Steve Thompson and Another v Guiles Hall
| Jurisdiction | Jamaica |
| Judge | Dunbar-Green J. |
| Judgment Date | 22 June 2016 |
| Neutral Citation | [2016] JMSC Civ 105 |
| Docket Number | CLAIM NO. 2011 HCV 03017 |
| Court | Supreme Court (Jamaica) |
| Date | 22 June 2016 |
[2016] JMSC Civ 105
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Coram: Dunbar-Green J.
CLAIM NO. 2011 HCV 03017
and
Ms. Christine Hudson and Ms. Renae Barker for Claimant instructed by K. Churchill Neita & Co.
Mr. Maurice Manning and Mr. Mark Paul Cowan for Defendant instructed by Nunes Schoefield DeLeon & Co.
NEGLIGENCE — COLLISION AT INTERSECTION OF MAIN ROAD AND MINOR ROAD — MINIBUS TURNING FROM MAIN ROAD ONTO MINOR ROAD — MOTORCYCLE TRAVELLING ON MAIN ROAD IN OPPOSITE DIRECTION — MOTOR CYCLIST NOT WEARING HELMET — DUTY OF DRIVERS — WHETHER MINIBUS DRIVER RESPONSIBLE FOR ACCIDENT — CONTRIBUTORY NEGLIGENCE
This action arose out of a collision between a minibus, owned and driven by the defendant, and a Honda 600 RR motorcycle owned and driven by the first claimant (hereinafter called the claimant) in the vicinity of the intersection of Hagley Park Road (the main road) and Stratford Avenue (the minor road) in the parish of Saint Andrew, on 19 th March 2010. The minibus was travelling in the direction of Three Miles and turning right onto the minor road when the motorcycle, which was proceeding on the main road, in the direction of Half Way, collided with the left rear wheel of the minibus.
The claimant alleges that the defendant so negligently managed and/or controlled his minibus that he caused the collision. As a result, the claimant sustained personal injuries and suffered loss and damage.
The particulars of negligence of the defendant are set out below.
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I. Drove at a speed which was too fast in all the circumstances.
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II. Failed to keep any or any proper lookout or to have any sufficient regard for other road users.
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III. Turned or attempted to turn right from Hagley Park Road onto Stratford Avenue and into the path of the claimant when it was unsafe and dangerous so to do.
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IV. Failed to stop or to wait until the claimant had passed safely before turning or attempting to turn.
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V. Failed to give any or any sufficient or timely warning or signal of his intention to turn.
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VI. Failed to observe the presence of other road users in sufficient time so as to avoid turning or attempting to turn right.
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VII. Failed to stop, slow down, swerve or in any other way manage and/or control the mini bus so as to avoid the collision.
The defendant denies that he was negligent and states that the claimant is wholly to blame or in the alternative, materially contributed to the accident. The particulars of the claimant's negligence are as follows.
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I. Drove at a speed which was manifestly unsafe in the circumstances.
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II. Drove his motorcycle without any or any adequate regard for other road users.
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III. Attempted to overtake a stationary motor vehicle at a time and place when it was manifestly unsafe to do so.
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IV. Attempted to overtake at an intersection.
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V. Failed to see or see in time that the defendant was in the process of turning right.
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VI. Failed to keep a proper lookout.
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VII. Collided into the left rear section of the defendant's minibus.
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VIII. Failed to stop, slow down or otherwise manoeuvre his motorcycle so as to avoid the collision.
The parties agreed medical reports of Dr. Cary Fletcher dated 4 th November 2010 and 19 th March 2015, Dr. Guyan Arscott dated 24 th February 2011, Dr. Grantell Dundas dated 3 rd October 2012, and Dr. Kenneth Vaughan dated 1 st June 2013, 14 th March 2013 and 14 th October 2015 (Exhibit 1); the sum of $602,366.09 in respect of Special Damages (Exhibit 1); photographs (Exhibit 2); and $400,000 for future medical expenses.
Before the trial commenced, the Court heard an application from counsel for the defendant in which he requested that the Witness Statement of Andre Daley be admitted into evidence without the need for oral testimony, and that the Defence be amended to include a paragraph: ‘To the extent that the claimant has suffered any injury, the defendant will say that same was substantially caused by the claimant's failure to wear a helmet at the time of the accident.’
The application for the first order was denied on the basis that the defendant did not satisfy the requirements under section 31(e) of the Evidence Act. The second application was granted on the basis that the information had been contained in the medical evidence which was agreed.
The claimant's Witness Statement, filed 15 th July 2015 along with amplification, and those of Miss Joy Thompson and Mr. David Ireland, filed 15 th June 2015 and 28 th May 2015, respectively, were ordered to stand as their evidence in chief.
Mr. Thompson gave evidence that at about 10:30 pm he was riding his motorcycle, with a pillion rider, along Hagley Park Road in the direction of Half Way Tree. He was travelling at approximately forty-five kilometres per hour and there were no cars travelling in front of him. On reaching the vicinity of the intersection at Stratford Avenue, he saw a white Toyota Hiace minibus travelling in the opposite direction. The minibus suddenly made a right turn across his path, towards the minor road, without indicating. He immediately braked and swerved to the right in an attempt to avoid colliding with the minibus but he could not and the motorcycle collided with the left back wheel of the minibus. The collision occurred on his side of the main road.
On impact, the motorcycle was ‘flung around the back of the bus’ and the pillion rider and himself were ‘thrown’ from the motorcycle. The claimant ended up on the left sidewalk of the main road and the motorcycle not too far away. He was not wearing a helmet at the time of the accident.
Under cross-examination, Mr. Thompson said that he was on his way to a party at the University of Technology and was not wearing a helmet for fear that it would be stolen at the party. In describing the motorcycle he said it was not a ‘fudgy bike’ but a ‘fast, powerful, big bike, with a muffler under the seat and two headlights.’
When he first saw the minibus, it was some 85 feet away. At that point, the motorcycle was positioned close to the left sidewalk of the main road. At some 11 feet, he observed the minibus turning across his path towards Stratford Avenue, without any indication. He disagreed that there were three vehicles which had stopped in front of him to allow the minibus to cross.
On seeing the minibus crossing, Mr. Thompson said he swerved right but was unable to steer the motorcycle to the opposite side of the road although he had tried to do so. Consequently, he had a ‘head-on collision with the left rear wheel of the bus.’ He admitted that the motorcycle had hit the minibus with ‘some force’ and that after the impact he ended up past Stratford Avenue on the left sidewalk of the main road. This was some 8 or 9 feet away from the point of impact. The motorbike was ‘a total loss’.
Mr. Thompson also said that between Portia Simpson Miller Square and the intersection of Waltham Park and Hagley Park roads he had moved from left to right and vice versa because there were two lanes in his direction at that point. However, when he left the traffic lights at Waltham Park intersection, he switched to the left side of the road, closer to the curb, and maintained that position until he swerved right to avoid the collision with the minibus.
In response to questions by the Court, Mr. Thompson said there was no vehicle ahead of the minibus, and the collision occurred close to the middle of the road in his correct lane. He said he did not swerve left because there was a building with a high wall at the corner of the major and minor roads. He said there were street lights close by and both vehicles had on lights. After he first saw the minibus at some 85 feet away, he kept his eyes on his path, on the left side close to the curb.
Mr. Thompson said he sustained injuries all over his body and suffered pain. He was taken to the University Hospital where he was treated and remained bed-ridden for two weeks. On discharge, he was bed-ridden at home for two months and continued to endure pain. He then started to ambulate with crutches for a further two months and was unable to return to work, as a driver, until September 2013. During the period, he was an out-patient at the University Hospital. He was also examined at private institutions by orthopaedic and cosmetic and reconstructive specialists.
The evidence of Mr. Thompson and his witnesses, Miss Joy Thompson and Mr. David Ireland, in relation to special damages, will be dealt with later in this judgment.
The Witness Statement of Mr. Guiles Hall, filed 30 th April 2015, along with amplification, was ordered to stand as his evidence in chief.
Mr. Hall's evidence was that he was driving his minibus along Hagley Park Road at 30 miles per hour (50kph) with headlamps on and the front windows down. On approaching the intersection at Stratford Avenue, he slowed and put on his right indicator, checked his mirror and came to a complete stop. Two vehicles which were headed in the opposite direction passed as he waited to turn. A third vehicle came to a complete stop and flashed its headlights which he interpreted to mean that he could turn right. Two other cars stopped behind that vehicle. As he started to turn right, he saw no lights from the opposite direction except those from the cars which had stopped.
As he made his turn, a vehicle which was behind him continued along the main road. Just about when the front of his minibus was aligned with the left front of the car that had stopped to allow him to cross, he saw, through the corner of his eye, a...
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