Leacock v Hinds Transport Services Ltd et Al; Leacock v Hinds Transport Services Ltd et Al;

• Jurisdiction: Barbados
• Judge: Rocheford, J.
• Judgment Date: 08 January 1987
• Neutral Citation: BB 1987 HC 5
• Docket Number: No. 888 and 889 of 1984
• Court: High Court (Barbados)
• Date: 08 January 1987

High Court

Rocheford, J.

No. 888 and 889 of 1984

Leacock

and

Hinds Transport Services Ltd. et al

Leacock

and

Hinds Transport Services Ltd. et al

Mr. J.S.B. Dear, Q.C. in association with Mr. C. Turney for plaintiffs

Mr. C.A. Phillips, Q.C. in association with Mr. Colin Williams and Miss G. Medford for the 1st defendant

Mr. E.D. Mottley, Q.C. in association with Mr. L. Haynes for the 2nd defendant. Mr. C.P. Chenery for the 3rd Party

Tort - Negligence — Liability — Collision between jeep driven by plaintiff's daughter and parked tractor belonging to first defendant — Finding that plaintiff's daughter was careless in failing to keep any sort of look out and this was the sole cause of the collision.

Rocheford, J.

1 In the first of these consolidated suits the plaintiff Aubrey Gordon Leacock (hereinafter referred to as “Mr. Leacock”) claims damages against Hinds Transport Services Ltd (hereinafter referred to as “the company”) and Richard Inniss (herinafter referred to as Mr. Inniss) for negligence and or nuisance. He alleges that on the 14th August 1983, his motor jeep was being lawfully driven by his daughter Amanda Leacock (hereinafter referred to as Miss Leacock) along Harts Gap a highway in the parish of Christ Church when it came into collision with a trailer that was parked on the said highway by the company its servants or agents and which was consigned to Mr. Inniss. He alleges that by reason of the said collision he suffered loss and damage.

2 In the second suit the plaintiff Miss Leacock suing by Mr. Leacock her next friend and father also claims damages against the company and Mr. Inniss for negligence and/or nuisance. She alleges that by reason of the said collision she suffered pain, injury, loss and damage.

3 The company in its defence pleads that at the time of the collision the trailer was in the possession and under the management and control of Mr. Inniss. It denies that its servants or agents were guilty of negligence and alleges that the collision was cause wholly or in part by the negligence of Miss Leacock and/ or the negligence of Mr. Inniss. It counterclaims against Miss Leacock, alleging that by reason of the said collision it has suffered loss and damage. In a separate statement of claim the company claims damages against Mr. Inniss for breach of contract to take reasonable care of its trailer. It also claims against the third party, United Insurance Co. Ltd, a declaration that it is entitled to be idemnified by the third party.

4 The third party in its defence denies that the company is entitled to the said declaration.

5 Mr. Inniss in his defence denies that he or any of his servants or agents were guilty of negligence or nuisance. He pleads further and alternatively, that the collision was caused wholly or in part by the negligence of Miss Leacock and wholly or in part by the negligence of the servant or agents of the company. In his defence to the separate Statement of Claim of the company, Mr. Inniss denies negligence and breach of contract to take reasonable care of the trailer. He counterclaims against the company for damages for breach of contract of warranty and a declaration that he is entitled to contribution.

6 It is not in dispute that at the time of necessity a trailer owned by the company, on which was placed a container, was parked on the southern side of highway. Miss Leacock stated that on Saturday 13th August 1983, she took two friends in her father's jeep firstly to a party and then to a discotheque, that she later took the friends to their respective homes and was on her way to her home at about 1.00 a.m. on Sunday, 14th August, 1983 when she turned north off Hastings Road on the said highway. She said — “I turned into Harts Gap, right and I don't remember anything else. I remember the Casualty, Queen Elizabeth Hospital.”

7 The photographs show that the jeep collided with the trailer. Sergeant Colin Gittens of the Police gave evidence of the measurement that he took.

8 These revealed that the trailer and container were parked partly on the highway and partly on the sidewalk. They occupied 4ft 5 ins. of the highway. They were more than 250 yards from the junction of the highway and Hastings Road. The jeep was on its proper side 2 ft 2 ins. from the edge of the highway.

9 In Fisher v. Ruislip — Northwood Urban District Council and County Council of Middlesex (1945) 2 All E.R. 458 at p.462 Greene M.R. stated –

“Negligence is the breach of a duty to take care. That duty arises by nature of a relationship in which one person stands to another. Such a relationship may arise in a variety of circumstances. It will, to take a simple instance, arise when a person exercises his common law right to use the highway — by doing so he places himself in a relationship to other users of the highway which imposes upon him a duty to take care.”

10 There can be no doubt that the company, in exercising its common law right to use the highway, by parking a trailer and container thereon, place itself in a relationship to Mr. Leacock as owner of the jeep and to Miss Leacock its driver that imposed upon it a duty to take due care to prevent damage to the jeep and injury to Miss Leacock.

11 The company was under a duty to take reasonable precaution in all the circumstances of the case. This would be by way of warning given to the public. Such a warning is initially given by lighting or whitening or otherwise rendering the obstacle visible to the public.

12 The particulars of negligence pleaded by both Leacock and Miss Leacock are as follows:

1

Failing to light or mark the said trailer and container sufficiently or at all. 2. Failing to give any or any sufficient warning to traffic on the said road of the said trailer and container or to take any other steps to prevent traffic colliding with it after dark 3. Left parked and unattended the said trailer container upon the wrong side of the road.

13 The evidence disclosed that the container was painted almost white and the trailer and container were parked as far off the highway and as near to a street light as was possible.

14 Sergeant Gittens arrived at the scene less than an hour after the collision. He said — “When I turned into Harts Gap, my vision was clear. The street lights were on. I see the container parked further up the road.”

15 He saw no lights or any form of reflections on the trailer or the container.

16 Another witness Orville Arthur Rudder said — “I drove along Harts Gap while the container was there, both night and day. I came from Hastings side, night, visibility clear. The moment you enter Harts Gap you could see the trailer parked up the road.”

17 In cross-examination he said — “The trailer presented no problem to the traffic” and “I could see the trailer from the bottom of Harts Gap.”

18 I find that the container was clearly visible to the public and that there was no need for the company to take any further precautions by way of warning in respect of the trailer. The obstruction was sufficiently marked. There was a sufficient warning to traffic on the highway of the presence of the said trailer and container. The presence of the trailer and container on the highway was not the cause of the collision.

19 I also found that by their nature, the trailer and container, being vehicles that had to be towed, did not have a...