Jehoida Buchanan v Adrian Smith and Another
| Jurisdiction | Jamaica |
| Judge | MCDonald J |
| Judgment Date | 16 September 2013 |
| Neutral Citation | [2013] JMSC CIV 117 |
| Docket Number | CLAIM NO. 2010 HCV 04702 |
| Court | Supreme Court (Jamaica) |
| Date | 16 September 2013 |
[2013] JMSC CIV. 117
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
CLAIM NO. 2010 HCV 04702
and
Mr. Shawn Kinghorn instructed by Kinghorn & Kinghorn for the Claimant .
Mr. Kwame Gordon instructed by Samuda & Johnson for the 2 nd Defendant .
Negligence — motor vehicle collision — liability of parties — contributory Negligence — assessment of damages
Mr. Jehoida Buchanan a retired teacher and Minister of Religionhas brought an action against the Defendants seeking to recover damages for personal injury and consequential loss.
He alleges that on December 17, 2007 he was in the process of crossing the Hellshire main road in the parish of St. Catherine when Adrian Smith the servant and or agent of the 2 nd Defendant Phyllis Hinds so negligently drove and/or operated motor vehicle registered 8884DX that he caused it to come violently into collision with the him.
The particulars of negligence of the first Defendant are:-
At the commencement of the trial Mr. Kinghorn indicated to the court that the Claimant would not be proceeding against the first Defendant and that he would file a Notice of Discontinuance by the next day.
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(i) Failing to see the Claimant within sufficient time or at all
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(ii) Driving on the said road in a careless manner
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(iii) Driving at or into the Claimant
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(iv) Failing to apply his brakes within sufficient time or at all
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(v) Driving at too fast a rate speed in all circumstances
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(vi) Failing to stop, slow down, swerve, or otherwise conduct the operation of the said motor vehicle so as to avoid the said collision.
There is no dispute that Mr. Adrian Smith, a waiter the driver was at the material time the servant and or agent of Phyllis Hinds his mother. The burden is on the Claimant to prove that on a balance of probabilities the 2 nd Defendant is liable to him in negligence for the injury, loss and damage suffered.
The Court has to determine which of the accounts put forward by the Claimant and the Defendant is more believable on a balance of probabilities. The credibility of the witnesses will therefore be of paramount importance in determining this matter.
In the Claimant's witness statement treated as his evidence-in-chief, he said that on the 17 th December, 2007 at approximately 5:30 a.m., he was crossing the Hellshire Main Road in the vicinity of the JUTC Depot and the Texaco Gas Station in the parish of St. Catherine. He was standing along the main road waiting for the light to change from green to red. When it changed to red, he looked behind him, and then to his right Hand side which was in the direction of Hellshire. He also looked to the left to ensure that no vehicle was coming from the direction of the JUTC bus depot. He then proceeded to cross the road as no vehicles were approaching from either direction, and at that period the vehicles that were turning from Braeton Main Road unto Hellshire Main Road should be at a stop.
He was more than half way across the road and whilst crossing the second lane, he felt a sudden burning into his right buttock. He fell in front of the car. When he fell before the car he was actually sitting upwards facing the car and the car then continued to move forward, pushing him over and over. Eventually the car came to a stop. At that time, he was holding on to the front bumper with his feet under the car. The driver of the car Adrian Smith took him up, put him in the car and drove him to the gas station. He was taken by taxi to the Spanish Town Hospital accompanied by his wife and a friend who both arrived on the scene.
In cross-examination the Claimant said there are stop lights at the intersection where Hellshire Main Road otherwise called Municipal Bolevard and the Braeton to Naggo Head roads meet. He could see the lights regulating the traffic heading in the direction of Hellshire as well as the lights regulating the Braeton to Naggo Head traffic. He said that before attempting to cross the Hellshire Main Road, the lights regulating the Hellshire Main Road/Municipal Boulevard traffic were on red, and the lights from Braeton to Naggo Head were on green.
Defence Counsel put paragraph 3 of the Claimants witness statement to him which indicated the contrary. At paragraph 3 the Claimant stated inter alia that when he was standing on the Hellshire Main Road when the lights changed to red, he looked and proceeded to cross. At that point vehicles that were turning from Braeton Main Road unto Hellshire Main Road should be at a stop. Defence Counsel asked him why at a stop if they have the green. The Claimant responded by saying that Defence Counsel had left out the entire thing, he should start from the very start of it. He also strongly disagreed that when he was trying to cross, vehicles coming from Braeton to Naggo Head Road had the right of way turning unto Hellshire Main Road. He eventually agreed that Defence Counsel was not confused and agreed that what he had said earlier in cross examination that when the lights on Hellshire Road / Municipal Boulevard are on red, the lights on Braeton to Naggo Heard Road are on green was correct and what he has said is exactly what happened.
He said that there is a paved concrete about 15 ft from the traffic light and he walked to the end of this paved concrete in order to cross the road, which is his regular practice. He never crosses the road in the exact corner of the four roads. He agreed with the suggestion it would have been more prudent for him to have crossed further down than fifteen feet, he said yes he could have gone to the bus depot. He agreed with the suggestion that he was crossing very close to an intersection. He said that there was no pedestrian crossing on the road where he was attempting to cross.
Mr. Buchanan told the Court that he had completed crossing half the road when the motorcar struck him. He only felt when the car hit him, he did not see the car coming or hear it. He said that just before he attempted to cross the road the lights regulating Hellshire Main Road traffic were on red. He said that on that morning he was going to meet a bus at a place that was not a bus stop, but where the bus would stop and pick up persons, which was across the road from where he was, a little way down from the gas station. He denied that he was rushing to catch a bus and that he was running late that morning.
It was suggested to the Claimant that it was not true when he said that Mr. Smith had told him that he was asleep behind the steering wheel.
He responded that Adrian Smith had told him so in the presence of both his children. He also stated that he did not tell the police that Adam Smith has told him so. Mr Buchanan told the Court that it was not dark at the time the accident occurred around 5:30 in the morning on the 17 th December, 2007. He said light from the bus depot, gas station and a lot of bright street lights would have lit the area properly. The gas station was across the road from where he was that morning. The estimated distance of the gas station from where he was that morning is estimated at 75 feet as pointed out by him in Court and the JUTC bus depot was 100 feet as pointed out from where the accident occurred. The Claimant stated that Hellshire Main Road is 30 feet (estimate from the distance pointed out in Court) and that he did not see the car coming or hear the car, he just felt when it hit him. This car was heading in the direction of the bus depot.
The 2 nd Defendant has denied the particulars of negligence and by Defence filed on November 30, 2010 contends that the collision was either solely caused by the Claimant, or that the Claimant contributed to the collision. The particulars of negligence of the Claimant are that he :-
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(i) Failed to keep any proper lookout or to have any sufficient regard for his own safety when crossing the said road.
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(ii) Stepped and / or ran off the curb on the near side of the first Defendant into the path of the said motor vehicle registered at 8884DK.
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(iii) Stepped and / or ran into the said road in the path of the first Defendant without giving him any reasonable opportunity of avoiding the said collision.
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(iv) Failed to pay any significant heed to the presence of the said motor vehicle registered 8884 DK in the said road.
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(v) Crossed or attempted to cross the said road when it was unsafe and dangerous so to do.
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(vi) Failed to see the said motor vehicle registered 8884 DK in sufficient time or at all to avoid the said collision.
Mr. Adrian Smith in his witness statement which was treated as his evidence-in-chief stated that on the 17 th December, 2007 at approximately 5:20 am he was driving motor vehicle 8884 DK along the Braeton road, heading in an easterly direction. Due to the time of the year, it was dark so his headlights were on. The road surface was smooth and dry and he came to stop at the intersection with Municipal Boulevard and Hellshire Main Road which is a stoplight intersection. He was in the far left lane.
He was going to the Texaco gas station which is at the corner of Braeton Road and Municipal Boulevard. When the light changed to green he proceeded to turn left at the intersection. This left turn took him onto Municipal Boulevard. After turning left, when he was approximately 15 feet away from the intersection a man suddenly stepped out into the roadway and into the path of the motor vehicle he was driving. This man emerged from the left hand side of the roadway.
Mr. Smith said that he was going less than 30 miles per hour when this man stepped out in the road. It happened so quickly that by the time he slammed on the brakes the car hit the man on his right leg causing him...
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