Bernadette Sampson Claimant v Samuel Charles Wendy Charles Defendants [ECSC]

• Jurisdiction: Grenada
• Judge: Ellis, J.
• Judgment Date: 17 August 2012
• Judgment citation (vLex): [2012] ECSC J0817-1
• Court: Supreme Court (Grenada)
• Docket Number: Suit No. Gdahcv2009/0552
• Date: 17 August 2012

[2012] ECSC J0817-1

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

Suit No. Gdahcv2009/0552

Between:

Bernadette Sampson

Claimant

and

Samuel Charles

Wendy Charles

Defendants

Ellis, J.

1 By Claim Form and Statement of Claim filed on 17^th December 2009, the Claimant claims that on 2^nd December 2005, she was walking west on Gladstone Road in the Parish of St. Andrew on the left side of the road, when the Second Defendant negligently drove motor vehicle registration number HM576 thereby causing her to suffer injury, pain, loss and damage. The particulars of recklessness and negligence claimed are as follows:

• 1. Driving without due care and attention

• 2. Failing to keep any proper look out

• 3. Failing to apply her brakes in time so as to avoid colliding into the Claimant's back and injuring the Claimant

• 4. Failing to steer and or control the said vehicle so as to avoid the said collision.

2 As a result of the said collision caused by the Defendant, the Claimant had to seek immediate medical treatment. She was admitted as a patient in the Princess Alice Hospital and discharged on 5^th December 2005. The Claimant exhibited a medical report dated 9^th March 2006 detailing her medical condition. The diagnosis indicates that she suffered soft tissue injuries. The report also revealed that the Claimant complained of extreme pain and tenderness to her back, limited movement, weakness to the left upper thigh, back weariness and difficulty sitting up.

3 The Claimant also claims that the Second Defendant accepted liability for the accident to the Police and exhibited a Police Report dated 23^rd June 2006 as evidence of this. She further alleges that the Second Defendant also accepted responsibility for the accident in the presence of attorney, Shadel Nyack Compton.

4 The Claimant claims special damages in the amount $25,310.00, general damages in negligence, interest and costs.

5 In a Defence filed on 28^th April 2010, the Second Defendant admits that a collision took place between the Claimant and the vehicle owned and driven by the Second Defendant on 2^nd December 2005. The Second Defendant however denies that the said collision was caused by her negligence. She states rather that the collision occurred when the Claimant who was standing at the side of Gladstone Road walked into the road while the Second Defendant was turning onto the said Gladstone Road from Seaton Brown Street. Her defence is that the collision was caused wholly or at least in part by the negligence displayed by the Claimant in stepping into the road wearing high heels (although she had bowing of the tibial bones and unable to walk normally) and failing to return to sidewalk in order to avoid the said collision.

6 The Second Defendant further denies that the said collision caused any injury other than a minor injury to the Claimant since the vehicle was travelling very slowly and made only light contact with Claimant which caused her to fall to her knees without any great impact.

7 The Second Defendant states further that she blew her horn and stopped when she saw the Claimant walking into the road but was unable to prevent the Claimant's leg brushing against the vehicle's bumper. She stated that the Claimant fell onto her knees but denies that the Claimant's upper body ever touched the ground.

8 The Second Defendant denies that she ever accepted liability for the accident.

9 The First Defendant's defence was filed on 2^nd July 2012 and essentially repeats the several averments set out in the Second Defendant's defence. The Defendants generally deny that the Claimant underwent medical treatment as a result of the collision or that she has been experiencing pain and suffering because of the said collision.

10 In her Reply, the Claimant denies that she was negligent as alleged by the Second Defendant or at all. She states that she was walking on the side of the road when she heard a vehicle coming from behind. She states that she stood up because it is her practice not to walk when vehicles are approaching. She stated that as a consequence of the vehicle hitting her on her hip, she was thrown into the gutter at the side of the road. There was no sidewalk. She was bruised, wet and dirty and she had to be assisted to get out of the gutter.

11 She stated that she asked the Second Defendant "Why did you do that to me?" to which she replied "I did not see you". The Claimant alleges that she then responded "I was not in your way, you did not have to see me".

12 She stated further that on 20^th December 2005, the Second Defendant admitted liability to the Claimant's attorney, Shadel Nyack Compton, and promised to report the matter to her insurance company. She states also that the Claimant was interviewed by the Police and again admitted liability.

13 At the trial, the Claimant gave evidence on her own behalf and called one other witness, Shadel Nyack Compton. Both Defendants also gave evidence.

THE CLAIMANT'S CASE

14 The Claimant's evidence is that on 2^nd December 2005, she took a bus from her home in Belmont which dropped her off at the bus stand close to the Grenville Police Station. After leaving the bus stand she walked to Gladstone Road on her way to Rivulet Lane. She kept to the left hand side of the road, on the opposite side to the oncoming traffic. She stated that she was "holding her side" because she knew that this road was a very busy one.

15 She said that she felt a strong force hit her in the lower back and hip. On impact she was pitched into the deep drain on the side of the road and although she could not remember exactly how she fell into the drain, she bruised her skin, hands and knees on the side of the drain. Her clothes and handbag were soaked.

16 Someone (she is unable to identity that person) lifted her out of the drain, and the shock of the collision and fall caused her to "black out" for a short while. She was later transported to Princess Alice Hospital in a bus procured by the Second Defendant. She stated that she was discharged from the Hospital on 5^th December 2005.

17 A Medical Report dated 9^th March 2006 accompanied the Claimant's Statement of Claim and disclosed the injuries alleged to have been suffered by the Claimant.

18 In cross-examination, the Claimant testified that the accident happened on Gladstone Road, just 10 feet from junction to Rivulet Lane. She stated that she was walking along the left side of Gladstone Road when she was hit by a vehicle and fell down into a culvert which ran alongside the road. She stated that she did not just fall onto her knees but rather "capsized on the side of the hole."

19 The Claimant stated that Gladstone Road has always been a very busy road so she kept to her side of the road. She did not attempt to step out, move into, cross or walk into the road. She stated that she was going to her friend's house in Rivulet Lane and she was about 10 feet away from the gap. She did not have to cross the road to get to Rivulet Lane because it was on the left hand side of Gladstone Road and she could clearly see the turn off from where she was standing.

20 She stated that on the day in question she initially saw a "whitish coloured" bus with green at the bottom on Seaton Brown Street at its junction with Gladstone Road waiting to join Gladstone Road. When she heard a vehicle coming from behind her, she stood on the side of the road. She did not hear a horn blow. The next thing that happened is that she was hit. She stated that she never actually saw the vehicle that hit her but later realised that it was the bus that she had seen at the junction of Seaton Brown Street and which was driven by the Second Defendant.

21 She testified that the vehicle hit her on the left side of her body in the area of her hip and lower back. She stated that her whole body pained her when they took her to the Hospital. She stated that immediately following the collision she became unconscious. Prior to the accident she had no problem walking or sitting for long periods. She was a seamstress who sewed commercially just before the collision and she has not been able sew since the accident.

22 In her witness summary, Ms. Shadel Nyack Compton indicates that the Claimant sought her professional services consequent upon the accident at Gladstone Road, Grenville on 2^nd December 2005. She stated that the Second Defendant visited her Office on 5^th December 2005 in regard to the accident and that while in her presence, the Second Defendant unconditionally accepted liability for the said accident.

23 Under cross-examination Ms. Compton stated that the Claimant is her neighbour. She recalls that the Second Defendant came to her office on 5^th December 2005. While in her presence and in the presence of her secretary, the Second Defendant admitted that she was liable for the accident. Ms. Compton indicated that she did not seek to get that admission in writing because at the time she knew that the Second Defendant would have had to deal with her insurance company and she thought that she would have honoured her word and followed through faithfully.

24 When questioned by the Court, however, Ms. Compton was unable to definitively identify the Second Defendant as the person who visited her office on that day. She stated that she believed that the person who visited her that day was the Second Defendant but she could not say for sure because it has been a long time since 2005, and she only met her once. She indicated however that the person who visited her identified herself as Wendy Charles and although she gave no details of the way in which the accident took place, she acknowledged that she was liable and was willing to take responsibility. Ms. Compton indicated that she then asked her to contact her insurance company.

25 Ms. Compton also testified that she wrote to Wendy Charles on 20^th...