King v Hibbert and Grant

• Jurisdiction: Jamaica
• Judge: Campbell J
• Judgment Date: 06 September 2017
• Neutral Citation: [2017] JMSC Civ 122
• Docket Number: CLAIM NO. 2007 HCV 04614
• Court: Supreme Court (Jamaica)
• Date: 06 September 2017

[2017] JMSC Civ 122

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

THE CIVIL DIVISION

Campbell, J.

CLAIM NO. 2007 HCV 04614

Between

Martia King

Claimant

and

Matthew Hibbert

1 ^st Defendant

and

Rohan Grant

2 ^nd Defendant

Mrs. Marion Rose-Green and Miss Colleen Franklin instructed by Marion Rose-Green and Co., Attorneys-at-Law for the claimant

Mr. Leslie Campbell and Miss Channa Ormbsy, Attorneys-at-Law instructed by Campbell and Campbell for the defendants.

Civil Law — Negligence — Motor Vehicle Collision — Contributory Negligence — Whether the Claimant was Contributorily Negligent — Defence — Self Preservation — Whether Damages should be Awarded in the Circumstances.

IN OPEN COURT

Campbell J

;

1 This claim arises out of a motor vehicle accident which occurred on the 22 ^nd January 2007 in August Town, Saint Andrew. The claimant, Ms. Martia King, was a paying passenger in a motor vehicle registered PB6650 owned by the 1 ^st defendant and driven by the 2 ^nd defendant. The claim is in negligence against the defendants, jointly and severally to recover loss, damages and incurred expenses.

2 The claimant, a Registered Nurse resides at Thorpe Corner, Saint James, Barbados. In 2007, she was then a student on the Mona Campus of the University of the West Indies and resided at 49 Bouganvillia Avenue, Mona Heights, Kingston 6 in the parish of Saint Andrew.

3 The 1 ^st defendant, Mr. Matthew Hibbert, is the owner of the motor vehicle, a registered hackney carriage which was being driven by the 2 ^nd defendant. It was alleged that he was the servant and/or agent of the 1 ^st defendant.

4 The claimant, alleges that the motor vehicle was so recklessly and negligently driven, managed and/controlled by the 2 ^nd defendant that it got out of control and collided with a stationary motor vehicle parked along August Town Road in the parish of Saint Andrew.

The Claim — Particulars of Negligence

5 The detailed allegations are that, the 2 ^nd defendant;

• i. drove at a speed which was excessive in all the circumstances;

• ii. failed to keep any or proper lookout along the roadway;

• iii. lost control of the motor vehicle that it collided with a parked motor vehicle;

• iv. failed to give adequate thought of the manoeuvre which he was performing;

• v. collided with another motor vehicle that was parked on the opposite side of the roadway;

• vi. failed to stop, to slow down, to swerve or so to manage and/or control the said motor vehicle as to avoid same from getting out of control to prevent the collision;

• vii. collided with another vehicle which was parked along the roadway;

• viii. failed to stop, slow down, to swerve or in any other way so as to manage or control the said motor vehicle as to avoid same from getting out of control and colliding into a parked motor vehicle along the roadway.

The Defence

6 The defendants in their Amended Defence filed 2 ^nd October 2013 and oral evidence in court asserts that the collision was caused and/or substantially contributed by the negligence of the claimant. The particulars of the negligence of the claimant are set out as follows;

• i. holding on to the gear lever and steering wheel of the vehicle while it was still in motion;

• ii. attempting to take control of the vehicle from the 2 ^nd defendant;

• iii. causing the 2 ^nd defendant to lose control of the vehicle;

• iv. failing to give any or any adequate thought to what she was doing;

• v. acting in a reckless and dangerous manner.

The Claimant's Submissions

7 The claimant alleges that on the day of the accident, she was a passenger in a motor vehicle proceeding from Half-Way Tree to Papine. The vehicle was a route taxi, driven by 2 ^nd defendant. That she was in the front passenger seat, and there were three (3) persons in the rear seat. Upon reaching the traffic lights at Sovereign Shopping Centre at Old Hope Road, a marked police vehicle stopped alongside the motor vehicle. A police officer in that vehicle told the 2 ^nd defendant that when the traffic light changed he was to pull over to the side of the road.

8 In flagrant disregard of those instructions, the 2 ^nd defendant sped off. A chase ensued during which the 2 ^nd defendant, at times, drove on the sidewalk at a fast speed. The police car was in pursuit, with its siren wailing and signalling the driver to stop. The claimant and the other passengers pleaded with the driver to stop. The driver disregarded their entreaties and continued to drive recklessly and carelessly. He diverted from the route to Papine, onto the Mona Road, to the August Town community where he circled twice as the police was giving chase.

9 The vehicle on its diverted route passed two (2) entrances to the claimant's destination, the University of the West Indies. She was fearful that the motor vehicle would crash or that the police would shoot at it. Being fearful for her life, she attempted to slow the motor vehicle or to bring it to a stop, by putting it into second gear; but her attempt failed. The driver had released the clutch, so the gear shift did not move. He then drove a few metres at a rapid speed, the motor vehicle got out of control and collided into another vehicle which was parked along the roadway.

10 Counsel for the claimant contended that Ms. King was placed in a situation of peril as she was carried away against her own will. The driver was driving in a reckless and careless manner. As such, she was obliged to take actions for her self-preservation. This, according to Counsel, is akin to the Rescuer'scase. Mr. Grant had a duty to Ms. King, to use reasonable skill and care to ensure she was safe during the period of the carriage. This is not a duty anyone can really dispute. This duty was breached; Miss King was in danger and her actions were not unusual.

11 The claimant has reasonable grounds for her actions. She was in fear of her life. The driver admitted he fought the claimant's hand off the gear shift, which she eventually let go. This is not in dispute. However, the claimant denies holding on to the hand brake. If she did the natural reaction is that the car would have spun around, but it did not, it collided with another motor vehicle. Coupled with that, when Ms. King tried to gear down, the 2 ^nd defendant had already released the clutch; hence she was unable to cause the accident. There cannot be any question of contributory negligence. The 2 ^nd defendant cannot create a situation, where innocent and decent people make an attempt for self-preservation. (See; Jones v Boyce [1816] 1 Stark 493).

12 It was submitted that the relevant principle was espoused by Lord Hellinborrow, in Jones v Boyce; “whether the claimant, was placed in a situation, which would require a prudent precaution for self-preservation? The case at hand is so glaring; there is no need to linger with the issue of liability. The demeanour of the 2 ^nd defendant is not forthright. He makes up questions and gives ridiculous answers when shown the witness statement.

13 Counsel submitted on the question of general damages, that the claimant testified that immediately after the collision she felt pain in her chest, back, shoulder and left foot. She was taken to the University hospital. On arrival, she was unable to walk so she was carried to the Accident and Emergency Unit on a stretcher. She was admitted, that same day, 22 ^nd January 2007, and was discharged on 26 ^th January 2007. On 2 ^nd February 2007, she was readmitted and surgery was performed on her left foot. Two surgical plates were implanted along with screws in her left foot. The screws and implants were removed at the Bay View Hospital in Barbados. The claimant did follow up treatments, including physical therapy at the University of the West Indies and at Sports and Physical Therapy Clinic in Barbados.

14 A total of three (3) medical reports were submitted from Dr. Wayne Palmer, Dr. Christopher Rose and Dr. Winston Seale. The injuries sustained by the claimant may be determined under the following heads;

1

Pain and suffering and loss of amenities; and 2. Handicap on the labour market.

15 In assessing Pain and Suffering and Loss of Amenities; Counsel cited (1) Peter Ankle v Florence Cox reported at page 369 of Harrison's Assessment of Damages for Personal Injuries; and (2) Keniel Coombs (by mother and next friend Beverly Coombs) v Steadford Rodney reported at page 63 of Khans Volume 6. With updated awards of $2,736,760.00 and $2,741,125.00, respectively.

16 In relation to Handicap on the Labour Market; the claimant is at a risk, as a result of her injury, of being at a disadvantage in securing a similar paying job. She is currently employed within the nursing field as a Registered Nurse. However, based on the three (3) medical reports, it is clear that she lives and will continue to live with a disability which clearly places her at a disadvantage in her current field.

17 Counsel submitted special damages were agreed in the sum of $JA 200,810.85 and $BD 7036.97. The claimant claims interest of 3% per annum as at 22 ^nd January 2007 to the date of trial and for general damages from 13 ^th November 2007 to the date of trial, at 3% per annum.

The 2 ^nd Defendant's Submissions

18 The 2 ^nd defendant states that on the 22 ^nd June 2007, at about 11.30 am, he was at a taxi stand in Half-Way-Tree when a group of four (4) students, chartered his taxi to go to the University of the West Indies, Mona. The claimant, sat in the front passenger seat and the others occupied the rear seat.

19 The 2 ^nd defendant states that he stopped at the traffic lights at the intersection of Hope Road, Old Hope Road and Barbican Road. While there he saw a police car travelling in the opposite direction, along Hope Road. He then proceeded onto Mona Road, to avoid a build up in traffic. While travelling along Mona Road, he noticed the lights of a police vehicle, but some...