Deon Carter v Alford Alexander Junor

• Jurisdiction: Jamaica
• Judge: Mott Tulloch-Reid, J
• Judgment Date: 02 October 2023
• Court: Supreme Court (Jamaica)
• Year: 2023
• Docket Number: CLAIM NO. SU 2021 CV 00423

BETWEEN

Deon Carter

Claimant

and

Alford Alexander Junor

Defendant

[2023] JMSC Civ. 200

CLAIM NO. SU 2021 CV 00423

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

Trial — The Rode Code — motor vehicle accident — turning from major road on to minor road — duty of care of drivers and pedestrians — contributory negligence — apportionment of liability — fracture to both arms — quantum of damages

Mr. Mark Wallen, Attorney-at-law for the Claimant

Ms. Sherica Taylor instructed by Bertram Anderson, Attorney-at-Law for the Defendant

IN OPEN COURT

Mott Tulloch-Reid, J

BACKGROUND

1 Ms Carter was injured on April 13, 2016, when she was hit by the Defendant's motor vehicle as he turned from Lyssons Main Road in the parish of St Thomas on to Nutts River Road, the road on which Ms Carter was walking.

EVIDENCE

2 Ms Carter's evidence is that she was walking along Nutts River Road on the left-hand side. She was intending to cross from Nutts River Road on to Lyssons Main Road as she was on her way to Morant Bay. A truck passed her as she walked on Nutts River Road and came to a stop some 4ft from the intersection of Nutts River Road and Lyssons Main Road. It had positioned itself to turn left on to Retreat Road. The motor truck having stopped, Ms Carter walked from behind it and stood by the right window near to the front of the truck facing Lyssons Main Road. Her left shoulder was pointing towards the truck's window and her right shoulder was pointing towards the other side of Nutts River Road. As she stood by the truck waiting, the Defendant drove his vehicle on to Nutts River Road and hit Ms Carter on her left side. Ms Carter was flung to the other side of the roadway. She fell on the roadway and was injured. The truck was not damaged.

3 Ms Carter confirmed in cross-examination that there were no sidewalks on the roadway and that she could not have continued on the left side of the truck as it was in the corner. She said it was safer for her to go on the right side of the truck and was in the middle of Nutts River Road. By doing so, she would have been able to see Lysson's Main Road to her right. She could not see to her left as the truck was blocking her.

4 Mr Junor's account is different. He says he was travelling on Lyssons Main Road coming from the direction of Retreat. He stopped at the intersection of Lyssons Main Road and Nutts River Road, put on his right indicator, waited for the way to be clear and when it was, proceeded on to Nutts River Road. As he drove on to Nutts River Road, the Claimant suddenly appeared from behind a motor truck which had stopped at a stop sign, positioned to turn left on to Lyssons Main Road. Because Ms Carter came suddenly from behind the truck, he was not able to stop his motor vehicle in time and it collided into her left side. Ms Carter fell to the ground just where she was struck by the motor vehicle. Mr Junor's evidence is that Ms Carter was on his side of the road when she was struck and that she was not facing Lyssons Main Road, but rather was facing the other side of Nutts River as she emerged from behind the stationary truck.

ANALYSIS

5 Ms Carter was certain in her evidence that she was struck on her left side. She was standing close to the truck on the left side of the roadway. Based on Ms Carter's account, she could not have been struck on her left side if the accident occurred as she has indicated. If she was facing Lyssons Main Road, she would have had to be struck from the front or at least on her right side. Mr Junor's version of how the accident occurred is more agreeable to me. In order to be struck on her left side, Ms Carter could only be facing the other side of Nutts River Road and that would be possible if she were coming from behind the stationary truck.

6 That is not to say that Mr Junor's version is 100% believable. His evidence is that the road is at first wide so that it can accommodate three vehicles easily and then narrows so that it can accommodate two vehicles comfortably. He says he was in his lane and denied breaching the lane in which the truck was. He said the front right side of his bus hit Ms Carter. If the road is wide enough to accommodate two vehicles comfortably and he was properly positioned in his lane, it is not likely that if the Claimant suddenly emerged from behind a stationary truck that he would have struck her on her left side. I am of the view that Mr Junor cut the corner when he entered Nutts River Road from Lyssons Main Road, and in doing so hit Ms Carter as she emerged from behind the stationary motor vehicle.

Conclusion on the issue of liability

7 Both parties are liable for the accident. The question is to what extent is each blameworthy. Both the motorist and the pedestrian have a duty of care to use the roadway safely so as to prevent harm to themselves or others.

8 Ms Carter, as a pedestrian is required to take care to use sidewalks when they are provided. Ms Taylor submits that MS Carter should have been walking on the road facing the traffic. I agree with Ms Taylor. If the Claimant had done so, she would have been seen by the Defendant as she would have been on the right side of the road. Instead, she was walking on the left side and puts herself in the middle of the road as that was, in her words, safer. I cannot see how walking in the middle of the road or on the roadway is safer than keeping to the left.

9 In my opinion, the Claimant ought to have stayed on the left in the corner until the truck had passed and then continued on her way or better yet, she should have been walking on the right side of the roadway as that side of the road would have also taken her to the point at which she could cross on to Lyssons Main Road. By standing by the truck's window, she would also have put herself in danger of being injured by the truck itself. Another thing to note is that in instances such as that, if there was no alternative but to go on the outside of the truck, the best thing to have done was to go around as quickly as possible and get back on the left side of the road. The Claimant did not do that. Instead, she went around the truck and stood at the truck's window, waiting to cross. I do not believe that the Claimant was as careful as she could have been in the situation and find that she is also to be blamed for her misfortune.

THE LAW

10 Mr Wallen relies on the case of Melvin McCurdy v George Campbell and anor [2014] JMSC Civ 5. In that case the claimant had to go around a motor truck which was parked partially on the roadway. While in the process of doing so, he was struck from behind by the defendant who was driving a motor car. The Court held at paragraph 17 of the judgment that:

“ In the instant case, the first Defendant ought to have been cautious in passing the parked truck as it had encroached upon the highway. He ought to have borne in mind the probability of pedestrians being inconvenienced by the truck and accordingly to have paid due regard and attention to that probability by slowing down or honking his horn or swerving to avoid hitting such a pedestrian.”

11 I will say at the outset that the circumstances are somewhat different. In the McCurdy case the claimant was struck from behind, so the defendant had a defendant to notify the claimant of his approach on the roadway. In the case before me, the truck was not parked, it was stationary for the purpose of exiting on to Nutts River Road to turn left towards Retreat Road. That is the evidence. In my opinion, a greater duty is owed when vehicles are parked on the roadway thus forcing pedestrians to go around them, as against vehicle stationary for a short moment to make a turn. There would be a greater duty of care to expect pedestrians to go around a parked vehicle than one that is only stationary for a short time. There would be a lesser expectation for someone to appear suddenly from behind a temporarily stationary vehicle than from behind a parked one.

12 Ms Taylor relied on the case of Robert Franklin v Everton Walters and anor [2021] JMSC Civ 36. This is a decision of Hart-Hines J (Ag) as she then was which was useful in setting out the law governing the use of the roadway by motorists and pedestrians. Section 32(1) of the Road Traffic Act makes it an offence for a motorist to drive a motor vehicle without taking care and being attentive on the roadway and without reasonably considering other road users. Section 51(2) of the Act provides that a motorist must take any action which is necessary to avoid an accident. Pursuant to S95 of the Act, the Island Traffic Authority is permitted to give directions as to how motorists and pedestrians alike are to use the roadway. The Road Code is one such directive.

13 Paragraph 27 of the decision of Justice Hart-Hines sets out the standard of care which is expected of drivers on the roadways. These include:

• a. driving with due care, attention and concentration;

• b. keeping a proper lookout for other road users, including pedestrians emerging suddenly...