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Gillian Mullings gets compensation from school for hurt child




A COURT has the power to amend the particulars of a claim in the interest of justice once the evidence shows that a litigant can be compensated for damages that are not pleaded.

This is what the Court of Appeal did last month when it amended the claim in an appeal brought by the Oracabessa Primary School, St. Mary. The claim was amended in favour of a student at the school.


The law is clear that the court can amend particulars of a claim in relation to damages. On the question of amending claims to add parties to a suit, some lawyers pointed out that the authorities show that a court cannot amend a claim to include a party which has not been duly served. The lawyers say all parties to a suit must be duly served so that they can be given an opportunity to defend the suit. If the proper party is not served then a suit can be declared a nullity.


The Court of Appeal last week amended the particulars in a claim and also amended the suit by removing the Oracabessa Primary School, which was named as the defendant to the suit. The court substituted the School Board of Management of the Oracabessa Primary School as the respondent.


NULLITY

There are some lawyers who have expressed the view that the suit should have been declared a nullity because the wrong party was sued and, therefore, a nullity cannot be amended.

The court, in amending the claim, pointed out that the school board was aware of the suit and had retained a lawyer to represent the school.

Resident Magistrate Sarah James-Thompson had ordered in February 2002 that the Oracabessa Primary School should pay $150,000 in damages for negligence to the father of a boy who was severely beaten by a bigger boy on February 16, 1999 when he was only six years old. On the day of the incident, the boy, who was a student at the Oracabessa Primary School, had gone on an excursion with teachers and other students to sports day activities at Galina Primary School, St. Mary. The boy was going to the bathroom in the afternoon when a bigger boy pulled him into bushes, beat him with a belt and robbed him of his money. When the boy returned to the playfield he did not see the buses in which they had travelled. The boy discovered that the teachers and the other students had left.

A resident saw the boy on the playfield in the evening and gave him money for his bus fare. The resident put him on a public passenger bus and asked the conductor to leave the boy at the police station.


WRONG ENTITY

Attorneys-at-law Audrey Reynolds and Gillian Mullings, who were instructed by Patrick Bailey and Company , represented Oswald Frazer and his son Ramon. They asked the court to declare the suit a nullity because the wrong entity was sued. The lawyers wanted the suit declared a nullity so that they could start over the suit because the six-year limitation in which to file a suit would not have expired in that case until 2006.

The lawyers, who were recently retained to argue the appeal, said it was the Oracabessa Primary School Board of Management and not the school, which should have been sued and, therefore, the court should declare the suit a nullity.

The court, comprising the Ian Forte, President of the Court of Appeal, Justice Paul Harrison and Justice Seymour Panton, took the decision that the suit did not have to start over because the court had the power to amend the claim. The court amended the suit and substituted the school board as a party to the suit. The court explained that attorney-at-law Huntley Martin, who appeared for the school, had said he was retained by the chairman, vice-chairman of the school board and the principal of the school. The court said that information led the court to the conclusion that from the beginning it was the school board which had been defending the action.

In amending the claim, the court placed reliance on section 190 of the Judicature (Resident Magistrates) Act which states that "the magistrate may at all times amend all defects and errors in any proceeding, civil or criminal, in this court, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend by or not, and whether the defect or error be that of the party applying to amend or not; and all such amendments may be made, with or without costs, and upon such terms as to the magistrate may seem fit; and all such amendments as may be necessary for the purpose of determining the real question in controversy between the parties shall be so made."


DAMAGES FOR FRIGHT

The court said it had the same power as that of the Resident Magistrate and the justice of the case demanded that the particulars be amended to include damages for fright. The court referred to the RM's finding that the boy was abandoned by the agents of the school, namely the teachers and must have been frightened when he discovered that the teachers had left him. The court held that the RM was correct in coming to that finding.

After amending the claim, the court set aside the Resident Magistrate's award of $150,000 for damages for negligence as a result of the injuries the boy suffered. The court said the school board could not have foreseen that a bigger boy would have injured the boy. The court found that the six-year-old boy was abandoned by the school board, which had responsibility to take care of him and that was a 'grave offence'.

The Court of Appeal awarded the boy $50,000 for the anguish suffered from fright.

In allowing the school board's appeal in part, the court awarded the school board $10,000 for costs against the respondents. The school board had appealed on the ground that the Resident Magistrate erred in awarding damages for negligence for the injuries the boy suffered.

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