UC Rusal Alumina Jamaica Ltd v Norris Francis

• Jurisdiction: Jamaica
• Judge: Panton P
• Judgment Date: 20 December 2012
• Neutral Citation: JM 2012 CA 123
• Docket Number: SUPREME COURT CIVIL APPEAL NO 96/2010
• Court: Court of Appeal (Jamaica)
• Date: 20 December 2012

[2012] JMCA Civ 58

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Dukharan JA

The Hon Mrs Justice Mcintosh JA

SUPREME COURT CIVIL APPEAL NO 96/2010

Between

UC Rusal Alumina Jamaica Limited

Appellant

and

Norris Francis

Respondent

Christopher Kelman and Krishna Desai instructed by Myers, Fletcher and Gordon for the appellant

Dale Staple instructed by Kinghorn and Kinghorn for the respondent

NEGLIGENCE - Personal injuries - Contributory negligence - Issue of credibility of witness - Whether the respondent contributed to his injuries through negligence

Panton P

1 On 13 July 2010, Frank Williams J (Acting) (as he then was) ordered as follows:

• ‘(i) The Court apportions liability equally (i.e. 50% and 50%) between the Claimant and the Defendant respectively.

• (ii) General Damages:

  • (a) Pain and Suffering:- Six Million Dollars ($6,000,000.00) being 50% of the sum of $12,000,000.00, with interest thereon at the rate of 3% p.a. from the 8 ^th November 2007 (date of Acknowledgment of Service) to today's date — 13 ^th July 2010.

  • (b) Handicap on the labour market in the sum of three hundred and seventy-five thousand dollars ($375,000.00) being 50% of the sum of $750,000.00.

  • (c) Future Care & Assistance in the sum of Six Hundred and Eighty-Three Thousand Seven Hundred and Sixty Dollars ($683,760.00) being 50% of the sum of $1,367,520.00.

  • (d) Wheelchair cost in the sum of Two Thousand United States Dollars (US$2,000.00).

• (iii) Special Damages in the sum of $21,721.31 being 50% of the sum of $43,442.63 with interest thereon at the rate of 6% per annum from the 29 ^th January 2004 (date of incident) to the 21 ^st June 2006; and at 3% from the 22 ^nd June 2006 to today's date — 13 ^th July 2010.

• (iv) Costs to the Claimant to be agreed or taxed.’

This order is the subject of this appeal. It is noticeable that the quantum of damages is not under attack. It is liability that is being challenged.

The claim

2 The respondent claimed damages for negligence against the appellant in respect of an accident that occurred at a railway crossing. The particulars allege that the respondent was driving a motor car while lawfully crossing the train line, when a train owned and operated by the appellant was driven in a negligent manner resulting in a violent collision with the respondent's car.

3 The major particulars of negligence were itemized thus:

• • failing to warn the respondent of the approach of the train;

• • operating the train at too fast a rate of speed;

• • failing to use reasonable care, vigilance and skill in the management of the train;

• • failing to take reasonable care to stop or slow down or otherwise conduct the operation of the train; and

• • failing to have flagmen, and/or gates and/or adequate warning signals at the crossing.

The defence

4 The appellant, in its defence, admitted the occurrence of the accident but put the respondent to proof of the various allegations. It stated that its servants took all reasonable steps to avoid the collision by driving at the prescribed speed and sounding the prescribed horn signal on the approach to the crossing. The appellant maintained that the respondent's motor vehicle ‘suddenly drove unto the railway track after the subject train had entered the crossing and despite the operator of the train applying the train's emergency brake in an effort to stop the train as quickly as possible a collision could not be avoided’. According to the pleaded defence, the collision ‘was caused either wholly or substantially contributed to by the [respondent's] negligence’. The alleged negligence on the part of the respondent was particularized thus:

• • failing to heed the warning horn of the train;

• • failing to utilize reasonable care and skill whilst operating his motor vehicle;

• • failing to obey the warning signs along the roadway on approaching the rail track; and

• • failing to take reasonable care or stop at the said crossing in light of the on-coming train.

The evidence

5 The respondent gave evidence in his cause and called Dr Rory Dixon in respect of the injuries that he sustained, and Miss Marla Christopher who produced medical reports and invoices. The appellant called Mr Owen Denton, the driver of the train, Mr Manley Brandon, a permanent way technician, and Mr George Peart, a shunter, who was monitoring the rear end of the train at the time of the accident.

6 The respondent stated in his witness statement that he was a councillor in the St Catherine Parish Council. He was on his way to Guy's Hill ‘to pick up some persons to carry them to a crusade’. It was about 3:00 p.m. when he got to the railway crossing. There was no one at the spot to signal that a train was coming and there were no warning signs or anything to alert anyone as to the approach of a train. He said that he heard no horn. There was a young lady in the vehicle with him. There was a big ‘banking’ beside the cemetery that prevents one from seeing clearly down the train line from the direction of Linstead, and it was difficult to see anything coming from his right. Since the accident, he said, the ‘banking’ has been removed.

7 The respondent stated that he slowed down as he approached the train line. He heard nothing so he went ahead and attempted to cross the line. The next thing he remembered was waking up in the hospital. He gave details of sustaining injuries to his brain and all over his body. He cannot walk unaided and stated that he is confined to a wheelchair for the remainder of his life. His right hand has been permanently damaged. He concluded his witness statement thus:

‘The collision and the injuries that I have suffered as a result have left me a shadow of the man that I once was and I am sometimes very depressed about the entire situation.’

8 Under cross-examination, the respondent conceded that as a result of his use of this crossing over the years, he was aware that he was to ‘stop, look and listen’, and he never required any sign to tell him to do so. He said that he never saw a ‘stop’ sign at the crossing and did not recall ever seeing any such sign since his boyhood days. On this particular occasion, he said that he listened and heard nothing so he continued across. He agreed with the suggestion that one could hear the sound of the train's horn from half a mile distance. He also said that the radio in his car was not on, and the windows of the car were down. The ‘banking’ prevented him from seeing clearly to his right. In crossing, he slowed down, looked and listened but neither saw nor heard the train. He rebuffed the suggestion that he was in a hurry and tried to ‘beat’ the train.

9 Mr Owen Denton was the driver of the train. At the time of the making of his witness statement, he had been a train driver for over 21 years. He said that on approaching the crossing, he sounded the horn of the train continuously. There are no barriers or warning signals at this crossing. As he entered the crossing, he saw the respondent's motor car appear in front of the train. The train's speed at the time was approximately 16 kph. He applied the emergency brake but the collision could not have been avoided as he could not stop the train in time. After the collision, he noticed that the windows of the motor car were wound up. He estimated that the train could have been seen at a distance of approximately 290 metres from the crossing.

10 During examination-in-chief, Mr Denton said that the train would have been making much noise as there were two locomotives and 15 empty hopper cars. Also, in that area, there are ‘short joints’ and the train makes ‘a lot of noise to go over the joints’. Under cross-examination, he said that there are whistling posts from which the driver of the train is supposed to sound the horn. He said that there was ‘banking’ but he would not classify it as high. He also said that there is a ‘bend’ about two chains from the crossing. When asked to indicate what he refers to as a chain, he pointed to what the learned judge considered to be about 12 feet. He said that there was no system to warn him of the presence of a vehicle in the crossing, or nearby. He said that the public knows the time when the train is scheduled to pass by but the schedule is not posted anywhere.

11 Mr Manley Brandon stated that he was a permanent way technician employed to the appellant. He said that on the day of the accident he visited the crossing and observed the following three signs in place: ‘Railway Crossing 150 metres ahead’, ‘Stop, Look, Listen’ and ‘Stop’. Under cross-examination, Mr. Brandon said that he was responsible for the smooth and safe running of the train operations. He gave evidence as to the existence of other public crossings in the parish. One which is on the Spanish Town to Ewarton route is controlled by gates while another at Jacob's Hut is equipped with flashing lights. These lights were installed by JAMALCO ‘on their side of the track’. Mr Brandon also said that the appellant inherited the train lines from the Jamaica Railway Corporation ‘and they are the ones which dictate which crossing...