Eudine Clarke v Janice White
| Jurisdiction | Barbados |
| Judge | Alleyne, J. |
| Judgment Date | 25 June 2020 |
| Neutral Citation | BB 2020 HC 23 |
| Docket Number | CV 1319 of 2004 |
| Court | High Court (Barbados) |
High Court
Alleyne, J.
CV 1319 of 2004
Mr. Lorimer Denny in association with Ms. Tya Atwell for the Plaintiff
Mr. Frederick Alleyne for the Defendant
Negligence - Liability — Motor vehicle accident — Whether claimant discharged burden by proving that motor vehicle was driven at the material time by the defendant or her servant or agent — Whether defendant was liable for motor vehicle accident — Whether claimant was entitled to damages for loss of motor vehicle — Claim dismissed.
The plaintiff commenced these proceedings on 3 September 2004. They arise out of a motor vehicle accident which occurred on 17 December 2002 on the ABC Highway. The plaintiff alleges that the defendant is legally responsible. The defendant denies liability.
The parties have agreed that if the plaintiff succeeds, she is entitled to $13,636.83 which she claims for the loss of her motor vehicle. Hence, the sole issue for the Court's determination is whether the defendant is liable.
In the third paragraph of a re-amended statement of claim filed on 21 October 2014, the plaintiff avers that the accident happened in this way:
On or about the 17th day of December 2002, the Plaintiff was driving motor vehicle registration number X-1471 along the ABC Highway from the Garfield Sobers Roundabout and proceeding towards the Errol Barrow Roundabout when the Defendant or her servant and/or agent whilst travelling in the opposite direction so negligently drove, managed and controlled motor vehicle registration number X-1473 across the path of the Plaintiff that he/she caused the Plaintiff as driver of the motor vehicle registration number X-1471 to veer off the said highway and into a ditch.
At paragraph 4, the plaintiff particularises the alleged negligence as:
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(i) Driving at a speed which was excessive in the circumstances;
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(ii) Failing to keep any or any proper look out or to have any or any sufficient regard for the users of the said road, particularly on-coming traffic on the road, to wit the Plaintiff.
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(iii) Failing to heed the presence or approach of the motor vehicle registration number X-1471 in which the Plaintiff was driving;
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(iv) Failing to stop, or to wait on the ABC Highway until the Plaintiff passed her in safety before turning or attempting to turn unto her right into the minor road which leads to Warners;
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(v) Failing to give any or any sufficient or timely warning or signal of her intention to turn right across the path of the Plaintiff;
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(vi) Turning or attempting to turn from the ABC Highway onto a minor road across the path of the Plaintiff when it was unsafe and dangerous to do so;
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(vii) Driving motor vehicle registration number X-1473 across the path of the Plaintiff
The parties gave evidence on their own behalf Mrs. Ursel Farier, formerly Castillo (“Mrs. Farier”) and Sergeant Philmore Hall (“Sgt. Hall”) also testified for the plaintiff The defendant called no witnesses.
The plaintiff adopted the contents of a witness statement filed on 31 January 2011 as part of her evidence-in-chief She set out her account of the accident at paragraphs 2 to 4 in this way:
On the 17th December 2002, at or around 6.15 p.m., I was driving on the “ABC Highway” coming from the direction of the Garfield Sobers Roundabout going towards Graeme Hall Roundabout.
As I approached the junction which takes traffic into Warners and towards Tino Terrace, a blue motor vehicle travelling in the opposite direction, that is, coming from Graeme Hall Roundabout, suddenly and without warning dashed across the road in front of my motor vehicle.
In an effort to avoid hitting the motor vehicle, I swerved and applied my brakes as my vehicle was now heading across the other side of the road. I pulled my steering wheel but my motor vehicle spun around and then came to a stop in a ditch at the side of the highway. After the impact my motor vehicle turned and faced up the embankment.
At paragraph 5, the plaintiff stated that a witness, Mrs. Farier, informed her that that the registration number of the vehicle that had suddenly crossed in front of her was X-1473. In response to her counsel Mr. Lorimer Denny who appeared in association with Ms. Tya Atwell, she said that she did not know Mrs. Farier before. She also stated that at the time of the accident, it was bright and that she “had good visuals”.
Under cross-examination by the defendant's counsel Mr. Frederick Alleyne, the plaintiff stated that she was travelling between 55 to 60 kilometres per hour in the left lane of a dual carriageway. She said that the road was dry; there were no vehicles beside or behind her; and hers was the only vehicle travelling eastwards at that time. She could not recall if the street lights were on or if there was sunlight. She stated that she had on her vehicle lights and that she could see the colour of the cars on the road.
Questioned further, the plaintiff stated that she could not indicate the distance between her and the blue car when it started to turn right into Tino Terrace. She maintained that she saw the vehicle and that the manoeuvre was sudden. She admitted that she was going home after a long day at work but denied that she had a lot on her mind. She stated that she was fully focused on the road conditions and her surroundings. Her evidence is that when she saw the blue car appear suddenly in front of her, she did not blow her horn. She also stated that she did not recognise the make of the vehicle or its registration number, and that she is not familiar with vehicle makes.
Still under cross-examination, the plaintiff stated that after her vehicle came to rest, she walked back to the junction and observed that the blue car had stopped. She said that as soon as she got there it sped off and she did not recognise a registration number. Her evidence is that Mrs. Farier then came over and gave her some information; the police came to the scene; and she used that information to tell the police the make, model and registration number of the blue car. She denied that she had been driving inattentively, negligently or fast. She could not recall the age of her vehicle but stated that she would have it service as the need arises.
Re-examined, the plaintiff stated that when she said that it was bright, she meant that it was bright enough that she could see the vehicles on the road. She said that the events had unfolded quickly and that it had not taken her long to walk to the junction which was not far away. She stated that it took her “a minute or two” to get there when she observed that the blue car had stopped. Her evidence is that it was about 25 feet away from her and that she can see clearly from that distance.
Mrs. Farier's evidence as to how the accident occurred is found at paragraphs 2 and 3 of her witness statement filed on 1 December 2010. She stated:
On the 17th December 2002, around 5:45 pm., I witnessed an accident which occurred on the ABC Highway near the Graeme Hall Roundabout. I was driving from Graeme Hall Roundabout going towards Garfield Sobers Roundabout. I was third in line waiting to turn into Tino Terrace.
A blue Toyota was the first motor vehicle in the line waiting to turn. The driver of that motor vehicle suddenly made the turn and dashed across the road in front of the Claimant's vehicle, X1471, a white Toyota which was heading towards the Graeme Hall Roundabout. The Claimant lost control of her motor vehicle, and it veered off the road and into the ditch on the side of the highway closest to Tino Terrace.
Mrs. Farier's further evidence as set out at paragraph 4 follows:
I immediately stopped my vehicle, and exited my vehicle. I noticed that the driver of the blue vehicle, which bore registration number X-1473 stopped for a moment along the incline at the start of Tino Terrace. He turned his head and looked out through the driver's side window of his motor vehicle for a moment. I shouted and tried to cross the road to tell him to wait. Before I could reach him, he quickly left the scene of the accident.
The witness stated further in her statement that after the driver of motor vehicle X-1473 left, she crossed the road and ran to the plaintiff's assistance; called the police and the ambulance; and told the plaintiff the registration number, make, model and colour of the vehicle. Her further evidence is that she could not await the arrival of the police, and that she later wrote a letter dated 17 January 2003 in which she outlined what she had seen and attached a diagram to it. She stated that she sent the letter to Insurance Corporation of Barbados (“ICBL”), the plaintiff's insurers. The letter and the diagram were admitted into evidence by agreement.
Mrs. Farier was permitted to amplify her witness statement. She said that she was able to see the motor vehicle X-1473 because it was first in line; and she could see its registration number. She said that Tino Terrace would have been to her right. She stated that the street lights and her vehicle lights were on and that “… outside it was the last light before it gets dark”. Her further evidence is that she was trying to flag down oncoming cars while shouting across the road “to the person in the vehicle to stop but they drove off. They looked out and drove off.” She stated that when she saw that the vehicle had stopped, she was about two or three car lengths across the road and the registration number was clear to her. She said that she wrote the number down on a piece of paper after calling the police; and that she wrote the letter of her own volition when the events were still fresh in her mind.
Mrs. Farier's letter is part of the evidence in this case. It is addressed “To whom it may Concern”. It reads:
Dear Sir/Madam,
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