Pariag v Phillip and Attorney General of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Shah, J. |
| Judgment Date | 17 September 2008 |
| Neutral Citation | TT 2008 HC 234 |
| Docket Number | 1704 of 2004; Civil Appeal No. 127 of 2008 |
| Court | High Court (Trinidad and Tobago) |
| Date | 17 September 2008 |
High Court
Shah, J.
1704 of 2004; Civil Appeal No. 127 of 2008
Mr. S. Roopnarine instructed by Mr. R. Ramoutar for the plaintiff.
Ms. K. Reid instructed by Ms. P. Cross for the defendants.
Limitation of action - Tort — Whether action brought after expiration of the limitation period.
On the 17th of September 2004, Messrs. Roopnarine and Co. filed a claim on behalf of the plaintiff, Kerry Pariag, for damages for assault and battery upon the person of the plaintiff by the first named defendant, Allen Phillip, described as a Licensing Officer, which occurred on the 29th June 2001. This date, the 29th June 2001, was pleaded both in the Writ of Summons and in the Statement of Claim.
The defendants filed a Defence on the 16th November 2004, setting out their version of the incident which they admitted happened on the 29th June 2001.
The matter eventually came on for trial and commenced on the 5th May 2008.
After the plaintiff gave his evidence-in-chief and while he was being cross-examined, the Court noticed that his medical certificate (Dr. S. Ramroop) which was dated Friday 12th January 2001, said in paragraph 1, that the plaintiff suffered injury sustained on the 29th June 2000 – not on the 29th June 2001, as pleaded.
When the plaintiff completed giving his evidence he was questioned by the Court and gave evidence as follows:
“This incident happened on the 29th June 2001. (Witness was shown his medical certificate). This medical certificate is dated the 12th January 2001. This date is before the incident happened. I went to Dr. Ramroop once. He never gave me any prescription for medicine. He only heard what I told him, examined me and gave me the certificate. When I got damaged I went to the hospital. A doctor examined me. He gave me a prescription for pain killers for my back. I did not go to the hospital until the following year. This was around January or February. It was almost the same procedure. I never went back to the hospital. I went to a private doctor, Dr. Mohammed, at the bottom of Rushworth Street. I can't remember the exact time I went, after I saw Dr. Ramroop.
I was never a mechanic. I never told anybody I was a mechanic. If anybody said I was a mechanic that would not be the truth. When I worked as a conductor I worked for $35.00 per day. I used to work as a handyman around that time for $80.00 per day. Now I am working for plenty more than that.”
In his particulars of special damage, the plaintiff claims loss of earnings as a mechanic. In further answer to Mr. Roopnarine he said he “worked for Ms. Roopnarine in Gulf View.” If the plaintiff never told anybody he was a mechanic, whose deed was it to inflate the claim for damages by pleading he was a mechanic?
At this stage, for the first time, an application is made to amend the Writ and Statement of Claim to read “2000” instead of “2001”.
Ms. Reid, for the defendants, objected but the Court granted the amendment. Ms. Reid sought to make further submissions but the Court, in the interest of saving precious judicial time and loss of time for any witness, decided to proceed to take the plaintiff's evidence. It was obvious she could make her submissions later. The plaintiff's case was concluded.
On the 14th May 2008, when the matter resumed, Ms. Reid filed a Notice and submissions. The Notice asked that “the plaintiff's action be struck out as being barred by section 3 of the Limitation of Certain Actions Act, No. 36 of 1997 (Chap. 7:09) and as such, as being frivolous, vexatious and an abuse of the process of the Honourable Court…” The Court also granted Ms. Reid leave to amend the Defence to plead the Limitation Act.
Mr. Roopnarine objected to the amendment, and stated as follows,
“The application to amend is made late on the day. The leave to amend is not automatic because the plaintiff has amended. The Court has invited Attorney at Law to amend. That is unfair to the plaintiff. The Court sits as an umpire. The Court should not descend into the arena. The Court should have left the application at that.
The defendant would have had instructions from Allen Phillip. The defendant must answer the case of the plaintiff. The date was never crucial. The defendants would have had the correct date from day one. The amendment carries great prejudice to the plaintiff. It is only when the Defence is pleaded that it is available. If the amendment is granted, the plaintiff would suffer great prejudice. Why is it that the defendant's instructions did not have the correct date long before? The defendants have waived any entitlement to plead the defence of limitation.
If the amendment is granted this would necessitate a further adjournment to amend the reply.
The Defence had always agreed on the date. They had not admitted any time previously.”
I held these submissions to be untenable. Miss Reid in her submissions averted inter alia,
“The plaintiff filed a witness statement on 15th April 2008 stating for the first time that the cause of action accrued on 29th June 2000. However, the plaintiff never served its witness statements on the defendants until 10 minutes after the matter was called on the trial date (5th May 2008). The plaintiff never filed an application to amend his Statement of Case but sought to make an oral application to do so only after the trial judge pointed out that his medical report was dated some 6 months before the incident was alleged to have occurred. Thereafter, the plaintiff gave evidence that the incident in fact occurred on 29th June 2000. Further, the plaintiff never filed any list of documents as was ordered by the Court on to February 2008, so that the defendants could not have been alerted to the possibility that the date of the alleged incident was incorrect. He chose to annex his medical report to his witness statement, which was never served on the defendants…”
Is the plaintiff's action to be struck out?
Section 3 of the Limitation of Certain Actions Act, No. 36 of 1997 (Chap. 7:09) provides as follows:
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“3.(1) The following actions shall not be brought after the expiry of four years from the date on which the cause of action accrued, that is to say:
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(a) Actions founded in contract (other than a contract made by deed) on quasi-contract or in tort;
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(b) ……”
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This Act repealed the Limitation of Personal Actions Ordinance Chapter 5 No. 6, which provides as follows in s. 5: “.., all actions for damage or injury to persons or property, and all personal and mixed actions whatsoever, shall and may be commenced within four years next after the cause of such actions and not after.”
It is clear from both sections, therefore, that those provisions were intended to be imperative, so that once a cause of action accrued more than four years prior to filing the action, that action was not to be brought. The plaintiff's action, having accrued on 29th June 2000 was clearly filed out of time and should not have been brought.
The Orders and Rules of the Supreme Court of Trinidad and Tobago, 1975 places only one procedural requirement in O. 18 r. 8 (1), that the limitation point must be specifically pleaded in the Defence. This procedural requirement, however, must fall secondary to the Court's power under O. 18 r. 19 (1) which provides as follows:
“The Court may at any stage of the proceedings order to be struck out…any...
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