Lucretia Rolle v The Airport Authority

• Jurisdiction: Bahamas
• Judge: Mr. Justice Evans, JA
• Judgment Date: 25 July 2022
• Neutral Citation: BS 2022 CA 108
• Court: Court of Appeal (Bahamas)
• Docket Number: SCCivApp. No. 119 of 2021

Between

Lucretia Rolle

Appellant

and

The Airport Authority

Respondent

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Evans, JA

SCCivApp. No. 119 of 2021

IN THE COURT OF APPEAL

Civil appeal — Personal injury — Slip and fall — Statute barred — Limitation period — Res judicata — Estoppel — Issue estoppel — Henderson v Henderson — Knowledge of the proper defendant — Strike Out — Order 18 Rule 19 of the Rules of the Supreme Court — Sections 9 and 10 of the Limitation Act

The appellant was employed by the respondent for a period of seven years. In the course of her employment, on 6 January 2011, she slipped and fell, sustaining injuries. She commenced an action against the respondent by Writ of Summons filed on 6 January 2016 claiming negligence and breach of statutory duty. In its Defence, the respondent denied certain allegations and put the appellant to strict proof. The respondent sought, and was granted, leave to amend its Defence. By its amended Defence the respondent asserted that it was not liable in negligence or breach of statutory or common law duty for the injuries suffered by the appellant.

Thereafter, the respondent filed an application to have the appellant's Statement of Claim struck out as being scandalous, frivolous and vexatious and otherwise an abuse of the process of the court. The respondent, in essence, asserted that the appellant's claim was made against the wrong party. The learned judge below dismissed the Strike Out Application. The appellant replied and the matter laid dormant until the respondent applied to re-amend its Defence. Leave was granted and a re-amended Defence was filed.

By its re-amended Defence the respondent asserted that the matter was statute barred as it had not been brought within the three-year limitation period for the commencement of an action to recover damages relative to personal injuries. By virtue of an amended Reply, the appellant alleged that the claim was not statute barred, but if it was, the respondent had waived limitation and submitted to the jurisdiction of the court by entering an unconditional appearance. A second Strike Out Application was made by the respondent on the basis that the claim was statute barred. The learned judge below dismissed the appellant's action against the respondent and awarded the respondent its costs. The appellant now appeals that decision.

Held: appeal dismissed. The appellant is to pay the costs of the appeal to the respondent. Such costs are to be taxed if not agreed.

The appellant submits that the respondent, not having raised the issue of limitation in its first Strike Out Application, the principle of res judicata applied. She submits, in essence, that if a party is seeking to raise an issue which could have been raised before it is an abuse of the process of the court and the principle of res judicata applies. The general principle is that a party who raises a particular issue is the one who has the burden of proving that issue. At the second Strike-Out hearing it was the appellant who was asserting that the respondent's reliance on the limitation defence constituted an abuse of the process of the court as the issue was res judicata. The failure to lead any evidence was fatal to the appellant's objection to the learned judge giving consideration to the limitation defence which had been pleaded. The appellant led no evidence of any prejudice, perceived or real, which could satisfy the judge that it would be unfair to consider the limitation defence.

Relative to whether the appellant's claim was statute barred, the appellant submits that the judge erred in finding that the claim was statute barred as knowledge of the identity of the defendant is crucial for the purposes of computation of the limitation period; she says the identity of the proper defendant remained extant. Once limitation is raised as a defence, the burden of proving that the claim is not out of time rests on the plaintiff. The evidence before the judge below revealed that the accident occurred on 6 January 2011 and the Writ of Summons was filed on 6 January 2016. There was no Affidavit placed before the judge which could justify the five-year delay. In the absence of Affidavit evidence explaining the delay it cannot be said that the judge fell into error by accepting the respondent's submission that the claim was statute barred.

Arnold and others v National Westminster Bank plc [1990] 1 All ER 529 considered

Bradford & Binley Building Society v Seddon (Hancock and ors, t/a Hancocks (a firm), third parties) [1999] 1 WLR 1482 considered

Cressey v E Timm & Son Ltd and another; (Practice Note) [2005] 1 WLR 3926 considered

Crocker v British Coal Corporation (1996) 29 BMLR 159 considered

Girten v. Andreu [1998] BHS J. No. 164 considered

Greehalgh v Mallard [1947] 2 ALL ER 255 considered

Henderson v Henderson [1843–60] All ER Rep 378 considered

Henderson v Temple Pier Co. Ltd. [1998] 3 All ER 324 mentioned

Hunter v Chief Constable of the West Midlands Police and others [1982] 1 AC 529 considered

Johnson v Gore Wood & Co. (a firm) [2001] 1 BCLC 313 considered

Kensell v Khoury and another [2020] EWHC 567 (Ch) mentioned

Neilly v Federal Management Systems (Bahamas) Ltd [2011] 2 BHS J. No. 21 mentioned

Ronex Properties Ltd. v. John Laing Construction Ltd. et al [1983] QB 398 considered

Ruttle Plant Hire Ltd v Secretary of State for the Environment, Food and Rural Affairs [2007] EWHC 1773 (TCC) mentioned

Tannu v Moosajee [2003] EWCA Civ 815 mentioned

Tobias Gruber and another v AIG Management France SA and another [2019] EWHC 1676 (Comm) mentioned

Yat Tung Co. Ltd. v Dao Heng Bank Ltd. [1975] A.C 581 considered

APPEARANCES:

Ms. Travette Pyfrom, Counsel for the Appellant

Mrs. Lakeisha Hanna, Counsel for the Respondent

Mr. Justice Evans, JA

Judgment delivered by the Honourable

1 . This is an appeal from the order of Newton, J. made on 12 May 2021 whereby the learned judge acceded to an application by the respondent and struck out the appellant's Writ of Summons on the basis that it was statue barred.

BACKGROUND

2 . The appellant, by Writ of Summons filed on 6 January 2016, commenced an action against the respondent as the first defendant and the Nassau Airport Development Company (hereinafter “NAD”) as the second defendant. The endorsement on the said Writ of Summons was as follows:

“ENDORSEMENT OF CLAIM

• (i) The Plaintiff (sic) claim is against the Defendants and each of them jointly and severally, for damages for pain and suffering sustained as (sic) result of an accident which occurred on the 6th January A.D., 2011 in the execution of her duties which said accident resulted from the negligence of the Defendants and each of them.

• (ii) Damages for personal injuries.

• (iii) Interest on all sums due pursuant to the Civil Procedure (Award of Interest) Act;

• (iv) Such further or other relief, and

• (v) Costs”

3 . On 8 December 2016 the appellant filed her Statement of Claim which set out the allegations against the defendants to the action in the following terms:

• “1. At all relevant times the Plaintiff was employed by the 1 ^st defendant as a Surveillance supervisor at the Lynden Pindling International Airport (LPIA) for a period of 7 years.

• 2. At all material times the 1 ^st Defendant is and was a body corporate established to manage maintain and operate LPIA.

• 3. On the 6th January 2011, in the course of employment, the Plaintiff was reporting for duty in the CCTV monitoring room at the LPIA when due to the slippery substance used to clean the floor, she slipped and fell sustaining injury.

• 4. The Plaintiffs accident was caused by the negligence and or breach of statutory duty of the defendant, its employees or agents acting in the course of their employment.

DETAILED ALLEGATIONS OF NEGLIGENCE AND/OR BREACH OF STATUTORY DUTY

• 1. The Plaintiff will say that the fact and circumstances of the accident speak for themselves and are of themselves evidence of the negligence and breach of statutory duty of the 1 ^st Defendant.

• 2. Alternatively, the 1 ^st Defendant is guilty of negligence or breach of statutory duty by their acts or omissions in:

  • (a) causing or permitting the use of (sic) slippery substance to be used to clean the floor.

  • (b) failing to cause the use of (sic) slippery substance to be properly mopped up and removed.

  • (c) Failing to institute or enforce any or any adequate system of housekeeping or cleaning of the premises whereby the presence of the substance upon the floor might have been detected and the same removed before the Plaintiff's accident.

  • (d) failing to keep the floor free from slippery substances that might cause persons to slip, trip or fall contrary to Section 4 of the Health and Safety at Work Act or at all.

  • (e) Failing to provide the Plaintiff with a safe place of work and exposing her to an unnecessary risk of injury.

• 5 (sic). As a result, the Plaintiff has suffered personal injury and consequential loss.”

4 . The respondent filed a Defence to the Statement of Claim on 24 January 2017 which provided as follows:

• “1. This is a Defence in response to the Statement of Claim in this matter filed on the 8 ^th day of December A.D., 2016 (hereinafter referred to as “the SOC”).

• 2. Paragraphs 1 and 2 of the SOC are admitted.

• 3. The Plaintiff is put to strict proof that a slippery substance, which was used to clean the floor, caused her fall. Paragraph 3 of the SOC is otherwise admitted.

• 4. Paragraph 4 of the SOC is denied, and the First Defendant avers that the Plaintiff fell of her own volition by means not associated or connected with the First Defendant.

• 5. Under the Detailed allegations of negligence and/or breach of statutory duty heading in the SOC, the First Defendant avers that the fact and circumstances...