Supreme Court
Action No. 43 of 1980
20th June, 1983.
Alcantara, J.

Mr. Denys Barrow for the Plaintiff.
Mr. D.B. Courtenay & Co. for the Defendants.

Action for damages for personal injuries caused by negligence of 1st Defendant whilst driving vehicle owned by 2nd Defendant - Evidence adduced by Plaintiff insufficient to discharge burden of proof - Evidence of 1st Defendant and supporting witness accepted - Failure by Plaintiff to prove case - Action dismissed with costs - Obiter - By handing over truck to 1st Defendant, 2nd Defendant was making him her agent - Agency did not come to an end by virtue of verbal instructions concerning use of truck.

J U D G M E N T

In February, 1974, a United States citizen, the Plaintiff Joseph Francis Dillon Jr., arrived in Belize, British Honduras at the time. He came with other people in a Land Rover, which he together with one of them, David McHenry, had brought in Boulder (Colorado) for U.S. $4,000.

The Plaintiff at the time was 24 years old. The purpose of his visit to this part of the World was a photographic and Journalistic tour. Freelance, I presume, because he was not employed at the time.

The Land Rover arrived in Chetumal (Mexico) on Sunday, the 24th February, 1974, and came over from Santa Elena to the border. After passing immigration and customs the occupants met one Edmund Hall who asked them for a lift up to Corozal. He was given a lift. At the time the Plaintiff was driving.

The Plaintiff's evidence in his own words are as follows:

"Set out from border to Corozal, when we set out I drove for several miles during which Hall insisted that he be allowed to drive to Corozal Town. There was a change of driver about half way from border to Corozal. Edmund Hall took over driving. I telling him that we never drove Land Rover over 45 m.p.h. on side roads. I, in effect, cautioned Hall not to go over 45 m.p.h. To the best of recollection he was not doing over 45 m.p.h. the last time I looked at speedometer.

There was an accident before we reached Corozal. I am not in a position to say anything about occurrence of accident."

As the result of the accident Edmund Hall was killed and the Plaintiff was seriously injured, and the Land Rover was wrecked. There is no dispute that there was a collision between the Land Rover which was travelling South and a truck driven by the first defendant which was travelling North.

The Plaintiff is claiming damages arising out of the accident which he alleges was caused by the bad driving of the first defendant.

The Court has not been given any information as to who this Edmund Hall was. Whether he was known to the Plaintiff or any of the persons in the Land Rover or whether it was a fortuitous encounter. Evidence has been given by a witness for the Plaintiff, Mr. Roland Andrews, that Hall was 17 years old and did not possess a driving permit. Mr. Andrews in 1974 was a police sergeant in charge of the Corozal Town Police Station and the person who carried out an investigation into the death of Edmund Hall.

Mr. Roland Andrews stated in his evidence that he visited the scene after the accident and has given us the benefit of his recollection as to how the two vehicles ended up. His evidence, short of speculation, does not throw any light as to how the accident occurred or as to hew the respective drivers were driving. It really adds very little to the Plaintiff's case.

At the end of the case for the Plaintiff I was of the opinion that the evidence adduced was insufficient to discharge the required burden of proof. Nonetheless the Defence called the first Defendant, the driver of the truck who came into collision with the Land Rover. His evidence of the accident is the eye-witness-version I have of the collision. He is not a particularly good witness but I accept his evidence in the absence of any other. His evidence has been supported by a passenger in the truck, a Mr. Basilio Mena, another eye witness.

That is really the end of the case except for the fact that I want to refer to the Defence of the second Defendant, where she pleads that the first Defendant was not the servant or agent of the second Defendant, and that he was not acting in course of his employment.

On the evidence given this Defence is not made out. By handing over the truck to the first Defendant, the second Defendant was making him her agent and that agency does not come to an end just because of some verbal instructions concerning the use of the truck. This point is, however, academic as I find that the Plaintiff has failed to prove his case.

Action dismissed with costs.

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