Cheerene Green v Arsene Dieucste as Personal-Representative of the Estate of Maure Noel, deceased

• Jurisdiction: Bahamas
• Court: Supreme Court (Bahamas)
• Judge: Winder, CJ
• Judgment Date: 13 February 2024
• Docket Number: 2013/CLE/gen/01945

In the Matter of the Fatal Accidents Act Chapter 71, Statute Laws of the Commonwealth of The Bahamas

Between

Cheerene Green

(As Administratrix of the Estate of Jacinda Jasmine Colebrook, (deceased) and on behalf of all dependants of Jacinda Jasmine Colebrooke)

Claimant

and

Arsene Dieucste As Personal-Representative of the Estate of Maure Noel, deceased

(And by Order to carry on)

First Defendant

Peter Corey Bowe

Second Defendant

and

Gold Rock Corp. Ltd

Third Defendant

Before:

The Hon. Chief Justice Sir Ian R. Winder

2013/CLE/gen/01945

IN THE SUPREME COURT

Common Law and Equity Division

Appearances:

Norwood Rolle for the Claimant

Genell Sands for the Second and Third Defendants

Winder, CJ

1 This is a Fatal Accidents Act (“FAA”) claim arising out of a road traffic accident (“the accident”) which occurred on the Grand Bahama Highway (the “GB Highway”) on 12 January 2011 involving Jacinda Jasmine Colebrook (“Colebrook”), her passenger, Maurice Noel (“Noel”), and the Second Defendant, Peter Corey Bowe (Bowe). The burnt remains of Colebrook and Noel were found in the vehicle following the accident.

2 The Claimant, Cheerene Green, is Colebrook's mother and purports to sue as the administratrix of Colebrook's estate and on behalf of Colebrook's dependants. The particulars of the persons for whom this action is brought, at the date of the commencement of the action, are set out in the Claimant's Re-Amended Writ of Summons as follows:

Cheerene Green, age fifty-six (56) years who was born on 10 February, 1957;

Ariel Newbold, age twenty (20) years, who was born on 1 November, 1993;

April Colebrook, age sixteen years (16) years who was born on 12 April, 1997;

Cherelle Colebrook, age thirteen (13) years who was born on 6 October 2000;

Travis Colebrook Jr., age eleven (II) years who was born on 18 May, 2002; and

Vaughn Aelx Colebrook, age nine (9) years who was born on 26 August, 2004;

3 Bowe's role in the matter has been noted above. The Third Defendant, Gold Rock Corp. Ltd, is Bowe's employer and the owner of the vehicle he was driving at the time of the accident.

4 In advance of trial, the parties agreed that, on 12 January, 2011, a collision occurred in the eastbound carriageway of the GB Highway between (i) a 1998 Jeep Grand Cherokee driven by Colebrook but owned by Noel and (ii) a 1999 Ford Expedition driven by Bowe but owned by the Third Defendant. The parties also agreed that, upon impact, both vehicles caught on fire.

5 It is disputed whether the accident was the result of Bowe's negligent driving, whether the Third Defendant is vicariously liable for Bowe's conduct and whether the accident was the cause of Colebrook's death. The Defendants also deny liability on the basis that Colebrook was responsible for the accident. The Third Defendant disclaims vicarious liability.

6 By their Statement of Facts and Issues, the parties distilled the issues that require the Court's determination to the following five issues:

• (1) Was Bowe negligent in the driving and control of his vehicle on the date and at the time of the accident?

• (2) Was Bowe performing duties for or acting on behalf of the Third Defendant at the time of the accident?

• (3) Was the accident the proximate cause of Colebrook's death?

• (4) Did any negligence or recklessness on the part of Colebrook cause or contribute to the accident?

• (5) Is the Claimant entitled to damages under the FAA and, if so, what is the quantum of those damages?

The Claimant's Evidence

7 The Claimant relied on the evidence contained in her witness statement filed on 1 November 2023 and the evidence contained in the witness statement of her sister, Rose Green Thompson (“Thompson”), filed on 1 November 2023. The Claimant also relied on the evidence of Dr. Mandi Pedican (“Dr. Pedican”) and ASP Christopher Farquharson (“ASP Farquharson”). Dr. Pedican and ASP Farquharson were cross-examined but the Claimant and Thompson were not.

The Claimant

8 The Claimant testified that she was informed by one of her nieces at about 10:30 am on 12 January 2011 that Colebrook was believed to have been a traffic fatality on the GB Highway. She travelled to Freeport on 14 January 2011 with Thompson and Colebrook's youngest child to identify Colebrook's body. After arriving in Freeport, she visited the scene of the accident with Thompson and Colebrook's father and searched a burnt white Jeep on a grassy area on the western side of the road said to have been driven by Colebrook but found no evidence identifying her. The Claimant was subsequently not permitted by the Royal Bahamas Police Force (“RBPF”) to see Colebrook's remains as they were badly burned. Colebrook was identified by DNA based on blood samples.

9 The Claimant further testified that she was informed at a Police Inquest that Colebrook was a fatality in the accident when the vehicle she was in was hit from behind and exploded. An officer named ACP Seymour who was said to have been the first person at the scene of the accident recounted that he had been travelling to work in the opposite corridor of the GB Highway when he heard the collision, saw the blaze. ASP Seymour reported the accident to the Fire Services Department and drove to the scene of the accident where he was later joined by officers from the Fire Services Department. Another RBPF officer explained to the Claimant that, when Fire Services arrived, they helped Bowe and did not attempt to save Colebrook as the blaze was too big. The RBPF could not confirm how long it took for the fire truck to arrive.

10 The Claimant described Colebrook as a mother of 5 children who was employed by the Ministry of Education as a Janitress at the Maurice Moore Primary School. The Claimant said that, at the time of her death, 4 of Colebrook's children lived with her in Freeport, where she had been transferred to in 2005 to care for her ailing father. Colebrook's youngest child lived with the Claimant. The Claimant had cared for Colebrook's youngest child since his birth. The Claimant and Colebrook's brother and sister regularly sent Colebrook money to assist her with the payment of her rent and other bills.

11 According to the Claimant, Colebrook's family made prior arrangements with and payments to a funeral home for the cremation of her remains, but she was cremated without the family's knowledge because the RBPF released her remains directly to the funeral home. Three of Colebrook's four children in Freeport returned to New Providence with the Claimant after the accident. Colebrook's oldest child remained in Freeport in the care of her grandfather until after her graduation from high school.

Thompson

12 Thompson's evidence mainly corroborated the Claimant's evidence and, therefore, need not be summarized in any great detail. It is worth highlighting however, that Thompson stated in her evidence that when she, the Claimant and Colebrook's father visited the scene of the accident on 14 January 2011: (i) the white Jeep attributed to Colebrook was on a grassy area on the right side of the road and was “very burnt”, but the front seating area was not as burned as the rear; and (ii) the other vehicle in involved the accident, which was smaller, had signs of being burnt and damage to its front and had travelled through the bushes/trees and stopped on a pine tree.

Dr. Pedican

13 Dr. Pedican is a forensic pathologist who has been the Head of the Department of Pathology and Laboratory Medicine for the Grand Bahama Health Services in the Public Health Authority (“PHA”) since 2013. She attended trial on a witness summons. She was called by the Claimant as a custodian of the PHA's records but was also deemed an expert in pathology and forensic pathology by the Court upon a viva voce application made by the Claimant.

14 A copy of an autopsy report dated 17 January 2011 prepared by the now-deceased Dr. Cornelius Kachali (“Dr. Kachali”), who was the Director of Pathology and Laboratory Services at Rand Memorial Hospital at the time of the accident, was admitted into evidence through Dr. Pedican. Dr. Kachali's Autopsy Report was prepared after an examination of Colebrook's body on 17 January 2011. Dr. Pedican confirmed that the original of Dr. Kachali's Autopsy Report had been destroyed during Hurricane Dorian, and that it appeared to her that the copy tendered was a duplicate of the original.

15 Dr. Kachali's Autopsy Report stated inter alia:

SUMMARY OF THE AUTOPSY FINDINGS AND DIAGNOSIS:

History of being recovered from burnt vehicle with the following autopsy findings:

• A. Global charring with extensive body mutilation.

• B. No evidence of gunshot wounds.

• C. No gross evidence of natural disease.

SUMMARY AND COMMENTS: Investigation and autopsy findings show that death is attributed to probable fatal thermal injuries in a two vehicle corrosion accident. However, the manner of death cannot be established; further investigation and evaluation may elucidate the situation. Other scenarios cannot be completely excluded.

CAUSE-OF-DEATH STATEMENT: Probable fatal thermal injuries.

MANNER OF DEATH: Based on the circumstances, the manner of death is classified as undetermined. The autopsy of the body of Jane Doe #1, allegedly Ms. Jacinda Celebrook, is performed by Cornelius Kachali, M.D., Consultant Pathologist and Director of Pathology and Laboratory Services at Rand Memorial Hospital, Freeport, Grand Bahama, Bahamas, on 17/1/2011. The identification is done by DNA analysis; see attached copy of the report from the DNA Labs International

…

SPECIAL PROCEDURES

• • X-ray done on charred remains: no projectiles/bullets.

• • Tissue sent for DNA analysis: report attached.

• • Blood sample sent to Bahamas Police Toxicology Lab: results pending.

16 When asked about Dr. Kachali's Autopsy Report in cross-examination, Dr. Pedican accepted that it was correct to say that Dr. Kachali's Autopsy Report was not conclusive as to Colebrook's cause of death....