Mrs. Samira Musa Pott for the Plaintiff
Mr. Nicholas Dujon for the Defendant

Road traffic accident - Personal injuries suffered by Plaintiffs -
second Defendant liable for causing accident - Assessment of
special and general damages - Applicable principles.

J U D G M E N T

1. This case arose out of a road accident which occurred on 7th September 1998 at about 4:30 p.m. at the intersection of Central American Boulevard and the Western Highway. The plaintiffs were school children at the time of the accident and were crossing the intersection of the Central American Boulevard and the Western Highway and were together with a school friend of theirs, Theresa Sutherland, heading towards the direction of the Port Authority on their way from school. The two Plaintiffs were aged 13 and 15 years old respectively at the time of the accident.

2. The Second Defendant was at all material times the driver of a towhead truck with the number plate SC-A-874 belonging to the first Defendant. This vehicle was variously described in evidence as "truck with a trailer attached", "big truck", "an eighteen wheeler" and "a trailer truck".

3. As a result of an Order pursuant to Order 38 Rule 4 of the Supreme Court Rules, Theresa Sutherland testified before the Registrar as she had to travel out of the jurisdiction before the trial in this case could commence. She was duly examined before the Registrar on 14 December 2000 and the transcript of her testimony was admitted in evidence and made available to the Court.

4. From the evidence it appears that as the plaintiffs and their friend, Theresa Sutherland were about to cross the intersection there was an accident involving the plaintiffs and the vehicle. On a visit to the scene of the accident by me together with the parties and their attorneys on Thursday, 18 January 2001, at about 2:30 p.m., it was discovered that although both sides had referred to the stretch of the road after the roundabout on Central American Boulevard as "Western Highway", it is in fact a continuation of Cemetery Road which leads into Western Highway proper. Nothing of any import however, turns on this. It was agreed by both sides that the part of the median dividing the road just after the roundabout was there at the time of the accident although no longer so on the date of the visit.

5. As a result of the accident, the two Plaintiffs who are minors, sustained injuries and brought this action through their mother as their best friend, against the two Defendants.

6. From the evidence, it emerged that the two Plaintiffs together with their friend, Theresa Sutherland, were on 7 September 1998 around 4:30 p.m. on their way from Pallotti High School. They walked along the sidewalk on Central American Boulevard going towards the Port Authority from the Belcan Bridge. On reaching the intersection of Central American Boulevard and the road all the parties referred to as the Western Highway, the accident happened.

7. The first Plaintiff said that at that point she looked left, right and back to see if anything was coming before she proceeded to cross the road. But on reaching the middle of the road she noticed a truck slowed down in front of her and she saw the driver of the truck and his passenger look at her and, the passenger who was actually a sideman to the driver, shouted something flirtatious to her. She said that she immediately stepped back as she realized the driver was not going to let her continue crossing the road. She then felt some impact on her head. The next thing she remembered was that she woke up in a vehicle with a terrible pain in the back, and her right side. She was unable to sit up properly and she noticed some blood coming from the right side of her leg. She later found herself in hospital where an x-ray disclosed that her pelvic bone was broken.

8. She stayed for almost two months in hospital and while there a lump on the right side of her leg had to be surgically removed which left her with a scar. She continued to receive treatment and had to use crutches but with her continued headaches and dizziness she had to see a neurologist. She visited several doctors because of her headaches and dizziness.

9. She was only able to return to school in January 1999. Back at school, Ms. Marlene Thelda Lizama a teacher of who the first Plaintiff was a former student, testified that she noticed that she was no longer walking normally as before, and wasn't behaving the same way as before and that she became frequently ill and had seizures and had to be taken to the hospital on a number of occasions from school.

10. The second Plaintiff also testified as to how the accident happened. She stated that in reaching the intersection I have already referred to, together with the first Plaintiff and Theresa Sutherland, and that just as she was about to cross the road, a truck suddenly came in front of them. She saw the sideman of the truck had his body halfway out of the truck and said to them "I like to see you." She stepped back and it was at that point the first Plaintiff got hit by the truck and she fell to the ground and was moaning. She noticed another set of wheels of the truck coming towards her, she managed to drag her out of the way, but the wheel of the truck ran over her own left ankle.

11. The second Plaintiff testified that she suffered constant pain from her bruised left ankle. A later examination of her foot confirmed that her left ankle was broken. She said that the foot was put in a cast for a month and she had to use crutches, later therapy and exercises.

12. Theresa Sutherland who was present with the plaintiffs on that day also testified as to how the accident happened in much the same way as the plaintiffs. She stated that at the intersection as they were crossing the road, she noticed the truck come in front of them and the sideman in the truck had half of his body out of the window pointing and shouting flirtatious words. She testified that she then grabbed on the second plaintiff so they could move back. She also saw the second plaintiff grab the first plaintiff. Then she heard horns behind the truck which then sped off, after the trailer part of it had hit the first plaintiff on the left side of her head.

13. The second Defendant testified as well as to what happened. He testified that on 7 September, 1998 around 4:30 p.m. he was driving a tow-truck which had a 45 feet trailer attached to it, along Central American Boulevard and heading towards the Western Highway. He noticed three young ladies in white uniforms on the sidewalk. At the intersection he put on his signal to make a right turn and continue on the Western Highway.

14. He testified that while making the turn, he had to check with the sideman, Jason Saldano, in order to see if the trailer was clear of traffic or pedestrian. He said however, that with the length of the truck they had to make a wide turn nearly touching the median line. And while making the turn, he asked his sideman Jason to look on his side because it was a blind turn.

15. He stated that Jason stretched out to look and when the truck was more than three-quarters on the Western Highway, shouted: "Girl stop - boy you knocked down somebody." He said that he stopped immediately and got out of the truck, ran toward the back and there he saw a young lady (presumably the first plaintiff) lying on the street.

16. Jason Saldano testified for the defendants. He testified that on that day he was a sideman in the towhead truck driven by the second Defendant. He stated that at the intersection already mentioned, the second Defendant told him to look back to make sure everything was clear. He said he did this by pushing half of his body and shoulders out of the window of the truck. He said he saw no one outside and everything was clear. He testified that he then looked at the driver and then looked out again and saw three girls stepping off the sidewalk into the street. He also said that the back end of the trailer was close to the three girls. He said when he saw them step off he shouted: "Gal stop." But everything happened in a flash and by the time he could say "Gal stop", the back wheel of the trailer, he said, knocked the young girl (again presumably the first plaintiff). He said the other young girl went to the aid of the other and he turned around and said to the driver: "You have knocked somebody." The driver immediately stopped and went to assist.

17. On the issue of liability for the accident, the Defence avers that the matters complained of by the plaintiffs were caused or contributed to by the negligence of the plaintiffs themselves. I find however that on the evidence, the accident was cause by the negligence of the second Defendant who admittedly had to drive and manouevre a vehicle of the size he was driving on that day with the aid of a sideman as a co-pilot as it were. It is the negligence of the second Defendant in negotiating what must at the time, have been a tight turn that caused the accident involving the plaintiffs. I am consequently unable to find, on the evidence, that any action on the part of either plaintiffs contributed in any way to cause the accident which resulted in the damages they sustained as a result of it, or that any action on their part contributed to the damages they suffered. I therefore find and hold the Defendants liable.

18. As a result of the accident both plaintiffs suffered personal injuries. In the case of the first plaintiff, this included closed fractures of the anterior part of the pelvis, with slight displacement of the bones on the left; injury to the soft tissues of the upper right thigh with haematoma over the right thigh; a permanent vertical scar over the lateral aspect of the upper right thigh; and head trauma with consequent epileptic attacks. Dr. Alvares Jose, a medical doctor, testified as to the epileptic fits suffered by the first plaintiff. He stated that she will continue to need medication for sometime to come. In the case of the second plaintiff, the injuries involved fracture of the distal third of the left Fibula and persistent edema and pain in the left ankle.

19. As a result of these injuries, the mother of the plaintiffs, Adi Rodriguez testified as to the expenses that were incurred. These are pleaded and claimed in the particulars of the special damages suffered by the plaintiffs. However, I notice that the same amount of $1,770.00 is claimed by the first Plaintiff in respect of transportation to and from hospital and to and from school, as is claimed by the second plaintiff in respect of transportation to and from school. In answer to questions by Mr. Dujon for the Defendants, Adi Rodriguez agreed that if the plaintiffs had traveled in the same taxi, this expenditure would be halved. I therefore award only half of $1,770.00 claimed by each plaintiff.

20. I also award one-half of $425.00 claimed by each plaintiff in respect of wages for home help. That is, $212.50 to each plaintiff. Therefore, in respect of the first plaintiff I award the sum of $7,212.39 as special damages. In respect of the second plaintiff, I award the sum of $1,497.50 as special damages.

21. Turning to the question of general damages for the pain and suffering and loss of amenities suffered by the two plaintiffs, I have already described their injuries. I am however mindful that they are both young girls and in their teens and will, it is hoped, with time make sufficient recovery. But I must also bear in mind that in the case of the first plaintiff, she now suffers from an epileptic condition which can reasonably be described as the petit mal variety and will continue to require medication for some time, according to the evidence. I therefore award the sum of $150,000.00 as general damages to the first plaintiff.

22. In the case of the second plaintiff, I hope her ankle will become strong again to enable her to get on with her life, I award her the sum of $12,000.00.

23. Accordingly, I adjudge and hold that the Defendants shall pay to the plaintiffs as follows:

1) The First Plaintiff:

2) The Second Plaintiff:

I also order that the respective sums to each Plaintiff shall bear interest at the rate of 3% from the date of the writ in this action.
24. The Defendants shall pay the Plaintiffs' costs to be taxed if not agreed.