Supreme Court
Action No. 153 of 1978
31st December, 1982.
Alcantara, J.

Mr. E. Flowers, for the Plaintiff.
Mr. G. Godfrey, for the Defendant.

Tort - Liability of Road Authority to repair and keep in good repair bridge on a public road - Water Lane Bridge in Belize City - Belize City Council is the Road Authority for bridges within the city limits - Section 108 of the Belize City Ordinance - Bridge in bad state of disrepair and Plaintiff's truck extensively damaged when bridge caved in due to disrepair - Whether section 108 of Belize City Ordinance imposes a statutory duty on Road Authority to keep in good repair bridges within city limits or merely imposes a power.
Common law liability of Road Authority - Whether Road Authority liable under the common law for failing to repair bridge - Whether Road Authority liable only for faulty repairs.
Counterclaim - Road Authority counterclaiming special damages for repairs effected to bridge after the bridge caved in - Whether Plaintiff was responsible for the bridge to cave in.

J U D G M E N T

There is no dispute that the Water Lane Bridge in Belize City partially caved in on the 16th January, 1978 and that a truck driven by the Plaintiff across the bridge was damaged.

What is in dispute is what caused the caving and also the extent of the damage suffered by the Plaintiff.

The evidence for the Plaintiff is that he had a truck, D-901, for the carrying of freight and passengers from and to Stann Creek. His normal way out of Belize City was through Water Lane Bridge. On the day in question, just as he was coming out of the bridge, he heard a noise and felt the front wheels of the truck lifting. He got out of the truck to investigate and found that the right rear wheel had sunk on a caving produced by the decking of the bridge having given way. He alleges that the decking was rotten. The truck was lopsided and suffered extensive damage. Later on with the help of a loader, he was able to extricate the truck. According to him the truck was a total loss. He had bought the truck for $15,000 in 1972. He is claiming $34,500 for the truck, this being the price which Belize Estate was selling similar trucks at the time. He is also claiming $100 per day loss of earnings from the 16th January, 1978.

The Defence admits that they were the Road Authority in respect of Water Lane Bridge, but deny that the bridge was either dangerous or that they were negligent in repairing it. They further allege that they were under no statutory duty to maintain the said bridge or that if in breach of any duty the Plaintiff has no cause of action. In the alternative they claim $3,017.84 for repairing the bridge after the accident alleging negligence on the part of the Plaintiff on the ground that the Plaintiff knew or ought to have known that the weight of the truck was excessive and could not be borne by the said bridge.

Before I turn to the question of liability I would like to dispose of two matters which do not present any difficulty.

The Defendants are a public authority and consequently protected by the Public Authorities Protection Ordinance Cap. 229. Section 3 of the Ordinance reads as follows: -

" Section 3 (1) No writ shall be sued out against, nor a copy of any process be served upon any public authority for anything done in the exercise of his office, until one month after notice in writing has been delivered to him, or left at his usual place of abode by the party who intends to sue out such writ or process, or by his attorney or agent in which notice shall be clearly and explicitly contained the cause of action, the name and place of abode of the person who is bringing such action, and the name and place of abode of the attorney or agent.

(2) No evidence of any cause of action shall be produced except of such as is contained in such notice, and no verdict shall be given for the Plaintiff unless he proves on the trial that such notice was given, and in default of such proof the Defendant shall receive in such action a verdict and costs."

Has section 3 been complied with? The evidence for the Plaintiff, which I accept, is that immediately after the accident he went to see the Mayor to report the accident and make his claim. This was followed by a letter from his Solicitor dated 13th July, 1978 which reads as follows:

P. O. Box 904	11 Dean Street
Telephone 2236	Belize City

Mayor,
Belize City Council
Belize City

13th July, 1978

Dear Mr. Mayor,

Re: Notice of Action

I hereby give notice in accordance with Section 3 of the Public Authorities Protection Ordinance Chapter 229 that I intend to file a Writ in the Supreme Court against the Council on behalf of Mr. Dalmon Ritche.

On the 16th January, 1978 while Mr. Ritche was driving his truck over the Water Lane Bridge it caved in and his truck was extensively damaged. He alleges that no warning was placed at the bridge and it was in a bad state of disrepair and in fact the Council was negligent in discharging its duty.

Yours faithfully,

 

Edwin L. Flowers
Edwin L. Flowers

I find that this letter is in conformity with section 3 of the Public Authorities Protection Ordinance except that the address of the Plaintiff is not stated. I feel bound to say that having complied with the time limit of one month the address of the Plaintiff is not vital and that consequently the Plaintiff is not prevented from proceeding with his claim.

I now turn to the question of damages and I say that the damages claimed are grossly inflated. The most the Plaintiff could get would be the value of the truck he had or the value of an equivalent truck; not a new one. The figure of $10,000 is a realistic one. The loss of earnings cannot continue for ever as claimed. I find that $100 per day profit is excessive, a more realistic figure is $300 per week and only for a limited period of say 10 weeks, unless there were to be evidence to the contrary. In respect of loss of earnings I would have awarded a figure of not more than $3,000. So the total figure for damages would be $13,000.

Now as to the question of liability. I will start with making some findings of facts:

1. The truck was not overloaded
2. The bridge was defective and in need of repairs
3. There was no negligence on the part of the Plaintiff in negotiating the bridge
4. There was no sign on the bridge warning users.

The Plaintiff's claim is based on two grounds. Firstly, the general common law liability of highway authorities, and secondly, the specific statutory liability, if any. Dealing with the second one first I shall quote from section 108 (1) of the Belize City Council Ordinance Cap. 135:

"S. 108 (1) All streets, in which term is included public drains, within the boundaries of the Town of Belize City shall be under the control, care and management of the Council.

(2) The Council shall have power in respect of any street to do any of the following things-

(a) to lay out, construct, repair, alter or widen all streets with such material and in manner as the Council thinks fit;

(b) …………………………………………………………………………….."

I first direct my mind to Hood Phillip's on Constitutional and Administrative Law, 3rd Edition at page 637 for the following passage.

"The fact that a public authority has failed to perform duty does not necessarily mean that a citizen can take proceedings against either it to compel it to perform the duty or for damages for failing to do so."

It can be argued in this case that section 108 (1) of the Belize City Council Ordinance does not even impose a duty, but merely confers a power. My interpretation is that there is no statutory duty to repair and even if there were it does not give an independent cause of action. The Plaintiff cannot succeed on this ground.

The Plaintiff is on stronger grounds on the common law liability of a highway authority. In England there is a big distinction between non-feasance and misfeasance. The point that is worthy of consideration is whether this distinction has been passed on to other common law jurisdictions. The distinction in England is only understandable on historical ground. I think that such distinction should have no place in the West Indian common law. I think a thesis would be written on this point. I am of the opinion that failure to repair should give rise to a cause of action.

However, in the absence of any authority which would enable me to say that in Belize there is no distinction between non-feasance and misfeasance I feel reluctantly compelled to hold that the English common law applies. I find that failure to repair gives no cause of action as opposed to faulty repairs. There is evidence that all bridges including Water Lane were overhauled in 1977 because it was election year. There, is however, no evidence as to what repairs were necessary or in fact executed on Water Lane Bridge. Still less, there is no evidence that they were executed negligently. At times it is difficult to produce direct evidence and an inference has to be drawn from the facts. In this case the fact that the bridge gave way is not sufficient for the Court to draw the inference that it was due to negligent repairs as opposed to non-repair. Consequently, I feel that I must dismiss the case for the Plaintiff. I also dismiss the counterclaim as the damage caused to the bridge was not directly attributable to the negligence of the Plaintiff.

I dismiss the claim with costs.

I also dismiss the counterclaim with costs.

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