In the Eastern Caribbean Supreme Court in the High Court of Justice Commonwealth of Dominica [Civil] Suit No. Domhcv2010/0139 Be

IN THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE COMMONWEALTH OF DOMINICA [CIVIL] SUIT NO. DOMHCV2010/0139 BETWEEN: EMMANUEL ETTIENNE the Widower and Dependant of Carmen Lucia Ettienne, Deceased Claimant and GREGORY MASSICOT Defendant Appearances: Mr. Alick Lawrence, S.C. and with him Ms. Rose-Anne Charles of Alick Lawrence Chambers for the Claimant Mr. Stephen K. Isidore and Ms. Ernette C.J. Kangal of Stephen Isidore & Associates for the Defendant --------------------------------------------------- 2014: March 19, 20 April 11th July 11th ------------------------------------------------- JUDGMENT [1] THOMAS, J.(Ag): On 26th July 2010, the court was presented with a Claim Form filed by Emmanuel Ettienne, the widower and dependant of Carmen Lucia Ettienne, who died on 20th August 2007. [2] The claimant, Emmanuel Ettienne, claims against the defendant, Gregory Massicot, for damages resulting from the death of Carmen Lucia Ettienne, deceased, the wife of the claimant. [3] The claimant claims: (a) Special damages in the sum of $36,425.00 1 (b) Bereavement in the sum of $5,000.00 (c) Damages for dependants under the Fatal Accidents Act Chapter 7:59 (d) Interest (e) Prescribed costs (f) Further and other relief as the court deems fit. Pleadings [4] The claimant’s case as pleaded in his Amended Statement of Claim is that at about 8:30 a.m. on 20th August 2007, the deceased was a passenger on the motor vehicle bearing registration PL388 driven by the defendant, Gregory Massicot of Vieille Case public road between Ambas and the Balthazar Bridge. [5] The further averment is that the defendant whilst driving on the wet road lost control of the said vehicle which plunged into a precipice. It is also contended that Carmen Lucia Ettienne died instantaneously as a result of ‘traumatic shock’ due to multiple and severe injuries in main organs and tissues. [6] According to the claimant, it is believed that her death was caused as a result of the negligence of the defendant leading to the bereavement and the defendant’s loss and damage. [7] The claimant pleads particulars of damages, particulars of loss of the Estate, particulars pursuant to the Fatal Accidents Act1 for the benefit of persons, and there is also a schedule of the special damages claimed. Defence [8] In his defence, the defendant admits that the claimant is the widower of the deceased, and also that the deceased was a housewife. Instead, the defendant says that the deceased was never self-employed as a farmer and that the said deceased was a housewife up and until her death on August 20th, 2007. 1 Chap. 7:59 Laws of Dominica 2 [9] But while the defendant admits the date, time and location o the death, as pleaded by the claimant, he does not admit of the cause and circumstances of the death. Instead, the defendant avers that it was the condition of the road resulting from a landslide which had taken place as a result of a recent storm. And it is his contention that he tried to control the vehicle which had swayed across the road, but that after a while he lost control of the vehicle and the bus went slowly off the road and down the precipice backwards. [10] The defendant denies the particulars of negligence pleaded by the claimant by saying that on the day in question he “never” drove at excessive speed, he “tried relentlessly to prevent the vehicle from continuously swaying but his efforts were unsuccessful due to the extreme mud that was on the wet road”, and the vehicle was steered and maneuvered so as to avoid the vehicle from going off the road and into the precipice backwards. [11] In further answer to the particulars of negligence the defendant says that his proper driving care and skill could not have prevented the vehicle from going down the precipice. [12] The defendant’s final answer to the allegations of negligence is that: “The accident was unavoidable and a diligent driver exercising the due care and skill would not have been able to avoid the accident.”2 Reply [13] The claimant joins issue with the defendant on his defence and advances the following contentions: the deceased was not a self-employed farmer; the defendant drove at an excessive speed on the wet road; does not admit or deny that the defendant went over to Penville as he avers not knowing if it is true; it was not raining heavily on the morning in question, there was only a slight drizzle; and the debris from the landslide was removed from the road and the road surface was left with some mud, since it was not washed away. 2 Defence filed 12 July 2010 3 Evidence Emmanuel Ettienne [14] In his witness statement speaks to his marriage to the accused and the 3 children of the marriage. Ettienne also details the work of the deceased as being a housewife- cooking, washing, cleaning and looking after the children. It is also the claimant’s evidence that she assisted him on the farms working “about three days per week”. [15] With respect to the 20th August 2007, the claimant gives the following details of his activities and those of his wife. He had to transport some people to Calibishie before going to the farm, his wife woke up at about 4:00 a.m. and prepared his breakfast and lunch to enable him to take two meals; his wife was also going to Portsmouth on the said day; the claimant left home at about 6:00 a.m. at which time his wife, son and daughter were in good health. [16] In further evidence the claimant says he received a phone call while he was still in Calibishie and that as a result of what he was told he went towards Penville; when he reached the Vieille Case Health Center he saw a lot of people there and he learnt something; and that as a result he went into the health center and saw his wife lying on a bench, thought she was unconscious, but when he held her hand he realized that she was dead. [17] According to Ettienne his wife’s body was taken from Vieille Case to the Portsmouth Hospital and then to Roseau, and that he subsequently witnessed the post mortem being performed. He says further that he saw his son while at the Roseau Hospital with a bandage on his forehead and a fresh bandage on his left arm. [18] Also detailed in his evidence are the cost of funeral arrangements and cost of help he had to hire to do what his wife did at home and on the farms. [19] Under cross-examination Emmanuel Ettienne maintained what he said in his evidence in chief concerning the work done by his wife. In addition, the witness gave evidence of the abode of the children , and that his wife also looked after the grandchildren of which he had two. 4 [20] The witness went further in his evidence to say that he usually harvested bananas once a week and twice per week when he has plenty and that his wife would be with him for the day. And even further that when his wife is not harvesting with him she brings breakfast, weeds the bananas after, and carries fertilizer and other inputs. [21] The witness was cross-examined on his farms, he said he had four and gave the locations and the distances between them. The farms the witness named are: Fort Ponicant, Cap Carib, Galba and Lower Penville. [22] When cross examined on paragraph 11 of his witness statement, the witness testified that he hired Iris George to do what his wife did and paid her $40.00 per day from which he did not deduct Social Security contributions. [23] The witness was next cross examined about the defendant and the proceedings in the Magistrate’s Court which he faced. In this regard, Ettienne said he was aware of the Magistrate’s ruling. Ettienne also denied that he told the defendant that he must pay. Rudolph Benjamin [24] Rudolph Benjamin in his witness statement revealed that he lived in Penville and that he did farming as well as construction. His further evidence is that he knew the claimant and the defendant. As far as Ettienne is concerned, Benjamin said that he was a farmer and they both worked on each others’ farms regularly. [25] In relation to the claimant’s wife, Benjamin’s evidence is that he knew her and that she assisted the claimant on his farms and met her there on many occasions doing work such as weeding, washing and packing bananas and that he also knew she took produce to Portsmouth marked for sale each Saturday. 5 [26] Finally, at paragraph 7 of his witness statement, Benjamin gives evidence that since the death of his wife, the claimant now goes to Portsmouth to sell his produce; and since the death too, he has seen the claimant employ Irving George to do the weeding. [27] Under cross examination Benjamin testified that he met the claimant’s wife on the farms and that she carried the boxes and then she took the produce to the market. Eslie Laville [28] Eslie Laville’s evidence in her witness statement that she is the sister of the deceased. It is also her evidence that: ‘Gregory Massicot (the defendant) operated a passenger bus service; Emmanuel Ettienne to be a farmer for many years; and assisted the claimant and her sister to harvest and pack bananas. [29] The witness also gave evidence of her knowledge of the events of 20th August 2007, when her sister died as a result of an accident.

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