Keino Simpson v Newton South
| Jurisdiction | Jamaica |
| Judge | L. Pusey J |
| Judgment Date | 27 October 2023 |
| Court | Supreme Court (Jamaica) |
| Year | 2023 |
| Docket Number | CLAIM NO. 2011HCV01185 |
[2023] JMSC Civ 158
CLAIM NO. 2011HCV01185
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Negligence — Motor Vehicle Accident — Motor Car and Pedal Cyclist — Credibility of Parties — Contributory Negligence — Whether the then minor Claimant was contributory negligent — Assessment of Damages — General Damages — Future Medical Care — Special Damages — Counterclaim — Agency — Relationship between Principal Actor and Third-Parties — Road Traffic Act s. 51
Mr. George Clue instructed by Mrs. Shelly-Ann Beckford-Louden appeared for the Claimant and Ancillary Defendant
Miss Racquel Dunbar instructed by Dunbar & Co. appeared for the Defendant and Ancillary Claimant
This matter came for hearing on the 30 th of October 2015. At the trial, the court had embarked on a pilot project with audio recording equipment in which matters were tried without the usual note taking by the judge, as the parties would rely on an audio recording system. Aspects of the project did not live up to expectations which contributed to the inordinate delay in the delivery of this judgment. Additional unforeseen circumstances created further challenges which prevented the timely delivery of this judgment. Therefore, the Court would like to apologize for the part it played in the delayed delivery of this judgment.
The court wishes to indicate that it had sufficient material to decide upon this matter and would like to thank Counsel for their written submissions on the quantum of damages to be awarded which aided in the completion of this judgment.
This matter concerns a Claim in negligence brought by the Claimant, Mr. Keino Simpson, who sued by his mother and Next Friend, Miss Simone May, against the Defendant, Mr. Newton South, for personal injuries inflicted upon him and loss sustained arising out of an accident that occurred on the 20 th day of June 2009 on the May Day Main Road in the parish of Manchester. At the time of the accident, the Claimant was below the age of majority, but when the trial began the Claimant had attained the age of majority.
The matter was initiated through the filing of a Claim Form and Particulars of Claim on the 16 th day of March 2011. The Claimant alleges that on the 20 th day of June 2009 on the May Day Main Road in the parish of Manchester at approximately 3:00 p.m., he was riding his bicycle when the Defendant, who owned and was operating a gray Mark II motor vehicle on that same date and time, collided into the Claimant causing injuries and loss to the Claimant.
It is further alleged that the accident was caused wholly by the negligence of the Defendant. The negligence was particularized in the following way:
The Defendant was negligent in that he:
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(i) Failed to keep any or any proper lookout or to have any or any sufficient regard for other traffic on the road so as to avoid the said collision;
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(ii) Failed to effect any or any proper or effective control of the motor vehicle;
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(iii) Drove at a speed that was excessive or improper in the circumstances;
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(iv) Failed to heed and/or observe the presence of the bicycle which the Claimant was riding on the said road in sufficient time or at all;
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(v) Failed to stop, slow down, swerve, apply the brakes of the motor vehicle or to otherwise manoeuvre the vehicle so as to avoid hitting the Claimant;
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(vi) Causing and/or permitting the said collision with the Claimant;
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(vii) Drove without due care and consideration for other users of the road, in particular the Claimant;
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(viii) Drove in a reckless and/or dangerous manner;
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(ix) Failed to observe the rules of the road so as to avoid hitting the Claimant.
In his Defence filed on the 27 th day of July 2011, Mr. South, the Defendant denied the allegations of the Claimant that he caused the collision which is the subject of the claim. Mr. South further contends that his motor vehicle was blue and avers that the accident was caused solely (or at the very least substantially contributed to) by the negligence of the Claimant when he suddenly and without warning rode out from a minor road (Housen Heights Road) onto the major road (May Day Main Road) and into the path of his motor vehicle. The Defendant indicates that his motor vehicle was traveling along its proper left lane on May Day Main Road heading towards Mandeville at the material time when the Claimant rode out into his path without stopping at the intersection and ensuring that it was safe to do so.
The Defendant makes a counterclaim or Ancillary Claim against the mother and next friend of the Claimant, Miss Simone May, the Ancillary Defendant as a result of what he avers was the negligent riding of the Claimant which resulted in the Defendant suffering loss, damage and incurred expenses. The Defendant indicates that the Ancillary Defendant had accepted responsibility for the accident and agreed to repair the Defendant's vehicle. The negligence of the Claimant is particularized by the Defendant as follows:
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(i) Riding at a fast and/or excessive rate of speed in the circumstances;
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(ii) Failing to keep any or any proper lookout;
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(iii) Failing to observe and/or heed the presence of the Defendant's vehicle while same was lawfully proceeding along in its left lane on May Day Main Road i.e. the major road in sufficient time or at all;
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(iv) Riding without any or any proper care and attention for other users of the roadway;
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(v) Entering a major road from a minor road without first ensuring that it was safe to do so;
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(vi) Suddenly and without warning riding out from the minor road (Housen Heights Road) onto the major road (May Day Main Road) and into the lawful path of the Defendant's vehicle at a time and place when it was manifestly unsafe to do so;
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(vii) Suddenly and without warning riding into the Defendant's vehicle's lawful path and then colliding with his vehicle;
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(viii) Failing to stop at the intersection of Housen Heights Road and May Day Main Rad before riding out onto May Day Main Road;
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(ix) Failing to stop, slow down, swerve or in any other way manage or control his said bicycle so as to avoid the said collision.
Miss May, the Ancillary Defendant, avers that the Defendant/Ancillary Claimant, Mr. South, was responsible for the accident for which the claim was brought. Miss May indicates that at the material time of the accident, the Claimant was not a servant or agent of hers. Further, that she did not cause or in any way ratify, instigate or contribute to the accident which occurred on the 20 th day of June 2009 and therefore no claim should be maintained against her.
Mr. Keino Simpson indicated that on the date of the incident, June 20, 2009 at about 3:00 p.m., he looked and listened left and right before entering May Day Main Road from the Housen Heights Road. He indicated that he entered May Day Main Road and went into the left lane which leads towards May Day and that shortly thereafter he heard the sounds of car brakes being “mashed”. Mr. Simpson indicates that when he looked in the direction of the sound he saw the Defendant's Mark II motor vehicle swerving from the right side of the road leading towards Mandeville and coming into the lane where he was. Mr. Simpson indicated that the car came so close to him, that the right side of the car's front bumper collided into him. Mr. Simpson said the next thing that he remembers is waking up near a light post in front of Housen Heights Road that is about 1 to 2 metres off the road in the grass.
Mr. Simpson indicated that his bicycle was new, and was in good working order with the brakes working. He noted that there was some high bush on both sides of the road which came out into the road, but that the bushes on the left side of the road come out more into the road than those on the right side. He states that though there are bushes, he could see the road clearly as it was straight, and that on the date of the accident, the road was asphalted, dry and free from potholes.
Miss Simone May, the mother of the Claimant, indicated that she was not at the scene of the accident, but remembers hearing a loud bang sound at about 3:00 p.m. on the date of the accident.
The eyewitness, Mr. Kenroy Briscoe, gave evidence for the Claimant. He indicated that on the date of the incident, sometime during the day as he cannot recall the time, he was observing the scene of the accident from his apartment on the third floor which is situated on a hill where he had a good view of Taylor Close Road, Housen Heights Road where it meets May Day Main Road and May Day Main Road. He stated that he observed the accident through his apartment window while he was talking on the phone.
Mr. Briscoe stated that he saw Mr. Simpson ride his bicycle from Taylor Close onto Housen Heights Road and then to the intersection of Housen Heights Road and May Day Main Road. Mr. Briscoe indicated that when Mr. Simpson got to the intersection of Housen Heights Road and May Day Main Road, Mr. Simpson came to a complete stop and looked left and then right. Thereafter, he states, Mr. Simpson proceeded to make a right turn onto May Day Main Road and then crossed over to the left lane, which was the correct lane based on where he was going.
Mr. Briscoe stated that while Mr. Simpson was riding his bicycle in the left lane, a blue car emerged from nowhere, in the blink of an eye. Mr. Briscoe indicated that the car was a Mark II car which was first in the right lane, then it started to slide over in the left lane to where Mr. Simpson was. Mr. Briscoe noted that...
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