Gorgichuk et Al v Barbados Transport Co-Op Society Ltd

• Jurisdiction: Barbados
• Judge: Williams, C.J.
• Judgment Date: 23 March 1983
• Neutral Citation: BB 1983 HC 28
• Docket Number: No. 549 and 708 of 1982
• Date: 23 March 1983
• Court: High Court (Barbados)

High Court. (Civil Jurisdiction)

Williams, C.J. (Ag.)

No. 549 and 708 of 1982

Gorgichuk et al

and

Barbados Transport Co-Op Society Ltd.

Appearances:

Mr. E.D. Mottley, Q.C. in association with Mr. Leslie Haynes for the first and second plaintiffs in No. 549 of 1982.

Mr. Maurice King in association with Mr. A.P. Shepherd for the first and second defendants in both suits.

M. C.W.P. Chenery in association with Mr. W. LeRoy Inniss for the third and fourth defendants in No. 549 of 1982 and for the third and fourth defendants in No. 549 of 1982 and for the plaintiff in No. 708 of 1982.

Damages - Fatal accident — Quantum

Williams, C.J.

1 These two suits were consolidated by order of the court dated 8 ^th February, 1983. They both stem from a collision between a mini bus-coaster registration No. BT6 and a transit Van T.1276 which occurred at Bulkeley Main Road, St. George, on 12th February, 1982. The plaintiff, Helen Gorgichuk and her husband, Peter, passengers in the vehicle BT6, were on their way to the airport after spending a vacation here in Barbados. BT6 was owned by the first-named defendant the Barbados Transport Co-operative Society Limited (hereinafter referred to as the Co-operative) and driven by the second-named defendant Tyrone Clarke. Geoffrey Lee, third-named defendant in Suit No. 549 of 1982, and plaintiff in Suit No. 708 of 1982, was the owner of the transit van T.1276 which was being driven by the last named defendant David Vaughn. Peter Gorgichuk was killed in the accident and in suit 549 of 1982 his widow, Helen, sues the owners and drivers of both vehicles as executrix of Peter's estate as well as on her own behalf. Her claim is for damages for herself; on behalf of Peter's dependants under the Accident Compensation (Reform) Act, 1980 No. 60; and for Peter's estate under the Law Reform (Miscellaneous Provisions) Act, of Cap. 205. In claiming against the owner and driver of BT6 she alleges negligence and breach of statutory duty by the driver of the vehicle. In her claim against the owner and driver of T.1276 she alleges that the driver was negligent.

2 The third and fourth defendants in suit 549 of 1982 deny negligence and plead breach of statutory duty and negligence on the part of the second defendant. They also raise the question of contribution in the event of it being found that the fourth defendant was negligent.

3 The Co-operative and the second defendant proceeded in accordance with Order 16 rule 8 for the purpose of having the issues between them and the third and fourth defendants determined in suit 549. They plead that the collision was caused wholly or in part by the negligence of the fourth defendant as servant and agent of the third defendant and claim damages against the third and fourth defendants for damage to the vehicle BT6 and the loss of its use; to be indemnified against the plaintiffs' claim and coats; and alternatively, to be entitled to a contribution from the third and fourth defendants.

4 In suit 708 of 1982 the plaintiff (third defendant in the other suit) seeks damages from the Co-operative and Tyrone Clarke for damage to T.1276 and the loss of its use. The defendants deny negligence and there is a counterclaim for the damage to the vehicle BT6 and the loss of its use.

5 The first question to be determined is that as to negligence. It is clear that Peter Gorgichuk's death followed the collision between the vehicles. I accept the medical evidence and find that he died from shock due to the injuries which he received to his head. On the question whether either or both of the drivers were negligent, I have to consider the evidence of Helen Gorgichuk, Sergeant Cadogan, Tyrone Clarke and David Vaughn. I also have the photographs of the scene and the vehicles after the collision.

6 Helen Gorgichuk's testimony is that BT6 left Sunset Crest Resort bound for the Airport, traveled fast all the way and never stopped before the collision. A licensed driver for 18 years, she estimated the speed at 60 m.p.h. throughout the journey.

7 Sergeant Cadogan spoke to both drivers after the collision. Vaughn told him that he was coming up Bulkeley Road going towards Bridgetown and the minibus came out from Walker's Road. He tried to shun him but he kept on driving and they collided. Clarks told him that he carne up Walker's Road, stopped, looked right, looked left, then right again. He did not see anything coming and moved off. He made a short left and as he was making a right the motor van came and struck him. I accept Cadogan's evidence.

8 Tyrone Clarke in his testimony gave a fuIler account of his driving. He denied he was driving fast. According to him he was driving between 20 to 25 m.p.h. and on approaching the major road he reduced his speed to about 5 to 15 m.p.h. He stopped behind the studs and then moved off for about 2 feet beyond the studs in order to be in a position to see into the major road. It was clear and he turned slightly to the left and then to the right to cross over into Carmichael Road. The other vehicle came at about 50 to 55 m.p.h. and the collision occurred.

9 David Vaughn's evidence is that he was driving the van on his left and proper aide at about 20 to 25 m.p.h. Just as he reached junction with Walker ‘s Road BT6 came out of Walker's Road without stopping. He pulled his vehicle to the right and applied brakes. BT6 went slightly to its left and then turned right into the path of his vehicle. There was a collision.

10 Considering the evidence as a whole I think that the plaintiff exaggerated when she said that Clarke was driving BT6 at about 60 m.p.h. throughout the journey. The time of leaving Sunset Crest Resort and the distance travelled before the collision suggest that this could not have been no. Moreover, I think it would have been madness for the driver to attempt to negotiate the turn into Carmichael Road at such a high speed. But I do not accept Clarke's evidence as to how he drove the vehicle at the junction. The photographs tend in my view to support Vaughn's evidence — his pulling to the right, the other vehicle driving into his path, the collision occurring and both vehicles stopping just beyond the entrance to Carmichael's Road. I reject Clarke's evidence that: Vaughn was speeding. I regard at as unreliable and it is unsupported by any other evidence, oral or physical. My findings are that –

• (1) Clarke did not atop at the major road. The sign was there, the studs were there but he did not stop;

• (2) He drove his vehicle across the path of the other vehicle;

• (3) Vaughn tried to avoid the accident by pulling to the right and braking. Maybe the accident would not have occurred had he pulled to the left. But his action was reasonable and understandable. In the exigencies of the moment it was not unnatural for him to pull to the right to try to avoid a collision.

11 Clarke was in breach of statutory duty in that contrary regulation 15 (6) (f) of the Motor Vehicle and Road Traffic Regulations 1952 he crossed from Walker's Road to Bulkeley Road and obstructed traffic in so doing; and contrary to regulation 72 (2) he failed to bring his vehicle to a halt before entering the main (Bulkeley) road. He was negligent in that he did not stop or slow down enough before going on to the major road, he attempted to go across Bulkeley Road from Walker's Road when it was not safe do so, he failed to steer BT6 away from the transit van and he did not keep a proper lookout or pay sufficient attention to the vehicle which was traveling on the main road.

12 In my judgment Vaughn, the driver of T.1276, is not shown to have been negligent in any respect. The accident was caused solely by the negligence of, and breach of statutory duty by, Clarke the driver of BT6. Accordingly –

• (1) In Suit 549 of 1982 the plaintiffs are to have judgment against the Cooperative and Tyrone Clarke and judgment must be entered for the defendants, Geoffrey Lee and David Vaughn. The issues between the defendants are determined in favour of the third and fourth defendants and the claim of the first and second defendants against them is dismissed.

• (2) In Suit 708 of 1982 the plaintiff is entitled to judgment against the defendants and the counterclaim must be dismissed.

13 Dealing first with the case of the plaintiff Helen Gorgichuk for damages for injuries suffered by her, these injuries are particularized in the Statement of Claim as follows: general aches and pain, bruising of the skin on left lower leg, mild aching in the lower back and tenderness of the soft tissue in the right hand. She gave evidence of seeing her husband in his distressed condition. When she was taken from the mini-bus her legs and hands were hurting. Naturally she went to the hospital with her husband and later saw him after he had died. When asked about her injuries she said –

“Pain, my legs and hands. And my back. And my right hand. Weakness in my right hand. Could not hold plate or cup or anything in my hand. For about 2 months, 3 months after I went home.”

14 Dr. Goddard wrote in his medical report –

“………………….. she was unsure about exactly what happened to her at the time of the accident, though she did not...