Allen v Orandy Moving & Storage Company Ltd et Al; Moore v Orandy Moving & Storage Company Ltd et Al; Daley v Orandy Moving & Storage Company Ltd et Al

• Jurisdiction: Jamaica
• Judge: Thompson-James, J.
• Judgment Date: 12 May 2017
• Neutral Citation: [2017] JMSC Civ 73
• Docket Number: CLAIM NO. 2008 HCV 02570 CONSOLIDATED WITH CLAIM NO. 2010 HCV 01800
• Court: Supreme Court (Jamaica)
• Date: 12 May 2017

Between

Adolph Allen

Claimant

and

Orandy Moving & Storage Company Limited

1 ^st Defendant

and

Kayon Kentish

2 ^nd Defendant

And Between

Orandy Moving & Storage Company Limited

Ancillary Claimant

and

Omar Lawrence

Ancillary Defendant

Between

Michaelia Moore

Claimant

and

Orandy Moving & Storage Company Limited

1 ^st Defendant

and

Kayon Kentish

2 ^nd Defendant

And Between

Orandy Moving & Storage Company Limited

Ancillary Claimant

and

Omar Lawrence

Ancillary Defendant

Between

Janel Daley

Claimant

and

Orandy Moving & Storage Company Limited

1 ^st Defendant

and

Kayon Kentish

2 ^nd Defendant

And Between

Orandy Moving & Storage Company Limited

Ancillary Claimant

and

Omar Lawrence

Ancillary Defendant

[2017] JMSC Civ. 73

Thompson-James, J.

CLAIM NO. 2008 HCV 02570

CONSOLIDATED WITH CLAIM NO. 2010 HCV 01798

CONSOLIDATED WITH CLAIM NO. 2010 HCV 01800

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

NEGLIGENCE — ROAD TRAFFIC ACCIDENT — ROAD TRAFFIC ACT — PERSONAL INJURIES — DUTY OF CARE — DUTY OF CARE TO PASSENGERS — DUTY OF CARE WHEN MAKING A TURN — CONTRIBUTORY NEGLIGENCE — VICARIOUS LIABILITY — ASSESSMENT OF DAMAGES

Ms. Kimberly Facey instructed by Bignall Law for the Claimants.

Mr. Oraine Nelson for the 1 ^st & 2 ^nd Defendants and Ancillary Claimant.

Ms. Arlene Williams and Ms. Gabrielle Hosin instructed by Nunes Scholefield DeLeon & Co. for the Ancillary Defendant

IN OPEN COURT

Thompson-James, J.

Background

1 On or about May 3, 2007 at about 3:00 p.m. along Spanish Town Road, St. Andrew, a collision occurred between a freightliner sleeper-cab motor truck bearing registration letters and numbers CE1345, driven by the 2 ^nd Defendant, Kayon Kentish, and owned by the 1 ^st Defendant, Orandy Moving & Storage Company Limited, and a Honda Integra motorcar bearing registration numbers and letters 7578EZ, driven by the Ancillary Defendant, Omar Lawrence, and owned by Owen Lawrence, who is not a party to this suit.

2 It is not disputed that, at the material time, the 2 ^nd Defendant was an agent of the 1 ^st Defendant.

3 It is also undisputed that at the material time, all three Claimants, Adolph Allen, Michaelia Moore and Janel Daley, were passengers in the motor vehicle driven by the Ancillary Defendant. They now seek damages for the injuries they sustained and expenses incurred as a result of the collision. An order was granted for the consolidation of the claims.

The Claims

4 Adolph Allen filed his claim May 15, 2008, whilst Janel Daley and Michaelia Moore filed claims April 12, 2010.

5 At the material time, Mr. Allen was a 20-year-old contractor, born December 18, 1987. At the time of filing his witness statement, he noted that he was still a contractor. At the time of the accident, Ms. Daley, who is now a police officer, was a 17-year-old student, born January 26, 1990. Ms. Moore, who is now an Insurance Claims Associate, was also a student at the material time. She was born December 8, 1989 and would have been 18 years old.

6 The pleadings as to liability are essentially the same in all three claims, in that, it has been alleged that the accident was wholly caused and/or alternatively contributed to by the negligence of the 2 ^nd Defendant, who was, at all material times, an agent of the 1 ^st Defendant. It has been averred, inter alia, that the 2 ^nd Defendant was negligent in that he drove the truck at an excessive/improper speed and made a sudden right turn, without any signal, into the path of the Honda motorcar in which the Claimants were passengers, thus causing them to suffer injuries, loss and damages and incur expenses.

7 It has however been additionally and alternatively pleaded by Janel Daley and Michaelia Moore in their claims, that the Ancillary Defendant was negligent and wholly caused and/or alternatively contributed to the accident, in that, he, inter-alia, drove at too fast a rate of speed, along the roadway in a careless and reckless manner, failed to stop, slow down, or swerve; causing his vehicle to collide with that of the 2 ^nd Defendant. It is to be noted however, that the Claimants in their submissions only addressed liability in relation to the 1 ^st and 2 ^nd Defendants.

8 Mr. Allen did not make any similar allegations against Omar Lawrence.

The Defence of the 1 ^st and 2 ^nd Defendant and the Ancillary Claim

9 The 1 ^st and 2 ^nd Defendants deny that the 2 ^nd Defendant was negligent, and aver that it was the Ancillary Defendant who caused and or materially contributed to the collision, by, inter-alia, attempting to pass the truck without warning when the truck was already in the process of turning, and when it was unsafe and dangerous to do so. Whilst the Defendants outline in their defence detailed particulars of negligence of the Ancillary Defendant and how they contend the accident occurred. The 2 ^nd Defendant who was driving the truck at the material time, did not give evidence in court nor did he file a witness statement. The only evidence on behalf of the Defendants came from the managing director of the 1 ^st Defendant company, Mr. Oral Williams.

10 The 1 ^st Defendant subsequently filed three ancillary claims in respect of each claim, against the Ancillary Defendant Omar Lawrence, averring that the accident was caused and/or materially contributed to by Mr. Lawrence's negligence, and claims (i) indemnity and/or contribution in relation to the Claimant's claim, and, (ii) damages for the loss sustained and expenses incurred by the 1 ^st Defendant as a result of the accident. The first ancillary claim, in respect of Adolph Allen's claim was filed June 25, 2008; the second, in respect of Michaelia Moore's claim was filed November 11, 2010; and the third, in respect of Janel Daley's claim was filed December 15, 2010.

11 The particulars of negligence against Mr. Lawrence, as well as the special damages claimed, are essentially the same in all three ancillary claims. The particulars of negligence are as outlined above in paragraph 9 in respect of the defence.

12 Orandy Moving and Storage (the Company) seeks to rely on the evidence adduced by the Claimants in the claim, as support for its own case in the Ancillary Claim.

The Ancillary Defendant's Defence and Counterclaim

13 The Ancillary Defendant, Omar Lawrence, in his amended defence and counterclaim contends that he is not liable to indemnify and/or contribute to the Claimant's claim, nor is he liable for damages to the 1 ^st Defendant's motor vehicle as a result of the accident. He denies that the accident was caused solely or was materially contributed to by him driving negligently, and avers that the collision was caused solely and materially contributed to by the 2 ^nd Defendant, in that, inter alia, the 2nd Defendant, driving the 1 ^st Defendant/Ancillary Claimant's truck, made a sharp right turn across the path of the Ancillary Defendant's vehicle, and collided into the front left section of the Honda driven by the Ancillary Defendant.

14 Mr. Lawrence has counterclaimed against the Company for damages and loss incurred as a result of the accident.

The Evidence

15 All three Claimants gave similar evidence as to the condition of the roadway at the material time, as well as the manner in which the accident occurred.

16 In their evidence-in-chief, all three claimants stated that the weather condition was sunny and bright and the roadway was smooth. They described the roadway as consisting of three lane vehicular traffic heading in the same direction, with a cement median separating the roadways going in either direction.

17 The Honda was travelling in the extreme right lane along the dual carriage roadway in the direction of Spanish Town from the direction of Kingston. On approaching a section of the roadway in the vicinity of the Sealy Mattress Co. Ltd, a large motor truck (Freightliner Sleeper-Cab motor truck lettered and numbered CE 1345), without any indication or signal, cut across the roadway from the left side of the road to the right side into the path of the Honda.

The evidence of Adolph Allen

18 He testified that on the day in question he was seated in the left rear seat of the Honda Integra motor car, travelling along Spanish Town Road. The car was driven by Omar Lawrence. Michaelia Moore was sitting beside him in the rear of the car, whilst Janel Daley was sitting in the front passenger seat. In his evidence-in-chief, he stated he was a restrained passenger, but when asked in cross-examination if that meant he was wearing his seatbelt, his response was “no.”

19 He saw the truck cut across the front of motor vehicles from the left side of the roadway to the right side and entered the path of the Honda. He shouted to Omar “Watch the truck”, and immediately Omar swerved right but the front of the motor truck still collided into the left front side of the Honda. The Honda was pushed further right and collided into a light post that was at the median.

20 Before he observed the vehicles to his left braking, he was just sitting in the car. There were no motor vehicles immediately in front, but there were cars to the side. He observed the truck cutting across the front of the vehicles from left side to right, at the same exact time he noticed the vehicles in the left lane braking up. He however testified that it was only one car that he saw braking up beside them. There were no other cars ahead of that car. The nose of the other car, meaning the bonnet, fender and the wheel, was just before them. The car was right at the front of the median when it was braking up. After braking up, the car started to slide and then it stopped.

21 Up to the time when he saw the vehicle braking up, which is the same time he saw the truck cutting across the road, the car he was in did not reduce speed. When he shouted to Omar to “watch the truck”, he was trying to get him to slow down and avoid the truck.

22 He disagreed that when he...