Albourne Matthews and Winston Morrison v Attorney General and Gregg Gardner

• Jurisdiction: Jamaica
• Judge: CORAM: MORRISON, J
• Judgment Date: 01 July 2011
• Judgment citation (vLex): [2011] 7 JJC 0101
• Docket Number: CLAIM NO. 2007 HCV04547
• Court: Supreme Court (Jamaica)
• Date: 01 July 2011

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2007 HCV04547

BETWEEN

ALBOURNE MATTHEWS

1ST CLAIMANT

AND

WINSTON MORRISON

2ND CLAIMANT

AND

THE ATTORNEY GENERAL

1ST DEFENDANT

AND

GREGG GARDNER

2ND DEFENDANT

Miss C. Hudson instructed by K.C. Neita & Company for the 1st and 2nd Claimants

Miss L. White instructed by the Director of State Proceedings for the 1st and 2nd Defendants

Motor vehicle collision – Pleadings – Evidence – Credibility – Assessment of damages

CORAM: MORRISON, J

‘The rule of the road is a paradox quite for riding or driving along; If you go to the left you are sure to go right, if you go to the right you go wrong.’

1 The adjudicative material before me, in the case at bar, is largely comprised of the subjective vistas of the Claimants and the second Defendant, and one ex post facto objective witness – the then Certifying Officer of the Island Traffic Authority, Morant Bay, St. Thomas, Mr. Marlon Monteith. Inexplicably, though the St. Thomas police arrived on the scene of the accident shortly after it had occurred, their input, apart from regulating the ensuing chaotic traffic congestion was, by way of evidentiary support, lacking in assistance in the quest to determine the cause of the accident. Thus, there is no corroborative independent from-the- scene evidence coming from them.

2 It is with this background in mind that the issue of causation is to be viewed. Accordingly, the matter of the credibility of the dramatis personae is writ large.

3 Preliminarily, though the parties are wont to describe the accident as occurring head-on, the damage to both vehicles as testified to by Mr. Monteith, and taken with the assessor's report of Mendez, Livingston Incorporated, reveal a right side bias impact to both vehicles. Both vehicles showed extensive damage chiefly to their right sides by dint of which the accident bespeaks unskillfulness and carelessness on the part of at least one of the driver's involved. That, I daresay, was on an unremarkable day and on an asphalted road surface. From all accounts, it was, for the most part, an ordinary roadway that was ordinarily traversed by ordinary motorists that has some how contrived to produce an extraordinary accident.

The Pleadings

4 It will be observed that the Claim Form and Particulars of Claim were first filed on November 9, 2007. Thereafter, two further amendments to the Particulars of Claim were filed. One on the 27th May 2009 and the other on the 18th March 2010.

5 Further, from the Claim form as filed on 9th November, 2009 there were two additions to the 27th May 2009 version, the materiality of which was as to the addition of the second Claimant and the role he played in the accident. The gravamen of the complaint is as couched in the Further Amended Particulars of Claim filed on 11th March 2010: ‘That on or about the 20th day of March 2007, the first Claimant was travelling as a passenger in motor vehicle registered 7453 EJ driven by the second Claimant, Winston Morrison, along Sun Valley main road, in the parish of St. Thomas when on reaching the brow of a hill along the said road, the Second Defendant travelling in the opposite direction negligently drove and/or managed motor vehicle registered 0769 EV so that he lost control of the said motor vehicle and collided head-on in the Claimant's aforesaid motor vehicle.’

6 It will be observed that there is a departure from the endorsement that is repeated in the Amended Claim Form filed on May 27, 2009 to wit: ‘The first Claimant Albourne Matthews … and the second Claimant Winston Morrison …. claim against the first Defendant and the second Defendant … to recover damages for negligence in that . on reaching the brow of a hill . the second Defendant travelling in the opposite direction negligently drove and/or managed motor vehicle registered 0769EV by overtaking (sic) and/or attempted to overtake in line of traffic, collided in the rear of motor vehicle registration unknown whereupon he lost control of the said motor vehicle and collided head-on in the Claimants' aforesaid motor vehicle (in) consequence of which the Claimant sustained injuries suffered loss and incurred expenses.’

7 The Particulars of Negligence ascribed by the Claimants' in respect of the second Defendant's driving are:

• a) driving at an excessive speed;

• b) driving onto the wrong side of the road and there colliding with the motor vehicle registered 7453EJ;

• c) driving in a dangerous and reckless manner;

• d) losing control of motor vehicle registered 0760EV so that it collided head-on into motor vehicle registered 7453EJ;

• e) failing to keep any or proper look-out or to have any or any sufficient regard for other traffic, particularly on-coming traffic on the road;

• f) failing to give any adequate warning of his approach;

• g) placing the Claimant in a dilemma by failing to keep to his correct driving side of the said road; and

• h) failing to stop, slow down, to swerve or in any other way to manage or control the motor car as to avoid the collision.

8 The particulars of the negligent driving were in...