Supreme Court
Action No. 333 of 1981
5th April, 1982
Rajasingham J.

Mr. L. Welch, for Plaintiff.
Mr. E. Flowers, for Defendants.

Traffic Accident - Contributory Negligence - Plaintiff's driver very negligent - As a result, Plaintiff bearing two thirds of the blame for the accident and Defendants bearing one third of the blame - Counterclaim - Second Defendant's counterclaim equal to two thirds of Plaintiff's claim - Court dismissing Plaintiff's claim and Second Defendant's counterclaim.

J U D G M E N T

The Plaintiff is the owner of a motor bus bearing registration number D-39 which was damaged in an accident at mile 41 on the Northern Highway on the 12th July, 1981. The second Defendant is the owner of C-788 a Ford Pick-up which was the other vehicle involved in the collision, and the third Defendant is the driver of the latter vehicle. The first Defendant was sued in error and the suit against him was dismissed at the commencement of the trial. The Plaintiff alleges that the collision was caused solely by the negligence of the third Defendant, Alamilla. The Defendants deny that Alamilla was negligent and allege that the collision was caused by the negligence of the driver of the Plaintiff's bus, one Bardolo Castellanos. In the alternative, the Defendants allege that the Plaintiff's driver's negligence contributed to the cause of the collision.

The Plaintiff called his driver Castellanos as his first witness. Castellanos' evidence is that he left Belize City at 4 p.m. and reached Maskall at 5:20 p.m. - a distance of 39 miles. He then left Maskall after a short stop and at Mile 41 met with this accident. He says he saw the pick-up about 100 yards away coming "too fast" so he slowed down. He says when he saw it first it was coming down the middle of the road. He said it was coming around a bend further down the road from the bend he was approaching; that it came through that bend on its wrong side and then swerved back to its correct side as it approached the bend in front of him, but that at that bend it swerved once more to his own side of the road and hit the bus. He said that when he saw the pick-up at the further "curve" he slowed down, because the pick-up was coming "too fast", and that he pulled well over to his side of the road and had actually come to a complete stop when the pick-up hit him. This witness estimated the speed of the pick-up to be about 60 miles per hour. He appeared to be trying to say the collision occurred before he had actually entered the curve in the road and in cross-examination actually denied this was so. As it transpired later this was a deliberate falsehood. So was his statement that he had come to a complete stop when he was hit.

Castellanos was followed, in the witness box, by Israel Trapp. His evidence echoed that of Castellanos, except that he says he saw the pick-up for the first time at least 150 yards away. This insistence of early warning is, in my opinion, intended to give the bus driver time in which he can bring his vehicle to a complete stop on his side of the road. Trapp also denies the bus had entered the curve.

Trapp was followed by one Kendrick Myvett, a regular weekend passenger on this bus route. He too said the bus had already stopped when it was hit. While Trapp said the bus was doing about 25 to 30 miles per hour, Myvett says it was doing 15 to 20 miles per hour. He says the pick-up was doing between 60 and 70 miles per hour. I do not think he can be relied on to judge speed. Myvett says he made no statement to the Police, but was giving evidence at the request of the owner of the bus who sent for him and asked him to do so. Myvett is an employee of the Ministry of Health.

Myvett was followed by Police Constable Benguche whose evidence was confined to saying he made a sketch and marked in the measurements of the various spots at the scene as pointed out to him by the driver of the bus. He even got the driver to sign the sketch as being correct. This sketch twice makes the bus driver an untruthful witness on very material matters. It clearly shows that the bus was already well into the curve at the time of the collision and that it had in fact travelled beyond the point of impact as pointed out by the driver - thus putting it beyond any doubt that the bus had been moving when it was hit and continued to move after it was hit. This in turn gives one some idea of the relative speeds, because if the pick-up had hit it at 60 or 70 miles per hour as stated by the Plaintiff's witnesses, it is rather surprising that the bus continued to pull off the road without any interruption following the jarring impact. If however, their speeds had been almost the same, as the third Defendant stated, it would explain the position in which the two vehicles ended up.

The Plaintiff himself produced a list of the damages which was later verified by the maker, Mr. Albert Hoare, a mechanic of 32 years experience. The Plaintiff stated in evidence that the cost of the repairs if done in Guatemala would be nearly $20,000 United States Currency, and that this would not include the freight and import duty and the labour costs incurred in Belize. He also said he suffered loss in a sum of approximately $405 a day for four days and $230 for three days in every seven day period over a month, with one day in seven when he earned nothing, because the bus would be serviced. Thus his earning per week would be six-sevenths of $2310, being four days at $405 and three days at $230. Thus his loss would be $1980 per week or about $8000 per month. He said he could get a new bus, as a replacement, within 10 days. Thus his loss of earnings would, if he had minimized his damage by acting quickly and decisively, have been no greater than two week earnings, allowing for time to assess the damage and to arrange credit for the purchase. All this evidence was not seriously questioned by the Defendants.

The third Defendant gave evidence and stated that he had been travelling at between 30 and 35 miles per hour when, upon coming round this curve he saw the bus in the middle of the road and braked and swerved to get off the road. He says he was on his side of the road when he braked but that, the pick-up being empty and the rear brakes acting before the front ones when this model of pick-up is firmly braked when empty, the pick-up skidded sideways and hit the bus. He said he was quite prepared to get off the road and would have been able to avoid the accident by doing so, if the wet road had not caused him to skid. All parties are agreed that it was raining at the time of the accident. The third Defendant denied that one could see through the bend on which the accident occurred and another bend towards Orange Walk as the Plaintiff's witnesses had stated. He said maximum visibility was about 150 feet and that at the speeds at which both vehicles were approaching each other neither could have come to a complete stop before a collision occurred. He did say the collision could have been avoided by taking evasive action such as he had attempted to take, namely getting off the road. He said the bus was travelling at about 30 miles per hour. This is in keeping with the evidence of Trapp, the conductor, and of the bus driver's own evidence that he had covered 39 miles up to Maskall in one hour and twenty minutes. The third Defendant, a trained mechanical engineer, gave evidence relating to reaction time and braking distances and was not seriously challenged on these matters. He said he had been casually listening to a football commentary and he and his passenger, one LaCroix, had exchanged comments on it. He said he was not interested in football; LaCroix said so too. The third Defendant rather sarcastically dismissed the suggestion by Plaintiff's Counsel that his listening to the radio had affected his driving. This was the only occasion on which this witness appeared to lose the calm manner in which he gave his evidence. He agreed that the sketch reflected a reasonably accurate picture of the scene after the collision. He said his vehicle was "knocked, carried, jumped off and ended this way" - meaning across the road. He said the bus was moving when the vehicles collided and continued moving after the collision until it ended as shown on the sketch. He said that in doing so, the bus "carried" him and left him where the sketch shows his vehicle. He was cross-examined on the fact of his not having too many years experience of driving, but his driving seems to have been safe enough to cause his passenger to fall asleep. LaCroix, the passenger had fallen asleep just a little over a mile earlier, which even at the speed of travel stated by the third Defendant is less than four minutes earlier; at the speed of travel alleged by the Plaintiff's witnesses it would be less than two minutes earlier.

I was very impressed with the manner in which the third Defendant gave evidence. He was forthright and never hesitated once he understood the question. He struck me as a very responsible person, a fact which may be borne out by his rapid advancement in his employment to a position of considerable responsibility. Moreover all the real evidence available supports him. The damage to the pick-up is to its entire front but with emphasis to the right side because on that side the impact appears to be from the front and the side. This clearly shows that the pick-up slid sideways into the bus; there can be no other possible explanation for the damage being greater on the side of the vehicle nearest to the curb and furthest away from the bus. The position of the bus supports his evidence that it was not only moving when the collision occurred but that it had in fact swerved very sharply away to its side which must mean it was far more on the road than the bus driver admits. The measurements in the sketch vary from the actual diagram and show a much sharper degree of turn of the bus than this very rough sketch does. In spite of the turning away of the vehicle prior to the accident, its rear wheel is only one foot away from the centre of the road. This, in my opinion, must, when you consider the acute degree of the turn, clearly mean that the bus was at least on the middle line of the road if not on the wrong side of it before the driver turned away to his proper side of the road.

The witnesses, other than the third Defendant, who were called for the Defence were not at all helpful; their evidence added nothing to an understanding of the circumstances leading to the collision.

By his own evidence, the third Defendant was driving on a wet road and into a curve at 30 to 35 miles per hour, a speed which circumstances proved to be one at which he could not avoid an accident. By his own evidence he could have avoided the collision if he had not skidded and he skidded because he had to brake speed suddenly on a wet road. The circumstances thus show that his speed was excessive under those conditions and in that place at that time.

On the evidence before me, I am led to the inevitable conclusion that the driver of the Plaintiff's bus was very negligent in that he drove down the middle of the road into a curve at an admitted speed of about 30 miles per hour and thus created circumstances in which a collision was almost inevitable if any other vehicle came around the curve.

Thus, I have come to the conclusion that both drivers were to blame, though not equally, for the collision. The two acts of negligence followed so closely on each other and the second act of negligence, namely that of the third Defendant, is so mixed up with the state of things brought about by the act of the bus driver that, while the third Defendant cannot be held to be free from blame, he might invoke the prior negligence as being part of the primary cause of the collision. As Lord Denning said in Davies v Swan Motor Co. (Swansea) Ltd. (1949) 2 K.B. at 291, a decision of the question of what should be the proportions of blame "involves a consideration, not only of the causative potency of a particular factor, but also of its blameworthiness." In Stapley v Gypsum Mines Ltd. (1953) A.C. at 682, Lord Reid said "A court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party." In the present case the bus driver was primarily responsible for creating a situation of extreme danger but one which may still not have resulted in a collision if the third Defendant had been a little more careful. As Baron Parke said in Davies v Mann (1842) 10 M &W 546, the Defendant was bound to go along the road at such a pace as would be likely to prevent mischief.

Damages in this case fall to be apportioned, therefore, according to the proportions in which the parties are to blame for the damage. It is my considered opinion that the Plaintiff's driver Castellanos bore two-thirds of the blame for the accident and the third Defendant bore one-third of the blame.

I do not think the Plaintiff's claim for $35,000 is excessive in view of the cost of repairs as ascertained by him. Furthermore, as I have already stated, I think two weeks would have been a reasonable time within which to obtain a replacement, according to his own evidence. That would make his consequential damages $3,960. As against this, the second Defendant claims a sum of $17,000 for the destruction of its pick-up truck. As one third of the Plaintiff's claim would amount to a sum almost exactly equal to two-thirds of the second Defendant's claim, I think it just to dismiss the Plaintiff's claim and the Defendants' counterclaim without costs.

The claim and counterclaim are both dismissed. The parties will each bear their own costs.

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