Maurice Whittingham and Winston Everton Reid v Cecil Brooks

• Jurisdiction: Jamaica
• Judge: HARRISON, J.A:
• Judgment Date: 06 April 2001
• Neutral Citation: JM 2001 CA 19
• Judgment citation (vLex): [2001] 4 JJC 0612
• Court: Court of Appeal (Jamaica)
• Date: 06 April 2001

IN THE COURT OF APPEAL

BEFORE:

THE HONOURABLE MR. JUSTICE HARRISON THE HONOURABLE MR. JUSTICE PANTON THE HONOURABLE MR. JUSTICE COOKE (Actg)

CIVIL APPEAL NO: 107 OF 1998

SUIT NO: C.L. B. 112 OF 1991

BETWEEN

MAURICE WHITTINGHAM

DEFENDANT/APPELLANT

AND

WINSTON EVERTON REID

DEFENDANT/APPELLANT

AND

CECIL BROOKS

PLAINTIFF/RESPONDENT

Miss Hilary Phillips, Q.C.

Lawrence Haynes

NEGLIGENCE - Contributory - Award of damages - Judgment varied

HARRISON, J.A

1 This is an appeal from the judgment of Karl Harrison, J., on 10 ^th July, 1998, entering judgment for the plaintiff for general damages in the sum of $1,500,000.00 plus interest from the date of service of the writ and special damages in the sum of $1,304,640.00, plus interest from 11 ^th January, 1998, each award to be at 3% to 10 ^th July, 1998, and costs to be agreed or taxed.

2 On 14 ^th July, 2000, we allowed the appeal, and varied the order of the court below. We apportioned the liability and found the appellant to be 85% to blame and consequently, the respondent to be 15% to blame.

3 In substitution we ordered that there should be judgment for the plaintiff/respondent as to general damages, $1,500,000.00 reduced by 15% plus interest at 3% from the date of service of the writ, and special damages $359,640.00 reduced by 15% plus interest at 3% from 11t ^h January, 1989, and costs to be agreed or taxed. As promised these are our reasons in writing.

4 The facts are that on 11 ^th January, 1989, the plaintiff/respondent was driving his Volkswaggen motor bus along the Queen's Drive, Montego Bay on his left side of the road, with a car travelling behind him. A Lada motor car approaching him from the opposite direction slowed to a stop. A pickup truck owned by the first defendant/appellant and driven by the second defendant/appellant, in order to avoid running into the back of the Lada motor car moved over onto its incorrect side of the road, attempted to overtake the Lada motor car and hit into the side of the Volkswaggen bus damaging its right front door, right front window and right door panel, and severely injuring the respondent's right arm which was extending outside the right window of his motor vehicle. When the respondent had seen the appellant's pickup come onto his side of the road 20 - 40 feet in front of him, with his right hand outstretched, he signalled the motor vehicle behind him to slow down. He then swerved to his left and his motor vehicle came to rest with his left wheels on " ... a part of the soft shoulder", but there was then a further 4 to 5 feet of soft shoulder to his left.

5 The grounds of appeal, summarized, were that the learned trial judge was in error to accept the evidence of the plaintiff as truthful, in view of the discrepancies in his evidence, the physical damage to the respective vehicles, to the contrary, and that the plaintiff contributed to his own injury by his carelessness, due to his positioning of his hand at the time of the collision. Counsel for the appellant argued the said grounds, maintaining that the learned trial judge should have found the plaintiff to have been contributorily negligent despite the fact that no details of contributory negligence were pleaded. The award of damages was excessive.

6 Counsel for the respondent argued that on the evidence, the finding as to liability should not be disturbed. The learned trial judge correctly found non-contribution in the plaintiff, both due to the pleadings and the state of the law, and the award was not excessive.

7 A defence of contributory negligence operates, if successful, to reduce the claim of a plaintiff, to the extent to which a court hearing the case, finds such a plaintiff to be at fault. Section 3 of the Law Reform (Contributory Negligence) Act, reads:

" 3. - (1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."

8 If a statutory defence is relied on by a party, such defence should be pleaded, and particulars thereof should be given.

9 ...