Supreme Court
Action No. 309 of 1981
2nd June, 1982
RAJASINGHAM, J.

Mr. Welch for the Plaintiff
Mr. Courtenay for the Defendant

Negligence - Damage to bus cause by negligent driving - Damages - Loss of use of bus - Mitigation of damages - Consequential damages - Costs

J U D G M E N T

In the course of these proceedings the defendant stated that his proper name was George Hutchinson and not George Hutterson. I have therefore made the appropriate correction in the record.

This is a claim for damage caused to private passenger bus, of 1963 vintage, by the negligent driving of the defendant of his dump truck. There was no damage to the truck.

The plaintiff's evidence is that he drove out of Waight Street, a minor road, into Fairweather Street, a major road, and had proceeded a few feet on Fairweather Street when he noticed that the defendant's truck was reversing toward him on his side of the road; he says he thereupon halted his bus and blew the horn and that the truck had continued to reverse until it his the bus. Leonard Longsworth, a witness called by the plaintiff stated that he was sheltering from the rain across the street and about three houses away from the scene of the accident and saw it happen exactly as the plaintiff said it happened. Longsworth is a driver of a heavy loader and, according to the defence evidence, lived on Fairweather Street on the corner of Waight Street and Fairweather Street. The defendant and his witness Flowers say they were in fact reversing to where the loader was parked because they were looking for Longsworth. Longsworth denied the defence suggestion that the loader was parked between him and the scene of the accident; in fact he says the loader was on his right and the accident occurred on his left. In his evidence the defendant made a statement alleging that the plaintiff and Longsworth were friends and were often seen together. This suggestion of cronyism appears to be an afterthought in his attempt to meet the evidence of Longsworth because such a suggestion was not made to Longsworth in cross examination.

The other evidence produced by the plaintiff was the evidence of one Clinto Bethran, a mechanic, and of Police Constable Peter Young. I shall deal with the evidence of Bethran later. P.C. Young was not available for cross-examination on the adjourned dated and rather than delay the trial it was agreed that the trial proceed with a caution being noted against his evidence as being untested. On the adjourned date Mr. Welch produced a sketch drawn by P.C. Young and it was admitted with the consent of Counsel for the defendant who only wished it noted that it was not drawn to scale.

The defendant gave evidence and stated that he had been to the sand pit in Yarborough and not finding the loader had returned via Neal Pen Road. He says that upon reaching the junction of Neal Pen Road and Fairweather Street, he halted his vehicle and then, after presumably ascertaining that it was safe to do so, turned right into Fairweather Street. He says that as he turned he saw the loader parked on his left. Having already turned right, he decided to reverse to the loader. He says he and his "sideman" got down from his now stationary truck and looked down the road to see if any traffic approached. They both say they saw the bus parked on Waight Street opposite plaintiff's business place. He says he then got in the truck and reversed using both his wing mirrors. The plaintiff and Longsworth allege that there was no mirror on the right of the truck; in fact Longsworth says he told the driver of the truck that he had no mirror on that side. This is relevant because it was the right rear of the truck that hit the left front of the bus and this could mean that the bus was completely hidden behind the truck as far as anybody in the driving seat of the truck was concerned. The defendant and his witness, however, insist that he had two wing mirrors. They both also say that his sideman Flowers was looking out of his side of the truck, the right side, as it reversed. Flowers in fact says he had his head out and was not himself using the wing mirror. Flowers also says that he and the defendant got down twice from the truck to check traffic - once at the junction of Neal Pen Road and Fairweather Street and again after they decided to reverse to the loader; the defendant himself only says he got down once, before he reversed. Both these witnesses, in their anxiety to convince this Court of how careful they had been, forgot the evidence of all parties that it was raining; in fact that is why Longsworth was taking shelter. Yet, these witnesses would have this Court believe that they were getting in and out of the rain, and, in the case of Flowers, sticking his head out of the truck rather than use the wing mirror. They finally, as was inevitable, got caught in their own lies. They both stated that the bus came to a stop after the collision without having completed its turn into Fairweather Street. They say it came out of Waight Street and turned toward them and hit them. The defendant says it stopped diagonally across Fairweather Street having come fully out of Waight Street. Flowers says it collided when it was half out of Waight Street and turning right into Fairweather Street. The defendant also said he reversed along his side of the road. Since both vehicles would be facing the same direction once the bus completed its turn, the damage to the bus should, if the defendant and his witness are telling the truth, have been to its right side or at the very best to its front; the damage is in fact on its left side, the side which according to the defence evidence was on the other side of the bus from their truck. In fact I got Flowers to illustrate, using two books as the two vehicles, and he had the truck being hit by the right side of the bus. Mr. Courtenay agreed that at least Flowers' evidence meant that the bus was hit on the right side and not the left.

As far as the plaintiff's evidence went in regard to the accident itself, he is corroborated by Longsworth. As I have noted, apart from a suggestion that his view was obscured, there as no motive shown for his partiality when he was cross-examined. His evidence was certain and without contradiction. It is fortunate for the plaintiff that Longsworth witnessed the accident, because the plaintiff spoilt his own evidence in due course by untruths and exaggeration when it came to actual damage. The extent of the damage was finally verified by an inspection of the vehicle itself. According to the estimate made and the evidence given by the plaintiff's witness Bethran, four window panes and one half of the windscreen were shattered; the plaintiff actually said it was nine panes, but I am trying to arrive at the actual damage as spoken to by both the plaintiff and his witness Bethran. The column on which the door is hung and which is a pillar of the cab has been repaired in a rather shabby fashion. The side panels were, according to Bethran, straightened by merely pushing them out with a jack. The door and a small part of the fender have been rather crudely filled in. The switch box has not, according to Bethran at the scene, been replaced. It does not appear to have been replaced. Bethran also says he sprayed the dashboard; if he did do so he probably made it worse, because it looks terrible. Bethran's estimate is contradicted by the evidence obtained both from the witnesses and from the inspection of the vehicle. I think his estimate is grossly exaggerated; a view of which is supported by the parties discussing a claim, of $3,000 for the plaintiff and $1,000 for the defendant, to be made on the insurance company. I think a sum of $100 for the repair to the fender and bonnet, a sum of $300 for the damage to the door and column and a sum of $75 for straightening the side panels is a fair estimate of the cost or repairs to the body. To this must be added a sum of $300 for a half windscreen and $100 for window panes and a further $75 for the labour involved in fitting the windscreen and panes. Thus I estimate the damages related to the repair of the bus to be a total sum of $950. This will include the cost of touching up the paint.

The plaintiff's evidence of the damages suffered by him by reason of his having lost the use of his bus is, to say the least, a gross exaggeration and hence false. It falls on me therefore to estimate a fair sum for the loss of the use of the bus for about two weeks, a reasonable time for completing the repairs. The fact that plaintiff preferred is due course to buy a "small pick-up" with a view to mitigating damages as stated by his Counsel is relevant from the point of view of the loss he was allegedly suffering from his not having the bus; for it would appear that he thought that a better investment than completing what little there was left to complete on the bus. By his own evidence there was not much more than a windscreen necessary to put this veritable gold mine on the road again. Yet he preferred to buy a small pick-up instead. There is evidence however that he did do some business with this bus. I think a sum of $200 a week is a fair estimate of what he could have earned from a very occasional tour and from transporting fruit. Thus I estimate his consequential damages at $400.

I think it unnecessary to go into the question of who was trying to defraud the insurance company. I do not think anything improper was done by Mr. Welch when he advised his client to give the undertaking in an attempt to settle this matter out of Court. The plaintiff's Counsel did not make the estimate himself but merely assisted both parties in an attempted settlement. He could have avoided even this unfounded suggestion of impropriety if he had brought the defendant's Counsel into the negotiations. Still I must repeat that I do not think he acted improperly in the matter.

I therefore, give judgment for the plaintiff in a sum of $1,350 being $950 for repair of the vehicle and $400 for loss of its use during the time it would have taken to repair it.

Plaintiff will also be entitled to costs taxed by the Registrar.

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