Johnston et Al v Stewart et Al

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Joseph, J.
• Judgment Date: 20 June 1985
• Neutral Citation: VG 1985 HC 7
• Docket Number: Civil Suit no. 104 of 1981
• Date: 20 June 1985

High Court of Justice

Joseph, J

Civil Suit no. 104 of 1981

Johnston et al

and

Stewart et al

Appearances:-

Dr. Fenton Ramsahoye, Q.C. and Mr. E. Hewlett for plaintiffs.

Mr. J.S. Archibald, Q.C. and Mr. G, Farara and then by Mrs. Janice George-Creque for first and second defendants.

Mr. T. Hobson for third and fifth defendants.

Mr. McWelling Todman, Q.C. and Mr. Paul Webster for fourth defendant.

Tort - Fatal Accident — Damages.

Facts: Plaintiff claimed as Administrators of estate of K.J. K.J. was a 41 year old teacher and father of two electrocuted when using an electric sander which was plugged into an electrical outlet situated on the second defendant's premises. The plaintiff contended that the electrocution was caused by negligence of the defendants their servants or agents. Claim under the Fatal Accident Act and Causes of Action (Survival) Act. Defendants denied that any fault in outlet contributed to K.J.'s death. It was found as a fact that the outlet was faulty and that the deceased had contributed to his death since as a teacher of physics he must have appreciated the danger of using an electrical power tool while he was wet and while standing on damp ground.

Held: An award would be made under Fatal Accident Act of $172,257 to his wife and $228,709.50 to children. Under the Causes of Action (Survival) Act award of $6,645.00 and life interest of $29,902.00 to wife and children awarded $4,951.00. Wife's award under Causes of Action (Survival) Act extinguished since it was less than the award under the Fatal Accidents Act. Interest calculated at 5% per annum from date of writ to date of judgment. Judgment against second defendant.

Joseph, J.

1 This action was commenced by a Writ of Summons filed on 22nd December 1981,'endorsed with a claim by the plaintiffs, Margaret Johnston and Ronald Russell as Administrators of the estate of Kenneth H:, Johnston, deceased –

• (1) On behalf of Margaret Johnston, the lawful wife of Kenneth Johnston, and her two children, Heather Martha Johnston and Mark Robert Johnston, damages under the Fatal Accidents Act, (Cap: 26), of the Laws of tie Virgin Islands, in respect of the death of Kenneth Johnston, who was killed by reason of electrocution when using an electrical sander that was plugged into an electrical outlet situated on the premises of Tortola Yacht Services Ltd. at Wickhams Cay II, Tortola, on Friday 10th July 1981, which electrocution was caused by the negligence of the defendants, their servants or agents.

• (2) Damages under the Causes of Action (Survival) Act, (Cap. 11) of the Laws of the Virgin Islands, for personal injury, loss anal damages sustained by Kenneth H. Johnston and his estate as a result of electrocution which resulted in his death caused by the negligence of the defendants, their servants or agents.

2 In an amended statement of claims, the plaintiff, alleges that –

• (a) the first defendant is a director of the second named defendant and at all material times was the manager of the shipyard known as Tortola Yacht Services Ltd. (hereafter referred to as the premises) a company incorporated and carrying on business of operating and managing a boating and yachting service;

• (b) the third defendant and/or fifth defendant, by their servants and or agents were at all material times responsible for the installation, maintenance and repair of the electricity supply system on the premises;

• (c) on the 10th July 1981, the deceased want fatally injured on the premises and thereby lost his normal expectation of life;

• (d) if the fatal injury was caused while the deceased was lawfully upon and was lawfully using the premises and electrical services provided therein, the deceased was electrocuted while using a sander connected to a faulty electricity outlet on the premises the fault and injury having been caused by The negligence of the defendants who were in breach of their duty of care to the deceased.

3 The plaintiffs claim under the Fatal Accidents Act, (Cap. 26) of the Laws of the Virgin Islands and the Causes of Action (Survival) Act, (Cap. 11).

4 The plaintiffs further claim that they rely upon the fact that the electrocution of the deceased while using a sander plugged into a socket on the premises as of itself evidence of negligence.

5 By reason of the death of deceased by negligence of the defendants, the estate of the deceased has suffered severe loss and damage, and his widow and infant children who were wholly dependant upon him for support have sustained grievous financial loss: that the deceased further lost the prospects of advancement open to him as a teacher, and his dependants have lost the benefits of such advancement as the deceased might have enjoyed.

6 On 5th April 1982, the first and second defendants filed a point defence denying –

that the first defendant was manager of the shipyard;

admitting that –

• (a) the first defendant is a director of the second defendant;

• (b) the second defendant at all material times operated and managed a boating and yachting service on the premises.

alleged that –

• (a) the third defendant and his company (fifth defendant) were engaged as independent contractors by the second defendant for the installation, maintenance and repair of the electricity supply system on the premises and acted by themselves, their servants and agents: that the matters complained of, were caused wholly or in part by the negligence and faulty installation, maintenance and repair work; that the third and fifth defendants carried out work on the premises continuously for several years up to July 1981, and the work appeared to be safe;

• (b) that the matter complained of by the plaintiffs were caused wholly or in part by the negligence of the deceased;

• (c) the matters complained of were caused in part by the negligence of the second plaintiff, Ronald Russell.

7 The first and second defendants allege further of alternatively, that the matters complained of were caused wholly or in part by the negligence and/or breach of statutory duty by the fourth defendant, its servants or agents.

8 The third defendant in his defence admits that, acting through his servants and/or agents, he was responsible for the original installation of the electricity distribution system on the premises, but denies that –

• (a) the deceased was electrocuted;

• (b) the sander which was being used by the deceased prior to his death, was connected to a faulty electrical outlet on the premises, and allege that if the outlet was faulty and caused the death of the deceased, the fault was not caused by the negligence of the third defendant or his servants or agents;

• (c) the electrical outlets installed by him at the premises were unsafe;

• (d) he owned any duty of care to the deceased or that if he did, he was in breach of that duty;

• (e) he was responsible for the maintenance and/or repair of the electrical, system at the premises;

• (f) the widow of the deceased and children were wholly dependant upon the deceased for support, and does not admit the particulars of damage to the estate nor particulars of earnings and entitlement of the deceased.

9 The third defendant alleges that

• (a) all electrical installation and repairs carried out by him on the praises were in accordance with British Virgin Islands Electrical Code: were properly installed, and were safe for normal use of such outlets;

• (b) if the deceased was killed by electrocution whilst using an electrical appliance attached to an outlet on tine premises, than the death was occasioned solely by the negligence of the deceased.

10 The third defendant stated that he relies an the fact that the installation being used by the deceased prior to death was approved after inspection by the Electricity Authority and was used for seven years thereafter without any problem: was used by other users at the same time and immediately prior to the death of the deceased without injury and that that is evidence that the installation was correctly installed and with proper use was safe.

11 The fourth defendant on 18th October 1982, filed a defence denying it that it is guilty of the alleged or airy negligence or breach of statutory duty.

12 The fifth defendant in its defence denies that –

• (a) it was responsible for the original installation and maintenance and/or repair of the electricity distribution system on the premises;

• (b) the deceased was electrocuted and that the sander being used by the deceased prior to his death was connected with a faulty electrical outlet on the premises. If the outlet was faulty, denies that the fault caused the death of the deceased. Further, the fifth defendant denies that any fault in the outlet was caused by the negligence of itself, or its servants or agents;

• (c) it owed a duty of care to the deceased or if it did, that it was in breach of that duty;

• (d) the death of the deceased was occasioned by any negligence on its part.

13 alleges that –

• (a) all electrical repairs carried out by it on the premises were in accordance with the British Virgin Islands Electrical Code and were properly carried out;

• (b) if the deceased was killed by electrocution whilst using the electrical sander, then the death was occasioned solely by his own negligence or by the negligence of some other party unknown to the fifth defendant.

14 The fifth defendant states that it will rely on the fact that the installation being used by the deceased prior to his death, was approved After inspection by the Electricity Authority and was used continuously for seven years without any problem and was used by other users at the some time and immediately prior to the death of the deceased without jury, and that is evidence that the installation was correctly installed fad with proper use was perfectly safe.

15 On the 29th November 1983, the first and second defendants filed notices, claiming...