Cynthia Alfred Plaintiff/Appellant v 1. Leon Thomas 2. John De Caul Defendants/Respondents [ECSC]

• Jurisdiction: Caribbean States
• Judge: BERRIDGE, J.A.,Chief Justice
• Judgment Date: 26 April 1983
• Judgment citation (vLex): [1983] ECSC J0426-1
• Court: Eastern Caribbean Supreme Court
• Docket Number: CIVIL APPEAL NO. 6 of 1982
• Date: 26 April 1983

[1983] ECSC J0426-1

IN THE COURT OF APPEAL

Before:

The Honourable Sir Neville Peterkin—Chief Justice

The Honourable Mr. Justice Berridge

The Honourable Mr. Justice Robotham

CIVIL APPEAL NO. 6 of 1982

Between:

Cynthia Alfred

Plaintiff/Appellant

and

1. Leon Thomas

2. John De Caul

Defendants/Respondents

Appearances:

S. John for the Appellant

O.R. Sylvester for the Respondents

BERRIDGE, J.A.

1 This is an appeal from the judgment of Renwick, J. in which he ordered that judgment be entered for the plaintiff/appellant against the first-named respondent in the sum of $20,000.00 with costs to be taxed and dismissed the claim against the second-named respondent on the ground that he was not vicariously liable for the acts of the first-named respondent, his servant, with the award of half of his costs to be taxed.

2 The grounds of appeal are:

• (i) That the learned trial judge failed to evaluate the evidence and in consequence thereof the quantum of damages awarded the Plaintiff against first-named Defendant was inadequate estimate of the damage suffered by the Plaintiff.

• (ii) That the learned trial Judge erred in law in dismissing the Plaintiff's claim against the second-named Defendants;

3 and the relief sought is:

• (a) That the sum of $20,000.00 awarded by the Court for damages be varied and that the same be substituted by an award in the discretion of this Honourable Court.

• (b) That the order of the learned trial Judge that the Plaintiff's claim against the second named Defendant be dismissed, and that the latter should be entitled to half of his costs, be set aside.

• (c) That judgment be entered for the Plaintiff against both Defendants in an amount to be assessed entirely in the discretion of this Honourable Court and costs.

• (d) That the costs of this Appeal be provided for.

4 The first-named respondent did not appear at the hearing of this appeal not did anyone do so on his behalf.

5 The facts of the case as found by the trial judge or accepted are that the first-named respondent who was the driver of a truck owned by the second-named respondent offered the appellant a lift which she accepted. There were no signs on the truck, contrary to the evidence of the respondents, forbidding the carriage of passengers. The appellant entered the truck and sat beside the driver. There were no doors on either side of the vehicle, the tray of which was heavily laden with sand.

6 While ascending a hill engine trouble developed, the truck travelled backwards, the brakes failed to stop the heavily laden truck and in an attempt to bank the vehicle on the right hand side of the road it capsizedon its left side throwing the appellant out and pining her leg to the truck. The appellant suffered serious injuries as a result of the negligent driving of the first-named respondent and she was hospitalised for about ten weeks having to resort to the use of a crutch for some three months.

7 It was pleaded in the appellant's statement of claim that the accident was due solely to the negligence of the first-named respondent who, as agent of the second-named respondent, offered the appellant a lift in the said truck which she accepted. It was further pleaded that the first-named respondent drove the said truck on a public road so negligently and recklessly that he caused it to overturn by reason of which the appellant is permanently incapacitated and has suffered pain and injury, loss and damage. The appellant claimed $2703.00 Special Damages also General Damages.

8 It was asserted in the defence that the appellant was being carried gratutiously in the truck contrary to the express instructions of the second-named respondent and subject to the express condition that the first-named respondent should be under no duty to carry the appellant with care or safety and to be free from all liability to her arising from personal injuries or loss or damage to her property however caused.

9 It was further asserted in the defence that the first-named respondent was employed to drive the truck on or about the business of the second-named respondent and not to transport passengers and that the act complained of was not done within the scope of such employment and was wholly unauthorised by the second-named respondent.

10 It was also denied in the defence that the appellant suffered the alleged or any damage from the negligence of the first-named respondent.

11 The principles to be applied in cases of this nature are laid down in the well known case ofCornilliae v St. Louis7 W.I.R. 491Learned Counsel for the appellant who was well acquainted with these principles argued that their proper application should inevitably lead to an award greater than that made by the trial judge.

12 There can be no doubt that the appellant suffered injuries of a very serious nature indeed. One has only to look at the evidence of the doctor—Dr.Rampersaud—to see what they were. He said:

"Examination revealed supported by X-ray comminuted compound fracture with associated dislocation of left ankle joint and involved several bones. No registered surgeon was present in State I being surgical registrar in Obstetrician and Gynaecology was asked to treat patient. I sought opinion of Mr. Waldron who happened to be passing through State. His advice was to amputate left leg below the knee. Because of severe dist. and devitalised tissues possibility of gangrene etc. I decided to attempt surgeon correction. This was done. All devitalised muscles, tendons, splinters of bone were removed. Nerves and three tissues which it was possible to surgically repair was done under general anesthetic and leg finally placed in plaster of parris cast with an open window over the area of the wound to facilitate dressing, drainage and to keep a check for the possibility of Gangrene. She was taken back to ward and placed on large doses of antibiotics, heavy sedation for the obvious intense pain she was experiencing and I visited her over a bi daily basis and subsequently passed the case over to Dr. Sunderam in September 1975 when he returned to the State. I saw the patient mid 1976 when she arrived at my office. I was pleasantly surprised to find that she was able to walk with a limp. She had no movements of the ankle joint—as a result of a subsequent operation. I again saw her some 9 months later—condition unchanged. She was finally seen by me early 1980 when I issued medical report. She has 100% permanent disability of movement of left joint, slight shortening of left leg, she walked with an obvious limp. It is very likely she will develop arthritis of left ankle joint in ensuing years. The physical pain and suffering was of the highest degree—injection for pain every 6 hours, this continued until I passed her on to Dr....