DeSouza, Donovan v CB Duncan & Associates Ltd et Al
| Jurisdiction | Jamaica |
| Judge | Sykes J (Ag) |
| Judgment Date | 18 June 2004 |
| Judgment citation (vLex) | [2004] 6 JJC 1802 |
| Court | Supreme Court (Jamaica) |
| Date | 18 June 2004 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
DAMAGES - Motor vehicle accident - Personal injury - Pain and suffering - Loss of amenity - Loss of earning capacity - Loss of future earnings - Special damages
NEGLIGENCE - Motor vehicle accident - Liability - Whether spot where accident occurred was properly lit - Whether van was driven by second defendant with due care and attention - Assessment of damages
PERSONAL INJURY
THE ACCIDENT
On the night of December 16, 1993, along a straight stretch of the Old Harbour Main Road, the truck driven by Mr. Rohan Roberts (third defendant), stopped under a street light. Messieurs Roberts and Rose (the handy man and witness for the fourth defendant) were hunched over the engine of the truck when their concentration was interrupted by a bang that came from the rear of the truck. They went to investigate. They saw a van. The van had hit the right rear wheel of the truck. The truck had reflectors and had on its park lights. All this is based upon the testimony of Mssrs. Roberts and Rose.
The following facts were agreed by all the parties:
(a) Mr. Victor Whyne (the second defendant) was the driver of the van;
(b) Mr. DeSouza (the claimant) was a passenger in the van;
(c) CB Duncan and Associates Ltd. (the first defendant) owned the van and Mr. Whyne was their servant and/or agent at the time of the accident;
(d) Mr. Anthony Roberts (the original third defendant) has since died.
The first and second defendants did not call anyone to testify on their behalf. Neither Mr. Whyne nor anyone who was in the van, other than Mr. DeSouza, can now be found.
Mr. DeSouza, the claimant, cannot explain how the accident occurred. This is not surprising. He was in the rear of the van. The van was traveling in the direction of Old Harbour. His back was to the cab. He was facing the rear of the van. He said that he heard squealing brakes and then felt the impact. He also said that the scene of the accident was dark. He further added that he was aided by "the other car light (sic)" in seeing that his right hand was injured. This suggests that the area where the accident took place was not lit by any street light as alleged by Mr. Roberts and his witness.
WAS THERE LIGHT?
Mr. DeSouza's evidence about the light is unclear. Mr. DeSouza stated, in his evidence dealing with the street light, that:
(a) the spot where the accident took place was dark and not properly lit;
(b) he could not say if there was a street light at the scene;
(c) he does not recall where the accident took place. He could not pin point the spot.
This evidence is not necessarily inconsistent with the testimony of Roberts and Rose who say that there was a street light there. Given Mr. DeSouza's inability to say definitively whether there was a street light and his express evidence that he does not recall where the accident took place, I have had to resolve this question by looking at other evidence. This evidence comes from Roberts and Rose, the only other witnesses who can speak to this issue. I accept their evidence not because it was uncontradicted but because I find that their testimony to be credible. There is no evidence suggesting that their testimony is inaccurate, in the sense that they may be honest but mistaken about what they saw. The effect of this is that I conclude that the truck was parked under a street light along the Old Harbour main road on the night of December 16, 1993.
Mr. Gammon suggested that Roberts and Rose ought not to be believed. He could not point to any important contradictions between them or inconsistencies in their individual testimony or even a lack of internal coherence in their account. Neither could he point to evidence that cast doubt on their accuracy or veracity. Consequently I could not accede to Mr. Gammon's request.
Mr. DeSouza was not asked whether the truck had on park lights or reflectors. Only Roberts and Rose speak to this. Mr. Roberts specifically stated that the park lights were on and the truck was decorated with reflective tapes on the tail gate and rear mud flaps. Mr. Rose said that when the truck stopped all the indicators were on. Indicators were at the front, rear and side. On this issue I prefer the testimony of Mr. Roberts. Mr. Rose was exaggerating a bit but this did not affect his overall credibility. I therefore accept that the truck was properly lit and had reflectors at the rear to indicate its presence to oncoming traffic.
LIABILITY
At the end of the case the following facts were established to the satisfaction of the court:
(a) a truck driven by Mr. Roberts had stopped under a street light;
(b) the truck was illuminated by park lights and further illuminated by reflectors;
(c) the truck had pulled completely off the road way;
(d) the van driven by Mr. Whyne collided in the right rear wheel of the truck;
(e) Mr. Whyne was the servant of CB Duncan and Associates Ltd.
(f) Mr. DeSouza was a passenger in the van. He was in the rear sitting with his back to the cab.
(g) Mr. DeSouza received his injuries as a result of this accident
The inference from these objective facts is that Mr. Whyne must have been negligent. The accident would not have occurred if Mr. Whyne had driven the van properly and with due care and attention. The court finds that he was negligent. CB Duncan and Associates Ltd are liable for his negligence. There is no issue here of the "frolic" defence or any other kind of defence that could deflect liability from CB Duncan and Associates Ltd.
From what has been said it necessarily follows that the court finds that the Estate of Mr. Anthony Roberts and Mr. Rohan Roberts are not liable. Mr. Rohan Roberts was not negligent in anyway whatsoever. He had pulled completely off the road. The truck was properly lit and had reflectors at the rear on the mud flaps and tail gate to indicate its presence. This leaves the issue of the quantum of damages.
THE METHOD OF ASSESSMENT
In dealing with the measure of damages I will use the format suggested by Wooding CJ in Cornilliac v St. Louis (1965) 7 WIR 491 (see also Alladat Khan v Khanai Bhairo (1970) 17 WIR 192 ).
-
(a) The nature and injuries sustained
AU the injuries described are in respect of Mr. DeSouza's right hand. He lost the little finger and fourth finger. His middle finger is stiff at the first two joints. The middle finger can move but cannot bend. The forefinger on the hand was also injured.
Dr. Paul Brown of the Spanish Town Hospital wrote in his report that
-
(a) Mr. DeSouza suffered a traumatic amputation of the 5 th finger of his right hand;
-
(b) he also had partial amputation of the 2 nd , 3 rd and 4 th finger. There was residual stiffness in the joints.
Dr. Trevor McCartney, Senior Medical Officer of the Kingston Public Hospital produced a medical report dated December 21, 1994 that speaks to Mr. DeSouza's injuries. The report states:
-
(a) fracture of the distal phalanx of the right index finger;
-
(b) fracture of the middle phalanx of the right middle finger;
-
(c) fracture of the proximal phalanx of the right ring finger;
-
(d) traumatic amputation through the proximal phalanx of the right little finger.
He was discharged from the Kingston Public Hospital on January 17, 1994. He was referred to the physiotherapy department of the hospital.
Dr. Dixon of the Department of Orthopaedics at the Kingston Public Hospital wrote in a report dated July 19, 1995 that when Mr. DeSouza was seen on June 12, 1995 he had:
-
(a) amputation of 4 th and 5 th fingers of the right hand;
-
(b) stiffness of the proximal interphalanx joint of the right middle finger;
-
(c) numbness of the tip of the right index finger.
Dr. Dixon said that he has a thirty percent (30%) permanent disability of his right hand. There is no assessment of the disability of his whole body.
-
-
(b) The nature and gravity of the resulting physical disability
The claimant says that he is a painter. The injury to his right hand has affected his ability to earn. He cannot now hold a paint brush in his right hand. He used to build fowl coops and divans. He can no longer do that because he cannot hold a saw or swing a hammer to strike the nails. The injury has affected his ability to write. He can still write but not as well as he could before the injury.
Again there is nothing coming from the defence or from within the internal logic of the claimant's case to suggest that the court should not accept what the claimant says regarding his injuries. I accept that he has suffered in the way he has stated.
-
(c) Pain and suffering
The claimant did not say that he suffered any pain at the time of the accident. Even assuming he suffered some pain, the court cannot say how great or how little it was. He did...
To continue reading
Request your trial