Jessica Hood Claimant v Free Trade and Processing Zone Commission Houghton Forde Vere Carbon Angella Gonsalves Defendants

JurisdictionAntigua and Barbuda
JudgeRemy J.
Judgment Date27 July 2012
Judgment citation (vLex)[2012] ECSC J0727-2
CourtHigh Court (Antigua)
Docket NumberCLAIM NO.: ANUHCV 2008/0512
Date27 July 2012
[2012] ECSC J0727-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO.: ANUHCV 2008/0512

Between
Jessica Hood
Claimant
and
Free Trade and Processing Zone Commission
Houghton Forde
Vere Carbon
Angella Gonsalves
Defendants
Remy J.
1

This claim arises out of a motor vehicle accident which occurred on 8th September 2005 on Old Parham Road. Involved in this accident were Motor Bus C1282, owned by the First Defendant (Free Trade and Processing Zone Commission), driven by the Second Defendant Houghton Ford, and Motor Car A3180, owned by the Third Defendant (Vere Carbon) and driven by the Fourth Defendant (Angella Gonsalves). At the time of the accident, the Claimant was a passenger in Vehicle Motor Bus C1282, and was an employee of the First Defendant.

2

By Claim Form and Statement of Claim filed on the 5th September 2008, the Claimant pleaded that the collision was caused by the negligence of the Second Defendant as servant or agent of the First Defendant and/or the fourth Defendant as servant or agent of the Third Defendant, and that as a result she suffered pain, injury, loss and damage. She claims damages including Special Damages in the sum of $124,132.75 as well as interest and costs. She also claims Exemplary Damages against the First Defendant.

3

In its Defence, the First Defendant denied that the collision was caused by the negligence of the Second Defendant and further stated that the collision was caused wholly by the negligence of the Fourth Defendant as servant and/or agent of the Third Defendant. The First Defendant further denied the Particulars of Negligence alleged by the Claimant. With respect to the allegation of unfair dismissal, the First Defendant denied that the Claimant was dismissed on the 1st May 2006 or at all, and pleaded that it was Counsel for the Claimant who, on or about the 13th April 2006, communicated to Counsel for the First Defendant the Claimant's position that the employer/employee relationship between the Claimant and the First Defendant had been severed.

4

The Second Defendant in his Defence also denied that the collision was caused by his negligence as servant or agent of the First Defendant or at all, and states that the collision was caused by the negligence of the Fourth Defendant as servant and/or agent of the Third Defendant. The Second Defendant further denied the Claimant's allegations as contained in the Particulars of Negligence.

5

The Third Defendant in his Defence admits that he is the owner of vehicle A3180, but denies the allegations contained in the Claimant's Statement of Claim. He specifically denies that the Fourth Defendant was in his employ on the 8th September 2005 or at any other material time whatsoever. He pleaded that "the Fourth Defendant is the material (sic) grandmother of the Third Defendant's daughter". He states that he was out of State on the date of the accident. He pleaded further that he "merely left his vehicle with the Fourth Defendant in his absence."

6

The Fourth Defendant in her Defence admits that the Claimant was a passenger in vehicle C1282 but disputed the Claimant's claim that she was negligent as alleged. She denied that any personal injury, loss or damage suffered by the Claimant was as a result of her negligence.

ISSUES
7

The first issue for determination by the Court is: - who is liable for the accident? In other words, was the accident caused by the negligence of the Second Defendant, or the Fourth Defendant, or both? The second issue to be determined is: - who must bear liability for the Claimant's injuries and consequential loss? The third issue for the Court, having determined the issue of liability, is: - what quantum of damages should be awarded to the Claimant?

EVIDENCE
8

The Claimant testified on her own behalf and called several witnesses.

9

The first Witness called at the trial to give evidence on behalf of the Claimant was Ms. Cecilia Barron (Ms. Barron). A Witness Summary was filed on her behalf and was tendered as her evidence in chief. Ms. Barron's evidence is that at the date of the accident, she was an employee of the First Defendant and at the time of the accident, was a passenger in vehicle C1282, and was on her way to work. She stated that after vehicle C1282 was hit, the Claimant was "unresponsive." She stated that she called an ambulance and accompanied the Claimant in the ambulance when she was transported to the hospital.

10

Under cross examination by Mr. Marshall, Counsel for the Third Defendant, Ms. Barron testified that vehicle C1282, was moving along Independence Drive at "a crawling pace", and that it continued to move at that pace when it entered the roundabout adjacent to the Governor General's wall. She testified that she was seated in the second row of the bus, in the middle seat, behind the driver, and could see clearly out of the bus to the front. She testified that it was not raining that morning and that it was a "clear, bright, sunny morning", and that there was "clear visibility."

11

The next witness to give evidence on behalf of the Claimant was Ms. Thalia Parker (Ms. Parker). A Witness Summary was filed on behalf of this witness and was tendered as her evidence in chief. The evidence as contained in the Witness Summary is that she knows the Fourth Defendant and Heike Goodwin, and has known them for over 12 years. Ms. Parker stated that Ms. Goodwin cohabits with Vere Carbon (the Third Defendant) and two children, and that Ms. Goodwin does not drive. She stated that about 4 or 5 years ago, she witnessed Mr. Carbon driving Ms. Goodwin to work as they passed her house each morning en route to Columbian Emeralds at the airport.

12

The evidence of the Claimant as contained in her Witness Statement with respect to the events of the morning of the accident is as follows:-

Paragragh 5 — "I entered the bus via the sliding passenger entrance on the left and sat in the first row of seats located directly behind the driver. Faye Benjamin was also seated in the first row next to the right passenger window directly behind the driver, Mr. Houghton Forde. I sat with a space between Faye Benjamin and myself closer to the passenger door on the left. We were the only two persons seated in the front row."

Paragraph 6 — "The bus proceeded up Independence Avenue; I felt an impact which jolted the bus forward as it went around the Roundabout. The impact raised me forward out of my seat. I fell back and do not remember anything. My next recollection was that my head was in Ms. Benjamin's lap and someone was tapping my cheek and calling my name."

Paragraph 8 — "As I sat up my head was spinning. I became aware that the bus had stopped and that persons were agitated and Cecilia Barron, an employee and fellow passenger in the bus told me she called the ambulance and it was on the way."

Paragraph 9 -"… The ambulance was parked to the front left side of the Nissan Urvan. As I exited the bus, I saw a turquoise car at the back of the bus on the passenger door side."

13

Under cross-examination by Mr. Weste, the Claimant testified that the accident took place on Old Parham Road and that she "saw the collision when it took place." The accident occurred on a school day and not a holiday. The St. Joseph's Academy is located near to where the accident took place. The day of the accident was not the first time that she had travelled to work in vehicle C1282 and that she was aware before the accident that there was no seat belt where she chose to sit, but nevertheless sat at that seat. There were about five or six individuals in the bus when the accident took place and that, to her knowledge, she was the only person injured. She "could not recall" whether traffic was congested on Independence Drive that morning and "could not recall" how fast the Second Defendant was driving at the time of the accident. The Claimant also testified that she had a driver's licence; she stated that Stapleton Road is a minor road in relation to Old Parham Road, but that she "did not know" whether a driver coming from Stapleton Road would be obligated to give way to traffic on the right, or whether a driver coming from Stapleton Road must give way to traffic already on the roundabout.

14

Under a brief cross-examination by Mr. Marshall, the Claimant testified that it was "not correct" to say that she had no knowledge of how the accident occurred. She testified that she did not know which of the drivers was at fault.

15

Under cross-examination by Ms. May, Counsel for the Fourth Defendant, the Claimant testified that she "could not recall" how fast the traffic was moving that morning.

16

The next witness to give evidence on the Claimant's behalf at the trial was Dr. Kunwar Kaushlemra Singh. A Witness Summary was filed on his behalf and was tendered as his evidence in chief at the trial. The evidence as contained in the Witness Summary is that Dr. Singh is a consultant Orthopedic surgeon and medical doctor. He first evaluated the Claimant at his private office "some two weeks after the motor vehicle accident". The evidence of Dr. Singh will be dealt with later in the judgment.

17

Mr. Weste and Ms. May declined to cross-examine Dr. Singh.

18

Under cross-examination by Mr. Hugh Marshall, Dr. Singh testified that his reports were not based on the neurological assessments of Dr. Marques or on the reports of Dr. Bydasie, but that he awaited the reports of Dr. Bydasie and Dr. Marques "out of respect and courtesy to another colleague."

19

The next witnesses for the Claimant namely, Dr. Ian Thomas and Dr. Matthew were unavailable to give evidence when called, due to commitments related to their work, and of which the Court was previously made aware. A Witness Summary had been filed on behalf of each of the witnesses and these were tendered, without objection by Counsel for the Defendants, as their evidence in chief. The evidence of Dr....

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