Damion Green v Alicia Noteman
| Jurisdiction | Jamaica |
| Judge | Hutchinson, J |
| Judgment Date | 04 June 2021 |
| Neutral Citation | [2021] JMSC Civ 100 |
| Docket Number | CLAIM NO. 2014HCV00970 |
| Court | Supreme Court (Jamaica) |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2014HCV00970
CLAIM NO. 2015HCV06004
and
Lemar Neale and Shantel Green instructed by NeaLex for Damion Green as Claimant.
Suzette Burton-Campbell instructed by Burton, Campbell for Damion Green as Defendant.
Mr Monroe Wisdom instructed by Nunes, Schofield and DeLeon for Alicia Noteman.
Monique Thomas instructed by Bignall Law for Renardo Mundell.
Motor Vehicle accident — negligence — duty of care — res ipsa loquitur — contributory negligence — entering a major road from a minor road
This action is a consolidated claim which arose out of a collision between a Rav 4, owned and driven by the defendant Alicia Noteman, and a motorcycle owned and driven by the first claimant Mr Damion Green. Mr Mundell who is the Claimant in the action which was filed later in time had been the pillion rider on the motorcycle at the time of the collision. The incident occurred on the 1 st of November 2012 at the intersection of Port Henderson Road and Mt Royal Estate where Mrs Noteman was seeking to enter the main road from Mt Royal Estate in order to travel towards Bayside, while Mr Green was travelling in the outer section of the left lane heading in the direction.of Naggo Head.
Mrs Noteman subsequently filed a counterclaim and all 3 Claimants allege that the respective drivers so negligently managed and/or controlled their vehicles that they caused or contributed to the collision. As a result of the collision Messrs Green and Mundell sustained personal injury and suffered loss and damage. Mrs Noteman had no injuries but suffered loss and damage. The particulars of negligence of the defendants as well as the loss and damage suffered were set out in the particulars of claim and counterclaim and I do not propose to restate them here.
Mr Green provided a witness statement which was allowed to stand as his evidence in chief with some amplification, he stated that on the 1 st of November 2012 sometime after 6 pm he was riding his motorcycle along the Port Henderson road with his stepson Renardo Mundell as his pillion rider. He explained that he was travelling in the lane from Bayside heading towards Greater Portmore and the vehicles were travelling slowly but not bumper to bumper. There was no traffic in the lane heading in the opposite direction.
He was unable to provide the speed at which he was travelling but was certain that he had been travelling slowly because of the line of traffic. He said that he was riding beside a car in his lane when he saw the bright lights of a Coaster bus which was travelling quickly towards him. He then saw a van in front of the bus heading in the same direction. He recounted that the right front section of the van came across into his lane and collided with the front of his bike throwing him and his passenger to the ground.
Mr Green stated that the Coaster bus was not involved in the accident as the driver had swerved away from the van when it came out into his path. As a result of the collision, the entire front section of his bike was damaged and he also observed damage to the right headlamp of the van which he later learned was owned by Mrs Noteman. He suffered an injury to his leg for which he initially received stitches but had to return to the hospital where he was admitted for a month in order for the doctors to remove the stitches and excise dead flesh. He was referred for further care including exercise of the leg.
Mr Green was cross examined and agreed that he had been overtaking the vehicles in his lane, he denied however that he had still been overtaking when he arrived at the intersection. He initially denied that the Rav 4 had turned right to head in the direction of Bayside but later agreed that it had. He did not accept that the first time he saw the Rav 4 was when it was on Port Henderson road but contradicted this response by stating that this was correct. He insisted that the collision had occurred in his lane and denied the suggestion that his bike was moving at the relevant time. He insisted that he had been travelling close to the vehicles in his lane and refuted the suggestion that he had been using the other lane to overtake. He also denied that there had been a head on collision with the Rav 4 and that he had been speeding.
He was asked about the injury to his leg and stated that he still experienced pain in the winter months. A review of the medical report agreed revealed that he sustained soft tissue injury to chest and a large degloving wound to his right leg for which he had to be admitted to the hospital on two separate occasions. On the first occasion for one week and the second for a week and a half after which he received outpatient care. In his follow up comments, Dr Sangappa opined that he had shown fair recovery from his injuries.
Mr Green denied that it was because he had been riding faster than the other vehicles in his lane why he had been unable to stop and he said that the collision occurred within a minute of him seeing the bright light of the Rav 4. He accepted that while he was travelling alongside the line of vehicles he could not see clearly to his left but insisted that in any event he had slowed down as he approached the intersection. He said that the car to his left did not stop at the time of the collision but he was unable to say if it swung away. He denied that he had caused the accident by failing to stop, keep a proper lookout or exercise sufficient control over his motorcycle. He also denied that a truck had stopped and he had ridden into the path of the Rav 4.
Mr Mundell's statement was permitted to stand as his evidence in chief with minor editing. It revealed that at the time of the incident he was 13 years old and had been invited by his stepfather to accompany him on the road. He said that while they were heading home his stepfather was riding in his lane to the right of the vehicles heading towards Naggo Head. He also recounted that while they were passing the other vehicles, his stepfather was blowing his horn. On arriving at the intersection they were about to pass a truck, when he observed that it came to a sudden stop. He said the bike continued as it was unable to ‘safely’ stop and he felt an impact to the left side of the bike and everything went black. On regaining consciousness, he became aware of pain to his abdomen, chest, groin and head. He also observed that the vehicle which ‘hit’ them was a Rav 4.
He stated that he and his stepfather were transported by the police to the Spanish Town Hospital where he was treated. As a result of ongoing issues, he had to seek further treatment. He claimed that these issues are still unresolved as he continues to experience pain in his groin and is unable to run or play football. He also has to self-medicate as he experiences pain whenever it gets cold. The medical reports disclose that he sustained soft tissue injury to the scrotum. In his follow up comments, Dr Sangappa opined that he had shown fair recovery from his injuries.
He was cross examined and conceded that his view directly in front of him would have been blocked by his stepfather. He agreed that at the intersection a truck was at the head of the traffic and his stepfather had been about to pass it when it came to a stop just before the accident. He accepted that at the time the truck stopped the bike was still moving. He denied however that the bike had been travelling in the lane for vehicles headng in the opposite direction. Mr Mundell acknowledged that he did not see the Rav 4 before the collision and the first time that he saw it was when he got up off the ground. He was unable to say if the bike had been overtaking at the time of the collision and he did not agree with the suggestion that the bike had been going fast at the time of the collision. He also did not agree with the suggestion that by mid-January 2013 he was no longer feeling any pain in his groin.
In her written account, Mrs Noteman outlined that at about 6:40 p.m. that evening she left her home to travel to work in Kingston driving her 2006 blue Toyota Rav4 motorcar registered 3344 GB. Upon reaching the intersection of Congreve Park and Port Henderson Road, she came to a complete stop as there was slow moving bumper to bumper traffic travelling from the direction of Bayside towards Naggo Head along the Port Henderson Road. She stated that there was little to no traffic travelling from the direction of Naggo Head towards Bayside. Her headlights were on and her right indicator was flashing signalling her intention to turn towards Bayside and take the toll into Kingston.
She said that she waited for a minute at the intersection to enter Port Henderson Road when a truck, which was at the head of the line of traffic travelling towards Naggo Head, stopped and the driver gave her clearance to exit. The vehicles in the line of traffic behind the truck also came to a stop. She then proceeded into the lane and stopped to ensure that there were no vehicles travelling from the direction of Naggo Head towards Bayside before making the right turn. She recounted looking to her left and right and upon seeing that the road was clear, she proceeded to make a right turn in the direction of Bayside. Immediately after she completed the turn and straightened her vehicle in the lane she saw an object flying towards her and she came to a complete stop and held her steering. She then felt an impact to the front right section of her car and realised that the object was a motorcycle and the rider had been flung onto the bonnet and windshield of her car.
Mrs...
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