Supreme Court
Action No. 315 of 1980
12th March, 1982
Rajasingham, J.

Mr. N. V. Dujon, for the Plaintiff.
Mr. J. C. Gray, for the Defendant.

Traffic Accident - Contributory Negligence - Assessment of General Damages - Loss of use of motor vehicle - Damages to be assest based on yearly depreciation of value.

J U D G M E N T

The Plaintiff in this case is suing the Defendant for damages arising from, according to the Plaintiff, the negligent driving of the Defendant of his truck at Corozal Town on the 9th day of May, 1980, which caused it to run into and damage the Plaintiff's Dodge pick-up. The Defendant claims that the Plaintiff was drunk and ran into him. The whole case hinges on whether the Defendant drove on the 4th Avenue, a major road, out of 3rd St. North, a minor road, or whether the Defendant was himself in fact travelling on the major road, 4th Avenue.

The Plaintiff's evidence is most unhelpful and if this case had depended on his evidence alone, it would certainly have failed. His evidence of the accident proper is very simply that he was driving along 4th Avenue when he was hit and lost consciousness. He, after much pressing, ventured what appeared to be a reluctant answer when he said the Defendant's vehicle came out of 3rd St. North from his left. The damage to the vehicles is stated to be the front of each and thus the Plaintiff was hit from the front and should, if he had been keeping a proper lookout, have seen what happened. This failure on the part of the Plaintiff lends credibility to the Defendant's account that the Plaintiff was drunk. The Defendant also called one Amador Lima who stated that the Plaintiff side-swiped his vehicle about 25 yards before he met with the accident which is the subject matter of the present Action. Lima said the Plaintiff was driving in the opposite direction to himself when he swung over to Lima's side of the road and side-swiped Lima's vehicle. He said he found the damage negligible and on the instructions of the owner who was with him he drove away and made no complaint. This incident, if believed, would lend strong support to the Defendant's contention that the Plaintiff was drunk. The Defendant stated in evidence that when he went up to the Plaintiff's vehicle, the Plaintiff appeared to be drunk and was unable to talk. He also added, under cross-examination, that the Plaintiff ran away from the hospital, suggesting that the Plaintiff was unwilling to be medically examined. Although the Plaintiff's Counsel cross examined the Defendant on the appearance of the Plaintiff after the accident possibly being due to his injuries, he did not seek to contradict the Defendant's repeated assertion that the Plaintiff ran away from the hospital. All this, to me, suggests a strong probability that the Plaintiff was not entirely sober at the time of the accident.

The Defendant's evidence too was very unsatisfactory. The Defendant's attempt to explain his absence from the scene only appeared to corroborate the evidence against him. The Defendant made no attempt to meet the evidence of W.P.C. Sandra Cattouse when she said that the Defendant reversed his vehicle from the scene of the accident into 3rd St. North. He appeared to base his entire defence on his statement that he was proceeding along 4th Avenue and did not come out of 3rd St. North. His evidence did not, in my opinion, succeed in controverting the evidence of W.P.C. Cattouse.

I was very impressed with the evidence of W.P.C. Cattouse. She was very specific in her answers, so much so that Counsel for the Defendant sought to make an issue of what turned out, in my opinion, to be an extraordinary degree of exactitude. It is useful to deal with this immediately. W.P.C. Cattouse stated that the Defendant drove out of 3rd St. North and "turned" right into 4th Avenue and in doing so ran into the Plaintiff's vehicle which was proceeding along 4th Avenue, the major road of the two. In cross-examination she agreed that the Defendant's vehicle was at the moment of the collision travelling on 4th Avenue. This answer was not pursued by Counsel for the Defendant, wisely as it turned out, because, in re-examination and without any prompting at all, she explained that the Defendant had come out of 3rd St. North and was at the moment of collision travelling in fact on 4th Avenue. This urge to be exact, very nearly threw doubt on her whole evidence, but is, as I have stated, only an illustration of the fine eye for exact detail shown by this witness throughout her evidence. Her evidence also explained a matter that had given me some thought, namely the fact that the damage to both vehicles was to the front of each. If this were so the vehicles had to be almost facing each other at the moment of impact, something that could not have been so if the Defendant had been turning into 4th Avenue. Miss Cattouse in her examination-in-chief twice stated that the Defendant "turned right into Fourth Avenue facing in a southerly direction" - which clearly indicated that the Defendant had completed his turn when he hit the Plaintiff's vehicle. There was no cross-examination on this aspect. Counsel for Defendant merely suggested to the witness and she accepted that at the moment of the accident the Defendant was travelling "on 4th Avenue", an answer entirely in keeping with her other evidence. I accept W.P.C. Cattouse's evidence that the Defendant drove out of 3rd St. North into the path of the Plaintiff's vehicle as it travelled on 4th Avenue.

I also accept the evidence of Amador Lima. Lima's evidence does not affect the manner in which this accident occurred but does, as I have already said, clearly suggest that the Defendant is correct when he says the Plaintiff appeared not to be entirely sober.

I come now to the damage to the two vehicles. The damage to the Plaintiff's vehicle is very extensive; the Plaintiff claims it was so extensive that it is uneconomical to repair the vehicle. The Defendant stated that the Plaintiff was driving at a fast speed. This is uncontradicted. The extent of the damage to the Plaintiff's vehicle clearly suggests that this was so. The evidence is that the Defendant drove out into the Plaintiff's path when the Plaintiff was twenty feet from the junction of 3rd St. North and 4th Avenue. This did not leave time for the Plaintiff to stop his vehicle altogether no matter what speed he was travelling at; but I am of the opinion that if he had been sober and had not been travelling at high speed he could have broken speed sufficiently to have reduced the damage to himself to a fair extent.

I, therefore, find that on the facts as adduced before me, the Defendant bears eighty percent responsibility for the accident and the Plaintiff twenty percent responsibility in that he had the opportunity, if not to avoid the accident, certainly to reduce the damage.

The Plaintiff had the evidence of one Louis Aroscoe as to the cost of repairing his vehicle. He sought thereby to show that it was uneconomical to repair it. He made no attempt to give a value to the damaged vehicle. Witness Aroscoe said he estimated his labour charges including painting the damaged part of the body at $3,700. When pressed in cross-examination he said this would be for straightening the chassis after removing the cab, to "fix" the bonnet and both fenders, to spray the damaged parts and to fit the radiator, windscreen, grill and battery. He appeared to forget he had said the vehicle required one new front fender, when he said he had to "fix" the fenders, meaning repair them. I got the distinct impression from his manner and his answers that he had come with the specific intention of stating this whether he actually believed it or not. I think it unsafe to act on his evidence as to the cost of repairing the Plaintiff's vehicle. I also think it unsafe to act on the evidence of customs valuation for duty purposes as those values are based on U.S. data which does not always tally with local market conditions. The only other evidence is that of the Defendant in answer to Court. He stated, and he was not to know he could not be asked to carry out the repair, that he, a bodyworks man by occupation, would undertake the repair of the Plaintiff's vehicle for $3,000. I think that to be a fair estimate in all the circumstances.

It remains only to estimate the general damages. The Plaintiff used his vehicle for general purposes and hence no particular purpose. Aroscoe, the Plaintiff's witness has estimated the depreciation in market value from 1980, the year of the accident, to 1981, presumably the end of that year at $500. Thus the Plaintiff has suffered depreciation in the value of his vehicle, without having had the use of it. Mr. Dujon cited the House of Lords case of the Steamship Chekiang (1926) Appeal Cases, page 637. General damages in that case was calculated by the Registrar at a percentage of the capital value of the damaged ship. Mr. Dujon suggested that this may be of some help in arriving at general damages in view of the lack of evidence as to particular loss. Although Viscount Dunedin said it was not an absolute rule that damages for detention of a non-profit earning ship should be calculated on the basis of a percentage of capital value, the Lords, in the same year, did just that in the case of a profit-making merchant ship, the Susquehanna, reported in the same Volume of Appeal Cases at page 655. It is difficult to work out the years for which a pick-up can be used because it depends on the manner in which it is used. This being so any attempt at setting a percentage in terms of loss would be hazardous for the Court. I think it far safer to go on the basis that the Plaintiff suffered a depreciation in the market value of his assest of $500 without having had the use of it. This seems to me to be a reasonable method of assessing the general damage suffered by the Plaintiff.

The parts required for the repair which will have to be purchased new and which cannot therefore have been included in the estimate made by the Defendant, are the windshield which costs $500 and the battery which costs $135. These sums were not challenged. The Plaintiff will be entitled to 80% of the cost of these items. The fender, grill and bumper are repairable and are presumably included in the Defendant's estimate since the damage to them could be easily seen.

I therefore assess the damages due to the Plaintiff from the Defendant as follows:-

I award damages to the Plaintiff in the sum of $3,308 with interest thereon at 6% from date of Writ until payment in full. I also award costs to the Plaintiff to be taxed but to include the costs for the 1st of March, 1982, of $100.00 already awarded as costs for that day.

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