Potter v Derrick

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: Gordan, J.A.
• Judgment Date: 20 February 1970
• Neutral Citation: AG 1970 CA 33
• Docket Number: Civil Appeal No. 3 of 1968
• Date: 20 February 1970

Court of Appeal

Lewis, C.J.; Gordon, J.A.; St. Bernard, J.A.

Civil Appeal No. 3 of 1968

Potter

and

Derrick

Practice and procedure - Claim for damages for damage to car caused by the negligence of the appellant — Trial judge had amended the respondent's pleadings by deleting the word “plaintiff” and substituting therefore the words “plaintiff's driver” and awarded damages to the respondent on her counterclaim — Court of Appeal held that the trial judge should have declined to rule on the respondent's no case submission and should have required her to enter upon her defence and counterclaim.

Gordan, J.A.

1 As a result of a collision between two motor cars owned respectively by the appellant and the respondent in this case, the former brought an action in the Court of Summary Jurisdiction against the latter for damages to his car, and the latter counterclaimed for damages to her car. The counterclaim was based solely on the defence which was pleaded. The trial judge commenced the hearing of the claim and counterclaim as one. At the close of the appellant's case the respondent elected to call no evidence, and the trial judge upholding a submission on her behalf entered judgment for the respondent. The hearing of the counterclaim was then proceeded with.

2 At the end of the respondent's case on the counterclaim the appellant elected to call no witnesses, and submitted that the counterclaim should be dismissed as the defendant had not proved that his car was being driven by his agent. The learned trial judge, having reserved judgment, on his own motion amended a paragraph in the pleadings of the respondent by deleting the word ‘plaintiff’ and substituting therefor the words >plaintiff's drivers=, and entered judgment

3 in her favour on the counterclaim for $500,00 general damages with costs $25.20.

4 The appellant has appealed against this order on the counterclaim and before this court argued the two following grounds of appeal:

• “(1) That the learned judge erred in amending the defence and counterclaim after the close of the case and without giving the plaintiff/appellant a chance to adduce testimony thereafter.

• (2) That the damages awarded are excessive.”

5 Section 39 of the Summary Jurisdiction Act (Cap. 80) of the Revised Laws of Antigua provides –

“39. In all matters of procedure or evidence, not provided for by this Act, the provisions of the Supreme Court Act, shall apply to causes and proceedings in the Court in the same and the like manner as such provisions apply to causes and. proceedings in the Supreme Court, and shall in all respects govern the same.”

6 Section 27 of the Supreme Court Act (Cap. 81) of the Revised Laws of Antigua make...