Raymond Peter Foulkes Claimant v Saint Lucia Air & Sea Ports Authority Defendant [ECSC]
| Jurisdiction | St Lucia |
| Judge | Mason J |
| Judgment Date | 12 February 2007 |
| Judgment citation (vLex) | [2007] ECSC J0212-2 |
| Court | High Court (Saint Lucia) |
| Date | 12 February 2007 |
| Docket Number | Claim No. SLUHCV 2004/0721 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Claim No. SLUHCV 2004/0721
The Claimant herein claims against the Defendant in negligence and/or breach of the Defendant's statutory duty.
On 3rd April 2004, the Claimant, an English visitor, went on a scuba diving boat trip arranged by Dive Fair Helen, a company which organizes diving tours here in St. Lucia.
On its return the boat anchored at Ganter's Bay in the Vigie Cove area where a bus was waiting to take the people from the boat trip back to their hotels.
After alighting from the boat, the Claimant sought to use the toilet facilities at a nearby restaurant called Froggie Jacks. The restaurant was closed for business but the Claimant was able to enter the premises. This he did by way of one route and on his return, he used a different route.
While walking back, an incident occurred: according to the Claimant, he tripped over a length of exposed pipe, fell and dislocated his shoulder. The Claimant contends that it as a result of the negligence of the Defendant in allowing the pipe to remain exposed on its premises that he was injured.
In his particulars of negligence, the Claimant avers that the Defendant:
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1) failed to observe that the exposed feed pipe would cause harm and injury;
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2) failed to give adequate warning of the danger of the feed pipe; and
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3) failed in the premises to take any reasonable care for the safety of the Claimant and as a result he suffered pain and injury and sustained loss and damage
The Defendant in defence denies any negligence or breach of its statutory duties and contends that the Claimant impliedly consented to run the risk of injury because he knew or ought to have known that the manner and place in which he chose to exit the premises was dangerous in all the circumstances in that he chose to exit the restaurant in a place where the ground surface was uneven with protrusions for as much as three (3) inches off the ground when there was a safe and obvious exit.
The Defendant pleads in the alternative that the accident was caused or contributed to by the negligence of the Claimant.
There were only two (2) witnesses: the Claimant and a witness for the defence and in effect the only evidence before the Court as to the circumstances of the Claimant's misadventure is that of the Claimant himself since the witness for the defence did not actually see the incident as it occurred but according to him only saw the Claimant rolling on the ground.
It is the evidence of the Claimant that on the day in question, on his return from the dive trip, that he asked a member of the boat crew (and not the witness for the defence) about toilet facilities after getting off the boat. He was directed by that person to the toilet at the restaurant. The Claimant said that he walked into the grounds of the restaurant, past therestaurant building to the toilet block which is detached and located on the grounds behind some mature trees. The restaurant is on elevated ground.
According to the Claimant on his way out, he chose the path which was closest to the toilet block. The path leads down to a ramp, the bottom of which is an open gate through which he exited. The waiting bus was obscured from his view at the point where he exited the gate because there are many trees and bushes growing in the restaurant grounds.
On exiting the gate, there is a stone wall approximately 3 to 4 feet high on the right. The Claimant stated that he continued to walk along this wall and after taking several steps, he felt his right foot "catch on something". He said that having been on the island for ten (10) days he was accustomed to the uneven ground and pavements. He instinctively tried to take a step forward again and felt his foot was pinned down. He could not move his foot forward. This caused him to lose his balance and he tripped and fell forward. As a reflex action, he extended his left hand and his left palm landed on the ground first and he heard a loud crack which at that immediate time he thought his bone was broken. He later learnt that it was a dislocation.
At that point he could see clearly that he had tripped over an exposed pipe which ran horizontally across the ground for about four (4) feet. It was situated just above the ground.
The Claimant continued that he became acutely aware that no one had seen him and so his immediate thought was to get within sight so using his right hand he pushed himself up with his feet and staggered towards the quay side away from the wall. He staggered for some 10–15 feet and then slumped against a parked vehicle situated on the concrete part adjacent to the water's edge.
The Claimant was taken to the hospital where he was treated and discharged.
The Claimant explained that there are three (3) exit routes from the restaurant: the one where he had come in, another immediately opposite the toilet block with steps and a ramp through the gate. This one seemed to him to be the most sensible route to take as it was closest to the toilet. He admitted that to retrace his steps would also have been a sensible route. The third exit route descends by way of a concrete staircase straight down to the office block.
He denied that the defence witness had accompanied him to the toilet and had told him to pass back the way he had come in. He also denied rolling when he fell.
Under cross examination he denied telling his previous lawyers that he "stubbed" his toe. He did not agree that the story of the defence witness was more consistent with one falling from a height and rolling than his own story of stubbing his toe and rolling. He denied telling anyone that he had fallen from a height. He suggested that the doctor would have got that statement from Mr. St. Omer (manager of the dive company who was with the Claimant at the hospital).
The Claimant admitted that after the trek to the toilet, he did not attempt to retrace his steps, he chose another path.
He agreed that the incident happened about 3:30 in the afternoon and that it was a bright day. He stated that the gate through which he exited is about 6 to 7 metres from the pipe. He denied that where he walked could be called a road. He said it was dry and it was a place where people and vehicles pass. He estimated that the place was 10 to 15 metres wide, that the pipe was 4 feet in length, the wall was to his right and the 4 feet of the pipe started from the wall. He admitted that there was no physical obstruction preventing him from passing where the pipe was not protruding.
He agreed that he did say that he was used to uneven ground. He stated that one is more likely to fall from uneven ground than from a smooth surface. His visibility was good he could see for over 100 metres. He stated that there were big stones in the road. He chose not to pass on the flat surface although admitting it was safer. The sole of his sandal got trapped under the pipe. His sandal had a back strap and so the sandal did not come off.
The Claimant stated that he uses his right hand to write and it was correct to describe him as a right hander. He denied that he chose to put out his left hand, he claimed that it was a reflex action.
The evidence of the defence witness is that he escorted the Claimant through the restaurant to where the toilets were located, having made their way through the gate at thetop entrance. He stated that he told the Claimant to pass back that way on his return. He left the Claimant and made his way back to the office building to wait for the Claimant. While he was speaking to a guest from the boat trip, he heard a "hard loud sound" and when he turned, he saw the Claimant rolling along the ground. He rolled from the side where the restaurant's wall ran over to the other side (by the quay) and stopped by a parked vehicle.
Counsel for the Claimant submitted that the Defendant admitted the existence of the protruding pipes, that the Defendant never denied that the parcel of land upon which the feed pipe protrudes does belong to them. Counsel also stated that during the trial, the Claimant sought and obtained leave to produce a land register to establish that the parcel upon which the piece of feed pipe is located belongs to the Defendant.
It is further submitted by Counsel for the Claimant that the duty of care owed by the Defendant as stated in Article 985 of the Civil Code of St. Lucia is:
"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".
Counsel continues that the law imposes a duty of care upon the Defendant if it is reasonable, foreseeable and probable that the protruding pipe would result in harm or injury to the Claimant. The standard of foreseeability is that of a "reasonable man".Counsel was of the view that a protruding pipe as the one seen lying in the area which is used by the public would prove a potential hazard/risk to members of the public and injury, loss and damage could be caused by someone tripping over this pipe. The area was and is frequently used by clients, employees of various businesses in that area as well as tourists who use the area immediately before and after their sea excursions.
Counsel contends that the Defendant, being the owner of the feed pipe and/or the parcel of land, upon which the feed pipe is/was placed or passes, is under an obligation to ensure that the metal pipe is buried at a depth underground that would pose no risk of injury to users of the restaurant and/or the jetty area. The Defendant is also under a duty to ensure that the metal pipe...
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