CLAIMANT’S SUBMISSION ON DAMAGES

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

HCV 3 OF 2015
CLAIM NO.

BETWEEN DEBRA CUNNING CLAIMANT

AND CRISS CAR SALES LTD FIRST DEFENDANT

AND PETER SURESHOT SECOND DEFENDANT

BACKGROUND

[1] This is a claim for wrongful dismissal, assault and battery and false
imprisonment which arose from a series of incidents which started in September
2014 at the company of Criss Cars Sales Limited, the first Defendant.

[2] The Claimant, Ms. Debra Cunning was employed by the First Defendant, Criss
Car Sales Ltd as Executive Assistant to the Second Defendant, Peter Sureshot
Managing Director of the First Defendant Company under a contract of
employment dated January 1, 2010.

[3] In September 2014, the Claimant and the Second Defendant had to work on an
important project which required them to work late hours. They successfully
closed the deal and celebrated with glasses of wine. Mr. Sureshot, the Second
Defendant became intoxicated and both parties shared a kiss. The Claimant
adamantly informed the Second Defendant that an affair on the job would
jeopardize their careers and such they should not pursue same.
[4] Following the encounter, the Second Defendant continuously sexually harassed
the Claimant through persistent phone calls, inappropriate sexual remarks,
inappropriate touching and frequent and unnecessary visits to her office.

[5] The Claimant on the 10th day of December 2014 made a verbal report to the First
Defendant’s Human Resource Manager who failed conduct an investigation into
the matter, wherefore, the Claimant made a formal report of the sexual
harassment claim in the form of a memorandum addressed to the said Human
Resource Manager and dated December 17, 2014.

[6] On the afternoon of December 17, 2014, The Second Defendant went to the
Claimant’s office demanding that she retract the memorandum in his presence,
the Claimant refused. On attempting to leave the office, Mr. Sureshot walked
behind the Claimant and forcibly grabbed her by the arm. The Claimant became
fearful whereafter, she turned around and slapped Mr. Sureshot in his face and
left the office.

[7] On December 18, 2014, the Claimant went to work and was barred from entering
by the security guard who gave her a letter of dismissal with immediate effect.

[8] It is against this background, that we ask that the following be taken into
consideration:

Damages
[9] The Claimant by virtue of the evidence adduced before this Honourable Court
has not sought compensation for special damages for any cause of action in this
matter. In respect to claims for general damages we humbly ask that your
ladyship takes the following into consideration:

Wrongful Dismissal
[10] It is the law that for a Claimant to be successful in a claim for wrongful dismissal,
she holds the burden of establishing that she was continuously employed for the
 requisite period; is dismissed without notice or without proper notice as required
by contract or statute or without payment in lieu of notice.

[11] Wrongful dismissal was defined in the case of Gabbidon (Edward) v Sagicor
Bank Jamaica Ltd [2020] JMCA Civ. 9 as breaches of a contract of
employment which are subject to litigation before the courts.

[12] An employee is entitled to sue for wrongful dismissal when: (i) The employee has
been engaged for a fixed period, or for a period terminable by notice and
dismissed either before the expiration of that fixed period or without the requisite
notice, and (ii) the dismissal must have been wrongful, that is, without sufficient
cause to permit his employer to dismiss him summarily.

[13] Section 3 (a) of the Employment (Termination and Redundancy Payments)

Act stipulates that the notice required to be given by an employer to terminate
the contract of employment of an employee who has been continuously
employed for four weeks or more should not be less than two weeks’ notice if his
period of continuous employment is less than five years.

[14] In the circumstances, given the facts as averred by the Claimant, there was in
fact a breach of her contract of employment as there was no notice provided or
payment in lieu of notice as is warranted by statute and the common law, thus
entitling the claimant to damages as a matter of law, in an amount to sufficiently
place her back into the position she would have been had the contract been
performed in so far as money can do so.

[15] The measure of damages that the Claimant is entitled to for wrongful dismissal is
prima facie the amount she would have earned had the contract of employment
continued according to contract and is subjected to any deduction in respect of
any amount from other employment which Ms. Cunning might have obtained or
should have reasonably obtained in an effort to minimize the damage.
[16] Thus, the measure of damages would be the contract price, that is, the salary
which the defendant had agreed to pay. (See: Casey Brown-Wilson v National
Solid Waste Authority and Joan Gordon Webley [2012] JMSC Civ 24. Or
Kaiser Bauxite v Vincent Cadien [1983] 20 J.L.R. 168; Mayne and McGregor
on Damages 12th edition page 522)

[17] We submit that the Claimant be awarded $2,500,000.00 for wrongful dismissal.

Assault and Battery

[18] Oddman, Steve abd Bowra, Orville v Attorney General of Jamaica and
Carwood, Sergeant [2016] JMSC Civ. 166 It was stated that “an assault
consist of placing a person in fear that is immediate, non-consensual and
unlawful, touching of his person, would occur.” Battery on the other hand is the
actual intended use of unlawful force to another person without his consent.
(see Winfield and Jolowicz of Tort 14th ed., 1994 at.p. 58)

[19] An assault or battery is justified if it’s committed in reasonable self-defence. The

question of what is reasonable is dependent on the circumstances of the case.
Ms. Cunning acted in self-defence when she slapped Mr. Sureshot. He however,
grabbed her arm thus assaulting her without cause.

[20] The Claimant has averred that the Second Defendant called her persistently,
made inappropriate suggestive remarks, and visited her office frequently, this in
and of itself caused her to apprehend immediate and unlawful personal violence
which therefore amount to assault as there is no evidence of consent on the path
of the Claimant. (Collins v Wilcock [1984] 3 All ER 374)

[21] The second Defendant’s act of touching the claimant inappropriately and forcibly
grabbing her on the evening of December 17, 2014 is evidence of battery as she
had not consented to same.

[22] The Claimant has conceded to slapping Mr. Surehot in the face, this was
however, out of fear and the natural instinct of any reasonable man in a similar
 position to defend herself, in essence, the Claimant acted in self-defence as it
was the intention of the Second Defendant to cause her harmful or offensive
contact or he was reckless as to same and there was no reasonable chance of
retreating or escaping the situation.

[23] Having established that the Claimant acted in self defence, the submissions by
the defence that Ms. Cunning’s dismissal was justified is negated. The
defendants had a duty to act within the ambit of the law, i.e. Section 3 (1) (a) of
the Employment (Termination and Redundancy Payments) Act as mentioned
above.

[24] In Nattal Smith v Newton Wright 2013 HCV03750 where the Claimant was
attacked by the Defendant and beaten with a machete, the Claimant was
awarded $450,000.00 as damages for Assault and battery. This amount today
updates to $459,971.10. The Claimant concedes that the circumstance in that
case was far more grievous and claims damages for assault and battery in the
amount of $350,000.00.

False Imprisonment

[25] False imprisonment as defined in Freckleton, Jerome v The Attorney General

of Jamaica and Dst. Sgt. Maurice Puddie [2018] JMSC Civ. 127 is the
detention of someone against his will without lawful justification. Mr. Sureshot
unlawfully and intentionally/ recklessly held Ms. Cunning against her will without
lawful justification when he prevented her from leaving her office.

[26] In Hermans, Winston v Anderson, Special Constable and The Attorney

General, [2015] JMSC CIV 94 where the plaintiff was detained by an officer for
five and a half hours before receiving bail for failure to leave the Norman Manley
International Airport, the court found that there was no legal justification for the
detention and thus the detention amounted to false imprisonment. This goes to
 show that detaining one for an unreasonable time or under unreasonable
circumstances amounts to false imprisonment.

[27] In John Planter v the Attorney General of Jamaica 2012 HCV 05266, the
Claimant was arrested by an officer at the Norman Manley International Airport
on suspicion that he was transporting cocaine. No reason was averred to the
court as to what gave rise to the suspicion. He was detained for fourteen hours
and was awarded $500,000.00 for false imprisonment.

[28] It is submitted that a sum in the amount of $200,000.00 is reasonable in this

case as compensation as Ms. Cunning was falsely imprisoned for far less time
than Planter.

Interest

[29] Section 3 of the Law Reform (Miscellaneous Provisions) Act provides that
interest be awarded at such a rate that the court shall think fit on the whole or
any part of the debt. Further, the case of Central Soya of Jamaica Ltd v Junior
Freeman (1985) 22 JLR 152 outlined that the accepted interest rate in Jamaica
is one-half the interest rate set by the Minister on judgment debts. The rate on
judgment debts is 6% per annum and thus the rate on General Damages is 3 %
per annum from the date of service of the claim on the Defendants to the date of
judgment.

[30] The claimant therefore claims interest at 3% on all claims for General Damages.

Cost

[31] We humbly ask that Cost be awarded to the Claimant to be agreed or taxed.

The Defendant’s Claim

Libel
[32] The 2nd Defendant has asserted that the Claimant reporting him to the human
resource manager for sexual harassment amounts to libel and as such claimed
for damages in said respect.

[33] For one to succeed on a claim for libel, it is the law that there is a false statement
purporting to be fact that that was communicated to a third party which caused
some damage or harm to the person who is subjected to the statement.

[34] In Percival Syblis v. Delores Haughton [2012] JMSC Civ. 178 the court stated
that “A man commits the tort of defamation when he publishes to a third
person words containing an untrue imputation against the reputation of
another. If the publication is made in a permanent form or is broadcasted,
the matter published is libel… Once libel is proved, the law presumes that
some damage will flow from the publication. It is therefore actionable per
se”

[35] The sexual harassment claim by the Claimant does not amount to libel as it was
in fact true and this operates as a defence as per S. 20 (3) (a) of the Defamation
Act, which states that -

3- “In proceedings for defamation, a defence of truth shall succeed if- (a)
the defendant proves that the imputations contained in the matter that is
the subject of the proceedings were true, or not materially different from
the truth.”

[36] As already stated, the Claimant has adduced evidence of sexual harassment by
Mr. Sureshot and therefore the Memorandum only speaks to the truth and the 2 nd
Defendant therefore should be awarded nothing under this claim.

[37] If your Ladyship does not agree with this submission, reliance is placed on the
case of Woman Corporal Jacqulin "Maxine" Kennedy v The Gleaner Co Ltd.,
Suit No. CL 1995/ K030 where the Claimant in that case was awarded
$750,000.00. It is submitted that should this court award judgment in favour of the
 2nd Defendant, then a sum in the amount of 150,000.00 would be an appropriate
sum as there was very limited publication and there are no aggravating factors.

Assault and Battery

[38] There is no dispute that the Claimant slapped the 2 nd Defendant in the face. The
2nd Defendant however, has not provided any evidence of pecuniary loss and
thus should not be awarded any sums for special damages as such damages
must be specifically pleaded and proven Hepburn Harris v Carlton Walker and
Murphy v. Mills SCCA No. 40/90.

[39] Should this court award judgment in favour of the 2 nd Defendant for assault and
battery, a nominal sum of $10,000.00 would be an appropriate sum.

Summary for the Claimant

General Damages
Wrongful Dismissal $2,500,000.00
Assault and Battery $200,000.00
False imprisonment $150,000.00
Interest at 3% from January 10, 2015 to November 6, 2020

Cost to be agreed or taxed

[40] Unless I am of any further assistance to this Honourable court, these are my
submissions.

DATED THE 26TH DAY OF OCTOBER 2020

Treshann Burell-Harriott

______________________________

CLAIMANT’S ATTORNEY-AT-LAW

Filed by Miller & Lewis, Attorneys-at-law at 20 General Ave, Kingston 4 whose telephone
number is 876-532-6651 and fax number is 876-532-6652.