Mercer v Smith

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Glasgow, J.
• Judgment Date: 08 February 1971
• Neutral Citation: VG 1971 HC 1
• Docket Number: Civil Appeal No. 18M of 1969
• Date: 08 February 1971

High Court

Glasgow, J.

Civil Appeal No. 18M of 1969

Mercer

and

Smith

Appearances:

J.S. Archibald for Plaintiff

F.C. Adams and McW. Todman for Defendant

1971. February, 8th

Tort - Damages — Personal Injury.

Negligence - Remoteness — Whether the accident resulted from defendant's negligence or mechanical failure.

Facts: Evidence revealed that the plaintiff suffered extensive injury as a result of being struck by the defendant's car. His injuries included a fractured leg, which required skin grafting, hospitalisation and numerous visits to the hospital as an outpatient. He could not continue in his previous job as a driller.

Facts: Evidence revealed that the plaintiff received extensive injuries when he was struck by defendant's car. The defendant asserted that just before the accident his brakes failed.

Held: The failure of the brakes was not the cause of the accident. Even if the brakes failed, negligence on the part of the defendant would be presumed and the plaintiff would succeed unless the defendant rebutted the presumption by proving he exercised due diligence in driving and equal diligence in the maintenance of his vehicle. Plaintiff succeeded.

Glasgow, J.

1 The Plaintiff's claim against the Defendant is for personal injuries and loss and damage occasioned to the Plaintiff by reason of the alleged negligence of the Defendant in the driving, managing and controlling of a motor vehicle along the public road at Sandy Ground in the island of Tortola in the Territory of the British Virgin Islands on the 3 ^rd day of October, 1968.

2 In his Defence the Defendant admitted that he was at all material times the driver of motor vehicle registered number V.I. 157. Save for the said admission the Defendant denied each and every allegation in the Statement of Claim in the like manner as if the same were set forth in his Defence and traversed seriatim.

3 The facts as I find them, are as follows: On the night of the 3 ^rd October, 1968 the Plaintiff was traveling as a passenger in a Willys Pickup which was being driven on the public main road by one Studley Christopher's from Sea Cow's Bay to Road Town. When Christopher's vehicle arrived at Sandy Ground, Christopher stopped it abreast of a Volkswagen motorcar which was parked on the left hand side of the road facing the direction of Road Town. Christopher stopped his vehicle because one Alcedo Pickering who had been standing at the side of the Volkswagon car, had signaled him to stop. Christopher spoke with Pickering and then reversed his pickup and parked it about 18 feet behind the Volkswagon car. Christopher left the headlights of his pickup on, and both he and the Plaintiff got out of the pickup. The rear left tyre of the Volkswagon car was flat. Christopher took his spanner and removed the wheel with the flat tyre. He then started to put the spare wheel. At that time the Plaintiff was standing near a large turpentine tree which was growing on the verge of the road. The Plaintiff was then standing on the verge of the road and about three feet from its pitched surface. The Plaintiff saw the lights of a vehicle approaching from the direction of the Sea Cow's Bay. He then proceeded to watch Christopher affixing the spare wheel to the Volkswagon car. The Plaintiff again looked in the direction of the approaching vehicle and he saw it coming towards the mountainside of the road. When the vehicle was standing, it left the surfaced position of the road, passed on the left of the two parked vehicles and collided with the turpentine tree near which the Plaintiff was standing, and with the Plaintiff. The vehicle came to a stand still against the turpentine tree. The vehicle which collided with the tree and the Plaintiff was a green Willys Pickup which was owned and driven by the Defendant. The Defendant had seen the two parked vehicles as he was approaching them. He meant to stop and tried to apply is brakes. He found he had no brakes. He turned his vehicle to the left hand side of the road, and went off the road with the results already mentioned. The Defendant never saw the Plaintiff until after the accident. At the time of the accident the Defendant was driving at about 30 miles per hour. The road at the place where the two vehicles were parked was 19 feet 2 inches wide. The surface of the road was pitched and dry. The road was level ad straight.

4 I am satisfied that the Volkswagon car and Christopher's Pickup were parked close enough to the left hand side, i.e. the mountain...