Travia Douglas Claimant v Shivoughn Warde 1st Defendant Javid Warner 2nd Defendant Dwight Warde 3rd Defendant Quick Service Restaurants (ST Kitts nevis) Ltd (dba DOMINOS PIZZA) 4th Defendant [ECSC]
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Belle. J. |
| Judgment Date | 19 March 2010 |
| Judgment citation (vLex) | [2010] ECSC J0319-3 |
| Court | High Court (Saint Kitts and Nevis) |
| Docket Number | SKBHCV 2008/0120 |
| Date | 19 March 2010 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
A.D. 2010
SKBHCV 2008/0120
And
Belle. J. On 18th March 2007 at approximately 4:00 pm the Claimant Travia Douglas was being driven by her co-worker Ms. Shivoughn Warde along Frigate Bay Road in the vicinity of the St. Christopher Club condominiums in motor vehicle PA 676 owned by the 3rd Defendant Mr. Dwight Warde. They were travelling from the Marriott Hotel where they both worked. At around the same time the 2nd Defendant was in the process of delivering a pizza on the behalf of his employer the 4th Defendant. Since the 2nd Defendant had difficulty locating the customer he called her and having communicated with her he found it necessary to exit from the section of St. Christopher Club where he had stopped and turn right at the entrance on exiting. At this point depending or which version one believes, he either attempted to cross the road into the path of the oncoming vehicle driven by Shivoughn Warde, the 1st Defendant or he stopped at the gate and then turned right on the grass verge and drove toward the customer's location still on the right hand side of the road and to the left of the car PA 676.
The Claimant's case is that, on seeing the motorbike driven by the 2nd Defendant exiting St. Christopher Club's gate the 1st Defendant swerved her vehicle to avoid an anticipated collision, met oncoming traffic and in an effort to avoid that traffic swerved again and overturned on the left hand side of the road suffering severe injuries which rendered her a quadriplegic. The Claimant, who was the passenger in the front left seat of the vehicle PA 676, was 21 years old at the time of the accident. She sued all four Defendants for the damage which she suffered.
The Claimant's claim against the Defendants was encapsulated in paragraph 7 of the Statement of Claim in the following terms:
"The collision was caused by the negligent driving of the 1st and or 2nd Defendants. And the third and /or 4th Defendants are vicariously liable for the acts of the 1st Defendant and 2nd Defendants respectively."
The Particulars of Negligence of the 1st and 2nd Defendants are set out in the statement of claim. Against the 1st Defendant the Claimant claimed:
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"a. Failing to steer and or control or manoeuvre motor vehicle PA 676;
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b. Causing or permitting the said motor vehicle PA 676 to turn over and crash;
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c. Driving the said PA 676 without due care and attention;
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d. Failing to give any proper notice or warning;
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e. Driving the said motor vehicle PA 676 in a manner that was unsafe to the Claimant and other road users.
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f. Driving the motor vehicle in such a manner as to cause it to crash;
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g. Driving the said motor vehicle at excessive speed in the circumstances; h. Failing to keep a proper look out;
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i. Failing to take proper evasive action;
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j. Failing to slow down or stop.
Against the 2nd Defendant the Claimant claimed:
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a. Failing properly to steer and or control or manoeuvre motor scooter PA 6739
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b. Driving on the road in such a way as to cause the 1st Defendant to turn over the said PA 676 and crash;
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c. Failing to drive with due care and attention;
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d. Failing to properly steer control or manoeuvre the motor scooter PA 6739
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e. Failing to properly and carefully use the motor scooter PA 6739 on the road;
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f. Failing to give notice or warning in the circumstances;
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g. Driving the said motor scooter PA 6739 in a manner that was unsafe to other road users;
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h. Driving the said motor scooter PA 6739 at an excessive speed in the circumstances;
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i. Failing to keep a proper look out;
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j. Failing to slow down or stop;
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k. Failing to take any or any proper evasive action."
On the date of trial neither the 1st nor the 3rd Defendant submitted themselves for cross-examination since they had disobeyed the Case Management Order of 18th September 2008 and failed to file witness statements. The 2nd Defendant on the other hand fully participated in the trial and in his defence had pleaded the negligence of the 1st Defendant outlining the following particulars:
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"(a) driving too fast in the circumstances
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(b)failing to appreciate that she was approaching a corner approaching and or taking the corner on the Frigate Bay Road too sharply
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(d) veering off the Frigate Bay Road
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(e) failing to adequately manage and steer motor vehicle PA 676"
The Claimant identifies the issues in the case as:
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(a) is the 1st Defendant and the 3rd Defendant as the principal of the 1st Defendant liable in negligence to the Claimant?
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(b) Are the 2nd Defendant and the 4th Defendant as the principal of the 4th Defendant liable in negligence to the Claimant? But there is also a third issue:
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(c) What is the effect of the 1st and 3rd Defendant's failure to file witness statements and attend court to be cross-examined?
The evidence of the Claimant Travia Douglas is that she was a passenger in the 1st Defendant Shivoughn Warde's car travelling east along the Frigate Bay Road when approaching the roundabout at by Dr. Simmonds Highway, suddenly she saw a motorbike with a Domino's Pizza sign on it, come out from the yard on the left hand side of the road. She was not sure which yard the vehicle came from, but it looked as if Shivoughn was going to hit the motorbike. To avoid hitting the motorbike Shivoughn swerved to the right and avoided the bike. The near collision happened quickly and she could not recall anything else about the accident. She was not wearing a seatbelt at the time of the accident.
Under cross examination Travia Douglas said that she could not recall how fast Shivoughn Warde was driving. She could not recall how far she was from the roundabout when she saw the motorbike. She saw that it looked as if Shivoughn was going to hit the motorbike because it was coming towards the vehicle she was driving in. She said the road was straight at that point.
This was the only eyewitness, at trial, giving evidence for the Claimant in the matter. The 1st Defendant gave no evidence. The 2nd Defendant denied the Claimant's version that he was about to collide with the 1stDefendant's vehicle. No other witness could provide any real insight into the accident. WPC Lindsay provides an opinion based on hearsay and the 2nd Defendant's witness Ms. Huggins generally supports the 2nd Defendant's story.
Javid Warner the second Defendant states that he was delivering a Pizza to a customer at St. Christopher Club in Frigate Bay but he had gone to the wrong location. He called the customer who gave him directions to the correct location. He looked up and saw the customer. She was standing outside a scooter rental shed just a little further up. He went back out of the yard on the scooter. He kept on the grass verge on the right side of the road and rode up to where the customer was and went to the customer. After he parked the scooter and was taking the scooter to the customer he heard a "bam," and heard someone scream. He looked around and saw a jeep turning over down the road.
Under cross-examination Javid Warner said that he did not notice a car coming when he turned and exited St. Christopher Club's parking lot to ride on the verge to the customer's location. He said that he rode the cycle out of the gate. He knew that he was approaching a major road. He said he stopped at the road. There were no vehicles and he rode on the grass. He was not on the public road. Although he knew he should ride on the left hand side of the road, in this case no vehicle was coming and he was not on the road at all. Where he rode on the grass verge was not unsafe. He heard a vehicle pass when he was delivering the pizza. He was going "real slow."
There is no evidence that the 2nd Defendant drove his motorbike in a manner which caused any obstruction on the road which forced the 1stDefendant to swerve away from the left hand side of the road to avoid causing an obstruction or a collision as the evidence taken at its highest may imply. I could sympathize with an argument which states that but for the manner in which the 2nd Defendant exited the St. Christopher Club premises there would have been no accident. But even if this is accepted can it be successfully argued that the manner in which the 1st Defendant managed her vehicle thereafter did not overtake the initial cause of the accident? There is no evidence to the contrary.
The law without doubt is that the Claimant must discharge the legal burden of proof on a balance of probabilities and in so doing she must show that the Defendants' acts contributed in some way to the accident which caused the Claimant's injuries. In order to answer issues a and b the Claimant and the Defendants must engage in the argument whether the Claimant has discharged the legal burden of proof against the Defendants in particular the 2nd and 4th Defendants.
Counsel for the Claimants mounted an elaborate argument in favour of a finding that the 2nd and 4th Defendants were liable in damages for the injuries caused to the Claimant. Summarized, the argument goes like this. Firstly there should be no doubt that the 1st Defendant was liable as a result of careless driving for the injuries suffered by the Claimant. The court should rely on a Magistrates Court conviction in the criminal (traffic) case in that court. But additionally the Claimant said she saw the 2nd Defendant about to obstruct the 1st Defendant's vehicle causing the 1st Defendant to swerve to avoid him before the accident. The 1st Defendant also made the...
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