Salmon (Peter) v Master Blend Feeds Ltd

• Jurisdiction: Jamaica
• Judge: SYKES J.
• Judgment Date: 26 October 2007
• Judgment citation (vLex): [2007] 10 JJC 2601
• Court: Supreme Court (Jamaica)
• Date: 26 October 2007

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

SUIT NO. C.L. 1991/S 163

BETWEEN

PETER SALMON

CLAIMANT

AND

MASTER BLEND FEEDS LIMITED

DEFENDANT

IN CHAMBERS

Marion Rose Green instructed by Marion Rose Green and Company for the claimant

Yualande Christopher instructed by Grant Stewart Phillips and Company for the defendant

CIVIL PROCEDURE - Particulars of claim - Application for amendment - Whether statute barred

1 APPLICATION TO AMEND PARTICULARS OF CLAIM, RULES 19.4, 20.4 AND 20.6 OF THE CIVIL PROCEDURE RULES, WHETHER AMENDMENT STATUTE BARRED,

SYKES J

2 1. The issue on this application is whether the amendments sought by the claimant are statute barred. I shall give the history of the matter.

3 The history

4 2. Mr. Peter Salmon, an employee of Master Blend Feeds Limited ("Master Blend"), alleges that on June 2, 1986 he injured his back while working at Master Blend's factory because it failed to provide a safe system of work. He also alleges that Master Blend failed to meet its obligations under the Factories Act.

5 3. By writ of summons filed June 7, 1991, Mr. Salmon, launched his claim for compensation. His statement of claim, filed on the same date, has these particulars of injuries:

• a. muscle spasm in back;

• b. narrowing of the disc space in vertebral column;

• c. intervertebral disc prolapse;

• d. severe and continuous pain in lower back;

• e. inability to have sexual intercourse;

6 4. Mr. Salmon filed the claim within the six year limitation period. The claim, since its commencement, has had a long, tortuous and agonising journey which, mercifully, is nearing the end. The claim was filed under the old rules procedural rules (the Civil Procedure Code). Under the new rules, the Civil Procedure Rules of 2002 ("CPR"), the court is empowered to make orders to deal with claims justly and expeditiously. On February 21, 2005, a judge of this court, at case management, ordered:

• 1. Unless the claimant files all witness statements with all documents, receipts and reports including but not limited to medical reports (being relied on in support of his claim) in a sealed envelop and notify the defendant of this fact on or before the 29 ^th July 2005 the claimant's claim is struck out.

• 2. If the claimant fully complies with paragraph 1 of this order then the defendant should file all witness statements with all documents, receipts and reports being relied on in support of its defence in a sealed envelope and notify the claimant's attorney on record of this fact on or before 28 ^th October 2005.

7 5. Other orders were made but they are not relevant for present purposes. The claimant met the July 29, 2005, deadline. Thereafter time began for the defendant to comply with paragraph 2 of the order. Master Blend failed to comply with paragraph 2 of the order and its defence was struck out. Mr. Salmon applied for judgment on November 25, 2005. Judgment was entered and the matter set for assessment of damages. This assessment is to take place on November 2, 2007.

8 The amendments

9 6. Mr. Salmon applies, by notice of application for court orders dated October 31, 2006, for amendments to his particulars of claim. One amendment is claiming interest on the damages to be assessed. The other wishes to add more paragraphs to his particulars of injuries. These are:

• f. sudden sharp pains across the lower back;

• g. marked tenderness on palpation of the lower erector spinae muscles and along the midline of the lumbar spine;

• h. intermittent lower back pains which are aggravated by sitting for greater than one and a half hours, standing for greater than one and a half hours;

• i. pains across the lower back when lying in bed;

• j. anterior body osteophytes at the L5 vertebral body;

• k. chronic mechanical lower back pains

• l. PROGNOSIS

  The claimant will be plagued by permanent intermittent lower back pains which will be aggravated by activities of daily living such as prolonged sitting, standing and bending. Attempts at lifting heavy loads will also exacerbate the lower back pains.

10 7. Mr. Salmon desires to rely on two medical reports that were not among those filed on July 29, 2005. These are the reports of Dr. Karen Brighten and Dr. R. C. Rose.

11 The opposition

12 8. Miss Christopher fiercely opposes these amendments. Her position is simply, direct and clear. Her first submission is that the amendments are statute barred. Her second submission is that the amendments being sought are not permitted by the CPR. Her third submission is that under rule 8.7 (3) (a) of the CPR a claimant seeking interest "must say so in the claim form", to use the words of the rule. I shall expand on each submission as I assess them.

13 9. For her first submission, Miss Christopher relies on two cases: Judith Godmar v Ciboney Group Limited S.C.C.A. 144 of 2001 (delivered July 3, 2003) and Gloria Moo Young v Geoffrey Chong S.C.C.A. No 117/99 (delivered March 23, 2000). Both cases were decided under the Civil Procedure Code. I shall address the Godmar case first. Miss Christopher is saying that the law as it relates to amendments after the limitation period has expired has not changed and to that extent Godmar is still good authority.

14 10. In Godmar, the claimant applied to amend her statement of claim by adding further sums as special damages. She also wished to include a new claim for post traumatic stress disorder. Specifically, Miss Godmar alleged that the post traumatic stress disorder was an additional injury attributable to the defendant's negligence. The court allowed the additional special damages but disallowed the claim for post traumatic stress disorder. The court held that the additional sums for special damages were merely the cost of further treatment for injuries pleaded during the limitation period whereas the claim for post traumatic stress disorder was a claim for a new injury that was being made after the limitation period had passed.

15 11. I do not believe that Miss Christopher's submissions have taken sufficient notice of the distinction between disclosing more about an injury pleaded during the limitation period and making a claim for an injury which was not pleaded during the...