Kishane Hall v Kemwell Tapple and Kenardo Nicholas

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: Staple, J.
• Judgment Date: 17 April 2026
• Year: 2026
• Docket Number: Suit No.: SU2023CV01835

Kishane Hall

and

Kemwell Tapple and Kenardo Nicholas

JM 2026 SC 29

Staple, J.

Suit No.: SU2023CV01835

Supreme Court

Appearances:

Ms. Christine Mae Hudson with Mrs. Antoinette Wynter-Mignott instructed by K. Churchill Neita & Co. for the Claimant.

Ms. Faith Gordon instructed by Samuda & Johnson for the 1st Defendant.

BACKGROUND

Staple, J.

1 In the mid to late afternoon of the 9th July 2021, along Lyndhurst Road in the parish of St. Andrew, there was a collision between the Claimant, a motor cyclist and the 1st Defendant's servant and/or agent, the 2nd Defendant who was driving the 1st Defendant's motor vehicle.

2 The versions of the collision by the Claimant and the 2nd Defendant are diametrically opposed to each other and the only things agreed between them are the fact of a collision and the road on which the collision took place.

3 Both sides have asserted that the other side is entirely to blame for the collision and the Claimant has filed the instant claim to recover Damages for Negligence whilst the Defendant has stoutly resisted the claim and included in his defence a claim for contributory negligence on the part of the Claimant.

4 To this end, the Court is tasked with resolving this dispute between the parties. I have received submissions in writing from the parties and I am grateful for them. They have been duly considered and taken into account for this judgment.

5 It is important to note that the 2nd Defendant was never served with these pleadings. He did, however, give evidence on behalf of the 1st Defendant. The question of vicarious liability of the 1st Defendant for any potential negligence of the 2nd Defendant was raised in the 1st Defendant's defence. However, no submissions were made by either side in respect of this issue.

THE LAW ON NEGLIGENCE

6 I remind myself that it is the Claimant who must satisfy me that it was more likely than not that the 1st Defendant (vicariously as owner) owed him a duty of care and that the collision and consequent injury was the consequence of the 1st Defendant's breach of that duty to him.

7 Lord Griffiths in the case of Ng Chun Pui and Ng Wang King v. Lee Chuen Tat et al [198] UK PC 7 reminds us of the burden and standard of proof in a negligence matter. He stated at pages 3 and 4 of his judgment that:

“The burden of proving negligence rests throughout the case on the plaintiff. Where the plaintiff has suffered injuries as a result of an accident which ought not to have happened if the defendant had taken due care, it will often be possible for the plaintiff to discharge the burden of proof by inviting the court to draw the inference that on the balance of probabilities the defendant must have failed to exercise due care, even though the plaintiff does not know in what particular respects the failure occurred………it is the duty of the judge to examine all the evidence at the end of the case and decide whether on the facts he finds to have been proved and on the inferences he is prepared to draw he is satisfied that negligence has been established.”

8 Negligence is proven by establishing that the 1st Defendant owed the Claimant a duty of care; that the 1st Defendant breached that duty; and that the breach led to loss, injury or damage to the Claimant that was foreseeable [See the case of Glenford Anderson v. George Welch [2012] JMCA Civ 43 at para. 26].

9 In establishing this duty of care, the damage to the Claimant caused by the Defendant's negligent act must have been foreseeable and there must exist a sufficient proximate relationship between the Claimant and the Defendant to make it just to impose this duty of care on the Defendant to the Claimant.

10 In Jamaica, the legislation governing driving on the road at the time of this collision was the Road Traffic Act, (1938). Specifically, section 51. Section 51(2) provided essentially that all drivers have a duty to take such action as is necessary to avoid an accident. In the context of this case, the Claimant is also considered a driver.

11 Relevant as well is s. 51(1)(d). I will set it out below:

“51(1) The driver of a motor vehicle shall observe the following rules – a motor vehicle…

(d) shall not be driven so as to cross or commence to cross or be turned in a road if by doing so it obstructs any traffic.

12 Concerning the question of vicarious liability, it is for the Claimant to prove that the 1st Defendant, as owner, is vicariously liable for the actions of the driver of his vehicle. The decision Rasheed Wilks v. Donovan Williams [2023] JMCA Civ 15 makes this point.

13 The owner of a vehicle, when confronted with an allegation in the pleadings that the driver of his vehicle was acting as his servant and/or agent, must properly put before the Court adequate pleadings to address the allegation that the driver was his servant and/or agent.

14 If he fails so to do, then, the Court will consider that he has not rebutted vicarious liability. It cannot contain a bare denial of the allegation without supporting facts. This runs afoul of rule 10.5 of the Civil Procedure Rules [See the discussions from paragraphs 30–40 of the Rasheed Wilks case above at n3 supra].

THE EVIDENCE AND FINDINGS OF FACT

HOW DID THE COLLISION OCCUR?

THE CLAIMANT'S VERSION

15 The Claimant's evidence is that he was riding his motorcycle in the left lane along Lyndhurst Road on the afternoon of the 9th July 2021 at or around 2:00 pm. He was heading in the direction of Cross Roads from Maxfield Avenue. He said he was able to see clearly along the roadway and no vehicles were ahead of him. Up ahead, on his left, was an intersection with a road he identified as Grove Road.

16 There were vehicles in the lane of traffic to his right heading in the direction of Maxfield Avenue from Cross-Roads. He described the traffic as being bumper to bumper for as far as his eye could see. He said he saw vehicles coming out of the line, overtaking the line and making, what would be for those vehicles, a right turn onto the Grove Road. According to him, on seeing this, he reduced his speed and started tooting his horn.

17 To his left, near to the Grove Road intersection, was a wholesale and a layby. The layby was in front of the wholesale. In the layby was a van/truck with its two left wheels on the sidewalk and the right wheels in the layby. However, it was not blocking his lane.

18 As he continued along Lyndhurst Road, he saw a vehicle, which turned out to be the 1st Defendant's vehicle, emerge from the line of traffic heading towards Maxfield Avenue and coming in his direction in his lane at what he said was a fast rate of speed. Upon seeing this, he tried to take evasive action by swerving, but he could not swerve left due to the truck, so he swerved right, but there was a collision between his motorcycle and the 1st Defendant's car.

19 He insists, in his witness statement, that he was always in his correct riding lane and that it was the driver of the car that came out of the opposite lane, into his lane and collided with him.

20 In cross-examination, in answer to the tribunal, he said he was travelling between 15–20 miles per hour at the time of the collision.

21 He accepted that there was a Unipet Gas Station on his left hand as one is going towards Cross-Roads. Crucially, he said one reaches to the Grove Road intersection, before one reaches to the wholesale with the layby of which he spoke in his evidence in chief. This means, and I so find, that he must have passed the Grove Road intersection, on his case, when he was hit by the 1st Defendant's vehicle.

22 He estimated the distance from the Grove Road intersection to the Unipet Gas Station to be about 49.5 feet using the Court Room length as a guide. According to him, he saw no vehicles exiting the gas station as he rode along.

23 He denied that there was traffic ahead of him in the lane heading to Cross-Roads. He also denied that he attempted to pass traffic in the Cross-Roads bound lane in the vicinity of the Unipet Gas Station.

24 There followed this exchange (question numbering changed for convenience):

• 1 Where were you when you saw the first vehicle overtaking the line of traffic and head to Grove Road?

  When I was near a plaza further up the road from Grove Road on the same side of the road. I don't remember the name of the Plaza.

• 2 Can you say how far this Plaza was from Grove Road?

  About half of this Court room.

• 3 So from the Plaza you start to slow down and toot your horn?

  Yes.

• 4 When you got to Grove Road, how many vehicles you saw overtake and go onto Grove Road? It was more than one.

• 5 What did you do when you got to Grove Road and saw the vehicles overtaking?

  When I got to Grove Road and saw the vheicles, I reduced my speed.

• 6 You further reduced your speed?

  Yes.

• 7 When you reduced your speed, how fast were you going?

  20–15 mph.

25 This suggests then, on the Claimant's case, that he was taking care to observe the vehicles coming and overtaking their line of traffic to make it onto Grove Road. He was challenged by counsel for the 1st Defendant that he did not position himself to stop when he saw these vehicles. His rejoinder was that was why he reduced his speed.

26 There was then this exchange:

• 1 When you first saw the Toyota pull out of the line of traffic where were you?

  I was in the lane heading to Cross-Roads. I was a little bit before you pass Grove Road. So I actually saw the vehicle swing out of the line of traffic when I was in front of the yellow wholesale.

• 2 From the yellow wholesale, can you estimate the distance of the Toyota when you saw it swing out?

  I was from here (witness box) to the door. (Estimated using a tape measure at 14 feet).

• 3 About how many vehicles did it overtake?

  I suddenly saw the vehicle. So I am not sure.

• 4 You cannot say how fast the 2nd Defendant was going? No.

• 5 You did not swerve left correct? No.

• 6 You swerved to the right...