Joseph v Henry

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Bishop, J.
• Judgment Date: 08 June 1978
• Neutral Citation: AG 1978 HC 16
• Docket Number: 10 of 1978
• Date: 08 June 1978

High Court

Bishop, J.

10 of 1978

Joseph

and

Henry

Franklin A. Clarke for plaintiff.

Time H. Kendall for defendant.

Damages - Damage to plaintiffs vehicle by defendant's cow which was crossing the road — Quantum.

Bishop, J.

1 Noel Joseph the plaintiff was driving his Triumph 2000 c.c. motor car A.G. 6674 along the Pares Village Public Road from west to east at about 1:45 p.m. on Sunday the 20 ^th November last year when he was involved in a collision with a cow, about two years old, and owned by Kenneth Henry, the defendant.

2 As a result of the collision the animal died almost instantly and the left front part of the car was damaged. The damage included dented fender, dented grill, punctured radiator, and smashed headlamp. Indeed the car could not be driven after the collision and it had to be towed away.

3 The action now before me is a consequence of that collision. The plaintiff has alleged negligence on the part of the defendant, and has claimed damages and the costs of the action.

4 I have heard the versions of the plaintiff, his brother who was a passenger in the back seat of the car, and the defendant.

5 In addition to the facts stated already, I am satisfied that Noel Joseph was driving at about 40 m.p.h. before the collision occurred. The road inclined at one point, sufficient to prevent him seeing beyond the top of the hill when approaching and it was only on reaching the brow that Noel Joseph could then see the road ahead for an appreciable distance, say about 75 yards or more. The surface was thereafter flat and almost entirely straight.

6 It was agreed that on the left side of the road — when driving towards the east — there was an open pasture in which cattle were accustomed to graze, and I believe that between the brow of the hill and the spot where the collision occurred this pasture could not be seen for the entire distance. I accept the evidence that for a distance of ten feet starting at a point five feet away from the brow of the hill a number of acadia trees obscured the pasture. On the right side of the road there was an open pasture which could be seen from the brow of the hill throughout the length of the road to the spot where the collision occurred.

7 Noel Joseph explained the incident in these words:

“….. As I was travelling two animals — cows — suddenly bolted across the road…. My car struck one of the cows. The front left of the car struck the cow across the legs and body at the side….. I was on the left side of the road. The cow came from the left side…..”

8 Filton Joseph, the plaintiff's brother, said that he was seated behind the driver of the car. He was at the right side of the back seat and he explained the collision like this:

“… Two cows came from behind the trees on the left hand side of the road and ran across the road. The plaintiff mashed brakes. He did not stop before he hit one. The one behind. He stopped after he struck the one behind…. The accident happened on the left hand side…. right on the left hand side.”

9 Both the plaintiff and his brother testified that the defendant was in a pasture on the Right hand side of the road at the time of the collision, but it would seem that they differed on the distance he was from the scene of the collision. Each of them said that the defendant was then staking out other cattle in that pasture; in fact, the plaintiff told learned counsel for the defendant:

“….. No, he was not trying to hold them back from bolting. It is not true that after the impact the other animals bolted. They were not near. Two bolted. One in front and the other behind. I hit the one behind…..”;

And again, under cross examination, Filton Joseph denied that when he saw the defendant, the defendant was standing at the edge of the road. He explained to Mr. Kendall that he thought the defendant was staking out cattle because “there were a lot of cattle around in the pasture.”

10 When Kenneth Henry gave his version of the collision between the car and the cow he explained that he had 14 to 16 cattle which he was taking from the pasture where they had been grazing to the place on the opposite side of the main road where he intended “to water them”. He said in his evidence in chief:

“Going east I pasture them on the left hand side. I pasture them approximately 2 to 22 miles from the main road…. I have to bring them over….. to the right hand side to water them….. Where I...