Supreme Court
Action No. 136 of 1979
15th June, 1983.
Rajasingham, J.

Messrs. W.H. Courtenay & Co., for the Plaintiff.
Mrs. Lois Young-Barrow, for the Defendant.

Damages - Negligent driving - Extensive damage to car - Contributory negligence - Quantum of Damages - Costs.

J U D G M E N T

The Plaintiff's claim is for damages arising from an accident which occurred on the 17th February, 1979, and which the Plaintiff says was caused by the negligence of the Defendant. The Defendant denies negligence and states that the accident was caused either wholly or in part through the negligence of the Plaintiff's driver Reynolds.

The Plaintiff called the driver of his car and his son, who was at the scene at the time of the accident. Their evidence is that the car lost a hubcap just as they entered a gravel stretch and the car pulled over and parked on the wrong side of the road, that is on the left as one faces Belize City. Reynolds says he parked on the left because he had just come out of a curve turning left and it would have been dangerous to park on the right as his car would have been a surprise to any vehicle coming out of the curve. Douglas Hemmans Jr. says the hubcap flew off to the left, or so they believed, and that, having stopped immediately to let his passengers disembark, Reynolds reversed the car and parked it on the left side of the road as one faces Belize City. He says he and the three other passengers of the car then searched the same side for the hubcap. He had a flashlight and the others were searching in water logged mangrove with nothing more to assist them than a full moon - according to Reynolds. I find this difficult to believe, that having bright headlamps on his car Reynolds let them search by moonlight. It is my considered opinion that Reynolds pulled over to the left of the road to assist the searchers by using his headlamps - and now has struck upon a more sensible explanation for having been on the left side of the road. If one recalls his evidence that he had just come out of the curve and parked, one cannot reconcile it with Hemmans' evidence that Reynolds reversed the car on to the left side. Reynolds himself said "I stopped and pulled over to the left hand side from which I heard the sound." He then went on to add that he did so because of the curve behind him. He made it sound as if he had gone forward and pulled over on his left side. He avoided any reference to reversing closer to the curve. Until I re-read the evidence I had formed a mental impression of a careful driver proceeding further away from the curve and pulling over to where traffic from behind could see him clearly. Instead it would appear that he actually reversed to a point closer to the curve and pulled over to the left side as that was where the hubcap was thought to have been thrown.

He and Hemmans both say he then parked on that side and he remained in the vehicle while the others searched. The defence suggested, and I agree, that that seems to be a strange thing to do especially when one remembers that two of the passengers were sons of Reynolds' employer. The defence suggests that it could be explained if his purpose had been to move his car as and when required so that his lights fell on the bush along the edge of the road. Hemmans explained Reynolds staying in the car in the following words:-

"I did not think it strange that he did not help because I thought he stayed in case he had to move the car."

A very plausible explanation if by "move the car" he meant move it to assist the
searchers. However both Reynolds and Hemmans deny that the car was moved once it was parked.

They both go on to say that several cars - in the case of Hemmans' two cars - passed going out of Belize City. They then saw the lights of the Defendant's car approaching, that it came straight at them and finally ran into their car. Hemmans says he jumped feet first into the mangrove and escaped injury. They say the Defendant got out of his car saying "Boy what I de do," implying thereby that, he was admitting that it was his fault. They say the Defendant then climbed on to his bonnet and fell asleep till the Police came about an hour later.

The Defendant gave evidence and stated that he saw the Plaintiff's vehicle on coming around a curve shortly after passing Bella Vista. He says he continued towards it, not realising that it was on his side of the road. He said that when he was about 125 to 140 feet from it he realised it was on his side of the road. As it turned out his idea of 125 to 140 feet was much less when he pointed out the distance in Court. He says he continued another 50 feet and the car was still on his side but he was not going to stop; instead he decided to go over to his wrong side to pass it. He said he had turned his steering only slightly when he noticed that car trying to get back to its side and so he swerved sharply to his own side. He says he braked slightly to check speed as he did so, but intended to pass the Plaintiff's vehicle by going half off the road on to the shoulder or even into the mangrove. When he swerved off the road he saw pedestrians in front of him and swerved hard to his left and into the Plaintiff's car. The Defendant admitted that he had been to a party and had, had about four drinks of whisky. He also said he had been doing about 50mph when he first saw the Plaintiff's car. It was 3:30am in the morning and he was going home to mile 11 ¼.

The damage to the Plaintiff's car was to its left front fender and lights. The damage to the Defendant's car was to its left front and left side and was fairly extensive.

Reynolds in his evidence in chief said the Defendant's car was "almost on the centre of the road" when it came and hit his vehicle. If as he said he had pulled over and parked on the left edge of the road as one faced Belize City and he was hit by a car which was on the same side of the road but almost on the centre of it, the damage to both cars would be either in the middle of the bonnet or to the right front of each car. It is inconceivable that the Defendant's car while being " almost on the centre of the road" could hit the left fender and light of the Plaintiff's car and not any other part of the front of that car - and do so with its own left front, which would have been towards the centre of the road, and not with the rest of its frontal area.

The witness Hemmans said his father's car had its rear pushed towards the middle of the road. The Defendant said the front of the Plaintiff's car was six feet from the edge of the left side of the road as one faces Belize and the rear was about 3 ½ feet from that side of the road. Both these statements were unchallenged and each consistent with the version of the party on whose behalf it was stated. The sketch drawn by Hemmans is no help - it does not even support his statement set out above; he has the Plaintiff's car parallel to the side of the road.

The Defendant says he saw the Plaintiff's car while he was still at some distance over 140 feet from it and continued till he was about 140 feet from it before he realised it was on his side of the road. The accident itself occurred when the Plaintiff was "a very short distance out of the curve", in Defendant's words. He could not have seen the lights of Plaintiff's car until it was out of the curve. So that in the time in which he covered the "over 140 feet" at 50 m.p.h. or a little less, Plaintiff's car had traveled a "very short distance" or even as Plaintiff states, no distance at all because it was parked.

After a careful consideration of all the evidence I am of the opinion that the accident probably occurred almost in the manner in which the Defendant says it did. The Defendant gave his evidence convincingly, even admitting he had consumed a fair quantity of liquor. I believe that Reynolds stayed in his vehicle so that he could assist the searchers by moving the car and its headlights and that he had his headlights on when the Defendant approached. The Defendant by his own admission, acted in a rather reckless manner. He approached the scene at a fairly high speed even after he realised the Plaintiff's car was on his side of the road, only checking his speed to the extent of taking his foot off the accelerator; he braked slightly when he thought he saw the Plaintiff's car trying to get back to its side of the road; he says that at both those stages he still intended to continue and pass the Plaintiff's vehicle. It was when he saw the pedestrians in front of him that he at last thought of really slowing down or stopping. His judgment may have been influenced by his consumption of liquor. I believe the liquor and the lateness of the hour combined with a night of party going, did make him fall asleep on his car - but I do not believe he was so inebriated as to have been totally unaware of all that happened before he succumbed. I believe he was tired enough and had had enough liquor to cause him to err in his judgment. The damage to the vehicles is consistent with his evidence.

Reynolds, by his lack of consideration for other users of the road, created a dangerous situation; even if he was not moving, his lights blinded on-coming traffic. I do not think that his being on that side of the road was itself per se negligent, as Mr. Barrow submitted. The Defendant by his negligence failed to avoid an accident. I do not believe Reynolds tried to get back to his side of the road. I believe he stayed in his car merely to move it along the left edge of the road in an attempt to assist the searchers. I believe he blinded the Defendant so that the Defendant could not even see the pedestrians till he was almost on them. I believe the Defendant thought he could get past the Plaintiff's car by staying on his own side, and attempted to do so while continuing at a fairly high speed; because he did hit the Plaintiff's car at a speed at which he caused extensive damage to his own car. He may have got past or at the worst ended up in the mangrove swamp if the pedestrians had not caused him to swerve back into the road and into the Plaintiff's vehicle. I believe the Defendant's negligence was greater than that of Reynolds, because the Defendant could still have avoided and accident if his consumption of liquor had not affected his judgment and if he had acted with the care required by the circumstances.

I therefore, hold that the Plaintiff was one-third to blame for the accident and the Defendant two-thirds to blame.

The Plaintiff's damages and loss of earnings were agreed upon as being $1,702.00. The Defendant's damages were estimated very roughly at being $2,000.00 to $2,500.00. In view of the description of the damage to his vehicle I do not think $2,000.00 is an unreasonable sum. In the basis of my finding as to blameworthiness, I, therefore, award the Plaintiff a sum of $468.00 as damages, and the costs of this action.

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