Attorney General v Phillip Granston
| Jurisdiction | Jamaica |
| Judge | PANTON, P , HARRIS, J A , DUKHARAN, JA |
| Judgment Date | 13 October 2011 |
| Neutral Citation | JM 2011 CA 3 |
| Judgment citation (vLex) | [2011] 1 JJC 2003 |
| Date | 13 October 2011 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 125/2009 |
JAMAICA
IN THE COURT OF APPEAL
THE HON. MR JUSTICE PANTON, P
THE HON. MRS JUSTICE HARRIS, JA
THE HON. MR JUSTICE DUKHARAN, JA
DAMAGES - Personal injuries - Pain and suffering - Loss of amenities - Handicap on the labour market - Loss of income - Future medical care - Special damages
I have read the reasons for judgment written by my learned sister Harris JA. I agree with her reasoning and conclusion and have nothing further to add.
In this appeal the appellant challenges the judgment of Sykes, J which was delivered in favour of the respondent on 10 August 2009. The learned judge made the following awards:
‘General damages:
pain, suffering and loss of amenities – $8m at 3% interest from the date of the service of the claim to the date of judgment;
handicap on the labour market – $524,430.38 with no interest.
cost of future medical care:
pumps and catheter – US$108,000.00 with no interest.
Cost of the refill – $960,000.00 with no interest
special damages:
loss of overtime – $671,154.00 at 3% interest from the date of the amended particulars of claim to the date of judgment.
Costs to the claimant to be agreed or taxed.’
On 20 December 2010 we made the following order:
‘The appeal is allowed in part. The judge 's order on liability is affirmed. The order on quantum is varied by reducing the award for loss of overtime pay from $671,154.00 to $161,541.12. In all other respects the order on quantum is affirmed.
Costs to the respondent to be agreed or taxed.’
We promised to put our reasons in writing which we now do.
On 20 November 1997, the respondent, a fireman, in the course of his duties, was travelling in a fire truck along the Williamsfield main road in the parish of Saint James, driven by its duly authorized driver, Sergeant Liston Reid. The truck was involved in an accident and overturned, as a result of which the respondent sustained injuries.
He subsequently commenced proceedings against the appellant claiming that the accident was caused by the negligent driving of Sergeant Reid. His claim as particularized is outlined as follows:
‘4. The Claimant was a passenger in the front seat of the said vehicle, which was travelling along the Johns Hall Main Road when it capsized and fell into a river bed on the right side of the road.
5. The collision was caused by the negligence of Sgt. Liston Reid, the driver of the vehicle and servant and/or agent of the Crown.
Particulars of Negligence
i. Driving over a mound of dirt on the road, so that the vehicle became unbalanced and capsized.
ii. Failing to keep any or any proper look out.
iii. Driving without due care and attention
iv. Failing to take any or any effective measures to prevent his motor vehicle from capsizing.
iv. Failing to stop, slow down, to swerve or in any other way so to manage or control the motor vehicle so as to avoid the accident.
vi. The Claimant will rely on the principle of res ipsa loquitur.
6. As a result of the negligence of the Defendant's servant and agent, the Claimant who was born on 4 th June 1966 suffered injury loss and damage.
Particulars of Injury
i. Failed back syndrome.
ii. Fractures of the pars interarticularis at L5
iii. Bulging of the intervertebral disc at L5/S1.
iv. Chronic back pains
The Claimant will require further operation for the insertion of a pain pump. The pump is expected to cost US$6,500.00 and the operation US$6,500.00
8. (sic) Since the accident the Claimant has been examined by numerous doctors, but the back pains continued, and on the instructions of the Fire Brigade Doctor, Dr Barry Hastings, the Claimant was in 2001 sent to Dr Randolph Cheeks. Following and as a consequence of the report of Dr Cheeks the Claimant was assigned to light duties by the Jamaica Fire Brigade. The Claimant was also sent by the Jamaica Fire Brigade to Dr Kevin (sic) Ehikhametalor.
9. The Plaintiff intends at the trial of the matter herein to rely on the medical reports of Dr. Kelvin Ehikhametalor and Dr Randoph (sic) E. Cheeks, F.R.C.S. and consultant neurosurgeon. A copy of the said report is attached hereto marked ‘OPI’
10. As a result of the matters complained of, the Plaintiff has suffered loss and damage. A schedule of the special damages claimed to date is set out hereunder:
Particulars of Special Damage
Loss of overtime for 13 months, at an average of 96 hours per month @ $129.44 per hour $161,541‘
The appellant, in her defence, denied that there had been negligence on her part. The appellant averred that it was raining heavily and the roadway was covered with water and Sergeant Reid, travelling approximately 5 miles per hour, was in the process of passing a stationary vehicle when the truck began to sink, and eventually tilted and capsized.
The evidence of the respondent was that the fire truck was conveying 8000 gallons of water to a designated place and while proceeding there, Sergeant Reid drove over a mound of earth which was on the roadway. A Honda motor car was parked on the opposite side of the road. Sergeant Reid stopped, blew his horn and then proceeded. In an effort to manoeuvre the truck away from the motor car, although there was insufficient room for him to pass, the accident occurred.
Evidence in support of the appellant's case was given by Sergeant Reid, Miss Teri Ann Leslie and Senior Deputy Superintendent Allan Goodwill. Sergeant Reid stated that the road in the area at which the accident occurred was about 18 feet in width and had broken away due to saturation by water coming from excessive rainfall during the period. He stated that the truck passed the Honda Civic motor car, then began to skid, sank in mud, tilted and overturned.
Miss Terri Ann Leslie, who was a passenger in the truck, said that the road was about 12 to 15 feet in width, its surface was paved in some areas and unpaved in other areas and that there was sufficient room for the truck to have passed the car. She also asserted that Sergeant Reid was driving very slowly when the truck capsized.
Deputy Superintendent Goodwill, who investigated the accident, stated that the road is approximately 18 feet wide and on his visit on the day of the accident, he observed that the right side of the road had broken away and was on the same level as the rest of the road. He did not recall seeing a mound of earth at the site of the accident.
Several grounds of appeal were filed. Grounds of appeal (a), (b) and (c) were argued simultaneously.
‘(a) The learned trial judge erred when he found that Sergeant Liston Reid was negligent, and by extension the Appellant is variously (sic) liable in the circumstances.
(b) The learned trial judge erred in not finding as a fact that the road on which the accident occurred had broken away in circumstances where there was direct and unchallenged evidence indicating same.
(c) The learned judge erred in law in not finding that the requirements of Brown [sic] v Dunn 6 R. 67 were not satisfied by the Appellant (Defendant in the circumstances.
It was submitted by Miss Dickens that the narrowness of the road was not in issue. There being no dispute that the road was narrow, she contended, the necessity would not have arisen to challenge such evidence. Despite this, she argued, the learned trial judge erroneously focused on the narrowness of the road as a vital consideration in determining the appellant's liability. The real issue, she argued, was whether there was sufficient space for the fire truck to have safely passed.
Miss Davis argued that the learned trial judge had not only taken into consideration the fact that there was no cross examination as to the narrowness of the road but had also carefully examined all the evidence before him, prior to coming to his decision. The learned trial judge, having accepted the evidence of the respondent in all the circumstances of the case, was entitled to find as he had done, she contended.
The issue is not merely a question of the narrowness of the road but whether in view of the size of the road, the width of the truck and of the Honda Civic motor car, the truck could have had safe passage at the section of the road where the accident occurred. The real question therefore is whether liability can be ascribed to the appellant on account of Sergeant Reid's driving, he having endeavored to pass a stationary vehicle on that area of the roadway where the accident happened. Was there evidence to show that Sergeant Reid had not exercised the requisite care in his manner of driving at the time the respondent sustained his injuries?
There was evidence from Miss Teri Ann Leslie that the road was about 12 to 15 feet in width. There was also evidence from Sergeant Reid and Senior Deputy Superintendent Goodwill that the road was approximately 18 feet wide. Sergeant Reid, however, stated in cross examination that the road was less than 15 feet wide. No issue was joined on the question of the road's narrowness.
Sergeant Reid said that the truck was five feet wide. Miss Leslie stated that it was four feet in width while Superintendent Goodwill estimated the width to be between seven and eight feet. Sergeant Reid's and Miss Leslie's estimate of the width of a Honda Civic motor car was 4 feet. Senior Deputy Superintendent Goodwill testified that the part of...
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