Coleman and MacDonald v Smith
| Jurisdiction | Jamaica |
| Judge | Carberry J.A.,Robinson, P.,Kerr, J.A. |
| Judgment Date | 24 September 1979 |
| Neutral Citation | JM 1979 CA 27 |
| Docket Number | Cayman Islands Civil Appeal No. 9 of 1978 |
| Court | Court of Appeal (Jamaica) |
| Date | 24 September 1979 |
Court of Appeal
Robinson, P., Kerr, J.A.; Carberry, J.A.
Cayman Islands Civil Appeal No. 9 of 1978
Mr. Lennox Sanguinetti and Miss Webbfor the appellant.
Mr. J. D. MacDonald for first defendant - respondent.
Mr. R. D. Alberga Q.C. for plaintiff - respondent.
Tort - Damages — Negligence.
This was an appeal from the judgment of Sir John Summerfield, Chief Justice of the Cayman Islands, in a negligence action heard before him in the Grand Court of the Cayman Islands On the 3rd, 4th and 5th of May, 1978. The judgment was delivered on the 25th June, 1978, and in it the Chief Justice found for the plaintiff against the second defendant, and acquitted the first defendant, finding that the second defendant was entirely to blame for the accident that resulted in the plaintiff's injuries. The plaintiff was awarded by way of damages the sum of C.I. $10,500.00 (agreed general damages), and the equivalent in Caymanian dollars of Canadian $9,365.14 (special damages: medical expenses). The second defendant appealed from the finding that he alone was responsible for the accident, claiming that the accident was due to the fault of the first defendant either entirely or at least in part, and he also appealed against the award of special damages claiming that these are not the circumstances of this case recoverable. We dismissed the appeal on both liability and damages, promising to put our reasons in writing at a later date: we do so now.
The action arose out of a collision that occurred in the vicinity of Holiday Inn Hotel on the night of the 3rd August, 1974. The Hotel lies on the western side of the main road that runs from George Town to West Bay. The road is asphalted, level and some 32-33 feet wide at the scene of the accident. It runs from north to south.
The plaintiff Carol Smyth, a Canadian now resident in Toronto and employed to the Royal Bank of Canada, was at that time resident in Grand Cayman and employed in the George Town Branch of that Bank. On the evening in question she was invited by the first defendant,
Donald MacDonald, a young man also resident in Toronto but then residing in Grand Cayman, to take a ride or his new motor cycle, a Honda 750 cc. They left on this ill fated expedition from the Beach Club Colony Hotel, which also lies on the West Bay Road about a mile south of Holiday Inn Hotel. It was the plaintiff's first experience of the joys and perils of riding as pillion passenger on a motor cycle and she stipulated for a short ride, at a not very fast speed. They turned left and rode north along the West Bay Road. The speed limit on that road is 50 miles per hour, and they did not exceed it. It was a dry fine night. There is a moderate bend to the left in the road in front of the Holiday Inn Hotel. To the north of the Hotel lies its parking area which opens on to the road. As the young couple approached the Holiday Inn Hotel and the bend in he road in front of it, they became aware of a car coming out of the Hotel car park. It was a Dodge Dart motor car driven by the second defendant, Frank Coleman, and, as it transpired, the second defendant intended to turn right and so south along the West Bay Road, that is in the opposite direction to that in which the motor cycle was proceeding.
In Cayman the rule of the road requires drivers to drive on their left, so that the manoeuvre intended by the second defendant involved coming out of the car park and turning right, across the path of the approaching motor cycle. Driving on the main road the motor cyclist had prior right of way over the driver emerging from the car park, and this was increased or strengthened by the car driver's intended turn to his right, across the path of the approaching motor cycle. It was clearly his duty not to come out, especially if he was turning right, until it was safe to do so having regard to the traffic on the main road.
Despite the approaching motor cycle, the lights of which were clearly visible, the second defendant, after apparently pausing at the can park entrance (and so leading the first defendant the motor cycle driver to believe that he was about to stop), nevertheless came out and turned right across the path of the approaching motor cycle, and a collision took place on the eastern side of the road (the right hand side for the motor cyclist) with the motor cyclist swinging to the right to avoid the collision, and the car apparently just in process of straightening up after turning right and trying to reach its left before the motor cyclist passed.
The plaintiff was thrown from the motor cycle and broke both legs: she spent roughly half a year in hospitals principally in Canada, undergoing various operations on both legs, as a result of which she has been left with various scars on her right leg and a certain residual disability therein. She suffered no loss of earnings as her employers, the Royal Bank of Canada paid her full pay while she was incapacitated and she has since resumed her employment with them, on the same terms as before, with no lose of salary or pension rights. Her general damages were agreed at C.I. $10,500 and there is no appeal on that score, though there is with regard to the bill for her medical expenses, or special damages.
No contributory negligence was alleged against the plaintiff, and as the passenger (or pillion rider) she must clearly recover against one or other or both defendants.
As was to be expected each defendant driver blamed the other for the accident, alleging that the other was wholly or entirely to blame. The broad outlines of the accident have already been indicated. In addition there was a drag or skid mark of 48' 5” made by the motor cycle which ran from roughly left of the middle of the road or slightly to the left of it, over to the point of impact on what would have been the motor cyclist's right hand side of the road.
The learned Chief Justice in an admirably careful and considered judgment reviewed the evidence given by the parties and in particular by each defendant (the plaintiff had little to contribute, as pillion rider she saw little). The first defendant, the motor cycle rider, described his efforts to avoid the accident: he had expected the car to stop; he slowed down and made to pass in front of it, realising it nevertheless intended to continue to come out he was unable to swing sharply back to his left and pass Behind it, and instead attempted to go still further to his right and pass in front of it, the car however accelerated as he approached, apparently intending to cross over in front of him and gain the other side of the road. Collision was now inevitable, he locked his brakes changed down and went still further to his right still expecting; the car to stop: it did not.
The second defendant, the driver of the motor car, gave evidence to the effect that having came to the entrance of the car park he stopped, looked both left and right, saw no traffic coming, (if the approaching motor cyclist could and did see his headlights, the car driver's failure to see the headlight of the approaching motor cyclist would indicate no, or no proper lookout); he then come out into the main road, and only at that stage in the middle of crossing did he perceive the approach of the other vehicle on his right, then he attempted to let out of its way by accelerating to complete his turn and get on to his proper side of the road leaving the other half of the road clear for the approaching vehicle. To his surprise it came over in his direction and hit him after he had already straightened up on his side of the road.
Not surprisingly, the Chief Justice accepted the evidence of the first defendant and rejected that of the second defendant. He found, and we see no reason to disagree with him, “that what really happened was that the second defendant, in deciding to emerge from the access road and cross the mail road, misjudged the distance of the light of the motor cycle from him. This can easily happen at night. In consequence he emerged when the motor cyclist was too close to allow him to cross safely; and too close to allow the motor cyclist to brake sufficiently or to take any otter avoiding action to prevent the collision.”
The Chief Justice clearly rejected the suggestion that the speed of the cyclist played any part in the second defendant's misjudging of the distance away of the cyclist, and observing that the manoeuvre of the car had placed the motor cyclist in a dire quandary as to what to do, he found “that the second defendant was wholly to blame for the collision and the ensuing injuries to the plaintiff.”
Before us the appellant argued that the Chief Justice had erred in not accepting the second defendant's version of the accident, and in not finding the first defendant, the motor cyclist, at fault, in taking avoiding action too late, and in taking the wrong avoiding action. With a pillion rider who had little or no experience he should have been move careful and should not have allowed himself to get into this situation. This seems to us to completely ignore the fact that it was the second defendant who created the situation, and that the position so created was well within the rule in The Bywell Castle (1879) 4 P.D. 219. (C.1.), or for that matter the situation in Brandon v. Osborn Garrett & Co. [1924] 1 K.B. 548
The appellant, the second defendant, had created by his negligence a position of extreme danger far the on-coming motor cyclist, and the latter was not to blame if in the agony of the moment he had not manoeuvred with perfect skill and presence of mind.
The apportionment of liability between two joint tortfeasors involves the same exercise as apportionment in cases of contributory negligence; it involves consideration of both causation and blame-worthiness. A...
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