Harper v St. Lucy Co-Operative Society Ltd et Al

• Jurisdiction: Barbados
• Judge: Husbands, J.
• Judgment Date: 14 July 1977
• Neutral Citation: BB 1977 HC 25
• Docket Number: No. 112 of 1976
• Court: High Court (Barbados)
• Date: 14 July 1977

High Court

Husbands, J.

No. 112 of 1976

Harper

and

St. Lucy Co-Operative Society Ltd. et al

R. L. Cheltenham for the plaintiff.

C.W.P. Chenery for the defendants

Negligence - Traffic Accident — Liability

Facts: This action arose out of a collision between the plaintiff and the second defendant — The issue was whether the second defendant was liable for the collision — On a review of the evidence

Held: — That on a balance of probabilities the plaintiff did not discharge the burden of proof that the collision was due to the negligence of the second defendant — Judgment entered for the defendant.

Husbands, J.

1 About 11:30 a.m. on the 22 ^nd day of March, 1975, a collision occurred on Gibbes Road, St. Peter. The vehicles involved were a motor car and a tractor towing two trailers laden with sugar canes. The vehicles were traveling in opposite directions. The car was owned and driven by the plaintiff; the tractor and trailers owned by the first defendant were being driven by the second defendant.

2 At the time of the collision the plaintiff was traveling towards Speightstown and was negotiating a bend in the road to his left. He was steering his car – a right hand drive vehicle – with his left hand. His right elbow rested on the window sill of the right front door and his right forearm was held perpendicular with the fingers curling over a portion of the top of the door frame and weather strip.

3 As a result of the collision the plaintiff's right arm was severely damaged. The surgeon Mr. Nelson had this to say:–

“The plaintiff was admitted to the Queen Elizabeth Hospital on 22 ^nd March, 1975 at about 2 p.m. He was in excruciating pain from an injury to his right forearm and his right arm at the wrist. The right forearm just above the elbow was swollen considerably. There was also a laceration about 6 inches long on the outer aspect of the right forearm. Clinically the humerus was fractured…There was also a swelling not as great at his right wrist. There was a deep laceration involving the tendons on the back of the wrist. There was also a fracture of his right radius, right at the middle of the bone. I used X-rays to assist me. The X-ray of his forearm showed a comminuted transverse fracture of the humerus.”

4 There can be no question about the severity of the injury to the plaintiff's arm and if there were, the account of the surgical and other treatment he received would put this issue beyond doubt.

5 The plaintiff underwent surgery the same day and again on 6 ^th August, 1975, when it became clear that the fractured arm was not mending as it ought to. At the trial the surgeon stated that because of the unsatisfactory nature of the mend he would advise yet another operation although he could not guarantee that a third operation would be successful. The area around the fracture appeared bulbous and unsightly and in the surgeon's opinion there was 40 – 45 per cent likelihood that the plaintiff would lose the use of his arm completely. Such was the nature of the injury.

6 We must return however to the collision and its cause. The width of the road where the collision occurred was 23 feet 6 inches. Two completely different and irreconcilable versions of what took place were given by the plaintiff and by the second defendant.

7 The plaintiff's version is that he was driving his car on the Gibbes Road in the direction of Speightstown at about 18 – 20 m.p.h. He was some 2–3 feet from his left gutter. He met the second defendant driving a tractor with two trailers in the opposite direction at about 20 – 25 m.p.h. The tractor was on its left and proper side, and so was the first trailer. The plaintiff's evidence continued –

“After I passed the tractor I felt a severe pain along my right arm by which I deducted that the last of the two trailers which was laden with canes struck me. Something happened after I passed the tractor. Nothing happened while I was passing the first trailer. I saw a slight projection of canes would have come into contact with my vehicle owing to the trailers around the bend cut across to my side of the road. The tractor was on its left and proper side; the first trailer was on its proper side. The last trailer was not on its proper side. The second trailer when I saw it was over on my side which is over the white line on the road. My right arm came into contact with the canes.”

8 The plaintiff claimed that after he was struck he lost consciousness briefly and regained consciousness to find that he had parked the car on the left side of the...