Mills v Willock

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Georges, J.
• Judgment Date: 31 July 1992
• Neutral Citation: MS 1992 HC 12
• Docket Number: 32 of 1991
• Date: 31 July 1992

Mills

and

Willock

Georges, J.

32 of 1991

High Court

Tort — Negligence — Liability — Claim for loss and damage sustained as a result of the negligent driving by the defendant of his motor vehicle when a collision occurred between his vehicle and the car owned by the plaintiff — Defendant denied liability — On the balance of probabilities the accident was caused by the defendant moving off without ascertaining that it was safe to do so and to give adequate and proper signals of his intention — Judgment entered for the plaintiff.

Appearances:

E.H. Kelsick for Plaintiff.

eth Allen for Defendant.

Georges, J.

1 (IN COURT)

2 By a specially indorsed writ dated and filed on the 27th day of February, 1991 the plaintiff, a 76 year old retired Canadian citizen, claims the sum of $6,166.50 for loss and damage sustained as a result of the negligent driving by the defendant of his motor omnibus registration number H 1588 along George Street, Plymouth on 22nd December, 1990 when a collision occurred between the said motor omnibus and Hyundai motor car registration number M 4041 owned and driven by the plaintiff.

3 In his particulars of negligence, the plaintiff averred that the defendant:

• (1) Failed to indicate his intention to move off;

• (2) Failed to keep any or any proper lookout and to observe or heed the presence or approach of the plaintiff;

• (3) Failed to apply his brakes in time or at all and so to steer or control his vehicle so as to avoid the collision.

4 Liability is denied with the defendant contending at paragraph 2 of his defence that the collision was caused solely by the negligence of the plaintiff in driving his motor car; and the defendant counterclaims for an amount of $5,498.00 being the cost of damage and repairs to his own vehicle.

5 In his particulars of negligence, the defendant pleaded that the plaintiff was negligent in that he:-

• (1) Failed to keep any proper look out or to observe the presence of the defendant's bus on the said road;

• (2) Drove recklessly, carelessly and without regard to other vehicles using the road; and

• (3) Failed to apply brakes or to manoeuvre his vehicle in time or at all.

6 The gist of the plaintiff's case as related by him is that at about 11.30a.m. on the day in question he drove his Hyundai Stellar motor car east along Evergreen Drive and as he approached the corner of Evergreen Drive and George Street there was a red bus stationary at the corner with a small red car immediately behind it.

7 The plaintiff testified that as he approached the red car, the bus turned left on to George Street and as he got up to the corner to travel east along George Street, the small red car passed the bus (on George Street) and as he was in the process of passing the bus as well, he felt and heard a loud scraping noise on his car.

8 Before he began passing the bus, the plaintiff deposed that the vehicle was stationary and he had seen no indication that the driver was about to pull out. In particular, he stressed that he had riot noticed any signal or indicator lights on the bus. There was no indication he said that the driver of the bus was about to pull out.

9 The witness added that the scraping noise was caused by the bus making contact with his car. The right front bumper of the bus made contact with his left front fender behind the front wheel the plaintiff declared. His car he said was ahead of the bus at the point of impact by half the length of his left front fender.

10 The plaintiff said he stopped but not before his two left doors as well as his left front fender were damaged. He got out he said to inspect the damage but as his vehicle was obstructing traffic he pulled his car to the kerb. The bus he said was at an angle from the kerb and did not move after making contact with his car.

11 The police arrived and took measurements of the width of the road and the position of the bus and they made inquiries. He found out who the driver of the bus was and identified him to the Court. The witness confirmed that the defendant bus driver had told the police that he (the defendant) had had pulled away from the kerb to avoid hitting a small child.

12 About a year later the plaintiff said he had his car repaired by one Samuel Cox and labour and parts came to $3,300.00 which amount he now sought to recover. He had suffered no loss of use whilst his car was undergoing repairs the plaintiff confirmed and that aspect of his claim was therefore abandoned. Three coloured photographs taken a couple days after the accident and depicting the damage to the plaintiff's car were tendered in evidence.

13 Under cross-examination the plaintiff emphatically denied that at his age (74 at the time) he was feeble and encountered difficulty driving. He had grown used to driving in Montserrat over the past 14 years he declared.

14 The accident he said had happened some 40 feet east of the intersection of Evergreen Drive and George Street along George Street. He had driven approximately 40/50 feet along the road when the accident occurred.

15 He agreed that there is sufficient room for two vehicles to pass along that road and that he had done so many times himself. He denied that he did not stop his car until he had travelled some 30 feet ahead of the bus after the accident. He was most emphatic that the bus was not at a standstill at the point of impact and insisted that the bus had hit his car and not vice versa. He claimed that following the accident he had stopped no more than a foot ahead of the bus.

16 He did not recall giving a statement to the police at the scene as to how the accident had occurred although he did recall the defendant having done so.

17 Cpl. No. 49 John Roach, the...