Island Builders Contractors and Estate Ltd v Transport Authority
| Jurisdiction | Jamaica |
| Judge | GLORIA SMITH, J. |
| Judgment Date | 26 May 2001 |
| Judgment citation (vLex) | [2001] 1 JJC 1601 |
| Date | 26 May 2001 |
| Court | Supreme Court (Jamaica) |
| Docket Number | SUIT NO. C.L. 1992/I 032 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
NEGLIGENCE - Motor truck collision - Whether defendants liable for damage to plaintiff's vehicle
The plaintiff Island Builders Contractors and Real Estate Limited amended statement of Claim is against the defendants Transport Authority for negligence. It is alleged that on or about the 3 rd day of May 1991, a servant and/or agent of the defendant being the driver of a motor truck "jeep" registered 7394 AS so negligently managed or controlled the said motor truck that he caused same to collide with the plaintiff's motor truck which was in a stationary position along the Pamphret main Road in the parish of St. Thomas, in consequence of which the plaintiff suffered loss and damage and incurred expenses.
In the particulars of negligence the plaintiff alleged that the servant and/or agent of the defendants:
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1. Failed to keep any or any proper look out, or to have any or sufficient regard for other road users particularly the plaintiff.
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2. Driving at a rate of speed which was excessive in the circumstances.
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3. Failed to see and/or heed the plaintiffs said motor vehicle.
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4. Failed to have any or any sufficient regard for vehicles along the said road.
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5. Driving on the incorrect side of the road and into the path of the plaintiff's said motor vehicle.
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6. Failing to stop, slow down, swerve or in any manner to so manage and/or control the said motor vehicle so as to avoid the collision.
The defendants in their defence and Counter-claim, alleged that the driver of the motor vehicle in question (i.e. the jeep) one Audley West was not acting as the servant and/or agent of the defendant, or in the course of his employment with the defendant, but that Mr. West was on a frolic of his own.
The defendants in their Particulars of negligence states that the servant or agent of the plaintiffs:
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(1) Failed to keep any or any proper lookout or to have any or sufficient regard for other road users particularly the defendants and driving at a speed that was excessive in the circumstances.
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(2) Failed to see or heed the defendants vehicle or have any or sufficient regard for vehicles on the said road.
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(3) Over taking or passing another vehicle without ascertaining whether it was safe to do so and when it was dangerous to do so and without giving any signal of his intention to over-take and pass another vehicle.
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(4) Driving on the incorrect side of the road and into the path of and colliding with the defendants' vehicle.
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(5) Failed to stop, slow down, swerve or in any manner to so manage and/or control the said vehicle so as to avoid the collision.
The plaintiffs called two witnesses in support of their Claim. The first Lurest Freebon an eye witness to the collisions and Mr. Henry Tulloch the driver of the plaintiffs motor truck at the time of the incident.
Miss Freebon gave evidence that on the 3 rd of May 1991 at about 11:00 a.m. she was standing on the left hand side of the Pamphret main road going towards Kingston. She was talking to a friend, when a red Lada motor car stopped on the left side of the road going towards Morant Bay. This car stopped in the "bend" of the road - as a result Miss Freebon said she signalled some trailer drivers who were approaching to slow down. She also observed a grey truck travelling towards Morant Bay approaching and she signalled him to slow down as well, she can't say if this truck driver saw her.
The grey truck passed the red Lada motor car and stopped about 2 car lengths in front of the Lada. Witness then said she saw a red pick-up coming from the Morant Bay direction, it hit the right back wheel of the grey truck, then hit into the red Lada, spun around and turned across the road. The Transport Authority van (i.e. the defendants vehicle) which was travelling in the same direction as the red pick-up then collided head on into the grey truck. The grey truck was still stationary at the time of these collisions.
After the collisions occurred Miss Freebon ran towards the defendant's van and saw 2 persons in the front of the van and 3 in the back. Shortly after this van collided with the grey truck it burst into flames and the grey truck also caught fire. Attempts were made to put out the fire.
Where the collisions occurred, Miss Freebon stated that the road was asphalted. The truck which was travelling towards Morant Bay was stationary and on its left while the Transport Authority van which had been travelling in the opposite direction was on its right coming from Morant Bay and heading towards Kingston.
In cross examination Miss Freebon said that there were other persons on the Pamphret main road on the day of the accident, but they were not there throughout the time of the collisions. After the collisions a number of persons came on the scene. She further stated that the Lada motor car was parked on the left side of the road going towards Morant Bay and that there was a white line in the middle of the road. The Lada she indicated was parked just a little above the bend and was not obstructing traffic. She denied that the grey truck was travelling fast - she said after she signalled it, the driver then stopped about 2 car lengths in front of the Lada. She admitted that she had been looking in the direction of Yallahs from which direction both the Lada and the grey truck had come, but denied that it was the collision which caused her to look, in the opposite direction, and that she did not actually see what happened. She however agreed that these collisions happened very fast. She said that the Transport Authority vehicle had no where to go as the road was blocked. The five persons who were in the Transport Authority vehicle all died.
Mr. Henry Tulloch gave evidence that he was employed to the plaintiffs as a truck driver in May 1991. They owned a 1985 Seddon Atkinson truck registered CC 2180 and that was the truck that was assigned to him.
On the 3 rd of May 1991 at about 11:a.m. he was driving the plaintiff's Seddon Atkinson truck CC 2180 on the Pamphret main road going towards Morant Bay. Upon reaching mile post 23 he saw a Lada motor car parked on the left side of the road going towards Morant Bay. As he passed the Lada, he saw two vehicles coming from the opposite direction and he observed that one vehicle was about to overtake the other. He then pulled over to his left and stopped. He noticed that the approaching vehicles were travelling very fast, one was a red Chevrolet pick-up, the other was a Diahatsu. The Diahatsu tried to overtake the red Chevrolet pick-up but did not actually do so. The pick-up swerved and then went on the embankment on the left side of the road, dropped back in the road and hit into the right rear wheel of the plaintiff truck - after which Mr. Tulloch said he felt another impact. He then saw the windscreen of his truck fall out and when he looked in front of him, he saw the Daihatsu motor vehicle right in front of his truck. When he came out of his truck he observed that it was the same Diahatsu that had earlier tried to overtake the Chevrolet pick-up. The Diahatsu then caught fire - he got dirt and was trying to put out the fire because his truck had also caught fire.
As a result the truck was completely burnt out. An asssessment of the damage done to the truck was subsequently carried out. The truck was towed away from the scene of the accident to the Yallahs Police Station and then to the plaintiffs' business place in Kingston.
The sand that Mr. Tulloch was going to collect was to be delivered to Jamaica Pre-Mix Limited on Molynes Road, Kingston. This was something he had been doing on a regular basis, Mondays to Fridays. This was pursuant to a contract between Island Contractors Limited and Jamaica Pre-Mix Limited. This contract had another five months to run before it expired. Jamaica Pre-Mix Limited paid $60,000 per month to Island Contractors Limited and Mr. Tulloch indicated that he knew of this because he was paid on the basis of a percentage of that sum.
At the time of the collision Mr. Tulloch stated that when the Diahatsu vehicle belonging to the Transport Authority collided with his truck, he was on his left side going towards Morant Bay and the Diahatsu was travelling in the opposite direction. His vehicle was stationary.
In cross-examination he reiterated that there were in fact two collisions - one where the red Chevrolet collided with the right rear wheel of his truck and the head on collision where the Diahatsu crashed into his truck. He said he saw the collision with the red Chevrolet and he heard and felt the collision with the Daihatsu - These collisions happened within split seconds of each other. His attention had been focused on both vehicles. Before he heard the second collision his attention was focussed on the red pick-up, which hit the banking, then dropped back in the road, then hit his right rear wheel then hit the Lada. Mr. Tulloch could not say if the red pick-up spun around in...
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