Karen Handley Plaintiff v Cletus Joseph Rupert Ellis Gajadhar Defendants [ECSC]

• Jurisdiction: St Lucia
• Judge: d'Auvergne J.
• Judgment Date: 01 November 2000
• Judgment citation (vLex): [2000] ECSC J1101-2
• Docket Number: CIVIL SUIT 310 OF 2000
• Court: High Court (Saint Lucia)
• Date: 01 November 2000

[2000] ECSC J1101-2

IN THE HIGH COURT OF JUSTICE

CIVIL SUIT 310 OF 2000

Between

Karen Handley

Plaintiff

and

Cletus Joseph

Rupert Ellis Gajadhar

Defendants

Appearances

Mrs. Veronica Barnard for Plaintiff

Miss Gail Philip for the Defendants

1 d'Auvergne J. On the 23 ^rd day of March 2000 the Plaintiff filed a writ endorsed with a Statement of Claim seeking damages (Special and general), against the Defendants, (jointly and severally).

2 On the 12 ^th day of April 2000 an appearance was entered on behalf of the Second-named Defendant and on the 9 ^th of May 2000 an appearance was entered on behalf of the first-named Defendant.

3 On the 17 ^th day of May 2000 the Plaintiff filed an amended Statement of Claim, amending paragraph one which reads as follows: "On the 7 ^th day of April 1997 at about 2:47 p.m. a collision occurred on the Vide Boutielle Highroad when Motor Truck Registration No. HB4314 owned by the Second-named Defendant and driven by the First-named Defendant came into contact with the Plaintiff. The said collision occurred as a result of the negligent driving of the First named Defendant."

4 On the 9 ^th of June 2000 another appearance was entered for both Defendants and a Defence was filed on their behalf on the 13 ^th June 2000.

5 I pause here to reproduce paragraphs 1 and 2 of the Defence which read as follows:

Paragraph (1)

"Save that the second Defendant admits ownership of motor truck registration No. HB4314 and the First Defendant admits that he was driving the said motor truck along the Vide Boutielle Highroad at the material time, paragraph (1) of the Amended Statement of Claim and the Particulars of Negligence alleged there under are denied."

Paragraph (2)

The First named Defendant denies that he was negligent as alleged or at all and state that the injuries allegedly sustained by the Plaintiff was caused solely or contributed to by the negligence of the Plaintiff in attempting to jump across a drain running along the side of the said road as per Particular of negligence hereunder.

6 Four days later the Defendants filed a summons seeking the following:

• (i) That the Statement of Claim herein be struck out as disclosing no reasonable cause of action against the Second Defendant.

• (ii) The costs of this action be paid by the Plaintiff.

• (iii) The costs of and occasioned by this application be borne by the Plaintiff.

• (iv) Further or other relief.

7 On the 26 ^th June 2000 a reply was entered by the Plaintiff and on the 11 ^th day of July 2000 a summons was filed on behalf of the Plaintiff seeking an amendment to the first paragraph to include "At all material times hereto the First-named Defendant was the servant and or agent of the Second—named Defendant" after "Particulars of Negligence."

8 At the hearing in chambers on the 18 ^th October 2000 I heard the summonses in the order in which they were filed.

Learned Counsel for the Defendants argued that the Statement of Claim filed on the 23 ^rd March 2000 did not allege vicarious liability nor negligence against the Second named Defendant. She urged the Court to note that the last summons filed on the 11 ^th July 2000 for an amendment was the third application for an amendment, that after the first amended statement of claim the second-named Defendant was pleaded to be the owner of the vehicle; that no negligence was alleged against him nor was there pleaded any reference to his being reckless or vicariously liable.

9 Learned Counsel for the Plaintiff opposed the application by stating that the application was not out of time, that the Defendants had filed their defence and therefore it was too late to seek to have the statement of claim against the second Defendant struck off. She argued that since the pleadings stated that the second Defendant was the owner of the vehicle it therefore implied that he was vicariously liable.

10 She quoted Order 20 Rule 5 of the Rules of the Supreme Court 1970 and said that the Court had the power to grant the application of the 11 ^th July 2000 to insert the aforementioned noted at paragraph (7) at page...