Patrick Thompson and Another v Dean Thompson and Others

• Jurisdiction: Jamaica
• Judge: Morrison JA,Dukharan JA,Brooks JA
• Judgment Date: 11 November 2013
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 98/2008
• Date: 11 November 2013

[2013] JMCA Civ 42

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison JA

The Hon Mr Justice Dukharan JA

The Hon Mr Justice Brooks JA

SUPREME COURT CIVIL APPEAL NO 98/2008

Between

Patrick Thompson

1st Appellant

and

Everton Eucal Smith

2nd Appellant

and

Dean Thompson

1st Respondent

and

Leighton Gordon

2nd Respondent

and

Kimar Brooks

3rd Respondent

and

Shellion Stewart

4th Respondent

Mrs Tameka Jordan instructed by Mrs Jacqueline Samuels-Brown QC for the appellants

Maurice Manning and Miss Catherine Minto instructed by Nunes , Scholefield DeLeon & Co for the respondents

NEGLIGENCE - Motor vehicle accident - Personal injuries - Damages - Costs

Morrison JA

Introduction

1 This appeal concerns an accident which took place on 17 July 2003, between two motor vehicles travelling in opposite directions along the Exton Main Road in the parish of St Elizabeth. The 1 ^st and 2 ^nd appellants were the owner and the driver respectively of one of the vehicles, an “International” trailer head registration no 5988 DQ (“the trailer head”), while the 1 ^st respondent was the driver of, and the 2 ^nd — 4 ^th respondents were passengers in, the other vehicle, a fire truck registration no 301736 (“the fire truck”). At the material time, the respondents were all firefighters.

2 The 2 ^nd appellant and the 1 ^st respondent each contended that the accident was caused by the other's negligence, in particular by each of them driving too fast and on his incorrect side of the road. On 18 August 2008, N E McIntosh J (as she then was) gave judgment in favour of the respondents and made an award of substantial damages to each of them for the serious personal injuries and damage sustained by them as a result of the accident.

3 On appeal from this judgment, the appellants complain about the judge's findings on liability, as well as the award of damages made to each of the respondents. I propose to deal with these issues separately.

Liability

The respondents' case at trial

4 In July 2003, the 1 ^st respondent was a corporal in the Jamaica Fire Brigade (“the fire brigade”). At about 12:40 pm on 17 July 2003, he was the driver of the fire truck, accompanied by the other respondents, as they made their way along the Exton Main Road en route to the Junction Fire Station. All four persons were seated in the front of the fire truck, which was some 23 feet in length and was travelling at about 25 miles per hour (“mph”) on its correct side of the road. On reaching Exton District, about half a mile from Junction, the 1 ^st respondent observed two trucks coming towards the fire truck from the opposite direction. The one in front was a red and white Leyland truck, while behind it was the trailer head. This is the 1 ^st respondent's account of what next happened:

‘When I was alongside the Leyland, I saw when the trailer head pulled from behind the Leyland as if to overtake it and came unto my correct side of the road. As soon as he pulled out and saw us, the driver of the trailer head tried to get back in behind the Leyland, but it was too late and he collided into the fire unit.

After the collision, I lost control of the unit which swerved to the right hand side of the road, hit a wall, and then overturned on its side. The unit slid on its side for a while before finally coming to a stop.

The tractor head which hit us was a left hand drive. The driver came all the way out into the road before he could actually see us. And as soon as he came out, he tried to pull back in, but bam. It was one quick movement.’

5 When he was cross-examined, the 1 ^st respondent described the point of impact between the two vehicles as being the ‘right side of the fire unit at the end of the bumper and the right front wheel and extreme rear right wheel of the trailer tractor head’. He gave the distance at which he was from the trailer head when he first saw it pull out from behind the Leyland as about 15 feet and insisted that at that point he had slowed down to ‘May be about 20 mph’ and ‘pulled’ to his extreme left. However, he acknowledged, when shown his original statement to the police, that he had not told the police at that time about his having slowed down and pulled to his left or that the trailer head had tried to pull back in to the left before the collision’. The width of the road at the point where the accident occurred was about 18 feet and the fire truck was ‘in the region of eight feet wide’. He denied suggestions that he had been travelling at a rate of speed much faster than 25 mph and that it was the fire truck driven by him which had been travelling on the incorrect side of the road.

6 The 2 ^nd respondent's account of the collision with the trailer head was essentially the same, albeit in less detail, as the 1 ^st respondent's:

‘On reaching in the vicinity of Exton District, a trailer head was traveling towards us from the opposite direction, behind another truck. When we approached the trucks, I saw when the trailer head pulled to the right of the road, over onto our side. I realized it must hit us, so I just squeezed myself up against Shelly Stewart and braced myself for the hit.

A collision occurred, which caused the fire truck to swerve to the right and collide into a concrete gate wall [sic]. I don't know anything more after that.’

7 Briefly cross-examined, the 2 ^nd respondent estimated the distance of the fire truck from the Leyland when the trailer head pulled out at 8–10 feet. As regards the distance of the trailer head from the Leyland when the trailer head pulled out from behind it, the 2 ^nd respondent put it at 8 feet. At that point, he said, the fire truck ‘was about 1 chain away because the Leyland truck was about 25 feet long’. He accepted that he did not actually see when the vehicles collided and that he was unable to say whether the fire truck had slowed down before the collision or whether it had hit the left embankment. But, in response to suggestions that the trailer head had at no time pulled out onto the fire truck's side of the road and that it was the fire truck that had gone onto the wrong side of the road, the 2 ^nd respondent answered emphatically, ‘Your suggestion is wrong.’

8 This was the 3 ^rd respondent's account of the accident:

‘When we got to Exton Main road, I saw two trucks coming from the opposite direction. The second truck in line was a tractor head/trailer. I saw when the driver of the Tractor head pull out to overtake the first truck. When he realized he could not make it because we were coming, he tried to pulled [sic] back in behind the first truck, but he still collided with us.

After the collision, our unit swerved to the right, got out of control, hit a wall and embankment and overturned on its side.’

9 Under cross-examination, the 3 ^rd respondent agreed that, in his statement to the police after the accident, he did not say that the ‘tractor head tried to [pull] back in’. Asked whether the fire truck had slowed down before the collision, his answer was, ‘Not that I observe.’ He said that the right front of the fire truck collided with the trailer head and that, when the trailer head pulled out from behind the Leyland into the fire truck's path, the fire truck and the trailer head were about 25 feet away from each other.

10 The 4 ^th respondent gave the following account of the accident:

‘On reaching the Exton main road in St. Elizabeth, I saw when a trailer pulled out from his side of the road from behind another vehicle, and came unto our side of the road. It seemed as if the trailer driver did not have a side man, and as the trailer was a left hand drive vehicle, he had pulled out from behind the vehicle ahead of him, to see if it was safe to overtake. When the trailer driver came out and saw our unit, he tried to get back in, but at that time it was too late and the trailer hit our unit.

After the trailer hit the fire truck, the fire truck swung and went up on the embankment and then went across the road and hit a column. After it hit the column, the fire truck overturned.’

11 In cross-examination, the 4 ^th respondent was asked about the embankment to which she had referred. She said that the embankment was to the left of the fire truck and less than one foot in height. The fire truck initially went up on the embankment and then across the road to the right where it hit the concrete wall. The right rear of the fire truck collided with the right rear of the trailer head, as it was ‘on its way going back behind truck so the back was in the road’. She was unable to state the distance between the right rear of the trailer head and the embankment on the left side of the road, but insisted that there was not enough space for the fire truck to pass in between the embankment and the trailer head. That was why, she said, ‘the [fire truck] went on the left embankment because he was trying to get away from the [trailer] head…[h]e was trying to avoid the collision but there wasn't enough space’.

12 When she was re-examined, the 4 ^th respondent amended her evidence as regards which part of the fire truck had collided with the trailer head, to say that ‘[t]he rear of the tractor [hit] the front of the fire truck’.

The appellants' case at trial

13 The 2 ^nd appellant led the evidence for the appellants. This is his account of how the accident happened, as contained in his witness statement:

‘3. On the 17 ^th July 2003 I was employed to the First Defendant Patrick Thompson as a driver and on that date at about 12:40 p.m. I was driving International motor truck registration number 5988 DQ, which is owned by Patrick Thompson, along the Exton Main Road in the parish of Saint Elizabeth.

4. The road, which was asphalted, was dry and the weather was fair.

5. I was driving the said motor truck on the left side of the Exton...