Cruz v Alvarenga and Hernandez
| Jurisdiction | Belize |
| Judge | Sosa, P.,Morrison, J.A.,Awich, J.A.,AWICH, J.A. |
| Judgment Date | 28 June 2013 |
| Neutral Citation | BZ 2013 CA 8 |
| Docket Number | Civil Appeal 15 of 2011 |
| Court | Court of Appeal (Belize) |
| Date | 28 June 2013 |
Court of Appeal
Sosa, P.; Morrison, J.A.; Awich, J.A.
Civil Appeal 15 of 2011
N. Myles for the appellant.
N. Dujon SC for the respondents.
Negligence - Appellant found liable of negligence and ordered to pay damages — Motor vehicle collision — Appeal — Whether proper consideration given to the evidence — Findings of fact — Finding that Judge was not misdirected in his analysis on how accident occurred — Contributory negligence — Not pleaded — Whether correct assessment made — No question of liability — Sufficient evidence of whose negligence caused the collision — No justification for interference with percentage for apportionment of blame — Whether open to the judge to have made a finding of contributory negligence in the absence of any pleading to that effect — Requirement of pleading contributory negligence more than a technical rule — Finding of contributory negligence not open to trial judge — Appeal dismissed — Quantum revised.
I am in agreement with the other members of the Court that the appeal should be dismissed and that the order of Legall, J. should be varied. I have read, in draft, the judgment of Morrison, J.A. and concur in the reasons for judgment given, and the orders proposed, in it. Accordingly, the order as to costs, as set out at para [81], below, shall stand and be final unless any party shall within 10 days of today's date apply (by letter to the Registrar) for a contrary order, in which event the matter of costs shall be decided by the Court on written submissions, to be filed and delivered by all parties in 14 days from the date of the making of such application.
This is an appeal from a judgment given on 16th February, 2011 by Legall, J. in an action for negligence brought by the respondents against the appellant. The appellant (‘Mr. Cruz’) was adjudged liable to pay damages in the sum of $43,493.50 to the first named respondent (‘Mr. Alvarenga’) and $55,061.96 to the second named respondent (‘Ms. Hernandez’), plus interest and costs.
The action arose out of a motor vehicle collision, which took place in Belmopan at about 7:50 in the evening of 18th July, 2009 along Constitution Drive, at its junction with Forest Drive. Constitution Drive runs from north to south, while Forest Drive runs from east to west, starting from its ‘T’ shaped junction with Constitution Drive.
At the material time, the Mr. Cruz was the owner and driver of a pickup truck, licensed no. CZL-C15763, while Mr. Alvarenga was the rider of a motor cycle, licensed no. CY-M0558. Ms. Hernandez was the pillion rider on the motor cycle ridden by Mr. Alvarenga.
I cannot improve on, and therefore gratefully adopt, the learned trial judge's pellucid introduction to the case (at paras 2–4 of the judgment):
“2. On the night of 18th July, 2009, at about 7:50 p.m. the defendant was driving in a north to south direction along Constitution Drive in motor pickup truck licence No. CZL-C- 15763. In the truck, with the defendant, was his common-law-wife, Maria Varela, who was sitting next to the defendant in the front seat; his ten year old daughter, Lucely Cruz, who was sitting at the back behind the defendant; and a friend of the defendant, Rodney Griffith who was sitting behind Maria Varela. Riding a motor cycle No. CY-M-0558 along Constitution Drive in the opposite direction of the truck, was the No. 1 claimant. Sitting on the motor cycle, behind the driver on the passenger seat was the second claimant, both of whom are friends.
3. The truck and the motor cycle collided, and the claimants suffered injuries to their legs and other parts of their bodies. As a result of the collision and injuries, the claimants brought the present claim against the defendant for damages for personal injuries for negligence, and for special damages, interest and costs. The defendant also filed a counterclaim against the No. 1 claimant for $8,000 for damage to the defendant's truck.
4. The task of the Court is to decide how the accident happened and whether there was negligence by any of the parties. This task is made difficult because although the witnesses purport to have seen the same accident, there are opposed versions of how it occurred. The witnesses in the defendant's truck gave a version consistent with his evidence; while the passenger on the claimant motor cycle, the second claimant, gave a version consistent with the rider of the motor cycle.”
The learned trial judge accepted the version of how the collision occurred proffered by Mr. Alvarenga, the motor cyclist, and Ms. Hernandez, his pillion rider and gave judgment in their favour, as already indicated. However, he adjudged Mr. Alvarenga to be guilty of contributory negligence and accordingly adjusted the damages awarded to him (but not those awarded to Ms. Hernandez) by 20%.
By notice of appeal dated 9th March, 2011, Mr. Cruz challenged Legall J's judgment on the following grounds:
“3.1 The judgement is against the weight of the evidence.
3.2 That the learned Trial judge erred in finding that the evidence adduced proved on a balance of probabilities that the appellant's negligence caused the accident on the 18th of July 2009.
3.3 Further, or in the alternative that the learned Trial judge erred in law in determining that the 1st respondent's contributory negligence in causing the said accident only amounted to 20%.
3.4 Further, or in the alternative that the learned Trial judge erred in law in awarding the figure of $55,000 for general damages in relation to the No. 1 respondent and $50,000 for the No. 2 respondent.”
By their respondents' notice dated 25th March, 2011, Mr. Alvarenga and Ms. Hernandez for their part seek a variation of the judgment, on a single ground, as follows:
“The learned trial judge erred in law in finding that there was contributory negligence on the part of the 1st respondent as it was not pleaded by the appellant and did not in fact form part of the appellant's case.”
The issues that arise for the decision on this appeal are therefore (i) whether the judge's finding that the collision was the result of Mr. Cruz's negligence was justified by the evidence; (ii) whether the judge's assessment of the contributory negligence attributable to Mr. Alvarenga on the evidence was correct; (iii) whether the judge made a correct assessment of the quantum of general damages to be awarded to Mr. Alvarenga and Ms. Hernandez; and (iv) whether it was open to the judge to make a finding of contributory negligence in the absence of any pleading to this effect.
The case pleaded on behalf of Mr. Alvarenga and Ms. Hernandez in their statement of claim dated 11th December, 2009 was that, on 18th July, 2009, Mr. Alvarenga was riding his motor cycle, with Ms. Hernandez as the pillion-rider, in a north to south direction along Constitution Drive. Paragraph 5 of the statement of claim alleged that, upon reaching the intersection of Constitution Drive and Forest Drive, “the defendant so negligently drove or attempted to drive his motor vehicle across the path of the 1st claimant that he caused or permitted the same to violently collide into the left side of the said motorcycle causing the said motor cycle to run off the side of the road and into a ditch”.
Particulars of the negligence alleged against Mr. Cruz were given as follows:
“a) Driving at a speed which was excessive in the circumstances.
b) Failing to keep any or any proper lookout.
c) Failing to have any or any sufficient regard for other users of the said road.
d) Turning or attempting to turn from the said Constitution Drive onto Forest Drive across the path of the 1st claimant when it was unsafe and dangerous so to do.
e) Failing to stop or to wait in the said road until the 1st claimant passed him in safety before turning or attempting to turn to his left.
f) Failing to see the 1st claimant in sufficient time to avoid crossing or attempting to cross his path or at all.”
Mr. Alvarenga and Ms. Hernandez alleged that, as a result of Mr. Cruz's negligence, they both sustained injuries and suffered loss and damage.
In the defence filed on his behalf on 7th January, 2010, Mr. Cruz denied the allegation of negligence and averred that it was Mr. Alvarenga, “who negligently drove his motor cycle into [his] vehicle, as evidenced by the Police Report into the accident which is attached hereto as Exhibit 1”. Mr. Cruz also counterclaimed for damages in respect of damage allegedly caused to his pickup truck, “to its left fender, left front bumper, left front headlight and left side of bonnet” [sic].
The police report attached to the defence is dated 11th September, 2009. Because the report is the basis of Mr. Cruz's defence, I cannot avoid reproducing it in its entirety:
“BELIZE POLICE DEPARTMENT POLICE REPORT
On Saturday 18th July, 2009 at about 7:50 p.m. Jose Alvarenga, 22 years DOB 29.08.88 Belizean Construction Worker of Las Flores Area, Belmopan City, Cayo District was driving a Black Meilun Motorcycle L/P CY-M-0558 on Constitution Drive in Belmopan City traveling in a north to south direction. Accompanying Jose Alvarenga was Wendy Hernandez, 18 years DOB 26.01.91 Belizean Secretary of No. 20 Maravilla Street, Las Flores Area, Belmopan City.
Reaching at the junction of Constitution Drive and Forest Drive, the motorcycle collided head on into a Maroon Ford Ranger Pick-up Truck L/P CZL-C- 15763 driven by Madrid Cruz, 36 years DOB ‘5.05.73 Belizean Technician of New Site, Maya Mopan Area, Belmopan City which was traveling in the opposite direction. Accompanying Madrid Cruz was [sic] his common law wife Maria Varela and his daughter Lucely Cruz, 10 years.
Persons injured:
1. Lucely Cruz received injuries to her lower lip and front tooth broken [sic].
2...
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