Supreme Court
Action No. 167 of 1977
11th February, 1982
Rajasingham, J.

Mr. J.C. Gray for the Plaintiff.
Mr. Dean Barrow for the Defendants.

Damages - Traffic Accident - Negligent driving - First Defendant is employee of Second Defendant - No liability found on part of Second Defendant - Award of damages - Costs.

J U D G M E N T

This is a claim for damages based on the negligent driving of the First named Defendant, an employee of the Second named Defendant, of vehicle No. B 556 on the 5th of April, 1974 at Hattieville in the Belize District.

The Statement of Claim avers and the Defence admits that the First Defendant was, on the date of the accident, employed by the Second Defendant.

The facts of the case, subject to certain minor contradictions are as follows:- The Plaintiff was standing on the road alongside a parked bus driven by one Wellington Awardo and was talking to him when a vehicle B-5661 driven by the First Defendant approached at a speed of between 40 and 45 miles per hour and hit him, first with the bumper and then on the head with the rear-view mirror. The Plaintiff states, and he is corroborated by Awardo, that he was rendered unconscious almost immediately; it seems he heard some voices before he in fact became fully unconscious. He says he recovered consciousness at the Belize City Hospital and found he had lost all his teeth, which were his natural teeth. He said he felt bad and could scarcely move. This much of his evidence is uncontradicted - as to his injuries. He says he was kept in the hospital for two months. Awardo says he saw the Plaintiff out of hospital in two, three or four weeks. The Plaintiff went on to say that he had no broken bones, but had a few bruises. He said he remained unfit for work for a year and some months, and suffered for an unspecified time from deafness too. The fact of his continuing to be sick is corroborated by Awardo.

The Plaintiff and Awardo say that the First Defendant did not slow down or sound his horn even though there were a lot of people, including children, on the road. This is uncontradicted.

In view of the uncontradicted evidence as to the speed at which the First Defendant was driving and as to his failure to check his speed or sound his horn, I find that the First Defendant was negligent in the manner in which he drove vehicle B 5661.

In view of the contradiction between the Plaintiff and Awardo as to the duration of the Plaintiff's stay in the hospital, I find that the Plaintiff's stay is proven as not being more than four weeks in hospital. In view of his uncontradicted evidence of continuing disability, I find that the Plaintiff remained unable to perform any gainful employment for a year.

There is a certain degree of discrepancy between the evidence of the Plaintiff and Awardo as to whether the Plaintiff was in fact employed by Public Works at the time of the accident. The age of the Plaintiff militates against his averment that he was employed on a regular basis by the Public Works Department. Awardo says he has seen the Plaintiff on the road between miles 16 and 17 on about three days in any week at different hours of the day, and that that made him conclude that the Plaintiff was not employed on a regular basis. He did add that he cannot say definitely that the Plaintiff was in fact unemployed. I find the Plaintiff's evidence alone unsatisfactory evidence upon which to hold that he was employed by Public Works at sixty-five dollars a week in April, 1974. The Public Works Department must have records from which this could be proved even at this late date. In view of Awardo's evidence from which one can draw the same conclusion he drew, namely that the Plaintiff was unemployed, it makes it dangerous for this Court to accept the Plaintiff's uncorroborated statement as to his employment. I therefore find that the Plaintiff has not proved his loss arising from his inability to work.

There is no evidence as to the ownership of the vehicle B-5661 besides the Plaintiff's own statement that it belonged to the Electricity Board. Awardo identifies the First Defendant as the driver and states that he knew he worked for the Second Defendant, but that is admitted in the pleadings and does not take the Plaintiff's case any further towards proving the actual ownership of vehicle B5661. There is no evidence at all on the capacity in which the First Defendant was acting vis-à-vis the Second Defendant at the time of the accident. He was carrying workers and was hurrying to collect his pay. Neither establishes the ownership of the vehicle itself or that he was acting in the course of his employment when he did so; in fact we do not know who the workers worked for; we only know they had been on a job outside Belize City. I therefore find that the Plaintiff has failed to establish any liability at all on the part of the Second Defendant.

The Plaintiff was hospitalized for four weeks and probably suffered a minor concussion since he had been rendered unconscious. He also suffered bruises and probably shock. He has mentioned his lost teeth for the first time in Court; it is not even mentioned in his pleadings nor is it corroborated by any other evidence. It is a serious injury which he could not have failed to take into account in making his claim in his pleadings. In the circumstances, I think it unsafe to accept his evidence as to the loss of his teeth. If it had been one or two teeth he may have not remembered it three years later when he instructed his Counsel, but he says he had all his teeth and lost all of them in the accident. No attempt was made to explain his failure to include this loss in his "particulars of injury" in his Statement of Claim. I therefore reject his claim for the loss of his teeth as I am not satisfied that he lost them as a result of this accident.

It remains to state that I find that the First Defendant drove vehicle B-5661 negligently and caused injury to the Plaintiff at Hattieville on the 5th April, 1974.

I assess the damages to the Plaintiff as follows: -

I award damages to the Plaintiff against the First Defendant only in a sum of two thousand dollars.

The Plaintiff will be entitled to costs against the First Defendant but the Second Defendant will be entitled to costs against the Plaintiff, since both Defendants are jointly defended, I make no order as to costs.

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