Mr. H. Giraudy for the Appellant Mr. c. Rambally for the Respondent

Transcription

1 SAINT LUCIA IN THE eourt OF APPEAL CIVIL APPEAL NO. 6 of 1986 BETWEEN: GIRAUDY ESTATES LTD. and EGBERT FRANCIS D!fendant/Appellant Plaintiff/Respondent Before: The Honourable Sir Lascelles Robotham The Honourable Mr. Justice Bishop The Honourable Mr. Justice Moe Chief Justice Appearancest Mr. H. Giraudy for Appellant Mr. c. Rambally for Respondent 1988; Jan. 26 May 9 JUDGMENT BISHOP, J.A. Egbert Francis, a mechanic, was injured while bucket of a front end Loader driven by Joseph Jn. Baptiste. occurred on 23rd February in That On 18th February 1980, a Writ of Summons endorsed with Statement of Claim was filed on behalf of Egbert Francis Estates Limited, a company incorporated under Commercial Code, ~oseph Jn. Baptiste. Gir'+ The Statement of Claim read, in part, as follows - "1. The plaintiff is and was at all material times hereto a mechanic and welder by profession. 2. on February 23rd 1978, second-named defendant so negligently controlled bucket of a front end loader owned by firstnamed defendant as to cause said bucket to cause serious injury to plaintiff plaintiff suffered damage " Particulars of Damage and of Negligence were n set out. In March 1980, solicitors for defendants entered appearanc~, and about a month later filed this defence- "1. Paragraph 1 of Statement of Claim is admit\ ted. 2. (a) The defendants admit 1nJury alleged and deny that same was caused through defendant's negligence. (b) The defendants furr state that plaintiff came by his I

2 '. injury by his own negligence in a moving part of bucket of loader, and signalling to and causing second-named defendant to tilt said bucket upwards whereby plaintiff's hand suffered injury 3. Save as is herein specifically admitted, defendants deny each and every material allegation in Statement of Claim as if same had been herein set out seriatim and specifically denied." There was a Summons for directions dated 23rd December 1980 on th Record but nothing seemed to have been done about it. In August, 1982, Egbert Francis filed a notice of change of solicitor and second. solicitor filed an amended Statement of Claim on September as endorsed on Writ of Summons. read:- Only paragraph one of Statement of Claimed remained The or paragraphs, as amended, "2. The plaintiff was at all material times servant and or agent of first-named defendant and was acting in course of his employment with first-named defendant. 3. The second-named defendant was at all material times servant and or agent of first-named defendant and was acting in course of his employment with said first defendant. 4. On or about 23rd day of February 1978, second-named defendant whilst in course of said employment and in control of a front end Loader owned by first-named defendant so negligently drove, managed and or controlled same as to cause injuries to plaintiff Furr or alternatively injuries suffered by plaintiff were caused by negligence of first-named defendant." Thereafter Particulars of negligence of secod-namcd de and of negligence of first-named defendant were itemised, as were Particulars of injuries and of special damages. The Record revealed that next thing which occurred was before Matw J. on 15th and 24th days of July At outset of trial, counsel for defendants took a in limine. The ruling was reserved and given on 30th after evidence was adduced from which plaintiff was awarded and costs against defendant Company and driver Joseph Jn. /Giraudy Estates

3 Giraudy Estates Limited was dissatisfied and appealed on 24th October 1986, giving ground for so doing:- "The learned trial Judge erred in granting leave to amend Statement of Claim after of three years from date of accident, and consequent absolute extinguishment Article 2129 of Civil Code of any right of action in delict which plaintiff/respondent may have had against defendant/appellant, and in so doing, denying defendant/appellant defence of prescription under said Article." The point in limine was - as set out Matw J. - that Statement of Claim endorsed on Writ of Summons did not disclose a of ;ption against Giraudy Estates Limited, and amendment reto, filed more than 3 years after incident in which Egbert Francis was sought to cure that omission. However, Counsel submitted, virtue of Article 2122 oft~ Civil Code, action against and under Article 2129 of said Code, that prescription was substantive. Learned Counsel relied upon a number of cases (including WALCOTT Civil Appeal No. 2 of 1975 of St. Lucia), which, with Order Rules of Supreme Court 1970, and pertinent facts, were considered trial Judge before he ruled that point must fail. was SERIEUX Rule 3 of In his reasons for so ruling, trial Judge stated that it could not be said that a new cause of action was being advanced Statement of Claim. He also held:- In his words "The same cause of action has been present, an action for negligence." amended "That defects to specially endorsed Writ were mere irregularities which were cured first-named defendant's unconditional appearance and defence filed on March 31, 1980 and May 5, 1980.re~pectively Furr, amended Statement of Claim filed on September 27, 1982, may very well be entertained since to do so would in my view not run contrary to decision of WALCOTT v. SERIEUX." Matw J. observed that case was conducted on basis th,'lt plaintiff could amend his Statement of Claim without leave; continued thus:- and "If this is so, authority for so doing must have been found under Order 20 r.3. I would have thought that leave would have been but since I would have granted such leave as a matter of course, matter should probably be looked at as though leave was in fact granted if it was at all necessary." /Before this

4 4. Before this Court Counsel for appellant submitted th:1t Statement of Claim on Writ of summons disclosed a cause of negligence against Joseph Jn. Baptiste alone. cause of action", that "re must be an act Using as his d<::. defendant cause for complaint", Counsel contended that re was no a act by Giraudy Estates Limited. The sole allegation intif that Company was owner of a vehicle; and "mere ownership per so vl not a cause for complaint". Furr, it was not that when Jn. Baptiste drove front end Loader negligently he was n servant or agent of Giraudy Estates Limited. s Counsel also pointed out that first time an attempt wa.s to amend Statement of Claim to allege "vicariousness" was more than years after injury was sustained. He argued that (1) fa.ct that,'l.n amended was filed indicated that f conceded that initial pleading was inadequate in not vicarious 1 and (2) it was not open to trial Judge to grant leave to ~mend Statement of Claim. Articles 2122 and 212q of Civil Code barred both right and remedy, and unlike law of England, imitation article of St. Lucia was substantive law. So that at date fi of amended Statement of Claim and at time of trial of t.h,, limitation period had Mr. Giraudy submitted also that Order 20 3 of Court, referred to by Matw J., was not relevant, and that which might have been considered, but could not be invoked, Order Rule 5(5). This rule an amendment (where ici'ltion for to amend was made to Court) "notwithstanding that effect of will be to add or substitute a new cause of action if new C':luse nt ion arises out of same facts or substantially same facts cause of action in respect of which relief has already been claimed in action party applying for leave to make amendment." Learned Counsel contende!d that re had to be an action before a new cause of action could be added or substituted, ~nd provided new cause of action arose out of same or substantic'l same facts as existing one. In Counsel's words " cause of action is hook on which to hang new cause f re is no hook you cannot hang new cause of action". Here, was no existing cause of action against appellant and so out of question. Learned Counsel for respond~nt did not challeg~e or definition of "cause of action" given by Mr. Giraudy; that (1) Statement of Claim endorsed on Writ disclosed cause of

5 Estates Limited though it may have omitted particulars which could have been sought, if necessary; (2 of that Statement of Claim raised issue of vicarious 3) entering an unconditional appearance and filing defence Company had made issue of negligence clear; had re been filed it may have been a different situation; and (4 amended Statement of Claim was not a new cause of action. Mr. conceded that, as pleaded in defence, did not admit eir ownership of vehicle or existence of agency between defendants; and also that leave of Court to Statmcnt of Claim was necessary. However he stressed absence of evidence that leave had in fact been granted, learned Judge accepted amendment and dealt with it at trial. Counsel for respondent also submitted that Rules of Order 20 Rule 5 Court to amend Writ and Claim at any time - even after expiration of period; and that in instant case purpose of (a) to correct a in original Statement of give company a opportunity to prepare for to In deciding this I consider following: l. STATEMENT OF CLAIM. only reference in Statement of Claim Writ of Summons) to Giraudy Estates Limited was in and re it was as a fact that front end Loader that Company. No act on part of Giraudy Estates Limited in February I must agree with Counsel for appellant that mere of ownership did not disclose a cause of action appe I am unable to find any allegation of vicarious liabili 2. THE DEFENCE. This pleading showed that Giraudy Estates Limited i Egbert Francis was ured (ii) denied that injury was negligence on its part, (iii alleged that injury was negligent act of Francis himself and (iv) denied spec of or material in Statement of Claim. With respect, I must disagree with Counsel for filing of defence or facts pleaded rein made a difference claim. /3.THE ANENDMENT.....

6 . ' THE AMENDMENT. When were deemed closed re had been no Statement of Claim. Mr. Rambal readi conceded that Court, to was Now under Order 20 r. 5(5) of Rules of amendment would not be allowed unless re was in cause of action, and n any new cause of action to be added would have to arise out of same or substantial samt-::: those rise to initial cause of action. substi Again, it seemed clear to me that amendment was give Company a opportunity to prepare for trial. view solicitor to whom plaintiff changed in 1 that endorsement omitted any allegation of fact that disc of action against Giraudy Estates Limited, and set about correct failure. So that what was called an amended Statement of an original claim so far as it applied to Giraudy Estates Signi, however, it was filed 3 years, 7 months after was injured. In s Rule 5 (5). In my since re was no cause of action appellant n no amendment could be 4. ARTICLES 2122 and 2129 OF THE CIVIL CODE. The relevant parts of se Articles read as follows "2122. The following actions are by three years: L 2. For damages resulting from delicts or quasi-delicts whenever or provisions do not apply; In all cases mentioned in Art debt is absol action can be maintained for prescription has The application of se Articles was considered Appeal in Civil Appeal No. 2 of 1975 NORMAN WALCOTT MOSES that case re was evidence that wrong plaintiff was before Court. The plaintiff ought to have been WALCOTT CONSTRUCTION COMPANY so leave was sought to amend Writ by substituting Walcott, as The trial Judge decided that an substitute anor person as plaintiff could not be entertained, dismissed action. The matter was taken on appeal, based lo\\

7 two of three "1. That learned that no amendment could be allowed to substitute a action. 2. That learned was wrong in law in to amend Writ The Court of was delivered Peterkin was at that time). It was made clear that Court had to or, submission "that amendment was eir by law of or law of St. Lucia of limitation had was wrong. DealingMith law of St. Lucia, Peterkin J.A. mentioned and Article 2129 of Civil Code. He out tution was not to correct name of put a new and different person as. Court fell within Article Therein lies a "In Article 2129 and is no choose wher limitation. As limitation has tion in matter." and 2129 of Civil Code. Then and that action continued: Put in or words, in certain actions, after a of 3 years has n are lost and unavailable; and In instant case, Francis when he was and seven months of and He could not pursue a Estates as his solicitor to do Statement of Claim". costs; for all reasons, must and I would so order, with great reluctance. E.H.A. BISHOP, Justice of I agree that Giraudy Estates Limited must

8 8. this '""ppeal. It is no fault of plaintiff/respondent tha finally resulted in his holding a Judgment against Jn. which could well prove to be an empty one. I trust that will not allow respondent to be left out in of injury trial Judge found he had received at lant's driver, who was at relevant time operating front end Loader. L.L. ROBOTHAM, Chief Justice I agree. G.C.R. MOE, Justice of