Kirk Brown v Phillip Williams

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: Jarrett, J
• Judgment Date: 28 June 2024
• Year: 2024
• Docket Number: CLAIM NO.SU2019CV00654

Between

Kirk Brown

Claimant

and

Phillip Williams

Defendant

[2024] JMSC Civ.73

Coram:

Jarrett, J

CLAIM NO.SU2019CV00654

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

Damages — Motor vehicle accident — Entering a major road from a minor road — Whether the defendant liable in negligence for injuries suffered by the claimant — Muscle spasm, pains to neck and wrists-Assessment of damages — Whether award should be made for diminution of earning capacity — Whether claimant failed to mitigate his losses.

Mr Richard Reitzin instructed by Reitzin & Hernandez for the claimant.

Mrs Michelle Shand — Forbes and Miss Monique Rowe for the defendant

IN OPEN COURT

Introduction

1 The question in this case is whether Phillip Williams (“the defendant”) is liable in negligence for personal injuries allegedly sustained by Kirk Brown (“the claimant”), arising from a motor vehicle accident on Washington Boulevard on the night of August 9, 2016.

The pleadings

The claim

2 In his claim filed on February 21, 2019, the claimant pleads that on August 9, 2016, at about 8'oclock at night he was riding his motorcycle in a westerly direction along the Washington Boulevard, heading towards Six Miles in the parish of Kingston. The defendant was driving a Toyota Stream motor car travelling on a road which intersects with Washinton Boulevard and allows west bound traffic on Spanish Town Road to turn right and go onto Washington Boulevard in an easterly direction. Where it intersects with the Washington Boulevard, that road forms an obtuse angle. The claimant alleges that his lights were on, streets lights illuminated the area, the road was dry, and the weather was good. He also alleges that just as he reached the intersection, the defendant accelerated out from the road, entered the intersection and collided with him and with his motorcycle.

3 It is alleged that the defendant was negligent in that he failed to exercise due care and attention, failed to wait until the intersection was clear before attempting to cross the westbound side of Washington Boulevard; failed to pay any attention to the traffic nearby including the claimant and was driving too fast to enable him to stop, slow down or steer to avoid the collision.

4 As a result of the collision, the claimant claims to have suffered personal injuries, loss of earnings of $160,000.00 and loss of earning capacity. It is pleaded that at the time of the accident, the claimant was a post man employed to Jamaica Post and also had a contract with a company called DonCross Limited, delivering mail and utility bills for a monthly wage of $80,000.00. It is alleged that the claimant was unable to work for 8 weeks due to his personal injuries. With respect to loss of earning capacity, it is pleaded that the claimant continues to experience pain and disability to his right knee and wrists, and this has impeded his ability to work as a postman and delivery man. It is also pleaded that the claimant's injuries have affected his ability to work on the Canadian Farm Work programme, and twice since the collision, he has been given light duties in Canada due to the pain in his right knee and wrists. He accordingly claims for diminution of his earning capacity.

5 Special damages of $10,000.00 are claimed for travelling expenses and $15,000.00 for medical expenses.

The defence

6 The defendant alleges in his defence filed on April 4, 2019, that he was travelling along the Spanish Town Road, and he stopped at the intersection with Washington Boulevard, waiting to go across to the eastbound side. After waiting for “a while”, two vehicles travelling along the westbound lane of Washington Boulevard stopped side by side and allowed him to proceed. As he proceeded, the claimant rode his motorcycle between the two lines of traffic and “impacted” his vehicle. He denies being negligent and pleads that the accident was caused and/or materially contributed to by the claimant, in that, he failed to keep a proper or any look out; failed to heed the presence of the defendant; failed to observe that traffic had stopped to allow the defendant to proceed; rode between two lines of traffic and collided into the defendant; and failed to slow down or manoeuvre his motorcycle to prevent the collision. He makes no admission to the claim for damages and puts the claimant to strict proof of those losses.

The Evidence

The claimant

7 The claimant's witness statement filed on July 30, 2021, stood as his evidence in chief. He says he resides in Greater Portmore and is a post man and delivery man and at the time of making the witness statement he was 46 years old having been born on August 25, 1974. In August 2016, he owned a KTM110cc motorcycle. On August 9, 2016, he was riding his motorcycle in a westerly direction along Washington Boulevard. He was heading home in the direction of Six Miles and approaching the intersection with a road that allows traffic from the Spanish Town Road to cross the west bound traffic on Washington Boulevard and proceed to the east bound side. The streetlights were shining, the road was dry, the weather was clear, and visibility was good. He describes the road that intersects with Washington Boulevard as: “a kind of slip road” and that it intersects at an obtuse angle. As traffic traveling on the west bound side approached the intersection, Washington Boulevard narrows, traffic basically merged into a single lane and there were no white markings.

8 According to the claimant he was riding on the right side of the roadway, his lights were shining, he was travelling at no more than 50km per hour, the traffic was moderate to heavy and there were some cars behind him and slightly to his left. As he was about to enter the intersection, he saw a vehicle travelling fast out of the slip road with a: “burst of speed”, and before he could react to what was happening, the front of the car smashed into his left leg throwing him off the motorcycle and onto the road surface. He remembers hitting the road surface with his hands and knees and finding himself on it. Two men came to help him up and onto the island separating the west bound traffic from the east bound traffic. He says that at first, he was lying down, but remembers that when he became more conscious of what was happening, he began to feel pain: “all over” and realised that he was bleeding from his left leg.

9 The driver of the motor car, who he now knows as the defendant, was saying very little but was not denying that he was in the wrong. In fact, he heard him saying to bystanders that he did not see the claimant. Later, he asked the driver whether he could fix his motorcycle and take care of his medical bills, but the defendant responded that he had children going back to school, did not have any money as all his money went into getting the children ready for back to school. Two policemen came on the scene, they placed his motorcycle in the police van and drove him to the Duhaney Park police station. At the police station he saw the defendant and made a written report of the accident. His wife came to the station, and they went home together. When he got home, he was still in pain, particularly in his neck, right shoulder, writs and both knees. He also had a headache. The pain was more intense on the left side of his body. His wife helped him undress and she cleaned his wound. He had difficulty sleeping that night due to the pain. The day following the accident, he did not go to work at DonCross Limited as he was having a headache and was still in pain. Two days later he was still having a headache and continued to have pain in his right shoulder, neck, wrists and knees.

10 On Thursday August 11, 2016, he visited Dr Nastasia Wade-Saddler (“Dr Saddler”). She gave him a prescription for pain medication and referred him to do X-rays of the neck, shoulder, wrists and knees. The medication helped to relieve the pain and he did X-rays at Apex in Portmore Pines. He made two further visits to Dr Saddler. The second visit was on August 15, 2016. He complained of stiffness in his neck, shoulder, wrists and knees. He had recently learned that his motorcycle was a “write off” and that a new one would cost over $100,000.00. He did not have that money and was extremely concerned. Dr Saddler referred him to physiotherapy and for counselling to cope with the stress. He was advised to continue to take the pain medication, was given a prescription for muscle relaxants and a sick leave certificate. He sought counselling from the elders at this church, but he could not afford the physiotherapy.

11 His third visit to Dr Saddler was on September 12, 2016. He was feeling less stressed and having occasional pain in his left knee and stiffness in the back of his neck. He told her that the topical pain medication was not working as it used to. She examined him and advised him that he has spasm in the neck. She prescribed different pain medication and again recommended physiotherapy. Currently he has pain in his knees when he stoops or kneels, and this is especially in the right knee. He is unable to play football with his boys or run: “too hard”, due to the pain in his knees. Due to pain in his wrists, he cannot lift heavy objects and for several months after the accident he felt pain in the neck when bending down. For several months after the accident, he also felt pain and tenderness in the lower back whenever he drove for extended periods. He experienced pain and difficulty when delivering mail and bills on his motorcycle when he returned to work 6 to 8 weeks after the accident. There was also difficulty getting out of bed, bathing, dressing, cooking, washing, ironing and engaging in intimacy.

12 In relation to his special damages, the claimant says that as a post man he is paid upkeep and mileage for his motorcycle and due to him being unable to work because of the accident he lost 8...