Daley v Piper

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Redhead, J.
• Judgment Date: 01 December 1992
• Neutral Citation: MS 1992 HC 16
• Docket Number: 26 of 1990
• Date: 01 December 1992

Daley

and

Piper

Redhead, J.

26 of 1990

High Court

Damages - Personal injury — Quantum — Claim for damages for personal injury to shoulder as a result of motor vehicular accident — Defendant claimed contributory negligence — Defendant was driving on the wrong side of the road — Defendant convicted for driving without due care and attention — Defendant has not discharged burden placed on him to show that plaintiff was negligent — Claim for special damages made out — Judgment for plaintiff.

Redhead, J.

1 The plaintiff is now 62 years old. He is self employed. He is a truck driver and owns a trucking business. The defendant is a mason by trade. On 28 October 1989 the plaintiff was driving his motor car from Reids Hill to St. Peters when his motor car was involved in a collision at a bend in the road at Woodlands with a another motor car driven by the defendant.

2 The plaintiff on 9th April 1990 filed a Writ of Summons in which he claims damages for personal injuries and damages to his motor car as a result of the accident. The plaintiff alleges that the defendant is wholly responsible for this accident. Whereas the defendant pleads and conducted his case on the basis of contributory negligence on behalf of the plaintiff. The plaintiff testified that on the morning of the 28th October, 1989 at about 8,00 a.m. to 9.00 a.m. he was going to St. Peters. He was driving his motor car. He said as he came around the corner at Woodlands he saw “a car come around the corner came straight into his car.”

3 In his testimony the plaintiff said he was travelling at about 15 miles per hour at the time because he was going around the corner.

4 I make the observation that the speed at which the plaintiff said he was travelling was never challenged by the defendant's counsel. The plaintiff said it was a rainy morning, he was going around a corner. That is why he was travelling 15 miles hour. I quote his exact testimony:–

“I was travelling about 15 miles per hour because I was going around a corner. It was a rainy morning.”

5 The plaintiff said that after the accident the police came and took measurements. The measurements as given by His Worship Mr. Hogarth Sergeant is to the effect that the defendant's left front wheel to eastern side 7 feet. The defendant's rear car wheel to eastern side of road 3 feet. The plaintiff's left rear wheel to western side of road 2 feet.

6 The defendant's account of the accident is that as he approached the corner on the main road at Woodlands he saw another vehicle coming straight towards his car. In a matter of seconds they collided. The defendant was asked this question by his lawyer in examination in chief: In your view what was the cause of the accident? After a long pause he gave this answer, (I think that the other vehicle was not properly on its side.”

7 In cross-examination the defendant when asked if he did anything to avoid the accident said, “I did not get a chance to do anything to avoid the accident. Mr. Kelsick argued that the plaintiff gave evidence that it was a rainy morning and that the plaintiff agreed that some extra care was necessary in the circumstances. Mr. Kelsick further argued that the plaintiff said that the corner was sharp. The plaintiff did not blow his horn before turning thereby failing to warn on-coming drivers of his approach.

8 Learned counsel submitted that in the circumstances the failure to blow his horn on a sharp corner, on a rainy morning, a prudent man would have blown his horn.

9 It was negligent for the plaintiff to fail to blow his horn. I do not agree. In Charlesworth and Percy on Negligence at Paragraph 10 - 151 the learned author has this to say:–

“The omission to sound a horn or a bell is ‘a collateral fact only and not an independent act of negligence.

By itself it is not evidence of negligence although it may be taken into account with other circumstances in determining whether the driver or rider was negligent.”

10 When the evidence is looked ale as whole particularly the measurements it is quite clear to me that the defendant was driving on the wrong side of the road the left front wheel of defendant's car being 7 feet from his left side of the road. I do not agree with Mr. Kelsick's submission that the plaintiff's right front wheel being 3 feet from the left side of the road and the left rear wheel being 2 feet from the left side of the road indicates that the plaintiff was driving on the wrong side of the, road. It is quite clear in my mind that both cars were at an angle when the measurements were taken. This I conclude occurred after the accident or to put in another way as a result of the accident.

11 It is my view that the defendant was driving on the wrong side of the road coupled with his answer in cross-examination that he did not get a chance to do anything to avoid the accident. In addition the defendant was convicted for the offence of driving without due care and attention as a result of the accident. In my view he has not discharged the burden placed on him to show that the plaintiff was negligent (See STUPPLE v. ROYAL INSURANCE Co. Ltd. [1973] 2 A.E.R. 230). I hold that he was negligent and solely responsible for the accident. The question to be determined therefore is the quantum of damages the plaintiff is entitled to. The plaintiff has claimed damages for personal injuries nor loss of earnings and for damages to his motor car.

12 I first turn my attention to damages for personal...