Ackelie Burrell v Raymond McLeod
| Jurisdiction | Jamaica |
| Judge | Thomas, J |
| Judgment Date | 30 April 2021 |
| Neutral Citation | [2021] JMSC CIV 74 |
| Docket Number | CLAIM NO. 2016HCV02802 |
| Court | Supreme Court (Jamaica) |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2016HCV02802
Ms. Marion Rose Green and Ms Andrea Lannaman instructed by Marion Rose Green and Co. for the Claimant.
Ms Peter-Gaye Bromfield instructed by Kalima Bobb-Semple for the Defendant.
Motor vehicle Accident — Negligence — Breach of Duty of Care.
Assessment of Damages — Special Damages — Medical Expenses — Whether the Claimant is entitled to claim portion of expenses paid by his Health Insurance — Future Medical Expenses — No mention of this item in the Particulars of Claim or the Claimant's evidence — First Time it is mentioned is in the Supplemental Submissions — Whether the Claimant is entitled to an award.
General Damages — Pain and Suffering and Loss of Amenities — Handicap on the Labour Market.
The Claimant in this case is seeking damages in negligence arising from a motor vehicle accident which occurred on the 20 th of May 2014 in Cross Roads in Kingston. In his Amended Particulars of Claim filed on the 11 th of December 2020 the Claimant alleges that on the date in question he was driving his motor vehicle registered 3629GE along the Cross Road Square when on reaching the vicinity of Scotia Bank, having stopped to give way to another motor vehicle travelling in front of him, the Defendant who was driving motor vehicle registered 5632GC along the said road, caused his motor vehicle to collide in the rear of the Claimant's motor vehicle which was stationary at the time. The collision caused personal injury to the Claimant and damage to his vehicle.
The Defendant in his Defence filed on the 29 th of May 2019 has not denied the fact of the collision. He however alleges that the accident was caused by the Claimant stopping suddenly in front of him without any warning or indication. The Defendant also avers that he took reasonable care and skill so as to avoid the collision but he could not.
The Claimant has provided further details of the accident in his statement dated the 16 th of October 2020 that was permitted to stand as his evidence in chief. He states that along Slipe Road in Cross Roads in the vicinity where the accident occurred, there are four 4 lanes. Two going in the direction of Downtown Kingston, and two in the opposite direction. He states that in his travel towards Downtown Kingston he was travelling in the lane nearer to the middle of the road. He further states that a taxi was travelling in the same direction ahead of him but in the lane closer to the side walk. The taxi stopped to let off passengers then cut across in front of him in the middle lane. The taxi then stopped in front of him to allow persons to cross the road.
The Claimant further states that he immediately signalled that he was about to stop, applied his brakes and then stopped. He then felt an impact to the rear of his motor car. He discovered that the Defendant who was driving behind him collided in the back of his motor vehicle causing the rear bumper of his vehicle to fasten to the rear right wheel causing his motor vehicle to collide with the taxi in front of him.
On Cross examination he agreed that the taxi that was in front of his vehicle stopped suddenly. This he said was because pedestrians were at the time crossing in front of the taxi. He however insists that when the taxi stopped suddenly in front of him, he did not stop suddenly. He maintains that he applied his brakes and gave indication by hand that he intended to stop.
The Defendant Mr. Raymond McLeod states that on the relevant date and time he was driving his “Mitsubishi Pickup Truck” along Slipe Road in St. Andrew. The road he says, was wet but the visibility was good. He says that on reaching the vicinity of the Singer Store in Cross Roads the Claimant's vehicle was travelling ahead of him. He states that a taxi came from the left lane to the middle lane without any warning or indication and as such his pickup truck and the Claimant's motor car were unable to come to a stop. He says that it was in those circumstances that he collided in the rear of the Claimant's motor car. He also states that he observed damage to the rear bumper, trunk lid and rear light of the Claimant's motor car. He however asserts that he could not have avoided the accident as the taxi came suddenly into the middle lane.
On cross examination he states that he has been driving for approximately 40 years and is familiar with the provision of the road code that requires him to drive at least one (1) car length behind the vehicle in front of him. He does not recall seeing the provision that says on a wet road, that distance should be two (2) car lengths; to his knowledge the provision says “proceed cautiously”. He agrees that he would need a greater stopping distance on a wet road than on a dry road. He accepts that the reason for the road code requiring that there ought to be a reasonable distance between cars travelling on the road, is so that there is ample time for the motor vehicle travelling behind, to stop. He agrees that when the taxi stopped in front of the Claimant, he, (the Claimant) was able to stop but said that the Claimant stopped very close to the bumper of the said taxi.
The Defendant further states that when he first saw the taxi, it was in the left lane. He cannot recall whether it was stationary or moving. He does not know when it reached in the middle lane. He admits seeing two ladies crossing the road. He however states that he was not looking at the ladies; he was looking straight ahead of him. He further states that when he first saw the Claimant's vehicle, he was about 1 1/2 car-length away. He also asserts that at the time, he was travelling slowly at approximately 20–25 km per hour. He also agrees that it maybe, that he was not travelling at a sufficient distance behind the Claimant's motor car for him to avoid the collision
He then went on to say that when he applied his brakes his motor truck skidded. He however states that he cannot recall if he told this to his attorney-at law but he accepts that this evidence is not in his witness statement. He agrees that he was wrong that day because the “rule of the road is that once you hit someone in their back you are wrong”. He contends that when he observed that the taxi stopped in the middle lane to allow persons to cross the road. Mr Burrell did not signal to him to stop but accepts that the brake light of Mr Burrell's car was on. He then restated his earlier contention that he was not driving too closely to Mr. Burrell's car and insists that he did not fail to pay attention to what was going on around him, and that he tried his best to avoid the collision.
In answer to questions on re-examination and in response to questions posed by the court for the purpose of clarification he states the following:
It was the right side of the bumper below the right back light of Mr. Burrell's car that was dislodged. When the accident occurred he saw the two ladies in the middle of the road in front of the taxi. When he first saw them they were walking towards the middle of the road. Mr. Burrell was driving at that time. In seeing them crossing the road he was expecting Mr. Burrell to stop, but he would still describe that expected stop as a sudden stop.
The main issues in this case surround the principle of negligence. These are:
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(i) Whether the Defendant owed a duty of care to the Claimant;
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(ii) If a duty of care is found to be owed to the Claimant, whether he breached that duty of care; and
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(iii) Whether the Claimant suffered damage as a result.
However, the central issue in this case is really one of causation. That is, whether the accident occurred as a result of the Defendant failing to pay due care and attention to the safety of other road users, by keeping a safe distance from the vehicle in front of him, or, whether the accident occurred as a result of the Claimant, as a road user, stopping suddenly without any warning to the Defendant.
The court in the case of Bourhill v Young [1943] AC 92, laid down the principle that” the driver of a motor vehicle must exercise reasonable care, which an ordinary skilful driver would have exercised under all the circumstances, including the avoidance of excessive speed, keeping a proper look out and observing traffic rules and signals, to avoid causing injury to persons or damage to property”. Additionally, the court in the Jamaican case of Esso Standard Oil SA Ltd & Another v Ian Tulloch [1991] 28 JLR 553 expounded on the principle by stating that all users of the road owe a duty of care to other road users (See also Leighton Samuels v Leroy Hugh Daley [2019] JMCA Civ 24). Therefore, as it relates to the law of negligence, a Defendant will be held liable in damages for any damage he causes to another road user in failing to exercise his duty of care.
In civil proceedings the Claimant bears the responsibility to prove on a balance of probabilities, that he is entitled to the remedies sought. I have assessed the evidence of both parties to include their demeanour and have found the Claimant to be a more credible and reliable witness than the Defendant as it relates to the events that led to the collision. I find that his evidence remained consistent on cross examination. In any event I find that there is no significant divergence of facts between the parties as it relates to the circumstances of the collision.
I find that the established facts on the evidence are that while the Claimant was travelling in the middle lane along Slipe Road, a taxi was travelling in the same direction ahead of him but in the lane closer to the left. The taxi came across in front of the...
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