Ashby v Hunte et Al
| Jurisdiction | Barbados |
| Judge | Walcott, J. |
| Judgment Date | 15 November 2001 |
| Neutral Citation | BB 2001 HC 16 |
| Docket Number | 446 of 1998 |
| Court | High Court (Barbados) |
| Date | 15 November 2001 |
High Court
Walcott, J. (Ag.)
446 of 1998
Mrs. F. A. Scale for the plaintiff
Mr. L. Haynes Q.C. in association with Mr. A. Branche for the first plaintiff
Mr. W. Clarke in association with Mrs. L. A. Smith-Bovell and Mr. A. Greaves for the second and third plaintiffs
Damages - Personal injury — Quantum — Plaintiff sought damages for injuries suffered ins a motor vehicle collision — Third — defendant found entirely responsible for accident — Plaintiff found contributory negligent for failure to wear seat belt — Severe pains in neck, right shoulder and lower back Judgment. for plaintiff for general damages of $64,000.00 and special damages of $4,331.00 both sums to be reduced by 25% representing extent of plaintiffs contributory negligence — Interest and costs to plaintiff.
Walcott, J. (AG): On the 24th May, 1997 at 3:05 pm four police constables including the plaintiff and the third defendant left District ‘A’ police station at Station Hill, Saint Michael for Oistins police station, Christ Church in a police jeep MP377 driven by the third defendant. They were instructed to travel to Oistins police station and arrive there not later than 3:15 pm in order to be part of an escort for the transportation of a shipment of cannabis from that station to Central police station, Bridgetown. It was impossible to do so by road in such a short time. They travelled along the ABC Highway turning right at the Graeme Hall roundabout and left at the Top Rock roundabout on to Top Rock road, Christ Church. The police jeep exceeded the speed limit. Use was made from time to time of the jeep's siren at traffic lights and at roundabouts. The blue flashing beacon on the top of the jeep was turned on. The jeep had three rows of seats and a seating capacity for nine persons. The front and middle rows were fitted with seatbelts. The plaintiff was seated to the left of the jeep in the middle row. He was not wearing a seat belt. As the jeep turned left on to Top Rock road a red motor car registration number X8019 driven by the first defendant was some distance ahead travelling in the same direction. Top Rock road is not a straight road. Shortly after the Top Rock roundabout, Top Rock road curves to the right and then there is a sharp left turn. The road then straightens for some distance.
Top Rock is a heavily build up residential area and there are entrances to houses on the main road. On that day the road surface was dry. It was bright daylight. The first defendant indicated that she was turning right after the sharp left turn and she positioned her motor car to the left of an imaginary line in the centre of the road. Her hairdressing salon where she works was nearby on the right of Top Rock road. When the road was clear of oncoming traffic she checked her rear view mirror. There was no traffic behind her and she proceeded to turn right. It was at this point that she became aware of the police jeep approaching her from behind. She observed a flashing light and heard a siren. As she had already crossed over the centre of the road after making sure that it was safe to do so, she hurried to get out of the way of the police jeep.
The front of her vehicle had entered the minor road on to which she was turning when the front of the police jeep collided with the right of her two door motor car in the area behind the driver's seat and the rear right fender. Her motor car was damaged. There was glass all over her. She was assisted out of her motor car by the plaintiff and another police constable. She was shaken. ‘The plaintiff was injured as a result of the accident.
Police Sergeant Bryant arrived at the scene shortly afterwards. He took measurements. At the point of impact the width of Top Rock road was 26 feet.
The motor car ended up completely off the road facing the opposite direction.
After the accident the police jeep was on its right or offside, facing the same direction it was travelling. Both right wheels were off the road. Its front left wheel was 24 feet from the left of the road and its rear left wheel was 22 feet from the left of the road. There was a straight brake impression on the right side of the road leading to the right rear wheel of the jeep. It measured 55 feet. The point of impact was underneath and more to the left of the jeep and about 3 feet from the front of it. There was damage to the left front but none to the right front of the jeep.
The length and direction of the brake impression is of some significance. It is apparent that the third defendant became aware of the presence of the first defendant's motor car in the path of the jeep for a greater distance than 55 feet when allowance is made for re-action time and the braking process. I find that the third defendant was driving too fast in the circumstances; he failed to have sufficient regard for other traffic on the road; and he failed to keep proper control of the police jeep. There was ample space for the police jeep to proceed safely along the road by keeping to its left and proper side of the road.
The relevant principles of law governing the driver of a police vehicle in an emergency are set out in the judgment of Judge, L.J. in Scutts v. Keyse and another [2001 ] NLJ Law Reports page 817 a decision of the English Court of Appeal delivered on 18 th May, 2001:
“…. Emergency services vehicles on duty were expressly exempted from the criminal process arising from contravention of the statutory provisions relating to speed limits, keep left signs, and traffic lights …. None of these provisions sanctioned negligent driving or indemnified the negligent driver of a vehicle on emergency duty against civil liability.”
Later in the judgment Judge, L.J. continued:
Even in an emergency, a driver was required to drive reasonably carefully in all the circumstances. One significant feature of such cases where the vehicle in question was deployed by one of the emergency services, was that the driver was normally entitled to assume that other road users will not ignore the unmistakable evidence of its approach and where appropriate, temporarily at any rate, would use the road accordingly.”
I find that the third defendant was driving negligently and was entirely to blame for the accident.
On the 16th December, some seven months later, the plaintiff received further injuries as a result of another road traffic accident and less than a month later on the 5th January, 1998, he was involved in a third road traffic accident when he received further injuries. He was treated by Mr. Hadley Clarke, a neurological surgeon, for the injuries arising as a result of all three accidents. Mr. Clarke prepared three medical reports (Exhibits AA34–36) and also give oral evidence at this trial.
The medical report dated 17th March, 1998 (Exhibit AA34) shows that the plaintiff on the day of the first accident complained of severe pain in his neck, right shoulder and lower back. Examination revealed a marked reduction in spinal mobility and generalised muscle spasms. On the 29th May, 1997 there was a marked reduction in neck movements and a moderate reduction in back movements. Movements of the right shoulder were normal. By September and October there was a gradual recovery and by the 13th November there was a remission of pain in the neck and lower back. The plaintiff was advised to return to work on the 22nd December. He remained on medication.
The second accident resulted in intermittent pain in the neck and lower back. Medical findings were a mild decrease of neck mobility, a mild decrease of range of motion in the lumbar spine and focal back spasms.
On medical examination on the 5th January, 1998 after the third accident the plaintiff complained of severe pain and stiffness in the neck and lower back. The medical findings were severe reduction of the neck and back mobility and generalised back spasms.
By the 2nd March the symptoms in the lower back and legs were minimal and the plaintiff was advised to return to work on the 20th March. The medical opinion at the time was that the plaintiff would continue to achieve gradual recovery and that he might experience some reoccurrence of pain in the indefinite future.
The second medical report dated 14th July, 1999 (Exhibit AA 35) indicates that the plaintiff's pain syndrome was probably worse and the plaintiff remained disabled and unfit to function in the workplace. It states that the plaintiff would continue to experience pain in the indefinite future and needs future medical care involving at least eight visits to the doctor per year at $80.00 per visit, twenty treatments of physiotherapy per year at $50.00 per visit and not more that $750.00 per year for medication.
The third medical report is dated 20th July, 2000 (Exhibit AA 30). This report states...
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