Rance v Jamaica Public Service Company Ltd

 
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Supreme Court

Cooke, J.

C.L. R-312 of 1986

Rance
and
Jamaica Public Service Company Limited
Appearances:

Negligence - Personal injury — Plaintiff injured when vehicle provided by her employer left the road — Whether the vehicle was suitable for providing the plaintiff with a safe means of transportation — Whether plaintiff was responsible for her injuries — Quantum of damages.

1

Miss Hilary Phillips and Miss Carol Davis instructed by Messrs. Perkins, Grant, Stewart, Phillips and Company for plaintiff.

2

Mr. Christopher Honeywell and Ms. Joy Donaldson instructed by Messrs. Clinton Hart and company for defendant.

Cooke, J.
3

In this case, the plaintiff Pamela Rance received injuries when the motor vehicle provided for her use by her defendant employer left the road. She was driving this vehicle at the material time. She contends that she was given a defective vehicle to drive and the defendant was thereby in breach of an implied term of her contract of employment in that the vehicle was not in a suitable state for the purpose of providing her with a safe means of transportation. The defendant does not take issue that the plaintiff was to be provided with a vehicle nor that it had a responsibility to provide a vehicle fit for the purpose of transporting the plaintiff safely. It contends that these obligations were faultlessly discharged. Pamela Rance was the author of her injuries for she drove the provided vehicle in such a negligent manner that it left the roadway. She was all to blame or at least partially.

4

On the 18 th of December, 1985 the plaintiff was at the Sav-la-mar district office of the defendant. She was the acting commercial superintendent and had recently assumed that position. Also working at this office were Jennifer Goodall who was on a visit to this district office in her capacity as chief internal auditor, and Winston DaSilva who was the district manager. It was about 5:00 p.m. and the labour of the day having been completed, all three persons left as a team, each driving their individual vehicles. Their destination was Negril where they had their accommodation. At the material time, the plaintiff was in front Goodall followed and then DaSilva. The party had been travelling fairly slowly for the condition of the road thus dictated. However, as they reached Sheffield, the quality of the road surface improved. It was asphalted, wide and smooth. Speed was increased. Rance approach what she described as a slight curve. This is how she described what took place thereafter: “I went around a slight curve at about 40 m.p.h. I reached on the straight part of the road. I felt the steering wheel loose. Vehicle started to go to the right and then to the left. I started to brake and trying to control the vehicle. It was going from right to left-left to right. Heard bang - felt head going in circles. Next I found myself in the passenger seat - vehicle parked on top of fence. I lifted my head and saw Mr. DaSilva at the passenger side of the door. Blood flowing from my head. I felt excruciating pain in my back. The fence was on the left side of the road - when I felt loose steering I held on to it to keep the vehicle on the road. I was a licensed driver for eighteen (18) years. I have never experienced anything like that before. Top-roof on drivers side caved in half way to the seat.”

5

Jennifer Goodall's evidence is as follows: “I was travelling between 45 to 50 m.p.h. I was travelling behind the plaintiff. She had just turned a corner it was a left hand corner. She was actually on the straight. The vehicle started to go two sides of the road. At one stage, the vehicle left the road and went over into his field. The vehicle spun and somersaulted into the field. When I say the vehicle was swerving, it was going from left to right. Prior to swaying, I noticed nothing unusual about the passage of that vehicle. I think but hazy here - but it somersaulted twice.” DaSilva did not see what happened.

6

The trust of the cross-examination of Rance was that she was driving to fast and lost control of the vehicle. This is flatly denied. Rance denied that immediately after the accident, she said to DaSilva, “Is set them set me up,” she said she asked, “I wonder if is that I am set up, Winston?” (It would appear that at that time there were irregularities in the district - hence the presence of Goodall.) The plaintiff insisted that there was something wrong with the steering mechanism. She did not know if the car hit the fence which bordered the field in which the vehicle landed. She admitted that on entering the left hand curve there was a slight descent. She said, “as it approach the corner going 40 m.p.h. Going down descent picked up a little speed. I now say not necessarily so. I did apply brakes to go around.” She did not know what caused the bang she heard. It was Goodall's opinion that the descent at the curve was some 45. She said, “We were actually on the straight when I saw the car swerving,” and that she did not hear any unusual sounds coming from the plaintiff's vehicle. She did not see any of the rear tyres (burst). To the court she estimated with some reluctance as she was not given to estimations that during the swerving, the vehicle was covered about 100 feet. During this trail, a great deal of time was taken up concerning the role that the condition of the rear tyres of the defendant's vehicle may have placed in the causation of this accident. Paragraph 9(d) and (e) of the Particulars of Negligence in the statement of claim reads:

  • “9(d) Failing to ensure that the motor car was fitted with roadworthy tyres so as not to be a hazard or danger to the plaintiff.

  • 9(e) Failing to observe, to inspect, to warn or report to the plaintiff that there were worn types on the said motor vehicle.”

7

The plaintiff has endeavoured to show that a defective rear tyre could, on a balance of probability, caused the accident. After much legal submissions on both sides, she succeeded in getting into evidence by way of an affidavit, a report of K.G. Mills who was at the relevant time, acting manager - transport of the defendant. This was the report:–

“TO: Mr. L. Mordecai, Manager - Insurance

FROM: K.G. Mills, Acting Manager - Transport

May 20 th 1986

SUBJECT: Motor vehicle accident involving vehicle #728 licence #NH 1648 driven by Pamela Rance.

At your request and based on recent correspondence on the subject. I requested that both rear wheels of the above mentioned vehicle be removed from the vehicle and brought to me for inspection. Both wheels were inspected by me in the presence of Mr. Carney, and the following observations were made.

Right Rear Wheel

(i) This tyre was fitted with a tube - indicating that some repairs were carried out at some time as the other tyre remained tubeless.

(ii) The tube was displaced inside the tyre, but that could have been caused while being handled by the wrecker crew.

(iii) There was one poorly fitted plug in the tyre which is further evidence of previous repairs. The plug was made up of strips of rubber tubing.

Left Rear Wheel

(i) The tyre fitted without inner tube (tubeless)

(ii) There were four (4) small nails embedded in the surface, any number of which may have penetrated the case.

(iii) Both tyres were deflated

(iv) Both tyres were about 50% worn.

(v) Both rims were dented.

Sgd. K. G. Mills

cc: Mr. G. Wilson

Mr. H. Bennett”

8

The plaintiff than called Victor Lawrence as an expert witness. He described himself as an automotive engineer. His experience of some thirty-three (33) years was wide ranging and not unimpressive. He preferred his opinion as to the inadequacies of a improvised plug made up of strips of rubber tubing (see (iii) of first paragraph of the Mill's report). The danger was that “over time there would have been abrasion on that tube. Eventually would get hole in tube leading to immediate deflation”. He further opined that immediate deflation would lead to loss of fraction resulting in the vehicle drifting and ultimate loss of control of that vehicle. The plaintiff is here positing a theory of how and why the accident occurred. Is this theory sustainable? I think not. Lawrence is cross-examination said that “as a result of collision a tyre on a car could become deflated. This would depend an impact and what caused impact and what caused the impact. A car turning over repeatedly could cause deflation of tyre or tyres.” There is no of any deflation before the vehicle somersaulted. Deflation is consistent with the car overturning having crashed into the fence bordering the field. Both rims were dented. Thus, the theory is punctured.

9

There is another reason for rejection Mills examined wheels purportedly taken from the plaintiff's vehicle. These were wheels which were sent to him some five months after the date of the accident. Where were these wheels during the five month interval? Are these in fact the wheels which were on the plaintiff's vehicle? There is an evidential histus. The plaintiff has failed in her effort to theorise, and now draws the last arrow to her bow - the doctrine of ras ipea loquitur. The fact that she has sought to tender evidence to attach fault to the defendant does not preclude her from relying on this doctrine. My starting point is to accept and rely on the following statement of law by Kennedy L.J. as to the meaning of the rexim res ipsa loquitur in his judgment in Russeli v L & S W Ry. [1908]24...

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