies Associated States, Civ App No 2 of 1964
(unreported) [Carilaw KN 1967 CA 2] (below, p 278).
49 Ramkhelawan v Motilal (1967) 19 Trin LR (Pt II) 117 (above, pp 224–25).
50 Forde v Shah (1990) 1 TTLR 73 (High Court, Trinidad and Tobago) (below, pp 261–63, 286);
Polidore v Crusader Caribbean Publishing Co Ltd (2000) High Court, St Lucia, No 380 of 1990
(unreported) [Carilaw LC 2000 HC 8].
51 Gafar v Francis (1980) 17 JLR 159 (Supreme Court, Jamaica), on appeal (1986) Court of Appeal,
Jamaica, Civ App No 45 of 1980 (unreported).
52 Sham v The Jamaica Observer Ltd (1999) Supreme Court, Jamaica, No S 292 of 1995 (unreported).
53 Emanuel v Lawrence (1999) High Court, Dominica, No 448 of 1995 (unreported) [Carilaw DM
1999 HC 3]. But to suggest that a lawyer lacks experience in a particular field is not defa-
matory, as it does not suggest that his competence or skill as an attorney is being called into
question: Scott v T&T News Centre Ltd (2007) High Court, Trinidad and Tobago, No 2506 of
2002 (unreported) [Carilaw TT 2007 HC 165], per Hosein J.
54 Gordon v Panday (2000) High Court, Trinidad and Tobago, No CV 1443 of 1997 (unreported)
[Carilaw TT 2000 HC 133] (above, p 226).
55 Ramlakhan v T&T News Centre Ltd (2005) High Court, Trinidad and Tobago, No S-634 of 1999
(unreported) [Carilaw TT 2005 HC 16]. See also Pan Trinbago Inc v Maharaj (2002) High Court,
Trinidad and Tobago, No 1017 of 1995 (unreported) [Carilaw TT 2002 HC 173].
 Chapter 10: Defamation 229

• that a professional cricketer had been involved in ‘match-fixing’.56

In order to succeed in a defamation action, the plaintiff must establish:
(a) that the words were defamatory;
(b) that they referred to him; and
(c) that they were published to at least one person other than the plaintiff himself.

Words must be defamatory

This question must be approached in two stages. In a trial with judge and jury, the
judge’s function is to decide whether the words are capable of being defamatory. If he
answers this question in the affirmative, it is then for the jury to decide whether they
are defamatory in the circumstances of the particular case. Where trial is by judge
alone – as is almost invariably the case in Commonwealth Caribbean jurisdictions – -
the judge must perform both functions.57
As Bollers J explained in Ramsahoye v Peter Taylor and Co Ltd:58
In this Colony, where there is no jury, I can do no better than repeat the dictum of
Camacho CJ in Woolford v Bishop,59 where he stated in his judgment:
On this aspect of the case, the single duty which devolves on this court in its
dual role is to determine whether the words are capable of a defamatory mean-
ing and, given such capability, whether the words are in fact libellous of the
plaintiff. If the court decides the first question in favour of the plaintiff, the court
must then determine whether an ordinary, intelligent and unbiased person
reading the words would understand them as terms of disparagement, and an
allegation of dishonest and dishonourable conduct. The court will not be astute
to find subtle interpretations for plain words of obvious and invidious import.

Where the words are clearly defamatory on their face, a finding that they are capable
of being defamatory will almost inevitably lead to the conclusion that they are
defamatory in the circumstances. But where the words are reasonably capable of
either a defamatory or a non-defamatory meaning, the court must decide what the
ordinary reader or listener of average intelligence would understand by the words.
Further, as has been pointed out by Byron JA in the Eastern Caribbean Court of
Appeal in Carasco v Cenac,60 it is irrelevant that the defendant did not intend the words
he used to be understood in a defamatory sense. The intention of the defendant may
be material to the assessment of damages, but it is immaterial in determining whether
the words were defamatory or not.
In Gordon v Chokolingo,61 Lord Ackner, delivering the judgment of the Privy
Council, said:
In Lewis v Daily Telegraph Ltd,62 [Lord Reid made] the following important statement:

56 Logie v National Broadcasting Network Ltd (2002) High Court, Trinidad and Tobago, No CV 556
of 2001 (unreported) [Carilaw TT 2002 HC 165].
57 Smith v Adams (1982) 17 Barb LR 204 (Court of Appeal, Barbados).
58 [1964] LRBG 329, p 331.
59 [1940] LRBG 93, p 95.
60 (1995) Court of Appeal, OECS, Civ App No 6 of 1994 (unreported).
61 (1988) PC App No 19 of 1986, on appeal from the Court of Appeal of Trinidad and Tobago.
62 [1964] AC 234, p 258.
230 Commonwealth Caribbean Tort Law

There is no doubt that in actions for libel the question is what the words would
convey to the ordinary man: it is not one of construction in the legal sense.
The ordinary man does not live in an ivory tower and he is not inhibited by
a knowledge of the rules of construction.

Moreover, in the subsequent case of Morgan v Odhams Press Ltd,63 Lord Reid said:
If we are to follow Lewis’ case and take the ordinary man as our guide, then we must
accept a certain amount of loose thinking. The ordinary reader does not formulate
reasons in his own mind; he gets a general impression and one can expect him to look
again before coming to a conclusion and acting on it. But formulated reasons are very
often an afterthought.
The publishers of newspapers must know the habits of mind of their readers and I see
no injustice in holding them liable if readers, behaving as they normally do, honestly
reach conclusions which they might be expected to reach.

In the same case, Lord Pearson said:64

. . . I do not think the reasonable man – who can also be described as an ordinary sens-
ible man – should be envisaged as reading this article carefully. Regard should be had
to the character of the article; it is vague, sensational and allusive; it is evidently
designed for entertainment rather than instruction or accurate information. The ordin-
ary, sensible man, if he read the article at all, would be likely to skim through it casually
and not to give it concentrated attention or a second reading. It is no part of his work to
read this article, nor does he have to base any practical decision on what he reads there.
The relevant impression is that which would be conveyed to an ordinary sensible man
. . . reading the article casually and not expecting a high degree of accuracy.

This test was applied in Maxwell v Forde and St John.65 Here, the appellants published
an article in their newspaper in which they referred to a ‘colossal act of treason against
the people of Barbados’ on the part of the respondents, who were practising barristers
and candidates in a forthcoming general election. The article criticised the respond-
ents for representing the United Society for the Propagation of the Gospel (USPG) in
an action against the Attorney General, the main issue in which was whether the
USPG were the absolute owners of Codrington College or whether they were trustees
under the will of Sir Christopher Codrington.
The article alleged that, if the USPG had succeeded in their claim that they were
the absolute owners of the property, ‘the people of Barbados would have lost
Codrington College’, as the purpose of the USPG was to sell the property to a hotel
development group. The article also referred to the ‘fat cats’ who would have been
created by the sale, and concluded that it ‘takes a great deal of [the respondents] to
present themselves as candidates for election as the people’s representatives in any
constituency in Barbados’. The trial judge found that the article contained five distinct
and separate libels against the respondents: (a) an imputation of the crime of treason,
punishable by death; (b) an imputation of unpatriotic behaviour; (c) an imputation
that the respondents took part in the case for the purpose of obtaining improper
financial gain; (d) an imputation of professional impropriety; and (e) an imputation
that the respondents were unfit to be members of the General Assembly.

63 [1971] 1 WLR 1239, p 1245.

64 Ibid, p 1269.
65 (1974) 22 WIR 12 (Court of Appeal, Barbados). See also Lawrence v Lightburn (1981) 31 WIR 107
(Court of Appeal, Belize).
 Chapter 10: Defamation 231

Douglas CJ held that the interpretation placed by the trial judge on the words
‘colossal act of treason against the people of Barbados’, as amounting to an accusation
of the crime of treason punishable by death, was unduly strained and unrealistic,
having regard to the context of the article, but the other four imputations were clearly
libellous and the appellants were liable in defamation.
On the other hand, the Guyanese case of Bacchus v Bacchus 66 shows that the court
should take into account the prevailing public attitudes in the particular jurisdiction.
In this case, the plaintiff and defendant were employees of the Demerara Company
and resided as neighbours on the company’s estate, sharing an electricity meter. The
defendant made a complaint to N, the company’s personnel manager, who was in
charge of the estate, that since the plaintiff had taken up residence, the electricity
charges (which were paid by the company) had risen sharply, and he attributed this
to the plaintiff’s habit of keeping her lights on even after daybreak. N wrote to the
plaintiff, advising her that lights should be turned off after 5.30 am and that, in future,
there would be surcharges for high electricity bills. The plaintiff became enraged at
this letter, and verbally abused N, the defendant and others at the estate office. The
defendant then made a written report to N, stating, inter alia: ‘One can only draw the
conclusion that [the plaintiff’s] behaviour seems to suggest a perverted personality
development from sub-cultural socialisation.’ The plaintiff brought an action for libel
in respect of these words.
It was held that, in the light of the Guyanese ideal of an egalitarian society, these
words were not capable of a defamatory meaning. Massiah J said:
It is my view that the words complained of are incapable of a defamatory meaning and
do not bear the meaning ascribed to them by the plaintiff [that is, that she is not a fit and
proper person to associate with normal Guyanese citizens]. The test to be applied here is
the classic one of whether the words complained of would tend to lower the plaintiff in
the estimation of right-thinking members of society generally or would cause her to be
shunned and avoided.
The defendant himself did not appear to understand the meaning of what he wrote and
may have used those words to add what he may have thought was intellectual spice to
his report. He said that he borrowed his words from a sociologist.
But his reasons for using the words are immaterial in determining his liability, for, as
Lord Russell said in Cassidy v Daily Mirror Newspapers Ltd:67
Liability for libel does not depend on the intention of the defamer, but on the
fact of defamation.
In determining whether or not the words are defamatory, one must endeavour to find
out whether or not the ordinary, reasonable Guyanese citizen would have so considered
them. Would the words, one has to ask oneself, tend to lower the plaintiff in that citizen’s
estimation or cause him to shun or avoid her? For it is what the average, ordinary,
intelligent citizen of Guyana thinks about the matter that is important, not how it is
viewed by a Guyana scholar or a professor at the University of Guyana, or by a censori-
ous person, or, on the other hand, by the cynic who would treat with a sneer and with
contempt the worst that may be said of him or anyone else, but would go no further.
The exact words complained of, as I said earlier, are:
One can only draw the conclusion that her behaviour seems to suggest a per-
verted personality development from sub-cultural socialisation.

66 [1973] LRG 115 (High Court, Guyana).

67 [1929] 2 KB 331, p 354.
232 Commonwealth Caribbean Tort Law

‘Culture’ has been defined as ‘the distinctive way of life of a group of people; their
complete design for living’ – Clyde Kluckholn’s The Study of Culture, p 86.
A sub-culture is a culture that is different and distinguishable from the normal or dom-
inant culture that prevails in a society. So Leonard Broom and Philip Selznick in their
work, Sociology (3rd edn) write as follows, at p 60:
Sub-cultures are distinguishable from one another and from the dominant cul-
ture forms by such manifest characteristics as language, clothing, gesture and
etiquette.
Sub-cultures may be ethnic, regional, occupational and the like. The Puerto Ricans in
the United States of America have their own sub-cultural patterns, and there are those
who would consider that many Guyanese who live in humble circumstances have a
sub-culture of their own.
In the work just quoted, the authors write as follows (p 93) about ‘socialisation’:
The process of building group values into the individual is called socialisation.
From the point of view of society, socialisation is the way culture is transmitted
and the individual is fitted into an organised way of life . . . From the point of
view of the individual, socialisation is the fulfilment of his potentialities for
personal growth and development. Socialisation humanises the biological
organism and transforms it into a self having a sense of identity, capable of
disciplining and ordering behaviour, and endowed with ideals, values and
ambitions.
Socialisation regulates behaviour, but it is also the indispensable condition for
individuality and self-awareness.
And later, at p 96:
Socialisation inevitably produces a degree of conformity. People brought up
under similar circumstances tend to resemble each other in habits, values and
personality.
The words complained of seem to mean to me, therefore, that the plaintiff’s personality
is not properly developed because she was brought up in a stratum of society with
cultural values and standards below the normal, and that it was these sub-cultural
values that now determine the pattern of her behaviour.
What he meant in effect was that the plaintiff behaved the way she did because she was
not brought up in what he would have considered to be the right social circles. He
seemed to think that she did not possess the refined manners and breeding of those
whom he must have thought were her social betters.
In my view, to determine whether or not the reasonable man in Guyana would today
look down upon such a person or tend to shun or avoid him, one would have to
consider the social changes that have taken place in this country over the last decade.
The law is a living thing and must be interpreted and applied in the context of con-
temporary life and prevailing ideas. Words that were defamatory 10 years ago might
not be so considered today. In England, during the Caroline age, it was actionable to call
a person a Papist; it is certainly not so today. The proper test, to my mind, therefore, is
what would the average Guyanese citizen think today about this matter, not how he
would have viewed it 10 or 15 years ago. One has to bear in mind that, with the
attainment of political independence and the birth of our nation, new social ideas have
been conceived and social changes brought about.
In this age of the small man and the Guyanese ideal of an egalitarian society to which all
appear committed, there has arisen at all levels a commendable awareness of the plight
and social condition of the person who used to be called ‘the common man’, and there
is a corresponding diminution of the tendency to disparage him because he was con-
sidered to have been spawned in a milieu once described as ‘lower class’. A resident of
Albouystown or Tiger Bay does not at the present time bear the social stigma which
 Chapter 10: Defamation 233

previously derived from the very fact of living in those areas, because today a new and
different view is taken of social inequalities.
It is against this background and in the light of this mood of social change and the
present stirring of what the sociologists call one’s ‘social conscience’ that this matter
must be seen and determined, and I am therefore of the view that the words complained
of, if believed, would not tend to lower the plaintiff in the estimation of right-thinking
members of our society or cause them to shun or avoid her, though, perhaps, a snob
might wish to do so.
It must not be understood that I feel that the average Guyanese is indifferent to mis-
behaviour in our society and that we are approaching a state of decadence. There can be
no doubt that the average citizen would frown on misbehaviour and indecency no
matter what the cause may be, and would no doubt shun a person who so misconducts
himself. And there can be no doubt that the plaintiff misbehaved herself at the estate
office on 27 April 1971.
But what the plaintiff complains about is the explanation for her misconduct which the
defendant suggested, and that is what, in my view, the average citizen would not view
unfavourably. In other words, what the average Guyanese would find objectionable is a
person’s misbehaviour, not the cause of it, at least not if the cause is the social conditions
under which the defaulter had the misfortune to have been raised.

Innuendo

Where words are not clearly defamatory on their face, the plaintiff may allege an
innuendo. Innuendoes are of two types: (a) true (or legal) innuendo; and (b) false (or
popular) innuendo. In a true innuendo, the words are innocent on their face but the
plaintiff alleges that they are defamatory because of some special facts or circumstances not
set out in the words themselves but known to the persons to whom the words were published;
for example, a statement that ‘P is a good trader’ is innocent on its face, but may be
defamatory if published to persons who know that P is a priest who is prohibited by
his calling from engaging in business; or a statement that ‘P is a frequent visitor at
No 10 Sesame Street’ is perfectly innocent on its face, but it may be defamatory if it is
published to persons who know the special fact that No 10 Sesame Street is a brothel,
for then the statement would carry the innuendo that P associated with prostitutes.
In Cassidy v Daily Mirror Newspapers Ltd,68 a newspaper published a photograph of
Mr C and Miss X with the caption ‘Mr C and Miss X, whose engagement has been
announced’. These words were completely innocent on their face but were held to be
defamatory of Mrs C, since persons who knew that she had been living with Mr C
might believe that she was not Mr C’s wife and had been immorally cohabiting
with him.
A false innuendo, on the other hand, is merely a defamatory inference that reason-
able persons might draw from the words themselves. Thus, in a false innuendo the
words are taken to be defamatory on their face, and, unlike in the true innuendo, there
are no special facts or circumstances known to persons to whom the words are pub-
lished; for example, where a bank wrongfully returns a cheque to the payee, stamped
‘return to drawer’ or ‘R/D’, such a statement is defamatory because it carries the
inference or innuendo that the drawer is, at best, a bad financial risk or, at worst,
dishonest.

68 [1929] 2 KB 331.
234 Commonwealth Caribbean Tort Law

The distinction between true and false innuendo was explained by Bollers J in
Ramsahoye v Peter Taylor and Co Ltd:69
A true innuendo depends for its existence upon extrinsic circumstances or facts, and
only becomes necessary when the words, in their natural and ordinary meaning, are
meaningless or innocent and become defamatory only by reason of the special or
extrinsic circumstances which give rise to a separate cause of action. A false or popular
innuendo is merely the ordinary and natural meaning which arises from the words
themselves which the plaintiff attributes to them.

A ‘false’, or ‘popular’, innuendo was alleged in Bonaby v The Nassau Guardian Ltd.70 In
this case an article was published in the defendant newspaper, purporting to be an
account of the evidence given by one NB, an attorney at law, before a Commission of
Enquiry into Drug Trafficking then sitting in Nassau. Part of the account read:
He denied that he had made payments to officials in relation to a case known before the
Commission as the ‘Green Cay matter’. He specifically denied that he paid out monies
to the magistrate, Mrs Sylvia Bonaby . . .

The plaintiff, Mrs Bonaby, was at the date of the publication a stipendiary and circuit
magistrate sitting in Nassau, but she did not hold that position at the date of the
‘Green Cay matter’ and so could not have heard that case. The plaintiff alleged the
innuendo that she was liable to take a bribe and was dishonest.
Georges JA held that it was impossible to read into a positive denial that a bribe had
been paid to an individual an inference that such individual was nonetheless a person
likely to receive a bribe. Witnesses who testified that they thought less well of the
plaintiff on having read the article should be categorised as ‘unduly suspicious’, and
not as reasonable men ‘thinking loosely but still being reasonable’. Georges JA said:
I was satisfied that the innuendoes pleaded in the statement of claim were not ‘true’ or
‘legal’ innuendoes. They were statements of the implications which could be drawn
from the published words.
Paragraph 5(i), which states that there was an implication that the plaintiff was
‘involved in the Green Cay matter’, and para 5(iii), stating that she was the magistrate
before whom that matter was heard, appear to me to be obvious inferences which can be
drawn from the words published . . .
None of them show that the words have a meaning other than that which can be
deduced, however remotely, from a painstaking and meticulous analysis of the words
themselves. In Lewis v Daily Telegraph Ltd,71 Lord Devlin gave an example of an extrinsic
fact:
Thus, to say of a man that he was seen to enter a named house would contain a
derogatory implication for anyone who knew that that house was a brothel, but
not for anyone who did not.
If a libel was of that nature, it would be necessary to plead as extrinsic facts that the
named house was a brothel, and to name the persons who knew that it was a brothel – -
unless of course the fact was notorious because the occupiers had recently been con-
victed of operating it as a brothel, and the fact of the conviction had been widely
publicised in the very paper publishing the libel. In such a case the names of the people
who knew would not necessarily have to be pleaded.

69 [1964] LRBG 329, p 332.

70 (1985) Supreme Court, The Bahamas, No 730 of 1984 (unreported) [Carilaw BS 1985 SC 43].
71 [1964] AC 234, p 279.
 Chapter 10: Defamation 235

Because of the view which I took, I overruled Mr Butler’s objection, holding in effect
that the plaintiff had pleaded only ‘popular’ and not ‘legal’ or ‘true’ innuendo. I also
noted that if attempts were made to lead evidence which would in effect be evidence of
‘extrinsic facts’, objection could be taken then and a ruling sought.
It seemed proper to hold, however, that the general context in which the alleged libel-
lous words had been published was relevant in determining the ‘insinuations and innu-
endoes’ which could be ‘reasonably read into them by ordinary men’, to use the language
of Lord Devlin. Accordingly, I allowed evidence to establish that a Commission of
Inquiry had been appointed by the Governor General to investigate the use of The
Bahamas as a transshipment area for the conveyance of drugs into the continental US.
I also allowed evidence tending to show that there had been allegations of misconduct
against lawyers in private practice and in the civil service. I am satisfied, and so find,
that there was at the time in the thought processes of the average reasonable person in
The Bahamas, a sense of heightened suspicion in relation to public officials and lawyers,
including both those in private practice and those who were employed in the civil
service . . .
In Lewis v Daily Telegraph Ltd,72 the allegation complained of was that the plaintiff’s
affairs were being investigated by the fraud squad. Lord Reid, in considering the
meaning which could be put on these words by the ordinary man, stated:73
In this case it is, I think, sufficient to put the test this way. Ordinary men and
women have different temperaments and outlooks. Some are unusually suspi-
cious and some are unusually naive. One must try to envisage people between
these two extremes and see what is the most damaging meaning they would
put on the words in question. So let us suppose a number of ordinary people are
discussing one of these paragraphs which they had read in the newspaper.
No doubt one of them might say – ‘Oh, if the fraud squad are after these people
you can take it they are guilty’. But I would expect the others to turn on him,
if he did say that, with such remarks as – ‘Be fair. This is not a police state.
No doubt their affairs are in a mess or the police would not be interested. But
that could be because Lewis or the cashier has been very stupid or careless. We
really must not jump to conclusions. The police are fair and know their job, and
we shall know soon enough if there is anything in it. Wait till we see if they
charge him. I wouldn’t trust him until this is cleared up, but it is another thing
to condemn him unheard.’
What the ordinary man, not avid for scandal, would read into the words complained of
must be a matter of impression. I can only say that I do not think he would infer guilt of
fraud merely because an inquiry is on foot.
In this case, as I have indicated, I am prepared to accept that the ordinary man, avid
for scandal, is likely to be less balanced and reasonable than the persons reported in
Lord Reid’s dialogue. Nonetheless, it seems to me impossible to read into a positive
denial that a bribe had been paid, an inference that the individual who is reported
as not having received a bribe is nonetheless a person likely to receive a bribe. This
type of inference is possible only on the basis that mere mention of one’s name in
evidence before the Commission of Inquiry carried a taint. Such mention may have
been unpleasant and undesirable; it cannot of itself carry a taint. Mrs Bonaby was
in no way accused of having received a bribe. It is evident from the context that it
had been reported by witnesses that the witness, Mr Bowe, had said that he needed
money for bribing magistrates. Mr Bowe was denying that he ever said that, and
that he ever paid bribes. It must be assumed that whatever the atmosphere, readers

72 Ibid.
73 Ibid, pp 259, 260. See also Mapp v Newsgroup Newspapers Ltd [1998] 2 WLR 260, pp 267, 268, per
Hirst LJ.
236 Commonwealth Caribbean Tort Law

of the newspaper retained some capacity for discrimination in reading what was
reported.
Witnesses did testify that they thought less of Mrs Bonaby on having read the article.
The reasons for this show that they fall into the group of the unusually suspicious. They
are not reasons which would come from reasonable men thinking loosely but still being
reasonable – more so as they all knew the plaintiff as an upright person . . .
I can appreciate the plaintiff’s anger and hurt at having, to use police officer Seymour’s
phrase, ‘made the Commission of Inquiry’ when she was not in any way involved.
It was an unfortunate error and might not have resulted in a suit had it been more
sympathetically handled.
Though the report was false, I find that the words used were not in their ordinary
meaning, taking the context and the atmosphere of the period into account, libellous of
the plaintiff.

Reference to the plaintiff

The second requirement for a successful action in defamation is that the defamatory
words must be shown to have referred to the plaintiff. In most cases the plaintiff will
be mentioned by name, but this is not a necessary requirement. It is sufficient for
liability if he is mentioned by, for example, his initials or his nickname, or if he is
depicted in a cartoon, photograph or verbal description, or if he is identified by his
office or post. It may also be sufficient if a particular group of which he is a member is
mentioned. In all cases, the test is whether a reasonable person might understand the
defamatory statement as referring to the plaintiff. In AG v Milne,74 for instance, it was
held that there was sufficient reference to the plaintiff where a radio broadcaster
referred to ‘one irresponsible businessman . . . who . . . pledges half a million dollars
on placards, posters and other subversive material’. And in Gairy v Bullen (No 1),75 a
newspaper article which alleged sexual impropriety towards young girls seeking
employment was held to contain sufficient reference to the plaintiff, the Prime
Minister of Grenada, although it did not mention him by name, because ‘a substantial
number of ordinary sensible persons who knew the plaintiff, reading the article,
would believe that it referred to him’.76
In a more recent case, Jordan v The Advocate Co Ltd,77 the defendant newspaper
published an article under the heading ‘Little Help for Junior Doctors’, in which it
was alleged that junior doctors at the Queen Elizabeth Hospital in Barbados were
often forced to make decisions regarding the treatment of patients without the benefit
of consultation with senior medical practitioners. The latter were accused of spending
more time playing golf than attending to their duties at the hospital. The plaintiff, a

74 (1973) 2 OECSLR 115 (Court of Appeal, Eastern Caribbean States). See also Polidore v Crusader
Caribbean Publishing Co Ltd (2000) High Court, St Lucia, No 380 of 1990 (unreported) [Carilaw
LC 2000 HC 8].
75 (1972) 2 OECSLR 93 (High Court, Grenada).
76 In Luther v The Argosy Co Ltd [1940] LRBG 88 (Supreme Court, British Guiana), it was held that
where a defamatory article is published in a newspaper, it is sufficient for liability if a substan-
tial number of persons reading the article would believe that it refers to the plaintiff. It was not
necessary, nor possible, to show that all readers would believe that it referred to him. It is also
established that it is not necessary for the readers to have believed the defamatory imputation
to be true of the plaintiff: Morgan v Odhams Press Ltd [1971] 1 WLR 1239, p 1246, per Lord Reid.
See, generally, Goodhart, AL (1971) 87 LQR 451.
77 (1998) High Court, Barbados, No 727 of 1996 (unreported) [Carilaw BB 1998 HC 22].
 Chapter 10: Defamation 237

senior consultant physician and prominent amateur golfer, brought an action for libel
against the newspaper, claiming that, although the writer of the article purported to
criticise senior practitioners as a group, and the plaintiff’s name was not mentioned,
reasonable readers would understand the article to refer to him.
Payne J, in the Barbados High Court, considered that the question was ‘whether
reasonable readers generally or reasonable readers with the knowledge of certain
special facts proved would understand the article to refer to the plaintiff’. He went on
to hold that, in the circumstances, reasonable readers generally would not understand
the article to refer to the plaintiff, as distinct from the group of which he was a
member, but that persons knowing the special facts, namely, that there was only one
other consultant at the hospital who played golf, and that this consultant was in the
Department of Radiology and would not, therefore, be involved in the medical care of
patients, would reasonably understand the article to refer to the plaintiff. The learned
judge continued:
The writer of the article gave evidence that it was a general article about the care of
patients at the Queen Elizabeth Hospital, and referred to no one. It should be said that
it does not matter whether reference to the plaintiff was intended, or whether the
defendant knew or could have known the special facts which caused the readers with
special knowledge to link the article with the plaintiff. I also find that the words were
defamatory of the plaintiff, by conveying that, by absenteeism in breach of his duties, he
is not always available for consultation by junior doctors when required, and that
he does not give sufficient supervision to junior staff in the care of patients.

Class or group defamation

Where a disparaging statement is made of a whole class or group of persons (for

example, ‘all lawyers are thieves’), no individual member of the class can sue, unless:
(a) the class is so small or so ascertainable that what is said about the class is
necessarily said of each member of it; or
(b) the individual member can show that he was particularly pointed out.78
In Bodden v Bush,79 a defamatory article in a newspaper which referred to ‘the elected
government in the Cayman Islands’ as, inter alia, ‘dictators and communists’, was
held to refer to each and every member of the Executive Council, which consisted of
four persons. Summerfield CJ80 emphasised that ‘the elected government’ was ‘so
small a class in these Islands, and so easily ascertainable as a class, that what is said of
the class is necessarily said of each member of that class’.
The question of class or group defamation also arose in Ramsahoye v Peter Taylor
and Co Ltd,81 in which the relevant principles were discussed. Here an article was
published in the defendants’ newspaper which reported that the Minister of Educa-
tion had criticised the practice of teachers accepting fees for after-school tuition, and
that the Minister had said that teaching is a profession and teachers should not act
unprofessionally. The writer of the article took exception to this criticism and retorted

78 Knuppfer v London Express Newspaper Ltd [1944] AC 116.

79 [1986] CILR 100 (Grand Court, Cayman Islands).
80 Ibid, p 106.
81 [1964] LRBG 329 (Supreme Court, British Guiana).
238 Commonwealth Caribbean Tort Law

that ‘there are one or two members of the Government who are professionals, and
they are certainly not averse to doing one or two things that are unprofessional and
totally dishonest. [They have] no regard for the law of the country or for the Constitu-
tion’. The plaintiff, who was a barrister, Attorney General and a member of the
Council of Ministers, sought to recover damages for libel, contending that the
defamatory article referred to him.
Bollers J held that though the defamatory words reflected on a class of persons,
they would lead reasonable people who knew the plaintiff to believe that the article
referred to him. He said:82
In the particular circumstances of the present case, I have no difficulty in answering the
question whether there is evidence upon which the words can be regarded as referring to
the plaintiff, in the affirmative. The publication speaks of one or two members of the
Government and must be taken to mean the members of the Cabinet of the Government,
or, as is described in the British Guiana Constitution, at Art 28(1), the Council of
Ministers. Counsel for the defendants has tried in vain to impress me with the argument
that members of the Government, within the context of the publication, must be taken to
mean members of the whole machinery of Government. That submission I cannot accept,
for, as already pointed out with reference to the dictionary definition of ‘Government’, in
England members of the Government would be taken to mean members of the Cabinet or
the Ministry, that is to say, the body of persons charged with the duty of governing or
controlling the affairs of state. In British Guiana, the ordinary intelligent reader would
interpret the words ‘members of the Government’ as being members of the Council of
Ministers. He would not for one moment consider a backbencher or floor member as
being a member of the Government. In point of fact, such a member of the legislature
is described in the office records of the Legislative Assembly as being a member of the
governing party. He would not consider a member of the civil service who, as an officer
of the Government, is technically a member of the section of the administration which is
the executive arm of the Government, as a member of the Government . . .
I arrive at the conclusion at this stage, therefore, that the publication is in fact
defamatory of a very small group of persons who are, of course, the members of the
Government who are professional men.
It is an essential element of the cause of action for defamation that the words com-
plained of should be published ‘of the plaintiff’. No writing is considered to be a libel
unless it reflects on and casts an imputation on some particular person. In this case it has
been strongly urged by counsel for the defendant company that, even if the words are
capable of a defamatory meaning, they are incapable of referring to the plaintiff and do
not in fact refer to the plaintiff.
It is well settled that, where the defamatory words reflect on a body or class of persons
generally, such as lawyers, clergymen or politicians, no particular member of the body
or class can maintain an action; for, to give the classic example as uttered by Willes J in
Eastwood v Holmes,83 ‘if a man wrote that all lawyers were thieves, no particular lawyer
could sue him unless there were something to point to the particular individual’. In
O’Brien v Eason,84 it was held that, where comments of an alleged defamatory character
were made upon an association called the Ancient Order of Hibernians, an individual
member of the Order who was not named or in any way referred to could not maintain
an action for libel. In Browne v Thomson and Co,85 however, where a newspaper article

82 Ibid, p 338.
83 (1858) 175 ER 758, p 759.
84 (1913) 47 Ir LT 266.
85 [1912] SC 359.
 Chapter 10: Defamation 239

stated that in Queenstown instructions were issued ‘by the Roman Catholic religious
authorities that all Protestant shop assistants were to be discharged’, and where seven
pursuers averred that they were the sole persons who exercised religious authority in
name and on behalf of the Roman Catholic Church in Queenstown, it was held that they
were entitled to sue for libel as being individually defamed. Lord President Dunedin in
this case said, at p 363:
I think it is quite evident that if a certain set of people are accused of having
done something, and if such accusation is libellous, it is possible for the
individuals in that set of people to show that they have been damnified, and
it is right that they should have an opportunity of recovering damages as
individuals.
In the earlier celebrated case of Le Fanu v Malcolmson,86 Lord Campbell in giving
judgment stated:
Where a class is described, it may very well be that the slander refers to a
particular individual. That is a matter of which evidence is to be laid before the
jury, and the jurors are to determine whether, when a class is referred to, the
individual who complains that the slander is applied to him is, in point of fact,
justified in making such complaint. That is clearly a reasonable principle,
because whether a man is called by one name or by another, or whether he is
described by a pretended description of a class to which he is known to belong,
if those who look on know well who is aimed at, the very same injury is
inflicted; the very same thing is in fact done as would be done if his name and
Christian name were ten times repeated.
Finally, in the case of Knuppfer v London Express Newspaper Ltd,87 the law on the subject
was crystallised by the House of Lords, and it was laid down that when defamatory
words are written or spoken of a class of persons, it is not open to a member of that class
to say that the words were spoken of him unless there was something to show that
words about the class referred to him as an individual. Two questions must be deter-
mined: the first one is of law, and is whether the words are capable of referring to the
plaintiff; the second is one of fact, and is whether reasonable people who knew the
plaintiff think the words refer to him. Above all, the primary rule in all cases of defam-
ation must be observed, and that is, the plaintiff must show that the words complained
of were published of himself. If the words are not so published, the plaintiff is
not defamed and cannot have any right to ask that the defendants should be held
responsible to him in respect to them.
As to the statement that there are one or two members of the Government who are
professionals, the ordinary reasonable reader of average intelligence in this Colony
would of necessity think only of those members who are members of a learned profes-
sion. It is the evidence supplied by the plaintiff’s witnesses to which I am not bound
but which I accept as being true, that the word ‘profession’ and the words ‘professional
men’ are in this Colony never used in the widest sense to include any calling or occupa-
tion, but is generally confined to meaning members of the learned professions of
medicine and law. That is to say, the words ‘professional men’ are usually given to
and understood as meaning doctors and lawyers. Dentists, too, are included in the
nomenclature or category of doctors of medicine.
The witnesses for the plaintiff, a barrister-at-law and an officer of the Government
Information Service, have stated boldly that when they read the publication their
minds went at once to the three members of the Council of Ministers who they under-
stood to be members of the learned professions, that is to say, the plaintiff, who was a

86 (1848) 1 HLC 637.

87 [1944] AC 116.
240 Commonwealth Caribbean Tort Law

barrister-at-law and Attorney General of the Colony, the Premier, the Honourable
Dr CB Jagan, who is a dentist, and the Honourable BS Rai, who is a barrister-at-law
and who, at the time, was Minister of Home Affairs. I have no reason to doubt this
evidence and, although I must reiterate that I am not bound by this evidence, I must
answer the second question of fact in the affirmative by stating that the article would in
fact lead reasonable people who knew the plaintiff to the conclusion that the article did
refer to him.

Unintentional defamation

At common law, it is no defence to an action for libel or slander that the defendant did
not intend to defame the plaintiff.88 The intentions of the defendant may be relevant
to the assessment of damages,89 but they are irrelevant to the question of liability.
Defamation may be unintentional either with regard to reference to the plaintiff, or
with regard to knowledge of facts which make a statement, which is innocent on its
face, defamatory of the plaintiff (the legal innuendo).90 Unintentional defamation with
regard to reference to the plaintiff is illustrated by two cases: Hulton v Jones and
Newstead v London Express Newspaper Ltd.
In Hulton v Jones,91 the defendants published a fictional story in their newspaper
concerning the adulterous exploits of one ‘Artemus Jones’. A real person named
Artemus Jones, who was a barrister, sued the defendants for libel, and his action
succeeded, despite the fact that the use of his name was quite accidental. In Newstead
v London Express Newspaper Ltd,92 the defendants published an accurate and cor-
rect report about the trial for bigamy of one Harold Newstead of Camberwell.
Unknown to the defendants, there was another Harold Newstead, also of Camberwell,
who produced witnesses who swore that they believed that the report referred to him.
The plaintiff’s action for libel succeeded, though the court awarded only nominal
damages.
Unintentional defamation with regard to knowledge of facts which make a seem-
ingly innocent statement defamatory of the plaintiff is illustrated by Cassidy v Daily
Mirror Newspapers Ltd.93 There, the defendants published in their newspaper a photo-
graph of one Corrigan in the company of Miss X with the caption, ‘Mr Corrigan the
racehorse owner and Miss [X] whose engagement has been announced.’ Mrs Corrigan
brought an action for libel, pleading the innuendo that readers of the newspaper who
knew her would think that she was not the lawful wife of Corrigan and that she had
been living with him in immoral cohabitation. Her action succeeded.
The ‘terror to authorship’94 highlighted by Hulton v Jones and the manifest
absurdity of cases such as Newstead and Cassidy prompted the legislature in England
to introduce a new statutory defence in cases of unintentional defamation. This
defence, contained in s 4 of the Defamation Act 1952, was later introduced into
Jamaica by s 6 of the Defamation Act and into Guyana by s 12 of the Defamation Act,

88 Op cit, Gatley, fn 41, para 3.12.

89 See below, p 286.
90 See above, p 233.
91 [1909] 2 KB 444.
92 [1940] 1 KB 377.
93 [1929] 2 KB 331.
94 Knuppfer v London Express Newspaper Ltd [1943] KB 80, p 89.
 Chapter 10: Defamation 241

Cap 6:03.95 The sections96 provide that, where words are published innocently, as
defined by the statutes, a defendant may escape liability for damages if he is willing to
publish a reasonable correction and apology, called an ‘offer of amends’. Words are
published ‘innocently’ within the statutory definition if either:
(a) the publisher did not intend to publish them of and concerning that other person,
and did not know of circumstances by virtue of which they might be understood
to refer to him;97 or
(b) the words were not defamatory on the face of them and the publisher did not
know of circumstances by virtue of which they might be understood to be
defamatory of that person,98
and, in either case, the publisher exercised all reasonable care in relation to the
publication.
An offer of amends under the statutes is an offer:
(a) in any case to publish a suitable correction and apology; and
(b) where copies of the defamatory material have been distributed by or with the
knowledge of the defendant, to take reasonable steps to notify persons to whom
copies have been distributed that the words are alleged to be defamatory of the
plaintiff.
If the offer of amends is accepted by the party aggrieved and is duly performed, no
proceedings for libel or slander may be taken or continued by that party against the
party making the offer in respect of the publication in question.
If the offer of amends is not accepted by the party aggrieved, then it is a defence in
any proceedings by him for libel or slander to prove:
(a) that the words were published innocently in relation to the plaintiff;
(b) that the offer was made as soon as practicable after the defendant received notice
that they were or might be defamatory of the plaintiff; and
(c) if the publication was of words of which the defendant was not the author, that
the words were written by the author without malice.

Words must be published

The plaintiff must prove that the words of which he complains were ‘published’, that
is, communicated by the defendant to at least one person other than the plaintiff
himself.99 The reason why publication to the plaintiff alone is not actionable is that the

95 See also Libel and Slander Act (Jamaica), s 3; Libel and Defamation Act, Ch 11:16 (Trinidad
and Tobago), s 5; Libel and Defamation Act, Cap 169 (Belize), s 4, which provide a defence
for newspapers and periodicals in respect of libels published without malice and gross
negligence. Similar provisions are in force in Dominica, Cap 7:04, s 3; BVI, Cap 42, s 3;
Antigua, Cap 248, s 3; St Kitts/Nevis, Cap 44, s 3; St Vincent and the Grenadines Cap 89, s 15.
96 The Defamation Act 1996, Cap 199 (Barbados) contains similar provisions in s 16.
97 This sub-section is intended to cover cases of unintentional reference to the plaintiff (as in
Hulton v Jones [1909] 2 KB 444 and Newstead v London Express Newspaper Ltd [1940] 1 KB 377).
98 This sub-section is intended to cover cases of unintentional defamation with regard to know-
ledge of facts which make an apparently innocent statement defamatory (as in Cassidy v Daily
Mirror Newspapers Ltd [1929] 2 KB 331).
99 Lamont v Emmanuel (1966) Court of Appeal, Trinidad and Tobago, No 1 of 1965 (unreported)
[Carilaw TT 1966 CA 14], per Wooding CJ.
242 Commonwealth Caribbean Tort Law

tort of defamation protects a person from injury to his reputation among other people,
and not from injury to his feelings about himself.100
Every repetition of a defamatory statement is a fresh publication and creates a
fresh cause of action.101 Thus, for example, in a libel contained in a newspaper, the
following will be prima facie liable: the writer of the article, the editor, the publisher,
the printer,102 and even a newsagent and street vendor. Nor is it a defence that, in
publishing a defamatory statement, the defendant was merely repeating what some-
one else told him.103 Thus, a newspaper cannot escape liability for libel by prefixing a
defamatory report with words such as ‘It was learnt that . . .’ or ‘It is rumoured that
. . .’. For the purposes of the law of libel, a hearsay statement has the same effect as a
direct statement.
There is no publication if the defamatory words cannot be understood by the
person to whom they are addressed, for example, where the latter is too blind to
read or is illiterate, or is too deaf to hear, or where he does not understand the
language in which words are written or spoken.104 Nor is the defendant responsible
for publication to a person to whom he did not intend to publish and to whom he
could not reasonably have foreseen the words would be published, for example,
where a third party unexpectedly overhears his words, where a father wrongfully
opens a letter addressed to his son, or where a servant opens a letter addressed to
his master (even if the letter is unsealed).105 On the other hand, a correspondent
should expect that, if he sends a defamatory letter to a businessman at his place of
business, the latter’s clerk or secretary might, in the ordinary course of business, open
it and read it (unless marked ‘Private’, ‘Personal’ or ‘Confidential’), and the cor-
respondent will be liable for the publication. If the defamatory words are written on a
postcard or contained in a telegram, there is a rebuttable presumption that they are
published to post office officials and to telegraph operators respectively.106 And it was
held, somewhat surprisingly, in Theaker v Richardson 107 that it is to be expected that a
husband might open an unstamped brown envelope lying on the doormat of the
matrimonial home and looking like a circular, even though it is sealed and addressed
to his wife.
Communication of defamatory matter by a husband to his wife and vice versa is
not ‘publication’, since husband and wife are treated as one person. But the communi-
cation by a third party to one spouse of matter defamatory of the other spouse,108 or
the communication to a third party by one spouse of matter defamatory of the other, is
publication.

100 Op cit, Gatley, fn 41, para 222.

101 Truth (NZ) Ltd v Holloway [1960] 1 WLR 997.
102 See, eg, Mitchell v Fassihi (2004) Court of Appeal, OECS, Civ App No 22 of 2003 (unreported)
[Carilaw GD 2004 CA 16]; Simon v Antigua Sun Ltd (2004) High Court, Antigua and Barbuda,
No 1999/0046 (unreported) [Carilaw AG 2004 HC 47].
103 Lewis v Daily Telegraph Ltd [1964] AC 234, p 260; Myers v Gooding (1989) High Court, Trinidad
and Tobago, No 5825 of 1986 (unreported) [Carilaw TT 1989 HC 116]; Scantlebury v The
Advocate Co Ltd (1997) 33 Barb LR 273 (High Court, Barbados).
104 Op cit, Winfield and Jolowicz, fn 19, p 412; Gransaull v De Gransaull [1922] Trin LR 176, High
Court, Trinidad and Tobago.
105 Huth v Huth [1915] 3 KB 32.
106 See, generally, op cit, Winfield and Jolowicz, fn 19, pp 411, 412.
107 [1962] 1 WLR 151.
108 See Watt v Longsdon [1930] 1 KB 130 (below, p 268).
 Chapter 10: Defamation 243

Repetition

A difficult question is the extent to which the original publisher of a defamatory

statement may be liable for subsequent repetitions of the statement. The basic rule is
that the original publisher is not liable for damage ensuing from any republication of
his statement where the republication is the voluntary act of a third party over whom
he has no control, but he will be liable:
(a) if he authorised or intended the republication (for example, where he spoke at a
press conference109 or made the statement to a newspaper reporter, intending that
his words should be published in the newspaper);110 or
(b) where there was an obligation on the other person to repeat the words111 (for
example, a defamatory statement made to a junior official who had a duty to
repeat it to his superiors); or
(c) where the repetition was, in the circumstances, the natural consequence of the
publication by the original publisher; in other words, where republication was
reasonably foreseeable.112
The question of the liability of the original publisher may arise where a newspaper
publishes a report of a speech made by the defendant in circumstances where
the defendant knew that reporters would be present. Such was the situation in the
Trinidadian case of Gordon v Panday,113 where the defendant, the Prime Minister of
Trinidad and Tobago, made a speech on the occasion of the Indian Arrival Day Cele-
brations, in which he referred to the plaintiff as a ‘pseudo-racist’. Jamadar J held that it
was clear, in the circumstances, that the defendant ‘both impliedly authorised and
intended that his slander of the plaintiff would be published throughout the length
and breadth of Trinidad and Tobago and abroad’, and he was therefore liable for
the republication of his statement in the newspapers and on television. Jamadar J
explained:
On the facts before me, the Prime Minister’s address was delivered with the aid of a
prepared text or notes. His office gave notice of it to TTT and authorized full coverage of
it (without any restrictions). Further, in his defence, the Prime Minister purported to
raise the defence of a reply to an attack, that attack being the plaintiff’s criticism of the
Green Paper on Media Reform in his speech of the 7th May, 1997. In these circum-
stances, it is more than likely that the Prime Minister intended that his ‘reply to the
plaintiff’s attack’ would receive the same or similar coverage that ‘the plaintiff’s attack’
had generated. Moreover, it is clear that the TTT cameras had followed the Prime
Minister around, so he must have known of their presence, and of the TTT microphone
taped onto the podium before him. Further, this was the inaugural celebration of Indian
Arrival Day and the Prime Minister was delivering the feature address. It would have
been unprecedented in a society such as Trinidad and Tobago for such an event and
address not to be covered by all media houses, if not directly, then by the sharing

109 Sims v Wran [1984] 1 NSWLR 317.

110 Duncan and Neill on Defamation, 2nd edn, 1983, London: Butterworths, para 8.15.
111 Ibid.
112 Ibid; Speight v Gosnay (1891) 60 LJ QB 231; Blackman v The Nation Publishing Co Ltd (1997) 55
WIR 43 (High Court, Barbados).
113 (2000) High Court, Trinidad and Tobago, No CV 1443 of 1997 (unreported) [Carilaw TT 2000
HC 133] (upheld by the Privy Council (2005, Privy Council Appeal No 35). For another
example, see McManus v Beckham [2002] 1 WLR 2982 (CA).
244 Commonwealth Caribbean Tort Law

of information (as the plaintiff testified was the practice). In my opinion, the Prime
Minister’s submitted intention to put his defence to the plaintiff’s alleged attack before
the people of Trinidad and Tobago is consistent with the inference that the Prime
Minister was speaking for publication and that he had authorized what he said to be
published in the newspapers and on television.
In this context, against the background of the Green Paper controversy ignited by the
plaintiff a few weeks earlier and still burning throughout the country, the Prime Minis-
ter must have known that to identify and single out the plaintiff and to defame him in
the way he did, would receive the most widespread and extensive coverage, not only in
Trinidad and Tobago but throughout the Caribbean . . . which is exactly what happened.
To adapt the words of Lieff J in Stopforth v Goyer,114 when a Prime Minister makes a
direct charge of racism against a prominent named individual in a public address at
which the media are present, he impliedly if not expressly authorizes republication of
his communication and is thus responsible for any libel.

Innocent dissemination

The law takes a more lenient attitude towards those who are not the authors, printers
or first or main publishers of a libel but who take only a subordinate part in its
dissemination, such as booksellers who sell books containing libellous material,
libraries or museums which exhibit libellous books, or newsvendors who sell libel-
lous newspapers.115 Such disseminators have a defence to an action for libel if they can
show:
(a) that, at the time that they disseminated the newspaper or book, they did not know
that it contained libellous matter; and
(b) that it was not due to any negligence in conducting their business that they did
not discover the libel.116
It is a question of fact in each case as to whether the defendant was negligent or not,
the onus being on the defendant to establish his lack of knowledge of the libel and the
absence of carelessness on his part.117

Liability of internet service providers

An issue which has come to the fore in recent years concerns the extent to which
internet service providers (ISPs), who typically allow subscribers access to mailing
lists, newsgroups, chatrooms, web home pages and email facilities, can be held
responsible for the republishing or repetition of defamatory material created by a
subscriber. It will often be futile for a person who has been defamed on the internet to
contemplate legal proceedings against the original defamer, who may be anonymous,
untraceable, located in a foreign jurisdiction which does not recognise common law
libel principles, or without resources. On the other hand, the ISP is likely to have a
registered place of business and to have sufficiently ‘deep pockets’ to satisfy any
judgment given against it. Thus, ISPs, as ‘gatekeepers to the internet’, may justifiably

114 (1978) 87 DLR (3d) 373, p 385.

115 Defamation Act 1996, Cap 199 (Barbados), s 20 extends the defence of innocent dissemination
to the printer of defamatory matter.
116 Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170.
117 Ibid.
 Chapter 10: Defamation 245

fear being submerged by a flood of libel litigation, unless they can rely on a defence,
such as that of innocent dissemination.
Clearly, unlike in the case of a newspaper or magazine, it would be completely
impracticable for ISP officials to inspect all material transmitted on the internet by the
ISP for potentially defamatory statements; and whereas software filtering technolo-
gies can assist in blocking access to criminal content, such as child pornography, they
would be incapable of identifying merely libellous material. Such case law as there is
on this topic stresses the factor of control. In the US case of Cubby v CompuServe,118 the
defendant ISP was held not liable for defamatory information posted on the internet
by a third party, since the defendant had no opportunity to review the material prior
to publication. The court took the view that the defendant’s position was akin to that
of a newsstand, bookstore or public library, and it would be unduly restrictive of the
free flow of electronic information to impose a higher standard on an ISP.
On the other hand, in another US case, Stratton Oakmont Inc v Prodigy Services,119
the defendant ISP was held liable for defamatory comments posted to a local discus-
sion forum which it hosted, on the ground that the defendant had explicitly marketed
itself as ‘a family-oriented computer network’ which controlled and edited messages
posted on its bulletin boards to prevent the publication of inappropriate messages.
The court in this case took the view that the defendant was not a mere distributor
but rather a publisher of the libels, and was more akin to conventional hard-copy
publishers, or TV or radio broadcasters who have control over what they publish and
a corresponding duty to check for defamatory material.
The consequence of the reasoning in the CompuServe and Prodigy decisions is that
an ISP which takes a laissez-faire approach and refrains from exercising control and
monitoring the content of messages posted on the internet will escape liability for
defamation, while an ISP which conscientiously exercises such control will be penal-
ised in damages. Such a result seems perverse, and hardly likely to improve the legal
environment in which the internet operates.
In the UK, an attempt has been made in the Defamation Act 1996 to protect ISPs
by providing, in s 1(3)(e), that an ‘operator or provider of access to a communications
system by means of which the statement is transmitted, or made available, by a
person over whom he has no effective control’, is not to be considered the publisher of
a defamatory statement;120 and provided he shows that he took reasonable care over
the publication and did not know, and had no reason to believe, that he had caused
publication of a defamatory statement, he will have a defence to liability.121 Section
15(5)(e) of the Defamation Act 1996 (Barbados) contains a similar, but not identically
worded, provision to the effect that ‘the operator of a communication system by
means of which a defamatory statement is transmitted, or made available, by a person
for whose acts the operator is not responsible’ is not to be regarded as primarily
responsible for the publication of a defamatory statement. Significantly, the Barbados
Act differs from the UK Act in that it puts the onus of proof on the plaintiff to show that
the defendant knew or had reason to believe that the statement was defamatory, and

118 766 F Supp 135 (SD NY 1991).

119 1995 NT Misc, 23 Media L Rep 1794.
120 In Blunt v Tilley [2006] EWHC 407 (QB), Eady J took the view that, at common law also, an ISP
that played only a passive role in facilitating internet transactions was not to be treated as a
publisher.
121 See Godfrey v Demon Internet [1999] 4 All ER 343.
246 Commonwealth Caribbean Tort Law

on the defendant to show that he had reasonable grounds for believing the statement
could be justified or otherwise excused.

DEFENCES
In addition to the defences of unintentional defamation and innocent dissemination
already considered, there are four major defences which can be relied upon in actions
for defamation: justification; fair comment; absolute privilege; and qualified privilege.
Each of these must now be considered in turn.

Justification (truth) 122

It is a complete defence to an action for libel or slander that the words complained of
were true in substance. Where a defamatory statement is uttered, the plaintiff does
not have to prove that it is false, for the law presumes this in his favour;123 but if
the defendant can prove its truth, he will defeat the plaintiff’s claim.
Thus, for example, if D states that P is ‘a lunatic’, D will not be liable in defamation
if he can prove that P was confined in a psychiatric hospital, for P cannot recover
damages for injury to a character he is in fact not entitled to bear.
The defendant should not plead justification unless he has good reason to believe
it will succeed, for failure to establish the defence will usually inflate any damages
awarded against him, the court treating it as an aggravation of the original injury.124
The mere fact that the defendant has placed a plea of justification on the record is a
matter which may be taken into consideration in assessing damages, even though the
defendant withdraws the plea at the trial, or abandons it and relies on an alternative
plea of privilege.125
It is sufficient if the defendant proves his statement to be true in substance. If it is
inaccurate only in minor details which do not add to the ‘sting’ of the charge, the
defence will still succeed. Thus, for example, where the defendants published a notice
that the plaintiff had been sentenced to a fine of £1 with three weeks’ imprisonment in
default of payment because he had travelled on a train without the appropriate ticket,
it was held that the defence of justification could succeed on proof that the plaintiff
had been so convicted and fined £1 with two weeks’ imprisonment in default.126 On
the other hand, it was emphasised by Hewlett J in the BVI High Court in Halliday v
Baronville,127 citing a passage from Halsbury’s Laws, that where the defendant imputes
the commission by the plaintiff of a criminal offence, his plea of justification will not
succeed unless he can prove the commission of the offence as strictly as if the plaintiff
were being prosecuted for the offence. This is contrary to the more conventional view
that where a libel imputes the commission of a criminal offence, the defendant needs

122 Defamation Act 1996, Cap 199 (Barbados), s 7 provides that, after the commencement of the
Act, the defence is to ‘be known as the defence of truth’.
123 Op cit, Winfield and Jolowicz, fn 19, p 416.
124 Small v The Gleaner Co Ltd (1979) Supreme Court, Jamaica, No CL S-188 of 1976 (unreported)
[Carilaw JM 1979 SC 31].
125 Smart v Trinidad Mirror Newspaper Ltd (1968) High Court, Trinidad and Tobago, No 875 of
1965 (unreported) [Carilaw TT 1968 HC 7].
126 Alexander v North Eastern Rly Co (1865) 122 ER 1221. See also Edwards v Bell (1824) 130 ER 162.
127 (1977) 2 OECSLR 138.
 Chapter 10: Defamation 247

only to establish the commission of the offence charged on a balance of probabilities,

though the more serious the allegation, the more cogent will be the evidence required
to prove it.128
At common law, every material charge must be justified. Thus, if the defendant
makes four distinct defamatory allegations against the plaintiff and succeeds in prov-
ing the truth of only three of them, the defence will fail altogether.129 But this rule has
been modified by s 7 of the Defamation Act (Jamaica),130 s 7 of the Defamation Act,
Cap 6:03 (Guyana) and s 12 of the Libel and Slander Act, Cap 171 (Grenada), which
are modelled on s 5 of the Defamation Act 1952 (UK). These sections131 provide that:
In an action for libel or slander in respect of words containing two or more distinct
charges against the plaintiff, a defence of justification shall not fail by reason only that
the truth of every charge is not proved if the words not proved to be true do not
materially injure the plaintiff’s reputation having regard to the truth of the remaining
charges.
Thus, if, for example, the defendant alleges: (a) that the plaintiff stole certain property;
and (b) that he received other property, knowing it to have been stolen, the defendant
may succeed in a plea of justification if he can prove that the first allegation is true,132
even though he cannot prove the truth of the second, since the second charge does not
materially injure the plaintiff’s reputation in view of the truth of the first.
Where the defendant repeats a defamatory statement originally made by someone
else, he must prove that the statement was true, not merely that it was made,133 and ‘if
you repeat a rumour, you cannot say it is true by proving that the rumour in fact
existed; you have to prove that the subject matter of the rumour is true’.134 Thus, for
example, if the defendant says to Z, ‘X tells me that Y has stolen his (X’s) bicycle’, he
will have a defence to an action by Y only if he can prove that Y did steal the bicycle; it
is not sufficient for him to prove simply that X made the accusation against Y. Simi-
larly, if the defendant states that there is a suspicion that the plaintiff has murdered X,
he must prove that the plaintiff did murder X, not merely that he was suspected of it.
This principle has been applied where a newspaper has reported defamatory alle-
gations contained in pleadings in pending litigation. Where a newspaper reports that,
for example, a claim has been issued against X for negligence, or that an indictment
has been laid against Y for forgery, the newspaper may rely on justification since such
a statement ‘may be capable of conveying no more than the fact that the relevant
proceedings have in fact been launched’,135 and there is no element of ‘hearsay’ in

128 Hornal v Neuberger Products Ltd [1957] 1 QB 247; Blackman v The Nation Publishing Co Ltd (1997)
55 WIR 43.
129 Though these circumstances would be relevant in assessing damages: Brazier, M, Street on
Torts, 9th edn, 1993, London: Butterworths, p 443.
130 The defence failed in Bonnick v Morris (1998) Supreme Court, Jamaica, No B 142 of 1992
(unreported) [Carilaw JM 1998 SC 2]. See also The Gleaner Co Ltd v Wright, below.
131 Defamation Act 1996, Cap 199 (Barbados), s 7(2) is differently worded, though of similar
effect.
132 Hornal v Neuberger Products Ltd [1957] 1 QB 247; Blackman v The Nation Publishing Co Ltd (1997)
55 WIR 43 (High Court, Barbados) per Payne J. See also The Gleaner Co Ltd v Wright (1979) 16
JLR 352.
133 Hornal v Neuberger Products Ltd [1957] 1 QB 247, p 258; Emanuel v Lawrence (1999) High Court,
Dominica, No 448 of 1995 (unreported) [Carilaw DM 1999 HC 3]; Brewster v Bridgemohan and
Trinidad Publishing Co Ltd (1999) High Court, Trinidad and Tobago, No 1222 of 1999
(unreported) [Carilaw TT 1999 HC 96].
134 Cookson v Harewood [1932] 2 KB 478, p 485, per Greer LJ.
135 Stern v Piper [1996] 3 All ER 385, p 394, per Hirst LJ.
248 Commonwealth Caribbean Tort Law

such a report. However, it seems that a newspaper would not be entitled to the defence
if it reported the specific allegations contained in a statement of claim or other pleading,
as this would involve ‘hearsay’ and amount to a repetition of a defamatory allegation;136
in order to rely on the defence, the newspaper would have to prove the truth of the
allegations. Moreover, it has been established that the defence of qualified privilege
protects only reports of proceedings taking place in open court and not pleadings,
affidavits and other documents served before the matter comes on for trial.137
In the Trinidadian case of Brewster v Bridgemohan and Trinidad Publishing Co Ltd,138
a newspaper article reported that a bank clerk (Z) had sued a nursing home and one
of its doctors (the plaintiff) for medical negligence, and it repeated the particulars
of negligence contained in Z’s statement of claim. These particulars alleged, inter
alia, that Z had received ‘inexpert, unskilful and unprofessional’ treatment from the
plaintiff. Mendonca J held that the newspaper could not rely on qualified privilege or
justification. He said:
The articles referred not only to the writ but also to allegations made in the statement of
claim filed in the action by Miss [Z]. Privilege, however, only protects reports of pro-
ceedings taking place in open court . . . [and, with respect to the defence of justification]
it would . . . be totally unsatisfactory if a publication of a defamatory statement said to
be made by someone or appearing in a document on an occasion which is not privileged
can be justified simply by pleading and proving that the statements were in fact made
by someone or that they in fact appear in the document . . . The articles are sought to be
justified not only on the basis that a writ was issued against the plaintiff but also on the
basis of a statement of claim having been filed in the action in which are contained
the allegations and statements published in the articles.

Fair comment
It is a defence to an action for libel or slander that the statement complained of was
fair comment on a matter of public interest.139 It is important to preserve the funda-
mental right to freedom of expression, and the defence is available to all who comment
‘fairly’ (within the legal definition) on all matters which may be said to be the legitim-
ate concern of the public. Although the defence is particularly useful to publishers of
newspapers, it is not the exclusive preserve of the press.140

Requirements for the defence

The matter commented on must be one of public interest
Such matters include, inter alia:
• the affairs of government, both national and local;141

136 Ibid.
137 Ibid.
138 (1999) High Court, Trinidad and Tobago, No 1222 of 1999 (unreported) [Carilaw TT 1999
HC 96].
139 Defamation Act 1996, Cap 199 (Barbados), s 8 renames the defence ‘comment’.
140 Singh v The Evening Post (1976) High Court, Guyana, No 2754 of 1973 (unreported) [Carilaw
GY 1976 HC 16], per Bollers CJ.
141 Op cit, Gatley, fn 41, paras 12.30, 12.31; Osadebay v Solomon (1983) Supreme Court, The
Bahamas, No 803 of 1979 (unreported); Barrow v Caribbean Publishing Co Ltd (1971) 17 WIR 182
(High Court, Barbados) (below, pp 254–56).
 Chapter 10: Defamation 249

• the administration of justice;142

• the management and affairs of public institutions, such as hospitals, prisons,
schools and universities;143
• the public conduct of those who hold or seek public office or positions of public
trust;144
• church matters;145
• the conduct of private businesses which affect the community at large;146
• published books and other literary matter, and public theatrical, artistic or musical
performances;147
• anything which may fairly be said to invite comment or challenge public
attention.148

The statement must be a comment or opinion and not an

assertion of fact

It is essential to the defence of fair comment that the defamatory matter must
appear on its face to be a comment or opinion and not a statement of fact.149 If it is the
latter, then the defence will not be available and the defendant will have to rely on
justification.

The comment must be based upon true facts

A comment or opinion is not protected if it is based upon untruths, for ‘you cannot
invent untrue facts about a man and then comment on them’.150

The comment must be ‘honestly’ made

‘Honest’ here means ‘genuinely held’. Provided that the defendant expresses his
genuine opinion on the subject matter, he will have a defence, notwithstanding
that his opinion may have been biased, prejudiced, exaggerated or irrational. But the
defendant is not entitled to cast defamatory aspersions on the personal character of

142 Op cit, Gatley, fn 41, para 12.34; Singh v The Evening Post (1976) High Court, Guyana, No 2754
of 1973 (unreported) [Carilaw GY 1976 HC 16].
143 Op cit, Gatley, fn 41, para 12.32; Soltysik v Julien (1955) 19 Trin LR (Pt III) 623 (West Indian
Court of Appeal) (below, pp 258–60).
144 Op cit, Gatley, fn 41, para 12.29.
145 Op cit, Gatley, fn 41, para 12.33.
146 Op cit, Gatley, fn 41, para 12.32; British Guiana Rice Marketing Board v Peter Taylor and Co Ltd
(1967) 11 WIR 208 (below, pp 256–58).
147 Op cit, Gatley, fn 41, para 12.35; Clapham v Daily Chronicle, (below, pp 250–52); Bourne v The
Advocate Co Ltd (1994) High Court, Barbados, No 715 of 1991 (unreported) [Carilaw BB 1994
HC 4].
148 Op cit, Gatley, fn 41, para 12.41.
149 See British Guiana Rice Marketing Board v Peter Taylor and Co Ltd (1967) 11 WIR 208 (below, pp
256–58); Forde v Shah (1990) 1 TTLR 73 (below, pp 261–63).
150 Op cit, Winfield and Jolowicz, fn 19, p 424; Soltysik v Julien (1955) 19 Trin LR (Pt III) 623 (below,
pp 258–60); Singh v The Evening Post (1976) High Court, Guyana, No 2754 of 1973
(unreported) [Carilaw GY 1976 HC 16].
250 Commonwealth Caribbean Tort Law

the plaintiff, or to ascribe to him base, dishonest or corrupt motives.151 If he does so, he
steps outside the boundaries of the defence.152

The comment must not be actuated by malice

The word ‘malice’ is used here in the sense of ‘a corrupt or wrong motive, or making
use of the occasion for some indirect purpose’. The plaintiff has the onus of proving
malice on the defendant’s part.
Fair comment is very frequently pleaded in the courts in the Commonwealth
Caribbean, but rarely succeeds. One case in which the defence was successfully relied
on is Clapham v Daily Chronicle.153 In this case, the plaintiff (a composer, performer and
teacher of music) took part in a public performance at a theatre, in which he played
a number of solo piano pieces by well-known composers. The defendant newspaper
published a review of the recital, written by one of its reporters, in the following
terms:
LONDON PIANIST DISAPPOINTS CANJE AUDIENCE
I saw people sulk; I heard others speak in disappointing terms. Some even complained
to me after Ruthland Clapham’s piano recital at the Canje last Saturday night. ‘It is an
insult to our intelligence’, one minister told me. It did not take a musical genius to detect
the mistakes made during Beethoven’s Minuet and Rachmaninoff’s Prelude in C sharp
minor. Among some of this town’s leading musicians who attended and showed visible
signs of disappointment were Mrs Ruby McGregor, the Rev NS Shellock, Mr Sammy
Nicholas and Mrs Kunkle.

The plaintiff brought an action against the defendant newspaper and its reporter
for libel. The defendants pleaded fair comment. Verity CJ held that the words used
were defamatory of the plaintiff, but the defence of fair comment succeeded. He
explained:154
The words which refer to the disappointment of the audience, if they stood alone, I
might be prepared to hold are incapable of bearing and do not in fact bear a defamatory
meaning, for mere disappointment may result from many causes entirely independent
of the skill or competence of the performer. When, however, the writer proceeds to
publish the statement, ‘It was an insult to our intelligence’, even though this comment is
not his own, and that ‘it did not take a musical genius to detect the mistakes the
performer made’, then indeed I am unable to hold otherwise than that the words are not
only capable of bearing a defamatory meaning but are in fact defamatory of the plaintiff
in the way of his profession as a musical performer.
It remains to be seen whether the plea [that ‘in so far as the words consist of allegations
of fact they are true in substance and in fact; and in so far as they consist of expressions
of opinion they are fair comments made in good faith and without malice upon the said
facts which are matters of public interest’] is open to the defendants, and if so, whether
it has been established by the evidence . . .
I experience little difficulty in distinguishing those parts of the account which appear to
me to be statements of fact and those which appear to be in the nature of comment

151 Defamation Act 1996, Cap 199 (Barbados), s 8(3) provides that the defence shall no longer be
affected by the fact that base or sordid motives have been attributed to the plaintiff.
152 Barrow v Caribbean Publishing Co Ltd (1971) 17 WIR 182 (below, pp 254–56).
153 [1944] LRBG 71 (Supreme Court, British Guiana).
154 Ibid, p 72.
 Chapter 10: Defamation 251

thereon. It is tolerably clear, I think, that, when the writer states that the plaintiff made
mistakes in the playing of certain pieces of music and when he states that certain
members of the audience, including some of the town’s leading musicians, displayed
disappointment either by voice or demeanour, he is stating facts. When, on the other
hand, he concludes that the plaintiff disappointed the audience as a whole or that
the performance was an insult to the intelligence of the audience, or that the mistakes
could be detected even by one who was not a musical genius, then he is expressing an
opinion by way of comment on those facts. He must, therefore, establish that the facts
are truly reported, for only truth can be the basis of fair comment, and he must further
establish that the opinions he expressed in regard to the facts are fair and honest
comment . . .
The first issue of fact is whether or not the plaintiff made mistakes in the playing of
certain pieces of music. He most emphatically denies this and gives reasons for his
denial: that the first named piece is simple and one which he has played many times;
and that, in the second piece, that part in which it is suggested that he made mistakes is
of such a nature that the player, if playing from memory, would completely break down
if he made a mistake. It appears from all the evidence that the two pieces are very well
known and that they especially attracted the notice of those who gave evidence for the
defendants because they were so familiar to them. All save two of these witnesses aver
that the plaintiff made mistakes in playing these two pieces. Of the exceptions, one
would not say that he could detect mistakes but, having heard the second piece played
by its composer, he did not find that the plaintiff’s performance appealed to him, and
indeed, considered it to be an insult to his intelligence. The other expresses himself as
greatly disappointed; his disappointment passing from disgust to amusement . . .
Taking all the evidence into consideration, I can reach no other conclusion but that the
plaintiff, as a fact, on that occasion, did make mistakes in the playing of these two pieces
of music and that these mistakes were observed by members of the audience who were
not trained musicians. The defendants have therefore established the substantial truth
of the first statement of fact contained in the article.
I am also satisfied on the evidence as a whole that certain members of the audience
showed such visible signs of disappointment as those indicated by the writer of the
article. It would indeed be strange if those whose feelings of disappointment amounted
to disgust showed no such signs, and if, as witnesses aver, a measure of the applause
was derisive; this in itself would be an expression of, at least, lack of appreciation on
the part of others besides those who actually gave evidence as to their emotions. The
defendants have therefore established the truth of the second statement of fact con-
tained in the article. The question then arises whether the opinions expressed in the
report are to be considered fair and honest comment on these facts so stated.
In the first place, the report comments that the plaintiff disappointed the audience. Is
this a fair comment upon the facts? Including the writer, who was himself a member of
the audience, several witnesses have stated their disappointment and there is no doubt
that members of the audience displayed this in a manner apparent to the observer. In
the absence of any evidence which would go to show that these persons constituted but
a small proportion of the audience or that a large proportion of the audience dissented
from this view, I do not think it an unfair comment that the audience was disappointed.
If, as the plaintiff and his witness Miss De Rushe aver, the audience as a whole were so
pleased that their applause might truthfully be described as ‘thunderous’ or their reac-
tions ‘sensational’, then indeed the comment based upon the statement that a limited
number only were disappointed could hardly be called fair and would not be honest.
There is, however, no support for these statements. Out of the whole of the audience,
but one person is called as a witness who is able to express appreciation, and that
person is a brother-in-law of one of the performers. In these circumstances, I cannot say
that the comment is unfair.
In regard to the statement that the mistakes made were such that they could be detected
252 Commonwealth Caribbean Tort Law

by a person who was not a musical genius, this would appear to be a fair comment in
the circumstances, for, while there may be but little merit in the use of the phrase
‘musical genius’ in this connection, it is apparent that the mistakes were observable by
others besides those who have some musical training.
The weightiest part of the comment is to be found in the opinion expressed that the
performance was an insult to the intelligence of the audience, and it remains to be
seen whether or not this falls within the limits of fair comment. Exaggeration, even
gross exaggeration, in the expression of one’s views does not necessarily destroy
the protection afforded those who are at liberty to criticise the public acts of another,
although this may be so where comment ‘passes out of the domain of criticism itself’,
to use the words of Collins MR in McQuire v Western Morning News.155 Can it be
said that the phrase now under consideration does this, or that the whole article does
so? It is true that to describe the plaintiff’s performance as an ‘insult to the intelligence’
of the audience is to use strong and perhaps exaggerated language, but on the facts as
truly stated in the article can it be said to go beyond the limits of honest comment?
There can be but little doubt that one who may truly be described as a ‘London pianist’
and is to be credited, therefore, with skill perhaps above the average, shows little
respect for the musical appreciation of a country or provincial audience if he plays well
known pieces of music in such a manner that mistakes are obvious to comparatively
untrained listeners. Comment expressed in such terms would, I think, be well within
the limits of fair comment, and I am further of the opinion that a mere exaggeration
of such a comment – and that is all the defendants have published – would not go
beyond them.
Taking the article complained of either piece by piece or as a whole, I find that the plea
of fair comment has been established and there is nothing in the evidence to lead me to
the conclusion that the defendants or any of them were actuated by malice or any
indirect or improper motive.
There is no doubt – indeed, it was not contested – that the matter is one of public
interest, and with that finding the defendants’ plea is completely established and the
plaintiff fails in his claim.
I should wish to add that, while the report truly states certain facts, fairly if strongly
comments thereon, and is therefore not actionable, it does not perhaps do complete
justice to the performance it purports to describe nor to the ability of the plaintiff to
which his past record and the testimony of more than one witness pay tribute. Had the
writer been more charitably disposed, or had he sought to produce a more well bal-
anced criticism of the concert as a whole, he might well have given praise where praise
was due as generously as he lavished adverse comment. I am yet to learn, however, that
a newspaper report is actionable because it does not preserve due balance in its terms or
that a person who sets out to criticise adversely the public acts of another is to be liable
in damages if he does not at the same time catalogue that other’s virtues or good deeds.
Those who seek the opinion of the public in the course of their profession and in the
service of their own interests expose themselves to public criticism, and if they fail to
serve that end, must not complain.

Political comment

The right of the press to comment on the political affairs of the day is a fundamental
right in a democratic society, and ‘fair comment’ may be an appropriate defence in a
libel action brought by a politician who complains of a defamatory article contained

155 [1903] 2 KB 100, p 109.

 Chapter 10: Defamation 253

in a newspaper. In Osadebay v Solomon,156 Da Costa CJ pointed out that this is an

important area of the law, because:
. . . we are here concerned with the exercise of one of the fundamental freedoms – free-
dom of expression – which is now enshrined in Art 23 of the Constitution of the
Commonwealth of The Bahamas. It embraces the right to discuss and criticise the utter-
ances and conduct of men in public life. But, as the definition in Art 23 shows, freedom
of expression, like other fundamental freedoms, is not an unfettered right and must be
exercised according to law. As Diplock J said in his summing-up to a jury in Silkin v
Beaverbrook Newspapers Ltd:157
Freedom of speech, like the other fundamental freedoms, is freedom under the
law, and over the years the law has maintained a balance between, on the one
hand, the right of the individual . . . whether he is in public life or not, to his
unsullied reputation if he deserves it, and on the other hand, but equally
important, the right of the public, which means you and me, and the newspaper
editor and the man who, but for the present bus strike, would be on the Clap-
ham omnibus, to express their views honestly and fearlessly on matters of
public interest, even though that involves strong criticism of the conduct of
public people.

It is important to be aware that the principle of freedom of speech does not confer a
licence to make unfounded attacks upon the integrity and moral character of indi-
viduals, whether political personalities or not. In Craig v Miller,158 a particularly slan-
derous attack on a government minister was made by a speaker at a public meeting in
the course of an electioneering campaign in Barbados. Williams CJ stated:
It is said that the plaintiff was a public figure and that men and women in public life
must expect criticism which in their case is apt to have less impact than criticism of
others. It is also said that the statements were uttered at a political meeting which was
part of the political campaign and held three months before the general election. In such
circumstances there is a charged atmosphere and things are said which would not be
said in normal times.
There are imputations of criminal activity, and I know of no law which places public
figures in a worse position than other members of the public for protecting their reputa-
tions against charges of serious breaches of the criminal law, nor do I know of any
provision which abrogates the rule of law during the conduct of political campaigns.

In France v Simmonds,159 the defendant was the editor of a newspaper supportive of the
opposition party, in which appeared an article boldly captioned, ‘Simmonds you
better talk fast. Where’s the one and a half million gone?’ The article alleged that the
plaintiff, the Prime Minister of St Kitts and Nevis, had ‘given away’ to a party activist
a ferry boat purchased on behalf of the government, which was described as ‘a rip-off
business’. The Court of Appeal of the OECS, upholding the decision of the trial judge,
held the article to be clearly defamatory of the plaintiff and unprotected by the
defence of fair comment. Robotham CJ said:
In fulfilling this role in opposition, which role may be achieved not only by the making
of political speeches, but by reporting to the media, robust and intemperate language in
dealing with their political adversaries may be used. However, there are limitations. An

156 (1983) Supreme Court, The Bahamas, No 803 of 1979 (unreported).

157 [1958] 2 All ER 516, p 517.
158 (1987) High Court, Barbados, No 317 of 1986 (unreported) [Carilaw BB 1987 HC 41].
159 (1986) Court of Appeal, Eastern Caribbean States, Civ App No 2 of 1985 (unreported).
254 Commonwealth Caribbean Tort Law

editor or writer has only the general right which belongs to the public to comment upon
public matters . . . It often proves a difficult and hazardous task to draw the line, but if
the language, robust though it may be, goes beyond the limits of fair criticism, the law of
defamation takes over. It becomes even more difficult to justify if it descends into
personalities, and the use of derogatory terms or expressions.

The defence of fair comment also failed in the earlier case of Barrow v Caribbean
Publishing Co Ltd.160 With respect, however, this latter decision seems questionable, in
that the comments complained of would appear to have been more in the nature of
robust political argument at a time of heightened political consciousness, rather than
personal invective directed at the Prime Minister as an individual. The case perhaps
shows how fine the dividing line between comment and invective may be in the
minds of some judges. In this case, the defendant’s newspaper contained an article
entitled ‘The White Lie’, which was a commentary upon a government White Paper
on The Federal Negotiations, 1962–65, and Constitutional Proposals for Barbados. The
article was highly critical of the approach of the Barbados Government and, in
particular, of the Prime Minister, Errol Barrow, towards the negotiations. The Prime
Minister brought an action, complaining that the article was defamatory of him, in
that it asserted that he was not entitled to any reputation for honesty and integrity.
The defendant pleaded fair comment on a matter of public interest.
Douglas CJ held that, by using the words ‘truth and honesty are irrelevant con-
siderations, if considerations at all’ in relation to the plaintiff, the writer had stepped
outside the bounds of fair comment, as these words constituted an attack on the
personal character of the plaintiff. Douglas CJ said:161
Matters of far reaching importance are raised in these proceedings in which the plain-
tiff seeks damages for alleged defamation occasioned by the publication on 15 August
1965, of an article entitled ‘The White Lie’, appearing in the Barbados Sunday News. The
first defendants are the publishers and the second defendant the editor of the said
newspaper . . .
On the face of it, the article complained of is a critique of the White Paper and an
expression of opinion on what it contains. There can be no doubt that the White Paper,
dealing as it does with constitutional proposals for Barbados, is a matter of public
interest.
The only issues are whether the article was actuated by malice and whether it constitutes
fair comment in the sense of being honest comment on a matter of public interest.
On the first question, there is no evidence of personal animosity or aversion between the
writer of the article, Mr Nigel Barrow, and the plaintiff, or between the second defend-
ant and the plaintiff. In that state of the evidence, counsel asks the court to infer malice
from the language of the article itself. From the evidence, it is clear that there was at the
time great political ferment about the constitutional future of the Island. Public meet-
ings were being held and an atmosphere of controversy and acrimony prevailed. The
plaintiff himself rejected federation as a solution and characterised the contrivance of
federal constitutions as ‘an inevitable act of final absolution performed by departing
British officialdom’ (see para 77 of the White Paper), and in his evidence speaks of
people who ‘would have opposed independence even if they had been slaves’ and of ‘a
contrived issue by a bunch of criminals who were going on the platform of the under
40s’. Throughout the documentary and oral evidence, the plaintiff uses robust and
sometimes intemperate language in dealing with his political adversaries; it is not

160 (1971) 17 WIR 182 (High Court, Barbados).

161 Ibid, pp 183, 189.
 Chapter 10: Defamation 255

surprising that journalists, in commenting on the political scene in mid-1965, should

make use of equally robust and forceful language. The onus of proving malice is on the
plaintiff and I cannot say on the material before me that he has discharged that burden
because, although the language of the article is harsh and biting, it is the language of
political controversy as such controversy was conducted in the context of events which
took place in Barbados in 1965.
On the second question, the principles underlying the law of fair comment were laid
down as long ago as 1863 by Cockburn CJ in Campbell v Spottiswoode:162
I think the fair position in which the law may be settled is this; that where the
public conduct of a public man is open to animadversion and the writer who is
commenting upon it makes imputations on his motives which arise fairly and
legitimately out of his conduct so that a jury shall say that the criticism was not
only honest, but also well founded, an action is not maintained.
These principles have been restated in many cases, and well expressed by Diplock J
in Silkin v Beaverbrook Newspapers Ltd:163
Freedom of speech, like the other fundamental freedoms, is freedom under the
law, and over the years the law has maintained a balance between, on the one
hand, the right of the individual . . . whether he is in public life or not, to his
unsullied reputation if he deserves it, and on the other hand, but equally
important, the right of the public . . . to express their views honestly and fear-
lessly on matters of public interest, even though that involves strong criticism of
the conduct of public people.
In the Silkin case, the allegation was that the words published by the defendants’ news-
paper were defamatory, and that they meant that the plaintiff was an insincere and
hypocritical person who was prepared to sacrifice his principles for selfish reasons of
personal profit, and that he was unfit to participate in the debate in the House of Lords.
The jury was directed that any person is entitled to say, by way of comment on a matter
of public interest, what he honestly thinks, however exaggerated, obstinate or preju-
diced that may be, and that such comment is fair and sustainable as a defence to a libel
action, unless it is so strong that no fair minded person could have made it honestly. As
Cockburn CJ observed in Wason v Walter:164
. . . though public men may often have to smart under the keen sense of wrong
inflicted by hostile criticism, the nation profits by public opinion being thus
freely brought to bear on the discharge of public duties.
In Slim v Daily Telegraph Ltd,165 Lord Denning MR observed that the comments com-
plained of were capable of different interpretations: one person might read into them
imputations of dishonesty, insincerity and hypocrisy; while another person might take
them to mean inconsistency and want of candour. He pointed out that the cardinal test
is the honesty of the writer, or, as Lord Porter put it in Turner v Metro-Goldwyn-Mayer
Pictures Ltd:166
. . . the question is not whether the comment is justified in the eyes of judge or
jury, but whether it is the honest expression of the commentator’s real view and
not merely abuse or invective under the guise of criticism.
My own view is that there is a clear distinction between criticism of a document and an
attack on the personal character of its author. I suppose it can be argued that it is
impossible to criticise a book without at the same time appearing to criticise the author.

162 (1863) 122 ER 288, p 291.

163 [1958] 2 All ER 516, p 517.
164 [1861–73] All ER Rep 105, p 113.
165 [1968] 1 All ER 497.
166 [1950] 1 All ER 449, p 461.
256 Commonwealth Caribbean Tort Law

To say that a document is badly written or illogical is to suggest that the author is
unskilful or lacking in judgment. But that does not amount to an attack on his personal
character of the quality of which the decided cases speak. To constitute such an attack,
the writer must go beyond fair comment and make imputations against the author as a
person as distinct from his character as an author.
The onus of showing that the article is a fair comment on the White Paper, in the sense
of expressing views honestly held for which there is some foundation, rests on the
defence. In deciding whether this onus has been discharged, weight must be given to
the fact that the article dealt with a matter of the greatest public importance; that it was
the duty of the press to submit the White Paper proposals to the most careful scrutiny;
and that there were certain inaccurate and misleading statements in a document which
is part of the recorded history of this country.
Learned counsel for the plaintiff submits that the whole object of the article was that it
should be used as a veil for personal reference to the plaintiff and as a cloak for abuse.
In putting forward his case on this basis, he has set out a large number of complaints in
regard to specific portions of the article which he claims to be defamatory. To the extent
that he complains about so many portions of the article which are obviously proper
comment on a matter of public interest – for example, he complains about the state-
ment, ‘paras 111–13 are too obviously untrue, $500,000 will become $5,000,000. Ask
Trinidad or Jamaica . . .’ – then these facets of his case are misconceived. On the whole,
in my view, the article is severe but honestly held comment on a public document. It is
only in the words complained of in sub-para (ix) of para 6 of the statement of claim,
namely, ‘Truth and honesty are irrelevant considerations, if considerations at all’, that
the writer has gone too far and crossed the line between fair comment and personal
invective. These words are a serious imputation against the author of the White Paper,
taxing him in effect with cynical irresponsibility and conduct reprehensible in a man of
his position. Up to that point, the writer was criticising the contents of the White Paper,
but he allowed himself to be carried away into attacking the personal character of the
author.
In London Artists Ltd v Littler,167 the defendant published a letter suggesting that the
plaintiffs had taken part in what appeared to be a plot to force the end of the run of a
successful play. It was held in the Court of Appeal that, although the comment was on
a matter of public interest, the defendant having alleged a plot which he failed to
substantiate, the defence of fair comment failed. In the event, the plaintiffs were held
to be entitled to the modest sums awarded them by way of damages.
In the circumstances of the instant case, the plaintiff is entitled, in my judgment, to
damages against the defendants jointly and severally which I fix at the sum of $2,400.

Statements of fact not protected

In Commonwealth Caribbean cases (exemplified by British Guiana Rice Marketing

Board v Peter Taylor and Co Ltd), the defence of fair comment most often fails because
what the defendant alleges to be comment is, in reality, a series of statements of fact.
Such statements of fact are unprotected by the defence of fair comment. The only
defence available to a defendant in such a case would be justification, in which he is
required to prove the truth of the statements (see above, pp. 246–48).
An example of failure of the fair comment defence is British Guiana Rice Marketing
Board v Peter Taylor and Co Ltd,168 where two farmers, H and K, told the defendants, the

167 [1969] 2 All ER 193.

168 (1967) 11 WIR 208 (High Court, Guyana).
 Chapter 10: Defamation 257

publishers of The Evening Post newspaper, that they could not get payment for rice
which they had sold to the plaintiff corporation (the RMB). They showed two cheques
drawn by the RMB, both of which had been referred by the RMB’s bankers, marked
‘present later’ and ‘refer to drawer’. Other farmers had also reported to the defend-
ants that they had not been able to obtain payment from the RMB for rice sold, and
they expressed a wish that their grievances should be made public by being reported
in the press. The defendants attempted to obtain the comments of the General Man-
ager of the RMB to verify the farmers’ story, but he declined to comment. Later, the
defendants’ reporter, who had been detailed to investigate the farmers’ complaints,
wrote an article in the newspaper in the following terms:
RMB CHEQUES BOUNCE
Farmers plan mass protest tomorrow
The local banks have served notice on the BG Rice Marketing Board that they can no
longer cash its cheques until its financial position improves, the Evening Post was told
this morning.
As a result, many cheques from the Board have bounced, and farmers who have
travelled many miles to the city have had to return home empty handed.
The reason given for the banks’ refusal, the Evening Post understands, is that ‘RMB
deposits with the bank are virtually exhausted’.
While it was not stated when the banks began refusing the cheques, it is known that a
large number of cheques issued to farmers by the Board in payment for their rice have
been rejected by the banks over the past week.
PROTEST
And this morning, some disappointed farmers went to the Board to protest against
what they called ‘an unsatisfactory state of affairs’.
They blamed the management of the Board ‘for creating this uncertain position’ and
demanded that immediate steps be taken to remedy the situation.
Some of the farmers complain that they have been told for several weeks now that the
cheques are being processed and that they would receive their money soon.
But, as nothing is being done, the farmers feel that they are being pushed around and
claim that other farmers have actually been told that the Board has no money and that
they will have to wait for their payment when the situation improves.
OVERDRAFT
This is not the first occasion on which the banks have had to refuse cashing cheques
from the Board. Eight months ago, it is understood, similar action had to be taken.
The current overdraft at the banks is said to be in the vicinity of $6 million.
Mr Jack Ali, General Manager of the Board, this morning refused to discuss the matter
when he was asked about it by an Evening Post reporter.
Meanwhile, a delegation of farmers from all the rice producing areas in the country is
to protest at the Board about the continued failure to collect money.
Bollers CJ held that:
(a) a corporation can maintain an action for a libel reflecting on the management of its
trade or business and injuriously affecting the corporation as distinct from the
individuals composing it;169

169 Following South Hetton Coal Co v North Eastern News Association Ltd [1891–94] All ER Rep 548,
p 552, per Lopes LJ. See also Trinidad and Tobago National Petroleum Co v Trinidad Express
Newspapers Ltd (2002) High Court, Trinidad and Tobago, No S-862 of 1999 (unreported)
[Carilaw TT 2002 HC 37]; Pan Trinbago Inc v Maharaj (2002) High Court, Trinidad and Tobago,
No 1071 of 1995 (unreported) [Carilaw TT 2002 HC 173].
258 Commonwealth Caribbean Tort Law

(b) it is defamatory to state that a cheque has been dishonoured, for such an
allegation implies insolvency, dishonesty or bad faith in the drawer of the
cheque; and
(c) the defence of fair comment could not succeed in this case because the entire
article complained of consisted of a series of statements of fact and not comment.

Comment must be based on true facts

Defamatory comment will not be protected unless it is based on facts proved to be

true. In Osadebay v Solomon,170 Da Costa CJ explained the position:
The comment must be an expression of an opinion and not an assertion of fact, and
the critic should always be at pains to keep his facts and his comments upon them
severable from one another. For if it is not reasonably clear that the matter purported to
be fair comment is such, he cannot plead fair comment as a defence. The facts them-
selves must be truly stated, as Fletcher Moulton LJ observed in Hunt v Star Newspaper
Co Ltd:171
In the next place, in order to give room for the plea of fair comment, the facts
must be truly stated. If the facts upon which the comment purports to be made
do not exist, the foundation of the plea fails. This has been so frequently laid
down authoritatively that I do not need to dwell further upon it: see, for
instance, the direction given by Kennedy J to the jury in Joynt v Cycle Trade
Publishing Co,172 which has been frequently approved of by the courts. Finally,
comment must not convey imputations of an evil sort except so far as the facts
truly stated warrant the imputation.

It is not, however, necessary that all the facts upon which comment is based should
themselves be stated in the alleged libel. To paraphrase what Lord Porter said in
Kemsley v Foot:173 the question is whether there is a sufficient substratum of fact stated
or indicated in the words which are the subject matter of the action, and whether the
facts or subject matter on which comment is made are indicated with sufficient clarity
to justify comment being made. The substratum of facts or subject matter may be
indicated impliedly in the circumstances of the publication.
An example of failure of the defence, on the ground that the comment was not
based on true facts, is Soltysik v Julien.174 Here the appellant was the Surgeon Specialist
at the Colony Hospital, under contract with the Government of Grenada. He per-
formed an appendicitis operation on WJ, the son of the respondent. On WJ’s discharge
from the hospital, the appellant handed him a bill for consultation. The bill was not
paid. Some nine months later, the appellant saw WJ in the street and reminded him
that he owed the appellant a consultation fee, which WJ denied. The appellant then
said, ‘I see you did not want to pay, but next time you will see you will have to pay’.
On being told of this incident, the respondent, who was at that time a member of the
Legislative Council, wrote a letter to the appellant, copied to the Administrator and to
the Governor, in the following terms:

170 (1983) Supreme Court, The Bahamas, No 803 of 1979 (unreported), cited with approval by
Summerfield CJ in Bodden v Bush [1986] CILR 100, p 110.
171 [1908–10] All ER Rep 513, p 517.
172 [1904] 2 KB 292, p 294.
173 [1952] 1 All ER 501, p 506.
174 (1955) 19 Trin LR (Pt III) 623 (West Indian Court of Appeal).
 Chapter 10: Defamation 259

Dear Sir,
You are claiming that my son Wilfred Julien owes you $30 for ‘consultation fee’ when in
fact you never had a consultation prior to his operation for appendicitis.
This afternoon you met him and asked for your money and in the presence of a witness
you literally threatened him by using these words: ‘You don’t intend to pay me but next
time you will see.’ Now, doctor, those words used by a surgeon to a supposed debtor
can be interpreted to mean two things to a jury but, to me, that threat can mean one
thing only.
I am responsible for the non-payment of that bogus consultation fee, and I tell you this
so that if you have the pleasure of knifing me at any time, you may by way of revenge
allow your knife to slip because I am not afraid to die. But let me warn you that I would
not stand by and let you or any other man threaten my son for a debt which was not
incurred.
Many Grenadians have borne with a heavy heart your demands for the now famous
‘consultation fee’ because they are afraid that ‘next time they would see’.
I am demanding from you an explanation of that threat to my son because, now you
have started the ball rolling, the time for the showdown has arrived. A copy of this letter
has been forwarded to the Administrator and one to the Governor. I expect to have your
explanation by noon on Wednesday 4th instant.
Yours sincerely,
WE Julien

The Court held that the letter was clearly defamatory of the appellant. The defence of
fair comment failed, since the facts upon which the comments were based – namely,
that many Grenadians had paid consultation fees to the appellant because of fear that
non-payment might result in the appellant allowing his ‘knife to slip’ should further
surgical treatment become necessary – were not proved to be true. The mere fact that
the respondent honestly believed the charges to be true was in itself no defence. Perez,
Collymore and Jackson CJJ stated:175
It is clear law that, for a comment to be fair, the following conditions must be satisfied:
(a) it must be based on facts truly stated;
(b) it must not contain imputations of corrupt or dishonourable motives on the person
whose conduct or work is criticised, save in so far as such imputations are war-
ranted by the facts;
(c) it must be the honest expression of the writer’s real opinion.
A writer may not suggest or invent facts or adopt as true the untrue statements of fact
made by others and then comment upon them on the assumption that they are true. If
the facts upon which the comment purports to be made do not exist, the defence of fair
comment must fail. ‘If the defendant makes a misstatement of any of the facts upon
which he comments, he at once negatives the possibility of his comment being fair.’176
‘In a case where the facts are fully set out in the alleged libel, each fact must be justified
and if the defendant fails to justify one, even if it be comparatively unimportant, he fails
in his defence [per Lord Porter in Kemsley v Foot]’.177 Further, fair comment is not abso-
lute but relative; criticism must not be used as a cloak for mere invective nor for per-
sonal imputations not arising out of the subject matter and not based on fact.
Where the public conduct of a public man is open to animadversion, and the

175 Ibid, p 627.

176 Digby v Financial News Ltd [1907] 1 KB 502, p 508, per Collins MR.
177 [1952] 1 All ER 501, p 506.
260 Commonwealth Caribbean Tort Law

writer who is commenting upon it makes imputations on his motives which

arise fairly and legitimately out of his conduct, so that a jury shall say that the
criticism was not only honest but also well founded, an action is not maintain-
able. But it is not because a public writer fancies that the conduct of a public
man is open to the suspicion of dishonesty that he is therefore justified in
assailing his character as dishonest.178
The respondent further contended that, as a member of the Legislative Council, it was
his duty to bring to the notice of the proper authorities the conduct of the appellant in
relation to the so called consultation fees. It is significant that in the letter he states that
‘many Grenadians have borne with a heavy heart your demands for the now famous
“consultation fee” because they are afraid that “next time they would see” ’. While it
may be true that there is some evidence that certain people questioned the consultation
fees charged by the appellant, there is no evidence of payment by anyone because of
fear that non-payment may result in the appellant allowing ‘his knife to slip’ should
further surgical treatment of those persons become necessary. Furthermore, an examin-
ation of the evidence of the respondent shows that he failed completely to support that
allegation; albeit no justification in respect thereof was pleaded.
The mere fact that the respondent honestly believed the charges to be true is in itself no
defence. The learned trial judge . . . evidently thought that whatever views a commenta-
tor may express, short of mere abuse or invective, they cannot constitute a libel so long as
they are the commentator’s honest views; on this he is seriously in error and his view is in
conflict with authority, for the views must not only be honest but also be well founded.
If the contents of the letter had been properly confined to the question whether the
appellant was or was not entitled to charge consultation fees, there could be no
complaint and we have no doubt that the respondent honestly believed that such con-
sultation fee was not payable. But the contents go much further and impute that the
appellant, when operating on people who had questioned his fee, ‘may allow his knife
to slip’ – a graver accusation against a surgeon would be difficult to conceive. Counsel
urged that implicit in the words alleged to have been used by the appellant to Wilfred
Julien was a threat that, should Wilfred Julien return to hospital for surgical treatment,
the appellant would do him ‘harm as a surgeon in that capacity’. Assuming that the
words used were as deposed to by Wilfred Julien, we are convinced that they are not in
the nature of a threat to do violence as interpreted by the respondent.
The onus lay on the respondent to prove not only that the subject matter was one
of public interest, but also that the words of the letter were a fair comment on it . . .
The letter here contained statements of fact and the onus was on the respondent
to prove that the statements of fact were true, or that there had been no misstate-
ment of facts in the statement of the materials upon which the comment was based,
and that the comment based on such facts was warranted in the sense that a fair
minded man might bona fide hold the opinion expressed upon them. It is only when
the above onus has been discharged that the burden to prove that the words exceed
the limits of fair comment shifts to the appellant. The respondent failed to prove that
all the statements of fact contained in the letter are true, and we are of opinion that
the language used is so extreme that no fairminded man could in the circumstances
honestly have used it. We find the letter defamatory of the appellant and the defences
set up fail.

A more recent example of failure to prove the truth of underlying facts on which
a comment was based in Joseph v Partap and Daily News Ltd.179 Here, the second

178 Campbell v Spottiswoode (1863) 122 ER 288, p 291, per Cockburn CJ.
179 (2007) High Court, Trinidad and Tobago, No CV 2005–00437 (unreported) [Carilaw TT 2007
HC 74].
 Chapter 10: Defamation 261

defendant published a letter in the ‘Letters to the Editor’ section of its Newsday news-
paper in Trinidad which referred to: ‘This ungrateful Grenadian . . . who sought
refuge from poverty and degradation in his land coming here to pass judgment on the
UNC . . . may feel committed to defend the PNM because he came here as part of
Dr Eric Williams’ vote bank in the 60s to keep the PNM in power.’ Jamadar J pointed
out that in Cheng v Tse Wai Chun 180 Lord Nicholls had explained that, in the defence of
fair comment, the comment must explicitly or implicitly indicate what are the facts on
which the comment is being made, so that the reader may be in a position to judge for
himself how far the comment is well founded. In the instant case, the phrases ‘this
ungrateful Grenadian’ and ‘may feel committed to defend the PNM’ were clearly
comment, but neither was based on true facts. In the case of (i), there was no proof
that the claimant had come to Trinidad to escape poverty, and in the case of (ii), the
supporting facts, concerning the claimant’s coming to Trinidad in the 60s as part of
Dr Williams’ ‘vote bank’, were ‘palpably false,’ as it had been found on the evidence
that the claimant in fact came to Trinidad from Grenada in 1951, at the age of 12.

Sensational newspaper reports

It is a fact of modern life in the Caribbean, as elsewhere, that newspapers thrive on

sensationalism. The reading public has an insatiable appetite for gossip, scandal
and sensation, especially where it concerns well-known personalities in politics and
show business. The greatest risk of such journalism is, of course, that of the libel
action, in which an award of massive damages against a newspaper can spell financial
disaster for its proprietors. Notwithstanding this obvious danger, newspaper editors
appear to be willing to run the gauntlet of the libel laws in the quest for improved
circulation.
Such was the background to Forde v Shah and T & T Newspaper Publishing Group
Ltd,181 where an article on the front page of The Mirror newspaper read:
TOP NAR MAN IN AIDS SCARE
A senior member of the NAR Government is reportedly trembling in his boots follow-
ing recent reports reaching Trinidad indicating that top local songbird, Charmaine
Forde [the plaintiff] has died.
The former Gonzales girl was romantically linked for some time with showbiz impres-
ario Anvil Savary, who perished earlier this year in New York from AIDS.
Mirror was the first to announce last year that Savary was dying from AIDS, but he
claimed it was untrue.
When we spoke about his involvement with Miss Forde, she angrily declared that she
didn’t have the disease and announced that she was so incensed by those reports that
she would never return home.
Earlier this week, Mirror received several reports that Miss Forde had died in Jamaica
three weeks ago, and her body shipped home under an assumed name.
Since then, the NAR Cabinet man has been trembling in his boots. Informed sources
told Mirror that the politician carried on a steamy relationship with the songbird after
she broke off with Savary. Their love nest was a posh home in Valsayn which the NAR
man ‘borrowed’ from an associate.

180 [2000] HKCFA 88, p 90.

181 (1990) 1 TTLR 73 (High Court, Trinidad and Tobago).
262 Commonwealth Caribbean Tort Law

Hamel-Smith J held that:

(a) the article was defamatory of the plaintiff, since ordinary persons would draw the
inference that she had indulged in several affairs with a number of men; and,
further, an imputation that the plaintiff had become infected with the AIDS virus
would cause ordinary persons to shun or avoid her; and
(b) the defence of fair comment was not available to the defendants, since: (i) the
words complained of were not comment but a series of statements of fact; and (ii)
the statements of fact were untrue, in that the plaintiff had not died but was alive
and well; nor was it proved that AS had died; nor was there proof of any intimate
relationship between the plaintiff and AS.
Hamel-Smith J explained:182
The plea of fair comment has been relied on in this case. The facts upon which
the comment was based were pleaded by way of particulars and the onus was on the
defendant to prove those facts. Gatley on Libel and Slander, 8th edn, para 692, explains
that the facts must be in existence at the time of publication, thus disqualifying the
defendant from relying on events which may occur after the date of the comment, save,
possibly, to draw inferences to support the facts. The difference in the pleas of justifica-
tion and fair comment is that in the former the facts and the imputations must be true,
while in the latter, although the facts must be established as true, the imputations need
not. It is those imputations (based on established facts) which must be honest expres-
sions of the writer’s real opinion.
Gatley, at para 692, states that to succeed in a defence of fair comment the defendant
must show that the words are comment, and not a statement of fact. He must also show
that there is a basis of fact for the comment, contained or referred to in the matter
complained of. At para 710, the author states that, ‘in order that the comment may be
fair, the defendant must state the facts on which he is commenting. Often, these facts
will be set out in the publication, but this is by no means necessary’. If, however, the
facts upon which the comment purports to be made do not exist, the defence of fair
comment must fail and comment based on matters of opinion only, which may or may
not be true, equally affords no defence. The question, therefore, in all cases is whether
there is a sufficient substratum of fact stated or indicated in the words which are the
subject matter of the action . . . or is there subject matter indicated with sufficient clarity
to justify comment being made? . . .
Fact No 1, that Savary was a show business impresario seems to have been
established . . .
[Facts Nos 2 and 3 were not applicable.]
Fact No 4, the death of Savary from AIDS, has not been established.
Fact No 5, that the plaintiff and Savary were publicly romantically linked has
not, in my view, been established.
Fact No 6, the alleged death and shipping home under an assumed name, could
not be proved, for the simple reason that the plaintiff was still alive. In any
event, the defendants could not rely on a plea that ‘reports had been received’ to
justify the fact pleaded. That was simply rumour. They had to prove the facts
contained in the alleged report and they were unable to do so. In Gatley, para
715, the law is clearly set out: a writer may not suggest or invent facts, or adopt
as true the untrue statements of fact made by others, and then comment on
them on the assumption that they are true . . .

182 Ibid, p 92.

 Chapter 10: Defamation 263

...
Finally, I have searched the article in an effort to determine what is the comment made
on the alleged facts. There appears to be none. The entire article seems to be one of
alleged fact and it is difficult to discern anything which resembles comment at all.

Absolute privilege

Absolute privilege is a complete defence to an action for libel or slander, however

false or defamatory the statement may be and however maliciously it may have been
made. It arises in those circumstances, such as proceedings in the legislature or in a
court of law, where public policy demands that persons should be able to speak or
write with absolute freedom, without fear of liability for defamation.
Absolute privilege covers the following statements.

Statements made in the course of and with reference to judicial proceedings by

any judge, juryman, advocate, party or witness

The privilege is given a wide interpretation so that, for example, anything which a
witness says in the witness box183 with reference to the subject matter of the proceed-
ings will be protected, even though the statement may not be strictly relevant in law.
It has been suggested, however, that if a person, when in the witness box, were to
take advantage of his position to utter something having no reference whatever to
the proceedings in hand in order to assail the character of another, he would not
be protected.184
Absolute privilege extends not only to proceedings in the regular courts, such as a
Court of Appeal, High Court or Magistrates’ Court, but also to other tribunals recog-
nised by law,185 such as courts martial and disciplinary committees of professional
bodies.
In Bodden v Brandon,186 the defendant was appearing in the Grand Court, Cayman
Islands, as counsel for the accused in a trial for the attempted murder of one Mostyn
Bodden. The plaintiff, a married woman living with her husband, was called to
serve as a juror, whereupon the defendant challenged her. After the plaintiff had sat
down, the defendant turned towards her and said in a clearly audible voice, ‘Yes,
I challenged you because you are one of Mostyn’s girlfriends’. The Court of Appeal of
Jamaica, on appeal from the Grand Court, held that the words were slanderous, but
on grounds of public policy they were absolutely privileged. In answer to the plain-
tiff’s argument that the offending words were not addressed to the court, were irrele-
vant and were not made in good faith for the advancement of the defendant’s client,
Duffus P said:187

183 It was held in Buckley v Dalziel, The Times, 7 June 2007, that absolute privilege extends to
statements made out of court in the context of a criminal investigation if the statements could
fairly be said to be part of the process of investigating a crime. There was also some support
for the view that a police witness statement and any prior discussions leading to the taking of
the statement would be absolutely privileged.
184 Seaman v Netherclift (1876) 2 CPD 53, pp 56, 57, per Cockburn CJ.
185 O’Connor v Waldron [1935] AC 76, p 81.
186 [1965] Gleaner LR 199.
187 Ibid, p 207.
264 Commonwealth Caribbean Tort Law

No cases have been cited to us in which a similar or parallel situation has arisen. After a
great deal of anxious consideration, I have arrived at the conclusion that this is not a
case in which any limit or boundary can be set between the liberty of counsel and
licentiousness. The liberty of counsel is wide and it is not deniable that it should not
be restricted in any but the clearest of cases.

Lewis JA held188 that it was ‘not necessary that the words should be addressed to the
court’. It was ‘sufficient that they were made by the defendant when speaking as an
advocate and with reference to the case then being heard in court’.

Statements made in proceedings of the legislature

Statements made in the course of proceedings by members of a parliament, including

Senate or House of Representatives, are absolutely privileged. This is properly
regarded as a matter of immunity from legal action, rather than as a defence.189 The
privilege covers statements made in debate or in committee and includes statements
made by witnesses called to give evidence before a committee.190

Communications made by one officer of state to another in the course

of his official duty

The leading case is Chatterton v Secretary of State for India,191 where it was held that a
letter from the UK Secretary of State for India to his Parliamentary Under-Secretary,
which provided material for the answer to a question raised in Parliament, was
absolutely privileged. The privilege certainly includes communications between
high-ranking officers of state such as Ministers,192 or Ambassadors and High Com-
missioners,193 but it is not clear how far down the hierarchy of civil servants it extends.
As far as the armed forces are concerned, it was held in Dawkins v Lord Paulet 194
that a defamatory report on a lieutenant colonel made by his commanding officer
was absolutely privileged, but this view has been challenged.195 Probably the better
view is that communications between civil servants of below ministerial rank are only
qualifiedly and not absolutely privileged,196 and the same should apply to all com-
munications between army officers. Surprisingly, however, in Halliday v Baronville,197
Hewlett J, in the High Court of the BVI, held that a report by a woman police
constable to the Deputy Chief of Police to the effect that the plaintiff, a sergeant,
had indecently assaulted her, was absolutely privileged, as it fell within the general
compass of official communications.

188 Ibid, p 208.

189 Carter-Ruck, Libel and Slander, 4th edn, 1991, London: Butterworths, p 109.
190 Coffin v Donnelly (1881) 44 LT 141.
191 [1895] 2 QB 189.
192 Szalatnay-Stacho v Fink [1946] 1 All ER 303.
193 Isaacs v Cook [1925] 2 KB 391.
194 (1869) LR 5 QB 94, per Mellor and Lush JJ.
195 Ibid, per Cockburn CJ.
196 Op cit, Brazier, fn 129, p 447.
197 (1977) 2 OECSLR 138.
 Chapter 10: Defamation 265

Reports of judicial proceedings

By s 15 of the Libel and Slander Act (Jamaica):198

A fair and accurate report in any newspaper of proceedings publicly heard before any
court exercising judicial authority shall, if published contemporaneously with such
proceedings, be privileged, provided that nothing in this section shall authorise the
publication of blasphemous or indecent matter.

This section was modelled on s 3 of the Law of Libel Amendment Act 1888 (UK),
which, after a long period of uncertainty, was held in 1964 to create absolute privil-
ege.199 The statutory privilege is additional to the qualified privilege that fair and
accurate reports of judicial proceedings enjoy at common law.200 Section 11 of the
Defamation Act (Jamaica)201 extends the statutory privilege to radio and television
broadcasts.
The requirement that the report should be ‘contemporaneous’ will probably be
satisfied if it is published at the first reasonable opportunity after the event, which
may be determined by the frequency of publication of the newspaper or journal in
which the report appears, or by reference to the time when the written judgment was
made available to the particular reporter.202
The requirement that the report must be ‘fair and accurate’ will clearly not be
satisfied where, for instance, the report states that a judge made certain orders or
statements that were not made at all.203 On the other hand, it is well established that
a report in a newspaper is not to be judged by the same standard of accuracy which
applies to a law report written by a professional law reporter or trained lawyer.204
Accordingly, provided the report as a whole is substantially fair and accurate, the privil-
ege will not be lost because of the presence of a few minor inaccuracies.205 Further, the
report need not be verbatim; an abridged, summarised or condensed report will be
privileged, ‘provided it gives a correct and just impression of what took place in
court’.206 Thus, for instance, it has been held that a report may be ‘fair and accurate’

198 See also Defamation Act, Cap 6:03 (Guyana), s 13; Libel and Defamation Act, Ch 11:16
(Trinidad and Tobago), s 13; Defamation Act 1996, Cap 199 (Barbados), s 9(1). The defence
was upheld in the Trinidadian case of Alleyne-Forte v Trinidad Express Newspapers Ltd (2003)
Court of Appeal, Trinidad and Tobago, Civ App No 124 of 1999 (unreported) [Carilaw TT
2003 CA 9] (p 266, below).
199 McCarey v Associated Newspapers Ltd (No 1) [1964] 2 All ER 335.
200 See below, p 271.
201 See also Defamation Act, Cap 6:03 (Guyana), s 18.
202 Thus in Gabriel v Manmohan and Trinidad Express Newspapers Ltd (2004) High Court, Trinidad
and Tobago, No HCA 2488/97 (unreported) [Carilaw TT 2004 HC 97], Moosai J held that
publication of a newspaper report seven days after the written judgment in the proceedings
became available to the reporter would be contemporaneous.
203 As in two Nigerian cases, Omo-Osagie v Okutubo [1969] 2 All NLR 175, where a weekly
newspaper published a report of certain matrimonial proceedings in the High Court under
the bold caption: ‘Chief Justice tells a teacher: “You are a bad woman” ’, when those words
were not said at all, and Bello v Ayebola (1977) 1 CCHCJ (High Court of Lagos State), where a
newspaper report of proceedings in a magistrate’s court erroneously stated that the plaintiff
had been ordered by the chief magistrate to be detained by the police for questioning,
whereas in fact the magistrate made no such detention order but simply directed the police to
make further investigations into a matter in which the names of the plaintiff and three others
were mentioned.
204 Hope v Leng Ltd (1907) 23 TLR 243, p 244, per Collins MR.
205 See Alleyne-Forte v Trinidad Express Newspapers Ltd, below.
206 Nationwide News Property Ltd v Rogers [2002] NSWCA 171.
266 Commonwealth Caribbean Tort Law

even though it omits to mention any of the evidence given at the trial,207 and that a
report which accurately states the result of a trial cannot be impugned on the ground
that the grounds for the result were not fully stated.208 On the other hand, the report
should be impartial, so it should not give an account of the evidence of one party
while omitting that of the other.209
The fairness and accuracy of reports of judicial proceedings were an issue in
Alleyne-Forte v Trinidad Express Newspapers Ltd.210 Here the claimant, an attorney-at-
law, contended that the following words in a newspaper report of certain proceedings
in the High Court were defamatory of him in the way of his profession:
Attorney Learie Alleyne-Forte was told by the judge that it was disgraceful for him to
seek an adjournment in a matter pending for nine years . . . ‘I am not going to be a party
to wasting time even if I have to work up to midnight,’ he warned, giving Alleyne-Forte
three hours to prepare a brief and begin the case.

Nelson JA, in the Trinidad and Tobago Court of Appeal, considered that these words
were not defamatory of the claimant, since they did not suggest incompetence or
negligence in his profession but rather constituted a warning from the judge that
attorneys appearing before him must be ready to proceed with their cases. However,
since the defence of absolute privilege pursuant to section 13(1) of the Libel and
Defamation Act, Ch 11:16 had been argued by the defendants, the Court decided to
make a ruling on it, the main issue being the fairness and accuracy of the newspaper
report. It appeared from the evidence that whereas the first sentence in the report had
indeed been addressed to the claimant, and did accurately and fairly report the
judge’s words, the second sentence was inaccurate in that the judge’s admonition
about time-wasting was addressed not to the claimant in person but to all members of
the profession present and, moreover, the judge had given the claimant twenty-four,
not three, hours to prepare his brief. The Court of Appeal held that the defendants
were entitled to the statutory defence, since the inaccuracies in the report ‘do not go to
the gist of the assumed libel in the first sentence of the article and do not deprive the
report of the protection of privilege’.

Qualified privilege

Both absolute and qualified privilege exist for the same fundamental purpose: to give
protection to persons who make defamatory statements in circumstances where ‘the
common convenience and welfare of society’211 demand such protection; but whereas
absolute privilege is limited to a few well-defined occasions, qualified privilege
applies to a much wider variety of situations in which it is in the public interest that
persons should be able to state what they honestly believe to be true without fear of
legal liability.
The main difference between the two defences is that a plea of qualified privilege

207 MacDougall v Knight (1886) 17 QBD 636.

208 Duncan v Associated Scottish Newspapers Ltd [1929] SC 14. See Gabriel v Manmohan and Trinidad
Express Newspapers Ltd (2004) High Court, Trinidad and Tobago, No HCA 2488/97
(unreported) [Carilaw TT 2004 HC 97].
209 Stern v Piper [1997] QB 123.
210 (2003) Court of Appeal, Trinidad and Tobago, Civ App No 124 of 1999 (unreported) [Carilaw
TT 2003 CA 9].
211 Toogood v Spyring (1834) 149 ER 1044, per Parke B.
 Chapter 10: Defamation 267

will be defeated if the plaintiff proves that the defendant, in publishing the words
complained of, was actuated by express malice, whereas in absolute privilege the
malice of the defendant is irrelevant.

Occasions of qualified privilege

Statements made in the performance of a legal, moral or social duty

Here, the defendant must show both that he was under a legal, moral or social duty to
communicate the defamatory matter to a third party, and that the third party had a
corresponding interest in receiving it.212 A common instance of such an occasion is
where a former employer of the plaintiff gives a damaging reference as to the plain-
tiff’s character to a prospective employer.
Another common example of qualified privilege is where D makes a report to the
police, accusing P of having committed a crime.213 A fortiori, statements made by a
police officer in the course of his enquiries into a suspected crime are privileged. In
Stewart v Green,214 for example, the defendant was a detective constable investigating a
report of arson. In the course of questioning the plaintiff at a dance hall where there
were other persons present, the defendant said: ‘I put it to you. Is it you burn down
the house?’ The Jamaican Court of Appeal held that these words were qualifiedly
privileged and, in the absence of malice, the defendant was not liable in defamation.
Waddington JA emphasised that different considerations apply where a police officer
makes a defamatory accusation in the presence of witnesses from those which apply
where one private person accuses another in public, the implication being that the
police officer’s privilege is wider in such circumstances.215
Whether a legal, moral or social duty to communicate the defamatory matter
exists in the particular case is a question of law, to be decided by the judge. If it is
a legal duty which is relied upon (for example, the duty of a citizen to report the
commission of a crime to the police), the judge’s task will normally be straight-
forward; but where the defendant pleads a moral or social duty, it is more difficult.216
In deciding whether such a moral or social duty exists, he must ask himself the ques-
tion: ‘would the great mass of right-minded men in the position of the defendant have
considered it their duty, under the circumstances, to make the communication?’217 It is
an objective and not a subjective test which is applied. Thus, if the judge decides that a
reasonable, right-minded person would not have recognised a duty to communicate
the defamatory matter, it will be no defence for the defendant to plead that he
believed honestly and in good faith that there was such a duty.
Whether a moral or social duty existed to communicate a defamatory statement

212 Watt v Longsdon [1930] 1 KB 130; Hoyte v Liberator Press Ltd (1973) High Court, Guyana,
No 269 of 1972 (unreported) (below, pp 278, 279).
213 Yasseen v Persaud (1977) Court of Appeal, Guyana, Civ App No 20 of 1975 (unreported)
[Carilaw GY 1977 CA 2]; Suckoo v Mitchell (1978) 16 JLR 261 (Court of Appeal, Jamaica); Gayle
v Alcan Jamaica Co Ltd (2005) Supreme Court, Jamaica, No 2000/G-027 (unreported) [Carilaw
JM 2005 SC 38].
214 (1967) 10 JLR 220.
215 Ibid, p 221.
216 See Augustus v Nicholas (1994) High Court, Dominica, No 262 of 1991 (unreported) [Carilaw
DM 1994 HC 1], per Adams J.
217 Stuart v Bell [1891] 2 QB 341, p 350, per Lindley LJ.
268 Commonwealth Caribbean Tort Law

may be particularly difficult to determine in family or domestic situations. It has been

held that a father or near relative may warn a young man as to the character of an
associate,218 and that a near relative or intimate friend of a woman may warn her
about the character of the man whom she proposes to marry,219 but it has been said
that, ‘as a general rule, it is not desirable for anyone, even a mother-in-law, to interfere
in the affairs of man and wife’.220 In the leading case of Watt v Longsdon,221 it was held
that a report by the defendant, a company director, to the chairman of the company
concerning the alleged immoral conduct of an employee was privileged, but that, in
the circumstances, the defendant had no duty to communicate this information to the
employee’s wife, so that he was liable for the latter publication.
In Mirchandani v Barbados Rediffusion Service Ltd,222 the question arose as to
whether defamatory words contained in three calypsos broadcast over the radio
during the Crop-Over Festival in Barbados were protected by qualified privilege.
The calypsos alleged that the plaintiffs had processed diseased chickens and offered
them for sale to the public. It was held, on a preliminary point of pleading, that the
calypsos were not privileged because the defendant had no legal, moral or social duty
to communicate the defamatory words to the general public.
Williams CJ put the question thus:
Did the defendant, then, have a social or moral duty to communicate the words of the
calypsos to the general public? Is it in the interests of the public that calypsos should
be broadcast over the radio during Crop-Over, or at any other time, regardless of their
word content? To what extent is any public advantage outweighed by the injustice
which men and women in the public eye, and possible others, may suffer by having
defamatory statements about them constantly repeated over the radio?
Calypso is unquestionably an established Caribbean musical art form and over the
years calypsos have been written and sung about matters of current and topical interest.
None of this can be denied, and it does not seem to me that an expert on calypso from
Trinidad and Tobago can take the matter any further. Everything pleaded in the defence
about the calypso can be accepted without challenge.
In my view, no privilege attached to the publication of the calypsos, and the defence of
qualified privilege must fail and is struck out. If any special protection is to be given in
respect of the publication of calypsos, it should be done by statute as part of a com-
prehensive review of the law and after due and appropriate consultation and balancing
of the different interests.

Very similar allegations concerning the same plaintiffs were in issue before the
Barbados Court of Appeal in McDonald Farms Ltd v The Advocate Co Ltd,223 where a
newspaper published a report alerting the public to certain allegations concerning
food contamination at the plaintiffs’ chicken farm, which, the report stated, were
under investigation by the public health authorities. In an action for libel brought
against it, the newspaper pleaded qualified privilege. The trial judge rejected the
defence and the Court of Appeal upheld that decision.

218 Moffat v Coates (1906) 44 Sc LR 20.

219 Adams v Coleridge (1884) 1 TLR 84.
220 Watt v Longsdon [1930] 1 KB 130, p 150, per Scrutton LJ.
221 Ibid.
222 (1992) 42 WIR 38. Followed by Thomas J in Joseph v Derrick (2004) High Court, Antigua and
Barbuda, No 2002/0383 (unreported) [Carilaw AG 2004 HC 63].
223 (1996) 52 WIR 64. Followed in Bernard v The Jamaica Observer (2006) Supreme Court, Jamaica,
No CL 2002/B-048 (unreported), per Campbell J.
 Chapter 10: Defamation 269

Williams CJ held that the qualified privilege defence was unavailable in the cir-
cumstances since, although the health of the Barbadian public and possible food
contamination were undoubtedly matters of great public interest and concern, the
defendants were aware that the matter was under investigation by public health
officials and, according to Blackshaw v Lord,224 where damaging charges are made and
are still under investigation, there can be no duty to report them to the public; nor
was it a situation where the urgency of communicating a warning was so great that
publication of a suspicion or speculation was justified.

Statements made to the proper authorities in order to obtain redress for

public or private grievances

A private grievance in this context means a grievance suffered by the defendant

as an individual and not by the public as a whole; whilst a public grievance is one
which affects the general public and which any member of the public, whether he is
personally affected or not, has an interest in bringing to the attention of the proper
authorities.
As Gatley explains:225
Where a man believes that he has suffered a grievance at the hands of another, he is
entitled to bring his grievance to the notice of the person or body whose power or duty
it is to grant redress or to punish or reprimand the offender, or merely to enquire into
the subject matter of the complaint, and any statement made is privileged, if made in
good faith and not for the purpose of slandering the plaintiff.

An example of a communication protected under this head would be a letter from

a member of the public to the Minister of Health complaining of malpractice in a
hospital, or to the Education Authority alleging immoral conduct on the part of
a school principal.

Statements made in self-defence

A defamatory statement made in order to protect the defendant from an attack upon
his reputation or property by the plaintiff is qualifiedly privileged. This is illustrated
by Osborn v Boulter.226 In that case, a publican had complained to the brewery, which
supplied him with beer for sale to his customers, that the beer was of poor quality.
The brewery replied that they had heard rumours to the effect that the poor quality of
the beer was due to its being watered down by the publican, and they published this
statement to a third party. It was held that this statement was qualifiedly privileged,
since it was made in defence of the defendant’s own property and reputation.
In defending himself, however, the defendant is not entitled to make unnecessary
imputations on the private life of his attacker which are wholly unconnected with the
attack and irrelevant to his vindication. ‘The privilege extends only so far as to enable
him to repel the charges brought against him, and not to bring fresh accusations
against his adversary.’227

224 [1983] 2 All ER 311.

225 Op cit, Gatley, fn 41, para 572.
226 [1930] 2 KB 226. See Adam v Ward [1917] AC 309.
227 Dwyer v Esmonde (1878) 2 Ir LR 243, p 254, per May CJ.
270 Commonwealth Caribbean Tort Law

A recent Trinidadian case in which the defence succeeded is Joseph v Partap and
Daily News Ltd.228 Here the claimant, a popular radio talk show host, made a statement
during one of his shows to the effect that ‘all UNC Members of Parliament are mali-
cious’. The defendant, who was himself a UNC MP, took exception to that remark
and sent a letter, later published in the ‘Letters to the Editor’ section of the second
defendant’s newspaper, Newsday, containing the following:
When I heard this, I said to myself, ‘what an ingrate!’ This ungrateful Grenadian who
sought refuge from poverty and degradation in his land coming here to pass judgment
on the UNC. He may feel committed to defend the PNM because he came here as part
of Dr Eric Williams’ vote bank in the 60s to keep the PNM in power. I have news for him.
I am not malicious, and I can speak for my colleagues that they too are not malicious.

Jamadar J did not consider these words to be defamatory, as ordinary readers in

Trinidad and Tobago were unlikely to think less well of the claimant after reading
them; however, in the event that this conclusion was wrong, he proceeded to hold that
the words were protected by qualified privilege since they had been published in
response to the claimant’s attacks in this and in previous talk shows against all the
UNC MPs, including the defendant. As Jamadar J explained:
The authors of Gatley on Libel and Slander point out that the law recognizes that a person
whose character or conduct has been attacked is entitled to answer such attack, and any
defamatory statements he may make about the person who attacked him will be privil-
eged, provided they are published bona fide and are fairly relevant to the accusations
made. Thus, where there has been an attack, a person enjoys qualified privilege to
answer the charge, once he responds in good faith, with the intention of repelling the
attack, and what he says is fairly an answer and it is done without malice. Such a reply
is privileged, even if it is false. In such a reply, a defendant ‘is not required to be
diffident in protecting himself and is allowed a considerable degree of latitude in this
respect.’ Thus, attacking the credibility of one’s opponent in legitimate self-defence is
acceptable, whereas mere retaliation which is neither an answer nor an explanation is
not. In answering an attack on conduct or character which has been made in the public
media, a person is entitled to have recourse to the public media in his or her defence,
and if relevant defamatory statements are made about the attacker, such statements are
prima facie privileged . . . Further, the privilege of a person whose character or conduct
has been attacked in the public press to reply to such attacks extends to the newspaper
which published his reply and, in the absence of proved malice, neither will be liable in
damages.

Finally, Jamadar J found no evidence of malice on the part of the defendant. What the
first defendant published of the claimant was ‘honestly, even if mistakenly, believed
to be true . . . On the totality of the evidence, it was not unreasonable that the first
defendant could have come to the conclusions that he stated in his letter published in
Newsday.’

Statements made between parties having a common interest

A statement made by A to B which is defamatory of C will be protected by qualified

privilege if A and B had a common interest in the subject matter of the communication.
The privilege may arise in a wide variety of cases, for example, where an insurance

228 (2007) High Court, Trinidad and Tobago, No CV 2005–00437 (unreported) [Carilaw TT 2007
HC 74]. For further background to this case, see pp 260, 261, above.
 Chapter 10: Defamation 271

company writes to a policyholder warning him against dealing with a former agent
of the company,229 where a shareholder complains to other shareholders of mis-
management of the company by the managing director and calls for his removal,230
or where a company posts on its notice board a memorandum advising employees
that it is investigating an issue regarding the medical services provided by the
claimant and that, until resolution of the matter, it will not accept any medical
certificates issued by the claimant.231 Another example is where an auctioneer writes
to other auctioneers in the district, informing them that a person has purchased goods
at an auction and received them without paying.232 Also protected under this head
would be an advertisement by D Co in a newspaper to the effect that P is no longer
employed by D Co, nor has authority to transact any business on behalf of D Co,
and that all persons dealing with P do so at their own risk. In such a case, the
company and members of the public are taken to have a common interest in the
information given.

Where a newspaper or radio or television company makes a fair and

accurate report of proceedings in the legislature or in a court of law 233

The report must be ‘fair and accurate’.234 If, for example, the report alleges that certain
statements were made that were not in fact made, the defence is not available.235

Where a newspaper’s statement is privileged under statutory provisions

Various classes of statement published in a newspaper or in a radio broadcast are

statutorily privileged, as listed in ss 13–18 of the Defamation Act (Guyana) and in the
Schedule to the Defamation Act (Jamaica).236

Reynolds privilege

An important question which was discussed in the highest courts in England,237

Australia238 and New Zealand,239 is the extent to which citizens and the media are free
to criticise politicians or other public figures without the fear of liability for libel if
they get the facts wrong or cannot prove them to be true.240 In this area, it is important

229 Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68.
230 Chokolingo v Chokolingo (2004) High Court, Trinidad and Tobago, No CV 2685 of 1992
(unreported).
231 Hodge v Cable and Wireless (West Indies) Ltd (2006) High Court, Anguilla, No 1998/0108
(unreported).
232 Boston v Bagshaw [1966] 1 WLR 1126.
233 It was held by Deane J in Gransaull v De Gransaull [1922] Trin LR 176, that the privilege does
not extend to publication of a statement of claim which is filed in the Registry.
234 The Gleaner Co Ltd v Wright (1979) 16 JLR 352 (Court of Appeal, Jamaica).
235 See, eg, Husbands v The Advocate Co Ltd (1968) 12 WIR 454 (High Court, Barbados), where the
defence under the Libel and Defamatory Words Act 1906, s 14 was under consideration.
236 See Caven v The Gleaner Co Ltd (1983) 20 JLR 15 (Court of Appeal, Jamaica).
237 Reynolds v Times Newspapers Ltd [1998] 3 All ER 961 (CA); [1999] 4 All ER 609 (HL).
238 Lange v Australian Broadcasting Corp (1997) 189 CLR 520.
239 Lange v Atkinson [1998] 3 NZLR 424.
240 See, generally, Trindade, FA (2000) 16 LQR 185; Williams, K (2000) 63 MLR 748.
272 Commonwealth Caribbean Tort Law

for the courts to strike a balance between freedom of expression, on the one hand, and
protection of public reputation on the other. The traditional common law principle is
that an untrue and defamatory statement cannot properly be made to the world at
large merely because it concerns a matter of public interest. Thus, in the defence of fair
comment, as we have seen,241 the defendant must prove the factual basis of the com-
ment to be true; while in qualified privilege, although the defendant is not required to
prove the truth of the defamatory statement, he is required, as we have seen,242
to show that the publication was in fulfilment of a duty to inform the public. Thus,
there is traditionally no privilege in favour of widespread political dialogue which
engenders untrue statements, even though honestly made.
Accordingly, the High Court of Australia in Lange v Australian Broadcasting Corp,243
the Court of Appeal of New Zealand in Lange v Atkinson,244 and the Court of Appeal of
England and Wales in Reynolds v Times Newspapers Ltd,245 approved a new occasion of
qualified privilege for communication in the course of political discussion, so that the
discussion of political issues in a newspaper or on television or radio broadcasts
would be protected by the new arm of qualified privilege, even though it might con-
tain defamatory and untrue statements, provided there was no evidence of malice.
However, the three courts expressed differing views as to the requirements for the
defence. The High Court of Australia held that the publisher must satisfy the court
that its conduct in publishing the defamatory statement was ‘reasonable’, which
would ordinarily require the defendant to show (i) that it took proper steps to verify
any allegation; (ii) that it gave an opportunity to the plaintiff to respond to those
allegations; and (iii) that those responsible for the allegations honestly believed them
to be true. The New Zealand Court of Appeal, on the other hand, refused to incorpor-
ate the requirement of reasonableness on the part of the publisher, but preferred to
give a sweeping ‘generic’ protection for statements published in the course of political
discussion in the media.246 Then, the English Court of Appeal, in Reynolds v Times
Newspapers Ltd,247 held that allegations concerning how politicians and others dis-
charge their public functions could attract qualified privilege where there was a duty
to publish to the public and a corresponding interest in receiving it, but the court
added a further requirement (which became known as the ‘circumstantial test’) that
the defendant must show that the ‘nature, status and source of the material, and the
circumstances of the publication’ are such that it should ‘in the public interest be
protected, in the absence of proof of express malice’.248 In the Reynolds case, in which
defamatory allegations had been made against the Irish Prime Minister, the Court of
Appeal held that the defendant could not rely on the defence since, inter alia, it had
used an unreliable source of information, and had failed to give the plaintiff an
opportunity to put his side of the story.
On appeal, the House of Lords in Reynolds,249 while affirming the decision of the
Court of Appeal, held that there was no automatic and separate privilege for political

241 See above, pp 248–63.

242 See above, pp 268–69.
243 (1997) 189 CLR 520.
244 [1998] 3 NZLR 424.
245 [1998] 3 All ER 961 (CA).
246 [1998] 3 NZLR 424.
247 [1998] 3 All ER 961 (CA).
248 Ibid, p 995, per Lord Bingham CJ.
249 [1999] 4 All ER 609 (HL).
 Chapter 10: Defamation 273

speech; nor was there a separate ‘circumstantial test’ in addition to the traditional
requirement of reciprocal duty and interest; but widespread publication might be
privileged in the public interest, depending on the nature of the material and all of the
circumstances in which it was published. In short, the House of Lords denied that
there was any blanket or ‘generic’ protection by way of qualified privilege for mis-
statements of fact in the course of disseminating ‘political information’, that is,
‘information, opinions and arguments concerning government and political matters
that affect the people of the United Kingdom’.250 According to Lord Nicholls, in the
absence of any additional safeguard for reputation, acceptance of the blanket defence
would mean that a newspaper which was anxious to be the first with a ‘scoop’ would
‘be free to publish seriously defamatory misstatements of fact based on the slenderest
of materials’,251 and it would be unsound in principle to distinguish political discus-
sion from discussion of other matters of serious public concern. Lord Nicholls further
suggested252 the following non-exhaustive list of matters which a court ought to take
into account when deciding whether a defamatory statement, which misstates facts,
was published in the public interest and on an occasion of qualified privilege:
(1) The seriousness of the charge since, the more serious the charge, the more the
public is misinformed and the individual harmed if the allegation is not true.
(2) The nature of the information, and the extent to which the subject matter is a
matter of public concern.
(3) The source of the information, as some informants have no direct knowledge of
the events, and some have their own ‘axes to grind’, or are being paid for their
stories.
(4) The steps taken to verify the information.
(5) The status of the information. The allegations may have already been the subject
of an investigation which commands respect.
(6) The urgency of the matter, as news is often a perishable commodity.
(7) Whether comment was sought from the claimant, as he may have information
which others do not possess or have not disclosed; though an approach to the
claimant will not always be necessary.
(8) Whether the article contained the gist of the claimant’s side of the story.
(9) The tone of the article. A newspaper can raise queries or call for an investigation.
It need not adopt allegations as statements of fact.
(10) The circumstances of the publication, including the timing.
The English Court of Appeal in Loutchansky v Times Newspapers Ltd (No 2) 253
emphasised that, in the light of Reynolds, when a court is deciding whether there had
been a duty to publish defamatory words to the general public, the standard to be
applied was that of ‘responsible journalism’. The standard of responsible journalism
should not be set too low, as that would encourage newspapers to publish untruths,
which was not only against the interests of defamed persons but also contrary to the
interests of the media themselves, in that the public would eventually cease to believe
much of what they read in the newspapers. On the other hand, the standard should

250 Ibid, p 630, per Lord Steyn.

251 Ibid, p 623.
252 Ibid, p 626.
253 [2001] 4 All ER 115.
274 Commonwealth Caribbean Tort Law

not be set too high, as this would deter newspapers from discharging their proper
function of keeping the public informed.
The reasoning of the House of Lords in Reynolds has since been applied in the
Grenadian case of Mitchell v Charles,254 which concerned a defamatory statement
made by a caller during a live radio talk show hosted by the Grenadian Broadcasting
Network (GBN). The statement contained an allegation that the plaintiffs, who
were members of the government, had planned to murder one F, a former Minister
who had recently resigned his position. Sylvester J held that, on the authority of
the House of Lords ruling in Reynolds, there was no new category where privilege
could be derived solely from the subject matter being ‘political information’, or from
the fact that the defamatory words had been uttered during a ‘political discussion’.
He said:
Traditionally, English law has not drawn any distinction between politics and other
forms of speech. Politicians, like ordinary people, are entitled to look to the courts to
protect their reputations, and the fact that the public might be legitimately interested in
their behaviour or conduct has not of itself been treated as sufficient to give rise to the
defence of qualified privilege . . . It is recognized by all that the statements [in the
instant case] were of very serious import in that [they alleged] a serious criminal offence
(attempted murder and conspiracy) such as would destroy Mr Mitchell and his cabinet
colleagues politically and professionally . . . The timing of the statement is not without
significance. [The resignation of F] made the government a minority government, and it
was obvious that the government must go back to the polls, either voluntarily or by a
vote of no confidence.
In the recent Jamaican case of Bonnick v Morris,255 B brought an action for libel against
the Gleaner newspaper, alleging that an article written by M, a journalist employed
by the Gleaner, was defamatory of him. The crucial words in the article were:
‘Mr Bonnick’s services as managing director [of the Jamaica Commodity Trading Co
(JCTC), a government-owned company] were terminated shortly after the terms of
the second contract [with a Belgian company for the supply of milk powder] were
agreed’ and, later in the article, ‘An authoritative source pointed out other departures
from the norm in respect of these contracts’.
B alleged that the article bore the defamatory meaning, inter alia, that his ser-
vices as managing director of JCTC had been terminated because of his impropriety
in the formation, conclusion and implementation of very unusual contracts with
the Belgian company. The trial judge, Langrin J, accepted this interpretation, hold-
ing that the offending words would be understood by the ordinary reader to
mean that B had been dismissed as a result of the irregularities mentioned by the
‘authoritative source’. The Jamaican Court of Appeal were divided on the issue as to
whether the words were defamatory. On further appeal to the Privy Council, the
Board agreed with the conclusion of Langrin J that the words, read in context, were
defamatory.
However, the main issue in the case was whether the defendants were protected
by qualified privilege, in the light of the decision of the House of Lords in Reynolds,
which had been decided after Langrin J’s ruling. Lord Nicholls, delivering the judg-
ment of the Privy Council, pointed out, first of all, that s 22(1) of the Jamaican
Constitution guaranteed freedom of expression subject to limitations set out in s 22(2),

254 (2002) High Court, Grenada, No 704 of 1998 (unreported).

255 [2002] 3 WLR 820 (PC).
 Chapter 10: Defamation 275

which included provisions ‘reasonably required . . . for the purpose of protecting the
reputations, rights and freedoms of other persons’. In the Reynolds case, the House of
Lords had held that the law relating to qualified privilege as rationalised in that case
was consistent with Art 10 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms; and although the wording of s 22 of the Jamaican
Constitution was not identical, its effect in this context was the same. Accordingly, the
instant case fell to be decided in the light of the Reynolds principle, which required
that, in accordance with standards of responsible journalism, a newspaper should
have some factual basis for the publication of a defamatory imputation.
Lord Nicholls took the view that, in applying the objective standard of responsible
journalism, the court should take into account the fact that, in this case, the defama-
tory imputation was not express but implied. Although the Board had agreed with
Langrin J that a reasonable reader would interpret the article in a defamatory sense,
there was nevertheless ‘room for different views on whether the article contained
such an implication’, and it would not be correct for the law simply to apply the
objective standard of responsible journalism to the single meaning the law attributed
to it when a journalist or editor might read the words in a different, non-defamatory
sense. He continued:

Stated shortly, the Reynolds privilege is concerned to provide a proper degree of protec-
tion for responsible journalism when reporting matters of public concern. Responsible
journalism is the point at which a fair balance is held between freedom of expression on
matters of public concern and the reputations of individuals. Maintenance of this stand-
ard is in the public interest and in the interests of those whose reputations are involved.
It can be regarded as the price journalists pay in return for the privilege. If they are
to have the benefit of the privilege, journalists must exercise due professional skill
and care.
To be meaningful, this standard of conduct must be applied in a practical and flexible
manner. The court must have regard to practical realities. Their Lordships consider it
would be to introduce unnecessary and undesirable legalism and rigidity if this object-
ive standard, of responsible journalism, had to be applied in all cases exclusively by
reference to the ‘single meaning’ of the words. Rather, a journalist should not be penal-
ized for making a wrong decision on a question of meaning on which different people
might reasonably take different views. Their Lordships note that in the present case
the selfsame question has resulted in a division of view between members of the Court
of Appeal. If the words are ambiguous to such an extent that they may readily convey
a different meaning to an ordinary reasonable reader, a court may properly take this
other meaning into account when considering whether Reynolds privilege is available
as a defence. In doing so the court will attribute to this feature of the case whatever
weight it considers appropriate in all the circumstances.

Applying this flexible test to the facts of the instant case, the Privy Council took into
account the facts (i) that JCTC was a government-owned company whose import
business affected the cost of living of the whole population and whose activities were
therefore matters of considerable public concern; (ii) that the general tone of the article
was restrained; (iii) that the defamatory imputation was not of grave import, as the
public were well aware that from time to time senior managers were made scapegoats
and, in Jamaica, the departure of senior executives from their companies was a com-
mon feature of commercial life; and (iv) that the defamatory meaning of the words
used was not so glaringly obvious that any responsible journalist would be bound to
realise this was how the words would be understood by ordinary, reasonable readers.
The Privy Council accordingly concluded that ‘although near the borderline’, the
276 Commonwealth Caribbean Tort Law

article was a piece of responsible journalism and the defence of qualified privilege
was available.256
The nature and scope of Reynolds privilege has been further elucidated by the
House of Lords in Jameel v Wall Street Journal Europe,257 which concerned a newspaper
article headed ‘Saudi Officials Monitor Certain Bank Accounts’. The article, published
only five months after the ‘9/11’ attack, was defamatory of the claimants in that
reasonable readers might have understood it to mean that there were grounds for
suspecting the involvement of the claimants in the funnelling of funds to terrorist
organisations. Lord Hoffmann opined258 that ‘Reynolds privilege’ differed from trad-
itional privilege in that in Reynolds it was the material which was privileged, and not
the occasion.259 Indeed, as had been emphasised in Loutchansky v Times Newspapers
Ltd,260 Reynolds was ‘a different jurisprudential creature from the traditional form
of privilege from which it sprang,’ and ‘might more appropriately be called the
“Reynolds public interest defence” rather than “privilege” ’. Lord Bingham observed261
that ‘qualified privilege as a live issue only arises where a statement is defamatory
and untrue,’ and the ten listed matters which Lord Nicholls suggested might be taken
into account by the court when deciding whether the publication satisfied the test of
‘responsible journalism’ were intended as ‘pointers which might be more or less
indicative, depending on the circumstances of a particular case, and not as a series of
hurdles to be negotiated by a publisher before he could successfully rely on qualified
privilege’.262 Further, in his Lordship’s view, in deciding whether the test of respon-
sible journalism has been satisfied, the court should ordinarily give weight to the
professional judgment of an editor or journalist,263 in the absence of some indication
that the publication ‘was made in a casual, cavalier, slipshod or careless manner’. In
the present case, the subject matter was of great public interest, the article had been
written by an experienced specialist reporter and approved by senior staff on the
newspaper who themselves had attempted to verify its contents and to obtain the
claimants’ response. Moreover, the article was unsensational in tone and factual con-
tent. The defendants accordingly succeeded in establishing the defence.
The Jameel decision has been hailed by the legal profession as a ‘victory’ for news-
papers in that its effect seems to be that, so long as a newspaper can show that it was
exhibiting serious journalism engaging the genuine public interest and so deserving to
be protected, the focus then shifts to the claimant, who will then need to show not only
that there were serious defects in the way the article was put together but also that
those defects realistically led to the article as published being unfair to the claimant.

256 Cf Trinidad and Tobago National Petroleum Marketing Co Ltd v Trinidad Express Newspapers Ltd
(2002) High Court, Trinidad and Tobago, No S 862 of 1999 (unreported) [Carilaw TT 2002 HC
37], where Rajnauth-Lee J held that there was no duty in the defendant newspaper to com-
municate to the general public the views of the Petroleum Dealers’ Association as to the
accounting procedures of the plaintiff, a state-owned corporation; nor was there any corres-
ponding interest in the public to receive such communication. Accordingly, an allegation that
the plaintiff’s account books had been ‘cooked’ was not protected by qualified privilege.
257 [2006] 3 WLR 642.
258 Ibid, p 658.
259 A characteristic emphasised by Stollmeyer J in Logie v National Broadcasting Network Ltd (2002)
High Court, Trinidad and Tobago, No CV 556 of 2001 (unreported) [Carilaw TT 2002 HC 165].
260 [2001] 4 All ER 115.
261 [2006] 3 WLR 642, p 654.
262 An approach taken by Campbell J in Bernard v The Jamaica Observer (2006) Supreme Court,
Jamaica, No CL 2002/B-048 (unreported) [Carilaw JM 2006 SC 11].
263 See Charman v Orion Publishing Group Ltd [2008] 1 All ER 750, CA.
 Chapter 10: Defamation 277

The principles in Reynolds and Jameel have been applied in several subsequent
Caribbean cases. In Ramdhan v Assang and Trinidad Express Newspaper,264 for instance,
the defendant newspaper published an article concerning the death of certain men in
which it was reported that ‘some members of the public claimed that the police
executed the men’ and that investigators had ‘recorded statements from the police
officers involved in the gun battle and members of the public who claimed to have
witnessed the killings’. One of the issues in the case was whether the article met the
test of responsible journalism. The Court of Appeal of Trinidad and Tobago, affirming
the trial judge, held that the article did not meet the test, since the statements were
based on conversations with villagers, none of whom had witnessed the alleged exe-
cutions, and there was no evidence that the reporter had made any attempt to confirm
the events from the investigators or any other reliable source.
A similar conclusion was reached by the Privy Council in Seaga v Harper.265 This
case concerned certain statements defamatory of the claimant, a senior police officer,
which were uttered by the defendant at a political meeting at which there was a large
media presence. Lord Carswell, delivering the judgment of the court, first of all con-
sidered whether the Reynolds defence was restricted to the press and broadcasting
media or whether it was of wider ambit, so as to include the defendant in the instant
case, who was a politician. His Lordship could ‘see no valid reason why [the defence]
should not extend to publications made by any person who publishes material of
public interest in any medium, so long as the conditions framed by Lord Nicholls as
being applicable to “responsible journalism” are satisfied’. Secondly, Lord Carswell
reiterated that Lord Nicholls’ ten factors set out in Reynolds were not to be treated as
if they were statutory provisions, nor were they a series of conditions each of which
had to be satisfied. As Lord Hoffmann had suggested in Jameel, ‘in the hands of
a judge hostile to the spirit of Reynolds, they can become ten hurdles at any of which
the defence may fail. That is not the proper approach. The standard of conduct
required of the publisher of the material must be applied in a practical manner and
have regard to practical realities.’ In the instant case, the Privy Council agreed with
the trial judge, Brooks J, that the defendant’s slanderous words were not protected by
Reynolds privilege since they were based on rumour, and the defendant had failed to
take sufficient care to check the reliability of the information. Further, the matter was
not so urgent that the defendant could not have waited and raised it at the next
available opportunity in the House of Representatives.

Excess of privilege

Privilege, whether qualified or absolute, is forfeited if it is exceeded, that is to say, if

the defamatory words are published more extensively than the occasion requires.
Thus, if the privilege is limited to publication to certain persons only, publication to a
wider readership will not be protected. This is so whether the excess of privilege is
intentional or negligent. For instance, a report which would be privileged if sent in
confidence to the proper authority would be unprivileged if published in a newspaper;

264 (2006) Court of Appeal, Trinidad and Tobago, Civ App No 54 of 2004 (unreported) [Carilaw
TT 2006 CA 39], per Hamel-Smith CJ (Ag). See also Logie v National Broadcasting Network Ltd
(2002) High Court, Trinidad and Tobago, No CV 556 of 2001 (unreported) [Carilaw TF 2002
HC 165].
265 (2008) Privy Council Appeal No 90 of 2006.
278 Commonwealth Caribbean Tort Law

and a message which would be privileged if sent in a closed letter will lose the
privilege if sent by telegram or fax, for then it would be published to the telegraph
operator or to office employees respectively.
There are a number of examples in the Caribbean of cases in which excess of
privilege was in issue. In Briggs v Mapp,266 the appellant shopkeeper and the respond-
ent clerk were friends. After the respondent had visited the appellant in the latter’s
shop one morning, the appellant asked the respondent whether she had picked up
a wallet in the shop while they were together, and the respondent replied that she
had not. The next morning, while the respondent was at work at another store,
the appellant entered the store with a police constable and, in the presence of two
other store clerks and a number of customers, pointed to the respondent and said
in a loud voice to the constable, ‘That is the woman who steal me wallet with
me money’. The constable ordered the respondent to accompany him to the police
station, where she was charged with larceny. The magistrate subsequently dismissed
the charge.
It was held that the appellant was liable for slander. A report of an alleged theft to
a police constable was privileged, but, in this case, by ‘broadcasting’ her accusation to
third parties who had no legitimate interest in hearing it, the appellant had exceeded
the privilege and, moreover, her conduct afforded evidence of malice.
Lewis CJ, delivering the judgment of the Court of Appeal of the West Indies
Associated States, said:
In White v Stone,267 McKinnon LJ was of the view that . . . if there were third persons
present who had no interest in receiving [a defamatory] statement, then the occasion
would not be privileged. The Court [of Appeal in England] held in that case that an
accusation of stealing money, a felony, made in such circumstances that it was over-
heard on two different occasions by strangers, was not privileged, although it was made
to the person who was being accused.
It will be seen, therefore, that, while the principle is clear and settled, the application
of it to the facts of the present case is not very easy. In my view, so far as the policeman
was concerned, the occasion was clearly privileged. In so far as the clerks were con-
cerned, the occasion was also privileged, since the clerks at the store had an interest
in receiving information as to the honesty, or otherwise, of their co-clerk. But in the
particular circumstances of this case it would seem to me that in so far as the cus-
tomers in the store were concerned, and the workman of whose presence the appellant
herself speaks, with regard to them, the occasion could not have been privileged. The
appellant went to the store knowing that customers were likely to be there, though her
complaint was a personal one unrelated to the complainant’s employment . . . In the
present case, the appellant chose the place where she was going to make her accusation
to the police constable, and went to the store knowing that customers were likely to
be there.

In Hoyte v Liberator Press Ltd,268 the plaintiff, a barrister, Member of Parliament and
Minister of Finance in the governing PNC Party, brought an action for libel against
the defendants in respect of an article published in the defendants’ newspaper, The
Liberator, which read as follows:

266 (1967) Court of Appeal, West Indies Associated States, Civ App No 2 of 1964 (St Kitts-Nevis-
Anguilla) (unreported) [Carilaw KN 1967 CA 2].
267 [1939] 2 KB 827.
268 (1973) High Court, Guyana, No 269 of 1972 (unreported).
 Chapter 10: Defamation 279

The Minister of Finance recently accused persons associated with The Liberator of rob-
bing the Inland Revenue. Mr Hoyte did not have the courage to name the individuals.
No doubt the law of libel was uppermost in his mind.
Now, as everyone knows, while Mr Hoyte practised at the Bar he enjoyed a lucrative
practice. Since example is manifestly better than precept, will the Minister be good
enough to disclose for public consumption his income tax returns for the last five years
of his practice?

George J held that:

(a) the words were defamatory, as they would have conveyed to reasonable men that
the plaintiff had knowingly made false statements against persons associated
with The Liberator newspaper, and that he had, during the last five years of his
practice as a barrister, been defrauding the Revenue by not submitting his tax
returns or by submitting false returns;
(b) the defence of qualified privilege was not available. There was no legal, moral or
social duty to communicate to the public information concerning the plaintiff’s
income tax affairs, though there might have been such a duty to communicate the
information to the Inland Revenue Commissioner. Nor was the allegation against
the plaintiff made in reasonable self-defence of the defendants’ interests, as the
allegation of defrauding the Revenue went far beyond what was necessary by
way of defence.
And in another Guyanese case, Hardai v Warrick,269 the plaintiff, a married woman,
was a sugar estate worker and the defendant the administrative manager of the estate
on which the plaintiff and one Y lived and worked. Following information received to
the effect that Y was cohabiting with the plaintiff, the defendant wrote a letter to Y,
warning him to desist from such conduct. The letter contained the following words:
‘It has been alleged that you are living with Finey, wife of Ramnarine [the plaintiff]:
this woman admits this.’ The plaintiff contended that these words were defamatory of
her, in that reasonable persons would understand them to mean that she was a
woman of loose and immoral character.
Bollers J held that the words were defamatory of the plaintiff but the letter
was qualifiedly privileged, since the defendant, as estate manager, had a social or
moral duty to communicate the defamatory matter to Y, a worker on the estate, who
had a corresponding interest in receiving it, and there was no evidence of malice on
the defendant’s part.

Dictation to secretaries

It is well established that the dictation of defamatory matter to a secretary or typist

in the normal course of business is protected by the defence of qualified privilege
where the occasion itself is a privileged one, for example, where a damaging reference
about a former employee is dictated to a secretary before transmission to the
employer requesting the reference.
An example of such a privileged occasion is afforded by Bacchus v Bacchus,270
where Massiah J said (obiter):

269 [1956] LRBG 213 (Supreme Court, British Guiana).

270 [1973] LRG 115. For the facts, see above, pp 231–33.
280 Commonwealth Caribbean Tort Law

In respect of qualified privilege, I wish to adopt the definition of ‘a privileged occasion’

given by Lord Atkinson in Adam v Ward.271 He defined it as follows:
A privileged occasion is, in reference to qualified privilege, an occasion where
the person who makes the communication has an interest or a duty, legal, social
or moral, to make it to the person to whom it is made, and the person to whom
it is so made has a corresponding interest or duty to receive it. This reciprocity is
essential.
In this matter, the defendant said that he considered the plaintiff’s behaviour in the
office to have been disgraceful. He said that, as the most senior member of the personnel
department, it was his duty to make recommendations as to discipline to the Personnel
Manager and that his interest in writing the report (Exhibit ‘A’) was to maintain a good
standard of conduct and discipline in the office. During cross-examination, the defend-
ant said that the Personnel Manager asked him to give his opinion as to what happened
in the office. He also said that in the absence of the Personnel Manager he is the most
senior member of the staff and, as such, it is his duty to report indiscipline that occurs in
the Personnel Manager’s absence.
I accepted and believed all of that evidence because it appeals to me as being sensible.
It could not be that in the absence of the Personnel Manager things would be allowed
to go awry and all discipline thrown overboard; and who could be better suited to
preserve discipline in such a case than the next most senior member of the staff?
In the performance of that function there must have been a duty cast on the
defendant to make a report to the Personnel Manager, Mr Narine, of any breaches of
discipline that occurred in his absence, and there must have been a correspond-
ing duty and interest on the part of Narine to receive it. Exhibit ‘A’ was written only
after the defendant had made an oral report to Narine and discussed the matter with
him.
It is my view, therefore, that the occasion on which the report was communicated was
privileged and that the matter complained of has reference to that occasion. Since the
defendant’s good faith has not been called in question, for there has been no evidence of
express malice, the plea of qualified privilege accordingly succeeds.
Counsel for the plaintiff argued that, although it is doubtful whether the publication
to Narine was made on a privileged occasion, it certainly could not be said that the
publication to Savitri Prashad was privileged. The evidence is that Savitri Prashad
typed the report (Exhibit ‘A’) which contains the offending words. It appears that she
typed it from a manuscript copy which the defendant gave her, and that the defendant
then submitted Exhibit ‘A’ to Narine.
The approach to this aspect of the case by counsel for the plaintiff was wrong. Once
the communication is considered to have been made on a privileged occasion, then a
publication of that communication to a typist is also sheltered by the privilege once
the communication to the typist is reasonably necessary and in the ordinary course of
business – see Boxsius v Goblet Freres 272 and Osborn v Boutler’.273
In Boxsius’ case, a solicitor, acting on behalf of his client, wrote and sent to the plaintiff a
letter containing defamatory statements regarding her. The letter was dictated to a clerk
in the office, and was copied into the letter-book by another clerk. It was held that the
publication to the clerks was privileged, since the communication, if made direct to the
plaintiff, would have been privileged . . .
In any case, the decision in Boxsius’ case is commonsensical and consistent with justice,
for no businessman can be expected to write all his letters himself without the aid

271 [1917] AC 309, p 334.

272 [1894] 1 QB 842.
273 [1930] 2 KB 266. See also Bryanston Finance Ltd v De Vries [1975] QB 703.
 Chapter 10: Defamation 281

of a typist; and how can be keep proper records unless his typist makes copies of his
documents and keeps at least one copy on file? That is the reason why in Edmondson v
Birch, Cozens-Hardy LJ said:274
I think that, if we were to accede to the argument for the plaintiff, we should in
effect be destroying the defence of privilege in cases of this kind, in which
limited companies and large mercantile firms are concerned; for it would be idle
in such cases to suppose that such documents as those here complained of
could, as a matter of business, be written by, and pass through the hands of, one
partner or person only.
In that case, it was held that, since a letter and telegram were sent on a privileged
occasion, their incidental publication to the sender’s clerks was protected – the publica-
tion to them was considered to have been reasonable and in the ordinary course of
business. I agree with and would follow this statement made in Clerk and Lindsell on
Torts, 12th edn, p 825, where this subject is discussed:
The principle seems to be that, if the occasion is privileged, a publication by
the person exercising the privilege to third persons is protected if it is reason-
able and in the ordinary course of business . . . It is on this ground that publica-
tion to clerks, typists or copyists is protected. The mere fact that such third
persons have no legitimate interest in the subject matter will not destroy the
privilege.
The same approach is taken in Gatley on Libel and Slander, 5th edn, pp 251–53.
What has to be stressed, I think, is that the position would be completely different if
the plaintiff, sheltering under the protective umbrella of privilege, were to publish
the defamatory statement to whomsoever he wished. This is impermissible, for privil-
ege is not a licence for irresponsible and indiscriminate publication, and, to be pro-
tected, publication to the third person must be reasonable and in the ordinary course
of business.
To sum up this aspect of the case, I would say that, since the report, Exhibit ‘A’, was
published to Narine on a privileged occasion, the incidental publication, in the ordinary
course of business, to Savitri Prashad, who typed Exhibit ‘A’, was also made on a
privileged occasion.

Malice

Malice on the defendant’s part destroys the defences of fair comment and qualified
privilege. ‘Actual malice’ does not necessarily mean personal spite or ill-will, and it
may exist even though there is no spite or desire for vengeance in the ordinary sense.
Malice here means any indirect motive other than a sense of duty to publish the
material complained of and, in essence, it amounts to making use of the occasion
for some improper purpose, such as where a defamatory statement is published in
order to obtain a private advantage unconnected with the duty or the interest which
constitutes the reason for the privilege.275

274 [1907] 1 KB 371, pp 381, 382.

275 Chokolingo v Chokolingo (2004) High Court, Trinidad and Tobago, No CV 2685 of 1992
(unreported), where Stollmeyer J declined to hold that the defendant shareholder’s calling
for the removal of the claimant managing director, perceived as mismanaging the company’s
affairs, was an improper motive, since any shareholder doing so must necessarily be acting in
the best interests of the company and of his own legitimate self-interest. On the other hand,
malice would have been established if the defendant’s dominant motive had been to oust the
claimant and take control himself.
282 Commonwealth Caribbean Tort Law

The onus of proving malice rests on the plaintiff.276 Evidence of malice may be
either intrinsic (that is, found in the words themselves) or extrinsic (that is, found in
external circumstances unconnected with the publication itself). There may be
intrinsic evidence of malice where the language used by the defendant is violent,
insulting or utterly disproportionate to the facts.277 However, it has been said that,
when considering whether the actual expressions used can be treated as evidence of
malice, ‘the law does not weigh words in a hair balance’278 and if, in the circumstances,
the defendant might honestly and reasonably have believed that his words were true
and necessary for his purpose, he will not lose the protection of privilege because he
expressed himself in excessively strong or exaggerated language.
Extrinsic evidence of malice may be found, for instance, where there is proof
that the defendant knew at the time he published the statement that it was false,279
or that he was indifferent to its truth or falsity. On the other hand, mere carelessness
as to the truth of the statement is not in itself evidence of malice, ‘for what the law
requires is not that the privilege should be used carefully, but that it should be used
honestly’.280 Also, proof of bad relations between plaintiff and defendant before the
making of the statement, or hostile conduct on the part of the defendant towards the
plaintiff at any time up to and including the trial itself, may be extrinsic evidence
of malice.
A wider publication of the defamatory matter than was necessary may also be
evidence of malice, as well as an excess of privilege.281
In the Jamaican case of Atkinson v Howell,282 where the defendant had made
a report to the police to the effect that the plaintiff had stolen his property, White
JA considered the question of malice:
There is no gainsaying that the law is that a complaint to a police officer in the perform-
ance of his duties is privileged. It was conceded in argument that if the defendant/
respondent honestly believed that he was making a factual report, he could not be
condemned in damages for the defamatory statement. ‘If the defendant honestly
believed his statement to be true, he is not to be held malicious merely because such
belief was not based on reasonable grounds, or because he was hasty, credulous or
foolish in jumping to a conclusion, or was irrational, indiscreet, stupid or pigheaded
or obstinate in his belief.’
This statement of the law in Gatley, 8th edn, para 774, finds further exposition in the
language of Lord Diplock when he delivered the judgment of the House of Lords in

276 Clark v Molyneux (1877) 3 QBD 237; Gransaull v De Gransaull [1922] Trin LR 176 (High Court,
Trinidad and Tobago); Hardai v Warrick [1956] LRBG 213 (Supreme Court, British Guiana)
(above, p 279).
277 As where the plaintiff, an attorney-at-law and chairman of a committee set up to investigate
alleged malpractices in a public company, was accused, in a letter addressed to the general
manager of the company, of holding a ‘kangaroo court’ and ‘witch-hunting’: Richardson v Tull
[1976] Trin LR 8 (High Court, Trinidad and Tobago).
278 Op Cit, Winfield and Jolowicz, fn 19, p 436.
279 See Carasco v Cenac (1995) Court of Appeal, OECS, Civ App No 6 of 1994 (unreported).
280 Op cit, Carter-Ruck, fn 188, p 135. It was held in The Gleaner Co Ltd v Munroe (1990) 27 JLR 167
(Court of Appeal, Jamaica), following dicta of Rowe JA in The Gleaner Co Ltd v Sibbles (1981) 27
JLR 577 (Court of Appeal, Jamaica), that where a newspaper editor publishes defamatory
material after checking its accuracy with a senior police officer, there can be no finding of
malice on the part of the newspaper.
281 See Briggs v Mapp (1967) Court of Appeal, West Indies Associated States, Civ App No 2 of
1964 (unreported) [Carilaw KN 1967 CA 2] (above, p 278).
282 (1985) Court of Appeal, Jamaica, Civ App No 38 of 1979 (unreported).
 Chapter 10: Defamation 283

Horrocks v Lowe.283 That case was about defamatory words used by one local authority
councillor of another, which words the trial judge found to have been spoken in honest
belief of their truth, but with gross and unreasoning prejudice. The question was
whether such a finding constituted malice. Lord Diplock discussed the meaning of
‘honest belief’. He opined:284
. . . what is required on the part of the defamer to entitle him to the protection of
the privilege is positive belief in the truth of what he published or, as it is
generally though tautologously termed, ‘honest belief’. If he publishes untrue
defamatory matter recklessly, without considering or caring whether it be true
or not, he is in this, as in other branches of the law, treated as if he knew it to be
false. But indifference to the truth of what he publishes is not to be equated with
carelessness, impulsiveness or irrationality in arriving at a positive belief that it
is true. The freedom of speech protected by the law of qualified privilege may
be availed of by all sorts and conditions of men. In affording to them immunity
from suit if they have acted in good faith in compliance with a legal or moral
duty or in protection of a legitimate interest, the law must take them as it finds
them. In ordinary life it is rare indeed for people to form their beliefs by a
process of logical deduction from facts ascertained by a rigorous search for all
available evidence and a judicious assessment of its probative value.
In greater or in less degree according to their temperaments, their training,
their intelligence, they are swayed by prejudice, rely on intuition instead of
reasoning, leap to conclusions on inadequate evidence, and fail to recognise
the cogency of material which might cast doubt on the validity of the conclu-
sions they reach. But despite the imperfection of the mental process by which
the belief is arrived at, it may still be ‘honest’, that is, a positive belief that the
conclusions they have reached are true. The law demands no more.
What the respondent was seeking in the circumstances of the present case was to cause
an enquiry to be made, and the fact that he did not make enquiries before going to the
police cannot by itself be regarded as evidence of malice: Beech v Freeson.285 What the
appellant had to show at the trial was that the respondent not only spoke maliciously,
but did not make a bona fide use of the occasion.

Malice in connection with qualified privilege was one of the main issues in the recent
decision of the Barbados Court of Appeal in Phillips v Boyce.286 Here, the first defend-
ant, B, was employed as warehouse manager at the local branch of Price Smart, a
membership shopping club. During a staff meeting at Price Smart, at which various
matters including employer/employee relations, restructuring and redundancies
were discussed, B said: ‘I am not pleased at all having to come into a new position
and then having to fire so many people for stealing.’ The three claimants, whose
employment had been terminated about three weeks previously, one for insubordin-
ation, and the other two because they were ‘no longer required’, succeeded in estab-
lishing that B’s words were defamatory, in that reasonable persons would interpret
them as meaning that they (the claimants) had been dismissed for stealing. Simmons
CJ held that the occasion on which B’s words were spoken was a privileged one, in
that she had a duty to speak to the staff about such matters as ‘shrinkage’ and theft,
which were of direct interest to the employer, and the staff had a corresponding
interest in receiving information about fellow employees who were stealing from

283 [1972] AC 135.

284 Ibid, p 150.
285 [1972] 1 QB 14; Suckoo v Mitchell (1978) 16 JLR 261 (Court of Appeal, Jamaica)
286 (2006) 71 WIR 14 (Court of Appeal, Barbados).
284 Commonwealth Caribbean Tort Law

the company.287 However, Simmons CJ disagreed with the finding of the trial judge
that B was not motivated by malice in making her remarks. He said:
Qualified privilege is not a licence to be irresponsible, and if the privilege is not used in
a responsible way, an improper advantage may well be taken of the occasion . . . [B] was
warehouse manager . . . She dismissed some employees for stealing; she dismissed
others for different reasons, including redundancy. None of the [claimants] was dis-
missed for stealing and [B] knew that. She signed their letters of termination so that she,
of all the persons at the meeting, knew the real reasons for termination of the [claim-
ants’] employment . . . In our judgment, when [B] spoke at the meeting to other mem-
bers of staff, none of whom was privy to the reasons for termination of the [claimants’]
employment which had occurred shortly before the meeting, she was under a duty to be
responsible in what she said. She made a blanket, all-embracing statement about firing
staff for stealing. She did not exempt the [claimants] from her statement . . . The fact that
witnesses for the [claimants] concluded that the [claimants] were included in [B’s]
remarks is powerful evidence that she should have been less cavalier in her approach.
She knew the truth as it related to the [claimants], yet she made the remarks, heedless as
to whether they could be reasonably applicable to the [claimants] or not. She did not
exercise the degree of responsibility which the occasion required. In Panday v Gordon,288
Lord Nicholls explained the common law expansion of the concept of recklessness in
these words: ‘Now recklessness is being extended to include irresponsibility as object-
ively assessed by the court.’ In our opinion, the occasion was clothed with qualified
privilege but, looking at [B’s] statement objectively, we are of the view that she acted
irresponsibly and took improper advantage of the occasion when she spoke in such a
manner as to imply to the staff that the [claimants] had been dismissed for stealing . . .
We hold that [B] was guilty of malice in that she made the statements complained of
recklessly, not caring whether they were true or false in regard to the [claimants]. In
those circumstances, the proven malice defeats the plea of qualified privilege.

Publication by several persons

Where a defamatory statement is published jointly by several persons on a privileged

occasion, or where several persons, such as the author, printer and publisher of a
newspaper, take part in its dissemination, only those against whom express malice is
actually proved will be liable in defamation. This was decided in the case of Egger v
Chelmsford,289 which overruled earlier authority to the contrary. Thus, whereas the
malice of an agent may make his innocent principal liable on ordinary principles of
vicarious liability, the malice of the principal cannot make the innocent agent liable.
The agent would be liable only if express malice were proved against him personally.

ASSESSMENT OF DAMAGES IN DEFAMATION ACTIONS

The essential aim of an award of damages in a defamation action is to compensate the

plaintiff for the injury to his reputation. This would include:
. . . the natural injury to his feelings, the natural grief and distress which he may have
felt at having been spoken of in defamatory terms, and, if there has been any kind of

287 See also Gayle v Alcan Jamaica Co (2005) Supreme Court, Jamaica, No 2000/G-027 (unreported).
288 (2005) 67 WIR 290, p 296.
289 [1965] 1 QB 248.
 Chapter 10: Defamation 285

high-handed, oppressive, insulting or contumelious behaviour by the defendant which

increases the mental pain and suffering caused by the defamation and may constitute
injury to the plaintiff’s pride and self confidence, these are proper elements to be taken
into account.290
As we have seen,291 in all cases of libel and in those cases of slander which are action-
able per se, the law presumes that the plaintiff’s reputation will have suffered some
damage, and for this the court will award general damages;292 and if the plaintiff can
prove that he has incurred actual pecuniary loss as a result of the libel or slander, he
will be awarded a further sum by way of special damages. Whereas special damages,
being based upon proof of actual pecuniary loss, can be quantified with some accur-
acy, general damages are ‘at large’, that is, the judge is free to make his own estimate of
the damage, taking all the circumstances into account. In the words of Lord Atkin:293
It is precisely because the ‘real’ damage cannot be ascertained and established that the
damages are at large. It is impossible to track the scandal, to know what quarters the
poison may reach. It is impossible to weigh at all closely the compensation which will
recompense a man or woman for the insult offered or the pain of a false accusation.
Nevertheless, some attempt must be made to come to an appropriate figure and, in
doing so, the judge may take into account ‘the nature of the libel, the circumstances
and the extent of its publication294 and the whole conduct of the defendant’,295 from
the time when the defamatory matter was published to the time of the judgment.
Examples of matters which the judge may take into account are:
(a) the extent of the publication,296 including the extent of the circulation of a
newspaper297 or book in which the libel was published;
(b) the social or professional status of the plaintiff;298
(c) the conduct and demeanour of the defendant before and during the trial;299

290 McCarey v Associated Newspapers Ltd (No 2) [1965] 2 KB 86, p 104, per Pearson LJ; Forde v Shah
(1990) 1 TTLR 73 (High Court, Trinidad and Tobago).
291 See above, pp 218 et seq.
292 Gonsalves v The Argosy Co Ltd [1953] LRBG 61 (Supreme Court, British Guiana), p 67, per
Bell CJ.
293 Levy v Hamilton (1921) 153 LT 384, p 386.
294 In Blackman v The Nation Publishing Co Ltd (1997) 55 WIR 43 (High Court, Barbados), Payne J
pointed out that a scandalous story in a newspaper concerning schoolteachers who had
allegedly made pornographic videos featuring young female pupils, ‘having regard to the
community in which we live . . . would have a propensity to percolate, thus enlarging the
number of persons to whom the libel was published’. The defendant newspaper was liable
for repetition where this was the natural and probable result of the publication.
295 Praed v Graham (1889) 24 QBD 53, p 55, per Lord Esher MR.
296 In Phillips v Boyce (2006) 71 WIR 14 (Court of Appeal, Barbados), Simmons CJ pointed out
that the extent of a defamatory publication was always a relevant consideration in the
computation of damages for defamation, and defamation by a newspaper would tend to
attract a higher award of damages than a slander uttered at a staff meeting.
297 Bonnick v Morris (1998) Supreme Court, Jamaica, No B 142 of 1992 (unreported) [Carilaw JM
1998 SC 2]; Gonsalves v The Argosy Co Ltd [1953] LRBG 61 (Supreme Court, British Guiana),
p 67.
298 Bonnick v Morris (1998) Supreme Court, Jamaica, No B 142 of 1992 (unreported) [Carilaw JM
1998 SC 2]; Singh v The Evening Post (1976) High Court, Guyana, No 2754 of 1973 (unreported)
[Carilaw GY 1976 HC 16]; Husbands v The Advocate Co Ltd (1968) 12 WIR 454 (High Court,
Barbados).
299 Persaud v Kunar (1978) High Court, Guyana, No 435 of 1975 (unreported) [Carilaw GY 1978
HC 15]; Forde v Shah (1990) 1 TTLR 73; Collymore v The Argosy Co Ltd [1956] LRBG 183; Amory
v Daniel (2003) High Court, St Kitts and Nevis, No 19 of 1999 (unreported) [Carilaw KN 2003
HC 30].
286 Commonwealth Caribbean Tort Law

(d) whether the defendant persisted in a plea of justification which eventually failed;300
(e) whether the libel was published deliberately and wilfully, or merely by mistake or
carelessness;301
(f) whether the defendant made any apology to the plaintiff;302
(g) whether there was express malice on the defendant’s part.303
Where the damages are increased because of the defendant’s malice, persistence in an
ill-founded plea of justification, failure to make an apology, insolent or arrogant
demeanour, or other unacceptable conduct, they are said to be ‘aggravated’. The
traditional view is that the court has no power to make a further award of exemplary
(or punitive) damages in such cases, unless it is proved that the case comes within the
second category of exemplary damages laid down by Lord Devlin in Rookes v Barnard,
that is, where the defendant had contemplated that the profit he would make by the
publication would exceed the damages he might have to pay.304 Exemplary damages
were awarded on this basis by Hamel-Smith J in the Trinidadian case of Forde v Shah
and T & T Newspaper Publishing Group,305 where, as we have seen, the defendants had
published in their newspaper a false and defamatory report of the alleged death of a
popular singer from AIDS; though the learned judge took the view that he was ‘not
confined to considering simply whether the defendants calculated that, by publishing
the libel, they ran a better chance of making a profit in excess of what they may have
to pay in compensation’, but that he was ‘permitted to look at the issue from the broad
perspective that “tort cannot pay” ’. This broader approach to the question of
exemplary damages in defamation actions taken by Hamel-Smith J in the Forde case
was also relied upon by the OECS Court of Appeal in Mitchell v Fassihi.306 Here, an
article in the newspaper Grenada Today contained allegations to the effect that the
claimant, the Prime Minister of Grenada, had been using his office to harbour crim-
inals, to assist in money laundering, and to use public monies to set up private family
businesses. The lower court had declined to award exemplary damages in respect of
these defamatory statements, on the ground that the circumstances of the publica-
tion were not shown to have been within Lord Devlin’s second category in Rookes
v Barnard. The OECS Court of Appeal, however, held that ‘the narrow requirement
that a defendant must contemplate a profit exceeding the likely damages to be
assessed against him has been considerably widened’, as it had recently been stated
by Lord Nicholls in A v Bottrill,307 (a Privy Council case originating from New Zea-
land), that where a defendant’s conduct in committing a tort was so outrageous that
an order for payment of compensation would not be an adequate response, then
exemplary damages could be awarded ‘to demonstrate that such conduct is

300 Forde v Shah (1990) 1 TTLR 73. See also Smart v Trinidad Mirror Newspaper Ltd (1968) High
Court, Trinidad and Tobago, No 875 of 1965 (unreported) [Carilaw TT 1968 HC 7].
301 McGregor, Damages, 15th edn, 1988, London: Sweet & Maxwell, para 1674.
302 Collymore v The Argosy [1956] LRBG 183; Singh v The Evening Post (1976) High Court, Guyana,
No 2754 of 1973 (unreported) [Carilaw GY 1976 HC 16].
303 Singh v The Evening Post (1976) High Court, Guyana, No 2754 of 1973 (unreported) [Carilaw
GY 1976 HC 16].
304 [1964] AC 1129, p 1226.
305 (1990) 1 TTLR 73. See pp 261–63, above.
306 (2004) Court of Appeal, OECS (Grenada), Civ App No 22 of 2003 (unreported) [Carilaw GD
2004 CA 16]. See also Amory v Daniel (2003) High Court, St Kitts and Nevis, No 19 of 1999
(unreported) [Carilaw KN 2003 HC 30].
307 [2003] 3 WLR 1406. Cf Mosley v News Group Newspapers Ltd [2008] EMLR 20.
 Chapter 10: Defamation 287

altogether unacceptable to society’. According to Lord Nicholls, the court’s juris-

diction to award exemplary damages should be extended to all cases where the
defendant’s behaviour satisfied the criterion of ‘outrageousness’, which would nor-
mally involve intentional wrongdoing with the additional element of ‘flagrancy or
cynicism’. In the Mitchell case, Gordon JA took the view that the defendants had
committed an ‘egregious libel’; they had ‘not a scintilla of proof, nor even a whiff
of suspicion of the truth of their statements’; they had not offered any apology; and
they were ‘contemptuous of the right and entitlement of every citizen to enjoy his
reputation for rectitude, absent of proof to the contrary’. Exemplary damages were
accordingly awarded.
Damages may be mitigated (that is, decreased), on the other hand, on proof of
matters such as:
(a) the plaintiff’s general bad reputation;
(b) whether the plaintiff had already recovered damages or brought actions for the
same or similar libels; and
(c) whether an apology had already been published or offered by the defendant.308
As regards apology, in addition to the court’s general jurisdiction to take this factor
into account, s 9 of the Defamation Act, Cap 6:03 (Guyana), s 2 of the Libel and
Slander Act (Jamaica), s 3 of the Libel and Defamation Act, Cap 169 (Belize) and s 4
of the Libel and Defamation Act, Ch 11:16 (Trinidad and Tobago) provide that
the defendant in a defamation action may give evidence, in mitigation of damages,
that he made or offered an apology to the plaintiff for the defamation before the
commencement of the action or, where the action had commenced before there was an
opportunity of making or offering the apology, as soon afterwards as he had an
opportunity to do so.

308 Op cit, Carter-Ruck, fn 188, p 158.

 CHAPTER 11

PASSING OFF

DEFINITION

The essence of passing off is the selling of goods or the carrying on of a business in
such a manner as to mislead the public into believing that the defendant’s product or
business is that of the plaintiff, and ‘the law on this matter is designed to protect
traders against that form of unfair competition which consists in acquiring for oneself,
by means of false or misleading devices, the benefit of the reputation already achieved
by rival traders’.1
In Warnink v Townend and Sons Ltd,2 Lord Diplock identified five essential
ingredients of the tort:
(a) a misrepresentation;
(b) made by a trader in the course of trade;
(c) to prospective customers of his or ultimate consumers of goods or services
supplied by him;
(d) which is calculated to injure the business or goodwill of another trader (in the
sense that this is a reasonably foreseeable consequence); and
(e) which causes actual damage to a business or goodwill of the trader by whom the
action is brought, or (in a quia timet action) will probably do so.
These five elements must be proved to exist in any passing off action.3
Where passing off is proved, the successful plaintiff will be entitled to an injunc-
tion restraining the defendant from continuing the wrong, to damages for any loss
he has incurred thereby, and to an account of profits made by the defendant in
consequence of the tort.
Passing off takes various forms, the most common of which are the following.

Marketing a product as that of the plaintiff

It is actionable passing off for the defendant to sell merchandise with a direct statement
that the goods are manufactured by the plaintiff when, in fact, they are not. Thus, for
example, it would be passing off for D, a manufacturer of tyres, to advertise and sell
his tyres as ‘Goodyear’ or ‘Michelin’ tyres, since this would be an obvious attempt to
profit from the goodwill and reputation established by rival businesses. Similarly, it
has been held actionable for a book publisher to advertise and sell a book of poetry

1 Heuston and Buckley, Salmond and Heuston on the Law of Torts, 21st edn, 1996, London: Sweet &
Maxwell, p 382.
2 [1979] AC 731, p 742.
3 In Ciba-Geigy Canada Ltd v Apotex Inc [1992] 3 SCR 120 (SCC), the Supreme Court of Canada
concluded that ‘the three necessary components of a passing off action are . . . the existence of
goodwill, deception of the public due to a misrepresentation, and actual or potential damage to
the plaintiff.
 Chapter 11: Passing Off 289

with the name of Lord Byron on the title page when, in fact, that famous poet had
nothing to do with its authorship.4

Imitating the ‘get-up’ or appearance of the plaintiff’s goods

This is a common species of conduct actionable in passing off. The leading case is
White Hudson and Co Ltd v Asian Organisation Ltd,5 where the plaintiff company manu-
factured ‘Hacks’ cough sweets in Singapore, which were sold in red cellophane
wrappers and were known amongst the buying public as ‘red paper cough sweets’.
The defendant began to sell cough sweets in Singapore called ‘Peckos’, which were
also covered in red paper wrappers. The plaintiff proved that most of the buyers of
its sweets in Singapore could not read English and simply asked for ‘red paper cough
sweets’.
It was held that the court would protect the plaintiff’s interest in the appearance of
its product, and that the plaintiff would be granted an injunction to restrain the
defendant from passing off its sweets as if they were those of the plaintiff.
The much earlier Guyanese case of Mazawattee Tea Co Ltd v Psaila Ltd 6 illustrates
the same principle. In this case, the plaintiffs had, for more than 30 years, sold in
British Guiana (as it then was) a brand of tea called ‘Mazawattee’. The tea was sold in
wrappers having a dark blue label with a narrow white and blue border, and on the
label were printed the words ‘Mazawattee Tea for the Millions’. The defendants began
marketing a tea called ‘Mazarani’, which also had a dark label and a narrow white
and blue border on its wrapper. On the label appeared the words ‘Mazarani Tea’, with
a diamond shape placed between the two words. Berkeley J held that the get-up of the
defendants’ product was:
so similar to that adopted by the plaintiffs that it is calculated to deceive illiterate
persons and more especially those of the Indian race, who are unable to read or under-
stand English. They might very well take the defendants’ tea in the belief that they were
purchasing that of the plaintiffs. The defendants themselves have not given evidence
and no explanation has been given why they adopted labels so similar in appearance to
those of the plaintiffs.

Accordingly, an injunction was granted to restrain the passing off.

It is not passing off to imitate the appearance or shape of the plaintiff’s product
where such appearance or shape is necessary for the better performance of the type of
product, or for greater efficiency in handling or processing it; for example, where the
defendant manufactured shaving sticks, he could not be prevented from marketing a
standard type of container already used by the plaintiff, since the shape of the con-
tainer was dictated by purely functional considerations.7 But where the appearance or
shape of the plaintiff’s product is ‘capricious’, the defendant may be liable in passing
off if he imitates it.
Two other interesting examples of passing off by imitation of ‘get-up’ or appear-
ance in the Commonwealth Caribbean are Fruit of the Loom Inc v Chong Kong Man and
Ricks and Sari Industries Ltd v Gooding.

4 Byron v Johnston (1816) 35 ER 851.

5 [1964] 1 WLR 1466.
6 [1925] LRBG 56.
7 Williams v Bronnley (1909) 26 RPC 765.
290 Commonwealth Caribbean Tort Law

In Fruit of the Loom Inc v Chong Kong Man,8 the plaintiffs were manufacturers and
dealers in clothing, sheets and pillowcases. The plaintiffs had registered a trade mark
in Trinidad and Tobago under the Trade Marks Ordinance 1955 [see now Trade Marks
Act, Ch 82:81] in respect of such goods. Since 1961, the plaintiffs’ goods had been
packaged and sold in plastic bags bearing a distinctive label in substantially the form
of the trade mark. It comprised an ellipse, broken at the top by a bunch of mixed fruit,
with the words ‘Fruit of the Loom’ and ‘unconditionally guaranteed’ printed below.
From about 1967, the defendants, who were manufacturers and dealers in goods
similar to the plaintiffs’, began marketing their goods in plastic bags bearing a label
strikingly similar to that of the plaintiffs. The defendants’ label also comprised an
ellipse, broken at the top by a bunch of mixed fruit and the words ‘Tropical Fruit’
printed in a similar type of print and in a similar position to the plaintiffs’ ‘Fruit of
the Loom’, and the words ‘guaranteed to fit’ were printed below. McMillan J held,
inter alia, that the ‘get-up’ of the defendants’ packaging was so similar to that of the
plaintiffs as to be likely to cause confusion in the minds of the buying public, and the
plaintiffs were entitled to an injunction to restrain passing off. He said:9
As regards the claim for passing off, the plaintiffs must prove that the defendants’
conduct in using the mark or similar mark or ‘get-up’ is likely to deceive or cause
confusion and/or damage to the plaintiffs’ trade by passing off other goods as theirs or
by leading their customers to suppose that there is a connection between the defend-
ants’ goods and the plaintiffs’ business which does not in fact exist. As stated by Lord
Parker in Spalding v AW Gamage Ltd:10
The basis of a passing off action being a false representation by the defendant, it
must be proved in each case as a fact that the false representation was made. It
may, of course, have been made in express words but cases of express mis-
representation are rare. The more common case is implied in the use or imita-
tion of a mark, trade name, or get-up with which the goods of another are
associated in the minds of the public, or of a particular class of the public. In
such cases, the point to be decided is whether, having regard to all the circum-
stances of the case, the use by the defendant in connection with the goods of the
mark, name or get-up in question impliedly represents such goods to be goods
of the plaintiff or goods of the plaintiff of a particular class or quality, or, as
it is sometimes put, whether the defendant’s use of such mark or get-up is
calculated to deceive.
Thus the plaintiffs must prove their mark or get-up has become by user distinctive of
their goods and none other, so that the use in relation to any goods similar to those dealt
in by the plaintiffs of that mark or get-up will be understood by the trade and public in
this country as meaning that the goods are the plaintiffs’. It is admitted on the pleadings
that the label has become distinctive of the plaintiffs’ goods and none other, so that
again the issue left is whether the defendants’ mark or get-up is likely to deceive or
cause confusion. I have no evidence of actual confusion or of anyone being deceived,
counsel for the plaintiffs being content to rely on what he asserts is the similarity in
appearance of the two labels and the likelihood therefore of the public being deceived.
Counsel for the defendants, however, submitted that, in the absence of such evidence,
proof of a fraudulent intention to deceive is necessary. He referred to no authorities. The
authorities which I have been able to discover are to the contrary and their effect is
summarised in Kerly on Trade Marks, thus:11

8 (1972) 20 WIR 445 (High Court, Trinidad and Tobago).

9 Ibid, p 448.
10 (1915) 84 LJ Ch 449, p 450.
11 Kerly’s Law of Trade Marks and Trade Names, 8th edn, London: Sweet & Maxwell, p 334.
 Chapter 11: Passing Off 291

Passing off cases are often cases of deliberate and intentional misrepresentation,
but it is well settled that fraud is not a necessary element of the right of action,
and the absence of an intention to deceive is no defence.
Indeed, proof that someone has actually been deceived by the defendants’ get-up is not
necessary and an injunction will be granted if the ‘similarity is so great that any person
acquainted with the one might readily consider the other to be only a temporary or
occasional variation of it . . .’.12 In that case, there was evidence by one witness experi-
enced in the particular trade that the defendant’s mark or get-up might have deceived
him. I have no such evidence here. However, it seems to me that that question is one
purely of fact to be decided on a comparison by this court of all the similarities and
dissimilarities of the two marks or labels, and such other inferences as may be drawn
from the evidence including the absence of evidence of actual confusion, and on that
comparison I have come to the conclusion that the defendants’ label is a colourable
imitation of the plaintiffs’ labels . . .
Counsel for the defendants sought to distinguish the defendants’ mark, for example, by
the use of tropical fruit and the words ‘Tropical Fruit’, and the differences in colour and
sizes in the labels. I have no doubt that on very close examination these differences may
well be apparent, but I am equally satisfied that to the average purchaser who buys over
the counter the defendants’ mark or get-up will be mistaken for the plaintiffs’. The
arrangement is so similar that the colour tones and differences in the nature of the
fruit become insignificant and the whole representation is, as I have already said, a
colourable imitation of the plaintiffs’ get-up or package in which they sell their goods.

In Ricks and Sari Industries Ltd v Gooding,13 the plaintiffs were manufacturers and
distributors of condiments and spices. For 10 years, they had marketed and distrib-
uted curry powder in Barbados under the trade name ‘Sari’. In 1986, the defendant,
who had previously been employed by the plaintiffs as their agent in Barbados, began
to market his own brand of curry powder under the name ‘Sare Madras’. The plain-
tiffs brought an action for passing off based on the similarity between the names ‘Sari’
and ‘Sare’ and between the packaging of the two products.
It was held that it was immaterial whether or not the defendant intended to pass
off his goods as those of the plaintiffs. Since shoppers who had been accustomed to
buying ‘Sari’ curry powder were likely to be misled into believing the defendant’s
product was the same as the plaintiffs’, an injunction restraining the defendant from
using the name ‘Sare’ would be granted. Williams CJ stated:14
In Warnink v Townend and Sons Ltd,15 Lord Diplock identified five characteristics which
must be present in order to create a valid cause of action for passing off:
(1) a misrepresentation; (2) made by a trader in the course of trade; (3) to prospective
customers of his or ultimate consumers of goods or services supplied by him; (4) which
is calculated to injure the business or goodwill of another trader (in the sense that this
is a reasonably foreseeable consequence); and (5) which causes actual damage to a
business or goodwill of the trader by whom the action is brought or (in a quia timet
action) will probably do so . . .
The question, then, is whether the defendant’s use of his get-up with the mark ‘Sare’ in
relation to the curry power which he has put on the market represents such curry
powder to be that produced and marketed by the plaintiff under its get-up with the

12 Jay v Ladler (1888) 40 Ch D 649, p 653, per Kekewich J.

13 (1986) 21 Barb LR 281 (High Court, Barbados).
14 Ibid, p 285.
15 [1979] AC 731, p 742.
292 Commonwealth Caribbean Tort Law

mark ‘Sari’. It is for the court to decide this question by seeking to determine the
likelihood of ordinary purchasers of curry powder using ordinary caution being misled
or confused. As was said by Lord Denning in Newsweek Inc v BBC: 16
The test is whether the ordinary, sensible members of the public would be
confused. It is not sufficient that the only confusion would be to a very small,
unobservant section of society . . .
On the other hand, this is not to be taken to mean that a defendant will escape liability
by showing that a close inspection of his goods would disperse any misapprehension
which might initially have arisen. As Lord Selborne LC said in Singer Manufacturing Co
v Loog:17
The imitation of a man’s trade mark, in a manner liable to mislead the unwary,
cannot be justified by showing, either that the device or inscription upon the
imitated mark is ambiguous, and capable of being understood by different
persons in different ways, or that a person who carefully and intelligently exam-
ined and studied it might not be misled.
The defendant deposed that on every one of the containers of his curry powder there is
endorsed in a bold red square his name, address and telephone number; whereas the
plaintiff’s containers have boldly endorsed on them their manufacture by Risa St Lucia
Ltd with the company’s St Lucia address and telephone number. He emphasises that he
has deliberately placed his name, address and telephone number and used other char-
acteristics dissimilar from the plaintiff’s on all his containers in order to ensure that his
goods are clearly identified as his own and to distinguish them from the plaintiff’s
goods.
Mr Rodrigues [the plaintiff’s managing director] speaks of the similarity of the two
products in tone, colour, sizes, appearance and get-up. The defendant’s logo, he says, is
strikingly similar in its characteristics and appearance to that used by the plaintiff on its
packages. Mr Robello [the plaintiff’s marketing manager] details the points of similar-
ity. I saw packages of the two products and what struck me was that the mark ‘Sare’ is
prominently displayed on the defendant’s products in virtually the same position as
that in which the mark ‘Sari’ receives prominence on the plaintiff’s products. And I call
to mind the words of Lord Shand in Cellular Clothing Co v Maxton and Murray:18
There is a vital distinction in cases of this class between invented or fancy words
or names, or the names of individuals such as ‘Crowley’ or ‘Crowley Millington’
attached by a manufacturer to his goods and stamped on the articles manu-
factured, and words or names which are simply descriptive of the article manu-
factured or sold. The idea of an invented or fancy word used as a name is that it
has no relation, and at least no direct relation, to the character or quality of the
goods which are to be sold under that name. There is no room whatever for what
may be called a secondary meaning in regard to such words . . . The word used
and attached to the manufacture being an invented or fancy name, and not
descriptive, it follows that if any other person proceeds to use that name in the
sale of his goods it is almost, if not altogether, impossible to avoid the inference
that he is seeking to pass his goods off as the goods of the other manufacturer.
The plaintiff has been using the word ‘Sari’ for its condiments and spices for 42 years
and, in Barbados, for the past 10 years. Presumably, the word was chosen as having an
Indian connection by virtue of its being the name given to an article of clothing worn by
Hindu women. But it seems strange that, of all the combinations of letters from the
alphabet which are possible, the defendant should choose a combination so closely

16 [1979] RPC 441, p 447.

17 (1882) 8 App Cas 1, p 18.
18 [1899] AC 326, pp 338, 339.
 Chapter 11: Passing Off 293

resembling the plaintiff’s mark. He has not sought to explain why he chose that
sequence of letters and one is left to draw what seems to be the obvious inference and to
view with scepticism the defendant’s averment that he deliberately sought to ensure
that his goods are clearly distinguishable from the plaintiff’s.
In my judgment, the word ‘Sare’ on the defendant’s products is capable of confusing or
misleading the ordinary man using ordinary caution into believing that the products are
those of the plaintiff; indeed, it has already confused Mr Simpson, director of JB’s
Master Mart, who, in a letter to the plaintiff of 7 October 1986, asked to be advised
whether the two curry powder products were the same. The placing of the defendant’s
products on the ‘Sari’ shelf at the supermarket confirms that those at the supermarket
were confused. So was Mrs Harding, the Barbadian housewife who swore an affidavit
to that effect. I think that the following passage would indicate how members of the
public generally could become confused or misled. Lord Radcliffe said in De Cordova v
Vick Chemical Co Ltd:19
The likelihood of deception or confusion in such cases is not disproved by
placing the two marks side by side and demonstrating how small is the chance
of error in any customer who places his order for the goods with both the marks
clearly before him, for orders are not placed, or are often not placed, under such
conditions. It is more useful to observe that in most persons the eye is not an
accurate recorder of visual detail and that marks are remembered rather by
general impressions or by some significant detail than by any photographic
recollection of the whole.
Commenting on this, the authors of Passing Off- Law and Practice stated:20
The test for comparison of allegedly confusing similar names, marks or other
distinguishing indicia is not to compare them side by side but to take into
account the fact that the confusion which may occur will take place when the
customer has in his mind his recollection of the plaintiff’s mark which may well
be only an idea of the whole or actual mark . . . The court must allow for such
imperfect recollection and have special regard for those parts or the idea of the
mark which are likely to have stuck in the memory rather than those parts
which, being commonplace or insignificant, may well have been discarded.
Confusion between ‘Sari’ and ‘Sare’ could occur because a shopper who has been accus-
tomed to buy ‘Sari’ curry powder may have forgotten the precise name or spelling: see
Romer LJ in Bale and Church Ltd v Sutton 21 (in relation to ‘kleen off and ‘kleen up’).
The defendant avers that he did not intend to pass off his goods as those of the plaintiff.
But it is immaterial whether or not he had such an intention. Sir Wilfred Greene MR said
in Draper v Trist:22
There is one matter which I can get rid of at once, and that is the suggestion,
which was discussed to some extent in argument, that, in a claim for damages
based on passing off, it is essential to establish a fraudulent intent – which is the
same of course as a dishonest intent – on the part of the defendant. I should be
prepared myself to hold, if it were necessary to do, that now, both in claiming
damages and in claiming purely equitable relief, whether by way of injunction
or by way of account of profits, or both, fraud is not a necessary element in the
transaction.
Whether or not the defendant had an intention to deceive, in my judgment the plaintiff
has a substantial passing off case. The evidence points to misrepresentation calculated

19 (1951) 68 RPC 103, p 106.

20 Drysdale and Silverleaf, Passing Off- Law and Practice, London: Butterworths, para 4.41.
21 (1934) 51 RPC 129, p 141.
22 [1939] 3 All ER 513, p 517.
294 Commonwealth Caribbean Tort Law

to injure the goodwill which the plaintiff has acquired in the trade name ‘Sari’.
Misrepresentation was reasonably foreseeable and, in my view, actually foreseen by the
defendant.
On the question of damages, Draper v Trist23 is authority for the proposition that, in a
passing off action, once it is proved that deceptive goods have been put upon the
market, the plaintiff is entitled to damages; so that, apart from the affidavits filed
on behalf of the plaintiff, the law assumes that the presence on the market of the
defendant’s ‘Sare’ curry powder will have an adverse effect on the plaintiff’s business.
Would damages be an adequate remedy? There is evidence that the defendant’s curry is
inferior to the plaintiff’s. It is also in evidence that the plaintiff has other product lines
with the mark ‘Sari’, and dissatisfaction with its curry powder by reason of confusion
with the defendant’s product could spill over to the plaintiff’s other products and affect
its business generally. There could be difficulty in the assessment of damages, and an
injunction will be granted.
Neither the mark ‘Sare’ nor any mark like it should be used in the marketing of the
defendant’s curry powder.

Trading under a name so closely resembling that of the plaintiff as

to be likely to mislead the public into believing that the defendant’s
business and that of the plaintiff are one and the same
A well-known example of this type of passing off is Hendriks v Montagu,24 where the
Universal Life Assurance Society was granted an injunction restraining the defend-
ant’s company, which was incorporated later than the plaintiff company, from carry-
ing on business under the name ‘Universe Life Assurance Association’. James LJ
said:25
Now, is there such a similarity between those names as that the one is in the ordinary
course of human affairs likely to be confounded with the other? Are persons who have
heard of the Universal likely to be misled into going to the Universe? I should think,
speaking for myself, very likely indeed. Many people do not care to bear in mind
exactly the very letters of everything they have heard of.

A Bahamian case in which it was alleged that the defendant was liable for passing
off on this principle, as well as on the ground of imitation of get-up, is Emeralds of
Colombia Ltd v Specific Investments (Management) Co Ltd. 26 This case also illustrates how
the courts seek to hold the balance between, on the one hand, protecting the goodwill
of traders from unfair competition and, on the other, not unduly hampering robust
competition which is the lifeblood of a capitalist economic system.
In this case the plaintiff’s shop and the defendant’s shop overlooked one another
across a five-metre-wide walkway in the Freeport International Bazaar in Grand
Bahama. The shops traded under the names ‘Colombian Emeralds International’ and
‘The Colombian Shop’ respectively. Both shops sold emeralds and fine jewellery
and were advertised as such. The plaintiff, whose business was established before
the defendant’s, alleged that the public were misled into believing that the defend-
ant’s shop and the plaintiff’s shop were one and the same. The plaintiff sought an

23 Ibid.
24 (1881) 50 LJ Ch 456. A more recent Jamaican example is K-Mart Corp v Kay Mart Ltd (1997)
Supreme Court, Jamaica, No K 066 of 1995 (unreported).
25 Hendriks v Montagu (1881) 50 LJ Ch 456, p. 457.
26 (1989) 50 WIR 27 (Supreme Court, The Bahamas).
 Chapter 11: Passing Off 295

injunction to restrain the defendant from using the word ‘Emeralds’ in conjunction
with ‘Colombian’ in external signs advertising his business, and from using a green
colour scheme similar to that of the plaintiff’s shop.
It was held that the plaintiff was not entitled to an injunction. There were suf-
ficient visible differences between the two businesses which satisfied the law’s
requirements as to avoiding confusion. Gonsalves-Sabola J said:27
C [the sole shareholder of the defendant company] is a dynamic entrepreneur geared
for growth and expansion. He did not scruple about taking competition literally right to
the doorstep of his competitor. His bold, aggressive sign advertisement and promotion
of The Colombian Shop on the virtual threshold of the plaintiff’s shop was calculated
to overshadow his more established conservative rival across the way and capture
the attention of tourists and other potential customers and lure them into his emporium.
In a free enterprise economic system, there is nothing reprehensible in robust competi-
tion once it does not run counter to the commercial mores recognised by the law. If,
by his strategy of competition, C can fairly be said to have misled or be likely to mislead
the public into believing that The Colombian Shop was the plaintiff’s shop, and into
acquiring goods in the former shop, believing that they were the goods of the latter,
he will have crossed the line which separates lawful competition from tortious
passing off.
In Kerly’s Law of Trade Marks and Trade Names,28 there is the following general definition
of the nature of the action of passing off:
It is an actionable wrong for the defendant to represent, for trading purposes,
that his goods are those or that his business is that of the plaintiff, and it makes
no difference whether the representation is effected by direct statements, or by
using some of the badges by which the goods of the plaintiff are known to be
his, or any badges colourably resembling these, in connection with goods of the
same kind, not being the goods of the plaintiff, in such a manner as to be
calculated to cause the goods to be taken by ordinary purchasers for the goods
of the plaintiff.
Halsbury’s Laws of England 29 notes that:
The same principles as apply to goods apply to misrepresentations relating to
businesses or services, so that the misrepresentation may be that the defend-
ant’s business is the business of the plaintiff . . . or that the defendant . . . has
some special relationship with the plaintiff.
Commercial morality is not necessarily co-terminous with a puritan’s conception of
morality. Although on religious or ethical grounds one may baulk at the idea that a
trader could take deliberate, active steps to bring about the failure of his competitor’s
business, it is no tort where the trader, by virtue of aggressive advertisement and sales-
manship, even grating on more refined sensibilities at times, so expands his own busi-
ness that the inevitable result is the decline or collapse of his rival’s. Sargant J in Spalding
v AW Gamage Ltd said:30
It seems to me that a trader may commend or puff his own goods to an
unlimited extent without giving a cause of action to another trader, although
the latter, if he is more scrupulous in his statements, may have been considerably
prejudiced by the glibness, or the exaggeration, of the first trader.
Keen competition between traders is the very oxygen of trade in the open market place.

27 Ibid, p 32.
28 Kerly’s Law of Trade Marks and Trade Names, 11th edn, 1983, London: Sweet & Maxwell.
29 Halsbury’s Laws of England, 4th edn, London: Butterworths, Vol 48, para 146.
30 (1913) 30 RPC 388, p 395.
296 Commonwealth Caribbean Tort Law

The law is supportive of the economic system and does not lend its aid to monopolistic
practices among traders.
Lord Simonds in the Office Cleaning Services case31 said that:
It is undesirable that a first user of descriptive words should be entitled to
demand that a second user should differentiate by any form of limiting words.
To speak of a monopoly is inaccurate, but anything that looks like a monopoly is
suspect . . .
[His Lordship considered at length a number of authorities, in particular My Kinda Town
Ltd v Soll,32 Cellular Clothing Co v Maxton and Murray 33 and Reddaway v Banham,34 then
continued:]
. . . C held for the defendant company a licence from the Port Authority to carry on
the business of the retail sale of Colombian manufactured goods, and goods that are
characteristic of Colombia and Central America, excluding foodstuffs.
The defendant was confined by its licence to the specific site in the International Bazaar
where The Colombian Shop is located. Its licence brought it into physical propinquity to
the plaintiff, because the layout of the Bazaar necessitated the concentration in the
Spanish Section of businesses with a Spanish flavour. The fact that the defendant was
specifically licensed to retail ‘Colombian manufactured goods, and goods that are char-
acteristic of Colombia’ set the stage for close-range competition for custom between
it and the plaintiff, whose shop was already well on its way as a retailer of similar
Colombian goods when The Colombian Shop first began its trading in them. I con-
sidered that the defendant, like the plaintiff, was forced to trade in the inescapable
ambience of conducting competition while confined into small compartmentalised
national sections of the International Bazaar. C reacted to the confinement by striking
out with aggressive signs to attract the best possible share of the custom in Colombian
emeralds.
Assuming that the plaintiff’s shop did not exist, it goes without saying that the defend-
ant was entitled to advertise its merchandise whether by the signs and brochures and in
the colours it used in precisely the way it did. Similarly, it must have been entitled to
adopt for The Colombian Shop the decor it used. The only caveat here is the one raised
in the statement of claim to the effect that the first defendant’s use of the combination of
the words ‘Colombian’ and ‘Emeralds’ and the colour green trenched on the plaintiff’s
own use in trade of the said words and colour since 1980.
I fail to find anything distinctive in the descriptive words ‘Colombian Emeralds’ used in
combination, nor has any secondary meaning of those words been proved. On the mass
of evidence before me I find as a matter of fact that externally there are significant points
of architectural and artistic distinction between the shops of the plaintiff and the first
defendant. Internally, although in a broad general sense the two shops may have certain
points of similarity, as is inevitable having regard to their common line of business, I am
unable to find that the first defendant was imitating the internal decor of the plaintiff’s
shop either at all or, even if so to any extent, that such imitation taken either alone or in
combination with the other features of the first defendant’s shop, was likely to deceive
members of the public into believing that there was any connection between the two
shops.
The plaintiff does not trade in its own corporate name but, legitimately, as ‘Colombian
Emeralds International’. However, in trading under the name ‘The Colombian’ and
exhibiting on its fascia the descriptive phrase ‘Colombian Emeralds’, the first defendant,

31 Office Cleaning Services Ltd v Westminster Window and General Cleaners Ltd (1946) 63 RPC 39, p 42.
32 [1983] RPC 407.
33 [1899] AC 326.
34 (1896) 13 RPC 218.
 Chapter 11: Passing Off 297

I find, achieved, as a matter of words, the ‘small differences’ Lord Simonds spoke about
in Office Cleaning Services Ltd v Westminster Window and General Cleaners Ltd 35 that a court
should accept as adequate to avoid confusion . . . A certain degree of similarity, even
imitation, may occur where a new shop commenced business on the doorstep, as it
were, of another shop already successfully established in a particular line of trade. As
authority has shown (for example, Payton v Snelling, Lampard and Co)36 the new trader
may fairly copy certain features from a rival business, provided that he takes care to
distinguish his business from the earlier one
...
Despite the disavowal by the plaintiff of any claim to a monopoly in the use of the
words ‘Colombian Emeralds’ and the colour green, I have reluctantly come to view
the crux of its case as an assertion, perhaps unintended, of a right virtually tantamount
to an exclusivity of use. My impression is that the plaintiff assumed that its established
reputation as a Colombian emeralds trader in the Bazaar entitled it to automatic protec-
tion under the law against the use by a competitor of certain indicia of the trade
by which the plaintiff had customarily advertised its business and marketed its
product.
Because the plaintiff took the chance to use descriptive words like ‘Colombian Emeralds’
and colours common in the trade in its name and in advertisement and promotion of its
business, it needs to go yet one step beyond proving its good reputation in the trade. It
must go on to prove by appropriate evidence, which it did not, that its competitor’s use
of those words and colours in the promotion of its business had the effect on potential
customers [of] a misrepresentation calculated to deceive them that the business of the
competitor was the plaintiff’s. On the contrary, the first defendant has been able to point
to visible differences between the two businesses which, in my opinion, satisfy the law’s
requirements as to avoiding confusion.

The Emeralds of Colombia case also shows that, as a general rule, there can be no
proprietary interest in a geographical name. In another Bahamian case, Lyford Cay Co
Ltd v Lyford Cay Real Estate Co Ltd,37 the plaintiff, a property developer who traded
under the name ‘Lyford Cay Co Ltd’, sought to restrain the defendant, his former
partner in the business, from using the name ‘Lyford Cay Real Estate Co Ltd’ in his
(the defendant’s) new business. Malone J held that the ‘court is unwilling to permit a
company to obtain the monopoly of a local name so as to restrain others from using
the name of a locality as part of their trade name’.38 The plaintiff did not have any
proprietary interest in what was a geographical name of long standing, and it was not
passing off for the defendant to use a similar name.

Marketing goods under a trade name already appropriated for goods

of that kind by the plaintiff, or under a name so similar to the
plaintiff’s trade name as to be mistaken for it

A trade name is one under which goods are sold or made by a certain person and
which by established usage has become known to the public as indicating that those
goods are the goods of that person. Purely descriptive names, that is, names which
indicate merely the nature of the goods sold and not that they are the merchandise of

35 (1946) 63 RPC 39, p 42.

36 [1901] AC 308.
37 (1988–89) 2 Carib Comm LR 93.
38 Ibid, p 97.
298 Commonwealth Caribbean Tort Law

any particular person or company, such as ‘stout’,39 ‘vacuum cleaner’,40 ‘cellular

textiles’41 or ‘gripe water’,42 are not protected unless the plaintiff can prove – and the
burden of proof is a heavy one – that the descriptive name has acquired a secondary
meaning so exclusively associated with the plaintiff’s product that its use by the
defendant is calculated to deceive purchasers.43
The protection of trade names applies not only to manufacturers and traders, but
also to any artist, writer or musician who comes to be known under a particular name
which becomes part of his stock-in-trade. Thus, for example, where the plaintiff band-
leader broadcast on a radio programme under the bizarre name ‘Dr Crock and his
Crackpots’, the defendant was restrained by injunction from putting another band on
the programme under the same name.44
As in the case of names appropriated to a business (as seen in the previous section),
a description of goods by geographical origin will not usually give rise to a propri-
etary interest; so, for example, there can be no property right in the description
‘Moroccan Leather’, ‘Worcestershire Sauce’, or ‘Yorkshire Relish’. However, if the
geographical description is part of the plaintiff’s goodwill then it may be passing off
for the defendant to use it. The leading case is Bollinger v Costa Brava Wine Co Ltd.45
There, the plaintiffs were champagne producers from the Champagne region of
France. They sought an injunction to restrain the defendants, who were wine mer-
chants in Spain, from putting on the market as ‘Spanish Champagne’ a sparkling
wine which was not produced in the Champagne district. It was held that the word
‘Champagne’ was not merely a geographical description but was actually part of the
plaintiffs’ goodwill, which was entitled to protection.

Marketing goods with the trade mark of the plaintiff or with any
deceptive imitation of such mark 46

A trade mark is any design, picture, mark, name or other arrangement affixed to
goods which identifies those goods with the manufacturer or vendor. Trade marks
receive protection not only under the law of passing off, but also, if registered, under
the relevant trade marks legislation, under which most actions are brought.47

39 Raggett v Findlater (1873) LR 17 Eq 29.

40 British Vacuum Cleaner Co Ltd v New Vacuum Cleaner Co Ltd [1907] 2 Ch 312.
41 Cellular Clothing Co v Maxton and Murray [1899] AC 326.
42 Re Woodward’s Trade Mark (1915) 85 LJ Ch 27.
43 See Reddaway v Banham (1896) 13 RPC 218. In De Cordova v Vick Chemical Co Ltd (1951) 68 RPC
103, the Privy Council held that the term ‘vapour rub’ was not a merely descriptive one, but had
become in Jamaica (though not in England) exclusively associated with the plaintiff’s product.
44 Hines v Winnick [1947] Ch 708.
45 [1961] 1 WLR 277. See also John Walker and Sons Ltd v Henry Ost and Co Ltd [1970] 1 WLR 917
(‘Scotch Whisky’).
46 A modern, and analogous, activity which may constitute passing off is the registering of
internet domain names as variations of the names of well-known companies (eg, a variation of
burgerking.com), followed by the offering of the domain names for sale to those companies at
exorbitant prices with an expressed or implied threat to allow them to be used for deception or
to block legitimate registration. See BT plc v One in a Million Ltd [1999] 1 WLR 903.
47 See Fruit of the Loom Inc v Chong Kong Man (1972) 20 WIR 445 (above, pp 289–91). See also
Colgate-Palmolive v Pattron [1978] RPC 635, where it was held that the use of the mark
‘Tringate’ for toothpaste marketed in Trinidad and Tobago infringed the trade mark ‘Colgate’
and amounted to passing off, since ordinary consumers might conclude that ‘Tringate’
toothpaste was in fact ‘Colgate’ toothpaste manufactured in Trinidad.
 Chapter 11: Passing Off 299

DEFENDANT’S CONDUCT MUST BE ‘CALCULATED TO DECEIVE’

It is well settled that a defendant may be liable for passing off, even though his
conduct was entirely honest and innocent, in the sense that he had no intention to
deceive.48 Liability in this tort is strict, and all the plaintiff needs to show is that the
defendant’s activities are ‘calculated’, that is ‘likely’, to deceive the public. The follow-
ing passage from Kerly on Trade Marks 49 was cited by McMillan J in Fruit of the Loom Inc
v Chong Kong Man:50
Passing off cases are often cases of deliberate and intentional misrepresentation, but it is
well settled that fraud is not a necessary element of the right of action, and the absence
of an intention to deceive is no defence.

However, the presence or absence of fraud on the part of the defendant is not entirely
irrelevant, since:
(a) where fraud is proved, the burden of showing likelihood of damage is compara-
tively light, for ‘the court will readily assume that the defendant will succeed in
accomplishing that which he has set himself to accomplish’,51 but where there is
no fraud, the burden is a heavier one; and
(b) it has been suggested, but not conclusively decided, that, where passing off is
‘innocent’, only nominal damages may be awarded.52
It is not necessary to prove that deception has actually taken place. It is sufficient for
the plaintiff to show that deception is likely to occur in the future; and if he can show
this, he may obtain a quia timet injunction.
In determining whether confusion is likely, the court will take into account the
experience, perceptiveness and standards of literacy of prospective purchasers of the
goods, and the standard of awareness to be expected of a purchaser is not that of an
observant person making a careful examination, but that of a casual and unwary
customer. As Lord Macnaghten once graphically put it: ‘. . . thirsty folks want beer,
not explanations.’53 Thus, for example, in Bollinger v Costa Brava Wine Co Ltd,54 it was
to be expected that the ordinary members of the public who bought champagne might
confuse the defendants’ ‘Spanish Champagne’ with the genuine article produced in
the Champagne region of France, and this entitled the plaintiffs to an injunction to
restrain the use by the defendants of the word ‘Champagne’ as a description of their
sparkling wine.

48 Baume and Co Ltd v Moore Ltd [1958] Ch 907; Ricks and Sari Industries Ltd v Gooding (1986) 21
Barb LR 281 (High Court, Barbados) (see above, pp 291–94); Fruit of the Loom Inc v Chong Kong
Man (1972) 20 WIR 445 (see above, pp 289–91).
49 Op cit, Kerly, fn 11, p 334.
50 (1972) 20 WIR 445.
51 Op cit, Heuston and Buckley, fn 1, p 385.
52 Draper v Trist [1939] 3 All ER 513, pp 518, 525, 528.
53 Montgomery v Thompson [1891] AC 217, p 225.
54 [1961] 1 WLR 277.
300 Commonwealth Caribbean Tort Law

USE OF DEFENDANT’S OWN NAME

There is some uncertainty as to the extent to which it is a defence for a defendant

to plead in a passing off action that he was merely making use of his own name.
According to Salmond and Heuston:
It would appear . . . that, subject to certain qualifications, an individual is entitled to
trade under his own name regardless of the fact that his business may be thereby
confused with a business of some other person bearing the same or a similar name. Nor
does it make any difference in such a case that a trader using his own name is well
aware of the fact that his business will be confused with that of a rival trader, and
intends to take the advantage which such confusion will confer upon him. This can be
very inconvenient, but not necessarily wrongful.55

The right of a manufacturer to use his own name in marketing his product received a
severe jolt in Parker-Knoll Ltd v Knoll International Ltd.56 In this case, both parties were
furniture manufacturers and both belonged to the Knoll family. The plaintiffs were
well established in the UK, where they sold their furniture under the brand name
‘Parker-Knoll’. When the defendants later commenced selling furniture under the
name ‘Knoll International’, the plaintiffs sought an injunction to restrain use of the
name in the UK, on the ground that the public might be deceived into believing that
the defendants’ goods were manufactured by the plaintiffs. The House of Lords
upheld the plaintiffs’ contention. A distinction was drawn between using a personal
name as a business name, which will not be restrained, provided the defendant acts
honestly, and using it as a mark for goods, which will be restrained if confusion is likely
to result. The justification for this odd distinction is allegedly that some other mark
can easily be found for marketing goods.

COMMON FIELD OF ACTIVITY

Where the plaintiff and the defendant are not engaged in the same trade, it is much
more difficult to show that the public is likely to be confused by the defendant’s
activity. It was once stated to be the rule that there can be no passing off unless the
plaintiff and the defendant share a ‘common field of activity’,57 but nowadays, it
seems that the position is more flexible, and the courts tend to grant relief in cases
where the trade connection is more tenuous than would formerly have been accepted.
The Australian courts in particular have cast doubt on the validity of the ‘common
field of activity’ rule.58 Clarke J in Robert Marley Foundation v Dino Michelle Ltd,59 in the
Jamaican Supreme Court, preferred the Australian view.
Two cases which illustrate the ‘common field of activity’ principle are McCullough
v May 60 and Granada Group Ltd v Ford Motor Co Ltd.61 In the former case, the plaintiff
was a well-known children’s broadcaster who used the name ‘Uncle Mac’ on his radio

55 Op cit, Heuston and Buckley, fn 1, p 386.

56 [1962] RPC 265. See Kodilinye, G (1975) 26 NILQ 177.
57 McCullough v May [1947] 2 All ER 845.
58 Henderson v Radio Corp [1960] SR (NSW) 576.
59 See below, pp 302–305.
60 [1947] 2 All ER 845.
61 [1972] FSR 103.
 Chapter 11: Passing Off 301

programme. He sought to restrain the defendant from calling its breakfast cereal
‘Uncle Mac’s Puffed Wheat’. The action failed, since there was no common field of
activity between the parties and, therefore, no risk of confusion in the minds of the
public. Similarly, in the Granada case, the plaintiff company, a large entertainment and
leisure organisation, was unable to obtain an injunction to restrain the defendant from
calling its new car ‘Granada’, since there was no risk that the public would confuse
the two very different businesses.

INJURY TO GOODWILL

Since passing off is based on injury to the plaintiff’s goodwill, he must show that his
product has acquired a reputation in the particular jurisdiction. In the Bahamian case
of Bombay Spirits Co Ltd v Todhunter-Mitchell and Co Ltd,62 this requirement was lacking.
Here the appellants acquired a substantial reputation for their ‘Bombay Dry Gin’ in the
US. The respondents had begun to distil and sell gin in Grand Bahama under the name
‘Bombay Brand Dry Gin’ a few months before the appellants began to market their gin
there. The appellants sought an injunction in The Bahamas to restrain the sale of the
respondents’ gin under the name ‘Bombay Brand Dry Gin’ on the ground, inter alia,
that, since much of the gin sold in Grand Bahama was sold to tourists from the US,
where the appellants had advertised and sold their product, the appellants were
entitled to protect the goodwill they had implanted in the minds of such visitors.
The Court held that the appellants had not established any reputation or goodwill
in The Bahamas entitling them to an injunction, and there was insufficient evidence of
any ‘migratory’ goodwill. Sinclair P said:63
Before the appellants could succeed in the action, it was necessary for them to establish
that their Bombay gin had acquired in The Bahamas a reputation as their gin, for the
action for passing off is based on injury to the plaintiff’s goodwill.
In order to obtain redress in an action for passing off, the trader who sues must prove
that his goods are known to and recognised by the public, or by a particular section of
the public who deal in that type of goods, by a particular name, mark, get-up or other
accompaniment, which is associated in their mind with his goods alone. It is immaterial
whether the name or mark is a registered trade name or a registered trade mark, or
whether the get-up includes a registered design, or whether the actions of the trader
who is sued do or do not constitute infringement (Kerly, The Law of Trade Marks, 7th edn,
1951, pp 387, 550) . . .
A trader has no property in a trade name, trade mark or particular get-up. The object of
the action is to protect the goodwill of the trader who sues. Goodwill, being invisible, is
represented by visible symbols such as trade names, trade marks, get-up and other
accompaniments associated with goods of a particular trader. Every article which is
sold by such a trade name, or bears such a trade mark, get-up or accompaniment, has
behind it an element of the particular trader’s goodwill and reputation, and a rival or
second trader by adopting that trade name, trade mark, get-up or accompaniment, or a
substantial part of it, with the result that the public are misled into thinking that the
goods of the second trader are the goods of the first trader, commits an actionable
wrong and appropriates to himself part of the goodwill of the first trader.64

62 (1965–70) 1 LRB 143 (Court of Appeal, The Bahamas).

63 Ibid, p 145.
64 Spalding v AW Gamage Ltd (1915) 84 LJ Ch 449.
302 Commonwealth Caribbean Tort Law

The question for decision is whether, by April 1964, when the respondents made the
first sales of their Bombay gin, the appellants had acquired a sufficient reputation for
their brand in The Bahamas to succeed in an action for passing off.
It is common ground that, so far as sales of their respective brands of gin in The Bahamas
are concerned, the respondents were first in the field, the first sales of the appellants’
brand not being until the middle of May, 1964. But to establish the reputation of their
Bombay gin in The Bahamas, the appellants relied, first, on advertisements in trade
directories and in American magazines, which, it was said, have a circulation in The
Bahamas, and, secondly, on the large sales of gin to tourists from the US, where it was
said the appellants’ brand of gin is well known to the public . . .
As to this the Chief Justice said that any goodwill and repute which the appellants
might have acquired amongst Bahamians by advertising could only have been minimal.
I am in entire agreement with that finding. As to the advertisements in trade directories,
there was no evidence as to the circulation of such directories in The Bahamas other
than the evidence of Mr Sands, the owner of four liquor stores, who said that he read the
1964 Trade Annual Diary but did not see the appellants’ advertisement in it. In any
event, I do not think there was any real possibility of deception in the trade . . .
I now turn to the more important question whether a reputation or goodwill was
established in relation to the American tourists as a particular section of the public in
The Bahamas. It may well be that, though they are transitory, they could be considered
as a particular section of the public in The Bahamas, and for the purposes of this appeal
I shall treat them as such, though I make no decision on the point.
The Chief Justice found that the goodwill and repute which the appellants may have
acquired by implanting a desire for their Bombay gin in the minds of American tourists
was of too nebulous a character to be taken into consideration. Again, I can find no good
ground for disagreeing with that finding. It was not in dispute that, at least up to the
date of the action, more gin was sold to American tourists than to the local people, but
the appellants’ share of the American market was small compared with brands such as
‘Gordon’s’ and ‘Beefeater’, also imported from England. In 1964, for instance, two mil-
lion cases of ‘Gordon’s’ gin were sold in the US, and three-quarters of a million cases of
‘Beefeater’ gin were sold in 1965, whereas the appellants sold under 18,000 cases in
1964. As the Chief Justice observed, the appellants were minnows among Titans. In
Florida, from which a substantial proportion of the American tourists would probably
come, the number of cases sold in 1964 was only 300. Furthermore, the only evidence of
actual knowledge of ‘Bombay’ gin among American tourists came from Mr Ramsay, the
manager of a liquor store, who said that in 1962 he heard of ‘Bombay’ gin from an
American customer. In my view, the evidence falls far short of establishing the neces-
sary reputation and goodwill in respect of the appellants’ Bombay gin among American
tourists in the Bahamas.

On the other hand, in Robert Marley Foundation v Dino Michelle,65 the goodwill attached
to the music and songwriting ‘business’ of the late Bob Marley was clearly established
in Jamaica. In this case, the plaintiff’s business included selling T-shirts bearing reggae
star Bob Marley’s name, image or likeness, and licensing persons to use such name,
etc, on T-shirts in Jamaica. The defendant commenced manufacturing and selling
T-shirts in Jamaica bearing Bob Marley’s image and the words ‘Bob, 1945–1981’. The
defendant’s T-shirts were alleged to be of inferior quality to the plaintiff’s.
It was held that goodwill was attached to Bob Marley’s name and likeness and
this goodwill had been acquired by the plaintiff. The defendant’s conduct was calcu-
lated to mislead the public into believing that a commercial arrangement existed

65 (1994) 31 JLR 197.

 Chapter 11: Passing Off 303

between the plaintiff and the defendant. Since the plaintiff’s goodwill was likely to be
damaged thereby, the defendant was liable in passing off. Clarke J said:66
[Passing off ] is committed where a trader so conducts his business as to lead the public
to believe that his goods or business are the goods or business of, or are associated with,
another trader as a result whereof the business or goodwill of the latter is really likely
to be damaged. In this area of the law, the term ‘trader’ is wide, especially where, as
here, the defendant’s activities are of a commercial nature. The term includes incorpor-
ated non-profit and charitable bodies which, like the plaintiff, sell or distribute goods
in connection with the activities they were formed to promote (see Lagos Chamber of
Commerce Inc v Registrar of Companies 67 and National Incorporated Association v Barnardo
Amalgamated Industries Ltd 68), and, although the plaintiff is a company formed for pro-
moting art, science, religion or charity, the law and the company’s very constitution
sanction its trading activities. So, Mr Grant’s submission that such a company has no
business interest to be protected by the doctrine of passing off has only to be stated to be
rejected.
Warnink v Townend and Sons Ltd 69 is a leading case on the passing off action. That case
went up to the House of Lords. The plaintiffs had for many years manufactured and
distributed in Britain a popular liquor called ‘advocaat’. Made in the Netherlands by a
number of manufacturers, including the plaintiffs, it had been sold in Britain for many
years, where it had acquired a substantial reputation and goodwill as a distinct and
recognisable beverage. The defendants made and marketed in England a similar (but
differently constituted) drink described as ‘Keeling Old English Advocaat’. Although it
could not be shown that it was mistaken for Dutch advocaat, it captured a substantial
part of the plaintiffs’ English market.
The plaintiffs’ passing off action succeeded. The defendants, it was held, were seeking
to take advantage of the goodwill attached to the name ‘advocaat’ as a description of the
Dutch product by misrepresenting that their product was related or connected to that
product. The leading speeches, Lord Diplock’s and Lord Fraser’s, make it plain that a
product, which had gained a reputation in the market by reason of its recognisable and
distinctive qualities of name and composition and had thereby generated the relevant
goodwill, should be protected from deceptive use of its name by competitors. The
injunction granted at first instance was restored because all the tests for a passing off
action were met.
By combining the tests propounded by Lords Diplock and Fraser, a learned editor has,
in my view, correctly analysed the essential ingredients of a passing off action as
follows:
(1) that the plaintiff’s business comprises selling in [Jamaica] a class of goods to which
the particular trade name [face, likeness or image] applies;
(2) that the name [face, likeness or image] is distinctive of the plaintiff’s goods;
(3) that goodwill is attached to the name [face, likeness or image] and is the plaintiff’s;
(4) that the defendant has made a representation;
(5) that he has done so in the course of trade to customers or ultimate recipients of the
goods;
(6) that the business or goodwill of the plaintiff is really likely to be damaged (see Clerk
and Lindsell on Torts, 16th edn, London: Sweet & Maxwell, pp 30–39).
There can therefore be no valid cause of action for passing off if there is no invasion of

66 Ibid, p 201.
67 (1956) 72 RPC 263.
68 (1950) 66 RPC 103.
69 [1979] AC 731.
304 Commonwealth Caribbean Tort Law

the goodwill of a trader’s business by a false representation made by another trader in

the course of trade.
As far as concerns the question of misrepresentation, the plaintiff in the instant case
obviously has no cause of action for passing off in the classic form of a trader represent-
ing his goods as the goods of another. Mr Grant submitted before me that if the
misrepresentation is not so limited it is unavailing. That was what counsel for the
respondent had unsuccessfully submitted before the House of Lords in the Warnink
case. That is, of course, not the law. The law has developed at least to the point where it
is enough that the misrepresentation is calculated to give one trader the benefit of
another’s goodwill.
This development has been engendered by Lord Parker’s seminal identification of
the nature of the proprietary right ‘the invasion of which is the subject of . . . passing
off actions’ as the ‘property in the business or goodwill likely to be injured by the
misrepresentation’.70
In the instant case, the misrepresentation is not in dispute. By manufacturing and
selling T-shirts bearing Bob Marley’s image or likeness and the appellation ‘Bob,
1945–1981’, the defendant has misled the public to believe that an association, be it
commercial or otherwise, exists between the plaintiff and the T-shirts being sold by the
defendant.
That is, however, not all. The statement of claim must plead not only facts showing the
defendant’s acts of misrepresentation, but must also plead facts leading to the conclu-
sion that the plaintiff is entitled to the relevant goodwill. This, Mr Grant submitted, had
not been done.
Although goodwill as a concept is wide, ‘goodwill as the subject of proprietary rights is
incapable of subsisting by itself. It has no independent existence apart from the business
to which it is attached’: Star Industrial Co Ltd v Yap Kwee Kor.71 it is, as Lord Macnaghten
once said, ‘the benefit and advantage of the good name, reputation and connection of a
business. It is the attractive force which brings in custom’.72
Now, the late Bob Marley was a musician and songwriter of international stature.
Millions of copies of the songs he wrote and recorded have been sold worldwide both
before and after his death in 1981. From these primary facts I conclude that he was a
celebrity who had a music and songwriting ‘business’ of international proportions. And
whilst it has not been shown that he was involved in manufacturing and/or selling
T-shirts, he had . . . the sole or exclusive right (subsequently acquired by the plain-
tiff) to use or license other persons to use in Jamaica his name and likeness for
commercial gain.
The plaintiff’s business includes: (a) selling T-shirts bearing Marley’s name and image
or likeness, etc; and (b) licensing persons to use Marley’s name, image or likeness, etc,
on T-shirts or otherwise. The plaintiff, ‘whose existence and purposes are a matter of
public knowledge’, has in fact licensed, and is negotiating to license, various persons in
Jamaica to use Marley’s name and likeness as aforesaid. Indeed, two non-exclusive
licence agreements, made between the plaintiff and third persons for valuable consider-
ation, were admitted in evidence. So, the clear and reasonable inference must be that
‘because of the good name, reputation and connection of [the plaintiff’s] business’ vari-
ous persons have for commercial purposes paid, or are prepared to pay the plaintiff for
use on T-shirts, etc. Bob Marley’s name and likeness or other indicia of his personality.
These are clearly ‘the attractive force which brings in custom’. Add to that the allega-
tions, admitted by the defendant, that its use of Bob Marley’s name and likeness on

70 Spalding v AW Gamage Ltd (1915) 84 LJ Ch 449, p 450.

71 [1976] FSR 256, p 269, per Lord Diplock.
72 IRC v Muller and Co [1901] AC 213, pp 223, 224.
 Chapter 11: Passing Off 305

T-shirts it sells has led to the public’s mistaken belief that there is a connection between
its goods and the plaintiff, resulting in loss and damage to the plaintiff.
The facts as pleaded therefore lead to the inescapable conclusion that goodwill is
attached to Bob Marley’s name and likeness in connection with the plaintiff’s business.
And that goodwill belongs to the plaintiff. It has been invaded by the defendant’s
aforesaid misrepresentation.
The detriment suffered by the plaintiff by this invasion of its goodwill is underscored by
this, that the defendant has employed goods of inferior quality to the plaintiff’s in
making the false representation according to which the public has been misled into
believing that a commercial arrangement exists between the plaintiff and the defendant.
So I disagree with Mr Grant’s submission that, in manufacturing and selling the said
T-shirts, the defendant was merely satisfying a popular demand.
Mr Grant submitted that, in any event, an action in passing off is not maintainable
as, according to him, the facts show that the parties are not engaged in a common
field of activity. A number of things must be said about that submission. First of all,
although only the plaintiff licenses persons to utilise in Jamaica Bob Marley’s name and
likeness, both parties sell T-shirts with Bob Marley’s name and likeness printed thereon.
Secondly, as the businesses of the parties therefore overlap, this case does not violate the
principle of the decision of the English Court of Appeal in McCullough v May 73 (relied on
by Mr Grant) that, in a passing off action, the parties must have a common field of
activity, on the basis that otherwise they would not be business rivals. Thirdly, with
great respect, I am not persuaded that I ought to accept that proposition for, even
though it has not been violated in the instant case, as Evatt CJ and May J reasoned in
rejecting it in the Full Court of the Supreme Court of New South Wales in Henderson v
Radio Corp: 74
. . . if deception and damages are proved, it is not easy to see the justification for
introducing another factor as a condition of the court’s power to intervene.
In that case, the plaintiffs were well known professional ballroom dancers. Their
photographs had been used, without consent, by the defendants on the cover of a
gramophone record of dance music. Even though a common field of activity was found
to exist, there is much force in the learned judges’ reasoning and I respectfully adopt it.
From the foregoing analysis, I consider it plain that the facts presented by the statement
of claim disclose a cause of action for passing off.

73 [1947] 2 All ER 845 (see above, p 300).

74 [1960] SR (NSW) 576, p 592.
 CHAPTER 12

VICARIOUS LIABILITY

DEFINITION

The expression ‘vicarious liability’ refers to the situation where D2 is liable to P for
damage caused to P by the negligence or other tort of D1. It is not necessary that
D2 should have participated in the tort or have been in any way at fault. D2 is
liable simply because he stands in a particular relationship with D1. That relation-
ship is normally one of master and servant or, in modern parlance, ‘employer and
employee’.
In early medieval times a master was held responsible for all the wrongs of his
servants. Later, as the feudal system disintegrated, the ‘command theory’ emerged,
under which a master was liable only for those acts of his servants which he had
ordered or which he had subsequently ratified.1 Later still, with the development and
expansion of industry and commerce, the ‘command theory’ fell into disuse for two
main reasons: first, under modern conditions, it was no longer practicable for an
employer always to control the activities of his employees, especially those employed
in large businesses; and, secondly, the greatly increased hazards of modern enterprises
required a wider range of responsibility on the part of employers than that which had
been imposed in earlier times. The theory of vicarious liability which eventually
emerged was that a master is liable for any tort committed by his servant in the course
of the servant’s employment, irrespective of whether the master authorised or ratified
the activity complained of, and even though he may have expressly forbidden it.
The modern theory of vicarious liability is based not on fault but on consider-
ations of social policy.2 It may seem unfair and legally unjustifiable that a person
who has himself committed no wrong should be liable for the wrongdoing of
another; on the other hand, it may be argued that a person who employs others to
advance his own economic interests should be held responsible for any harm caused
by the actions of those employees,3 and that the innocent victim of an employee’s
tort should be able to sue a financially responsible defendant,4 who may in any
case take out an insurance policy against liability. The cost of such insurance will,
of course, ultimately be passed on to the public in the form of higher prices. How-
ever, care should be taken not to hamper business enterprise unduly by imposing too
wide a range of liability on employers. Therefore, there is the requirement that a
master will be liable only for those torts which his servant committed during the
course of his employment – that is, while the servant was doing the job he was
employed to do.5

1 For a history of the doctrine, see Holdsworth, History of English Law, 7th edn, 1956–72, Vol III,
London: Sweet & Maxwell, pp 472 et seq. On state liability in the Caribbean, see Rawlins, H (1997)
7 Carib LR 497.
2 Imperial Chemical Industries Ltd v Shatwell [1965] AC 656, p 686.
3 Duncan v Finlater (1839) 7 ER 934, p 940, per Lord Brougham.
4 In most cases, the employee will not have the resources to pay the plaintiff’s damages, and so will
not be worth suing.
5 The onus of proving the existence of a master/servant relationship and the commission of the tort
during the course of the servant’s employment rests on the plaintiff.
 Chapter 12: Vicarious Liability 307

SERVANTS AND INDEPENDENT CONTRACTORS

A person who is employed to do a job may be either a servant or an independent con-

tractor. It is important to decide which category he comes into, for whilst an employer is
liable for the torts of his servants, he is generally not liable for those of his independent
contractors.6 The traditional test for determining this question is that of control:
A servant may be defined as any person employed by another to do work for him on the
terms that he, the servant, is to be subject to the control and directions of his employer:
an independent contractor is one who is his own master. A servant is a person engaged
to obey his employer’s orders from time to time; an independent contractor is a person
engaged to do certain work, but to exercise his own discretion as to the mode and time
of doing it – he is bound by his contract, but not by his employer’s orders.7

A servant is employed under a contract of service, whereas an independent contractor

is employed under a contract for services:
The distinction between the contract for services and the contract of service can be
summarised in this way: in the one case the master can order or require what is to be
done; while in the other case he can not only order or require what is to be done but
how it shall be done.8

Thus, for example, a maid in a private house would be under the control of her
employer as to how she did her job, and she would therefore be employed under a
contract of service; whereas an electrician or plumber employed to do a particular job
in the house would be under the control of his employer only as to what he must do,
not as to how he should do it, and he would therefore act under a contract for services.
Again, a man who was employed as a regular driver would be the servant of his
employer, whereas a taxi driver engaged for a particular journey or journeys would
be an independent contractor of the person who engaged him.
However, although the control test may be satisfactory in the most basic domestic
situations, it has proved to be quite inadequate in the context of modern business
enterprise, where large organisations commonly employ highly skilled professional
persons under contracts of service, and yet do not or cannot control the manner in
which they do their work. For example, it would be absurd to suggest that a pilot who
was employed by Air Jamaica could be controlled as to the manner in which he flew a
plane, or that a surgeon in the UWI Teaching Hospital in Jamaica could be controlled
as to the manner in which he performed an operation; nevertheless, the pilot and the
surgeon would be the servants of the airline and the hospital respectively.
A useful alternative to the control test, and one which is more in keeping with the
realities of modern business, is what may be called the ‘organisation test’.9 This test
was explained by Denning LJ thus:10

6 Quarman v Burnett [1835–42] All ER Rep 250. See, generally, Bacchus, R, in Kodilinye,
G and Menon, PK (eds), Commonwealth Caribbean Legal Studies, 1992, London: Butterworths,
pp 287–311.
7 Heuston and Buckley, Salmond and Heuston on the Law of Torts, 21st edn, 1996, London: Sweet &
Maxwell, p 435.
8 Collins v Hertfordshire CC [1947] KB 598, p 615, per Hilbery J.
9 Fleming, The Law of Torts, 6th edn, 1983, Sydney: LBC Information Services, p 344.
10 Stevenson, Jordan and Harrison Ltd v Macdonald and Evans Ltd [1952] 1 TLR 101, p 111.
308 Commonwealth Caribbean Tort Law

Under a contract of service, a man is employed as part of a business, and his work is
done as an integral part of the business; whereas under a contract for services, his work,
although done for the business, is not integrated into it but is only accessory to it.

On this test, the following are examples of servants of the organisations which employ
them: hospital doctors and nurses, university lecturers, schoolteachers, bank clerks,
office clerical staff, airline pilots, newspaper editors, factory workers and hotel staff;
and the following are examples of independent contractors: freelance journalists and
photographers, attorneys, architects and engineers in private practice, self-employed
electricians, carpenters, plumbers and taxi drivers driving their own vehicles.
A third test which has been suggested is that of MacKenna J in Ready Mixed
Concrete (South East) Ltd v Minister of Pensions.11 This is known as the ‘multiple’ or
‘mixed’ test. The three conditions suggested by MacKenna J for the existence of a
contract of service or employment are:
(a) the employee agrees to provide his work and skill to the employer in return for
a wage or other remuneration;
(b) the employee agrees, expressly or impliedly, to be directed as to the mode of
performance to such a degree as to make the other his employer; and
(c) the other terms of the contract are consistent with there being a contract of
employment.
In applying the test, however, the courts do not confine themselves to the three listed
factors; rather, they consider a wide range of factors, including the degree of control
over the worker’s work; his connection with the business; the terms of the agreement
between the parties; the nature and regularity of the work; and the method of payment
of wages.
The Jamaican Court of Appeal in Harris v Hall 12 adopted the guidelines suggested
by Cooke J in Market Investigations Ltd v Minister of Social Security,13 to the effect that:
Control will no doubt always have to be considered, although it can no longer be
regarded as the sole determining factor . . . Factors which may be of importance are such
matters as whether the man performing the services provides his own equipment,
whether he hires his own helpers, what degree of financial risk he takes, what degree of
responsibility for investment and management he has, and whether and how far he has
an opportunity of profiting from sound management in the performance of his task.

LENDING A SERVANT

Where X, the general employer of Y, agrees to ‘lend’ Y to Z, and whilst in the tempor-
ary service of Z, Y commits a tort, the general employer will remain liable, unless he
can prove – and the burden of proof is a heavy one – that, at the time the tort was
committed, he had temporarily divested himself of all control over the servant.14 In

11 [1968] 2 QB 497.
12 (1997) 34 JLR 190 (Court of Appeal, Jamaica).
13 [1968] 3 All ER 732, p 737.
14 It is easier to show that the hirer had control where the servant is an unskilled labourer under
a labour-only contract than where he is borrowed along with a complicated piece of
machinery which he is to operate (eg, the crane driver in the Mersey Docks case): Garrard v
AE Southey & Co Ltd [1952] 2 QB 174, p 179.
 Chapter 12: Vicarious Liability 309

Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd,15 the appellants
employed Y as a driver of a mobile crane. They hired out the crane, together with Y
as driver, to the respondents, a stevedoring company, for use in unloading a ship.
The contract between the appellants and the respondents provided that Y was to be
the servant of the respondents, but Y was paid by the appellants, who alone had the
power of dismissal. Whilst loading the cargo, Y was under the immediate control of
the respondents, in the sense that they could tell him which boxes to load and where
to place them, but they had no power to tell him how to manipulate the controls of the
crane. In the course of loading a ship, a third party was injured through Y’s negligent
handling of the crane. The House of Lords had to decide whether it was the appellants
or the respondents who were vicariously liable for Y’s negligence, and the answer to
this question depended upon whether he was the respondents’ or the appellants’
servant at the time of the accident. Lord Porter said16 that, in order to make the
respondents liable, it was not sufficient to show that they controlled the task to be
performed: it must also be shown that they controlled the manner 17 of performing it.
And, ‘where a man driving a mechanical device, such as a crane, is sent to perform a
task, it is easier to infer that the general employer continues to control the method of
performance, since it is his crane and the driver remains responsible to him for its safe
keeping’. The court therefore held that the appellants alone were vicariously liable.
In Texaco Trinidad Inc v Halliburton Tucker Ltd,18 Corbin JA emphasised that:
. . . there is a presumption against there being a transfer of a servant so as to make the
temporary employer responsible for his acts, and a heavy burden rests upon an
employer who seeks to establish such a transfer. The test has sometimes been concisely
expressed as being whether the servant or the benefit of his work was transferred.

These principles were applied in the Bahamian case of Joseph v Hepburn.19 In this case,
H engaged an independent contractor, S Ltd, to clear his land of bush. In the course of
clearing the land, A, a tractor driver employed by S Ltd, encroached upon the plain-
tiff’s adjacent land and destroyed a number of fruit trees. The main issue in the case
was whether S Ltd, as general employer of A, was liable for A’s tort, or whether, as
S Ltd alleged, the responsibility for the tort had been shifted to H as special employer.
The contractual arrangement between H and S Ltd showed that H had identified the
general area in which work was to be done and S Ltd arranged for its project manager
to accompany H to the site to see what was required. S Ltd had delegated the tractor
driver, A, to take instructions from H, but A’s wages were paid by S Ltd.
Thorne J said that whether A was to be regarded as the servant of the general
employer, S Ltd, ‘or whether he became pro hac vice the servant of his particular
employer [H] is a question of fact and depends upon an interpretation of the agree-
ment made between [S Ltd and H]’. His Lordship held that S Ltd had ‘failed to
discharge the heavy burden on it to shift to [H] its prima facie responsibility for the acts
of the driver, and so, [A] remained the servant of [S Ltd]. To use the language adopted
in many of the cases, what was transferred was not the servant but the use and benefit

15 [1947] AC 1.
16 Ibid, p 17.
17 See also Courage Construction Ltd v Royal Bank Trust Co (Jamaica) Ltd (1992) 29 JLR 115, p 119, per
Rowe P.
18 (1975) Court of Appeal, Trinidad and Tobago, Civ App No 80 of 1970 (unreported) [Carilaw
TT 1975 CA 39].
19 (1992) Supreme Court, The Bahamas, No 762 of 1989 (unreported) [Carilaw BS 1992 SC 39].
310 Commonwealth Caribbean Tort Law

of his work’. Thorne J ultimately held, however, that H had been negligent in his
failure to give clear instructions to A with respect to the extent of his boundaries, and
S Ltd was entitled to recover from H 10% of the damages that it was liable to pay to
the plaintiff.

COMMISSION OF A TORT BY THE SERVANT

For the master to be vicariously liable, the plaintiff must first prove the commission of
a tort by the servant. As Denning LJ explained:20 ‘. . . to make a master liable for the
conduct of his servant, the first question is to see whether the servant is liable. If the
answer is “yes”, the second question is to see whether the employer must shoulder
the servant’s liability.’
In other words, vicarious liability of the master arises only on the primary liability
of the servant.

RES IPSA LOQUITUR

Sometimes, it may be difficult or impossible to prove affirmatively which one of

several servants was negligent. For instance, if the plaintiff complains of negligent
treatment during an operation in hospital, it may be impossible for him to show
which one or more of the team of surgeons, anaesthetists and nurses involved in the
operation were careless. As far as the liability of hospitals is concerned, it was estab-
lished in Cassidy v Ministry of Health 21 that, where the plaintiff has been injured as a
result of some operation in the control of one or more servants of a hospital authority,
and he cannot identify the particular servant who was responsible, the hospital
authority will be vicariously liable, unless it proves that there was no negligent treat-
ment by any of its servants; in other words, res ipsa loquitur applies. In the absence of
authority to the contrary, there seems to be no reason why this principle should not
apply to other master/servant relationships.

THE COURSE OF EMPLOYMENT

A master will not be vicariously liable for his servant’s tort unless the plaintiff shows
that the servant committed the tort during the course of his employment. A tort comes
within the course of the servant’s employment if:
(a) it is expressly or impliedly authorised by his master; or
(b) it is an unauthorised manner of doing something authorised by his master; or
(c) it is necessarily incidental to something which the servant is employed to do.22
Although this definition is easy enough to state, the second and third circumstances in
particular have proved to be very difficult to determine in practice, and it is now
accepted that the question of whether a servant’s act is within the course of his

20 Young v Box and Co Ltd [1951] 1 TLR 789, p 793.

21 [1951] 1 All ER 575.
22 Winfield and Jolowicz, Tort, 15th edn, 1998, London: Sweet & Maxwell, p 703.
 Chapter 12: Vicarious Liability 311

employment is ultimately one of fact in each case.23 We must now examine some of
the relevant factors which the courts will take into account when considering the
question.

Manner of doing the work the servant was employed to do

A master will be liable for the negligent act of his servant if that act was an
unauthorised mode of doing what the servant was employed to do. The classic
example is Century Insurance Co Ltd v Northern Ireland Road Transport Board.24 There,
the driver of a petrol tanker, whilst transferring gasoline from the vehicle to an under-
ground tank at a filling station, struck a match in order to light a cigarette and then
threw it, still alight, on the floor. His employers were held liable for the ensuing
explosion and fire, since the driver’s negligent act was merely an unauthorised
manner of doing what he was employed to do, that is, to deliver gasoline.
On the other hand, in Beard v London General Omnibus Co,25 the employers of a bus
conductor who took it upon himself to turn a bus around at the terminus and, in so
doing, negligently injured the plaintiff, were held not liable because the conductor
was employed to collect fares, not to drive buses, and his act was entirely outside the
scope of his employment.26

Authorised limits of time and place

A relevant factor in determining whether or not a servant’s tort is within the course of
his employment is the time or place at which it is committed. As regards time, where
a tort is committed during working hours or within a reasonable period before or
after, the court is more likely to hold the employer liable for it. Thus, where a clerk
turned on a tap in the washroom 10 minutes after office hours and forgot to turn it off
before going home, his employers were held liable for the consequent flooding of
adjoining premises. The use of the washroom by the clerk was an incident of his
employment and the negligent act took place only a few minutes after working
hours.27 As regards the place where the tort is committed, a difficult question which
has frequently come before the courts is whether a driver/servant is within the course
of his employment where he drives negligently after making a detour from his
authorised route. The principle to be applied in these cases was laid down by Parke B
in Joel v Morrison:28
If he was going out of his way, against his master’s implied commands, when driving
on his master’s business, he will make his master liable; but if he was going on a frolic of
his own, without being at all on his master’s business, the master will not be liable.

23 United Africa Co Ltd v Owoade [1957] 3 All ER 216, p 218, per Lord Oaksey.
24 [1942] 1 All ER 491.
25 [1900] 2 QB 530. But the employer may be liable for the negligence of his driver in failing to
keep proper control. See below, p 329.
26 See also Douglas v Kingston and St Andrew Corp (1981) 18 JLR 338 (employer held not liable for
negligent driving of garbage truck by sideman, since ‘it was clearly outside the scope of his
employment as sideman or loader to drive the truck and he was not otherwise expressly
authorised to do so’).
27 Ruddiman and Co v Smith (1889) 60 LT 708.
28 (1834) 172 ER 1338.
312 Commonwealth Caribbean Tort Law

Whether a detour by the servant amounts to a ‘frolic of his own’ is a question of

degree, and both the extent of the deviation and its purpose will be taken into
account. Thus, for example, where a servant, who was in charge of a horse and cart
throughout the day, drove them to his house without permission for his midday meal,
the employer was held liable for damage caused by the horse when, having been
carelessly left unattended outside the servant’s home, it ran away. In this case, the
servant had deviated only a quarter of a mile off his authorised route, and the purpose
of the detour – to obtain refreshment – was reasonably incidental to his employ-
ment.29 On the other hand, where a driver had been sent to deliver wine and collect
empty bottles and, on the return journey, deviated from his route in order to pick up a
cask at the house of a friend and take it somewhere else for the friend’s private
purposes, the employer was held not liable for the driver’s negligent driving on the
way to the friend’s house, for he was clearly on a frolic of his own.30
In the Jamaican case of Dunkley v Howell,31 R was employed to drive Mrs W in the
defendant/appellant’s car to May Pen and thereafter to Mrs W’s home at Mocho,
where the car was to be garaged. On reaching May Pen, Mrs W remained there, but R
drove the car to Thompson Town for his own private purposes. On his way back from
Thompson Town, R negligently ran into the back of the plaintiff’s car, causing dam-
age. The resident magistrate held that, as R’s mission would not have been completed
until he garaged the car at Mocho, which he was ‘on his way to do’, he must be taken to
have been acting within the course of his employment or agency at the time of the acci-
dent. The Jamaican Court of Appeal, however, overruled the magistrate, holding, in
effect, that R was on a frolic of his own at the material time. Graham-Perkins JA said:32
The implication is clear that since Reid’s mission would not have been completed until he
had garaged the car, the extent of that mission was to be determined not by reference to
the explicit instructions and authority given him by the defendant/appellant, and which
the magistrate had found to be limited to a particular and precise journey, but rather by
reference to whichever place Reid elected to visit. Let it be assumed that Reid had chosen
to go to Negril, either at the direction of Mrs Wynter or of his own volition, having taken
Mrs Wynter to, and left her at, May Pen. Would he, in the face of his instructions and
authority, have been acting as the agent or servant of the appellant? His ‘mission’ would
not, in the view of the resident magistrate, have ended until he had returned from Negril
and parked the car in the Wynter’s garage. Any such conclusion necessarily does vio-
lence to language and begs the very question posed by the evidence, namely: what was
Reid’s mission? That mission, in our view, ended at Mocho, where he ought to have
parked the appellant’s car. Beyond that point, he was driving the appellant’s car neither
as his agent nor as his servant. To hold otherwise is to make the relationship between
principal and agent or between master and servant depend not on what the agent or
servant was employed to do, but rather on what the servant or agent chooses to do.

More recently, Lord Lowry in Smith v Stages analysed the position in the form of the
following propositions:33

29 Whatman v Pearson (1868) LR 3 CP 223; Harvey v RG O’Dell Ltd [1958] 2 QB 79. But stopping at a
bar ‘to drink liquor and carouse with women cannot in any way be regarded as incidental to
one’s job’: Swaby v Metropolitan Parks and Markets (2004) Supreme Court, Jamaica, No CLS 123
of 2000 (unreported) [Carilaw JM 2004 SC 18], per Sinclair-Haynes J.
30 Storey v Ashton (1869) LR 4 QB 476.
31 (1975) 24 WIR 293 (Court of Appeal, Jamaica).
32 Ibid, p 295.
33 [1989] 1 All ER 833, p 851.
 Chapter 12: Vicarious Liability 313

• an employee who is travelling from his home to his regular place of work or vice
versa is not within the course of his employment,34 but if the employee is required
by his contract of employment to use the employer’s transport then he will nor-
mally be regarded as being within the course of his employment when travelling
to work;
• an employee who is travelling between workplaces35 or is in the course of a
peripatetic occupation is within the course of his employment;
• an employee is within the course of his employment if he travels in his employer’s
time from his home to a workplace which is not his regular place of work, or to the
scene of an emergency;
• a deviation from a journey undertaken in the course of employment will take the
employee outside the course of his employment for the duration of the deviation,
unless the deviation is merely incidental36 to the journey;
• receipt of wages rather than a travelling allowance suggests that the journey is for
the benefit of the employer and, therefore, within the scope of the employment.

Express prohibition
A master may be liable for his servant’s act even though he expressly forbade such act;
for if it were the rule that disobedience to express orders necessarily took the servant
outside the course of his employment, ‘the employer would only have to issue specific
orders not to be negligent in order to escape liability for his servant’s negligence’.37
The existence of an express prohibition is, however, a factor to be taken into account,
and it is now established that a distinction must be drawn between:
(a) prohibitions which limit the sphere of employment; and
(b) prohibitions which merely deal with conduct within the sphere of employment.
Only a breach of the first type of prohibition will take the servant outside the course of
his employment and thus relieve the master from liability: his liability will be
unaffected by a breach of the second type of prohibition.38
Thus, for example, where a bus driver had been given express instructions not to
race with or obstruct the buses of rival companies and, in disobedience to this order,
he obstructed the plaintiff’s bus and caused a collision which damaged it, the driver’s
employers were held liable because the express prohibition did not limit the sphere of
the bus driver’s employment, but merely sought to control his conduct within the
scope of his employment.39

34 See Hunt v National Insurance Board (1997) Supreme Court, The Bahamas, No 620 of 1996
(unreported) [Carilaw BS 1997 SC 40], where Sawyer CJ also held that the fact that the
employee received a travel allowance was not conclusive of the issue; see also Griffith v Resort
Divers Ltd (2005) Supreme Court, Jamaica, No CL2000/G015 (unreported) [Carilaw JM 2005
SC 9].
35 See REMS Co Ltd v Frett (1996) Court of Appeal, British Virgin Islands, Civ App No 4 of 1995
(unreported) [Carilaw VG 1996 CA 1].
36 A recent example of ‘incidental deviation’ is Mills v AG (2005) High Court, St Kitts and Nevis,
No HCV 1998/0038 (unreported) [Carilaw KN 2005 HC5] (police officer’s deviation from his
proper route in order to drop off a colleague at her home, held not to take the officer outside
the course of his employment).
37 Brazier, Street on Torts, 9th edn, 1993, London: Butterworths, p 500.
38 Plumb v Cobden Flour Mills Co Ltd [1914] AC 62, p 67.
39 Limpus v London General Omnibus Co (1862) 158 ER 993.
314 Commonwealth Caribbean Tort Law

Similarly, where the defendants expressly prohibited their staff from driving
uninsured cars on the company’s business, and one of their employees drove an
uninsured car in disobedience of the order and negligently injured the plaintiff, the
defendants were held liable, since:
. . . it was not the acting as driver that was prohibited, but the non-insurance of the
motor car, if used as a means incidental to the execution of the work which he was
employed to do. It follows that the prohibition merely limited the way in which, or the
means by which, the servant was to execute the work which he was employed to do,
and that breach of the prohibition did not exclude the liability of the master to third
parties.40

On the other hand, in the Bahamian case of Clarke v William Brewer Co Ltd,41 there was
a prohibition which limited the sphere of the servant’s employment, disobedience to
which absolved the employer from liability. In this case, the company’s truck drivers
had been expressly forbidden to drive trucks on Sundays, unless they were instructed
to do so. In disobedience to this rule, H, a driver, drove one of the company’s trucks
on a Sunday without permission and on personal business. Holding the company not
liable for the death of another motorist caused by H’s careless driving of the truck,
Adam J said:
In Canadian Pacific Rly Co v Lockhart,42 the Privy Council’s judgment was delivered by
Lord Thankerton, who said that all cases of master and servant relationships fell under
three heads, of which the first was where the servant was using his master’s time or his
master’s place or his master’s houses, vehicles, machinery or tools for his own purposes.
In such a case, the master was not responsible. The situation in the instant case falls
under this head and is distinguished from that in Rose v Plenty,43 where the milk rounds-
man’s disregard of his employers’ instructions was a wrongful performance of his
employers’ business, and not for his own purposes, and was therefore inside the scope
of his employment.
I find that the driver was not using the truck for the owner’s purposes and was not
driving it under delegation of a task or duty. He was not acting as the company’s agent.
The [driver] was under a prohibition which limited the sphere of his employment. The
[employer] is therefore not liable for the [driver’s] tort.

Giving lifts to unauthorised passengers

A particular difficulty arises in cases where a driver/servant, in defiance of express

instructions, gives a lift in his employer’s vehicle to an unauthorised person, such as
a friend or a stranger, and that person is injured through the servant’s negligent
driving.
Clearly, where the giving of the lift involves a substantial detour from the driver’s
authorised route, or where the journey is unauthorised from the outset, the driver
will have gone on a frolic of his own; but where he gives the lift in the course of
driving on his employer’s business and without deviating from his proper route,
it might be thought that the employer would be liable, since the prohibition would
appear not to limit the sphere of the driver’s employment but merely to regulate his

40 Canadian Pacific Rly Co v Lockhart [1942] AC 591.

41 (1983) Supreme Court, The Bahamas, No 27 of 1980 (unreported) [Carilaw BS 1983 SC 64].
42 [1942] AC 591.
43 [1976] 1 All ER 97.
 Chapter 12: Vicarious Liability 315

conduct within the sphere of employment. This view has not, however, found favour
with the courts.
A well known case is Twine v Bean’s Express Ltd.44 The plaintiff’s husband, T, was
given a lift in a van driven by X, the defendants’ employee. T was killed by the
negligent driving of X. X had been instructed that no one, other than those employed
by the defendants, should be allowed to travel in the van, and there was a notice to
that effect inside the van. Uthwatt J held that the defendants owed a duty of care only
to persons who might reasonably be anticipated by the defendants as being likely to
be injured by negligent driving of the van at the time and place in question, and that,
in the circumstances of the case, T was a trespasser in the van, to whom no duty of
care was owed, because the defendants could not reasonably have anticipated his
presence in the van at the material time. The decision of Uthwatt J45 was upheld by the
Court of Appeal, but Lord Greene used a different reasoning from that of the lower
court, preferring to decide the question according to whether or not the driver was
acting within the course of his employment at the material time. On the facts of the
case, his Lordship reasoned that:
[The servant] was in fact doing two things at once. He was driving his van from one
place to another by a route that he was properly taking . . . and as he was driving the
van he was acting within the scope of his employment. The other thing that he was
doing simultaneously was something totally outside the scope of his employment,
namely, giving a lift to a person who had no right whatsoever to be there.46

The Twine case was distinguished in Rose v Plenty,47 where, contrary to express
instructions from his employer, a milkman took a 13-year-old boy on board his milk
float to assist him in delivering milk. Owing to the milkman’s negligence, the boy was
injured. It was held that the employer was vicariously liable for the milkman’s neg-
ligence, on the ground that the prohibition against permitting boys to ride on the milk
float had not restricted the scope of the milkman’s employment; it merely affected the
manner in which the milkman did his job. Twine was distinguished by Lord Denning
MR on the ground that the giving of the lift in that case was not for the benefit of the
employer, whereas in Rose the plaintiff’s presence on the milk float was to further the
employer’s business.
Questions relating to the giving of lifts to unauthorised passengers have been
discussed in several Commonwealth Caribbean cases, where the circumstances have
been diverse. In Subhaga v Rahaman,48 for instance, the defendant’s servant, E, whilst
driving the defendant’s truck back to the latter’s factory, gave a lift to the plaintiff,
an unauthorised passenger. As a result of E’s negligent driving, the truck struck a
bridge and the plaintiff was injured. There was no evidence that E had been expressly
forbidden to give lifts to strangers. Bollers J pointed out49 that:
. . . the defendant was seeking to bring the facts of this case within the principle laid
down in Twine v Bean’s Express Ltd. In Twine’s case, however, express instructions that no

44 [1946] 1 All ER 202; on appeal (1946) 62 TLR 458 (CA).

45 [1946] 1 All ER 202, p 204.
46 (1946) 62 TLR 458, p 459. For a critique of Lord Greene’s judgment, see Newark, FH (1954) 17
MLR 102.
47 [1976] 1 All ER 97.
48 [1964] LRBG 112 (High Court, British Guiana).
49 Ibid, p 114.
316 Commonwealth Caribbean Tort Law

unauthorised person was allowed on the van were given and a notice to that effect was
put up in the vehicle. In the present case, no such position obtained.

The learned judge then continued:50

It is well settled that, where the relationship of master and servant exists, the master is
liable for the torts of the servant committed in the course of his employment. The tort or
wrongful act is deemed to be done in the course of the employment if it is either: (1) a
wrongful act authorised by the master; or (2) a wrongful mode of doing some act
authorised by the master . . . It follows, then, that the master is liable even for acts which
he had not authorised, provided that, when all the surrounding circumstances are con-
sidered, they are so connected with acts which he has authorised that they may
be regarded as modes, although improper modes, of doing them. The submission of
counsel for the defence in this case was that the driver’s duties did not include the
conveyance of passengers and, therefore, such conveyance was not incidental to his
duties. With this submission I could not agree.

Bollers J was of the view that the giving of a lift to an unauthorised passenger was
merely a wrongful mode of doing what the driver was employed to do and was,
therefore, not sufficient to take him outside the scope of his employment. He thus
held the defendant liable.
In Battoo Bros Ltd v Gittens,51 there was similarly no express prohibition against
giving lifts to unauthorised persons, yet the court nevertheless purported to follow
the reasoning of Uthwatt J in Twine v Bean’s Express Ltd 52 in finding the driver’s
employer not liable. In this case, the appellants operated a car hire service throughout
Trinidad. Some of their cars were licensed for private use, whilst others carried a hired
registration licence. One evening, AS, a driver employed by the appellants, was
instructed to drive one of the company’s private cars to Piarco Airport to pick up a
despatcher and some documents and return with them to the company’s Port of Spain
office. On the way to the airport, AS was waved down by G and three other persons,
with whom he agreed, for the payment of $2, to take them to their destination. This
would have necessitated deviating a distance of several miles off the airport route.
Before turning off the airport route, AS negligently collided with another car, killing
both himself and G.
It was held that the appellants were not liable for the death of G, since no duty of
care was owed by them to an unauthorised passenger whose presence in the vehicle
could not reasonably have been anticipated. Rees JA explained:
The driver of [the] car was the servant of the company, and the general principle is that
when a vehicle belonging to the employer is entrusted to the servant, the employer is
liable if the servant is negligent while using the vehicle in the course of his employment.
But counsel for the company contended that the taking up of passengers for reward in
the private car of the company was an unauthorised and wrongful act, and consequently
the servant was not acting in the course of his employment. There is no doubt that Smith
deviated from his employer’s orders in taking up passengers for reward whose destin-
ation was Mausica College, but as this is a case of negligence brought by a passenger, the
question is whether the person against whom the claim is made owed a duty of care to
the passengers who were travelling in the car at the time and place of the accident.

50 Ibid.
51 (1975) Court of Appeal, Trinidad and Tobago, Civ App No 7 of 1973 (unreported) [Carilaw TT
1975 CA 19].
52 [1946] 1 All ER 202.
 Chapter 12: Vicarious Liability 317

It is a well settled principle that the duty owed by an employer to persons who may be
injured by the negligent driving of his servant is limited to those who can reasonably be
anticipated as being possible subjects of injury. In the circumstances of this case, the
company could not have anticipated the presence of any passengers in the car because
the car was not one registered for hire, nor were directions given by the employer to the
driver to take up passengers for reward.
Reference was made to Twine v Bean’s Express Ltd,53 in which the employers expressly
instructed their drivers that no one was to be allowed to travel on their van. Twine, a
mail porter, took a lift in the van with the assent of the driver. Owing to the driver’s
negligent driving, an accident occurred and Twine was fatally injured. It was held that
the duty of the driver’s employers to take care in the driving of the van was only to
persons who might reasonably be anticipated by the employers as likely to be injured
by negligent driving of the van at the time and place in question, but that, in the
circumstances of the case, Twine was a trespasser in the van in relation to the employers.
They therefore owed no duty to Twine to take care in the driving of the van, because
they could not reasonably anticipate that he would have been a passenger in the van
at the time and place of the accident.
The distinction between that case and the present one is that, in this case, the passengers
were picked up by a driver to whom no contrary instructions had been specifically
given. The question for determination is whether, in these circumstances, the persons
who were taken up as passengers by the driver fell within the class of persons to whom
a duty to take care was owed by the employers. Could the company, as employers, have
anticipated the presence of passengers in the car? I think that this is a question of fact to
be determined in all the circumstances of the case. The evidence here was that the driver
of a private motor car was despatched by his employers on private business not con-
nected with the hiring of the vehicle. As was stated by a witness for the appellant,
‘[drivers] have specific instructions when they are sent on these jobs’. Nor was there any
evidence to suggest that the employers had any reason to believe that the driver would
pick up passengers during the course of his assignment.
The driver was sent to Piarco in a private car for the specific purpose of picking
up a despatcher and some documents for the Port of Spain office, but, unknown
to his employers, he took up passengers for reward in order to make $2 for himself.
I do not think that the company could reasonably have anticipated that the driver,
who was expected to carry out his duties faithfully, would have had passengers in
the car at the time and place of the accident. Consequently, they are not liable in
negligence.

In the Battoo Bros case, as we have seen, there was no express prohibition against
giving lifts to unauthorised passengers, but in two other Commonwealth Caribbean
decisions there were such prohibitions. In Zepherin v Gros Islet Village Council,54 A (the
second defendant/respondent) was employed by the Council (the first defendant/
respondent) as a truck driver, one of his duties being to convey corpses for burial. He
had been expressly prohibited from carrying passengers on the tray of the truck. One
day, he was instructed by his employers to transport a corpse from the house of
mourning at Monchy to Gros Islet for burial. Contrary to the prohibition, he took
16 mourners, as well as the corpse, on the tray of the truck to Gros Islet and, instead of
parking the truck there at the end of the day, as he was ordered to do, he set off to
return to Monchy with the mourners. On the way back to Monchy, he negligently

53 Ibid. See Kodilinye, G (1977) 6 Anglo-Am LR 18.

54 (1978) 26 WIR 561, Court of Appeal, West Indian Associated States, on appeal from the
Supreme Court, St Lucia.
318 Commonwealth Caribbean Tort Law

collided with the plaintiff, who was riding his horse along the highway. The
plaintiff was injured and he claimed that the Council was vicariously liable for
A’s negligent driving. It was held that the Council was not vicariously liable,
since the return journey to Monchy was not undertaken for any business of the
Council, and A was acting outside the course of his employment at the time of the
accident.
In the course of his judgment, Davis CJ cited and purported to follow three cases55
in which unauthorised passengers had been killed or injured by a driver’s negligence,
without emphasising that, in the Zepherin case, it was not the unauthorised passenger
who was harmed, but another user of the highway. The presence or absence of an
unauthorised passenger in the vehicle should have been treated as irrelevant to the
question of whether the driver’s employers were liable to the plaintiff. However, the
decision can easily be justified, on the ground that the journey in question was not
undertaken for the Council’s business; it was entirely unauthorised; the driver was
‘on a frolic of his own’, and he was not acting in the course of his employment at the
material time.
A more straightforward case is the decision of the Court of Appeal of the Eastern
Caribbean States in Alfred v Thomas.56 Here, T was employed as a truck driver and
engaged in the transportation of sand. T was given express instructions not to carry
passengers on the vehicle, but there was no sign to that effect affixed to the vehicle. In
disobedience to the prohibition, T gave a lift to the plaintiff. Whilst descending a hill
with a heavy load of sand, T lost control, the truck capsized and the plaintiff was
seriously injured. It was held, following, inter alia, Twine v Bean’s Express Ltd,57 that the
employer was not liable for T’s negligence because (a) the plaintiff was a trespasser to
whom the employer owed no duty to take care as to the proper driving of the truck;
and (b) T was not acting within the scope of his employment at the time of the
accident.
Finally, in Haye v Bruce,58 Fox JA suggested that, in an appropriate case, the
Jamaican courts should feel free to depart from the principle in Twine v Bean’s Express
Ltd on policy grounds, for ‘however acceptable the principle in Twine may have been
in 1951, it is doubtful whether it is compatible with the especial responsibility which
the law is now determined to put upon the owner of a motor vehicle who allows it to
go on the road in charge of someone else’.59 More particularly, whereas the argument
that an injured passenger was a trespasser on the vehicle might be material to a claim
based on the unsafe condition of the vehicle, it was ‘irrelevant in a claim arising from
the negligent manner in which it was driven’.
The proper basis of liability in cases of injury to unauthorised passengers thus
remains uncertain. As Harrison J pointed out in Jackson v High View Estate,60 modern
case law favours deciding such cases according to whether or not the driver was acting
in the course of his employment at the material time, rather than according to whether
the passenger was a trespasser in the vehicle; but there are still no clear criteria for

55 Twine v Bean’s Express Ltd [1946] 1 All ER 202; Rose v Plenty [1976] 1 All ER 97; Hilton v Thomas
Burton (Rhodes) Ltd [1961] 1 All ER 74.
56 (1982) 32 WIR 183.
57 [1946] 1 All ER 202.
58 (1971) 18 WIR 313.
59 Ibid, p 317.
60 (1997) 34 JLR 325 (Supreme Court, Jamaica).
 Chapter 12: Vicarious Liability 319

determining when a driver is or is not driving within the course of his employment. It
may be argued, on a cynical view, that in each case the court decides which party
should succeed, and then selects the appropriate label to justify its decision.

Connection with employer’s business

According to traditional vicarious liability principles, where a servant does an act

which he has no express authority to do, but which is nonetheless intended to pro-
mote his master’s legitimate interests, the master will be liable in the event of its being
tortious, unless the act is so extreme or so outrageous that it cannot be regarded as
incidental to the performance of the servant’s allotted duties. For instance, ‘a servant
has implied authority upon an emergency to endeavour to protect his master’s prop-
erty if he sees it in danger or has reasonable ground for thinking that he sees it in
danger’;61 but ‘where the servant does more than the emergency requires, the excess
may be so great as to take the act out of the [course of employment]’.62 Thus, for
example, the employer of H was held liable where H, reasonably believing that a boy
was stealing sugar from his employer’s passing truck, struck the boy, who fell and
sustained injuries. The act of H was in protection of his employer’s property and was
not so excessive as to be outside the scope of his employment.63
On the other hand, where a garage attendant, after accusing a customer of driving
off without paying for gasoline supplied to him, assaulted the customer, the attend-
ant’s employers were held not liable, since the act of the attendant was extreme and
not ‘so connected with the acts which the servant was expressly or impliedly author-
ised to do as to be a mode of doing those acts’.64 Similarly, where, in the course of a
fight in a dance hall, B, a security guard, first assaulted a customer in the mistaken
belief that he (B) was being attacked, and later struck the customer again outside
the hall long after the fight had ended, the employers of B were held liable for the
first assault, since it was reasonably incidental to B’s duty to maintain order in the
premises, but they were not liable for the second, since that was an act of personal
vengeance unconnected with B’s duties.65
These principles must now be reinterpreted in the light of the decision of the
House of Lords in Lister v Hesley Hall Ltd,66 which has introduced a new dynamic,
though scarcely any new principle,67 into the law of vicarious liability. Here the three
claimants had been resident in a boarding house attached to a school owned and
managed by the defendants. Unknown to the defendants, the claimants had for a
period of three years been systematically sexually abused by the warden of the house.

61 Poland v Parr [1927] 1 KB 236, p 240, per Bankes LJ.

62 Ibid, p 245.
63 Ibid.
64 Warren v Henly’s Ltd [1948] 2 All ER 935. Similarly, in Keppel Bus Co Ltd v Ahmad [1974] 2 All ER
700, the employers of a bus conductor were held not liable for the conductor’s assault of a
passenger who had complained about the conductor’s use of obscene language. See, gener-
ally, Rose, FD (1977) 40 MLR 420.
65 Daniels v Whetstone Entertainments Ltd [1962] 2 Lloyd’s Rep 1.
66 [2001] 2 All ER 769. See Giliker, P (2002) 65 MLR 269; Hopkins, CA [2001] CLJ 458.
67 Fifteen years previously, in Bryan v Lindo (1986) 23 JLR 127, p 137 (Court of Appeal, Jamaica),
Carberry JA had stated that ‘depending on how closely connected the wrongful act is with the
servant’s employment, a master may be held liable, though it is clear that the wrongful act
could in no way be regarded as being done in the execution of the servant’s duty, or in the
intended execution of that duty’.
320 Commonwealth Caribbean Tort Law

They claimed damages from the defendants, on the ground that the defendants were
vicariously liable for the actions of the warden. Both the trial judge and the English
Court of Appeal considered themselves bound by the ruling of the Court of Appeal in
the earlier case of Trotman v North Yorkshire County Council 68 where it had been held
that the owners of a special school for handicapped children were not vicariously
liable for abuse committed by the headmaster against one of the pupils, since the
actions of the headmaster could not be said to be ‘an improper mode of carrying out
an authorised act on behalf of his employer’ but were, on the contrary, a negation of
his duty to look after the children. Ultimately, the House of Lords in Lister held that
the defendants were vicariously liable for the abuse since there was a sufficient con-
nection between the work that the warden had been employed to do and the acts of
abuse that he had committed, for those acts to be regarded as having been committed
within the scope of his employment. The House thus opened up a route for courts in
the future to find employers vicariously liable in circumstances in which, according
to the previous case law, they might have been exonerated.
Cases such as Lister highlight the difficulty in applying traditional formulations
of vicarious liability to instances of deliberate, intentional and criminal acts, as
opposed to merely negligent ones. In Trotman the Court of Appeal had applied the
classic formulation in Salmond and Heuston on Torts 69 that:
A master is not responsible for a wrongful act done by his servant unless it is done in the
course of his employment. It is deemed to be so done if it is either (1) a wrongful act
authorised by the master, or (2) a wrongful and unauthorised mode of doing some act author-
ised by the master.

As Lord Millett said in Lister,70 it would be ‘stretching language to breaking point’ to

suggest that acts of sexual abuse committed by a headmaster or warden against
children under their care were merely ‘wrongful modes of doing an authorised act’.
However, their Lordships pointed out that there was another passage in Salmond’s
text which stated:71
But a master . . . is liable even for acts which he has not authorised, provided they are
so connected with acts which he has authorised that they may rightly be regarded as modes – -
although improper modes – of doing them.

Lord Clyde commented that the ‘latter observation seems . . . to be of particular

importance. An act of deliberate wrongdoing may not sit easily as a wrongful mode of
doing an authorised act. But recognition should be given to the critical element in
the observation, namely the necessary connection between the act and the employ-
ment . . . What has essentially to be considered is the connection, if any, between the
act in question and the employment. If there is a connection, then the closeness of that
connection has to be considered. The sufficiency of the connection may be gauged by
asking whether the wrongful actions can be seen as ways of carrying out the work
which the employer had authorised.’72 Lord Clyde went on to emphasise that in order
to establish vicarious liability there must be some greater connection between the
wrongful act of the employee and the circumstances of his employment than the mere

68 [1999] LGR 584.

69 21st edn, p 443.
70 [2001] 2 All ER 769, p 795.
71 Ibid.
72 [2001] 2 All ER 769, p 783.
 Chapter 12: Vicarious Liability 321

opportunity to commit the act. Thus, for example, a gardener or janitor employed by
the defendant would have access to the school premises and thereby have an
opportunity to molest the children, but the employer would not be vicariously liable
for such molestation because there is no close connection between the wrongful act
and the nature of the employment. Similarly, where a cleaner employed by C used
H’s telephone to make unauthorised international calls costing over one thousand
pounds, it was held that C was not vicariously liable. The cleaner was employed to
clean telephones, not to use them. There was no connection between the tortious act
and the nature of the employment, and the mere fact that the cleaner had been given
the opportunity to do the acts was insufficient for vicarious liability. By contrast, the
warden in Lister not only had the opportunity which access gave him, but ‘his pos-
ition as warden and the close contact with the boys which that work involved created
a sufficient connection between the acts of abuse which he committed and the work
which he had been employed to do’, and the fact that he performed his function as
warden ‘in a way which was an abuse of his position and an abnegation of his duty’
did not ‘sever the connection with his employment’.73
Lord Millett observed74 that Lister raised ‘in a particularly stark form the question
in what circumstances an employer may be vicariously liable for the deliberate and
criminal wrongdoing of his employee, wrongdoing in which the employee indulged
for his own purposes and which the employer must be taken to have expressly or at
least impliedly prohibited’. Certainly, it had been established since Lloyd v Grace,
Smith and Co 75 and Morris v CW Martin and Sons Ltd 76 that an employer could be
vicariously liable for acts of his employee which were carried out entirely for the
employee’s own benefit, and that would include ‘independent acts of self-indulgence
and self-gratification’. Accordingly, it was ‘no answer to say that the employee was
guilty of intentional wrongdoing, or that his act was not merely tortious but criminal,
or that he was acting exclusively for his own benefit, or that he was acting contrary to
express instructions, or that his conduct was the very negation of his employer’s
duty’.77 One of the most crucial elements in the present case was the ‘risk factor’.
Experience showed that in the case of boarding schools, prisons, nursing homes, old
people’s homes, geriatric wards, and other residential homes for the young and vul-
nerable, there was ‘an inherent risk that indecent assaults on the residents will be
committed by those placed in authority over them’.

The ‘rogue constable’ cases

The ‘inherent risk’ theory was given much emphasis by the Privy Council in Bernard v
AG,78 where the issue was whether the Attorney General of Jamaica was vicariously
liable for the unjustified shooting of a citizen by a ‘rogue’ policeman. The circum-
stances of the shooting were that the claimant was making an overseas telephone call
at the Central Sorting Office in Kingston, when a man came up to him and demanded
the phone, saying that he was a policeman, that wanted to make a long distance call,

73 Ibid, p 786.
74 Ibid, p 793.
75 [1912] AC 716. See p 332, below.
76 [1966] 1 QB 716.
77 [2001] 2 All ER 769, p 798.
78 (2004) Privy Council Appeal No 30.
322 Commonwealth Caribbean Tort Law

and that he was not prepared to join the queue of people waiting to use the phone. On
the claimant’s refusal to give up the phone, the policeman slapped the claimant on the
hand, pushed him in the chest, then pulled out his service revolver and shot him at
point blank range. The claimant was not killed, but he was rendered unconscious and
was taken to the hospital, where he was later arrested by the constable for allegedly
assaulting a police officer in the execution of his duty, and handcuffed to his bed. The
claimant was subsequently acquitted of the charge and he brought an action for
assault, false imprisonment and malicious prosecution against the Attorney General
as representative of the state, the employer of the constable. The trial judge, McCalla J,
found the defendant vicariously liable on the ground that the constable had pur-
ported to act as a police officer when he demanded the phone, and the shooting of
the claimant was in furtherance of that demand; further, by subsequently arresting
and charging the claimant for assaulting him, ‘by that act he could only have been
asserting that at the material time he was executing his duties as a police officer’. The
Court of Appeal of Jamaica allowed the appeal, holding that the actions of the con-
stable had nothing to do with the execution of his official duties, and his conduct ‘fell
outside the class of acts authorised by section 13 of the Constabulary Force Act, and
did not render the state, as his employer, vicariously liable’. The Privy Council
restored the decision of the trial judge. Lord Steyn pointed out first of all that Lister
v Hesley Hall 79 had not been drawn to the attention of the Court of Appeal. That
case had:
emphasised clearly the intense focus required on the closeness of the connection
between the tort and the individual tortfeasor’s employment. It stressed the need to
avoid terminological issues and to adopt a broad approach to the context of the tortious
conduct and the employment . . . The correct approach is to concentrate on the relative
closeness of the connection between the nature of the employment and the particular
tort, and to ask whether, looking at the matter in the round, it is just and equitable to
hold the employers vicariously liable. In deciding this question, a relevant factor is
the risks to others created by an employer who entrusts duties, tasks and functions to an
employee.
Lord Steyn went on to say that while the facts in Lister were very different from those
in the present case, the principles enunciated in that case were of general application
to intentional torts. Other recent cases from various jurisdictions had also stressed the
importance of the principle that an employer ought to be held liable for a wrong
which could fairly be regarded as ‘a reasonably incidental risk to the type of business’
carried on by the employer, and in cases of wrongdoing by servants of the state, such
as police officers, the emphasis had shifted from the precise nature of the link between
his acts and police work, to the dominant question whether those acts fall within ‘the
risk created by the state’.
In the circumstances of the present case, according to Lord Steyn, account had to
be taken of the risk created by the police authorities in routinely allowing constables
to take loaded service revolvers home, and to carry them while off duty. It did not
follow that, where a constable used such a firearm, his employer would necessarily be
vicariously liable; that would be going too far. But taking into account the dominant
feature of the case, which was that the constable at all material times purported to act
as a policeman, the risks created by the police authorities reinforced the conclusion
that vicarious liability was established.

79 Ibid.
 Chapter 12: Vicarious Liability 323

It remains to be seen whether the new approach in Bernard to cases of assaults on

innocent citizens by ‘rogue’ policemen will lead to different results from that reached
in the earlier case of AG v Reid,80 where a female tourist was attacked in a hotel wash-
room and seriously wounded by a gun-toting, knife-wielding constable, and a secur-
ity guard employed by the hotel who attempted to come to her rescue was also
wounded. The Jamaican Court of Appeal held that the state was not vicariously
liable, since the acts which the constable was assigned to do were ‘in complete contra-
diction to the wrongful acts which he committed’ against the claimants.
Wright JA explained that the constable’s duties at the hotel ‘were specifically to
prevent the harassment of visitors, to accost drug pushers, whores and pimps, and
arrest them if it became necessary to eject them from the hotel’. And apart from his
specific assignment at the relevant time, the constable’s duties and powers were set
out in section 13 of the Constabulary Force Act, as it applies to all police constables,
which states:
The duties of the police under this Act shall be to keep watch by day and by night, to
preserve the peace, to detect crime, apprehend or summon before a justice persons
found committing any offence, or whom they may reasonably suspect of having com-
mitted any offence . . . and to do and perform all the duties appertaining to the office of
constable . . .

Wright JA stated that, in order to succeed in their claims against the state, the claim-
ants had to prove that the actions of the constable ‘were so connected with the above-
stated authorised acts that they could be considered modes of doing that which he
was authorised to do’. In the present case, it was not sufficient, in order to establish
vicarious liability, to argue that if the constable had not been assigned duties at this
hotel, he would not have had the opportunity to commit the wrongs. Nor was it
sufficient to show that his acts were connected with his status as a policeman; other-
wise ‘the government would be liable for any wrongful act of a police officer commit-
ted while he is on duty, even if such acts are outside the scope of his employment and
independent of what he was employed to do . . . Constable Thompson, though
assigned to the hotel, was assigned to do acts which are in complete contradiction to
the wrongful acts which he committed.’
It seems possible to reconcile Reid with Bernard only by saying that, whereas in
Bernard the assailant clearly purported to be acting in his capacity as a constable when
he shot and later falsely imprisoned the claimant, in Reid there was no such assertion
of authority. In other respects, the circumstances of these two cases were very similar.
It is unclear whether, in future cases, courts in the Caribbean will follow the reasoning
in Bernard and lean in favour of finding governments liable for the wrongdoing of
‘rogue’ policemen, or whether the ‘floodgates’ argument will persuade them to adopt
a more conservative approach. In the meantime, it has become the practice in Jamaica,
in cases where the government is held not vicariously liable for an assault committed
by a constable, to recommend the payment by the government of an ex gratia payment
to the victim.81
On the other hand, AG v Hartwell 82 shows that in circumstances where a police-
man commits an act of violence totally unconnected with his police duties, there can

80 (1994) 31 JLR 237 (Court of Appeal, Jamaica).

81 Ibid, p 245.
82 [2004] 1 WLR 1273.
324 Commonwealth Caribbean Tort Law

be no question of imposing vicarious liability. In this case a constable of the Royal

Virgin Islands Police Force took a police service revolver from the police station’s
strongbox and went to a bar where, in a fit of jealous rage, he fired four shots at his
former partner, seriously wounding a tourist who happened to be in the bar at the
time. The Privy Council held that since at the relevant time the constable had aban-
doned his post and embarked on a vendetta of his own, his use of the gun was not
an act committed in the course of his employment and the government was not
vicariously liable. In the words of Lord Nicholls,83 this was:
not a case where a police officer used a service revolver incompetently or ill-advisedly
in furtherance of police duties. Laurent used a service revolver, to which he had access
for police purposes, in pursuit of his own misguided personal aims . . . The applicable
test is whether PC Laurent’s wrongful use of the gun was so closely connected with acts
he was authorised to do that, for the purposes of liability of the government as his
employer, that his wrongful use may fairly and properly be regarded as made by him
while acting in the ordinary course of employment as a police officer . . . Laurent’s
activities had nothing whatever to do with any police duties, either actually or osten-
sibly. Laurent deliberately and consciously abandoned his post and his duties . . . He
put aside his role as a police constable and, armed with the police revolver he had
improperly taken, he embarked elsewhere on a personal vendetta of his own. That
conduct falls wholly within the classic phrase of ‘a frolic of his own’.

It may be noted, however, that although the argument based on vicarious liability
failed in Hartwell, the Privy Council did find the defendant primarily liable for the
harm to the claimant, on the ground that the police authorities had been negligent
in permitting the constable to have access to the firearm and ammunition, when they
knew or ought to have known that he was not a fit and proper person to be entrusted
with a gun. In the words of Lord Nicholls, ‘the police authorities owe to the public at
large a duty to take reasonable care to see the officer is a suitable person to be
entrusted with such a dangerous weapon, lest by any misuse of it he inflicts personal
injury, whether accidentally or intentionally, on other persons . . . The law has long
recognised the special dangers associated with certain types of articles, such as loaded
firearms, explosives and poisons . . . Thus, where an article as dangerous as a loaded
gun is handed over, the class of persons to whom the duty of care is owed is wide and
the standard of care required is high.’84
In the recent case of Brown v Clarke and AG,85 Sykes J commented that Hartwell had
‘provided a route to skirt the “frolic” defence and fix the employer with direct liabil-
ity’. Once the police authorities had taken the decision to arm an officer and that
officer misused the weapon, it would not be sufficient, to escape liability, to argue
that he was not acting as a police officer at the time of the assault, or that he had been
forbidden to take the gun. The effect of Lord Nicholls’ judgment in Hartwell was that,
by analogy with the res ipsa loquitur doctrine, the misuse of the weapon by the officer
would be sufficient to ground liability; it would then be for the police authorities to
prove that they took reasonable precautions to ensure that the officer was a suitable
person to be entrusted with the firearm or with access to it. On the facts of the Brown
case, where an off-duty policeman shot a bailiff who was attempting to repossess a
refrigerator from a debtor, the Attorney General was held not vicariously liable to the

83 Ibid, p 1277.
84 [2004] 1 WLR 1273, p 1282.
85 (2007) Supreme Court, Jamaica, No CL 1998/B-219 (unreported) [Carilaw JM 2007 SC 19].
 Chapter 12: Vicarious Liability 325

claimant for the assault, since the assailant did not purport to be using his firearm for
any lawful purpose connected with his job as a police officer. Unlike in Bernard, the
officer ‘did not purport to be exercising any police powers; neither did he, after the
shooting, as was the case in Bernard, lay any charges against [the claimant] so that it
might be inferred that he was indeed acting as a police officer . . . What happened here
is that his job facilitated his possession of a firearm which he has misused.’ On the
other hand, Sykes J clearly considered that the claimant would have succeeded in
fixing the police authority with primary liability for breach of its direct duty of care
owed to the claimant, on the basis of the reasoning of Lord Nicholls in Hartwell,
outlined above, were it not for the claimant’s neglect to plead such breach of duty.

The fire fighters’ case

A pre-Lister case which may arguably have been decided differently under the Lister
approach is General Engineering Services Ltd v Kingston and St Andrew Corporation,86 the
circumstances of which are sufficiently unique to provide an interesting test for the
application of the principles in Lister and Bernard. Here the fire service was called to a
fire at the plaintiff’s premises. In furtherance of an industrial dispute, the firemen
deliberately drove slowly, sometimes stopping, and, by the time they arrived at the
scene, the building and its contents had been completely destroyed. If they had taken
the normal time to reach the fire (about three and a half minutes), it could have been
extinguished with little damage to the property. Both the trial judge and the Jamaican
Court of Appeal held that the wrongful act and breach of duty on the part of the
firemen was not within the course of their employment and the defendant was not
vicariously liable, and the Privy Council agreed with that conclusion. Lord Ackner
said that the firemen’s ‘mode and manner of driving – the slow progression of stop-
ping and starting – was not so connected with the authorised act, that is, driving to
the scene of the fire as expeditiously as reasonably possible, as to be a mode of
performing that act . . . The decision and its implementation not to arrive at the scene
of the fire in time to save the building and its contents . . . was not in the furtherance of
their employer’s business. It was in furtherance of their industrial dispute, designed
to bring pressure upon their employer to satisfy their demands . . . Such conduct was
the very negation of carrying out some act authorised by the employer . . . Indeed,
members of the fire brigade were, by virtue of the Jamaican Labour Relations and
Industrial Disputes Act, guilty of a criminal offence.’87
In order to assess whether an application of the principles enunciated in Lister
and Bernard to the facts of the General Engineering Services case would have led to a
different result in the latter case, one may ask the following questions:
(i) Should importance should be attached to the fact that the actions of the firemen
constituted a criminal offence?
(ii) How close was the connection between the conduct of the firemen and the nature
of their employment?
(iii) Could the wrongdoing of the firemen be regarded as ‘an inherent risk’ of their
employment as firemen?

86 [1988] 3 All ER 867. See Cumberbatch, J (1992) Bracton LJ 70.

87 Ibid, p 870.
326 Commonwealth Caribbean Tort Law

(iv) Looking at the matter in the round, would it have been just and equitable to
impose vicarious liability on the defendant?
It is submitted that, while one would most probably answer ‘no’ to the first question
and ‘very close’ to the second, it is by no means clear that one would answer ‘yes’
to the third and fourth questions. It is therefore at least doubtful whether the result in
the General Engineering case would have been different if Lister and Bernard had
applied.

The ‘rogue bouncer’ cases

Long before the advent of Lister v Hesley Hall Ltd 88 and the recent decision in Mattis
v Pollock,89 Caribbean courts were grappling with the phenomenon of the out-of-
control nightclub bouncer whose violent excesses caused physical harm to innocent
patrons. In the Bahamian case of Herrnicht v Green,90 the manager of a disco violently
assaulted a tourist visitor who, he believed, had insulted him. Georges CJ held the
manager’s employers vicariously liable, on the ground that his action was merely an
unauthorised mode of doing what he was employed to do, which was, inter alia,
to maintain order in the premises, notwithstanding that the assault was more in
the nature of a revenge attack than a genuine attempt to maintain order. In the
Trinidadian case of Sudan v Carter,91 the plaintiff, a UWI student, sought to gain entry
to a disco but was refused entry by the doorman, T, who had authority to decide who
would be admitted and who would be excluded. Believing that T was excluding him
on racial grounds, the plaintiff complained and commented that ‘this is not South
Africa’, whereupon T, a karate ‘black belt’, knocked the plaintiff unconscious with a
blow to the face. Hosein J held T’s employers vicariously liable for the assault, on the
ground that T was employed to keep control in the premises and had been selected for
his martial arts skills, which the employers regarded as an asset in the job. The actions
of T were within the scope of his employment, and were done ‘for the purposes of the
business of the employers’.
It is unlikely that an application of the principles in Lister would have produced
different results in Herrnicht or Sudan, as the decision in the recent case of Mattis v
Pollock 92 shows. In this case there was a brawl in a nightclub where C, an unlicensed
doorman with a reputation for violence, was employed as a bouncer. C was forced to
flee from the scene but returned shortly afterwards, armed with a knife, and stabbed
and seriously injured one of the patrons who had been involved in the previous
fracas. The English Court of Appeal, overturning the decision of the trial judge, held
C’s employer vicariously liable for the attack. In the words of Judge LJ, applying the
reasoning in Lister and in Dubai Aluminium Co Ltd v Salaam,93 the vicarious liability of
the defendant required:
a deceptively simple question to be answered. Approaching the matter broadly, was the
assault ‘so closely connected’ with what Mr Pollock authorised or expected of Cranston

88 [2001] 1 All ER 769.

89 [2003] 1 WLR 2158.
90 (1989) Supreme Court, The Bahamas, No 737 of 1985 (unreported) [Carilaw BS 1989 SC 27].
91 (1992) 2 TTLR 610 (High Court, Trinidad and Tobago).
92 [2003] 1 WLR 2158.
93 [2002] 3 WLR 1913.
 Chapter 12: Vicarious Liability 327

in the performance of his employment as doorman at his nightclub, that it would be fair
and just to conclude that Mr Pollock is vicariously liable for the damage Mr Mattis
sustained when Cranston stabbed him . . . The Lister case itself demonstrated the heresy
of the proposition that an employer cannot be vicariously liable for an independent act
of ‘self-indulgence or self-gratification’ by his employee . . . It is clear that where an
employee is expected to use violence while carrying out his duties, the likelihood of
establishing that an act of violence fell within the broad scope of his employment
is greater than it would be if he were not . . . Cranston was indeed employed by
Mr Pollock to keep order and discipline at the nightclub. That is what bouncers are
employed to do. Moreover, however, he was encouraged and expected to perform his
duties in an aggressive and intimidatory manner, which included physical man-
handling of customers . . . The reality was that Mr Pollock should not have been
employing Cranston at all, and certainly should not have been encouraging him to
perform his duties as he did . . . The customers with whom he tangled were supposed to
be intimidated, and to go quietly. The whole point of any physical confrontation with
Mr Pollock’s customers in the nightclub, whether engineered by Cranston or not, was
that he should win it . . . [Cranston’s] return to the immediate vicinity was motivated
by a need to revenge the physical injuries and public humiliation he had sustained
inside the club. The incident had wholly undermined his reputation and status as the
doorman Mr Pollock expected him to be . . . [Cranston’s] actions were directly linked to
the incident which had taken place earlier in the club . . . Even allowing that Cranston’s
behaviour included an important element of personal revenge, approaching the matter
broadly, at the moment when Mr Mattis was stabbed, the responsibility of Mr Pollock
for the actions of his aggressive doorman was not extinguished.94

Certainly, one of the unusual features of Mattis was the strong evidence that the
employer of the bouncer had actively, and not merely passively encouraged him to
use violence against recalcitrant customers. Nevertheless, the circumstances of the
two aforementioned Caribbean cases were very similar to those in Mattis, and it seems
they would not have been decided differently had the Lister test been applied. Above
all, there is ‘an inherent risk’ to the public where proprietors of nightclubs and discos
employ vicious thugs as bouncers, and it is ‘fair and just’ to impose vicarious liability
for their violent conduct.

IMPROPER DELEGATION

Where a servant improperly and without authorisation delegates his task to a third
party and, through the negligence of that third party, the plaintiff is injured, the
master will not be liable for the negligence of the third party, but he may be liable
for the failure of the servant to exercise sufficient control so as to ensure that the
task was carefully performed. The typical case is where a driver/servant allows an
unauthorised and incompetent person to drive his master’s vehicle and a person is
injured by the negligence of the substitute driver.
It has been suggested95 that the basis of the master’s liability in such a case is that
his servant permitted an incompetent person to drive, and it was foreseeable that
damage might be caused thereby; as, for example, where the driver of a bus allowed
the conductor to drive the vehicle and the conductor negligently injured a person on

94 Ibid, pp 2166–69.
95 See Ilkiw v Samuels [1963] 1 WLR 991.
328 Commonwealth Caribbean Tort Law

the sidewalk.96 Another example is the Guyanese case of Persaud v Verbeke.97 Here, the
defendant had engaged J as his agent to operate the defendant’s vehicle as a hire car.
The car became hooked on to a refuse box in the street, with its rear wheel embedded
in mud. In his attempt to extricate the car, J asked E, an unauthorised person, to drive
the car forward while J lifted it up at the rear. In the course of this operation, the car
accelerated forward, mounted the sidewalk and struck and killed B, an elderly fruit
vendor. It was held that the defendant was vicariously liable for J’s negligence in
failing to ascertain whether E was a competent driver before allowing him to drive the
car. As Khan J explained:
Having admitted that Johnson was his agent, the question to be resolved is whether
Johnson, in engaging Eleazer to assist him in the operation of unhooking the car, in
all the circumstances was within the scope of Johnson’s authority. In Engelhart v Farrant
and Co,98 it was held that:
There is no rule of law to prevent a master being liable for negligence of his
servant whereby opportunity was given for a third person to commit a wrong-
ful or negligent act immediately producing the damage complained of.
Whether the original negligence was an effective cause of the damage is a
question of fact in each case.
In that case, the defendant employed a man to drive a cart, with instructions not to leave
it, and a lad, who had nothing to do with the driving, to go in the cart and deliver
parcels to the customers of the defendant. The driver left the cart, in which the lad was,
and went into a house. While the driver was absent, the lad drove on and came into
collision with the plaintiff’s carriage.
In an action to recover for damage caused by the collision, it was held that the neg-
ligence of the driver in so leaving the cart was the effective cause of the damage, and
that the defendant was liable:
Lord Esher MR stated:99
If a stranger interferes, it does not follow that the defendant is liable; but equally
it does not follow that, because a stranger interferes, the defendant is not liable
if the negligence of a servant of his is an effective cause of the accident.
In Ricketts v Thomas Tilling Ltd,100 a bus belonging to the defendants had just completed
its journey and discharged its passengers. It then proceeded to commence its return
journey, driven by the conductor, at whose side the defendants’ licensed driver was
sitting. While thus being driven, it suddenly mounted the pavement and injured the
plaintiff.
At the trial, the case was withdrawn from the jury on the ground that there was no
negligence against the defendants, and judgment was entered for the defendants.
On appeal, it was held that the driver owed a duty to his employers to see that if he
allowed another person to drive the omnibus, that person drove properly, and that it
was a question of fact to be left to the jury whether the driver was guilty of negligence if
he failed to see that the person whom he had allowed to drive was a competent driver.
A new trial was therefore ordered.
In the course of his judgment, Pickford LJ said:101
In this case, it is admitted that the driving was negligent. It is admitted that the

96 Ricketts v Thomas Tilling Ltd [1915] 1 KB 644.

97 [1971] LRG 1 (High Court, Guyana).
98 [1897] 1 QB 240.
99 Ibid, p 243.
100 [1915] 1 KB 644.
101 Ibid, p 650.
 Chapter 12: Vicarious Liability 329

driver was sitting by the man who was driving, and he could see all that
was going on . . . It seems to me that the fact that he allowed somebody else to
drive does not divest him of the responsibility and duty he has towards his
master to see that the omnibus is carefully, and not negligently, driven. I asked
Mr Charles whether there was any case in which the driver was present when
the negligent driving went on, and in which the master had been held not liable.
Apparently there is not one.
In Ilkiw v Samuels,102 the defendants’ lorry was driven to the premises of the plaintiff’s
employers to load bags of sugar. The defendants’ driver, Waines, put the lorry under a
conveyor and then stood in the back of the lorry to load bags from the conveyor. When
sufficiently loaded, the lorry had to be moved. Samuels, a fellow employee of the
plaintiff and not employed by the defendants, offered to move it. Waines allowed him to
do so without asking whether he could drive, and, after starting the lorry, he could not
stop it. It crushed the plaintiff, who was working nearby, causing him serious injuries.
Waines remained in the back of the lorry throughout. He had been expressly forbidden
by his employers to let anyone other than himself drive the lorry. It was held that
Waines was negligent in allowing Samuels to drive without enquiring whether he was
competent. The defendants were vicariously liable for his negligence because it was a
mode, though an improper one, of performing the duties for which he was employed,
namely, to have charge and control of the lorry. It was therefore a negligent act within
the scope of his employment.
In the instant case, Johnson was entrusted with the defendant’s motor car to drive, and
to be in charge of it. The defendant admitted that Johnson was engaged in supervising
an operation of unhooking the car which was fastened to a refuse box.
He engaged Eleazer to assist him in this operation by putting Eleazer at the wheel.
Johnson did so without first ascertaining whether Eleazer was competent to drive.
In all the circumstances, it appears to me that Johnson acted within the scope of his
authority in attempting to extricate the car which was hooked on the refuse box and
fastened in the mud. In carrying out this exercise of extricating the car, he obtained the
assistance of Eleazer. The exercise was a joint operation, Johnson lifting at the back of
the car while Eleazer accelerated forward. Johnson did not ascertain whether Eleazer
was a competent driver. Johnson carried out this operation negligently, resulting in the
death of the deceased. His principal, the defendant, is therefore vicariously liable for
Johnson’s negligence.

It was emphasised, however, by Fox JA in the Jamaican case of Brown v Brown,103 that
the proper basis of the master’s liability in cases of improper delegation is not that the
servant delegated his task to an incompetent person, but that the servant was present
at the time and remained under a duty to control the driving of the vehicle. In Brown,
the driver/servant had allowed an unauthorised third party, who was in fact ‘a com-
petent and licensed driver’, to drive his employer’s van. Through the substitute
driver’s negligence, the van collided with the plaintiff’s car and caused damage. Fox
JA held the employer of the driver/servant liable for the damage, on the ground that
the vehicle was being used for the employer’s purposes and the driver/servant ‘was
present when the negligent driving was going on, and in a position to control the
substitute driver’.104 The submission that ‘the owner of a vehicle is liable only if his
authorised driver allows an incompetent substitute to drive the vehicle’ was rejected.

102 [1963] 1 WLR 991.

103 (1972) 12 JLR 883.
104 Ibid, p 885.
330 Commonwealth Caribbean Tort Law

LIABILITY OF BAILEES

Where goods are entrusted to a bailee, he will be liable for any loss or damage to the
goods caused by his servant, whether the servant was acting within the course of his
employment or not.105
Bowen v Phillips 106 illustrates the position. In this case, B took his car to P’s garage
to have it greased and sprayed. On the directions of P, B left the car with H, who was
employed by P to do such work. Some time later, H drove the car out of the garage for
his own purposes and damaged it. Rennie J held that there was a relationship of bailor
and bailee for reward between B and P. Since P had entrusted his servant, H, with the
responsibility for custody of the car, P was liable for the damage, notwithstanding
that H was ‘on a frolic of his own’. He said:
In directing the bailor to deliver the car to the servant, the master must be taken to have
entrusted the servant with the responsibility of custody of the car. Once that has been
established and it can be shown that the servant did something which was inconsistent
with the bailment and which resulted in damage to the thing bailed, the master will be
liable for such damage and it matters not that the damage was done while the servant
was engaged on a frolic of his own. This seems to us to be the effect of the decisions in
Aitchison v Page Motors Ltd107 and Coupe Co v Maddick.108 Dealing with this branch of the
law, Paton on Bailment in the Common Law, 1952 edition, p 182, states:
There has been much confusion concerning the liability of a bailee for the acts of
a servant. If a chauffeur, without authority and on a frolic of his own, takes out
his master’s car and negligently injures a pedestrian, the master is not liable, as
the servant is acting outside the course of employment. If the car is one bailed to
the master, and the servant, again on a frolic of his own, takes out the car and
damages it, the master is liable or not according to whether he entrusted that
servant with the responsibility of custody. If the servant was not charged with
the responsibility of keeping that car, the master is not liable if the servant takes
it out in an unauthorised way; but if the responsibility has been entrusted to the
servant, the very act of taking the car is a breach of the implied terms of the
bailment.
In (1936) 52 LQR 310, [it is stated] as follows:
Aitchison v Page Motors Ltd 109 belongs to that type of case in which the result of
the judgment is inevitable from the standpoint of convenience and common
sense, but which, nevertheless, requires some rather difficult legal reasoning
before it can be reached. The plaintiff sent her car to the defendants, garage
proprietors, to be repaired, and they, with her consent, sent it to the manu-
facturers. When it had been repaired, the defendants’ service manager went to
fetch it back from the manufacturers, but, instead of returning at once, he used
the car for his own purposes, with the result that it was wrecked four hours later
in an accident. Were the defendants liable for the loss of the car? At the time of
the accident, the manager obviously was not acting as the defendants’ servant:
if he had negligently injured a third person, the defendants would not have

105 The bailee is also liable for the default of an independent contractor to whom he entrusts the
goods. It is not sufficient for the bailee to plead that he entrusted the goods to an apparently
reputable contractor: Kelly v Big Ben Ltd (1986) Supreme Court, The Bahamas, No 404 of 1980
(unreported) [Carilaw BS 1986 SC 52] per Georges CJ.
106 (1957) 7 JLR 94 (Court of Appeal, Jamaica).
107 (1936) 52 TLR 137.
108 [1891] 2 QB 413.
109 (1936) 52 TLR 137.
 Chapter 12: Vicarious Liability 331

been liable. This, however, did not relieve the defendants of liability to the
plaintiff, for their breach of duty to her had begun four hours back. As bailees of
the car, it was their duty to use reasonable care to see that the car was kept safely
and this duty they had delegated to the service manager: therefore, at the
moment when he took the car for his own purposes, the defendants became
absolutely liable for any injury which the car might sustain. It was as if the
manager had, in breach of his duty of care, allowed a third person to borrow the
car. The defendants were therefore liable, not because the manager had driven
the car negligently, but because he had not carried out his duty of returning the
car to the garage. In his interesting judgment, Macnaghten J referred to the Scots
case, Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co,110 in which a
nightwatchman in charge of the defendants’ garage took out a car for his own
purposes and damaged it in a collision. It was held in that case that the defend-
ants were liable, as they had delegated to the watchman their duty of keeping
the car safely and he had failed to do so. Sanderson v Collins,111 which at first
sight seems to reach a different conclusion, can be distinguished, as in that case
the defendant’s coachman, who took out for his own purposes the dog cart
which had been lent to the defendant by the plaintiff, had not been entrusted
with the care of the cart.
There exist in the instant case all the factors that go to establish liability in the bailee – -
the entrusting of custody to the servant and the doing by the servant of something
which is inconsistent with the bailment, from which damage resulted to the thing
bailed.

On the other hand, Hart v Blair 112 is an example of a case in which the bailee was held
not liable for damage caused by an associate, who was not at the material time
engaged to do any work in relation to the property bailed. Here the claimant
delivered her car to a garage for repairs. When the repairs were completed, the garage
proprietor parked the car in the usual parking area and locked it up, taking the keys to
his home and placing them in a dish in his kitchen. Without his knowledge or consent,
W, a ‘duco man’, who worked for the proprietor as an independent contractor,
entered the house, took the keys and drove the car away. The car was later found,
damaged beyond repair.
Kerr JA, in the Jamaican Court of Appeal, stated that a bailee for reward, as in this
case, was bound to use due care and diligence in keeping and preserving the goods,
and the standard of care and diligence imposed on him was higher than in the case of
a gratuitous bailee. ‘However, a bailee for reward is not an insurer of the goods
entrusted to him, and he is not answerable for a theft by any of his servants, but only
for a theft by such of them as are deputed by him to discharge some part of his duty of
taking reasonable care . . . A fortiori the principle would apply to an independent
contractor who was not in any way concerned with the goods in question or was not
at the material time employed by the bailee to do any work in relation to them. In the
instant case there was no want of care in the locking up of the car and placing the keys
in the kitchen of his house, and the fact that not locking up his house made it less
difficult for Williams to obtain the keys would not suffice. Williams was at the least an
impertinent trespasser who apparently took advantage of his knowledge of the
respondent’s affairs to enter the kitchen in his absence, remove the keys from the dish

110 1925 SC 796.

111 [1904] 1 KB 628.
112 (1979) 16 JLR 385 (Court of Appeal, Jamaica).
332 Commonwealth Caribbean Tort Law

and drive away the appellant’s car without the knowledge and consent of the bailee.
For these reasons, I hold that there was no negligence or want of care or diligence in
the respondent and he is therefore not liable.’
At one time it was thought that an employer was not liable for his servant’s fraud
or theft committed against the plaintiff, if such wrongful act were carried out solely
for the servant’s own benefit and not for that of his employer.113 But the leading case of
Lloyd v Grace, Smith and Co 114 settled that the employer may indeed be liable in such
circumstances.115 The facts of that case were that the defendants, a firm of solicitors,
employed a managing clerk, who was authorised to do conveyancing work for the
firm. The clerk induced the plaintiff, who owned a number of properties, to instruct
him to sell the properties. He then persuaded her to execute two documents, which he
falsely told her were necessary for the sale, but which in fact were conveyances of the
properties to himself. He then dishonestly sold the properties and misappropriated
the proceeds. The House of Lords held that the defendants were liable for the fraud of
their servant. It was immaterial that the fraud was perpetrated by the clerk for his
own purposes and that the defendants derived no benefit from it.
The principle in the Lloyd case was applied by the Privy Council to a quite differ-
ent set of circumstances in United Africa Co Ltd v Owoade.116 Here, the defendant, a
transport contractor, sought business from the plaintiffs. He introduced to them two
men whom he said were his driver and clerk, and stated that whenever the plaintiffs
had any goods to be transported they should give the goods to the two men. Goods
were later given by the plaintiffs to the two men for carriage to one of the plaintiffs’
branches up-country, but they were never delivered, and the driver and clerk were
subsequently convicted of stealing the goods. The plaintiffs claimed that the defend-
ant was vicariously liable for the conversion of the goods by his servants, and the
Privy Council, reversing the West African Court of Appeal and agreeing with the trial
judge, held that he was liable. In the words of Lord Oaksey:117
Lloyd v Grace, Smith & Co establishes the principle that a master is liable for his servant’s
fraud perpetrated in the course of the master’s business, whether the fraud was commit-
ted for the master’s benefit or not. The only question is whether the fraud was commit-
ted in the course of the servant’s employment. In that case, it was clearly in the course of
the servant’s employment, since it was the fraud of a solicitor’s clerk in the solicitor’s
office on the business of the solicitor’s client . . . In the present case, the fair inference
from the facts proved is that the goods were committed expressly to the defendant’s
servants and that they converted the goods whilst they were on the journey which the

113 Barwick v English Joint Stock Bank [1861–73] All ER Rep 194.
114 [1912] AC 716.
115 In Bryan v Lindo (1986) 23 JLR 127 (Court of Appeal, Jamaica), Carberry JA (p 136) explained
the basis of an employer’s vicarious liability for the deliberate criminal conduct of his
employee thus: ‘What is at issue is the question: When, if ever, is a master liable for deliberate
criminal action of his servant? A study of the cases seems to show that the master may be so
liable if the act is one which arises either in the course of the servant’s employment or is
within his real or ostensible authority, or is so closely connected with the work that the
servant is employed to do that it may fairly be regarded as a wrongful and unauthorised way
of doing it. It can thus be said that over the years there has been a growing tendency to hold
the master liable, even where the act was not only not one for his benefit, but was done
entirely for the servant’s benefit.’ This aspect of vicarious liability has been revisited and
extended by Lister v Hesley Hall Ltd and subsequent cases. See pp 319–27, above.
116 [1957] 3 All ER 216.
117 Ibid, p 217. The onus of disproving that bailed goods were lost as a result of their being stolen
by an employee of the bailee rests on the bailee: National Commercial Bank of Trinidad and
Tobago Ltd v Sentinel Security Services Ltd (1996) 50 WIR p 442, p 445, per de la Bastide CJ.
 Chapter 12: Vicarious Liability 333

defendant had undertaken to carry out . . . The conversion, therefore, was . . . in the
course of the employment of the defendant’s servants.118

VEHICLE OWNERS AND CASUAL AGENTS

As we have seen, generally a person will be vicariously liable only where the tortfea-
sor is that person’s servant acting in the course of his employment, and several
examples have been considered of the liability of vehicle owners for the negligent
driving of their servants, for example, van and truck drivers employed as such.119
However, an important extension of the doctrine of vicarious liability has been
developed on grounds of public policy in order to fix liability upon the owner of a
vehicle for damage caused by the negligent driving of such vehicle by persons who
are not servants but merely ‘casual agents’ of the owner, such as the owner’s wife, son,
friend or other acquaintance, where the agent drives wholly or partly for the purposes
or business of the owner. As Denning LJ explained:120
It has often been supposed that the owner of a vehicle is only liable for the negligence of
the driver if that driver is his servant acting in the course of his employment. That is not
correct. The owner is also liable if the driver is his agent, that is to say, if the driver is,
with the owner’s consent, driving the car on the owner’s business or for the owner’s
purposes.
The law puts an especial responsibility on the owner of a vehicle who allows it to go on
the road in charge of someone else, no matter whether it is his servant, his friend or
anyone else. If it is being used wholly or partly on the owner’s business or for the
owner’s purposes, the owner is liable for any negligence on the part of the driver.

Wholly or partly on the owner’s business

Just as a master’s liability for his servant’s tort is limited to acts committed during the
course of the servant’s employment, so is the vehicle owner liable only where the
casual agent was driving for some purpose of the owner. Thus, for example, if a father
asks his son to drive to a store in the father’s car to pick up some cases of beer for the
father, the father will be liable for any damage caused by the son’s careless driving to
or from the store; but he will not be liable where the son, with or without his permis-
sion, uses the car for some purpose of the son’s. For example, in Hewitt v Bonvin,121
where a father allowed his son to use his car to take the son’s girlfriend home, the
father was held not liable for injury caused by the son’s negligent driving.
In Nicholls v Tutt,122 The Court of Appeal of the Eastern Caribbean States held that
the owner of a car was vicariously liable for the negligent driving of a mechanic who
had been asked by the owner to test drive the vehicle after carrying out repairs. The
basis of the owner’s liability was that the mechanic was driving as his agent.

118 A carrier whose servant or agent destroys, damages or steals goods bailed to the carrier may
also be liable as bailee of the goods: Morris v CW Martin and Sons Ltd [1966] 1 QB 716; Balkaran
v Purneta (1967) High Court, Trinidad and Tobago, No 1262 of 1965 (unreported) [Carilaw
TT 1967 HC 14].
119 See above, pp 310 et seq.
120 Ormrod v Crosville Motor Services Ltd [1953] 2 All ER 753, pp 754, 755.
121 [1940] 1 KB 188.
122 (1992) 41 WIR 140 (judgment delivered by Floissac CJ).
334 Commonwealth Caribbean Tort Law

In Harris v Hall,123 on the other hand, the defendant left her car with a garage
owner for body repairs. When the body work had been completed, the car was being
driven to another location for ‘ducoing’, when it mounted the sidewalk and knocked
the infant plaintiff down. The accident was caused solely by the negligence of the
driver, an employee of the garage owner. It was held by the Jamaican Court of Appeal
that the defendant was not liable for the negligence of the driver, as the latter was not
driving as her agent at the material time. Forte JA explained the position thus:
In the instant case, there is no evidence that could base a finding that the owner either
expressly or impliedly permitted the driver to drive her car . . . Here, the owner had, at
the time of leaving her car for repairs, given over control and custody of the car to the
garage owner, who thereafter had the right and duty of control over it. The responsibil-
ity for any act of negligence in driving the car while it was in the custody of the garage
owner would not attach to the owner, as those were circumstances in which the owner
had abandoned her right and given up possession and control to the garage owner.
The evidence accepted by the learned judge shows that the owner was unaware
of the system at the garage and was satisfied that all the repairs would take place at the
site on Gold Street, where she had turned over her car and its keys to the garage owner.
She did not expect the car to be removed from the premises, and specifically, not know-
ing that the painting would take place elsewhere, did not give any permission for
the car to be driven to those other premises. She did not know the driver, and con-
sequently had never spoken to him, the only person she did her transaction with being
the garage owner.

Accordingly, it was the garage owner in this case who was vicariously liable for the
act of negligent driving, not the owner of the car.
It was held in Ormrod v Crosville Motor Services Ltd 124 that it is sufficient for liability
if the driver was driving partly for the owner’s purposes at the material time. In this
case, the owner of a car, who had asked a friend to drive the car from Liverpool to
Monte Carlo, where they were to begin a continental holiday together, was held liable
for the negligent driving of the friend during the course of the journey. The basis of
the court’s decision was that the journey had been undertaken partly for the purposes
of the owner.
Similarly, in a recent Trinidadian case, Orie v Preau,125 Mendonca J held that a car
park attendant who injured the claimant by his negligent moving of a customer’s car
in the car park, was acting partly on the business of the owners of the car park, but
also partly for the purpose of the owner of the car, who had agreed to leave the car
keys with the attendant so that, if necessary, the car could be moved in her absence.
The attendant was thus held to have been acting as the agent of the owner of the car at
the material time.
On the other hand, the leading case of Morgans v Launchbury 126 established that, in
order to make the owner of a vehicle vicariously liable, it was not sufficient to show
that the owner had an ‘interest or concern’ in the safety of the driver and/or the
vehicle. Rather, it was necessary to show that the driver was driving on the busi-
ness, wholly or partly, of the owner, ‘under delegation of a task or duty’. In Morgans,

123 (1997) 34 JLR 190 (Court of Appeal, Jamaica); cf Emanuel v Grove (1991) High Court, Dominica,
No 94 of 1989 (unreported).
124 [1953] 2 All ER 753.
125 (2003) High Court, Trinidad and Tobago, No 2223A of 1997 (unreported).
126 [1973] AC 127.
 Chapter 12: Vicarious Liability 335

Mrs M lent her car, which was registered and insured in her name, to her husband, M,
so that M could go out with his friends on a ‘pub crawl’. M had promised Mrs M that,
should he ever become unfit to drive through drink, he would ask another person to
drive. During the outing, M asked C to drive. C drove carelessly and, in an ensuing
accident, M and C were killed and the plaintiffs, who were passengers, were injured.
They sought to hold Mrs M liable as owner of the vehicle.
The Court of Appeal held Mrs M liable.127 Lord Denning MR based his reasoning
on the ‘family car’ or ‘matrimonial car’ principles, which have been widely adopted in
the US. According to the family car principle, the owner of a vehicle will be vicari-
ously liable for the negligent driving of any member of his or her family to whom he
or she lends the vehicle; alternatively, under the matrimonial car principle, a spouse
who owns a car will be vicariously liable for the negligent driving of that car by the
other spouse.
The reasoning of Lord Denning was, however, decisively rejected by the House of
Lords, which held that the court was not entitled to sanction so radical a departure
from the established principle, which was that the owner of a vehicle will be vicari-
ously liable only where the driver was driving for some purpose of the owner. In the
court’s view, any such change in the law would have to be introduced by the legis-
lature, after due investigation into the implications for insurance practice. On the facts
of the case, Mrs M was not vicariously liable, as the pub crawl was undertaken solely
for the purposes of M and his friends, and it was insufficient that Mrs M had an
‘interest or concern’ in the safe return of M and the vehicle.
Two Caribbean examples of the application of these principles are Hopkinson v Lall
and Avis Rent-A-Car v Maitland.
In Hopkinson v Lall,128 the plaintiff/appellant was injured when a car in which
he was a passenger and which was being driven by R, a friend of his, collided with
a concrete post. The appellant sought to make the defendant/respondent, the
owner of the car, liable for R’s negligent driving, contending that R was, at the
time of the accident, acting as the respondent’s agent. There was no evidence as to
the purpose for which R had borrowed the car from the respondent, but it was
proved that, on the night of the accident, R had driven himself and the appellant
to a club in Georgetown, where they had dinner, and that it was whilst returning
from the club to the place where he was to meet the respondent that the accident
happened.
It was held that, since the journey was undertaken solely for the purposes of the
appellant and R, and not for any purposes of the respondent, the respondent was not
vicariously liable for the negligence of R. Lewis J said:129
It was urged on behalf of the appellant that, on the authority of Barnard v Sully,130 in the
absence of any other evidence as to the purpose for which Rodrigues took the car from
Queen’s College, he must be presumed to have been driving it as the respondent’s
agent, and that, as in this case the respondent had not called or given evidence in
rebuttal of that presumption, the agency must be deemed to have continued up to the
moment of the collision. In my view, Barnard’s case only applies where the court finds

127 Launchbury v Morgans [1971] 2 QB 245.

128 (1959) 1 WIR 382.
129 Ibid, p 385.
130 (1931) 47 TLR 557.
336 Commonwealth Caribbean Tort Law

that a vehicle was negligently driven and that the defendant was its owner, and is left
without further information. That is not the position in this case, for it was clearly
proved, and admitted in argument, that the drive from the appellant’s home along the
East Coast and to the Cactus Club was undertaken solely for the pleasure of Rodrigues
and the appellant and in no way on the business of the respondent.
But, it is said, there is evidence that the respondent had told Rodrigues to ‘turn up’ or to
‘come back’ for him at Queen’s College, and it may be inferred from this that Rodrigues
was carrying out the instructions of the respondent to bring the car back for the
respondent’s use, so that at any rate the respondent would have an interest in the return
journey. It was submitted that in such circumstances the respondent would be liable for
Rodrigues’ negligence. In support of this proposition, counsel for the appellant relied
on the case of Ormrod v Crosville Motor Services Ltd . . .131
I regard the facts of this case as being materially different from those of Ormrod’s case,
where the main purpose for which the driver set out on his journey was to comply with
the owner’s request that he should drive the car, containing the owner’s suitcase, from
Birkenhead to Monte Carlo. I do not read Ormrod’s case as laying down a rule that,
wherever it is intended that on the completion of one journey a vehicle is to be used for
the joint purposes of the owner and the driver, the owner must be deemed to have such
an interest in the first journey as to make him liable for the driver’s negligence. The
instant case appears rather to fall within the exception mentioned by Lord Denning,
where he says:132
The owner only escapes liability when he lends it or hires it to a third person to
be used for purposes in which the owner has no interest or concern: see Hewitt v
Bonvin.133

In Avis Rent-A-Car v Maitland,134 FH rented a car from the appellant for an unspecified
period. He was required to bring the car for checking at the end of each week. He was
also required to make a weekly payment for the hiring. While FH was driving the car
on a ‘mission’, namely, carrying out private investigation work, the car went out of
control and crashed. FH’s passenger, GH, was killed. The accident was caused
entirely by the negligence of FH. The trial judge held that FH was driving the car as
the appellant’s agent, since ‘where a car rental firm hires a car to any person by way of
business and under an arrangement as the one proved in this case, the hirer would not
be driving merely for his own benefit . . . The driving of the car is of benefit to the firm
renting the car’.
The Jamaican Court of Appeal held that FH was not driving on the appellant’s
business at the material time and he was not the appellant’s agent. Zacca P (Ag) said:135
The plaintiff/respondent argued that: (a) the driver of the car was driving not only for
his benefit but also for the benefit of the owner, in that the owner would be making a
profit whilst the car was being driven and that he was obliged to bring in the car once
weekly for checking; and (b) the appellant delegated the task of driving its vehicle to
persons who hire it. In these circumstances, it was argued that Henry was the agent of
the appellant.

131 [1953] 2 All ER 753.

132 Ibid, p 755.
133 [1940] 1 KB 188.
134 (1980) 32 WIR 294 (Court of Appeal, Jamaica). Followed in Baynes v Williams (2002)
High Court, St Vincent and The Grenadines, No HCV 483/2001 (unreported), per Alleyne J
[Carilaw VC 2002 HC 35].
135 Ibid, p 296.
 Chapter 12: Vicarious Liability 337

In our view, the respondent’s case must fail on the facts of this case. The fact that the
appellant may be making a profit whilst the car was being driven by Henry does not
mean that he was driving the car for the owner’s purposes in pursuance of a task or
duty delegated by the company to him. The law is stated thus in Halsbury’s Laws of
England, 3rd edn, Vol 28, para 71, p 71:
The owner is, however, responsible only where he has delegated to the driver
the execution of a purpose of his own over which he retains some control and
not where the driver is a mere bailee, engaged exclusively upon his own
purpose.
Morgans v Launchbury 136 is the leading case on this question. The law is accepted as
being well settled. Lord Wilberforce states:137
For I regard it as clear that in order to fix vicarious liability upon the owner of a
car in such a case as the present, it must be shown that the driver was using it
for the owner’s purposes, under delegation of a task or duty. The substitution
for this clear conception of a vague test based on ‘interest’ or ‘concern’ has
nothing in reason or authority to commend it. Every man who gives permis-
sion for the use of his chattel may be said to have an interest or concern in its
being carefully used, and, in most cases if it is a car, to have an interest or
concern in the safety of the driver, but it has never been held that mere permis-
sion is enough to establish vicarious liability . . . I accept entirely that ‘agency’
in contexts such as these is merely a concept, the meaning and purpose of
which is to say ‘is vicariously liable’, and that either expression reflects a judg-
ment of value – respondeat superior is the law saying that the owner ought to
pay. It is this imperative which the common law has endeavoured to work out
through the cases. The owner ought to pay, it says, because he has authorised
the act, or requested it, or because the actor is carrying out a task or duty
delegated, or because he is in control of the actor’s conduct. He ought not
to pay (on accepted rules) if he has no control over the actor, has not authorised
or requested the act, or if the actor is acting wholly for his own purposes. These
rules have stood the test of time remarkably well. They provide, if there
is nothing more, a complete answer to the respondent’s claim against the
appellant.
It is to be observed that Lord Denning MR, in his judgment in the Court of Appeal in the
same case of Launchbury v Morgans, had this to say:138
One word of caution, however, I must give about this principle. The words
‘principal’ and ‘agent’ are not used here in the connotation which they have in
the law of contract (which is one thing), or the connotation which they have
in the business community (which is another thing). They are used as shorthand
to denote the circumstances in which vicarious liability is imposed. Stated fully,
the principle is as I stated it in Ormrod v Crosville Motor Services Ltd,139 slightly
modified to accord with the way in which Devlin J put it140 and approved by
Diplock LJ in Carberry v Davies:141
The law puts an especial responsibility on the owner of a vehicle who
allows it to go on the road in charge of someone else, no matter whether it is
his wife, his servant, his friend, or anyone else. If it is being used wholly or

136 [1973] AC 127.

137 Ibid, p 135.
138 [1971] 2 QB 245, p 255.
139 [1953] 2 All ER 753, p 755.
140 [1953] 1 All ER 711, p 712.
141 [1968] 2 All ER 817, p 819.
338 Commonwealth Caribbean Tort Law

partly on the owner’s business or in the owner’s interest, the owner is liable
for any negligence on the part of the driver. The owner only escapes liability
when he lends it out or hires it out to a third person to be used for purposes
in which the owner has no interest or concern.
When a company or an individual in the course of its business hires a motor vehicle to a
person on terms that, during the period of hire, the vehicle should be driven by the
servant or agent of the owner, responsibility for the negligent driving of that motor
vehicle will in ordinary circumstances devolve upon the owner (Mersey Docks and Har-
bour Board v Coggins and Griffith (Liverpool) Ltd ).142 An entirely different situation arises in
law when such a company or individual hires the motor vehicle on the condition that
the motor vehicle can be driven by the hirer for purposes exclusively determined by the hirer,
in which the benefits of the venture accrue wholly to the hirer. In this second case, there is no
joint interest between owner and hirer in the outcome of the venture, and the hireage is
not dependent upon or affected by the profitability or otherwise of the venture. Such is
the position in the instant case, where the owner retained an interest in its motor
vehicle, charging a fee for wear and tear and stipulating for adequate maintenance but
otherwise entirely disinterested in the purposes for which the motor vehicle was used.
We accept the views on the law of vicarious responsibility expressed in Morgan’s case as
the correct principle to be followed.
We are of the opinion that legislation is urgently necessary to protect members of the
public who may suffer personal injury and damage due to the negligence of drivers of
‘U-Drive’ cars. The legislature has the provisions of the Motor Vehicle Insurance (Third
Party Risks) Law which can act as a guide for future legislation, and we are of the
opinion, as the court was in Morgan’s case, that it is too late now for the courts to extend
the boundaries of agency to compensate one in the respondent’s position for the injury
done to him.
We hold that the appellant is not vicariously liable for the negligent driving of Henry.
On the facts of this case, Henry cannot be said to have been driving as the agent of the
appellant.

THE PRESUMPTION OF SERVICE OR AGENCY

Where the plaintiff seeks to recover damages from the owner of a vehicle in respect of
the negligent driving of that vehicle by a person other than the owner, the plaintiff has
the burden of proving:
(a) that the negligent driver was the servant or agent of the owner; and
(b) that the act of negligent driving occurred during the course of the driver’s
employment or agency.
The plaintiff’s task may be assisted, however, by a rule of evidence first propounded
in Barnard v Sully 143 and later adopted by the Jamaican Court of Appeal in Matheson v
Soltau,144 to the effect that where a plaintiff in an action for negligence proves that
damage has been caused to him by the defendant’s vehicle, the fact of ownership of the
vehicle is prima facie evidence that the vehicle was being driven at the material time by the
servant or agent of the owner, or by the owner himself. In other words, there is an initial
presumption of service or agency which the defendant owner must rebut if he is to

142 [1947] AC 1.
143 (1931) 47 TLR 557.
144 [1933] JLR 72.
 Chapter 12: Vicarious Liability 339

avoid liability.145 The practical background and usefulness of the rule in Barnard
v Sully and Matheson v Soltau was recently explained by Sykes J in the Jamaican
Supreme Court:146
The rationale for taking this approach to vicarious liability in this type of case rests upon
the idea that in many instances it may well be impossible or difficult for the claimant to
establish the full facts surrounding the agency or service if that is the case. In many
instances the driver is not available. He may be named as a defendant but oftentimes he
cannot be served or made to physically appear in court. This judicially devised solution
to the problem seems to be effective. There is no risk of injustice to the owner, since the
presumption is not difficult to rebut. An examination of the cases shows this. However,
as Matheson points out, the rebutting evidence has to be credible. Surely the owner
ought to be better able than the claimant to say what the relationship was between
himself and the driver.

There are many cases in the Commonwealth Caribbean in which the rule in
Barnard v Sully or Matheson v Soltau has been invoked, of which South v Bryan and
Confidence Bus Service Ltd 147 is an example. Here, B was employed by the bus company
as a driver. He had general authority to drive the company’s vehicle, such authority
not being limited to driving on the official route. Whilst reversing the bus at a
gas station about a quarter of a mile from the nearest point on his normal route, B
negligently collided with and damaged articles belonging to the plaintiff. Moody J
held that the company was vicariously liable for B’s negligence. He said:
There is no precise evidence as to what took the driver of this bus to this gas station, and
there is no evidence to indicate that he was acting on a frolic of his own . . . The pre-
sumption in Matheson v Soltau 148 that the vehicle was on the business of the master was
not rebutted . . . The case of Storey v Ashton 149 can readily be distinguished on the basis
that the evidence was clear that the driver was engaged on the business of the clerk.
There is no such clarity in the circumstances of this case, and the mere fact that a driver
deviates from his fixed route in order to carry out some business of his own which is not
stated would not remove the liability of the master in respect of the negligence of the
driver on such an occasion.

The scope of the Barnard principle was reviewed by the Privy Council in Rambarran
v Gurrucharran.150 Here, a car belonging to the defendant/appellant, a farmer, collided
with and damaged the plaintiff/respondent’s car, owing to the negligent driving of

145 Turnquest v Sands (2004) Supreme Court, The Bahamas, No CLE/146/2001 (unreported) [Car-
ilaw BS 2004 SC 121], per Mohammed J. In Campbell v Bennett (2005) Supreme Court, Jamaica,
No CLC 248 of 1995 (unreported) [Carilaw JM 2005 SC 80], B, the registered owner, asserted
that he had in fact sold the car to G (the negligent driver), and that G was the actual owner of
the vehicle at the time of the accident. Sykes J accepted B’s assertion, notwithstanding the
lack of documentary evidence of the sale. The presumption of agency was thus rebutted.
146 Campbell v Flash (2004) Supreme Court, Jamaica, No CLC 471 of 1997 (unreported) [Carilaw
JM 2004 SC 58].
147 [1968] Gleaner LR 3 (Court of Appeal, Jamaica).
148 [1933] JLR 72. Similarly, in Alphonso v Ramnath (1997) 56 WIR 183, p 188, Satrohan Singh JA,
in the Court of Appeal of the Eastern Caribbean States, pointed out that: ‘there is a presump-
tion that a vehicle is being used for the master’s purposes if the servant has authority to use
it at all. The onus then shifts to the owner to show that the employee was acting outside that
scope (Laycock v Grayson (1939) 55 TLR 698). This makes good sense because knowledge
of the purpose of such use would be peculiarly within the bosom of the owner.’ See also
Barbados Automotive Appliances Ltd v Williams (1993) Court of Appeal, Barbados, Civ App
No 19 of 1990 (unreported) [Carilaw BB 1993 CA 24].
149 (1869) LR 4 QB 476.
150 [1970] 1 All ER 749.
340 Commonwealth Caribbean Tort Law

the appellant’s son, L. The car was originally purchased by the appellant for the use of
his whole family, and L and his three brothers had a general permission to use it at
any time. The appellant was not aware that L had taken the vehicle out on the day of
the accident. The Court of Appeal of Guyana held that the presumption that L was
driving the car as agent of the appellant had not been rebutted, since the appellant
had not given evidence as to the purpose of the journey which was being made when
the collision occurred. Furthermore, in the opinion of the court, the presumption had
been strengthened by the fact that, on the day of the collision, L was driving with the
appellant’s permission, under an ‘ever-existing authority’.
It was held on appeal to the Privy Council that ultimately the question of agency
is one of fact and the burden of proof of agency lies on the party who alleges it. In the
present case, the inference of agency arising from proof of ownership was displaced
by the evidence that L had a general permission to use the car, since it was impossible
to assert, merely because the appellant owned the car, that L was not using it for his
own purposes as he was entitled to do. Lord Donovan said:151
In Barnard v Sully,152 Mr Barnard sued Mr Sully in the county court for damage done to
his van through the negligent driving of Mr Sully’s motor car. It seems to have been
accepted that Mr Sully was not driving himself, and he denied that the driver was his
servant or agent. In the absence of evidence contradicting this denial, the county court
judge withdrew the case from the jury. Mr Barnard appealed to a Divisional Court of
the King’s Bench, but Mr Sully did not appear and was not represented. Allowing the
appeal, Scrutton LJ, with whom Greer and Slesser LJJ concurred, said:
No doubt, sometimes motor cars were being driven by persons who were not
the owners, nor the servants or agents of the owners . . . But, apart from author-
ity, the more usual fact was that a motor car was driven by the owner or the
servant or agent of the owner, and therefore the fact of ownership was some
evidence fit to go to the jury that at the material time the motor car was being
driven by the owner of it or by his servant or agent. But it was evidence which
was liable to be rebutted by proof of the actual facts.
Where no more is known of the facts, therefore, than that, at the time of an accident, the
car was owned but not driven by A, it can be said that A’s ownership affords some
evidence that it was being driven by his servant or agent. But when the facts bearing on
the question of service or agency are known, or sufficiently known, then clearly the
problem must be decided on the totality of the evidence.
In Hewitt v Bonvin,153 a motor car driven by the son of Mr Bonvin was involved in an
accident and a passenger in the car was killed as a result. The administrator of the
deceased sued Mr Bonvin senior for damages. Owing to a previous accident, Mr Bonvin
senior told both his sons that they were never to drive his car without his permission.
He did, however, authorise his wife to give such permission, and on this occasion she
gave it to the son concerned, who wished to take home two girlfriends whom neither
the father nor the mother knew. Lewis J held that, in the circumstances, the son, John
Bonvin, was driving the car as the servant or agent of his father, and gave judgment
against the father. This was reversed in the Court of Appeal. It was there held: (1) that if
the plaintiff were to make Mr Bonvin senior liable, he must establish that the son was
driving the car at the time as the servant or agent of the father; (2) that this cannot be
established by mere proof that the son was driving a vehicle which at the time was the
property of his father, although, in the absence of any further explanation, that might be

151 Ibid, p 751.

152 (1931) 47 TLR 557.
153 [1940] 1 KB 188.
 Chapter 12: Vicarious Liability 341

some evidence of the proposition; (3) the evidence in the case showed no more than that
the son was lent the father’s car, and the father had no interest or concern in what the
son was doing; (4) the fact that the son drove with the consent of the father (given
through the mother) did not of itself establish service or agency; (5) ultimately, the
question of service or agency is always one of fact . . .
In the present case, it is clear that any inference, based solely on the appellant’s owner-
ship of the car, that Leslie was driving as the appellant’s servant or agent on the day of
the accident would be displaced by the appellant’s own evidence, provided it were
accepted by the trial judge, which it was. Leslie had a general permission to use the car.
Accordingly, it is impossible to assert, merely because the appellant owned the car, that
Leslie was not using it for his own purposes as he was entitled to do. The occasion was
not one of those specified by the appellant as being an occasion when, for one of the
appellant’s own purposes, a son would drive it for him. He was ignorant of the fact that
the son had taken the car out that day; and he did not hear of the accident until a
fortnight after it happened. In the face of this evidence, the respondent clearly did not
establish that Leslie was driving as the appellant’s servant or agent. He had to overcome
the evidence of the appellant, which raised a strong inference to the contrary. The
burden of doing this remained on the respondent and the trial judge held that he had
failed to discharge it. His conclusion on this point was one of fact and he had ample
evidence to support it.
In the Court of Appeal, Sir Kenneth Stoby C said that, to rebut the prima facie evidence of
service or agency, ‘the defendant who alone knows the facts must give evidence of the
true facts’; and Persaud JA commented that:
. . . the court is left without further information, in the sense that the [appellant]
has not . . . given any evidence as to the journey which was being made at the
time of the accident.
These passages in the judgment of the majority of the Court of Appeal would seem to
endorse one of the respondent’s grounds of appeal, namely, that the appellant:
. . . failed to lead any evidence whatever to show the circumstances in which his
motor car . . . was being used at the time of the accident, and that such matters
must be peculiarly within the knowledge of himself and his family and his
servants and/or agents.
The argument based on this assertion was misconceived. The appellant, it is true, could
not, except at his peril, leave the court without any other knowledge than that the car
belonged to him. But he could repel any inference, based on this fact, that the driver was
his servant or agent in either of two ways. One, by giving or calling evidence as to
Leslie’s object in making the journey in question, and establishing that it served no
purpose of the appellant. Two, by simply asserting that the car was not being driven for
any purpose of the appellant, and proving that assertion by means of such supporting
evidence as was available to him.154 If this supporting evidence was sufficiently cogent
and credible to be accepted, it is not to be overthrown simply because the appellant
chose this way of defeating the respondent’s case instead of the other. Once he had thus
proved that Leslie was not driving as his servant or agent, then the actual purpose of
Leslie on that day was irrelevant. In any event, the complaint that the appellant led no
positive evidence of the purpose of Leslie’s journey comes strangely from the respond-
ent, who could have found it out by making Leslie a co-defendant and administering
interrogatories, or compelled his attendance as a witness and asked him questions
about it. He did none of these things.
In his dissenting judgment, Cummings JA said:

154 See, eg, Baboolal v Bharath (1999) High Court, Trinidad and Tobago, No S-77 of 1991
(unreported); Glasgow v Stanley (1999) High Court, Trinidad and Tobago, No CV 234 of 1993
(unreported) [Carilaw TT 1999 HC 65].
342 Commonwealth Caribbean Tort Law

In the instant case, as in Hewitt v Bonvin, the Court was not, as in Barnard v Sully,
without further information. There was ample information to justify the infer-
ences drawn by the learned trial judge and his conclusion that the [respondent]
had failed to establish the requirements as laid down in Hewitt v Bonvin. Indeed,
I am myself unable to draw any different inferences or arrive at any other
conclusion.
Their Lordships take the same view; and while, out of respect for the learned judges of
the Court of Appeal who took a different view, they have gone into this case in some
detail, they can nevertheless summarise their conclusion by repeating that the question
of service or agency on the part of the appellant’s son, Leslie, was ultimately a question
of fact; and that there was ample evidence on which the trial judge could find as he did.

LIABILITY INSURANCE

In all jurisdictions, statutory provisions require the owner of a vehicle who puts it on
the road first to obtain an insurance policy covering liability to third parties.155 Such
policies commonly provide insurance cover for the owner and any qualified driver
whom he permits to drive the vehicle. If the negligent driver is a person covered by
the policy, it will not be necessary for the plaintiff to invoke the doctrine of vicarious
liability in order to make the owner of the vehicle liable, as the insurance company
will compensate the plaintiff under the terms of the policy. However, it may be neces-
sary to fix the owner with vicarious liability if the offending driver or the circum-
stances of the journey are not covered by the policy (for example, where the driver has
been disqualified from driving by a court of law, or where at the material time he was
using the vehicle for business purposes but the policy covers only use for social,
domestic or pleasure purposes). Alternatively, where the owner of a vehicle allows a
person who is uninsured to drive the vehicle, the owner may be liable to the plaintiff
for breach of statutory duty if the negligent driver cannot satisfy an award of damages
to the plaintiff.156

LIABILITY FOR INDEPENDENT CONTRACTORS

The employer of an independent contractor is generally not liable for any torts com-
mitted by the contractor or his employees in the course of the job for which he is
engaged. The law considers that, since the employer cannot control the way in which
the contractor does the work, it is the contractor alone who is in a position to guard
against any risks incidental to the work and who must, therefore, alone be answerable
for any damage caused to third parties as a result of his failure to take due precau-
tions. Furthermore, the risk of accidents will normally be incidental to the contractor’s
business rather than to the employer’s, and it is therefore more convenient to allow
any loss resulting from damage caused to third parties to fall on the contractor, who

155 Eg, Motor Vehicles Insurance (Third Party Risks) Act, Ch 48:51, s 4(1) (Trinidad and Tobago);
Motor Vehicles Insurance (Third Party Risks) Act, s 4(1) (Jamaica); Motor Car Insurance
(Third Party Risks) Act 1943, s 3(1) (Bermuda). See Harris v Hall (1997) 34 JLR 190 (Court of
Appeal, Jamaica); Araujo v Smith (1997) Court of Appeal, Bermuda, Civ App No 6 of 1997
(unreported) [Carilaw BM 1997 CA 13]; Namdeo v Citizens Insurance Co Ltd (2001) High Court,
Trinidad and Tobago, No 1121 of 1999 (unreported) [Carilaw TT 2001 HC 106].
156 Monk v Warbey [1935] 1 KB 75; Harris v Hall (1997) 34 JLR 190 (Court of Appeal, Jamaica).
 Chapter 12: Vicarious Liability 343

will usually be better equipped to insure against such loss and who can easily pass on
the cost of this insurance in the form of higher prices charged for his work.157
There are, however, a number of exceptions to the principle of non-liability for the
torts of independent contractors, and these must now be considered briefly.

Authorisation of tort

Where X authorises, directs or instigates Y to commit a tort, both X and Y will be liable
for it. This primary liability of X is not restricted to cases where Y is X’s independent
contractor, but applies equally where Y is X’s servant or where he is a stranger to X.
An example commonly given of liability for authorising an independent contractor’s
tort is that of the passenger in a taxi who orders the driver to drive fast or to take other
risks. In such a case, both the taxi driver and the passenger will be liable for any
damage caused by the former’s reckless driving.158 Similarly, as we saw in Chapter 2,
if X directs or authorises Y to arrest the plaintiff unlawfully, both X and Y will be liable
for false imprisonment.
An example of such liability is the Trinidadian case of Ramessar v Trinidad and
Tobago Electricity Commission.159 Here the defendants employed a tree-felling con-
tractor to clear an area of trees and vegetation in the course of preparation for the
erection of power lines. The contractor felled a number of trees in such a way as to
cover the plaintiff’s timber, which was lying on the ground, thus depriving the plain-
tiff of access to the timber for several days. The plaintiff sued the defendants for
negligence.
Rees J held that the plaintiff’s action was statute-barred, but the defendants would
otherwise have been liable for the negligence of their independent contractor because
the acts complained of were precisely what the contractor had been employed to do.
He said:
It is well established that the essential ingredients of the tort of negligence are: (a) the
existence of a duty to take care owing to the plaintiff by the defendant; (b) committing
a breach of that duty; and (c) consequential damage. As the Commission is an artificial
person created by law, it is not capable of acting in propria persona, but only through its
servants and/or agents, and, as the facts in this case clearly indicate that Rampersad
and his workmen were the actors, it becomes necessary, at the outset, to ascertain if the
Commission is responsible for the acts of Rampersad and his workmen. He had
engaged and paid his workers on his own behalf and not as agent for the Commission,
and this in itself raises a strong presumption that Rampersad was an independent
contractor. But he says that he took his orders from Rostant [the supervisor employed
by the Commission], whom he considered his immediate boss. I have no doubt that
Rostant paid regular visits to the forest, checking up on what work was being done from
time to time, pointing out the direction in which the trees should be cut, and supervis-
ing the work generally, but that he at no time had control over the manner in which
Rampersad and his workmen were to execute the work. That being so, I hold that
Rampersad was an independent contractor.

157 See, generally, McKendrick, E (1990) 53 MLR 770.

158 This passage in the text was approved by Colin Williams JA in Airline Freight Services Ltd v
Morris (2005) Court of Appeal, Barbados, Civ App No 25 of 1997 (unreported) [Carilaw BB
2005 CA 22].
159 (1966–69) 19 Trin LR (Pt IV) 103 (High Court, Trinidad and Tobago).
344 Commonwealth Caribbean Tort Law

Counsel for the Commission submits that an employer is not liable for the negligence of
an independent contractor. Generally speaking, this is so, but I think that an employer
has always been held to be liable for the contractor’s negligence in the doing of the
very thing he has contracted to do. As can be seen from the letter accepting the tender
in the present case, the Commission engaged the services of Rampersad to cut trees
along the route of its transmission lines and nothing more. It was not, therefore, any
part of Rampersad’s contract to remove the felled trees from the ground, and, as far as
I can see, the Commission made no provision for this part of the work to be carried out.
If, then, the Commission is under a duty to use care in the felling of the trees and to see
that they were not left covering the property of other licensees in the area, it cannot
escape from the responsibility attaching on it by delegating the work to an independent
contractor. This is how Denning LJ, as he then was, puts the matter in Cassidy v Ministry
of Health:160
I take it to be clear law, as well as good sense, that, where a person is himself
under a duty to use care, he cannot get rid of his responsibility by delegating the
performance of it to someone else, no matter whether the delegation be to a
servant under a contract of service or to an independent contractor under a
contract for services.
In the instant case, I hold that the Commission was responsible for the acts of Ramper-
sad and his workmen, notwithstanding that Rampersad was an independent contractor.

It is submitted with respect that although this case admirably illustrates the principle
that a person may be held liable for those acts of his independent contractor which
he has authorised, the actual loss complained of – the deprivation of access to the
plaintiff’s timber for several days – would appear to be purely economic and, in the
absence of proof of physical damage to the timber, should not in any event have been
actionable in negligence (see above, pp 109–10).

Torts of strict liability

The employer of an independent contractor will be liable where the contractor com-
mits a tort of strict liability, such as under the rule in Rylands v Fletcher 161 or under
liability for dangerous animals.162

Negligence

In some circumstances, a duty to take care is said to be ‘non-delegable’,163 that is, a

person does not discharge his duty of care merely by appointing, instructing or
supervising a competent contractor. Non-delegable duties arise where the projected
work is intrinsically dangerous or hazardous and involves a high risk requiring
special precautions.164 One example of this principle is Waithe v Natural Gas Corp,165

160 [1951] 1 All ER 575, p 586.

161 See above, Chapter 8.
162 See above, Chapter 9.
163 See, however, Williams, G [1956] CLJ 180.
164 Honeywill v Larkin Bros [1934] 1 KB 191.
165 (1960) 3 WIR 97 (Supreme Court, Barbados). See also Campbell v Kingston and St Andrew Corp
(1992) 29 JLR 476; Dayes v Chong (1999) Supreme Court, Jamaica, No CL D201 of 1995
(unreported) [Carilaw JM 1999 SC 35]; Pierre v St Lucia Water and Sewerage Authority (2003)
High Court, St Lucia, No 354 of 1994 (unreported) [Carilaw LC 2003 HC 13].
 Chapter 12: Vicarious Liability 345

where the corporation, being authorised by statute to dig up the highway and to lay
pipes thereunder, employed an independent contractor to do the work. Owing to the
contractor’s negligence, a hole formed in the road after pipes had been laid, and the
plaintiff cyclist rode into the hole, fell and sustained injuries. Hanschell J held both
the contractor and the corporation liable. He said:166
The corporation employed Duguid, an independent contractor, to excavate the high-
way; this work was likely to involve danger to persons using the highway. The law cast
upon the corporation a duty to take care that persons passing along the highway were
not injured by the negligent performance of this work. The contractor, Duguid, may
be regarded as the agent of the corporation in the performance of this duty and the
corporation is liable for Duguid’s negligence in his performance. In Penny v Wimbledon
UDC,167 it was said:
When a person employs a contractor to do work in a place where the public are
in the habit of passing, which work will, unless precautions are taken, cause
damage to the public, an obligation is thrown upon the person who orders the
work to be done to see that the necessary precautions are taken, and, if the
necessary precautions are not taken, he cannot escape liability by seeking to
throw the blame on the contractor . . .
. . . Here, the corporation was not only under a duty to take care, but also to see that care
was taken.

Another example of the principle is Sattaur v Rapununi Development Co Ltd,168 where

a stray-catcher (who was held to be an independent contractor) was employed to
drive a herd of cattle along a busy public street. Owing to the stray-catcher’s failure
to control the cattle, a steer escaped and injured the plaintiff. The employer of the
stray-catcher was held liable for the latter’s negligence. Bell CJ said:169
It seems to me that the work of driving these particular cattle through the Stelling Road
on the morning of 9 September 1948 in the circumstances in which they were so driven
was, in the light of the facts as I have found them, necessarily dangerous or was from its
nature likely to cause danger to others, unless precautions were taken to prevent such
danger, and I cannot see that the defendant can escape liability by arguing that the
independent contractor and his servants should have adopted a less dangerous way of
carrying out such work. On the contrary, it seems to me that, notwithstanding the
existence of his standing contract with the independent contractor, the defendant should
have taken steps to see that due precautions were taken by the independent contractor
to prevent the dangers which were attendant upon the driving of those particular cattle
through the Stelling Road on that particular day.

A third example of the principle is Seeraj v Dindial.170 In this case, D agreed to sell a
large Balata tree which stood on his land to J, and they jointly employed a woodcutter
to fell the tree. Owing to the woodcutter’s negligence, the tree fell onto the plaintiff’s
house and destroyed a substantial part of it. Davis J held that the woodcutter was an
independent contractor. The defendants (D and J) were liable for his negligence,
because the felling of the tree so close to the plaintiff’s property was an inherently

166 Waithe v Natural Gas Corp (1960) 3 WIR 97 (Supreme Court, Barbados), pp 98–101.
167 [1899] 2 QB 72, p 76.
168 [1952] LRBG 113. See also above, p 214. Cf Hussain v East Coast Berbice Village Council (1979)
High Court, Guyana, No 308 of 1976 (unreported) [Carilaw GY 1981 HC 15].
169 Sattaur v Rapununi Development Co Ltd [1952] LRBG 113, p 116.
170 (1985) High Court, Trinidad and Tobago, No 469 of 1982 (unreported) [Carilaw TT 1985 HC
180].
346 Commonwealth Caribbean Tort Law

dangerous operation and the defendants were under a non-delegable duty to ensure
that proper care was taken. Davis J explained:
Where a man does work on or near another’s property which involves danger to that
property unless proper care is taken, he is liable to the owner of that property for
damage resulting to it from the failure to take proper care and is equally liable if, instead
of doing the work himself, he procures another, whether agent, servant or otherwise, to
do that work for him.
In Brooke v Bool 171 . . . the defendant let to the plaintiff a lock-up shop on the ground floor
of a house adjoining that in which he himself resided. It was arranged that the defend-
ant might enter the shop after the plaintiff had left it for the day to see that it was secure.
One night, a lodger informed the defendant that he thought he smelt gas coming from
the shop, and the defendant thereupon entered the shop, followed by the lodger. In the
shop, a gas pipe passed down a wall and terminated in a burner. The defendant, who
was old, examined the lower part of the pipe with a naked light, and the lodger, who
was much younger, then got upon the counter and examined the upper part of the pipe
with a naked light, when an explosion occurred which did damage to the plaintiff’s
goods. The defendant admitted that he desired to examine the upper part of the pipe
and that he welcomed the lodger’s help. It was held that the defendant was liable to the
plaintiff for the damage done to her property by the negligent act of the lodger on [the
ground, inter alia] that the defendant, having undertaken the examination, was under a
duty to take reasonable care to avoid danger resulting from it, and that he could not
escape liability for the consequences of his failure to do so by getting someone else to
make the examination or part of it for him.
[Talbot] stated:]172
In my opinion, the defendant, having undertaken this examination, was under
a duty to take reasonable care to avoid danger resulting from it to the shop and
its contents, and, if so, he cannot escape liability for the consequences of failure
to discharge this duty by getting, as he did, someone to make the examination,
or part of it, for him, whether that person is an agent, or a servant, or a con-
tractor, or a mere voluntary helper . . . The principle is that if a man does work
on or near another’s property which involves danger to that property unless
proper care is taken, he is liable to the owner of the property for damage result-
ing to it from the failure to take proper care, and is equally liable if, instead of
doing the work himself, he procures another, whether agent, servant or other-
wise to do it for him.
I might add that even if the agreement between the defendants was to the effect that the
second defendant was to cut the tree at his own risk, that provision could not operate to
defeat the first defendant’s liability to the plaintiff on the principle I have stated above.
The most that such a provision could do is to enable the first defendant to claim an
indemnity from the second defendant if he is found guilty of negligence (see Bower
v Peate).173
It was contended by counsel for the first defendant that there is nothing inherently
dangerous in the cutting down of trees, and hence the first defendant could not be
guilty of negligence on the basis of the principle enunciated above. He relied on the
decision in Salsbury v Woodland 174 to support this contention. In my view, the decision in
that case lays down no such general principle as contended for by counsel for the first

171 [1928] 2 KB 578.

172 Ibid, p 587.
173 (1876) 1 QBD 321.
174 [1970] 1 QB 324. Followed in Toussaint v Cul-de-Sac Industrial Zone Ltd (2002) High Court,
St Lucia, No 470 of 1994 (unreported), per Saunders J [Carilaw LC 2002 HC 17].
 Chapter 12: Vicarious Liability 347

defendant. What that case decided was that the removal of a hawthorn tree in the
circumstances in which it was removed, and having regard to its height and proximity
to the highway, was not an inherently dangerous operation so as to attract the principle
that the employer of an independent contractor is liable for the negligence of such
contractor where the contractor is employed to do inherently dangerous work and he
does it negligently. One has but to read the judgment of Sachs LJ in that case to see that
he makes this point quite clearly. He says:175
In the present case, it seems clear to me that there was nothing ‘inherently
dangerous’ in the operation of removing this particular hawthorn tree. Any
competent workman could do it perfectly safely and without the slightest risk
to the telephone wires, to the house, or to any other property, if he tackles it in
the standard way; nor could any occupier of land normally foresee that there
was any danger involved in such an operation or that a competent contractor
could be prone to what was described as ‘extreme stupidity’. The whole pos-
ition as regards ‘inherent danger’ might be very different if the case was con-
cerned with the removal of a 60 ft tree. The appropriate operation in the instant
case was, incidentally, as different from what is usually termed ‘tree felling’, as
a hawthorn tree differs from the single-trunk, tall trees to which, of course, the
word ‘felling’ is normally an appropriate word to apply.
I think in the circumstances of this case the appropriate word to apply to the activity
embarked upon by these defendants and their workmen was ‘tree felling’. They in fact
set out to fell a single-trunk tree, estimated by the second defendant (whose evidence in
this connection I accept) to be about 60 to 80 ft tall, with a girth of between eight to 10 ft,
and stated by the plaintiff to be a large Balata tree, standing some 10 to 15 ft from the
plaintiff’s house. If that situation is not inherently dangerous, then, I ask, what is? I find
and hold that these defendants embarked upon an inherently dangerous operation.

175 Ibid, p 348.

 CHAPTER 13

GENERAL DEFENCES

The two main general defences to actions in tort are contributory negligence and
volenti non fit injuria.

CONTRIBUTORY NEGLIGENCE

Contributory negligence is basically carelessness on the part of the plaintiff which

combines with the defendant’s negligence or breach of duty in bringing about the
plaintiff’s damage. In many cases, the plaintiff’s negligence will have been a contrib-
uting cause of the accident which led to the damage, for example, where he steps into
the road without keeping a proper lookout and is struck by a car being negligently
driven by the defendant; or where the plaintiff’s and the defendant’s vehicles collide
head-on as a result of both drivers’ careless overtaking of other vehicles. But the
essence of contributory negligence in law is not that the plaintiff’s carelessness was
a cause of the accident; rather, it is that it contributed to his damage. Thus, for example,
where a plaintiff car driver carelessly rests his arm on the outside of his vehicle as he is
driving, and another motorist negligently collides with the car and injures the plain-
tiff’s arm,1 or where a plaintiff motorcyclist is knocked down by a negligent motorist
and suffers head injuries, owing to the fact that he is not wearing a crash helmet,2 the
carelessness of each plaintiff is not a cause of the accident but it does contribute to his
damage. In Denning LJ’s words:3
A person is guilty of contributory negligence if he ought reasonably to have foreseen
that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his
reckonings he must take into account the possibility of others being careless.

Contributory negligence does not involve any breach of duty owed by the plaintiff to
the defendant, for ‘it does not necessarily connote activity fraught with undue risk to
others, but rather failure on the part of the person injured to take reasonable care of
himself in his own interest’.4
A person is thus contributorily negligent if, for example, he takes a lift in a vehicle
driven by a person whom he knows to be under the influence of alcohol5 or in a car
which he knows to have defective brakes.6
In a recent Trinidadian case, Gunness v Ramdeo,7 the plaintiff and the defendant
had indulged in a three-hour beer-drinking session, and some time later set off in the

1 Khan v Bhairoo (1970) 17 WIR 192 (Court of Appeal, Guyana) (see below, pp 358–61); Premsagar
v Rajkumar (1978) High Court, Trinidad and Tobago, No 244 of 1974 (unreported) [Carilaw TT 1978
HC 110] (see below, p 361).
2 O’Connell v Jackson [1972] 1 QB 270. But see Green v Colebrook, fn 15, below.
3 Jones v Livox Quarries Ltd [1952] 2 QB 608, p 615.
4 Fleming, The Law of Torts, 6th edn, 1983, Sydney: LBC Information Services, p 241.
5 Owens v Brimmell [1976] 3 All ER 765. See Symmons, CR (1977) 40 MLR 350; Gravells, NP (1977) 93
LQR 581.
6 Gregory v Kelly (1978) The Times, 15 March. See also Dawrant v Nutt [1960] 3 All ER 681 (passenger
contributorily negligent in riding in the side-car of a motorcycle without a head light).
7 (2001) High Court, Trinidad and Tobago, No S 1606 of 1995 (unreported) [Carilaw TT 2001 HC 84].
 Chapter 13: General Defences 349

defendant’s car with the defendant driving. The defendant lost control of the vehicle,
which crashed into a wall causing injuries to the plaintiff. Marcus J held that the
plaintiff had been contributorily negligent in remaining in the car when he knew the
defendant was unfit to drive, and reduced the plaintiff’s damages by 20%. He said:
In the instant case the plaintiff was not acting under the pressure of any legal or social
duty in remaining in the car with the defendant . . . The risk of injury to the plaintiff’s
person by the defendant’s perilous driving far outweighed the difficulties he probably
would have encountered in obtaining alternative transportation and . . . dictated that
the plaintiff should not have remained in the defendant’s vehicle.

In Webb v Rambally,8 a pedal cyclist was held to have been contributorily negligent in
failing to move out of the path of an oncoming vehicle which was being driven
recklessly by the defendant, when he had ample time in which to do so. As Theobalds
J in the Jamaican Supreme Court explained:
Although it is clear from my findings that this defendant was primarily at fault, still, the
plaintiff, by his own fault, was one of the causes of the injury suffered by him. Fault is
used in the wider sense of an omission or failure. He failed to move out of the path of
the oncoming vehicle when he had ample time in which to do so. His damages must be
reduced accordingly. A clear message should be sent to pedal cyclists and pedestrians
(the most vulnerable sector of the road users) that callous indifference to their own
safety will not be condoned or encouraged by a full award of damages. Of course, a
timely reminder is that a motorist should also exercise reasonable consideration for
pedestrians and cyclists. Total lack of consideration for other road users is fast becoming
endemic in our society. This plaintiff’s damages are accordingly reduced by 30%.
Where a man was part author of his own injury, he could not call on the other party to
compensate him in full: per Denning LJ in Davies v Swan Motor Co Ltd.9

Seat belts

It was established in Froom v Butcher 10 that a driver or front seat passenger in a car
who failed to wear a seat belt and was injured in an accident was guilty of contribu-
tory negligence if his injuries could have been avoided or minimised by wearing a
seat belt, even though at that time in the UK there was no statutory regulation
making the wearing of belts compulsory. In a Cayman case, Woods v Francis,11 a
motorist was killed in a collision caused solely by the defendant’s negligence. The
deceased was not wearing a seat belt at the time. Summerfield CJ was of the opinion
that it was ‘more likely than not that the accident would have killed the deceased even
if he had been wearing a seat belt’, and it was not, therefore, a case where the deceased
could have been held guilty of contributory negligence. However, he expressed the
view that drivers and front seat passengers were under a duty to take reasonable
precautions for their own safety by wearing seat belts. He said:12
Although, following a recent intensive campaign to encourage the wearing of seat belts,
one does see the odd driver or front seat passenger wearing his – perhaps one in 100 or

8 (1994) Supreme Court, Jamaica, No W 101 of 1990 (unreported).

9 [1949] 1 All ER 620.
10 [1975] 3 All ER 520.
11 [1985] CILR 510 (Grand Court, Cayman Islands).
12 Ibid, pp 522, 523.
350 Commonwealth Caribbean Tort Law

less – at the time of the accident, the wearing of seat belts was about as rare as palm
fringed beaches in the Antarctic . . . I recognise, of course, that the wearing of seat belts
is not compulsory in these Islands.13 Nevertheless, in my view, there is a duty on drivers
and front seat passengers to exercise prudence and to take all available precautions to
minimise injury and diminish the chances of death in the event that there is an accident.
Failure to do so should be grounds for reducing the award of damages.
In the Bahamian case of Thurston v Davis,14 the defendant’s truck collided with the
plaintiff’s car, due solely to the defendant’s careless driving. After the collision, the
plaintiff was found slumped over the steering wheel. The whole front of the car was
pushed in and the windscreen was smashed. The plaintiff suffered lacerations to her
face and body and lost three front teeth. The defendant alleged that the plaintiff was
guilty of contributory negligence, in that she had not been wearing her seat belt at the
time of the collision. Thorne J held that, in order to rely on the defence of contributory
negligence, it must be shown: (a) that the injured person failed to wear a seat belt
when one was available; and (b) that the wearing of the seat belt would have pre-
vented or minimised the injuries. In the present case, there was no evidence that any
of the plaintiff’s injuries would have been prevented or lessened if she had worn her
seat belt, and so the defendant could not rely on contributory negligence.15
Finally, in a recent Cayman case, E v H,16 the plaintiff’s car was negligently struck
from behind by the defendant’s vehicle, causing the plaintiff severe ‘whiplash’ injur-
ies to her neck. The plaintiff was not wearing a seat belt,17 and one of the issues in the
case was whether the plaintiff’s injuries would have been lessened if she had been
wearing a belt, in the light of evidence that the force of the collision had severed the
driver’s seat from the chassis of the car. Smellie CJ held that a reduction of 10% of the
damages, rather than the customary 15% to 20%, was appropriate for the plaintiff’s
contributory negligence, ‘to reflect the debatable extent to which the seat belt would
have operated in the way designed and intended, given that the driver’s seat did
separate from the chassis of the vehicle’.18

Standard of care

The standard of care for his own safety expected of the plaintiff is that of a reasonable,
prudent man. However, in the cases of children and workmen, a lower standard is
accepted.

Children

A lower standard of care for his own safety is to be expected of a young child. Thus,
for example, where D sold some gasoline to a nine-year-old boy after being told by

13 But see fn 17, below

14 (1992) Supreme Court, The Bahamas, No 1146 of 1988 (unreported) [Carilaw BS 1992 SC 82].
15 Similarly, in Green v Colebrook (2004) Supreme Court, The Bahamas, No 651/1996 (unreported)
[Carilaw BS 2004 SC 110], Lyons J held that an injured motorcyclist was not guilty of contribu-
tory negligence in failing to wear a crash helmet, since the part of his skull which was injured
in the collision would not have been protected by a helmet.
16 [2000] CILR 347 (Grand Court, Cayman Islands).
17 By 1996, when this accident occurred, the wearing of seat belts had become compulsory in the
Cayman Islands. See [2002] CILR 242, at 252.
18 The Court of Appeal subsequently upheld this finding: [2002] CILR 242, per Zacca P, at 252–53.
 Chapter 13: General Defences 351

the boy that his mother wanted it for her car, and the boy played with it and was
consequently badly hurt, D was held fully liable for the injury. The court held that D
had been negligent in supplying gasoline to so young a child, and the child was not
guilty of contributory negligence, for he did not know and could not be expected to
have known of the inflammable properties of gasoline.19
Another illustration of the principle is the Guyanese case of Ghanie v Bookers
Shipping (Demerara) Ltd. 20 In this case, G, a five-year-old child, was hanging on to the
back of a cart as it proceeded along a road. A car was following close behind. As the
driver of the car started to overtake the cart, G jumped off the cart and, without
looking back, dashed across the road. The car struck G’s left foot and G was severely
injured.
On the question of whether G could be guilty of contributory negligence, Persaud
JA said:
In Lynch v Nurdin, Lord Denman CJ, in dealing with the question of contributory neg-
ligence on the part of an eight year old child and whether such contributory negligence
must deprive the child of his remedy, said:21
Ordinary care must mean that degree of care which may reasonably be expected
from a person in the plaintiff’s situation; and this would evidently be very small
indeed in so young a child.
In the more recent case of Gough v Thorne, Lord Denning MR said:22
A very young child cannot be guilty of contributory negligence.23 An older child
may be. But it depends on the circumstances. A judge should only find a child
guilty of contributory negligence if he or she is of such an age as to be expected
to take precautions for his or her own safety, and then he or she is only to be
found guilty if blame should be attached to him or her. A child has not the road
sense or the experience of his or her elders. He or she is not to be found guilty
unless he or she is blameworthy.
In that case, the injured child was 13 years old, and the trial judge held that the driver of
the vehicle concerned was negligent, in that he drove too fast in the circumstances.
In the instant case, it is conceded that had the plaintiff been an adult, the proposition
that the defendant would be liable in these circumstances would be untenable. I
understand this to mean that it is admitted that the child’s conduct would have
amounted to negligence in an adult. And this is how the matter is put in Charlesworth on
Negligence: 24
When a child is negligent, in the sense that he could by exercise of reasonable
care have prevented or avoided the damage in question, he cannot recover; but
in considering what is ‘reasonable care’, the age of the child must be considered.
Infancy as such is not a ‘status-conferring right’, so that the test of what is
contributory negligence is the same in the case of a child as of an adult, modi-
fied only to the extent that the degree of care to be expected must be pro-
portioned to the age of the child.

19 Yachuk v Blais [1949] AC 386.

20 (1970) 15 WIR 403 (Court of Appeal, Guyana).
21 (1841) 113 ER 1041, p 1043.
22 [1966] 1 WLR 1387, p 1390.
23 See Cooper v Ronald A Albury Ltd (1995) Supreme Court, The Bahamas, No 146 of 1989
(unreported [Carilaw BS 1995 SC 67]); Straker v Edey (1990) 25 Barb LR 36 (High Court,
Barbados).
24 Charlesworth and Percy, Charlesworth on Negligence, 4th edn, 1962, London: Sweet & Maxwell,
para 1129.
352 Commonwealth Caribbean Tort Law

There is no age below which, as a matter of law, it can be said that a child is
incapable of contributory negligence. Expressions are to be found referring to
children ‘too young to be capable of contributory negligence’ or ‘of such a
tender age as to be regarded in law as incapable of contributory negligence’, but
these must be taken to be referring to children found on the facts of a particular
case to be so young that contributory negligence cannot be attributed to them.
The law, it seems, is that where a child is of tender years, the courts will not be prepared
to find contributory negligence. The only defence available in such cases would, it
seems, be that the defendant was not negligent, or that his negligence was not the cause
of the accident, even though in some jurisdictions it has been said:
It is quite settled that there may be contributory negligence on the part of a child
of tender age. Whether there has or has not been such negligence is a question
of circumstances,25

On the other hand, an older child may be guilty of contributory negligence if he fails
to act with the degree of alertness and perception normally expected of a child of his
age. This is illustrated by Perch v Transport Board,26 where the plaintiff, a 12-year-old
schoolgirl, was seriously injured while attempting to board one of the defendants’
buses outside the school which she attended. Douglas CJ held that the accident was
caused by the negligence of the driver in failing to stop immediately when school
children tried to board the bus while it was in motion. The defendants contended that
the plaintiff had been guilty of contributory negligence in attempting to board a
moving vehicle. His Lordship continued:
It is pleaded on behalf of the defendants that the injuries suffered by the plaintiff were
caused wholly or in part by her own negligence in boarding or attempting to board the
bus while it was in motion. The rule is that, in determining the degree of care which
may reasonably be expected of a person in the plaintiff’s situation, regard must be had
to that person’s age and knowledge (see Lynch v Nurdin,27 approved by Lord du Parcq in
Yachuk v Blais,28 a decision of the Privy Council). The plaintiff was 12 years old when the
accident occurred and of normal alertness and intelligence. She must have realised that
attempting to board a moving vehicle was dangerous, and, indeed, a school rule of
which she was aware prohibited any such behaviour on her part.
In my view, the accident was caused by the driver of the bus failing to stop immediately
that school children, including the plaintiff, were trying to board the bus while it
was still in motion. The defendants cannot be excused for being unaware of the children
boarding, because the conductor was in a position to see them and was equipped
with the means of signalling the driver to stop. I hold further that the plaintiff contrib-
uted to her own injury by attempting to board the bus while it was moving, and her
contributory negligence I assess at 20%.

Regrettably, there have been several cases in Caribbean jurisdictions where children
have been injured while crossing roads unaccompanied, and in most of these the issue

25 See Cass v Edinburgh and District Tramways Co (1909) SC 1068. In Hamilton v Singh (1978)
High Court, Guyana, No 2460 of 1975 (unreported), Bishop J expressed the view that it is
unwise to state any rigid principles concerning the appropriate standard to which children, as
a class, are expected to conform with respect to their own safety, since child psychologists
emphasise that the capacities of individual children not only vary with age, but also vary
among individual children of similar age groups.
26 (1981) 16 Barb LR 102 (High Court, Barbados). See also Morales v Ecclestone [1991] RTR 151,
where an 11-year-old boy, who was injured when he ran out into the road without looking and
was hit by a passing vehicle, was held to be 75% to blame for his injuries.
27 (1841) 113 ER 1041.
28 [1949] AC 386.
 Chapter 13: General Defences 353

of contributory negligence has been raised. In the Grenadian case of Smith v Rodney,29
for instance, an 11-year-old schoolchild disembarked from a bus and proceeded to
cross the road from behind the vehicle. Another bus driven by the defendant and
travelling in the opposite direction collided with the child, who was seriously injured.
Benjamin J found the defendant negligent in neither sounding his horn nor slowing
down, since he would have known of the likelihood of children crossing the road on
their way home at that time of day, and he declined to find the child guilty of con-
tributory negligence; though he observed that had the claimant been an adult, the
result would have been otherwise. Similarly, in Lee v Hin,30 a 9-year-old boy who
stepped out into the road from in front of a parked vehicle and was hit by the defend-
ant’s car, being driven at an improper speed, was held not to have been contributorily
negligent. According to Rowe P in the Jamaican Court of Appeal: ‘The respondent has
failed to show as a matter of probability that this 9 year old plaintiff was capable of
exercising judgment in crossing the road or that his behaviour was anything other
than that of a normal child of his age who is, regretfully, momentarily forgetful of
the perils of crossing the road.’ On the other hand in a Trinidadian case, Mitchell v
Antoine,31 an 8-year-old child exited his school yard and, apparently without looking,
ran out from between two stationary vehicles on to a zebra crossing in his eagerness
to reach a parlour on the other side of a busy thoroughfare. He was struck by a
passing vehicle and injured. Best J held that the driver of the vehicle had been neg-
ligent in driving too fast, and ‘the emergence of the infant plaintiff from between two
stationary vehicles and his running onto the zebra crossing in front of the defendant’s
vehicle, created a scenario whereby a collision was unavoidable . . . I find as a fact that
the infant plaintiff’s actions on the zebra crossing that day displayed a lack of care for
himself.’ The plaintiff’s culpability was assessed at 10%.

Workmen

It seems that a lower standard of care for his own safety is expected of a workman
who is injured as a result of his employer’s breach of statutory duty, or perhaps also
through a breach of his employer’s common law duties to provide a competent staff of
men, adequate plant and equipment, a safe place of work, and a safe system of
working with effective supervision. It has been said that the court has to take into
account all the circumstances of work in a factory, and that it is not for every risky
thing which a workman in a factory may do in his familiarity with the machinery that
he ought to be held guilty of contributory negligence.32 Thus, the court will take into
account the fact that the senses of workmen in factories are often dulled by the noise,
repetition, confusion, fatigue and preoccupation with work, and that, in such circum-
stances, it would be unreasonable to expect them to take scrupulous care for their own
safety.33 On the other hand, where an employee, during the course of his work, does

29 (2004) High Court, Grenada, No GDAHCV 1996/0226 (unreported) [Carilaw GD 2004 HC 2].
30 (1991) 28 JLR 114. The reasoning in this case was followed on very similar facts by Bingham JA
in Murray v Flowers (2002) Court of Appeal, Jamaica, Civ App No 117/2000 (unreported)
[Carilaw JM 2002 CA 45].
31 (2002) High Court, Trinidad and Tobago, No 1406/91 (unreported) [Carilaw TT 2002 HC 153].
32 Flower v Ebbw Vale Steel, Iron and Coal Co Ltd [1934] 2 KB 132, p 140, per Lawrence J.
33 Ibid. See also Fagelson, I (1979) 42 MLR 646.
354 Commonwealth Caribbean Tort Law

something which is obviously risky and ought to have foreseen the danger to himself,
he may be held guilty of contributory negligence.34
The approach to contributory negligence in cases of breach of the employer’s duty
of care at common law and breach of statutory duty is illustrated by Bailey v Gore Bros
Ltd and Pitters v Haughton respectively.
In Bailey v Gore Bros Ltd 35 the plaintiff/appellant was employed by the defend-
ants/respondents in the operation of a stone-crushing machine. The machine was
defective in that, while it was working, a bolt frequently slipped, causing the rollers
to become choked and to stop. The operator would then climb up on to the machine
and clear the stones from the rollers before the machine was started up again. One
day, the appellant, having cleared the choke in this way, was climbing down to
the ground while the rollers were working, when he slipped and fell. His right hand
was caught between the rollers, which were not protected by any guard, and he
was severely injured. He brought an action against the respondents, alleging that
they were in breach of their common law duty to provide a safe system of work
and effective supervision of the stone-crushing operation. The respondents pleaded
contributory negligence on the part of the appellant.
It was held that the respondents were liable to the appellant in negligence, but
the damages were to be reduced by 10% (as found by the jury in the lower court)
on account of the appellant’s contributory negligence. On the issue of contributory
negligence, Lewis JA said:36
Where contributory negligence is set up as a defence, it is only necessary to establish to
the satisfaction of the jury that the injured party did not in his own interest take reason-
able care of himself and contributed, by this want of care, to his own injury; for where
contributory negligence is set up as a shield against the obligation to satisfy the whole of
the plaintiff’s claim, the principle involved is that where a man is part author of his own
injury he cannot call on the other party to compensate him in full: per Lord Simon in
Nance v British Columbia Electric Rly Co. 37 I accept completely the proposition that, in
cases of injuries to workmen due to the employer’s breach of a statutory regulation, one
ought not to hold as contributory negligence against a workman operating under the
conditions of noise and bustle, confusion and repetition associated with a factory, every
risky thing he may do through familiarity with the dangers incidental to his work, or
every act or omission due to inadvertence or lack of concentration. I recognise that it
may be proper, as counsel for the appellant contended, to apply the same principle, to a
limited extent, to cases arising from a breach of the common law duty to provide a safe
system of work. These propositions find support in the cases of Flower v Ebbw Vale Steel,
Iron and Coal Co Ltd 38 and Caswell v Powell Duffryn Associated Collieries Ltd.39

34 As in Forde v Grenada Steel Works Ltd (2004) Supreme Court, Grenada, No HCV 2001/0629
(unreported) [Carilaw GD 2004 HC 12] (employee injured while standing on the tray of a flat-
bed truck while it was being loaded with oversized galvanised sheets held contributorily
negligent, since ‘the danger was clear but he chose to put himself in harm’s way and rely
totally on the skill of the forklift driver’) and Metropolitan Parks and Markets Ltd v Swaby (2004)
Court of Appeal, Jamaica, Civ App No 25 of 2004 (unreported) [Carilaw JM 2004 CA 47] (truck
sideman lost both legs in fall from flat-bed truck; unsafe system of working, but sideman was
intoxicated, his conduct being described by the trial judge as ‘ridiculous and stupid’, and he
was therefore guilty of contributory negligence).
35 (1963) 6 WIR 23 (Court of Appeal, Jamaica).
36 Ibid, p 25.
37 [1951] 2 All ER 448, p 450.
38 [1936] AC 206.
39 [1939] 3 All ER 722.
 Chapter 13: General Defences 355

It must nevertheless be borne in mind that the question of contributory negligence was
essentially one for the jury, who had before them all the evidence, in a very short case,
relating to the conditions in which the plaintiff worked and the circumstances in which
he sustained his injuries. That it was the established practice for the workmen to have
the rollers started so as to ensure that the choke had been cleared before they came
down was clearly proved, and the fact that, on this occasion, the appellant followed that
practice is not, on the authorities, evidence of contributory negligence. Having success-
fully cleared the choke, it was undoubtedly most imprudent of the appellant to climb
down while the rollers were working, but this, too, it seems, was established practice.
The respondents, equally with the appellant, were aware of the danger involved in this
procedure but never warned the appellant that he ought not to do it. Having regard
especially to his youth and inexperience, I am of opinion that this act ought not to be
attributed to him as contributory negligence. Considering the small percentage of blame
which the jury apportioned to him, I am inclined to the view that they could not have
held this against him . . .
The test which the jury had to apply was this – ought the appellant reasonably to have
foreseen the likelihood of injury to himself if he fell while the rollers were working, and
if so, did he take reasonable care to avoid falling?
The plaintiff stated that he knew that he ought to take care in climbing up and down the
machine. In my judgment, there can be no doubt that he ought to have foreseen the
likelihood of danger to himself from the working rollers if he fell. He may not have
foreseen the extent of the damage he in fact suffered, but this in my view is immaterial,
for it does not differ in kind from that which he ought to have foreseen (see Hughes v
Lord Advocate).40 If the jury found, as they must have done, that the plaintiff fell because
he failed to look where he was going in conditions which admittedly called for the
exercise of care, that this amounted to culpable failure to take care for his own safety,
and that by this lack of care he contributed to his own injury, I cannot say that this is a
verdict which is unreasonable and such as to show that the jury have failed to perform
their duty.

In Pitters v Haughton,41 the plaintiff was a laundry-woman employed by the defend-

ant. While she was operating a mangle (a machine used for pressing flat items), a
tablecloth which was being fed into the machine became folded over. In order to
straighten the tablecloth, the plaintiff reached over the machine’s trip guard (a device
designed to stop the machine when pressed) and her hand became caught under the
hot rollers of the mangle. She was severely burnt, and eventually had to have four
fingers amputated.
Carey J held that the machine was dangerous and, since it was unfenced,
the defendant was in breach of its statutory duty under reg 3(1) of the Factories
Regulations 1961. He declined to find the plaintiff guilty of contributory negligence.
He said:42
Mr Scharschmidt, on behalf of the defendant, contended that as the plaintiff, an experi-
enced worker, well knew that part of the machinery was hot, she was guilty of an act of
extravagant folly in placing her hand where she did. He was relying on the case of FE
Callow (Engineers) Ltd v Johnson,43 where the plaintiff was held one-third liable. In the
instant case, so the argument ran, the plaintiff was largely to blame.

40 [1963] AC 837 (see above, p 103).

41 (1978) 16 JLR 100 (Supreme Court, Jamaica).
42 Ibid, p 104.
43 [1970] 3 All ER 639.
356 Commonwealth Caribbean Tort Law

Mr Muirhead, for his part, urged that for the court to find contributory negligence,
it had to be shown that the plaintiff had by some act of perverted and deliberate
ingenuity, forced or circumvented the safeguards provided.44
To constitute contributory negligence, there had to be a high degree of negligence.
He also referred to Walker v Clarke.45 Even if the court were persuaded in favour of a
finding of contributory negligence, the percentage should be small, the effect of which
would amount to a punishment against a zealous employee intent on advancing the
defendant’s business.
The approach of the courts on this issue of contributory negligence can be discerned in
the words of Lawrence J in Flower v Ebbw Vale Steel, Iron and Coal Co Ltd:46
I think, of course, that in considering whether an ordinary prudent workman
would have taken more care than the injured man, the tribunal of fact has to
take into account all the circumstances of work in a factory and that it is not
for every risky thing which a workman in a factory may do in his familiarity
with the machine that a plaintiff ought to be held guilty of contributory
negligence.
One starts with the basic assumption that the plaintiff has done a ‘risky thing’, and then
goes on to enquire into the nature and quality of the riskiness, for if it amounts to
extravagant folly, or if the safeguards are circumvented by perverted or deliberate
ingenuity, then contributory negligence may be found.
To qualify as contributory negligence, the behaviour of the plaintiff is also a very rele-
vant consideration. In Smith v Chesterfield and District Co-operative Society Ltd,47 the court
held the plaintiff 40% to blame because she had done a deliberate act against which she
had been warned. If the ‘risky thing’ is in disobedience of orders, the court will appor-
tion the degree of responsibility. Lord Wright in Flower v Ebbw Vale Steel, Iron and Coal Co
Ltd,48 said that contributory negligence in connection with breach of statutory duty
meant misconduct, viz, disobedience of orders. Goddard LJ in Hutchinson v London and
North Eastern Rly 49 expressed himself in these words:
I always directed myself to be exceedingly chary of finding contributory neg-
ligence where the contributory negligence alleged was the very thing which the
statutory duty of the employer was designed to prevent.
I take all these matters into consideration.
The facts in this case show the plaintiff did deliberately place her hand where it became
caught. It was a risky thing. It is a risk which the defendant was required, however, to
guard against. A measure of criticism can forcibly be suggested against the plaintiff’s
conduct. Mr Scharschmidt did so. I have nevertheless come to the conclusion that any
deficiencies on Miss Pitters’ part fall short of the negligent conduct required in the case
of a workman where breach of statutory duty is concerned. She should be absolved
from any responsibility. I so hold. It was the failure to fence securely which was the
cause of the accident and not the plaintiff’s misguided, albeit risky act of placing her
right hand in the position she did.

Even in cases of breach of statutory duty, however, the court may find a workman
guilty of contributory negligence if he is found to have shown a reckless disregard for
his own safety, especially where he was highly experienced and ought to have

44 Carr v Mercantile Produce Co Ltd [1949] 2 All ER 531, p 537, per Stable J.
45 (1959) 1 WIR 143 (see above, p 147).
46 [1934] 2 KB 132, p 140.
47 [1953] 1 All ER 447.
48 [1936] AC 206.
49 [1942] 1 KB 781, p 788.
 Chapter 13: General Defences 357

‘known better’. A leading case in Jamaica is Fitten v Michael Black Ltd.50 Here the
plaintiff, a workman in a block-making factory, inserted his hand into the drum of a
mixer machine, which was at the time not in motion, in order to remove waste from it.
While he was doing this, another worker switched on the machine without prior
notice, and the plaintiff’s right hand was amputated by the machine’s rotating blades.
Wolfe J found on the evidence that the machine was ‘dangerous’ and that the guard
rail which covered the mouth of the machine was inadequate, since the plaintiff had
been able to insert his hand through it. He accordingly held the defendant employer
liable for breach of its statutory duty to securely fence a dangerous machine, under
section 3(1) of the Factories Regulations 1961. On the issue of contributory negligence,
Wolfe J said:
Bearing in mind the vast experience of the plaintiff, it is reasonable to conclude that he
ought to have contemplated the probability of the machine being switched on at the
time when he inserted his hand into the machine. The plaintiff, in my view, contributed
to his injury. In holding the plaintiff guilty of contributory negligence, I am mindful of
the admonition of Lord Tucker in Staveley Iron and Chemical Co Ltd v Jones 51 that ‘the
purpose of imposing the absolute obligation is to protect the workmen against these
very acts of inattention which are sometimes relied upon as constituting contributory
negligence, so that too strict a standard would defeat the object of the statute’.

In the present case, however, the act of the plaintiff in inserting his hand into the
machine was not mere momentary inattention but amounted almost to recklessness52
and, but for the breach of statutory duty, the plaintiff ‘would have been adjudged the
author of his own injury’.53 Damages were reduced by 60 per cent.

Road accidents

An example of a successful plea of contributory negligence is the Trinidadian case of

Kunwarsingh v Ramkelawan.54 There, BD was driving the plaintiff’s car at night when
he collided with the defendant’s van, which was parked on the road without lights.
The car was damaged. BD’s evidence was that he was driving at 25 mph and did not
see the unlighted van until he was almost eight feet behind it. Rees J held55 that there
is a presumption of negligence where a vehicle is parked on a road at night without
lights; therefore, the defendant was liable in negligence, but BD was contributorily
negligent (with 25% apportionment), in that:

50 (1987) 24 JLR 252.

51 [1956] AC 627, p 648. See also Hutchinson v London and North Eastern Rly Co [1942]
1 KB 481.
52 in Henry v Superior Plastics Ltd (2002) Supreme Court, Jamaica, No CL H-104 (unreported)
[Carilaw JM 2002 SC 33], Sykes J emphasised that, in order to establish contributory neg-
ligence in cases of breach of statutory duty, ‘the defendant must adduce evidence that the
plaintiff was either the author of his injuries or contributed greatly to his injuries. Mere
carelessness or inadvertence will not establish the case for the defendant. There must be
reckless disregard for his safety.’ See also Desnoes and Geddes Ltd v Stewart (2005) Court of
Appeal, Jamaica, Civ App No 74/2002 (unreported) [Carilaw JM 2005 CA 57] (workman who
placed his hand on the moving roller of an unfenced machine in order to remove a foreign
substance not guilty of an ‘extravagant act of folly’ and not, in the circumstances, contribu-
torily negligent).
53 See Rushton v Turner Bros Asbestos Co Ltd [1959] 3 All ER 517; Humphreys v Silent Channel
Products [1981] CLY 1209.
54 (1972) 20 WIR 441 (High Court, Trinidad and Tobago).
55 Ibid, p 444.
358 Commonwealth Caribbean Tort Law

. . . there is a principle in cases of this kind to the effect that if a driver of a vehicle
proceeds at such a speed that he is unable to pull up within the limits of his vision, he is
in the wrong. If the driver is unable to see where he is going, he must stop. Applying
this principle, if [BD] did not see the van until he was eight feet away, with the beam of
his light presumably showing much more than eight feet, he was not keeping a proper
lookout. If he saw the van before he was a distance of eight feet from it and did not stop
before striking it, then he was travelling at a speed at which he could not stop within the
limits of his vision. In either event he was guilty of [contributory] negligence.

Similarly, in Dhoray v Dabiesaran,56 the plaintiff was driving his car along a main road
when he saw a truck reversing on to the road about 80 ft in front of him. The truck
stopped momentarily but, as the plaintiff was about to pass, it suddenly reversed
again and struck the plaintiff’s vehicle. The plaintiff’s claim in negligence against
the owner of the truck was successful, but Roopnarine J also found the plaintiff
contributorily negligent (with 50% apportionment), in that he:
. . . had seen the truck reversing on to the roadway about 80 ft away and yet he did not
stop to permit the driver of the truck to reverse, nor did he slow down and blow his
horn to make sure whether it was safe for him to go through or not, but just drove on
and thereby his want of care contributed to his own injury.

Another example of a successful plea of contributory negligence in a road accident

case is Khan v Bhairoo.57 In this case B’s truck collided with K’s car due to the negligent
driving of B’s servant, C. K lost an arm in the accident. In an action brought by K, the
trial judge found that, by driving his car with his right hand resting on the outside of
the car at the time of the collision, K was guilty of contributory negligence, which he
assessed at 10%.
The Court of Appeal of Guyana held that the trial judge’s finding as to contributory
negligence was correct. Bollers C (Ag) said:58
[Counsel for the appellant] submits that in this case there could be no contributory
negligence in the appellant because there was no such fault in the driving of the appel-
lant’s car and, further, assuming the appellant was negligent in having his right hand
outside the vehicle, the second named respondent, the driver of the lorry, could not take
advantage of that circumstance to excuse himself because, notwithstanding the appel-
lant’s negligence, he (the second named respondent), by the exercise of reasonable care
could have avoided the accident. His submission in that regard is that the fact of the
appellant’s hand being outside of the vehicle when the vehicle was passing the lorry
had nothing whatever to do with the accident. His submission went even further, and
that was that, for the appellant to be found liable for contributory negligence, there
must be negligence in the driving of the vehicle in which he was travelling, and the
learned judge had not found that there was negligence in the driving of the car. On an
examination of the authorities, I regret that I cannot accept this submission.
In Davies v Swan Motor Co Ltd,59 a collision took place between an omnibus and a dust
cart, owing to the negligence of the drivers of both vehicles, in which the plaintiff’s
husband was killed. He had been standing on the steps of the dust cart, where he was
forbidden to be, and was crushed in the collision which was in no way caused or

56 (1975) High Court, Trinidad and Tobago, No 476 of 1972 (unreported) [Carilaw TT 1975
HC 14].
57 (1970) 17 WIR 192 (Court of Appeal, Guyana).
58 Ibid, p 195.
59 [1949] 1 All ER 620.
 Chapter 13: General Defences 359

contributed to by his presence there. It was nevertheless held that his death was con-
tributed to by his negligence in riding in a forbidden position and the damages payable
to his widow were reduced by one-fifth. The apportionment of the damages was made
under s 1(1) of the Law Reform (Contributory Negligence) Act 1915 [UK], the provisions
of which are identical with ss 9 and 10 of the Law Reform (Miscellaneous Provisions)
Ordinance, Cap 4 (Laws of Guyana), so that the English decisions on the apportionment
of damages after 1945 are directly in point in the consideration of cases in this country.
In Davies v Swan Motor Co Ltd,60 it was made clear that contributory negligence does not
mean breach of duty by the plaintiff, and, in order to make a plaintiff guilty of contribu-
tory negligence, a defendant does not have to show any breach of duty to him. What it
means is that there has been an act or omission on the part of the plaintiff which has
materially contributed to the damage, the act or omission being of such a nature that it
may properly be described as negligence, although negligence is not given its usual
meaning. I digress here to state that in Nance v British Columbia Electric Rly Co, Lord
Simon said:61
It is perhaps unfortunate that the phrase ‘contributory negligence’ uses the
word negligence in a sense somewhat different from that which the latter word
would bear when negligence is the cause of action.
Bucknill LJ, in Davies’ case,62 after stating this proposition of law, cited the speech of
Lord Atkin in Caswell v Powell Duffryn Associated Collieries Ltd, as follows:63
The injury may, however, be the result of two causes operating at the same time,
a breach of duty by the defendant and the omission on the part of the plaintiff to
use the ordinary care for the protection of himself or his property that is used by
the ordinary reasonable man in those circumstances. In that case, the plaintiff
cannot recover because the injury is partly caused by what is imputed to him as
his own default. On the other hand, if the plaintiff were negligent, but his
negligence was not a cause operating to produce the damage, there would be no
defence.
While, therefore, it is true that in order to establish the defence of contributory neg-
ligence the defendant must prove, first, that the plaintiff failed to take ordinary care of
himself or, in other words, such care as a reasonable man would take for his safety, and,
secondly, that his failure to take care was a contributory cause of the accident, there may
also be cases in which the plaintiff is guilty of contributory negligence because in the
circumstances he owes to the defendant a duty to act carefully.
In Davies v Swan Motor Co Ltd, Bucknill LJ found that the plaintiff did owe such a duty to
the defendant, when he stated:64
In the first place, I am prepared to hold that, in standing where he did on
the lorry, the deceased committed a breach of duty to the omnibus driver
because in so doing he made the driver’s task in passing the lorry more difficult
than it would otherwise have been and, to that extent, increased the risk of a
collision.
Thus, in the Davies case, on both grounds, that is, breach of duty and failure to take
reasonable steps for his own safety, the plaintiff, by riding on the steps attached to the
offside of the dust lorry, was held guilty of contributory negligence and he was so
guilty, although his mere standing in that position contributed in no way to the acci-
dent. It is my assessment of the authorities, therefore, that the expressions ‘contribution

60 Ibid.
61 [1951] 2 All ER 448, p 451.
62 [1949] 1 All ER 620, p 624.
63 [1939] 3 All ER 722, p 730.
64 [1949] 1 All ER 620, p 622.
360 Commonwealth Caribbean Tort Law

to the accident’ and ‘contribution to the damage suffered by the plaintiff’ are used
interchangeably by the judges.65
In the Davies case, while it is true that both the driver of the omnibus and the driver of
the vehicle in which the plaintiff was a passenger were found liable in negligence,
nevertheless it was pointed out that on the alternative ground the plaintiff’s conduct
showed a lack of reasonable care for his safety, and on that ground he was also found
guilty of contributory negligence . . .
If any doubt existed, on the authority of Davies v Swan Motor Co Ltd, as to whether,
in order to find a plaintiff guilty of contributory negligence, one would have to find
the driver of the vehicle in which he was travelling liable for negligence, that doubt
must be immediately dispelled by the case of Jones v Livox Quarries Ltd.66 In that case, the
plaintiff, employed by the defendants, was, contrary to orders, riding on the back of
a traxcavator, which was run into from behind by a dumper negligently driven by
another employee of the defendants. The plaintiff was found guilty of contributory
negligence on the ground that he unreasonably and improperly exposed himself to this
particular risk, even though his conduct was not a cause operating to produce this
particular accident . . .
Singleton LJ, in the course of his judgment, in answer to the submission that the plaintiff
was standing upon the traxcavator and was not in any sense a cause which operated on
the accident which befell him, but the real cause of the accident to the plaintiff was the
negligent driving of the driver of the dumper, adopted the test applied by Bucknill LJ in
Davies v Swan Motor Co Ltd,67 which was the test of ordinary plain commonsense of this
business, and arrived at the conclusion that the plaintiff, in riding on the traxcavator,
was disobeying the orders of his employers and, in so doing, he was exposing himself to
danger. He had put himself in a dangerous position which, in fact, exposed him to the
particular danger which came upon him, and he ought not to have been there. The
learned judge then stated:68
The fact that he was in that particular position meant that he exposed himself,
or some part of his body, to another risk, the risk that some driver following
might not be able to pull up in time – it may be because that driver was cer-
tainly at fault. That is the view which the trial judge took of this case, and I do
not see that is a wrong view. It is not so much a question of ‘was the plaintiff’s
conduct the cause of the accident?’ as ‘did it contribute to the accident?’, on the
assumption that it was something of a kind which a reasonably careful man so
placed would not have done. If he unreasonably, or improperly, exposed him-
self to this particular risk, I do not think that he ought to be allowed to say that it
was not a cause operating to produce the damage.
In Jones v Livox Quarries Ltd, Denning LJ made it clear that, although contributory
negligence did not depend upon a duty of care, it did depend upon foreseeability. He
continued:69
Just as actionable negligence requires the foreseeability of harm to others, so
contributory negligence requires the foreseeability of harm to oneself. A person
is guilty of contributory negligence if he ought reasonably to have foreseen that
if he did not act as a reasonable, prudent man, he might be hurt himself; and
in his reckonings he must take into account the possibility of others being
careless . . .

65 Ibid, p 620.
66 [1952] 2 QB 608. Cf Robinson v YP Seaton and Associates (2004) Supreme Court, Jamaica, No CL
1999/R047 (unreported) [Carilaw JM 2004 SC 23].
67 [1949] 1 All ER 620.
68 [1952] 2 QB 608, p 614.
69 Ibid, p 615.
 Chapter 13: General Defences 361

I think myself that the circumstances of the present appeal fall within this principle, and
it might be transposed in the terms of this case to say that, even though the appellant
may not have foreseen the possibility of his arm being removed by the passing vehicle
driven by the second named respondent, nevertheless, on a commonsense view, the
injury suffered by the appellant was due in part to the fact that he chose to drive his car
with his hand outside when there was no need for that, and he would not have suffered
this injury had he kept it inside, which is clearly demonstrated by the fact that the rest of
his body was unhurt and intact. In the words of Denning LJ, then, ‘The man’s (appel-
lant’s) negligence here was so mixed up with his injury that it cannot be dismissed as
mere history’.70 The dangerous position of his hand outside the vehicle was one of the
causes of his damage, just as the dangerous position of the plaintiff was in Davies v Swan
Motor Co Ltd and Jones v Livox Quarries Ltd . . .
[Section 10 of the Law Reform (Miscellaneous Provisions) Ordinance, Cap 4, provided:
10(1) Where any person suffers damage as the result partly of his own fault
and partly of the fault of any other person or persons, a claim in respect of
that damage shall not be defeated by reason of the fault of the person suffering
the damage, but the damages recoverable in respect thereof shall be reduced
to such extent as the court thinks just and equitable having regard to the
claimant’s share in the responsibility for the damage.]
If, in s 10(1), the words ‘personal injury’ are substituted for the word ‘damage’ and the
word ‘negligence’ is substituted for the word ‘fault’ in construing s 10, it will be clearly
seen that, where any person suffers an injury as the result partly of his own negligence
and partly of the negligence of another, his claim in respect of that injury is not to be
defeated by reason of his negligence whereby he suffers the injury, but the damages
recoverable shall be reduced to the extent as the court thinks just and equitable, having
regard to his share in the responsibility for the injury, and it is here that Denning LJ, in
the two cases discussed, states that whilst causation is the decisive factor in determining
whether there should be a reduced amount payable to the plaintiff, nevertheless the
amount of the reduction does not depend solely on the degree of causation. The amount
of the reduction involves a consideration not only of the causative potency, but also of
its blameworthiness. In my view, then, the appellant in this case was partly to be blamed
for the damage which he suffered, and the learned judge was correct in finding that he
was at fault [and in assessing the extent of his negligence at 10%].

Similarly, in Premsagar v Rajkumar,71 the plaintiff was driving his car with his right
hand resting on the outside of the door when the defendant negligently collided
with the car, causing injuries to the plaintiff’s arm. Bernard J found the plaintiff
contributorily negligent and reduced his damages by 15%. He said:
A driver ought to have both hands on the steering wheel at all times. No part of his hand
should be on the door. At least for his own personal safety, it should be inside, except
where he is in the process of overtaking and is giving the appropriate signal, which was
not the case here. Besides, if both hands are not holding the steering wheel fully, a
driver’s control over a moving vehicle and his ability to adjust to situations quickly,
particularly dangerous ones, or to take immediate evasive action, would obviously
be lessened. Had the plaintiff’s hand not been in that position, he may very well not
have suffered those unfortunate injuries to his elbow. He is guilty, in my view, of
contributory negligence in the circumstances.

70 Ibid, p 616.
71 (1978) High Court, Trinidad and Tobago, No 244 of 1974 (unreported) [Carilaw TT 1978
HC 110].
362 Commonwealth Caribbean Tort Law

Adult pedestrians

Pedestrians who fail to take reasonable care for their own safety may be held to be
contributorily negligent. Perhaps the most obvious type of such negligence is where a
pedestrian crosses a road without first making sure that there is no approaching traffic
and that it is safe to cross. Also, in many Caribbean countries, where roads are often
without sidewalks, pedestrians may have to walk on the roadway itself, a dangerous
situation which requires a great deal of care on the part of both motorists and the
pedestrians themselves. In the Cayman case of Bodden v Solomon,72 B was walking on
the edge of the road with his back to the traffic, with his brother walking on the
shoulder beside him, when he was struck and injured by S, who was driving his car at
about 40 mph, the maximum permitted speed. According to the evidence, when the
defendant’s car was about 400 ft away from the claimant a dragonfly came in through
the window. The defendant knew he was on a collision course with the claimant
but was distracted by the insect and failed to slow down or avoid striking him.
Sanderson J (Ag) held that the defendant’s plea of ‘inevitable accident’ failed as the
dragonfly posed no immediate threat and the defendant was not stung or injured. He
was thus liable in negligence. However, the claimant was guilty of contributory neg-
ligence73 in that a reasonably careful pedestrian ‘would not walk on the road with his
back to approaching traffic when it would be obviously safer to walk facing the traffic
on the shoulder, off the travelled portion of the road’. As Sanderson J (Ag) explained:
The defendant argues that the [claimant] should not have been walking on the road and
that if he had been on the shoulder, like his brother, he would not have been hit and
injured. The [claimant] points out that under the Traffic Law he was entitled to walk on
the edge of the road, and therefore in doing so he was not acting negligently. In the
Cayman Islands, walking on the edge of the roadway is common practice. Often there
are no sidewalks or there are small shoulders and pedestrians are often walking on the
paved road itself. Cyclists on the roadway are also common. It is known to motorists,
therefore, that they may expect to encounter both pedestrians and cyclists from time to
time at the side of the road . . . Did the [claimant] do something that a reasonably careful
person would not have done? Put another way, did the [claimant] fail to take reasonable
care for himself and thereby contribute, by his want of care, to his own injury? He
did . . . It is common sense that it is safer to walk on the shoulder facing the traffic when
it is reasonable to do so, rather than the edge of the road with your back to the traffic . . .
The law only requires that a person not be careless for their own safety and take such
care of themselves as a reasonable person would take in such circumstances . . . Finally,
the [claimant] in conducting himself must take into account the possibility of others
being reckless, and he failed to do so.

Apportionment

The rule at common law was that if the harm to the plaintiff was due partly to
the plaintiff’s own fault, he could recover nothing from the defendant. In other
words, contributory negligence was a complete defence. Now, statutory provisions in
most jurisdictions provide that where a defendant is found to be negligent and the
plaintiff is guilty of contributory negligence, the court may apportion the damage: ‘The

72 [2004–05] CILR 397.

73 Damages were reduced by 20%.
 Chapter 13: General Defences 363

damages recoverable . . . shall be reduced to such extent as the court thinks just
and equitable having regard to the share of the [claimant] in the responsibility for
the damage.’74 Examples are s 28 of the Supreme Court of Judicature Act, Ch 4:01
(Trinidad and Tobago); s 3 of the Contributory Negligence Act, Ch 65 (The Bahamas);
s 3 of the Contributory Negligence Act, Cap 195 (Barbados); s 3 of the Law Reform
(Contributory Negligence) Act (Jamaica); and s 9 of the Law Reform (Miscellaneous
Provisions) Act, Cap 6:02 (Guyana).
According to Lord Reid:75
. . . a court must deal broadly with the problem of apportionment and, in considering
what is just and equitable, must have regard to the blameworthiness of each party. But
the claimant’s share in the responsibility for the damage cannot, I think, be assessed
without considering the relative importance of his acts in causing the damage, apart
from his blameworthiness.

VOLENTI NON FIT INJURIA

Volenti non fit injuria is synonymous with ‘consent’. No person can enforce a right
which he has voluntarily waived or abandoned. As we have seen,76 consent is a good
defence to intentional torts, such as assault, battery and false imprisonment.
Volenti non fit injuria may also be pleaded in negligence actions, as well as in most
other torts. In negligence, the courts speak of ‘voluntary assumption of risk’ rather
than ‘consent’. If a defendant is successful in his plea of volenti,77 he will have a
complete defence and the plaintiff will be unable to recover any damages. It is mainly
for this reason that volenti has declined in importance as a defence to negligence
actions, and it rarely succeeds today: for, since the introduction of apportionment of
loss in contributory negligence cases, the courts have tended to encourage reliance on
contributory negligence and to discourage reliance on volenti, on the ground that, in
most cases, the fairer solution is that the plaintiff should have his damages reduced,
rather than being able to recover nothing at all.
This reluctance to allow the volenti defence is exemplified by Mowser v De Nobriga,78
where the plaintiff, a spectator at a race meeting, was injured when she was struck by
a riderless horse which had escaped from the race track through a gap in the fence.79
Rees J held that volenti non fit injuria did not apply. He said:80
Counsel for the defendants argued that the doctrine volenti non fit injuria is applicable
and, on that basis, he said that, notwithstanding the defendants may be negligent, they
are entitled to succeed. He submitted that the plaintiff was a spectator who attended the
races and therefore took upon herself such elements of risk as exist in the sporting

74 It was held in White v Gaskin (1990) 25 Barb LR 4 (High Court, Barbados), per King J (Ag), that
the defence of contributory negligence must be pleaded, and, in the absence of such pleading,
the judge has no jurisdiction to make a finding of such negligence, see Fookes v Slaytor [1979] 1
All ER 137.
75 Stapley v Gypsum Mines Ltd [1953] AC 663, p 682.
76 See above, pp 15, 16.
77 Nettleship v Weston [1971] 3 All ER 581, p 588, per Lord Denning MR.
78 (1969) 15 WIR 147 (High Court, Trinidad and Tobago).
79 See above, pp 68–71.
80 Mowser v De Nobriga (1969) 15 WIR 147 (High Court, Trinidad and Tobago), p 155.
364 Commonwealth Caribbean Tort Law

activity of horse racing. That she freely and voluntarily, with full knowledge of the
nature of the risk she ran, impliedly agreed to incur it. I think that if a person makes an
agreement with another, either expressly or by implication, to run the risk of injury
caused by that other, he cannot recover for damage caused to him by any of the risks he
agreed to run. As the plaintiff/wife was a non-paying spectator who was injured on
land adjoining the premises occupied by the defendants, no question of express contract
arises – if anything, this alleged agreement must arise by implication, I have already
made it abundantly clear that in my view the defendants were negligent because there
was a breach of duty which caused damage to the plaintiff/wife and this breach of duty
was based solely on proximity or ‘neighbourship’ in the Atkinian sense. Although
it was at one time thought that spectators who were injured by a competitor who was
engaged in performing the very activity which the spectators came to watch would be
denied a remedy because, although the defendant was negligent, there was a valid
defence of volenti non fit injuria, there has been a relatively new attitude to the defence of
volenti in the actionable tort of negligence. In Wooldridge v Sumner,81 Diplock LJ went as
far as saying that the defence of volenti has no application to any case of negligence
simpliciter . . .
In my judgment, having regard to the authorities, I do not think in the present case
that the defendants can avail themselves of the doctrine volenti non fit injuria. It has
not escaped me that the injury to the plaintiff/wife was caused by her attempt to
rescue her infant son, but even so it brings the matter no further because the act of the
plaintiff/wife was the natural and foreseeable result of the negligence of the defend-
ants. The view expressed by Greer LJ in Haynes v Harwood,82 where he quoted a passage
from an article by Professor Goodhart, is as follows:
The American rule is that the doctrine of the assumption of risk does not apply
where the plaintiff has, under an exigency caused by the defendant’s wrongful
conduct, consciously and deliberately faced a risk, even of death, to rescue
another from imminent danger of personal injury or death, whether the person
endangered is one to whom he owes a duty of protection, as a member of his
family, or is a mere stranger to whom he owes no special duty.
Greer LJ added:83
In my judgment, that passage not only represents the law of the US but also the
law of England.
Sufficient has been said to dispose of the defence of volenti non fit injuria in the
present case.

Essentials of volenti in negligence cases

The defendant must show not merely that the plaintiff consented to physical risk (that
is, the risk of actual damage), but also that he consented to the legal risk (that is, the
risk of actual damage for which there will be no redress in law).84 Consent here means,
in effect, the agreement of the plaintiff, express or implied, to exempt the defendant
from the duty of care which he would otherwise have owed.85
Volenti can be established in any one of three ways:

81 [1962] 2 All ER 978.

82 [1934] All ER Rep 103, p 108.
83 Ibid.
84 Williams, Joint Torts and Contributory Negligence, 1951, London: Sweet & Maxwell, p 308.
85 Buckpitt v Oates [1968] 1 All ER 1145, p 1148.
 Chapter 13: General Defences 365

(a) by proof of an express contract, whereby the plaintiff agreed to exempt the
defendant from legal responsibility; for example, a person who leaves his car at a
car park on the contractual terms that all vehicles are left at their owners’ risk, and
the proprietor of the park is not to be liable for any loss or damage, howsoever
caused, will be deemed to have consented to run the risk of loss for which there
will be no legal redress;
(b) by proof that, even though there was no express contract, there was an express
consent to run the risk; an example is where a person accepts a free lift in a vehicle
in which a notice is displayed exempting the driver from liability for injury
caused by any negligence on his part;86
(c) where there is no express contract and no express consent, by showing that it must
be inferred or implied from the facts that the plaintiff consented to run the risk; for
example, one who accepts a lift from a driver whom he knows to be so intoxicated
as to be incapable of driving safely will be deemed to have been volens to any
negligence on the driver’s part.87

Volenti and scienti

One important limit to the doctrine is that mere knowledge of the existence of a
danger or risk does not amount to consent to run the risk. The maxim is volenti,
not scienti, non fit injuria. Thus, for instance, an employee who is aware of a dan-
gerous state of affairs at his workplace but nevertheless continues to work there,
will not be held to have been volens since knowledge of a risk does not amount to
consent to it, especially where the employee has complained to his employer about
the danger. Furthermore, the law recognises that an employee in such a situation
may have to put up with the danger, as his only alternative will be to give up
the job.88
This principle is also illustrated by the Vincentian case of Gooding v Jacobs.89 Here,
the plaintiff was standing on a log (the trunk of a coconut tree) on her mother’s land,
when the defendant drove up in a jeep with two other men and started pushing the
log away. The plaintiff remonstrated with the defendant about his trespassing on the
land, whereupon he got into the jeep, reversed it, and drove forward, hitting the log
and throwing the plaintiff to the ground, injuring her. The defendant pleaded volenti

86 See Birch v Thomas [1972] 1 WLR 294; Buckpitt v Oates [1968] 1 All ER 1145.
87 Ashton v Turner [1980] 3 All ER 870; Miller v Decker [1957] SCR 624; Pitts v Hunt [1990] 3 All ER
344. But it is uncertain whether the passenger will be volens where the degree of intoxication is
merely such as to impair the driver’s judgment. See Dann v Hamilton [1939] 1 KB 509, where
the defence failed; cf Insurance Comr v Joyce (1948) CLR 39, where it succeeded. See also
Gordon, DM (1966) 82 LQR 62. In such circumstances, the passenger may be held to have been
contributorily negligent: Owens v Brimmell [1976] 3 All ER 765; Ashton v Turner [1980] 3 All
ER 870; Gunness v Ramdeo (2001) High Court, Trinidad and Tobago, No S 1606 of 1995
(unreported) [Carilaw TT 2001 HC 84] (p 348, above). In Morris v Murray [1991] 2 WLR 195, the
plaintiff was a passenger in a plane which crashed because the pilot was drunk. It was held
that Dann v Hamilton (where the volens defence failed) was distinguishable because, in Morris,
the pilot’s drunkenness was extreme and the journey was fraught with danger from the
beginning (which was not the case in Dann, where the driver became drunk later during
a social outing); furthermore, piloting a plane was a much more risky operation than
driving a car.
88 Smith v Baker [1891] AC 325; Forbes v Burns House Ltd (2000) Supreme Court, The Bahamas,
No 432 of 1995 (unreported) [Carilaw BS 2000 SC 12].
89 (1973) High Court, St Vincent and The Grenadines, No 5 of 1971 (unreported).
366 Commonwealth Caribbean Tort Law

non fit injuria, arguing that the plaintiff, with full knowledge of the nature of the risk,
remained on the log as the defendant drove towards it.
Berridge J held that volenti non fit injuria was not applicable. Mere knowledge of a
risk does not amount to assent to harm or the risk of it. He said:
The maxim volenti non fit injuria is of respectable antiquity and the idea underlying it has
been traced as far back as Aristotle. Indeed, it was recognised in the works of the
classical Roman jurists and in the Canon Law as well.
The maxim is not scienti non fit injuria, and the difference between volens and sciens is
illustrated by the case of Dann v Hamilton,90 where it was held that a passenger in the car
of a friend who was driving it and who, to the knowledge of the passenger, was under
the influence of drink could nevertheless recover damages against the friend for injuries
sustained from an accident caused by the friend’s negligent driving; but perhaps not
if the friend’s intoxication was so extreme and glaring as to make the passenger’s
acceptance of a lift in the car an obviously dangerous operation.
It does not follow that a person assents to a risk merely because he knows of it. Con-
spicuous illustrations of this occur from time to time in harm sustained by workers in the
course of their occupations, and, as far back as Thomas v Quartermaine,91 the courts have
declined to identify, as a matter of course, knowledge of a risk with acceptance thereof.
I do not share the view that the plaintiff consented or assented to the risk of the harm
which befell her, and I find that the maxim volenti non fit injuria is not applicable.

Rescuers

The doctrine of volens does not apply where the plaintiff incurs a risk in order to
rescue a third party from a perilous situation in which he has been placed by the
defendant’s negligence, for a rescuer acts under the impulse of duty, whether legal,
moral or social, and does not, therefore, exercise that freedom of choice which is
essential to the success of the defence. In Haynes v Harwood,92 the plaintiff, who was a
policeman on duty, was injured when he attempted to prevent some horses which
had bolted from injuring bystanders. The plaintiff sued the defendant, the owner of
the horses, who had carelessly left them unattended. It was held that the defendant
could not rely on volenti because the policeman was a rescuer who had acted under a
duty to prevent injury to the public. Similarly, in Mowser v De Nobriga,93 the act of the
plaintiff in attempting to rescue her infant son from being trampled by a runaway
horse fell within this principle.

Volenti and workmen

Another limitation is that consent must be freely given. Thus, in the employer/
employee relationship, the courts have gone far to protect workmen from any misuse

90 [1939] 1 KB 509.
91 (1887) 18 QBD 683.
92 [1934] All ER Rep 103. On the other hand, where the plaintiff was injured in an attempt to stop
runaway horses and a milk cart in a meadow, where there was no danger to any person, he
was held to have been volens to the injury: Cutler v United Dairies [1933] 2 KB 297.
93 See above, pp 68–71 and 363, 364. See also Baker v TE Hopkins and Sons Ltd [1959] 3 All ER 225;
Grant v Robin Hood Enterprises Ltd (1995) Court of Appeal, Bermuda, Civ App No 25 of 1994
(unreported) [Carilaw BM 1995 CA 12] (rescuer not guilty of contributory negligence in
descending into gas-filled cesspit in order to rescue a colleague).
 Chapter 13: General Defences 367

by their employers of their superior economic power, and are very ready to hold that
a workman who continues to expose himself to some risky operation or dangerous
situation at his place of work cannot have freely consented to run the risk of injury,
since it is most probable that he will have been faced with the choice of putting up
with the danger or giving up his job. In Rhyna v Transport and Harbours Department,94
Ganpatsingh J said:
The respondents further contended that the appellant was the sole architect of the
consequences which befell him and the maxim volenti non fit injuria applied to defeat his
claim. In this regard, they relied on the case of Imperial Chemical Industries Ltd v
Shatwell.95 in that case, two fellow servants combined to disobey an order deliberately,
though they knew of the risk of injury involved. The employer was not at fault. In an
action by one of them against the employer for injuries suffered, based on the employ-
er’s vicarious responsibility for the conduct of the other, it was held that the doctrine
volenti non fit injuria was a complete defence.
I must say that I fail to see the relevance of the facts of that case to the one under
consideration. Here, it cannot be said that the appellant acted in disobedience to an
order of his employer. There was no such evidence. What he did, or rather attempted to
do, was the very thing he was instructed to do; and that was to catch the line. There was
no evidence to contradict that coming from the respondents. How, then, can it be said
that he was volens? In Smith v Baker,96 the maxim volenti non fit injuria was held not to
apply in a situation in which the danger was created or enhanced by the negligence of
the employer, albeit that the employee undertook and continued in his task with full
knowledge and understanding of the danger. I am afraid that whether one approaches
the facts from the point of view of the maxim volenti non fit injuria or contributory
negligence, I cannot say that the appellant was in any way blameworthy for the injury
he suffered. If this rope was pelted towards him, as he said it was, and which was not
denied, then he had really no choice but to attempt to catch it.

On the other hand, in Hinkson v Cox Ltd,97 it was held that the defence of volenti was
established. Here, the plaintiff, who was a foreman in the defendants’ workshop, and
M, a fellow employee, were changing a broken track link on a tractor. Neither of them
was wearing goggles at the time, though the defendants had made goggles available.
The metal had been heated, the plaintiff was holding a hammer on the pin, and M was
trying to knock out the pin with a sledgehammer. A piece of metal flew into the
plaintiff’s eye and caused severe injury. It was clear that both the plaintiff and M were
well aware of the danger of rust and splinters flying from metal when it was heated
and struck. Williams J pointed out that:
. . . the plaintiff was the foreman and in authority of Marshall. He was an experienced
mechanic. He admitted that the decision to knock the pin out in the way they did was
his, and it was he who instructed Marshall to heat the metal and use the sledgehammer.
He argued that for your own safety and protection you should wear goggles when
hammering metal; but he did not make use of the goggles provided . . . It is my view
that the plaintiff instructed the execution of the operation with full knowledge and
appreciation of the danger, and must be regarded as volens in the fullest sense.

94 (1985) Court of Appeal, Guyana, Civ App No 56 of 1982 (unreported) [Carilaw GY 1985 CA 9];
see above, pp 71, 72.
95 [1965] AC 656.
96 [1891] AC 325.
97 (1985) High Court, Barbados, No 451 of 1984 (unreported) [Carilaw BB 1985 HC 13].
 CHAPTER 14

DAMAGES FOR PERSONAL INJURIES AND DEATH

PERSONAL INJURIES

When tort liability has been established, the court’s next task is to assess the amount
(the ‘quantum’) of damages which the defendant must pay to the plaintiff by way
of compensation.1 In the Caribbean, most personal injury claims are in negligence,
and the vast majority of such injuries occur in road accidents. Damages in personal
injury actions are classified as general or special. General damages are awarded
for those items which cannot be precisely quantified in money terms, such as
pain and suffering and loss of amenities, whilst special damages can be precisely
calculated.
The distinction between special and general damages was explained by Haynes C
in the leading case of Heeralall v Hack Bros (Construction) Co Ltd:2
Damages are special and general. Special damages must be specially pleaded and
proved, and are awarded in respect of out-of-pocket expenses and loss of earnings
actually incurred down to the date of the trial itself. They are generally capable of
substantially exact calculation, or at least of being estimated with a close approximation
to accuracy. The familiar examples are medical and surgical fees paid or payable, hos-
pital expenses (if any) and loss of income. If the plaintiff has been employed at a fixed
salary or wage, such loss of income can commonly be calculated precisely; but where
he is self-employed, it must be estimated by reference to his past earnings. The basic
principle, as far as these losses are concerned, is that the injured person should be
placed, as far as money can do so, in the same financial position as he would have been
in at the date of trial if no accident had happened. General damage, on the other hand,
need not be pleaded specially, as the law implies it. It usually falls under these heads:
(a) loss of future earnings or income; (b) pain and suffering; and (c) loss of ‘amenities’
or enjoyment of life. Admittedly, other items may be included in particular cases, such
as future expenditure (for example, the cost of an artificial limb). By the very nature of
the three usual heads, they are incapable of precise mathematical calculation, because
the trial judge has to assess (a) with reference to an indefinite future, subject to vicissi-
tudes and contingencies, and, as regards (b) and (c), make an award in money for the
injury itself, the pain and suffering from it and the overall effect on the plaintiff’s
enjoyment of life, which do not really have equivalent money values.

Special damages

Examples of special damage (which must be proved strictly)3 include not only med-
ical expenses and pre-trial loss of earnings, but such smaller items as damage to

1 It is accepted that the court should in general have regard to awards of damages in the
same jurisdiction or in other jurisdictions where the social and economic conditions are similar:
Selvanayagam v University of the West Indies [1983] 1 All ER 824, p 828, per Lord Scarman; Taylor v
The Nassau Guardian Ltd (2003) Supreme Court, The Bahamas, No CL 543 of 1999 (unreported)
[Carilaw BS 2003 SC 21], per Small J.
2 (1977) 25 WIR 117 (Court of Appeal, Guyana), p 124.
3 Murphy v Mills (1976) 14 JLR 119 (Court of Appeal, Jamaica); Fenton v Blair (2004) Supreme Court,
Jamaica, No CL 1995/F-181 (unreported) [Carilaw JM 2004 SC 38].
 Chapter 14: Damages for Personal Injuries and Death 369

clothing and taxi fares to and from hospital. Under medical and nursing expenses, the
plaintiff is entitled to claim the cost of treatment and care which he reasonably incurs
as a result of his injuries. This would include payment of hospital bills and doctors’
fees. Also, where the victim is nursed by a member of his family or a friend, he is
entitled to the reasonable cost of such nursing services (both for the past and for the
future), even though he may not be under any legal or moral obligation to pay the
person who gives the services. In Tudor v Cox,4 an 18 year old youth received serious
head injuries as a result of the defendant’s negligence. After the plaintiff’s discharge
from hospital, his mother looked after him at home. Husbands J held that an award
must be made for those services. He said:
On the authority of Cunningham v Harrison,5 some award must be made for the extra
domestic attendance his injuries have necessitated, and for which there will be a
continuing need. Since his discharge from hospital, the plaintiff’s mother has waited on
him and rendered him domestic service. He should recover compensation for the value
of her service. As was said by my brother Williams J in the Barbados Court of Appeal
in Sandiford v Prescod:6
The task of a mother in bringing her offspring to maturity can be thankless
enough as it is, without her being expected to spend her more advanced years
in looking after her grown child. If she is to do so, compensation should be
provided. If a handicapped person is committed to her care, she is unlikely to
be able to do paid work elsewhere. In any case, she is under no obligation
to relieve a defendant of the consequences of his negligent act. There is no
question of a plaintiff being required to mitigate damages.

Similarly, in the Trinidadian case of Grey v John,7 where the plaintiff had been ser-
iously injured in a road accident and his daughter had given up her employment
for five months in order to look after him, Ramlogan J held that, on the authority
of Donnelly v Joyce,8 the plaintiff was entitled to the proper and reasonable cost of
supplying nursing services: ‘It is because there is a need for services that there is a
loss, and, once that loss results from the wrongdoing of the defendant, then the
plaintiff is entitled to an amount which would compensate him.’ Accordingly, the
plaintiff was entitled to an amount equivalent to the wages his daughter had lost
during the five-month period.
It was emphasised by the Jamaican Court of Appeal in Murphy v Mills 9 that
the general rule is that special damage in personal injuries cases must be strictly
proved. Documentary proof is the best evidence; however, in Central Soya of
Jamaica Ltd v Freeman,10 Rowe P intimated that there may be instances where the

4 (1979) High Court, Barbados, No 128 of 1978 (unreported) [Carilaw BB 1979 HC 14].
5 [1973] 3 All ER 463. See also Donnelly v Joyce [1973] 3 All ER 475; Hunt v Severs [1994] 2 All
ER 385; Coleman v McDonald (1979) 16 JLR 490 (Court of Appeal, Jamaica) (below, pp 379–83).
6 (1977) 12 Barb LR 55, p 63.
7 (1993) High Court, Trinidad and Tobago, No 1332 of 1985 (unreported). See also Christopher v
Rampersad (2001) High Court, Trinidad and Tobago, No SC 1063 of 1996 (unreported) [Carilaw
TT 2001 HC 109].
8 [1973] 3 All ER 475.
9 (1976) 14 JLR 119.
10 (1985) Court of Appeal, Jamaica, Civ App No 18 of 1984 (unreported). Followed in Genas v AG
(2006) Supreme Court, Jamaica, No CL 1996 G-105 (unreported) [Carilaw JM 2006 SC 98],
per Anderson J.
370 Commonwealth Caribbean Tort Law

court might be forced to assess special damage on the basis of purely oral evidence.
He said:
In casual work cases, it is always difficult for the legal advisers to obtain and present an
exact figure for loss of earnings, and although the loss falls to be dealt with under
special damages, the court has to use its own experience in these matters to arrive at
what is proved on the evidence.

Again, in Walters v Mitchell,11 Wolfe JA advocated a common-sense approach to the

determination of special damages in such cases, saying that ‘to expect a sidewalk
or push-car vendor to prove her loss of earnings with the mathematical precision of
a well organised corporation may well be what Bowen LJ referred to as “the vainest
pedantry” ’; and in AG v Clarke,12 Cooke JA reviewed the authorities from several
Caribbean jurisdictions and concluded that ‘although special damage must be strictly
proved and any relaxation of the rule should be accepted with caution, what amounts
to “strict proof” is determined by the circumstances of the particular case, and in
appropriate cases the court could use its experience in order to arrive at an award that
meets the justice of the case.’
In Young v Black,13 for instance, the claimant was a vendor who operated her
business from a stall in an arcade. In her claim for loss of earnings as special damage
in a personal injuries action, she gave oral evidence that her weekly profit was
$18,000. There were no details as to how that profit was calculated. The claimant
stated that she kept a daily record of her stock, but there was apparently no record of
her sales or profits. Harrison JA took the view that, in view of the nature of the
business, the claimant could not be expected to keep detailed accounts, and since her
estimate of earnings had not been seriously challenged in cross-examination, the
claimant was entitled to recover that amount, less 25%, which would have been her
tax liability.
On the other hand, in Thomas v AG,14 the claimant was a taxi operator who had
stated in evidence that he paid income tax. In the view of Sykes J, that could ‘only
mean that he keeps reasonably accurate records, yet none was produced at the
trial. The question now is whether it is appropriate to relax the rule in these
circumstances where we have a record-keeping taxi operator.’ Sykes J went on to
hold that justice demanded that the claimant should strictly prove his special dam-
age if the circumstances suggested that he was able to do so, for to decide other-
wise would be ‘to introduce unwarranted laxity in this area of the law . . . The
claimant may have a good reason why strict proof is not possible in his case.
Where this is so, evidence should be forthcoming to explain this . . . Defendants
expect, and rightly so, that judges will only depart from well established principle
if and only if there is a sound and proper basis in law and in fact for such a
departure.’ The claim for loss of earnings as special damage in this case was
accordingly disallowed.

11 (1992) 29 JLR 173.

12 (2004) Court of Appeal, Jamaica, Civ App No 109/2002 (unreported) [Carilaw JM 2004 CA 40].
See also Hawthorne v Downer (2005) Court of Appeal, Jamaica, Civ App No 12/2003
(unreported) [Carilaw JM 2005 CA 52].
13 (2003) Court of Appeal, Jamaica, Civ App No 106/2001 (unreported) [Carilaw JM 2003 CA 55].
14 (2006) Supreme Court, Jamaica, No CLT 095 (unreported).
 Chapter 14: Damages for Personal Injuries and Death 371

General damages

In Commonwealth Caribbean jurisdictions, general damages are usually assessed

according to the guidelines laid down by Wooding CJ in Cornilliac v St Louis,15 where
his Lordship stated that the court should take into account:
(a) the nature and extent of the injuries sustained;
(b) the nature and gravity of the resulting physical disability;
(c) the pain and suffering which had to be endured;
(d) the loss of amenities suffered; and
(e) the extent to which, consequentially, the plaintiff’s pecuniary prospects have been
materially affected.
As Haynes C pointed out in Heeralall v Hack Bros (Construction) Co Ltd:16
. . . put together, these considerations in Cornilliac v St Louis17 include the orthodox three
heads of damage customarily dictated in the English judgments [pain and suffering,
loss of amenities and loss of future earnings], together with the injury itself as a separate
element or ingredient of damage.18

In Cornilliac v St Louis,19 the appellant was seriously injured as a result of the respond-
ent’s negligent driving of a vehicle. After pointing out that, in order to succeed in
his appeal against the trial judge’s assessment of damages, ‘the appellant must show
that the amount awarded was so inordinately low as to be a wholly erroneous esti-
mate of the damage sustained’, Wooding CJ considered the relevant facts under each
of the following heads of damage:
The nature and extent of the injuries sustained
The appellant was occasioned a compound, comminuted, complicated fracture of the
humerus in the middle of the shaft and a fracture of the upper end of the radius and the
ulna at the elbow joint. By ‘complicated’ is meant that the fracture involved the elbow
and the radial nerve and artery. He also suffered from shock and haemorrhage. The
injuries were so extensive that, at first, it was feared that his right arm would have to be
amputated, but this was avoided, happily, by the skilful administrations of his surgeon.
The nature and gravity of the resulting physical disability
The fractures have healed but with a residuum of deformity. There is considerable
limitation of movement of the joint which, in the course of time, worsened because of
new bone formation from the healing of the fracture. Its present range of movement is
no more than about 20%, so that the appellant is unable to touch his face, and therefore
to shave or feed himself or discharge any ordinary function involving a range of move-
ments with his right hand; and, in addition, the hand has lost some of its grip. Arthritis,
too, has resulted: it already is major and is likely to become worse.

15 (1965) 7 WIR 491 (Court of Appeal, Trinidad and Tobago), p 492.

16 (1977) 25 WIR 117, p 125.
17 (1965) 7 WIR 491 (Court of Appeal, Trinidad and Tobago).
18 Though in Associated Industries Ltd v Ragnauth (1982) 32 WIR 249, p 253, Luckhoo JA in the
Court of Appeal of Guyana noted that an award for pain and suffering and loss of amenities
would normally incorporate such factors as an injured person’s disfigurement and physical
injuries, and there was no need to tabulate those as separate items and have them assessed
separately: ‘The practice in our courts as well as in the courts of the Caribbean and of England
is to give effect to such matters in an award under the heading of damages for pain and
suffering and loss of amenities.’
19 (1965) 7 WIR 491.
372 Commonwealth Caribbean Tort Law

The pain and suffering endured

The appellant experienced intense pain throughout his stay in a nursing home for the
12 days immediately following the accident. It was so intense that he had to be given
sedatives. At one time, the plaster cast in which the arm was placed after the bones had
been set had to be opened up because the pain in the limb had become intolerable.
During the whole of the period until the nerves healed, which the surgeon reckoned
to be anything between nine and 18 months, he was subjected to a great deal of pain – -
diminishing in intensity, it is true, but nevertheless always perceptibly there.
The loss of amenities suffered
The appellant had been an active, physically fit, outgoing man who was 48 years old at
the time of the accident. He used to enjoy playing music, mainly jazz and calypso, on
both the saxophone and the piano, and was full of the zest of a more than ordinarily
successful life. He can no longer play. And his outdoor activities must necessarily now
be limited. For him, therefore, much of the fun and sparkle has gone from living.
The effect on pecuniary prospects
At the time of the accident, the appellant was assistant to the superintendent in charge
of the cementing operations of Halliburton Tucker Ltd, and was paid a salary of $865
per month. He was also given a bonus, probably (as is customary in this country) at
the end of each year. He was being groomed to take over the superintendency when
the contract of its expatriate holder came to an end, and it is practically certain that,
but for the disabilities which he has been occasioned, he would now have been filling
that berth. This is confirmed by the fact that a junior whom he had assisted in training
was promoted to be superintendent when the contract of the expatriate ended in 1962.
As the normal age of retirement was 60 years, it seems clear that the appellant lost
the prospect of being for eight years in that post, which carries a salary of $1,250
per month with the perquisites of a company-supplied home and car. Instead, his
employers, who appear to esteem him greatly, have put him in charge of their bulk
cement plant and pay him an all-in total of $1,050 per month. In my estimation, the
difference between the emoluments of the two posts exceeds $500 per month. But that
is not all.
As the learned judge rightly said, the appellant’s loss is long term as well. His pension
entitlements under his employers’ contributory pension scheme will now be less than if
he had been promoted to the superintendency to which he had so confidently looked
forward. No particulars were given in evidence whereby any reasonable estimate can be
made of this prospective loss. Also worth mentioning, although its calculable value may
be negligible, is the fact that, through the generosity of his employers, he is being paid
more than his present job is worth, so that the chances of an increase in pay for the
remaining period of his service must be rated lower than if he had not been disabled
and had secured the expected promotion.
Having recapitulated the several matters which the learned judge had to (and, it should
be added, which he did) take into consideration, I find myself involuntarily echoing
Denning LJ’s exclamation, ‘Good gracious me, as low as ($7,500) for these injuries!’ – see
Taylor v Southampton Corp, reported in Kemp and Kemp on Damages, 2nd edn, Vol 1, p 640.
It certainly seems to me that that sum is a wholly unrealistic estimate of the damage
sustained.

Heads of general damage

Pain and suffering

This includes both past and future pain and suffering arising from the injuries them-
selves and from any surgical operations or treatment. It also includes nervous shock
 Chapter 14: Damages for Personal Injuries and Death 373

and any mental suffering brought about by the plaintiff’s realisation that his life has
been shortened (if, indeed, it has been). However, no damages are awarded under this
head if the plaintiff was unconscious throughout the period and thus did not actually
suffer any physical or mental pain.20

Loss of amenities

Loss of amenity means loss of the enjoyment of life. Thus, if, for example, the
plaintiff’s injuries have deprived him of the capacity to play music or sports, or to
read, or to enjoy a normal social life, he will be awarded substantial damages under
this head.

Loss of expectation of life

A conventional sum may be awarded to the plaintiff under this head if there is proof
that his life expectancy has been reduced. Thus, for example, it has been held that, in
the year 2002, the conventional sum in Trinidad and Tobago stood at $15,000,21 and in
2004 the conventional figure in Jamaica was held to be $150,000.22

Loss of future earnings

Earnings lost up to the date of the judgment can be precisely calculated, and so are
classed as special damages, but future earnings cannot be so quantified, since no
one can foretell what will happen as regards the plaintiff’s health, his job prospects
and other circumstances.23 Assessment of future earnings is thus largely guesswork.
The formula used is that of the multiplier and the multiplicand, which involves the
court’s making a final, lump sum award ‘having assessed the amount notionally
required to be laid out in the purchase of an annuity which will provide the annual
amount needed for the whole period of loss’.24 The court first calculates the multi-
plicand, that is, the plaintiff’s annual loss of earnings as at the present date, based
upon his known average earnings and the average earnings for a person in the same
type of employment, and taking into account any likely promotions or pay increases.
All earnings are calculated net, that is, after deduction of income tax and national
insurance contributions.25 The figure arrived at is then multiplied by the multiplier,
that is, the number of ‘years’ purchase’ chosen by the court. The multiplier chosen
will depend on various factors, such as the plaintiff’s age and the security and regular-
ity of his employment. The maximum is normally 18, and the most usual figure is
between 10 and 15.

20 West and Son Ltd v Shephard [1964] AC 326.

21 Samuel v Surajh (2002) High Court, Trinidad and Tobago, No 2656 of 1998 (unreported)
[Carilaw TT 2002 HC 68].
22 Morgan v Foreman (2004) Supreme Court, Jamaica, No HCV 0427/2003 (unreported), per
Sinclair-Haynes J.
23 Alphonso v Ramnath (1997) 56 WIR 183 (Court of Appeal, Eastern Caribbean States); Auguste v
Neptune (1997) 56 WIR 229 (Court of Appeal, Eastern Caribbean States).
24 Allen v Ebanks [1998] CILR 190, p 195, per Harre CJ (Grand Court, Cayman Islands).
25 Johnson v Browne (1972) 19 WIR 382 (High Court, Barbados), p 388, following British Transport
Commission v Gourley [1955] 3 All ER 796.
374 Commonwealth Caribbean Tort Law

In Heeralall v Hack Bros (Construction) Co Ltd,26 Haynes C explained the methods of

assessment of damages for pain and suffering, loss of amenities and loss of future
earnings thus:
The next head of general damages – pain and suffering – can be an element of consider-
able substance in some cases, relating as it does to both physical and mental pain and
suffering, past as well as present and prospective (if any). It is difficult for judges to
assess this. As the Earl of Halsbury observed in The Mediana:27
How is anybody to measure pain and suffering in moneys counted? Nobody
can suggest that you can by any arithmetical calculation establish what is the
exact sum of money which would represent such a thing as the pain and
suffering which a person has undergone by reason of an accident . . . But
nevertheless the law recognises that as a topic upon which damages may
be given.
All we can do is to bring to bear our general knowledge and experience as men of
the world on the matter, essentially here one of judgment, good sense and proportion.
The award for this, taken in isolation, has come to be a ‘conventional’ sum, in the
sense that it is an attempt to equate money with something with which money is not
commensurable; and, as Scarman LJ said in Wagner v Mitchell (see Kemp and Kemp,
4th edn, Vol 2, p 9106): ‘. . . in a proper case, a substantial sum should be awarded for
this element.’ In that same case, the same judge said also (again at p 9106): ‘. . . it is often
said that money can be no compensation for pain and suffering. The proposition is too
broad. There are cases in which money can be a very real compensation . . . it provides
the opportunity of distraction and diversion.’
Be that as it may, the law can help in no other way.
And so it is also with ‘loss of amenities’ – the ability to enjoy life in the way that he
formerly could, whatever life should offer. This head of general damages embraces
everything which reduces the plaintiff’s enjoyment of life, considered apart from pain
and suffering and apart from any material loss which may be attendant upon the plain-
tiff’s injuries. Birkett LJ in Manley v Rugby Portland Cement Co Ltd (1951) (see Kemp and
Kemp, 2nd edn, 1961, p 624) illustrated what is meant when he said:
There is a head of damage which is sometimes called loss of amenities; the man
made blind by the accident will no longer be able to see the familiar things he
has seen all his life; the man who has had both legs removed will never again go
upon his walking excursions – things of that kind.
Money cannot buy this. But it may enable the loser to enjoy other things instead and
be some solace or consolation to the plaintiff. So it is that in every case the trial judge
has to determine what sum it is fair for the defendant to pay to compensate the
plaintiff in this way for his suffering and deprivations. And again he could get
general guidance from awards made by his brothers in comparable cases. He has to
perform difficult and artificial tasks of converting into monetary damages the physical
injury and deprivation and pain, and to give judgment for what he considers to be
a reasonable sum. As Lord Denning MR put it in the recent case of Smith v Central
Asbestos Co Ltd:28
It is impossible to know what is a proper sum for loss of the amenities of life.
The judges are being asked to calculate the incalculable. The figure is bound
to be for the most part a conventional sum. All that the judges can do is to work
out a pattern . . .

26 (1977) 25 WIR 117.

27 [1900] AC 113, p 116.
28 [1972] 1 QB 244, p 262.
 Chapter 14: Damages for Personal Injuries and Death 375

And this pattern should be such as the ordinary man would not instinctively regard
as either mean or extravagant but would consider to be sensible and fair . . .
In cases of severe personal injury, the damages awarded in respect of prospective loss
of earnings will often be the most important head of general damages. In this regard, the
English courts in more modern times evolved a method of assessment to calculate a
capital sum as the present (date of award) value of the plaintiff’s loss of expected future
earnings. In Australia, in Canada and in New Zealand, to help this calculation, use
is made frequently, if not regularly, of actuarial evidence. But this type of proof has met
with disfavour in England, and is not usually, if ever, put forward in this region. So I
shall say no more about it now.
The method referred to involves calculations necessarily made on certain assumptions,
and its value must depend upon how far those assumptions are accepted as valid.
They are twofold. One is as to the period of time for which the plaintiff would, if
he had not been injured, have earned or been capable of earning – that is to say the
duration of working life affected by the accident. In a case of total incapacity, that is
often taken to be until the age of 60 or 65. The other assumption is as to the rate of
remuneration that, if he had not been injured, the plaintiff would for the assumed
period have enjoyed. In most cases, neither assumption necessarily fits the facts. Some
allowances and qualifications are called for by what are now commonly referred to
in this connection as the contingencies of the future or the vicissitudes of life. What
should be the extent and manner of that must depend upon the circumstances of the
particular case, upon the judge’s estimate, necessarily imprecise, of what, had he
not been injured, would have been the lot of the plaintiff in future years. Is it likely
he would have continued to earn or been able uninterruptedly to earn throughout the
assumed period? Might his earning capacity have been cut short within the period,
or might it on the other hand have endured beyond it? Interruptions of the assumed
earnings period by sickness, unemployment or other causes must also be allowed for
to the extent that seems reasonable in the particular case.
The assumed rate of wages or remuneration is usually that which the plaintiff was
earning before he was injured. In some cases, it may be reasonable to assume that it
would have remained constant throughout the assumed period. In other cases, the
probability may be that he would have prospered or been promoted and earned at a
higher rate. On the other hand, the probability may be that, because of his age or other
circumstances, his rate of remuneration would have declined. A judge cannot predict
such contingencies and evaluate their effect with any precision or by reference to any
formula. When it is said that in assessing damages regard must be had to the contingen-
cies and vicissitudes of life, what is meant is not some idea of the chances of the future in
the abstract or of the lot of mankind in general. It is the case of the particular plaintiff
that has to be considered, having regard to what it was likely that the future would have
had in store for him.
Based on these assumptions, the method of assessment evolved under this head is
described in Mayne and McGregor on Damages, 12th edn, p 767, thus:
Method evolved by the courts – the courts have evolved a particular method for
calculating this head of damage. The basis is the amount that the plaintiff would
have earned in the future and has been prevented from earning by the injury.
The amount is calculated by taking the figure of the plaintiff’s annual earnings
at the time of the injury less the amount, if any, which he can now earn annu-
ally, and multiplying this by the number of years during which the loss of
earning power will last, which, if the injury is for the plaintiff’s life, will require
a calculation of the period of his expectation of working life. The resulting
amount must then be scaled down by reason of two considerations, first that a
lump sum is being given instead of the various sums over the years, and second
that contingencies might have arisen to cut off the earnings before the period of
disability would otherwise come to its end. The method adopted by the courts
376 Commonwealth Caribbean Tort Law

to scale down the basic figure is to take the figure intact of present annual
earnings and reduce only the multiplier. And if the present annual earnings are
liable to increase or decrease in the future, then the practice of the courts is still
to allow for this not by changing the figure of present annual earnings but by
altering, up or down, the multiplier.
In practice, this method has been applied in one or the other of two ways. In Jamaica
Omnibus Services Ltd v Caldarola 29 and Khan v Bhairoo,30 in each case the trial judge
used the full estimated remaining working life as multiplier, then ‘scaled down’ by
reducing the resulting sum by one-third, and awarded the remaining two-thirds as
compensation under this head – this is one way. The other approach was used by
George J in the local case of Sarju v Walker.31 His Honour there ‘scaled down’ for
‘imponderables’ by taking a reduced multiplier of 15 instead of the full estimated work-
ing life of the plaintiff of 23 plus. In my judgment, once the proper considerations are
allowed for, it should be open to a trial judge to choose either way of proceeding to an
award of fair compensation.

Loss of earning capacity 32

Cases in which the court may make an award in respect of loss of earning capacity are:
(a) where the plaintiff’s injuries have affected his ability to earn, but he suffers no loss
of earnings because his employer continues to employ him at the same rate of pay.
In such cases, the plaintiff may recover damages for his loss of earning capacity if
there is a real risk that he could lose his existing employment at some time in the
future and may then, as a result of his injury, be at a disadvantage in finding an
equivalent employment or an equally well-paid job (commonly called ‘Smith v
Manchester damages’);33
(b) where the plaintiff is a young child who has never been employed, so that there is
no actual loss of earnings.34
The explanation of the basis for an award for loss of earning capacity which has
been cited in several Caribbean cases35 is that of Brown LJ in Moeliker v Reyrolle
and Co:36

29 (1966) 10 WIR 117.

30 (1970) 17 WIR 192 (see above, pp 358–61).
31 (1973) 21 WIR 86.
32 It has been held in Jamaica that an award can be made under this head even where the
claimant is unemployed at the time of the trial. See Osbourne v Barned (2006) Supreme Court,
Jamaica, No 2005 HCV 294 (unreported) [Carilaw JM 2006 SC 19], where Sykes J referred to
earlier Jamaican and English cases supporting this view.
33 Smith v Manchester Corp (1974) 17 KIR 1; Moeliker v Reyrolle and Co Ltd [1977] 1 WLR 132;
Alphonso v Ramnath (1997) 56 WIR 183, p 194 (Court of Appeal, Eastern Caribbean States).
34 S v Distillers Co (Biochemicals) Ltd [1970] 1 WLR 114.
35 Eg, Pelter v University of the West Indies (1994) 30 Barb LR 169 (Court of Appeal, Barbados); Fun
and Games Ltd v Smith (1994) 30 Barb LR 357 (High Court, Barbados); Crockwell v Haley (1993)
Court of Appeal, Bermuda, Civ App No 23 of 1992 (unreported) [Carilaw BM 1993 CA 12];
Gravesandy v Moore (1986) 23 JLR 17 (Court of Appeal, Jamaica); Pogas Distributors Ltd v
McKitty (1995) Court of Appeal, Jamaica, Civ App No 13 of 1994 (unreported); Edwards v
Pommels (1991) Court of Appeal, Jamaica, Civ App No 38 of 1990 (unreported) [Carilaw JM
1991 CA 156]; Francis v Baker (1992) 29 JLR 424 (Court of Appeal, Jamaica). See also the analysis
by Sykes J in Gayle v Wright (2004) Supreme Court, Jamaica, No CL G050 of 2001 (unreported)
[Carilaw JM 2004 SC 81] and Powell v Bell’s Trucking and Heavy Duty Equipment Ltd (2006)
Supreme Court, Jamaica, No HCV 0897 of 2003 (unreported) [Carilaw JM 2006 SC 18].
36 [1977] 1 WLR 132, p 140.
 Chapter 14: Damages for Personal Injuries and Death 377

In deciding this question, all sorts of factors will have to be taken into account, varying
almost infinitely with the facts of the particular cases. For example, the nature and
prospects of the employer’s business; the plaintiff’s age and qualifications; his length of
service; his remaining length of working life; the nature of his disabilities; and any
undertaking or statement of intention by his employers as to his future employment. If
the court comes to the conclusion that there is no ‘substantial’ or ‘real’ risk of the
plaintiff losing his present job during the rest of his working life, no damages will
be recoverable under this head.
But if the court decides that there is a risk which is ‘substantial’ or ‘real’, the court
somehow has to assess this risk and quantify it in damages . . .
The consideration of this head of damages should be made in two stages: (1) Is there a
‘substantial’ or ‘real’ risk that the plaintiff will lose his present job at some time before
the estimated end of his working life? (2) If there is (but not otherwise), the court must
assess and quantify the present value of the risk of the financial damage which the
plaintiff will suffer if that risk materialises, having regard to the degree of the risk, the
time when it may materialise, and the factors, both favourable and unfavourable, which
in a particular case will, or may, affect the plaintiff’s chances of getting a job at all, or
an equally well paid job.

There is no fixed approach to the computation of damages for loss of earning capacity.
The court may use the multiplier/multiplicand method;37 or it may award ‘a fixed and
relatively moderate sum’; or the loss ‘may be subsumed in the general damages
awarded’.38

Inflation

It is well established that, in assessing general damages, the possible effects of infla-
tion are not to be taken into account by increasing the multiplier.39 It has been argued
that it would be unrealistic to ignore inflation altogether, especially in times of finan-
cial instability.40 However, the conventional view is that the successful plaintiff
receives a lump sum payment which should be invested, and protection from the
effects of future inflation should be left to sound investment policy.41 On the other
hand, in Shamina v Dyal,42 Georges C, in the Court of Appeal of Guyana, pointed
out that:
. . . aside from the fact that the money market and other investment opportunities that
are available to the investor in the UK are all but non-existent here, the rate of inflation
has been so rampant as to be described as ‘hyper’. I believe that, until greater stability
returns to the monetary system of [Guyana], in its assessment of future pecuniary loss,

37 As in Christopher v Rampersad (2001) High Court, Trinidad and Tobago, No SC 1063 of 1996
(unreported) [Carilaw TT 2001 HC 109]; Campbell v Whylie (1999) 59 WIR 326 (Court of Appeal,
Jamaica); Clarke v Dawkins (2004) Supreme Court, Jamaica, No CL 2002/C-047 (unreported)
[Carilaw JM 2004 SC 46].
38 Joyce v Yeomans [1981] 2 All ER 21; Kiskimo Ltd v Salmon (1991) Court of Appeal, Jamaica,
Civ App No 13 of 1994 (unreported); Campbell v Charley (1999) Court of Appeal, Jamaica, Civ
App No 68 of 1997 (unreported). See also Hydes v Ebanks [2002] CILR 242, pp 250–52, per
Zacca P.
39 Taylor v O’Connor [1970] 1 All ER 365, pp 372, 373.
40 Ibid, p 368.
41 Ibid, p 378; Wells v Wells [1998] 3 All ER 481; Hydes v Ebanks [2002] CILR 242, p 249 (Court of
Appeal, Cayman Islands).
42 (1993) 50 WIR 239, p 257.
378 Commonwealth Caribbean Tort Law

the court ought not to ‘turn Nelson’s eye’ to the issue of inflation. But it cannot act
without cogent and relevant evidence. Perhaps evidence of past trends and of future
prospects may be of assistance.

In the instant case, the defendant had not furnished any such evidence, and the
court accordingly was not in a position to take the impact of inflation into account
in the assessment of damages.

Deductions

We have already seen43 that, in calculating damages for loss of earnings, the plain-
tiff’s liability to income tax on the earnings for the loss of which he claims com-
pensation must be taken into account and deducted from the damages payable by
the defendant. This principle was established by the House of Lords in British
Transport Commission v Gourley 44 and has been applied in many Commonwealth
Caribbean cases. The rationale for making such a deduction is that the aim of
damages in the law of torts is restitutio in integrum, that is, to restore the plaintiff to
the position he would have been in had the tort not been committed; and if the
deduction were not made, the plaintiff would be over-compensated. For the same
reason, certain ‘collateral benefits’ received by the plaintiff in compensation for the
injury must be deducted from the damages. This is subject to two important
limitations:
(i) it was established in Parry v Cleaver 45 that a benefit is to be deducted only where
the receipt of the benefit truly reduces the loss suffered by the plaintiff; and
(ii) on policy grounds, certain benefits are not deductible.
The position as to collateral benefits may be summarised as follows:
(a) Wages or sick pay. Wages or sick pay paid by the plaintiff’s employer as a matter of
contractual obligation are deductible in full, because they reduce the plaintiff’s loss;46
but it seems that ex gratia payments made by an employer are not deductible.47
(b) Occupational pensions. In Parry v Cleaver,48 it was held that a disability pension,
whether or not discretionary and whether or not contributory, should not be
deducted in assessing a plaintiff’s lost earnings. This is so even where the
tortfeasor is the plaintiff’s employer and, therefore, the ‘provider’ of the pension
scheme, because the pension is the fruit of the employee’s work and is not a
replacement for his loss of earnings.49
(c) Unemployment benefit. Any unemployment benefit received from a State fund is
deductible in full, as it reduces the plaintiff’s loss.50 But it has been held that a
state retirement pension is not deductible.51

43 See above, p 373.

44 [1955] 3 All ER 796.
45 [1969] 1 All ER 555.
46 Metropolitan Police Receiver v Croydon Corp [1957] 2 QB 154.
47 Dennis v London Passenger Transport Board [1948] 1 All ER 779.
48 [1969] 1 All ER 555.
49 Smoker v London Fire and Civil Defence Authority [1991] 2 All ER 449.
50 Nabi v British Leyland Ltd [1980] 1 All ER 667.
51 Hewson v Downs [1970] 1 QB 73.
 Chapter 14: Damages for Personal Injuries and Death 379

(d) Charitable donations. Payments received from charitable organisations are not
deductible, for two policy reasons:
• because otherwise there would be ‘a risk that the springs of charity would
dry up’;52 and
• because it would be unjust if the only person who benefited from the receipt
of charitable donations were the tortfeasor, because his obligation to the
plaintiff would thereby be reduced.53
(e) Loss insurance. Benefits received under a contract of insurance are not deductible
from damages for personal injury, for, on policy grounds, it would be unfair to
penalise the plaintiff for his own foresight and thrift in taking out the policy and
paying the premiums.54
The question of deductions in personal injury claims was fully discussed by Carberry
JA in the Jamaican Court of Appeal in Coleman v McDonald.55 Here the plaintiff/
respondent was injured in a road accident caused by the negligence of the defendant/
appellant. The plaintiff was insured with the Ontario Health Insurance Plan, one
third of the premiums being paid by the plaintiff and two thirds by her employers.
The plaintiff’s entire medical and hospital bills were paid by the insurers, but, under
the terms of the insurance, the plaintiff was obliged to reimburse the cost of the
medical and hospital expenses from any damages awarded to her in the action. The
Chief Justice of the Cayman Islands, from whose judgment the defendant appealed,
awarded the plaintiff the amount of the medical and hospital expenses as special
damages.
The Court held that the Chief Justice was correct in allowing the claim, in view of
the facts that: (a) the plaintiff paid the premiums of the policy, though in part only;
and (b) the plaintiff was obliged to reimburse the insurers. Carberry JA said:
The problem here stands at the edge of a much larger controversy that has been raging
for some time in all the countries using the English common law. The damages awarded
to a plaintiff in an action for negligence are compensatory, not punitive; they are
intended to provide restitution for the plaintiff, not to visit retribution on the defendant
(see per Diplock LJ in Browning v The War Office).56 From this basis springs the problem:
granted that a plaintiff has been injured by the defendant, so that he has been unable to
work and earn wages, and has incurred expenses for medical treatment and the like,
what is to happen if some third person, from motives of benevolence or otherwise, pays
to the plaintiff sums of money intended to compensate or provide for his salary, or meet
his expenses; does this receipt by the plaintiff mean that the plaintiff is to be debarred in
whole or in part from making his claim for lost salary or for the expenses incurred from
the defendant? Is it to be said that the plaintiff has, by reason of the receipt of this
extraneous money, not suffered the loss that has been inflicted on him; that there is no
longer any further need, pro tanto, for restitution from the defendant, and that to
demand it of him is to extract retribution rather than extract restitution? Another way of
asking this question is to ask whether in this situation the defendant is to reap the
charity or benefit intended for the plaintiff, or to benefit perhaps from the provision that
the plaintiff has made by way of insurance or other use.

52 Winfield and Jolowicz, Tort, 15th edn, 1998, London: Sweet & Maxwell, p 776.
53 Parry v Cleaver [1969] 1 All ER 555.
54 McGregor, Damages, 15th edn, 1988, London: Sweet & Maxwell, para 1133; Parry v Cleaver
[1969] 1 All ER 555.
55 (1979) 16 JLR 490.
56 [1963] 1 QB 750, p 764.
380 Commonwealth Caribbean Tort Law

The defendant’s approach to the matter is to say that the particular loss, no thanks to
me, it is true, has not been experienced due to the payment made by the provider, so
why should I have to meet it? The plaintiff’s approach is to say: the defendant has
injured me and should pay for those losses; the fact that some third person has provided
me with money is no concern of the defendant. It was not meant to help him, or to
relieve him from liability. It was meant to help me, and his liability remains. Why
should not the defendant pay what he was due to pay? Why should I not retain with
thanks the benefits that a compassionate provider moved by pity has given to me?
There are various other in-between or complicating factors. The third person or provider
may be the plaintiff’s own employer: where he provides sick pay or leave, then the truth
of the matter is that it is he who has lost: he is paying wages or salary and getting no
equivalent in services in return because the defendant’s negligence has deprived him
pro tempore (sometimes permanently) of the plaintiff’s services, yet, as the matter now
stands, the employer cannot sue to recover those lost wages: AG for New South Wales v
Perpetual Trustee Co 57 and IRC v Hambrook,58 overruling AG v Valle Jones.59 Nor can the
plaintiff sue to recover them, for, if they were paid to him as of right, that is, under the
terms of his service contract, then it is said the plaintiff has not lost them and so cannot
recover. See, for example, Graham v Baker 60 and Browning v The War Office.61 However, if
the employer pays them as purely voluntary payments, or perhaps has the prudence to
pay them on terms that he will get them back if the plaintiff recovers them from the
defendant, then the plaintiff may recover them, though he will do so on trust to repay
the employer: see, for example, Dennis v London Passenger Transport Board;62 Ayers and
Guelph v Hoffman.63
Nevertheless, disability pensions, in contrast to sick pay, are never to be deducted or
reckoned in the defendant’s favour: see Payne v Rly Executive 64 and Parry v Cleaver:65
The techniques involved in the several common law courts in attempting to resolve the
problem are fascinating. Sometimes, resort is had to the doctrine of ‘causation’: can it be
said that the provision made by the provider was ‘caused’ by the accident that befell the
plaintiff? If it was not so ‘caused’ but was due to ‘extraneous’ facts, then the provision
will not assist the defendant: see, for example, Hay v Hughes 66 (grandfather taking on
orphaned grandchildren). At other times, resort is had to the doctrine of ‘remoteness’
and it is said that the provision by the provider was too remote and, therefore, not
deductible. At other times, resort is made to the concept of whether it is ‘just and
equitable’ that the plaintiff should get the benefit of the provision without having to
account, or whether the defendant should in effect get the benefit of the provision in
having it deducted from the damages he is required to pay: see, for example, Lord
Denning MR in Browning v The War Office.67 The canons of what is just and equitable are
apt to be elusive, as that judgment was overruled in Parry v Cleaver.68 In the Australian
cases, both Dixon CJ and Windeyer J have been apt to discard ‘causation’ and to direct
attention to the ‘forgotten man’, the actual ‘provider’, and to ask whether the provider
meant the plaintiff to have the provision, regardless of whether he recovered from

57 [1955] AC 457.
58 [1956] 1 All ER 578.
59 [1935] 2 KB 209.
60 (1961) 106 CLR 340.
61 [1963] 1 QB 750.
62 [1948] 1 All ER 779, per Denning J.
63 (1956) 1 DLR (2d) 272 (Ontario High Court).
64 [1951] 2 All ER 910.
65 [1969] 1 All ER 555.
66 [1975] 1 All ER 257.
67 [1963] 1 QB 750.
68 [1969] 1 All ER 555.
 Chapter 14: Damages for Personal Injuries and Death 381

the defendant or not (see National Insurance Co of New Zealand v Espagne).69 In the case
of charitable or public fund subscriptions for victims of natural or other disasters, it
is usually easy to see that the provider meant the plaintiff to enjoy the provision regard-
less of the defendant’s liability, and in such a case the provision is not deductible
in favour of the defendant: see Redpath v Belfast and County Down Rly.70 The problem,
unfortunately, is likely not only to remain with us, but to increase, because, with the
growth of the ‘Welfare State’ and public provisions for citizens who suffer from some
form of disablement or the other, there enters on the scene a new ‘provider’ whose
intention will not be gleaned from its utterances but must be deciphered from the
statutory instruments or laws setting it up.
In all this welter of authority there are at least two classes of case which provide a clear
and unambiguous answer to the problem presently before us.
There are first the insurance cases. It is convenient to set out in full the relevant para-
graphs taken from McGregor on Damages, 13th edn, 1972, para 116(a), dealing with
deductions in calculating loss of future earnings:
Insurance moneys
As early as 1874 it was decided in Bradburn v Great Western Rly 71 that, where the
plaintiff had taken out accident insurance, the moneys received by him under
the insurance policy were not to be taken into account in assessing the damages
for the injury in respect of which he had been paid the insurance moneys. This
decision has withstood all the recent changes of judicial heart over the issue of
collateral benefits and is solidly endorsed by Parry v Cleaver 72 not only by the
majority who relied upon it by analogy, but also by the minority who sought to
distinguish it. The argument in favour of non-deduction is that even if in the
result the plaintiff may be compensated beyond his loss, he has paid for the
accident insurance with his own moneys, and the fruits of this thrift and fore-
sight should in fairness enure to his and not to the defendant’s advantage.
At p 765, para 1133, McGregor on Damages again deals with insurance moneys, this time
with reference as to their deducibility in respect of claims for medical expenses. The
passage reads thus:
Insurance moneys
Whether a plaintiff whose medical expenses have been paid for him under a
private medical insurance scheme to which he subscribes, such as that run by
BUPA, is entitled nevertheless to claim the expenses as part of his damages is a
question which does not appear to have been explicitly passed upon by the
courts. It would seem likely that the analogy of the non-deductibility of insur-
ance moneys in relation to loss of earnings – a rule unanimously supported by
their Lordships in Parry v Cleaver – would prevail since the argument in favour
of non-deduction, viz, that the plaintiff has paid for the insurance with his own
moneys and should not be deprived of the fruits of his thrift and foresight to the
defendant’s advantage, applies as much in this context as in the other. Indeed
the plaintiff may have an accident insurance policy, the moneys from which he
can deploy as he cares between the payment of his medical expenses and the
replenishment of his lost earnings, or which indeed he may spend in any other
way he chooses. Nor should it make any difference that, as may frequently be
the case here, the insurance moneys, instead of being paid directly to the plain-
tiff, are applied directly by the insurer in payment of the medical expenses.

69 (1961) 105 CLR 569.

70 [1947] NI 167.
71 [1874–80] All ER Rep 195.
72 [1969] 1 All ER 555.
382 Commonwealth Caribbean Tort Law

We are of the view that, the opportunity having now occurred for this court to deal
‘explicitly’ with the problem so far as it relates to the recovery of medical expenses, we
ought to hold and do hold that the payment of the medical expenses by accident insur-
ance taken out by the plaintiff, whether solely or by way of a contribution with her
employer, does not in any way prevent their recovery from the defendant and that the
principle enunciated in Bradburn v Great Western Rly 73 applies. As was said by Pigott B:74
He (the plaintiff) pays the premiums upon a contract which, if he meets with an
accident, entitles him to receive a sum of money. It is not because he meets with
the accident, but because he made a contract with, and paid premiums to, the
insurance company for that express purpose that he gets the money from them.
It is true that there must be the element of accident in order to entitle him to the
money; but it is under and by reason of his contract with the insurance com-
pany that he gets the amount; and I think that it ought not, upon any principle
of justice, to be deducted from the amount of damages.
While it is true that the plaintiff in this case contributed one-third only of the premium,
the argument that only one third of the medical expenses should therefore be paid by
the defendant is but an ingenious attempt to reap where the defendant has not sown. It
fails. But it should be added that, if it were the case that the defendant was an employer
who had contributed the other two-thirds of the premium, then the defendant should be
entitled to two-thirds of the benefit of the insurance coverage.75
See, further, Jones v Gleeson,76 a decision of the High Court of Australia (approved by the
House of Lords in Parry v Cleaver), where that court refused to permit the deduction of a
contributory pension from the damages (awarded for future loss of income), though the
plaintiff contributed only in part to the pension fund, the other part being furnished by
the plaintiff’s employers.
In Parry v Cleaver,77 Lord Reid said as regards ‘benevolent’ contributions to the plaintiff
and benefits of insurance policies:
It would be revolting to the ordinary man’s sense of justice, and therefore con-
trary to public policy, that the sufferer should have his damages reduced so
that he would gain nothing from the benevolence of his friends or relations or of
the public at large, and that the only gainer would be the wrongdoer . . .
As regards moneys coming to the plaintiff under a contract of insurance, I think that the
real and substantial reason for disregarding them is that the plaintiff has bought them
and that it would be unjust and unreasonable to hold that the money which he prudently
spent on premiums and the benefit from it should enure to the benefit of the tortfeasor.
Here, again, I think that the explanation that this is too remote is artificial and unreal.
Why should the plaintiff be left worse off than if he had never insured? In that case he
would have got the benefit of the premium money; if he had not spent it he would have
had it in his possession at the time of the accident grossed up at compound interest . . .
Apart from the fact that these expenses were paid by the proceeds of an accident
insurance policy, they were also recoverable on other grounds, both in principle and on
authority.
There is no question but that they were expenses rendered necessary by the defendant’s
conduct and that the charges made therefor were reasonable. There is nothing punitive
in calling on a defendant to pay for the expenses which have been incurred by or on
behalf of the plaintiff as a result of the injury that he has caused to the plaintiff.

73 [1874–80] All ER Rep 195.

74 Ibid, p 197.
75 Parsons v BNM Laboratories [1963] 2 All ER 658; Turner v Ministry of Defence (1969) 113 SJ 585.
76 (1965) 39 ALJR 258.
77 [1969] 1 All ER 555.
 Chapter 14: Damages for Personal Injuries and Death 383

Had the plaintiff borrowed money from the bank to pay these expenses, clearly they
would be recoverable. Nor does it make any difference that a third person has advanced
them on behalf of the plaintiff: see Allen v Wates;78 Liffen v Watson.79
We would respectfully agree with the judgment of the English Court of Appeal in
Donnelly v Joyce,80 [which is] fairly summed up in the headnote to the report in the All
England Reports, which reads:
In an action for damages for personal injuries incurred in an accident, a plain-
tiff was entitled to claim damages in respect of services provided by a third
party which were reasonably required by the plaintiff because of his physical
needs directly attributable to the accident; the question whether the plaintiff
was under a moral or contractual obligation to pay the third party for the
services provided was irrelevant; the plaintiff’s loss was the need for those
services, the value of which, for the purpose of ascertaining the amount of his
loss, was the proper and reasonable cost of supplying the plaintiff’s need. It
followed, therefore, that the defendant was liable to the plaintiff for the cost of
the mother’s services, that is, her loss of wages, necessitated by the defendant’s
wrongdoing.
In the result, therefore, it appears to us that the learned Chief Justice was correct in
holding that this plaintiff was entitled to recover from the defendant ‘the special dam-
ages claimed on the understanding and conditions that they are paid to the Ontario
Ministry of Health in satisfaction of that Ministry’s subrogated rights’. Indeed, it is
our view that she would have been so entitled even if she was under no legal obligation
to pay same over to the Ontario Ministry of Health.
The plaintiff was entitled to recover this sum from the defendant, not only under the
principles laid down in Bradburn v Great Western Rly,81 as to accident insurance policies,
but also under the wider principles indicated in Donnelly v Joyce.82
If, as is alleged, the plaintiff is under a legal obligation to refund this sum to the Ontario
Ministry of Health, then, even on the narrowest view advanced in the cases that we
have been referred to and have mentioned above, the defendant is liable to reimburse
this sum to the plaintiff so that the legal obligation may be discharged.

Duty to mitigate

A claimant who has suffered injuries as a result of the defendant’s tort is required
to act reasonably so as to mitigate, that is minimise, his loss. Thus, for instance, if the
claimant has lost his job because of his injuries, he will, unless he has been totally
incapacitated, be expected to obtain some form of alternative employment;83 simi-
larly, if a trader has been prevented by her injuries from operating her business, she
will be expected, in mitigation of her loss, to employ an assistant to operate the
business during her incapacity;84 and if a taxi driver is prevented by his injuries from

78 [1935] 1 KB 200.
79 [1940] 1 KB 556.
80 [1973] 3 All ER 475.
81 [1874–80] All ER Rep 195.
82 [1973] 3 All ER 475.
83 Morgan v Jamaica Omnibus Services Ltd (1987) 24 JLR 56 (claimant could have obtained ‘light
work’ after four years).
84 Young v Black (2003) Court of Appeal, Jamaica, Civ App No 106/2001 (unreported) [Carilaw
JM 2003 CA 55].
384 Commonwealth Caribbean Tort Law

driving his vehicle, he ought to mitigate his damage by hiring someone to operate
the taxi during the period for which loss of earnings are claimed.85
Another important aspect of the duty to mitigate is that the claimant may be
expected to undergo reasonable medical treatment necessitated by his injuries, if such
treatment is likely to improve his chances of employment or to decrease his loss,
though he will not be expected to submit to a surgical operation which involves a
substantial risk. If a claimant refuses surgery, the court will decide, in the light of the
circumstances of the particular case, whether such refusal was reasonable.
The leading case on this topic in the Caribbean is Selvanayagam v University of the
West Indies.86 The plaintiff in this case, a Professor of Civil Engineering at the Univer-
sity’s St Augustine Campus, fell into an unguarded trench on the campus and
sustained severe injuries to his neck, in addition to other injuries. The University
admitted liability, and one of the main questions before the Privy Council was
whether the plaintiff had acted reasonably in refusing an operation on his neck. The
consultant neuro-surgeon who examined the plaintiff had recommended surgery. In
his opinion, the operation would be ‘not very risky’ and the chances of success would
be ‘quite good’, with movement in the neck increasing after about six months to 80%
of normal, after which the plaintiff would be fit to resume his professional work.
However, the plaintiff was a diabetic, and there was a risk of infection. The surgeon
accordingly was of the view that, in the light of the diabetes complication, the decision
whether to operate or not was best left to the patient. The Privy Council concluded on
the evidence and in the circumstances that the trial judge had correctly held that the
plaintiff had discharged the onus of showing that his refusal of surgery was reason-
able. As Lord Scarman explained:87
Their Lordships do not doubt that the burden of proving reasonableness was on the
[plaintiff]. It always is, in a case in which it is suggested that, had a plaintiff made a
different decision, his loss would have been less than it actually was. The point was
succinctly made in an admiralty case of collision at sea by Lord Merriman P: The
Guildford, SS Temple Bar (owners) v MV Guildford (owners).88 Their Lordships would add a
further comment on the law, well established though it is. The rule that a plaintiff
who rejects a medical recommendation in favour of surgery must show that he acted
reasonably is based on the principle that a plaintiff is under a duty to act reasonably so
as to mitigate his damage. Their Lordships respectfully agree with the opinion
expressed on the point by the High Court of Australia in Fazlic v Milingimbi Community
Inc,89 to which they were helpfully referred by counsel for the appellant. The question

85 Fenton v Blair (2004) Supreme Court, Jamaica, No CL 1995/F-181 (unreported) [Carilaw JM

2004 SC38].
86 [1983] 1 All ER 824. Another aspect of the duty to mitigate is that the injured party is required
to avail himself of medical treatment locally or regionally, and he cannot recover as damages
the cost of treatment overseas, unless the required treatment is proved to be unavailable
locally. Thus, in Johnson v Browne (1972) 19 WIR 382, the plaintiff claimed the cost of medical
treatment in Canada as part of his future medical expenses. The same operation could have
been performed in Jamaica at a significantly lower cost. Douglas CJ said that ‘in the absence of
any reasons for holding that a Jamaican operation would constitute inadequate treatment, I
must hold that any damages the plaintiff recovers for future medical treatment must be on the
basis of the costs of the operation performed in Jamaica, as he is under a duty to mitigate
damage’. This case was followed in Black v AG (2004) High Court, St Lucia, No 2001/0728
(unreported) [Carilaw LC 2004 HC 18] where Hariprashad–Charles J held that the claimant
was not entitled to recover the cost of medical treatment in the United Kingdom.
87 Ibid, p 827.
88 [1956] 2 All ER 915, p 919.
89 (1981) 38 ALR 424, p 430.
 Chapter 14: Damages for Personal Injuries and Death 385

is one of fact and, as already mentioned, the burden of proof is on the plaintiff. In
Richardson v Redpath Brown and Co Ltd 90 Viscount Simon LC said that the material
question is ‘whether the workman [ie the plaintiff] who refuses to be operated upon
is acting reasonably in view of the advice he has received.’ Their Lordships would,
with respect, put the question in more general terms. Though the advice received will
almost always be a major factor for consideration, the true question is whether in all the
circumstances, including particularly the medical advice received, the plaintiff acted
reasonably in refusing surgery. Their Lordships note that in Fazlic’s case91 the High
Court of Australia took the same view.
For these reasons, their Lordships are of the opinion that the Court of Appeal was
wrong to reverse the judge. He was right to treat the question as one of fact and to put
the burden of proof on the [plaintiff]. And there was evidence on which he could
properly conclude that the [plaintiff] had discharged it.

The principles in Selvanayagam were applied by the Eastern Caribbean Court of

Appeal in a St Lucian case, Lansiquot v Geest plc,92 where the plaintiff, an employee
of the defendant, had been injured by falling on a defective stairway in one of the
defendant’s ships. The plaintiff suffered a ‘slipped disc’ and consequent sciatica,
which caused severe and continuing pain. She refused surgery. On the question as
to whether the refusal was reasonable, the evidence was that a specialist in rheuma-
tology had outlined to the plaintiff the ‘pros’ and ‘cons’ of surgical intervention, but
considered that the decision whether to submit to surgery was better left to the plain-
tiff herself, bearing in mind that there was no guarantee that it would cure her back
pain. Satrohan Singh JA, delivering the judgment of the court, concluded that the
plaintiff’s refusal of surgery was not unreasonable in the circumstances. He said:
The Court must approach the evidence on the issue objectively. The burden of proving
that the decision not to have an operation was reasonable, was on the [plaintiff]. Though
the medical advice received will almost always be a major factor for consideration, the
true question is whether, in all the circumstances, including particularly the medical
advice received, the [plaintiff ] acted reasonably in refusing surgery. The evidence on
this issue did not show medical advice that surgery would certainly have cured the
[plaintiff] of her back pains and her sciatica. . . . The acceptance of surgery is a serious
decision for anyone to make. There is always a grave risk involved when the human
body is invaded.
Assessing the evidence objectively, it did not show surgery as being more certain than
not as a relief or a cure for the back pain. It also did not tell the [plaintiff] of the risks
involved, in order to allow the [plaintiff] to make an informed decision, as was done in
Selvanayagam. At best, it showed that the doctors, in all good faith, were seeking to cure
the [plaintiff] by trial and error . . .
From the above observations, it is reasonable to conclude that the [plaintiff] was left in a
state of total uncertainty as to whether or not she could, with more certainty than not,
have been cured by surgery.

The decision of the Court of Appeal in Lansiquot has subsequently been upheld by
the Privy Council;93 however, the most significant aspect of the Privy Council’s
ruling was the strong support given to the criticisms of the Selvanayagam rule, that

90 [1944] 1 All ER 110, p 112.

91 (1981) 38 ALR 424, p 428.
92 (2000) Court of Appeal, Eastern Caribbean States, No 1 of 1999 (unreported) [Carilaw LC 2000
CA 2].
93 [2002] UKPC 48 (PC Appeal No 27 of 2001) sub nom. Geest plc v Lansiquot.
386 Commonwealth Caribbean Tort Law

the onus lies on a plaintiff, who has refused medical treatment, to prove that his
refusal was reasonable. Lord Bingham pointed out that textbook writers and com-
mentators had almost universally preferred those decisions which had put the
onus on the defendant to show that the plaintiff’s refusal of medical treatment was
unreasonable;94 and although the trial judge and the Court of Appeal in this case
had rightly considered the Selvanayagam rule to be binding on them,95 the opposite
view of the onus was ‘soundly based’. On the facts of the instant case, however,
the result would be the same whether the onus lay on the defendant or on the
plaintiff.96

DEATH

The assessment of damages in respect of the death of a victim of negligence is gov-

erned by the fatal accidents legislation of the particular jurisdiction (see below,
Appendix 2). The purpose of such legislation is to ensure that the dependants97 or
near relations of the deceased receive adequate compensation for the material loss
they have suffered as a result of the death. In Lord Wright’s words, this is ‘a hard
matter of pounds, shillings and pence’.98 As in the assessment of loss of future
earnings in personal injuries cases, the courts in fatal accident cases use the multi-
plier/multiplicand approach; but there is a difference, in that whereas in personal
injuries claims the multiplicand is an estimate of the plaintiff’s annual loss of earn-
ings, in fatal accident claims it is an estimate of the annual value of the dependency,99
that is, of the amount which the deceased would have spent on his family. Thus,
the multiplicand in fatal accident claims will usually be lower than in personal injur-
ies actions, because it is necessary to deduct a percentage from the net income
to represent what the deceased would have spent exclusively on himself.100 The multi-
plier will also normally be lower in fatal accident claims, since the court must
take into account not only the age, health and future prospects of the deceased before
his death, but also those of the dependants themselves.101
A comparison of the various fatal accidents statutes in the Commonwealth
Caribbean shows a considerable divergence between the detailed provisions of
each. For instance, whereas the Compensation for Injuries Act (Trinidad and Tobago)

94 Eg, Richardson v Redpath [1944] 1 All ER 110; Morris v Gutzmore (1992) Supreme Court,
Jamaica, No CL 1990/M131 (unreported), per Cooke J; Rodney v Binnie-Palmer (2005) Supreme
Court, Jamaica, No HCV 1980 of 2004 (unreported) [Carilaw JM 2005 SC 27], per Mangatal J.
95 See also Maharaj v Bishop (1985) High Court, Trinidad and Tobago, No 4546 of 1982
(unreported) [Carilaw TT 1985 HC 107] where Deyalsingh J considered himself to be bound
by the ruling in Selvanayagam putting the onus of proof on the plaintiff. On the facts of
Maharaj, which also featured a diabetic plaintiff, the refusal of surgery was held to be reason-
able, as the medical opinions were conflicting.
96 One suspects that this would be so in most cases.
97 It has been held that a ‘common law wife’ was not a dependant within the Compensation
for Injuries Act, Ch 8:05 (Trinidad and Tobago). See Samuel v Surajh (2002) High Court,
Trinidad and Tobago, No 2656 of 1998 (unreported) [Carilaw TT 2002 HC 68].
98 Davies v Powell Duffryn Associated Collieries Ltd [1942] 1 All ER 657, p 665.
99 Khan v Khan [1974] LRG 287, Court of Appeal, Guyana, p 291.
100 Harris v Empress Motors Ltd [1983] 3 All ER 561, followed in Pilgrim v Transport Board (1990)
25 Barb LR 122 (High Court, Barbados).
101 In Mallet v McMonagle [1969] 2 All ER 178, Lord Diplock referred to a multiplier of 16 as
one rarely exceeded.
 Chapter 14: Damages for Personal Injuries and Death 387

and the Accident Compensation (Reform) Act (Barbados) provide a cause of action
for the benefit of ‘dependants’ of the deceased,102 the Fatal Accidents Act (Jamaica)
gives a cause of action for the benefit of the deceased’s ‘near relations’. Again,
whereas the limitation period for fatal accident claims is three years from the date of
the death under the Bahamian Act and three years from the time that the cause
of action arose under the Barbadian Act, it is four years from the date of the death
under the Trinidadian statute. Further, the Barbadian statute differs from the others,
in that:
(a) it includes a provision for an award of compensation for loss of guidance, care and
companionship;103 and
(b) it gives a cause of action to dependants in respect of injury or death.104

The cause of action

The statutes provide that an action for damages with respect to a fatal accident
must be brought on behalf of the dependants by and in the name of the executor or
administrator of the deceased but (a) where there is no such executor or administrator,
or (b) no action is instituted by the executor or administrator within 6 months of the
death, any dependant who is entitled to benefit under the legislation may sue in
his own name on behalf of himself and the other dependants.105 Accordingly, the
dependants may not themselves institute an action unless the circumstances in either
(a) or (b) are shown to exist.

102 See Cumberbatch, J (1988) 17 Anglo-Am LR 316.

103 Section 8 provides for recovery of ‘an amount to compensate for the loss of guidance, care
and companionship that the dependants might reasonably have expected to receive from the
injured person if the injury had not occurred’. It is perhaps surprising that the wording of the
section specifies the injury rather than the death of the victim. However, in reality it will most
often be the death of the victim which will deprive the dependants of guidance and compan-
ionship, as in McCarthy v Barbados Light and Power Co Ltd (1988) 23 Barb LR 504 (High Court,
Barbados), where Husbands J (Ag) described the deceased as a good family man, helping the
children with their schoolwork and acting as their sports coach, doing maintenance work
around the house, and being ‘sadly missed by his widow who says that his sudden passing
left her with a feeling of incompleteness’. Accordingly, Husbands J made a substantial award
in favour of the deceased’s widow, and smaller ones in favour of his children and elderly
parents. An award under this head may also be made in the case of the death of a child, as in
Kellman v Augustine (2004) High Court, Barbados, No 1119 of 2003 (unreported) [Carilaw BB
2004 HC 25], where Moore J referred to the judgment of Williams J in Sisnett v Gittens (1985)
High Court, Barbados, No 365 of 1983 (unreported) [Carilaw BB 1985 HC 57], in which
Williams J had said that ‘children are extremely important as teachers of their parents as well
as vice versa and, where the evidence supports it, an award can include a sum for the
guidance that a child can give to a parent . . . Care is a concept that can apply, on proper
evidence, among all the members of a family’ and ‘Companionship with one’s children [is]
one of the most prized of human experiences, the loss of which is one of life’s greatest losses.’
Accordingly, in Kellman, Moore J made substantial awards in favour of the mother, father and
siblings of the deceased child, and smaller awards in favour of other family members. See
also Lee v Phillips (1993) High Court, Barbados, No 1171 of 1985 (unreported) [Carilaw BB
1993 HC 39], where Chase J adverted to the unique circumstances of the case, in which the
deceased was ‘highly trained and experienced in a field relevant to the case of her disabled
brother and committed to caring for him and to sharing the concerns of her parents for his
future welfare’.
104 See s 3. In Toppin v Jordan (1991) 51 WIR 16, p 18, King J (Ag) pointed out that it had been
customary to use the Barbados Act purely in circumstances where a person died as a result
of an accident. Toppin appears to be the only case in which an action under the Act was
entertained in favour of the dependants of a living, injured person
105 Ch 61 (The Bahamas), s 4(2); Cap 193A (Barbados), s 6; FAA (Jamaica), s 4(1); Ch 8:05
(Trinidad and Tobago), s 4; Cap 99:05 (Guyana), ss 4, 6.
388 Commonwealth Caribbean Tort Law

Although the cause of action under the statutes exists for the benefit of the
dependants themselves, it is available only where the circumstances of the deceased’s
death were such that, had the deceased been injured but not killed, he could have
sued in respect of his injuries. Thus the dependants will have no cause of action
if the deceased would have had no claim: where, for instance (i) he had been killed
entirely as a result of his own carelessness; (ii) he had by contract or otherwise
excluded the defendant’s liability;106 or (iii) he had, before his death, accepted com-
pensation from the defendant in full settlement of his claim.107 Nor will they have a
cause of action if the deceased had actually obtained judgment in an action in tort
against the defendant.108

What is recoverable

As to what is recoverable, the various Caribbean statutes employ widely differing

phraseology. In substance, they enable the court to award such damages to each of the
dependants as the court considers appropriate,109 including provision for reasonable
funeral expenses.110 However, since the Acts do not specify the principles on which
the damages are to be assessed, the court will employ the common law test, that is
that damages must be calculated ‘in reference to a reasonable expectation of pecuni-
ary benefit as of right, or otherwise, from the continuance of the life’.111 Accordingly, if
the relatives claiming compensation are unable to prove that they have suffered any
pecuniary loss, they will recover nothing. Thus where a son, who worked for his
father for a full-time wage under a contract of employment, was killed, the father was
unable to claim compensation under the fatal accidents legislation since, although
by the death he had lost his son’s services, he could not show any loss of pecuniary
benefit, since he had paid full wages for those services.112 On the other hand, there
would be a loss of a ‘reasonable expectation of pecuniary benefit’ where a deceased
son had voluntarily assisted his father in the latter’s work,113 or where he had given
his father money during the father’s period of unemployment,114 or where a deceased
wife had gratuitously performed normal household duties, for which the husband
would otherwise have had to pay.115 Further, it is not necessary to show that the
deceased had actually conferred a pecuniary benefit on the dependant during his
lifetime. It is sufficient to show that there was a reasonable probability (as distinct
from a remote possibility) that the benefit would have been conferred. Thus, for
example, where the deceased, an intelligent 16-year-old girl who lived with her

106 The Stella [1900] P 161.

107 Read v Great Eastern Rly (1868) LR 3 QB 555.
108 Murray v Shuter [1972] 1 Lloyd’s Rep 6.
109 See Ch 61 (The Bahamas), s 5; FAA (Jamaica), s 4(4); Ch 8:05 (Trinidad and Tobago), s 7.
110 Ch 61 (The Bahamas), s 5(2); Cap 193A (Barbados), s 8(c); FAA (Jamaica), s 4(5)(a); Cap 99:05
(Guyana), s 3(3).
111 Franklin v South Eastern Rly (1858) 3 H&N 211, p 213; Kassam v Aerated Water Co Ltd [1965]
2 All ER 875; Greaves v Corbin (1987) High Court, Barbados, No 972 of 1982 (unreported), per
Chase J [Carilaw BB 1987 HC 66]; Gittens v Interage Ltd (1995) High Court, Barbados, No 414
of 1992 (unreported), per Belgrave J [Carilaw BB 1995 HC 4].
112 Sykes v North Eastern Rly (1875) 44 LJCP 191.
113 Franklin v South Eastern Rly (1858) 3 H&N 211.
114 Hetherington v North Eastern Rly (1882) 9 QBD 160.
115 Berry v Humm [1915] 1 KB 627.
 Chapter 14: Damages for Personal Injuries and Death 389

parents, was about to complete an apprenticeship as a dressmaker and had the pro-
spect of earning a substantial wage, the parents were able to show loss of a reasonable
probability of pecuniary benefit.116

Assessment of damages

The courts have a wide discretion as to the method of assessment of damages under
the fatal accidents legislation. Although in principle the pecuniary loss to each
dependant ought to be separately assessed, in practice the courts frequently calculate
the total liability of the defendant, then apportion the damages as between the vari-
ous dependants.117 In order to arrive at a lump sum representing the value of the
dependency, the courts employ the multiplicand/multiplier method, in a way simi-
lar to that used in calculating loss of future earnings in personal injuries actions.
Accordingly, the court will first identify the deceased’s salary at the date of death, net
of tax and national insurance contributions, then deduct the amount which the
deceased would have spent exclusively on himself. The remainder will constitute the
multiplicand. The court must then apply the appropriate multiplier, based on such
factors as the likely duration of the dependency and the deceased’s pre-accident
working life expectancy.118 In McCarthy v Barbados Light and Power Co Ltd 119 for
example, the deceased was 48 years old at the time of his death, and described as the
‘breadwinner’ of the family. He had been employed by IBM Corp as a product con-
trol planning administrator at a gross annual salary of US $38,000. His promotional
prospects had been good, and he had been in good health. Husbands J approached
the matter of assessment thus:
The starting point is the amount of wages which the deceased was earning, the ascer-
tainment of which to some extent may depend on the regularity of his employment.
Then, there is an estimate of how much was required or expended for his own personal
and living expenses. The balance will give a datum or basic figure which will generally
be turned into a lump sum by taking a certain number of years’ purchase.
The starting point here is readily ascertained. The deceased was on the permanent
establishment of IBM, which has produced figures of his net earnings which have not
been questioned. Following the guidelines in Cookson v Knowles,120 I propose to adopt
a multiplier as at the date of death of the deceased and then assess the award having
regard to the pre-trial and post-trial losses. Mindful of the age, good health and
promotional prospects of the deceased, as well as the ages and general well being of
the dependants, I am of the view that 12 is an appropriate multiplier in this case.
In determining pre-trial loss, that is to say, the loss between death and the date of trial, I
have been greatly assisted by the figures [of the deceased’s net earnings] to which I have
just referred. Death took place in February 1985; the trial in October 1988; a period of
three years. The projected net income of the deceased for this period is set out in Exhibit
32(a) as follows:

116 Taff Vale Rly v Jenkins [1913] AC 1.

117 See, eg, Maraj v Samlal (1982) High Court, Trinidad and Tobago, No 1058 of 1973
(unreported), per Narine J [Carilaw TT 1982 HC 92]; McCarthy v Barbados Light and Power Co
Ltd (1988) 23 Barb LR 504, per Husbands J.
118 See, eg, Lee v Phillips (1993) High Court, Barbados, No 1171 of 1985 (unreported), per Chase J
[Carilaw BB 1993 HC 39].
119 (1988) 23 Barb LR 504.
120 [1978] 2 All ER 604.
390 Commonwealth Caribbean Tort Law

Year Net pay US$

1985 29,994.42
1986 33,645.00
1987 37,298.30
1988 39,574.50 (two-thirds of which is relevant for those purposes)
26,383.00

making a total of $127,320.72. To this must be added the average annual benefit (for
medicals, surgical, dental and holidays) of $13,694, which was estimated to increase
an average of $1,036 per year. For three years, those benefits would be $55,390. Added
to this also must be the sum for the gratuitous services rendered by the deceased
as handyman in the home; services for which the widow now has had to pay. She
estimates the cost at US$1,200 per annum or $4,400 for the relevant period. These sums,
$127,320.72 + $55,390 + $4,400, amount to $187,110.72. From this must be deducted an
amount estimated as required or expended by the deceased for his own personal and
living expenses. In the circumstances of his case, I would deduct 25%, leaving a balance
of $140,333.04 as pre-trial loss.
For post-trial loss, the multiplicand is assessed as at the date of trial and is based on the
income which the deceased would have received. According to Exhibit 32(a), his net
annual salary would then have been $39,574.50, which figure has to be adjusted
upwards to allow for the possibility of future increases due to promotion. I would adopt
$41,000 as the multiplicand.

Survival of actions

The general rule at common law was that personal actions died with the individual
who could bring them (or against whom they could be brought). Thus, an action for
damages for personal injuries did not survive the death of the victim, and the latter’s
estate had no claim against the wrongdoer. In England and Wales, s 1(1) of the Law
Reform (Miscellaneous Provisions) Act 1934 altered this rule by providing that all
causes of action (with the exception of defamation) survived the death of the plaintiff
or the defendant. Thus, an action for damages for personal injuries can now be
brought by the estate of the deceased victim. Similar provisions have been enacted
in most Commonwealth Caribbean jurisdictions.121 A conventional sum as damages
for loss of expectation of life is recoverable, even where death is instantaneous.122
An action brought by the estate of a deceased plaintiff is dealt with on the same
basis as if the plaintiff were alive. Thus, the measure of damages is generally the same
as for a living plaintiff. The estate can recover for any expenses incurred or loss of
earnings attributable to the tort up to the date of death. Similarly, damages for pain
and suffering and loss of amenities up to the date of the death are recoverable.

121 See, eg, Law Reform (Miscellaneous Torts) Act, Cap 167, s 2 (Grenada); Law Reform
(Miscellaneous Provisions) Act, Cap 205, s 2 (Barbados); Law Reform (Miscellaneous
Provisions) Act, Cap 6:02, s 12 (Guyana); Causes of Action (Survival) Act, Cap 10, s 2(1) (BVI);
Law Reform (Miscellaneous Provisions) Act, s 2 (Jamaica); Survival of Actions Act, Ch 79, s 2
(The Bahamas).
122 Benham v Gambling [1941] 1 All ER 7; Grant v Samuel (1998) High Court, British Virgin Islands,
No 72 of 1996 (unreported), where Benjamin J emphasised that the courts should exercise
moderation in making awards for loss of expectation of life where the victim has died.
 Chapter 14: Damages for Personal Injuries and Death 391

In order to prevent double recovery, where the beneficiaries of the estate and the
dependants of the deceased are the same persons, any damages received by them
under the Law Reform (Miscellaneous Provisions) Act 1934 claim in respect of pain
and suffering, loss of amenities, loss of expectation of life and loss of future earnings
(but not loss of past earnings or other special damage) must be deducted from their
Fatal Accidents Act damages.123
It was held in Gammell v Wilson 124 that a claim for loss of earnings in the ‘lost
years’, that is, those years during which, but for the accident, the plaintiff would
probably have lived, survived for the benefit of the estate under the Law Reform
(Miscellaneous Provisions) Act 1934 claim. This principle has been applied in
Jamaica,125 Trinidad and Tobago126, St Lucia127 and the British Virgin Islands.128 In
England and Wales, s 4(2) of the Administration of Justice Act 1982 now provides
that damages for the ‘lost years’ are no longer recoverable by the estate, and similar
provisions have been enacted in Barbados129 and Guyana.130

123 Kandalla v British Airways Board [1980] 1 All ER 341; Modeste v Jacobs (2004) High Court,
Grenada, No HCV 2000/0582 (unreported) [Carilaw GD 2004 HC 20]; Administrator General v
Shipping Association of Jamaica (1983) Supreme Court, Jamaica, No CL 1979/A-018
(unreported); Greaves v Corbin (1987) High Court, Barbados, No 972 of 1982 (unreported)
[Carilaw BB 1987 HC 66]; Khan v Khan [1974] LRG 287 (Court of Appeal, Guyana); Dyer v
Stone (1990) 27 JLR 268 (Court of Appeal, Jamaica); Daley v AG (2005) Supreme Court,
Jamaica, No CLD 044 of 1999 (unreported) [Carilaw JM 2005 SC 4].
124 [1981] 1 All ER 578.
125 Jamaica Public Service Co Ltd v Morgan (1986) 44 WIR 310; Hibbert v AG (1988) 25 JLR 429; Daley
v AG (above fn 123).
126 Samuel v Surajh (2002) High Court, Trinidad and Tobago, No 2656 of 1998 (unreported).
127 Mathurin v Augustin (2008) Court of Appeal, OECS, No HCVAP 2001/041 (unreported).
128 See Grant v Samuel (1998) High Court, British Virgin Islands, No 72 of 1996 (unreported).
129 Law Reform (Miscellaneous Provisions) Act, Cap 205, s 2(4)(b) (Barbados).
130 Law Reform (Miscellaneous Amendments) Act 1988, Cap 205, s 4(1)(a) (Guyana).
 APPENDIX 1

DIGEST OF ADDITIONAL COMMONWEALTH

CARIBBEAN CASES

ASSAULT, FALSE IMPRISONMENT AND

MALICIOUS PROSECUTION
AG v Charlton (1985) Court of Appeal, Jamaica, Civ App No 85/83
Arrest – plaintiff detained at airport – accused of taking foreign currency out of
country – no reasonable cause for arrest.
AG v Francis (1999) Court of Appeal, Jamaica, Civ App No 13 of 1995
Assault and battery – constable shot and wounded plaintiff – exemplary damages
awarded.
Ali v AG (1982) High Court, Trinidad and Tobago, No 1993 of 1978 [Carilaw TT 1982
HC 84]
Arrest and prosecution for using obscene language and resisting police officer –
whether claim barred by Public Authorities Protection Ord, Ch 9, No 4, s 2 – whether
arrest justified under Summary Courts Ord, Ch 3, No 4, s 104 and Police Service Act,
Ch 15:01, ss 35, 36 – malice established – award of exemplary damages.
Atkinson v AG (1990) 27 JLR 463
Malicious prosecution – plaintiff arrested and charged with larceny – charge
dismissed – failure to prove absence of reasonable and probable cause.
Bennett v Bernard (1963) 8 JLR 227 (Court of Appeal, Jamaica)
Malicious prosecution – no evidence that defendant instituted criminal proceedings
against plaintiff.
Burroughs v AG (1990) TTLR 135 (High Court, Trinidad and Tobago)
Malicious prosecution – Commissioner of Police charged with unlawful killing and
drug offences – whether reasonable and probable cause for prosecution – prosecutor
acting on advice of special counsel as well as DPP and Attorney General – no absence
of reasonable cause.
Bushell v Port Authority of Trinidad and Tobago (1998) 56 WIR 460 (Court of
Appeal, Trinidad and Tobago)
Estate constable – detention of suspects – not classed as police officer – whether
employer, not state, vicariously liable.
Carrington v Karamath (1985) 38 WIR 306 (Court of Appeal, Trinidad and Tobago)
Arrest without warrant – plaintiff not told reason for arrest – aggravated and
exemplary damages.
Charles v AG (1973) High Court, St Vincent, No 138 of 1972 [Carilaw VC 1973 HC 014]
Arrest – plaintiff detained at airport by immigration officer – prosecution for attempt-
ing to leave country without tax exit certificate – reasonable cause to suspect
commission of offence.
Deen v McDonald [1950] LRBG 72 (West Indian Court of Appeal)
Malicious prosecution – charge of perjury dismissed – no genuine belief in guilt of
plaintiff – onus of proof of lack of reasonable and probable cause.
 Appendix 1: Digest of Additional Commonwealth Caribbean Cases 393

Gaynor v Cable and Wireless Jamaica Ltd (2005) Supreme Court, Jamaica, No CL
2000/G-124 [Carilaw JM 2005 SC 110]
Employee arrested and charged with larceny of telephones – convicted in Resident
Magistrate’s Court – conviction overturned on appeal – defendant liable for false
imprisonment – not liable for malicious prosecution – successful appeal did not
establish lack of reasonable and probable cause.
Harripaul v AG (1985) High Court, Trinidad and Tobago, No 1722 of 1978 [Carilaw
TT 1985 HC 6]
Arrest and prosecution for theft and possession of marijuana – powers of arrest under
Police Service Act, Ch 15:01, s 36(1), Larceny Act, Ch 11:12, Narcotic Control Ord,
Ch 27 of 1961, Summary Offences Act, Ch 11:02 – plaintiffs wrongfully arrested –
police concocted story implicating plaintiffs – no reasonable cause for arrest or
prosecution – malice established – damages awarded for indignity and humiliation
of facing charges.
Hills v AG (1980) High Court, Trinidad and Tobago, No 1009 of 1974 [Carilaw TT
1980 HC 89]
Arrest and charge – plaintiff arrested without being made aware of charges against
him – malicious prosecution – no reasonable and probable cause.
Hobbins v AG (2007) Supreme Court, Jamaica, No 1998/H196 [Carilaw
JM 2007 SC 6]
False imprisonment and malicious prosecution – car dealer arrested and charged with
fraudulent conversion – no reasonable and probable cause for arrest and charge.
Irish v Barry (1965) 8 WIR 177 (Court of Appeal, Trinidad and Tobago)
Arrest without warrant – whether reasonable cause for believing plaintiff guilty of
theft of $5 note – relevance of respectability and standing of plaintiff in community.
Lopez v Orange Grove National Co Ltd (1975) High Court, Trinidad and Tobago,
No 370 of 1974 [Carilaw TT 1975 HC 13]
Arrest without warrant – charge of larceny – power of arrest for estate sergeant under
Supplemental Police Ord, Ch 11, No 2, s 14 – reasonable cause to suspect plaintiff.
Mackey v Thompson (1994) Supreme Court, The Bahamas, No 977 of 1990 [Carilaw
BS 1994 SC 107]
Malicious prosecution – charge of disorderly behaviour and obstruction of police
officers – whether reasonable and probable cause.
Marshall v Thompson and AG (1979) 16 JLR 479 (Supreme Court, Jamaica)
False imprisonment – plaintiff arrested under Suppression of Crime (Special
Provisions) Act, s 4(1)(c) – whether reasonable suspicion of plaintiff’s guilt – question
of fact – reasonable suspicion not to be equated with prima facie proof – detention
justified.
Marston v Wallace [1960] GLR 277 (Court of Appeal, Jamaica)
Arrest in pursuance of search warrant – whether reasonable cause for arrest – defence
under Constabulary Force Law, Cap 72, s 39.
Morgan v AG (2002) Supreme Court, Jamaica, No CL 1995/M076 [Carilaw
JM 2002 SC 70]
Arrest warrant – charge for possession and dealing with cocaine – whether reasonable
and probable cause for prosecution.
394 Commonwealth Caribbean Tort Law

Narayan v Kellar [1958] LRBG 45 (Supreme Court, British Guiana)

Arrest without warrant – Police Ord, Ch 77, s 25 – meaning of ‘found committing’ –
Cummings v Demas (1950) 10 Trin LR 43 followed.
Navarro v Vialva (1981) High Court, Trinidad and Tobago, No 3749 of 1979 [Carilaw
TT 1981 HC 57]
Malicious prosecution – whether investigating officer had reasonable and probable
cause for prosecuting – not necessary for officer to have first-hand knowledge –
reasonable to rely on statement by patient in psychiatric hospital.
Palmer v Morrison [1963] Gleaner LR 150 (Court of Appeal, Jamaica)
Arrest by constable – whether reasonable and probable cause – failure to give reasons
for arrest – rule in Christie v Leachinsky.
Rajkumar v Babooram (1990) High Court, Trinidad and Tobago, No 818 of 1979
[Carilaw TT 1990 HC 38]
Malicious prosecution – family feud – reasonable cause for prosecution.
Ramkissoon v Sorias (1970) High Court, Trinidad and Tobago, No 2170 of 1968
[Carilaw TT 1970 HC 20]
Arrest without warrant – plaintiff playing cards, arrested for gambling – Police Service
Act, No 30 of 1965, s 36(1) – no reasonable cause for arrest or prosecution.
Rhymer v Commissioner of Police (1999) Court of Appeal, British Virgin Islands,
Civ App No 13 of 1997 [Carilaw VG 1999 CA 2]
Arrest for alleged disorderly conduct on private property – constable liable for false
imprisonment.
Robinson v AG (1981) High Court, Trinidad and Tobago, No 941 of 1976
Political meeting – arrest and prosecution of party leader after dispersal of
meeting – whether arrest justified under Police Service Act 1965, s 35 or Summary
Courts Ord, Ch 3, No 4, s 104 – whether reasonable suspicion of commission of
offence – police sergeant acting on orders of superiors – absence of reasonable and
probable cause.
St Bernard v AG (1996) High Court, Grenada, No 306 of 1995 [Carilaw GD
1996 HC 16]
Attorney-at-law wrongfully arrested and humiliated by constable in a public place –
award of aggravated damages.
Sakal v Attorney General (2000) High Court, Trinidad and Tobago, No 1377 of 1993
[Carilaw TT 2000 HC 45]
Malicious prosecution – whether reasonable and probable cause – information from
eye witnesses – issue of arrest warrant rather than summons not evidence of malice.
Small v Trinidad Tesoro Petroleum Co Ltd (1978) High Court, Trinidad and Tobago,
No 540 of 1972 [Carilaw TT 1978 HC 71]
Arrest and charge under Summary Offences Ord, Ch 4, No 17, s 36 – whether
reasonable cause for arrest – plaintiff aware of reason for arrest – no evidence of
malice – action for false imprisonment and malicious prosecution failed.
Tookai v Gordon (1994) High Court, Trinidad and Tobago, No 1542 of 1984 [Carilaw
TT 1994 HC 29]
Assault and arrest – plaintiff knocked off motorcycle by constable – no reasonable
or probable cause for arrest on suspicion of murder – award of aggravated damages.
 Appendix 1: Digest of Additional Commonwealth Caribbean Cases 395

Tynes v Barr (1994) 45 WIR 7 (Supreme Court, The Bahamas)

Assault, battery and false imprisonment – attorney-at-law unlawfully arrested by
constables in humiliating circumstances – award of aggravated damages.
Wills v Voisin (1963) 6 WIR 50 (Court of Appeal, Trinidad and Tobago)
Malicious prosecution – no proof of lack of honest belief in guilt of plaintiff – defendant
acting under authority of search warrants.

NEGLIGENCE

Airline Freight Services Ltd v Morris (2005) Court of Appeal, Barbados, No 25 of

1997 [Carilaw BB 2005 CA 22]
Negligence of independent contractor – dangerous obstruction on ramp – whether
extra-hazardous activity – whether collateral negligence.
Alfred v Mahabir (1987) High Court, Trinidad and Tobago, No 158 of 1980
Dilemma principle – rule in Jones v Boyce – plaintiff cyclist not guilty of contributory
negligence in failing to ride off road to avoid collision.
Bartlett v Cain (1983) 18 Barb LR 158 (High Court, Barbados)
Res ipsa loquitur – car mounting pavement and striking pedestrian – car skidding on
wet road when taking curve – excessive speed – presumption of negligence not
rebutted.
Beharry v BWIA International Airways Ltd (No 1) (2006) Court of Appeal, Trinidad
and Tobago, Civ App No 27 of 2003 [Carilaw TT 2006 CA 31]
Negligence – injury to off-duty flight engineer while inspecting aircraft’s hydraulic
system – whether duty of care owed by employer.
Blooming Things Ltd v Caribbean Boring and Diamond Drilling Ltd (1989)
26 JLR 323
Negligent misstatement – erroneous report on suitability of well – reliance on
report – whether relationship of proximity sufficient to give rise to duty of care.
Boyce v Forde (1993) High Court, Barbados, No 151 of 1981
Pedestrian crossing road – duty of car driver to slow down or sound horn – driver not
entitled to assume care by pedestrian.
Brathwaite v Harris (1973) 8 Barb LR 59 (Divisional Court, Barbados)
Res ipsa loquitur – double collision – negligence of two drivers combined to damage
plaintiff’s car – presumption of negligence not rebutted.
Charran v Singh (1981) 30 WIR 148 (Court of Appeal, Guyana)
Road accident – vehicles colliding in middle of road – plaintiff driver contributorily
negligent – 20% apportionment.
Coelho v Agard (1975) High Court, Trinidad and Tobago, No 2394 of 1973 [Carilaw
TT 1975 HC 28]
Road accident – res ipsa loquitur – collision with stationary vehicle on highway in
daylight is prima facie evidence of negligence.
Crossbourne v Jamaica Rly Corp (1981) Supreme Court, Jamaica, No CL C-019 of 1978
Railway crossing – collision between train and van – train sounded diesel horn on
approaching crossing – no negligence on part of train driver.
396 Commonwealth Caribbean Tort Law

Genas v AG (2006) Supreme Court, Jamaica, No CL 1996 G-105 [Carilaw JM 2006

SC 98]
Medical negligence – failure to explain risk to patient – failure to move patient to
specialist unit.
Ghanesh v Alvarez (2001) High Court, Trinidad and Tobago, No 1455 of 1998
[Carilaw TT 2001 HC 143]
Collision at intersection – burden on driver of vehicle on minor road to disprove
negligence on his part – no duty on driver on major road to slow down when
approaching intersection.
Harrison (CF) and Co Ltd v Barbados Light and Power Co Ltd (1970) 6 Barb LR 39
(High Court, Barbados)
Foreseeability of damage – neither precise extent nor manner of infliction of damage
need be foreseeable – damages – apportionment between several tortfeasors based
upon blameworthiness, not on causation.
Honeyghan v Guardsman Ltd (1973) 30 JLR 437 (Supreme Court, Jamaica)
Road accident – driver alleging owner of vehicle negligent as vehicle defective –
whether res ipsa loquitur applies where particulars of prior knowledge are pleaded.
Jamaica Omnibus Co Ltd v Byndloss (1965) 9 WIR 34 (Court of Appeal, Jamaica)
Bus driver braking suddenly to avoid collision with child – passenger injured – no
negligence on part of driver.
Leacock v Hinds Transport Services Ltd (1987) High Court, Barbados, No 888 of
1984 [Carilaw BB 1987 HC 5]
Trailer parked on highway without lights – car colliding with trailer – negligence of
car driver sole cause of accident.
Mangaria v Pasram (1960) 3 WIR 151 (Federal Supreme Court, Civil Appellate
Jurisdiction, British Guiana)
Road accident – car driven in centre of road at night without right side head lamp –
motorcyclist riding at high speed colliding with car – both parties negligent.
McDonald v Williams (1985) 22 JLR 36 (Supreme Court, Jamaica)
Attorney – settlement with insurers – entry of consent judgment – breach of duty
of care.
Mitchell v Mason (1962) 8 JLR 5 (Supreme Court, Jamaica)
Petrol tanker overturning on highway – van driver stopped near tanker – passenger
in van injured – whether novus actus interveniens.
Palmer v Manchester PC [1965] Gleaner LR 196 (Court of Appeal, Jamaica)
Damage to vehicle – open manhole in road left by council workmen – no warning
notices – council liable in negligence.
Powell v Tomlinson (2004) Supreme Court, Jamaica, No CL P076 of 1999 [Carilaw
JM 2004 SC 12]
Duty of care of school authority – 6-year-old child injured by another pupil in school –
degree of care proportionate to age of child.
Ramkissoon v Griffith (1979) High Court, Trinidad and Tobago, No 1180 of 1974
[Carilaw TT 1979 HC 101]
Pedestrian crossing road – duty of car driver to apply brakes and sound horn – driver
not entitled to assume pedestrian keeping lookout.
 Appendix 1: Digest of Additional Commonwealth Caribbean Cases 397

Ramsey v West Indies Oil Co Ltd (1997) High Court, Antigua and Barbuda, No 247
of 1989
Employee driver delivering liquid propane gas – failure of employer to provide
adequate supervision.
Reid v Forest Industries Development Co Ltd (1998) Court of Appeal, Jamaica, Civ
App No 57 of 1996
Road accident – whether res ipsa loquitur applicable – effect of evidence of expert on
accident reconstruction.
Rolle v Resorts International (Bahamas) Ltd (1994) Supreme Court, The Bahamas,
No 499 of 1991 [Carilaw BS 1994 SC 77]
Duty to provide safe equipment – garbage collector injured by defective pan at
private premises – whether employer liable.
Rose Hall Development Ltd v Robinson (1984) 21 JLR 76 (Court of Appeal, Jamaica)
Occupiers’ liability – independent contractor engaged to do electric wiring –
negligence of contractor – occupier not liable.
Shamrock Trading Co Ltd v AG (1978) 31 WIR 60 (High Court, Barbados)
Duty of care – breach of duty – defendant’s pallets contaminated with weedkiller –
plaintiff’s rice cargo contaminated.
Shrikishun v Drainage and Irrigation Board (1972) High Court, Guyana, No 13 of
1969 [Carilaw GY 1972 HC 22]
Canal controlled by defendant becoming clogged – plaintiff’s land flooded – defend-
ant under statutory duty to maintain canal – breach of duty by defendant – defendant
liable in negligence.
Sibbles v Jamaica Omnibus Services Ltd (1965) 9 WIR 56 (Court of Appeal, Jamaica)
Bus colliding with parked car – res ipsa loquitur – presumption of negligence not
rebutted.
Sobers v Clarke (1980) 15 Barb LR 44 (High Court, Barbados)
Injury to finger – medical treatment – whether doctor negligent – whether novus
actus interveniens.
Tugwell v Campbell [1965] Gleaner LR 191 (Court of Appeal, Jamaica)
Car skidding and overturning – driver applying brakes when confronted with patch
of water – res ipsa loquitur – presumption of negligence not rebutted.
West Indian Hosiery Manufacturing Co Ltd v Pitt (1978) 13 Barb LR 88 (High Court,
Barbados)
Carrier – plaintiff’s machine damaged in transit – onus on carrier to disprove
negligence.
Williams v Wilkins (1974) 12 JLR 1477 (Court of Appeal, Jamaica)
Motor vehicle – bus running backwards down hill – failure of brakes – passenger
injured – res ipsa loquitur applicable – inevitable accident not proved.
398 Commonwealth Caribbean Tort Law

EMPLOYERS’ LIABILITY

Austin v CW Jordan Furniture Ltd (1994) 30 Barb LR 344 (High Court, Barbados)
Apprentice joiner injured by power saw – employer’s failure to provide adequate
training and instructions – liability in negligence and under Factories Act, Cap 34.
Industrial Chemical Co (Jamaica) Ltd v Ellis (1986) 23 JLR 35 (Court of Appeal,
Jamaica)
Negligence – failure of employer to wear protective clothing provided for work in
acid plant – whether employer liable for acid burns.
Johnson v Sterling Products Ltd (1979) High Court, Guyana, No 2952 of 1976
Factory employee’s hand injured by machine – plaintiff’s chair slipped off box, result-
ing in hand being caught – machine uncovered and unguarded – employer
negligent and in breach of statutory duty.
Marshall v Swan Laundry Ltd (1977) High Court, Guyana, No 2441 of 1975 [Carilaw
GY 1977 HC 8]
Negligence – laundry worker’s hand injured by steam pressing machine – machine
defective – unsafe system of work – res ipsa loquitur not applicable.
Paramount Dry Cleaners Ltd v Bennett (1974) 22 WIR 419 (Court of Appeal,
Jamaica)
Negligence – laundry worker’s hand injured by steam-pressing machine – no
evidence of failure to provide safe system of work.
Pearcey v Industrial Gases Ltd (2003) Supreme Court, Jamaica, No CL 2002/P045
Experienced workman – whether employer under duty to warn about dangers.
Reece v West End Concrete Products Ltd (1978) High Court, Trinidad and Tobago,
No 1169 of 1977 [Carilaw TT 1978 HC 85]
Statutory duty – Factories Ord, Ch 30, No 2, s 15 – injury from unfenced cement
mixer – negligence in permitting dangerous condition to continue.
Robinson v YP Seaton and Associates (2004) Supreme Court, Jamaica, No CL 1999/
R047 [Carilaw JM 2004 SC 23]
Employee transported on back of flat-bed truck – careless storing of metal sheets –
employee injured by sheets – whether employer liable for failure to provide safe
system of work.
Skeete v Electroplaters Ltd (1976) 27 WIR 266 (High Court, Trinidad and Tobago)
Factory – dangerous machinery – whether failure to fence rotating wheel amounted
to negligence or breach of statutory duty – Factories Ord, Ch 30, No 2, s 15 –
contributory negligence – whether disobedience to express orders amounted to
contributory negligence.
Sturrup v Resorts International (Bahamas) Ltd (1991) Supreme Court, The
Bahamas, No 83 of 1985 [Carilaw BS 1991 SC 61]
Hotel employee – fall on kitchen mat – no breach of duty by employer.
Thomas v BRC Jamaica Ltd (1990) 27 JLR 242 (Supreme Court, Jamaica)
Factory labourer injured when crane handle flew off rolling machine – failing to
provide safe system of work – breach of statutory duty.
 Appendix 1: Digest of Additional Commonwealth Caribbean Cases 399

Thompson v Revere Jamaica Ltd (1985) Court of Appeal, Jamaica, Civ App No 7
of 1979
Statutory duty to provide safe premises – appellant employee falling in bathroom
provided by employers – Factories Regulations 1961, requiring provision of suitable
washing facilities for employees – employer in breach of duty
Young v Stone and Webster Engineering Ltd (1964) 7 WIR 316 (Court of Appeal,
Jamaica)
Factory – machine being examined by appellant and respondents’ servant – machine
negligently switched on by respondents’ servant – appellant’s hand injured –
appellant guilty of contributory negligence.

NUISANCE AND RYLANDS v FLETCHER

Bookers Central Properties Ltd v Toolsie Persaud Ltd [1966] LRBG 18 (Supreme
Court, British Guiana)
Smoke emitted from defendants’ sawmill incinerator – eyes of workman at plaintiffs’
neighbouring premises affected – no defence that defendants used all possible care.
Chattergoon v Payne (2000) High Court, Trinidad and Tobago, No SCV 923 of 1981
Withdrawal of support from land – whether unreasonable user of land – whether
easement of support acquired.
Clarke v Caribbean Pest Control Ltd (1981) 16 Barb LR 214 (High Court, Barbados)
Smells from pest control company’s premises – evidence of injury to health not
necessary – substantial interference with enjoyment of land.
Danclar v James (1985) High Court, Trinidad and Tobago, No 1910 of 1981 [Carilaw
TT 1985 HC 82]
Interference with easement – privy erected on access road – plaintiff’s user of road
interfered with – liability in nuisance.
Gonsalves v Young [1928] LRBG 54 (Supreme Court, British Guiana)
Smoke from defendant’s chimney – unreasonable interference with neighbour’s
enjoyment of land – chimney not built in conformity with bylaws – no damage –
injunction granted.
Longden v Simon (1988) High Court, Trinidad and Tobago, No 275 of 1985
Damage to building from vibrations – fact that building is old does not justify
damage – cost of repairs recoverable.
Manboard v Salabie (1969) 15 WIR 132 (Court of Appeal, Jamaica)
Escape of fire – no proof that defendant started fire on his land – no evidence of
negligence – Rylands v Fletcher not applicable.
McKoy v Burke (1981) 18 JLR 285 (Supreme Court, Jamaica)
Interference with right of support – negligent excavation by builder – non-delegable
duty under Dalton v Angus.
Neblett v Worrell (1981) 16 Barb LR 260 (High Court, Barbados)
Smells from animal husbandry – interference with plaintiff’s enjoyment of land not
substantial – no liability in nuisance.
400 Commonwealth Caribbean Tort Law

Piper v Seepersad (1987) High Court, Trinidad and Tobago, No 793 of 1980 [Carilaw
TT 1987 HC 122]
Wrongful diversion of watercourse – flooding of plaintiff’s premises – liability in
negligence and nuisance.
St James Coast Estates Ltd v Sunset Crest Rentals Ltd (1977) 29 WIR 18 (High Court,
Barbados)
Pleading – interference with enjoyment of land – owner of land affected must plead
and prove his occupation of the land.
Samaroo v Woo Sam [1931] LRBG 1 (Supreme Court, British Guiana)
Escape of sparks from chimney of rice mill – damage to thatched house – Rylands v
Fletcher applicable – statutory authority defence – defendant failed to prove he
carried out operations without negligence – defendant liable.
Scott v Syndicated Developers Ltd (1999) Supreme Court, Jamaica, No J 264 of 1993
[Carilaw JM 1999 SC 50]
Seepage of water from apartment above – award for annoyance and discomfort –
proper measure of damages.
Sides v Barbados Light and Power Co Ltd (1985) 20 Barb LR 129 (High Court,
Barbados)
Fire – escape of electricity from power lines – isolated event can amount to nuisance –
defendant liable for damage to house.

DEFAMATION

Astaphan v Beach (2000) High Court, St Christopher and Nevis, No 22 of 1993

(unreported)
Libel – newspaper report that plaintiff not a qualified barrister – plaintiff’s name
omitted in error from Admission Roll – defendant liable.
Caven v The Gleaner Co Ltd (1983) Court of Appeal, Jamaica, Civ App No 8 of 1980
[Carilaw JM 1983 CA 2]
Libel – defamatory speech at union meeting reported in newspaper – Defamation
Act, s 9 – qualified privilege – malice – belief in truth or falsity of defamatory allega-
tions not decisive of question of malice – duty to publish in public interest.
Collymore v The Argosy Co Ltd [1956] LRBG 183 (Supreme Court, British Guiana)
Libel – judicial proceedings – inaccurate report in newspaper of statement made by
prisoner from dock during trial – malice inferred.
Gleaner Co Ltd v Abrahams (2000) Court of Appeal, Jamaica, Civ App No 70 of 1996
[Carilaw JM 2000 CA 25]
Libel – public official accused of corruption – aggravated damages awarded.
Gonsalves v The Argosy Co Ltd [1953] LRBG 61 (Supreme Court, British Guiana)
Libel – ‘rolled up’ plea is plea of fair comment only – newspaper article imputing
dishonourable motives to member of Legislative Council – defence of fair comment
failed.
Hill v Tull (1991) 26 Barb LR 121 (High Court, Barbados)
Slander – allegation at public meeting during election campaign that store owner
corruptly distributed contaminated rice to constituents.
 Appendix 1: Digest of Additional Commonwealth Caribbean Cases 401

Hylton v Maitland (1996) Supreme Court, Grenada, No 166 of 1991 [Carilaw GD

1996 HC 36]
Libel – imputation of ‘sinister fanaticism’ on part of DPP in seeking convictions – not
fair comment.
Jacks v First National City Bank (1979) Supreme Court, Jamaica, No CL J-016/75
Information given to radio reporter – statement that plaintiff ‘disciplined’ by his
employers – words defamatory – privileged occasion – mere proof of falsity of state-
ment not evidence of malice.
Miller v Seymour [1985] CILR 402 (Grand Court, Cayman Islands)
Slander – election candidate called a ‘thief ’ – repetition of slander and refusal to
apologise – aggravated damages.
The Montserrat Reporter Ltd v Howe (1993) Court of Appeal, Montserrat, Civ App
No 2 of 1991
Libel – allegation that government minister was ‘puppet’ of Prime Minister – no
basis for reversing trial judge’s findings of fact.
Nabarro v Powell (1994) Court of Appeal, British Virgin Islands, Civ App No 8 of
1994 [Carilaw VG 1994 CA 9]
Libel – imputation in statutory declaration to Registrar of International Business
Corporations – whether defamatory
Persaud v Parsley [1948] LRBG 91 (High Court, British Guiana)
Libel – defamatory letter sent by district engineer to employee in reply to letter
accusing overseer of accepting bribes – privileged occasion – excessive statement
remained within privilege, and material only as evidence of malice.
Sultan-Khan v Trinidad Publishing Co Ltd (1987) High Court, Trinidad and
Tobago, No 5293 of 1986 [Carilaw TT 1987 HC 155]
Libel – pleading – fair comment – whether defendant should plead that publication
made without malice – status of ‘rolled up’ plea – not necessary to expressly plead
truth of facts on which comments were based.
Sykes v Guardian Insurance Brokers Ltd (1999) Supreme Court, Jamaica, No S 115
of 1991 [Carilaw JM 1999 SC 52]
Libel – letter from insurance broker alleging dishonesty and inefficiency on part of
general manager of insurance company – qualified privilege – evidence of malice.
Taylor v The Advocate Co Ltd (1965) 9 WIR 139 (High Court, Barbados)
Libel – report of disciplinary proceedings against municipal officer – not matter of
public interest.
Tudor v The Advocate Co Ltd (1997) High Court, Barbados, No 1316 of 1992
[Carilaw BB 1997 HC 11]
Libel – imputation that politician ‘could not make up his mind’ – not defamatory.
Williams v Best (1997) 33 Barb LR 326 (High Court, Barbados)
Libel – imputation in a newspaper of bias on the part of Chief Justice – whether
permissible under right of freedom of expression
402 Commonwealth Caribbean Tort Law

VICARIOUS LIABILITY

Administrator General v Tate (1988) 27 WIR 172 (Supreme Court, Jamaica)

Motor vehicle – employee killed whilst being given lift in employer’s vehicle – driver
not acting outside course of employment – employer liable.
Barrow v Melville [1933] JLR 13 (Full Court, Jamaica)
Motor vehicle – servant allowed 11-year-old boy to drive van – collision caused by
boy’s negligence – employer vicariously liable.
Brown v Stamp (1968) 13 WIR 146 (Court of Appeal, Jamaica)
Motor vehicle – rule in Barnard v Sully – driver presumed to be agent of owner –
presumption not rebutted.
Bushell v Chefette Restaurants Ltd (1978) 13 Barb LR 110 (High Court, Barbados)
Motor vehicle – lift given to company’s employee – company liable for driver’s
negligence.
Carew v United British Oilfields of Trinidad Ltd (1950) Trin LR 28 (High Court,
Trinidad and Tobago)
Independent contractor – tree-felling operation – plaintiff invitee injured – non-
delegable duty of employer.
Clinton v Russell (1975) High Court, Trinidad and Tobago, No 790 of 1973 [Carilaw
TT 1975 HC 11]
Motorcycle borrowed without owner’s consent – rider’s negligence causing accident –
presumption of agency rebutted – owner not vicariously liable.
Douglas v Kingston and St Andrew Corp (1985) Court of Appeal, Jamaica, Civ App
No 60 of 1981
Motor vehicle – truck left unattended by employee/driver – truck driven away by
sideman – plaintiff’s house damaged through sideman’s negligence – employer not
liable, as damage unforeseeable.
Duff v Gafoor (1975) High Court, Guyana, No 4272 of 1973 [Carilaw GY 1975 HC 14]
Motor vehicle – rule in Barnard v Sully – whether use of vehicle ultra vires company
owning it – presumption of service or agency not rebutted – company liable for
negligence.
Mason v Martins Tours Ltd (1984) Supreme Court, Jamaica, No CL M 100/79
[Carilaw JM 1984 SC 16]
Motor vehicle – collision between minibus and hired car – death of both drivers –
contract of hire contained clause governing vicarious liability – insurance cover for
car rental firm.
Parejo v Koo (1966–69) 19 Trin LR 272 (High Court, Trinidad and Tobago)
Motor vehicle – driver delivering car to owner deviated from route to drop passen-
gers – driver using car partly for his own and partly for owner’s purposes – owner
liable for driver’s negligence.
Ramsay v Brown (1980) Supreme Court, Jamaica, No CL 1977/R-153 [Carilaw JM
1980 SC 30]
Motor vehicle – rule in Barnard v Sully – vehicle not used for owner’s purposes –
owner not liable for driver’s negligence.
 Appendix 1: Digest of Additional Commonwealth Caribbean Cases 403

Roberts v Omar (1985) High Court, Trinidad and Tobago, No 310 of 1079 [Carilaw
TT 1985 HC 70]
Motor vehicle – rule in Barnard v Sully – owner having sufficient interest or concern
in purposes of driver – owner liable for driver’s negligence.
Seunath v Ramdeo (1984) High Court, Trinidad and Tobago, No 1128 of 1980
[Carilaw TT 1984 HC 155]
Motor vehicle – presumption of agency – driver borrowed car from owner –
presumption rebutted.
Teixeira v Spence (1975) High Court, Guyana, No 3653 of 1972 [Carilaw GY 1975
HC 27]
Motor vehicle – rule in Barnard v Sully – car driven by mechanic without consent of
owner – owner not liable for driver’s negligence.

PERSONAL INJURIES

Aziz Ahamad Ltd v Raghubar (1967) WIR 352 (Court of Appeal, Trinidad and
Tobago)
General damages – uniformity of awards desirable – courts should follow local trends.
Bayo v Holiday Foods Ltd (1979) High Court, Trinidad and Tobago, No 1008 of 1978
[Carilaw TT 1979 HC 71]
Special damage – loss of earnings before trial – standard of proof.
Central Soya of Jamaica Ltd v Freeman (1985) 22 JLR 152 (Court of Appeal, Jamaica)
Non-pecuniary loss – effect of inflation on awards – effect of depreciation of dollar –
rate of interest – rule in Jefford v Gee.
Crockwell v Haley (1993) Court of Appeal, Bermuda, No 23 of 1992 [Carilaw BM
1993 CA 12]
Applicability of principle in British Transport Commission v Gourley in Bermuda, with
respect to foreign plaintiff – whether relevant that no income tax payable in Bermuda.
Dietrich v Chen (1984) 21 JLR 323 (Supreme Court, Jamaica)
Road accident – victim suffering from reactive depression – medical expenses.
Gittens v AG (1983) 18 Barb LR 120 (High Court, Barbados)
Road accident – negligence – action for personal injuries – principles in Cornilliac v
St Louis applied.
Gravesandy v Moore (1986) 23 JLR 17 (Court of Appeal, Jamaica)
Loss of earning capacity and loss of prospective earnings distinguished – plaintiff’s
leg disfigured – general damages – judicial notice taken of fall in value of dollar.
Mapp v Dowding Estates and Trading Co Ltd (1978) 32 WIR 99 (High Court,
Barbados)
Successive injuries – rule in Baker v Willoughby applied.
Rose v Smith (1985) 22 JLR 305 (Court of Appeal, Jamaica)
Infant suffering brain damage – award for pain and suffering and loss of amenities –
no evidence on which to base award for loss of earnings.
404 Commonwealth Caribbean Tort Law

Sainchand v Deonarine (1985) Court of Appeal, Guyana, Civ App No 61 of 1983

[Carilaw GY 1985 CA 6]
Judgment – date of trial means date judgment delivered – duty to mitigate loss –
partial loss of hearing.
Samaroo v Montano (1988) High Court, Trinidad and Tobago, No 153 of 1983
Injury to leg – duty to mitigate loss by seeking other suitable employment – 33-year-
old plaintiff – multiplier of eight – depreciation of value of dollar taken into account.
Sarju v Walker (No 1) (1973) 21 WIR 86 (Court of Appeal, Guyana)
Assessment of damages – principles to be applied – method of fixing multiplier and
multiplicand – whether itemisation of damages necessary – principles on which
appeal court can interfere with judge’s assessment.
Singh v Mohammed (1979) High Court, Trinidad and Tobago, No 1363 of 1978
[Carilaw TT 1979 HC 109]
Severe disablement – 19-year-old plaintiff – loss of future earnings taxed down by
one third – Prescod v Sandiford formula applied.
Sohan v Hackett (1984) High Court, Trinidad and Tobago, No 513 of 1978
Injury affecting plaintiff’s sex life – loss of future earnings – multiplier of 12 for
35-year-old plaintiff.
Stewart v Ragbir (1984) High Court, Trinidad and Tobago, No 663 of 1982 [Carilaw
TT 1984 HC 157]
General and special damages – fall in value of dollar taken into account – interest
payable under Jefford v Gee.
Valdez v Samlal (1976) High Court, Trinidad and Tobago, No 810 of 1972 [Carilaw
TT 1976 HC 55]
Special and general damages – multiplier of 14 for 30-year-old plaintiff – interest
awarded on Jefford v Gee principles.
Wardle v Holder (1979) High Court, Barbados, No 321 of 1977 [Carilaw BB 1979
HC 46]
Expenses – medical expenses in Canada paid for under Ontario Health Insurance
Programme recoverable – Parry v Cleaver applied – allowance for future medical
treatment in Canada.
Warren v Tuzo (1980) Court of Appeal, Bermuda, Civ App No 27 of 1979
Special damages – loss of earnings before trial – failure to plead special damages.

FATAL ACCIDENTS

Administrator General v Dacres (1981) Supreme Court, Jamaica, No CL 19799/A-001

Assessment of dependency.
Carter v Dawson [1998] CILR 204 (Grand Court, Cayman Islands)
Proper plaintiffs – step-grandchildren not ‘dependants’ – future loss to be calculated
by conventional method without use of actuarial tables – multiplier of 7.8 years for
62-year-old.
 Appendix 1: Digest of Additional Commonwealth Caribbean Cases 405

Cunningham v Swaby (1990) Supreme Court, The Bahamas, No 364 of 1985

[Carilaw BS 1990 SC 13]
Damage must be related to loss of support suffered immediately as a result of death –
deprivation of prospect of being supported in future not assessable.
Gorgichuk v Barbados Transport Co-operative Society Ltd (1984) Court of Appeal,
Barbados, Civ App No 4 of 1983 [Carilaw BB 1984 CA 10]
Fringe benefits to be included in calculating dependency – promotional prospects
to be taken into account.
Grenier v Chin (1980) Supreme Court, Jamaica, No CL G-004/1974 [Carilaw JM
1980 SC 35]
Remarriage of widow – whether proceeds of life insurance policy deductible.
Hosein v Philbert (1972) 22 WIR 495 (Court of Appeal, Trinidad and Tobago)
Compensation for Injuries Ord, Ch 5, No 5, s 6 – failure to give notice of injury to
defendant – reasonable excuse for failure.
Knowles v Syntex Corp (1982) Court of Appeal, The Bahamas, No 16 of 1981
[Carilaw BS 1982 CA 6]
Cookson v Knowles approach followed – absence of income tax in Bahamas justifies
lower multiplier.
Lorde v Transport Board (1999) 58 WIR 51 (Court of Appeal, Barbados)
Competence of dependants to bring action – cause of action accruing on death, not
on grant of letters of administration – action statute-barred.
Mitchell v Nandlall (1979) High Court, Trinidad and Tobago, No 533 of 1973
[Carilaw TT 1979 HC 99]
Multiplier of 14 – death of 30-year-old teacher – assessment of net loss to dependants.
Rampersadsingh v Richards (1979) High Court, Trinidad and Tobago, No 703 of
1973 [Carilaw TT 1979 HC 79]
Multiplier of 26 taxed down by one third to allow for contingencies.
Salick v Caroni Ltd (1979) High Court, Trinidad and Tobago, No 380 of 1975
[Carilaw TT 1979 HC 81]
Assessment of dependency – deceased 52-year-old.
Springer v Lalla (1964) 7 WIR (Court of Appeal, Trinidad and Tobago)
Compensation for Injuries Ord, Ch 5, No 5, s 6 – failure to give notice of injury to
defendant – reasonable excuse for failure.
 APPENDIX 2

EXTRACTS FROM FATAL ACCIDENTS LEGISLATION

IN THE BAHAMAS, BARBADOS, JAMAICA,
AND TRINIDAD AND TOBAGO

FATAL ACCIDENTS ACT, CH 71 (THE BAHAMAS)

2 (1) In this Act, unless the context otherwise requires –

‘adopted’ means adopted in pursuance of an adoption order made under
the Adoption of Children Act or in pursuance of an order of a court in any
country which the Supreme Court is satisfied has jurisdiction to make an
order making similar provision with similar effect to an order made in
pursuance of that Act;
‘child’ includes grandchild;
‘person entitled’ means a person for whose benefit an action may be brought
under this Act;
‘parent’ includes grandparent.
(2) In construing any relationship for the purposes of this Act –
(a) an adopted person shall be treated as a child of the person or persons
by whom he was adopted and not as the child of any other person;
and subject thereto;
(b) any relationship by affinity shall be treated as a relationship by con-
sanguinity, any relationship of the half blood as a relationship of the
whole blood and the stepchild of any person as his child; and
(c) an illegitimate person shall be treated as the legitimate child of his
mother or reputed father.
3 (1) Where the death of any person is caused by the wrongful act, neglect or
default of any other person and such act, neglect or default would but for
his death have entitled the person injured to maintain an action for damages
in respect thereof, the person who would have been liable if death had not
ensued shall be liable to an action for damages notwithstanding the death
of the person injured.
(2) Notwithstanding any rule to the contrary, no action for damages under
sub-s (1) shall be stayed on the ground that criminal proceedings are pending
or have not been taken.

Persons for whose benefit action may be brought

4 (1) An action under this Act shall be brought for the benefit of any person who
is the wife, husband, parent or child of the deceased or who is, or is the
issue of, a brother, sister, uncle or aunt of the deceased person.
(2) An action under this Act shall be brought in the name of –
(a) the executor or administrator of the deceased on behalf of any or all
persons entitled; or
(b) where there is no executor or administrator of the deceased or where
the executor or administrator of the deceased fails to institute an action
within six months after the date of death of the deceased, any person
or persons entitled, on behalf of all persons entitled.
 Appendix 2: Extracts from Fatal Accidents Legislation 407

Damages

5 (1) In any action under this Act, the court may award such damages as it may
think proportioned to the injury resulting from the death to the persons
entitled respectively; and shall, after deducting costs not recovered from
the defendant, divide such damages among such parties in such shares as
the court may direct.
(2) Damages may be awarded in respect of the reasonable funeral expenses
of the deceased person if such expenses have been incurred by a person
entitled.
(3) In assessing damages in any action under this Act, there shall not be taken
into account any insurance money, benefit, pension or gratuity which has
been, or will or may be, paid as a result of the death.
(4) In sub-s (3) of this section –
‘benefit’ means benefit under the National Insurance Act, and any payment
by a friendly society or trade union for the relief or maintenance of a
member’s dependants;
‘gratuity’ includes a gratuity payable upon the death of a public officer or
police officer under the Pensions Act or the Police Act;
‘insurance money’ includes a return of premiums; and
‘pension’ includes a return of contributions and payment of a lump sum in
respect of a person’s employment.
6 In assessing damages payable under this Act –
(1) to a widower in respect of the death of his wife or to a widow in respect of
the death of her husband, there shall not be taken into account the remarriage
of the widower or widow or his or her prospects of remarriage as the case
may be; or
(2) to a child in respect of the death of his father, there shall not be taken into
account the remarriage or prospects of remarriage of the surviving mother.

Payment into court

7 A defendant in any action under this Act may pay into court one sum
in compensation of all persons entitled without specifying the shares into
which it is to be divided.

Limitation of action

8 (1) Not more than one action shall lie in respect of the same subject matter of
complaint under this Act.
(2) Every action under this Act shall be commenced within three years of the
date of the death of the deceased.

Plaintiff to deliver particulars of person for whom damages claimed

9 In any action under this Act, the plaintiff shall deliver to the defendant
together with his statement of claim full particulars of the person or persons
408 Commonwealth Caribbean Tort Law

for whom or on whose behalf the action is brought and of the nature of
the claim in respect of which damages are sought to be recovered.

ACCIDENT COMPENSATION (REFORM) ACT,

CAP 193A (BARBADOS)
2 (1) In this Act –
‘action’ means an action under s 3;
‘dependant’ means:
(a) the wife or husband of the deceased,
(b) a person who is a spouse of the deceased within the meaning of the
Succession Act,
(c) a person who is divorced from the deceased and who establishes a
dependency on the deceased,
(d) any person who is a parent of the deceased,
(e) any person who is a child of the deceased,
(f) any person who is, or is the issue of, a brother, sister, uncle or aunt of
the deceased;
‘injury’ includes any disease and any impairment of a person’s mental or
physical condition;
‘parent’ means father, mother, grandfather, grandmother, stepfather and
stepmother.
(2) For the purposes of sub-s (1) the reference to ‘child’ includes a reference
to a legally adopted child, a grandchild and a stepchild.

Right of action for wrongful act causing injury or death

3 Where, after 22 January 1981, injury or death is caused by the fault or

neglect of another under circumstances where the person is entitled to
recover damages, or would have been entitled to recover if not killed,
the dependants of the person are entitled to recover their pecuniary loss
resulting from the injury or death from the person from whom the person
injured or killed is entitled to recover or would have been so entitled if not
killed, and to maintain an action for the purpose in a court of competent
jurisdiction.

Contributory negligence

4 In an action, the right to damages is subject to any apportionment of damages

due to contributory fault or neglect of the person who was injured or killed.

Commencement of action

5 (1) A person who commences an action under this Act shall –

(a) file with the statement of claim an affidavit stating that to the best of his
knowledge, information and belief the persons named in the statement
 Appendix 2: Extracts from Fatal Accidents Legislation 409

of claim are the only persons who are entitled or claimed to be entitled
to damages under this Act; and
(b) in the statement of claim, name and join the claim of any other person
who is entitled to maintain an action under this Act in respect of the same
injury or death and thereupon such person becomes a party to the action.
6 (1) An action under this Act in respect of a person who is killed shall be com-
menced by and in the name of the executor or administrator of the deceased
for the benefit of the person entitled to recover.
(2) Where –
(a) there is no executor or administrator; or
(b) there is an executor or administrator and no action is, within 6 months
after the death of the deceased, brought by and in the name of the execu-
tor or administrator,
an action may be brought by all or any of the dependants for whose benefit
the action would have been if it had been brought by the executor or
administrator.

Limitation on time and action

7 (1) Notwithstanding any enactment or rule of law to the contrary, an action must
be commenced within three years from the time the cause of action arose.
(2) In no case shall more than one action lie for and in respect of the same
occurrence.

Assessment of damages

8 Damages recoverable under this Act may include –

(a) actual out-of-pocket expenses reasonably incurred for the benefit of the
injured person;
(b) a reasonable allowance for travel expenses actually incurred in visiting
the injured person before his death or during his treatment or recovery;
(c) reasonable funeral expenses, if those expenses have actually been incurred
in respect of the burial of the person for whose death the action is brought;
(d) where, as a result of the injury, the dependants provide nursing, house-
keeping or other services for the injured person, a reasonable allowance
for the loss of income or value of the services;
(e) an amount to compensate for the loss of guidance, care and companion-
ship that the dependants might reasonably have expected to receive
from the injured person if the injury had not occurred.

Assessment of damages: disregard of certain benefits

9 (1) In determining the amount of damages to be awarded under this Act, the
court shall not take into account –
(a) the remarriage of a surviving spouse or any prospects of remarriage by
a surviving spouse, as a result of the death of the husband or wife, as
the case may be; and
410 Commonwealth Caribbean Tort Law

(b) any insurance money, benefit, pension or gratuity which has been paid
or is likely to be paid as a result of death or injury.
(2) For the purposes of this section –
‘benefit’ means a benefit under the National Insurance and Social Security
Act (Cap 147) and any payment by a friendly society or trade union for the
relief or maintenance of a member’s dependants;
‘insurance money’ includes a return of premiums;
‘pension’ includes a return of contributions and any payment of a lump sum
in respect of a person’s employment.

Apportionment and payment into court

10 (1) Where damages are awarded under this Act, the amount so recovered after
deducting the costs not recovered from the defendant, shall be divided
among the dependants in such shares as may be directed.
(2) Money paid into court in satisfaction of a cause of action may be in one sum
without specifying the dependants’ shares.
(3) Where the money paid into court has not been otherwise apportioned,
the court may, upon application, apportion it among the persons entitled
thereto.

FATAL ACCIDENTS ACT (JAMAICA)

2 (1) In this Act –

‘benefit’ means any benefit or sum of money paid or payable by a friendly
society or a trade union for the relief or maintenance of a member’s depen-
dants and includes a return of contributions;
‘child’ includes son and daughter, and grandson and granddaughter, and
stepson and stepdaughter;
‘insurance money’ means any sum payable in conformity with the National
Insurance Act or under a contract of assurance or insurance whether made
before or after the 7th day of September, 1979, and includes a return of
premiums;
‘near relations’, in relation to a deceased person, means the wife, husband,
parent, child, brother, sister, nephew or niece of the deceased person;
‘parent’ includes father and mother and grandfather and grandmother, and
stepfather and stepmother;
‘pension’ includes a return of contributions and any payment of a lump sum
in respect of a person’s employment;
‘person’ shall apply to bodies politic and corporate;
‘personal representative’, in relation to a deceased person, means the executor
or administrator of the deceased person;
(2) For the purposes of this Act a person shall be deemed to be the parent or
child of the deceased person notwithstanding that he was only related to
him illegitimately; and accordingly in deducing any relationship which
under the provisions of this Act is included within the meaning of the
 Appendix 2: Extracts from Fatal Accidents Legislation 411

expressions ‘parent’ and ‘child’ any illegitimate person shall be treated

as being, or as having been, the legitimate offspring of his mother and
reputed father.

Action maintainable against person causing death through neglect etc

3 Whensoever the death of a person shall be caused by wrongful act, neglect

or default, and the act, neglect or default is such as would (if death had not
ensued) have entitled the party injured to maintain an action, and recover
damages in respect thereof, then and in every such case the person who
would have been liable, if death had not ensued, shall be liable to an action
for damages notwithstanding the death of the person injured and although
the death shall have been caused under such circumstances as amount in
law to felony.

Mode and manner of commencement of an action and assessment of damages

4 (1) Any action brought in pursuance of the provisions of this Act shall be
brought –
(a) by and in the name of the personal representative of the deceased
person; or
(b) where the office of the personal representative of the deceased is vacant,
or where no action has been instituted by the personal representative
within six months of the date of death of the deceased person, by or in
the name of all or any of the near relations of the deceased person, and
in either case any such action shall be for the benefit of the near relations
of the deceased person.
(2) Any such action shall be commenced within three years after the death of
the deceased person or within such longer period as a court may, if satisfied
that the interests of justice so require, allow.
(3) Only one such action shall be brought in respect of the same subject matter
of complaint.
(4) If in any such action the court finds for the plaintiff, then, subject to the
provisions of sub-s (5), the court may award such damages to each of the
near relations of the deceased person as the court considers appropriate
to the actual or reasonably expected pecuniary loss caused to him or her
by reason of the death of the deceased person and the amount so recovered
(after deducting the costs not recovered from the defendant) shall be divided
accordingly among the near relations.
(5) In the assessment of damage under sub-s (4) the court –
(a) may take into account the funeral expenses in respect of the deceased
person, if such expenses have been incurred by the near relations of
the deceased person;
(b) shall not take into account any insurance money, benefit, pension, or
gratuity which has been or will or may be paid as a result of the death;
(c) shall not take into account the remarriage or prospects of remarriage
of the widow of the deceased person.
412 Commonwealth Caribbean Tort Law

Plaintiff to deliver full particulars of the persons for whom damages claimed

5 In every such action the plaintiff on the record shall be required, together
with the statement of claim, to deliver to the defendant, or his solicitor, full
particulars of the person or persons for whom, and on whose behalf, such
action shall be brought, and of the nature of the claim in respect of which
damages shall be sought to be recovered.

COMPENSATION FOR INJURIES ACT, CH 8:05 (TRINIDAD

AND TOBAGO)
2 (1) In this Act, ‘dependant’ means wife, husband, parent, grandparent, child,
grandchild and any person who is, or who is the issue of a brother, sister,
uncle or aunt.
(2) In deducing any relationship for the purposes of this Act –
(a) an adopted person shall be treated as the child of the person or persons
by whom he was adopted and not as the child of any other person;
and, subject thereto;
(b) any relationship by affinity shall be treated as a relationship by con-
sanguinity, any relationship of the half blood as a relationship of the
whole blood, and the stepchild of any person as his child; and
(c) an illegitimate person shall be treated as the legitimate child of his
mother and reputed father.
(3) In this section, ‘adopted’ means adopted in pursuance of an adoption order
made under the Adoption of Children Act.

Action for compensation maintainable against person causing death

3 Whenever the death of any person is caused by some wrongful act, neglect,
or default, and the act, neglect or default is such as would before the com-
mencement of this Act (if death had not ensued) have entitled the party
injured to maintain an action and recover damages in respect thereof, then
and in every such case the person who would have been liable if death
had not ensued shall be liable to an action for damages, notwithstanding
the death of the person injured, and although the death shall have been
under such circumstances as amount in law to an arrestable offence.

By whom action in case of death to be brought

4 Every action in respect of any personal injury resulting in death shall be

for the benefit of the dependants of the person whose death has been so
caused and shall be brought by and in the name of the executor or adminis-
trator of the deceased person; but, if within six months of the death, no such
action has been taken by and in the name of the executor or administrator,
then an action may be brought by and in the name of any of the dependants
of the deceased person.
 Appendix 2: Extracts from Fatal Accidents Legislation 413

Limit of time of commencement of action 1

5 (1) An action under s 3 shall be commenced within four years after the death
of the deceased person.
(2) Not more than one action lies under s 3 for and in respect of the same
subject matter of complaint.

Particulars of persons for whom action brought

6 In every action in respect of injury resulting in death, the plaintiff on the

record shall be required, together with the statement of claim, to deliver to
the defendant or his solicitor full particulars of the person or persons for
whom and on whose behalf such action is brought.

Measure of damages recoverable and apportionment

7 (1) In every action in respect of injury resulting in death such damages may be
awarded as are proportioned to the injury resulting from the death to the
persons respectively for whom and for whose benefit the action is brought.
(2) The amount so recovered, after deducting the costs, if any, not recovered
from the defendant, shall be divided among the persons mentioned above
in such shares as are determined at the trial.
(3) It shall be sufficient, if the defendant is advised to pay money into court,
that he pay it as a compensation in one sum to all persons entitled under
this Act for his wrongful act, neglect or default, without specifying the
shares into which it is to be divided by the court; and if the said sum is
not accepted and an issue is taken by the plaintiff as to its sufficiency, and
the court shall think the same sufficient, the defendant shall be entitled to
the verdict upon that issue.

1 See also Limitation of Certain Actions Act 1997, ss 6–8.

 INDEX

abatement: nuisance, of 175, 176; trees, contributory negligence: apportionment

overhanging 167–9 362–3; causation 348–50; children, of
absolute privilege: court reporting 265–6; 350–3; crash helmets 348, 350; definition
judicial proceedings 263–4; legislature, 348; dog, injury by 209–11; road accidents
statements, concerning 264; official 357–62; seat belts 349–50; workmen, of
communications 264 353–7
abuse: vulgar 220, 221, 224, 225
access: interference with 165–6 damages: amenities, loss of 372, 373; assault
action, forms of 5 and battery, for 16–17; deductions
activities: dangerous, liability for 179 et seq, 378–83; defamation, for 284–7; earning
344–7 capacity, loss of 376–7; earnings, loss of
advice, negligent: liability for 109–18 368–370, 372, 373–6; expectation of life,
agent: see also vicarious liability; arrest by loss of 373; false imprisonment, for 44–5;
40–2; motor car, owner and driver 333 fatal accidents 386 et seq; general 371 et
et seq seq; inflation, effect of 377; mitigate, duty
animals: cattle trespass 196–200; to 383–6; personal injuries, for 368 et seq;
contributory, negligence 203–4, 209–12; special 368–70
dangerous animals 200–5; dogs, liability defamation: slander abuse, vulgar 220, 221,
for 205–17; highway [escaping from 199; 224, 225; adultery imputed 223–5;
escaping to 213–17]; negligence 212–17; apology 241, 287; class, defamation of
scienter action 200–5; trespasser, injury to 237–40; crime, imputation of 220–1;
209–11 damage, special 219, 285; defences 246 et
Antigua: reception of common law 8 seq; disease, imputation of 221–3; excess
arrest: agent, by 40–2; breach of the peace, of privilege 277–82; fair comment 248–63;
for 25; conduct after 37, 40; police innuendo 233–6; internet service
constable, by 27 et seq; private citizen, by providers, liabilities of 244–5; judge and
26–7; reasonable cause for 27 et seq; jury, functions of 229; justification 246–8;
reasons to be given 37–9; statutory libel, definition of 218; [slander
powers, construction of 30 et seq; warrant distinguished 218]; malice 281–4; media,
[with 23–5; without 25 et seq] political discussion in 271–3;
assault: battery compared 11–13; consent to newspapers, statutory defence for 240,
15–16; definition 11–12 241, 265; offer of amends 241; plaintiff,
reference to 236–41; political comment
banker: negligence of 109–18 248–9, 271–3; privilege, excess of 277–81;
Barbados: fatal accidents 386–90; reception professional reputation, disparagement
of, common law 8 of 225–6; publication 241–4; qualified
battery: assault compared 11–12; consent to privilege 266–81; repetition of slander
15–16; definition 12–13 226, 227, 243; Reynolds privilege 271–7;
breach of duty: see negligence secretary, dictation to 279–81; sensational
breach of the peace: arrest for 25 reporting 261–2; slander [actionable
broadcast: defamatory 218, 268; libel, per se 219–26; imputation of 221–3; libel
classed as 218 distinguished 218; venereal disease,
burden of proof: defamation 228, 247; false women, of 223–5]; truth defence 246–8;
imprisonment 27, 31, 32, 47; malicious see also absolute privilege; qualified
prosecution 47, 48; res ipsa loquitur 85, 86 privilege
dependants: see also fatal accidents action
cattle: escape of 196–200; strict liability, for on behalf of 386 et seq; guidance, care and
straying 196–7; trespass by 196–200 companionship, loss of 387
charge sheet: signing, effect of 42–4 Dominica: reception of common law 8
children: contributory, negligence of 350–3; duty of care: animals 212–17; bankers
occupiers’ liability to 129, 136–9 110–18; breach, see negligence; economic
consent: battery, to 15–16; negligence, to loss 109 et seq; employers 140 et seq;
364 et seq; sports, in 15–16; see also volenti, extra-hazardous acts 344–7;
non fit injuria misstatements 110–18; nervous shock
416 Commonwealth Caribbean Tort Law

122–5; occupiers 128 et seq; psychiatric judge: defamation, function in 229;

injury 122–5; prison authorities 63–5; immunity in court 263
solicitors 119–22; spectators, to 68–71, 126 jury: defamation, function in 229;

earning capacity, loss of 376–7 knowledge: trespasser’s presence, of 136–8;

earnings, loss of 368–70, 372, 373–6 volenti non fit injuria 365–6
electricity: escape of 192–3; nuisance,
power station 156–9 libel see defamation:
employees: liability for see vicarious local authority: omission to supply water:
liability; liability to see employers’ 83–5
liability
employers’ liability: competent staff 140–1; malice: defamation, in 281–4; malicious,
contributory negligence 143; 353–7; prosecution, in 53–8; nuisance, in 155,
dangerous machine 147–8; 354–7 163–5
effective supervision 142–4; fencing malicious prosecution: belief in guilt 52–3;
146–8; safe place of work 144–5; safe false imprisonment distinguished 46–7;
system of working 142–4; skylarking 141; malice 53–8; nolle prosequi 51; reasonable
statutory duty 145 et seq, training 143–4; and probable cause 52–3; setting law in
volenti non fit injuria 365–7 motion 48–50; termination of prosecution
employment: acts in course of 310 et seq 50–1
misstatement, negligent 110 et seq
factory: floor, condition of 77; legislation motive 6, 7:
145 et seq; machinery, unfenced 146–8, motor car: owner, liability of 333 et seq;
355–7; statutory duty 145 et seq traffic accidents 91 et seq, 357 et seq;
fair comment: 248–63 see also vicarious liability insurance 342
false imprisonment: agent, through 40–2;
arrest see arrest; authority, show of negligence: banker, of 109–18 breach of
19–23; charge sheet 42–4; constable, by 26 duty 67 et seq contributory negligence
et seq; malicious prosecution, 348–63; cost of avoiding harm 77;
distinguished 47–8; report to police damages, assessment of 368 et seq;
40–2 definition 6, 61; duty of care 61–7; harm,
fatal accidents: Acts 406–15; loss of likelihood of 67–71; insurance company
guidance, care and companionship 387; 111–15; intention distinguished 6;
personal injuries action 390–1 medical practitioner 79–81; misstatement
fire: damage to property 83–5, 185–7; 110 et seq; omissions 83–5; prison
firemen, duty of 83–5, 325–6 authorities, by 63–5; proximity 62 et seq;
res ipsa loquitur 85 et seq risk, justification
Grenada: reception of common law 8–9 for taking 72 et seq; skid 93–5; skill 78–82;
Guyana: reception of common law 9 solicitor, of 119–22; tree feeling 343–5,
345–7; tyre burst, 96–7; vehicle, latent
highway: animals straying on 213–17; defect 97–100; water supply 83–5
animals straying from 199; independent newspaper: fair comment 248 et seq;
contractor: 344–5; nuisance on 150, 151, political comment by 271–7; sensational
165, 166, 167–8; trees overhanging 167–8 reporting by 261–2; unintentional
husband and wife: defamation of one to the defamation by 241
other 242; publication between spouses noise: nuisance caused by 157 et seq
242, 267, 268 nuisance: abatement of 175, 176; access,
interference with 165–6; malice 155,
independent contractor: definition 307–8; 163–5; noise 157 et seq; particular damage
employer’s liability, for 342–7; extra- 150–1; private 151 et seq; public 149–51;
hazardous acts 344–7; highway, working public benefit 154; reasonableness 156 et
on 344–5; occupier’s liability for 129; seq; standard of comfort 156–8
servant distinguished 307–8;
informant: false imprisonment 40–2; occupier’s liability: children, to 129, 136–9;
malicious prosecution 48–50 common duty of care 128; defences to
innuendo: false 233, 234; legal 233; popular action 129; exclusion by agreement 130;
233, 234; true 233 independent contractor, for 129; invitee,
 Index 417

to 131–4; licensee, to 134–6; occupier scienter action: see animals

defined 126–7; premises defined 127; servant: course of employment 310 et seq;
trespasser, to 136–9; unusual danger 131 disobedience by; driver of vehicle
et seq; visitor, to 126, 127; warning of 313–19; independent contractor,
danger 130–1; workman, to 144 distinguished 307–8; see also employers’
omissions: see negligence liability; Vicarious liability
skill: reliance upon 78–83; standard of; care
passing off: common field of activity 300–1; required 78–82; see also negligence
get-up, imitation of 289–94; goodwill, slander: adultery imputed 223–5; crime,
protection of 301–5; intention to deceive imputation of 220–1; disease imputed
299; own name, use of 300; reputation, 221–3; professional; reputation
proof of 301–2; trade mark 298 disparaged 225–6; proof of damage
plea: rolled up 250 218–19; vulgar abuse distinguished 220,
police: statutory defence for 35–6; see also 224–5
arrest; false imprisonment solicitor: negligence, liability for 119–22
policy: duty and 62 et seq; malicious statutory duty: breach of 145 et seq
prosecution, in 46 contributory; negligence and 353–7;
pollution: oil escaping 190–1 employers’ liability 145 et seq
printer: libel, liability for 242 supermarket: false imprisonment in 21–3;
private nuisance: categories of 152; unusual danger in 131–4
community benefit 154; definition of
151–2; enjoyment of land, interference theft: accusation of 20–3, 27–30, 220, 221;
with 153 et seq; malice 155, 163–5; noise malicious; prosecution, in 54–8; slander
157 et seq property damage 152–3; actionable per se 220, 221; vicarious
reasonable conduct 153 et seq smoke 153, liability 332
157–8; see also nuisance Trinidad and Tobago: fatal accidents in
privilege: see absolute privilege; qualified 386–9; occupiers’ liability in 131 et seq;
privilege; defamation reception of common law 9
proof: burden of see burden of proof
property, protection of: dogs, with 136, 211 vehicles: see motor car
public nuisance: Attorney General, action vicarious liability: bailee, liability of 330–3;
by 149; particular damage 150–1 control test of 307–8; course of
publication: defamatory words, of 241–4 employment 310 et seq; driver as agent
333 et seq; independent contractors
qualified privilege: common interest, 342–7; insurance, effect of 335, 342;
parties with 270–1; excess of privilege prohibited act 313 et seq; vehicle owners
277–82; malice 281–4; secretary, dictation 333 et seq
to 279–81; self-defence; statements in visitors to premises: see occupier’s
269–70 liability
volenti non fit injuria: drunken driver 365,
reasonable man: negligence, test of 67 et seq 366 knowledge of risk 365–6; negligence
res ipsa loquitur: control, requirement of of; employee 366–7; occupier and visitor
86–7, 88–90; latent defect 97–100; skid 129; rescuers 366; spectator and;
93–5; tyre burst 96–7; vicarious liability, participants 366; see also consent
and 310
Rylands v Fletcher, rule in: Act of God 188–9; warning: dangerous dogs 136, 211–12;
damages in 194–5; electricity 192–3; occupiers’ liability 130–1
independent contractor 179, 344; non- warrant: arrest with 23–5; arrest without 25
natural user 182–7; oil pollution 190–1; et seq
statutory authority defence 194; stranger, workmen: contributory negligence of
act of 189–91 353–7; employers’ liability to 140 et seq