Stephanie Husbands v Transport Board and Sylvester Drakes
| Jurisdiction | Barbados |
| Judge | Reifer, J. |
| Judgment Date | 09 March 2018 |
| Neutral Citation | BB 2018 HC 5 |
| Docket Number | 2036 of 2008 |
| Court | High Court (Barbados) |
| Date | 09 March 2018 |
High Court
Reifer, J.
2036 of 2008
Mr. Chester L. Sue in association with Mr. Philip Gaskin Attorneys-at-Law for the claimant
Ms. Destinie Simmons in association with Ms. Tamara Simmons Attorneys-at-Law for the defendants
Negligence - Liability — Motor vehicle accident — Collision between a bus and a bicycle — Contributory negligence — Damages — Paucity of medical evidence — Quantum.
Plaintiff Stephanie Husbands filed suit on December 16th 2008 under the RSC 1982 against the two defendants, Barbados Transport Board and its driver Sylvester Drakes, in this matter which later transitioned to the Civil Procedure Rules 2008.
The plaintiff, now claimant, claims damages, interest and costs arising from injuries received as a result of an accident occurring on the 29th January 2006.
The First defendant is a Statutory Corporation established pursuant to the Transport Board Act Cap 297 of the Laws of Barbados, and the owner of motor omnibus BM589.
At all material times, this vehicle was being driven by the Second defendant Sylvester Drakes, in the capacity of servant and/or agent of First defendant. The Facts Outlined
The claimant was a passenger on a bicycle, registration number A1512 being ridden by a Mark Collymore, its owner.
The accident occurred in the Roundabout (unnamed) in the vicinity of the St. Andrew's Parish Church, and in the general area known as Ermy Bourne Highway.
There are three arteries feeding into this roundabout, Walkers Road, a road to Speightstown (Doughlin Village), and a road to Belleplaine. Between Walkers Road and the road to Speightstown, is situated the St. Andrew's Parish Church entrance.
The time of the accident may have been significant: it occurred at 18.25 hours on January 29th 2006. The road condition was dry. In Barbados, 6.30 pm in the month of January is dark. No evidence was given as to the lighting in and about the roundabout, or of the lighting on the vehicles involved in this accident. Nonetheless, the evidence of the bus driver shows that at all times he was aware of the presence of the bicyclist having followed him along Walker's Road and into the roundabout.
Bicyclist Mark Collymore approached from Walkers Road. There is only one lane from Walkers Road leading into the Roundabout. Motor omnibus BM589 was directly behind the bicycle on the same road. The bicyclist exited Walkers Road into the Roundabout. BM589 followed, and started to overtake the bicyclist. The two vehicles collided before the Second defendant could complete this manoeuvre.
The claimant fell to the ground sustaining soft tissue injury to her back as a consequence of this collision. Bicyclist Mark Collymore was not injured and is not a party to this action. It also appears that there has been no claim of damage to either the bus or the bicycle. The Pleadings
The claimant's Statement of Claim alleges that the cause of the accident was as a result of the Second defendant's negligence, the Particulars of which are as follows:
“PARTICULARS OF NEGLIGENCE”
(a) Driving at a speed which was too fast in the circumstances.
(b) Failing to keep any or any proper look-out or to have any or any sufficient regard for other road users;
(c) Failing to see the plaintiff in sufficient time to avoid colliding with her at all;
(d) Failing to give any or any adequate warning of his approach;
(e) Failing to stop, to slow down, to swerve, or in any other way so to manage or control the omnibus as to avoid colliding with the plaintiff;
(f) Driving too close to the plaintiff.”
The defendants' Defence filed May 2009 denies that the accident was caused by the negligence of the Second defendant. It alleges that plaintiff's injuries were “caused or contributed to by the person in control of the bicycle in, inter alia, allowing the plaintiff to travel as a passenger thereon and by the plaintiff herself”. The alleged negligence of the plaintiff was particularized as follows:
“PARTICULARS OF NEGLIGENCE OF THE PLAINTIFF”
(i) Sitting on the handlebar of the bicycle while it was traveling along the said road at the material time;
(ii) Exposing herself to the risk of injury by sitting on the handle bar of the said bicycle;
(iii) Travelling as a passenger on a vehicle manufactured for the carriage of one rider only;
(iv) Restricting the bicycle rider's control of the steering mechanism of the bicycle to wit the handlebars;
(v) In the circumstances, restricting the bicycle rider's control of the bicycle along the said road;
(vi) Limiting the bicycle rider's ability to react to traffic exigencies with which he may have been presented along the said road at the material time;
(vii) Obstructing the bicycle rider's view of the road;
(viii) Obstructing the bicycle rider's peripheral vision of the road on which he was travelling thereby affecting his appreciation of the position of the bicycle in relation to other vehicles traveling along the said road including the defendant's omnibus.”
The parties agreed that four issues arose from the circumstances of this matter. They are as follows:
- Whether there was a collision between the bus and the bicycle; 2. Whether the rider of the bicycle being obstructed and hampered in his control thereof by the presence of the plaintiff on the handlebar, lost control of the bicycle causing it to fall to the ground; 3. Whether the First defendant's act of overtaking the bicycle was negligent and in breach of the duty owed by one road user to another; 4. Whether the plaintiff caused or contributed to her own demise by travelling on the bar of the vehicle which is not manufactured for passenger transport but for the rider only.
There were two Witness Statements for the claimant, her own and that of the bicyclist Mark Collymore.
Her statement places the bicycle in the roundabout, travelling in what she called the “outer lane”, outside the Saint Andrew's Parish Church. Her evidence speaks to the bus hitting the bicycle, her boyfriend losing control and of her being knocked out of the bar and falling to the ground. She ended up on the ground at the entrance of Saint Andrew's Parish Church and the bicycle some feet away from where she was lying.
Bicyclist Mark Collymore also places the bicycle in the roundabout. In his words, he was “riding on the left side and was coming around on the left side to go into Belleplaine”. According to this Statement, the bus was behind him when he got to the entrance of the Church. He continues:
“When I was getting ready to go around the roundabout the motor omnibus overtook me and pulled in to go towards the sand hole. In doing so the motor omnibus struck the right side of the handle bar.”
It was at this point that he lost control and the plaintiff, (his girlfriend) was “knocked off the bicycle handle bar.”
The Defence provided two Witness Statements, that of the driver Sylvester Drakes and Accident and Complaints' Officer Carlyle Husbands, who went to the scene.
Driver Sylvester Drakes confirms his position as being behind the bicycle as it headed into the roundabout; he speaks to the cyclist entering the roundabout with him following. This is his explanation of the critical event:
“He entered the roundabout and proceeded straight ahead on his far left side of the road. In those circumstances I proceeded to overtake the bicycle. I did not overtake him immediately. When I observed that he was proceeding straight ahead and to his far left I then proceeded to overtake. I was proceeding in a straight line as I entered the roundabout.”
It was his statement that more than half of the bus had passed the bicycle before the collision: “the bicycle collided with the left side of the bus just past the side door.”
He stopped as soon as he became aware of the collision, he called the police station and remained in the bus until they arrived, because of the aggressive behaviour of the bicyclist Mark Collymore.
Carlyle Husbands arrived at the scene by 6.50 p.m. and recorded the driver's recital of the accident. He was present when the investigating officer took measurements at the scene. There is no evidence that these measurements were disputed.
In his cross-examination, Mark Collymore established that he has been a cyclist for about 33 years, he is a prudent cyclist familiar with roundabouts and the use of the road, and that there is only one lane approaching the roundabout from any of the three arteries. He kept to the left of the roundabout, it being his intention to go all the way around as he was going to Belleplaine. He thought that the bus behind him was the St. Andrew Church bus which would have made the right turn at the roundabout, that is, go around the roundabout in the same direction as Belleplaine. This is his explanation as to why as a frequent user of that roundabout he generally stayed to the left:
“I would not have pick up the right side of the lane because vehicles coming from Belleplaine, because the corner is so narrow they usually open up wide to come round the corner, so it is best that the person coming from Walkers pick up the left side of the lane, so that you would not cause no accident… The corner is kind of narrow that persons does open up wide to come round the corner.”
This comment speaks to this Court's observation (below) as to the size (smallness) of the roundabout and is directly relevant to the Court's assessment to as why the cyclist kept to the left of the roundabout, and why the bus driver ‘opened up’ in order to turn left towards Doughlin's Village (Speightstown).
Second defendant Sylvester Drakes amplified his evidence in two areas: by speaking further on the location of...
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