Court orders father, son to pay $4.3m after negligent overtaking leads to collision

The driver of a Mercedes-Benz that collided with an Audi Q5 causing it to crash into a wall seven years ago has been ordered, along with his father, to pay $4.3 million in damages plus interest. The order was made after the court found that he was speeding and was negligent when he attempted to overtake the motor vehicle.

Justice Tania Tulloch-Reid was asked to rule on the matter after both parties refused to accept responsibility for the accident, which occurred in the wee hours of the morning on February 12, 2017, along Constant Spring Road in the vicinity of Springvale Avenue, St Andrew.

The claim was filed in the Supreme Court by claimants Franklyn Arboine and his daughter Kimberly Arboine, owner of the Audi Q5, against defendants Jason Williams, the driver of the Mercedes-Benz, and his father Moses Williams, who owned the vehicle.

At the time of the incident Kimberly’s boyfriend, music producer Jamie Roberts, was driving the Audi and appeared in the matter as the third ancillary defendant alongside the Arboines after the Williamses filed a counterclaim.

Roberts, who gave evidence on behalf of the Arboines, said on the morning of the accident he was coming from an event and was travelling with three passengers on Constant Spring Road towards Manor Park when he was hit after slowing down in the vicinity of Phil’s Hardware to turn on to Springvale Avenue.

Roberts said he was in the centre of the road and was about to turn right when he felt the impact which caused damage to the door on one side of the car and the rear of the vehicle.

Jason, in his evidence, said he was driving the Mercedes-Benz along Constant Spring Road heading towards Mannings Hill Road with his headlights on and no other cars were on the road.

He said after observing a red light at the intersection of Constant Spring Road and Dunrobin Avenue, he noticed a car stationary ahead of him in the left lane and when the light changed he proceeded through the intersection and collided.

According to Jason, he was unable to swerve from the Q5 as he was too close, resulting in the left front section of his vehicle colliding with the back right section of the Q5.

CONTRADICTING ACCOUNTS

Under cross-examination from the Williamses’ lawyer, Mark-Paul Cowan, instructed by Nunes Scholefield DeLeon and company, Roberts admitted that he never put in the statement that a vehicle was waiting behind him when he had slowed down and stopped and further that he did not see any vehicle approaching.

Jason, who was adamant that he had checked his rearview mirror, disagreed with a suggestion that he would have seen Roberts had he checked the mirrors.

Further in the cross-examination, he rejected the suggestion that the accident happened because he turned suddenly into the pathway of the Audi and that the accident happened because he failed to consider whether any vehicles were coming behind him.

During cross-examination from the Arboines’ lawyer, Leonard Green, Jason disagreed that his vehicle hit the Audi and that he did not think the collision was a major hit.

He maintained that he was not distracted or tired on the morning in question and that it was Roberts who was negligent in his handling and operation of the Q5, as he turned across his path when it was unsafe to do so. At the same time, he agreed that the collision caused the Q5 to move directly off the road over to a right fence.

Jason also denied a suggestion that he had been speeding. According to him, he was driving at 55 km per hour. He also disagreed that he was not careful in his approach of the vehicle that was stationary ahead of him while insisting that he had blown his horn, indicated and followed all the road codes.

However, he said before that he had put on his right indicator and positioned his motor vehicle in the right lane, blew his horn and sped up to pass and that was when the Q5 suddenly and without warning turned right across his path.

Cowan, in his submissions, argued that it was Roberts who was negligent when he proceeded to turn the motor vehicle across the roadway and that he had a duty to persons travelling in the same direction who would wish to pass.

He also contended that no evidence was presented to show the speed at which his client was travelling and that alleged breaches of the road code are not determinative as to questions of negligence which are highly fact sensitive.

Green, however, submitted that Jason had a duty of care to take special precaution when he tried to overtake the Audi as he had seen the car ahead when he stopped at the traffic light.

He also pointed out that the unchallenged evidence that the Benz collided into the rear of the Q5 swung the pendulum of liability strongly in favour of Roberts.

Green said the impact which caused the Q5 to spin clockwise and hit the wall of Phil’s Hardware, which was on the other side of the road, was evidence that the collision was not “a mere fender bender”.

He argued that, “The blowing of horn, trying to swerve and inability to avoid the accident was more consistent with reckless and careless driving in the wee hours of the morning in question.”

DO NOT OVERTAKE AT INTERSECTIONS

Justice Tulloch-Reid, in her recently published judgment, noted that one of the rules of the road for overtaking in Jamaica is that motorists are not to overtake at intersections.

“Overtaking is not permitted at intersections, road junctions, curves, bends or the brow of a hill. It would therefore be negligent for a motorist to attempt to overtake at a point in the roadway where two roads intersect, especially at a point in the road where a motor vehicle was positioned to make a turn,” the judge said.

She also rejected Jason’s evidence that Roberts was not positioned to turn on to Springvale Avenue based on the damage to both motor vehicles.

Instead, she found that Jason had breached his duty of care when he attempted to overtake the Q5.

“I find that on the facts of this case and the evidence before me, that Mr Roberts’ account of how the accident occurred was the more credible account, as it coincides with the evidence contained in the expert report of the adjuster, Mr Peter Thomas,” she said.

“In addition, even without that evidence, based on the damage to both motorcars … if Mr Roberts had turned suddenly on Mr Williams, then the right front of the Audi would be damaged and not the right rear panel,” Justice Tulloch-Reid further concluded.

The defendants are to pay the special damage award plus interest at three per cent per annum from February 12, 2017 to December 17, 2024.

Attorney-at-law Nyron Wright appeared with Green from Chen, Green and Company law firm.

tanesha.mundle@gleanerjm.com