Glenda Williams v Francis Wilson Auguste Etienne Juliana Etienne
| Jurisdiction | St Lucia |
| Judge | Cenac-Phulgence, J |
| Judgment Date | 04 September 2020 |
| Judgment citation (vLex) | [2020] ECSC J0904-1 |
| Court | High Court (Saint Lucia) |
| Docket Number | SLUHCV2018/0535 |
| Date | 04 September 2020 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
The Hon. Mde. Justice Kimberly Cenac-Phulgence High Court Judge
SLUHCV2018/0535
Mrs. Lydia Faisal of Counsel for the Claimant
Ms. Cleopatra Mc Donald of Counsel for the Defendants
This claim is predicated upon a motor vehicle accident that occurred along the Castries/Gros Islet Highway (“the Highway”) on 9 th November 2015 at approximately 6:20 p.m., when motor vehicle registration number PE2087 (“the vehicle”) driven by the fist defendant Francis Wilson (“Mr. Wilson”) and owned by the second and third defendants Auguste Etienne (“Mr. Etienne”) and Juliana Etienne (“Mrs. Etienne”) respectively, collided with the claimant, Glenda Williams (“Ms. Williams”) as she proceeded to cross the Highway.
Ms. Williams alleges that the accident was caused by Mr. Wilson's negligence as a result of which she suffered injury, loss and damage. She alleges the following particulars of negligence against him: (a) driving too fast in the circumstances; (b) failing to pay sufficient attention to the nature and use of the road; (c) failing to pay attention to the fact that the road dissected a business and residential area and that both pedestrians and vehicles use the road throughout the day on a daily basis; (d) failing to swerve around her or to take any other evasive action; (e) failing to apply brakes in a timely manner or at all; and (f) failing to control the vehicle competently so as to avoid the collision. She therefore claims against the defendants, special damages, general damages, interest and costs.
She further claims that Mr. Wilson drove the vehicle as servant or agent of Mr. and Mrs. Etienne or was driving with their knowledge and consent and was a permitted driver under the insurance policy in respect of the vehicle.
The defendants deny negligence and allege that Ms. Williams crossed the Highway in a manner that was unsafe and thereby created a sudden danger, which Mr. Wilson could not have reasonably been expected to foresee or avert. The defendants therefore contend that the injury suffered by Ms. Williams was caused wholly, or in the alternative contributed to, by her own negligence. They allege the following particulars of negligence against her: (a) attempting to cross the Highway in circumstances when it was unsafe to do so; (b) failing to keep any or any proper lookout for oncoming traffic; (c) failing to heed or exercise due care and attention in crossing the Highway; (d) failing to wait until the Highway was clear in both directions before attempting to cross; (e) failing to keep well clear of oncoming traffic; (f) failing to wear high visibility clothing, alternatively wearing dark clothing such as was likely to diminish the ability of others to see her; (g) failing to see and/or heed the cast of the vehicle's headlights as Mr. Wilson approached her; (h) failing to hear and/or heed the sound of the vehicle's engine as he approached her; (i) crossing the highway in a reckless fashion such as was likely to result in injury; and (j) failing in the circumstances to take any or any adequate care for her own safety.
The defendants allege that Ms. Williams ought not to have crossed the Highway without first satisfying herself that all oncoming vehicles in both directions had stopped to permit her to cross. They contend, therefore, that she voluntarily or willingly accepted the risk of injury when she proceeded to cross the Highway in the manner she did. Taking into account the exigencies of the situation, they aver that Mr. Wilson took all reasonable care; and in the face of Ms. Williams' negligence, could not possibly have prevented the accident by the exercise of ordinary care, caution and skill.
Ms. Williams denies the allegations of negligence against her as well as the suggestion that she accepted the risk of injury by crossing the road as she did.
Three issues arise for determination:
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1) Whether Mr. Wilson, through any negligence on his part, caused the collision; or whether Ms. Williams, by any negligence on her part caused or contributed to the collision (“Liability”).
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2) Whether Mr. and Mrs. Etienne are vicariously liable for any negligence found on the part of Mr. Wilson (“Vicarious Liability”)?
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3) Whether Ms. Williams is entitled to damages and if so the quantum (“Damages”)?
Ms. Williams' evidence is that on 9 th November 2015 at 6:20 p.m., she was attempting to cross the Highway from the left side (facing Castries) to the right side in the vicinity of Bois D'Orange. She was waiting on the said left side for a chance to cross when a minibus driver, driving towards Castries, stopped and motioned to her to cross. She started crossing, and when she got to the center line of the road, stopped and awaited traffic flowing towards Gros Islet to ease so that she could complete crossing the Highway. Ms. Williams says she looked to her left, then to her right, and then to her left again before continuing. At the time she started to cross the latter half of the road, there was no vehicle in sight coming from the direction of Castries. She says she considered that she would have sufficient time to cross the road because she could see approaching vehicles from the direction of Castries for a long distance and none were in sight. She proceeded; however just as she was almost finished crossing and only about 6 inches from the edge of the road (the left side facing Gros Islet), the vehicle collided with her, hitting her on the left side of her body. She says she fell onto the ground to the left of the road and not onto the road itself.
Ms. Williams says that at the time, she was wearing a long white blouse with light coloured stripes and a black skirt. The area where the accident occurred was well lit as bright streetlights were on at the time. She was accustomed to crossing the road in that area as she had done each day for more than two months in order to get her bus to go home from work. To her knowledge there was no pedestrian crossing anywhere near that area.
Mr. Wilson's evidence is that at the material time he was driving northbound on the Castries/Gros Islet Highway. It was sunset and darkness had fallen. There was a light drizzle, the headlights of the vehicle were on, and traffic was heavy and slow moving towards Gros Islet at between 20 to 25 mph. Traffic in the southbound lane was also slow moving. Mr. Wilson says he was driving at 20 mph and careful to keep well behind the vehicle in front of him.
He says that as soon as he passed the Bois D'Orange bridge and upon approaching a garage around the bend, he suddenly saw a shadow fall across the windscreen. He did not know what it was and immediately jammed the brakes. Since he was driving at 20 mph, the vehicle came to an immediate and complete stop. He turned off the ignition and came out of the vehicle and saw a woman lying on the road in front of the point where he stopped. He noticed that she was wearing all dark clothing. He assisted her to the side of the road and awaited the arrival of the police. He gave his account of the accident to the officer, identified the point of impact and where Ms. Williams fell, and the officer took measurements. By his account, the distance between the left side of the road (facing Gros Islet) and the point of impact measured 3 feet 7 inches, and the distance from the point of impact to the center line of the road measured 8 feet 10 inches.
In response to Ms. Williams' statement that she stopped at the median point of the Highway and waited for northbound traffic to permit her to cross, Mr. Wilson says that southbound traffic was moving slowly and just before the point of impact there were no signals of danger such as flashing lights or hazard lights from the oncoming traffic. He says he became aware of Ms. Williams' presence only at the moment of collision. Mr. Williams stated that Ms. Williams created a sudden danger to herself by crossing the Highway in a manner and at a moment when it was unsafe to do so. Her actions gave him no time or space to avoid the collision and there was nothing that he could have done. Thus, she caused the accident.
PC Louisy is the investigating officer who was on duty on the evening of 9 th November 2015 and attended the scene of the accident. He is the officer who took Mr. Wilson's and Ms. Williams' statements and took the measurements. PC Louisy clarified that the traffic accident report, which was not prepared by him but was prepared from the notes he recorded in his pocketbook, contained a discrepancy. The traffic accident report stated the measurement from the point of impact identified by Ms. Williams to the left side of the road as 6 feet, but the distance shown to, measured, and recorded by him in his pocketbook was 6 inches. He therefore confirmed that 6 feet was an error that ought to read 6 inches.
Articles 985 and 917A of the Civil Code 1, contain the relevant law on negligence. Article 985 provides that:
“985. Every person capable of discerning right from wrong is responsible for damage caused either by his or her act, imprudence, neglect or want of skill, and he or she is not relievable from obligations thus arising.”
Article 917A provides that the law of England for the time being relating to torts shall mutatis mutandis extend to Saint Lucia, and that article 985, inter alia, shall as far as practicable be construed accordingly.
Article 986, which the defendant suggests is applicable to this case, is according to the dicta of Sir Vincent Floissac CJ in the case Northrock v Jardine 2 inapp...
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