Shanica Parkes v Michael Mclean v Ivan Clarke v Trishene Powell (A minor by her grandmother and next friend Beverly Pearson)

 
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[2019] JMSC Civ 8

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Lindo, J.

CLAIM NO. 2010HCV00327

CLAIM NO. 2009HCVO2815

Between:
Shanica Parkes
Claimant
and
Michael Mclean
Defendant
Between
Michael Mclean
Ancillary Claimant
and
Ivan Clarke
Ancillary Defendant
Between
Trishene Powell (A minor by her grandmother and next friend Beverly Pearson)
Claimant
and
Michael Mclean
Defendant
Between
Michael Mclean
Ancillary Claimant
and
Ivan Clarke
Ancillary Defendant
IN OPEN COURT

Mr Sean O. Kinghorn instructed by Kinghorn and Kinghorn for the Claimants, Shanica Parkes and Trishene Powell.

Mrs Claudeen Stewart Linton instructed by Burton Campbell & Associates for the Defendant/Ancillary Claimant

The Ancillary Defendant absent and unrepresented. Negligence — Motor vehicle collision — Contributory negligence — Credibility of Witnesses — Liability of parties — Damages — Assessment — Personal injury

Lindo, J
Background
1

The claims in this case are grounded in negligence. The allegations are that due to the negligent driving of the Defendant/Ancillary Claimant, the Claimants who were passengers in motor vehicle registered PD5726, have sustained injuries and suffered loss. As a result, they now claim damages, interest and costs.

2

The Claimants in their Amended Claim Forms filed on May 6, 2011 and July 27, 2011, respectively, aver that on the 8 th day of March 2009 the Defendant, Michael Mclean “so negligently drove and/or operated and/or managed motor vehicle registration number 1452 FE, that he caused and/or permitted the said motor vehicle to come violently into collision with the rear of motor vehicle registration number PD 5726 causing injuries…”

3

They have not sought to blame Ivan Clarke, in whose motor vehicle they were travelling.

4

In his defence filed on March 30, 2010, Michael McLean did not dispute that the accident occurred on the date and at the location stated, or that it involved his motor vehicle licensed PD 5726. He, however disputes the claim on the grounds that the collision was caused and or contributed to by the negligence of Ivan Clarke, who was at all material times the driver of motor vehicle licensed PD 5726.

5

This accounts for the Ancillary Claim filed by him against Ivan Clarke on March 30, 2010. In this Ancillary Claim, Mr McLean claims “an indemnity and/or contribution against any damages he may be found liable to pay the Claimant as a result of the claim…”

6

The court records show that Ivan Clarke was served personally with the ancillary claim and ancillary particulars of claim on April 3, 2010. He has taken no part in these proceedings.

7

The claims find common ground in fact and in law, and as such they have been consolidated in an effort to save costs and time and were tried together.

8

The parties have given opposing versions of the events that unfolded on the date and at the time of the accident and the court is now tasked with determining, which of these versions is more plausible and following from this is the question of who should bear liability for the accident, the extent of such liability and the quantum of damages, if any, which flows from same.

9

No independent witnesses were called on behalf of the parties.

10

At the commencement of the trial the following documents were agreed and admitted in evidence:

  • (1) Medical report of Dr Nishanth Hassan dated March 18, 2009 re Shanica Parkes

  • (2) Physiotherapy report of Shareel Dixon-Anderson dated May 20, 2009, re Shanica Parkes

  • (3) (a) Paid Invoice #8077 in the sum of $1,500.00

  • (b) Paid Invoice # 8092 in the sum of $25,000.00

  • (c)Receipt dated May 20, 2009 in the sum of $8,000.00

  • (d)Receipt dated April 18, 2009 in the sum of $5,400.00

  • (e)Receipt from Linstead Imaging dated September 3, 2009 in the sum of $1,900.00

  • (4) Medical report of Dr Hassan dated March 18, 2009 re Trishene Powell

  • (5) (a) Invoice #8078 in the sum of $1,500.00

  • (b) Invoice # 8093 in the sum of $25,000.00

  • (c) Invoice #580293 in the sum of $3,000.00

  • (6) Receipt for Assessor's Report dated May 22, 2009 in the sum of $5,800.00 in respect of the Ancillary Claim

  • (7) Report from Advance Insurance Adjusters Limited dated May 26, 2009.

  • (8) Loss of Use Claim Application in the sum of $56,000.00

The Claimants' Case
Shanica Parkes
11

Ms Parkes' witness statement filed the 17 th day of September 2018, stood as her evidence in chief after she was sworn and it was identified by her. Her evidence is that on the day in question she was travelling in a taxi from Linstead to Ewarton, with her daughter and Trishene Powell. She states that the road they were on allows for vehicles to travel in either direction and she was able to see the vehicles passing heading to Linstead. She adds that the driver stopped to pick up a passenger who “decided not to come” and then they “again” proceeded on their way to Ewarton when she felt a hard impact to the rear of the vehicle and after the collision both vehicles stopped. She states further that she was in pain, went to the Linstead Hospital and left and went to the Ewarton Medical Centre where she was treated, given medication, did x-ray and was referred to physiotherapy. She also states that she completed five (5) sessions of physiotherapy at Angels Health Care and still experiences pain because of the accident.

12

In cross examination, she said the road was about 30 feet wide and that she could not recall if it rained that day. She stated that there was one other passenger in the car and that person was let off on the left side of the road. She stated further that the driver, Mr. Clarke, who she knew as “P-man”, had stopped to pick up another passenger, on the right hand side, which she described as the opposite side of the road. When asked what direction the car was facing when on the right hand side of the road, she said the car was “facing going to Ewarton”.

13

Ms Parkes stated that P-Man “just turn across the road” when he was going to pick up the passenger, and she agreed with Counsel when she suggested that Mr. Clarke turned across the road and stopped on the right hand side of the road. She said Mr. Clarke had to drive from the right, back to the other side, but disagreed that Mr. Clarke turned back, to go to the right hand side of the road.

14

She indicated that the accident took place “one or two minutes after” the driver drove off and that after the accident, the vehicle was on the road side facing Ewarton and Mr. McLean's vehicle was behind, it facing the same direction. She stated that she felt the impact to the rear of the vehicle while moving and said the damage to “P-Man's” vehicle was to the back. When prodded to expound which section of the vehicle, Ms. Parkes stated that it was “at the back, all of the back” and she said the damage to Mr. Mclean's vehicle was at “the front, all of the front”.

15

Ms. Parkes maintained that the vehicle she was travelling in was heading to Ewarton and agreed that before the accident the two vehicles were travelling in opposite directions. She also maintained that the driver of the vehicle she was in did not make a “U” turn.

Trishene Powell
16

Ms. Powell's witness statement filed on September 17, 2018, stood as her evidence in chief. She experienced difficulties in recalling what happened on the day in question and states that she was six or seven when the accident took place. She however recalls travelling to Ewarton, hearing a loud crashing sound, feeling an impact to the back of the car, and that the car had stopped. She adds that she went to the doctor and was given medication and stayed home from school.

17

In cross examination, she said she “think it was the left side” of the road the vehicle was on and when asked “left side going where?” she said, “I don't remember… Like it came off one road and went on another”. She stated that this happened before the impact.

18

Ms Powell then said she did not remember going to the doctor and when asked if she has been to the doctor since she is “big”, she responded in the negative.

Beverley Pearson
19

Ms. Beverly Pearson, grandmother and next friend of Trishene, gave evidence that Trishene received medication for pain which she took until it was finished. She stated however that Trishene still cries for pain which she described as “more time her back and head”, but stated that she has never taken Trishene to the doctor, but “doctors” her, herself.

The Defendant's Evidence
20

Mr. Mclean was sworn and his Witness Statement dated May 29, 2018, stood as his evidence in chief. It is his evidence that at about 1 o'clock in the afternoon on the day in question he was driving his Toyota Hilux motor vehicle, travelling at about 50 kmph in the left lane along the Ewarton main road, towards Linstead when, on approaching a bend in the vicinity of Charlemont, a white Probox motor car heading in the opposite direction...

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