Danielle Archer v Jamaica Infrastructure Operator Ltd

• Jurisdiction: Jamaica
• Judge: David Batts Q. C.
• Judgment Date: 31 May 2013
• Neutral Citation: [2013] JMSC CIVIL 76
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2010 HCV 02388
• Date: 31 May 2013

[2013] JMSC CIVIL 76

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Coram:

Justice David Batts QC

CLAIM NO. 2010 HCV 02388

Between:

Danielle Archer

Claimant

and

Jamaica Infrastructure Operator Limited

Defendant

Sean Kinghorn instructed by Messrs. Kinghorn & Kinghorn for the Claimant

Maurice Manning , Camille Wignall and Michelle Reid instructed by Nunes Scholefield Deleon & Co. for Defendant

Occupiers Liability Act — Negligence — Toll Road — Animals Crossing — Collision with motor car — Whether Toll Road Operators in breach of duty — Damages

1 Counsel for the Claimant in his opening submissions described this as a “simple matter.” He opened to the facts stating that at 8:00 p.m. on the — ^th day of April, 2010 the Claimant was driving along Highway 2000 in that portion of it that is located in the vicinity of Old Harbour. She was heading towards the Vineyard Toll Plaza. Suddenly a herd of goats appeared. In such circumstances and despite her best efforts the Claimant's motor vehicle collided with the goats. Counsel further submitted that by allowing goats to be on the highway the operators of the highway were in breach of a duty of care owed to his client in that:

• a) The road was not properly lit

• b) There was no warning given about the presence or possible presence of goats on the road.

• c) Goats ought not to have been on the road

2 The claim as filed relied upon

The Particulars of Claim dated — ^th May 2010 list the following Particulars of Negligence –

• a) Breach of the Occupiers Liability Act

• b) Negligence

• c) Breach of Contract

• i) Causing or allowing the said herd of goats to come unto the said Highway.

• ii) Causing or allowing the said herd of goats to collide with the Claimant as she drove along the said Highway.

• iii) Failing to take reasonable steps to prevent the said herd of goats coming unto the said Highway.

• iv) Leaving the said herd of goats along the said Highway unattended and unrestricted

• v) Suffering the said goats to remain upon the highway

• vi) Allowing the said goats to remain upon the highway

• vii) Failing to take reasonable care to prevent loss, damage and injury to the Claimant in her lawful use of the said Highway.

• viii) Failing to detect the presence of the said goats along the said Highway

• ix) Failing to take reasonable care to institute and maintain an efficient and effective patrol system (whether mobile electronic or otherwise) that would detect the presence of the said goats along the said Highway.

• x) Maintaining and controlling the said Highway in such a manner that the said herd of goats were able to come unto the said Highway, remain there undetected and consequently cause a collision with the Claimant's motor vehicle.

• xi) Causing the Claimant to collide with the said goats or vice versa.

3 The particulars of Breach of Occupiers Liability Act are as follows:

• (i) [The Claimant repeats the Particulars of Negligence set out in paragraph 5 above].

• (ii) Failing to provide any lighting along the particular area of the said Highway 2000 where the Claimant collided with the said goats.

• (iii) Failing to provide adequate and/or sufficient and/or proper lighting along the particular area of the said Highway 2000 where the Claimant collided with the said goats.

• (iv) Maintaining the particular area of the said Highway 2000 where the collision occurred in a dark, dangerous and unsafe condition.

• (v) Failing to erect signs or give any notice or adequate notice or warning that the particular area of the said Highway was dark, dangerous and unsafe.

• (vi) Failing to warn the Claimant, whether by the use of conspicuous signs or otherwise, of the potential for goats or other animals along the said Highway.

• (vii) Failing to warn the Claimant, whether by the use of conspicuous signs or otherwise, of the potential for goats or other animals to be present along the said Highway.

• (viii) Constructing or maintaining the said Highway in an unsafe, dangerous and defective manner so as to allow animals to access the said Highway.

• (ix) Instructing and advising the Claimant that she was able to travel at a speed not exceeding 110 kmh along the said Highway when such a speed limit was manifestly unsafe in the circumstances having regard to the presence of animals along the said Highway.

• (x) Instituting, maintaining a speed limit along the said Highway which was manifestly dangerous and unsafe in the circumstances.

• (xi) Failing to warn the said Claimant who was an invitee of the Defendant in the using of the Highway 2000 of the dangers of the said Highway.

• (xii) Failing to take such care as in all the circumstances was reasonable to see that the Claimant would be reasonably safe in using the said Highway 2000 for the purposes for which she was invited or permitted by the Defendant to be on the said Highway.

4 Paragraphs 7 to 9 in the Particulars of Claim are as follows:

• “7- Further, or in the further alternative, the Claimant claims against the Defendant for Breach of Contract. On or about the — ^th day of April 2010, the Claimant entered into an Agreement with the Defendant whereby it was agreed that in consideration of the Claimant paying a Toll to the Defendant, the Claimant would be permitted to drive on the said highway 2000 in the parish of St. Catherine.

• 8- It was an implied term of the said Agreement that the said Highway would be managed, controlled and maintained by the Defendant in such a manner that the Claimant would not be exposed to unnecessary and foreseeable risks of injury and danger.

• 9- In breach of the said Agreement the Defendant have failed and/or refused to take reasonable care to control, maintain and manage the said Highway in such a manner so as not to expose the Claimant to unnecessary and unforeseeable risks of injury and/or danger. In particular, on or about the — ^th day of April, 2010 as the Claimant drove her motor vehicle registration number 2685 FD along the said Highway 2000, the Defendant caused and/or permitted the Claimant to collide with a herd of goats which were left unattended and unrestricted along the Highway 2000 by the Defendant.

5 By way of Defence filed on the 24 ^th June 2010 the Defendant stated, in paragraph 3 that on or about the 11 ^th April, 2010 it received a report that the Claimant had a collision with a herd of goats while driving along the Highway 2000 in the vicinity of the Vineyard Toll Plaza, but stated,

“The Defendant neither admits nor denies the allegations made therein as it does not know if they are true and will require the Claimant to provide strict proof thereof.”

6 The Defence denied negligence, breach of the Occupiers Liability Act and breach of contract. The Defendant averred that the responsibility was to take reasonable steps to prevent loss damage or injury to the motorists using the highway. They allege that the following constituted such reasonable steps:

• a) the installation of lattice grills at entry and exit ramps

• b) the erection of fences along the entire corridor of the highway

• c) regular patrols by safety officers along the highway corridor to remove obstacles, living or inanimate that may pose a safety risk

• d) erection of signs along the highway clearly indicating that no animals are allowed on the highway

7 The Defendant alleged that motorists are advised to drive at a speed within the speed limit at which they are able to manage operate control and/or manoeuvre their vehicle for the safety of themselves and other motorists. It was alleged also that the Claimant caused or contributed to the alleged collision in that she:

• a. Drove at an excessive speed.

• b. Drove at a speed which was dangerous and manifestly unsafe in the circumstances.

• c. Failed to have any or any proper lookout

• d. Failed to have any regard for her safety and other motorist while using the highway.

• e. Failed to acknowledge that she should drive on the roadway at a safe speed in order to take evasive action, if necessary.

• f. Failed to manage, operate, control and/or manoeuvre the said motor vehicle so as to avoid the alleged collision.

• g. Failed to maintain an appropriate or reasonable speed that would allow her to avoid the alleged collision especially in these circumstances.

• h. Failed to stop, swerve, brake and/or slow down so as to avoid the said collision.

• i. Causing her motor vehicle to collide with the alleged herd of goats.

8 The Defendant although admitting that the Claimant paid a toll and was permitted to drive on Highway 2000 required the Claimant to prove that there was an agreement between the parties and the terms of the agreement if any.

9 At commencement the Defendant indicated agreement with the medical reports of Dr. Clifton Reid and these were tendered and admitted by Consent as Exhibit 1(a) Report dated — ^th May 2010 and Exhibit 1(b) Corrected Report dated — ^th May 2010.

10 The Claimants' attorney indicated that his first witness would be Everton Thorpe, the person who filmed certain video footage. Defendant's counsel objected on the basis that:

Claimant's counsel responded by saying that the Claimant's witness statement had referred to the video footage and that the only reason for calling Mr. Thompson was to satisfy the Notice of Objection to the footage going into evidence. The video footage had been disclosed and served upon the Defendants. The Defendant's counsel then submitted that the Claimant should give her evidence before the video/footage.

• a) No witness statement had been served

• b) There was no evidence the video footage was contemporaneous

• c) A notice of objection had been filed.

11 I ruled that the videographer would be allowed to give evidence to put in evidence the video. In the first place the video...