Roach v Farrel et Al

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Redhead, J.
• Judgment Date: 26 March 1993
• Neutral Citation: MS 1993 HC 5
• Docket Number: 109 of 1990
• Date: 26 March 1993

High Court

Redhead, J.

109 of 1990

Roach

and

Farrel et al

Appearances:

Miss E. Henry for the Plaintiff.

Mr. J. C. Kelsick for the Defendant.

Tort — Negligence — Vehicular accident involving two motor vehicles — Plaintiff driving vehicle along road stopped to pick up passenger — Defendant attempted to overtake plaintiff's vehicle — Collision occurred — Whether defendant negligent.

Redhead, J.

1 This is a claim by the Plaintiff against the Defendant for loss and damage which he suffered as a result of an accident which the Plaintiff alleged. was due to the negligence of the 1st named Defendant.

2 The Plaintiff was driving his motor car M341 from Olveston to Plymouth on 12 July 1990 on about 8.00 a.m. The evidence reveals that there was a lot of traffic on the road.

3 The Plaintiff on. reaching Cork Hill overtook and passed a motor tractor driven by the Defendant and further on the Plaintiff saw a young lady one Avonnelle Thornhill standing by the side of the road. The Plaintiff sensing that she wanted a lift to Plymouth, signalled and was according to the Plaintiff, slowing down with the intention to pick up the young lady.

4 He said just before he came to a complete stop, the Defendant in trying to pass his vehicle caused damages to it. The Plaintiff also said that at the time the Defendant was trying to go pass his vehicle there was an oncoming vehicle, the Defendant in trying to avoid that oncoming vehicle collided with his motor car. This accident occurred a few feet from the corner at Cork Hill.

5 It was put to the Plaintiff in cross-examination that he had already picked up the young lady and was moving off when the accident occurred, this he strongly denied.

6 Avonnelle Thornhill gave evidence on behalf of the Plaintiff. In her testimony she said that on the morning in question, she was standing by the corner at Cork Hill waiting for a ride to go to town. She saw the Plaintiff's car approaching continuing in evidence this witness said:

“I saw his indicator. He proceed around the curve. I knew I was going to get a ride. The car did not come to a complete stop. I was moving towards the car, a tractor was coming. The Defendant was the driver of the tractor. Another vehicle was approaching, corning up. He, the Defendant, came around the corner and struck the Plaintiff's car. I was approaching Mr. Roach's car. The accident did not take place on the immediate corner. The Plaintiff had already curved the corner”.

7 This witness by way of demonstration, indicated that the back of the Plaintiff's car was about 8 feet from the corner when the accident took place.

8 The Defendant on the other hand said that on 12 July 1990, he was driving motor tractor on the Cork Hill road coming to Town. The motor car driven by the Plaintiff overtook the tractor he was driving on the Cork Hill road. Continuing the Defendant said it continued driving. He was way ahead of me when I got to the bend there is a hard shoulder on the left side of the road that one generally parks unto. I saw the Plaintiff pull over on the hard shoulder. That gave me the signal that he was going to pick up someone. I saw a young lady standing there… The lady did not move from where she was standing. When the Plaintiff parked I could have passed without interfering with him. But as I came along side him, he decided to drive off.

9 There was no way I could avoid running into him. There was a car coming from Town that would have collided instead of Bennette (the Plaintiff)”.

10 The Defendant also testified that the Plaintiff gave no signal when he was moving off. That is how the accident occurred he said.

11 Kirvin Celestine was called as a witness on behalf of the defence. He testified that he was on Cable and Wireless green box that morning. lie saw Mr. Roach, the Plaintiff, came up by the corner and stopped. A young lady was standing at the corner. The young lady did not got into the car, Mr Farrell, the Defendant, was coming from behind.

12 After a while the girt was not: getting into the car. Mr. Farrell's was on his way overtaking Mr. Roach. Mr. Roach moved off, Mr. Farrell's wheel caught Mr. Roach front”.

13 I made the observation that when Avonnelle Thornhill gave evidence she said that she was moving towards the Plaintiff's car which had not: come to a stand still when the accident occurred.

14 Having referred to the fact that it was put to the Plaintiff that he had already picked up Miss Thornhill and was moving off when the accident occurred; it was never put to Miss Thornhill in cross-examination that that was the position. By then the defence must have abandoned the notion that the Plaintiff had picked up Miss Thornhill in his motor car and was moving off when the accident occurred.

15 The Defendant said no such thing in his evidence. In fact he said, “the young lady did not move from where she was standing” and his witness Celestine said:

16 “The young lady did not get into Mr Roach's car”. It is difficult for me to appreciate when the defence for this notion that Miss Thornhill was already in the Plaintiff's motor car and the motor was moving off when the accident occurred; which was put to the Plaintiff.

17 I therefore reject entirely any suggestion from the defence that the Plaintiff had picked up Miss Thornhill in his motor car and was moving off when the accident occurred. There is credible evidence that the young lady had not yet got into the Plaintiff's motor car. If that is the case, he could not have been pulling out when the accident occurred because he would not have had achieved the purpose for which he was about to stop, that is to give the young lady a ride.

18 I find as a fact that the...