Supreme Court
Action No. 113 of 1979
5th March, 1982
Rajasingham, J.

Messrs. Staine & Barrow for the Plaintiff.
Mr. Bernard Q.A Pitts for the Defendant.

Road traffic accident - Contradictory evidence on how accident occurred - Applicability of res ipsa loquitur principle.

J U D G M E N T

The Plaintiff in this case is seeking to recover damages in respect of an injury suffered by her through the negligent driving of the Defendant. The Defendant denies that he was negligent and says instead that the accident was caused entirely by the Plaintiff having been pushed, by her companion pedestrian, into the path of his vehicle. The Plaintiff gave evidence stating that as she and her aunt walked along Cemetery Road towards the Boulevard, walking on the right side of the road, she felt a blow on her shoulder and fell down. She said she was helped to her feet by a passerby, one Lloyd Welch, a parson, and that the parson told the driver of the vehicle, who she now identifies as the Defendant, to take her to hospital. She says the Defendant did not get down from his vehicle at any time, until he got her to the hospital; and that at the hospital he got down and vomited. The Plaintiff was thus seeking to suggest that the Defendant was drunk. The Plaintiff was found to have suffered a bruise on her shoulder and, although she kept speaking of her injured "hand", there was no proof of any other injury. I believe the Plaintiff was referring to her arm as a whole whenever she spoke of her injured "hand". The Plaintiff was hospitalized for two days and then sent home. She says, and the cross examination seemed to concede, that she continued to visit the hospital for further treatment. She says she received such treatment, only particularised as "pills" for about three months; there is no other evidence on this particular aspect of the case.

The Plaintiff called as her witness a Mrs. Derla Gordon and Mr. Lloyd Welch, a parson. Mrs. Gordon states that she and Mr. Welch had crossed the road to their left as they walked towards Pound Yard Bridge. After they crossed the road she says she passed the Plaintiff and another lady - although she was at pains to say she did not know the Plaintiff she seems to have noticed their passing - and had proceeded for two to three minutes when she heard a sound and looked back and saw the Plaintiff bent forward and holding her shoulder. She is certain the Plaintiff did not fall down. She, after some pressing by defence Counsel, admitted she had not actually seen the Plaintiff struck. She seemed to be concentrating on not giving up any ground to the defence and at times became quite aggressive in her own defence Mr. Welch says he did not hear any sound but looked back when Mrs. Gordon said the lady had been hit by a vehicle. He too did not see the actual accident. His description of their earlier actions corroborates Mrs. Gordon. Mr. Welch went on to say he helped the Plaintiff up, she having fallen down after the incident, and then went up and spoke to the driver who he said was in no condition to "rap with me" (quote). Mr. Welch says he thought the 'Defendant was under the influence of liquor or something' and when pressed confined himself to liquor - saying he smelt liquor when he spoke to the Defendant as he remained seated in the vehicle. Although Mr. Welch kept repeatedly announcing to Court that he believed in God and hence spoke the truth and that he had no animosity toward the Defendant, he left me with the feeling that he had prejudged the issue and had already condemned the Defendant as a drunk who had been responsible for the accident even though, by his own admission, he had not seen it happen. I think it unsafe to accept any more of his evidence than that which is corroborated by other evidence.

Thus the gist of the Plaintiff's case is that she was walking with her aunt toward the Boulevard, on the left side of Cemetery Road when she was hit on her shoulder by the Defendant's vehicle, that she was hospitalized for two days and treated for three months. She goes on to say that she was unable to pursue her trade of making and selling buns, selling pepitos, sweets, chips and biscuits for nine months and that she still suffers pain when the weather is bad. While she probably suffers some discomfort at times, I cannot accept that it is such as might not have been felt by any person of her age - because she was unable to state with certainty which shoulder had been hurt and first said it was the right and then the left. In fact she had to face away from Court and recall the incident before she was able to work out which shoulder had been struck. She has also enlarged on the period of disability, and on her loss of income; having in her Statement of Claim set the period at six months and the loss of earnings at $70.00 per week, she now says the period was nine months and her loss of income $95.00 per week. She also says she lost her eyeglasses and a watch, by which she appears to mean that they were damaged. She values them at $100.00 for the watch and $65.00 for the eyeglasses.

The Defendant gave evidence on his own behalf. He says the accident occurred on the right side of the road as he proceeded towards Pound Yard Bridge. I do not know if he realised he had placed the incident on the opposite side of the road from that on which the Plaintiff and her witnesses said it happened. He went on to say the Plaintiff and another female were "prancing" on the road as he approached them and that just as he was passing them the Plaintiff's companion gave her a push, presumably in play, and the Plaintiff fell against his vehicle, hitting his left front door. He admits he did not alight from his vehicle and that he took the Plaintiff to hospital. He denies that he was drunk or that he vomited at the hospital. He says his vehicle was a van in which he transported liquor as salesman for Cuello Brothers, dealers in liquor, and that his van could have smelt of liquor. He seemed in great fear of being, as he put it, confused by Plaintiff's Counsel in cross examination. He claimed he could tell cheap eyeglasses, meaning the lenses and not the frame, by looking at them. He said that when he was shown in the Magistrate Court as being the damaged eyeglasses were cheap "reading glasses you could buy in the shop - in Augusto Quan". He said he could tell the difference between prescribed lenses and cheap lenses by looking at them even though both were made of glass; he said the difference lay in the "material" used. He also claimed that the damaged watch he was shown as being that of the Plaintiff was a cheap one that he had seen in shop windows, which had an aluminium back and strap. He valued that watch at $25.00 and the eyeglasses at $10.00, the price he said the latter were sold at in the shops.

I do not accept it as proved that the Defendant was drunk at the time of the accident. The Plaintiff's statement that he vomited at the hospital could be more exaggeration on her part, since she has exaggerated her injury, her suffering and her loss of income, it is denied by the Defendant. The parson's statement was, I believe, based on prejudice; in any event he does not seem to have thought the Defendant too drunk to be entrusted with transporting the injured Plaintiff to hospital. The smell he got could very well have been from the inside of the vehicle and not from the man; he did not in fact say he smelt it on the man, just that he "could smell liquor" (quote).

I also do not accept the Defendant's version of the incident. He was given several opportunities to correct himself and to put the accident back on the right side of the road as you proceed towards the Boulevard, but continued to insist that he was going towards the Pound Yard Bridge. The details given by Mrs. Gordon and Mr. Welch of their crossing the road to go to his house and their seeing the Plaintiff on the same side after receiving the injury, clearly place the accident on the right side of the road as one proceeds towards the Boulevard. It is only this error on the part of the Defendant that seems to lend some credence to the charge that he was drunk at the time of the accident, because he does not appear to remember what happened. The Defendant did not impress me as a truthful witness and his insistence in relation to his ability to tell prescribed lenses, by the "material" used, from store-bought lenses without being able to say how he did so, only succeeded in affecting his credibility in my mind.

Mrs. Gordon and Mr. Welch stated that the Defendant drove in a zig-zag manner, implying he was drunk. The Defendant says he may have done so to avoid pot-holes in the road. In view of the general conditions of the roads in the City, the Defendant could very well have been doing just that.

I accept the evidence of the Plaintiff and her witnesses that she was struck from behind, which in the case of the evidence of Mrs. Gordon and Welch is a conclusion drawn from the sequence of events; I accept the Plaintiff's evidence that she was walking along on the side of the road when she was struck. I find, therefore that "res ipsa loquitur" in the absence of any mechanical defect, the Defendant was negligent in driving his van and his negligence caused it to collide with the Plaintiff.

In the absence of any evidence of a shorter period of disability, I find that the Plaintiff was disabled for the period during which she continued to receive treatment at the hospital, which by her own evidence was for three months. Her disability would have affected her making buns since she could not have kneaded the dough. I do not believe it affected her other activities. In any event, her Statement of Claim confines itself to claiming the same sum, namely $70.00 per week. She had undoubtedly suffered some pain and inconvenience from the injury, but not permanent disability. The injury was, after all, only a bruise with no underlying fracture.

I find the Defendant liable for the following damages: -

I award damages to the Plaintiff in a sum of $1,265.00. The Plaintiff will also be entitled to costs.

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