Supreme Court
Action No. 339 of 1997
18th April, 2000
Shanks, J.

Mr. Dean Lindo for the Plaintiffs
Mr. Dean Barrow, S.C. for the Defendants

Road traffic accident - Driver of vehicle killed in road traffic accident - Wife of deceased suing for damages - Evidence establishing deceased was at fault - Counterclaim for damages successful.

J U D G M E N T

1. This is a fatal accident claim arising out of a road traffic accident which occurred on the Southern Highway near Cowpen on 19 April, 1997 in the late afternoon. The Second Defendant was driving the First Defendant's truck north towards Alta Vista with a heavy load of citrus in the trailer and it collided with Frank Rempel's pick-up which he was driving in the opposite direction, killing him instantly. There is also a counter-claim in respect of the damage to the First-Defendant's truck, which was effectively written-off in the accident.

2. The only evidence which the Plaintiffs could call as to the circumstances of the accident was from Norman Baide, who was Mr. Trapp's sideman and a passenger in the truck. He gave evidence that he was in the passenger's seat and that the truck had just pulled away from a stop and was doing about 20 mph when he noticed a pick-up coming towards them at quite a speed. The road was rough and the pick-up went over a bump and appeared to lose control. Mr. Trapp attempted to take evasive action by moving to his left hand side of the road because the pick-up kept coming on his right. The collision occurred in the middle of the road. He told me that the pick-up hit the truck with the driver's side of the pick-up and the passenger side of the truck taking the impact but this seemed to me a physical impossibility. Mr. Baide was thrown through the windscreen in the accident and was unconscious for a period of time. The two vehicles ended up off the road on the southbound side of the road with the truck pointing south. This was confirmed by some photographs of the aftermath of the accident which were also put in evidence. Mr. Baide said that the truck and the pick-up were about eight feet apart when he saw them after he came round.

3. Mr. Trapp's evidence was that he had indeed just taken off and that he was doing 20-25 mph when he saw a pick-up coming towards him quite fast about 200 yards away. At about 100 yards away he saw the pick-up jump into the air as it went over a culvert in the road (the existence of which was confirmed by one of the photographs) and then it came over onto his side of the road and kept coming. He tried to pull over onto the extreme right but the pick-up hit the truck on the driver's side and ripped the steering system (which is located below the driver) off the truck. The truck then turned through 180 degrees and ended up off the other side of the road facing south. Mr. Trapp was wearing a seat belt and was not hurt. He told me the side-man, Mr. Baide, was not sitting in the passenger seat at all but was actually in the "sleeper" behind the seats and he was thrown from there through the windscreen. The pick-up ended up wedged underneath the truck. The explanation for the truck ending up off the left hand side of the road was that once the steering system was ripped off the wheels could go anywhere and the pick-up must have impacted in such a way as to send them to the left.

4. Mr. Lindo submitted that I should find on the basis of Mr. Baide's evidence and the final position of the vehicles that the truck was being driven in the middle of the road and this was the cause of the accident. I am afraid I cannot do this. I much preferred the evidence of Mr. Trapp as to how the accident occurred to that of Mr. Baide. Mr. Baide was thrown through the windscreen and was rendered unconscious and admitted he did not remember everything clearly; he ended up admitting that he was not sure where on the truck the impact had taken place and that the pick-up could, after all, have been lodged under the truck. On the basis of Mr. Trapp's evidence the accident was clearly not his fault but the fault of Mr. Rempel for driving the pick-up too fast and losing control. However, even if I accepted Mr. Baides' account rather than Mr. Trapp's, I do not think this would help the plaintiffs. He said that the truck was in the middle of the road because the driver was doing his best to avoid the oncoming pick-up which was out of control; if this is right, the accident was still Mr. Rempel's fault.

5. In the circumstances, I regret that I must dismiss the Plaintiff's claim although I naturally have the deepest sympathy for Mrs. Rempel and the children and I am conscious of the evidential difficulty that she was in. It also follows that the First-Defendant's counterclaim against Mr. Rempel's estate for the damage to the truck must succeed. Mr. Gordon Jenkins told me that the truck had cost $20,000.00 three or four months earlier and that it was a "write-off". He also told me that he had to hire an alternative for about $300.00 per day for a period of 3-31/2 months which was the remainder of the citrus season. In the counterclaim credit is given for $1,000.00 for slavage and the cost of hiring an alternative vehicle and unloading the goods and transporting them away is claimed at $1,000.00. It seems to me that the unpleaded claim for an alternative vehicle for 3-31/2 months is excessive and represents a failure to mitigate. I propose to award $20,000.00 as claimed in the counterclaim. There shall also be three years interest at 12% making a total award of $27,200.00.