Leonard v John

• Jurisdiction: Grenada
• Judge: Alleyne, J.A.
• Judgment Date: 21 June 2004
• Neutral Citation: GD 2004 CA 11
• Docket Number: Civil Appeal No. 4 of 2003
• Court: Court of Appeal (Grenada)
• Date: 21 June 2004

Court of Appeal

Saunders, J.A.; Alleyne, J.A.; Gordon, J.A.

Civil Appeal No. 4 of 2003

Leonard

and

John

Appearances:

Mr. Gregory Delzin and Mrs. Michelle Emmanuel-Steele for the appellant.

Mr. Archelaus Joseph for the respondent

Negligence - Running down action — Admission of liability.

Alleyne, J.A.

1 This is an appeal against a judgment of the High Court in an action for negligence in driving a motor vehicle, a running down action.

2 Edyth Leonard, the appellant, a 70 year old woman at the time of the accident, was walking across a pedestrian crossing when a collision occurred between her and a car driven by Ernest John, the respondent, who was about the same age as the appellant. She claims to have suffered extensive injuries. After a hearing, the learned trial judge dismissed the claim on the ground that on the totality of the evidence the claimant had failed to prove her case on a balance of probabilities.

THE PLEADINGS; ADMISSION OF LIABILITY

3 At paragraph 6 of her statement of claim, the appellant pleaded that by letter dated 11th September 2000, the insurers of the defendant/respondent's vehicle through its solicitors informed the solicitors for the plaintiff that they were not contesting liability. The defendant/respondent, in his defence, did not address this allegation specifically or at all. Learned counsel for the appellant submitted that the respondent's failure to deny the allegation of an admission of Liability amounts to an admission, and the respondent was thereby estopped from contesting liability at trial. The relevant provisions of the Civil Procedure Rules, 2000 (CPR) can be found at Part 10.5(1), (3), (4), (5) and (6) and Part 10.7, which are reproduced hereunder.

DEFENDANT'S DUTY TO SET OUT CASE

10.5

(1) The defence must set out all the facts on which the defendant relies to dispute the claim. (3) In the defence the defendant must say which (if any) allegations in the claim form or statement of claim:– (a) are admitted; (b) are denied; (c) are neither admitted nor denied, because the defendant does not know whether they are true; and (d) the defendant wishes the claimant to prove. (4) If the defendant denies any of the allegations in the claim form or statement of claim:– (a) the defendant must state the reasons for doing so; and (b) if the defendant intends to prove a different version of events from that given by the claimant, the defendant's own version must be set out in the defence. (5) If in relation to any allegation in the claim form or statement of claim, the defendant does not (a) admit it; or (b) deny it and put forward a different version of events; the defendant must state the reasons for resisting the allegation. (6) The defendant must identify in or annex to the defence any document which is considered to be necessary to the defence.

CONSEQUENCES OF NOT SETTING OUT DEFENCE

10.7

(1) The defendant may not rely on any allegation or factual argument which is not set out in the defence, but which could have been set out there, unless the Court gives permission. (2) The Court may give the defendant permission at the case management conference. (3) The Court may not give the defendant permission after the case management conference unless the defendant can satisfy the Court that there has been a significant change in circumstances which became known only after the date of the case management conference.

4 I am of the view that the learned trial judge was wrong in failing to uphold the appellant's contention that the issue to be tried was the issue of general damages only, the issues of liability and of special damages having been deemed to have been admitted by the respondent's failure to traverse the allegation in that regard in the appellant's statement of case. It is perhaps significant that the appellant filed skeleton arguments in preparation for trial on the sole issue of general damages.

THE EVIDENCE

5 The essential facts of the case, as found by the learned trial judge, are that on a sunny and clear day the appellant walked on the left side of a road until she reached a pedestrian crossing. She looked both ways for oncoming traffic. When she was certain that there was none in the vicinity she stepped onto the pedestrian crossing and walked slowly towards the other side of the road. The respondent drove his car from a lay by about 50 feet away from the pedestrian crossing, towards the crossing, where a collision took place involving the appellant and the respondent's car.

6 It is the uncontroverted...