Berry v Jong

• Jurisdiction: Saint Kitts and Nevis
• Judge: Glasgow, J.
• Judgment Date: 21 November 1975
• Neutral Citation: KN 1975 HC 3
• Docket Number: No. 80 of 1973
• Date: 21 November 1975
• Court: High Court (Saint Kitts and Nevis)

High Court

Glasgow, J.

No. 80 of 1973

Berry

and

Jong

Appearances:

D. Byron for plaintiff

C. F. Henville for defendant

Damages - Personal injury

Facts: The plaintiff was injured in a motor accident in which the defendant was held liable. The plaintiff sustained multiple fractures, suffered from shortening of the left leg and had to undergo an operation to urinate. The plaintiff's physical activities became restricted. General damages for the plaintiff assessed at $20,000.00 and special damages at $2,472.00

Glasgow, J.

1 The plaintiff's claim against the defendant is for damages for the alleged negligent driving by the defendant, on the 15 ^th May, 1972, of a Citroen motor car, in which the plaintiff wad travelling as a passenger. The plaintiff alleged that by reason of the defendant's negligence he (the plaintiff) suffered pain and injury, loss and damage. The defendant in his statement of defence denied that he was negligent as alleged or at all. The defendant stated that as he was driving along, the car ran over a narrow trench which had been dug across the road, that this pulled the steering tie-rod out of its socket, and that the car got out of control and crashed. The defendant did not admit the alleged injuries, loss or damage.

2 The facts, I find them, are as follows: On the 1 5 ^th May 1972 at about 8 p.m. the defendant parked a new Citroen rotor car-No P. 3006, in front of the house of one Samuel Lake at New Pond Site, Basseterre. The defendant met tie plaintiff at or near the said house and, asked him whether he would like to go for a drive. The plaintiff accepted the invitation. The defendant unlocked the said car. The plaintiff entered the front compartment and sat in the left front seat next to the driver. The defendant entered and drove the car along the island main road in the direction of Conaree. When the car reached by the Conaree area, it was travelling at about 60 miles per hour. The defendant was still accelerating. Then the defendant turned his head in the plaintiff's direction and said, “That's seventy-five.” The car was then travelling at about 75 m.p.h. Then the car started swerve along the road. It continued swerving from side to side; then it began heading towards a lamp post on the left side of the road by a corner in the Conaree area; then it crashed into a cane field on the Airport side of the road, and name to a standstill about 40 feet from the main road. When the car was seen by the Police examining officer later that night it was found to be badly damaged. The left and right sides were smashed in, the front was smashed in and the under portion was also damaged.

3 The defendant sought to show that the accident occurred without negligence on his part and that it was in fact due to a latent defect in the car. In the course of his evidence the defendant stated: –

“As we were driving on the main public road towards Conaree, as we passed the Airport I looked at my speedometer. It read somewhere around fifty. As I approached Conaree Village I met a ditch running across the main road, so when I saw that I tried to avoid the ditch. I did a slight left turn. As the car hit the ditch my right forehead hit the rim of the window. I became unconscious then. The next thing I know I woke up in the hospital about 5 o'clock in the morning. The plaintiff was in the hospital as well. It is not true that I was swerving all over the road, it is not true that I was travelling as fast as 60 miles per hour. It is not true that after that I went on accelerating. I never turned to plaintiff and said ‘That's seventy-five’ “.

4 In cross-examination the defendant stated, among other things: –

“The ditch extended right across the road. I was thinking that the ditch was shallower on the left hand side of the road. It was in the night. From a distance the ditch looked shallower on the left, I did think that it would have been a safe thing to slow down. When I first saw the ditch it was about 10 to 15 feet ahead of me. When I saw the ditch from the distance it looked as though it was filled. It seemed from the distance as if it was the same level as the rest of the road. I first saw the ditch from 25 to 30 feet. I first saw that it was not filled from about 10 to 15 feet. When I saw it was not filled it appeared to be about 8 inches or less wide and about 5 to 6 inches deep. Those measurements appeared to be in the middle of the road. The speed at which I was travelling was too fast to enable me to slow down in order to negotiate the ditch so I swerved to the left. I intended to steer the car further left of the road. As the car passed over the ditch my right forehead struck the under rim of the window on the driver's side. I immediately became unconscious. The car is now up by Brighton, Estate. It is a total write-off. There were no other vehicles involved.”

5 Mr. Hugh, Mallalieu, an insurance salesman, gave evidence on behalf of the defendant. Mr. Mallalieu is also a licensed driver and an experienced motor mechanic who used to run a motor repair shop in St. Kitts. In 1960 Mr. Mallalieu went to live in Antigua. In or about 1971 he started selling Citroen cars. He himself owned a Citroen car at the time. Citroen car P 3006 was purchased from Mr. Mallalieu, who at the same time delivered to Joseph Jong, the defendant's brother, another, Citroen car of similar model but with manual transmission. P 3006 was a Citroen G.S, car with semi-automatic transmission. It was exactly similar to Mr. Mallalieu's own car.

6 Some time in 1973 Mr. Mallalieu came to St. Kitts and examined car P 3006 at Brighton Estate yard. He notes that it was quite a wreck. He discovered that a ball joint connection was pulled out of the socket. Mr. Mallalieu stated that if a car like P 3006 was being driven at a speed of 30 to 40 miles per hour and the driver swerved suddenly, the sudden swerve could cause the ball to be drawn out of the socket with the result that the car could be completely out of control. Mr. Mallalieu was speaking from his personal experience. He said: –

“I have known a Citroen of the same type and model as 3006 when subjected to a sudden swerve by the driver, to have the steering tie rod pulled out of the socket. That has happened to my car while I was driving it. The car swerved right into the grass and turned right over in a flash. Immediately before the car lost its control, I was driving at 35 to 40 miles per hour.”

In reply to questions asked him in cross-examination, Mr. Mallalieu said: –

7 “I speeded up and swerved at about 45 miles per hour. I swerved, to the left and then I was on the brink of a pond with lilies. I pulled the car back to the right. It went right in a circle and turned over. If a car is driven through a cane field at 54 miles per hour the tie rod would give out if the strain is sufficient…Only twice in my experience have I ever seen a tie rod some out in a Citroen C S semi-automatic car”.

8 I have given very careful consideration to the evidence of the defendant and his witness. I do not believe that the defendant swerved to avoid a ditch, which was running across the road, or that his forehead hit the rim of the window as the car hit the ditch, thus causing him to become unconscious. In this connection it...