Coleman v Macdonald

• Jurisdiction: Jamaica
• Judge: (Robinson, P., Kerr and Carberry, JJ.A.)
• Judgment Date: 24 September 1979
• Court: Court of Appeal (Jamaica)
• Date: 24 September 1979

Court of Appeal of Jamaica

(Robinson, P., Kerr and Carberry, JJ.A.)

COLEMAN

and

MacDONALD and SMYTH

L. Sanguinetti and Miss J. Webb for the appellant-second defendant;

J.D. MacDonald for the first respondent-defendant;

R.D. Alberga, Q.C. for the second respondent-plaintiff.

Cases cited:

(1) Allen v. Waters & Co., [1935] 1 K.B. 200; (1934), 104 L.J.K.B. 249.

(2) Att. Gen. v. Valle-Jones, [1935] 2 K.B. 209; [1935] All E.R. Rep. 175.

(3) Att.-Gen. (N.S. Wales) v. Perpetual Trustee Co. Ltd., [1955] A.C. 457; [1955] 1 All E.R. 846.

(4) Bradburn v. Great W. Ry. Co.ELR(1874), L.R. 10 Ex. 1; [187480] All E.R. Rep. 195, dicta of Pigott, B. applied.

(5) Brandon v. Osborn Garrett & Co. Ltd., [1924] 1 K.B. 548; [1924] All E.R. Rep. 703.

(6) Brown v. Thompson, [1968] 1 W.L.R. 1003; [1968] 2 All E.R. 708.

(7) Browning v. War Office, [1963] 1 Q.B. 750; [1962] 3 All E.R. 1089; [1962] 2 Lloyds Rep. 363, observations of Diplock, L.J. applied.

(8) Bywell Castle, TheELR(1879), 4 P.D. 219; [187480] All E.R. Rep. 819.

(9) Cunningham v. Harrison, [1973] 3 All E.R. 463, dicta of Lord Denning, M.R. applied.

(10) Dennis v. London Passenger Transp. Bd., [1948] 2 All E.R. 779; (1948), 64 T.L.R. 269, observations of Denning J. applied.

(11) Donnelly v. Joyce, [1974] Q.B. 454; [1973] 3 All E.R. 475, applied.

(12) Gage v. King, [1961] 1 Q.B. 188; [1960] 3 All E.R. 62, observations of Diplock J. applied.

(13) Graham v. BakerUNK(1961), 106 C.L.R. 340.

(14) Haggar v. de Placido, [1972] 1 W.L.R. 716; [1972] 2 All E.R. 1029.

(15) Hay v. Hughes, [1975] Q.B. 790; [1975] 1 All E.R. 257; [1975] 1 Lloyds Rep. 12.

(16) Inland Rev. Commrs. v. Hambrook, [1956] 2 Q.B. 641; [1956] 1 All E.R. 807; on appeal, [1956] 3 All E.R. 338.

(17) Janney v. Gentry(1966), 110 Sol. Jo. 408.

(18) Jones v. GleesonUNK(1965), 39 A.L.J.R. 258.

(19) Liffen v. Watson, [1940] 1 K.B. 556; [1940] 2 All E.R. 213.

(20) Miraflores (Owners) v. George Livanos (Owners), [1967] 1 A.C. 826; [1967] 1 All E.R. 672; [1967] 1 Lloyds Rep. 191.

(21) Myers & Guelph v. HoffmanUNK(1955), 1 D.L.R. (2d) 272.

(22) National Ins. Co. of N.Z. Ltd. v. EspagneUNK(1961), 105 C.L.R. 569, dicta of Windeyer J. applied.

(23) Paff v. SpeedUNK(1961), 105 C.L.R. 549.

(24) Parry v. Cleaver, [1970] A.C. 1; [1969] 1 All E.R. 555; [1969] 1 Lloyds Rep. 183, dicta and observations of Lords Reid, Morris and Pearson applied.

(25) Parsons v. B.N.M. Labs. Ltd., [1964] 1 Q.B. 95; [1963] 2 All E.R. 658.

(26) Payne v. Railway Exec., [1952] 1 K.B. 26; [1951] 2 All E.R. 910.

(27) Quintas v. National Smelting Co. Ltd., [1961] 1 W.L.R. 401; [1961] 1 All E.R. 630.

(28) Redpath v. Belfast & County Down Ry., [1947] N.I. 167.

(29) Schneider v. Eisovitch, [1960] 2 Q.B. 430; [1960] 1 All E.R. 169, dicta of Paull J. applied.

(30) Turner v. Ministry of Defence(1969), 113 Sol. Jo. 585.

(31) Wattson v. Port of London Auth., [1969] 1 Lloyds Rep. 95.

(32) Winkworth v. Hubbard, [1960] 1 Lloyds Rep. 150, dicta of Streatfeild J. applied.

Tort-joint tortfeasors-contribution-emergency action-first tortfeasor solely liable if negligence causes situation of extreme danger for second tortfeasor-second tortfeasor not liable if emergency action not then taken with perfect skill

Tort-personal injuries-damages-insurance moneys-defendants liability to meet plaintiffs medical expenses not affected by payment of expenses under health insurance-partial payment of premiums by plaintiffs employer irrelevant-plaintiffs obligation to repay insurer out of damages irrelevant

Tort-personal injuries-damages-voluntary benefits conferred on plaintiff-defendants liability to make good real loss caused to plaintiff not reduced by voluntary benefits (e.g. pensions, charitable benefactions) received by plaintiff-applicable irrespective of plaintiffs legal or moral obligation to make repayment

The second respondent (the plaintiff) brought an action in the Grand Court to recover damages from the first respondent and the appellant (the first and second defendants respectively) in respect of personal injuries she sustained in a road accident caused by their negligence.

The plaintiff was the pillion passenger on a motor-cycle driven by the first defendant. The motor-cycle was struck by a car driven by the second defendant which entered the main road in the path of the oncoming motor-cycle, causing it to take unsuccessful evasive action. The plaintiff was thrown from the motor-cycle and broke both legs. She had to undergo several operations involving extensive hospital care, which left her with extensive scarring and a slight residual disability. The plaintiffs medical insurance, to which she contributed one-third of the premiums and her employer two-thirds, met all her medical expenses but she was contractually bound to repay the insurers outlay if she recovered damages from the tortfeasor in respect of medical expenses.

The Grand Court (Summerfield, C.J.) found the second defendant alone responsible for the collision and awarded the plaintiff general damages and special damages to cover her medical expenses, the quantum of which was not disputed.

The second defendant appealed against (a) the finding that he was alone responsible for the accident, claiming that the evidence showed

that the first defendant was partly or wholly responsible; and (b) the award of special damages, claiming that the medical expenses were not in the circumstances recoverable as the plaintiff had not paid them herself or, alternatively, even if her payment of insurance premiums could be counted in her favour, she had contributed only one-third of the cost of the cover and could therefore recover only one-third of the expenses.

Held, dismissing the appeal:

(1) An appellate court would not lightly interfere with the trial judges apportionment of liability between joint tortfeasors or in cases of contributory negligence unless he had clearly made an error of law or fact. In the present case the Grand Court had correctly held that the second defendant had by his negligence created a situation of extreme danger for the first defendant, who was not to blame if in the agony of the moment he had not acted with perfect skill and presence of mind. The second defendants liability for causing the action and the injuries to the plaintiff had accordingly been clearly established and he became liable for all the reasonable medical expenses she had incurred (page 392, line 31 page 393, line 9).

(2) The fact that the plaintiffs medical expenses had been initially met from accident insurance she had taken out-even though it had been jointly paid for by her and her employer-did not in any way reduce the second defendants liability to pay them. The plaintiff had received the insurance payment because of her contract with the insurer and it was the intention that she should enjoy this benefit irrespective of any right of action she might have against a tortfeasor. In fact, she was contractually liable to repay the insurer if she recovered damages in respect of her medical expenses but this did not affect the second defendants liability to meet her claim for damages in the first place, since it would have been possible for the insurer to recover directly from the second defendant by way of subrogation. Similarly, although the plaintiff here had only contributed one-third of the premiums, it was not open to the second defendant to argue that his liability should be limited to one-third of the medical expenses (page 398, line 33 page 399, line 20).

(3) The recovery of the medical expenses from the second defendant could also be justified on the general principle that he had a liability to make good the real loss he had caused to the plaintiff, which included losses incurred by third parties in meeting the plaintiffs needs. Hence, even voluntary payments made to a plaintiff, such as payments under ordinary or disability pension schemes, or by public or private benefaction, would not reduce a defendants liability, if they were made by way of bounty, with the intention that he should enjoy them in addition to any claim he might have for damages, and irrespective of his legal or moral

obligation to make repayment (page 402, line 11 page 404, line 23; page 405, lines 433).

CARBERRY, J.A.: This was an appeal from the judgment of
15	Summerfield, C.J. in a negligence action heard before him in the
Grand Court on May 3rd, 4th and 5th, 1978. The judgment was
delivered on June 28th, 1978; 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
20	blame for the accident that resulted in the plaintiffs injuries.
The plaintiff was awarded by way of damages the sum of
CI$10,500 (agreed general damages) and the equivalent in Cay-
manian dollars of CDN$9,365.14 (special damages: medical
expenses). The second defendant appealed from the finding that
25	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 in the circumstances
of this case recoverable. We dismissed the appeal on both liability
30	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 the Holiday Inn on the night of August 3rd, 1974. The hotel lies
on the western side of the main road that runs from George Town
35	to West Bay. The road is asphalted, level and some 3233 ft. 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 at the Royal Bank of Canada, was at that time
resident in Grand Cayman and employed in the George Town
40	branch of that bank. On the evening in

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