Tracy Lamont Jacobs v HSBC Bank Cayman Ltd - Judgment

¶ 1 IN THE GRAND COURT OF THE CAYMAN ISLANDS 2 CIVIL DIVISION 3 CAUSE NO. G354 OF 2013 4 5 6 BETWEEN: 7 TRACY LAMONT JACOBS 8 Plaintiff 9 AND HSBC BANK CAYMAN LTD. 12 13 14 15 16 Appearances: 17 18 -. 19 Before: 20 21 Heard: 22 23 Draft Judgment circulated: 24 25 Date of Judgment: 26 27 29 Application Defendant Mr. James Kennedy of Samson and McGrath for the Plaintiff Mr. Nick Dunne of Walkers for the Defendant Hon. Justice Richard Williams 24 November 2014 26 November 2014 28 November 2014 -: JUDGMENT 30

¶ [1] I have before me the Defendant's, fISBC Bank Cayman Ltd., Summons dated 7 31 March 2014 and filed pursuant to GCR 0.14 r.12, applying for an order 32 dismissing the Plaintiffs claim as having no prospect of success. An affidavit 3 3 sworn on 6 March 2014 by Chanda Glidden, in-house Legal Counsel for the 34 Defendant, has been filed in support of the application. 141128Jacobs v HSBC- Summary Judgment

¶ [2] The Plaintiff, Tracy Lamont Jacobs, opposes the application, and has filed an affidavit in defence of the application which she swore on 4 June 2014. The Procedural Background

¶ [3] Proceedings were initiated by a generally endorsed Writ of Summons filed by the Plaintiffs previous attorneys on 17 October 2013. Following the filing on 23 October 2013 of the Defendant's Acknowledgement indicating the proceedings were contested, the Plaintiff filed her Statement of Claim on 8 November 2013. The Defence was filed on the 20 November 2013 and the Reply to that Defence was filed on 5 February 2014.

¶ [4] On 10 March 2014 the Defendant filed the Summons which is before me today. When the Summons came before the Court on 14 May 2014, the Plaintiff made a successful application for an adjournment to enable her to file an affidavit in opposition to the application.

¶ [5] On 27 May 2014 Samson and McGrath were appointed as the Plaintiff's new attorneys. The hearing of the Summons was further adjourned on 14 August 2014 at the request of the Defendant's attorney who informed the Court that the Summons had not been properly served and that the Plaintiffs new attorney was 111128 Jacobs v HSBC- Summary Judgnirnt Page 2 of I I 1

¶ [6] On 13 November 2014 the Plaintiff filed a Summons for leave to amend the 2 Statement of Claim and her Replies to Request for Further and Better Particulars 3 pursuant to GCR 0.20, r.5. The parties agreed that I should hear and rule on that 4 application at the outset of this hearing before I proceeded with the hearing of the 5 Defendant's Summons. I heard the opposed application and gave an Ex Tempore 6 Ruling in which I gave leave to the Plaintiff to amend her Statement of Claim and 7 her Replies to Request for Further and Better Particulars in the manner sought. I 8 do not intend to herein set out the reasons which were contained in the Ex 9 Tempore Ruling, the transcript of which has already been provided to the parties. 10 After I had ruled, Counsel for the Defendant indicated that he was content for me 11 to move on and hear the Defendant's Summons and that he did not require an 12 adjournment as a consequence of the amendments. 13 14 The Plaintiffs Claim 15

¶ [7] The Plaintiffs claim set out in her Amended Statement of Claim is for damages 16 for personal injuries sustained by her while in the Defendant's banking premises 17 when she was attending as an invitee in order to conduct business there. It is plead 18 that as operator and occupier of the premises the Defendant had a duty to operate 19 the premises in such a manner to ensure that she was reasonably safe when using 20 the premises as a customer of the bank. . . 2 1 ~. . . . . ., . ' . ..,r I I .. . . :- r ,: #; c?T " ?Jf J " ' * ' . . .. . . .;,: . . \,. 'a . .; ,, .,,,',' ..,?. '; . .>'* . ,..',? ,,.-::?,+*$d , , ,.'~,. , . , , .*? -a+ LLTu.,+- --a+' 141128 Jacobs v HSBC- Summary Judgment 1

¶ [8] The Plaintiff alleges at paragraph 4 of the Amended Statement of Claim that as 2 she "stepped across the threshold/divider between the lobby's floor and the . , . / ,.C.: /L" \, >*. ' ' ,.. " . 7 . - . ' , ;. Bank's Wood flooring onto the wood flooring inside the bank" she "tripped at ' ?" .- t ,, \,s .<pi 7 ,.. . . . ~ b . 6 r . , . slipped at the raisedflooring divide which resulted in the Plaintiffifffalling 4 and/or ' . . 7

¶ [9] It is pleaded that there is a height difference between the strip of granite at the 8 threshold of the doorway and the timber covered floor surface of the banking hall 9 and that this created a hazard in the premises. The Plaintiff contends that her 10 identification of the height difference at the flooring divide as the area of accident 11 supports a contention that this is what caused the fall. It is further contended that 12 the Defendant was negligent in allowing this hazardous condition to persist on the 13 premises, and for not adequately warning patrons of its dangers. In the Amended 14 Statement of Claim and the Amended Reply to the Request for Further and Better 15 Particulars the Plaintiff contends that the different height elevation either side of 16 the door is in excess of half an inch and the absence of any bevelling of the slope 17 amount to breaches of the Cayman Islands Standard Building Code sections 18 1012.1.3 and 1012.1.4. 19 20 Defendant's Contention 21

¶ [10] The Defendant's submissions are helpfully set out in Mr. Dunne's detailed 22 skeleton argument, in which he comments upon both the Statement of Claim and 141128 Jacobs v HSBC- Summary Judgment I the Amended Statement of Claim. I have considered those written submissions 2 very carefully as well as Mr. Dunne's oral representations. 3 4

¶ [11] The Defendant asserts that summary judgment should be granted, contending that the Plaintiff fails to demonstrate a causal link between the injury and any ligence on the part of the Defendant. It is contended that when you consider case in its entirety it does not amount to a sustainable claim with a real rospect of succeeding. 9 10

¶ [12] It is contended that the Plaintiff, having stated a reliance on the contents of the 1I loss adjuster's report date 30 January 2013 prepared by Mr. Andrew Wilson from 12 Cunningham & Lindsey cannot demonstrate that the premises were hazardous. It 13 is contended that the report concludes that "there is no deject or design jeature of' 14 the jloor in the area in question which poses any tripping hazard whatsoever to a 15 person wcrlking through that area. " 16 17

¶ [13] The Defendant also contends that the Plaintiff has given a number of different 18 possible versions of the fall and has shown an inability to identify precisely the 19 cause of her accident. He places weight on the fact that she is unable to decide 20 whether she tripped or slipped. It is contended that pointing only to the general 21 area of the fall, does not mean that negligence should be presumed absent of 22 specific facts. It is submitted that the Plaintiffs negligence claim rests solely on 141128 Jacobs v HSBC- Summa?y Judgmenl " . . ,,,% < , . : ~ . . ~ . . d.., , " _ :.. <$.*.~. : ' , . " '..> ; 1 <:{the, ., fact of her injuries, that case is based on mere speculation and that it is not for , ! . . . . , , , e Court to carry out an inquisitorial exercise to establish how those injuries 4 5 TheLaw 6

¶ [14] Although there is not a great deal of local case law concerning the approach to be 7 taken in 0.14, r.12 proceedings, I am greatly helped by the approach advocated 8 by Smellie C.J. In the Matter of Omni Securities Limited (N0.3) [I998 CILR 9

¶ [2751] I make no apologies for replicating herein the guidance given by Smellie 10 C.J. and I cannot improve on his exposition. 11 12

¶ [15] Smellie C.J. reminded the parties at page 4 that the "primary objective" of 0 . 14 13 is the "timely disposition of cases which do not deserve to be allowed to go to 14 trial either because there is no prospect of a defence (0.14, r.1) or of a claim 15 (0.14, r. 12). " 16 17

¶ [16] Smellie C.J. cited with approval the following observations of Patterson Ag. J. in 18 Cribb v Reid 1997 CILR N-5: 19 "In my view, as I have said earlier, the scope o f 0.14, r. 12 appears 20 to be very wide. It gives a defendant the right to terminate 21 proceedings against him in a summary manner by showing that the 22 plaintiffs claim has no prospect of success. Ifthe d~findant is able 23 to show that the plaint~#s case is clearly unsustainable, then he will be entitled to judgment without the necessity of a possible long 24 141128 Jacobs v HSBC- Summay Judgment Page 6 of 11 1 drawn out trial. Ifthe issue raised by the defence is shown to be ., " , , . . 2 sujicient to finally determine the action in his favotrr without a full

¶ [3] , :!, scale trial, then in my view, an 0.14, r.12 application is x appropriate. These are but examples of the scope of the rule and are by no means exhaustive. The application of the proced~rre not only saves costs but it saves the time of the court. " 7 8

¶ [17] Srnellie C.J. went on to state at page 4 : 9 "I agree with those statements. I think they properly emr~hasize the 10 need to show that the plaintiffs case has no prospect o f success. 1 11 Indeed it is at some risk ofpedantry that one would seekfirrther to 12 define the test but it is a risk worth taking. I believe, in order to 13 emphasize that there should be rationalization between the test 14 upon an application by a plaintiffwith that upon an application by a defendant. f application o f the rule, there must be implicit the tests of reasonableness and realness.' I agree with Mr. Brindle that the rule could not properly be predicated only trpon a fanciful or improbable prospect of the plaintifs claim succeeding. And the fact that the rule is engrafted upon 0.14, allowing also for a defendantls application for summary dismissal, does to my mind imply the reverse of the test of 0.14, r. I which is applicable where a plaintiff applies for summary judgment. That test, as stated in the headnote to National Westminster Bank PLC v. Daniel (14) in The AN England Luw Reports ((19941 1 AN E.R. at 156) requires a defendant seeking ' My emphasis by underlining. My emphasis by underlining. 141128 Jacobs v HSBC- Summary Judgment 1 unconditional leave to defend to "satislfv that court that there is a 2 fair or reasonable probability of having a credible defence and not 3 merely that there is a faint possibility that he has a defence." 4 [Emphasis supplied.] (See also Argentine Holdings (Cayman) Ltd. 5 v. Buenos Aires Hotel Corp. S.A. (1) (1997 CILR at 97) where that 6 test was applied by this court upon a plaintifs application for 7 summary judgment.) 8 9 In applying this test, while one must be mindjirl of the cautionary 10 words of Danckwerts, L.J in Wenlock v. Moloney (16) ([I9651 I 11 W.L.R. at 1244)-expressed upon an 0.18, r.19 application-not 12 to usurp the position of the trial judge by embarking upon "a trial 13 of the case in chambers, on aJ?davits only, without discovery and 14 witho2rt oral evidence tested by cross-examination. . . " there none 15 the less has to be some assessment of the evidence presented in 16 support of the plaintifs case to see whether there is a fair and 17 reasonable probability or more than a faint possibility of success. 18 As was observed by Ackner. L.J. in Banque de Paris el des Pays- 19 Bas (Suisse) S.A. v. de Naray (3) ([I9841 1 Lloyd's Rep. at 23): 20 .. , "It is of course trite law that 0.14 proceedings are ~ 2k.- ~ , , . - . ' , .. ,:.;:~> 1. not decided by weighing the [opposing,' afidavits. It (4,. . . ,<. , ,, b 22.: _ j , 2 :* is also trite that the mere assertion in an afidavit of ..-:.., ? ! - ~ . !,.j3 > ., , ,-:..; - ,, , . . ;~,:;,> a given situation which is to be the basis of a p . ,i, -,; . 3> .?;,?A <, .$..,.A;# ')+$~:;?;y7sd~ defence does not, ipso facto, provide leave to ;$?/ .% $3,i:::L,o;? 25 -a"-a2wmx-e+- defend; the Court must look at the whole situation 26 and ask itself whether the defendant has satisfied 27 the Court that there is a fair or reasonable 28 probability of the defendant's having a real or bona 29 jde defence. " 111128 Jacobs v HSBC- Sulnrnary Judg~nenl . ,I 1 -_ That, in reverse, is the standard I have adopted in considering , . . 9': , .. whether the plaintiff has shown a fair or reasonable prospect of : .,I .. , , b 1 t . 3 . success. And, contrary to the express prohibition arising upon an .:3 .i" . a .; . - . . . 0.18 application, I think 0.14, r.13 by its terms implies some ,?-?Fa >, . . . :,:Q ; . . consideration of the evidence where it expressly invites a plaintiff ~i.'.,,; , ," %:.a ...;. ' L , _ _ > .." to show cause against a defendant's application by ,filing and ..,>.s.., " .'' 7 senzing evidence in reply. '" 8 9

¶ [18] 1 endorse Smellie C.J.'s view that a Defendant, to be successful on his 10 application, is required to show that the Plaintiffs claim is unsustainable. I also 11 agree that the test of reasonableness applies and if a Plaintiff is able to show there 12 is a possibility of his claim succeeding then the application will fail. 13 14 Conclusions 15

¶ [19] In the Amended Statement of Claim and her Amended Reply to the Request for 16 Further and Better Particulars the Plaintiff identifies the hazard which caused her 17 fall as being the different level of flooring at the doorway, which she also 18 contends fail to comply with the Cayman Islands Standard Building Codes. This 19 is now the basis upon which the Plaintiff grounds her claim. Although there may 20 be questions about how her pleadings were drafted by her previous attorney and 21 although in the past she may have suggested different possible scenarios for the 22 causation of her fall. both being areas that may be explored in cross-examination 23 at trial when she seeks to prove her claim, it does not mean that her claim at this 24 stage can be held to have no prospect of success. 141 128 Jacobs v HSBC- Summary Judgment 1

¶ [20] The Plaintiffs reliance in her pleadings on the loss adjuster's report does not, as 2 the Defendant submits, mean that her claim is fanciful. Mr. Andrew Wilson from 3 Cunningham & Lindsey in his report dated 30 January 2013, when concluding 4 that he did not identify any potential hazard which could have caught or trapped 5 the heel of a shoe, was not advising on the scenario that is now put in the ..* .. .. ended Statement of Claim. However, I note that he said on page 5 of his report "There is a high difference qfjust under an inch between the strip of granite . . the threshold of the doorway and the timber covered floor .service of the nking Hall. The leading edge of the threshold strip, racing the Bunking Hall, is 10 chantfered to prevent chipping and so as not to present a trip hazard. However, if 11 the heel of a shoe were to be placed close to the leading edge of this small step, 12 then it could present a hazard as there would he potential ,for the heel to slip 13 ,forward off the front edge. Such an event could cause the wearer to lose their 14 balance and possibly stumble and ,fall. " He went on to conclude "The only 15 significant hazard that we were able to identlfi in the area where the Claimant 16 ,fell, is the slight dlference in height behveen the strip of granite across the 17 threshold of the doorway and a timber floor of the Banking Hall. " 18 19

¶ [21] I am satisfied that there remain genuine issues of material fact in this matter. The 20 Plaintiff now pleads that the threshold was in a hazardous condition and that she 2 1 fell while crossing the threshold and that this caused her accident. This is not a 22 matter in which I find the Plaintiffs claim to have no prospect of success and that 141128 Jacobs v HSBC- Summary J~rdgmenl should be prevented. Accordingly I find this is not suitable for resolution by summary judgment and do not order the dismissal of the Plaintiffs claim. Costs

¶ [22] Having regard to the late amendments in the Statement of Claim and the Request for Further and Better Particulars, which both formed part of my deliberations, my preliminary view is to reserve the costs in relation to the two Summonses. However, either party may if they deem it appropriate seek to make further submissions on the issue of costs, before the order is perfected. The Honourable Mr. Justice Richard Williams JUDGE OF THE GRAND COURT ., .,. .,. ., Page I l of l l