Duncan (Beresford) v Nova Lee
| Jurisdiction | Jamaica |
| Judge | BROOKS, J. |
| Judgment Date | 13 April 2007 |
| Judgment citation (vLex) | [2007] 4 JJC 1301 |
| Court | Supreme Court (Jamaica) |
| Date | 13 April 2007 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION
DAMAGES - Personal injuries - Motor vehicle/pedal cyclist
On 18 th July 2004, Mr. Beresford Duncan was riding his pedal cycle along Camp Road in the parish of St. Andrew. He collided with a bus owned and driven by Mr. Nova Lee. Mr. Duncan sustained injuries and now seeks to recover compensation from Mr. Lee. The collision occurred at 7:30 p.m.
Mr. Duncan alleges that the collision occurred as a result of Mr. Lee's negligence. He testified that while he (Duncan) travelled on his correct side of the road toward Cross Roads, Mr. Lee's vehicle approached from the opposite direction at a fast rate of speed and negligently made a right turn unto Arnold Road without stopping or indicating a change of course. It was in doing so that Mr. Duncan says that Mr. Lee's vehicle struck him as he was in the process of crossing Arnold Road.
Mr. Lee on the other hand testified to a very different scenario. He said Mr. Duncan was not travelling towards Cross Roads but was travelling in the same direction as the bus, on the right or incorrect side of the roadway, and had no light on the cycle. Mr. Lee says he passed Mr. Duncan, came to the junction where he stopped, checked to make sure the way was clear and then made the right turn into Arnold Road. It was while conducting that manoeuvre that, he says, Mr. Duncan rode into the right front door of the vehicle, broke the right headlamp and dented the area above that headlamp.
The main issue is therefore one of credibility, but neither litigant was shaken in cross-examination. Three things however assist the court in resolving the issue. The first is that Mr. Duncan called as a witness, Mr. Omar Miller, who testified that he was an eyewitness to the event. He says that he was journeying with Mr. Duncan, but on a separate bicycle, at the time of the collision. He supported Mr. Duncan in every material particular, including the fact that there was a light and reflectors on Mr. Duncan's bicycle. Mr. Miller was also unshaken in cross examination and the court had no hesitation in accepting that he was present at the time and witnessed the collision.
The second item which assists the court is the physical damage to Mr. Lee's vehicle. The major damage is to the right front of the vehicle. This is more consistent with Mr. Duncan's account and that of his witness, that it was the front of the vehicle that struck him. Mr. Lee did point to two scratches on the right door of the vehicle one high and one lower, but I cannot accept that those scratches were caused in the manner as was described by Mr. Lee.
Finally, though perhaps less significantly, the injures which Mr. Duncan sustained are more consistent with being propelled at some speed after the impact, as opposed to him being struck by a slowly moving vehicle just moving from rest.
I accept the testimony of Mr. Duncan and his witness as truthful and reject that of Mr. Lee. I also find that Mr. Lee was negligent in his driving of the vehicle and that that negligence was the sole cause of the collision and Mr. Duncan's injuries.
I now turn to the matter of damages.
Special Damages:
Special damages were mostly agreed by the attorneys-at-law for the parties. The agreed figure is $100,125.88. In addition to that sum Mr. Duncan also seeks damages for travelling expenses; $10,000.00, extra help; $52,000.00, loss of earnings; $572,000.00 and the cost of future medical expenses of $390,000.00 – $450,000.00.
In respect of all but the last item Miss Hudson on behalf of Mr...
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