Toll road dispute

Erlene Melbourne was relying on a 2013 Supreme Court judgment to support her case that Jamaican Infrastructure Operator Limited (JIO) was liable under the Occupiers’ Liability Act for an accident on Highway 2000, which claimed the life of her husband, Osbourne Melbourne, in 2011.

However, she was left disappointed when Justice Ann-Marie Nembhard ruled in July this year that JIO was not liable, and dismissed her claim.

This was a conflicting judgment to a somewhat similar circumstance in which Justice David Batts had ruled in 2013 that JIO was liable for an accident on Highway 2000 in which Danielle Archer’s motor vehicle collided with a herd of goats in 2010.

“With two such conflicting judgments, I believe the points of law must be tested to maintain certainty in the law,” a retired Court of Appeal judge commented last week about the two differing Supreme Court judgments involving almost similar circumstances.

In her ruling, Justice Nembhard said she preferred to differ from the previous judgment and found instead that the Occupiers’ Liability Act, 1969 of Jamaica did not apply to Highway 2000.

The judge said in the previous judgment the court did not, however, state the bases on which it arrived at its conclusion.

“In the circumstances, on the basis of all the legal principles which have been examined and discussed in this analysis and findings, this court must respectfully differ,” Justice Nembhard noted.

Judgment was entered in favour of JIO and by its agreement, with no order as to costs.

Last week, attorney-at-law Aon Stewart, instructed by the law firm Knight, Junor & Samuels, who represented Melbourne, told The Sunday Gleaner that the judgment was not being appealed.

King’s Counsel Georgia Gibson-Henlin, who represented JIO, described the judgment as an “important clarification of the law that is applicable to highways”.

However, the retired Court of Appeal judge noted that “It is only a pity Melbourne’s case is not being appealed so that there can be some certainty in law.”

THE CASES

In 2013, Justice Batts had ruled that JIO was liable for an accident on Highway 2000 in the vicinity of Old Harbour, St Catherine, in which attorney-at-law Danielle Archer’s motor vehicle collided with a herd of goats on the night of April 8, 2010.

Justice Batts found that JIO “failed in its duty of care at common law as well as under the Occupiers’ Liability Act in that although being aware for many years of the problems of goats on the highway, the defendant failed up to the time of the accident to: (a) take any or reasonable steps to warn motorists of the danger; (b) to reduce the recommended speed limit in the vicinity; and (c) to take steps to improve the lighting on the highway.”

The judge, in awarding damages in Archer’s favour, found that Highway 2000 was a private property, occupied by JIO, which allowed access to persons who paid a toll.

A year later, in 2014, Erlene Melbourne filed a suit seeking damages against JIO for the death of her husband on the same highway. That case was decided by Justice Nembhard.

According to court documents, on the afternoon of February 13, 2011, the Melbourne family was travelling along Highway 2000, Phase 1 in St Catherine. As Osbourne Melbourne, who was the driver, approached the Bernard Lodge Bridge, a missile was thrown from the bridge, shattering the front windscreen of the vehicle.

Osbourne, who was also hit by the object, sustained multiple injuries and lost control of the motor vehicle. He was rushed to the Spanish Town Hospital, St Catherine, where he died.

Erlene contended in the lawsuit that it was JIO’s negligence that caused her husband’s death.

JIO filed a defence and named the attorney general as an ancillary defendant, seeking an indemnity and/or contribution for any sums of money for which it was held liable.

Stewart, who represented the claimant, focused on Section 3 of the Occupiers’ Liability Act and emphasised that the section established that the duty of an occupier, as contemplated by the statute, was that of common duty of care. He asserted that the occupier was to take such care as in all the circumstances of the case was reasonable, to see that the visitor would be reasonably safe in using the premises, for the purposes for which he was invited or permitted by the occupier to be there.

Stewart said the court was obliged to accept as a fact that an object was thrown by unknown persons from the bridge, in the vicinity of the highway, and JIO did not challenge that fact.

He said further that there was equally no issue that prior to the February 2011 incident, there were multiple incidents of stone-throwing from the bridge. The question which arose, he said, was whether JIO took any steps to alert or warn users of the highway to the potential hazard, having had prior knowledge of previous incidents. He said there was no dispute that the claimant and the deceased were lawful users of the road and JIO owed them a duty of care.

Gibson-Henlin and attorney-at-law Ronece Simpson, who represented JIO, submitted that the Occupiers’ Liability Act did not apply to a highway. It was further submitted that the act was not applicable for the reason that the accident, as alleged, was not caused by the condition of the highway.

Gibson-Henlin maintained that the toll road was constructed and designated as such, for the benefit of the travelling public.

WRONGLY DECIDED

Gibson-Henlin submitted further that the ruling in the Danielle Archer case against JIO was wrongly decided or was distinguishable. She maintained that the authority was distinguishable as no argument was raised before the court in relation to the character of the road, having been designated a highway.

Gibson-Henlin said the Bernard Lodge Bridge was a public road and/or thoroughfare and the servants of the attorney general had the oversight responsibility of it, owing to the fact that the roadway had been handed over to the National Works Agency (NWA) prior to February 13, 2011.

However, attorney-at-law Faith Hall, who represented the attorney general, argued that the bridge did not fall under the NWA and the responsibility rested with TransJamaica Highway. She submitted that the NWA had no statutory duty to implement preventative measures to ensure the safe usage of the highway.

Justice Nembhard said she accepted the submissions of Gibson-Henlin that the Archer case must be distinguished. The judge found that in the circumstances, JIO could not be held liable in negligence for the action of the person or persons who threw the object that led to the death of Osbourne Melbourne. The judge ruled that the claimant failed to prove that what caused the damage, injury and subsequent death of Mr Melbourne was under the management of JIO or its servants.

The ancillary claim filed by JIO contending that the bridge was handed over to the NWA was dismissed, as the judge found that the evidence presented did not support that claim.

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