Maynard and Wattley v Saint Christopher and Nevis Solid Waste Management Corporation and Maynard

• Jurisdiction: Saint Kitts and Nevis
• Judge: Pereira, C.J.
• Judgment Date: 01 October 2015
• Neutral Citation: KN 2015 CA 4
• Docket Number: SKBHCVAP 2015/0006
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 01 October 2015

Court of Appeal

Pereira, C.J.; Baptiste, J.A.; Blenman, J.A.

SKBHCVAP 2015/0006

Maynard and Wattley

and

Saint Christopher and Nevis Solid Waste Management Corporation and Maynard

Appearances:

On written submissions:

Mr. Arudranauth Gossai and Ms. Liska Hutchinson of Gonsalves Parry for the appellants

No submissions filed by the respondents

Civil practice and procedure - Whether the six month limitation period contained in section 2 of the Public Authorities Protection Act applied to the first respondent pursuant to the Solid Waste Management Act — Whether it was open to the Master to conclude, without the benefit of evidence, that at the time the accident occurred, the nature of the function being carried out was garbage collection and that the deceased was injured in the course of the 1st respondent carrying out its public duty — Whether the claims made under the Fatal Accidents Act, notwithstanding the express time limitation contained therein, are caught by the time limitation contained under section 2 of the Public Authorities Protection Act.

The appellants are the personal representatives of the deceased Terrene Johnson (“the Deceased”). They brought a claim for damages for the benefit of the dependants of the deceased pursuant to the Fatal Accidents Act (Cap. 23.10, Revised Laws of Saint Christopher and Nevis 2009) (“the FAA”) and for the benefit of the estate of the Deceased, pursuant to the Law Reform (Miscellaneous Provisions) Act (Cap. 5.08, Revised Laws of Saint Christopher and Nevis 2009). The claim was brought more than six months but less than twelve months after the accident and death of the Deceased. The appellants' averred in their statement of claim that on 13th November, 2012, the Deceased died as the result of a motor vehicle accident that occurred on the same date, which accident was as a result of the negligent driving by the second respondent of a vehicle owned by the first respondent (“the Corporation”). The second respondent was said to be an employee of the Corporation. The Corporation is a statutory corporation established under the Saint Christopher and Nevis Solid Waste Management Corporation Act (Cap. 11.05, Revised Laws of Saint Christopher and Nevis 2009) and which was continued as a body corporate under a later enactment, namely, the Solid Waste Management Act (Act No. 11 of 2009, Laws of Saint Christopher and Nevis) (“the SWMA”). It was further averred in the statement of claim that the Deceased, who was employed as a loader by the Corporation, was travelling along the road on the Corporation's motor lorry which was being driven by the second respondent who so negligently drove or managed the said lorry along the road that he caused or permitted it to skid and overturn, thereby fatally injuring the Deceased. The claim was commenced on 12th November, 2013, just one day before the first anniversary of the accident and the death of the Deceased.

The Corporation filed a defence to the claim on 16th December, 2013, in which it stated that the claim was statute barred pursuant to section 2 of the Public Authorities Protection Act (Cap. 5.13, Revised Laws of Saint Christopher and Nevis 2009) (“the PAPA”). Section 2(1)(a) of the PAPA states that: ‘Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority or of any alleged neglect or default in the execution of any such act, duty or authority … the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within six months next after the act, neglect or default complained of, or, in case of a continuance of injury or damage, within six months next after the ceasing thereof.’ The appellants filed a reply to the Corporation's defence on 31st December 2013 and the second respondent filed his defence to the claim on 16th January 2014. It was not until 11th July 2014 that the Corporation applied by way of interlocutory application for various declarations, one being a declaration that the action was an abuse of process as it was statute barred pursuant to section 2 of the PAPA. Additionally, the Corporation sought an order striking out the claim as an abuse of process pursuant to CPR 26.3(1)(c) and/or the Court's inherent jurisdiction apparently on the basis that the claim was statute barred under section 2 of the PAPA.

The matter came on for hearing before the learned master well before it was ready for trial, most probably before a case management conference was held.

The learned master found that the Corporation was a public authority within the meaning of the PAPA and the act complained of was done in pursuance or execution of an act or of a public duty by the respondents and this entitled them to the protection contained in the PAPA. The learned master further found that the Corporation was carrying out its public duty through the second respondent, its servant, and thus, the second respondent was also covered by section 2 of the PAPA. She also found that the appellants' FAA claim fell within the description of claims to which the PAPA applies. The learned master went on to strike out the claim not only as against the Corporation but also as against the second respondent, notwithstanding that no relief had been sought by him, on the basis that the second respondent was also protected by section 2 of the PAPA.

The appellants appealed the learned master's decision. The main issues which arose on appeal were: (1) whether the privilege of the six month limitation period contained in section 2 of the PAPA applied to and is thus a privilege enjoyed by the Corporation established pursuant to the SWMA; (2) whether it was open to the learned master to conclude without the benefit of evidence that, ‘at the time the accident occurred … the nature of the function being carried out … was garbage collection’ and that the Deceased was injured in the course of the Corporation carrying out ‘its public duty conferred by the [Saint Christopher and Nevis Solid Waste Management Corporation Act]’; and (3) whether claims made under the FAA, notwithstanding the express time limitation contained therein, are nevertheless caught by the time limitation contained under section 2 of the PAPA.

Held: allowing the appeal, and ordering that the decision of the learned master be set aside in its entirety and that the first respondent bears the costs of the appeal fixed in the sum of $1,500.00, that

• 1. The learned master erred in finding that a body that is not the servant or agent of the Crown can still be deemed a public authority for the purposes of the PAPA. The entire object of the protection afforded by the PAPA is the Crown. In particular, section 26 of the Crown Proceedings Act expressly states that the Crown enjoys the privilege of the time limitation contained in section 2 of the PAPA. The immunities and privileges granted by the PAPA are the Crown's, enjoyed through its servants or agents. In addition to determining whether the Corporation may be classified as a public authority, the learned master ought to have also determined whether the Corporation, particularly since it has all the legal characteristics of a corporation sole, is the servant or agent of the Crown and thus attracts the immunities and privileges of the Crown, or, whether it is, in effect, its own master and therefore would not ordinarily attract such immunities and privileges unless expressly bestowed. Section 14 of the SWMA expressly states that the Corporation is not a servant or agent of the Crown and that it does not enjoy any status, immunity or privilege of the Crown. Therefore, the learned master ought to have found that the Corporation, even if classified as a public authority, was expressly exempted from the time limitation privilege contained in section 2 of the PAPA by virtue of the express provisions of section 14 of the SWMA. Tamlin v. Hannaford [1949] 2 All ER 327 applied; Griffith (Brent) v. Guyana Revenue Authority and Another (2006) 69 WIR 320 applied.

• 2. Whether or not the Corporation, through its employee, the second respondent, was engaged in the performance of any public or statutory duty of the Corporation was a matter which could have only been determined at trial on the evidence adduced and not at the stage the matter was at before the learned master. Accordingly, it was not open to the learned master to conclude, without any evidence, that at the time the accident occurred, the nature of the function being carried out was garbage collection and that the Deceased was injured in the course of the Corporation carrying out its public duty conferred by the Saint Christopher and Nevis Solid Waste Management Corporation Act. On the state of the pleaded cases these were findings which could only be reached following a trial on those issues.

• 3. The PAPA refers, in substance, to an action in the nature of an indemnity – in essence, an action personal to the person damaged or injured by the wrongful act, neglect or default of the public authority. The learned master failed to recognise that the claim under the FAA was not a claim devolving to the estate of the Deceased, but rather, it was a new right of action vested in a class of persons therein set out, for their benefit under the FAA, and to which the time limitation set under the PAPA did not apply. Therefore, section 2 of the PAPA is not applicable to the claim under the FAA and the action having been brought later than six months but less than twelve months after the accident and the death of the Deceased, is maintainable. The intention of Parliament based on the provisions and tenor of the FAA, was that this right of action, to be exercised within twelve months after the death of the deceased, was not to be governed or circumscribed by the limitation contained in the PAPA but rather, is to be...