Troy Henry v Javette Nixon

• Jurisdiction: Jamaica
• Judge: Henry-McKenzie, J
• Judgment Date: 14 February 2020
• Date: 14 February 2020
• Docket Number: CLAIM NO. 2014 HCV 00803
• Court: Supreme Court (Jamaica)

[2020] JMSC Civ 32

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2014 HCV 00803

Between

Troy Henry

Claimant

and

Javette Nixon

Defendant

Mr. Charles E. Piper Q.C. and Ms. Petal Brown instructed by Charles E. Piper & Associates for Claimant.

Ms. Jody-Ann Gaff instructed by Vaccianna & Whittingham for the defendant.

Road Traffic Act — Negligence — Motor vehicle collision at intersection of main road and minor road — Car turning across a main road unto minor road — Duty of turning driver — Duty of the motorcyclist on correct side of the road-Motorcyclist not wearing helmet-Contributory negligence

IN OPEN COURT

Henry-McKenzie, J (Ag)

1 This is a claim in negligence which arises from a motor vehicle collision which took place on August 25, 2010 at about 10:30 pm at the intersection of Half Way Tree Road and Chelsea Avenue between the Claimant's motorcycle and the Defendant's motor vehicle. In the Claim Form dated February 17, 2014 and filed on February 14, 2014, the Claimant Troy Henry claims against the Defendant Javette Nixon, damages for Negligence. He alleges that the Defendant so negligently drove, managed or controlled his motor vehicle so as to cause same to collide with his motor cycle, a consequence of which he suffered injury, loss and damage. The Claim Form is supported by Particulars of Claim, in which the Claimant details the particulars of Negligence, as he avers, the injuries he suffered, diagnosis, the treatment he received as also Special Damages.

THE CLAIMANT'S ACCOUNT

2 The Claimant's witness statement dated the 29 ^th June 2018 and filed that same day, along with his oral testimony elicited by way of amplification, constituted his evidence-in-chief.

3 The Claimant alleged that he was travelling on Half Way Tree Road from the direction of Half Way Tree heading in the direction of Cross Roads on his CBR Honda 600 RR motorcycle, when on approaching the intersection of Half Way Tree Road and Chelsea Avenue, he saw the Defendant's vehicle at the intersection with its right indicator on, positioning to turn unto Chelsea Avenue. The Defendant's vehicle was on the opposite side of the road coming from the direction of Cross Roads. The Claimant indicated that he was about six car lengths away from the intersection when he saw the Defendant's vehicle. He was riding at a speed of 55 km/h as he approached the intersection. A bus and a car had already passed through the intersection. The traffic light was green in his favour. While going through the intersection, the Defendant's vehicle turned into his path and he collided into the front left section of this vehicle. He woke up in the Kingston Public Hospital suffering from serious injuries. He was discharged from the hospital on October 1, 2010. He admits that he was not wearing a helmet at the time of the collision. The extent of his injuries will be looked at when dealing with the assessment of damages.

4 In cross-examination, the Claimant refuted the Defendant's allegations that he was given an indication to turn and highlighted that the bus that was alleged to have given such indication, had already gone through the intersection. The Claimant was adamant that the bus was not located in the right lane, but in the left lane as one faces Cross roads. In fact, according to the Claimant, there was no vehicle in the right lane.

5 He insisted that he was not speeding. When questioned as to how he was able to judge the speed at which he was going, he indicated at first, that he was in a 50km/h zone and he was driving in 3 ^rd gear, but then later on, credited this to his riding experience. He also insisted that he was travelling in the middle lane. He also indicated that when he saw the Defendant's vehicle turn, although he had full view of the vehicle, he did not attempt to brake or swerve. He also pointed out, that as he was going through the light, in a split second the Defendant's vehicle turned into his path. He vehemently denied that he was the cause of the collision.

THE DEFENDANT'S ACCOUNT

6 The Defendant's witness statement dated the 26 ^th June 2018 and filed on the 12th day of February, 2019, stood as his evidence in chief, along with the evidence elicited in amplification.

7 The Defendant's case is that he was coming from the direction of Crossroads. On reaching the intersection of Half Way Tree Road and Chelsea Avenue, he positioned his vehicle in the right lane with the right indicator on, showing his intention to turn unto Chelsea Avenue. The traffic light was on red, so he stopped his vehicle. When the light eventually changed to green he maintained his stationary position as the traffic had begun moving towards Cross Roads. A coaster bus which was in the right lane, stopped to give him way. So did a black pickup truck which was in the middle lane. The left lane had no traffic. Both drivers signalled to him that he could proceed to make the turn. He started to make the turn and whilst so doing, he saw a motorcycle coming from behind the coaster bus at a fast speed. He attempted to continue to make the turn, but realised that the motorcyclist was not slowing down. The motor cyclist rode to the right of the coaster bus and went between the bus and the median. He stopped his vehicle, hoping that the motorcyclist would pass his vehicle on the left side, but he instead crashed into the front left hand side of his vehicle.

8 The Defendant in cross-examination stated that he had only travelled less than a foot from his stationary position when he began his turn, but thereafter agreed with the suggestion by Queen's counsel, that the distance was more between one and two feet. He was inconsistent in his evidence as to whether he had stopped when he saw the claimant's bike coming towards him or whether he continued to make the turn. He was also inconsistent as to whether he had seen the Claimant's motorcycle before he started to make the turn. He denied that he was the cause of the collision and blamed it on the Claimant.

SUBMISSIONS ON LIABILITY

Claimant's Submissions

9 Queen's Counsel Mr. Piper for the Claimant, summed up his submissions using the words of Morrison J in Matthew and Anor v The AG and Anor (2007) HCV04547, para 23 & 24.

“The rule of the road is a paradox quite for riding or driving along; if you go to the left you are sure to go right, if you go to the right you go wrong.”

10 He argued that a motorist intending to make a right turn against oncoming traffic must wait until he is certain that he can safely make the turn before moving or attempting to move from a major road unto a minor road. He argued further, that if there was traffic lawfully proceeding along the major road which a motorist did not see or saw at the last minute, he will be at fault for having obstructed traffic that has the right of way, which he submitted, the Defendant in fact did. This he stated was in breach of the Road Traffic Act, in particular, sections 32 (1) and 51, which impose a duty on motorists to drive with due care and attention and with reasonable consideration for other persons using the road and a duty to take such action as is necessary to avoid an accident.

11 Queen's Counsel relied on the decision of Simpson v Peat (1952) 2 Q.B 24 which speaks to the duty owed by motorists in situations where they are turning across traffic. This he submitted, requires caution and care which a reasonable and prudent driver ought to exercise. He further submitted that on the evidence, the Defendant is the cause of the collision and was therefore negligent. Despite taking this position, Queen's Counsel recognized that the Claimant failed to minimize his injuries by not wearing a protective helmet. He argued however, that that this will only require a reduction in damages at 5% of the whole.

Defendant's Submissions

12 Counsel for the Defendant Miss Goff, on the other hand, argued that the duty to take reasonable care at both common law and statute is owed by road users, not only towards each other, but to themselves. The duty is not only on motorists turning across traffic as in the instant case, but on every user of the road, which includes the Claimant motorcyclist. In support of this argument, she cited the case of Pamela Thompson and others v Devon Barrows and others CL 2001/T143, para 11.

13 She submitted that the evidence shows that various actions undertaken by the Claimant were significant factors resulting in the collision and the Claimant's injuries. She described these actions as:

• i. Riding at an excessive speed and improper speed in all the circumstances

• ii. Overtaking the coaster bus in an improper manner

• iii. Failing to pay attention to the fact that other vehicles travelling ahead of him in his direction had stopped to allow the Defendant to turn

• iv. Failing to stop, turn aside, brake or otherwise manage or control his said motorcycle so as to avoid the collision

• v. Carelessly and recklessly colliding into the front bumper of the Defendant's vehicle.

14 She therefore submitted that the Claimant was the cause of the collision and has asked the court to so find. In the alternative, that the Claimant negligently contributed to the collision occurring and that his injuries were of his own making. Should the court find contributory negligence on the part of the Claimant, she asked the court to apportion blame at 80% to the Claimant and 20% to the Defendant. This, owing to the Claimant's careless and reckless driving of the motorcycle at excessively high speed, which prevented him from taking the necessary steps to avoid the collision, and his failure to wear protective garments, when there was always a possibility of a collision on the road.

15 Counsel for the Defendant had urged the court in her submissions to adopt the approach taken by the court in the cases of Steve Thompson & another v Suites Hall [2016] JMSC Civ. 105 and Heron Scott v Huntley...