Supreme Court
Action No. 23 of 1978
27th July, 1982
Moe C. J.

Mr. Lois Young Barrow and Mr. Dean Barrow, for the Plaintiff.
Mr. Bernard Q. Pitts, for the second and third Defendants.

Personal injuries - Road traffic accident - 1st Defendant failing to use the care which a reasonably prudent driver would have used when he tried to overtake a parked vehicle in the face of Plaintiff's oncoming vehicle - Contributory negligence in causing traffic accident - Plaintiff's vehicle travelling too fast and not slowing down although Plaintiff had seen the parked vehicle and the bus driven by the 1st Defendant which was trying to overtake the parked vehicle - Degree of negligence attributable to each driver - General damages for personal injuries - Plaintiff suffering serious injuries and in severe pain for some time after the accident - Special damages - Need to specifically prove special damages.

J U D G M E N T

The Plaintiff claims damages for injuries he received as a result of the negligent driving of the employee of the second and third Defendants. The Defendants counterclaimed damages for loss and damages to their bus as a result of the negligent driving of the Plaintiff.

On the 3rd March, 1977 a collision occurred at about Mile 11 on the Western Highway between the Plaintiff's land-rover then driven by him in the direction of Belize City, and the Defendant's motor bus then driven by the first Defendant in the direction of Belmopan. The Plaintiff gave no evidence as to how the collision came to take place and his witness who was a passenger in the land-rover at the time was of assistance only to the extent of saying that the land-rover was travelling moderately. Approaching a vehicle parked on the other side of the road, he saw a bus come out suddenly from behind the parked vehicle and that was it.

The driver of the Defendants' bus said that he was driving the bus on the right hand of the road at about 35 to 40 miles per hour. He saw a 7-Up truck parked on the right hand side of the road. When he was about 50 yards from the 7-Up truck he saw another vehicle about 400 - 500 yards from the truck coming towards Belize City at a fast rate of speed. He continued on his way and when he was about 20 yards from the truck he went over to his left hand side; the other vehicle then about 75 to 100 yards from the 7-Up truck; he put on and off his head light to ask the driver of the vehicle to ease his speed so that he pass. He was then traveling at about 20 to 25 miles per hour and the oncoming vehicle appeared to be coming very fast. The oncoming vehicle didn't alter its speed. He took the bus off the left of the road to let the oncoming vehicle pass and avoid a head-on accident. The oncoming vehicle went off the road when it was about 10-15 yards from the 7-Up truck and hit the bus which had already come to a stop. Under cross-examination he said that at the point when he went over to his left the oncoming vehicle didn't show any signs of altering its speed and he could have stopped behind the 7-Up truck then. He thought he had enough time to pass the 7-Up truck if the oncoming vehicle was coming at a normal speed. He figured when he went over the oncoming vehicle would ease its speed. He didn't feel it was worth the while to park and wait. In relation to the 100-125 yards the vehicle was away, he felt like he could have passed.

The driver of the 7-Up truck said he was sitting in the driver's seat of the truck then parked facing the direction of Belmopan. He saw a Land Rover a good distance off coming from Belmopan very fast and through his rear-view mirror he saw a bus come from around a curve from the Belize City side traveling at about 15 miles per hour not too far from the 7-Up truck. He saw the bus come up behind the truck and haul out back. The Land Rover was still a good distance away. He saw the bus lights go on and the bus went off the road. The Land Rover came with the same speed and the vehicles clashed off the road. He also said during cross-examination that he was surprised when the bus hauled back out. He was surprised because he saw the Land Rover coming. He expected the bus would stop behind him until the Land Rover passed.

The admission of the driver of the bus pointed to negligence on his part. It was his duty not to pass the 7-Up truck unless the road ahead was sufficiently clear for him to pass and get back to his proper side before meeting the vehicle which he saw coming from the opposite direction. Other Regulations of the Motor and Road Traffic Regulations show that having to go from his right and proper side to the left side of the road it was his duty to give way to the vehicle then travelling on his left or with the right of way. Rather, what he did was what too many drivers do which is, by blinking lights, say to the oncoming driver, true you have the right way but ease and let me break the highway code.

In addition, the evidence of the driver of the 7-Up truck, to whose opinion I gave weight, confirm the inference of negligence on the part of the driver of the bus. The former, a licensed driver, said because he saw the Land Rover coming, he expected the bus to stop behind the 7-Up truck until the Land Rover passed. I concluded that in the circumstances the driver of the bus did not use that care which a reasonably prudent driver would have used in the circumstances and held that he was negligent.

There was greater difficulty in determining the Plaintiff was in any way liable. The evidence points to the conclusion that he was driving at a fast rate of speed and I so held. He took steps similar to the driving of the bus to avoid a head-on collision. He drove off the road. Did he do anything he ought not have done or omitted to do something which he ought to have done. The evidence which I accepted to determine the Defendant's responsibility is that the Plaintiff did not from the time his vehicle was seen until the time of the impact alter his speed. I took the view that a reasonably careful driver in the circumstances ought to have seen the approaching bus, ought to have seen the parked 7-Up truck, ought to have come up to these vehicles with caution and thus ought to have lessened his fast rate of speed which would have permitted him to stop within a distance that was clear. I held that the Plaintiff was also negligent. By not exercising the necessary caution, he exposed himself to the very danger he encountered. I assessed that in the circumstances, the Plaintiff was twenty percent responsible.

I turn to assess the damages to be awarded. As a result of this collision the Plaintiff suffered severe head injury, i.e. to the brain, was in a confused and disorientated state for some fourteen to seventeen days, and experienced retrograde and post traumatic amnesia. This amnesia persists. He also sustained lacerations to the left side of the face including the left eyebrow, left ear and area immediately behind the left ear, compound comminuted fractures of both upper tibiae, the right tibia being broken in about three places, three lacerations on the anterior aspect of the right leg and ten lacerations on the anterior aspect of the left leg. He was hospitalized for sixteen days and thereafter received out-patient attention at varying intervals until August, 1978. He endured considerable pain while in hospital to the extent that his screams were heard throughout the better part of the ward and for this was given tablets and injections. His legs were in plaster of paris for some four months, he couldn't open his left eye properly for about two month, and used crutches for about a month. He now has a scar in the region of the left eyebrow, on the left ear lobe and immediately behind the left ear, three scars on the right leg and ten scars on the left leg. He cannot squat like a normal man. His fractures have knitted in such a way that abnormal strain is placed on his knees predisposing to osteoarthritis. This is permanent and will become worse. He now walks with a limp leaning to one side; still suffers pain in both knee joints and in the region of both ankles; he also suffers pain if he sits, stands or walk for too long a period. He can no longer pursue his interest in gardening nor in keep-fit exercises to the extent he was accustomed. He is now 29 years old.

Following the principles in Cornilliac v. St. Louis 7 W.I.R. 491, I considered (a) the injuries sustained and such loss of functional capacity as there was before recovery; (b) the pain and suffering which had to be endured; (c) the physical disability to be borne hereafter and the amenities of which the Plaintiff has been deprived. Doing the best I can, I award the sum of $7,500.00. That is to be reduced by 20% being the share of his responsibility.

The Defendant satisfied the Court that he incurred expenses of $1,882.23 for repairs to his bus which was damaged in the collision. He pleaded as special damage a loss of profits in the sum of $3,300. He claimed on a basis of $300.00 per week for eleven weeks. This item was not specifically proved as is required for special damages. He satisfied the Court that there was a loss for four weeks and I allow $1,200.00. He would be awarded a total of $3, 082.23. The Plaintiff is responsible for 20% of that amount or $616.40

I propose to deduct $616.40, the Plaintiff's liability from $6,000, the Plaintiff's entitlement, and enter judgment for the Plaintiff in the sum of $5, 384 with costs.

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