Neil Lewis v Astley Baker

• Jurisdiction: Jamaica
• Judge: Anderson, K., J.
• Judgment Date: 17 January 2014
• Neutral Citation: [2014] JMSC Civ 1
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2009HCV06486
• Date: 17 January 2014

[2014] JMSC Civ 1

IN THE SUPREME COURT OF JUDICATURE

SUPREME COURT LIBRARY

KING STREET

KINGSTON, JAMAICA

Judgement Book

CLAIM NO. 2009HCV06486

Between

Neil Lewis

Claimant

and

Astley Baker

Defendant

Christine Hudson , instructed by K. Churchill Neita and Co. for the Claimant

Stacia Pinnock-Wright , of counsel, for the Defendant

NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — OVERTAKING OF VEHICLE — TURNING INTO PATH OF ONCOMING VEHICLE — DENIAL OF ALLEGATION — NEED TO PUT FORWARD REASONS FOR DENIAL — FAILURE TO PUT OWN VERSION OF ALLEGATION WHICH HAS BEEN DENIED

Anderson, K., J.

1 This claim pertains to a vehicular accident involving two persons in particular, namely: Neil Lewis (hereafter referred to as “the claimant”) and Astley Baker (hereinafter referred to as “the defendant”). The claimant and the defendant are hereinafter collectively referred to as, “the respective parties”. The motor vehicle accident which occurred between the respective parties, occurred on June 16, 2005, at the time of either between 1 p.m. and 2 p.m. (according to the defendant's version of events), or at or about 2:45 p.m. (according to the claimant's version of events). The said accident occurred, according to the respective parties, at the intersection between Orange Street and Rosedale Avenue, in downtown Kingston and the respective parties were, at the time of the accident (hereinafter referred to as “the material time”), driving cars owned by them respectively, these being, a Toyota Starlet (the claimant's vehicle) and a Toyota Camry (the defendant's vehicle).

2 Only two witnesses testified at trial, these being the respective parties. This court does not need to and will not refer to the evidence as given by either of the respective parties to this court, in any great detail, but it should be noted that this court has carefully considered all evidence as given in respect of this claim, whether of an oral or a documentary nature.

3 Arising out of the occurrence of that vehicular accident, the claimant has claimed against the defendant for compensation (“damages”), interest and costs, as it is his allegation that the said accident was caused solely by the defendant's negligence and that, as a result of the said accident's occurrence, he suffered injury to his person and loss/damage to his motor vehicle and incurred expense. In response to the claimant's claim against him, which incidentally, was filed in 2009, the defendant only filed a defence, in which he has alleged that the said accident was either wholly caused, or alternatively, contributed to by the negligence of the claimant. Thus, the defendant has not only raised the defence of contributory negligence, as he is permitted to do, by virtue of the provisions of Section 3(1) of the Law Reform (Contributory Negligence) Act , but in addition, the partial defence of contributory negligence has been set out in the defence, as an alternative defence, in that, the defendant has, in the first instance, contended that the said accident was wholly caused by the claimant's negligence. This is a complete defence. This is, just as is contributory negligence, a special defence, in that it goes beyond a denial of the essence of the claimant's claim against him and constitutes a positive averment against the claimant, albeit that the said averment has been made as part and parcel of his defence. This therefore means that, insofar as the defendant is concerned, the burden of proof of negligence or contributory negligence, on the part of the claimant, is a burden which rests exclusively on the defendant. See in that regard: Murphy on Evidence , 11 ^th ed. [2009], at paragraph 4.5.2.2 (page 82). The same would, of course, apply in respect of the claimant's defence to counterclaim, in which the claimant has alleged that the relevant accident was caused solely by the defendant's negligence. The standard of proof in those respects, is proof on a balance of probabilities.

4 In addition to the defence as filed by the defendant, as is understandable to this court, the defendant has counterclaimed against the claimant, seeking to recover damages, interest and costs, as a consequence of the damage to his motor vehicle which was caused due to the accident and thus, the money which he allegedly has spent in order to repair such damages, as well as compensation for loss of use of his vehicle for seven days and also, the cost of the fees allegedly charged by the motor vehicle assessor and paid by the defendant, in order for his vehicle's damage to be assessed, no doubt, for the purposes of these court proceedings. In response to the said counterclaim, the claimant has filed a reply and defence to counterclaim, the essence of which constitutes a repetition of the particulars of the claimant's claim and thus, alleges therein, that the said accident was caused wholly by the claimant's negligence. There rests on the defendant, in respect of his counterclaim, a burden to lead sufficient evidence capable of enabling his counterclaim to be proven to the requisite standard of balance of probabilities. If he has failed to meet that burden, for whatever reason, then he would have also failed to have proven his counterclaim. The converse of this is also true. The same would apply as between the claimant's claim and the defendant's defence to same. This court has, for the purposes of awarding judgment on the claim and counterclaim, at all times, carefully borne in mind, the respective burdens of proof, as also, the standard of proof.

5 What then is it that has been alleged by the respective parties, as to the precise circumstances which led to the said accident having occurred? The claimant was, by permission of this court, allowed to rely on an amended claim form and particulars of claim and it is thus, that, which this court will make reference to, for the purpose of outlining the claimant's claim.

6 The claimant has alleged that on or about June 16, 2005, he was driving a Toyota Starlet motor vehicle licensed number 6409 EH, along Orange Street, in the parish of Kingston and upon reaching the intersection of Orange Street and Rosedale Avenue, the driver of the vehicle which was then being driven in front of the claimant's vehicle, indicated his intention to pull his vehicle over to the extreme left of the roadway and then stopped his vehicle. After having passed the said motor vehicle, which was then stationary, the defendant so negligently drove, managed or controlled his vehicle — this being a Toyota Camry licensed number 6758 BZ, insofar as he then, without warning, turned or attempted to make a right turn from Orange Street to Rosedale Avenue. This in turn, caused the defendant's vehicle to move across the path of the claimant's vehicle, whereupon, the claimant then took evasive action and turned his vehicle to the right and thereafter, to avoid colliding with utility poles, turn to the left, as a result of which, the respective parties' motor vehicles collided, as a consequence of which the claimant has suffered both personal injury and loss, in addition to having suffered loss and incurred expense, arising from the consequential damage to his motor vehicle. As such, the claimant has sought, by means of this claim, to recover general damages, special damages, interest and costs.

7 The claimant has averred that the said motor vehicle accident was exclusively caused, as a consequence of the defendant's negligence. The essence of the particulars of negligence as alleged by the claimant, can easily be summarized as being that: That defendant failed to give any warning, or adequate and timely warning to the claimant, of his intention to, at the relevant movement in time, turn his vehicle to the right and thus, across the path of the vehicle which was then owned and being driven by the claimant. Having then driven his vehicle across the path of the claimant's vehicle, when it was unsafe and dangerous to have done so, the defendant then failed to stop, slow down, swerve, or in any other way, so to manage or control his motor vehicle, in order to have avoided the collision.

8 In the defendant's filed defence he has contended that the said motor vehicle accident was either solely caused, or alternatively, contributed to, by the claimant's negligence. It is helpful for present purposes, to set out with precision, the particulars of the claimant's negligence as alleged by the defendant. They are as follows:

• (a) Driving at too fast a rate of speed in all the circumstances;

• (b) Overtaking a line of traffic on an unbroken white line;

• (c) Failing to keep any or any proper look out and as a result colliding into motor vehicle registered 6758 BZ which was in the process of making a right turn and had almost completed doing so;

• (d) Overtaking at a time when it was manifestly unsafe so to do;

• (e) Causing and/or permitting the said collision;

• (f) Failing to stop, slow down, swerve or other to manage or manoeuvre the said motor vehicle (the claimant's vehicle) so as to avoid the said collision.

9 The defendant has, in his defence and counterclaim, specifically denied there having been any negligence on his part, which caused the said motor vehicle accident. In order to properly safeguard himself legally though, to the extent that it may be proper and possible for him to do so, he has alleged, in the alternative, that it was, at the very least, the claimant's negligence which, at least to some extent, contributed to the occurrence of the relevant accident. Contributory negligence has thus been specifically averred in the defendant's statement of case, as the law requires and as such, this court will give due consideration to that averment, to the extent as required by this court, so to do. If, of course, this court takes the view, after having considered the respective parties' statements of case and...