Pedestrian loses challenge in the Court of Appeal

A PEDESTRIAN who was struck in her head by a metal bar at the entrance to York Plaza in Half-Way Tree, St Andrew, nearly eight years ago has lost her challenge in the Court of Appeal to get an increase in the damages of $375,000.

The appellant, Donna Greenwood-Walker, who suffered soft tissue injury and neck spasm, and had only received 75 per cent of the general damages because she was found to be partially responsible, was seeking $1 million.

She was, however, successful in getting Justices Patrick Brooks, Nicole Foster Pusey and David Fraser to attach interest on both the general and special damages in a counter-appeal.

Hence, Greenwood-Walker is to be paid three per cent interest on the 75 per cent special damages of $20,127 from March 13 to the date of the judgment and three per cent per annum on the general damages from the date of the service of the writ to the date of this judgment.

Greenwood-Walker was also awarded costs in the sum of $85,000 for the proceedings in the appeal and counter-appeal, to be paid by Veteran Security Limited (VSL).

She had sued security company, VSL, in the civil division of the then Corporate Area Resident Magistrate’s Court for negligence on grounds that a security officer from the company who was manning the gate on the day she was hit had caused the metal bar to hit her.

But the company, following the October 2015 ruling by then Magistrate Stephanie Jackson-Haisley, in return, had appealed the ruling, asking that judgment be given in its favour and that it not be held liable for Greenwood-Walker’s injury, but the high court upheld the lower court’s decision.

Similarly, the company was also unsuccessful in getting the high court to find that Greenwood-Walker was 75 per cent responsible for the injury received and to retract the ruling that Greenwood-Walker was 25 per cent contributorily negligent.

The lower court, despite accepting that the metal bar had caused Greenwood-Walker’s injury, had found that she was to be blamed partially because from the evidence it appeared that she had not been paying attention to what was ahead of her and as such had failed to take due care for her safety.

SECOND APPEAL DISMISSED

Likewise, the court also dismissed a second appeal which was brought by Greenwood-Walker for the court to set aside the findings that The Proprietors Strata Plan No 5d (PSP580), which hired the security company, was not vicariously liable for VSL actions under the Occupiers’ Liability Act, and also that both companies were not jointly liable in negligence and/or pursuant to the act.

The high court judges had agreed with the magistrate’s reasoning that there was no evidence that PSP580 had breached its duty of care since there was no evidence that it was aware of any defect with the barrier, or that a defect actually existed.

Consequently, a cost of $75,000 was awarded to PSP580 to be paid by Greenwood-Walker.

Greenwood-Walker, whose evidence was that she was four feet away from the metal bar on March 13, 2013, when she was hit in her head had argued that the general damages was inordinately low and were unreasonable and that she should be paid interest on the damages.

The security firm, on the other hand, contended that the magistrate had erred in her decision to find VSL responsible for the injury, as there was no evidence before the court to support the finding that the lady was under or to the side of the barrier when she was hit.

Furthermore, SVL submitted that it could not properly be held liable for the plaintiff’s injury, as based on the magistrate’s finding there was no severe defect to the barrier to allow it to swing out four feet to hit the plaintiff. Also, the firm argued that based on Greenwood-Walker’s evidence as to where she was positioned when she was hit, she could not have been hit or injured by the barrier.

As it relates to the contributorily negligent aspect, the firm submitted that Greenwood-Walker should be adjudged 75 per cent responsible for her injury if it is that she was under the bar when she was hit, as she would have failed to take care for her safety and given that there was a specific area for pedestrian to enter and exit.

For its part, PSP580 put forward that it could not be vicariously liable for the actions of VSL since the task of securing the property and manning the entrance had been delegated to VSL as an independent contractor.

Attorneys Andrew Irving, Lorenzo Eccleston and Pauline Brown-Rose represented VSL, Greenwood-Walker and PSP580, respectively.

tanesha.mundle@gleanerjm.com