Dayes (Roger Ian) v A Chong, Achong Ltd, Basil James, BJ Construction and Basil James Construction and Plumbing Services Ltd and National Water Commission
| Jurisdiction | Jamaica |
| Judge | PITTER J. |
| Judgment Date | 08 October 1999 |
| Judgment citation (vLex) | [1999] 10 JJC 0802 |
| Court | Supreme Court (Jamaica) |
| Date | 08 October 1999 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
NEGLIGENCE - Motor vehicle accident - Presence of mound/manhole - Whether defendants failed to provide adequate warning of same - Damages
On the early morning of the 14th January, 1995, at approximately 1:00 o'clock, Roger Ian Dayes the plaintiff was driving his Suzuki Vitara motor vehicle along Musgrave Avenue in the parish of St. Andrew when he was involved in an accident which resulted in serious bodily injury to him and extensive damage to the vehicle. It is the plaintiff's case that at the intersection of Musgrave Avenue and Comlin Bank Road there was a large hole which had been dug in the roadway with a high mound of earth alongside it and a trench cut across the road. That the said hole and mound of earth constituted a major obstruction of passage along the roadway, occupying most of the surface of the road and blocking all of the plaintiff's path on the left hand side of the road, causing the plaintiff to swerve and avoid entering the hole or hitting the mound of earth and forcing the plaintiff's car to hit the trench running across the road and from there to collide into a telephone pole on the bank of the right hand side of the road. In swerving to avoid the mound of earth and hitting the open trench, he was thrown from his seat and he lost control of the vehicle. He says that there were no lights in the area except those of his car and at the time he was travelling at approximately 30 miles per hour.
The plaintiff's claim is that the first defendant at all material times was an officer and servant or agent of the second defendant which was at the time a company of consulting engineers. The third defendant at all material times was the servant or agent of the first and or second defendant and or the fifth defendant and or the sixth defendant.
Alternatively, at all material times the fifth defendant was the servant and agent of the first and or second defendant and or the third defendant, and or the sixth defendant.
The sixth defendant is a Statutory Company.
It is the further claim of the plaintiff that the said hole, mound of earth and trench were part of pipe-laying and road works activity being carried out by and under the supervision of the first, second, third, fifth and sixth defendants and or their servants or agents the first, third, and fifth defendants (as the case may be) who they had employed to assist in providing manual labour for carrying out the works and laying the pipes or who did so under their supervision.
The first and second defendants deny the claim and deny that the third and fifth defendants were their servants and/or agents. They also deny that the pipe-laying and road works were being carried out by them or under their supervision and deny that they were responsible for the digging of the hole, the mound of earth and the trench. It is the case of the first and second defendants that at all material times the second defendant had been engaged as a consultant for the design and implementation of the sewerage system in a housing development at Musgrave Avenue and Comlin Road and that the second defendant applied to the sixth defendant for a sewer connection to the sixth defendant's sewer main for the said housing development and which was approved by the sixth defendant who agreed to undertake the responsibility of designing and constructing the sewer trench in question.
They deny the claim for negligence and say that at all material times the work was being carried out by the third and or fifth defendants who were themselves independent contractors subject to and under the supervisor of the sixth defendant. They also filed notice of indemnity against the other defendants.
The third, & fifth defendants also deny the plaintiff's claim. They deny that there was any mound or hole or trench left in the road or at all ; that earlier in the day a trench was dug but it was later backfilled and levelled off leaving no obstruction in the road. They say that excavation work was done under the supervision of the first, and second defendants. It is their case that the injuries occasioned by the accident, loss and damage suffered by the plaintiff were solely caused or contributed to by the plaintiff's own negligence.
The sixth defendant denies that any of the third, or fifth defendants were its servants or agent . It also denies that the pipe - laying works and roads and works activities were carried out under their supervision; or done by any of its servants or agents but that this was carried out by the first, second and fifth defendants. The sixth defendant in its defence, claims that the first defendant, acting as the servant and/or agent of the second defendant, contracted the third defendant to connect a sewer main to the said location and that its actual role as regards the said connection was limited to the examination of the laying of the sewer mains and the building of the manholes to ensure that such works were undertaken to its specifications.
It is the further defence of the 6th defendant that the loss and damage suffered by the plaintiff was caused or contributed to by the negligence of the plaintiff, the fist, second and third defendants or any one or more of them. The sixth defendant has also filed notice to the co-defendants claiming indemnity.
The Evidence
The plaintiff's evidence is that he owns two businesses in auto parts. One is located in Florida U.S.A. and the other, Daytona Sales Limited at 7D Marescaux Road, Kingston and that he is the majority shareholder to both businesses. He testified that on the 14th January, 1995 at about 1:00 a.m. he was driving his Suzuki Vitara motor vehicle along Musgrave Avenue in the parish of St. Andrew when he suddenly saw a mound of earth in the middle of the road, that he braked and swerved left, hit an open trench, was thrown out of his seat, he lost control of the car which went to the other side of the road and ended up in a lightpole some 100 feet from the mound. As a result he suffered serious bodily injury requiring hospitalisation, both here and in the U.S.A. The car was a total write off. He said he was travelling at 30 miles per hour, that there was no lighting on the roadway except for the lights coming from his motor car. There were no warning signs. The open trench which ran into the mound area is an unpaved area below the level of the road.
He was taken to the University of the West Indies Hospital where he spent a month in the Tony Thwaites Wing of the hospital. As a result of the accident, he suffered abrasions, to the right foot, cuts to the face and scalp and a broken hip. The femur was driven through the socket of the hip. He also suffered fractured ribs and the injuries were associated with severe pains. He underwent surgery to reinforce the broken socket, which was pinned and his right leg placed in traction. He left the hospital and went by air ambulance to St. Petersburg, Florida where he had further treatment. He again underwent surgery and received an artifical replacement hip - there he spent a further nine days in hospital and rehabs centres. He stayed at home recuperating approximately three - four months. In all he spent about six months between hospitals and home.
He incurred medical expenses. Most of it was met in the U.S.A. by Cigma Insurance Company amounting to U.S$ 23974. Cost of psychotheraphy in Jamaica $21,000 and in the US.A. over $500. The plaintiff's medical prognosis is that he will require another hip replacement soon and he anticipates another three replacements during his lifetime costing an average of U.S. $30,000 each. One replacement lasts ten - fifteen years. Medical expenses were supported by documentary evidence including bills and receipts. The cost of air ambulance service amounted to U.S. $5 ,500 which was paid by the insurers. Cigma Health Insurance paid out a total of U.S. $23,400.
The Vitara motor vehicle was damaged and had to be written off in the sum of $475,000.00, its pre-accident value being $700,000.00. A car was rented in its place costing $23,114.36 which was used by his wife to visit him. Taxi service amounted to $10,000.
It is his evidence that his future earnings would be seriously affected. He is unable to attend auto trade shows for any length of time because of the pains experienced. These shows allow him to be kept abreast of current events in the motor trade. He is also prevented from galvanishing customer relationship with social relationship as his working day is usually terminated because of pain. He currently does a full days work in his business but with much discomfort because it is difficult to sit for prolonged hours as his business is a warehouse and it is necessary to walk the premises. He thinks he has a substantial working life ahead of him be being 53 years of age. He estimates his loss of future earnings to be $1.2M at a rate of $100,000 per annum over a period of twelve years.
He further testified that the injuries caused pains which preoccupy his existence. Not a day goes by, and recently, an hour, that he does not feel pains. Such is the pain that it saps his energy and interest in life. He feels pains mostly in his hip, leg, calf and bottom. When he moves the pains are excruciating, and intermittent when he sits on hard surfaces, it is painful due to lack of muscle fat on his bottom because of atrophy associated with the accident. It is difficult and uncomfortable to sit in cars with bucket...
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