Supreme Court
Action No. 376 of 1980
7th December, 1983
Rajasingham, J.

Messrs Staine and Barrow, for the Plaintiff.
Messrs Lindo and Barrow, for the Defendant.

Traffic accident - Claim for personal injuries and damages to motorcycle - Plaintiff sustaining a broken foot from accident - Motorcycle sustaining a bent front fork and a bent frame - Plaintiff not suffering any injury causing permanent disability - General damages for pain and suffering - Special damages for damage caused to motorcycle and for loss of earnings due to accident awarded.

J U D G M E N T

The Plaintiff's claim is for damages for personal injuries suffered by him and for damage done to his motorcycle by the negligent driving of the Defendant. The Defendant denied negligence on his part and alleges that the accident was caused by the sole negligence of the Plaintiff. The Defendant has countersued for damages in respect of the damage done to his car in the collision. The Plaintiff denied the allegations made in the Defence.

The Plaintiff gave evidence and stated that as he rode along Cemetery Road with one Benjamin Ferguson, as his pillion rider, he was forced to stop to let a long vehicle manoevour into Turnell's yard on Cemetery Road. After that vehicle had turned into the yard, he started off again on his motorcycle and approached the junction of Lakeview Road and Cemetery Road which was about 100 to 150 yards from Turnell's yard. As he approached the junction, a car approached from the opposite direction signalling that it was going to turn to its right. As that meant the car was turning away from him, he proceeded on his way only to be taken by surprise when the car turned across his path instead of away from him. Plaintiff says he geared down and braked his motorcycle. Although the Plaintiff himself denied it, according to the evidence of John Neal, the Plaintiff's witness, the Plaintiff also swerved around the turning car. This meant he was swerving towards the wrong side of the road. Neal, however, also said the Plaintiff swerved to his left and then back to his right and was on his side of the road when the Defendant's car, which was following the car that had turned across the Plaintiff's path, collided with the Plaintiff's motorcycle. The Plaintiff says he found himself on the bonnet of the Defendant's car and saw his pillion rider on the ground. Plaintiff's witness Neal said he did not see the Plaintiff thrown on to the bonnet; he said at first that the pillion rider had the motorcycle across his leg and later said it was the Plaintiff whose leg was caught under the motorcycle. However, the Defendant corroborates the Plaintiff's evidence on this.

The Plaintiff was removed to hospital and his broken foot was put in a cast. The only injury suffered by the Plaintiff was a broken foot with a corresponding wound at the break. The wound, which was 2 1/2 inches long, was sutured. The Plaintiff says he had to keep his foot in a cast for almost three months. He says he felt great pain for three or four days and continued to feel pain when he had to move with his foot in the cast. He says he still continues to feel some pain in that foot.

The damage to the motorcycle was a bent front fork and a bent frame. The Plaintiff replaced the front fork at a cost of about $100 and estimated the cost of straightening the frame at $50 although he says it cannot be straightened. I take this to mean he estimates the damage to the frame at $50.00.

The Plaintiff is a bailiff and assistant tax collector for the Belize City Council. He receives a salary and a percentage of the arrears of rent collected by him. He said his income from arrears of rent amounted to $35 to $40 a month in 1979. He said his trouser was torn and had cost him $12.50. He says he also received $45 a month for the upkeep of his motorcycle. His Statement of Claim gives this figure as being $37.50. He claims loss of earnings from rent collections and loss of his motorcycle allowance for a period of four months.

The Plaintiff and his pillion rider both said the Defendant came up and said words to the effect that he had not been aware of what was happening, that he had been inattentive. Their recollection of the words varied, but both insisted that the Defendant did say words to that effect. John Neal says he saw the Defendant talk to the fallen Plaintiff but did not hear the words. In cross-examination the Plaintiff admitted it was of benefit to him to remember these words and that he himself would not have made such a generous admission as the Defendant did when he spoke those words.

Benjamin Ferguson, the pillion rider said very much the same thing the Plaintiff had stated in evidence. He added, however, that he saw the Defendant's car coming towards them and called out "watch out", that the Plaintiff too had seen the car, but could do nothing about it. He says he saw the Defendant looking at a young lady and not at the traffic ahead of him just before the collision. He said the Defendant was on the wrong side of the road. He said the Defendant repeated his blurted statement, that he had not seen the Plaintiff at all, at the hospital. He says the Plaintiff did brake, but not so hard that it caused the chain to break. He too denied that the Plaintiff swerved around the turning vehicle.

The Plaintiff then called John Neal, a bartender and eye witness to the accident. He said the Plaintiff was doing between 10 and 15 miles per hour and swerved to his left to avoid hitting the vehicle that turned into Lakeview Road. He said he heard Plaintiff yell, "They are going to kill me!" as he braked and skidded into the on-coming car. He said the Plaintiff, having swerved to his left to get around the turning vehicle, then swerved back to his side of the road. Neal said that the Plaintiff had gone on to the wrong side when he swerved to get around the turning vehicle, but had then swerved back to his correct side and was on his side of the road at the time of the collision. He said that, upon colliding with the motorcycle, the Defendant's car pushed the motorcycle backwards at a slight angle. This would explain the insistence of the Plaintiff and his witnesses, that the collision occurred about three to four feet from their edge of the road, in the face of the police evidence that the motorcycle ended up just across the middle line of the road. This witness was a little confused about whose leg had been caught under the motorcycle when it fell, but the Defendant's own evidence clearly shows it must have been that of the pillion rider Ferguson. I do not think this seriously affects his evidence.

The Defendant gave evidence and corroborates the Plaintiff about the car that turned into Lakeview. He goes on to say the motorcycle swung out, whereupon he braked and came to a stop. He says the motorcycle was doing about 50 or 55 miles per hour. This is a gross exaggeration which is not borne out by any of the physical evidence. He says the motorcycle ran into his stationary car. The Defendant is clearly trying to establish that the point of impact was the point at which the vehicles were found by his witness, ex-P.C. Vansen. He says the Plaintiff told him the turning car had given no signal, and he said nothing. I doubt very much that the Plaintiff said this because the Plaintiff's unchallenged evidence is that the turning car had signaled that it was turning, but in the opposite direction. He said the Police came there and took measurements.

The Defendant called ex-P.C. Vansen and he stated that the left rear of the car was fourteen feet four inches from the edge of the Plaintiff's side of the road and the left front of the car was fifteen feet eight inches from the edge of the Plaintiff's side of the road - thus placing the Defendant's car over the median line and on the Plaintiff's side of the road even after the collision. He said the rear wheel of the Plaintiff's motorcycle was twelve feet from the edge of Plaintiff's side of the road and his front wheel, which was hooked to the Defendant's bumper, was fifteen feet two inches from the other side of the road. This would have made it appear that the collision had occurred on the wrong side of the road if it had not been for the evidence of Neal that the car pushed the motorcycle along after the collision and, for the even more convincing evidence that the brake mark left by the motorcycle, and which ended at the rear wheel of the fallen vehicle, had commenced at a point even closer to the Plaintiff's edge of the road than the point at which the brake mark ended.

This clearly corroborates the Plaintiff and his witnesses when they say the collision occurred at a point even closer to the edge of the road than the point at which the rear wheel lay after the collision. Mr. Vansen subsequently clouded this issue by saying he could not say whether the skid commenced closer to the right or left edge of the road. This answer, to my mind, was merely indicative of Mr. Vansen's inability to decide which was left and which was right as he kept confusing directions until he was shown his sketch. So long as he gave evidence-in-chief, I had asked him to picture himself facing the cemetery and he appeared to avoid confusion, but as soon as he was asked a few questions in cross-examination, he seemed to lose his sense of direction again. I am satisfied that the latter answer arose from a misunderstanding of the question put to him.

The evidence clearly establishes that the Defendant, for whatever reason, was on the wrong side of the road and attempted to get back to his side but collided with the Plaintiff's motorcycle before he did so and pushed it ahead of him so that it ended up partly across the median line. I am satisfied that the Plaintiff took all the evasive actions he could take in the circumstances and probably thereby mitigated the serious injuries that could have been caused by the Defendant's negligence and disregard for other users of the road. I am also satisfied that the Plaintiff was not travelling in excess of a speed of 15 miles per hour and was probably travelling even slower than that.

The Plaintiff suffered a broken foot and a wound at the site of the break. He has suffered no permanent disability beyond some occasional pain from the area of the fracture. He suffered great pain for three or four days, according to his evidence, and had to keep the cast on for three months. He says he was away from work for four months in all. There is no evidence that his injury restricted any leisure activities at any time.

I have studied the case law on this type of injury and find that in the reported cases there has always been an element of permanent disability. The awards have varied between £2,500 and £3,000 in those cases in which the permanent disability is of such a nature as for example, to leave the injured person with difficulty in walking on uneven ground. Since the Plaintiff has, fortunately for him, suffered no such disability, I think a sum of $1,200 is a reasonable estimate of damages for pain and suffering and temporary loss of amenities.

The Plaintiff is also awarded a sum of $65 for the replacement of a front fork, $50 for the damage to the frame of the motorcycle, $140 as loss of earnings for four months by loss of his commission on debts collected, $12.50 for the loss of a pair of trousers and $150 against the loss of his allowance for maintaining a motorcycle for use in his job, as special damages.

I, therefore, give judgment for Plaintiff in a sum of $1,200 as general damages and a sum of $417.50, as special damages. I dismiss the Defendant's counterclaim. The Plaintiff is awarded costs of the Action.

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