Martin Alphonso Dennis Alphonso Ltd Dennis Alphonso Trading as Dennis Alphonso Car Rentals Ltd APPELLANTS v Deodat Ramnath RESPONDENT

• Jurisdiction: British Virgin Islands
• Judge: SATROHAN SINGH,MATTHEW J.A. (Ag.)
• Judgment Date: 21 July 1997
• Neutral Citation: VG 1997 CA 3
• Judgment citation (vLex): [1997] ECSC J0721-2
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: CIVIL APPEAL NO. 1 OF 1996
• Date: 21 July 1997

[1997] ECSC J0721-2

IN THE COURT OF APPEAL

Before:

The Hon. Mr. C. M. Dennis Byron Chief Justice (Ag.)

The Hon. Mr. Satrohan Singh Justice of Appeal

The Hon. Mr. A. Matthew Justice of Appeal (Ag)

CIVIL APPEAL NO. 1 OF 1996

Between:

Martin Alphonso

Dennis Alphonso Ltd

Dennis Alphonso Trading As

Dennis Alphonso Car Rentals Ltd

APPELLANTS

and

Deodat Ramnath

RESPONDENT

Appearances:

Mr. Gerard Farrara, Q.C., Dr. Ralph Gonsalves and

Mr. Andrew Boyce with him for the Appellants

Mr. Joseph Archibald, Q.C., Mr. Sydney Bennett with him for the respondent

SATROHAN SINGH

1 On November 27, 1991, Deodat Ramnath (the respondent) was riding his bicycle returning to his place of work at Pasea, Tortola, when he was struck by a Montero jeep driven by the first appellant Martin Alphonso and owned by the second appellant Dennis Alphonso Limited. Martin Alphonso is a director of Dennis Alphonso Limited. The respondent was severely injured as a result of the accident. On January 11, 1996, Redhead J, in a Suit brought by the respondent against the appellants, entered judgment for the respondent in the sum of U.S. $439,462: with interest thereon and with costs. The suit was a claim for US$I.M: damages for personal injuries and consequential loss caused by the negligence and/or breach of statutory duty of the first appellant as servant or agent of second and/or third appellant. The appellants appeal from this judgment.

2 The Order of the Court signed by the Registrar, purporting to evidence the. judgment of Redhead J, entered judgment for the respondent against the three appellants. However, a perusal of the learned Judge's judgment reveals judgment only against the first and second named appellants. According to the findings of the judge, there was no company by the name of Dennis Alphonso Car Rentals Ltd., that the second and third named appellants were one and the same, and that the jeep driven by the first named appellant belonged to the second named appellant. There is therefore a mistake in the Order of Court that needs to be corrected.

The issues addressed in this appeal relate to:

• 1. Contributory negligence in the respondent:

• 2. Vicarious liability:

• 3. Quantum of damages:

• 4. Rates of Interest:

3 The finding of the Judge of negligence in the first named appellant has not been challenged.

1. CONTRIBUTORY NEGLIGENCE:

4 The negligence of the first named appellant as found by the judge, related to (1) the excessive speed at which he drove his jeep (2) the overtaking of a car in front of him when it was not safe to do so and (3) his inattentiveness in failing to see the appellant on his cycle in front of that car. The contributory negligence alleged against the respondent, was his attempt at riding across the public road without first checking the traffic behind him and not ringing his bell or giving a signal to signify his intention to turn right. The learned Judge found that whether or not he did so check or give a signal, that the accident still would have occurred, because, in any event, the first named appellant's evidence was that he did not see the respondent. Redhead J therefore found no contributory negligence.

5 An excursion into the vineyard of the facts as found by the judge show that the appellant was riding his bicycle on the Blackburn public road on his correct side. Travelling some 20 to 30 feet, behind him was a car driven by one Fonseca. Somewhere behind Fonseca's car was the Montero jeep driven by the first named appellant. The respondent decided to cross the road and began by turning right diagonally, having verified that there was no oncoming traffic. This was a straight road with visibility about 500 feet ahead. The Montero jeep was higher off the ground than Fonseca's car. Fonseca, having observed this action of the respondent proceeded slowly until he was about 5 to 10 feet from the respondent. The first named appellant then undertook to overtake Fonseca. As he was alongside Fonseca's car, he applied his brakes but did not stop and he collided with the respondent. At the time of impact the front wheel of the respondent's cycle was almost to the other side of the road and the back portion that was struck, nearer to the centre of the road. The brake marks of the jeep were 58'. The respondent was knocked some 10' onto the grass verge. The appellant's jeep was severely damaged.

6 The brake marks and the severe damage to the jeep, after a collision with a mere slow moving bicycle, indicate excessive speed on the part of the first named appellant. Unobstructed visibility for some 500 feet in a jeep that was higher off the ground than the car in front, indicate inattentiveness in this appellant when he failed to see the cyclist before he actually struck him. The question is, did the respondent, by not checking behind him or giving any signal of his intention to cross, contribute to his injuries. Prima facie, these acts of omissions on his part could be said to be negligent acts by him. However, in the context of this case, I am minded to agree with the learned judge that had these omissions not existed the accident would still have occurred as it did.

7 My reasons for so agreeing are not dissimilar to these of the judge. They relate to the appellant's excessive speed, his serious inattention, the fact that the cyclist attempted slowly to cross the road and that at time of impact the cyclist was almost across the road. Taking the evidence as a whole, I share the view of the Judge that had the respondent rung his bell or given a hand signal, it would not have mattered as Martin Alphonso was not paying attention and never saw the respondent until just before the collision. It is also my opinion, that had the respondent checked behind him before undertaking the risk of crossing it still would not have mattered. The reasonable inference or conclusion to be drawn from the evidence, is that at the time the respondent decided to cross the road, he posed no threat to Fonseca's car behind him and Fonseca's car posed no threat to him. That Fonseca had started slowing down to allow him to cross. That Martin Alphonso in his jeep had not as yet attempted to overtake Fonseca and therefore would have been somewhere behind Fonseca's car. That would have been the scenario that would have met the eyes of the respondent had he checked behind. A scenario that evidenced no danger to the respondent when he undertook the risk, thereby making it safe for him to cross. Having undertaken the risk quite safely and started to cross, if he, in the act of crossing, had then decided to check behind, he would have observed the appellant's vehicle racing down at him. In my view, the only avoiding action he could have taken then was to continue his course which he did. Were he to stop or turn back would have put him in greater peril not only of the appellant's jeep but also of Fonseca's car. The accepted evidence is that Fonseca, having observed the respondent's motion to cross the road, saw no danger to himself and slowed down to allow him to cross. Martin Alphonso, observing Fonseca's reduced rate of speed, then decided to overtake paying no heed to the respondent, thereby with sheer speed and inattentiveness unilaterally converting what was a safe situation into a highly dangerous one, ergo, the collision.

8 In his submissions to this Court, Mr. Farrara made much ado that in the trial Judge's judgment, he seemed to have approached the issue of contributory negligence on the principle that such negligence had to contribute to the accident rather than to the respondent's injuries. I say "much ado" because whilst the submission has merit, it is my view that this apparently wrong legal premise created no problem in the context of this case.

9 It is accepted that the guiding principle in proving contributory negligence, is whether the respondent by his acts or omissions contributed to his injuries, in the sense that he failed to take reasonable care for his own safety taking into account, as he must, that other users of road are likely to be negligent. It is also a very salutary principle that when one man by his negligence puts another in a position of difficulty, the Court ought to be slow to find that other man negligent merely b.-.cause lie may have failed to do something which looking back on it afterwards, might possibly have reduced the amount of damage. Contributory negligence did not depend on a breach of duty to the defendant but on lack of care by plaintiff for his own safety.

10 Although contributory negligence does not depend on duty of care, it does depend on foreseeability. Just as actionable negligence requires foreseeability of harm to others so contributory negligence requires foreseeability to oneself. [ The Older (1949) WN 488: Davies v Swan Motor Co. (1949) 2 KB: Jones v Livon (1952) 1 TLR 1371.

11 Given the circumstances of this case, I consider the very thin line between the two concepts to be nebulous. All the injuries sustained by the respondent were as a result of the accident. The respondent 's omissions and his injuries were all inextricably bound up with the accident. Therefore, even though the judge might have approached the issue on the wrong legal premise, no injustice was done to the appellants. For all these reasons I would uphold the finding of the learned judge of no contributory negligence in the respondent. I now propose to address the issue of vicarious liability.

2. VICARIOUS LIABILITY

12 The case of the respondent against the second and third named appellants was one of vicarious liability. The evidence relevant to this issue reveal, that the first named appellant who was a director of the second named appellant was also an employee of both the second and third named appellants. The evidence also reveal that at the material time of the accident, the first named appellant drove a vehicle, belonging to the second and third named appellants...