Bertrand Thomas Claimant v (1) Callan Andrews (2) Spronk Ltd Defendants [ECSC]
| Jurisdiction | Grenada |
| Judge | Ellis, J |
| Judgment Date | 17 August 2012 |
| Judgment citation (vLex) | [2012] ECSC J0817-2 |
| Court | Supreme Court (Grenada) |
| Docket Number | CLAIM NO.: Gdahcv2008/0549 |
| Date | 17 August 2012 |
AND THE WEST INDIES ASSOCIATED STATES
HIGH COURT OF JUSTICE
(CIVIL)
CLAIM NO.: Gdahcv2008/0549
Ellis, J.: By Claim Form and Statement of Claim filed on 11th November 2008, the Claimant commenced proceedings against the Defendant claiming damages for assault and battery.
The Amended Statement of Claim filed on 16th January 2009 claims that on or about 4th November 2006, the Claimant was a customer at the Second Defendant's premises known as Bananas Restaurant Bar and Nightclub (Bananas) when he was assaulted by the First Defendant, an employee of the Second Defendant.
The Claimant claims that as a result of the assault he sustained a fracture to his left foot and was unable to work for a period of three months. He claims specialdamages in the sum of $12,712.05, general damages, interest, costs and further or other relief.
In an Amended Defence filed jointly by the Defendants on 4th February 2009, the Defendants admit that the First Defendant slapped the Claimant but deny that this act was wrongful. They contend that on the night in question, the First Defendant was working as a bartender at Bananas when he approached the Claimant and requested payment for a drink purchased. They allege that the Claimant started to behave aggressively and pushed the First Defendant, throwing the contents of his drink in the face of the First Defendant and then pushed his hand into his pocket. The First Defendant states that he apprehended a further assault by the Claimant and in order to defend himself, he reacted instinctively and slapped the Defendant.
The Defendants contend that the First Defendant used no more force than was reasonably necessary to defend himself from the Claimant's unlawful and unprovoked attack.
They deny that they are liable for the pain and suffering, loss and damage incurred by the Claimant and dispute the contents of the medical report provided by the Claimant in support of his claim.
Alternatively, the Defendants deny that the Second Defendant was vicariously liable as the First Defendant was not acting in the scope or the course of his employment.
At the trial, the Claimant gave evidence on his own behalf. Kimberly Thomas swore a witness statement on behalf of the Claimant but failed to attend the hearing in compliance with the case management order. Following the Claimant's application, the Court ordered that her witness statement would not stand as evidence in the trial.
The First Defendant gave evidence on behalf of the Defence and called two other witnesses in support, Andy Cadore and Tracy St. Louis.
The Claimant contends in his witness statement that on the night in question he was a customer in Bananas when a friend offered him a drink. He was served by bartender Tracy St. Louis and his friend paid for his drink. The Claimant then entered the dance hall where he met with one of his daughters and her friends. He stated that he was in the dance hall for about 20 minutes when he suddenly saw three persons coming through the door, dressed in white and black. One of the gentlemen informed him that he owed money for one beer. He states that he told the gentleman that his friend had paid for the beer but if he did not then he (the Claimant) would certainly pay for it.
He states that in reply, the gentleman stated "Outside you going". He was then accompanied outside through the backdoor by the three persons. He states that he stood up and said "Let me pay for the beer" and reached into his pocket to take out the money to pay for the beer when he suddenly received a punch to the left side of his face. He states that he fell to the ground and when he got back up he experienced a sharp pain in his left ankle.
He then left the nightclub together with his daughter who witnessed the incident and who told him that the assailant was Callan Andrews, the barman employed by the Second Defendant. He states that he later reported the assault to the Police.
Following the assault he went to the General Hospital and was examined by the medical practitioner. On the 6th November he attended the St. Augustine Medical Services and a plaster of Paris was applied below the knee. This was maintained for a period of 6 weeks. He states that he still experiences pain in his left foot especially when standing or walking for longer than 30 minutes. He annexed to his witness statement a medical report from Dr. Kester Dragon, dated 10th February 2007, detailing his injuries and diagnosis. The Report indicates that the Claimant suffered a fracture to the left distal fibula and a left peri-orbital contusion.
Under cross-examination, the Claimant acknowledged that on the night in question he ordered a beer at the bar but did not pay for it because he thought that it had been paid for by his friend. He stated that this was not his first drink that night. He admitted that he had had some friends over to his house that evening and that he had consumed about five beers before he went to the Bananas. When he arrived he ordered one beer, which he later poured into a plastic glass, before going into the nightclub.
He confirmed that that he was approached in the club by three persons including the First Defendant, a security officer and a young lady. He stated that it was the security officer who told him that he had not paid for the beer. He testifies that he said, "Let me pay for the beer" but that at the time he was talking to himself and not to anyone else. The security officer asked him to accompany them outside the Club and he complied. He repeatedly denied that the First Defendant ever spoke to him that night.
He exited the Club with the security officer and the First Defendant following behind him. He denied that either the security officer or the First Defendant spoke to him while they were outside of the nightclub. He denied that he was upset because he had been asked to pay for the beer or that he pushed or that he threw his drink at the First Defendant. He stated that he put his hand in his pocket to get the money to pay for the beer when he was struck by someone from behind him. He stated that he fell forward on his face. When he got back up he turned around, faced them and asked the security why he had hit him (although at the time he stated that he did not know who had struck him).
When examined by the Court, the Claimant stated that the blow he sustained was not a slap but rather a cuff to the left side of his face and over his eyes. He testified that at the time he was struck the security officer and the First Defendant were behind and to the left side of him. He repeatedly stated that at the time he was slapped he was not facing them.
Once they were outside the club, he also testified that he had no conversation with them before he was struck. He stated that prior to putting his hand in his pocket he made no statement indicating that he was going to pay for the beer. He indicated that he only made that comment when he was still inside the club.
The Claimant stated that after he got up he walked to his vehicle and went home. He later drove back to Bananas where he reported the incident to two police officers who were standing outside the bar.
The Claimant stated that he is the sole proprietor of a car rental agency and that his monthly salary at the time was $3,500.00. He states that he was unable to work for three months and was thus unable to pay himself a salary. He indicated that he had not disclosed any of his salary cheques during Discovery and that he exhibited only one medical certificate evidencing sick leave for the period 6th November to 20th November 2006.
In his witness statement, the First Defendant states that at the time of the incident he was employed by the Second Defendant as a bartender. He states that at around 1.30 a.m. of the morning in question, he was approached by one of the female bartenders Tracy St. Louis, who was working in the outside bar. She informed him that a customer had ordered a beer and had not paid for it.
He stated that along with the security officer, Andy Cadore and Tracy St. Louis, he went into the club. Once inside, Tracy St. Louis pointed out the customer. He approached the customer and told him that he owed for the beer. He then asked the Claimant to step outside because the music inside the club was very loud. The four of them went outside and Mr. Andy Cadore began to speak to the Claimant.
During this conversation the First Defendant states that he told the Claimant that the Heineken beer is only $6.00. He states that the Claimant then "chucked him" and threw all the contents of his glass in his face. When the Claimant dipped hishand into his pants pocket the First Defendant slapped him. The Claimant then fell and was picked up by Andy Cadore.
Under cross-examination, the First Defendant stated that at the time of the incident he was employed by the Second Defendant as a bar supervisor. He stated that he went into the nightclub along with the security officer Andy Cadore and Tracy St. Louis in search of the Claimant. When they initially approached the Claimant in the club there was very loud music playing which made it difficult to hear what anyone was saying. He denied that the Claimant ever offered to pay for the drink while he was inside the club.
The Claimant accompanied them outside with the Claimant walking to the front of them. He testified that the Claimant was standing in front of him with a plastic cup in his hand when he spoke to him. He stated that the Claimant pushed him and threw the contents of the cup into his face. He further testified that he saw the Claimant's right hand going into his pocket and that when he saw this, he slapped the...
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