White (Albert) v Office of Disaster Preparedness and Emergency Management, Trescellian Williams and Attorney General of Jamaica
| Jurisdiction | Jamaica |
| Judge | McDONALD-BISHOP, J (Ag.) |
| Judgment Date | 31 July 2008 |
| Judgment citation (vLex) | [2008] 7 JJC 3104 |
| Court | Supreme Court (Jamaica) |
| Date | 31 July 2008 |
Negligence - Motor vehicle collision - ankle and shoulder injuries - defendants liable - assessment of damages - whether award should be made for handicap on the labour market - whether award should be made for loss of overtime pay
NEGLIGENCE - Motor vehicle collision - Motor car/Motor cycle - Ankle and shoulder injuries - Defendants liable - Assessment of damages - Whether award for handicap on the labour market - Whether award for loss of overtime pay
I wish to take this opportunity to apologize for the delay in delivering this judgment and to thank the parties for their patience.
INTRODUCTION
On October 22, 1994, the claimant, Mr. Albert White, 44 years old, was riding his Honda motor cycle along the Weymouth Drive main road, in the parish of St. Andrew when he collided with a Lada motor car being driven by Mr. Trescelian Williams, the second defendant, and owned by the Office of Disaster Preparedness and Emergency Management (ODPEM), the first defendant.
The claimant is now a wrecker driver but at the material time, he was employed to JAMINTEL as a telegram dispatcher and was conducting duties in and around the Corporate Area. The second defendant is now retired but at the material time he was Director of Finance in the employment of the first defendant and was, admittedly, its servant and/or agent. The third defendant is sued by virtue of the Crown Proceedings Act.
THE CLAIM
The claimant's claim is for damages for negligence in that on the day m question, the second defendant negligently drove, managed, and/ or controlled his motor car in a manner that caused the said car to collide with the claimant's motor cycle resulting in the claimant suffering injury, loss and damage. The allegation of negligence against the second defendant has been particularized in the following terms in paragraph 5 of the claimant's statement of claim.
"(a) Driving too fast in all the circumstances.
(b) Driving whilst his ability to do so was impaired by alcohol.
(c) Failing to keep any or any proper look out or to have any or any sufficient regard for the other users of the said road.
(d) Failing to look ahead to see the claimant and his motor cycle or to heed the Plaintiff's presence upon the said road.
(e) Failing to give any or any adequate warning of his presence or approach upon the said road.
(f) Failing to wait until the Plaintiff had safely made the right turn before attempting to proceed on the right side.
(g) Failing to observe and/or heed the fact that there was another motor car which stopped on the said road waiting to proceed and that it was likely that other users of the road were waiting for an opportunity to make the right turn.
(h) Failing to stop, slow down, to swerve, or otherwise control his said motor car in sufficient time or at all so as to avoid the said collision.
(i) The Plaintiff will further rely on the happening of the said accident as evidence in itself of the negligence of the Defendant."
THE CLAIMANT'S CASE
In support of his claim, the claimant gave the following account as summarized. At about 3:15 p.m., having been delivering telegrams throughout the day at various places in St. Andrew, he was making his way to the Kingston 20 area to deliver the remaining telegrams. He was riding southerly along the Weymouth Drive main road heading towards 14 Chovey Avenue where he was to make a delivery. Upon reaching the intersection of Weymouth Drive and Chovey Avenue, he put on his right indicator to indicate that he intended to turn right onto Chovey Avenue. Before turning, he looked through his rear view mirror and he saw that a red station wagon Lada motor car was immediately behind him. He steered his motor cycle to the middle of Weymouth Drive and took a second look in his rear view mirror. He noticed that the red Lada motor car had given a slow down signal to the right and had moved to the left of Weymouth Drive so he could safely turn onto Chovey Avenue. There was no vehicle coming in the opposite direction and he saw no other vehicle behind him and so he started to proceed onto Chovey Avenue.
While he was turning to get onto Chovey Avenue, suddenly something slammed into the right side of his motor cycle pinning his right ankle against the engine of the motor cycle. He then fell to the ground hitting his head on the pavement and the impact pushed his motor cycle along the road surface. He felt an instant pain to his shoulder. He was in a state of semi-unconsciousness for a few minutes. On regaining full consciousness, he heard a lady saying, "driver what are you doing over here, you don't see the man coming cross the road?" He heard the driver replied, "I am sorry."
He then noticed the second defendant's white car and realized that it was that vehicle that had collided in him. He saw the second defendant whom he realized to have been the driver. He asked the second defendant, "You didn't see me?" whereupon the second defendant responded, "I am sorry". The second defendant told him that he was rushing to pick up his daughter. While the second defendant spoke he recognized the scent of alcohol on his person and he noticed that he was in a nervous state. He asked the second defendant if he was drinking and the second defendant stated that he only had a few drinks. The lady on the scene then told the second defendant to stop the talking and to take him to the hospital. The second defendant, with the help of the lady, put him in the car and took him to the University Hospital of the West Indies.
He sustained several injuries to his body and he was hospitalized for 12 days. He underwent surgery on his ankle. Following his discharge, he was wearing a below knee cast and he was on crutches. He had to return to the hospital for further treatment and follow up care to include physiotherapy. Presently he is still affected by the injuries he sustained in the accident. He also claimed he suffered pecuniary loss and incurred expenses as a result.
The claimant was of course subjected to rigorous cross-examination by Mr. Spencer which, despite managing to elicit some further details as to aspects of the claim and also to ferret out one or two inconsistencies (which will be later examined in my analysis of the evidence), did not manage to shake the claimant's resolve that the second defendant was the cause of the collision and that the second defendant spoke to him during the course of which the second defendant apologized. He denied the defendants' suggestion that he was, in essence, 'the author of his own doom'.
THE DEFENCE
The defendants have denied in their pleadings that the second defendant was negligent as alleged and that as such no liability should attach to them. It is the defendants' pleadings that it was the claimant who overtook the second defendant on the left side and that he was the one who negligently drove managed and attempted to maneuver his motor cycle into Chovey Avenue thereby colliding into the front of the Lada motor car and damaging it. They counter-charged negligence against the claimant in paragraph 3 of their defence as follows.
PARTICULARS OF NEGLIGENCE
(A) Driving too fast in all the circumstances.
(B) Overtaking on the incorrect side of the road.
(C) Turning unto Covey Drive (sic) at a time when it was manifestly unsafe to do so.
(D) Cutting into the path of the Lada Motor vehicle 3876BA at a time when it was manifestly unsafe to do so.
(E) Failing to observe and/or to heed the presence of Lada motor vehicle number 3876BA.
(F) Failing to stop, slow down, to swerve or to otherwise control the said motor cycle, in sufficient time or at all so as to avoid the collision."
THE DEFENDANTS' CASE
The second defendant gave a diametrically opposed version to the claimant's case which, incidentally, also deviated from the defendants' pleadings. His account of the collision is summarized as follows. At the relevant time, he was traveling in his motor car at about 30 miles per hour along Weymouth Drive heading towards Spanish Town Road. He was on his way to deliver a book to a friend who lived on Weymouth Drive. He was coming from seeing his daughter. He did not tell the claimant that he was rushing to pick up his daughter. He saw no other car on the road at the time. While travelling along, he heard a loud noise. He looked in the right side mirror of the car and he did not see anyone. He then looked in the rear view mirror and he saw someone who later turned out to be the claimant riding an X-Trail motor cycle.
Just before he reached the Weymouth Drive/Chovey Avenue intersection, the claimant passed him on the left hand side and in so doing hit off the left side mirror of the car. After that he noticed the claimant on the ground. He came out the car and noticed the claimant sitting on the ground with injuries to his hands and leg. The motor cycle was also on the ground. The left front door, left front fender and the front windshield of the car were damaged. A lady whose name he gives as Marlene came on the scene and assisted him in putting the claimant in the motor car and accompanied him to take the claimant to the University Hospital of the West Indies.
He later learnt the name of the motor cyclist to be Albert White and that the motor cycle he was riding was owned by JAMINTEL. That same evening, he went to the...
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