Marcel Fevrier Jenny Fevrier Claimants v Bruno Canchan Asphalt Product et Al the Succession of Joseph Felicien Defendants [ECSC]
| Jurisdiction | St Lucia |
| Judge | d'Auvergne, J. |
| Judgment Date | 28 March 2002 |
| Judgment citation (vLex) | [2002] ECSC J0328-5 |
| Court | High Court (Saint Lucia) |
| Docket Number | CIVIL SUIT NO. 313 OF 1989 |
| Date | 28 March 2002 |
IN THE HIGH COURT OF JUSTICE
CIVIL SUIT NO. 313 OF 1989
On the 21st October 1986 at about 9:00 p.m. an accident occurred on the Castries/Gros-Islet Highway near the Marina involving the following vehicles namely, motor vehicle, a van Registration No. T6004 belonging to the Claimants, Motor vehicle, a Truck Registration No. T3888 belonging to the Second-named Defendant and Motor vehicle, a mini bus Registration No. H2776 belonging to the deceased Third-named Defendant. At the time of the accident vehicle registration No. T3888 belonging to the Second-named Defendant and driven by the First-named Defendant who was then the second-named Defendant's agent, was parked on the left hand side of that road facing Gros-Islet.
The Claimants gave evidence on their own behalf and called two witnesses.
The First-named Claimant told the Court that he was a Civil Servant attached to the Ministry of Health employed as Chief Environmental Health Officer; that he lived at Bois d'Orange Gros Islet and was the husband of the Second-named Claimant.
He said that on the 21st October 1986 he owned a four month old Motor Van Registration No. 6004 valued at $35,000.00; that the said vehicle was owned jointly with the Second-named Claimant; that on that day he had driven his van from Castries to Gros-Islet and at 9:00 p.m. was returning from Gros-Islet to his home at Bois d'Orange on the Castries/Gros-Islet Highway; that his wife sat on the passenger side of their vehicle.
He told the Court that on his way to Gros-Islet he had observed a truck filled with aggregate parked on the left hand side of the road near the "A" frame houses and Mako sports facing Gros-Islet; that there were no lights or reflectors on that truck but only two orange or pinkish cones immediately below the back of the truck which could only be seen on close proximity to the truck.
He said that at 9:00 p.m. while traveling to Bois d'Orange in the direction of Castries near the "A" frame houses in the vicinity of where he had seen the parked van, he saw from a distance of about 150 feet a green van zig zagging being driven reasonably fast coming towards him; that when that vehicle was about 80–100 feet away from him he stopped his vehicle and parked on the left hand side of the road; that the incoming vehicle smashed into the front of his stationary vehicle injuring both his wife and him. He told the Court that they were trapped in their vehicle and in his case, for another hour and a half; that he sustained a fracture to his left leg; fractures of the toes of both feet, a fracture of the right hip and a fracture of the right knee; that he suffered tremendous pain, was hospitalized fortwo months and remained out on sick leave for a further four (4) months. He said, "during that period, I was in bed most of the time I was suffering. I could not move around."
He said that he was claiming $3,000.00 the costs of hospital expenses, $35,000.00 the value of vehicle No. 6004, general damages for pain and suffering, for loss of amenities and negligence and also the costs incurred for the case.
The Second-named Claimant confirmed the evidence of the First-named Claimant. She said, "the approaching vehicle continued at a very fast speed and ran directly into our vehicle at a slight angle;" that after the collision she suffered excruciating pain to her right thigh and right side of her head and a drop in the thigh where it was broken; that after her discharge from Victoria hospital after three months, she remained on sick leave for a further six months, that she was unable to walk because of the fracture of her right femur.
She further told the Court that because of the broken right femur she suffered pain to her spine and that her right leg was shortened; that as a result, all her right shoes had to be raised to compensate the shortening of that leg; that she could no longer enjoy too much dancing and other outdoor activities as she was accustomed to do.
She also told the Court that she was 25 years old at the time of the accident; an Environmental Health Officer employed with the Ministry of Health as a Field Officer and that at the time of the accident her children were five years and three years old respectively. She was also claiming damages for pain and suffering, for loss of amenities, general damages for negligence and costs of the action.
Dr. Richardson St. Rose, a Surgeon of many years standing told the Court that he examined and treated the Claimants. He said that when he saw the First-named Claimant on the 22nd of October 1986 he had the following injuries; a six inch laceration to the right knee region, a six inch laceration to the outer aspect of the right leg, a commuted fracture of the left tibia and fibula, fracture dislocations of the metacarpals and metatarsal joints in both feet; that on the 28th day of October he did an operative reduction and K wire fixation of the fractures and dislocation of his feet; that the fractured tibia and fibula were manipulated, reduced and immobilized in a plaster cast and that the First-named Claimant was incapacitated for about six months. He told the Court that the injuries in the feet may result in chronic pain and produce permanent disability of about 2%.
He said that when he examined the Second-named Claimant she suffered from the following injuries; abrasions and superficial laceration over her body and a commuted fracture of the right femur, that he performed surgery on her on the 28th October 1986 and inserted a K wire into her femur; that she was incapacitated for about six months. He said that there was a one (1) inch shortening of the right lower limb which would produce chronic joint pains in that limb, resulting in a permanent disability of about 10%.
Clement Christopher Ettienne retired civil servant told the Court that on the day in question accompanied by his wife and daughter he left his home at Reduit Orchard, Gros-Islet and visited his deceased brother at Bonne Terre. He said that while driving to his destination at about 7:00 p.m. he observed a parked truck on the left hand side of the road facing Gros-Islet; that on his return journey at about 9:00 p.m. he stopped to allow a van to proceed ahead of his and kept at a distance of approximately 50 yards behind that van. He was driving at about 35 to 40 miles an hour; that he heard an impact and noticed, "an oncoming minibus began to swerve to and fro"; that the van in front of him came to a stand still and that oncoming minibus crashed head on into the van ahead of him.
He said that he immediately went to the scene and recognized the Claimants; that the First-named Claimant was seated on the driver's side of the van and he spoke with him; that he also spoke to the Second-named Claimant and then went to the minibus.
He told the Court that he observed the driver of the minibus lying over the steering wheel bleeding from his mouth, nose, eyes and ears; that he lifted the driver's head which dropped and that he came to the conclusion that the said driver appeared to be dead.
He said that the two collided vehicles appeared as if welded together; that after much banging and lifting of both doors of the van which were jammed, with the assistance of twoother men the Second-named Claimant was removed from the vehicle but it took about three hours to get the First-named Claimant out of the vehicle.
Under cross-examination this witness said that it was his view that the driver of the minibus was traveling with speed; that he heard the impact, that he had not seen the parked truck before the impact but he "knew it was there"; that there were no lights or reflectors on the truck. He categorically said that after the impact the minibus "went out of control".
He told the Court that he concluded that since he was able to maintain 16 feet from the van after it overtook him, it was his belief that the van was being driven at the same speed as he was driving his vehicle viz 35 to 40 miles an hour.
BRUNO CANCHON the First-named Defendant told the Court that on the day in question he was employed as a driver by the Second-named Defendant of which Oliver Sampson was the owner.
He said that on that day he was driving truck T3888 with a load of3/4 inch stones to Cap Estate. He was accompanied on that trip by a mechanic named Ezra Alphonse.
He told the Court that when he arrived in the Rodney Bay area he noticed that the deferential of the truck was broken so he parked it on the verge, as close as he could to the water's edge. He said that the vehicle was parked on the left hand side of the road facing Gros-Islet with "three wheels on the pitch and the other on the grass;" that he left one functioning reflector at the back of the truck.
Under cross examination he said that he had placed oil in both the truck and the deferential at least one week before, that the deferential had broken down "at least twice before; that the last time was three months before that date", that he intended to have the truck repaired but he could not get hold of his employer and therefore the truck had to remain in its parked position till the following day.
He further said, "I took no precaution about light since I did not expect the truck to be there for the night. I did not place any cones. The reflector was on the right side; if clear would reflect light, if dirty would not reflect light …" He concluded by telling the Court that the reflector was not dirty and that there was sufficient space on the road near where the truck was parked for two vehicles to pass freely.
Oliver Sampson told the Court that he owned Asphalt Products Company Ltd., the Second-named Defendant and that...
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