Supreme Court
Action No. 188 of 1980
November 15, 1982
Moe, CJ.

Mr. Denys Barrow for the Plaintiff
Mr. Derek Courtenay S.C. for the Defendant

General and Special Damages for personal injury arising from traffic accident - Principles to be taken into account by court in assessing quantum of damages.

JUDGMENT

On the last date of hearing I entered judgment for the plaintiff and took time to consider the amount of damages to be awarded. I now give my reasons and the award made.

On the 17th October, 1978 a collision occurred between a vehicle owned and driven by the plaintiff and a vehicle owned and driven by the defendant. The plaintiff said he was driving on the right hand side of the road in the direction in which he was traveling, proceeding at about 20-25 mph. He saw the defendant's truck coming from the opposite direction. He saw the truck suddenly swagger on his side. He went on his brakes, the cab of the other truck passed the cab of his truck and right side of his cab hit the right hand side of the other truck's box. The impact took place on the right hand side of the road in the direction of which he was traveling and at the time his vehicle was stationary. After impact, the other truck turned over on that side of the road. The defendant said that having stopped to let down the canvas on the sides of the box of his truck, he got in his truck and drove off. Just as he was moving off he saw the plaintiff's truck about 75 yards off coming on his the defendant's side of the road. As he moved towards the truck and it didn't go to its side, he tried to go off the road. He applied his brakes when the plaintiff's vehicle was about 50 yards away from him, his vehicle skidded and he decided to go over to his left, but the plaintiff's bumper hit his right fender. He went to the left because there was a drain and a mango tree at the edge of the road on his side. He first said that the bumper of the plaintiff's vehicle hit the right fender of his truck. Later he said it was the plaintiff's box that hit his right fender and said finally that his truck was struck by a passenger step which is on the right hand side of the truck immediately behind the cab.

It is clear that the defendant's vehicle turned to its left across the path of the plaintiff's vehicle. This is evidence of negligence on the part of the driver. The question to be answered was whether it did this as the plaintiff said while the plaintiff was on his right and proper side of the road or as the defendant said because the plaintiff was on his left and wrong side of the road. The point of impact on the defendant's vehicle as stated by the plaintiff and eventually confirmed by the defendant and the over turning of defendant's vehicle on the right hand side is entirely consistent with the plaintiff's account as to how the collision occurred.

That point of impact and overturning on the right hand side does not fit with defendant's description of the accident. Firstly it is not consistent with the plaintiff being on the defendant's side and the defendant veering to his left to get out of the plaintiff's way since there is no evidence that the plaintiff changed direction. Nor is it consistent with the defendant moving to his left when the plaintiff was some fifty yards away and the plaintiff not changing direction.

I accepted the plaintiff's account and found negligence on the part of the defendant and I did not find negligence on the part of the plaintiff. The defendant's negligence was the cause of the collision. As a result of the collision the plaintiff aged 49 at the time sustained personal injuries including a compound fracture of the right fibula, small wound to the left forearm, a wound at the point of fracture with damage to the muscles of the leg. He underwent operations in respect of a wound and fracture he received. He remained in hospital for two months and received out patient attention for a period of two years. He has permanent disability as a result of the injury - stiffness of the right ankle, weakness of muscles that control toes and ankles. He will walk with a limp and will not be able to walk very far or stand very long on that leg. I took into account (a) the injuries sustained, (b) the pain and suffering which had to be endured, (c) the physical disability to be borne hereafter and the loss of amenities sustained. Under the head of general damages, I award the sum of $3,500.00.

The plaintiff satisfied the Court that as a result of sustaining the above injuries he incurred expenses as follows: $131.25 to the Hospital and $100.00 to a workman to feed his horse. I allow these amounts. He also lost the benefit of a contract he had with the British Army which still had a remaining term of 9 months. He satisfied me he lost $40.00 per day which I calculated on a five day week over the 9 month period to add to $7,200.00. I also accepted that he was unable to earn by taking passengers and cargo in his truck. The loss under this was not specifically proved as required and I estimated an amount for a period of two months, being the period during which the truck was under repairs. I allow $1,000.00. I accepted that he suffered a loss in earnings from his farm in not being able to pick and sell his coconuts, plantains and bananas. Again there was no specific proof of the period over which he suffered this loss and I allow a sum of $1,000.00. I estimated this loss over a year being about the period he said he was unable to work after the accident. For special damages a total of $9,431.25.

The defendant pleaded that the plaintiff has received and accepted or acknowledged certain sums in satisfaction or discharge of the plaintiff's claim. There was evidence that the plaintiff received from the insurance company with which he was insured certain sums. He signed a release which released the insurance company of all claims or liabilities in connection with the traffic accident. He later gave a receipt for a certain sum in full and final satisfaction, liquidation and discharge of all claims, costs and expenses to the claim against the insurance company in respect of loss, injuries or damage sustained from the accident. It was submitted that these releases relate only to the insurance company and does not preclude the plaintiff from pursuing claim against the defendant. I agree.

Judgment for the plaintiff in the sum of $12,431.25 and costs.

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