Alatife Nickie, an infant by Dariel Nickie, his next friend v Keith Barker

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Joseph, Monica J.,Puisne
• Judgment Date: 06 July 1983
• Docket Number: SUIT NO. 61 OF 1981
• Date: 06 July 1983

IN THE HIGH COURT OF JUSTICE

(CIVIL)

SUIT NO. 61 OF 1981

Between:

Alatife Nickie, an infant by Dariel Nickie, his next friend

Plaintiff

and

Keith Barker

Defendant

Mr. Farara for Plaintiff

Mr. Webster for Defendant

Joseph, Monica J.

1 The plaintiff's claim is for damages for personal injuries and consequential loss and damage occasioned to the plaintiff by reason of the negligence of the defendant in the driving and managing of a motor car along the Baughers Bay public road in Tortola.

2 The defendant in his defence denies that he was negligent and alleges that the accident was caused wholly, or contributed to, by the plaintiff's own negligence.

3 On Sunday 26th April, 1981 at about 1:30 p.m. the infant plaintiff who was then six years of age, and a young friend, Milton Mercer, were on the public road in the vicinity of the Radio Station ZBVI at Baughers Bay, when they were involved in a collision with a car driven by the defendant.

4 The defendant was driving a Volkswagen Passet, Registration No. 3541 in an easterly direction, that is, proceeding from Road Town towards Baughers Bay. As he turned a corner he saw the two boys about fifty to sixty feet away, on the right hand side of the road.

5 /I accept ….

6 I accept the following account of the accident comprised in a written statement to the police a few days after the accident. The statement is an exhibit in this case. The relevant portion reads:

“I noticed two small boys standing at the right hand side of the road. As I approached, I noticed that they were slowly and hesitantly moving in the direction of the center of the road. By this I mean that they were still near the edge of the road, but seemed uncertain as to whether to cross. Seeing this, I slowed down and veered further to the left. As I continued, one of the boys suddenly bolted across my path. I immediately applied my brakes and turned the vehicle off the road to the left. Despite this manoeuvre there was a collision between the vehicle and the boy who fell to the ground.”

7 The plaintiff ran from the right side of the road (facing east) to the left hand side. At the time of the accident the defendant was travelling between 15 to 20 miles per hour. The speed limit on that stretch of road is 30 miles per hour. The width of the road is 19 feet 1 inch.

8 The point of impact is given as about 6 feet from a coconut tree on the left hand side of the road. The edge of the road to the coconut tree is given as about 1 ¹/₂ to 2 feet—so that the point of impact is approximately 5 feet from the left hand edge of the road. Two impressions made by the tires of the defendant's car measured approximately 12 feet.

The plaintiff sustained —

• (i) a cut on the right side of his head;

• (ii) a cut on the elbow; and

• (iii) a fracture of the left femur.

9 The fracture of the left femur is a comminuted fracture, that is, the bone was broken in more than one place.

10 He underwent two operations at the Peebles Hospital: the first operation was on the 8th May 1981, when a metal plate was inserted in the plaintiff's limb. The plaintiff was discharged from the hospital on 19th June, 1981 and was treated as an out-patient until 1st September 1982, when he was re-admitted. On 2nd September 1982 there was a second operation and the metal plate was removed.

11 / Doctor Smith……

12 Doctor Smith testified that on 24th December, 1982 he considered that the injured limb had healed satisfactorily, but there was a 15 per cent loss of flexion of the knee. The doctor stated that a fracture of the femur is a serious injury but said that it was not possible to say whether the loss of flexion would be permanent, as children recover more quickly and completely than adults.

13 This is not a case of an infant running across a road from behind a parked vehicle or from a portion of a road that is not visible to the driver. This is a case where the defendant admitted that he had the plaintiff...