Boyce v Attorney General and Hall
| Jurisdiction | Barbados |
| Judge | Crane-Scott, J. |
| Judgment Date | 01 January 2013 |
| Neutral Citation | BB 2013 HC 53 |
| Docket Number | CV 962 of 2008 |
| Court | High Court (Barbados) |
| Date | 01 January 2013 |
High Court
Crane-Scott, J.
CV 962 of 2008
Mr. Alrick Scott in association with Miss. Makala Holder for the claimant.
Mr. Roger Barker in association with Miss. Sharon Deane and Mrs. Deidre Gay-McKenna for the defendants.
Negligence - Liability — Personal injury — Claimant injured by vehicle rolling down incline — Whether defendants liable for injuries.
By Writ of Summons filed on June 10, 2008 Keithley Boyce (“the claimant”) instituted proceedings in negligence against the Attorney-General of Barbados (“the first defendant”) and Carlos Hall (“the second defendant”). In these proceedings, he claimed damages for personal injuries and consequential losses which he allegedly suffered as a result of an incident which occurred on July 19, 2005 whilst he and the second defendant, were carrying out crime prevention duties at Neil's Plantation, the residence of former Chief Justice, Sir David Simmons, K.A.
The claimant alleged that his injuries were caused by the negligence of the second defendant in the conduct of his duties as a police officer and/or by the negligence of the first defendant, its servants or agents in failing to ensure that the vehicle MP-413 used by its employees was properly maintained and safe for use.
The negligent acts and omissions alleged on the part of the second defendant were particularised in the Statement of Claim as follows:
(a) Failing to engage the handbrake properly or at all.
(b) Causing or allowing MP-413 to roll backwards.
(c) Failing to warn the claimant that the handbrake was not or not properly engaged.
(d) Parking MP-413 on an incline.
(e) The claimant will rely on the happening of the accident as evidence in itself of the negligence of the second defendant
(f) Failing to check and ensure that the handbrake was engaged before alighting the police vehicle.
(g) Failing to take all reasonable care in the circumstances.
(h) Driving or causing the vehicle to be driven with a defective handbrake.”
The negligence alleged on the part of the first defendant was also particularized in the Statement of Claim in the following terms:
(a) Failing to institute or enforce any or any adequate system for the inspection and maintenance of the vehicle whereby the existence of a defect in the handbraking system might have been detected and remedied before the accident.
(b) Causing or permitting the vehicle to be used upon the road when the handbraking system was in a defective condition.
(c) The claimant will rely on the happening of the accident as evidence in itself of negligence on the part of the first defendant its servants or agents.”
By Defence filed on March 23, 2009 and subsequently amended on April 15, 2011, the first and the second defendants both denied the allegations of negligence against them and further contended that the matters complained of by the claimant were caused wholly or in part by the claimant's own negligence.
The negligence alleged by the defendants against the claimant was particularized in their Amended Defence as follows:
(a) Unbeknownst to and in some way unknown to the first and second defendants, but through his own actions, letting down the handbrake and engaging the neutral gear.
(b) Not being the authorised driver, causing the motor vehicle to roll backwards from its parked position and strike the sidewalk.
(c) Operating outside the scope of his duties by carelessly and negligently attempting to stop a moving vehicle with his body.
(d) Failure to take care or to have any sufficient regard for his own safety while on duty.
(e) Failure to take any and/or sufficient steps to avoid the alleged injuries, loss or damage.”
Facts not in dispute: While both defendants have strongly contested the allegations of negligence and liability for the claimant's loss and damage, a number of facts are not in dispute. This is clear not only from the Statement of Agreed Facts, but also from the pleadings and the evidence adduced at the trial. The undisputed facts are outlined below and provide a brief background to the dispute.
firstly, the claimant is and was at all times employed as an officer of the Royal Barbados Police Force. secondly, the proceedings were instituted against the first defendant as the Crown's representative pursuant to the provisions of the Crown Proceedings Act, Cap 197 of the Laws of Barbados, and thirdly, like the claimant, the second defendant is and was at all times also employed as a police officer.
At the time of the incident the claimant, then 28 years of age, was assigned to the District ‘A’ Police Station where the second defendant was also assigned.
Both the claimant and the second defendant reported for duty sometime before midnight on or about July 18, 2005 as they were scheduled to work a shift starting from 12:00 am and ending at 7:00 am of the next day. Before reporting for duty, the claimant had worked a previous shift which had concluded some two hours earlier at 10:00 pm on July 18.
The claimant and the second defendant had both been jointly assigned to perform what is known in policing circles as ‘crime prevention duty’ in a police vehicle bearing registration number MP-413. The vehicle which they used had a manual transmission or gearbox. The second defendant was the authorised driver of this vehicle, as of the two he alone was licensed to do so.
Crime prevention duty to which the parties were assigned required them to conduct patrols and to visit businesses and residences within the precincts of the District “A” Police Station. The properties to be visited included business which operated late at night or on a 24-hour basis, such as fast food outlets and gas stations, as well as the residences of specified dignitaries, namely, the Commissioner of Police, the Attorney-General and the Chief Justice.
During the course of their patrol and in the early morning hours of July 19, 2005, the claimant and the second defendant both visited Neils Plantation which was the residence of then Chief Justice, Sir David Simmons.
Upon arrival at the residence of Sir David Simmons, the second defendant drove into the yard and parked MP-413 on a slight incline situated at the end of the driveway near the garage. He then exited the vehicle to conduct a foot patrol of the premises.
The exact position at which MP-413 had been parked before it started to roll backwards and the precise location on the driveway at which the vehicle came to a halt after rolling down the incline are both matters in dispute. As will shortly appear, the respective versions as to what each man did as MP-413 rolled slowly backwards down the incline from its parked position are also at variance.
Also hotly contested is the question of whether the claimant (as he claimed) had alighted from the vehicle immediately after the exit of the second defendant so as to conduct the patrol with his partner, or whether (as the second defendant testified) he had remained behind in the vehicle, asleep, and only gotten out at a much later stage. What is clear from the evidence, however, is that the vehicle started to roll slowly backwards down the incline from its parked position just after the claimant had gotten out of the vehicle and walked towards the garage area.
Both sides agree that it was the claimant who had first noticed MP-413 rolling backwards and who had shouted to the second defendant to alert him to that fact. Both sides also agree that the claimant had rushed to the driver's side of MP-413 as it was rolling backwards and had pushed against it in an attempt to stop it or to slow its backward course down the incline.
Medical Evidence: In their Amended Defence, the defendants made no admissions as to any injuries, loss and damage allegedly sustained by the claimant. However, at the start of the trial, the medical evidence and the witness statements of one of the doctors and two of the physiotherapists who treated the claimant were admitted into evidence by consent.
The evidence initially disclosed that the claimant suffered an injury to his back and wrist, allegedly sustained as a result of a vehicular accident on July 19, 2005. These injuries are mentioned in the Public Medical Journal in which they were recorded by Dr. Anne Auguste, the Police Public Medical Officer who the claimant had visited on July 21, 2005. The claimant was treated by her and subsequently referred to and treated first by Dr. Prasad Chode, an orthopaedic surgeon, and then by physiotherapist Ms. Jacqueline King only for back injuries. Because of the injury to his back, the claimant also sought and obtained treatment from the Physiotherapy Department of the Queen Elizabeth Hospital, where he was seen by registered physiotherapist, Lynn E. Morris and a colleague of hers.
No medical report was provided by Dr. Anne Auguste. However, the medical report of Dr. Prasad Chode dated January 15, 2010 was entered into evidence, as were the medical reports of Jacqueline King and Lynn Morris. The Court does not intend, at this stage, to examine the medical evidence in any detail. It confines its examination to three observations. firstly, Dr. Chode in his report revealed that he first examined the claimant on September 9, 2005 at which point the claimant was complaining of pain to his back that was not relieved by the medication prescribed by Dr. Auguste. The claimant did not report any injury to his wrist. secondly, Dr. Chode in a section entitled “Relevant past medical history as stated by the patient”, further noted:
“[The claimant] suffered back injury in the past while trying to stop a culprit.”
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