IN THE SUPREME COURT OF BELIZE, A.D. 2011

Transcription

1 IN THE SUPREME COURT OF BELIZE, A.D CLAIM NO. 698 of 2008 JACOB WIEBE AKA JACOB WIEBE HELEN WIEBE AKA HELENA WIEBE 1 st CLAIMANT 2 nd CLAIMANT AND WILWARD JONES DEFENDANT Hearings th November 22 nd November 7 th December st January 4 th March Mr. Linbert Willis for the Claimants. Mr. Hubert Elrington SC for the Defendant. LEGALL J. JUDGMENT The Accident 1. There is a community of farmers of European decent, known in Belize as the Mennonites, some of whom live and farm at a place called Shipyard, located in the Orange Walk District in the North of Belize. 1

2 The Mennonites methods of transportation by road include, what is popularly known as the horse and buggy a horse drawn structure with seating capacity for the driver and passengers. There is a road known as the Guinea Grass Road that runs east to west from Shipyard to a highway named the Northern Highway, which runs north to south and to which the Guinea Grass Road adjoins making a T shaped junction. To the north on the Northern Highway is located the town of Orange Walk. 2. On 4 th October, 2007 at about 8:45 a.m. Mennonites Jacob Wiebe and Helena Wiebe, husband and wife, and the claimants in this matter, were travelling from Shipyard along the Guinea Grass Road going in the direction of the Northern Highway intending to go to Orange Walk Town. They were travelling in a horse and buggy, with the husband as the driver and the wife as the sole passenger. 3. Driving along the said Guinea Grass Road, in the opposite direction of the buggy, was Julio Gomez, in a black Chevy Tracker vehicle with a Mexican licence plate. Gomez lived in Chetumal, Mexico; but was known to the claimants. In Gomez s vehicle were his wife Dilma, and the father of Jacob Wiebe, Abram Wiebe, and his wife Anna. Driving in front of Gomez, in the same direction, was the defendant in a red Ford pickup truck with licence plate OW A In the truck with the defendant was his 12 year old grandson. Gomez overtook the pickup truck and proceeded along the road towards Shipyard. On his way, Gomez saw the two claimants in the buggy coming in the opposite direction. As the No. 1 Claimant s parents were in Gomez s 2

3 vehicle, Gomez stopped and parked his vehicle on his side of the road. The No. 1 claimant, who was well known to Gomez, also stopped the buggy on the opposite side of the road and came out and stood behind the buggy. The buggy and Gomez vehicle were facing each other from the opposite sides of the road, and there was a space on the road between them. The defendant who was travelling on the said road behind Gomez, on overtaking Gomez s vehicle, collided to the buggy; and both claimants suffered physical injuries. The defendant did not suffer any injuries. How the accident occurred? 4. The evidence of the No. 1 claimant, and supported by his wife and father, were that before the red pickup truck, driven by the defendant, reached to where Gomez had his vehicle parked, the defendant swerved his truck to the left, and the truck came towards the parked buggy and collided to the left front of the buggy, knocking it over to the side. The truck then hit him as he was standing behind the buggy, and he slid underneath the truck. His wife who was in the buggy, because of the collision, was thrown out of the buggy and suffered injuries. 5. The No. 1 claimant said that when he stopped the buggy, the vehicle in which his father was travelling, was about 10 to 20 feet away on the opposite side of the road. The road, at that point, was about 25 to 30 feet wide and there was no pothole on the road which was smooth. The No. 1 claimant said that the truck was travelling at about 60 to 65 3

4 miles per hour. He said he did not see any braking, but as the defendant swerved the pickup truck, the speed reduced. 6. The No. 1 claimant also swore that Gomez vehicle, as parked, was not on the road at all. It was a straight road. He also said that Gomez vehicle was on the road and the right hand side was touching the grass. The No. 1 claimant explained that the defendant was driving on the same side of the road as Gomez, and in order to avoid hitting Gomez s vehicle, the defendant swerved from Gomez vehicle and hit his buggy. He said his buggy was on the grass verge just touching the road. He also said that his buggy was completely off the road. 7. The evidence of the No. 1 claimant s father, Abram Wiebe, is that Gomez gradually stopped his vehicle and it had stopped about two minutes before the defendant s truck came to the left side of Gomez vehicle. This witness testified that there was a space of about 30 feet behind Gomez vehicle and the buggy, and that there was enough space between them for the truck to pass. He swore that Gomez vehicle was not parked exactly opposite the buggy, but a little away from it on the opposite side of the road; and that the buggy was off the road completely. The evidence of the wife of the claimant is that Gomez vehicle was parked far enough away from the buggy for the defendant vehicle to pass. She said she saw the defendant s vehicle quite a distance away. She said there was about twenty to thirty feet between the buggy and Gomez s vehicle. 4

5 8. In a nutshell the claimants version of how the accident occurred is that the road was about 30 feet wide, smooth and no potholes near the collision. Gomez vehicle and the buggy were parked on the opposite sides of the road facing opposite directions. There was enough space on the road between the two vehicles for the defendant to pass. The defendant as he reached near Gomez s vehicle swerved in order to avoid a collision to Gomez s vehicle and collided to the buggy. In driving in this manner, he was, according to the claimants, the sole cause of the accident. 9. The defendant s version was that the portion of the road on which one could drive was about 20 feet, but the total width, including the shoulder of the road, was about 30 feet wide. He said his truck was about 6 feet wide. He said he saw a vehicle, Gomez vehicle, parked on the road and the vehicle was about 5 feet wide. He said he saw the buggy which was about 6 feet wide parked on the opposite side of the road from Gomez vehicle. He said there was a pothole that broke his brake line on his vehicle, and that Gomez stopped his vehicle suddenly so in order to avoid hitting Gomez vehicle, he had to swerve from that vehicle, and that claimant was in the middle of the road. He said after swerving he went and parked on the left hand side of the road. He said in order to achieve the parking, he put the vehicle in high gear and the vehicle stopped though it did not have brakes. He then turned off the vehicle and it did not move. He said he was not driving at 60 miles per hour. He said he was driving with care and exercised care. But the defendant said this in cross examination: 5

6 I would say it is the Mennonite fault as much as mine. The claimant was in the middle of the road going to talk to the Mexican... My fault is that the brake line broke because of the pothole... The brakes was not perfect but if the Mexican did not stop suddenly in front of me without brake light, I would have been able to stop also. 10. In his defence filed on 3 rd December, 2008 and signed by him it is stated that the defendant admits that while operating his motor vehicle he caused a collision between his motor vehicle and the claimant s buggy, but does not admit negligence. According to paragraph 4 of the defence, Gomez suddenly stopped his vehicle without warning in the defendant s path in order to speak to the claimants. The defendant applied his brakes and swerved to avoid colliding to Gomez vehicle at which time the brake line of his vehicle broke causing him to lose control of his vehicle thereby colliding with his vehicle. The defendant had said, at the scene of the accident, and afterwards that his brake line broke. The defendant is saying that this accident occurred because of a mechanical defect; because Gomez stopped suddenly, and because the No. 1 claimant was in the middle of the road. One of the main questions for the court is who is speaking the truth. It was therefore submitted by the defendant that he was not negligent and the claim should be dismissed. 11. There are certain discrepancies in the evidence of the claimants and the defendant. In relation to the claimants, there is a conflict as to 6

7 whether the buggy and Gomez vehicle were completely off the road or were parked on the grass verge with wheels just touching the edge of the road. The No. 1 claimant gave contradicting answers as to whether the buggy was parked on the road or on the grass verge. Moreover, Abram Wiebe did not feel that it was because the defendant swerved the vehicle that he connected to the buggy. 12. In relation to the defendant, he said in relation to criminal proceedings which were brought against him in the magistrate s court: I cannot remember if I pleaded guilty to driving without due care and attention. In re examination he swore: I cannot remember if I was taken to court. I was shook up by the accident. 13. The defendant admitted that he saw Gomez vehicle parked on the road and he also saw the buggy parked on the opposite side of the road. But in his defence, he certified as true the following: On the date alleged he was driving along Guinea Grass road when his vehicle was overtaken by a sports utility vehicle, the driver of the said vehicle thereafter suddenly and without warning stopped the said vehicle in the defendant s path... 7

8 14. It seems from this statement, the contention of the defendant was that the sports utility vehicle, by which he clearly meant Gomez s vehicle, overtook him, and thereafter suddenly stopped without warning. This sudden stop by Gomez, according to him, is what caused him to swerve from Gomez vehicle and collided to the buggy. But this must be considered with his evidence that he saw Gomez s vehicle parked on the road which would seem to me to be inconsistent with his statement in the defence that Gomez s vehicle suddenly stopped. 15. In the defence filed on 3 rd December, 2008 no mention is made that a pothole broke his brake line. In his said defence, he said his brake line broke but did not mention, as he did in his evidence, that it was a pothole on the road that broke his brake line. In his witness statement, the defendant said: I applied my brakes and swerved to avoid colliding into the sports utility vehicle at which time the under side of my vehicle hit on a rut with a large rook protruding from it, and my brake line broke causing me to lose control of my vehicle thereby colliding with claimant s buggy. If it was indeed a pothole or a large rook that caused the brake line to break, why was this not mentioned in his defence? 16. There is a further discrepancy, as we saw above, in the defendant s evidence with respect to the plea of guilty for the offences for which 8

9 he was charged. He admitted in his defence that he pleaded guilty, but in his evidence in court he said he could not remember if he pleaded guilty. He could not even remember if he was taken to the magistrate court in relation to the accident. Tendered in evidence by consent is a document from the clerk of court of Orange Walk Magistrate s Court that the defendant pleaded guilty in 2009 to four charges in relation to the accident and was fined. 17. The above goes to the credibility of the defendant, and for the above reasons I do not believe him when he said that Gomez stopped suddenly and a pothole or a large rook broke his brakes line causing him to lose control of his vehicle which resulted in the collision to the buggy. 18. I have seen the witness Abram Wiebe give evidence in the witness box and I observed his demeanour and his answers in crossexamination. Though he is the father of the No. 1 claimant and father in law of the No. 2 claimant, evidence of a possible bias, I believe him when he said that Gomez vehicle had already stopped for about two minutes before the defendant s vehicle came up to the left side of Gomez vehicle. I accept the evidence that the defendant s truck, swerved to avoid hitting Gomez vehicle and hit the buggy, though there was enough space between the vehicle and the buggy for him to pass. I do not accept that there was not enough space for the defendant to pass because of the width of the vehicles and the road. 9

10 Mechanical defect 19. It is a defence to the allegation that the defendant drove his pickup truck negligently, that he, without any fault of his own, was deprived of control by the pickup truck by a mechanical defect of which he did not know and which was not such as he should have discovered if he had exercised reasonable prudence. The essence of this defence of mechanical defect is that the danger was created by a sudden total loss of control in no way due to any fault on the part of the driver: see R v. Spurge AER 668. What the defendant is saying in defence is that he was confronted with a sudden emergency which occurred through no fault of his own; and therefore he was not negligent and did not cause the accident. But the first question is did the brakes of the defendant s vehicle snapped as he claimed? For the reasons stated at above I do not believe the defendant that his brakes line broke and that Gomez vehicle stopped suddenly in front of him. Therefore his defence of mechanical defect fails. Negligence 20. The question now is whether the defendant was negligent. Was there a duty on the part of the defendant to exercise reasonable care to prevent injury to other persons using the road? The evidence in this case shows clearly that the defendant had a duty to exercise reasonably care. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons: see Glasgow Corporation v. Muir 1943 A.C. 448, at p 457; Donoghue v. 10

11 Stevenson 1932 A.C. 562 at p 580; and Fardon v. Harcourt Livington 1932 A.E.R But before deciding the issue of negligence, the court must bear in mind the well known and often articulated views of Lord Pearson with respect to the burden of proof in the celebrated Henderson v. Harry E. Jenkins A.E.R. 756 at p766 In the action for negligence, the plaintiff must allege, and has the burden of proving, that the accident was caused by negligence on the part of the defendants. That is the issue throughout the trial, and in giving judgment at the end of the trial the judge has to decide whether he is satisfied on a balance of probabilities that the accident was caused by negligence on the part of the defendants and if he is not satisfied the plaintiff action fails. 22. I am satisfied, on a balance of probabilities, that the defendant failed to discharge his duty to exercise reasonable care when driving on the road to prevent injury to the claimants when he swerved and collided to the parked buggy which caused injuries to the claimants. I therefore find that the defendant was negligent. Damages 23. I must now consider the question of damages. I must consider general damages which need not be specially pleaded. Then I have to consider special damages which must be specially pleaded. Under the heading 11

12 general damages, much guidance has been given by Wooding C.J. in the hallmark decision of Cornilliac v. St. Louis W.I.R. p The learned judge enumerated several considerations which a judge should bear in mind when making an assessment of general damages involving personal injuries as follows: (i) (ii) (iii) (iv) (v) The nature and extent of the injuries sustained; The nature and gravity of the resulting disability; the pain and suffering which had to be endured; the loss of amenities suffered; and the extent to which consequentially, the appellants pecuniary prospects have been materially affected. 24. These are the items or heads which I have to consider in assessing general damages. I consider (v) above as meaning loss of earning capacity, because this loss is assessed under general damages. I must also consider, for convenience, the relevant facts under each item or head. I must, however, bear in mind that though it is convenient to itemize the different heads, in the end judgment is given for a single lump sum as damages for pain and suffering and loss of amenities. 25. But I observe in Johnson v. Sterlings Products Ltd W.I.R. 155, George CJ itemized the heads above and gave an amount under each head. Wooding C.J. in Cornilliac however, adopted a different approach and did not disclose an amount under each head above, but 12

13 gave a total figure under all the heads as damages for pain and suffering and loss of amenities. The reason Wooding C.J. gave one figure for all the heads was because, according to him, the nature and extent of the injuries inflicted cannot be disassociated from the physical disabilities which are their permanent result, nor are they unrelated to the pain and suffering which have had to be endured. 26. This approach of Wooding CJ is supported by Lord Denning CJ in Fletcher v. Auto Car and Transportation Ltd A.E.R Lord Denning expressed disagreement with arriving at a figure under each item and adding them up, because of the risk of overlapping, a point which Wooding CJ clearly had in mind when he made the pronouncements above. For these reasons, I adopt the position of Wooding CJ and would give one total figure under all the heads as damages for pain and suffering and loss of amenities. But I must consider for convenience the relevant facts under each head. The facts under each head are as follows: (i) Nature and extent of injuries sustained (a) No. 1 claimant 27. After the accident the No. 1 claimant was first taken to the Northern Medical Plaza at Orange Walk where he was admitted. Dr. Simmons diagnosed his injuries as abrasion to both upper extremities X ray showed compression fracture of less than 50% of bones TC 12. The claimant asked to be transferred to another facility, and he went to the Northern Regional Hospital at Orange Walk where he spent three days. His attending physician, Dr. Walker Perez who in a document 13

14 dated 8 th October, 2007 diagnosed his injuries as fracture of L1 L2 compressive, without compromise of the spine medul. The claimant needs 3 months for full recovery. 28. The No. 1 claimant said on 1 st November, 2007 he went to Guatemala for treatment and he submitted a medical report from Dr. Jaime Hernandez Ola dated 24 th June, This report is written in Spanish, and the doctor was not called nor was a translation given in evidence. The claimant also consulted Dr. Andre B Sosa who by letter dated 9 th January, 2009, said that the claimant was diagnosed with (1) Lumbar Spine Fracture (L1 L2) (2) Discal Herniations of D12 L1, L1 L2 and L5 S1 Spinal Joints. Neither this doctor nor any of the other doctors who attended the claimants were called to give evidence to explain the meaning of their diagnoses. (b) No. 2 claimant 29. The No. 2 claimant said she suffered a cut on her head, fracture of facial bone and nose, and injuries to neck and spine. After the accident she was taken to the Northern Medical Plaza and to the Regional Hospital. From there she was taken by ambulance to the Medical Associates Hospital at Belize City where she was hospitalized from 4 th October, 2007 to 10 th October, There is a medical report from Dr. Simmons dated 18 th October, 2007 of Northern Medical Plaza who found her to be suffering from Traumatic laceration to scalp. with bleeding nose. And fracture of sagital bone of nose. Dr. John Sosa issued a medical report dated 11 th February, 2008 which states that the 14

15 claimant had: (1) post traumatic headaches; (2) cervical spine pathology (3) Lumbosaeral spine pathology (Disk Hernias). 30. This claimant said she received medical treatment in Guatemala from Dr. Jose Hernandez Ola who issued a medical report in Spanish dated 24 th June, There is no evidence of the translation of the report and the doctor was not called to give evidence. Dr. Sosa issued a second report dated 9 th January, 2009 who referred to his previous diagnosis, and states that the claimant complains of recurring headaches and pains. As mentioned above, these doctors were not called to give evidence and explain the injuries found on the claimant. (ii) Nature and gravity of resulting disability 31. Due to the injuries received Dr. Sosa in his report states the No. 1 claimant has sustained permanent incapacity of approximately 25%. In relation to the No. 2 claimant Dr. Sosa states in his report that the claimant sustained permanent incapacity of at least 20% as a result of her accident. (iii) Pain and suffering 32. The claimants must have felt severe pain due to the accident but they gave no oral evidence of the extent of pain they suffered. The medical reports of Dr. Sosa speaks of chronic neck and upper extremity pain. (iv) Loss of amenities 33. The term loss of amenities has been defined as a loss of pleasure of life or a diminution of the injured person capacity to enjoy his accustomed 15

16 lifestyle on account of the injuries which he has sustained: see George CJ in Johnson v. Sterling Products above. There is no evidence of the loss of pleasure of life or any diminution of the accustomed lifestyle of the claimants as a result of the injuries. The kinds of social and pleasurable activities they enjoyed, and accustomed lifestyle, prior to the accident, were not given in evidence. (v) Loss of earning capacity 34. Loss of earning capacity is an award or compensation made by the court because of the injured person disadvantage in the labour market. It is compensation for the diminution, due to the injury, of the earning capacity of the injured person. There is a difference between loss of earning capacity and loss of future earnings. In Fairley v. John Thompson Ltd Lloyd s Report 40, Lord Denning explains the difference It is important to realize the difference between an award for loss of future earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution of earning capacity is awarded as part of general damages. 35. The No. 1 claimant is a farmer and at the date of the accident he was 35 years old. He is married to the No. 2 claimant who is a housewife and 34 years old. Sadly there is no evidence of the income the No. 1 claimed earned as a farmer prior to the accident or the income if any 16

17 of the No. 2 claimant earned. There is also sadly no evidence of how, if so, the injury affected the earning capacity of the claimants. Evidence of this kind ought to be given in cases of personal injury. From the facts, I have no doubt that the claimants because of the injuries must have suffered some diminution of earning capacity. But because of the lack of evidence assessing the loss of earning capacity would be an exercise in conjecture. I therefore award a nominal compensation figure of $2, for loss of earning capacity of the No. 1 claimant, and I do not award anything under this head for the No. 2 claimant. 36. I must now assess and consider the other items or heads above and arrive at a final award as general damages. I consider the severe fractures, the nature and gravity of the injuries, the pain and suffering, the period of their hospitalization. In order to arrive at an amount as general damages, I should also consider the amount of general damages awarded by the courts for injuries involving fractures in order to understand the range of awards in this type of injury. But I must bear in mind the reservations expressed by the Privy Council with respect to comparing awards. Lord Carswell in Seepersad v. Persad and Another W.I.R. 378 at page 385 said. The Board entertain some reservations about the usefulness of resort to awards of damages in cases decided a number of years ago, with the accompanying need to extrapolate the amounts awarded into modern values. It is an inexact science and one which should be exercised with some 17

18 caution, the more so when it is important to ensure that in comparing awards of damages for physical injuries one is comparing like with like. The methodology of using comparisons is sound, but when they are of some antiquity such comparisons can do no more than demonstrate a trend in very rough and general terms. 37. I now turn to comparable awards made in other jurisdictions: 1. In Stevens v. Dean Shanger Oxide Works 1981 (unreported) Kemp & Kemp Revised Edition 1982 vol 2 para , the injury was serious to the left foot of a male person aged 48 general damages of 18, Jones v. Houldar Marine Drilling July 1990 see Kemp & Kemp above para Fracture of left ankle general damages 16, Morgan v. London Borough of Tower Hamlets, October 1988 see Kemp above para Fracture of left ankle general damages In Paterson v Rotherham Health Authority See Kemp v. Kemp above para Serious fracture of left tibia general damages 18, These cases were decided in England more than 20 years ago and the awards were made in British pounds. 18

19 5. In the Caribbean there is the Jamaican case of Gravesandy v. Moore 1986 above serious injury to his left leg general damages $50, There is an element of speculation in awarding general damages in this kind of case. Canberry JA in United Diary Farmers Ltd v. Goldbourne recognized the difficulty in making these awards. In making awards, he said the courts do their part to measure the incomprehensible or the immeasurable (e.g. pain and suffering, or loss of amenities), but there is a stage at which this ends and sheer speculation begins : See Gravesandy v. Moore above at p 228. I bear in mind the above awards were made in a different currency, and that the awards were made more than 20 years ago. I also consider the facts and circumstances of this case, and that I must award general damages that are fair and reasonable. Doing the best I can on the evidence without the benefit of hearing the doctors, and bearing in mind the injuries suffered according to the medical reports, and seeing the claimants in court, I arrive at a figure for general damages the amounts of $30, for the No. 1 claimant and $ for the No. 2 claimant. These amounts include the amounts awarded for loss of earning capacity in relation to the No. 1 claimant. I therefore award to the No. 1 claimant the amount of $30, as general damages for pain and suffering and loss amenities. I also award the amount of $35, as general damages for the No. 2 claimant. 19

20 Special damages 40. Both claimants claimed special damages for expenses incurred on repairing the buggy, expenses incurred for medical treatment in Belize and Guatemala, transportation expenses to consult doctors in Belize and Guatemala and hotel expenses in Guatemala. The amount incurred as special damages are pleaded in the statement of case as $28, and $13, for the No. 1 and 2 claimants respectively. The No. 1 claimant in the evidence in his witness statement claimed as special damages in excess of the $28, The No. 2 claimant claimed in her evidence in the witness statement in excess of the $13, as special damages. Receipts were tendered by both claimants showing transportation and medical expenses. 41. The claimants were cross examined but they were not questioned about the amount claimed for special damages, nor was it suggested to them that they did not incur the expenses claimed for special damages. In the defence, it is stated in paragraph 8 that the defendant neither admits nor denies the particulars of special damages set out in the statement of case. I accept the evidence of the claimants with respect to the special damages claimed. I therefore award special damages to the No. 1 claimant in the sum of $28, and special damages to the No. 2 claimant in the sum of $13, Conclusion The defendant was negligent which resulted in the accident and injuries to the claimants. The No. 1 claimant is entitled to general 20

21 damages in the sum of $30, and special damages in the sum of $28, making a total of $58, in damages. The No. 2 claimant is entitled to general damages in the sum of $35, and special damages in the sum of $13, making a total of $48, I therefore make the following orders: (1) The defendant shall pay damages for negligence to the No. 1 claimant in the sum $58,802.88, and to the No. 2 claimant in the sum of $48, (2) The defendant shall pay to the claimants interest on the said sums at (1) above at the rate of 6% per annum from 8 th November, 2010 until the said sums are fully paid. (3) Defendant to pay costs to the claimants, to be agreed or taxed. Oswell Legall JUDGE OF THE SUPREME COURT 4 th March,

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