Granston v Attorney General

JurisdictionJamaica
CourtSupreme Court
Judge SYKES J.
Judgment Date10 Aug 2009
Judgment citation (vLex)[2009] 8 JJC 1001
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. HCV 1680 OF 2003
BETWEEN
PHILLIP GRANSTON
CLAIMANT
AND
ATTORNEY GENERAL OF JAMAICA
DEFENDANT
IN COURT
Carol Davis for the claimant
Trudy-Ann Dixon-Frith and Tova Hamilton instructed by the Director of State Proceedings for the defendant

NEGLIGENCE - Truck overturning - Whether defendant liable - Whether necessary to challenge witness on any part of testimony not accepted - The Rule in Brown v. Dunn - Loss of future earnings - Loss of earning capacity - Future medical care -

NEGLIGENCE - OVERTURNING TRUCK - WHETHER DEFENDANT LIABLE - WHETHER NECESSARY TO CHALLENGE WITNESS ON ANY PART OF TESTIMONY NOT ACCEPTED - THE RULE IN BROWNE v DUNN - LOSS OF FUTURE EARNINGS - LOSS OF EARNING CAPACITY - FUTURE MEDICAL CARE

SYKES J
1

Mr. Phillip Granston was a firefighter. On November 20, 1997, he was traveling in a water truck from the St. James Fire Department located in Montego Bay that was transporting 8,000 gallons of water to the home of a private citizen, when it overturned. Mr. Granston alleges that he was injured during this accident. His injuries were such, he says, that he was eventually retired on the ground of ill health, that is to say, a medical examination found that he was no longer able to carry out the duties of a fireman. According to Mr. Granston, his injuries were caused by the negligent driving of Mr. Liston Reid who was a Sergeant in the fire service at the material time.

2

Mr. Granston is of the view that the Sergeant was negligent when, on a narrow road, he tried to maneuvre the truck around a parked car. Mr. Granston's case is that so narrow was the road that the right rear wheel of the truck went over and off to the right side of the road into or through soft earth, skidded, loss its equilibrium and rolled over. The skidding caused the rear wheel of the truck to sink into the soft earth which in turn caused the 8,000 gallons of water to slosh around in the water tank, which further destabilized the truck, thereby culminating in a further loss of its balanced position with the result that the truck over turned. The evidence revealed that the rain was falling heavily and driving conditions were far from ideal.

3

The defendant seeks to repel the allegation of negligence by stating that (a) the road was not narrow; (b) Sergeant Reid was executing the maneuvre in a non-negligent manner; (c) the edge of the road was already broken; (d) it was this uneven road surface that caused the truck to lose its balance; and (e) in this state of affairs the accident was inevitable. In these circumstances, the defendant submits that Sergeant Reid was not negligent because he was driving in a manner that was consistent with how a reasonably competent driver of a truck laden with 8,000 gallons of water would have driven on a wet, muddy and unpaved road which was being subjected to a heavy down pour of rain at the time of the roll over.

Was the road narrow?

4

The first issue that has to be determined is whether the road was as narrow as contended by Mr. Granston. A determination of this factor is vital because the claimant is saying that trying to pass the car in the circumstances that existed at the material time was the negligent act which led to the overturning of the truck and the consequential injuries to the claimant.

5

Three witnesses testified about the accident itself. These are Miss Terri-Ann Leslie, Mr. Granston and Sergeant Reid. All three were in the front of the truck at the material time. According to the evidence, four persons were in the front of the truck at the material time.

6

Miss Leslie, stated that rain was falling. Along the route, in the vicinity of the accident she recalled seeing a car parked on the left side of the road. She also said that the road was approximately 12 – 15 feet wide. She also testified that the truck was approximately 4 feet wide. She also recalls that the road was not a smooth paved road. It was paved in some sections and unpaved in others. She does not recall if there was a mound of dirt to the right side of the road across from the car but she does say that as Sergeant Reid was passing the car, he was driving very slowly, the truck began to tilt and then it overturned. Miss Leslie cannot recall the make of the car and neither does she recall if Sergeant Reid blew the horn of the truck. She was not able to say what the width of the car was.

7

Mr. Granston gave evidence. He specifically asserted in paragraph 6 of his witness statement and during cross examination that the space to the right of the parked car was not sufficient to enable the truck to pass. He added that when the truck came up to the car, it stopped, blew the horn and some one was heard to shout "Me a come! Me a come!" meaning (for those unfamiliar with Jamaica Patois) that he would soon be there. He testified further, that before the person could remove the car, Sergeant Reid moved the truck forward in an attempt to pass the car. At this point, the wheels of the truck began to climb a pile of dirt. This elevated the right side of the truck. He added, in cross examination, that truck skidded and then sank in the dirt. This caused the truck to become unbalanced and then rolled over.

8

I have examined the notes of cross examination carefully and I do not see where Mr. Granstons' testimony that the road was narrow was challenged. Neither was his testimony that the truck stopped and blew the horn. Thus at the end of the cross examination no issue was joined with the witness on this aspect of the testimony.

9

Mrs. Dixon-Frith, in responding to Miss Davis' submission that this part of Mr. Granston's testimony passed without challenge and therefore was no longer in issue, submitted that it was not necessary to challenge the witness specifically on this point because it was clear from the witness statements of the defence that they were not accepting Mr. Granston's testimony on this point. If this is really the position of the defendant, it is indeed a high risk strategy with pitfalls that have untold consequences.

10

I do not agree with Mrs. Dixon-Frith. It is important to go back to important foundations. A witness statement prepared before trial is not evidence. At best, it is what it is hoped that the witness will say. Evidence is oral testimony given by the witness from the witness box after he is properly and lawfully sworn or affirmed. Evidence may also be put before the court pursuant to the provision of the Evidence Act.

11

The provision in the Civil Procedure Rules ("CPR") stating that the witness statement stands as the evidence in chief does not alter the general position that evidence is what comes from witness box (see rule 29.8 (2)). Rule 29.8 (2) provides that when the "witness is called to give oral evidence his or her witness statement shall stand as evidence in chief unless the court orders otherwise." It is clear that when witness statements are being used, the witness has to be called to give evidence. I am ignoring here the provisions of the Evidence Act that permits statements made in documents to be placed before the court without the maker being called. This Act does not arise for consideration here.

12

Rule 29.8 (2) is only activated when the witness comes into the witness box and after being properly and lawfully sworn or affirmed he expressly states that what is contained in the witness statement is true and he adopts it as his evidence. This is why the witness, at the trial, is free to correct anything said in the statement. Thus the fact that some fact is alleged in a witness statement does not make it a fact for the purpose of the trial. Even if the witness expressly adopts the witness statement, it is, until accepted by the court or tribunal of fact, mere evidence, and it is the acceptance of it by the court or the tribunal of fact that transforms the evidence into a fact.

13

It is clear then, that asserting in a witness statement a contrary position to that of the opposing side, cannot be a fact, and, in my view, surely does not do away with the necessity to confront the witness while he is testifying with the contrary version, so that he has an opportunity to respond to the assertion. I shall deal with this in more detail below under the heading of the rule in Browne v Dunn.

14

I accept that it is possible for a court or tribunal of fact to reject a witness' testimony on a point even if he is not confronted with the contrary version. However, this would be reserved for instances in which either (a) the witness has been so severely discredited to the extent that his whole testimony is rejected or (b) the evidence contrary to the witness' assertion is so strong and overwhelming that to accept the witness' testimony on the specific point would be contrary to reason. Neither of these circumstances applies to Mr. Granston. Mr. Granston has not been severely discredited to the extent that he is unworthy of belief.

15

Sergeant Reid testified that the road was narrow. Narrow for him meant approximately 18 feet wide. This was his witness statement. He stated that as he drove along the road he saw a Honda Civic parked on the left side of the road. He formed the view that there was sufficient space for the truck to pass safely. He went on to say that as the truck passed the car, the truck began to skid because the roadway was muddy. The truck began sinking in the mud and tilting to the right. This tilting caused the truck to become unbalanced to the point where it rolled over.

16

Sergeant Reid stated in his witness statement that shortly after, "persons came from a nearby house came to our assistance. In addition, other persons came on the scene who advised me that a section of the road was broken away and that earlier that day a tractor had filled out with dirt. Due to the water on the road, I was unable to see that that section of...

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