Maynard and Wattley v Maynard and The Saint Christopher and Nevis Solid Waste Management Corporation
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Corbin-Lincoln M |
| Judgment Date | 03 February 2015 |
| Neutral Citation | KN 2015 HC 2 |
| Docket Number | SKBHCV2013/0304 |
| Court | High Court (Saint Kitts and Nevis) |
| Date | 03 February 2015 |
High Court
Corbin-Lincoln, M. (Ag.)
SKBHCV2013/0304
Civil Practice and Procedure - Striking Out—Whether the statement of claim should be struck out on the basis that it was statute barred pursuant to section 2 of the Public Authorities Protection Act Cap 5.13—Consideration of St. Kitts, Nevis, Anguilla National Bank v. Caribbean 6/49 Limited unreported Civil Appeal No. 6 of 2002, Saint Christopher and Nevis—Whether the Solid Waste Management Corporation was a public authority within the meaning of the Public Authorities Protection Act—Consideration of Littlewood v. George Wimpey & Co. Ltd. [1953] 1 W.L.R. 426 and Millen v. University Hospital of the West Indies Board of Management (1986) 44 W.I.R. 274—Whether the act complained of by the claimants was done in pursuant of any Act or any public duty by the Defendants—Consideration of Firestone Tire and Rubber Co. Ltd. v. Singapore Harbour Board [1952] A.C. 452 and Nelson v. Cookson [1940] 1 K.B. 100—Whether the limitation period contained in the Public Authorities Protection Act applied to claims under the Fatal Accidents Act—Consideration of British Electric Railway Company Limited v. Gentile [1914] A.C. 1034 and Venn v. Tedesco [1926] 2 K.B. 227—Claimants' statement case struck out as an abuse of the process of the Court—CPR 26.3—Sections 3 and 5 of the Fatal Accidents Act—Sections 5, 6, 8, 10, 11 and 18 of the Solid Waste Act.
Corbin-Lincoln M (Ag): The application before the court is an application filed by the 2nd defendant to strike out the claimant's claim as an abuse of process.
The claimants are the Administratrices of the Estate of Terrence Johnson (“the deceased”).
The 2 nd defendant is a body corporate established by the Saint Christopher and Nevis Solid Waste Management Corporation Act Cap 11.05 of the Laws of Saint Christopher and Nevis (“ the Solid Waste Act”).
The deceased and the 1 st defendant were at all material times employees of the 2 nd defendant. The deceased was employed as a loader and the 1 st defendant as a driver. On 13 th November 2012 a truck owned by the 2 nd defendant and being driven by the 1 st defendant in the course of his employment was involved in an accident. The deceased, who was a passenger in the truck, died as a result of injuries sustained in the accident.
On 12 th November 2013 the claimants commenced the instant claim against the defendants for damages under the Fatal Accidents Act Cap 23.10 of the Laws of Saint Christopher and Nevis (“ the FAA”) and costs arising from the negligent driving of the 2 nd defendant's motor vehicle by the 1 st defendant which resulted in the death of the deceased.
The 2 nd defendant's application seeks the following relief:
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(1) A declaration that the 2 nd defendant is a public authority for the purposes of section 2 of the Public Authorities Protection Act Cap. 5.13 of the Revised Laws of St. Christopher and Nevis;
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(2) A declaration that the action is an abuse of process as it is statute barred pursuant to section 2 of the Public Authorities Protection Act Cap.5.13 of the Revised Laws of St. Christopher and Nevis 2009;
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(3) An order that the claim in the within action be struck out as an abuse of process; and
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(4) Costs.
The 2 nd defendant contends that it is a ‘public authority’ pursuant to section 3 of the Solid Waste Act and that the 1 st defendant and the deceased were employed by the 2 nd defendant for the purpose of carrying out the 2 nd defendant's public duty of waste disposal. Consequently, both defendants fall within the class of persons covered by the Public Authorities Protection Act Cap. 5.13 of the Revised Laws of St. Christopher and Nevis (“ the PAPA”) and that pursuant to Section 2 of the said Act any claim against the defendants must be commenced within 6 months after the act complained of.
The 2 nd defendant contends that the claimants' claim is barred having been commenced more than 6 months after the death of the deceased.
The claimants oppose the application on the following grounds:
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(1) The 2 nd defendant's application ought not to be entertained by the court since the application for declarations by way of a Notice of Application is misconceived. The use of the Notice of Application procedure under Part 11 of the Civil Procedure Rules 2000 (“CPR”) is for interlocutory applications and ‘seeking relief by way of declarations cannot by any stretch be deemed to be interlocutory relief.’
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(2) By using Form 6 and not a fixed date form as mandated by CPR Rule 56 the 2 nd defendant has accepted and conceded that it is not a public authority as Rule 56.1 (1) (b) and 56.7 (1) (a) provides for declarations where one of the parties is a public body.
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(3) The PAPA does not apply to the defendants; and
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(4) The limitation period contained in the PAPA does not apply to claims under the FAA and consequently the time limit for bringing claims under the FAA is one year rather than the 6 month period created by the PAPA.
The Civil Procedure Rules (“ CPR”) Part 26.3 (1) (c) states that:
“In addition to any other power under these Rules, the court may strike out a statement of case or part of a statement of case if it appears to the court that … the statement of case or the part to be struck out is an abuse of the process of the court or is likely to obstruct a just disposal of the proceedings”.
In St. Kitts, Nevis, Anguilla National Bank v Caribbean 6/49 Limited1 Barrow J.A confirmed that issuing a claim after the expiration of limitation period is one of the circumstances that could amount to an abuse of process contemplated by Part 26 (3) (1) (c).
It is well established that the power to strike out should be used sparingly. In Baldwin Spencer v The Attorney General of Antigua and Barbuda et al2 Sir Byron J put it thus “this summary procedure should only be used in clear and obvious cases, when it can be seen on the face of it (emphasis mine), that the claim is obviously unsustainable, cannot succeed or in some other way is an abuse of the process of the court”.
The PAPA states that it is an Act “ to provide for the protection of public authorities: and to provide for related or incidental matters.”
Section 2 of the PAPA states:
“ 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 following provisions shall have effect:
(a) 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 FAA states that it is an “ Act to provide for the institution of actions in respect of fatal accidents caused by wrongful act etc.”
Section 3 of the FAA states:
“Where the death of a person is caused by [sic] wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured and although the death is caused in such circumstances as amount in law to [sic] felony”
Section 5 of the FAA states that an action under the Act must be commenced within 12 calendar months after the death of a deceased person.
The issues arising for consideration are as follows:
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(1) Is the 2 nd defendant a public authority within the meaning of the PAPA?
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(2) If, so, were the acts complained of done in pursuance or execution of any Act, or of any public duty by the defendants so as to entitle the defendants to avail themselves of the provisions of the PAPA?
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(3) Even if the defendants are covered under the PAPA does the limitation period contained in the PAPA apply to claims under the FAA?
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(4) Whether the 2 nd defendant's application, made by Notice of Application, should be entertained by the court.
While the PAPA states that it is an Act to provide for the protection of “public authorities” the term “public authority” is not defined in the Act and there is no criteria set out therein for determining what constitutes a “public authority”. The provisions of the PAPA mirror section 1 of the Public Authorities Protection Act 1893 of the United Kingdom and similar legislation of Commonwealth jurisdictions. Useful guidance on determining whether a particular body is a public authority for the purposes of the PAPA is therefore available not only from cases within this jurisdiction but also from UK and Commonwealth cases.
In Littlewood v George Wimpey & Co. Ltd, 3 Parker J stated that “ in determining whether the corporation is or is not a public authority, I must consider the duties imposed as opposed to the powers given, the degree, if any of public control; and to whose benefit any profit earned is going to accrue.” 4
In Millen v University Hospital of the West Indies Board of Management5 the Jamaican Court of Appeal favoured the approach of the court in the Littlewood v George Wimpey case. The court held that “ the factor on which attention should be focused is a consideration of the nature of the duties being performed, or the authority being...
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