Supreme Court
Action No. 97 of 1980
27th May, 1982
Alcantara J.

Mr. Philip Zuniga appearing for the Plaintiff.
Messrs. W.H. Courtenay & Co. appearing for the Defendants.

Traffic Accident - Plaintiff and Defendants presenting completely different versions of how traffic accident occurred - Plaintiff alleging that the oil-tanker of Defendants collided into his stationary motor vehicle just before a culvert - Defendants alleging that Plaintiff's motor vehicle collided into their stationary oil-tanker just before culvert- Need for corroboration of evidence by independent witness - Contributory negligence - Whether the facts of the case established any contributory negligence on the part of the Plaintiff - Special and General Damages - Assessment.

J U D G M E N T

On the 6th day of August, 1979, between Miles 37 and 38 on the Northern Highway there was a head-on collision between two motor vehicles. The Plaintiff, Adonis Daniels, was driving his Ford motor car C-6711 to Corozal. Coming in the opposite direction Natalio Cowo, the second Defendant, was driving a G.M.C. Oil-Tanker belonging to the first Defendant.

Each blames the other for the accident, and the Particulars of Negligence both in the Statement of Claim and in the Defence are not widely dissimilar. The Plaintiff is claiming damages for the loss of his car and for personal injuries apart from some items of special damages. The Defendants are not claiming any damages. They deny liability and in the alternative they allege contributory negligence.

The evidence for the Plaintiff is that, and I quote his own words:

"I saw a truck, G.M.C coming opposite direction, fast rate of speed. Seeing this, I drove off paved part of the road to my extreme right and stopped. The speeding truck come swerving one side of the road to the other, hit my car and knocked it completely off the road, damaging same beyond repairs."

In cross-examination he added:

"Road is narrow and it was wet. The paved part about 7 feet wide, hard top. Raining, not when the accident happened. It was raining before. During journey I drove through rain. Shoulder on both sides of hardtop - it is narrow on both sides, gravel. Where the accident happened there is a curve. I was just leaving curve when collision took place. I observed a culvert on the road. Culvert narrowed passageway. I had not passed culvert when collision occurred………………. I was doing about 20/25 m.p.h. going to Corozal."

The evidence for the Defence in the words of the driver is as follows:

"Surface was wet and slippery. I was driving 20/30 m.p.h Road in front a curve. There was a culvert ……. I saw a white car coming from Belize City going North, towards me. White car driving very fast, about 60/70 m.p.h. I stopped when I saw it. I stopped right hand side approximately left from culvert. I had not crossed. I felt knock of white car, collided against my truck and went right back again."

And in cross-examination he added:

"When I saw white car I applied my brakes. Truck did not zig-zag."

The owner of the truck who was passenger in the truck said in evidence:

"The car bounced back on the left side of car and went back and went completely off the road."

And in cross-examination:

"Daniel's car went back after colliding …… about 20 feet …….. car bounced back into ditch."

It is not possible to reconcile the evidence adduced by the opposing parties. Each assert that at the moment of impact their respective vehicles were at a standstill. It is physically impossible for a collision to take place between two stationary vehicles.

Having seen and heard the different witnesses, I prefer the version of the Plaintiff to that of the Defendants, notwithstanding the assessment of the accident made by P.C. Willoughby, the police officer, who attended at the scene of the accident. It appears to me that he arrived at a conclusion on the spot instead of taking notes of the measurements and of his other findings to enable a court to come to its own conclusion at a later stage. I am fortified in my decision by the evidence given by Mr. Charles Enriquez, a completely independent witness, who lives in the vicinity of where the accident happened. He saw how it happened. His evidence corroborates that of the Plaintiff. The other factor which sways me to accept the Plaintiff's version is that it is unlikely that the Plaintiff's car would have been bounced back into the ditch unless the Defendant's truck was in motion.

I find for the Plaintiff. There is no evidence before me which would lead me to the conclusion that there was any contributory negligence on his part.

Dealing with the question of damages, I will divide them in two parts. Insofar as the claims for Special Damages are concerned they present no difficulty as I accept the Plaintiff's evidence. On the evidence adduced I am satisfied that the motor car C.6711 was a total loss. The value which the Plaintiff contends is $2500. There is no other evidence to the contrary. I find that the Plaintiff is entitled to that amount. Similarly the pair of jeans which were damaged as the result of the accident, $40. I am in doubt as to the mathematical calculation of the 10 days leave which the Plaintiff claims. He has given evidence that his monthly salary was $486. It would appear to me that he is entitled to one-third of that amount, not to $246.40 which he claims. In the absence of any evidence explaining or proving this latter amount I hold that he is entitled only to $162. I therefore find that he is entitled to a grand total of $2702 in respect of Special Damages.

The claim for general damages is more difficult for two reasons. Firstly, the Defendants deny that the Plaintiff suffered any damage, or the extent of damage which the Plaintiff has alleged in the witness-box. Secondly, the quantum that should be accorded in a case such as this.

I find certain facts proved. The Plaintiff has satisfied me that he suffered the injuries alleged in his Statement of Claim, viz.

(i) A fracture of the left pubic ramus (of the pelvic bone);

(ii) Lacerated wound on the left knee;

(iii) Wound on upper lip;

(iv) Wound on the little finger of the right hand.

Where a doubt has crept in is whether the broken pelvis has had the consequences alleged by the Plaintiff. In his evidence he has stated:

"Pain on pelvic bone. I suffer from pain everyday. Suffer pain when I walk and sit. Even when I don't. Right now I cannot lie on my back too long, because it hurts. Since 6th September I have had medical attention."

In support of this the Defence has called as a witness Dr. Francisco Pacheco Peña, a general practitioner from Orange Walk, who admitted that at present he is not practicing surgery. He examined the Plaintiff a year ago on two different occasions, two years after the accident, and again last week. It is his opinion that by surgical operation the pain which the Plaintiff is said to be suffering can be remedied. I have not been impressed by the evidence of this witness who first examined the Plaintiff on the basis of pre-operative x-rays. The Plaintiff had in fact been operated on in hospital as far back as 1979. Whilst not disregarding his evidence insofar as it confirms the injuries suffered by the Plaintiff, I cannot accept the consequences of the injuries, taking into account that the Plaintiff is still doing his original work without great difficulty. I therefore accept that the Plaintiff suffered pain but not as prolonged and continuous as it has been made out to be. I also accept that occasionally he is in pain as this is not abnormal whenever there has been a fracture.

As to the amount of general damages I have read with interest the decision of the learned Registrar, to be found in the Library 1982 Judgments, in the case of Jaime Heredia v Alvaro Varela Sr. (No. 27 of 1980) and I can say that I agree with his approach and cannot add anything which could be useful in that respect. However, I think I should utter a warning about the danger of using the quantum of English awards as a pattern for awards in Belize. They might result in awards being made at a too high level. Nonetheless, provided caution is used, English decisions and local decisions are a good guide and the only guide to arrive at the correct figure.

Taking all the factors that should be taken into consideration as spelled out in the decision of Heredia v Varela, I come to the conclusion that the sum of $6000 is reasonable compensation by way of general damages in the particular circumstances of this case.

I therefore award to the Plaintiff the sum of $8702 and costs.

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