Melvina Frett-Henry Appellant v [1] Tortola Concrete Ltd [2] Clayton Smithen Respondents

• Jurisdiction: British Virgin Islands
• Judge: EDWARDS, J.A.,Ola Mae Edwards,Davidson Kelvin Baptiste,BANNISTER, J.A.[Ag.]
• Judgment Date: 21 November 2011
• Neutral Citation: VG 2011 CA 14,[2011] ECSC J1121-5
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: HCVAP 2008/024
• Date: 21 November 2011

[2011] ECSC J1121-5

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mr. Edward Bannister, QC Justice of Appeal [Ag.]

HCVAP 2008/024

Between:

Melvina Frett-Henry

Appellant

and

[1] Tortola Concrete Limited

[2] Clayton Smithen

Respondents

Appearances:

Ms. Dionne Boreland-Fearon with Ms. Shamara Morton-Maynard for the Appellant

Mr. John Carrington for the Respondents

Civil appeal - Road traffic accident - Negligence - Collision on wet road - Unexplained skid - Causation - Contributory negligence - Apportionment of blame - Section 2(2) of the Law Reform (Miscellaneous Provisions) Ordinance, Cap. 41, Revised Laws of the Virgin Islands 1991 - Whether the appellant's case as pleaded differed to that which was put forward at trial - Whether the trial judge erred in determining liability for the accident - Whether the trial judge erred in determining the matters arising from the defence of contributory negligence - Whether the trial judge erred in her assessment of the damages awarded to the appellant

On the morning of 15 ^th June 2001, a collision occurred between a car driven by the appellant, Mrs. Frett-Henry, and a concrete truck driven by the second respondent, Mr. Smithen. Mrs. Frett-Henry was driving downhill along the winding Great Mountain public road in Tortola while Mr. Smithen, then employee of the first respondent, Tortola Concrete Limited ("the Company"), was driving the Company's truck in the opposite direction. Mr. Smithen drove the truck around a bend in the road in the middle of the road, causing Mrs. Frett-Henry to apply her brake while approaching the truck. Mrs. Frett-Henry's car slid into and collided with the right side of the truck after Mr. Smithen had returned to his proper driving side of the road. The road was wet when the accident occurred. Each party alleged that the other had been negligent; the appellant alleged negligence in her statement of claim and the respondent alleged contributory negligence in the defence.

The trial judge concluded that it was the unsafe speed that Mrs. Frett-Henry was driving at which made it impossible for her to stop in time and also that Mr. Smithen had not been driving on his proper side of the road immediately before the accident occurred. She therefore found that they had both contributed to the accident and apportioned liability in the following way: 75% to Mrs. Frett-Henry and 25% to Mr. Smithen. Both parties were dissatisfied with the learned trial judge's findings of fact, her apportionment of liability, and her award of damages. Mrs. Frett-Henry adduced no expert testimony to prove damages. She relied on several medical reports, a letter from her employers, receipts and bills, and her evidence, to prove damages. Mrs. Frett-Henry appealed and the respondents filed a counter notice of appeal. The issues raised in Mrs. Frett-Henry's grounds of appeal and the respondents' counter notice may be summarised in three main issues: (i) whether the trial judge erred in determining who was liable for the accident; (ii) whether the trial judge erred in determining the matters arising from the contributory negligence defence; and (iii) whether the trial judge erred in her assessment of the damages awarded to the appellant.

Held: allowing the appellant's appeal against the apportionment of liability for her contributory negligence, varying paragraph 44(a) of the trial judge's order to reflect the decision of this Court on apportionment of liability, setting aside paragraphs 44(b)(i) and 44(b)(ii) of the trial judge's order, dismissing the appellant's other grounds of appeal and ordering that the respondent pay the appellant costs in the appeal; allowing the respondents' counter notice appealing the award of loss of earnings and future loss of earnings, setting aside paragraphs 44(b)(iii) and 44(b)(iv) of the trial judge's order, dismissing the other grounds of appeal in the respondent's counter notice and ordering that the appellant pay the respondents costs in the appeal, that:

• 1. Where a case comes to trial on pleadings which allege one set of facts and those facts are put forward but are defeated or rejected, the party putting forward those rejected facts cannot succeed on a different case which he/she had not raised and which the other side had not come to the trial prepared to meet. In the instant appeal however, the judge's findings on the respondents' liability were foreshadowed by some of the Particulars of Negligence alleged in the appellant's statement of claim, though the judge rejected the appellant's pleading that the truck driven by Mr. Smithen collided with the appellant's car. The finding that it was the appellant's car that collided with the respondents' truck was supported by and in accordance with the respondents' pleadings. The learned judge was entitled to decide in favour of the appellant on the basis of the scenario not pleaded by her, but by the respondent, provided the judge did so fairly. The respondents were not prejudiced since the facts upon which their liability was established were those pleaded by the parties.

  Waghorn v George Wimpey & Co. Ltd. [1969] 1 W.L.R. 1764 applied; John G. Stein & Co. Ltd. v O'Hanlon [1965] A.C. 890 cited.

• 2. Generally, a person is guilty of contributory negligence where that person fails to take reasonable care of himself/herself in circumstances where that person ought reasonably to have foreseen that if he/she did not act as a reasonable prudent person, he/she might be hurt; and in such reckonings he/she must take into account the possibility of others being careless. The primary question therefore for the trial judge, in relation to the skid and contributory negligence, would be whether Mrs. Frett-Henry had, by her evidence, established on a balance of probabilities that: (i) she did foresee harm to herself; and (ii) she acted as a reasonable prudent person for her own safety and guarded herself against the negligence of Mr. Smithen. The primary focus would be on the foreseeability of harm to herself apart from her duty to other road users. The learned judge failed to apply the law of contributory negligence where she made no distinction between the standard of care required for the appellant's contributory negligence and the respondent's negligence.

• 3. It cannot be assumed in the absence of evidence, that apart from being wet, the road surface was slippery or in any other poor condition. The existence of the dilemma would not excuse fault. The need to act reasonably in the dilemma defines the conduct to be expected of a reasonable prudent person when faced with the dilemma. In the absence of probative evidence negativing contributory negligence, the learned judge was not entitled to speculate, or draw inferences in favour of Mrs. Frett-Henry.

• 4. The cumulative effect of the evidence disclosing the unexplained skid, the failure of Mrs. Frett-Henry's brake to stop her car before the collision and the resulting harm to herself, is that she failed to act reasonably and take care of herself. Had the judge applied the correct law and principles, her findings and conclusions would not have been unreasonable on the totality of the evidence.

• 5. The appellant, Mrs. Frett-Henry, though driving at an unsafe speed, was not reckless. Mr. Smithen's negligence set in motion a trail of events culminating in the collision occurring after he had returned to his proper driving side of the road. His return to his proper side of the road should not be viewed in isolation from his prior negligence. Though he may not have been negligent after creating the dilemma, this would not necessarily preclude liability for his prior negligent conduct which produced the dilemma. There was no break in the chain of causation between the respondent's negligent act and that of the appellant. The trial judge correctly found the respondent's negligence to be part of the effective cause of the collision, although finding that the appellant was not free from fault.

  Wright v Lodge and Another [1993] R.T.R. 123 distinguished.

• 6. There are no rules requiring that a trial judge reject the whole of the evidence of a claimant whose witness statement, oral testimony, pleadings, or other documentary evidence conflict on matters that are central to the issues to be determined by the judge. The trial judge's finding that Mr. Smithen was at first traveling in the middle of the road, was not an unreasonable inference to draw from the totality of the evidence.

• 7. On the well-known authorities, once an appellate court accepts the findings of fact of the court below that the two parties in an action are to blame, it should, in the absence of error of law, only in a strong and exceptional case revise the apportionment of blame made by the trial judge. In carrying out the exercise of an apportionment of blame as between a negligent defendant and a claimant who is found to have contributed to the damage he/she suffered, the trial judge would be concerned with the blameworthiness of each party as well as the relative importance of the acts causing the damage.

  The MacGregor [1943] A.C. 197 applied; Davies v Swan Motor Co. (Swansea) Ltd. [1949] 2 K.B. 291 applied.

• 8. In the present appeal, the trial judge did not apply the law on contributory negligence in her judgment and the absence of any indication that her apportionment was guided by the appropriate principles governing contributory negligence, amounts to an error of law. In the circumstances, this Court would be in a position to carry out anew the apportionment exercise under section 2(2) of the Law Reform (Miscellaneous Provisions) Ordinance. 1 (Per Edwards J.A. with Baptiste J.A. concurring, Bannister J.A. [Ag.] dissenting).

• 9. The apportionment of blame made by Olivetti J. was unexceptionable as a matter of approach, but wildly...