Supreme Court
Appeal No. 6 of 1980
2nd October, 1981.
Alcantara, J.

Mr. Michael Young, for the Appellant.
Mr. G. C. Gandhi, for the Respondent.

Inferior Court Appeal - Offences of negligently and unlawfully causing grievous harm through the negligent use of a motor vehicle and driving a motor vehicle without due care and attention - Section 88 of the Criminal Code and Section 62 of the Motor Vehicles and Road Traffic Act - Appeal against conviction - What constitutes driving without due care and attention - Definition of "negligence".

J U D G M E N T

This is an appeal from the Inferior Court for the Stann Creek Judicial District. The Appellant was convicted and fined for two offences on the 12th June, 1980 by the learned Magistrate. The particulars of the offences were:

For that the said Joshua Levine on the 25th day of March, 1980 on the Southern Highway between Mile 13 and 14 in the Stann Creek Judicial District negligently and unlawfully caused grievous harm to John Zabaneh through the negligent use of motor vehicle namely pickup No. C-7646 contrary to section 88 of the Criminal Code, Chapter 21 of the Laws of Belize, Revised Edition, 1958.

For that the said Joshua Levine on the 25th day of March, 1980 on the Southern road between Mile 13 and 14 in the Stann Creek Judicial District you drove motor vehicle namely pickup No. C-7646 on the said road without due care and attention contrary to section 76 of the Motor Vehicles and Road Traffic Ordinance, Chapter 62 of the Laws of Belize, Revised Edition, 1958.

A fine of $75 for the first offence and a fine of $100 for the second offence. Each carried a term of imprisonment in default of payment.

From the said convictions the Appellant has appealed to this Court and his grounds of appeal in respect of both convictions are the same:

1. The decision was unreasonable and could not be supported having regard to the evidence.

2. The decision was erroneous in point of law.

3. The decision was based on a wrong principle or was such that the Inferior Court viewing the circumstances reasonably could not properly have so decided.

The brief facts of the case are that on the date in question, the 25th March, 1980, the Appellant was driving his pick-up truck C-7646 along the Southern Highway in a northerly direction. It was early morning and the road was very dusty. He was travelling at a speed of 30 to 35 miles per hour. As he was approaching a cut-off road on his left-hand side he looked into, "my rear view and saw a whole pile of dust." He then put his left trafficator and proceeded to turn into the cut-off road. A collision took place.

Unknown to him one Zabaneh had been travelling behind him at a higher speed in another pick-up C-9523. Zabaneh decided to overtake the Appellant on his left-hand side. He blew his horn a number of times and proceeded to overtake just as the Appellant was turning to his left. The collision then took place. Both vehicles were damaged, and Zabaneh was injured.

Counsel for the Appellant has argued that the accident or collision was the fault of Zabaneh and not that of the Appellant. Zabaneh was driving fast. It was a dusty road and he decided to overtake at an intersection of which he was aware. The Appellant took all the necessary precautions. Further, it was Zabaneh who was guilty of careless driving and that it was through Zabaneh's own negligence that he suffered grievous harm. Finally, that the Magistrate misdirected himself when he said in his judgment -

"Finding the defendant guilty on the charge of negligent grievous harm was consequential on his conviction on the charge of driving without due care and attention."

Counsel has referred me to Black's Law Dictionary, 1979, and to the relevant Rules of the Road and to Section 8 of the Criminal Code, this latter in relation to the second charge.

Counsel for the Respondent has directed my attention to the test laid down by Lord Goddard in Simpson v Peat (1952) 2 Q.B. 24, and to the Rules contained in Volume 2 of Subsidiary Laws of Belize, particularly Rules 114(l)(b), 114(2)(b), 114(3) and 115. In addition, he has referred me to Baxter 41 C.A.R. 134, Ball Loughlin 50 C.A.R. 266. All the above authorities in relation to the charge of careless driving.

With particular reference to the second charge, that of causing grievous harm by negligence, Counsel drew my attention to the Criminal Code, Sections 88, 91, 8 and 7 and to the cases of Willard Bonner v Queen C.A. 7 of 1979 and Sidney Stubbs 8 C.A.R. 238.

I will deal first with the case of careless driving. There is no doubt in my mind that the learned Magistrate came to the right decision on the evidence before him. He found as a fact that the Appellant contravened Rule 115. I think a couple of quotations from the learned Magistrate's Reasons for Decision will suffice. At page 5 he has this to say:

"Evidence revealed that defendant slowed down and angled his vehicle to left - all under a cloud of dust. Defendant agreed that any number of vehicles could have been in the cloud of dust he saw in his rear view mirror. Putting on an indicator when turning in a cloud of dust hardly serves any purpose nor does it justify such a turning. All this, to my mind, constitutes driving without due care and attention."

And at page 3:

"Whether or not Zabaneh is guilty of an offence was not the matter before the Court. Whether he should have been or should be prosecuted is, I think, a matter for the Director of Public Prosecutions to resolve. In either case, none of the above warranted the dismissal of Defendant's case as he was the one prosecuted and brought before the Court to be dealt with according to law."

The argument and legal authorities produced by Counsel for the Respondent fully support the learned Magistrate's decision. I have found an authority which might be of interest in this case. It is to be found in Mahaffy and Dobson on Road Traffic Vol. 1 at p.478: -

"In Sorrie v Robertson, 1944 S.C. (J.) 95, the driver of a motor lorry who knew that there was a motor cyclist behind and gradually overtaking him, signalled in the appropriate manner that he was about to turn across the road to the right, his intention being to enter a garage. After giving the signal, he concentrated on turning into the garage and took no steps to ascertain whether his signal had been observed. A collision resulted, and he was convicted of an offence under what is now this section. Lord Carmont said (at p. 97): "A driver cannot, in my view, after putting out his hand to indicate that he proposes to cross traffic, thereafter remove his attention entirely from a vehicle which he has seen behind him and travelling in the same direction, and which he has, if he has given any sufficient attention to it at all, reason to believe is gradually diminishing the distance between them. He has a duty to observe whether the signal that he has given has been appreciated by the following traffic, and to see what it is that following vehicles which he has reason to believe may be overhauling him are doing. If he does not do so, and an accident occurs by collision between his own and one of the overtaking vehicles, I think the inference is justified that there was careless driving of the vehicle which so crosses the traffic. . . . I say nothing to suggest that in such cases the driver of the overtaking vehicle is free from responsibility to take care.""

Charge No.1 is much more difficult. Counsel for the Respondent, quite properly accepts that the learned Magistrate misdirected himself when he said:

"Finding the defendant guilty on the charge of negligent grievous harm was consequential on his conviction on the charge of driving without due care and attention."

Counsel, however, tries to save the day by saying that notwithstanding the misdirection there was before the Magistrate sufficient evidence to convict and that this Court should uphold the conviction. He says that there was the same degree of negligence to sustain both convictions.

In his submission to this Court he argued that the law in Belize is different to the law in England in that in Belize there is only one standard of negligence, that contained in section 7 of the Criminal Code, and that that standard was civil negligence. There was no distinction between criminal and civil negligence. Under section 7 of the Code mere inadvertence was negligence and quoted Willard Bonner v Queen for this proposition. I have read this case and the ratio decidendi is that Section 7 of the Code is applicable to the Prison Ordinance, the question of inadvertence was touched very superficially and does not attain even the status of obiter dictum.

The definition of negligence in section 7 of the Code is very wide:

"a person causes an event negligently if, without intending to cause the event, he causes it by a voluntary act done without such skill and precaution as are reasonably necessary under the circumstances, or as he is in the particular case bound by law to have and use, for preventing the event from being caused."

It is significant that under the new Code section 10 negligence is better defined. It reads:

"A person causes an event negligently, if he fails to a grave degree to observe the standard of care which he ought reasonably to observe in all the circumstances of the case."

I am of the opinion that the Appellant could not have been convicted of negligently causing grievous harm under the definition of negligence under the new Code, taking into account the driving of Zabaneh, which under this particular offence is highly relevant.

Am I bound to say that the law has changed or am I entitled to say that negligence is the same under both Codes in that there must be some gravity? I think that the latter is the better opinion. Section 88 is not a petty offence. Even though the offence can be committed negligently there must be some element of criminality. It is certainly not an absolute offence.

In the circumstances and also because of the misdirection I feel I should allow the appeal on this particular charge.

Appeal against causing grievous harm allowed.

Appeal against driving without due care and attention dismissed.

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