Steadly Moulton v Wadmar Construction Ltd

• Jurisdiction: Jamaica
• Judge: P Williams JA,Foster Pusey JA,F Williams JA
• Judgment Date: 05 July 2021
• Neutral Citation: [2021] JMCA Civ 33
• Docket Number: SUPREME COURT CIVIL APPEAL NO 89/2005
• Year: 2021
• Court: Court of Appeal (Jamaica)

IN THE COURT OF APPEAL

BEFORE:

THE HON Mr Justice F Williams JA

THE HON Miss Justice P Williams JA

THE HON Mrs Justice Foster-Pusey JA

SUPREME COURT CIVIL APPEAL NO 89/2005

Between

Steadly Moulton

1 ^st Appellant

Doreen Harrison

2 ^nd Appellant

and

Wadmar Construction Limited

1 ^ST Respondent

and

Rajiv Knight

2 ^ND Respondent

and

The Administrator General for Jamaica (Representative of the Estate of Ainsworth Boreland, Deceased, Intestate)

3 ^RD Respondent

Miss Renae Barker instructed by K Churchill Neita & Co for the appellants

Walter Scott QC and Miss Anna Gracie instructed by Elizabeth Salmon for the 1 ^st and 2 ^nd respondents

Mrs Geraldine Bradford for the 3 ^rd respondent

F Williams JA

1 I have read in draft the judgment of P Williams JA. I agree with her reasoning and conclusion and have nothing to add.

P Williams JA

2 This appeal concerns proceedings arising from a tragic motor vehicle accident which occurred in the early morning of 1 May 2010, along the White River main road, in the parish of Saint Mary. There were two motor vehicles involved. Mr Steadly Moulton (‘the 1 ^st appellant’), and Miss Doreen Harrison (‘the 2 ^nd appellant’), were passengers in one of the motor vehicles, a Toyota Corolla motor vehicle with registration number 1287 ET, which was driven by Mr Ainsworth Boreland. Both appellants and Mr Boreland were injured, and sadly, Mr Boreland later succumbed to his injuries. Mr Rajiv Knight (‘the 2 ^nd respondent’), was the driver of the other motor vehicle, a Toyota Tundra motor truck with registration number 9334 FJ, which was owned by Wadmar Construction Limited (‘the 1 ^st respondent’). The Administrator General (‘the 3 ^rd respondent’) was appointed administrator ad litem for Mr Boreland's estate, he having died intestate, for the purpose of the claim.

Proceedings in the court below

3 The appellants filed their claim against the respondents in the Supreme Court on 19 July 2011. On 19 September 2011, the 1 ^st and 2 ^nd respondents filed their defence and an ancillary claim against Mr Boreland. On 13 February 2012, the 3 ^rd respondent, the Administrator General, was appointed administrator ad litem. On 25 May 2012, the appellants filed an amended claim form along with an amended particulars of claim in which they asserted that the accident was caused by the negligence of the 2 ^nd respondent and/or Mr Boreland. On 12 March 2015, they filed another amended particulars of claim. The particulars of negligence, as outlined in this amended particulars of claim were as follows:

“ PARTICULARS OF NEGLIGENCE OF THE SECOND [RESPONDENT]

PARTICULARS OF NEGLIGENCE OF [MR] BORELAND, DECEASED

• i. Driving at an excessive speed;

• ii. Disobeying the Police Officers' command by failing to stop;

• iii. Driving in a dangerous and reckless manner;

• iv. Overtaking or attempting to overtake a line of traffic without first ascertaining or ensuring it was safe to do so and/or when it was unsafe and dangerous so to do;

• v. Overtaking or attempting to overtake a line of traffic thereby colliding into motor vehicle registered 1287 ET;

• vi. Failing to keep any or any proper look-out or to have any or any sufficient regard for other traffic on the road;

• vii. Failing to give adequate warning of his approach;

• viii. Failing to see motor vehicle registered 1287 ET which was in the process of making a u-turn in sufficient time or at all in order to avoid the collision;

• ix. Failing to stop to slow down, to swerve or in any other way so as to manage or control the motor vehicle so as to avoid the collision;

• i. Drove in a reckless and dangerous manner;

• ii. Failed to have any or any adequate regard for other users of the roadway;

• iii. Failed to see and/or observe in sufficient time or at all the presence or approach of the first [respondent's] said motor vehicle;

• iv. Failed to have any proper look out in the circumstances;

• v. Attempted to make a u-turn without first ascertaining whether and ensuring that it was safe to do so and a time when it was manifestly unsafe to do so;

  …”

4 The 1 ^st and 2 ^nd respondents countered that the collision was caused solely or materially contributed to by the negligence of Mr Boreland. In their defence and ancillary claim, filed on 19 September 2011, they set out the particulars of negligence as follows:

“ PARTICULARS OF NEGLIGENCE OF [MR] BORELAND, DECEASED

[Mr Boreland], deceased, was negligent in that he:

• a) Drove in a reckless and dangerous manner.

• b) Failed to have any or any adequate regard for other users of the roadway.

• c) Failed to see and/or observe in sufficient time or at all the presence or approach of the [respondents] said motor vehicle.

• d) Failed to have any or any proper look out in the circumstances.

• e) Without due care and attention drove motor vehicle number 1287 ET across the path of the 1 ^st [respondent's] motor vehicle thereby causing the collision.

• f) Failed to stop, slow down, swerve, or take any precaution to avoid the collision.”

5 In the ancillary claim, the 1 ^st and 2 ^nd respondents claimed not only indemnity and/or contribution from the 3 ^rd respondent in relation to the appellants' claim, but also sought to recover damages and expenses incurred because of the damage caused to their motor vehicle (the Toyota Tundra motor truck).

6 On 28 June 2012, the 3 ^rd respondent filed its defence and its ancillary claim denying that Mr Boreland was negligent or that the collision was caused, as alleged, or by any negligence on his part. The 3 ^rd respondent asserted that the collision was caused by the negligence of the 2 ^nd respondent. The following were the particulars of negligence alleged:

“ Particulars of Negligence of the 2 ^nd [respondent].

• (a) Driving at an excessive speed in the specific circumstances;

• (b) Driving on to the wrong side of the road and there collided with motor vehicle licence number 1287 ET;

• (c) Failing to have any due regard for other users of the road;

• (d) Failing to keep any or any proper look-out or to have any or any sufficient regard for other traffic, particularly oncoming traffic on the road;

• (e) Failing to stop, to slow down, to swerve or in any other way so to manage or control the motor truck so as to avoid the collision;

• (f) Driving without due care and attention;

• (g) Overtaking or attempting to overtake a line of traffic thereby colliding with motor vehicle licence number at 1287 ET”

7 The trial commenced on 1 July 2015 before E Brown J (‘the learned trial judge’).

On 2 July 2015, he gave judgment in favour of the appellants against the 3 ^rd respondent in the following terms:

“1. Judgment for the [appellants] against the [3 ^rd respondent] with damages assessed as follows:

First [appellant]

• a. General Damages in the sum of One Million Five Hundred Thousand Dollars ($1,500,000.00) with interest at 3% per annum from the 28 ^th July, 2011 to the 2 ^nd July, 2015.

• b. Special Damages in the sum of Twenty Two Thousand Five Hundred Dollars ($22,500.00) with interest at 3% per annum from the 1 ^st May, 2010 to the 2 ^nd July 2015.

Second [respondent]

• c. General Damages in the sum of Four Million Five Hundred Thousand Dollars ($4,500,000.00) with interest at 3% per annum from the 28 ^th July, 2011 to the 2 ^nd July, 2015.

• d. Special Damages in the sum of One Hundred and Forty Thousand Two Hundred and Sixty Dollars ($140,260.00) with interest at 3% per annum from the 1 ^st May, 2010 to the 2 ^nd July, 2015.

• 2. Special Damages to the 1 ^st and 2 ^nd [respondents] in the sum of One Million Eighty One Thousand One Hundred and Forty Three Dollars and Ninety One Cents ($1,081,143.91) with interest of 3% per annum from the 1 ^st May, 2010 to the 2 ^nd July, 2015.

• 3. Costs awarded to the 1 ^st and 2 ^nd [appellants] against the 3 ^rd [respondent] to be agreed or taxed.

• 4. Costs awarded to the 1 ^st and 2 ^nd [respondents] against the 3 ^rd [respondent] to be agreed or taxed.”

8 The learned trial judge subsequently gave written reasons for his decision which, in effect, agreed with one of the appellants' assertions that the accident was caused by the negligence of Mr Boreland.

The appellants' case at trial

9 The 2 ^nd appellant had no recollection of how the accident occurred and as such, the appellants' case depended solely on the evidence of the 1 ^st appellant. It was his evidence that sometime after 1:00 am on 1 May 2010, he was travelling in the motor vehicle being driven by Mr Boreland, at a moderate speed, along the Prospect main road. He was seated in the front passenger seat, beside Mr Boreland, and the 2 ^nd appellant was seated in the back. They stopped at a bar in the vicinity of the Couples Sans Souci Hotel. The bar was located on the left-hand side of the roadway, travelling from Ocho Rios.

10 Two police vehicles were parked on the soft shoulder on the left side of the road. Mr Boreland drove past these two vehicles and parked. In his witness statement/evidence-in-chief, the 1 ^st appellant said that Mr Boreland had parked in front of the police vehicles. Under cross-examination, he explained that Mr Boreland had actually parked “on the inside of the police vehicle”, beside them, close to the soft shoulder, whereas the police vehicle was closer to the main road. He also went on to explain that contrary to what was in his witness statement, he did not see four to five police officers sitting in “the car”. He could not recall how many of them were standing there. He noticed that the police officers had a speed gun but could not recall how many of them did.

11 After Mr Boreland parked, the 1 ^st appellant exited the vehicle and went into the bar, where he spent five minutes before returning to the vehicle. Upon re-entering the vehicle, Mr Boreland switched on the engine and the 1 ^st appellant heard the “loud sound of an engine coming from below”. He went on to describe, in his evidence-in-chief, how he immediately looked...