Duke v Thorne et Al

• Jurisdiction: Barbados
• Judge: Husbands, J.
• Judgment Date: 20 December 1989
• Neutral Citation: BB 1989 HC 83
• Docket Number: No. 924 of 1988
• Court: High Court (Barbados)
• Date: 20 December 1989

High Court. (Civil Division)

Husbands, J.

No. 924 of 1988

Duke

and

Thorne et al

Appearances:

Mr. S.J. Husbands for the plaintiff.

Mr. D. Comissiong for the defendants.

Damages - Personal injury — Quantum.

Husbands, J.

1 While walking along Long Gap, a public road in St. Michael, on the 7th September, 1987, the plaintiff was struck and injured by a car driven by the first defendant and owned by the second defendant. The plaintiff alleges that the driver was negligent in the management of the car and claims damages against both defendants…

2 Her case is that she was walking about one foot from the left side of the road in the direction in which she was going. She was on her way home. It was drizzling rain and she had her umbrella up when suddenly she was struck from behind by the defendant's car. She fell on to its bonnet and then on to the road. The driver of the car, the defendant Dave Thorne came to her where she lay and said that he was sorry; he didn't see her. He then asked others who had come to the scene to assist in lifting her from the ground. She was placed at the side of the road to await the arrival of an ambulance. Subsequently she was taken to the Queen Elizabeth Hospital and examined, treated and discharged the same night. She experienced pains in her neck and shoulder and had difficulty in sitting. Later she consulted Mr. Sears F.R.C.S.

3 The case for the defendants is that the defendant driver Dave Thorne was driving along Long Gap in the same direction in which the plaintiff was walking. It was about 7 p. m. and raining; his head lamps were switched on. He was travelling in the middle of the road at about 25 mph. Long Gap was a narrow road and in a state of disrepair with pot holes abounding. When he first observed the plaintiff she was some 75 feet ahead of him walking briskly on his right hand side with an umbrella over her head. She was not walking “in a straight line” as she sought to avoid the potholes and puddles. Noticing this he “concentrated on the left hand side of the road”. As he was approaching she suddenly attempted to dart diagonally across the road in “a running motion”. Immediately, he applied his brakes and pulled his car to the left but his front bumper struck her.

4 She fell back on the bonnet and then forward on to her elbows and knees on to the road. There was an indentation just to the left of the middle of the bonnet marking where she fell on to the car. His car finally stopped about 2 feet from the left edge of the road. He estimated long Gap to be 12–13 feet wide and his car to be 5–6 feet wide. After the collision he spoke to the plaintiff but only to offer to take her to hospital. She refused and asked him for the registration number of his car. Counsel for the defendants submits that the defendant driver's account of events is the more probable of the two versions and that even if the plaintiff's version were accepted it would show some negligence on the plaintiff's part.

5 Counsel argues that on her own evidence the plaintiff was walking with her back to traffic and if the driver's uncontradicted evidence is accepted that the car came to a halt two feet from the left edge of the road and had an indentation about the centre of its bonnet, it would be fair to infer that the plaintiff must have been some 4 feet from the left edge of the road when she was struck and not 1 foot as she would contend. Counsel however asked the court to accept the defendant's evidence that the plaintiff suddenly walked diagonally across the path of the car and that in spite of his efforts to brake and to avoid her he was unsuccessful. This, submits counsel, does not amount to negligence on the driver's part: Brophy v. Shaw (1965) Times 25 June. CA.

6 In his reply counsel for the plaintiff contends that walking on the “wrong” side of the road may be a breach of the Highway Code but it is not a breach of the statutory duty, nor does it constitute negligence per se...