Alvin Cato v Paul Williams

• Jurisdiction: Jamaica
• Judge: A. Nembhard J
• Judgment Date: 16 June 2021
• Neutral Citation: [2021] JMSC Civ 109
• Docket Number: CLAIM NO. 2010 HCV 04011
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2010 HCV 04011

Between

Alvin Cato

Claimant

and

Paul Williams

1 ^st Defendant

And

Garfield Walters

2 ^nd Defendant

And

Oneil Pearson

3 ^rd Defendant

And

Codien Hanson

4 ^th Defendant

IN OPEN COURT

Ms Winsome Marsh and Mr Nathan Geddes-Morrison for the Claimant

Ms Suzette Campbell and Mr Oshane Vaccianna instructed by Burton-Campbell & Associates for the 1 ^st Defendant

The 4 ^th Defendant is unrepresented

Negligence — Motor vehicle collision — Vehicle stopped in the vicinity of the entrance to a school some distance from a corner — Vehicle colliding with the rear of that which had stopped — The duty of care — The duty of care in terms of proper care — Reciprocated duty — Road code — Breach — Effect — Breach creating no presumption of negligence — Contributory negligence — Credibility of witnesses Damages — Personal injury — Whiplash injury — Severe neck and back pain — Extreme tenderness to the back — No permanent disability — Amount of damages — Road Traffic Act, sections 51(2), 53(1)(a) and (b) and 95(3), Island Traffic Authority Road Code, Part 2 — 1, 35, 39(b),(c),(d) and (e) and 40

A. Nembhard J

INTRODUCTION

1 The Claimant, Mr Alvin Cato, was the victim of a road traffic accident which took place on the morning of 26 November 2004. At approximately 7:00 a.m., Mr Cato was travelling in a public passenger vehicle, a Toyota Corolla, registered 4859 PA (“the Toyota Corolla”). Mr Cato was seated in the rear of the Toyota Corolla. His route lay along the Galina Main Road, in the parish of St. Mary.

2 At the time of the accident, the Toyota Corolla was owned by the 1 ^st Defendant, Mr Paul Williams and was being driven by the 2 ^nd Defendant, Mr Garfield Walters.

3 On reaching the vicinity of the Galina Primary School, having just come around a corner in the road, Mr Walters stopped the Toyota Corolla, in order to pick up a pedestrian. It is whilst stopped in the vicinity of the entrance to the Primary School that a Toyota Hiace, registered 3986 PA, owned by the 3 ^rd Defendant, Mr Oneil Pearson and driven by the 4 ^th Defendant, Mr Codien Hanson, collided with the rear of the Toyota Corolla.

4 As a consequence of the collision, Mr Cato suffered whiplash injury, severe pain to his neck and back and extreme tenderness to his back. Fortunately, he suffered no permanent disability.

5 By way of a Claim Form, filed on 17 August 2010, Mr Cato commenced an action for Damages in Negligence, in respect of his injuries, loss, damage and expenses, occasioned as a result of the collision.

6 On 9 June 2021, the trial of this matter commenced and proceeded against the 1 ^st Defendant. The Court also proceeded to assess damages, as against the 4 ^th Defendant, Mr Cato having obtained an Interlocutory Judgment in Default of Acknowledgement of Service against him, on 27 August 2020.

7 Mr Cato obtained an Interlocutory Judgment in Default of Acknowledgement of Service against the 2 ^nd Defendant, Mr Walters. That Judgment was subsequently set aside on 6 July 2020, on the basis that the Claim Form and Particulars of Claim, each filed on 17 August 2010, were never served on Mr Walters.

8 Similarly, the 3 ^rd Defendant was never served in respect of this matter.

THE ISSUES

9 The issues that arise for the Court's determination may be distilled in the following way: -

• (i) Whether Mr Garfield Walters owed the Claimant, Mr Cato, a duty of care;

• (ii) Whether Mr Walters breached that duty of care;

• (iii) Whether the motor vehicle collision was caused by the negligence of Mr Walters;

• (iv) Whether Mr Walters was contributorily negligent, in respect of the motor vehicle collision and, if so, in what proportion?

THE LAW

The claim in negligence

10 It is well established by the authorities that in a claim grounded in the tort of negligence, there must be evidence to show that a duty of care is owed to a claimant by a defendant; that the defendant acted in breach of that duty; and that the damage sustained by the claimant was caused by the breach of that duty. 1

The burden and standard of proof

11 It is also well settled that where a claimant alleges that he/she has suffered damage resulting from an object or thing under the defendant's care or control, a burden of proof is cast on him or her to prove his or her case on a balance of probabilities.

12 The general state of the law as to the proof of negligence was eminently enunciated by Lord Griffiths in Ng Chun Pi and Ng Wang King v Lee Chuen Tat and Another. 2 He stated as follows: -

“The burden of proving negligence rests throughout the case on the plaintiff. Where the plaintiff has suffered injuries as a result of an accident which ought not to have happened if the defendant had taken due care, it will often be possible for the plaintiff to discharge the burden of proof by inviting the court to draw the inference that on the balance of probabilities the defendant might have failed to exercise due care, even though the plaintiff does not know in what particular respects the failure occurred.

…it is the duty of the judge to examine all the evidence at the end of the case and decide whether on the facts he finds to have been proved and on the inferences he is prepared to draw he is satisfied that negligence has been established.”

The duty of care

13 In establishing a duty of care there must be foreseeable damage consequent upon the defendant's negligent act. There must also be in existence, a sufficient proximate relationship between the parties, making it fair and reasonable to assign liability to the defendant.

14 Lord Bridge, in Caparo Industries plc v Dickham, 3 spoke to the test in the duty of care, sufficient to ascribe negligence, in this way: -

“In determining the existence and scope of the duty of care which one person may owe to another in the infinitely varied circumstances of human relationships, there has for long been a tension between two different approaches. Traditionally the law finds the existence of the duty in different specific situations each exhibiting its own particular characteristics. In this way the law has identified a wide variety of duty situations, also falling within the ambit of the test of negligence.”

15 At pages 573 and 574 Lord Bridge went on to say: -

“What emerges, is that, in addition to the foreseeability of damage, [the] necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterized by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the Court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other.”

16 There is a reciprocated duty of care that each driver on the road owes to others. This duty of care is to manage and control his motor vehicle in such a way as to prevent harm or damage to other users of the road. The duty is not owed to the world at large. It must be tested by asking, with reference to each complainant, whether a duty was owed to him or her. If the complainant was not in such a position that direct physical injury could reasonably be anticipated to him or his relations or friends, then normally no duty would be owed. (See — Stephen Pryce v Joslyn Pryce and Daviot Pryce, 4 Esso Standard Oil SA Limited and Another v Ian Tulloch, 5

Hay or Bourhill v Young, 6 Elizabeth Brown v Daphne Clarke & Others, 7 and Pluckwell v Wilson, Bart. 8)

The duty of care in terms of “proper care”

17 Lord MacMillan expressed the duty of care in terms of “proper care” in Hay or Bourhill v Young. 9 He had this to say at page 403: -

“Proper care connotes avoidance of excessive speed, keeping a proper look-out, observing traffic rules and signals and so on. Then to whom is the duty owed? Again I quote and accept the words of Lord Jamieson:

'…to persons so placed that they may reasonably be expected to be injured by the omission to take such care.’

The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed.”

The duty of care enshrined in statute

18 This duty of care is enshrined in the Road Traffic Act (“the Act”).

19 Section 51(2) of the Act imposes a duty on drivers to take such precautionary action to prevent an accident. It reads as follows: -

“Notwithstanding anything contained in this section it shall be the duty of a driver of a motor vehicle to take such action as may be necessary to avoid an accident, and the breach by a driver of any motor vehicle of any

of the provisions of this section shall not exonerate the driver of any other motor vehicle from the duty imposed on him by this subsection.”

Other relevant provisions

20 Section 53 of the Act is relevant for present purposes. The section provides, in part, as follows: -

“53.-(1) A motor vehicle when not in motion -

• (a) shall be placed with its near side as close to the left of the roadway as possible or in such position as may be indicated by any constable or by notice exhibited by a Traffic Area Authority;

• (b) shall not be placed or allowed to remain in such a position as to obstruct or be likely to obstruct traffic.”

21 The relevant portions of Part 2 of the Island Traffic Authority Road Code, 1987 (“the Road Code”) read as follows: -

“1. Before you attempt to move from a parked position wait until there are no vehicles near enough to cause an accident. Give the proper hand or indicator light signals before moving off. Look out for overtaking vehicles. Check your rear view mirror/mirrors.

35. Before you pull out of a parking position...