Julian John v Eric Joseph

• Jurisdiction: St Lucia
• Judge: Innocent, J.
• Judgment Date: 12 December 2023
• Judgment citation (vLex): [2023] ECSC J1212-3
• Docket Number: CLAIM NO.: SLUHCV2021/0437
• Court: High Court (Saint Lucia)

Between:

Julian John (Administrator of the Estate of Ausnic Brad John, deceased)

Claimant

and

Eric Joseph

Defendant

CLAIM NO.: SLUHCV2021/0437

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Ms. Alberta Richelieu of Counsel for the Claimant

Mrs. Maureen John-Xavier of Counsel for the Defendant

Innocent, J.

1 The present claim arose out of a fatal motor vehicular collision that occurred on 11 ^th December 2018 along the Vieux Fort-Laborie Highway at approximately 8 o'clock in the morning.

2 Mr. Eric Joseph (the ‘defendant’), was the owner and operator of a motor omnibus travelling in a northerly direction towards the village of Laborie. En route, the defendant attempted to pass another vehicle that stood stationary on the left hand side of the highway and in so doing entered the opposite lane of the highway where he collided with the motor cycle operated by Mr. Ausnic Brad John (the ‘deceased’) who was travelling in a southerly direction towards the town of Vieux Fort.

3 The deceased suffered severe injuries which included severe head trauma, chest trauma, pelvic trauma and hepatic injury and pelvic fracture. He subsequently died at hospital on the same day as a result of his injuries. He as 28 years old, and self-employed in the landscaping business in Canada and also engaged in the importation of motorcycles for sale. He was also the son of Mr. Julian John (the ‘claimant’).

4 The defendant who was 51 years old at the time of the collision suffered severe personal injuries which included: left zygomatic and maxillary fracture; fracture of the 2 ^nd to 5 ^th metatarsals of the left foot; fractures of the distal ends of the 1 ^st to 4 ^th metatarsals of the right foot; multiple facial fractures including a complete fracture of the left side of the face; compound fracture of the left zygomatic maxillary complex; loss of vision of the left eye; a deep facial laceration extending from the forehead across from the left side of the nose and culminating at the cheek; comminuted fracture of the orbital bone and fractured teeth.

5 The collision also resulted in the total loss of the defendant's omnibus.

6 The claimant is the administrator of the deceased's estate. By a claim filed on 2 ^nd November 2021 he is sought to recover damages consequential on his loss of life for the benefit of the deceased's estate and on behalf of himself and another dependents in this case, the mother of the deceased, as a result of the defendant's negligence.

7 Therefore, the claim comprised two separate causes of action. The first pursuant to Article 609 of the Civil Code 1 wherein on the death of any person, all causes of action subsisting against or vested in him shall survive for the benefit of his succession. The second made pursuant to Article 988 of the Civil Code which permits the administrator of the estate of a deceased person to bring a claim to recover damages for the dependents of the deceased and to recover funeral expenses of the deceased if such expenses were incurred by the parties for whose benefit the claim was brought.

8 The claimant pleaded that the defendant was negligent in failing to take proper care to avoid colliding with the deceased while attempting to pass a stationary vehicle on his left hand side of the road; failing to keep a proper look out for the approach of the deceased; driving too fast and failing to take any steps to avoid the collision.

9 In his defence, the defendant denied that he was negligent in the manner alleged by the claimant; and that the collision occurred solely as a result of the negligence of the deceased. The defendant's pleaded case was that while driving along the highway there was a motor car driving ahead of him which indicated that it was turning left. The motor car stopped and he indicated right and moved away from the car towards the right hand side of the road presumably in a northerly direction. He alleged that when he did so the road was clear implying that there were no vehicles travelling in the opposite direction at the time.

10 He further alleged that before he could complete his maneuver and steer clear of the motor car he saw the motorcycle operated by the deceased travelling in the opposite direction at high speed. According to the defendant's pleaded case, he had no time to maneuver away from the motorcycle and it collided with his omnibus violently.

11 Essentially, the defendant pleaded in his defence that there was nothing he could have done to avoid the accident. The defendant pleaded that the collision would not have occurred but for the speed at which the deceased was travelling. The defendant also attributed the cause of the collision to the existence of what may be described as a blind corner which impeded the view of traffic travelling in either direction.

12 The defendant also counterclaimed for personal injuries, loss and damage sustained by him consequent on the collision. He also pleaded that the collision was caused or contributed to by the deceased's negligence in operating his motorcycle. He alleged that the deceased was negligent in that he drove too fast or otherwise in excess of the speed limit prescribed for that area; failed to keep any or any proper look out for traffic approaching from the opposite direction; failing to slow down sufficiently as he approached the corner; failed to operate his motorcycle in such a manner to avoid colliding with him; and operated the motorcycle without having in force a policy of insurance and a driver's license authorising him to operate the same.

13 In his reply and defence to the defendant's counterclaim, the claimant denied that the deceased was driving at high speed and pleaded that in fact it was the defendant who drove at high speed which was evidenced by the distance the omnibus stopped after the collision; and that the accident would not have occurred but for the defendant's negligent attempt at passing the stationary motorcar at high speed on the opposite side of the road and in the path of oncoming traffic. The claimant also pleaded that the defendant failed to obey the no overtaking sign erected on the left hand side of the road in the direction in which he was travelling. The claimant also denied that the deceased was negligent or that his driving caused or contributed to the collision.

14 The issues arising in the present proceedings are:

The court will first determine the question of liability before proceeding to consider the questions related to damages.

• (1) whether the deceased died as a result of the defendant's negligence;

• (2) if (1) is answered in the affirmative, what is the measure and quantum of damages to which the claimant is entitled;

• (3) whether the claimant is entitled to recover damages both on behalf of the estate and the dependency;

• (4) whether the collision was attributable to the negligence of the deceased;

• (5) if (3) is answered in the affirmative what is the quantum of damages to which the defendant is entitled from the deceased's estate;

• (6) whether there was contributory negligence on the part of the deceased;

• (7) if (5) is answered in the affirmative what is the appropriate apportionment of liability between the respective parties.

15 Article 985 of the Civil Code provides that every person capable of discerning right from wrong is responsible for damage caused either by his act, imprudence, neglect or want of skill, and he is not relievable from obligations thus arising.

16 Where a claimant relies on Article 985, the onus is on the claimant to prove as a precondition of the defendant's delictual liability that the damage was caused by the defendant's fault. 2

17 The word fault is to be understood in its technical sense to signify the concept which is expressed in the word “act, imprudence, neglect, or want of skill,” appearing in Article 985 and which is defined in Article 985 D (1) as:

“negligence, breach of statutory duty or other duty or other act or omission which gives rise to a liability in tort or would, apart from this article, give rise to the defence of contributory negligence.”

18 Thus Article 985 falls to be interpreted in accordance with the Law of England by virtue of Article 917A of the Civil Code which provides that the Law of England relating to torts shall extend to Saint Lucia and the provisions of Articles 918 to 989 shall as far as practicable be construed accordingly.

19 The claimant must therefore prove on a balance of probability that the defendant owed the deceased a duty to take care, and that the defendant was negligent or in breach of that duty to take care, and that the injuries which the deceased suffered resulting in his death, were caused by the defendant's negligence or breach of duty.

20 The general principle is that a driver of a motor vehicle owed a duty to care to persons on the highway to drive with the degree of skill and care to be expected of a competent and experienced driver.

21 The undisputed facts are that at the material time there was a motorcar travelling in front the defendant's vehicle which stopped and the defendant attempted to maneuver right past the white car. It is also not in dispute that the collision occurred

on the left hand side of the road heading south in the direction of Vieux Fort, that is, the side on the road where the deceased was operating his motorcycle

22 The main areas of dispute and contention between the parties as can be gleaned from the pleadings, evidence and submissions of the parties concern the speed at which both the deceased and the defendant were travelling and the precise area where the collision occurred. Also in dispute was whether either of them had done what was required of them to avoid the collision; and whether the manner of driving of either or both the claimant and the defendant amounted to negligence – the question of causation. Another area of...