Supreme Court
Action No. 364 of 1980
Rajasingham, J.

Mr. Dujon, for Plaintiff
Mr. D. Courtenay, for Defendant.

Road traffic accident - Assessment of damages - Accident caused by sole negligence of Defendant - Need for Plaintiff to prove actual expenses incurred in repairing motor vehicle following the accident.

JUDGMENT

The Plaintiff's claim is for damages arising from an accident, between his pick-up and a pick-up belonging to the Defendant, on the 27th of November, 1979. The Defendant, while admitting the collision, asserts that the collision was entirely due to the negligent driving of the Plaintiff.

The version of the accident given by the two parties only agree on the identity of the vehicles and their respective drivers and on the damage caused to the vehicles; they differ entirely on how the accident itself occurred.

The Plaintiff gave evidence and stated that at about 9:30 a.m. that morning he was approaching Belmopan, along the main road into Belmopan called Constitution Drive, when the Defendant drove out of a "picado" or dirt road on to this main road and ran into the Plaintiff's vehicle. The Plaintiff says he himself was pulling up with the intention of taking the second entrance into the Marsden Gas Station because he had seen friends at the gas station. He says he saw the Defendant's pick-up on the dirt road and heard someone call out something which made the Defendant turn and look back as his vehicle continued to move forwards. It is the Plaintiff's contention that it was this lack of attention that caused the Defendant to run into the Plaintiff's vehicle. The Plaintiff called two teachers, Christino Dominguez and Diana Shields as his witnesses. The Plaintiff and his witnesses were all from Orange Walk and had journeyed to Belmopan to see the Premier. They were thus comparative strangers to Belmopan. The evidence of Christino Dominguez and Diana Shields was substantially the same as that given by the Plaintiff. There were some discrepancies in their evidence such as which entrance of the gas station their vehicle was at when the Plaintiff passed. I am of the opinion that these apparent contradictions arise from their attempts to describe in words a scene with which they are not familiar and which they were trying to recall three years later. I was particularly impressed with the evidence of Diana Shields. She was very certain of what she said and at pains to avoid any misunderstanding. She described in graphic detail the exchange of words that took place immediately after the incident. She said she told the Defendant right away that he was at fault, when the Defendant sought to accuse the Plaintiff. She said she had recognized Magaña's vehicle and was laughing at him because he was late and had missed "the meeting" - when the accident occurred. She says she saw the Defendant look back as he continued to drive out into the main road and hit the Plaintiff. Dominguez says he was waiting to drive out of the gas station when the accident occurred. He said he was coming out of the entrance furthest from Belmopan. Shields said they were waiting to drive out of the entrance nearest to Belmopan. There appears to have been some misunderstanding on the part of Dominguez, perhaps of the questions, because he goes on to say that the Plaintiff had not yet passed him when the accident occurred and that "the road Espat came out of was slightly to the left of me as I waited at the gas station". The only dirt road that could be on his left as he came out of the gas station is the access road into the construction site and that could only be on his left if he was coming out of the entrance nearest to Belmopan - as Shields said he was. The other side-road, Forest Drive, could never be on his left no matter which entrance of the gas station be came out of. Thus an apparent contradiction clearly appears to be the result of a misunderstanding on his part.

I might deal here in passing with a rather curious line of Defence to which the Defendant clung tenaciously even in his evidence. The Plaintiff was cross-examined on the basis that the only side-road was Forest Drive and that no such access road as was mentioned by the Plaintiff had ever existed. The Plaintiff was thus required to call a witness, Oliver Gillett, to prove that in November 1979, there had indeed been a road giving access to what was then the construction site for the new Police Training School. Subsequently in his own evidence, given after Gillett had stated that such a road had existed, the Defendant said he could not refute Gillett, but did not himself remember such a road as he never had reason to use it. I find it a little difficult to believe that the Defendant, himself a building contractor resident in Belmopan, could not remember this access road leading off the main road into Belmopan and situated across the road from the only gas station in Belmopan. Perhaps the fact that it only existed for about a year and does not exist any longer caused the Defendant to forget it, but it hardly explains his denial when he was reminded of it by Gillett's evidence.

The Defendant gave evidence and stated that he had driven past the first entrance of the gas station and rather than make what he called a "cumbersome" turn through the second entrance in his pickup with power steering, he decided to reverse and enter the gas station to get gas. He said, in examination-in-chief, that he reversed till he was opposite the entrance and stopped and that he then looked in front before "moving forward". He later went back on this and said he stopped after he had reversed part of the way; he did not say why he did so. However, he must have realized that the vehicles collided between the two entrances to the gas station and hence if he said he reversed up to a point "almost opposite the gas station entrance" he would literally have gone too far. In his examination-in-chief he said he went "a few feet" beyond that entrance; in cross examination he said he had over run that entrance by 40 feet and later extended that to 60 feet. Whether it be all the way or part of the way, he said he reversed and stopped and looked forward, either to turn into the gas station as was implied in examination-in-chief or for no apparent reason as appeared to be the case later. Upon looking forward he says he saw the Plaintiff's vehicle coming at an angle across the road into him with the Plaintiff himself distracted by his female passenger. He said the Plaintiff ran into him as his vehicle remained stationary and the Plaintiff's bumper hooked his bumper and dragged his vehicle until it lay across the road. Being curious as to how it was physically possible for two bumpers to meet head-on and hook each other, I asked him to explain the phenomenon to me and he then said the Plaintiff may have seen him at the last moment and attempted to swing away and caused the bumpers to hook one into the other. I am afraid the explanation leaves me no wiser.

The Defendant called Assistant Inspector of Police Lucius Pratt as a witness to speak of the investigation made by the Police. The evidence of this witness placed the point of impact in the center of the road, thus contradicting the Defendant who said he was on his edge of the road when he was hit. This witness was shown to be speaking to what he concluded rather than what he in fact saw or heard. He said in examination-in-chief that he "enquired from Dominguez and he said he did not see anything" (unquote). Upon seeking to clarify this, I learnt that he had merely called generally for witnesses and none had come forward from a crowd which included Dominguez. I do not, therefore, feel it safe to rely on this witness in arriving at my decision.

The structural damage is consistent with both versions of the accident and is therefore, not helpful in deciding the matter.

Upon a consideration of all the evidence I am of the opinion that the accident occurred in the manner described by the Plaintiff and his witnesses. The evidence shows that the Defendant entered a main road from a dirt road while his attention was drawn elsewhere, and hit the Plaintiff's vehicle almost head on by swinging towards the Defendant's right in the beginning of a turn towards the direction in which he was proceeding, namely towards Hummingbird Highway. The final positions of the vehicles are entirely consistent with the Plaintiff's version.

I hold that the accident was caused entirely by the negligence of the Defendant. The Plaintiff called one Javier Samos as a witness to speak to the extent of the damage to his vehicle and the cost of the repair. According to Samos the repair was completed within a month of the accident. The Plaintiff says he could not do it for nearly a year and that it took fourteen months before he had it done and got back his vehicle. Samos was very definite that it was completed by New Year 1980, the end of 1979. It may be that Samos is mistaken about the year, but I do not propose to speculate on that.

I am not at all happy about the estimate produced by the Plaintiff. The prospect of spending $7900 to repair a vehicle which when completed was going to be worth $7,000, does not attract me at all. The damage described by the Plaintiff is entirely structural and does not affect the engine, gearbox or axles and the major part of the suspension; it is entirely damage to the bodywork and a bent chassis. The evidence also shows that the estimate was made without ascertainment of actual cost but by reference to other repairs. Samos said the bonnet and mudguard were replaced and not repaired. I think that is an unjustifiable extravagance. The figures $600 and $500 for these items are reduced to $200 and $150 respectively as being reasonable for knocking out and straightening these two items; these figures as quoted do not include painting which is listed separately. The sum set out against the cost of a radiator is exorbitant. I think that a sum of $400 would be sufficient to replace the entire core of the radiator. I therefore reduce the sum set out against the cost of a radiator. I therefore reduce the sum set out against the cost of a radiator from $775 to $400. I think the sum of $1800 set out against "body work" is unjustified in view of the estimate being based on the replacement of most damaged parts rather than repair. The repair of the body structure too is separately listed. Hence this sum can only be for knocking out small areas of body panels, since the bonnet and mudguard were replaced by new ones. I therefore reduce the labour charged for bodywork from $18000 to $600. That would be a fair wage for knocking out small areas of bodywork, re-aligning chasis and re-settling the cab. The left door is already listed as a left-side body structure. Under the title "mechanical parts" is an item referred to as "beam axle - is bent". This can only be a reference to the chasis because no other undercarriage damage has been spoken of by anyone. I cannot accept this item without some explanation to show that it is not the item covered by "body work" in the first part of the estimate. I therefore, disallow it as not proved.

I award a sum of $5,165.30 as damages incurred in repairing the Plaintiff's vehicle. I award a sum of $200 as damages arising from the loss of use of the pick-up for one month.

I give judgment for the Plaintiff in a sum of $5,365.30 and costs.

In view of my finding that the accident was caused entirely by the negligence of the Defendant, I dismiss the Defendant's counterclaim.

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