Lennox Cox v National Solid Waste Management

• Jurisdiction: Jamaica
• Judge: Thomas, J.
• Judgment Date: 13 December 2019
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2011 HCV 01041
• Date: 13 December 2019

[2019] JMSC Civ 228

In the Supreme Court of Judicature of Jamaica

CLAIM NO. 2011 HCV 01041

Between

Lennox Cox

Claimant

and

National Solid Waste Management

1 ^st Defendant

Herron Lloyd

2 ^nd Defendant

IN OPEN COURT

Mr. Leslie Campbell instructed by Campbell, McDermott for The Claimant.

Ms. Deandra Butler instructed by Samuda and Johnson for The Defendants.

Ms Gayle Mitchell Legal office for the 1 ^st Defendant.

Motor vehicle Accident — Personal Injury — Negligence — Breach of Duty of Care.

Thomas, J.

Introduction

1 This case concerns a motor vehicle accident in which the Claimant alleges in her Claim and her Amended Particulars of Claim that on the 5 ^th of January 2006 she was a passenger in a motor vehicle licenced 9123 DF, travelling along the Daniel Town Main Road in the parish of Trelawny; the 2 ^nd Defendant who was travelling in the opposite direction, was the authorized driver of a motor truck owned by the 1 ^st Defendant and servant or agent of the 1 ^st Defendant. She further claims that the 2nd Defendant negligently drove the motor truck and caused it to collide with the motor car in which she was travelling causing her to suffer injury loss and damage.

2 The Defendants have countered the allegation of the Claimant in their Defence with the following averment:

“While Mr. Stewart (not Mr. Herron Lloyd) and authorized driver of the 2 ^nd Defendant was negotiating a left hand corner the motor vehicle registered 9123 DF driven by Mr. Ashod Melbourne, at the material time was proceeding in the opposite direction. A man was pushing a hand cart on Mr Melbourne's side of the road in the said corner. Mr. Melbourne failed to reduce his speed while approaching the said corner and when he eventually applied the brakes the motor vehicle skidded and spun around with the right fender proceeding onto the incorrect side of the road thereby colliding with the right front side of the 1 ^st Defendant's truck.”

3 An Ancillary Claim was filed by the 1 ^st Defendant against the driver of the vehicle in which the Claimant was travelling, that is Mr. Ashod Melbourne. However Counsel for the 1 ^st Defendant and the Ancillary Claimant in the Ancillary Claim indicates that a Judgment in Default was obtained against Mr. Melbourne. Therefore, the trial proceeds on the Claim only.

The Issues

4 This Claim is based in negligence.

Consequently, the issues which lie to be determined are:

• (i) Whether the Defendants owed a duty of care to the Claimant

• (ii) Whether the Defendants have breached their duty of care to the Claimant.

• (iii) Whether arising from a breach of a duty of care by the Defendants to the Claimant injuries have been suffered by the Claimant.

Whether The Defendant Owed a Duty of Care to The Claimant

5 It is an established principle of law that all road users owe a duty of care to other road users. (See Esso Standard Oil SA Ltd & Another v. Ivan Tulloch (1991) 28 JLR page 5570). The 1 ^st Defendant has not challenged the evidence of the Claimant that she was a passenger in a motor vehicle that was being driven on the road and which was involved in the collision. Additionally, the 1 ^st Defendant has not denied that they are the owners of the motor truck that was involved in the collision and that at the time Mr. Stewart, the driver of the motor truck was their authourized driver as such, acting as their agent. Consequently, it has been established on the evidence that at the time of the collision the Claimant was a road user and that the 1 ^st Defendant through their agent and driver of their motor truck owed a duty of care to the Claimant

Whether the Defendants Breached Their Duty of Care to the Claimant

The Evidence and Analysis

6 The case of the Claimant as gleaned from her evidence in chief is that:

On the 5 ^th of January 2006 she was travelling as a passenger in the motor vehicle licence 9123 DF on the Danielle Town Main Road in Trelawny. On reaching a section of that road she noticed the 1 ^st Defendant's garbage truck driven by Mr. Stewart coming from the direction of Falmouth. The truck was coming around a corner and came on her driver's side of the road where it hit the car sending it to the edge of the road near the precipice. She states that she read the defence in relation to the allegations that the collision was caused by her driver Mr. Melbourne going around a hand cart and going on the other side of the road and collided in the truck. Her evidence in response to this allegation is that It was after the collision with the 1 ^st Defendant's truck, when Mr Melbourne managed to get the car back on the road that she noticed a hand cart in front of the vehicle and Mr. Melbourne went around the hand cart to avoid hitting it.

7 I take the view that the only construction on this bit of evidence is that the first time the Claimant was seeing the hand cart was after the collision.

8 The Claimant on cross examination agrees that there is a precipice to the left and an embankment to the right where the accident occurred. She states that about two (2) feet of the truck came over on Mr. Melbourne's side of the road. Mr. Melbourne did not swerve as they were already in the corner and he could not go over any more because of the precipice.

9 However, when confronted with her witness statement The Claimant agrees that she said in the statement that it was the collision that pushed the car to the edge of the road. She thereafter maintains that the statement that “it was the collision that pushed the car to the edge of the road” is the truth. She declared that when she first saw the hand cart it was three (3) feet from her vehicle on the side that the truck was on and that it was not always on her side of the road. She further states that when she first saw the hand cart on the opposite side of the road, the collision had not yet occurred; that about seconds to a minute passed between the time she first saw the hand cart and the accident.

10 Further, according to the Claimant's evidence on cross examination the hand cart was in the corner of the opposite side of road near the embankment when she first saw it. Evidently, this portion of her evidence stand in stark contrast to the earlier statement in her evidence in chief that she first noticed the hand cart after the collision on her side of the road. She further states on cross examination that after the accident happened the hand cart was on Mr. Melbourne's side of the road; that the hand cart came across the road after the accident. However she agrees that it was the first time she was saying this.

11 Counsel for the Claimant submits that the fact that the impact to the car in which the Claimant was travelling was to the right, is consistent with her version of the accident. Counsel for the 1 ^st Defendant submits that critical details of the Claimant's evidence reveal several inconsistencies which go to “the root of her credibility”. She pointed to the Claimant's evidence with regards to the fact that she stated that the truck only came over two (2) feet on her side of the road, yet she states that her driver could not swerve as he had no space to go further left on her side. Additionally, she highlighted the fact that the Claimant mentioned for the first time in cross examination that she saw the handcart on the opposite side of the road prior to the accident. She submits that the presence and location of the handcart are” critical to these events” and that there are inconsistencies on the Claimant's case regarding the presence and movement of the handcart around the time of the accident. She asks the court to find that these inconsistencies are attempts on the part of the Claimant to deceive the court and that the accident could not...