Clark v Island Construction & Landscaping Services Ltd, Johnson and The Bermuda Telephone Company 1991 Jur. No. 320
| Jurisdiction | Bermuda |
| Judgment Date | 03 December 1992 |
| Date | 03 December 1992 |
| Docket Number | Civil Jurisdiction 1991 No. 320 |
| Court | Supreme Court (Bermuda) |
In the Supreme Court of Bermuda
Ward, J
Civil Jurisdiction 1991 No. 320
and
Mr. K. Unwin for the Plaintiff
Mr. J. Barritt for the 1st & 2nd Defendants
Miss Clare Hatcher for the 3rd Defendant
Fisher v Ruislip-Northwood Urban District CouncilUNK [1945] 2 All ER 458
Powell v PhillipsUNK [1972] 3 All ER 864
Swadling v CooperELR [1931] AC 1
Fardon v Harcourt-Rivington (1932) 146 LT 391
Personal injury — Damages — Road traffic accident — Negligence — Severe leg injury leaving disfigurement — Broken leg
The Plaintiff claims from the 1st and 2nd Defendants damages for personal injuries and loss and damage caused by the negligent driving of Johnson. the 2nd Defendant, the servant or agent of Island Construction & Landscaping Services Limited, the 1st Defendant. In addition damages are claimed against Bermuda Telephone Company, the 3rd Defendant, caused by their negligence in the management and supervision of repair work at Harrington Sound Road on the 11th March 1991.
The Plaintiff was riding his motorcycle in a westerly direction on Harrington Sound Road on the 11th March 1991 about 3 p.m. He said he was proceeding cautiously and that he saw three SLOW signs marked on the surface of the road and that he slowed his vehicle in order to take the bend leading to Shark Hole Hill. He gave his speed as between 40 and 45 k.p.h. prior to slowing down to the speed of 35 to 30 k.p.h. He knew the road well having travelled it twice daily to and from his place of employment. He must have known the dangerous nature of the bends.
Evidence disclosed that he was under the mistaken belief that the speed limit was 50 k.p.h. when in fact, it is 35 k.p.h. He described how he was surprised by a tractor trailer in his lane travelling at a very slow speed. He said he downshifted his gears and applied his brakes, the motorcycle skidded out of control and he collided with the tractor trailer.
Under cross-examination he conceded that perhaps he should have been travelling more slowly. He said he saw the tractor trailer which had overtaken something and observed that the cab part of it was slowly getting back into its proper lane with the trailer across the road in his lane snaking around behind the cab.
He conceded that even with the tractor trailer in this position. there was room enough left in his lane for him to pass in safety. He added that he did not hear the horn of the tractor trailer before colliding with the same, although after hearing evidence from other parties on this point, it is difficult for me to understand why he did not.
Many witnesses agreed that the tractor trailer has a very loud horn and that it was being blown repeatedly. The horn in fact is so loud that it was described by the witness Johnson as being unhealthy. Johnson, the driver of the tractor trailer, observed the Plaintiff to be riding in the middle of the west bound lane with his head down a bit as if avoiding the rain. He described how as the tractor trailer came to a point in the road where it would have been visible to the Plaintiff, the latter, as if surprised, lunged forward grabbing his brakes and clutch levers, whereupon he lost control of the motorcycle as it skidded across the road and he fell.
Johnson estimated the distance that the bike skidded to be some fifty feet. After the accident, the greater part of the Plaintiff's body was in the lane of the tractor trailer.
The witness Doyle on the day in question. was driving a truck behind the Plaintiff along Wilkinson Avenue and Harrington Sound Road. He said that initially he was one car's length behind the Plaintiff's motorcycle, but as they travelled along Harrington Sound Road, the distance between the two vehicles widened. He stated that the cyclist did not appear to slow down much for the bends. He gave the cyclist's position in the lane as being 1/2 to 1/3 to the center. He estimated the speed of his truck to be 40 to 45 k.p.h. at first, and on the bends to be 30 to 35 k.p.h. If his evidence is accepted, the inference to be drawn is that the plaintiff was riding at a faster speed than that at which the truck was travelling.
The witness Moniz said that the Plaintiff seemed to be leaning to the left as he negotiated the bend and applied his brakes suddenly.
Johnson described how as he was coming down the hill near the Marriott Castle Harbour dormitories, he was blasting his horn many times to warn oncoming traffic of his approach. He said he was taking this precaution because of the size of the tractor trailer, some 57 feet 8 inches long, with a width of 7 feet 10 inches to the front and 8 feet to the rear and also he said because of the size of the tractor trailer, it was necessary for him to go wide on the bend so as not to strike the wall on the near side. The tractor trailer was a left hand drive which made it easier for the driver to keep very close to the left side of the road. All the witnesses agreed that the tractor trailer was travelling very slowly.
Johnson said that he did not see the Telco caution sign in the east bound lane before he began to negotiate the bend and that when he did see the...
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