Charmaine Bernard (Legal Representative of the Estate of Reagan Nicky Bernard) v Ramesh Seebalack
| Jurisdiction | UK Non-devolved |
| Judge | SIR JOHN DYSON SCJ |
| Judgment Date | 21 July 2010 |
| Neutral Citation | [2010] UKPC 15 |
| Date | 21 July 2010 |
| Docket Number | Appeal No 0033 of 2009 |
| Court | Privy Council |
[2010] UKPC 15
Lord Phillips
Lord Brown
Lord Kerr
Sir John Dyson SCJ
Sir Stephen Sedley
Privy Council
Appellant
Sir Fenton Ramsahoye QC
David di Mambro
(Instructed by Bankside Law)
Respondent
Jonathan Crystal
Amina Hasnain
(Instructed by Sebastians Solicitors)
This is an appeal from the decision of the Court of Appeal of Trinidad and Tobago (Warner, Kangaloo and John JJA) reversing the decision of Bereaux J to give the claimant permission to re-amend her statement of case. The appeal raises questions as to the proper interpretation of the Civil Proceedings Rules ("CPR") of Trinidad and Tobago.
Reagan Nicky Bernard ("the deceased") was killed when he was struck by a truck at Barrackpore on the island of Trinidad on 25 October 2002. The claimant is his legal personal representative. By a claim form and statement of case filed on 23 February 2006, she commenced proceedings against Khemchan Ramcharan (the truck driver), Ramesh Seebalack (the truck owner) and Capital Insurance Company Limited (the insurer of the truck). She alleged that the deceased's death was caused by the negligence of the driver and claimed damages against the driver and the owner and a declaration that the insurer was liable to indemnify the driver and owner. The claim form and statement of case gave particulars of the driver's negligence and alleged that by reason of this negligence the deceased had suffered injuries as a result of which he died. Neither the claim form nor the statement of case gave any details of the claim for damages.
A defence was filed on behalf of the owner on 8 May 2006 and a separate defence on behalf of the insurer on 1 December 2006. At the first case management conference which was held on 30 June 2006, the claimant was given permission to amend the claim form and statement of case to allege that the driver was at all material times the servant and/or agent of the owner. Further case management conferences were held on 21 April and 26 May 2008. The pre-trial review was held on 11 November 2008.
Meanwhile, on 17 July 2008 the claimant's list of documents was filed. It included a receipt for funeral expenses from Dass Funeral Home and pay sheets relating to the deceased's wages. The claimant filed a witness statement on 17 July 2008. She stated that the funeral had been conducted by Dass Funeral Home and that the cost was $8,625.00. She attached a copy of the receipt to the statement. She also gave details of the deceased's employment and his monthly income between 19 May 2000 and 25 October 2002 and attached copies of his pay sheets for that period. On 15 August, she filed a bundle of documents which included the receipt for the funeral expenses and the pay sheets for the period between 19 May 2000 and 25 October 2002.
On 27 November 2008, she applied by notice supported by affidavit for permission to re-amend the statement of case to include particulars of special and general damages. The owner of the truck objected relying on CPR Part 20.1(3).
It is necessary at this stage to refer to the provisions of the Trinidad and Tobago Civil Proceedings Rules ("the CPR") which are material to this appeal.
"1.1(1) The overriding objective of these Rules is to enable the court to deal with cases justly.
(2) Dealing justly with the case includes –
(a) ensuring, so far as is practicable, that the parties are on an equal footing;
(b) saving expense;
(c) dealing with cases in ways which are proportionate to –
(i) the amount of money involved;
(ii) the importance of the case;
(iii) the complexity of the issues; and
(iv) the financial position of each party;
(d) ensuring that it is dealt with expeditiously; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.
1.2 The court must seek to give effect to the overriding objective when it –
(1) exercises any discretion given to it by the Rules; or
(2) interprets the meaning of any rule.
…
8.6 (1) The claimant must include on the claim form or in his statement of case a short statement of all the facts on which he relies.
…
8.10(1) This rule sets out additional requirements with which a claimant in a claim for personal injuries must comply.
…
(4) The claimant must include in, or attach to, his claim form or statement of case a schedule of any special damages claimed.
…
20.1 (1) A statement of case may be changed at any time prior to a case management conference without the court's permission.
(2) The court may give permission to change a statement of case at a case management conference.
(3) The court may not give permission to change a statement of case after the first case management conference unless the party wishing to change a statement of case can satisfy the court that the change is necessary because of some change in circumstances which became known after that case management conference.
(4) A statement of case may not be changed without permission under this rule if the change is one to which rule 19.2 (change of parties) applies.
(5) Any amended statement of case must be filed promptly at the court office.
(6) Where a statement of case is amended, the amendments must be verified by a certificate of truth unless the court orders otherwise."
Paragraph 6 of the proposed re-amended statement of case was in these terms:
"By reason and (sic) the matters aforesaid the deceased died as a result of injuries sustained from the collision.
Particulars of Special Damages
1. Funeral expenses - $8,625.00 (see Annex 1).
2. Clothing for the deceased for the funeral - $1,200.00
Particulars of General Damages on behalf of the Estate of the deceased:
1. The deceased was born on the 12 th July, 1982 and died on the 25 October, 2002 at the age of 20 yrs;
2. The deceased at the time of his death was a part owner of Rick's Lumbar Yard;
3. On average he earned $1,134.89 per wk;
4. At the date of his death he was unmarried with no children, lived at home with his parents and was in excellent health;
5. Statement of the deceased's average monthly expenditure:
? Transport to and from school $300
? Spending money for school - $400
? Helped his brother repair his maxi taxi - $300
? Helped contribute to family's food purchase - $500
? Clothing - $300
? Liming - $500
? Cell phone - $200
6. Calculations:
• Multiplier - 16
• Multiplicand - $2,039.56 × 12 = $24,474.72
• Total - $24,474.72 × 16 = $391,595.52"
In her affidavit in support of the application for permission to amend the claimant stated that, when the statement of case was amended on 3 July 2006, her then attorney-at-law did not have copies of any bills or receipts in support of her claim. The original receipt had been misplaced or destroyed and she could not quantify the exact sum that had been expended on her brother's funeral. In about July 2008, she had obtained a duplicate copy of the original receipt for the funeral expenses. She also said that after the death of her brother, she and the family were emotionally distraught for several years. In consequence, she was unable to provide the necessary documents relating to her brother's earnings until about July 2008. She said that she believed that "for the proper determination of the question of just compensation and/or quantum in this matter it is necessary for me to re-amend my Statement of Case to include particulars of special and general damages and I hereby respectfully make an application for leave to re-amend same."
Bereaux J acceded to the application. He said that the word " change" in Part 20.1(3) should be construed in accordance with the overriding objective of dealing with cases justly. He said:
"11. I note as well that Part 20, is unlike the English CPR which speaks of ' amend' (as opposed to ' change'). In my judgment, that difference is significant. Use of the word 'amend' in Part 20 rule (3) would have permitted the inflexible interpretation sought to be put on the rule by Mr Persad.
' Change' on the other hand connotes an alteration of the tenor and character of the statement of case or defence. As such an amendment which clarifies but keeps intact the basic character of the statement of case or defence does not ' change' it. Indeed it permits both claimant and defendant to advance the matter more quickly to trial by clarifying the issues sought.
12. The re-amendment sought by the claimant in no way changed her case or the substance of the statement of case. It simply provided particulars of special damages and general damages…."
A further point made by the judge was that this approach was consistent with section 20 of the Supreme Court of Judicature Act Chap 4.01 ("the SCJ Act") which provides:
"The High Court and the Court of Appeal respectively in the exercise of the jurisdiction vested in them by this Act and the Constitution shall in every cause or matter pending before the Court grant, either absolutely or on such terms and conditions as to the Court seems just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by him in the cause or matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided."
The judge therefore concluded that the proposed amendment did not come within the scope of Part 20.1(3). He said at para 14:
"I do not accept that this construction of Part 20 of the CPR will in any way undermine the intention behind the rules...
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