Jennifer Prescott Claimant v Aldrick Parris John Primus Defendants [ECSC]

JurisdictionSt Lucia
CourtHigh Court
JudgeWilkinson J.
Judgment Date13 June 2013
Judgment citation (vLex)[2013] ECSC J0613-2
Docket NumberSLUHCV2009/0172
Date13 June 2013
[2013] ECSC J0613-2

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

SLUHCV2009/0172

Between:
Jennifer Prescott
Claimant
and
Aldrick Parris John Primus
Defendants
Wilkinson J.
1

Ms. Jennifer Prescott filed her claim form and statement of claim on February 19th 2009. Therein she alleged that due to the negligent driving of Mr. Aldrick Primus, who was driving Mr. John Primus' Mitsubishi Pajero jeep registration number PB 448, on Sunday March 5th 2006, at approximately 9.00 p.m. along the Marc road she suffered personal injuries which resulted in loss and damage. She sought the following relief:

  • I. Special damages totaling $52,400.00;

  • II. General damages to be assessed;

  • III. Interest thereon

  • IV. Costs hereof.

2

At March 11th 2013, on application pursuant to CPR 2000 Rule 21 an order was made appointing Mr. Aldrick Parris the Representative of Mr. John Primus for the purpose of these proceedings there being a medical report in support stating that Mr. Primus had been diagnosed with dementia.

Issues
  • 1 Whether Ms. Prescott or Mr. Parris or both were liable for the accident.

  • 2 And if Mr. Parris is liable for the accident, whether Mr. Primus is vicariously liable.

Evidence

The uncontested evidence is that (a) on March 5th 2006, at approximately 9.00 p.m. there occurred a motor vehicle accident on the Marc road while Ms. Prescott was walking along the road and Mr. Parris was driving a jeep registration number PB 448 on the said road; (b) Mr. Primus' owned the jeep involved in the accident, (c) Mr. Parris was employed by Mr. Primus as his maintenance man at the material time, (d) Ms. Prescott suffered injury and loss, (e) Mr. Primus' insurer, West Indies General Insurance Company Ltd. has paid certain of the bills presented to it by Ms. Prescott as part of her expenses incurred on obtaining medical treatment, and (f) Ms. Prescott has failed to provide any receipts or invoices to support her claim of special damages for fifty two thousand four hundred dollars ($52,400.00).

Issues
Evidence
The Claimant
3

At the material time, Ms. Prescott was a young woman aged thirty six (36) years old and the mother of three (3) young children. She lived along the Castries/Bexon Highway. According to Ms. Prescott, on the evening of March 5th 2006, at approximately 9.00 p.m. she was walking along the left side of the Marc road in the direction of the Castries/Bexon Highway enroute to her home. As she was walking she observed the jeep driven by Mr. Parris driving in the opposite direction as he drove into the Marc community. The jeep was travelling at great speed, off its left side of the road, it veered across the road and collided with her on the jeep's right side on the side of the road where she was walking. Ms. Prescott was injured in the accident. The accident happened approximately five (5) houses from the junction of the Marc road and its junction with the Castries/Bexon highway.

4

Shortly after the accident Ms. Prescott was taken to the Victoria Hospital at Castries. There she was seen by a doctor, it was recommended that she keep her injured right leg elevated and on the same night she was discharged.

5

Following the night of the accident, Ms. Prescott continued to suffer intense pain and discomfort and so she of her own accord decided to get an x-ray done of her right leg at Helen Diagnostic Centre where there were doctors in attendance. According to her, the x-ray did not reveal the full extent of her injury as she continued to suffer intense pain and her leg became black and blue. Approximately ten (10) days later she visited the St. Jude Hospital at Vieux Fort for medical attention. There she was referred by the General Practitioner to the consultant orthopedic surgeon, Dr. Ndidi Dagbue. She was informed that ligaments in her right leg were torn. She pursued the recommended course of physiotherapy for approximately two (2) months but there was no improvement. In her pursuit of treatment for her right leg Ms. Prescott on the recommendation of one Ms. Alfred of Mr. Primus' insurer saw another consultant orthopaedic surgeon, Dr. Horatius Jeffers and he recommended an MRI scan. There was at the time no facility at Saint Lucia for an MRI scan.

6

At June 26th 2006, Ms. Prescott travelled to Martinique for the MRI scan and presented letters from both Dr. Ndidi Dagbue and Dr. Jeffers to Dr. Ditimille under whose care she was while at Martinique. An MRI scan was done. Upon the results of the MRI scan being seen by Dr. Ditimille, surgery was recommended and she had the surgery at October 2nd 2006. Ms. Prescott said that the surgery involved taking a strip of tendon to graft to the inner ligament from the tibia to the femur. There were also affixed in her right leg two (2) metal staples used to re-attach a ligament and a screw was used to hold the graft in place. The metal staples and screw remain in her leg up to the date of trial. At February 2008, there was a follow-up visit at Martinique with Dr. Ditimille.

7

Ms. Prescott was assisted by her mother, Ms. Matilda Emmanuel who travelled with her to Martinique as she was unable to care for herself or move around without assistance. Her mother assisted her for twenty two (22) days at Martinique and then returned to Saint Lucia to assist in looking after Ms. Prescott's children who had on her departure to Martinique been left in the care of her eighty four (84) year old grandmother. Ms. Emmanuel returned to Martinique on the day of Ms. Prescott's surgery and remained there for a further twelve (12) days assisting Ms. Prescott. The airfare for Ms. Emmanuel's travel to Martinique was not paid for by the Mr. Primus' insurer.

8

Post surgery Ms. Prescott's doctor prescribed physical therapy of walking and various exercises together with a brace which kept her right leg straight for support of her knee whichwould collapse. She purchased this brace. She was to use this brace when walking downhill, in stoney areas and sometimes when at home and in pain. She has great discomfort when she walks in the straight brace for by keeping her leg straight when she is walking, she becomes tired very fast. More recently, Ms. Prescott has been prescribed a hinged brace which would allow her knee to bend on walking. She has not purchased this hinged brace due to lack of money.

9

At the time of the accident, Ms. Prescott had been employed approximately three (3) months as a sales assistance/shop attendant by Mr. Philious Francis in his small seafood parlour/restaurant near Praslin Bay in the Quarter of Micoud. There she earned seven hundred dollars ($700.00) per month breaking down to thirty five dollars ($35.00) per day and she worked five (5) days per week. At November 2012, Ms. Prescott obtained a job through the NICE programme and it is caring for an elderly person at a salary of one thousand dollars ($1000.00) per month. Her job involves cooking, dusting, and administering medication to the elderly person. She has been relieved of the duty on her job of lifting any heavy objects.

The Defendants
10

The Court during the course of Mr. Parris' testimony both in his own regard and as Representative for Mr. Primus made certain observations and finally asked Mr. Parris if he could read? He responded that he could not read "too good". The Court then read out to him in full the witness statement he had filed on behalf of Mr. John Primus. The Court records this against the background that when Mr. Parris' Counsel put him on the witness stand to give his evidence, there was no indication that Mr. Parris' own witness statement and that which he filed on behalf of Mr. Primus had been read over to him before he signed them.

11

Mr. Parris at the material time worked as a maintenance man for Mr. Primus. His hours of work were Monday to Friday 8.00 a.m. to 4.30 p.m. Mr. Parris as maintenance man took care of such matters as painting and repairs to the plumbing and electrical works at Mr. Primus' house, he also did the gardening, and sometimes he would look after Mr. Primus' person.

12

Mr. Primus owned the jeep registered as PB 448 and at some point it needed repairs and fell into disuse. It was subsequently repaired but by this time Mr. Primus no longer drove and he gave Mr. Parris the jeep to use for his job as maintenance man and in this regard Mr. Parris was recorded as a driver on Mr. Primus' insurance policy. Mr. Parris was also permitted to use the jeep for his personal affairs. Mr. Parris had been in possession of the jeep in excess of one(1) year at the time of the accident, and he was permitted to keep the jeep at his home when not using it for Mr. Primus' benefit. The state of the jeep at date of trial was that it was no longer owned by Mr. Primus.

13

At the material time of the accident Mr. Parris was returning to his home in Marc from Trois Piton, Forestierre, Castries where he had gone to drop off a friend.

14

In his witness statement Mr. Parris said that on approaching the corner leading into the Marc road he slowed the jeep, was driving within the speed limit, and was keeping a proper lookout; he observed that there were no other vehicles on the Marc road and proceeded to complete the turn at the corner into the Marc road. As he was completing the turn into the Marc road, still on his side of the road, he noticed Ms. Prescott crossing from the left side of the road to the right side of the road. By the time he completed the turn Ms. Prescott was already in the middle of the road. He applied his brakes and swerved to avoid the accident but despite his efforts the accident happened as Ms. Prescott was directly in the path of the jeep. Under cross-examination his evidence was contrary.

15

Under cross-examination Counsel for Ms. Prescott asked Mr. Parris the following questions and received the answers indicated:

Counsel: "And you hit Ms. Prescott, Mr. Parris when she was not walking in...

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