Angela Juanita Springer v All Seasons Resort-Europa
| Jurisdiction | Barbados |
| Judge | Deborah Holder, BSS |
| Judgment Date | 26 August 2021 |
| Neutral Citation | BB 2021 HC 051 |
| Docket Number | Civil Suit No. CV1174 of 2015 |
| Court | High Court (Barbados) |
Master Deborah Holder, BSS, Master of the High Court
Civil Suit No. CV1174 of 2015
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
Mr. Dennis Headley, Attorney-at-Law for the Claimant/Applicant
Ms. Nikita Vaughn, Attorney-at-Law for the Defendant/Respondent
This is a claim for personal injuries. The Claimant/Applicant's (the Applicant) application to strike out the Defendant/Respondent's (the Respondent) defence pursuant to Rule 26.3 and for summary judgment pursuant to Rule 15.2(a)(ii) and (b) of the Supreme Court ( Civil Procedure) Rules 2008 (CPR), was filed on 27 th October, 2017 along with an Affidavit in Support. A supplemental Affidavit in Support was filed on 22 nd May, 2018.
According to the Applicant she was employed by the Respondent as a Room Attendant at premises located at Sunset Crest, St. James. Her duties included cleaning rooms occupied by guests and the preparation of rooms for occupation by guests. To carry out her duties she had to traverse a pathway which linked two sections of the resort. The pathway was open to the elements. On 14 th August, 2012 she slipped and fell and injured her wrist.
The Applicant alleged negligence. The particulars included failure to provide a safe area of work, failure to adequately maintain the pathway to prevent the Applicant from slipping, failure to provide a safe area of work for the Applicant to traverse to carry out her duties, failure to ensure that the area was a non slippery surface, breach of statutory duty of care pursuant to section 7 of the Occupier's Liability Act Chapter 209 and breach of statutory duty of care pursuant to the Safety and Health at Work Act Chapter 356.
On 28 th March, 2017 the Respondent filed its defence. It admitted that the Applicant was its employee. She was a Room Attendant with duties as described and that she had to traverse the pathway which was open to the elements. It did not admit that she slipped and fell and sustained injury, loss and damage.
The Defence is a follows:
“The Defendant, ALL SEASONS RESORT-EUROPA disputes the Claim on the following grounds:
1. Paragraphs 1, 2, and 3 of the Claimant's Statement of Claim are admitted.
2. No admission is made to paragraph 4 of the Claimant's Statement of Claim.
3. As to paragraph 5 of the Claimant's Statement of Claim the Defendant states that if which is not admitted, the Claimant did suffer a fall as alleged, the Defendant denies that it was caused by the negligence, breach of statutory duty, or other fault of the Defendant as alleged or at all.
4. No admission is made as to the alleged or any injuries suffered by the Claimant were as a result of any negligence, breach of statutory duty, or other fault of the Defendant.
5. As to the whole of the Claimant's Statement of Claim the Defendant states that if the which is not admitted, the Claimant did suffer any damages as a result of falling on the premises of the Defendant, that such fall was occasioned by the Claimant's own negligence and/or failing to exercise due caution while traversing the premises.
6. Save as hereinbefore specifically admitted or not admitted the Defendant denies each and every allegation herein contained as if the same had been specifically set out and traversed seriatim.”
The Claim Form and Statement of Claim were filed on 14 th August, 2015. The report of Dr. Lennbert Brathwaite, MBBS (UWI), Primary Care Physician was attached. The Respondent was served on 3 rd September, 2015 according to the Affidavit of Service filed on 1 st October, 2015. An Acknowledgement of Service was filed on 5 th January, 2017 and a Defence was filed on 28 th March, 2017. At the first case management conference on 3 July, 2017 Mr. Headley sought the court's permission to make an oral application to strike out the Respondent's Defence. The court instructed Counsel to file and serve his application and adjourned the matter. At the next conference instructions were given for the parties to file and serve submissions. Without application or leave of the court the Respondent, on 27 th October, 2017 filed and served another Defence and a counterclaim. Counsel for the Applicant voiced objection to this. This document was not the basis of his application.
The Applicant's Affidavit in Support was filed 27 th October, 2017. She deposed that she was aged 58 at the time. She was asked to assist in the house keeping department. She left the said department to investigate a room which guests had refused. As she was walking on the footpath she slipped and fell. She immediately told two of her colleagues who were just ahead of her and immediately thereafter she reported it to the front desk officer. Her colleagues assisted her with an ice pack and a towel to wrap around her wrist. Mr. Albert Wilson, the person in charge of the premises was contacted but did not appear to know who was the company's doctor. After two hours of excruciating pain without further assistance, Mr. Wilson agreed that she should go to a private doctor. The doctor referred her to Sandy Crest for x-rays. Mr. Wilson instructed that she should bring the doctor's bills to him. She did so, along with her NIS form.
On her return to the workplace she spoke to the Manager, Ms. Kessurran, who refused to pay the medical bills. She told the Applicant that her policy was to pay for the first doctor's visit and no other medical bills. The Manager said that she had paid for the x-rays.
The Applicant returned to work but she continued to experience pain and could not continue to work. Her last day at work was 19 th November, 2012. She also sought medical attention from other doctors. Throughout these many years excruciating pain persisted and she was forced to rely on her children for financial assistance.
The Applicant also deposed that she was never advised of a dress code nor was she ever accused of violating a dress code. On the day of the incident she wore an appropriate dress and footwear namely an enclosed sandal-shoe which she had worn to work previously.
A Supplemental Affidavit filed 22 nd May, 2018 attached Exhibit AJS1, a quotation from Dr. Jerry A.W. Thome FRCS for remedial surgery which the Applicant requires on her right wrist.
12] The Respondent did not file an Affidavit in Response.
Mr. Headley stated that summary judgment applications were not meant to dispose of the need for trial where there were issues to be considered at trial but to dispose of cases where there was no real prospect of success. His position was that the Respondent had no real prospect of successfully defending the claim and there was no other reason why this case should proceed to trial. He characterized the defence as a non defence and he submitted that the Respondent was in breach of Rule 10.5 of the CPR which stipulated that the Respondent had a duty to set out its case. There was non-compliance with all the requirements provided for in the rules. The Respondent did not set out the reasons for denying or resisting the allegations as well as a different version of events.
He queried whether this was all the Respondent could come up with, two years after the Statement of Claim was filed. He was of the opinion that the only case before the court was outlined in the Applicant's statement of case and therefore there was no issue for the court to consider. He pointed out that under Rule 10.5 the words “must” and “all” were used. The Respondent disputed negligence, breach of statutory duty and still provided no other version of events. He also emphasized that under the rules the Respondent was required to provide a short statement of all the facts on which it relied to dispute the claim. It provided none. The requirement to identify or annex to the Defence any document which it considered necessary to its defence was also not complied with. The omissions lead Counsel to the conclusion that the Respondent had no real prospect of successfully defending the claim and there were no other issues to be determined by the court.
In his opinion such a defence was not only an abuse of process but it would obstruct the just disposal of the proceedings as it disclosed no reasonable ground for defending the claim.
He argued that summary judgment could be used to prevent weak cases from proceeding. This was supplemental to the power to strike out and it allowed the court to summarily dispose of cases on points of law.
He contended that the “non-defence” amounted to an admission of the Applicant's claim and to prolong this matter would be a “questionable utilization of the court's resources and serve[d] no useful purpose”. He concluded that having failed to provide a defence that met the requirements of Rule 10 and the failure of the Respondent to dispel obligations under Rules 26.3 and 15(2)(a)(ii) and (b) of the CPR, summary judgment in favour of the Applicant should be granted.
Cases cited were Three Rivers District Council v. Bank of England (No.3) [2001] UKHL 16 [2003] AC 1; Swain v. Hillman [2001] 1 All ER 91 on real prospect of success and E.D & F Man Liquid Products v. Patel (The Times, 18 th April 2003) on burden of proof.
Ms. Vaughn submitted that the grant or refusal of summary judgment under Rule 15 was a judicial discretion. The court is required, by virtue of Rule 1.2, to give effect to the overriding objective when interpreting the rules or exercising any powers under the rules. Consequently Rules 15.2 and 26.3 must be interpreted with this in mind in order to deal with cases justly.
She further submitted that the test for summary...
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