Atekah Defreitas v Alvin Deane
| Jurisdiction | Turks and Caicos Islands |
| Judge | Mr Justice Anthony S. Gruchot |
| Judgment Date | 23 November 2023 |
| Court | Supreme Court (Turks and Caicos) |
| Year | 2023 |
| Docket Number | ACTION NO. CL-43/17 |
The Hon. Mr Justice Anthony S. Gruchot
ACTION NO. CL-43/17
IN THE SUPREME COURT
Ms Devon McLean and Mr Yuri Saunders on the 21st November 2022 and Ms Devon McLean and Ms Andwena Lockhart on the 13th January 2023 of Stanbrook Prudhoe for the Plaintiff
Mr Mark Fulford and Ms Chloe McMillan of F Chambers for the 1st Defendant.
1. This is the judgment following a liability-only trial.
2. This matter arises from a road traffic accident that occurred on 21st December 2015 on Leeward Highway, Providenciales, Turks and Caicos Islands in the vicinity of the Cherokee Road/Scotiabank junction.
3. Ms Defreitas was at the time of the accident, a passenger in Mr Seymour's motorcar (‘the Plaintiffs’ Vehicle). Mr Seymour is her husband and at all material times the driver of the Plaintiffs' Vehicle.
4. The proceedings have had somewhat of a prolonged history. Proceedings were commenced by Ms Defreitas alone, by way of Writ of Summons filed on 29th March 2017 by Misick and Stanbrook, attorneys, seeking damages for negligence, although in truth, the claim is for damages for personal injury and associated losses arising from the accident allegedly caused by the 1st Defendant's negligence.
5. On 9th June 2017 F Chambers, attorneys, acting on behalf of the Defendants issued a third-party notice against Mr Seymour, seeking an indemnity (albeit that is not actually pleaded), alleging the cause of the accident was the negligence of Mr Seymour, and also claiming damages against Mr Seymour with respect to the damage to the 2nd Defendant's vehicle, which was being driven by the 1st Defendant.
6. Although F Chambers acknowledged service on behalf of both Defendants, CBMS Ltd. has not filed any evidence and made no appearance at the liability trial. CBMS Ltd. presumably has been joined as being vicariously liable for the alleged negligence of Mr Deane although such claim has not been pleaded nor is any claim for relief against CBMS Ltd. set out in the prayer to the Amended Statement of Claim.
7. On 19th June 2017 a Defence was filed repeating the allegations in the third-party notice.
8. On 4th December 2017 notice of change of attorneys was filed placing G. C. Clarke and Associates on record as acting for Ms Defreitas and Mr Seymour.
9. On 18th December 2018 an application to strike out the action for want of prosecution was heard. The application was refused and the Court gave directionsincluding listing a trial on liability on 11th February 2019. That trial did not go ahead.
10. The matter came before the Court on 17th April 2019 on the Defendants' application for an adjournment of the trial1 on the basis that the parties were exploring settlement. The matter was listed for mention on 24th April 2019 at which time further directions were given and a liability-only trial was listed for 19th June 2019.
11. On 30th May 2019 G. C. Clarke and Associates filed a ‘Notice of Withdrawal’ as attorneys for Mr Seymour. On 18th June 2019 G. C. Clarke and Associates applied to withdraw as attorney for Mr Seymour, presumably having realised that a Notice of Withdrawal is not permitted by the rules.
12. On 19th June 2019, the trial did not progress. The Court observed that Mr Seymour should properly be joined as a plaintiff and went on to grant leave to Ms Defreitas to amend the Writ and Statement of Claim to join Mr Seymour as a plaintiff. The third-party notice was set aside and leave was granted to the Defendants to file an amended defence and counterclaim. The Amended Writ and Statement of Claim were filed on 6th August 2019 and the Amended Defence and Counterclaim were filed on 2nd September 2019.
13. The matter was listed for a pre-trial review on 13 August 2020. Issues were taken in respect of the Amended Writ and Statement of Claim on the basis they went beyond the scope of the leave granted on 19 June 2020. Directions were given for the Plaintiffs to apply for leave to amend the Statement of Claim and the matter was listed for a three-day trial on the 24th, 25th and 27th August 2020, presumably overlooking the Order splitting the trial. That trial date was not met.
14. On 20th October 2020 Stanbrook Prudhoe2 filed a notice of change of attorney on behalf of the Plaintiffs. Nothing then occurred until Stanbrook Prudhoe filed a notice of intention to proceed on 6th September 2021. On 19th May 2022, the matter came before Aziz J on an application by the Plaintiffs in relation to adducing further witness evidence.
15. The application was adjourned but he ordered that a liability-only trial be set for 21st November 2022.
16. The matter came back before Hylton J on 19th July 2022 where he dealt with the application for further evidence, giving his decision on 5th August 2022 allowing the application.
17. Leeward Highway is a dual carriageway road, that is to say, in each direction, there are 2 lanes. There is often confusion in the jurisdiction describing in which of the 2 lanes a person was driving. The convention that is used in the UK is that the lane nearest the curb (or sidewalk) is known as the ‘inside or nearside lane’ and the lane nearest the central reservation or median is the ‘outside lane’. This is often transposed by witnesses giving evidence in the Turks and Caicos Islands who adopt the US convention. For the purposes of this judgment, I shall adopt the UK convention.
18. On 21st December 2015 at approximately 1:00 p.m. Mr Deane was driving a fully laden ‘Mack’ construction truck (‘the Truck’) along Leeward Highway in an easterly direction in the vicinity of the junction of Cherokee Road, known locally as the Scotiabank junction, in the outside lane. Mr Deane was an employee of CBMS Ltd. and at all relevant times was acting in the course of his employment.
19. It was or had been raining and the road was wet.
20. There is a break in the central reservation opposite Cherokee Road (‘the Break’). This is to allow vehicles exiting Cherokee Road to turn right to travel in a westerly direction on Leeward Highway. A vehicle executing such a manoeuvre then has the benefit of a slip lane on the westerly carriageway to gain speed and merge safely into the westerly traffic flow. Likewise, a vehicle travelling in a westerly direction turning right into Cherokee Road has the benefit of a slip lane to pull out of the westerly traffic flow and slow down or stop to safely execute the right-hand turn.
21. U-turns through the Break are not permitted. Likewise, it is not permitted for a vehicle travelling in an easterly direction along Leeward Highway to execute a right-hand turn through the Break (for example to enter business premises (Kishco) on the south side of Leeward Highway). This is evident by the fact that there is no slip lane on the eastbound carriageway to allow any right-turning vehicle to safely pull out of the easterly traffic flow and wait for a safe gap in the westerly traffic flow. It is not possible to enter the business premises situated immediately to the south of the Break3. The entrance is some distance to the west of the Break. Any vehicle attempting this manoeuvre would have to perform an illegal U-turn and also cross both lanes of traffic.
22. It is the Plaintiffs' pleaded case that they were travelling in an easterly direction when the vehicle in front of them indicated that it was to make an illegal right turn through the Break and began to slow. Mr Seymour then began to brake in order not to collide with the vehicle in front when he was struck from behind by the Truck.
23. Mr Deane's case is that as he approached the Break in the central reservation, the Plaintiffs' Vehicle performed an illegal U-turn and pulled out into the easterly traffic flow directly in front of him, it initially having been travelling in a westerly direction. Mr Deane says it did so, not giving sufficient time for Mr Deane to take any evasive action and hence he collided with the Plaintiffs' Vehicle.
24. I heard evidence from the parties, Ms Defreitas, Mr Seymour and Mr Deane. I also heard evidence from police officer Felicia Robinson, who attended the scene of the accident.
25. The Court was not afforded any expert evidence, such as a crash reconstruction expert or report, nor any independent witness who saw the accident.
26. A report dated 6th December 2016 prepared by West Indies Chartered Loss Adjusters (‘the Loss Adjuster's Report’) for Guardian General Insurance Ltd (the Defendants’ insurer) was included in the trial bundle but not referred to by either party. The
writer of the report does not appear to have been apprised of the Plaintiffs' version of events and other than describing numerous included photographs of the locus in quo and the damaged vehicles that were involved, the writer provides no opinion as to how this accident may have occurred. The report also provides no detail as to the extent or value of any property loss incurred by either party.27. With respect to the above report, Ms McLean submits that notwithstanding that Officer Robinson was taken to some of the photographs in that report by the Court4, the Court should give no weight or consideration to it as it “was included by the Plaintiffs' in the Trial Bundle in the event that the Defendants intended to put the report into evidence”. I do not accept Ms Mclean's submission. The Loss Adjuster's Report had been disclosed during the discovery exercise, included in the trial bundle and was before the Court. In the event, the narrative of the report is to a great extent unhelpful. The photographs contained in the report help identify the position of various road/building features and assist in interpreting issues to be decided by the Court. Accordingly I make reference to the same in this judgment.
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