Thomas v Holmes

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Bertrand, J.
• Judgment Date: 29 September 1986
• Neutral Citation: VG 1986 HC 6
• Docket Number: No. 57 of 1982
• Date: 29 September 1986

High Court

Bertrand, J.

No. 57 of 1982

Thomas

and

Holmes

Appearances:

Mr. Edgar Hewlett for plaintiff.

Mr. Lewis Hunte for defendant.

Tort - Negligence — Boat collision — Plaintiff claiming for loss of use of his boat and renting of another –

Held: special damages must be specifically pleaded and proved. The court was unable to revise claim. Judgment of the plaintiff in the sum of $1,500 damages plus $2,650 for rental of a boat and $5,300 loss of earnings.

Bertrand, J.

1 The plaintiff's claim is for injury and loss sustained caused by the defendant to the plaintiff's vessel (The “Joanne”) when on Wednesday morning the 25th November, 1981, the defendant drove his vessel, a Sea Eagle fibreglass boat with outboard motor so negligently as to cause it to collide with the plaintiff's vessel. He is also claiming the value of his boat at the time of the collision, $2,000.00.

2 The plaintiff is a fisherman who makes a living by selling his catch of different species of fish. He claims as a result of the collision, he had to rent a boat twice a week, thus reducing his catch and sale of fish. He is therefore also claiming loss of profit and rental of a boat, during the period a new boat was being built for him.

3 The defendant filed a defence, but he did not appear at the trial to give evidence. One witness was called in support of the defence. The witness' evidence was an attempt to produce in evidence a photograph of the damaged vessel. The witness did not know the boat before the photograph was taken nor was the plaintiff present when it was taken. He did not give the name of the vessel. The vessel, he said was pointed out to him by the defendant and that was in March, 1982. The collision occurred in November, 1981. Counsel for the plaintiff objected to the photograph being put in evidence, and the court upheld the objection. The witness gave evidence as to -

1

The condition of light on a morning of a November month of any year; 2. The maximum speed of a 35 h.p. engine on a wooden fishing boat; 3. Whether a damaged plank and/or substantial part of the stern of a boat could cause a write-off of that boat.

4 In my view his answers were very vague and insufficient to be of any help to the defendant, and his answers generally did not conclude a denial of the plaintiff's claim. In short, he was of very little assistance to the court. His evidence of experience was limited to assessing damaged boats for purposes of insurance claims, and also for valuating boats for sale as a result of seizure by the courts for non-payment of judgment debt.

5 It therefore remains for the court to decide on the evidence of the plaintiff and his witnesses whether the plaintiff has proved a case against the defendant.

6 The plaintiff's evidence is that at nearly 6 o'clock a.m. he left home with his brother Kenneth Thomas for Wickhams Cay where his boat was moored to go on a fishing trip. He carried with him a torchlight with six volt batteries, a wheelbarrow and a jerry jug of gasolene. He did not put on his torchlight because it was a clear morning. To use his own words, “day light was clean.” He could see all around him including the islands, for example, Peter Island, Cooper Island and Ginger Island. In leaving Wickhams Cay, he said he kept close to the land to catch the smooth water and was travelling about 5 knots. Bob Sallah, a witness for the plaintiff, and who is a master mariner and Marine Adviser to the Government of the British Virgin Islands, said in evidence that fishermen with small boats going out from Road Harbour would usually hug the eastern shore of the harbour so as to get the benefit of the shelter that affords them against the prevailing winds. He has known that to be generally true in the British Virgin Islands over the years he has been here, and that it may be a tradition based on good reason, and that it is safe for a small craft to do so. There is no reason to doubt that evidence.

7 The evidence showed that the plaintiff owned a wooden fishing boat fitted with a 35 h.p. engine — Evinrude. He continued his evidence that he was operating the steering and looking ahead. His brother was on the bow seat. The plaintiff saw a light coming at a distance, he thus kept closer to land. The light was on a boat, and it kept coming to him at a fast rate. He tried to get away from it; by keeping nearer to the shores. What happened can best be explained in his own words.

“The boat coming at me was a white boat. Just after I saw the light, I discovered boat was white. When I saw boat I was just off Shell installation in Road Harbour. Shell installation was on my left. I slowed down the engine a little and kept closer to the land. I kept going in closer to land. The white boat was travelling in a west north west direction. I could not see person who was driving boat. The bow of the boat was above the water.”

8 Counsel for the plaintiff contended that the lifting of the bow above the water denoted the fast speed the defendant's boat was travelling.

9 The plaintiff continued –

“It was a speed boat, the bow lift. I would say boat was travelling so much miles, the speed she carry, we collide. The nearer down he came, the more he come in. I tried to get away by turning my boat in on the left, but his speed was too much, and so he hit me. His bow hit my boat. The bow of his boat hit just below my boat bow. My boat start to take water. One broad side of my boat broke in. Nothing happened to the other boat.”

10 The plaintiff said he never sailed faster than 5 knots, and he never sailed unto the on-coming boat. He was offered no help from the person who was driving the other boat. In order to get his boat back safely to land, the plaintiff said:

“I was at the stern, so that the weight would keep the bow up a little and slowed the engine right down, and I coaxed the engine to reach land, to Wickhams Cay 1. I reached there.”

11 The plaintiff said he saw the...