Sylvan Thomas v Desmond Collier
| Jurisdiction | Grenada |
| Judge | Actie, J. |
| Judgment Date | 30 October 2023 |
| Neutral Citation | GD 2023 HC 25 |
| Court | High Court (Grenada) |
| Year | 2023 |
| Docket Number | CLAIM NO. GDAHCV2022/0445 formerly GDAHCV2019/0434 |
The Hon. Mde. Justice Agnes Actie High Court Judge
CLAIM NO. GDAHCV2022/0445 formerly GDAHCV2019/0434
IN THE SUPREME COURT OF GRENADA
AND THE WEST INDIES ASSOCIATED STATES
HIGH COURT OF JUSTICE
(CIVIL)
Mr. Derick Sylvester for the Claimant
Mrs. Linda Dolland for the Defendant
This is a personal injury claim arising from a motor vehicle incident on 11 th November 2018, at Point Salines in the Parish of St. George, Grenada.
By claim form and statement of claim filed on 23 rd September 2019, the claimant pleaded that while walking at Point Salines on or about 11:00 p.m., he noticed a vehicle coming towards him and with no time to respond was struck by the said vehicle causing him to fall to the ground. He avers that he was run over by the vehicle and remained pinned under the vehicle for a few minutes after which the defendant came out of the vehicle, questioned the claimant to ascertain his identity then re-entered the vehicle and moved forward to release the claimant from under the vehicle. The defendant then drove off leaving the claimant unattended with severe injuries to his body. The claimant was found approximately one hour later by security officers attached to the Grenada Airport's Authority. The claimant was taken by ambulance to the Accident and Emergency Department of the General Hospital where he was admitted and underwent surgery for the injuries suffered.
The claimant contends that the accident was caused solely by the defendant's negligence particularized as follows:
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i. Driving without due care and attention.
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ii. Failing to keep any or any proper lookout.
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iii. Failing to indicate, signal or give. proper indications
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iv. Failing to sound the horn in time or at all; or to indicate or to otherwise use appropriate signals so as to avoid the accident.
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v. Driving too fast in all the circumstances.
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vi. Failing to observe or heed the presence of the Claimant at Point Saline as a pedestrian.
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vii. Failing to take any or any — adequate care for the safety of the Claimant while driving;
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viii. Negligently or recklessly driving along the Point Saline Public Road;
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ix. Failing to stop in advance, to slow down, brake, steer, swerve, to properly manage or control the said vehicle, or to otherwise manoeuvre same.
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x. Failing to apply the brakes in time or at all so as to avoid the accident with the Claimant.
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xi. Failing to abide by the Highway code and other road traffic rules and conducts for driving along the road.
The claimant also contends that the defendant was at all material time under a statutory duty under Sections 49 and 50 of the Motor Vehicles and Road Traffic Act Cap 201, to drive the said vehicle with due care and attention and not carelessly without reasonable regard for other persons using the road.
The defendant denies the claimant's version of facts as pleaded. The defendant avers that sometime past mid-night, he, and his girlfriend were parked off and away from the public road on a grassy embankment area with concrete strips overlooking the Maurice Bishop International Airport which is commonly referred to as ‘Lover's Lane’.
The defendant states that he saw what he believed to be a large animal crawling past on all-fours near his vehicle. He quickly turned on the vehicle lights and turned the vehicle towards the bushes to see the animal. Upon doing so, he heard shouting coming from outside of his vehicle to wit “Oh God Oh God sorry I ent go do it again.”
The defendant avers that he looked around and saw no one, and so proceeded to open his vehicle's driver door and saw the claimant under his vehicle. The claimant was shirtless but was wearing a black pants and black stocking cap or scarf with a tub of vaseline, a flashlight and a cell phone lying directly next to him.
The defendant avers that he moved his vehicle away from the claimant, who remained supine on the ground. The defendant avers that he informed the claimant that he would call the police but the claimant begged him not to do so, as the claimant promised that he would “never do it again” and that he “has a family.” The defendant then left the claimant on the embankment.
The defendant denies that he was driving on the public road or on any road at the time of his interaction with the claimant or that the claimant was a pedestrian at the time of incident.
The defendant denies any liability at all or alternatively, to the extent that he is found to be liable that liability is to be reduced to the extent of the claimant's contributory negligence since the defendant:
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i. Obscured his presence from the Defendant by bending, crawling or otherwise moving near and or around the base of the Defendant's vehicle surreptitiously and in a manner that was not upright, so as not to be seen by the Defendant.
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ii. Negligently and or recklessly positioned himself at or near the wheels or base of the Defendant's vehicle, without regard for his safety in all the circumstances.
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iii. Outfitted himself in a manner so as to not to bring attention to his presence.
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iv. Lurked or otherwise prowled in the vicinity of parked cars containing couples.
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v. Failed to properly keep an outlook for the movement of the Defendant's vehicle.
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vi. Failed to keep proper or any distance away from the movement of the Defendant's vehicle.
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vii. Failed to bring his presence to the Defendant's attention in a timely manner,
The defendant in his witness statement and at trial said that he looked in the right-side mirror and saw what looked to be a shiny figure crouched down on the ground, on the side of his vehicle almost near the rear right wheel. He said he immediately turned on the vehicle lights and saw the figure moved. The defendant states that he thought that the object moved or jumped into the bushes to the right of the vehicle, and so he reversed the vehicle and turned to shine the lights on the figure to see what it was. It was at that time he heard the exclamation “Oh God! Oh God! Don't kill me”. The defendant states that he immediately stopped the vehicle, opened the vehicle door, leaned out and saw the claimant lying partially under the vehicle with his legs underneath the vehicle.
The defendant further stated that as he leaned out, the claimant grabbed him by his shirt, pulled him and refused to let him go. The defendant states that he had to tear his shirt to be released from the claimant in order to get back into vehicle and move it from being over the claimant. After moving the vehicle the defendant got out and observed the claimant, who was still on the ground. By then, persons from the vehicles parked in the vicinity were standing around the claimant. The defendant in his witness statement states that witnesses to the incident informed him that the claimant was well-known in the area as a “peeping-tom” into the private interactions with persons who frequented ‘Lover's Lane’. The defendant admits that he recognized the claimant with whom he had a previous encounter some months before this incident.
Miss Deyon St. Paul, the sole witness for the defendant and who was with the defendant at the time of the incident said that she recognised the claimant as she had previously landed her foot on the claimant's chest when she stepped out of the vehicle at a different part of the Lover's Lane area.
The claimant denies that he was lurking or prowling at the time of the incident. He states that he had been in the company of friends for a meeting and the friends had just left the area. The claimant. not call any of his friends as a witness.
It is the claimant's pleaded case that the extensive damages suffered were caused by the defendant's negligence. The defendant on the other hand denies liability or to the extent that he may be liable the issue of contributory negligence arises.
There are six requirements to establish the tort of negligence namely (i) the existence in law of a duty of care situation i.e. one in which the law attaches liability to carelessness (ii) Carless behaviour by the defendant, i.e. that it failed to measure up to the standard and scope set by law: (iii) a causal connection between the defendant's careless conduct and the damage; (iv) Foreseeability that such conduct would have inflicted on the particular claimant the particular damage of which he complains. When the four requirements are satisfied, the defendant is liable in negligence then and only then do (v) the extent of the responsibility for the damage to be apportioned to the defendant where others are also held responsible; and (vi) the monetary estimate of that extent of damages. 1
The duty of care in negligence is simply not a duty to act carelessly; it is a duty not to inflict damage carelessly 2. Whether there exists a duty a care is based on the totality of the evidence.
From all accounts, it appears that the claimant was known as a “peeping tom” in the “Lovers Lane” area. The defendant and his witness spoke of a previous encounter with the claimant in the same area. The court is of the view that the defendant was fully aware that the purported silhouette was that of the claimant and not an animal as he wants the court to believe.
Further, the defendant being aware that the claimant was trapped under the vehicle did not make any immediate attempt to remove the vehicle off the claimant. The defendant didn't solicit assistance from the several persons within the immediate vicinity of the incident to lift the vehicle off the claimant neither did he call the emergency services for the claimant.
The defendant at the trial states that he tried to make the call to the...
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