Swain v Forbes
| Jurisdiction | Bahamas |
| Judge | GONSALVES-SABOLA, J |
| Judgment Date | 15 August 1985 |
| Court | Supreme Court (Bahamas) |
| Docket Number | Common Law Side No. 781 of 1984 |
| Date | 15 August 1985 |
Supreme Court
Gonsalves-Sabola, J.
Common Law Side No. 781 of 1984
Mr. Tennyson Wells for the plaintiff.
Mr. R. Lobosky for the defendant.
Tort - Damages — Personal Injury — Fracture of left clavicle, compound fracture of left tibia, fracture of lower end of right femur and fractures of the fifth, sixth and seventh ribs — Quantum.
On the evidence in this case tie defendant could not reasonably hope to escape a finding of negligence against himself. The real issue is whether his liability is total or partial. In other words, was the plaintiff contributorily negligent or not. After giving the most careful consideration to the evidence of the plaintiff and the defendant and their witnesses, I accepted the evidence of the plaintiff so far as it went as to how the accident occurred but did not accept in important, particulars the evidence given by either the defendant or the witnesses of either party.
My findings of fact took account of my lack of confidence in the credibility of the witnesses Warren Smith and Simon Dean. Though they were both present at the scene, I was influenced against acting on their evidence by their demeanour especially under cross-examination and the overall impression I formed that they were partisan witnesses intent on serving the side which called them. My findings were also affected by the volte face in the defence about the relative roles played by Warren Smith and Simon Dean and the conflict between the defendant and his witness Simon Dean in their versions of the events immediately preceding the accident.
The result is that I have found that on 15th June, 1983 well after 9.30p.m., the defendant was driving his motor car in an easterly direction in the northern lane of a dark section of Carmichael Road, New Providence and was not keeping a proper lookout for the presence of pedestrians in that lane nor driving with the circumspection and care he ought to have displayed on that particular road in conditions where the only effective illumination was supplied by his own motor car headlamps. He ought to have expected to encounter pedestrians walking in the lane his car was using so as to face oncoming traffic on a road that had no side walks.
On his own admission the defendant saw the plaintiff and another man some 300 to 400 feet directly east of him seemingly playing with each other as he approached them, yet he took no avoiding action like manoeuvring his car around them in the abundant space that was available for encroachment in the southern lane of the road. Although the two men were on the northern lane of Carmichael Road, the southern lane was entirely free of traffic. The defendant said that it did not appear to him that he had to take avoiding action. He thought that the men would have controlled themselves as he approached. Assuming that these are the true facts, I could have no hesitation in finding that the defendant's casual attitude to potential danger at that place and time amounted to an abandonment of the duty of care he owed either of the two men who were then in the very lane of the road ahead of his approaching car.
The plaintiff's evidence accepted by me was that he was going home walking alone in a westerly direction on the northern side of Carmichael Road when a motor car approached him from the west with its bright lights on. He was struck unconscious and woke up sometime later in a bed at Princess Margaret Hospital. He could not really give credible details of the speed or course of the defendant's car immediately before it struck him, but I find that he was struck while he walked on the surface of the road and not off the road.
The plaintiff had just left the Golden Isles Club whereto he had resorted after knocking off from his job that evening. He drank beer at the Club but claimed that he was not intoxicated. The defendant testified that immediately before impact one of the two men who were apparently playing with each other, and that would be the plaintiff, stumbled into the path of his moving car. At that moment the defendant said that he applied his brakes but the plaintiff was hit. The defendant's manoeuvre was of doubtful wisdom and in any event failed to avoid a collision.
I found it difficult to find with certitude exactly what the sequence of events was. I was not impressed that the defendant was himself sure on this score. But the truth I believe must lie somewhere between the defendant's story and that of the plaintiff affected by the fact that the latter, likelier than not, left the Golden Isles slightly intoxicated by his intake of beer there on a relatively empty stomach. Stumbling by him as he wended his way home was by no means a far-fetched possibility and in fact was conceded in argument by his counsel.
On a balance of probabilities I find that the plaintiff was walking with an unsteady gait in the lane of the oncoming car less able to remove himself to the safety of the verge than if he were sober; but if the defendant had been driving with the care and attention that the situation demanded of him, the collision with the plaintiff could have been avoided. I have given weight to the fact that, as I find, the plaintiff was not a highly visible person on the road that night. His natural swarthy complexion must have melded into his dark attire and so made him difficult to stand out against either the dark vegetation that fringed the northern edge of the road or the surrounding shades of night in the area in which he was walking. However the bright lights of a car driven by a careful driver would have shown up the plaintiff in sufficient relief as a hazard to be avoided.
Section 3(1) of the Contributory Negligence Act, Chapter 68, which is a reproduction of section 1(1) of the Law Reform (Contributory Negligence) Act, 1945 of England, reads as follows:
“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but, the damages recoverable in respect thereof shall be reduced by such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.”
English cases on what constitutes and what does not constitute contributory negligence on the part of a plaintiff are abundant. Except for statements of general principle much purpose would not be served by the citation of several of them for the simple ‘reason, as Charlesworth and Percy on Negligence condense it in the Seventh Edition of that work at page 164, that “any finding of contributory negligence depends entirely on the circumstances of each individual case.”
In the working of the English Act it has not uniformly proved easy to attribute causation of the accident to the plaintiff or the defendant or to apportion between them respective shares in the responsibility for the damage. In the well known case of Stapley v. Gypsum Mines Ltd. [1953] A.C. 663 their Lordships in the House of Lords divided 3 - 2 on the issue of whether the act of the plaintiff in returning to work under an unsafe roof in a mine was partially or wholly the cause of the accident. In that case Lord Reid said at p.681:
“One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
Lord Wright in Yorkshire Dale S.S. Co. v. Minister of War Transport [1942] A.C. 691 at 706, explained the common law concept of causation as follows: “Causation is to be understood as the man in the street, and not as either the scientist or the metaphysician would understand it.”
Finally, Viscount Simon in Nance v. British Columbia Electricity Ry. [1951] A.C. 601 at 611 said:
“When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by his want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff's claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.”
Applying the principles of law as expounded in the cases just cited to the facts found by me, I am satisfied on a balance of probabilities that the plaintiff was partly responsible for the damage he suffered but I restrict his share of blameworthiness to 20 per cent. This is because I find the causative potency and blameworthiness of the defendant's driving to be the overwhelming cause of the accident.
I turn now to the question of damages. The quantum of special damages was not contested so far as medical expenses of $2,500.00 is concerned. The claim for 56 weeks' loss of pay at $220.00 per week and continuing (of course right down to trial), materialises as a claim for 105 weeks, the period which elaped between the date of the injury and the final day of trial. This claim was challenged both as to the figure of $220.00 per week and as to the number of weeks reckonable.
The...
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