Volney v Auguste
| Jurisdiction | St Lucia |
| Judge | Bishop, J. |
| Judgment Date | 06 December 1965 |
| Neutral Citation | LC 1965 HC 5 |
| Docket Number | No. 79 of 1962 |
| Court | High Court (Saint Lucia) |
| Date | 06 December 1965 |
Windward and Leeward Islands Supreme Court. High Court
Bishop, J.
No. 79 of 1962
K.A.H. for the plaintiff
Desmond A. McNamara for the defendant
Tort - Negligence — Liability — Plaintiff claimed damages for personal injury which he suffered as a result of a collision with the defendant — The St. Lucia Motor Vehicles and Road Traffic Regulations, s. 21(2) applied — Court found that the defendant was not driving negligently.
According to the law of this territory every action, which is brought before its Supreme Court, is required to be instituted by means of a writ of summons. There are exceptions but these are irrelevant to the matter now being considered.
By the provisions of article 43 of the Code of Civil Procedure of St. Lucia 1957, writs of summons are issued by the Registrar upon the written application of the plaintiff.
Notwithstanding the absence of a written application for or on behalf of Felix Volney, the plaintiff in this action, the Registrar — on the strength of a document filed in the Registry and in which the solicitor for the plaintiff requested that a true copy of the Declaration which was filed be served on the defendant Leonard Auguste — nevertheless issued a writ of summons commanding the Sheriff to summon the defendant Leonard Auguste to appear before the Court.
On 15 th October 1962 this Declaration was filed by the plaintiff's solicitor. Therein, it was alleged that on or about 14 th September 1961 at Choiseul in this Island, the defendant so negligently drove and controlled his motor cycle that it collided with the plaintiff and threw him to the ground whereby he suffered damage. Particulars of negligence were that the defendant:
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(1) “was driving too fast
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(2) was driving on the wrong side of the road
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(3) failed to give any warning of approach and
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(4) failed to stop swerve or to avoid collision”
Particulars of damage were also alleged as follows: Fracture of left leg, fracture of right knee, abrasions on the body.
Consequently, the; plaintiff Felix Volney claimed damages from the defendant Leonard Auguste. On the 27 th October 1962 the plaintiff's solicitor filed a notice of demand for pleas addressed to the defendant and a request that a true copy of the demand for pleas be caused to be served. This latter was addressed to the Registrar.
On 20 th November 1962 appearance was entered and filed for the defendant by his solicitors. Since, the writ of summons was served on the defendant on the 17 th of October 1962 then the prescribed period within which the defendant ought to have appeared (namely, eight clays after service of the writ of passed when appearance, was actually entered. Consequently, as I understand the law of Saint Lucia there, should have been an entry of default of appearance, and thereafter upon his making a special application in which sufficient cause was shown the defendant may have been permitted to enter an appearance although the normal time for so doing had expired. Then if the pleas to the merits were not filed within eight days after any appearance, which is permitted, the plaintiff would have been in a position to demand them. After such demand by the plaintiff the defendant would be required to file them within the three next juridical days. However, this was not the procedure, which was followed in this case, and indeed there appeared to be some disregard for the procedure required to be followed by the law of the territory.
Demand for pleas was filed on 27 th October and appearance entered and filed on behalf of the defendant on 24 th November 1962. There was nothing on record to show that application was made or granted to permit appearance after the time allowed for so doing. Nevertheless service of appearance was accepted by the plaintiff's solicitor.
When the case came before the Court on 25 th May 1965 Counsel for the defendant brought to the attention of the Court that the solicitors for the plaintiff had accepted service of a defence dated 28 th June 1963. He stated further that the solicitor for the defendant was prevented from filing this defence justifiably so, because of an error on the part of the plaintiff's solicitor. Counsel for plaintiff and counsel for defendant agreed and asked that a motion filed on 13 th April 1963 seeking a certificate of foreclosure and the Registrar's Certificate of foreclosure dated 13 th April 1963 should be expunged from the records of the action before the Court and that the Court see fit to permit defence dated 28 th June, to be filed now and admitted to the record which thereafter should be accepted by the Court so that the matter may be determined on the merits.
This Court acceded to the request on this occasion and in the particular circumstances of this case but it hastens to add here that this must not be regarded as a precedent whereby the provisions of the Code of Civil Procedure can be regarded without such consequences as the Court might feel to be necessary or justified in the circumstances. Indeed, this Court would hope that generally the provisions of the Code of Civil Procedure of St. Lucia 1957 are followed more closely.
In support of the allegations contained in the declaration the plaintiff and one witness gave evidence on oath; and, in defence thereof the defendant and a witness gave evidence on oath.
The evidence which was given as to the manner whereby the collision occurred revealed two different accounts — that of the plaintiff and that of the defendant.
What does the plaintiff say?
It is the contention of the plaintiff Felix Volney a man then about 77 years of age that on the night of 14 th September 1961 at about 7.30 p.m. he was walking along the Choiseul High Road going from his estate in the direction of Choiseul. He was walking at a distance of about 5 feet (the plaintiff indicated about nine feet) from his left hand side of the road; he was carrying a cutlass in his right hand and on his left shoulder he held (with his left hand) a piece of apricot wood about 6 feet long and 2 inches in diameter. He also said that he was carrying a parcel containing food (but it is not clear in which hand he carried it or what was the size of the parcel). The road sloped slightly upward and was abort twelve feet wide (indicated) at the point where he was walking. He saw the light o f a motorcycle approaching from the opposite direction and on his — plaintiff's — right hand side of the road. When he saw the cycle it was being ridden by the defendant and it was about 13 yards away from him. The cycle — for no known reason — came towards him from the right hand side of the road (i.e. from its left hand side of the road) and although he further to his left the cycle continued coming towards him; it eventually struck him on his right leg, threw him to the ground before it, then it passed over his left leg. As a. result o£ the collision the plaintiff suffered a dislocated right knee and a broken left leg which necessitated hospitalisation until 23 rd December 1961. The plaintiff contended that the part of the road where the cycle struck him was flat and that, to use his own words “from the time I saw him to the time he struck me I took three steps”. (It was interesting to note that when asked –twice – by counsel for plaintiff to demonstrate the distance the witness made only one step forward). The plaintiff said that he did not hear any horn. He explained that the defendant continued for some distance and turned back only after he was called. Having returned the defendant lifted him from the spot where he fell and put him to lie on a spot on the left hand side of the road.
What is the defendant's description of the incident?
The defendant Leonard Auguste stated on oath that he was riding his motorcycle on the night of 14 th September 1961 along the Choiseul – SoufriÈre road at a speed of about 20 to 25 miles per hour. He saw in the plaintiff whom he knew at a distance of about 12 yards away from him in the centre of the same road and waltzing across towards the right hand side of the road (or the cyclist's left hand side of the road) on which the cycle was being ridden. The road had no lighting. When he got to a distance of 5 to 7 yards from the plaintiff, he slowed clown dipped his headlight which had until then been focussed on the main beam and was shining for a distance of about 30 yards or more. According to the defendant, he was overtaking the plaintiff on his right hand side with a space of about 4 feet between the plaintiff and the cycle while overtaking him, he slowed down and spoke to the plaintiff asking him a question such as, if he can't see well. He then changed into first gear, and in his own words “just as I was about pulling off I saw a vision just above my head. I ducked and I felt something hit me on top of my head. I had on a rubber helmet (and coat); it fell from my head”. The defendant stated that he had moved about 3 yards past the plaintiff, he heard a loud cry and he turned back and went to the plaintiff who was lying on the cyclist's left hand side of the road. The plaintiff accused him there and then of knocking him down and complained that both of his legs were broken. When asked by the defendant what he was carrying, the plaintiff admitted that he was carrying a piece of apricot post; and there and them the defendant said that he suspected that it was that piece of post, which brought the accident. The defendant then saw a, piece of post lying partly on the road and partly across the gutter. The defendant lifted the plaintiff from that side of the road and took him over to the other side where he would be off the road entirely and where he would be safe; and he asked ore Joseph Hubert to stay with plaintiff until he returned.
Clearly then, there are two separate anal divergent accounts...
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