Dikid Joseph v Jaworski Toussaint et Al
| Jurisdiction | Caribbean States |
| Judge | Actie, J. |
| Judgment Date | 20 December 2023 |
| Judgment citation (vLex) | [2023] ECSC J1220-3 |
| Docket Number | CLAIM NO. GDAHCV2023/0395 (previously GDAHCV2021/0053) |
| Court | Eastern Caribbean Supreme Court |
| Year | 2023 |
The Hon. Mde. Justice Agnes Actie High Court Judge
CLAIM NO. GDAHCV2023/0395 (previously GDAHCV2021/0053)
IN THE SUPREME COURT OF GRENADA
AND THE WEST INDIES ASSOCIATED STATES
HIGH COURT OF JUSTICE
(CIVIL)
Mr. Derick Sylvester for the Claimant
Ms. Linda Dolland and Ms. Sephorah Khan for the Defendants
This claim is for the determination of liability for damage resulting from a motor vehicular accident which occurred on 18 th September 2019 on the Morne Fendue public road.
The claimant is the registered owner and driver of Isuzu truck bearing registration number TAD21. The first defendant was the driver and employee of the second defendant who is the registered owner of truck bearing registration number SL273 (hereafter referred to as “the Grenlec truck”).
The claimant avers that at about 4:00 pm on 18 th September 2019 he was driving along the Morne Fendue public road when he noticed the Grenlec truck being driven by the first defendant approaching at great speed towards him, in the middle of the road. The claimant contends that the first defendant was travelling in the claimant's lane of traffic to avoid pulling down the telephone lines which were in the first defendant's lane of traffic.
The claimant states that the accident was caused solely by the negligent driving of the first defendant as servant and/or agent of the second defendant. The claimant states that the first defendant attempted to avoid the collision by swerving away from the truck, however the front of the Grenlec truck was veering toward a bridge and telephone pole. To avoid colliding with the bridge and telephone pole, the claimant contends that the first defendant swerved the Grenlec truck away from same and collided with the front portion or cabin of the claimant's truck.
The claimant states that the collision and damage were caused solely by the first defendant's negligent driving as servant and/or agent of the second defendant. The particulars of negligence as pleaded by the claimant are as follows:
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(1) Driving without due care and attention;
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(2) Failing to take any and/or adequate care for the safety of the said truck;
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(3) Negligently and/or recklessly driving the Grenlec truck on the public road;
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(4) Failing to stop in advance, slow down, brake, steer, swerve, properly manage or control the said vehicle, or to otherwise manoeuvre the Grenlec truck so as to avoid the said accident;
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(5) Failing to exercise proper driving skill, care and obedience to the traffic rules, so that the collision could have been avoided;
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(6) Driving too fast in the circumstances; and
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(7) Exposing the said truck and/or any pedestrians and motorists to unnecessary risk of damage and injury of which the first defendant knew or ought to have known.
The claimant claims general damages for negligence and/or breach of statutory duty pursuant to sections 49 and 50 of the Motor Vehicles and Road Traffic Act CAP 201, special damages in the sum of $80,026.00, interest, and costs.
The first defendant admits that the accident occurred at approximately 4:45pm during the course of employment with the second defendant. The defendants assert that the first defendant was driving at a speed of approximately 19mph, that it was raining, and that due to the size and height of the Grenlec truck, the first defendant proceeded with care along the Morne Fendue main road and was periodically sounding the horn of the Grenlec truck.
It is not denied that the first defendant was avoiding third party cable wires, though it is denied that the first defendant was driving in the claimant's left lane, or otherwise negligently as alleged or at all. The defendants state that notwithstanding the warnings of the first defendant, the first defendant observed the claimant rapidly proceeding towards the direction and path of the Grenlec truck. In an effort to steer clear of the claimant's on-coming vehicle, the defendants state that the first defendant manoeuvred even further into the left lane and partially off the road.
The defendants aver that the claimant's failure to hear the loud and repeated sounding of the horn of the Grenlec truck was due to his own negligence or omission and was not as a consequence of any failing on the part of the defendants.
The defendants aver that the front of the Grenlec truck had already passed the claimant and it had almost come to a complete stop when the claimant's vehicle collided into the side of the Grenlec truck in the left lane of the road.
The defendants deny the claimant's allegations of negligence, and aver that to the extent that they may be liable for any loss or damage suffered by the claimant, such loss or damage is lessened and diminished by the claimant's contributory negligence. The defendants counterclaim negligence on the part of the claimant, the particulars of which are as follows:
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(1) Driving at an excessive speed in the circumstances;
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(2) Failing to keep proper or any lookout for the first defendant or any other driver on the public road;
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(3) Failing adequately or at all to observe or heed the warning of the first defendant and or the presence of the Grenlec truck;
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(4) Failing to give any or any adequate warning of the claimant's approach;
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(5) Failing to remain, travel and/or manoeuvre in the claimant's lane;
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(6) Driving into the first defendant's lane;
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(7) Failing to apply brakes, stop or slow down in a timely fashion or at all in the circumstances in order to avoid colliding into the Grenlec truck;
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(8) Failing to steer, control or properly manoeuvre or manage the claimant's vehicle in order to avoid colliding into the Grenlec truck;
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(9) Negligently driving and/or conducting the claimant's vehicle without due care and attention and/or without reasonable consideration for the first defendant on the Morne Fendue public road;
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(10) Failing to otherwise avoid colliding into the Grenlec truck.
The defendants counterclaim for general damages for negligence and/or breach of statutory duty; special damages loss and damage to the right side of the Grenlec truck, being the muffler housing, right foot stand, cabin and right rear; interest and costs, inter alia.
In Clarence Martin et al v Edris George 1 Lanns J (Ag.), relied on dicta of Rawlins J in Cheryl Edwards, Administratrix of the Estate of Janique Lewis v Ethel Mills 2 wherein it was stated, inter alia:
“Drivers of motor vehicles are under a duty to exercise due care on the road. They are expected… to determine what other users of the road are doing. They are expected to maneuver their vehicles in order to prevent and avoid accidents. They are expected to use and observe proper signals… They must exercise due care and attention at all times. This might at times require a driver to stop in order to have a proper look out so as to determine whether it is safe to proceed or to overtake another vehicle. It all depends upon the circumstances including the weather, visibility, the number of vehicles on the road, the presence of pedestrians and the state of the road.”
Drivers are under a further duty to drive with a degree of skill and care to be expected of a competent and experienced driver 3, and, as indicated in the case of Bernadette Sampson v Samuel Charles & Anr 4, are expected to take proper care not to cause damage to other road users, and should keep a proper lookout, observe traffic rules and signals, and avoid excessive speed.
In the Motor Vehicle Accident Report, the statement given by the first defendant is as follows:
“I was travelling from Mt. Fendue onto River Sallee, St. Patrick. It was raining at the time and upon approaching the corner, I saw the truck and I sound my horn and try to pull up to my side and both vehicle collided after the front of my vehicle past. I then stop and check the driver. Based on the lower wire, I was driving in the centre of the road coming up and I was sounding my horn from the centre of the road coming up until we collided”
Therein, the first defendant admits to have been driving in the centre of the road because of the lower wire. The first defendant further states that he tried to pull up to his side of the road, given the claimant's oncoming truck.
Counsel for the defendants relies on Regulation 26 of the Motor Vehicle and Road Traffic Regulations, wherein Regulation 26(5)(a) and (b) states:
“(a) He or she shall keep the motor vehicle on the left of the road unless prevented by some sufficient cause.
(b) When meeting, or being overtaken by other vehicles, he or she shall keep as close as possible to the left or near side of the road.”
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