Tamara Barrow Claimant v P.C. 240 John Flaviien The Hon. Attorney General of Saint Lucia Defendants [ECSC]

• Jurisdiction: St Lucia
• Judge: Mason J
• Judgment Date: 22 September 2006
• Judgment citation (vLex): [2006] ECSC J0922-3
• Court: High Court (Saint Lucia)
• Date: 22 September 2006
• Docket Number: Claim No. SLUHCV 2006/0182

[2006] ECSC J0922-3

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Claim No. SLUHCV 2006/0182

Between:

Tamara Barrow

Claimant

and

P.C. 240 John Flaviien

The Hon. Attorney General of Saint Lucia

Defendants

Mason J

1 The substantive action in this claim was filed by the Claimant on 7^th March 2006 claiming from the Defendants among other things damages for personal injuries and damages and costs arising from the negligence of the first named Defendant in discharging a firearm in a certain public place and in a manner contrary to the safety of the general public or the occupants and/or the visitors of the aforementioned public place while in the course of his employment as servant and/or agent of the second Defendant.

2 The present application is by the Defendants for an order that :

• 1) the statement of case filed on the 7^th day of March 2006 be struck out as disclosing no reasonable ground for bringing the claim

• 2) alternatively that the First Defendant cease to be a party in this action and that his name be struck out of the statement of case and all subsequent proceedings therein.

3 The grounds on which this application is based are that:

• 1) the action herein is prescribed by virtue of Article 2124 of the Civil Code of St. Lucia; and

• 2) article 13 of the Crown Proceedings Ordinance Ch.13 of the Revised Laws of Saint Lucia 1957 requires that this action be instituted against the second Defendant/Applicant only

Article 2124 of the Civil Code of St. Lucia

4 Counsel for the Defendant is of the view that since in accordance with Art. 2124 of the Civil Code actions against public officers are prescribed by six months, that the incident complained of having taken place on or about the 20^th December 2003, the period of limitation would be 20^th June 2004. As a consequence any cause of action against the Defendants is bound to fail as both the right and remedy of the Claimant have been extinguished.

5 To support this latter contention, Counsel cited the opt quoted case ofWalcott v Serieux Civil Appeal N0. 2 of 1975 (St. Lucia).

6 Counsel further states that by Article 2066 of the said Civil Code it is presumed that the acts done by the first Defendant in respect of his public duties were done in good faith. In the absence of any statement of fact in the claim form or the statement of claim upon which the Claimant can rely to establish a claim based on bad faith, the Court must assume that the first Defendant acted in good faith throughout.

7 Counsel for the Claimant on the other hand contends that the Claimant's action against the first Defendant is not barred by prescription under the Article, that the issue of whether or not the first Defendant acted in bad faith is a question of fact that can be determined at trial.

8 In the event that the allegation of bad faith is not really evident on the pleadings an amendment may very well cure any defect that may exist.

9 Article 2124 of the Civil Code of Saint Lucia provides that:

"Actions against public officers in respect of acts done by them in good faith and in respect of their public duties are prescribed by six months.By article 2006 it is provided "Good faith is always presumed. He who alleges bad faith must prove it".

10 The incident which is the substance of the Claimant's claim is alleged to have taken place on Friday 19^th December 2003, and the Claimant filed her action on 7^th March 2006 — clearly a period in excess of the six months allowed by Article 2124 of the Code relative to prescription of acts by public officers.

(It should be noted that according to Article 2101: Prescription is acquired when the last day of the term has expired, the day on which it commenced is not counted).

11 It is agreed and accepted that in order for such prescription to be circumvented the Claimant would have to establish that the acts on the part of the first Defendant were not done in good faith and in respect of his public duties.

12 Part 8.7 of the Civil Procedure Rules 2000 require the Claimant to include in the claim form or in the statement of claim a statement of all of the facts on which the Claimant relies which statement must be as short as practicable.

13 The Claimant in her statement of claim claims as follows:

• 1. …………………………….

• 2. The first Defendant was at all material times a Constable of the Royal St. Lucia Police Force on active duty and as such, a servant and or agent of the Government of Saint Lucia.

• 3. ………………………..

• 4. On Friday 19^th December 2003 the Claimant was a patron at a dance hall called "The Dub House" situate at Marie Therese Street in the town of Gros Islet

• 5. The first Defendant, while on active duty, entered the said dance hall and negligently discharged rounds of ammunition into the room which was at that time crowded with persons causing injury to the Claimant

14 The Claimant then set out the particulars of negligence thus:

• (i) Discharging a firearm in a crowded room in a manner that was hazardous to occupants of the room

• ...