Supreme Court
Action No. 251of 1978
20th July, 1983.
Alcantara, J., OBE

Mr. Dean Barrow, for the Plaintiff.
Mr. George Brown, Solicitor General, for the Defendants.

Tort - Negligence - Motor vehicle accident - Defence of Inevitable Accident - Burden of proof of defence - How is defence established - Damages - Value of car less value of salvage and notional sum for loss of earnings since no particulars of damage proved.

J U D G M E N T

The Plaintiff's case is simplicity itself. He had parked his vehicle on the right hand side on the Western Highway, between Mile 2 and 3, direction Hattieville. Sometime later a Government pick-up driven by second Defendant going towards Hattieville collided with it and smashed it. His case is, I was stationary, you were in motion, you are responsible.

Certain facts have been agreed to by counsel as not being in dispute.

1. The accident took place on the 6th July, 1978 in the vicinity of Mile 3 on the Western Highway.

2. The accident was between the Plaintiff's motor car which was parked and the Defendants' vehicle which was in motion.

3. The Defendants' vehicle was being driven at the time by the second Defendant who was a Crown servant and acting in the course of his duties.

The Plaintiff's evidence is that on the day in question between 1:30 p.m. and 2:00 p.m. he parked his car off the road, on the shoulder of the road. It was a clear day and he parked on a straight and not near a curve.

His evidence as to the position of the car and the visibility has been corroborated by a witness, Mr. Jesus Trujeque. Mr. Trujeque had engaged the Plaintiff to take him out of town to collect black topsoil from the bush in the vicinity of Mile 3. Apparently he is a keen gardener.

Part of the Plaintiff's evidence has further been corroborated by Mr. Harrison Hulett, a police officer. On the date in question he was attached to the Traffic Department in Belize City. He went to the scene of the accident to investigate. He confirmed that the accident took place on a very straight part of the road and that the nearest curve was 75 yds. away. It was a bright sunny day.

Insofar as damages are concerned the Plaintiff is claiming $5,000 for the loss of his motor car. His evidence is that three months prior to the accident he bought the car in San Antonio (Texas) for U.S. $2,000 and imported it into Belize paying the necessary duty. He estimates the value of it at $5,000. As the result of the accident the car was a total loss and beyond repair. Amongst other things the chassis was bent. The Plaintiff called a Mr. Reinaldo Azueta who examined the car after the accident and he testified that he examined the car and condemned it.

Before closing the case for the Plaintiff counsel sought leave to amend the Writ and Statement of Claim to include a claim for $2,250 for loss of earnings. This was granted. The Plaintiff now claims for 90 days at $25.00 per day.

The evidence in support of this part of the claim is that the Plaintiff said in the witness-box that before the accident he used to earn with his taxi $40 per day, whereas after the accident he was working for someone else, also as a taxi-man, and was only getting $15 per day. In cross-examination it transpired that the $40 was gross. No evidence was given that this diminution of earning continued for 90 days nor any explanation offered why it should be for 90 days as opposed to 60 or 30 days. On the state of the evidence I am unable to arrive at any realistic figure. The most I can do is to award a notional amount.

The Defence is not so simple. Apart from denying negligence and alleging negligence against the Plaintiff in their Counterclaim they plead as follows in para. 4 of the Defence.

"4. The Defendants state that the accident was inevitable owing to:

(a) the negligence of the Plaintiff;

(b) the condition of the Defendant's vehicle; and

(c) the circumstances prevailing at the time of the accident."

The Defence adumbrated by counsel for the Defendants in his cross-examination of the witnesses for the Plaintiff was that the Plaintiff had parked his car on a curve and that the visibility was poor. This view of the case is supported by the evidence of Mr. Erdolfo Ruiz, a passenger in the pick-up driven by the 2nd Defendant. I do not accept the evidence of Mr. Ruiz, he is a witness prone to exaggeration and inaccuracy. In fact his evidence does not concur with the evidence of the second Defendant. According to the driver of the pick-up the visibility was good and although he stated that the Plaintiff's car was parked on a curve, he did say that he saw the car when he was 75 yds. away. According to him the cause of the accident was the sudden failure of the brakes of his pick-up. He was not able to avoid an accident because he was not able to stop his pick-up; When he examined the vehicle later he found that the brake pipe was broken. This he says was the cause of the brake failure. On the state of the evidence the Defence of Inevitable Accident is only supported by subparagraph (b) of paragraph 4 of the Defence, i.e. the condition of the Defendant's vehicle.

The questions to be answered are: (A) whether this is a valid Defence in the circumstances of this case and (B) whether there is evidence to support it.

The answer to (A) is yes. I take from Charlesworth on Negligence 4th Edition the following quotation at paragraph 1181.

"In an action based on negligence it is, of course open to a defendant to prove that there was no negligence on his part, and he will then succeed in the action. If, however, the facts proved by the plaintiff raise a prima facie case of negligence against the defendant, the burden of proof is then thrown upon the defendant to establish facts negativing his liability and one way in which he can do this by proving inevitable accident."

and at paragraph 1183

"Apart from Admiralty case, the reported cases in which the defence of inevitable accident has succeeded are few …… There is no inevitable accident unless the defendant can prove that something happened over which he had no control and the effect of which could not have been avoided by the exercise of care and skill."

One of the reported cases in which the Defence of Inevitable Accident succeeded was the case of Winnipeg Electrical Company v. Jacob Geel (l932) A.C. 690 where the defendant adduced evidence from credible witnesses to the effect that there was a latent defect in the mechanism of the braking system of his motor omnibus.

A case in which the defence sudden failure of brakes did not succeed was Floretta Tucker et al. v. George Stevenson Nos 6 - 10 of 1974 where Chief Justice Malone gave his judgment on the 29th July, 1975 and referred himself to the leading case of Henderson v. Henry E. Jenkins & Sons (l970) A.C. 282. The problem before Chief Justice Malone was not dissimilar from the one before me. The case of Henderson & Jenkins has been brought to my attention by counsel for the Defendants.

The headnote of that case reads:

"that the Respondent could not rely on the Defence of a latent defect not discoverable by the exercise of reasonable care unless they showed that they had taken all reasonable care in the circumstances; and to do so they had to show that there was no special circumstances in the past use of the vehicle to indicate that the lorry might have been subjected to a corrosive agent resulting in the corrosion of the pipe. Accordingly since the respondents had not adduced evidence of the past history of the vehicle, they could not rely on the defence of a latent defect and therefore they had not discharged the inference that they had been negligent."

The burden of proof of Inevitable Accident is upon the Defendants. To substain that, the Defendants must show what was the cause of the accident, and show that the result of that cause was inevitable. In this case I am prepared to assume that the Defendants have shown that the cause of the accident was the sudden failure of the brakes. But they have not satisfied me that the result of that cause was inevitable.

The evidence of the second Defendant is that he inspected the brake pipe that same morning, not just the fluid, and that he checks the vehicle every morning. He went on to say that the pipe was defective inside. This is an extract of the evidence of the second Defendant in relation to the broken pipe.

"I do not known what caused the break……… Brake pipes can get rotten. This happens a lot of times………..
When I saw it after the accident it looked like a rotten pipe. It was eaten up………..
The pipe was defective on the inside when I saw it."

The Defence called Assistant Police Superintendent George Willoughby, who at the time was Inspector of Motor Vehicles, in support of the defence of Inevitable Accident. I accept his evidence, but his evidence does not support the Defence. He corroborates the second Defendant to the effect that the brake pipe was broken when he examined the pick-up.

This is an extract of the Assistant Superintendent's evidence:

"I observed brake cylinder pipe was burst ……. I got the impression that the break was caused by pressure. If it had been old you would have seen something there before. You could see pipe burst -and fresh metal exposed. Aluminium does not rust. It tends to snap. Brake pedal might have been pressed suddenly, hard."

But this witness went much further and had this to say:

"No emergency cable was attached to the vehicle. Just because pipe breaks does not mean that brakes are not functioning.

Emergency cable was not hooked up. It was out of action, not working at all. Emergency cable is independent from braking system. To illustrate, if the pipe was broken yet if emergency cable was in working condition that would have been the means of stopping vehicle, independently of brakes."

I find that the Plaintiff has succeeded in proving the case of negligence and that the Defence has failed in discharging their burden of proof of Inevitable Accident.

I therefore find for the Plaintiff. Although I accept the value of the car to have been $5,000 I think that an amount must be deducted as part of the vehicle could have been salvaged and sold. I will deduct $500 as being the reasonable scrap value of a vehicle beyond economical repair. I have now to add a notional amount for loss of earnings of $250 seems to be adequate therefore judgment for the Plaintiff in the sum of $4,750 and costs.

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