Kirnon v Tuitt

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Georges, J.
• Judgment Date: 31 July 1992
• Neutral Citation: MS 1992 HC 11
• Docket Number: 29 of 1991
• Date: 31 July 1992

High Court

Georges, J.

29 of 1991

Kirnon

and

Tuitt

Damages - Personal injury — Motor vehicular accident — Claim by plaintiff for damages in respect of personal injuries suffered when it is alleged that the defendant so negligently drove, managed and controlled his vehicle and caused it to collide with the plaintiff — Plaintiff suffered injury to right hand — Plaintiff out of work for about five weeks — Inference to be drawn — Doctrine of res ipsa loquitur applicable — Onus of defendant to rebut on a balance of probabilities the inference of negligence which has been cast upon him — Special damages must be proven strictly — General damages also awarded.

Georges, J.

1 this a claim by a 46 year old female janitor for damages in respect of personal injuries suffered on 27th January, 1990 when it is alleged that the defendant so negligently drove, managed and controlled his motor vehicle along Strand Street that he caused or permitted it to collide with the plaintiff who was at the time lawfully standing on the side of the said road.

2 As a result, the plaintiff alleged that she suffered injury to her right hand and strained soft tissue in her right arm and was out of work for a long period of five weeks for which she was not paid. She accordingly claims special damages of five weeks wages at $175 per week i.e. $875, general damages and costs.

3 The gist of the plaintiff's case is that at about 10.30 a.m. on the day in question - it being a Saturday - she was walking across from the Produce Market towards Squeakie's Supermarket and that when she was about three inches (3”) from there walking along the gutter side, the defendant suddenly reversed his motor car and struck her on her right hand and leg.

4 The witness told the court that she waited until the defendant had stopped his car and asked hire whether he had realized that he had struck her with his car to which he replied that he had some shilling oil in his car which he would give to her to rub the arm. He then left but never returned the plaintiff said.

5 The plaintiff went on to say that the defendant's car had been damaged by Hurricane Hugo and a piece of the car which had been broken, tore the skin on the back of her right hand and the hand got swollen. She went to the hospital the same afternoon the plaintiff testified where according to her, “they rubbed the hand with something and bandaged it up and gave me some painkillers.”

6 She turned to the hospital on Monday 1st February (this would have been 29 ^th January) she said and Dr. Sonia Meade took an x-ray and referred her to the Specialist Surgeon Dr. Lewis who put a plaster of Paris on her right hand. This was removed after two weeks.

7 From time to time the hand keeps swelling the plaintiff told the court. She was unable to work because her hand eras very painful. She was employed as a janitor at the American Medical School at a wage of $175 per week and remained off work for five weeks during which time she was not paid.

8 She denied telling the defendant on the day of the accident that her injuries were not serious. The defendant she claimed had reversed sudden and fast otherwise he would not have caught her like that.

9 In the course of a somewhat lengthy cross-examination the plaintiff maintained that the defendant's car was in fact damaged over the rear wheel. She confirmed that it was the side of the car which struck her and not the back. The pain was at the back of her right hand extending over the wrist she said but also on the outer edge of the hand. She was holding a bag with vegetables at the time almost shoulder high in a clutching manner.

10 The car struck her right hand and right upper thigh she said. It was black and blue she added and she had shown it to Mr. Tuitt the defendant. She denied telling him that they were family. She further denied saying to the defendant that they (referring to some people in a craved that had gathered) wanted her to squeeze him but that they were family.

11 The plaintiff told the court she was aware that the defendant was at the time the Minister of Agriculture, Lands and Housing. She confirmed seeing him after church an the following day (Sundays when he promised to look for her in the afternoon but never in fact did. She denied having injured her hand anywhere on Sunday 28th January, 1990. Nor did she tell Mr. Lewis that she had done so.

12 The plaintiff conceded that she did not see the defendant's car before it struck her. Nor had she seen it whilst it was reversing. It happened all a sudden she declared, it was someone behind her who pulled her away from the car. She explained that the car was reversing fast because after it struck her it continued. The driver was not reversing into a parking area she asserted because there were double yellow lines there which prohibited parking.

13 There were a lot of the people in the vicinity the plaintiff observed, it being a Saturday morning with people moving to and fro. She put the bag she was carrying down on the ground when she spoke to the defendant because her hand was very painful she said. After the plaster of Paris was removed her hand was still swollen and it had not yet healed the plaintiff deposed. It was bandaged for a further three weeks she pointed out. She was not entitled to sick pay she told the court but had furnished her employer with medical certificates throughout the period of her incapacity.

14 The evidence of Susan Farrell, the sale independent eyewitness in this case, is that on the morning in question, the plaintiff was walking in front of her on Strand Street and the defendant was reversing his car at the same time when the car touched her (the plaintiff) on her hand. She (the witness) said that prior to this, as the car was getting closer she realized that the plaintiff would be struck by it because she (the plaintiff) was not paying attention; so he called out to her to look out. It was whilst she was shouting “Look out” that the car touched the plaintiff(s hand she added.

15 In answer to a question posed by the court, Farrell explained that she said that the plaintiff was not paying attention because the car came back so suddenly and did not blow; so that the plaintiff would not have seen it if she was not looking because it eras parked in the first place. By the expression “not paying attention” she meant that the plaintiff was not looking at the car which was parked before it started reversing. The witness said that she did not notice that the defendant's car was damaged and it was the rear of the vehicle which struck the plaintiff she added. The plaintiff did not appear to have been in pain she declared. She was not sure whether she had touched the plaintiff before she got struck she said. when the defendant realized he had struck the plaintiff, he stopped the witness deposed. She confirmed that the defendant did promise to give the plaintiff some shilling oil to rub her hand but added that she herself did not notice the condition of the plaintiff's right hand.

16 At the locus, the plaintiff and the witness Farrell indicated their respective positions at the time of the incident. Ms. Farrell indicated where the defendant's car was parked in front of Squeakie's Supermarket and where it had stopped after reversing. The defendant indicated that his vehicle was further back and not directly in front the supermarket. The rear of his vehicle was protruding into the adjacent alley-way he indicated.

17 A report from Dr. Lewis who...