Darel Christopher v Benedicta Samuels dba Samuels Richardson & Company
| Jurisdiction | British Virgin Islands |
| Judge | HARIPRASHAD-CHARLES J |
| Judgment Date | 18 March 2010 |
| Docket Number | Claim No. BVIHCV2008/0183 |
| Court | High Court (British Virgin Islands) |
| Date | 18 March 2010 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE (CIVIL)
Claim No. BVIHCV2008/0183
Mr. Terrence A. Neale and Mr. Patrick Thompson for the Claimant
Mr. Sydney Bennett QC and Ms. Anthea Smith for the Defendant
1. Alphonso v Ramnath 56 WIR 183.
2. Ashcroft v Curtin (1971) 1 WLR 1731.
3. Auguste v Neptune (56 WIR 229).
4. Berrill v Road Haulage Executive (1952) 2 Lloyd's Rep. 490.
5. CCAA Limited v Julius Jeffery Civ. App. No 10 of 2003, St Vincent
6. Cedric Dawson v Cyrus Claxton (BVIHCA 2004/0023)
7. Cornilliac v St. Louis (1965) 7 W.I.R. 491.
8. Daphne Alves v the Attorney General (BVIHCV2006/0306)
9. Gailius Mathurin et al v Andrew Paul Claim No. SLUHCV2002/0867—Judgment delivered on 28 January 2004 (oral) and 13 July 2004 (written)-unreported
10. Haithwaite v Thomson Snell & Passmore (a firm) [2009] EWHC 647 at paras. 22 to 27.
11. Hanif v Middleweeks (a firm) [2000] Lloyd's Rep. P.N. 920.
12. Hatswell v Goldbergs (a Firm) (2002) Lloyds Rep. PN 359.
13. Ilkew v Samuels [1963] 2 All ER 879.
14. Lewis v Denye [1939] 1 All ER 310.
15. Livingstone v Rawyards Coal Company (1880) 5 App. Cas. 25 at 30, an appeal from the House of Lords from Scotland.
16. Nance v British Columbia Electric Railway Company (1951) A.C. 601.
17. Tart v G.W. Chitty and Company Limited [1933] 2 KB 453.
18. Page v Richards & Draper referred to in Tart v G.W. Chitty and Company Limited
19. Perestrello E Compania v United Pain Co Ltd (1969) 1 WLR 570
20. Tate v Lyle Food and Distribution Ltd & v Greater London Council & Anor (1982)1 W.L.R. 149.
21. The Mediana (1900) AC 113 at 116.
22. Tortola Yacht Services Ltd v Denroy Baptiste (BVIHCA 2008/016).
23. Ulbanna Morillo v Leanne Forbes (BVIHCV 2003/0005).
24. Jones v Livox Quarries Ltd [1952] 2 Q.B. 608.
Professional Negligence by solicitor — failure to institute original claim for personal injuries against public body within the statutory limitation period of six months — Section 2(a) Public Authorities Protection Act, Cap 62 — summary judgment entered on issue of liability — duty of care of drivers of vehicles in using the road — contributory negligence
Quantum of damages — permanent disability — general damages — pain and suffering — future loss of earnings — future medical expenses — special damages — past earnings — pre-medical expenses — interest — costs
On Sunday 10 June, 2007 at approximately 7.00 a.m., an accident occurred near the Footloose Marina on the James Walter Francis Highway, Road Town, Tortola. The accident occurred when Darel Christopher who was riding his bicycle in a westerly direction along the said highway, violently collided with a motor truck, owned by the British Virgin Islands Electricity Corporation (‘the Corporation’) and driven by Venton James, an employee of the Corporation. As a result of the collision, Mr. Christopher suffered severe injuries and had to be hospitalized for one month.
Whilst at the hospital, the defendant, Benedicta Samuels (‘Mrs. Samuels-Richardson’), a lawyer by profession, paid a social visit to Mr. Christopher. They spoke casually and she agreed to act on his behalf concerning the collision, against the Corporation and Mr. James.
On 19 November 2007, the solicitors, acting on behalf of the Corporation and Venton James denied liability. Shortly after 17 December 2007, Mrs. Samuels-Richardson received a police report concerning the accident which she had requested on or about 20 September 2007. However, by then, the limitation period of six months for bringing a claim against the Corporation had expired. Mrs. Samuels-Richardson had not advised Mr. Christopher of the necessity for bringing a claim within six months of the date of the accident and had not commenced action on his behalf within that period.
On 25 June 2008, Mr. Christopher filed the present action against Mrs. Samuels-Richardson claiming damages for breach of duty and/or professional negligence. On 12 September 2008, Mrs. Samuels-Richardson filed her defence. She admitted that she visited Mr. Christopher at the hospital for the purpose of taking instructions but claimed that the instructions were preliminary instructions pending arrangements for her retainer and receipt of detailed instructions.
On 2 October 2008, Mr. Christopher filed an application against Mrs. Samuels-Richardson, pursuant to Part 15 of the Civil Procedure Rules 2000 seeking an order that summary judgment be entered against Mrs. Samuels-Richardson on the issue of liability, on the basis that she had no real prospect of successfully defending the issue in the claim. The application was heard by the learned Master on 2 December 2008. She ordered that judgment be entered against Mrs. Samuels-Richardson on the issue of liability.
The issue of quantum of damages was sent to be determined at trial. The present matter relates to the determination of the quantum of damages that Mr. Christopher is entitled to as a result of the negligent handling of his claim for personal injuries against the Corporation and Mr. James.
[1] When a court is called upon to put a value on a claimant's lost claim against a third party, its task is not normally to determine definitively how the litigation would have been decided and not the hypothetical decision in the lost trial, but the prospects: Hanif v Middleweeks (a firm).
[2] The legal burden rests on the claimant to prove that in losing an opportunity to pursue the claim he had lost something of value i.e. his claim had a real and substantial rather than merely a negligible prospect of success: Hatswell v Goldbergs (a Firm). While the evidential burden lies on the defendant [legal practitioner] to show that the litigation was of no value to the client. This burden would be heavier where the defendant, having advised the client that there was a reasonable prospect of success or having failed to advise the client of the hopelessness of his situation, had acted for the client in the litigation and charged for his or her services.
[3] It is plain from the legal principles that all parties involved in the collision owed a duty to each other and to themselves so as to avoid the collision and the duty of care is not restricted to the driver of the truck alone.
[4] When a heavy truck, such as the electricity truck is involved, the Corporation should have taken some precautionary measures, either to have a police presence on the road diverting traffic or placing some warning signs on the road, to alert other road users. Not having done so the Corporation and Mr. James is liable in negligence for the collision.
[5] Mr. Christopher was also negligent in his use of the road and must take the greater blame for the accident for the following reasons, he rode his bicycle into the truck; the bicycle was ridden at significant speed; he did not keep a proper look-out as his head was down; he saw the truck at a distance of 150 feet but he failed to stop, slow down or do anything to avoid a potential collision until he got too close. Therefore damages awarded to him have been significantly reduced by 75% for Mr. Christopher's own contributory negligence.
[6] On assessing damages the leading West Indian authority is the case of Cornilliac v St. Louis. Mr. Christopher is entitled to total general damages of $735360, under the heads of pain and suffering, future loss of earnings, future medical expenses, and future miscellaneous expenses. In addition, he is entitled to special damages in the sum of $21441.15. The total amount of damages must be reduced by 75%, because of Mr. Christopher's contributory negligence in the collision.
[7] Interest at a rate of 5% is awarded on the general damages, from the date of service of the claim form to the date of judgment. Interest at a rate of 3% is awarded from the date of judgment to the date of payment: Alphonso v Ramnath.
On a bright and sunny morning in June 2007, when visibility was clear and weather conditions were good, a terrible accident occurred near the Footloose Marina on the James Walter Francis Highway, Road Town, Tortola. The Claimant, Darel Christopher, a cycling enthusiast, was riding his Trek bicycle in a westerly direction along the said highway when he violently collided with a motor truck, owned by the British Virgin Islands Electricity Corporation (‘the Corporation’) and driven by Venton James, an employee of the Corporation. As a result of the collision, Mr. Christopher suffered severe injuries and had to be hospitalized for one month. Whilst at the hospital, the Defendant, Benedicta Samuels (‘Mrs. Samuels-Richardson’), a lawyer by profession, paid a social visit to Mr. Christopher. Mrs. Samuels-Richardson was an acquaintance of Mr. Christopher. At the hospital, Mr. Christopher informally explained to Mrs. Samuels-Richardson that he had been involved in an accident and she agreed to act on his behalf.
On or about 20 September 2007, Mrs. Samuels-Richardson requested a police report of the accident from the Commissioner of Police. On 15 October 2007, she sent a letter to the General Manager of the Corporation on Mr. Christopher's behalf inviting the Corporation's proposal for settlement of the matter without litigation. On 19 November 2007, the solicitors acting on behalf of the Corporation and Venton James denied liability. Shortly after 17 December 2007, Mrs. Samuels-Richardson received the police report. By then, the limitation period of six months for bringing a claim against the Corporation had expired1. Mrs. Samuels-Richardson had not advised Mr. Christopher of the necessity for bringing a claim within six months of the date of the accident and had not commenced...
To continue reading
Request your trial