Allen Wheatley d/b/a Wheatley Consulting; Wesley Penn d/b/a Accurate Construction National Education Services Company Ltd v John Schultheis; Bettito Frett
| Jurisdiction | British Virgin Islands |
| Judge | Joseph-Olivetti, J |
| Judgment Date | 21 December 2005 |
| Neutral Citation | VG 2005 HC 16 |
| Court | High Court (British Virgin Islands) |
| Docket Number | BVIHCV2004/0162 |
| Date | 21 December 2005 |
IN THE HIGH COURT OF JUSTICE
BVIHCV2004/0162
BVIHCV2004/0163
BVIHCV2004/0167
Terrance Neal with Kevon Swan of Mc Todman & Co. for the Claimants
Alan Griffiths Q.C. instructed by Michael Pringle of Maples and Calder for the First Defendant,
Lorna Shelly Williams of Farara Kerrins for the Second Defendant
(Negligence — fire in commercial building — damages to occupants and neighbouring vessels — duty of care owed by owner/landlord of building to occupants and owners of vessels; Res ipsa loquitur — whether Claimants can rely on this evidential rule in the circumstances of this case where cause of the fire unknown to Claimants)
Fire—the lifesaving gift to mankind for which compassionate Prometheus incurred the implacable wrath of Zeus and suffered cruel and inhumane punishment—is also a dangerous one as this case all too vividly portrays.
Mr. Bettito Frett is a businessman of some considerable success as he owns a marina complex at Wickhams Cay, Road Town, Tortola, British Virgin Islands. In the early hours of 25th September 2004 a fire broke out in one of his commercial buildings and despite, it would seem, the best efforts of the BVI Fire Department, the fire went out of control and destroyed not only the building but four vessels which were moored at docks adjacent to or near the building.
The Claimants, two of whom are owners of the boats (Ms. Williams-Verger and Mr. Maduro) and the other three, alleged tenants of the building, who conducted business thereon, by separate actions (which were later consolidated) brought suits in negligence against Mr. Frett for the damages they allegedly suffered to their property and businesses as a result of the fire. They also sued Mr. John Schultheis, another tenant of the building, as they allege that the fire originated in a part of the building used by Mr. Schultheis as a restaurant.
Mr. Schultheis in turn claims against Mr. Frett an indemnity, in case he is found liable on the basis that the fire arose from want of repair of the electrical wiring in his portion of the premises. To support his claim he relies on a covenant in his lease agreement whereby Mr. Frett covenanted with him to maintain the electricals on the leased premises. Mr. Frett denies the claim.
I must also say that Mr. Frett is counterclaiming for rent allegedly owed to him by Mr. Penn for the portion of the building leased to him. Mr. Penn denies liability.
All parties filed pre-trial memoranda of the issues for determination in accordance with the Court's Order and with CPR 2000 Part 38.5. On review of these, the main issues arising can be grouped under the broad heads as set out in the next paragraph.
Issues Arising:
- Have the Claimants made out a case to answer against both or either Mr. Frett and Mr. Schultheis with particular reference to the maxim of res ipsa loquitur? 2. Are Mr. Frett and or Mr. Schultheis jointly and/or severally liable in negligence to the Claimants or any of them for any damages arising from the fire? 3. In the event that Mr. Schultheis is found liable is he entitled to be indemnified by Mr. Frett.? 4. Is Mr. Penn indebted to Mr. Frett for arrears of rent? 5 In the event that either or both of them are found liable, what damages if any, are each of the Claimants entitled?
Mr. Schultheis prefaced his case before he led evidence by observing that the Claimants had not made out a case to answer, which was an intimation of the no case submission he made at the end of the trial.
In a nutshell, his Learned Counsel says that the Claimants are relying on res ipsa loquitar and that they are not entitled to do so for three reasons. Firstly, that for the maxim to apply at all the fire must be shown to have originated in Mr. Schultheis' premises and that on the evidence they have not done so. Secondly, that the rule only applies where negligence is the prima facie cause of the event and here this is not so as electrical fires can start without negligence, for example, by rats or water damage. For this last proposition, which he treated as a matter of law he relied on the dicta of Lord Wright M. R. in Collingwood v. Home and Colonial Stores Ltd1. Thirdly, that the doctrine does not arise where, as here, Mr. Schultheis raises a case of alternative cause, that is, one other than negligence. In this regard he too relies on his expert's opinion that the cause of the fire could not be determined but that the most probable source of ignition was an undetermined electrical failure 2. (It is noted that the expert, Mr. Douglas Davidson had been retained by the insurance adjusters on behalf of Mr. Schultheis' insurers to investigate the fire and his report, which comprises his initial report to his principals and a response to certain questions posed to him by way of clarification on behalf of Mr. Schultheis, was admitted into evidence by consent as expert evidence without calling the maker).
Mr. Frett made a no case submission at the close of the Claimants' case and the court indicated that it would rule on this at the end of the trial. Perhaps, in retrospect, a ruling should have been made at that time as not having done so perhaps cast a rather unfair burden on Mr. Frett to hedge his bets by calling evidence. As it is, in the light of my ruling Counsel had little choice but to call evidence and renew her submission at the close of the trial.
Essentially, counsel for Mr. Frett submits that the maxim of res ipsa loquitar does not apply to him because (1) the cause of the fire is known based on the expert's report. And, (2) counsel contends that Mr. Frett was not in occupation or control of the building at the relevant time-an element essential to the applicability of the maxim.
Needless to say the Claimants trenchantly resisted those submissions. In summary their counsel asserts that they are entitled to rely on the maxim as they did not know the cause of the fire, that a fire in these circumstances ordinarily results from the negligence of
someone and that Mr. Frett was the owner and in control of the building as even if he rented it out he still had a duty of care to maintain it and to ensure that no reasonably foreseeable harm resulted from any failure or omission on his part or on the part of someone for whom he is responsible. With respect to Mr. Schultheis, he says that the fire originated in the part of the building occupied by him and that he too was prima facie responsible for the fire.All the parties cited numerous authorities on the meaning of res ipsa loquitar, as set out in their written submissions and in the additional cases referred to at trial. As I understand it, there is no dispute as to what the law is; what they differ on is whether or not it is applicable to these particular facts.
I accept Learned counsel for Mr. Schultheis' submission that the Privy Council case (emanating from Hong Kong) of NG Chun Pui and others v. Lee Chuen Tat and another3 is the most recent and definitive and indeed the highest binding authority on res ipsa loquitar. That case concerned a road traffic accident. The facts were briefly that a coach skidded across the central reservation of a highway to collide with a bus traveling on the opposite carriageway causing serious damage—death and personal injuries and damage to property. The claimants at trial called no oral evidence but relied on diagrams of the accident and a report that the coach was in good repair and condition immediately prior to the accident and relied on their plea of res ipsa loquitar. The defendants gave evidence to the effect that the accident was caused when the driver of the coach took emergency action to avoid a collision with a vehicle which had suddenly cut in front of it. The court at first instance decided in the claimants' favour.
Lord Griffiths, who delivered the judgment, stated at p. 300 K that the “so called doctrine of res ispa loquitur” is no more than a Latin maxim to describe a state of the evidence from which it is proper to draw an inference of negligence. He went on to say that it is misleading to speak of the burden of proof shifting to the defendant where that maxim is invoked as the burden of proving negligence rests throughout on the plaintiff.
He then explained the circumstances in which the maxim may be invoked. He said that where a plaintiff has suffered injuries as a result of an accident which might not have happened if the defendant had taken due care, it will often be possible for the plaintiff to discharge the burden of proof by inviting the Court to draw the inference that on a balance of probabilities the defendant must have failed to exercise due care even though the plaintiff does not know in what particular respects the failure occurred. So, if the Defendant adduces no evidence, there would be nothing to rebut the inference and the plaintiff would have proved its case.
He also approved of Erie C.J.'s dicta in Scott v London and St. Katherine Docks Co. 4—
“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 defendants, that the accident arose from...
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