Melvin McCurdy v George Campbell and Jin Hee Kim

• Jurisdiction: Jamaica
• Judge: Morrison, J
• Judgment Date: 31 January 2014
• Neutral Citation: [2014] JMSC Civ 5
• Docket Number: CLAIM NO. 2010 HCV 0411
• Court: Supreme Court (Jamaica)
• Date: 31 January 2014

[2014] JMSC Civ. 5

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

Coram:

Morrison, J.

CLAIM NO. 2010 HCV 0411

Between

Melvin McCurdy

Claimant

and

George Campbell

1st Defendant

and

Jin Hee Kim

2nd Defendant

Ms. Audrey Clarke instructed by Judith M. Clarke & Co., for Claimant.

Mr. Garth Lyttle instructed by Garth Lyttle and Co., for the Defendants.

Negligence — Motor Vehicle Accident — Whether pedestrian walked into the path of moving motor vehicle — Whether driver of motor vehicle negligent — Injuries to pedestrian — Measure of damages

1 On May 30, 2009, motor vehicle registration number 9584 DM came into violent contact with the Claimant and in the result caused the Claimant to be treated for resultant injuries to his person.

2 The facts giving rise to this accident are in dispute. I propose to set out the pleadings and the evidence in support thereof in order to determine the issues of credibility and ultimately, the vexed question of liability for negligence.

THE PLEADINGS

3 According to the particulars of Claim, the first Defendant was at all material times the driver, employee/servant and/or agent of the second Defendant who was the owner of the motor vehicle under reference.

Paragraph 3 asserts that on or about the 30 ^th day of May 2009, while the Claimant was going about his business in the vicinity of the Liguanea Shell Service Station, at the intersection of Old Hope Road and Munroe Road in the parish of Saint Andrew, the first Defendant so carelessly, recklessly and negligently drove, operated, managed and/or controlled motor vehicle registration No. 9584 DM along the said Service Station that the same collided with the Claimant as a consequence of which the Claimant sustained injuries, suffered loss and damage and incurred expenses.

4 The Particulars of the Negligence of the first Defendant were identified to be:

• i. Driving without due care and attention

• ii. Driving at a speed which is excessive in all the circumstances.

• Iii. Failing to have any or any sufficient regard for other users of the roadway.

• Iv. Failing to have proper look out in all the circumstances.

• v .Failing to stop, swerve, stop, slow down or to otherwise operated the said motor vehicle so as to avoid the said collision.

5 As against the second Defendant the Claimant pleaded rather elliptically: “Permitting the 1 ^st Defendant, employee/servant and or agent (sic)”.

As to the Particulars of Injuries they charge loss of consciousness, fractured neck with limitation of range of motion of the cervical spine, broken nose, herniated disc (3/C4 5% Whole Person disability.

6 The Defence of the first and second Defendants, at paragraph 1 is a denial that the first Defendant drove the said vehicle recklessly, carelessly or negligently or that the first Defendant was the cause of the accident. In fact, say both Defendants “the injuries, damage and losses suffered by the Claimant were wholly caused by the Claimant who negligently walked from the Texaco Gas Station before a parked truck along Munroe Road into the path of the Defendant's vehicle who was driving in the same direction on said road and on the correct side of the road”.

7 Further, in descending to the Particulars of Negligence of the Claimant , the Defendants have the Claimant:-

The Defendants ended by saying that all the allegations of injury and or loss suffered by the Claimant are denied.

• a) Negligently and carelessly walking into the path of the Defendant's motor vehicle”.

• b) Walking from the Shell Gas Station premises at Liguanea before a parked truck, into the path of the second named Defendant's vehicle.

• c) Walking across the street without due regards to the other users of the said street (sic).

• d) Stepping form before a parked truck into the path of the Defendant's vehicle.

• e) Not having any or any proper look out and thereby cause the said accident.

THE EVIDENCE

8 The evidence on which the Claimant's case rests is comprised of the Claimant himself, and Mr. Alrick Stanford, his walking companion at the relevant time.

According to the Claimant, he was walking along the side of the road in the company of Mr. Stanford in the vicinity of the Liguanea Shell Service Station at the intersection of Old Hope Road and Munroe Road, Saint Andrew, when, on reaching the vicinity of the said Service Station he saw a parked truck on the sidewalk close to the entrance of the Service Station “which compelled me to walk along the side of the truck on the outer side to enter the service station”. When he reached towards the front of the truck, he continues, and was proceeding to the Mini Mart to purchase something to eat, “I felt something hit me from behind causing me to fall to my face. It felt like a blow from a motor vehicle. I fell on the ground and lost consciousness for a while”. The above constitutes the nub of the Claimant's account of the material event.

In support, Mr. Stanford's evidence substantially supports the evidence of the Claimant:”… we were walking towards the Liguanea Shell Service Station… A truck was just below the entrance of the Shell Service Station… I was in front of the Claimant. I passed the truck and entered from the sidewalk to the Service Station… The Claimant was approximately four (4) feet behind me. As soon as I entered the Service station and realized that a Nissan Serena station wagon motor vehicle registration No. 9584 DM had hit the Claimant… When the Claimant was hit by the motor vehicle, he fell in front of the truck…”.

9 As for the first Defendant driver he testified that he was travelling at about 15–20 kilometres per hour along Munroe Road when, “as the front of my vehicle was about to clear the front of the truck”, which was parked in such a position that half of the truck was on the sidewalk and half on the road surface, “a man walk (sic) from in front of the parked truck and into the side of my vehicle. I immediately applied my brakes and the car came to a complete stop”.

The evidence of Mr. Garfield Garvey, front left seat passenger, of the vehicle being driven by the first Defendant supports that of Mr. Garvey: “Just as my vehicle reached the front of the truck a man stepped from before the truck into the path of our vehicle and it was the left wing mirror that hit him and he fell to the ground”.

9 Under cross-examination the Claimant testified that he had walked for about twelve (12) feet from the front of the truck to go to the Gas Station when he was hit. However, he testified he had not yet turned to go into the Gas Station. However,...