Greenidge v ‘One Bally’ et Al
| Jurisdiction | St Lucia |
| Judge | Bishop, P.J. |
| Judgment Date | 20 December 1965 |
| Neutral Citation | LC 1965 HC 7 |
| Date | 20 December 1965 |
| Docket Number | 51 of 1962 |
| Court | High Court (Saint Lucia) |
Supreme Court
Judge(s): Bishop, J.
51 of 1962
K. A. H. Foster for the Plaintiff.
E. F. Glasgow for the Defendants.
Damages
Personal injury — Plaintiff claimed damages for personal injury suffered as a result of the negligent driving of the defendants — Plaintiff suffered injury to his shoulder blade and wrist — Damages of $1,300 awarded.
On the 20th July in the year 1962, the Plaintiff by his solicitor filed a Writ of Summons accompanied by a declaration in which he made certain allegations against two persons namely one Bally, proprietor of Vieux-Fort, and one Alcide a chauffeur of Vieux-Fort. In his declaration it was alleged that the first-named defendant—One Bally—was registered owner of motor bus H 1121, and that the second-named defendant was “at the same material time the driver as a servant and/or agent of the first-named defendant.
The plaintiff alleged further that on the 10th June 1961 the 2nd named defendant drove the bus so negligently on the Dennery Public Road that it collided. with motor van 1376 and as a result the plaintiff who was a passenger in the van was injured. The particulars of negligence and damage were set out in the declaration in which the plaintiff claimed special damage of $300.00 and general damages.
Appearance was entered for the defendants on 12th October 1962—a long time after the delay fixed by the law of the territory for entry of appearance. Service of such appearance was accepted by the plaintiff's solicitor ‘who then on the 27th October 1962, filed a demand for pleas on which he gave notice to the defendant's solicitor to plead to the merits of the case “on the pain of foreclosure.”
On the 11th December 1962 the plaintiff's solicitor filed a motion in which he prayed “that the Registrar shall enter a default against the said defendants whereby they are foreclosed from pleading and a certificate of Foreclosure be granted to the plaintiff so that he may proceed ex parte.” On the same dale the Registrar's certificate was filed; it indicated that the defendants had appeared but had not pleaded and were thereby foreclosed from pleading. On 14th January 1963 the plaintiff's solicitor filed an inscription for proof and hearing which from the record available to the Court was never served upon either of the defendants.
On 31st May 1965 without any reference on the record to indicate that the defendants had changed their solicitor, notice of motion for leave to file a defence was filed by another solicitor on behalf of the two defendants and service of the copy of this motion and of the notice of motion and of the affidavit in support thereof was effected on the plaintiff's solicitor on the same date.
On 15th July 1965 the matter came before the Court for hearing and Counsel for the defendants applied for leave by virtue of Article 32 of the Code of Civil Procedure to file a defence.
Counsel for the plaintiff did not raise any objection to the present position of the record nor did he oppose the request of counsel for the defendants; indeed he made an application “to strike out the first named defendant and permission to amend the declaration in the light of further information.” The Court made an order granting the plaintiff leave to withdraw the case against the first-named defendant and to strike his name from the declaration, with the first-named defendant, by agreement, being awarded costs to be taxed. The application to amend the declaration was granted, the amended declaration to be filed within five days of the 15th July 1962. The Court also granted the application of counsel for 2nd named-defendant to file a defence.
I think it is necessary for me again to bring to the attention of solicitors and counsel that the provisions of the law as contained in the Code of Civil Procedure must be honoured in the observance. The apparent disregard of the requirements of this Code reflects to the discredit of those who are expected to abide by and practice it and indeed it would seem to me that there is almost a tacit understanding that the Code of Civil Procedure of St. Lucia or any other procedure should be ignored and waived so that counsel merely come to the Supreme Court of the territory to a position in which it is not a Court of pleadings but a Court where as long as merits are mentioned, then this is good enough and justice is done. In my view this cannot be so; the requirements of the code are formulated in an endeavour to ensure justice in the procedure used by one party towards another, as well as on the merits, and merely to ask a Court to determine a matter of some four years past on the merits which must be contained in the testimony of witnesses testifying on events four years later is almost a mockery.
An amended declaration was tiled on 2ist July 1965 in which the plaintiff Colford Greenidge alleged that the defendant Alcide was the registered owner of the bus H 1121 and that on or about 10th June 1961 on the Dennery Public Road he so negligently drove and controlled the vehicle that it collided with motor van No. 1376 and injured the plaintiff who was then a passenger in the van. The particulars of negligence alleged were :
“PARTICULARS OF NEGLIGENCE:
(1) Failing to keep a proper lookout,
(2) Driving too fast,
(3) Driving on the wrong side of the road,
(4) Failing to give any or sufficient warning of approach,
(5) Failing to stop or to avoid the collision. ”
and the particulars of damage alleged were:
“PARTICULARS OF DAMAGE:
( 1) Star-shaped fracture of the left shoulder blade,
(2) Fracture of left radius and the left wrist joint,
(3) Abrasion on the forehead. ”
The plaintiff claimed special and general damages as a result.
The facts in this case are to be found in the evidence of the plaintiff and a witness on the one hand, and that of the defendant and a witness on the other hand. It is particularly striking however that there are two vastly different, and one might say, opposite accounts as to how the collision occurred.
Briefly, the plaintiff's account of the incident is that the van in which he was travelling as a passenger was being driven by one Roy Ashby along the Dennery Public Road going from Dennery towards Vieux-Fort. While being driven around a slight bend in the road, a motor bus or truck H 1121 which was travelling at great speed (40 to 45 miles per hour) on its right hand side of the road in the opposite direction, collided with the van and caused damage to the van and injuries to the plaintiff. At the moment of collision the van was stationary.
The defendant's account in brief is that he had driven the vehicle H 1121 on the left hand side around the bend going towards Dennery and after he had passed the bend—about 50 feet beyond it—the engine of the bus failed and the vehicle came to a halt on the left hand side of the road. Then, he was examining the engine from the front of the bus and as a result of a, warning he moved; and the van travelling at a fast rate (40 miles per hour) collided with the front of the bus.
So that it would seem that the plaintiff is alleging that the van was stationary when it was struck by the bus moving at 40 to 45 miles per hour while the defendant is contending that the bus was stationary when it was struck by the van moving, at 40 miles per hour—an unusual position if even there was one.
In order that this Court may determine which account of the incident is more probable it becomes necessary to scrutinise the testimony which was given on both sides.
Take then the plaintiff's case. Colford Greenidge the plaintiff a mason of Castries stated on oath that on 10th June, 1961 he was a passenger aboard the van, number 1376, which was being driven along Dennery Public Road from Dennery to Vieux-Fort. When the van was about one and a half miles from Dennery it was being driven around a slight bend and the plaintiff! according to his version “saw the motor bus H 1121 travelling in the opposite direction on our left hand side of the road.” The plaintiff though he was not a licensed driver, nevertheless on the basis of the fact that he had been driven in vehicles for about 30 years as often as three or four times per week expressed the opinion that the bus was travelling around 40 to 45 miles per hour. He said that the driver of the van had stopped on the left hand side of the road for about a second or so before the bus struck the van “head on”, forcing it backward for a distance of ten to twelve feet. The plaintiff suffered fractures to his left wrist and left shoulder and an abrasion on his forehead. He was hospitalised at the Victoria Hospital where he remained as a patient for eight days. The plaintiff produced a medical report which indicated:-
“(1) A star-shaped fracture of his shoulder-blade which caused loss of function for three months. He has now totally recovered from this.
(2) A fracture of the lower end of his left radius, with several fragments, one part involving his wrist-joint. The latter was reduced, but its nature has left the patient with a slight backward displacement of his wrist which will mean that the power in that joint will always be about 85% normal.
The latter will interfere to some extent with his trade, but he should not be afraid of lifting as heavy an object...
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