Michael Hasted v Calvin Costello & Others
| Jurisdiction | British Virgin Islands |
| Judge | HARIPRASHAD-CHARLES J |
| Judgment Date | 17 May 2011 |
| Docket Number | Claim No. BVIHCV2008/0327 |
| Court | High Court (British Virgin Islands) |
| Date | 17 May 2011 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE (CIVIL)
Claim No. BVIHCV2008/0327
Ms. Akilah Anderson of Farara Kerins for the Claimant
Mr. Patrick Thompson of McWTodman & Co for the Second and Third Defendants
The First Defendant absent and unrepresented
On a bright Monday morning in November 2003, an accident occurred along the Fisher's Lane Public Road in the vicinity of Pieces of Eight, Sea Cow's Bay. The claimant, Michael Hasted was driving his black Isuzu jeep when a red mack truck, driven by the first defendant, Calvin Costello collided with his vehicle. The truck is registered in the name of the third defendant, Tattoo's Trucking, a company incorporated under the laws of the Virgin Islands. The second defendant is the owner and managing director of Tattoo's Trucking, responsible for the day-to-day affairs of that company.
As a result of the collision, Mr. Hasted commenced these proceedings. He claims special damages of $3,151.80 for medical expenses and lost earnings of $225,000 from the date of the accident to the date of claim. He also claims general damages for pain and suffering and loss of amenities, future medical expenses, interests and costs.
Mr. Costello has not acknowledged service nor filed a defence. It is believed that he no longer lives in this Territory.
A defence was filed on behalf of Mr. Hodge and Tattoo's Trucking (collectively ‘the defendants’) on 12 January 2009. In the defence, Mr. Hodge denied that the collision was caused as a result of the negligence of Mr. Costello. He alleged that the said collision was caused solely or alternatively, Mr. Hasted contributed to the negligence.
The only witnesses to testify at the trial were Mr. Hastead and Mr. Hodge. Overall, I found Mr. Hasted to be a truthful witness in respect of the details of the accident itself and I would accept his version of events as to how the incident took place.
I could not entirely rely on testimony of Mr. Hodge as some aspects of it conflict with his witness statement. That said, he was not present when the accident took place and therefore, he has no first—hand knowledge of how the accident occurred.
The evidence, as I found it, is that Mr. Hasted was proceeding along Fisher's Lane Public Road in his jeep. On board his vehicle was his 6-year old daughter sitting in the back seat with her seat belt on. Mr. Hasted was also wearing his seat belt. He was driving at about 20 m.p.h. behind a Public Works Department truck. Passing Prospect Reef, a large red mack truck appeared very close behind his vehicle. The truck blew its horn and remained very close behind for about1/4 of a mile, until Mr. Hasted safely overtook the slow moving PWD truck.
Approaching Pieces of Eight in Sea Cows Bay, Mr. Hasted noticed that the same truck was again behind him, at a much closer distance, approximately one car length. He was startled by the truck's horn and afraid for his daughter who was seated in the back seat.He decided to allow the truck to pass. He used his indicator to signal that he was slowing down but before he could stop, the truck ran into the rear of his vehicle. The impact damaged the rear of his vehicle. It broke the back of the driver's seat which twisted out of its original alignment. Mr. Hasted suffered injuries to his left shoulder and permanent partial loss of use in his left arm. His daughter miraculously escaped with only minor injuries.
It is common ground that the following issues arise for determination namely:
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a) Whether the accident was due to the negligence of Mr. Costello?
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b) If so, whether the defendants were vicariously liable for same?
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c) Whether Mr. Hasted contribute to the accident and if so, to what extent?
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d) Can the defendants claim and indemnity or contribution from Mr. Costello for any damages awarded?
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e) What is the extent of personal injury suffered by Mr. Hastead?
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f) What is the proper measure of damages?
Issues (a) and (c) can be conveniently dealt with together. The evidence, which I accept is that the truck was so close to Mr. Hasted's vehicle that he decided to allow it to pass. He used his indicator to signal that he was slowing down but before he could stop, the truck ran into the rear of his vehicle.
It is trite law that a motorist generally owes a duty of care to other motorists and users of the road to drive with reasonable care and skill. A motorist who fails to meet the required standard is liable for any damage caused as a result of his or her breach. Normally, where this breach of duty or negligence is alleged, the claimant is required to prove the breach. However, in some cases, in the absence of evidence from the defendant, it is open to the court to infer that there has been a breach of duty from the evidence of the circumstancesin which the accident occurred: Easson v. LNE Railway [1944] 2 KB 421.1 A rear-end collision is typically one of those cases.
The defendants say that Mr. Hasted's case cannot simply rest on the presumption of negligence arising out of the fact of a rear-end collision. First, he is required to prove the particulars alleged. Second, they raise the question of contributory negligence. It is argued that if the Court finds that Mr. Hasted's driving made a collision so threatening that Mr. Costello could not avoid it, then Mr. Costello ought not to be held liable at all for any negligence:The Volute.2 Alternatively, if the Court finds that Mr. Hasted failed to take reasonable care for his own safety: Nance v British Columbia Electric Rly [1951] AC 6013, it should find there has been contributory negligence: Alphonso and others v Deodat Ramnath (1997) 56 WIR 183.4
Learned Counsel for the defendants, Mr. Thompson submits thatThompson v Spedding [1973] RTR 3125 is authority for a finding of negligence where a claimant drives in such a manner as to collide with another vehicle, even if his negligence is not the primary or operating cause. In that case, the defendant braked suddenly on a busy road to turn to the right. The vehicle behind also braked suddenly to avoid a collision with the defendant, and the claimant who was on a scooter behind the second vehicle collided with it. It was a rear-end collision, but the defendant was held negligent. The claimant was later held 50% contributorily negligent, even though the accident was not his fault.
So, Mr. Thompson suggests, it is open to the Court to find that Mr. Hasted's driving was negligent if it is proved that he failed to indicate that he was slowing down or stopping and as such failed to maneuver to avoid the collision while driving on the road with full awareness of the dangerous situation created by Mr. Costello, driving very closely behind him in a red mack truck.
Such a finding is not borne out by the evidence. In cross-examination Mr. Hasted said that he turned on his indicator to signal that he was slowing down. He admitted that he did not
put it in his statement saying he was under a lot of pain at the time. He said that it was normal procedure to turn on his indicator. Counsel for the defendants says this statement is self-serving and a recent fabrication and ought to be rejected. However, I have already found that Mr. Hasted with respect to the details of the accident to be a witness of truth and I accept his evidence.Mr. Thompson also raises for considerationRoad Traffic Act Regulations 17(b) which provides that a motorist who is about to stop or slow down is to extend their arm and hand horizontally and move the arm slowly and repeatedly upwards and downwards, and Goke v Willett [1973] RTR 422 where the Lord Justice of Appeal Edmund Davies opined that the use of traffic signals should not automatically negate the need for hand signals in every traffic situation because ‘there may nevertheless be circumstances when it is still desirable that the utmost warning to other traffic of one's intentions should be resorted to…’ Mr. Thompson proposes that Mr. Hasted himself is in breach of statutory duty to use a hand-signal to convey his intention to slow down or stop.
Mr. Hastead admitted that he did not use a hand-signal, only his indicator to signal his intentions. He admitted that he had no reason to turn off the road. He said he slowed down to let the truck pass. He was aware that it was driving at an unsafe distance behind him.
[WHEN PRESSED HE DENIED PANICKING AND COMING TO A COMPLETE AND IMMEDIATE STOP]—I remember this but it is not in my notes nor in yours and we likely will not get the transcript. I'm wondering if maybe I am remembering another case and I am confused.
Mr. Costello was faced with an ordinary incident of traffic, the driver in front of him slowing down. He failed to respond and collided almost immediately with the rear of Mr. Hastead's car. There has been no explanation:Initial Services Limited v Central SMT Co. Ltd.
In those circumstances, there is no evidence that Mr. Hastead failed to take reasonable care for his own safety:Nance v British Columbia Electric Rly [1951] AC 601 at 611 There was very little that Mr. Hastead could have done to alleviate the unsafe conditions created by Mr. Costello driving too fast and too close behind him in a big red mack truck.
Accordingly, the negligence of the first Defendant Mr. Costello caused the collision and there is no finding of contributory negligence on the part of Mr. Hastead
Issue #3— Are the Defendants (Tatoo Trucking and Mr. Hodge) or either of them vicariously liable for Mr. Costello?
This no longer appears to be very much in contention. In the amended...
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