Jeffers v Dyers et Al

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Hewlett, J.
• Judgment Date: 27 February 1977
• Neutral Citation: MS 1977 HC 1
• Docket Number: No. 64 of 1977
• Date: 27 February 1977

High Court

Hewlett, J.

No. 64 of 1977

Jeffers

and

Dyers et al

Tort - Damages — Personal Injury

Facts: The plaintiff mother of the deceased four year old sued the defendant in that capacity and in the capacity of administratrix of the estate of her son under the Fatal Accident Act Cap. 24 and the Law Reform (Miscellaneous Provisions) Act Cap. 43. The issue was whether the defendant was negligent and whether the deceased infant was contributorily negligent.

Held: The defendant was driving too fast and was therefore negligent. The deceased infant was not contributorily negligent taking all the factors into consideration. Under the Law Reform Act where the right of action is for the benefit of the deceased estate, the plaintiff would be awarded $2,700.00. However, under the Fatal Accidents Act, the right of action is for the benefit of the defendants of the deceased and because the prospective loss depended upon the child's growing up and the probability of his contributing to his mother's support was too uncertain, no assessment could be made. Judgment given for the plaintiff in the sum of $2,700.00.

Hewlett, J.

1 This action has arisen out of an accident on the Kinsale Road on the 10th December, 1976 resulting in the death of Adrian Jeffers, the infant son of the plaintiff, aged four years. It was instituted against two defendants but as the second defendant Wallace was not served with the writ the plaintiff proceeded against the first defendant only.

2 The plaintiff is the mother of the deceased child and she sued in that capacity and also as the administratrix of the estate of her said son under The Fatal Accidents Act, Cap. 24 and The Law Reform (Miscellaneous Provisions) Act, Cap. 43.

3 The facts as I find them are that the deceased and his two older sisters, themselves also infants aged eight years and ten year, were proceeding on foot from south to north on the Kinsale high-road. They were together on the right side of the road as they proceeded. They had reached a point on the road where there was a curve and were then preparing to cross the road. Apparently it is usual for pedestrians on their way to Plymouth to cross the road in this vicinity.

4 The two girls were on the pavement or culvert at the side of the road while the deceased was at their side at the edge of the road. Because of the curve in the road, there is a blind area to road-users traveling on the eastern side of the road. The defendant who was driving his car from north to south on the eastern side of the said road had to approach this blind area. I accept his evidence that he had already overcome the blindness of the curve and had the three children in full view for about 40 feet before the accident.

5 The deceased was struck by the car and either pitched or dragged some 15 feet from the point of impact. The defendant contends that the deceased jumped into his way so suddenly that ho had no time to brake although he tried to pull away but it was too late. He also says that immediately prior to this he had geared down in order to stop and let out a passenger, but as the passenger then indicated that he was no longer intending to alight he there and then accelerated and it was at this point in time that the child jumped to his death.

6 This portion of the defendant's...