Shane Cowan v Glenbert Walker and Management Services Ltd

• Jurisdiction: Jamaica
• Judge: McDonald, J
• Judgment Date: 03 March 2011
• Judgment citation (vLex): [2011] 3 JJC 0302
• Docket Number: IN CLAIM NO. 2008 HCV 02417
• Court: Supreme Court (Jamaica)
• Date: 03 March 2011

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CLAIM NO. 2008 HCV 02417

BETWEEN

SHANE COWAN

CLAIMANT

AND

GLENBERT WALKER

1 ^ST DEFENDANT

AND

MANAGEMENT SERVICES LIMITED

2 ^ND DEFENDANT

NEGLIGENCE - Personal injuries - Res ipsa loquitor - Liability - Road Traffic Act

McDonald, J

1 The claimant Mr. Shane Cowan has brought an action against the defendants seeking to recover damages for personal injuries and consequential loss.

2 The particulars of negligence alleged against the defendants are as follows:

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

• (ii) Colliding with motorcycle registration number 9314F.

• (iii) Failing to see motorcycle registration number 9314F within sufficient time or at all.

• (iv) Failing to apply his brake within sufficient time or at all.

• (v) Failing to stop, slow down, swerve or otherwise conduct the operation of the said motor vehicle so as to avoid the said collision.

3 The claimant also relies on the doctrine of Res Ipsa Loquiter.

4 The claimant alleges that on August 23, 2007 he was riding his motorcycle in a line of traffic which was almost bumper to bumper on the Old Harbour Road heading to Spanish Town.

5 Traffic was coming down on the other side of the road. He described the road as straight, one way up, one way down and that one could see straight up the road and straight down the road.

6 The claimant stated that he had just passed the intersection of Valdez Road and was heading towards Spanish Town when he reached about where the clinic was, he proceeded to overtake.

7 Before overtaking the vehicle in front of him, he put on the indicator of the bike and blew the horn as well. He begun to pass the vehicle and on reaching a section of the front mirror; the vehicle tried to turn on him and both collided together.

8 He said that after the collision the bike was about 5 feet away from him. Mr. Cowan said the collision occurred in the middle of the road, he was on the white line going around. He asserted that when he proceeded to overtake the on coming lane was clear, and no vehicle was coming in that direction at the time. Further he saw no driver travelling in the opposite direction flashing his lights.

9 He testified that the vehicle he attempted to overtake gave no indication that it was turning.

10 He observed after the impact that some of the flares on the motorcycle were broken off and the handle and front folk bent and the gear shift lever was broken off. In cross-examination, Mr. Cowan testified that he was not wearing a helmet at the time of the accident, and it was only that day that he failed to do so.

11 He said that he had a learner's licence and not a driver's licence to ride the bike.

12 He described the bumper to bumper traffic as not directly close, not even a car length away and when asked to point out the distance it court, he pointed out 4 yards.

13 He told the court he saw cars coming in the opposite direction but could not say how fast they were going.

14 He denied the suggestion that the white car in front driven by the 1 ^st defendant had stopped and had on its right indicator.

15 He said that at the time the driver said he was turning into the clinic there was no entrance there for any clinic, he had passed it already.

16 Defendant's Case

17 There is no dispute that the 1 ^st defendant was acting as the agent and/or servant of the 2 ^nd defendant at the time of the accident.

18 The particulars of negligence alleged against the claimant are as follows:

• (i) riding his motorcycle too fast in the circumstances.

• (ii) Failing to keep any or any proper lookout or to have any or any sufficient regard for other road users on the said road.

• (iii) Failing to see the 1 ^st defendant's said motor vehicle in sufficient time or at all to avoid the said collision.

• (iv) Attempting to overtake the 1 ^st defendant's said motor vehicle when it was manifestly unsafe to so do.

• (v) Failing to stop, to slow down, to swerve or in any other way so to manage or control the said motorcycle so as to avoid the said collision.

19 Mr. Glenbert Walker's evidence in chief took the form of his witness statement. In his statement he said that at about 10:20a.m. on the 23 ^rd August 2007 he was travelling alone in the left lane along the Old Harbour Road in a line of slow moving traffic heading easterly towards Spanish Town.

20 On reaching the vicinity of Valdez Road and Old Harbour Road clinic, he put on his right indicator as he intended to make the right turn to get...