Adrien Mitchell Claimant/Applicant v C. O. Williams Construction Ltd Defendant/Respondent [ECSC]
| Jurisdiction | Dominica |
| Judge | Tabor, M (Ag.),Charlesworth Tabor |
| Judgment Date | 11 March 2013 |
| Judgment citation (vLex) | [2013] ECSC J0311-7 |
| Court | High Court (Dominica) |
| Docket Number | CLAIM NO. DOMHCV2012/0203 |
| Date | 11 March 2013 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
Master Charlesworth Tabor (Ag.)
CLAIM NO. DOMHCV2012/0203
Mrs. Gina Dyer-Munro for the Claimant
Miss Colleen Felix for the Defendant
This is an application for interim payment by the claimant/applicant filed on 3 rd December, 2012 under Rule 17.6 of the Civil Procedure Rules ( CPR) 2000. In support of this application the claimant relies on his affidavit filed 3 rd December, 2012. The grounds of the application are:
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(1) That the claimant has to travel to Barbados for further surgical treatment as a result of the injury suffered by the claimant on 29 th February, 2012 when he fell through the walkway into a hole thereunder which said walkway was being constructed by the defendant company.
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(2) That the further surgical treatment which the claimant requires is not available in Dominica and the claimant cannot afford to pay for further necessary treatment abroad.
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(3) That the defendant is in a position to make the interim payment to the claimant for such medical treatment.
Counsel for the defendant filed submissions opposing the application for interim payment on 14 th January, 2012; while counsel for the claimant filed submissions on 28 th February, 2013. After hearing oral arguments from counsel on each side, I granted the application for interim payment and will herein present the reasoning for so doing.
The claimant is a 43 year old dialysis patient suffering from an End Stage Renal Disease. In his amended statement of claim filed on 21 st November, 2012 he avers that on or about 29 th February, 2012 whilst walking to the Pointe Michel Credit Union along a walkway constructed by the defendant he fell through the walkway into a hole beneath it.
At the time of the incident, the defendant was operating under a contractual arrangement with the government of the Commonwealth of Dominica to undertake road works in the Point Michel area. As part of the facilitation of these road works, the defendant constructed a walkway along the Pointe Michel road which was under its management and control when the accident occurred.
The claimant contends that the accident was as a result of the negligence of the defendant, its servants or agents. He particularized the negligence of the defendant as follows:
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(1) Failing to secure the walkway along the Pointe Michel road so as to make it safe for pedestrians.
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(2) Failing to take steps to prevent the walkway from being dangerous.
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(3) Failing to secure the hole under the walkway so as not to endanger pedestrians.
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(4) Failing to warn pedestrians that the walkway was dangerous or of the presence of a hole thereunder.
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(5) Failing to construct the walkway properly or at all or to take any other step to prevent pedestrians from falling into it.
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(6) Failing to ensure that walkway was safe for use of pedestrians.
As a result of the accident, the claimant sustained a closed intertrochanteric fracture of his right femur. This diagnosis was confirmed by an X-ray taken on the 29 th February, 2012 at the Princess Margaret Hospital. In the medical report of 27 th March, 2012 by Dr. Jendayi Nibbs of the Princess Margaret Hospital, it is noted that the claimant requires surgical treatment of an open reduction and internal fixation of the fracture with a dynamic plate and screw and that the hardware to undertake this procedure is unavailable in Dominica. The medical report further notes that any other attempt at ORIF (Open Reduction Internal Fixation) using alternative hardware will necessitate a longer surgery and cause more extensive bleeding which are unacceptable risks in an End Stage Renal Disease patient such as the claimant. As a consequence, Dr. Hendricks Paul has recommended that the claimant get medical treatment outside of Dominica.
Prior to the accident the claimant worked as a linesman with Marpin 2K4 Limited, however, following the accident he is in the process of being medically boarded off by his employer. He deposes that his hip is still affecting him, his leg is crooked and that he can only walk with crutches and cannot work as he used to before the accident.
It is against that background that the claimant has applied for interim payment pursuant to Rule 17.6 of CPR 2000.
In his affidavit in support of the application for interim payment, the claimant deposes that he is desirous of having an interim payment in the sum of EC$50,111.54 to facilitate treatment by Dr. Thorne (an Orthopaedic Surgeon) in Barbados. This sum would cover the costs for the surgical operation, two airline tickets to Barbados, dialysis treatment, caregiver, embarkation taxes and pocket money.
The claimant further deposes that the defendant has the means of making such a payment, particularly since they have admitted that they have public liability insurance and is a company which has been engaged in contracting services for several years throughout the Caribbean.
It is the submitted view of the claimant that the interim payment is more than a reasonable proportion of the likely amount of the final judgment in the matter, and that it would be unfair and unjust to delay his medical treatment until the final disposition of the matter.
The defendant opposes the application and has submitted that the instant case is not one suitable for an order for interim payment.
Pursuant to Rule 17.6 (1) of the CPR:
"The court may make an order for an interim payment only if –
(a) the defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant;
(b) the claimant has obtained an order for an account to be taken as between the claimant and the defendant and for judgment for any amount certified due on taking the account;
(c) the claimant has obtained judgment against the defendant for damages to be assessed or for a sum of money (including costs) to be assessed;
(d) (except where paragraph (3) applies), it is satisfied that, if the claim went to trial, the claimant would obtain judgment against the defendant from whom an order for interim payment is sought for a substantial amount of money or for costs; …..".
Instructive is Rule 17.6 (2) which states:
"In addition, in a claim for personal injuries the court may make an order for interim payment of damages only if the defendant is –
(a) a person whose means and resources are such as to enable that person to make an interim payment;
(b) insured in respect of the claim; or
(c) a public authority".
It is also instructive to look at Rules 17.6 (4) and 17.6 (5). Rule 17.6 (4) provides that "the court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment", while 17.6 (5) provides that "the court must take into account — (a) contributory negligence (where applicable); and (b) any relevant set-off or counterclaim".
Learned Counsel Mrs. Dyer-Munro urged the court to grant the application for an interim payment and submitted that the relevant rules which the court should be guided by are Rule 17.6 (1)(d) and Rule 17.6 (2).
It was further submitted by Learned Counsel that the court has a wide discretion in determining whether to make an interim payment order. To support this submission, learned Counsel cited paragraph 25.7.6 of The White Book, 2001, Civil Procedure, Volume 1, London Sweet & Maxwell which states "Whether or not an order is made is a matter of discretion. In the former RSC rules, it was said that the court could make an interim payment order "if it thinks fit" and the amount of the payment was expressed to be " of such amount as [the court] thinks just". Learned Counsel noted that it was these phrases which encouraged the courts to emphasise that the discretion is extremely wide and that no limitations on its exercise (over and above those imposed by the rules themselves) should be implied ( Crimpfil Limited v Barclays Bank Plc, The Times, February 24, 1995, CA). Counsel also cited Schott Kem Limited v Bentley [1990] 3 WLR 397, CA, at 406 where it was held that it was not necessary for the claimant to satisfy the court of his need for an interim payment or that he will suffer prejudice if it is not granted.
Learned Counsel noted that in determining and considering Rule 17.6 (1)(d), the court is empowered to "have regard to all the circumstances of the case, including the Statement of Case, any documents disclosed or exhibited and any other relevant material and any admission made by the defendants, and to determine on such material whether it is satisfied that the claimant will at trial obtain judgment for a substantial sum of money. The court must embark on a two stage process in considering this rule". Counsel further noted that this principle which is encapsulated in Rule 25.7 (1)(c) of the United Kingdom Rules is pari materia to Rule 17.6 (1)(d) of the CPR 2000.
In considering an application for interim payment, Learned Counsel in citing Schott Kem Limited v Bentley and Shanning International Limited v George Wimpey International Limited [1988] 1 WLR 981 as authorities, has submitted that the court should consider the application in two stages. Firstly, the court must be satisfied that if the action goes to trial that the claimant will obtain judgment for a substantial sum. Secondly, the court will then need to consider, given its discretion, whether to grant the interim payment. Learned Counsel has posited that at the first stage the claimant must satisfy the...
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