Phillip Eric Paston Bacon v Stephen King Rumelia King

• Jurisdiction: St Lucia
• Judge: Cenac-Phulgence, J
• Judgment Date: 15 November 2020
• Judgment citation (vLex): [2020] ECSC J0825-1
• Court: High Court (Saint Lucia)
• Docket Number: CLAIM NO.: SLUHCV2017/0469
• Date: 15 November 2020

[2020] ECSC J0825-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(Civil)

Before:

The Hon. Mde. Justice Kimberly Cenac-Phulgence High Court Judge

CLAIM NO.: SLUHCV2017/0469

Between:

Phillip Eric Paston Bacon

Stephanie Gilbert (Qua Administrators of the Estate of Quinton Garrathy, deceased)

Claimants

and

Stephen King

Rumelia King

Defendants

Appearances:

Mr. Horace Fraser for the Claimants

Mr. Alberton Richelieu with Mrs. Cynthia Combie-Martyr for the Defendants

Background

Cenac-Phulgence, J

1 The claimants, Phillip Eric Paston Bacon (“Mr. Bacon”) and Stephanie Gilbert (“Ms. Gilbert”), have brought this claim as Administrators of the Estate of Quinton Garrathy 1 against the defendants Stephen King (“Dr. King”)

and Rumelia King (Mrs. King”) for damages pursuant to articles 609 and 988 of the Civil Code of Saint Lucia 2 arising from a fatal motor vehicle accident

The Claim

2 The claimants' case is that on 3 ^rd August 2014 at approximately 1:30 a.m., Quinton Garrathy (“Mr. Garrathy”) disembarked a motor omnibus on the Gros Islet Highway in the vicinity of the Rodney Bay Marina and proceeded to cross the road when he was struck by motor vehicle registration number PG657 (“the vehicle”) driven by Sebastian King (“Sebastian”). As a result of the accident, Mr. Garrathy suffered serious injuries to his head and body which caused his death.

3 The claimants contend that the accident was caused by the negligence of Sebastian, who was at the time an inexperienced driver, driving by virtue of a provisional license. They allege particulars of negligence being that he (a) was driving too fast; (b) failed to swerve or manoeuvre the vehicle so as to avoid the accident; (c) failed to apply his brakes to bring the vehicle to a stop; and (d) failed to keep a proper lookout for other road users. They further contend that Sebastian was driving the vehicle at the material time with the authority and as the agents of the defendants, his parents, who are the registered owners of the vehicle. Additionally, they rely on the doctrine of res ipsa loquitor.

4 The claimants aver that at the date of the accident, Mr. Garrathy was 38 years of age and was employed by Virgin Atlantic Airlines. As a result of his death, Mr. Garrathy's wife, Naomi Garrathy, and minor child, Olivia-Rae Garrathy, have suffered pecuniary loss and damage for which they claim general damages pursuant to articles 609 and 988 of the Civil Code, costs and interest.

The Defence

5 The defendants admit that at the material time, Sebastian was the driver of the vehicle involved in the collision with Mr. Garrathy from which he died, and that they were the registered owners of the vehicle.

6 They, however, deny that the accident was caused by any negligence on Sebastian's part. They contend that the accident was caused solely by the negligence of Mr. Garrathy, who suddenly dashed across the road from in front of a parked vehicle, and into the path of the vehicle being driven by Sebastian, without ascertaining whether it was safe to do so. Mr. Garrathy thereby created a sudden emergency, depriving Sebastian of the opportunity to swerve, slow down, stop or take other action to avoid the collision. In the circumstances, Sebastian reacted in the way in which a reasonable and prudent driver would. Further, Mr. Garrathy was at the time heavily intoxicated, which impaired his judgment, in that he failed to appreciate that it was unsafe for him to dash across the road into the path of the moving vehicle. The defendants state that res ipsa loquitor is inapplicable, as the cause of the accident can be explained, which is Mr. Garrathy's own negligence.

7 The defendants aver that, as the claim against Sebastian is prescribed, there is no valid, subsisting cause of action and all rights and remedies against him are absolutely extinguished. As a consequence, all actions against them, arising out of the collision, whether on the basis of agency, negligence or otherwise, are also prescribed.

8 The defendants also assert that as Sebastian is not a party to this claim, the claimants cannot rely on his alleged negligence to ascribe liability to them. Further, notwithstanding that the defendants granted Sebastian permission to use the vehicle, no principal/agent or master/servant relationship existed between them.

9 The defendants state that the claim discloses no cause of action capable of being sustained or liability capable of being ascribed to them and ask that the claim be dismissed.

Claimants' Reply to the Defence

10 The claimants allege that the defendants' assertions that (i) the claim against them is prescribed; (ii) there did not exist a principal/agent or master/servant relationship between them and Sebastian; and (iii) the claim discloses no cause of action or liability against them, ought to be struck out as an abuse of process, as the master previously made a ruling on these issues, which has not been appealed. The defendants are therefore estopped from raising them again.

The Issues

11 The issues that arise for determination are as follows:

• 1) Whether the claimants failed to comply with rules 8.7(1) and (3) and 8.9 of the Eastern Caribbean Supreme Court Civil Procedure Rules 2000 (“CPR”), and if so, whether the claim for damages ought to be dismissed?

• 2) Whether the claimants are improper parties to the claim for damages under article 988 of the Civil Code?

• 3) Whether the defendants could be held liable for any negligence on the part of Sebastian, given that Sebastian is not a party to this claim, the claim having been struck out against him as having been prescribed?

• 4) Whether there was any negligence on Sebastian's part, which caused the accident and consequent death of Mr. Garrathy, and whether the defence of sudden emergency is available to him?

• 5) If Sebastian is found to have negligently caused the accident and death, whether the defendants are vicariously liable for his negligence, in particular, whether Sebastian was driving the vehicle as agent of the defendants?

• 6) If so, whether the claimants are entitled to damages pursuant to articles 609 and 988 of the Civil Code?

Analysis

Issue 1: Whether the claimants failed to comply with CPR 8.7(1) and (3) and 8.9, and if so, whether the claim for damages ought to be dismissed?

12 Counsel for the defendants, Mr. Alberton Richelieu (“Mr. Richelieu”), submits that the claimants have failed to comply with CPR 8.7(1) and (3) and 8.9, which require respectively that the claim form or statement of claim – include all facts upon which the claimant relies; identify any document which the claimant considers necessary to his or her case; and where the claim is for personal injury, that, among other requirements, there be attached a schedule of special damages claimed. He submits that pursuant to CPR 8.7A, the consequence of such failure is that the claimant may not rely on any allegation or factual argument which is not set out in the claim but which could have been set out there unless the court gives permission, or the parties agree.

13 Mr. Richelieu states that the claimants have breached CPR 8.7(1) and (3) in relation to their claim for both special and general damages; and have also failed to attach to the claim a schedule of special damages. Therefore, the court is barred from considering evidence of special or general damages, whether detailed in their witness statements or summaries or disclosed in their list of documents. He submits that special damages must be specifically pleaded, particularized and proven. Relying on the case of Charmaine Bernard (Legal representative of the Estate of Reagan Nicky Bernard) v Ramesh Seebalack 3, he further submits that the same principle applies to general damages, where it was stated that “if a plaintiff suffers damage of a kind which is not the immediate consequence of the wrongful act, he must warn the defendant in the pleadings that the compensation claimed will extend to this damage, thus showing the defendant the case he has to meet.” He argues that the mere statement in the statement of claim that “the claimants claim damages” without particularizing those damages or even identifying the documents to be relied upon in support, is insufficient to allow evidence of a particular kind of loss, which is not necessarily a consequence of the wrongful act, to be considered.

He points specifically to the loss set out at paragraph 10 of the amended statement of claim

14 Counsel for the claimants, Mr. Horace Fraser (“Mr. Fraser”), states that the question is the effect of non-compliance with CPR 8.7(3) and 8.9 and argues that the validity of the claim does not depend upon a document to be admitted at trial. He refers in particular to the deceased's death certificate and the claimants' Letters of Administration not being attached to the claim. Relying on the case of Texan Management Limited et al v Pacific Electric Wire and Cable Company Limited 4, he states that in the pursuit of justice, procedure is the servant and not the master. He likens the filing of a valid claim to the filing of a valid notice of appeal whose validity, he says, does not hinge on filing of skeleton arguments or submissions. Further, he submits that non-compliance with the rules complained of does not attract a sanction. He also relies on the dicta of Barrow JA in Craig Reeves v Platinum Trading Management Limited 5 where he states that not every instance of non-compliance will result in sanction, express or implied, and where there is a sanction, it will not usually be dismissal of an appeal, which must be exceptional. Where the non-compliance is trifling, the court is justified in rectifying the error in a summary manner as rule 26.9 permits, without resorting to the criteria in rule 26.8.

15 Mr. Fraser submits that the defendants would not have been taken by surprise by the death certificate and Letters of...