Fitz v Baptiste et Al
| Jurisdiction | St Lucia |
| Judge | Bishop, J. |
| Judgment Date | 01 March 1968 |
| Neutral Citation | LC 1968 HC 5 |
| Docket Number | No. 48 of 1967 |
| Court | High Court (Saint Lucia) |
| Date | 01 March 1968 |
West Indies Associated States Supreme Court. (High Court)
Bishop, J.
No. 48 of 1967
V.A. Cooper for the plaintiff.
I. D'Auvergne for first defendant.
St. George Murray for second defendant
Tort - Damages — Personal injury — The plaintiff was knocked down by the second defendant and sustained a broken leg as a result. The plaintiff suffered loss of earnings
Negligence - Traffic accident — Liability — The question was whether the second defendant drove his motor car negligently, thereby knocking down the first defendant and causing severe injuries
Held: The second defendant was held liable in negligence and the plaintiff awarded damages in the sum of $400.00.
The negligence of the defendant when driving the car was the cause of the accident. The second defendant did not keep a proper look out and drove without care and attention. Judgment given for the plaintiff.
Peter Fitz a laborer from Marigot des Roseau in this island claims damages from Bernez JnBaptiste, and Athanaze Hippolyte both of Castries in this island for the negligent driving of motor car, number 870, on the 24 th October 1965 along the Roseau Nigh Road in the quarter of Roseau in this island.
The plaintiff's declaration, filed on 13 th April 1967 stated inter alia:
“2. The first named defendant is the owner of Motor Car No. 870 and the second named defendant was the driver of the said Motor Car at all material times.
3. While so walking on the left hand side of the road the second named defendant, the said ATHANAZE HIPPOLYTE so negligently drove the said motor car No. 870 as to knock down the defendant and cause severe injuries to e defendant.”
On application from counsel for the plaintiff and there being no objection from counsel for the defendants, leave was granted to amend the particulars of negligence alleged to read: “The defendant No. 2 drove without due care and attention”.
The particulars of damage which the plaintiff alleged were, “(a) broken leg severe shock (c) loss of earnings and earning capacity estimated at $6.00 per y (d) pain and suffering “.
Then the plaintiff claimed as follows:
“1. $2,100 being 70 weeks wages at $30 per week.
2. Special damages — $30 per week from March 15 th to date of judgment.
3. $1,500 for shock.
4. $1,500 for pain and suffering.
5. $1,500 general damages.”
At the outset of the case I referred to the attention of counsel the items 3, 4 & 5 above, and asked whether these amounts could be pleaded as it seemed unusual to me to do so. Counsel for the plaintiff stated that he was claiming items 3 and 4 as special damage, and he applied for leave – which was granted — to delete the figure of $1,500 in item 5.
In his final address, counsel for the plaintiff indicated that he was not pursuing paragraph (c) of the particulars of damage and I have therefore given it no further consideration.
In his defence filed on the 20 th April 1967, the defendant Jn Baptiste admitted being owner of the car No. 870 but he denied each and every other allegation contained in the declaration.
As a result of a request on behalf of the defendant Athanaze Hippolyte for “further and better particulars of the Declaration as to the time the alleged incident occurred” and to “the actual part of the road (its location in terms of the surrounding area) where the alleged incident is supposed to have occurred plaintiff stated that the time was “about 6:00 p.m. “and that the incident occurred “5 to 6 chains south of the Roseau Bridge”. Thereafter, the defendant Athanaze Hippolyte admitted “that on the 24 th October 1965, he drove motorcar No. 870 from Castries to Anse-la-Raye between the hours of 5:30 p.m. and 6:05 p.m.” He denied that he drove negligently and also “that he knocked down the plaintiff thereby causing him any injury or injuries as alleged”.
At the beginning of the hearing counsel for the defendant JnBaptiste submitted, and I quote him:
“that the declaration disclosed no allegations of fact which constitute a cause of action against the defendant JnBaptiste whereby the plaintiff could claim any relief or remedy. It is not alleged that the owner and driver were in any way connected… For the owner to be liable it must be shown or stated in the declaration that the driver was acting as the agent or servant or in some respects as bailee of the owner.”
Counsel submitted that the pleading should be struck out under article 147 of the Code of Civil Procedure of St. Lucia.
In reply, counsel for the plaintiff submitted that this was a preliminary objection which should have been raised in the defence when it was filed. He also relied on article 147(2) Code of Civil Procedure and on articles 130 am of the same Code.
It may be helpful to cite article 147 of Code of Civil Procedure which was cited by both counsel in support of their submissions. This article reads thus:
“147 (subsection 3 –1957) (1) No particular form of words is required in any pleading, but the pleading must contain a concise statement of the material facts on which the party relies, in sufficient detail to enable the court to ascertain the issue, or issues which, it is required to determine.
(2) The defendant or plaintiff (as the case may be) must raise by his pleading all matters which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, prescription, release, payment, performance, or facts showing illegality.”
Counsel for the plaintiff also submitted that the onus rested on the owner to prove that the driver was not acting as his servant or agent. He cited the case Egginton v. Reader [1936] 1 All E.R. 7 and article 986 of the Civil Code of St. Lucia.
I do not share the view that it is only necessary for a plaintiff to plead simply that one of two defendants is owner of a vehicle and then by so doing there is automatically cast upon the owner the burden of proving that the other defendant who is named as the driver of the vehicle was not acting as the owner's servant or agent or in the capacity as bailee. I do not agree that the case cited by counsel for the plaintiff can be successfully applied to the circumstances now before me.
I invited counsel for the defendant JnBaptiste to reply on the first point raised by counsel for the plaintiff. In his reply, counsel cited article 135(1) of Code of Civil Procedure and contended that this was a case in which there had been an abuse of the court's process, and further, that defendant JnBaptiste was improperly joined as a defendant because there was no cause of action disclosed in the plaintiff's declaration. Counsel also drew to the court's attention Article 171 of Code of Civil Procedure.
Article 171 of Code of Civil Procedure seemed to me to state that a person can be made a defendant whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate and settle all the questions involved in the action, and because of that and of the provisions in article 285 of Code of Civil Procedure whereby the court may allow amendment to a pleading so as to agree with facts proved, I deferred my ruling on the submission until the close of the case for the prosecution.
The court has heard evidence from the plaintiff and from thee witnesses in support of the allegations contained in the declaration.
The only evidence concerning the defendant JnBaptiste was to be found in the testimony of the witness Ormond Reece, Inspector of Police and keeper of the Register of motor vehicles in this island, who stated that consequent upon a report made to him on 25 th October 1965, by one Clifton Fitz, brother of the plaintiff he examined the Register and saw that the motor vehicle No. 870 was a Morris minor motorcar registered its the name of Bernez JnBaptiste. The witness also said that in the course of investigating the report, the defendant Athanaze Hippolyte made a statement to him in which he mentioned taking a Mrs. Jn Baptiste in the car No. 870 from Castries to Anse-la-Raye on the morning of the 24 th October 1965. The witness stated that he understood the defendant Hippolyte to mean the wife of the defendant JnBaptiste.
Under cross-examination by counsel for the defendant JnBaptiste, this witness said that he knew of his own knowledge that the defendant JnBaptiste was absent from this island around 24 th October.
That is the extent of the evidence against the defendant JnBaptiste.
At the close...
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