Karen Kirlew and Raymond Kirlew v Pixley Irons

• Jurisdiction: Jamaica
• Judge: Barnaby, J.
• Judgment Date: 10 April 2025
• Court: Supreme Court (Jamaica)
• Year: 2025
• Docket Number: SU2020CV0416; SU2023CV02527

Karen Kirlew and Raymond Kirlew

and

Pixley Irons

Dominic Kirlew (A Minor by Mother & Next Friend, Karen Kirlew)

and

Pixley Irons

Barnaby, J.

SU2020CV0416; SU2023CV02527

Supreme Court

Appearances:

Keon Green and Andrew Folkes instructed by Earle & Wilson, Attorneys-at-law, for the claimants.

Ishia Robinson and Travis Ebanks, Attorneys-at-law, for the defendant.

Barnaby, J.

BACKGROUND

1 The Claimants have brought a claim in negligence arising out of a motor vehicle collision at the intersection of Marcus Garvey Way and Royes Street in St. Ann's Bay on 12th November 2017. The collision occurred between a Honda Stream driven by Mrs. Karen Kirlew and a Mitsubishi Pajero driven by the Defendant, Mr. Pixley Irons. Mr. Raymond Kirlew and Master Dominic Kirlew were both passengers in the motor vehicle driven by Mrs. Kirlew.

2 It is contended by the Claimants that they were travelling along Marcus Garvey Way and on reaching its intersection with Royes Street (the Intersection), the Defendant, who was driving on Royes Street, failed to stop and so negligently collided with the vehicle driven by Mrs. Kirlew. The Claimants describe Marcus Garvey Way as the major road and Royes Street as the minor road. The Defendant's negligence is particularised in this way.

• a) Failing to drive at a reasonable speed on a wet surface;

• b) Failing to heed the presence of the Honda Stream;

• c) Driving too fast in all the circumstances;

• d) Failing to stop, slow down, swerve, or employ any other reasonable way to manage or control his vehicle so as to avoid the collision;

• e) Exposing the Claimant(s) to unnecessary risk of injury;

• f) Failing to take any or any reasonable care in all the circumstances to carry out his operation in such a manner so as not to expose the Claimant(s) to reasonably foreseeable risks or injury;

• g) Failing to maintain sufficient control over the said motor vehicle;

• h) Failing to apply brake within sufficient time or at all so as to prevent the collision from occurring;

• i) Failing to keep any or any proper lookout;

• j) Colliding twice in the Honda Stream;

• k) Failing to see the Honda Stream in sufficient time or at all so as to avoid the collision;

• l) Failing to pay any or any sufficient regard to other users of the roadway;

• m) Entering the main road, Marcus Garvey Way, from Royes Street, a minor road, when it was unsafe to do so;

• n) Entering the main road, Marcus Garvey Way, from Royes Street, a minor road, without first ascertaining or ensuring that it was safe so to do;

• o) Failing to give way to traffic on Marcus Garvey Way, which was the main road.

3 The Defendant denies that he was negligent as alleged or at all and says that while he was proceeding through the intersection, the left quarter panel and left doors of his vehicle were impacted by the vehicle driven by Mrs. Kirlew, pushing his vehicle into a wall on the left side of the roadway. He says that there was no indication — whether by stop sign, signpost or otherwise — that Royes Street was a minor road to require motorists travelling on it to stop at its intersection with Marcus Garvey Way. He accordingly disagrees that the former was a minor road and the latter a major road at the material time.

4 Mr. Irons contends that the collision was caused solely and or materially contributed to by the negligence of Mrs. Kirlew, which he particularises as follows:

• a) Driving at an improper speed in the circumstances;

• b) Driving in a reckless and dangerous manner;

• c) Colliding into the left quarter panel and left doors of the Defendant's motor vehicle;

• d) Failing to have any or any adequate regard for road users and in particular the Defendant;

• e) Failing to see and/or observe the presence of the Defendant's motor vehicle at the intersection in sufficient time or at all;

• f) Proceeding into the intersection at a time when it was unsafe to do so;

• g) Failing to stop before entering the intersection;

• h) Failing to keep any or any proper lookout in the circumstances;

• i) Failing to stop, swerve and/or manoeuvre [the Honda Stream] in such a way as to avoid collision.

5 He counterclaims for special damages in the amount of $744.562.50.

6 On 13th December 2024, the trial of the consolidated claims came on for hearing before me and judgment, which is now delivered, was reserved to today's date.

LIABILITY FOR THE COLLISION

7 The parties bear the burden of proof on their respective claims, which is discharged on a balance of probabilities. The claim being in negligence, they are required to prove the existence of a duty situation, breach and damage.

8 Neither the collision, the involvement of the parties, nor the general area of the collision are disputed. There is therefore no dispute that the drivers of the motor vehicles involved in the collision owed a duty of care to each other and the passengers in Mrs. Kirlew's motor vehicle. The duty was to take reasonable care in their use of the road.

9 Issue is joined on whether the collision occurred because of a breach of that duty by either or both drivers. At the centre of that dispute are:

• (a) which, if any, of the roads at the Intersection was a major road;

• (b) whether there was a stop sign at Royes Street at the time of the collision; and

• (c) whether each driver took reasonable care in proceeding across the Intersection.

10 The Claimant's evidence is that Marcus Garvey Way is a long thoroughfare which starts at the clock at St. Ann's Bay Main Street. They also say that Marcus Garvey Way and Royes Street are major and minor roads, respectively, and that there is usually a stop sign on Royes Street, which is often hidden. Mr. Irons says that both roadways are minor roads that accommodate traffic flowing in either direction. He further stated that at the time of the collision, there were no road signs to alert motorists to stop or give way at the intersection of Royes Street and Marcus Garvey Way.

11 Other than their say so, the Kirlews have not provided evidence which is capable of supporting the allegation that Marcus Garvey Way and Royes Street were designated major and minor roads, respectively, at the time of the collision.

12 Mr. and Mrs. Kirlew also gave evidence that Royes Street is one of three smaller roads leading off Marcus Garvey Way; no evidence was presented on where Royes Street terminated from that point, whether it intersected with another road, or also flowed from Main Street.

13 I take judicial notice of the fact that Main Street, as its name suggests, is the major road through the town of St. Ann's Bay, along which there are several minor roads. While it is possible that among these “minor” roads some may be regarded as “major”, in the absence of documentary evidence or evidence of indicators on each roadway which suggest they are to bear either designation in relation to each other, I am unable to find that as between Marcus Garvey Way and Royes Street, the former was the major road at the time of the collision.

14 Both Mr. and Mrs. Kirlew say in their witness statements that there is usually a stop sign at Royes Street, which is often hidden. They do not say whether the stop sign was present at the time of the collision, nor have they stated that there were any other signs or indicators present which would hint at Royes Street's designation as a minor road. In fact, on cross-examination, Mrs. Kirlew could not recall seeing a stop sign at the Intersection at the material time, and Mr. Kirlew said he could not “definitely say that a sign was there.” On this evidence, I am not satisfied on a balance of probabilities that there was a stop sign on Royes Street or any other indicator which would suggest that Royes Street was a minor road in relation to Marcus Garvey Way, thereby requiring the Defendant to yield to Mrs. Kirlew at the Intersection.

15 Considering the foregoing, it is my view that both Mrs. Kirlew and Mr. Irons had a duty to approach and proceed across the intersection with reasonable care for themselves and other road users. Although said of the defendant in Kern Francis v. Peter Depass et al [2015] J.M.S.C. Civ. 255, I find this pronouncement by K. Anderson, J. on the duty owed at an intersection to be equally applicable to Mrs. Kirlew and Mr. Irons, who each had

[69] … a duty to exercise reasonable care in determining whether it was safe to proceed through the intersection and in that respect, [they were] required to not only stop at that intersection, but also, look and listen carefully, while there, before making the decision as to whether it was safe to proceed into the intersection and then so proceeding.

16 In so proceeding, “[81] a reasonable and prudent driver is [also] required to anticipate what other road users may do at any moment in time.” While K. Anderson, J goes on to say that “one is not, as a vehicle driver, expected to take precautions against a wholly unlikely risk, or against an occurrence that could not possibly have been reasonably anticipated”, he went further to cite with approval this dictum from Lord Uthwatt in L.P.T.B. v. Upson[1949] 1 All E.R. 60 (H.L.).

‘I … dissent from the view that drivers are entitled to drive on the assumption that other users of the road, whether drivers or pedestrians, will behave with reasonable care. It is a common experience that many do not. A driver is not, of course, bound to anticipate folly in all its forms, but he is not, in my opinion, entitled to put out of consideration the teachings of experience as to the form those follies commonly take.’ Also, in Berrill v. R.H.E.[1952] 2 Lloyd's Rep. 490, at 492, per Slade, J.: ‘You are not bound to foresee every extremity of folly which occurs on the road. Equally, you are certainly not entitled to drive on the footing that other users of the road, either drivers or pedestrians, will exercise reasonable care. You are bound to anticipate any act which...