West v Lagan Holdings Ltd et Al

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Leigertwood-Octave J [AG.]
• Judgment Date: 03 February 2006
• Neutral Citation: MS 2006 HC 1
• Docket Number: MNIHCV 0059 of 2004
• Date: 03 February 2006

West

and

Lagan Holdings Ltd et al

Leigertwood-Octave, J. (Ag.)

MNIHCV 0059 of 2004

High Court

Damages - Negligence — Road traffic accident — Damage to vehicle — Quantum.

Appearances:

Mr. David S. Brandt for the claimant.

Mr. Kharl Markham for the first defendant.

Second defendant not present and not represented.

Introduction

Leigertwood-Octave J [AG.]

1 On 22 ^nd April 2004, Kevin West was driving his Rav 4 jeep and Johnnie Tolan was driving a pickup owned by Lagan Holding Ltd. in opposite directions along the Davy Hill Public Road. Add to that the fact that Mr. West's vehicle ended up crashing into the embankment on his side of the road resulting in damage to his vehicle and that would be the extent to which the parties agree in this matter. Otherwise, as quite aptly described by counsel for the First Defendant, the evidence, as presented by the two sides in this trial, is “diametrically opposed”.

Case for the Claimant

2 The evidence given by Mr. West in support of his claim was very short. His evidence is quite simply is that the damage to his Rav 4 jeep was caused when Mr. Tolan attempted to overtake a vehicle when it was unsafe to do so and drove straight into the path of his jeep. In an attempt to avoid a head on collision, he applied brakes, pulled further left upon which his jeep struck the curb and he lost control of his vehicle. As a result, of Mr. Tolan's negligence, extensive damage was done to his jeep and he has claimed damages for his loss.

3 In cross-examination, he stated that prior to proceeding on the Davy Hill Road he had reversed his jeep from the Carr's Bay/Little Bay junction and he recalled seeing Marvin Bruno, a witness for the defence, in that area. Mr. West denied that he had proceeded from the junction at a very high speed. He agreed that there was an incline on the part of Davy Hill road that he was proceeding along but denied that he was travelling in excess of 50 miles per hour, because he could not be going up the hill at that speed. He stated that his speed was over 25 miles per hour and could have been 40 miles per hour or just less. He also indicated that he was not sure of the speed limit in that area.

4 In further cross-examination, Mr. West testified that the accident had occurred more than 150 feet from where he had started on to the Davy Hill Public Road from the Carr's Bay junction. He had first seen the pickup driven by Mr. Tolan when he hit the brow of the hill round the corner. At that time the pickup was about 30 to 35 feet away and travelling on the right side of the road, being Mr. West's side of the road. He insisted that Mr. Tolan was not travelling on the left side. Mr. Tolan was in a line a traffic but was out on “his” [i.e. Mr. West's] side.

5 When asked how he was not able to bring his jeep to a standstill, he answered that he had pulled his vehicle as far left as he could and applied his brakes. If he had stopped, Mr. Tolan would have hit him head on and given the speed that he was driving at it would not have given him much time.

6 In response to questions as to what had become of Mr. Tolan's pickup he said that it did not overtake the vehicles but it was on his side of the road around the corner on the brow of the hill. He denied that he had been speeding around the curb and did not agree that he struck his wheel and lost control of his vehicle.

7 James White, an employee of the Government of Montserrat in the Emergency Department supported Mr. West's version of the events. Mr. White, testified that he was driving his jeep down Davy Hill Public Road towards the Carr's Bay junction.

8 He saw a white pick-up about 2 vehicles ahead of him and it was driving on the right hand side of the road. He said the white pickup appeared like it wanted to overtake the three vehicles ahead of it and at that same time he saw a blue jeep coming up the road in the opposite direction. He slowed down his vehicle anticipating a collision. He then saw the blue jeep pull further to the left trying to avoid a collision with the white pick-up and saw the jeep jump the curve and run into the bank on the left side.

9 After the collision he observed that the jeep belonged to Kevin West. He did not know the name of the driver of the pick-up but knew that he worked on the airport project.

10 When he was cross-examined, Mr. White agreed that Davy Hill Road started around Arrow's Man Shop and went down to Carr's Bay junction. He stated that he had been driving down Davy Hill Road in a line of 5 vehicles and the white pick-up was 2 cars ahead of him. The line of vehicles was travelling roughly 25 miles per hour coming down.

11 He does not recall that there were 2 pickups in the line. The white pick-up was on the left side at Arrow's Man Shop, at Cable TV, the Water Authority and Victor's supermarket and it did not attempt to overtake in those areas.

12 Cross-examined further, Mr. White stated that he saw the white pickup try to overtake at the junction to the Davy Hill Project near a genip tree and where there was a slight bend in the road. He said he saw the pick-up “varying” on the right hand side of the road going down. He insisted that he has seen the white pick-up on the right hand side of the road and that he was on the spot close to the accident.

13 When asked if he had seen defence witness, Matthew Butler, at the scene of the accident, he stated that he did not recall seeing him.

14 That was the evidence from the Claimant and his witness in relation to the cause of the accident.

Case for the Defence

15 Now to the Defence. It should be noted first of all that Johnnie Tolan has never taken any part in these proceedings. No Acknowledgement of Service of the Claim form or Defence have been filed by him or on his behalf. In fact, there is no evidence on the file that the Claim Form has been served on him.

16 In its Defence, Lagan Holdings admits that it is the owner of vehicle M2982, which was driven by Mr. Tolan at all the material times. The Defence also states that Mr. Tolan was its employee on the date of the accident and was authorized to drive vehicle M2982. In those circumstances, it was therefore appropriate for the matter to proceed.

17 Lagan's version as to the cause of the accident is as stated earlier quite different from the Mr. West's.

18 Matthew Butler, a civil engineer employed with Lagan International was a witness for Lagan. He stated that on the date in question he was driving a Nissan pick-up from east to west on the Davy Hill public road.

19 While driving towards Carr's Bay, he was aware that there were two vehicles in front of him and one behind. The vehicle immediately ahead was a pick-up driven by Johnnie Tolan and the vehicle at the front was a white sedan. A 4x4 vehicle was at the rear.

20 It is Mr. Butler's evidence that as the vehicles continued down the Davy Hill road, a blue Toyota Rav 4 came around the bend in the road in the opposite direction. The vehicle came around the bend at such a speed that the driver lost control, resulting in the Rav 4 crashing into the embankment on the side of the road. He later learned that the Rav 4 had been driven by Kevin West.

21 Mr. Butler stated that at no time while travelling behind the pick-up driven by Johnnie Tolan did he see the pickup try to overtake the white car travelling in front and that Mr. Tolan's pickup was on the left side of the road at all times.

22 In cross-examination, Mr. Butler testified that he had given a statement to the police about a week or so after the accident and that statement said exactly the same thing as what is contained in his witness statement.

23 When asked about the “white sedan” he described in his witness statement, he stated that he did not know who it belonged to neither did he know the number. Mr. Butler stated that the accident happened on the Day Hill road where there was a bend.

24 Mr. Butler insisted that he had been driving directly behind Mr. Tolan. He denied that he had made up the story because he was an employee of Lagan.

25 In re-examination, Mr. Butler testified that there was more than I bend in the Davy Hill area where the accident took place.

26 Marvin Bruno, a constable in the Royal Montserrat, was the other witness for Lagan. His evidence is that on the day of the accident he was on Beat and Patrol duty at Carr's Bay. While at the Carr's Bay junction, he saw a jeep reverse from the road leading into Little Bay and proceed eastwards on the Davy Hill Public Road. The jeep had accelerated very fast on the Davy Hill Road.

27 Officer Bruno went on to say that when the jeep reached in the vicinity of Tom Piper's residence on the Davy Hill Road, he noticed that it “seemed to be going out of control”. The jeep had been in his sight at all the material times and there was nothing obstructing his view. He had been paying attention to the vehicle because of the speed it was travelling. He saw the jeep go off the main road and run into the embankment on the left side of the road.

28 He further stated that on no occasion did he see the vehicle driven by Mr. Tolan on the right side of Davy Hill road while proceeding westward, i.e. down the hill.

29 The officer testified that he had walked to the scene and observed that the vehicle driven by Mr. West was at a standstill with its front wheels over the curb and resting against the embankment. He also observed that the vehicle had sustained damage.

30 He then made inquiries into the accident and recorded explanations from Mr. West and Mr. Tolan as to how it had occurred. In his statement Mr. West had indicated that he had seen Mr. Tolan's vehicle on the right side of the road, pulled off from him, hit his jeep the curb and collided with the bank on the left side of the road.

31 Mr. Tolan's had stated that he was coming down Davy Hill Public Road when he saw a blue jeep at the bend, the...