Strickland v White and Barbados Rally Club
| Jurisdiction | Barbados |
| Judge | Kentish, J. |
| Judgment Date | 09 November 2012 |
| Neutral Citation | BB 2012 HC 17 |
| Docket Number | 660 of 2000 |
| Court | High Court (Barbados) |
| Date | 09 November 2012 |
High Court
Kentish, J.
660 of 2000
Mr. Adrian King in association with Ms. Wendy Maraj for the plaintiff.
Mr. Patterson K. Cheltenham, Q.C. in association with Mr. Alrick Scott for the First and Fourth defendants.
Negligence - Fatal accident — Liability — Spectator struck by motor vehicle at rally event — Exclusion of liability — Contributory negligence.
The plaintiff, Althea Strickland, (“Strickland”), is the mother and administratrix of the estate of Rodney MacAnthony Strickland, deceased, her son (“the deceased”) who died on the 16th June, 1997 as a result of injuries he sustained on the 6th April, 1997, when he was struck by a motor vehicle G2223 driven by the first defendant, Darrin White, at a rally event organised and sponsored by the fourth defendant. The deceased was one of many spectators who attended that fateful rally.
Pursuant to an order of the court made 1st June, 2004, the second and third defendants ceased to be parties to the action by virtue of the amended writ of summons and amended statement of claim filed on 3 rd June, 2004.
The fourth defendant, the Barbados Rally Club (“the Club”) is a non-profit organisation incorporated under the provisions of the Companies Act, Cap. 308 of the Laws of Barbados with its registered office at Bushy Park in the parish of St. Philip in this Island. It organises and sponsors motor racing in Barbados. The Club invites its members to participate in its events.
Strickland's action is founded in negligence arising out of the incident on 6th April, 1997 earlier referred to. In the action she claims damages for herself and other dependants of the deceased and for bereavement under the Accident Compensation (Law Reform) Act, Cap. 193A; damages for the estate of the deceased under the Law Reform (Miscellaneous Provisions) Act, Cap. 205 of the Laws of Barbados interest and costs.
On 6th April, 1997, the Club having obtained the requisite permission from the Ministry of Transport and Works to close certain roads to be used for four events and an acceleration test, held its third speed event (“the rally”). (See Exhibit “FG3” and Exhibit “FG4” admitted by consent)
Darrin White as a member of the Club was admitted to participate in the rally. He completed the requisite form in accordance with Rule 55 of the General Competition Rules of the Club (See Exhibit “DW1”). By doing so he agreed to be a contestant on the terms and conditions set out in the form and to be bound by any rules and regulations subsequently announced by the organising committee.
Darrin White made three runs on the course. The first and second runs were completed without incident. During his third run, as he entered the right hand bend at Swampy Town approaching the intersection or junction of Trents, Hannays, Friendship and Mount Poyer, he picked up a skid and lost control of the vehicle. As a result the vehicle crossed the road on its right, mounting an embankment on the opposite side of the road, travelling through some shrubs, hitting some of the spectators standing on that embankment, turning over and landing upside down in the road.
Strickland's son was among the injured spectators and later succumbed to his injuries.
The photographs admitted into evidence as Exhibits “CH1” to “CH6” provide a graphic picture of the vehicle from the time it picked up the skid to the time it landed upside down in the road.
On 24th March, 2000 Strickland commenced this action by a writ of summons and statement of claim. On 3rd June, 2004 an amended writ of summons and statement of claim were filed with leave of the court. Subsequently, and also with leave of the court, an amended defence was filed on behalf of the first, second and fourth defendants. However, by its amended writ of summons and statement of claim the second and third defendants were removed as defendants. The action therefore continued as against Darrin White and the Club, the first and fourth defendants respectively.
On the basis of the pleadings the issues which arise for determination by the court may be framed as follows:
-
(i) Is Darrin White as the driver of the vehicle liable in negligence for the death of Strickland's son?
-
(ii) Is the Club as the promoter and organiser of the rally at which Strickland's son met his untimely death liable in negligence? And
-
(iii) Can either Darrin White or the Club avoid liability either on the basis (a) of the warning sign displayed by the Club on barriers along the course or (b) that Strickland's son was wholly or partially responsible for his own death.
This action is founded solely in negligence the essential elements of which are
-
(i) a duty of care owed to Strickland's son by Darrin White and the Club respectively;
-
(ii) a breach of that duty; and
-
(iii) damages suffered by Strickland's son which flow naturally from that breach.
The duty of care as formulated by Lord Esher (then Brent MR) in Heaven v. Pender (1883) 1 QBD 503 and adopted and approved by Lord Atkin in the celebrated case of Donoghue v. Stevenson [1932] AC 562, 580 and known as the neighbour principle requires that:
“…you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.”
It is not in dispute that spectators at the rally on 6th April, 1997 and in particular Strickland's son were owed a duty of care by both Darrin White and the Club within the formulation of the neighbour principle.
What is in dispute is the scope of that duty and whether it was breached.
ISSUE (i) – LIABILITY OF DARRIN WHITE
In her amended statement of claim Strickland alleges that the accident which led to the death of her son was caused solely by the negligence of Darrin White. Particulars pleaded of that negligence are:
-
i. Driving too fast;
-
ii. Failing to exercise adequate skill;
-
iii. Failing to keep any or any proper look out;
-
iv. Failing to see the deceased in sufficient time to avoid colliding with him or at all;
-
v. Driving off the track and in to the crowd of spectators;
-
vi. Colliding with the deceased;
-
vii. Failing to stop, to slow down, to swerve or in any other way so to manage or control his vehicle as to avoid the said collision; and
-
viii. Exposing the deceased to a risk of injury of which he knew or ought to have known.
It was also pleaded that Strickland would rely on the doctrine of res ipsa loquitur.
Counsel for the plaintiff contended that the test for determining the scope of that duty is to be found in Wilks v. Cheltenham Cycle Club [1971] 2 ALL ER at 370 where Lord Denning MR as he then was, said:
“Let me first try to state the duty which lies upon a competitor in a race. He must, of course, use reasonable care. But that means reasonable care having regard to the fact that he is a competitor in a race in which he is expected to go ‘all out’ to win. Take a batsman at the wicket. He is expected to hit six, if he can, even if it lands among the spectators. So also in a race, a competitor is expected to go as fast as he can, so long as he is not foolhardy. In seeing if a man is negligent, you ask what a reasonable man in his place would or would not do. In a race a reasonable man would do everything he could to win, but he would not be foolhardy. That, I think, is the standard of care to be expected of him…In a race a rider is, I think, liable if his conduct is such as to evince a reckless disregard of the spectator's safety; in other words if his conduct is foolhardy”.
Counsel urged the court to accept the Wilks test which was considered and applied in the Canadian case Keough v Royal Canadian Legion Henderson Highway Branch 215 (1977) 80 D.L.R. (3d) 326 in which Nitikman J. at para 25 of the judgment stated:
“The injuries occasioned the infant plaintiff were caused directly by the negligent operation of the snowmobile by the defendant Thomas. I recognize that mere driving a snowmobile at a high rate of speed is in itself not negligence. The purpose of each contestant in a race is to finish first and all due allowance must be made for the manner in which the contestant operates his vehicle with that in mind. But in this case, the driving of Thomas went far beyond what can be described as proper. He was aware the area surrounding the track on the north straightaway was not sufficiently protective against spectators, being guarded only by a rope barrier. He should have avoided proximity to that area and should so have operated his snowmobile that, regardless of skidding or sliding that might follow his attempt to make the fastest time; he would not hit the unprotected area. But instead, he deliberately drove his snowmobile too close to the improperly protected area, at the same time purposely putting his vehicle into a slide or skid. He knew or should have known that he might, by reason thereof, lose control of the snowmobile, as indeed he did, and in the result could run into and through the rope barrier, causing injuries to spectators in that area.”
On the other hand counsel for the Club contended that the correct test is that enunciated by Sellers L.J. in Wooldridge v. Sumner and Another [1963] 2 QB 43 at 56-57 letter g in this way:
“… the spectator comes to witness skill and with the expectation that it will be exercised. But, provided the competition or the game is being performed within the rules and the requirement of the sport and by a person of adequate skill land competence the spectator...
To continue reading
Request your trial