Ward v Lowe and Roach
| Jurisdiction | Barbados |
| Judge | Moore, J.A. |
| Judgment Date | 25 November 2011 |
| Neutral Citation | BB 2011 CA 22 |
| Docket Number | Civil Appeal No. 17 of 2003 |
| Court | Court of Appeal (Barbados) |
| Date | 25 November 2011 |
Court of Appeal
Waterman, J.A.; Williams, J.A.; Moore, J.A.
Civil Appeal No. 17 of 2003
Mr. Larry Smith and Mr. Ajamu Boardi for the appellant.
Mr. Bryan Weekes and Mr. Satcha Kissoon for the first respondent.
Mr. Mitchell Codrington and Miss Traece Codrington for the second respondent.
Negligence - Traffic accident — Liability — Appeal against award of High Court successful.
About 4:15 to 4:30 p.m. on 23 November 1993 the second respondent, Mr. Edward Roach, (Roach) was walking on his left side along Brighton Main Road in the direction of Black Rock Main Road, Black Rock in the parish of St. Michael. A Suzuki motor van MG 961 driven by the appellant, Mr. Nigel Ward (Ward) was also being driven along Brighton Main Road in the direction of Black Rock Main Road. At the same time a Volkswagen motor van M 5727, driven by the first respondent, Mr. Milton Lowe, (Lowe) along the Farm Road approached the junction of that road with Brighton Main Road. That junction is totally blind and as a result Lowe caused M 5727 to overshoot the junction and travel nine feet onto Brighton Main Road. MG 961 then collided with M 5727, swerved to its left side and struck Roach causing him injuries. Roach sued both Ward and Lowe. The trial judge found both defendants liable and apportioned liability between them, 70% as to Ward and 30% as to Lowe and awarded damages to Roach.
The appellant has appealed to this Court against the findings of the trial judge on the issues of fact which arose on the evidence and against his award of damages.
The Statement of Claim for Roach alleged that, on 23 November 1993, while walking along Brighton Road by reason of the negligent driving of the motor vehicle M 5727 by Ward or the negligent driving of the motor vehicle MG 961 by Lowe, or by reason of the negligent driving by Ward and Lowe, the two motor vehicles collided at the junction of the Farm Road with Brighton Road and as a result he (Roach) was struck by Lowe's vehicle and sustained injuries.
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(a) Emerging onto Brighton Road from Deacon Farm Road without first ascertaining or ensuring whether it was safe to do so;
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(b) Excessive speed in the circumstances;
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(c) Failure to see the motor vehicle MG 961 in sufficient time to avoid collision. The Particulars of Negligence alleged against Ward were, inter alia
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(i) Excessive speed;
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(ii) Failure to keep any or any proper look-out or to have any or any sufficient regard for traffic at the said junction of roads;
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(iii) Failure to keep any or any proper look-out or to have any or any sufficient regard for pedestrians.
Lowe filed a defence in which he denied the allegations of negligence and claimed that Ward (Second Defendant) was either the cause of or contributed to the accident. He particularised, inter alia, that Ward (i) drove at excessive speed, (ii) failed to keep a proper look-out for the presence of the first defendant at the junction of Farm Road with Brighton Road, (iii) drove on the wrong side of the road, (iv) failed to stop or slow down or to manage or control his vehicle in order to avoid the accident.
Ward filed a defence and counterclaim denying the allegations of negligence and, in the alternative, contributory negligence by Lowe. The defence and counterclaim alleged against Lowe, inter alia, that (9 he entered the junction without first ascertaining whether it was safe to do so and when he knew or ought to have known that it was unsafe to do so by reason of Ward's motor vehicle on Brighton Road, (ii) failed to give precedence to Ward's vehicle on the major road, (iii) drove at excessive speed causing Ward's vehicle to strike Roach.
Lowe filed an amended reply and defence to Ward's defence and counterclaim. In that reply and defence, Lowe denied the allegation of negligence and alleged that the accident was caused by or contributed to by Ward. Further Lowe alleged, inter alia, that Ward (9 drove at excessive speed, (ii) failed to keep a proper look-out or have sufficient regard for Lowe's presence at the road junction and (iii) failed to keep a proper look-out or to have sufficient regard for pedestrians on the road. Evidence in the Court below for the appellant.
The appellant gave evidence that, about 4:45 p m on 23 November 1993, he was driving his van at about 35 k.p.h. uphill along Brighton Main Road. His girlfriend Fay Seale was with him. On approaching the junction of Farm Road and Brighton he saw a pedestrian on the left side of the road and a Volkswagen van at the Farm Road junction. The van was stationary. He passed the pedestrian and the Volkswagen. They were no longer in his line of vision. The appellant said that he then felt and heard a loud bang from behind his seat — to the right side. He said that there was nothing about the Volkswagen being at the junction that caused him “any alarm.” He also said that he was familiar with Brighton Road and knew that there is a steep section at the junction with Farm Road and that visibility straight ahead to Black Rock is impaired because the road is curved to the right.
The appellant also testified that when he saw Mr. Roach he was travelling at 35 k.p.h. and he did not reduce his speed. The appellant said
“As I approached Mr. Roach I did not apply my brakes. I did not swerve off him. I cannot give an exact position of where Mr. Roach was at the time of the bang. My left front door had passed him. I cannot say if he was walking or lying down when my left rear door passed him.”
The appellant denied that he was talking to his passenger whilst driving and that his vehicle veered from left to right and struck the Volkswagen as it emerged from Farm Road. He said that he knew that the bumper of the Volkswagen was damaged but that, to his knowledge, his vehicle did not strike anything. He also said that after striking the plaintiff his vehicle scraped the wall to the left of Brighton Road going towards Black Rock Road. However, he was not aware that his vehicle struck a white car or a gate on the right side of the road. He denied knowing Brenda Worrell. He said that he examined the property where his vehicle came to rest but noticed no damage to the wrought iron gate but did notice a residue of burgundy on the road where the van was. He said that the last 12 inches of his van had 2 dents. He agreed that Brighton Hill is shaded by trees but visibility is not reduced. He did not know what struck him but after seeing the bumper and blue of the Volkswagen he concluded that the Volkswagen had made contact with his vehicle. He saw the Volkswagen until it was no longer in his line of vision and all was clear. Under re-examination by Mr. Smith, the appellant said:
“There was no need to take action to avoid the pedestrian because I had already passed him and he was no obstruction to my vehicle. I did not collide with Mr. Roach. I did not collide with the Volkswagen. I have no recollection if I blew my horn.”
Fay Austin (at the time of the accident she was Fay Seale) testified on behalf of Ward. She was the passenger in Ward's vehicle. She testified that she saw the van at the junction with Farm Road. The van was stationary. She saw no one else on the road. She said that Ward's vehicle was being driven between 20 and 30 k.p.h. and immediately after they cleared the junction, she felt an impact at the rear of the vehicle and the vehicle began to spin and she had no memory of anything after that. She said that the Suzuki van did not hit anything at anytime prior to the impact. She also said that Ward was her boyfriend but she and he were not on speaking terms at the time. She also testified that, when the Suzuki van was passing the Volkswagen, a bus could have passed between them. She did not see what caused the impact and only became aware that a pedestrian had been struck when she regained consciousness and the police told her.
Lowe testified that on 23 November 1993 he was driving the Volkswagen van M 5727 along the Farm Road. He brought his van to a stop at the junction with Brighton Road. He said that he knew the area very well. His evidence disclosed that the junction of Farm Road with Brighton Road was obscured by tall trees and bush. He heard the Suzuki van coming uphill along Brighton Road. He brought his vehicle to a stop about 2 to 3 feet into Brighton Road. The Suzuki van was being driven fast. It veered to its right and struck the Volkswagen, then veered to the left and struck the second respondent and then back to its right side where it stopped after striking a gate. The female passenger got out of the Suzuki van and said, “I tell him don't drive so fast.”
In the Motor Accident Report Form of CLICO International General Insurance Company signed by Lowe, he stated that he came out of Ashdeane (Farm Road) slowly and MG 961 which was travelling on the main road struck the bumper of his vehicle after which it struck the second respondent and then a wall. Lowe maintained that his vehicle was stationary when the collision occurred.
Sonia Joseph testified on Lowe's behalf. She said that Lowe stopped his vehicle at the junction and then came out about 2 feet. She heard a noise and saw Ward's vehicle coming up the road very fast and it struck Lowe's van.
Roach said that he was walking along Brighton Main Road towards Black Rock Main Road. He heard a speeding vehicle coming behind him. He knew it was speeding by the sound of the engine as he was a driver himself. He was struck by the Suzuki van and taken to hospital where he was detained for about 5 days.
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