Kingsley A. Thomas (a.k.a. “Kingsley Tyson”) v Blues and Blues Ltd
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Gill, M. |
| Judgment Date | 15 June 2020 |
| Neutral Citation | KN 2020 HC 26 |
| Court | High Court (Saint Kitts and Nevis) |
| Docket Number | CLAIM NO.: NEVHCV2018/0078 |
| Date | 15 June 2020 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(ADMIRALTY)
CLAIM NO.: NEVHCV2018/0078
Mr. Patrice Nisbett with him Mr. Eustace Nisbett for the claimant
Ms. Kurlyn Merchant for the defendant
Gill, M. (Ag.): This matter is at the stage of assessment of damages following judgment in default of acknowledgement of service. The Court is to determine the quantum of damages to be awarded to the claimant for damage caused to his fishing vessel as a result of a collision with a vessel owned by the defendant company. After a hard fought battle between Counsel for the parties on a preliminary point involving the issue of contributory negligence, this is the Court's ruling on that issue.
The facts are revealed in the statement of claim filed on July 19, 2018. On May 16, 2016 at about 7:15 a.m. the claimant and his crew of 5 were net fishing in his fishing vessel Mishoun Fari at Monkey Shoals within the jurisdiction of St. Christopher and Nevis when the defendant's vessel MV Mutty's Pride collided with Mishoun Fari thereby causing damage to its nets and engine. The claim is for damages for loss and expense arising out of the collision caused by the negligence of the defendant. In the Particulars of Negligence, the claimant alleges that the defendant was negligent in that in all the circumstances it or its employees or agents:
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(a) Failed to man and/or monitor its vessel's control room; and
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(b) Failed to man and/or monitor its vessel's steering wheel; and
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(c) Failed to stop, slow down, or otherwise control the vessel away from colliding with the claimant; and
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(d) Failed to give any or sufficient warning of its approach; and
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(e) Failed to keep any or proper lookout; and
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(f) Failed to observe the claimant's warning that danger was ahead; and
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(g) Failed to bring its vessel to a complete stop within a reasonable time after it had collided with the claimant's vessel and net.
The defendant failed to file an acknowledgement of service or defence and judgment in default of acknowledgement of service was entered on March 5, 2019 for an amount to be decided by the Court.
On May 13, 2019 the Court gave directions for assessment. That order was served on the defendant on June 20, 2019 and by the filing of a witness statement, a witness summary and submissions on assessment of damages, the defendant has decided to participate in this stage of the proceedings.
The witness summary of Randolph Park, the captain of MV Mutty's Pride, indicates that he does not know exactly at what point the nets were caught in the defendant's vessel as there were no markers or lines to signal a fishing operation on that day so there was no way of knowing what was taking place to exercise any precautions in this regard. Further, he avers that the claimant's vessel did not carry a radio and there was no way of the claimant communicating with the defendant or other mariners to alert of any operation by the claimant.
Samuel Connor, the owner and sole shareholder of the defendant, in his witness statement, accepts that his vessel MV Mutty's Pride collided with the claimant's fishing net causing damage, but contends that the claimant is responsible for the said damage as the claimant and his crew:
Mr. Connor states that the claimant ought to be held contributorily negligent for about 70% of the damage claimed.
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(i) Failed to place any markers or flag poles at intervals on the net in the water signifying their operation.
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(ii) Failed to communicate in any way or issue any warning to mariners operating in the area to prevent collision or contact with the fishing gear.
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(iii) Failed to take the necessary precaution to avoid collision with their nets.
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(iv) Were negligent in failing to place markers or warnings of their nets.
At the hearing of the assessment on September 30, 2019 it was hotly contested between Counsel whether the defendant can raise the issue of contributory negligence after judgment in default in this case. In the circumstances, the Court ordered submissions on this particular point. Written and oral submissions were made accordingly.
The single issue for the Court to determine at this stage is whether the defendant can raise the issue of contributory negligence after the claimant has obtained default judgment.
Lord Denning explained the concept of contributory negligence in Jones v Livox Quarries Ltd. 1 when he stated:
“A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself, and in his reckonings he must take into account the possibility of others being careless.”
As it is the defendant who seeks to introduce the issue of contributory negligence, it is prudent to spell out the defendant's position first. The defendant relies on the witness summary of Randolph Park, the witness statement of Samuel Connor and the report of the Nevis Air and Seaport Authority (NASPA) attached to claimant's witness statement to establish that the claimant was in breach of The Fisheries Act, Cap. 14.07 by not having the required markers while fishing. The following regulations contained in the Schedule to the Act are relevant.
33. Any fish aggregating device placed in the Fishery waters of Saint Christopher and Nevis shall
(a) be clearly marked with the name of the owner and of the vessel from which the device was placed;
(b) bear a radar reflector and such other equipment or markings as the Chief Fisheries Officer may from time to time require.
36. No person shall
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(f) set or place any fish pot or trap without an identification mark issued or approved by the Chief Fisheries Officer.
The NASPA report states that in the interview with the captain of the MV Mutty's Pride he raised certain concerns. The relevant part of the report reads as follows:
“The Captain accepted the responsibility for the damages to the fishing gear however he has raised the following concerns which are deemed important and serious attention should be paid to these issues:
— Why is it, that fishing boats involved in such operations do not have pole flags at intervals on the net in the water signifying their operation.
— They have no means of communications to alert mariners operating in the area to prevent collision or contact with the fishing gears.”
The captain suggests that these issues should be brought to the attention of the port to encourage the authority to enforce such recommendations/concerns thus preventing future collision and potential lives being lost at sea. In addition the authority should consult the IMO regulation pertaining to fishing activities.”
Learned Counsel for the defendant, Ms. Merchant, submitted that none of the witness statements of the claimant or the NASPA report contradict the defendant's contention that there were no pole flags, markers or any form of communication to alert mariners that there were nets in the area. Therefore, on the face of the record, it is conclusive that the claimant was in breach of the statutory requirement to display markers. That being the case, the claimant was contributorily negligent. Ms. Merchant made it clear that the defendant is not disputing that the captain and crew of MV Mutty's Pride owed a duty of care to all mariners, including the claimant, and that there was some breach of that duty when the vessel collided with the net and engine of Mishoun Fari. However, she argued strenuously that at the stage of assessment of damages, the defendant is not barred from raising the issue of contributory negligence in the determination of the quantum of damages to be awarded to the claimant. Counsel cited a line of authorities on the point.
In Pugh v Cantor Fitzgerald International, 2 Ward L.J. engaged in a useful discourse at paragraphs 26 to 29 of the judgment as follows:
“26. The first question is what issues may be raised on assessment of damages which is undertaken after there has been a judgment on liability. The answer is given by the unreported judgment in this court in Lunnun v Singh & Ors. dated 1 st July 1999…. Jonathan Parker J., as he then was, stated the “underlying principle” in these terms namely:-
‘That on an assessment of damages all issues are open to a defendant save to the extent that they are inconsistent with the earlier determination of the issue of liability, whether such determination takes the form of a judgment following a full hearing on the facts or a default judgment.’
27. Clarke L.J. held that on the assessment of damages the defendant may not take any point which is inconsistent with the liability alleged in the statement of claim but subject thereto, the claimant could take any point relevant to the assessment of damages including failure to take steps to mitigate. Peter Gibson L.J. was of the view that:-
“the true principle is that on an assessment of damages any point which goes to the quantification of the damage can be raised by the defendant, provided that it is not inconsistent with any issue settled by the judgment.”
28. In my judgment that view of the true principle survives the introduction of the new Common Procedure Rules.
29. Thus the second question is what issues are determined by a judgment entered in default of defence. I accept the principle as it was expressed by Viscount Radcliffe in the Privy Council in Kok Hoong v Leong Cheong Kweng Mines Ltd. [1964] A.C. 993, 1012:-
… default judgments, though capable of giving rise to estoppels, must always be scrutinised with extreme particularity for the purpose of ascertaining the bare essence of what they must necessarily have decided and, to use the words of Lord Maugham L.C....
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