Ivan O'Neal Claimant v Cable & Wireless (WI) Ltd Bernard Mascoll Defendants [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Mitchell, J |
| Judgment Date | 04 February 2002 |
| Judgment citation (vLex) | [2002] ECSC J0204-6 |
| Court | High Court (Saint Vincent) |
| Docket Number | CIVIL SUIT NO. 538 OF 1999 |
| Date | 04 February 2002 |
IN THE HIGH COURT OF JUSTICE
CIVIL SUIT NO. 538 OF 1999
and
This was a running down action involving a collision between a Cable & Wireless vehicle in Kingstown, St Vincent, and a person who was at the time sitting in a roadway conducting a demonstration against Cable & Wireless' allegedly high telephone rates.
The action began with the issue on 29 October 1999 of a specially endorsed writ of summons out of the High Court in Kingstown in St Vincent and the Grenadines. By the statement of claim endorsed on the writ and as subsequently amended, the Claimant claimed that on 1st July 1997 he was engaged in a lawful and peaceful protest in front of the premises of the 1st Defendant (hereinafter "Cable & Wireless") on a public pathway; that the 2nd Defendant (hereinafter "Mascoll") was employed by Cable & Wireless as its chief security officer and/or a motor vehicle driver; that Mascoll acting in the course of his employment drove a vehicle owned by Cable & Wireless past the Claimant who was seated with a placard between his legs; that Mascoll stopped the vehicle and alighted from it and spoke to the Claimant and got back into the vehicle and reversed it and wrongfully and intentionally assaulted and wounded the Claimant by driving the vehicle over his feet causing him distress, anxiety and personal injury and loss and damage. In particular, and among other things, he claimed that his left ankle joint was broken and had to be encased in plaster of paris for about 10 weeks, and he had been injured in his head and had lost consciousness and had suffered a neck injury. The Claimant claimed alternatively that his injuries had been caused by the negligence of Cable & Wireless and its servant and agent Mascoll. The particulars of the negligence were given among other things as driving at an unreasonably fast speed, driving with no reasonable regard for the Claimant's presence and safety, failing to keep any proper lookout and to heed the Claimant's presence, and failing to control the vehicle so as to avoid hitting the Claimant. The Claimant pleaded that on 30 September 1997 Mascoll had been found guilty at the Magistrate's court of the offence of unlawfully and maliciously inflicting grievous bodily harm on the Claimant by way of the vehicle, and, Mascoll having been convicted in the Magistrate's Court, the Claimant relied on section 28 of the Evidence Act, Cap 158 of the Laws of Saint Vincent and the Grenadines.
On 5 January 2000 the defence of the driver, Mascoll, was filed. He pleaded that the Claimant frequently protested the telephone rates, practices and services of Cable & Wireless; that at 8.15 am on the day in question the Claimant had deliberately placed himself in an 8 foot private driveway leading to the parking lot to the rear of Cable & Wireless; that this driveway was the only means of getting to the rear of the building and was frequently used by employees and vehicles of Cable & Wireless; that the Claimant would be aware of the busy traffic because of his frequent demonstrations; that on the day in question the Claimant was atrespasser on the premises which was used only by the servants and agents of Cable & Wireless; that on the day in question the Claimant was sitting with a piece of plywood in front of him and was looking for a confrontation with Cable & Wireless and its servants and agents; that Mascoll was driving T5166 owned by Cable & Wireless and as he left the main highway on Halifax Street to enter the driveway leading to the rear of the Cable & Wireless building he noticed the Claimant sitting in the 8 foot wide driveway; that he got out of the vehicle and pleaded with the Claimant to remove himself so that he could pass but the Claimant did not move; that he reversed the vehicle to get enough room to get around the Claimant safely and he did so with due care and attention; that as he edged the vehicle slowly around the Claimant the front wheel of the vehicle cleared him slowly and safely and as the left rear wheel was about to pass him the Claimant pushed his left foot a little closer to the path of the vehicle causing the wheel to come into contact with his left ankle; that Mascoll relied on the principle of volenti non fit injuria; and, that the Claimant even after he was injured further demonstrated his desire for confrontation by refusing to remove out of the way and though Mascoll begged the Claimant to allow him to take him to the Kingstown General Hospital the Claimant shouted that he did not want to travel in any vehicle owned by Cable & Wireless; that the Claimant had contributed to the accident that had resulted in his injuries; in particular, the Claimant had been demonstrating in a private driveway at a time when he knew that the servants and agents of Cable & Wireless had to use the driveway to get to and from the parking lot at the rear of the building; that the Claimant had refused to get out of the path of the vehicle after it had stopped and Mascoll had invited him to move or shift his position so that the vehicle could have been driven safely past him; that the Claimant had invited confrontation with Cable & Wireless by permitting his left foot to come into the path of the left rear wheel of the moving vehicle after the left front wheel had successfully got past him; and, that the Claimant had failed to heed the passage of the vehicle as it inched its way through the busy driveway. On the matter of the conviction, Mascoll admitted it in his pleading but claimed that it was the subject of a pending appeal in the Court of Appeal.
On 10 January 2000, Cable & Wireless filed its defence. Insofar as the matters pleaded relate to the issue of liability for the injury to the ankle of the Claimant, the defence was almost identical to that of Mascoll. In particular, it was claimed that on the morning in question at about 8.15 am the Claimant deliberately placed himself in the 8 foot wide private driveway leading to and from the parking lot at the rear of Cable & Wireless' main office in Kingstown; that the Claimant was a trespasser on its premises and had no claim of right to be sitting at the main entrance to its parking lot at that hour of day; that Mascoll had noticed the Claimant in the driveway and had stopped the vehicle immediately and come out of it and pleaded with the Claimant to move so that he could pass; that the Claimant did not move; that Mascoll had reversed the vehicle to get enough room to get around the Claimant safely and did so slowly and with care and attention; that the Claimant had pushed his left foot covered with the plywood a little closer to the path of the vehicle thereby causing the left rear wheel to come into contact with the plywood; that Cable & Wireless would rely on the principle ofvolenti non fit injuria because of the wilful conduct of the Claimant. The defence repeated the allegation of contributory negligence raised by Mascoll in his earlier defence.
On 14 June 2000 a joinder of issue was filed. On 24 November 2000 the Claimant filed particulars of his claim as requested by the Defendants and as ordered on 17 November 2000 on the hearing of the summons for directions by Adams J. On 20 April 2001 the request for hearing was filed and the case has been ready for hearing ever since. On 29 May 2001 the matter came before Master Pemberton for case management. The Claimant was given leave to amend the statement of claim by deleting all references to himself as an economist. On 12 July 2001 at a further case management conference Master Pemberton ordered that the defendants file and serve amended defences on or before 31 July 2001; any reply if necessary to be filed and served by 13 August 2001; supplemental lists of documents to be filed and served by 31 July 2001; interrogatories if any to be filed and served by 27 August 2001; answers to be filed and served by 10 September2001; the Claimant to be limited to 4 witnesses, the Defendants to 5; witness statements to be filed and served by 26 September 2001; pre-trial review to be on 16 October 2001; and, trial dates to be 30 and 31 October 2001. As a result, the Claimant filed an amended list to include a sketch plan of the locus in quo, and the transcript of the notes of evidence at the criminal trial on 29 September 1997. No amended defence was filed to the amended statement of claim. A number of witness statements were filed relating to the issue of liability. These were from Mascoll, and Leonard May on behalf of the Defendants; and on behalf of the Claimant from the Claimant himself, from Noel John, Carlitha Wright, and Sgt Calvin Glasgow. There were other witness statements and lists of exhibits filed, but they related to the issue of quantum which, it was agreed, would be brought up if necessary at a later stage on an application for assessment of damages.
The trial commenced on 12 December 2001. By agreement the witnesses, who had all filed witness statements, relied for their examination in chief mainly on their witness statements and offered themselves for cross-examination. The first witness at the trial was the Claimant Ivan O'Neal. Noel John, a retired sergeant of police, and Carlita Wright, a market vendor of Mesopotamia, supported him. Sergeant Glasgow was not available to testify or to be cross-examined. In any event, from his witness statement it did not appear that his evidence would have been of much use to any of the parties. The 2nd Defendant gave evidence on his own behalf. Cable & Wireless called no witnesses.
The facts as I find them are as follows. Cable & Wireless is the sole provider of telecommunications services in St Vincent and the Grenadines. It operates a monopoly for the provision of telephone and other telecommunications services. The Claimant has been demonstrating...
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