Nigel Lindsey Claimant v James Allen Defendant [ECSC]

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: REDHEAD J (Ag),Albert Redhead
• Judgment Date: 26 July 2011
• Judgment citation (vLex): [2011] ECSC J0726-2
• Docket Number: CLAIM NO. MNIHCV2009/0021
• Date: 26 July 2011

Between:

Nigel Lindsey

Claimant

and

James Allen

Defendant

[2011] ECSC J0726-2

CLAIM NO. MNIHCV2009/0021

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(Civil)

Appearances:

Mr. David Brandt for the Claimant

Mr. Jean Kelsick for the Defendant

REDHEAD J (Ag)

1 On 1 ^st day of August 2008 the Claimant was driving his motor car M921 along the Brades Public Road in a Northerly direction. The Defendant was driving his motor vehicle in an opposite direction. When the Claimant and the Defendant got to the vicinity of Ashok's Supermarket their motor vehicles were involved in an accident.

2 The Claimant alleges that the Defendant was responsible for the accident. The Defendant on the other hand alleges that the Claimant was responsible for the accident.

3 The Claimant on 19 ^th August 2009 filed a Claim Form and a Statement of Claim. In his Statement of Claim the Claimant alleges that he was driving his motor vehicle M921 along the Brades Public Road when the Defendant so negligently drove, managed and controlled his vehicle along the said road in the opposite direction that he caused or permitted the same (vehicle) violently to collide with the Claimant's said motor car and caused damage to the same. The Claimant in his particulars of negligence alleges

By reason of the matters aforesaid the Claimant has suffered loss and damage.

• (a) Driving at an excessive speed

• (b) Driving on to the wrong side of the road and there collided with the Claimant

• (c) Failing to keep any or proper look-out or to have any significant regard for other traffic, particularly, on coming traffic on the said road

• (d) Failing to have or keep any proper control of the said motor car

• (e) Failing to stop or slow down, to swerve or in any other way so as to manage or control the said motor car as to avoid the said collision.

4 The Claimant itemized his particulars of special damage to the total amount of $21,415.00.

5 The Defendant in his defence denies that the collision was caused or contributed by the alleged or any negligence of him. The Defendant alleges that the collision was caused or contributed to by the negligence of the Claimant.

6 In his particulars of negligence the Defendant alleges that the Claimant was

• (a) Driving too fast in the circumstances

• (b) Failing to keep any or proper look out and /or to observe or heed that presence or approach of the Defendant's said vehicle,

• (c) Failing to keep on his proper side of the road,

• (d) Failing to apply his brakes in time or at all and/or so to steer or control the vehicle he was driving so as to avoid the said collision.

7 In his Counter Claim the Defendant claims against the Claimant damages for personal injuries which he particularizes as

(a) The Defendant was thrown violently forward in the vehicle immediately after the collision thereby striking his head against the front windshield, which knocked him unconscious. He was taken to Glendon Hospital for examination and suffered headaches for several months thereafter. The Defendant in particularizing his claim for the damage of his motor vehicle; put the pre-accident value of his vehicle at $12,000.00.

8 In his witness statement he said that he had bought it from his daughter for $8,000.00 although he had no receipt to back up that claim.

9 The Claimant in his witness statement says that he is the owner and was the driver of M921. On 1st August 2008 at about 8 p.m. he was travelling from North to South on the Brades Public Road in the vicinity of Ashok's Supermarket at about 25 miles per hour.

10 The Claimant says that there was one vehicle in front of him travelling in the same direction. On reaching the area of Ryan's complex, the vehicle which was traveling in front of him stopped. He, the Claimant, said he stopped behind the vehicle. The vehicle moved off and he too moved off as well. He said he built up a speed of about 20 mph.

11 The Claimant said that he then observed a jeep which was travelling in the opposite direction indicating that the driver wanted to cross the road into Ashok's supermarket. The vehicle stopped and allowed him, the Claimant, to pass. In his witness statement, the Claimant said that the jeep that was in front of him travelling North to South continued in the same direction and he, the Claimant, was driving about 16 feet from the vehicle.

12 He said as he passed the minor road to his left, he saw two bright lights heading towards him in the opposite direction; he pulled his vehicle more, over to the left side of the road to avoid an accident. He said that his car went up on a dirt embankment on the left hand side of the road close to Ashok's parking lot. He saw a lamp post on his left side. He applied brakes and stopped. He said that as he stopped his vehicle, the front of M293 came to the left side of the road and collided with the right side of his vehicle and caused extensive damage to his vehicle.

13 The Claimant said that after the accident he then observed that the Defendant was turning his steering wheel and his vehicle rolled back across the road in a drain on the opposite side of the road and stopped with its two rear wheels in the drain.

14 I am of the opinion that the Claimant advanced this evidence to indicate that the Defendant deliberately undertook this maneuver so as to indicate that the accident took place on the other side of the road.

15 As Learned Counsel for the Claimant, Mr. Brandt, made the comment on this aspect of the evidence "smart man". I do not accept this evidence. I am more inclined to the view that the Defendant's vehicle ended up where it was having regard to the violent impact of both vehicles. As I do not think that two vehicles having violently collided that the Defendant would have the presence of mind, immediately, thereafter, to manipulate the situation and roll back his vehicle to make it appear that the accident took place at a different spot from where it actually did.

16 The Claimant said that after the accident he came out of his vehicle approached the Defendant and told him "Allen you hit me car." The Defendant replied "me in one hurry here to go North". The Defendant of course denied that he said these words to the Claimant.

17 The police were summoned to the scene. Among the officers who arrived on the scene was Kirk Brade P.C. who took measurements and gave a witness statement.

18 Both vehicles were extensively damaged. The estimated costs of repairs for the Claimant's vehicle M921 is put at $21,415.00. The Claimant is also claiming $33,000.00 loss of use of his vehicle at $100.00 a day for 330 days. I shall return to this issue later in this judgment. He claims a total sum of $54,415.14 with interests.

19 The Claimant said in cross examination that the road on which the accident occurred is a long straight road. He estimated the distance from the corner to where the accident took place to be about 60 feet.

20 He also said in cross-examination that when he turned off to approach the Ashok's Supermarket a jeep came and stopped at the entrance of Ashok's Supermarket with its right indicator on. As he approached the entrance, the Defendant's was coming down the road behind the parked jeep with its bright lights on. As he passed the entrance Mr. Allen came from behind the (parked) jeep. He pulled more to the left and applied his brakes because a lamp post was on his left hand side as he did not want to hit the lamp post. Mr. Allen's vehicle slowed down but did not stop.

21 The Claimant also said in cross examination that the Defendant's vehicle was turning across the road when the accident occurred.

22 He also said that after the accident that Mr. Allen's vehicle ended up on the other side of the road.

23 James Allen in his witness statement said that he is 60 years old and have been driving for 39 years.

24 On Friday 8 ^th August 2008 at about 8 p.m. he was driving his Toyota Corolla motor car M293 on the Brades main road travelling north. He was travelling about 10 mph.

25 The Defendant said that he wanted to turn right at Ashok's Supermarket. He put on his right indicator and brought his vehicle to a complete stop. Before he was able to turn he saw motor car M921 turn the corner that was about 150 feet ahead of him at high speed. He decided to remain at a standstill so as to let the Claimant's vehicle to pass.

26 The Defendant also said in his witness statement that when the Claimant reached in front of Ryan's Place the Claimant increased his speed of 70 mph, lost control of his vehicle and ran into the right front section of his vehicle. The Claimant's vehicle struck his, the Defendant's vehicle with a lot of force. The Defendant said that his vehicle was thrown back by the Claimant's vehicle, causing both of the wheels of his vehicle to end up in the drain on the left hand side of the road.

27 The Defendant said in his witness statement that at the time of the collision his head struck the front windshield very hard and he lost consciousness. He was taken to Glendon Hospital later that evening. He was examined by a doctor who is no longer in Montserrat and was discharged. He experienced very painful headaches which lasted for 3 months after the accident on a regular basis and then on off for a further of about 3 months. The pain was severe enough to force him to go home and lie down.

28 In his witness statement he alleges that at the time of the accident the motor car driven by the Claimant is owned by Cheryl Lindsey, the Claimant's mother.

29 The Defendant is, I suppose, claiming damages for personal injuries. I...