Supreme Court
Action No. 538 of 1997
11th February, 2000
Shanks, J.

Mr. Denys Barrow, S.C. for the Plaintiff.
Mr. Jeremy Courtenay for the Defendant.

Traffic accident - Plaintiff suing Defendant under the Law of Torts Act for the negligent and wrongful death of her deceased husband - Deceased having been inebriated and intoxicated at the time of the accident - Defendants moving excavator during the night - Procedure of moving excavator highly dangerous, especially at night and contributing towards the accident - Defendants liable to two thirds of the responsibility for the accident - Damages - Assessment of damage - Applicable multiplier.

J U D G M E N T

On Friday the 7th of November, 1997, Mr. Castaneda, who worked as an accountant at Belize City Airport, left work at about 5:30 and went to a shop at the junction of the airport road and the Northern Highway at mile eight and a half for a drink before returning home to Corozal. He must have had between seven and ten beers. Shortly before 7:30 he left the shop in his pickup with Lorenzo Balam and Virgina Bradley in the front and a number of unknown people in the back section heading north for Corozal. He was travelling at about 55 to 60 miles per hour. Mr. Balam who had also been drinking at the shop told us in evidence that Mr. Casteneda was not displaying any signs of drunkenness but it is an agreed fact that he had 150 milligrams per 100 millimetres of alcohol in his blood. This is almost double the legal limit and I find as a fact that his co-ordination and reaction at times were impaired and that he should not have been driving.

Meanwhile further up the Northern Highway, at about mile 11 or possibly further north, some WASA workmen were finishing some work on or near the highway. WASA had hired an excavator from CISCO Construction Limited, the second Defendant. The work had gone on later than anticipated but the CISCO supervisor had given instructions that the excavator was to be returned to CISCO's depot on the Western Highway near Belize City and those on site decided to return the excavator although it would not normally be moved at night. This was a hazardous operation because the trailer on which the excavator was to be loaded was not wide enough to accommodate it unless it was put perpendicular to the trailer with its tracks protruding from each side. Based on the later measurements recorded in a sketch plan made by Corporal Gordon which I accept to be accurate, this over-hang was three and a half feet on each side of the trailer which was itself seven feet wide. The load was therefore about 14 feet wide, substantially more that half the road width. Those responsible for moving the excavator had no special lights or other means of warning other traffic on the road of this hazard. They drove in convoy with a WASA pickup driven by Dennis Robinson in front of the trailer and another driven by Steven Pitzold behind it. The trailer was driven by the first Defendant, Douglas Sutherland, and the excavator driver Mr. Polanco was in the passenger's seat. Both were employees of the second Defendant. The convoy was heading south at 30 or 35 mph and the two pickup trucks and the trailer had their hazard warning lights on, though the front driver's side indicator of the trailer may not have been working. In any event, given the width of the load, the danger and speed of this road and the lack of any other lights or warnings, it was clearly dangerous to transport the excavator in this way at night as both the CISCO witnesses accepted.

Mr. Casteneda's pickup and the protruding excavator tracks collided at about mile ten and a half. Mr. Casteneda was killed in the accident and the pickup was a total write-off but miraculously the other occupants of the pickup survived almost unharmed. Although I was told by Mr. Sutherland and Mr. Polanco that part of the trailer was being driven off the road to the extreme right, they gave differing details and again I accept the evidence of Corporal Gordon that the point of impact was 12 feet from the trailer's side of the road and ten foot ten inches from Mr. Casteneda's side of the road. The excavator's tracks were therefore intruding into Mr. Casteneda's lane. I was also told by Mr. Sutherland, Mr. Robinson and Mr. Polanco that the on-coming pickup driven by Mr. Casteneda was swerving around on the road as it came towards them. I accept some of Mr. Barrow's criticisms of the evidence given by the Defendant's witnesses who appeared not prepared to accept responsibility for the hazardous operation they were engaged in and for some reason unwilling to accept the independent measurements made by the police. Nevertheless, I think that it may well be that Mr. Casteneda was not driving in a perfectly straight manner and I note that it is accepted by Mr. Barrow that the police statements mentioned this at a time before these witnesses could have known that Mr. Casteneda had been drinking. I therefore find that he was driving somewhat erractically.

Mr. Casteneda's widow and children now bring this Action under section 9 of the Law of Torts Act. I must decide first whether the accident was caused by the negligence of the Defendants, then whether it was caused or contributed to by Mr. Casteneda's own negligence and to what extent and then what damages Mrs. Casteneda and her children are entitled to.

I have already stated my conclusion that this was a dangerous operation and I do not believe that it should have been undertaken in this way and I find that it was negligent to do so. Clearly the driver of the trailer, Mr. Sutherland, and his employers must bear responsibility for that. Also it is clear on the balance of probabilities that the accident was caused by that negligence. Unless Mr. Casteneda's own negligence is such as to negate the causal connection, the Defendants are clearly liable for this accident.

As I have found, Mr. Casteneda's driving ability was impaired by drink. It seems to me clear on the balance of probabilities that this must also have been a cause of the accident. Common sense would indicate that if he had been sober there is a good chance that he would have noticed and heeded the hazard warning lights and that he would have been driving further over to the right and not swerving at all. I find that the negligence of both Mr. Casteneda and the Defendant caused this accident. I find that Mr. Casteneda must bear a third of the responsibility for it.

I turn to damages. I have received helpful submissions on these from Mr. Barrow and Mr. Courtenay and I do not understand that there is any substantial difference between them as to the right principles. It is agreed that the amount of the dependency at the death was $2,242.00 per month, equivalent to $26,904.00 per year. The widow, Mrs. Casteneda, would have had 27 years of dependency and the children, seven, nine and fourteen respectively. The average of those figures is 14.25. Reducing that figure, 14.25, to take account of all the contingencies and to take account of the lump sum payment, I would give a multiplier of 12. Mr. Barrow contended for 13, and Mr. Courtenay for 11 or 11 ½ so that, that result is a happy compromise. I do not accept Mr. Barrow's proposition that there is an almost automatically standard figure of 13 in this kind of case. I think the court must consider the average dependency of the dependents and work from there. He referred me to the Perrera case, No. 217/92, where a multiplier of 13 was awarded but in that case the husband and the children were several years younger than in this case, so one would have expected a larger multiplier. The multiplier of 12 must be divided between years to date since the accident, 2 ¼ and future years, 9 ¾. 2.25 x $26,904.00 gives $60,534.00. To this must be added a flat 6% interest which gives $64,166.00. 9 ¾ x $26,904.00 is $263,314.00. The vehicle was worth $9,000.00. The total damages on a full liability basis would therefore be $335,480.00. This figure must be reduced by a third for contributory negligence which gives $223,653.00. There shall be judgment in this sum. The damages must be divided between the Plaintiffs in proportion to the lengths of their dependencies as follows:

Plaintiff's costs to be taxed if not agreed.

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