Ruth Spencer Claimant v Bernard Bonny Defendant [ECSC]

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Blenman J
• Judgment Date: 12 July 2006
• Judgment citation (vLex): [2006] ECSC J0712-1
• Docket Number: ANUHCV2005/0039
• Date: 12 July 2006

Between:

Ruth Spencer

Claimant

and

Bernard Bonny

Defendant

[2006] ECSC J0712-1

ANUHCV2005/0039

IN THE HIGH COURT OF JUSTICE

Appearances:

Mr Septimus Rhudd and Ms Gale Pero for the Claimant

Ms Veronica Thomas of Richards & Co. for the Defendant

Blenman J

1 This is a claim and counterclaim for damages as a result of a motor vehicular accident.

2 Mrs. Ruth Spencer (Ms Spencer) is the owner of a 1995 Nissan Infiniti a 45 motor car (motor car), its registration number is A 1946.

3 Mr. Bernard Bonny (Mr. Bonny) is the owner of a Datsun motor pickup (pickup) whose registration number is C 1504

4 At all material times Mr. Troy McKinnon (Mr. McKinnon) was driving the motor car as Mrs. Spencer's servant or agent.

5 On 21^st January 2004, Mr. McKinnon was driving Mrs. Spencer's motor car, along the Cedar Grove Main Road in St John's heading from North to South, when there was a collision with the pickup driven by Mr. Bonny. The pickup was proceeding from South to North. As a result of the accident both vehicles were damaged. Unfortunately, Mrs. Spencer's vehicle was not repairable; it was a total write off and so too was Mr. Bonny's vehicle.

6 Mrs. Spencer alleged that Mr. Bonny was negligent and caused the accident while Mr. Bonny says that it was all Mr. McKinnon's fault. Each side pleaded particulars of negligence in the standard form: such as drove too fast, failed to keep a proper lookout, drove on the wrong side of the road, and failed to exercise proper control of the vehicle.

7 Mrs. Spencer claimed special damages in the sum of $149,520. She also claimed general damages together with interest and costs. Mr. Bonny has counterclaimed for special damages in the sum of $14,730.00 together with general damages and costs.

Issues

8 (A) The main issue that the Court has to resolve is who is liable for the accident;

(b) The second issue to be determined is the amount of damages the Court should award.

9 Mrs. Spencer testified in support of her claim. Her daughter Miranda and Mr. Troy McKinnon also testified in support of Mrs Spencer's claim. Mr. Bonny testified in his own defence and called one witness Mr. Charlesworth Samuel (Mr. Samuel) in support of his claim.

10 Each side gave different versions as to how the collision occurred. I have no doubt that the resolution of the issue of liability must be based on the Court's determination of which version of the events the Court accepts.

Mrs Spencer's evidence

11 Mrs. Spencer said that in 1999 she purchased the motor car at a cost of $189,000. After the collision she obtained several estimates one of which indicated the cost of repairing the motor car was $80,969.87. This cost exceeded the pre-accident value.

12 She obtained another estimate which recommended that her vehicle be treated a write off.

13 Subsequently, she was able to obtain an estimate which indicated that the pre accident value of her vehicle was $75,000. The salvage value of the vehicle after the accident is $5000. She had to write off the vehicle since the cost of repairing it exceeded its value.

14 She claimed loss of use of the vehicle for 365 days at $216 per day.

15 She also claimed the sum of $1500 for the cost of the estimates.

16 During cross examination by learned counsel Ms. Veronica Thomas, Mrs. Spencer stated that she purchased the vehicle at a duty free price for $80,000 resiling from her earlier position that she had purchased it for $189,000.00. Mrs. Spencer admitted during further cross examination by learned counsel, Ms. Thomas that the cost of the estimates was $680.00.

17 She stated that she was claiming loss of use for 365 days at $216 per day since she used the vehicle to transport her father who was disabled. The vehicle was used to take him for therapy. Her father was also a businessman and also had to be taken around. While she did not have receipts to prove that she expended $216.00 per day she was sure that was the amount of money she had spent.

18 Under further cross examination Ms. Spencer was forced to concede that she purchased another vehicle approximately 4 months after the accident had occurred.

Mr. McKinnon's evidence

19 Mr. McKinnon told the Court that on 23^rd January 2004 between 7.00pm and 800pm he was traveling along the Cedar Grove Main Road heading North to South from Hodges Bay to St John's driving Mrs Spencer's motor's car and on his proper side when Mr. Bonny's pickup, that was in the process of overtaking a vehicle, collided with the motor car. At that time Mr. McKinnon had other passengers in the motor car. Mr. McKinnon denied that he was drunk or that he operated the vehicle negligently.

20 Mr. McKinnon maintained that it was Mr. Bonny whose vehicle in overtaking a parked car came over into the path of the motor car and caused the collision.

21 Mr. McKinnon further stated that he was driving the motor car at approximately 20–30 miles per hour. His vehicle was on the left side of the road. The road was dry. As soon as he came over the rising in the road, he observed the lights of an oncoming vehicle. The vehicle was coming towards him on his side of the road at that time was about one car length away. When he first saw the bright lights they were in front of the motor car. He applied his brakes immediately to avoid the collision yet the vehicles collided head-on.

22 During cross examination by Ms. Thomas, Mr. McKinnon stated that he first saw the head lamps and bright lights from the vehicle just after he had passed the hill. When he first saw the other vehicle it was about 2 car lengths away and even though he "had his foot on his brakes" he was unable to avoid the accident.

23 Mr. McKinnon admitted that his vehicle skidded when he applied his brakes. He denied that he was speeding and said that he was unable to explain how the brake mark from the motor car he was driving to the point of impact was stated as 86 feet.

24 He maintained however, that when he first saw the bright lights they were right in front of him.

Ms Miranda Spencer's evidence

25 Ms. Miranda Spencer testified in support of her mother's claim. She stated that on the night in question she was a passenger in the motor car that was driven by Mr. McKinnon. She was in the front passenger seat.

26 She stated that the motor car came over the rising in the road in Cedar Grove and she saw lights of another vehicle. The vehicle was on the same side of the road as the motor car. He was sure that the motor car was on the left hand side and that Mr. McKinnon "immediately hit the brakes and in a few seconds we collided with the other vehicle."

27 Under cross examination by Ms Thomas, Ms. Spencer said that it was when the motor car had come over the hill that she observed the bright lights and felt the impact. As soon as their vehicle had come over the hill, the two vehicles were about 1 car length away. She, too, said that when she first saw the bright lights the vehicle was right in front of them.

Mr. Bonny's evidence

28 In his defence Mr. Bonny stated, that on the night in question he was driving his pickup at approximately 8.00pm on his proper side of the road. He was driving at approximately 20 miles per hour. A car was parked on the left side of the road. While he was passing the car, he heard car brakes screeching and saw the bright lights of a car coming towards him. He said that he swerved to the left and then he felt an impact to the front of his pickup. He maintained that his pickup was on the proper side of the road when the motor car came into collision with it. He denied that he drove negligently and caused the accident.

30 As a result of the accident, he was hospitalized for 3 days.

31 Mr. Bonny said that after the collision, he had no transportation and lost his job since he was unable to get transportation from Hodges Bay to take him to East Bus Station for 630am. At that time, he was on probation and earned $600 per week. He claimed to be entitled to loss of income for 4 weeks at $600 per week.

32 Mr. Bonny also alleged that he suffered injuries as a result of the accident and sought compensation in the sum of $5,000 for pain and suffering.

33 During cross examination by learned counsel Mr. Septimus Rhudd, Mr. Bonny said that he had already passed the parked car and had gotten back into his correct lane when the collision occurred. He insisted that he was on the left hand side of the road when he felt the impact to his pickup.

34 Mr. Bonny stated that based on the width of the road 3 vehicles could not pass there comfortably. While Mr. Bonny stated that the road is narrow he denied that it was necessary for his pickup to go into the other lane of a vehicle in order to pass.

35 Even though a car was parked on his side of the road, Mr. Bonny was sure that he did not have to go into the other lane to pass the car. Later, he stated that he had passed the parked car when the collision occurred. However, under persistent cross examination he maintained that while he was in the process of crossing the car the collision occurred.

Mr. Charlesworth Samuel's evidence

36 Mr. Samuel testified in support of Mr. Bonny. He stated that on the night in question he was on duty as a watchman and was sitting on the verandah of the UPP's office on the Cedar Grove Main Road. He heard a vehicle coming from Hodges Bay area, he said "the vehicle was speeding and the tyre was 'bawling' from around the corner." The vehicle seemed to go into a lower gear but it was still in high 'rev.' Mr. Bonny's pickup was coming from opposite direction and the driver was taking his time about 30mph. Mr. Bonny's pickup had passed a parked car that was on the left when the oncoming motor car lost control and ended up on the western side of the road hitting Mr. Bonny's vehicle. It was a head on collision.

Mrs Ruth Spencer's submissions

37 Learned counsel Mr. Septimus Rhudd submitted that based on the evidence...