Stapleton v Chambers and Williams
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Henry, J. |
| Judgment Date | 21 January 2015 |
| Neutral Citation | VC 2015 HC 5 |
| Docket Number | SVGHCV 2007/002 |
| Court | High Court (Saint Vincent) |
| Date | 21 January 2015 |
High Court
Henry, J. (Ag.)
SVGHCV 2007/002
Mr. Richard Williams and Mr. Sten Sargeant of Williams and Williams Law Chambers for the claimant
Mr. Jaundy Martin for the first-named defendant, and initially for the second named defendant; second named-defendant in person, subsequently.
Personal Injuries - Liability — Whether the first and second defendants were negligent which caused the injuries to the claimant — Consideration of Caparo Industries Plc v. Dickman [1990] 1 All E.R. 568 and Donoghue v. Stevenson [1932] A.C. 562 — Driving too fast — Defendant third party relationship of proximity & creation of risk of danger — Consideration of Capital and Counties Plc v. Hampshire County Council [1997] 2 All E.R. 865 — Volenti non fiat injuria — Whether the claimant contributed to its own injuries where no evidence was given of either contributory negligence or volenti non fit injuria — Latent defect — Whether the accident was caused by latent defects of the disc pads of the minibus of which the defendants were unaware where the defendants had not provided evidence that due diligence had been exercised in the maintenance — Consideration of Sonil Spencer v. Colin Browne SVGHCV 2007/097 and Brown v. Brown No. 13 of 1967 — Liability — Vicarious liability — Whether the first defendant was vicariously liable for the second defendant's negligence where he was the employer and owner of the vehicle — Judgement entered for the claimant and the first defendant should pay for the damages which were to be assessed — Motor Vehicles and Road Traffic Act, Cap 483.
Henry, J. (AG.): The claimant Carol Stapleton claims damages and special damages against the first and second defendants arising from injuries and loss she allegedly suffered as a passenger in an omnibus owned by the first defendant and driven by the second defendant. The claimant is 61 years of age, resides at Spring Village and is a vendor. The first defendant resides at Rose Hall and is self-employed as a farmer and businessman. He is the owner of motor omnibus HM631 and was the conductor on the bus at the time of the accident. The second defendant is a resident of Peter's Hope and is employed as a driver. He was driving omnibus HM 631 when the accident took place.
On October 11, 2006, the claimant was travelling as a passenger in the said omnibus along a portion of the Belle Isle public road when there was a loud explosion and the front hydraulic brake system failed. The sliding passenger door on the side of the omnibus was opened. The claimant sustained injuries consequent on falling from the bus to the road while the vehicle was still in motion. She claims she fell out, while the defendants allege that she jumped out. The claimant alleges that her fall and injuries were occasioned by the defendants' negligence for which she seeks damages to be assessed. The defendants attribute the claimant's fall and injuries to her negligence and a latent defect in the brakes. The defendants deny liability.
As against the first defendant the claimant pleads that he was negligent by opening the omnibus' door before it came to a stop and by disembarking the bus and leaving the door open while it was in motion. The claimant pleads that the second defendant was negligent by driving too fast, failing to apply his brakes in time or at all, failing to steer or control the omnibus in a manner to avoid the accident, causing the vehicle to swerve as to cause the claimant to fall out of the bus and losing control of the omnibus. The defendants filed a joint defence in which they plead that the claimant was negligent by attempting to jump out of or otherwise exit a moving vehicle, by leaving the seat she had taken in the vehicle when it was not safe to do so, by failing to adequately take proper precautions for her own safety or exercise appropriate caution when jumping or exiting the moving vehicle and by taking a foreseeable risk of injury to herself.
When the trial started on November 17, 2014, the second defendant was absent. His counsel Mr. Jaundy Martin informed the Court that he was unable to contact him and the witnesses. The trial proceeded in their absence and the claimant and the first defendant testified without calling witnesses. The hearing was adjourned that day on an application by learned counsel on behalf of the second defendant. On the next adjourned date [December 3, 2014], the second defendant was again absent and the matter was adjourned once again on application by Mr. Martin who indicated that he would be making an application to be removed as attorney for the second defendant. He indicated to the Court that he was still unable to contact the second named defendant. On the next and final hearing date Mr. Martin was removed from the record as attorney for the second defendant. The second defendant being present, personally conducted the remainder of his case. He gave evidence and called two witnesses — Ashaki Browne Williams and Nyoka James.
The claimant's testimony is that on October 11, 2006, she was riding in omnibus HM631, on the second row of seats in the seat closest to the door and immediately behind the first defendant who was sitting in the row behind the driver. She said that she was on her way to Kingstown to sell her produce which were also on the bus. She stated that the omnibus started speeding, the driver lost control of the vehicle and it started swerving violently, whereupon the first defendant opened the van door and jumped out leaving the door open. The claimant explained that as a result of the swerving of the bus she fell out of the bus onto the road and as a result damaged her left shoulder and had to be hospitalized. She also seeks compensation for her produce which were on the omnibus and not returned to her.
Under cross-examination by learned counsel Mr. Jaundy Martin on behalf of the defendants, the claimant stated that when the vehicle left the hill coming down, she heard a loud explosion and the van was going towards the drain. She said that the second defendant brought the vehicle back into the road and it then picked up speed at which point the first defendant opened the door and jumped out. The claimant explained that four other gentlemen jumped out the van, the van kept “swagging” from side to side and she fell out of the vehicle. She denied that anyone pushed her or the first defendant out of the bus. In her words “he just opened the door and pitched out himself”.
The evidence of the first defendant is that he and the second defendant went to NAPA Saint Vincent Limited on October 6, 2006 where he bought disc brake pads for the omnibus. He said that he had them installed on the bus later that day. The first defendant explained that on October 11, 2006 he was serving as conductor on the bus. The claimant was picked up at Spring Village with her belongings. As the vehicle proceeded down Belle Isle hill he heard a loud explosion and the vehicle seemed to speed up. The driver began changing down gears slowing the vehicle in the process. The driver then tried to drive the vehicle against the side of the drain and he then drove the vehicle from side to side attempting to bring it to a stop.
The first defendant stated that the passengers began trying to get out of the bus, telling him to open the door and rush on him as if to crush him. He felt that he had no choice but to open the door. He said that some passengers were already jumping through the windows in desperation to get out. He opened the door and passengers began jumping out, pushing him out in the process. He claimed that the claimant instead of staying in her seat, tried to get out of the moving vehicle when it was not safe for her to do so and fell. He alleges that it was the claimant who took the risk of jumping out of the moving vehicle when it was not safe to do so. He denied that the vehicle was travelling fast. He also denied that he acted negligently when he was “forced upon by the passengers and had no choice but to open the passenger door”. After the vehicle came to a stop, he said that he and the second defendant walked back to where the explosion happened and picked up two pieces of disc pads from the road.
The first defendant explained that he got a pack of disc pads from another bus owner who was passing by. They were installed by a mechanic subsequently. While replacing the disc pads, he said that he observed that only one piece of the disc pad remained on the first wheel but it was broken. Likewise, he recounted that on removing the other front wheel he noticed that both disc pads were broken in half. He recalled that he reported the matter to the police, NAPA and the insurance.
The first defendant was cross-examined by Mr. Richard Williams on behalf of the claimant. Under cross-examination the first defendant said that he is not a mechanic and has no expertise in that field. He testified that he purchased the disc pads on the Friday, carried a funeral trip on the Saturday, did not work on Sunday and the accident happened on the Monday. He responded that the disc pads were installed at Rose Hall by a mechanic. He could not check to see if they were installed right and he could not say if they were installed properly. He indicated that the disc pads were non-genuine and they broke off. He stated that the vehicle had two different types of brake systems including hand brakes which were working. He explained that at the time of the accident the vehicle was swerving from left to right but not going fast at the time.
The first defendant stated that he did not even know who open the van door. Initially, he denied opening the van door after he realized that the vehicle lost control, subsequently sought to clarify his earlier response by stating that he did not open the van door at first, but he did open it after...
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