Rooplal v Hull et Al

• Jurisdiction: Saint Kitts and Nevis
• Judge: Floissac, C.J.,Byron, J.A.,Liverpool, J.A.
• Judgment Date: 03 October 1994
• Neutral Citation: KN 1994 CA 7
• Docket Number: Civil Appeal No. 9 of 1991
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 03 October 1994

Court of Appeal

Floissac, C.J.

Byron, J.A.

Liverpool, J.A.

Civil Appeal No. 9 of 1991

Rooplal

and

Hull et al

Appearances:

Mr. Terence V. Byron for the appellant

Mrs. Claudette Jenkins for first-named respondent

Dr. Henry Browne for second-named respondent

Mrs. Lillian Benjamin-Matthew for fourth-named respondent

Practice and procedure - Failure to indorse writ - Survival action — Intestate succession — Deceased killed in accident Widow brought action in representative capacity — Writ not indorsed with statement of capacity in which widow sued — Damages awarded to estate of deceased — Whether failure to indorse writ was fatal and subsequent proceedings taken thereunder invalid — Whether doctrine of relation back applied — Whether application of Order 2 of the Rules of the Supreme Court could cure the defect — Rules of the Supreme Court, Order 2, 6.

Floissac, C.J.

1 On 11th August 1990, Alpheus Hull (the deceased) was killed by a truck which was negligently driven by the second named respondent (the driver) for whose negligence the appellant (the truck-owner) and the third named respondent (the contractor) were vicariously liable. The deceased died intestate leaving the first named respondent (the widow) and their two children as his heirs-at-law. Letters of Administration of the Estate of the deceased were ultimately granted to the widow on 3 ^rd January 1992.

2 As a result of the death of the deceased, two rights of action accrued. The first was a hereditary right of action under the Causes of Action (Survival) Act Chap 11 of the Laws of St. Kitts and Nevis. The second was a dependant's right of action under the Fatal Accidents Act Cap.27 of the said laws.

3 On 14th September 1990 and before the said Letters of Administration were granted, the widow instituted legal proceedings against the driver, the truck-owner (the appellant) and the contractor and therein claimed damages with respect to the death. On 15th April 1991, the widow obtained judgment against the driver in default of defence. On 17th April 1991, she obtained judgment on the merits against the appellant and the contractor. On 15th November 1991, she obtained judgment against the fourth named respondent (the third party or the insurance company) in default of appearance. The judgments were all for damages to be assessed.

4 On 15th November 1991, the damages were assessed by Singh J. Treating the action as a consolidation of a hereditary action and a dependant's action, the learned judge awarded the widow the sum of $3400.00 for the funeral expenses incurred and damages in the sum of $100,000.00 in the hereditary action and in the sum of $36,400.00 in the dependant's action. The appellant is dissatisfied with the award in the hereditary action and has appealed against it.

5 Neither the driver nor the contractor nor the third party (the insurance company) has appealed against the judgments against them. In those circumstances, I consider it judicially proper and appropriate to refrain from comments on and conclusions from allegations which are irrelevant to this appeal and which were not mentioned or relied on by counsel for the appellant. I limit my judgment to the issues in this appeal which were argued with consummate circumspection by learned and eminent counsel for the appellant.

6 The issues in this appeal are (1) whether the hereditary action was improperly instituted with the result that the proceedings therein were a nullity and (2) whether the damages awarded in the hereditary action were properly calculated.

(1) The hereditary action

7 Counsel for the appellant impugned the hereditary action on the grounds that firstly the widow did not sue therein in a representative, capacity, secondly the widow could not have sued in that capacity because she was not invested with that capacity at the time of the institution of the action and thirdly the writ (by which that action was commenced) was not endorsed with a statement of that capacity. Counsel referred to Order 6 rule 3(1)(a) of the Rules of the Supreme Court 1970 which provides that:

“Before a writ is issued it must be endorsed -

(a) where the plaintiff sues in a representative capacity, with a statement of the capacity in which he sues; …………… “

8 Counsel for the appellant contended that the widow's initial incompetency and the absence of the endorsement required by Order 6 rule 3(1)(a) nullified the proceedings in the hereditary action. On the other hand, counsel for the widow contended that the widow's initial incompetency and the absence of the indorsement were required by our R.S.C. Order 2 rule 1(1) to be treated as mere irregularities which did not nullify the proceedings in the hereditary action.

9 In support of his contention, counsel for the appellant relied on the decisions of the English Court of Appeal in Ingall v. Moran [1944] 1 All E.R. 97, Hilton v. Sutton Steam Laundry [1945] 2 All E.R. 425 and Bowler v. John Mowlem & Co. Ltd [1954] 3 All E.R. 556. These decisions and the decision of the Privy Council in Meyappa Chetty v. Supramanian Chetty [1916] (A.C.) 603 (which was applied in Ingall v. Moran) were delivered before the introduction in 1964 of the new English R.S.C. Order 2 rule 1 after which our R.S.C. Order 2 rule 1 has been patterned. The English and our R.S.C. Order 2 rule 1 provide as follows:.

“Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these or any other rules of court, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.”

10 The English and our R.S.C. Order 2 rule 2(1) further provide that:

“An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.”

11 But for the doubts expressed by the Privy Council in Austin v. Hart [1983] 2 All E.R. 341, I might have been persuaded by the decisions of the English Court of Appeal upon which counsel for the appellant relied although those decisions appear to contradict our R.S.C. Order 2 rule 1(1). However, two of those decisions were cited in Austin v. Hart. The Privy Council reluctantly accepted without approving those decisions. Delivering the judgment of the Board, Lord Templeman said (at p345):

“In the cited cases the plaintiff did not have any right to sue in the capacity claimed. In the present case the appellants were entitled to sue in the capacities in which they claimed provided, as happened, no executor or administrator intervened to bring an action within six months of the death of the deceased. In Ingall v. Moran [1944] 1 All E.R. 97 at 102, [1944] 1 (KB) 160 at 69 Luxmoore LJ could not help feeling some regret’. In Hilton v. Sutton Steam Laundry [1945] 2 All ER 425 at 429, [1946] (KB) 65 at 73 Lord Greene MR was not ‘averse to discovering any proper distinction which would enable this unfortunate slip to be corrected’. In Finnegan v. Cementation Co. Ltd; [1953] 1 All ER 1130 at 1136, [1953] 1 (QB) 688 at 699 Singleton LJ lamented ‘that these technicalities are a blot on the administration of the law, and everyone except ‘the successful party dislikes them’. Accepting, without approving, the decisions of the Court of Appeal which have been cited, their Lordships see no reason to encourage any extension of their ambit.”

12 The Privy Council elected to act on different principles. Lord Templeman expressed those principles as follows (at pp 344 & 345):

“Their Lordships are satisfied that, if a premature action is irregular and the irregularity is of a kind, which, as in the instant case, was cured without amendment by the mere lapse of time and which causes no prejudice to the defendant, there is no reason for the court to insist that the irregularity nullifies and invalidates the whole proceedings. The modern approach is to treat an irregularity as a nulli-fying factor only if it causes substantial injustice: see Marsh v. Marsh [1945] (AC) 271 at 284. The premature issue of the writ in the present case did not cause any injustice at all. A bizarre and unjust result would follow if a writ issued on 2nd November 1974 and served on 4th November 1974 were held to be a nullity whereas a writ issued and served on 4th November 1974 would plainly have been effective.”

13 The basic principle which the Privy Council sought to enunciate and apply is that a mere procedural irregularity does not nullify or invalidate legal proceedings unless the procedural irregularity causes substantial injustice. This basic principle (which was established after 1964) was expressed in these crucial words:

“The modern approach is to treat an irregularity as a nullifying factor only if it causes substantial injustice: see Marsh v. Marsh [1945] (A.C.) 271 at 284. The premature issue of the writ in the preset case did not cause any injustice at all.”

14 Their Lordships applied the basic principle to a case of an irregular premature action where the irregularity was of a kind which (was cured without amendment by the mere lapse of time”. The nature of the procedural irregularity and the fact that it was curable without amendment by the mere lapse of time were circumstances which surrounded and were peculiar to the irregularity in the case before their Lordships. But their Lordships did not intend to confine the application of the basic principle to that kind of procedural irregularity or to a procedural irregularity...