[1] Vivian Alexander [2] John Hector Appellants v Richie Smith by his Next Friend Delicia Toussaint Respondent [ECSC]
| Jurisdiction | Dominica |
| Judge | ALLEYNE, J.A.,Justice of Appeal,Brian Alleyne, SC,Albert Redhead,Adrian Saunders |
| Judgment Date | 01 March 2004 |
| Judgment citation (vLex) | [2004] ECSC J0301-1 |
| Docket Number | CIVIL APPEAL NO.4 OF 2003 |
| Court | Court of Appeal (Dominica) |
| Date | 01 March 2004 |
IN THE COURT OF APPEAL
The Hon. Mr. Albert Redhead Justice of Appeal
The Hon. Mr. Adrian Saunders Justice of Appeal
The Hon. Mr. Brian Alleyne, SC Justice of Appeal
CIVIL APPEAL NO.4 OF 2003
Mrs. Singoalla Blomqvist-Williams for the Appellant
Miss Lisa de Freitas for the Respondent
On May 19th, 1995, Richie Smith, at the time 5 years old, suffered personal injuries as a result of an accident involving a motor vehicle admittedly owned by Vivian Alexander and driven by his servant or agent John Hector. On 10th May 2000 a writ was filed by Delicia Toussaint as next friend of Richie Smith, claiming damages for negligence. In May 2001 the Appellants filed a defence in which they denied negligence and further pleaded that the claim was statute barred by virtue of section 17 of the Law Reform (Miscellaneous Provisions) Act 1991. On 30th April 2003, Master Brian Cottle, having considered submissions on behalf of the claimant and the defendants, ruled, on a preliminary issue, that the claim is not statute barred 'as the Claimant did not have the capacity to know due to his age.' The Appellant has appealed against this ruling. The learned Master was not expansive in expressing his reasons for decision.
Counsel for the Appellant and for the Respondent presented very helpful skeleton submissions and greatly assisted the Court by their oral submissions. I wish to compliment Counsel for the quality of their presentations on this most interesting point.
The relevant legislation is sections 17 and 18 of the Law Reform (Miscellaneous Provisions) Act 1991, which I quote in part:
"17(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 any enactment 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) An action to which this section applies shall not be brought after the period applicable in accordance with subsection ( 3) or (4).
(3) Except where the subsection (4) applies, the period applicable 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
(4) ………………………
18(1) In section 17 reference to a person's date of knowledge is a reference to the date on which he first had knowledge of the following facts:
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any act or omission did or did not as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgement.
(3) For the purposes of this section a person's knowledge includes knowledge which he might reasonably be expected to acquire—
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;
but a person is not fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain, and where appropriate, to act on that advice."
Learned Counsel for the Appellant sought to demonstrate that the Act does not expressly or by necessary implication treat minority as a disability for the purpose of preventing time running against an infant claimant in an action in negligence. Counsel submitted that the provisions of the Law Reform (Miscellaneous Provisions) Act of Dominica, sections 17 and 18, are to a large extent, and so faras they apply to the instant case, virtually identical, and in pari materia, with the provisions of sections 11 and 14 respectively of the Limitation Act 1980 of the United Kingdom.
A comparison of the two Acts confirms that section 17(1), ( 2) and (3) of the Dominica Act are in substance identical to section 11(1), ( 3) and (4) of the UK Act, and section 18 of the Dominica Act is identical, word for word, with section 14 of the UK Act.
Learned Counsel for the Appellant drew the Court's attention to section 28(1) of the Limitation Act 1980 (UK), which provides that, subject to certain exceptions not relevant to the case before this Court, if on the date when the right of action accrued the person to whom it accrued was under a disability, the relevant period of limitation commences, and time begins to run against that person, only when that person ceases to be under the disability or dies. Section 38(2) specifically provides that for the purposes of the Act, infancy is a disability.
Counsel submitted that, especially in light of the fact that sections 17 and 18 of the Dominica Act are virtual copies of corresponding sections of the UK Act, the...
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