Baker v Attorney General et Al

• Jurisdiction: Jamaica
• Judge: Pitter, J.
• Judgment Date: 17 November 1990
• Court: Supreme Court (Jamaica)
• Docket Number: No. B416 of 1987
• Date: 17 November 1990

Supreme Court

Pitter, J.

No. B416 of 1987

Baker

and

Attorney General et al

Mr. Donovan Jackson instructed by Myers, Fletcher & Gordon, Manton & Hart for plaintiff.

Mr. Burchelson instructed by the Director of State Proceedings for the first and second defendants.

Mr. Ramsay of Tenn Russell, Ching San, Hamilton and Ramsay for the third and fourth defendants.

Barker v Ag et al

Damages - Personal injury — Quantum — Claim by the executrix of the estate of the deceased for damages as a result of a motor vehicular accident — Action brought under the Fatal Accidents Act — Sister of the deceased not his dependant — Damages awarded under this head — Damages under the Law Reform Act also awarded.

Pitter, J.

1 The plaintiffs are the Executrices of the Estate of Corporal Trevor Lee Brown deceased who died on the 17th October, 1986, as a result of a motor vehicle accident which occurred along the main road at Ewarton in the parish of St. Catherine. The action is brought against the defendants under the Fatal Accidents Act and the Law Reform (Miscellaneous Provisions) Act.

2 The claim in negligence arose out of a collision on Friday the 17th October, 1986 between a lorry owned by the Jamaica Defence Force and driven by Private Lauriston Miller of the Jamaica Defence Force the second defendant and a Toyota land cruiser owned by Leroy Stewart the fourth defendant and driven by Donald Norton the third defendant. The deceased was a passenger amongst some other colleagues all seated in the body of the lorry. The lorry was proceeding from Ewarton towards the Linstead direction whilst the land cruiser was traveling from the Linstead direction towards Ewarton. They collided along a stretch of road in the vicinity of the Alcan Bauxite Works which is on the left hand side of the road as one goes towards Linstead. .This stretch of road is fairly straight and at both ends are curves; a left hand corner coming from the Ewarton end and a right hand corner coming from the Linstead end. Along this stretch of road was parked a motor truck immediately opposite the Alcan entrance. It was parked on the left hand side of the road as one proceeds towards Ewarton. The evidence is that it was about to enter the Alcan premises and had stopped to allow vehicles coming from the opposite direction, one of which is the Jamaica Defence Force lorry, to pass. The indicators on this truck (blinkers) at the time indicated that the Alcan truck was preparing to turn right across the road. As the lorry passed this truck the land cruiser came around the corner from the Linstead end and collided with it and ended up under the parked truck. Following the impact, the lorry careened across the road behind the parked truck and overturned killing the deceased on the spot and injuring several of its occupants.

3 The evidence from the second defendant supported by witnesses are that the lorry was proceeding at about 40 m.p.h. on its correct side of the road and as it was about passing the parked truck the land cruiser came around the corner on its right hand side traveling at a very fast speed and on about overtaking the parked truck traveled into the path of the lorry and collided with it. The land cruiser then ended under the back of the parked truck. It is the evidence of Idel Clarke whom I viewed as an independent witness that the land cruiser came around the corner fast, skidding and with squealing of brakes which drew her attention and that the Jamaica Defence Force lorry came off the road surface to its left to avoid the accident. She said the side wheels of the Jamaica Defence Force lorry had just come off the edge of the asphalt — some 3-4 feet from the edge.

4 The evidence of the third defendant Mr. Donald Norton is that he was driving the land cruiser when on approaching Alcan's main entrance from a distance of 200 feet away he saw a parked truck on the left hand side of the road in the vicinity of Alcan's gate. That he reduced his speed of between 35 and 40 m.p.h. to 30 m.p.h. and started to go right with the intention of overtaking the parked truck when the fourth defendant Leroy Stewart who was seated in the right front passenger seat told him that the lorry was approaching. He said he went to his left, slammed on his brakes, which failed, and collided into the back of the parked truck. Just then the front of the lorry passed the parked truck but its rear collided with the right rear of the land cruiser. He admits that the right rear of the land cruiser at the time of the accident exceeded the white line in the roadway by some 6 inches. He denied he was in the act of overtaking the parked truck when the accident occurred. He admits however, that when he was attempting to overtake the parked truck he had pulled to his right and that he could not see around it at that time. He denied that the parked truck had its indicator lights blinking. Mr. Leroy Stewart the fourth defendant and owner of the land cruiser gave evidence supporting the third defendant. He however, puts the speed of the lorry traveling at 55 m.p.h.

5 It is here convenient to deal with another witness called by the third defendant and who is asked to be regarded as independent. He is Mr. Patrick McKay the driver of the parked truck. His evidence which is uncontroverted, is that he parked his truck on the left hand side of the road in the Ewarton direction opposite the Alcan gates. That he intended going across the road into Alcan premises and that his indicator lights were on, signaling a right turn. Interestingly, neither Mr. Donald Norton the driver of the land cruiser nor Mr. Leroy Stewart his passenger saw this. Mr. McKay's evidence is that whilst he was parked he saw a Jamaica Defence Force lorry approaching from the Ewarton bend ahead of him at a speed of 40-45 m.p.h. The truck passed him. A couple seconds after, from his rear-view mirror he saw the land cruiser heading straight to the back of his truck and that he “neutralled the truck and eased his feet off the brakes to absorb the impact. That he took his foot off the brakes and braced for the accident.”

6 He is unable to say at what speed the lead cruiser was traveling as he was looking in the rear view mirror and whether the land cruiser was behaving any particular or unusual manner. What then could have brought about this state of apprehension in him? Why did he anticipate the collision of the land cruiser with his truck if the land cruiser was traveling at a normal speed of 30-35 m.p.h. and the land cruiser not behaving unusually? If he is to be believed then having taken all measures to soften the collision he must have anticipated the collision with the land cruiser and his truck. It must be then that the land cruiser was...