Pete Russell v Patroy Steve Whitely
| Jurisdiction | Jamaica |
| Judge | Lindo, J |
| Judgment Date | 20 December 2019 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2013HCV06497 |
| Date | 20 December 2019 |
[2019] JMSC Civ 246
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2013HCV06497
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Ms. Christine Hudson and Ms. Renae Barker instructed by K. Churchill Neita and Company for the Claimant
Ms. Suzette Campbell instructed by Burton Campbell and Association for the 1st Defendant
Mr. Kwame Gordon instructed by Samuda and Johnson for the 3rd Defendant/1st Ancillary Defendant
Negligence — Motor vehicle accident — Claim for personal injuries — Ancillary Claim for repairs to motor vehicle — Damages — Assessment
The Claimant, Pete Russell, brings this action against the Defendants to recover damages for negligence arising out of a motor vehicle accident which occurred on or about August 15, 2011, involving the 1 st and 3 rd Defendants' motor vehicles, registered at 1271 PP and CF 5677, respectively.
By way of his Amended Claim Form filed on February 27, 2014 and Further Amended Particulars of Claim, filed on September 15, 2016, the Claimant claims that he was a passenger in the 1 st Defendant's motor bus, driven by the 2 nd Defendant along the Spanish Town road in the parish of St. Andrew, when a collision occurred between said motor bus and the motor truck driven by the 4 th Defendant.
He claims that the accident was caused by “either the negligence of the Second Defendant.. when he suddenly and without warning stopped, whereupon the Fourth Defendant collided into the rear of the said motorbus or caused by the negligence of the Fourth Defendant who was driving too close behind the First Defendant's motorbus and collided in the rear.or caused by the negligence of both Second and Fourth Defendants.”. The Claimant further claims that as a result of this accident, he has suffered loss and injuries and incurred expenses.
The Claimant alleges, inter alia, that the 2 nd Defendant was particularly negligent in the following ways “failing to keep any proper or any proper lookout or to have any sufficient regard or consideration for other traffic on the road; stopping and or braking suddenly ahead of [the 3rd Defendant's motor truck] without any warning; driving without due care and attention; failing to have any or any sufficient regard of his attention to stop or slow down…”
He further alleges, inter alia, that the 4 th Defendant was particularly negligent in the following “failing to keep any proper or any proper lookout or to have any sufficient regard or consideration for other traffic on the road; driving too close to [1 st Defendant's motorbus]; failing to observe the presence of [the 1 st Defendant's motorbus] which was stationary so as to avoid colliding into the rear…; failing to stop, slow down, swerve or in any other way so as to manage or control the said motor vehicle as to avoid colliding.;failing to drive within brake distance so as to avoid colliding into rear of motor vehicle.;colliding into rear of [1 st Defendant's] motor vehicle which was stationary.”
The 1 st and 2 nd Defendants filed their Amended Defence on March 13, 2014. Both Defendants admit to the date and place of the accident as alleged by the Claimant but they also allege that the accident was caused by the negligence of the 4 th Defendant.
In the Particulars of Negligence of the 4 th Defendant, they allege, inter alia, that he was “failing to keep any or any proper look out; driving at an excessive and/or improper speed; failing to see or to heed the presence of the 1 st Defendant's vehicle which was positioned directly in front of him and had stopped in a line or traffic; failing to see or heed that the line of traffic had stopped; failing to drive within break distance of the 1 st Defendant's vehicle so as to avoid collision; colliding with the rear section of the 1 st Defendant's vehicle.”.
The 3 rd Defendant filed its Amended Defence on December 27, 2018 disputing the claim and alleging that “any injury loss and damage and expenses incurred by the Claimant was as a result of the manner in which the 2 nd Defendant operated the 1 st Defendant's motor vehicle…”. In the Particulars of Negligence of the 2 nd Defendant, he states, inter alia, that the 2 nd Defendant “failed to give a proper lookout; switched lanes without due care thereby resulting in a collision with the 3 rd Defendant's motor vehicle; drove in a manner which was reckless and careless so to do; failed to observe the 3 rd Defendant's motor vehicle which was lawfully travelling along the said roadway; failed to have regard for.the 3 rd Defendant in particular; drove without due care or attention; Res Ipsa Loquitur…”
The Ancillary Claimant, Patroy Steve Whitely, claims against the 3 rd Defendant/1 st Ancillary Defendant “an indemnity/contribution against any damages it may be found liable to pay the Claimant arising from the accident which occurred on or about the 15th August 2011.”
In his Particulars of Claim, filed November 16, 2016, he avers that the 4 th Defendant/2 nd Ancillary Defendant negligently drove and or operated the 1 st Ancillary Defendant's motor vehicle, causing and or permitting it to collide into the back section of his motor vehicle. As a result of this he states that the Claimant has allegedly suffered loss, injuries and sustained damage, in addition to loss and damage suffered by him. In his Particulars of special damages, he claims a total of $171,561.00 in respect of cost to repair his motor vehicle.
The matter came on for trial on March 18, 2019 and after presenting evidence in support of the claim, the Claimant, through his Counsel, indicated that he was not proceeding against the 2 nd Defendant.
Special damages claimed by the claimant were agreed in the sum of $72,400.00.
The following documents were agreed and admitted in evidence:
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1. ‘Medical Data’ from Kingston Public Hospital (KPH) dated February 15, 2012
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2. Medical Report of Dr Donald Gordon M.B, B.S, dated May 28, 2013
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3. Medical Report of Dr D.K. Garg, dated March 18, 2016
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4a. Medical Report of Dr Tricia Giraud-Spence M.B, B.S dated June 7, 2012
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4b. Report from Medical Associates Hospital and Medical Centre, dated January 23, 2015
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5. Motor Accident Report Form bearing stamp dated September 2, 2011
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6. Statement of Wayne Wilson dated July 4, 2013 (inclusive of questions and answers)
The Claimant's witness statement filed on August 22, 2018 stood as his evidence in chief and permission was granted to him to amplify the statement. He states that on August 15, 2011 at around 6:45 p.m., he, along with his two-year-old daughter were back seat passengers of motor bus registered 1271 PP, travelling in a westerly direction along the Spanish Town Road, heading towards Six Miles. He describes Spanish Town Road as “a dual carriage roadway with three lanes heading towards the direction of Six Miles and three lanes heading towards the direction of Three Miles. Both lanes are separated by a median”. He states that the bus was travelling in the middle lane at about 10–20kph as there was “bumper to bumper traffic…”
He states further that when the bus reached “somewhere near in the vicinity of Red Stripe and Tia Maria”, he felt a sudden impact to the rear of the bus which caused his head to be thrown forward and backward and then he felt another impact, more intense than the first, which caused his entire body to be “jerked. forward in a whip like motion.”. He also states that after the impacts, he instantly started to “feel some serious pain to the middle and lower section of [his] back”.
He adds that he did not see the 2 nd Defendant switch lanes or drive in a reckless and careless manner “as the road was filled with vehicular traffic…'' and that he, along with four other passengers who were also injured on the bus, were taken to the Kingston Public Hospital (KPH) by a Police Officer, where he was admitted for three days.
He outlines the treatment he received at the KPH and contends that he “still [has] pains up to today, in [his] neck and lower back…pain in [his] neck is not as frequent as the pain in the back. Some days the pain is bad, where [he] can't turn [his] neck or move it freely…[sic]”. He also contends that his injuries have affected his search for a job as jobs that require standing for long hours lifting aggravate the pain in his lower back.
In cross examination by Ms. Campbell, Mr Russell stated that when he felt the impact the bus was moving and after the impact, it remained in the middle lane and he was in pain so he did not get to see if any damage was done to the bus. He said he paid his fare to the conductor on the journey.
When cross examined by Mr. Gordon, he agreed that the conductor was present at court and that he boarded the bus “Downtown by the market” and sat in the back seat. He admitted to giving two different statements to two different investigators but said he does not recall saying on a previous occasion that when he boarded the bus he sat in the third single seat. He agreed that he told the investigators “exactly how the accident occurred” and did not tell them that the bus stopped suddenly before the collision. He states that he has difficulty reading and when directed to paragraph 4 of his Amended Particulars of Claim, he denied saying that the bus “suddenly stopped” before the collision.
He further stated that he is certain that the bus was always in the middle lane while travelling along the Spanish Town Road, but he later admitted that he remembers...
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