Gabrielle M. Hill-Junke a Minor, through Her Next Friend Robert Junke v Sea Grape Ltd, Mustique Company Ltd, William B. Morton Jr., Leila S. Morton
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Gill, M. |
| Judgment Date | 26 April 2022 |
| Neutral Citation | VC 2022 HC 016 |
| Docket Number | CLAIM NO: SVGHCV2020/0001 |
| Court | High Court (Saint Vincent) |
CLAIM NO: SVGHCV2020/0001
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Mr. Joseph Delves with him Mr. Ron Jenkins for the Claimant
Mr. Stanley John QC with him Mr. Akin John for the 1 st Defendant
Mrs. Mandella Peters and Mrs. Cheryl Bailey for the 2 nd Defendant
Mr. Sten Sargeant with him Mr. Mikhail Charles for the 3 rd and 4 th Defendants
The court is faced with two applications for summary judgment, one by the 3 rd and 4 th defendants filed first, and the other by the 1 st defendant.
The 3 rd and 4 th defendants, William B. Morton Jr. and his wife Leila S. Morton (“the Mortons”) are from Alabama, United States of America. They were frequent visitors to the island of Mustique in the State of St. Vincent and the Grenadines. Mustique is owned by the 2 ndDefendant, Mustique Company Limited (“Mustique Company”). The Mortons always travelled to Mustique with their twin children and rented a six-bedroom luxury villa named Sunrise House (“the Villa”) owned by the 1 st defendant, Sea Grape Limited (“Sea Grape”). Sea Grape physically occupies the Villa through the presence of its butler, chef, housekeeper and gardener.
The Mortons invited the claimant's family (“the Hill-Junkes”) to join them on vacation in February 2017. The Mortons and the Hill-Junkes (the claimant and her parents) arrived at the Villa on 16 th February 2017. The claimant was twelve years old at the time.
The following morning, 17 th February 2017, the Hill-Junkes joined Mrs. Morton and the twins for breakfast. After breakfast, the children went into the infinity pool on the premises. The claimant's parents went to the exercise room on a lower level. Mrs. Morton remained at the breakfast table for a while.
The claim alleges that the claimant, while in the infinity pool, was lying on a raft in the shape of an alligator, which bumped against the edge of the pool and the claimant rolled off the raft and fell some twelve feet below into a stone retaining wall, thereby causing serious injuries to her face.
The claim is framed in general negligence and occupiers’ liability against all the defendants, Sea Grape as title owners of the Villa, Mustique Company as owners of the island and the Mortons as occupiers of the Villa and Mrs. Morton, in particular, who was allegedly responsible for supervising the claimant.
The Mortons apply to the court pursuant to Part 15 and Part 26 of the Civil Procedure Rules as amended (“ CPR 2000”). They are asking for summary judgment under CPR 15.2(a) against the claimant on the particular issue of liability, and under CPR 26.1(2)(i), that the claim form and statement of claim be dismissed, and that judgment be entered for them on a preliminary issue. They also claim prescribed costs on judgment.
The Mortons contend that the claimant's claim against them has no real prospect of succeeding because on the admitted facts of all parties, they cannot be found in law to be the occupiers of the Villa to owe a duty of care to the claimant. They say that this court can determine this issue whether or not it brings proceedings to an end as between the claimant and themselves, and on the sole factual issue between the claimant and Mrs. Morton as regards the assumption of supervision of the claimant, there is no real or viable prospect of Mrs. Morton being imposed with a duty of care and liability for the claimant's accident.
Sea Grape finds it not only necessary to oppose the Mortons’ application, but also to launch its own application for summary judgment pursuant to CPR 15.2(a) and for dismissal of the claimant's claim against it. Although title to the Villa is vested in Sea Grape, it contends that the Mortons were tenants with the power and authority to exclude or permit visitors including the Hill-Junkes. Sea Grape seeks an order for summary judgment on the basis that it owed no duty of care to the claimant, neither in occupiers’ liability nor in general negligence, and cannot be liable for any such breaches as alleged in the claim, which must therefore fail against it. Sea Grape also seeks costs to be assessed under CPR 65.12.
In negligence, the claimant pleads that at all relevant times, all defendants were jointly and severally responsible for her reasonable safety on the premises. As owner, occupier and promoter of, and joint economic participant in, the premises, as the case may be, the claimant says that the defendants and each of them owed a duty of care to her to ensure her reasonable safety.
On occupation specifically, the claimant's case is that all defendants exercised sufficient control over the Villa to constitute them occupiers. The claimant states that Sea Grape and Mustique Company jointly physically occupied the premises through their employees and agents, the on-site staff, and that the Mortons themselves physically occupied the Villa.
The Mortons and Sea Grape find common ground in trying to convince the court that the issue as to who is the occupier in law does not need fuller investigation or a trial. The Mortons’ application is grounded on the contention that the claim is not a complex claim, and the case law is well settled. The claimant contends that both applications ought not to be granted as a preliminary point because this is a complex claim and as the applications involve protracted arguments, this will require the court to embark on a mini-trial, and there are disputes of fact.
The court must decide:
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1) Whether the issues of occupiers’ liability and general negligence in this case are suitable for summary disposition.
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2) If so, who is/are the occupier(s)?
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3) Whether the claimant has a real prospect of succeeding on the claim against the Mortons and/or Sea Grape.
By virtue of CPR 15(2)(a) and CPR 15.6 the court may give summary judgment on a claim or on a particular issue if it considers that the claimant has no real prospect of succeeding on the claim or on a particular issue of fact or law, whether or not the judgment will bring the proceedings to an end.
The jurisprudence for summary judgment is now well developed and the authorities are numerous. The entering of summary judgment was addressed by George-Creque JA, as she then was, in Saint Lucia Motor & General Insurance Co. Ltd. v Peterson Modeste 1 where Her Ladyship opined:
“Summary judgment should only be granted in cases where it is clear that a claim on its face obviously cannot be sustained, or in some other way is an abuse of the process of the court. What must be shown in the words of Lord Woolf in Swain v Hillman is that the claim or the defence has no “real” (i.e. realistic as opposed to fanciful) prospect of success. It is not required that a substantial prospect of success be shown. Nor does it mean that the claim or defence is bound to fail at trial. From this it is to be seen that the court is not tasked with adopting a sterile approach but rather to consider the matter in the context of the pleadings and such evidence as there is before it and on that basis to determine whether, the claim or the defence has a real prospect of success. If at the end of the exercise the court arrives at the view that it would be difficult to see how the claimant or the defendant could establish its case then it is open to the court to enter summary judgment.”
In Dr. Martin G. C. Didier et al v. Royal Caribbean Cruises Ltd; Royal Caribbean Cruises v Medical Associates Ltd et al, 2 now Pereira CJ highlighted the important distinction between a strike out application under Part 26 and one for summary judgment under Part 15 of CPR 2000, and held that in disposing of a claim under Part 15, the court is required to consider the legal issues in the case and then determine, on a balance of probabilities and in light of the affidavit evidence adduced by the parties, whether one party or the other has no real prospect of succeeding on the claim. Judgment is on the merits.
Her Ladyship in Didier 3 noted the Privy Council case of Jones v The Attorney General 4 which approved the decision of the New Zealand Court of Appeal case of Westpac Banking Corp v M M Kembla New Zealand Ltd. 5 Paragraphs 61and 62 of Westpac say that on a summary judgment application the onus is on the defendant to prove on a balance of probabilities that the claimant cannot succeed, and summary judgment is suitable for cases where abbreviated procedure and affidavit evidence will sufficiently expose the facts and the legal issues.
An application for summary judgment will be inappropriate where there are disputed issues of material fact or where material facts need to be ascertained by the court and cannot be confidently concluded from affidavits and where ultimate determination turns on a judgment only able to be properly arrived at after a full hearing of the evidence. 6
In Sagicor Bank Jamaica Ltd v Taylor-Wright 7 the Privy Council held that the purpose of the rule in making provision for summary judgment about an issue is to enable the court to confine and focus a necessary trial of the claim by giving summary judgment on particular issues which are relevant to the claim, but which do not themselves require a trial.
In Calland v Financial Conduct Authority 8 Lewison LJ, cited Three Rivers District Council v Governor and Company Bank of England (No 3) 9 as sound authority for the proposition that the judge (master in this case) must carry out a critical examination of the material, and the fact that some factual and legal...
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