THE COURT of Appeal has overturned a $2-million Supreme Court award to a 14-year-old boy who was injured 11 years ago in a motor vehicle accident.
It was the court's finding that since there was no eyewitness to the accident, the only inference which could be drawn was that the child, who was not at the time under the control of an adult, ran into the driveway and collided with the rear of the oncoming car, hence the unfortunate accident.
The Court of Appeal, comprising Mr. Justice Henderson Downer, Mr. Justice Paul Harrison and Mr. Justice Donald Bingham, in allowing the appeal, drew inference from the fact that the child suffered head injuries and there was a dent to the back of the car near to the gas tank. The court drew the inference that the dent in the car was the point of impact with the child's head.
Gamal Small was three years old when he was injured on December 3, 1989, near to his gate at Bob Marley Boulevard, Cooreville Gardens, St. Andrew.
Dawn Beckford, the child's mother, brought a negligence suit in the Supreme Court in 1993 against Wycliff Williams, owner of the car, and Frank Gonzales, the driver.
Evidence was given that the child was on the verandah. The gate was closed but it was not locked. After the impact, the witnesses said they went out and saw the gate open. The child was lying outside the gate with his legs close to the sidewalk. The child suffered head injuries. The medical evidence was that the child had a residual disability that will impair him earning a living. The injury has left the child with below-average reasoning ability and weakness in the right upper limb.
Attorney-at-law Garth McBean, who represented Williams, appealed on the ground that Miss Justice Beckford erred in finding that the owner and driver were liable for the child's injuries. Mr. McBean said the real issue before the court was whether the driver was negligent.
Gonzales, the driver, could not be located to testify for the defence at the trial in the Supreme Court last year.
