Samuel Lindsay v Don Williamson and Others
| Jurisdiction | Jamaica |
| Judge | Kirk Anderson, J |
| Judgment Date | 04 May 2012 |
| Neutral Citation | [2012] JMSC CIV 145 |
| Docket Number | CLAIM NO. 2006 HCV03076 |
| Court | Supreme Court (Jamaica) |
| Date | 04 May 2012 |
[2012] JMSC CIV 145
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
Anderson, K., J.
CLAIM NO. 2006 HCV03076
Mr. Dale Staple and Ms. Oraina Lawrence instructed by Kinghorn & Kinghorn for the Claimant.
Mrs. Denise Senior-Smith instructed by Pauline Brown-Rose for the Defendants.
In this case, there were three witnesses that testified, these being the Claimant and Don Williamson (the First Defendant) and Johann Williamson (the First Defendant's brother).
Having considered their evidence, this Court concludes that it is not in dispute that a collision occurred on November 2, 2003, which involved a car which is owned by Doreen Williamson, now deceased and Timon Williamson — the Second Defendant. At the material time, which was sometime between 3:00 and 4:30p.m, on that day, it was the First Defendant that was driving that car and in that car at that time as a passenger, was Johann Williamson. The Second Defendant was not present in the car at the material time.
On that day and at that time, that vehicle collided with a motorbike being used to transport for vending purposes, frozen treats, such as ice cream and which was, at the material time, being rode by the Claimant. That collision occurred near to the entrance to the Keystone community in the parish of St. Catherine. At the material time, the Claimant, while on his motorbike, was desirous of travelling into Keystone and had apparently, turned his motorbike into the direction of the entrance to the Keystone community.
The Keystone community, as I understand it, has its entrance/exit adjoining a corner which, when one is heading from the direction of Spanish Town, curves towards the right. Coming from the other direction then, the road curves to the left and it is on that curve, that the entrance/exit to/from the Keystone community exists. When the collision occurred, the Second Defendant's vehicle had been heading along the Sligoville Main Road, heading in the direction of Spanish Town.
What is in dispute between the parties is the precise concatenation of circumstances immediately preceding and which actually resulted in the collision. I accept the evidence as given by the Claimant and the First Defendant as well as the evidence of Johann Williamson, that the collision occurred just to the right of the mid-line which exists in the centre of the roadway in front of the entrance/exit to/from the Keystone community that is to the right when facing towards Spanish Town.
This is what the Claimant has stated in paragraphs 6-9 of his evidence-in-chief, by means of his witness statement:-
‘I arrived at the intersection with the turn off to go into Keystone. The turn off into Keystone community would be on my right. I turned on my indicator to turn right. I saw a car coming in the opposite direction and so I stopped my vehicle to allow that vehicle to pass. When I first saw the car that was coming from the opposite direction, it was about 40-50 feet away from me. It was coming around a slight bend and it appeared to be coming at some speed. That was one of the reasons why I had stopped my bike in the first place. Because the vehicle appeared to be coming fast to me I decided that I would wait to allow it to pass before I attempted to make the right turn into Keystone. I suddenly noticed the vehicle that I had seen coming from the opposite direction drifting over onto my side of the road. I saw the vehicle coming and I tried to push the bike closer to the left hand side of the road. The car that I had seen coming from the opposite direction and which had drifted onto my side of the road, but came over onto me and hit into the right hand side of the bike and me.’ (Emphasis mine).
I have placed emphasis on the fact that the Claimant had stated in his evidence-in-chief, that when he saw the vehicle coming towards him, he then tried to “push” his bike closer to the left hand side of the road.
I have done so, because I believe this use of the word “push” his bike by the Claimant, in describing what action he took in relation to his motorbike at that moment in time, as being of significance. I accept that the Claimant did indeed try to “push” his bike closer to the left hand side of the road — the opposite direction from where he had been facing a few moments prior to the collision having occurred. Why he would have thought it necessary to do this if he had also seen that the vehicle was then ‘drifting over’ to his side of the road (this being the vehicle's right hand side and the motorbike's rear), is unfathomable, but nonetheless, I do accept the Claimant's evidence in this regard as I am aware that sometimes, when one is faced with a seeming crisis which requires one to think and act quickly, one does not always act rationally.
I do believe that the Claimant's efforts to, “push” his motorbike over to the left hand side of the road at that time, were irrational. It seems to me that if he had remained stationary — as his motorbike was not then, according to his evidence as given during re-examination, yet in first gear as it had to first be put into neutral before it could be put into first gear, then the vehicle which was heading towards him, but which was drifting to the right hand side of the road, would then have relatively easily, been able to have avoided impacting with him. Unfortunately, for all the parties, however, the events of that day, as between them, did not conclude in that way.
Bearing in mind the provisions of the Road Traffic Act, in particular, Section 51(1) (d) thereof and applying that which I have stated at paragraph 4 above in relation to the Claimant's actions immediately leading up to the collision, I am of the view that the collision was partly caused by the carelessness of the Claimant. Section 51(1) (d) of the Road Traffic Act provides that:
‘The driver of a motor vehicle shall observe the following rules — a motor vehicle shall not be driven so as to cross or commence to cross or be turned in a road if by so doing it obstructs any traffic.’
It is clear to this Court that the Claimant in this case, failed to comply with this requirement of the law, which is applicable to motorbike users on the nation's roadways. In Section 2 of the Road Traffic Act, the term ‘motor vehicle’ is defined as meaning, ‘any mechanically propelled vehicle intended or adapted for use on roads.’ The Claimant should have taken all steps necessary to ensure that the way was clear, such that he could not have obstructed other vehicles, before he began to cross the road so as to enter the Keystone community. Even if he had not, as the Defendants have suggested, actually begun to cross over onto the side of the road where the Keystone community was, with a view to entering there, what is not in dispute, is that when he saw the vehicle coming towards him, he then began to push his motorbike in the opposite direction from where he had been heading. In the course of his having turned the motorbike in that way, the collision occurred.
As such there was carelessness on the Claimant's part, which resulted in the collision.
This will not however, affect the ultimate outcome of this case, either as to liability or damages, insofar as the First Defendant is concerned. This is primarily because contributory negligence has not been pleaded by either of the Defendants in their joint Defence as filed. As such, the same cannot be relied upon. This is because the Law Reform (Contributory Negligence) Act, at Section 3 (1) thereof, requires that the same be specifically pleaded if it is intended to be relied upon by a party. When this statutory provision is considered along with Rule 8.9 (1) & 8.9A of the Civil Procedure Rules, it is clear that in the absence of there having been applied for, much less been granted by this Court, any amendment to the Defendants' Defence, so as to have included therein, an allegation of contributory negligence in respect of the Claimant herein vis-à-vis the relevant motor vehicle accident, not only is it not now open to either of the Defendants to seek to rely on this partial defence but it is also not open to this Court to waive the Defendant's failure to plead the same and nonetheless, to allow either of the Defendants to rely upon the same. On this point, see Fookes v Slaytor [1978] 1 W.L.R. 1293 & Gearon Hall and Han Electrical Co. Ltd. — Claim No. 2006 HCV 02971 — Supreme Court of Jamaica.
This Court though, is also of the view that the First Defendant was also significantly careless and thereby contributed greatly, to the collision having occurred. To my mind, the First Defendant's carelessness arose from the speed at which he must have been driving at the material time. Bearing in mind that he was coming around that which was a blind curve, he ought to have been driving more slowly, especially since, from the evidence as given, it is clear that he is familiar with the particular area where the collision occurred and thus, would have known that the entrance/exit to/from the Keystone community was in the immediate vicinity around the corner in the direction that he was then driving in. Had he been driving more slowly at the material time, he would likely have been able to have altogether avoided the collision, as he would have been able to have stopped the vehicle which he was then driving, before he steered that vehicle into a collision with the Claimant's motorbike. The Claimant testified, under cross-examination, that he saw the vehicle which was being driven by the First Defendant at the material time, when the same was about 40-50 feet away from him. None of the Defendants who testified, gave any evidence as to the distance that the Claimant's motorbike was away from the car, when...
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