Veronique Ismael (Administratrix of the Estate of Emmanus Ismael, deceased) Claimant v Justin Albert Defendant/ Ancillary Claimant St. Lucia Motor & General Insurance Company Ltd Ancillary Defendant [ECSC]
| Jurisdiction | St Lucia |
| Judge | Edwards J |
| Judgment Date | 08 December 2006 |
| Judgment citation (vLex) | [2006] ECSC J1208-2 |
| Court | High Court (Saint Lucia) |
| Docket Number | CLAIM NO. SLUHCV 0717 of 2002 |
| Date | 08 December 2006 |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(Civil)
CLAIM NO. SLUHCV 0717 of 2002
and
This claim arises from a fatal accident which occurred along the highway at Ravine Poisson, Bexon in the Quarter of Castries, on the 17th August, 2001 at about 7:30 p.m. The Defendant Mr. Justin Albert is a minibus driver and part time contractor. On the evening of the accident, he had left the Bordelais Correctional Facility Construction site where he was then working, with 9 workers including the deceased, traveling in his Mitsubishi minibus registered H9571 as usual. They had stopped at a Restaurant to refresh themselves. Upon leaving the Restaurant, heading towards Castries, Mr. Albert's bus veered out of control on his left side of the Road, and skidded across the Road, crashing into a stonewall along the right side of the Road.
The deceased Emmanus Ismael who worked with Mr. Albert, fell out of the minibus as it crashed into the wall. One of his ears was severed, and his skull was fractured. He died on the scene of the accident or on his way to the Victoria Hospital. The Post Mortem Report of Dr. King discloses that he died from respiratory failure as a result of aspirated blood and chest compression, brain damage and basal skull fracture. He was then 20 years old, and employed as a mason on the Bordelais Correctional Facility construction site. He was also the illegitimate child of Ms. Veronique Ismael.
The deceased's mother Ms. Veronique Ismael is Administratrix of his estate. By her claim filed on the 30th July 2002 she is seeking to recover damages from Mr. Albert for her sons loss of life and consequential loss for the benefit of his estate, and on behalf of herself as his dependant, on the ground that he died because of the negligent driving of Mr. Albert.
The claim comprises 2 distinct causes of action. Article 609 of the Civil Code of St. Lucia permits the claim for the deceased's losses which the deceased could have claimed had he lived, along with funeral expenses where it provides for all causes of action vested in the deceased, to survive for the benefit of hissuccession. That right of action vested in the deceased is transmitted to Ms. Ismael his personal representative.
In addition to this, Article 988 of the Civil Code permits the deceased's mother to bring this action for the benefit of herself as his dependant, and for any other dependants.
By his defence filed on the 3rd September 2002 Mr. Albert denied that he was at the material time driving negligently. He alleges that upon swerving to his left to avoid colliding with an overtaking car, he skidded because of the uneven surface, lost control of his vehicle, careened across the Road and collided with the stonewall.
St. Lucia Motor and General Insurance Company Limited are the Insurers of Mr. Albert's vehicle. Mr. Albert has joined them as Ancillary Defendants, claiming against them an indemnity in respect of the action brought against him and his costs in defending the action. The Claimant Ms Ismael had served a copy of the Claim and Statement of Claim on the Insurers in August 2002.
By their Amended Defence filed on the 21st May 2004, the Insurers have denied liability. They contend that Mr. Albert is the holder of a Commercial Vehicle Policy of Insurance which expressly provides that the Insurers shall not be liable in respect of death or bodily injury to any person in the employment of the insured arising out of and in the course of such employment. On Mr. Albert's version of the facts communicated to the Insurers on the 20th August 2001, the Insurers have averred that the death of the deceased occurred while he was an employee of Mr. Albert, and arose out of and during the course of such employment.
Further, the Insurers have pleaded Condition 9 of the insurance policy as it relates to their disclaimer of liability communicated to Mr. Albert by letter dated 16th September 2002. They contend that Condition 9 required Mr. Albert to refer his claim to arbitration within 12 months from the date of disclaimer. Mr. Albert failed to do this, hence his claim has become abandoned and incapable of being recovered by virtue of Condition 9, according to the Insurers.
Mr. Albert's Reply to this Amended Defence of the Ancillary Defendant raises several collateral issues. Mr. Albert pleaded that since by his defence he had denied Ms. Ismael's claim in its entirety, there was therefore no claim subsisting between Mr. Albert and the Insurers at the date of the written disclaimer.
Mr. Albert contends further that the disclaimer dated 16th September 2002 would not cause Condition 9 to be operative; and the first Defence of the Insurers filed on the 15th April 2004 had not invoked Condition 9 of the policy, thus causing Mr. Albert to believe that the Insurers had waived their right to rely on Condition 9. Besides this, Mr. Albert has pleaded that raising the issue of arbitration 17 months after the Ancillary Claim was served, cannot oust the jurisdiction of the Court, which by its Case Management Order on the 20th December 2002 directed that the Insurers be joined as an Ancillary Defendant.
The issues arising from the pleadings, evidence, law and submissions of Counsel are:-
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A. Whether or not the deceased's death was caused by the negligence of Mr. Albert? (See paragraphs 13 to 51 of this Judgment)
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B. Whether or not the deceased was at the time of the accident acting in the course of his employment? (See paragraphs 53 to 75 of this Judgment)
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C. (i) Whether or not a breach of Condition 9 of The Commercial Vehicle Policy constitutes a bar to the Insured's claim for indemnity?
(ii) Whether the Insurers can rely on Condition 9 in the circumstances? (See paragraphs 77 to 97 of this Judgment)
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D. What measure of damages if any should be awarded to Ms. Ismael?
Though Issue B has been identified as a preliminary issue by Counsel for the parties, I will determine Issue A first.
The Claimant has attributed the cause of the accident to the following conduct of Mr. Albert in her pleaded Particulars of Negligence —
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(a) Driving at an excessive speed;
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(b) Failing to stop, slow down or so manage or control his said motor vehicle to avoid the accident;
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(c) Driving onto the wrong side of the Road and colliding with a wall off the edge of the Road;
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(d) Driving in such a manner as to lose control of the vehicle;
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(e) Driving under the influence of alcohol.
The undisputed facts are that having stopped at the Restaurant which has a Bar also, Mr. Albert had fish broth that night. He had nothing else to drink that night, he said, although sometimes he would have"a little drink". There was also no dispute as to the existing condition of the highway at Ravine Poisson that night. The Road surface was dry, pitch asphalt with no potholes. There was no gravel on the Road surface although to the right and left off the Road that surface had gravel. It is undisputed that the verge of the Road on Mr. Albert's driving side of the Road was somewhat lower than the shoulder of the Road.
There is controversy as to how Mr. Albert was driving after leaving the Restaurant and reaching the Ravine Poisson area. There were 2 witnesses called by the Claimant who were in that area at the time of the accident.
Mr. Winston Hudson a sound engineer who was standing in his yard adjacent to the main Road talking to a young lady who lived next door, deposed that he heard a screeching sound coming from the corner of the Road close to his house, and he ran to a point about 12 feet from the side of the Road as a wall on his left had blocked his vision of a part of the Road.
Mr. Hudson said he saw a white van traveling towards Castries coming towards him at a speed on his right side of the Road, causing him to dash back further into the yard, running away from the van towards his right. He said that while he stood in his yard he was facing the main Road and had a clear vision of traffic going up and down the Road. He described the traffic as sparse, and testified that there were no vehicles traveling up or down the Road immediately prior to him hearing the screeching noise.
He testified further that he saw 2 persons hanging out of the windows of the van and 1 fell to the ground. This van came to a stop upon colliding with the wall in front of his yard which is about 5 feet high. He later explained that it was when the van had come to a stop, that he saw the 2 men hanging out of the window and 1 falling.
Upon seeing the van come to a stop, Mr. Hudson said he ran inside his house to telephone the police and on returning to the scene, saw 1 of the men lying in the gutter.
He said under cross examination that as he ran towards the sound of the screeching, the screeching stopped and then he saw the van coming towards him. He was inconsistent as to how far he was from this wall. Although he had deposed that he was 12 feet from the wall, he said under cross examination that he was 3 feet from it. He admitted that there was no way he can see motor vehicles coming from Castries that are passing the wall; and that he was not paying particular attention to the Road while talking to the young lady.
He was adamant that the van was not at a bend in the Road when he first saw it. He said the bend is further to his left and he could not see this bend from where he was in his yard. He said his wall was about 100 to 200 feet from the bend and he could see the front of the van more to its right side.
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