Vanita Henry v Superintendent of prisons et Al

• Jurisdiction: Saint Kitts and Nevis
• Judge: Ventose JA
• Judgment Date: 26 July 2024
• Judgment citation (vLex): [2024] ECSC J0726-4
• Docket Number: SKBHCVAP2018/0024
• Court: Court of Appeal (Saint Kitts and Nevis)

Between:

Vanita Henry

Appellant

and

[1] The Superintendent of Public Works (Now Styled the Director of Public Works, also as the Surveyor of Roads)

[2] The Attorney General of St. Kitts and Nevis

Respondents

Before:

The Hon. Mde. Margaret Price Findlay Justice of Appeal

The Hon. Mr. Trevor M. Ward Justice of Appeal

The Hon. Mr. Eddy D. Ventose Justice of Appeal

SKBHCVAP2018/0024

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Civil appeal — Statutory duty on Crown — Duty to maintain roads and highways — Section 7 of the Roads Act — Breach of statutory duty — Section 4(2) of the Crown Proceedings Act — Crown's liability in tort for breach of statutory duty — 1st respondent's breach of statutory duty to maintain road and verge in state of good repair — Common law nonfeasance rule — Exemption at common law from liability for failure to maintain or repair roads or highways — Whether common law nonfeasance rule applicable in Saint Christopher and Nevis — Section 2 of the Common Law (Declaration of Application) Act — Whether common law nonfeasance rule repealed by section 4(2) of the Crown Proceedings Act — Private remedy for breach of statutory duty — Damages for personal Injury — Whether appellant had a private remedy for damages for personal injury against the respondents owing to breach of statutory duty — Constitutionality of common law nonfeasance rule — Appellate court's jurisdiction to deal with breaches of the Constitution raised as new points on an appeal

In December 2013, the appellant was walking along the pedestrian crossing located on the Island Main Road in the vicinity of Brimstone Hill National Park, Sandy Point, Saint Christopher. The appellant then fell into a ditch immediately after stepping off the road. The ditch was directly adjacent to the designated pedestrian crossing. The appellant stated that when the incident took place, it was raining and the area was poorly lit which meant that the existence of the ditch was not easily discernable to her. The appellant sustained severe injuries because of the fall into the ditch.

The appellant filed a claim in the lower court against the respondents seeking, among other things, special damages and general damages as a result of the injuries she sustained from falling into the ditch. The appellant claimed that her injuries were the direct result of the Superintendent of Public Works (now called Director of Public Works) (the “Director”) and his failure to properly carry out his statutory duties under section 7 of the Roads Act. She alleged that the Director failed or neglected to keep the roadway and the verge in a proper state of repair. In the alternative, the appellant claimed that there existed a duty on the Crown/Government of Saint Christopher and Nevis as the owner and the ultimate manager of the road and verge to exercise reasonable care in the management and maintenance of the road and verge for the safety of pedestrians. She asserted that the Crown/Government through its servants and/or agents was negligent in the exercise of that duty.

In a written judgment dated 22 ^nd August 2018 the learned trial judge held that: (a) the appellant had established that there was a duty imposed on the Director to keep the roadway and verge in a proper state of repair; (b) the Director breached that duty; (c) the breach did not give rise to a private cause of action for injuries sustained by the appellant; (d) the respondents were not liable in negligence by virtue of the common law rule exempting public authorities from liability for nonfeasance; and (e) section 7 of the Roads Act was the original 1912 text and it had not been amended to give a remedy for neglect of the duty it imposes. The judge found that there was nothing in the language of section 7 that indicated expressly or by necessary implication an intention to impose any liability on the Government to pay any damages to persons who had been injured if the Director failed to maintain and repair roads which encompassed verges and consequently, the appellant was not entitled to special or general damages.

Being dissatisfied with the judge's ruling, the appellant appealed. The appellant filed 19 grounds of appeal. The first six grounds related to a challenge to the constitutionality of the common law nonfeasance rule. The next seven grounds concerned the alleged negligence of the Director and the final six grounds concerned whether the common law nonfeasance rule applied in Saint Christopher and Nevis. As to the grounds of appeal concerning the negligence of the Director, the appellant conceded these grounds at the hearing of the appeal. The Court went on to consider the constitutionality points raised by the appellant and also noted that the following issues arose in relation to the common law nonfeasance rule: (i) whether this Court should follow the approach of the Supreme Court of Canada in not applying the nonfeasance rule; (ii) whether section 4(2) of the Crown Proceedings Act provides a private remedy in tort to the appellant for breach of statutory duty by the Crown, its servants or agents; (iii) whether a breach of section 7 of the Roads Act provides a remedy in tort for breach of statutory duty committed by the servants or agents of the Crown; and (iv) whether the common law nonfeasance rule is inapplicable because: (a) the Director is not an “inhabitant” for the purposes of the nonfeasance rule; (b) no legislation in Saint Christopher and Nevis made the nonfeasance rule applicable to the Director; and (c) the ditch in which the appellant fell was not part of the road itself.

Held: dismissing the appeal, affirming the decision of the learned trial judge and making no order as to costs, that:

• 1. As a general rule, an appellate Court does not have original jurisdiction to deal with breaches of the Constitution. It has jurisdiction in two situations, viz: on appeal from a final decision of the High Court where such issues were raised for determination, and where such questions arise in extant appellate proceedings. On the facts, whilst the appellant did not argue that the question of constitutional law arises directly for consideration by this Court in these proceedings, the appellant essentially challenged the common law nonfeasance rule on constitutional grounds. This constitutional challenge was raised for the first time on the appeal and did not fall within the situations in which an appellate Court would have jurisdiction to deal with contraventions of the provisions of the Constitution. Consequently, this Court had no jurisdiction to entertain the grounds of appeal based on the alleged constitutional infringements.

  Levi Maximea v The Chief of Police et al DOMHCVAP2020/0009 (delivered 7th December 2023, unreported) followed.

• 2. At common law, the duty to maintain and repair a highway was not based in negligence but in nuisance, and was an absolute duty. Prior to 1959, in the United Kingdom, this common law duty was placed on the inhabitants at large of an area. This duty, however, did not impose on the inhabitants the additional burden of compensating anyone who suffered injury as a result of a failure to maintain or repair the highway. Thus, the inhabitants benefitted from an exemption from liability for nonfeasance. However, by virtue of section 38(1) of the United Kingdom Highways Act 1959 (“the 1959 Act”), this duty on the inhabitants was abolished. Under the 1959 Act, the duty transferred to the highway authorities and under section 298, the authorities benefitted from the exemption from liability for nonfeasance. By 1961, however, this exemption was repealed so that in the United Kingdom, the nonfeasance rule was effectively abolished. To mitigate this, section 58(1) of the United Kingdom Highways Act 1980 provided a special statutory defence so that a highway authority would not be liable if it proved that it took such care as in all the circumstances was reasonably required.

  Goodes v East Sussex County Council[2000] 1 WLR 1356 considered; Cowley v Newmarket Local Board[1892] A.C. 345 considered.

• 3. In Saint Christopher and Nevis, the Common Law (Declaration of Application) Act (“the Common Law Act”) was passed on 5 ^th March 1887 and section 2 provided that the common law of England at that date, as far as it stood unaltered by any written laws of Saint Christopher and Nevis, was in force in the jurisdiction. This meant that the exclusion of liability for nonfeasance in the United Kingdom at common law came into force in Saint Christopher and Nevis at the time the Common Law Act was passed in 1887. Contrasting with the position in the United Kingdom, no law has since been enacted in Saint Christopher and Nevis to abolish the common law nonfeasance rule. The liability of the Crown to actions in tort for breach of a statutory duty under section 4(2) of the Crown Proceedings Act is only engaged where the Crown is bound by a statutory duty which is also binding on persons other than the Crown and its officers. Under section 7 of the Roads Act, the surveyor has the general care and supervision of roads in Saint Christopher and Nevis. Section 4(2) of the Crown Proceedings Act would not be applicable to a breach of section 7 of the Roads Act since that section places the statutory duty on the surveyor and no other person. Consequently, applying the common law nonfeasance rule in Saint Christopher and Nevis means that, the surveyor would not be liable for damages resulting from a failure to carry out the duty under section 7 to maintain roads of the State in good repair. The learned trial judge therefore did not err in finding that no private remedy in tort was available to the appellant for the breach of the section 7 duty by the Crown and its servants/agents.

  Section 2 of the Common Law (Declaration of Application) Act Cap 3.05 of the Revised Laws of Saint Christopher and Nevis, 2002 applied; Section 4(2) of the ...