Mavis Smith v The Chief Technical Director and Another

• Jurisdiction: Jamaica
• Judge: Mangatal J:
• Judgment Date: 06 March 2009
• Judgment citation (vLex): [2009] 3 JJC 0602
• Court: Supreme Court (Jamaica)
• Date: 06 March 2009

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

BETWEEN

MAVIS SMITH

CLAIMANT

AND

THE CHIEF TECHNICAL DIRECTOR

1 ^ST DEFENDANT

AND

THE ATTORNEY GENERAL OF JAMAICA

2 ^ND DEFENDANT

Mr. Lawrence Haynes for the Claimant.

Miss Nicola Brown instructed by the Director of State Proceedings for the Defendants.

NEGLIGENCE - Motor vehicle accident - Personal injuries - Credibility - Duty owed by a Highway Authority to a person who suffers injury while using highway - Res ipsa loquitor - Main Roads Act, s. 6

Mangatal J

1 Mrs. Smith had an unfortunate accident while walking along Church Street Main Road, Morant Bay, Saint Thomas. She states that she sustained injuries when she fell in a pothole on the road and she contends that the Defendants are liable for her injuries. Although the Statement of Claim and other documents filed refer to this incident as having occurred on the 25 ^th of September 2000, by agreement between the parties, all such references are to be treated as references to the 28 ^th September 2000.

2 The claim is made on the basis that prior to September 28 2000, workmen attached to the Government Public Works Department carried out repairs and/or excavation works on the main road and created a deep hole which remained unfilled up to the time of Mrs. Smith's accident. By permitting the pothole to remain unfilled and/or unfenced, it is alleged that the Defendants acted negligently or in breach of the statutory duties under the Main Roads Act. Mrs. Smith also contends that there were no warning signs posted to indicate that there was a hole in the road. When it rained on the day in question the pothole was filled with water and this resulted in Mrs. Smith not seeing the pothole and stepping into it.

3 The Defendants for their part contend that at the time of the alleged accident there was no hole at the location and they were not carrying out any work on any section of the Church Street main road. Further, the Defendants state that at no time prior to the date of the alleged incident was any work carried out by the Defendants on the particular stretch of road.

THE ISSUES

4 The main issues which arise are:

(i) -POTHOLE OR NO POTHOLE AND DID MRS. SMITH FALL IN IT

• (i) Was there any pothole? Did Mrs. Smith fall into a pothole along the Church Street main road?

• (ii) What, if any, is the duty owed by a highway authority to a person who suffers injury in the course of using the highway?

• (iii) Does (he principle of res ipsa loquitur apply in the circumstances of this case? In other words, do the facts speak for themselves and raise an inference of negligence against the Defendants?

• (iv) Was the highway authority in breach of its statutory duty? Did the highway authority owe a duty of care to Mrs. Smith? Was the authority guilty of negligence?

• (v) If the Defendants are found liable, is Mrs. Smith entitled to compensatory damages and if so, in what sums?

5 One of the first factual matters which Mrs. Smith has to make out is whether there was a pothole in the road. The Defendants say there was not.

6 I turn to examine the evidence. Mrs. Smith states in her witness statement that it was while she was walking along the main road, in the vicinity of a place known as "Chi-Chi" that she fell into a pothole which was at the side of the road. In oral amplification of her statement in court, she said that she knows that there is a pothole there because she had seen it there before that day. She indicated that whenever it rains the pothole would flood with water. When cross-examined Mrs. Smith indicated that she did not have an opportunity to point out the exact location of the pothole to any member of the Public Works Department. She indicated that there was a sidewalk on the Morant Bay main road; it is what she would refer to as the piazza for the shops that are along the road. She was wearing flat shoes on the day in question.

7 Mrs. Smith called one witness on her behalf, Miss Michelle Duncan. Miss Duncan in her witness statement indicated that on the date in question, at about 11:30 a.m. to 12 noon, she was at her stall in the Morant Bay market. She is a higgler, i.e. she buys and sells goods. Miss Duncan states that she looked up the road to the east, which is in the Morant Bay direction, and she saw Mrs. Smith walking towards her. In her statement Miss Duncan claims that she saw Mrs. Smith fall into a pothole. Miss Duncan's mother helped Mrs. Smith to get up. In cross-examination Miss Duncan clarified that when she first saw Mrs. Smith that day Mrs. Smith had already fallen. Miss Duncan testifies that she could not see the pothole from where she was because of the water on the road surface that particular day. She disagreed with Counsel for the Defendants that Mrs. Smith could have fallen next to the pothole because she says that she knows the spot where the pothole is because she sells in the market every day.

8 There was one witness called on behalf of the Defendants and that was Mr. Fred Sinclair. Mr. Sinclair in his witness statement indicated that he was now a pensioner but between 1998 and 2002, he was Senior Superintendent / Parish Manager of the National Works Agency for the Parish of Saint Thomas. Prior to that he had worked with the Public Works Department for more than three decades. His duties as Senior Superintendent /Parish Manager entailed overall responsibility for main arterial, secondary and tertiary roads, including all structures found on these roads such as bridges, walls, drains and culverts.

9 Mr. Sinclair states that one day in September 2000, he was unable to recall the exact date, Mr. William Smith came to Mr. Sinclair's office in Morant Bay. He introduced himself as the husband of Mrs. Mavis Smith and he indicated that his wife was in the hospital as a result of her stepping into a pothole and falling down on the road. Mr. Smith was unable to assist in terms of indicating the exact spot where his wife was said to have fallen. He indicated that he had not in fact been present when his wife fell so he only had a rough idea as to where she had fallen. Mr. Sinclair states that based on information received from his works overseers and field staff who he had asked to accompany Mr. Smith to the scene, he Mr. Sinclair went to same area which had been pointed out by Mr. Smith but he did not observe any pothole. Mr. Sinclair states that his department decided to wait for Mrs. Smith to come in and tell them exactly what the location where the accident took place was, but Mrs. Smith never did attend at his office.

10 As regards the question of works done, Mr. Sinclair stated that he does not recall any road or excavation works along the Morant Bay main road immediately before the 28 ^th September 2000 or on that day itself. He said that the National Works Agency subsequently did some investigations but the results revealed that there was no record of any such works done.

11 The general area identified by Mr. Smith was not subject to inundation, flooding or scouring of any kind due to rainfall. Upon investigation, there was no indication of depressions in the road surface or potholes in the general area. As a matter of fact, according to Mr. Sinclair, approximately one year prior to September 2000, the entire road surface was overlaid with barber green which gave it a very smooth driving surface.

12 Mr. Sinclair described in some detail the normal procedure carried out by the National Works Agency when a claim of this nature is made, including inspecting the location and taking precise measurements, and making a sketch of various cross-sections of the pothole. Statements from the complainant and any eye witnesses would then be obtained. A report would be prepared by his Department to indicate whether the complainant was negligent, whether the Department was negligent, or whether it was an act of God.

13 No aspect of these procedures was ever carried out because Mrs. Smith never attended to report the matter and no site of the alleged incident was ever precisely identified to the National Works Agency. It is to be noted also that Mr. Smith, the only person who could be said to have attempted to identify the general, if not the exact location of the pothole, did not give evidence and I do not recall any explanation being advanced for his not testifying.

14 In cross-examination, Mr. Sinclair estimated that the distance between his office and a place called Hope and Company, is about twenty chains. It was never made clear to me exactly where that was, but I draw the inference that the area known as Chi-Chi where the incident is alleged to have happened, falls within that stretch of the main road. Mr. Sinclair's evidence was that no pothole whatsoever was along that stretch on the relevant date in September 2000. He stated that his Department would have authority to allow the telephone companies, and electric lighting personnel to do works on the road. These persons sometimes seek permission but sometimes they do not. Sometimes they perform work which involves the road and they do not restore the road back to the condition it was in before. Mr. Sinclair stated that under the law it was the National Works Agency's responsibility to see that they restore the road to the condition that it was in.

FINDINGS OF FACT

15 I do not in any way doubt the truthfulness or integrity of Mr. Sinclair's evidence as to whether there was or was not a pothole as alleged by Mrs. Smith and Miss Duncan. He struck me generally as a public servant of considerable ability, diligence and integrity. However, although I am confident that Mr. Sinclair truthfully and to the best of his ability and recollection, recounted the procedures normally adopted by the National Works Agency when there is...