Claudia Guy Claimant v Ricardo Watson Defendant [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: Taylor-Alexander, M
• Judgment Date: 04 April 2013
• Judgment citation (vLex): [2013] ECSC J0404-3
• Docket Number: CLAIM NO. SVGHCV2011/0410
• Date: 04 April 2013
• Court: High Court (Saint Vincent)

[2013] ECSC J0404-3

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO. SVGHCV2011/0410

Between:

Claudia Guy

Claimant

and

Ricardo Watson

Defendant

DECISION

Introduction

Taylor-Alexander, M

1 Section 13 (1) of the Limitation Act Cap 129 of the Laws of Saint Vincent and the Grenadines Revised Edition 2009 provides for a statutory limit of three years to initiate a claim in damages calculated from the date when the cause of action in negligence arose, orthe date of knowledge if later of the person injured, where such action includes an action for personal injury.

2 The claimant Claudia Guy of Carrier Hill, Mesopotania Valley in the parish of Charlotte, claims to have suffered injury loss and damage in the evening of the 5^th August 2006 at about 5:30 pm when, crossing a public road at Beachmont in Richmond Hill, she was hit by motor truck registration number TJ 246 driven by the defendant. She was propelled into the air and then onto TJ 246, then onto the ground. She was comatose by the impact and was admitted to the emergency ward of the Milton Cato Memorial Hospital. She was examined by Dr. Hughes Dougan on the 14^th August 2006 who reported that she had suffered a fracture of the left vault; fracture of the radius and ulna; fracture of the tibia and fibula; fracture of the left clavicle; fracture of the left wrist; fracture of the left leg; and abrasion to the right shoulder. Dr. Dougan recommended that the claimant undergo a CT scan and that she see a neurologist or neurosurgeon.

3 The claimant flew to Trinidad and on the 18^th August 2006 she undertook a CT scan of the brain and spine. She was seen by Dr. Godfrey Araujo a Consultant Orthopedic Surgeon who summarised his findings in his medical report dated the 21^st August 2006 stating that the claimant's X-rays showed a minimally displaced left clavicular fracture; a displaced, comminuted, intra-articular fracture of the distal left radius and; a displaced short oblique fracture of the mid-shaft of the left tibia and fibula. Additionally, the claimant had consultations on or about the 14^th August 2006 and on the 14 of December 2009 with Neurosurgeon Dr. Henry Bedaysie who in 2009 reported that the claimant showed impairment of the short term memory, planning; attention, language, logic and visual search, which findings were consistent with Organic Brain Syndrome, secondary to head injury. She was assessed as having a permanent partial disability of 55% and he recommended that she was unfit to continue in her profession as a nurses' aid.

4 Unfortunately, Ms. Guy only initiated proceedings on the 25^th of October 2011 in respect of the negligence and damage she suffered, at which time, approximately five years two months and three weeks had expired from the accrual of the cause of action. This prompted an oral application by the defendant at the case management conference to strike out the proceedings as being filed beyond the period allowed by Section 13 of the Limitation Act Cap 129 of the Laws of Saint Vincent and the Grenadines Revised Edition 2009, (the Act). The claimant, in response filed an application for an order that the limitation of action shall not apply to the claimant's cause of action and that the cost of the application be costs in the cause.

The Application

5 The application of the claimant was filed on the 14^th of November 2012. The grounds stated in the application were largely a restatement of the averments in the statement of case, and offered an explanation for the delay in initiating the proceedings, summarised as follows: –

• (a) The claimant's injuries required repeated visits to medical practitioners both in Saint Vincent and in Trinidad;

• (b) The claimant had been negotiating with the insurer of the defendant who had been awaiting the medical reports and the outcome of the criminal proceedings brought by the state against the defendant in relation to the accident;

• (c) Following the outcome of the criminal proceedings the defendant had falsely informed his insurer that he had not been convicted,resulting in the insurer refusing to entertain the claim until they were advised otherwise;

• (d) The insurer was written to on the 23^rd of August 2010 and they responded in February 2011, avoiding liability, on the basis that the claim was statute barred;

• (e) The claimant is impecunious and this delayed her timely initiation of the proceedings;

• (f) The claimant has a considerable claim, her injuries were severe and she is now disabled. She will be prejudiced and suffer greatly if she is not allowed to proceed with her claim.

6 The application is supported by affidavits of Claudia Guy and Bertram Euston Commissiong Q.C filed on the same day. The exhibits supporting the affidavit of Bertram Commissiong are of the medical reports of the doctors who had examined the claimant and are dated between the periods 14^th August 2006 to 21^st December 2009.

7 The defendant objects to the application, and the affidavit of Richard Watson the defendant offers reasons why the application ought not to be granted, summarised as follows: –

(a) The accident occurred on the 5^th August 2006; at which time the defendant was 49 years old. He is now 55;

(c) The moments leading up to the accident was fleeting and as such his memory has faded significantly, affecting his recollection of certain events of the accident, like the condition of the road, the weather at the time and the actions of the claimant prior to being struck;

(d) The claimant was not hospitalised for an extended period, nor was she confined to a bed. She also had free legal representationand therefore had the means and ability to bring her claim. Her failure to do so has prejudiced the defendant in that, with the passage of time his recollection of events has been compromised;

(e) The likely date of trial may well be toward the end of the year 2013, further compromising the cogency of the evidence.

8 Both parties provided the court with filed submissions and authorities on the exercise of the court's statutory discretion.

The Law

9 Section 13 (1) of the Act relevant to this application provides as follows: –

• "(1) This section applies to any action for damages for negligence, nuisance, or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance, or breach of duty consist of or include damages in respect of personal injuries, to the plaintiff or any other person.

• (2) None of the time limits given in the preceding provisions of the Act shall apply to an action to which this section applies.

• (3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection ( 4) or (5).

• (4) Except where subsection (5) applies the period is three years from: –

  • (a) the date on which the cause of action accrued; or

  • (b) the date of knowledge if later of the person injured."

10 In acting under Section 13, regard is to be had to Section 33 (1) which runs thus: –

"If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which: –

• (a)The provisions of Section 13 or 14 prejudices the plaintiff or any person whom he represents and

• (b) Any decision of the court under this subsection would prejudice the defendant or any person whom he represents

  The court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates."

11 In acting under this section the court shall have regard to all the circumstances of the case but identifies the following criteria for particular consideration: –

• "(a) the length of, and the reasons for the delay on the part of the plaintiff;

• (b) the extent to which, having regard to the delay, the evidence adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 13 or, as the case may be, section 14;

• (c) The conduct of the defendant after the cause of action arose, including the extent if any to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;

• (d) The duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

• (e) The extent to which the plaintiff acted promptly and reasonably once he knew...