Williams v Rodriguez et Al

• Jurisdiction: Belize
• Judge: SONYA YOUNG
• Judgment Date: 18 September 2017
• Neutral Citation: BZ 2017 SC 38
• Docket Number: CLAIM NO. 542 of 2016
• Court: Supreme Court (Belize)
• Date: 18 September 2017

THE SUPREME COURT OF BELIZE, A.D. 2017

BEFORE the Honourable Madam Justice Sonya Young

CLAIM NO. 542 of 2016

Tiffany Tracy Williams

CLAIMANT

and

Carlos Jose Rodriguez

1 ^st DEFENDANT

National Fishermen Producers Co-Operative Society Limited

2 ^nd DEFENDANT

Appearances:

Mr. Brandon S. Usher for the Claimant.

Mrs. Nazira Myles for the 1 ^st Defendant.

Mr. Kevin Arthurs for the 2 ^nd Defendant.

Cases Mentioned:

Casey v. Aguet and BTL Belize Action No. 486 of 1998 — Melleney v. Wainwright [1997] EWCA Civ 2884 — Omrod and anor v. Crosville Motor Services Ltd and anor [1953] 2 All ER 753.

Keywords: Tort — Negligent Driving Causing Death — Contributory Negligence — Eleven Year Old Child — Agency — Assessment of Damages — Torts Act Cap 172

1 Tezzrah Diamond Thompson, a ten year old, is dead. On the afternoon of 5th October, 2015, as a pedestrian, she was involved in a collision with a GMC truck being driven by Carlos Jose Rodriguez. She was injured and succumbed the next day. The truck belonged to the National Fishermen Producers Co-operative Society Limited (National) and had been loaded with 3000 lbs of lobster and conch also belonging to National.

2 Tezzrah's mother, Tiffany Williams, has brought this claim as a dependent under the Tort's Act. She says that her daughter's death was caused by Carlos' negligent driving and that at the relevant time he was the servant or agent of National. She claims, both special and general damages with interest thereon, from them both. Carlos and National deny that Tezzrah's death was caused by any wrongful act or default on Carlos' part. In fact, they say, if there was negligence, it was wholly or in part, Tezzrah's as she carelessly crossed “ the highway suddenly … without paying attention to oncoming traffic” (taken from the agreed pre trial memorandum). They add that at the time of the collision, Carlos was neither an agent nor a servant of National. He was an independent contractor and any liability for negligence which may be ascribed to him cannot be vicariously ascribed to National.

3 Undoubtedly, motor vehicle drivers owe a duty to use reasonable care and skill towards all other users of the road who may reasonably be likely to be affected by their actions. The issues which, therefore, now fall for the court to determine are:

1

Did Carlos Rodriguez' negligence cause the injuries and the death of Tezzrah Thompson. 2. Did Tezzrah Thompson's own negligence contribute to her injury and death. 3. If Carlos Rodriguez' negligence did cause or contribute to the injuries and death of Tezzrah Thompson was he the employee or agent of National at that time. 4. If Carlos Rodriguez' negligence did cause or contribute to the injuries and death of Tezzrah Thompson what damages is Tiffany Williams entitled to.

Did Carlos Rodriguez' negligence cause the injuries and the death of Tezzrah Thompson:

4 The Defendants submit that not one scintilla of evidence was provided by the Claimant to prove that Carlos had driven negligently. The court notes that not even the statement of claim gave any indication at all of how the collision or “ knock down” occurred. Six particulars of negligence were stated but they were supported in no way by any factual contentions on which the Claimant sought to rely. They seem to postulate that the simple fact that the collision occurred necessarily meant that the Defendant was liable. However, the defence never sought to strike out the embarrassing pleadings. Nor did they object to a dependency claim by a mother for a 10 year old, no order having been made appointing her as an administrator. Instead, they joined issue and offered their own version of events, including a clear plea of contributory negligence.

5 The Defendants referred to the lack of any eye witness testimony on the Claimant's behalf. They stressed that all the evidence from the scene came from persons who arrived after the incident had already occurred and who could therefore not give any direct testimony in proof. The Claimant certainly presented no eye witness testimony nor was there an official investigator's report or findings, no photographs which could definitively offer point of impact, location or description of damage to the vehicle, nothing of the expected physical evidence. There was not even a post mortem report for the deceased. One was attached to the claim form but was never put into evidence. (I state for clarity that attachments to the claim form do not form part of the claim form or evidence in the trial). The full extent of Tezzrah's injuries are therefore unknown. But, it is no novelty that a case could be proven on circumstantial evidence only. Circumstantial evidence being no weaker than direct. The court's inferences must only be reasonable drawn on the established facts. Those facts being established from both the Claimant and the defendant's evidence.

The Evidence

6 We begin with the evidence of Darwin Slusher who says he had undergone a three month basic Emergency Medical Technician course offered by the Belize Emergency Response Team. He says he had been self-employed as an intermediate medic for two years at the time of the incident. He was not a medical expert but he had some medical knowledge and proved to be an exemplary witness of fact.

7 He explained how he had been travelling in a bus when it suddenly halted at the George Price Highway and Mahogany Heights Junction. He noticed a girl (accepted to be Tezzrah) bleeding at the side of the road and he approached to render first aid. She was lying face down on the pavement and was surrounded by a number of persons. He rolled her over and noticed she had teeth missing and her legs and jaw appeared to be broken. He said he himself splinted one of her legs, took her blood pressure and oxygen and instructed that an ambulance be called. The ambulance came sometime later and Tezzrah was placed on a spine board and transported by ambulance to the Karl Heusner Memorial Hospital. He went with her and while underway she was treated with bandaging, an IV and suctioning of her airway.

8 Denbigh Yorke, a police Corporal out on highway patrol that day explained that he came upon the scene around 3:15 p.m. He saw a child lying on the ground “ suffering from head and body injuries,” and being attended to by “ two nurses.” He attended to traffic flow control, made a sketch of the scene and took measurements. The original sketch was not before the court, but there was a reproduction, which he says, he made from it. It was signed only by Cpl. Yorke who explained that he was unable to get Carlos to sign or approve the markings, originally, because of the language barrier (Carlos is Spanish speaking) and subsequently, because he did not know how to locate him. The drawing showed a bus (which he testified was a blue bird school bus) parked entirely on the shoulder of the road just before a bus stop, a point of impact on the highway about 4 feet from the mid side of that bus, a blood stain 45 feet away from this point of impact and a vehicle which he claimed to be the one Carlos was driving. He places that vehicle entirely on the shoulder of the road some 318.6 feet away from his point of impact. He added under cross examination that he was assisted in marking the point of impact by blood and debris he saw on the ground and by what he had been told by the bus driver and other persons present.

9 I found these two witnesses to be independent and forthright. They had nothing to prove or to hide and I had no reason to disbelieve them. Neither of these men were eye witnesses, but Carlos and (to a limited extent) his passenger Daniel Dawson were.

10 We begin with the joint defence where it is pleaded at paragraph 3 to 7:

• “3. The Defendants deny paragraph 2 of the Statement of Claim inclusive of the Particulars of Negligence. The 1 ^st Defendant states that he was driving the motor truck at a moderate speed of approximately 30 MPH when upon reaching Miles 31 and 32 on the George Price Highway, he saw a yellow in color bus parked immediately before the bus stop on the right hand side of the highway (travelling from Belmopan to Belize City) partly on the shoulder of the highway. The 1st Defendant states that the bus was parked in such a way that the rear of the bus was still on the highway blocking the bus stop.

• 4. The 1st Defendant further states that he was already crossing next to the bus when suddenly a female student dressed in a sky blue uniform ran out from in front of the bus unto the highway without looking both ways for oncoming traffic. The female student rushed unto the highway in an effort to rapidly cross the highway to catch a van on the opposite side of the road (the left side travelling from Belmopan to Belize City). This van transports commuters and students into the Mahogany Heights Village. That the female ran into the right side of the motor truck where she sustained her injuries.

• 5. The 1 ^st Defendant tried to avoid the collision with the female student and maneuvered the steering wheel to his left side of the highway but the distance between the motor truck and the student was only about one feet. The female student ran into the front side of the motor truck and damage from the impact was caused to the right side signal lights which is on the passenger side door.

• 6. Once the 1 ^st Defendant heard a loud bang, he immediately pulled over to the right shoulder of the highway after the bus stop and a couple vehicles that were parked off the shoulder of the road (heading from Belmopan to Belize City) and rendered assistance to the female student.

• 7. The female student, Tezzrah Daimond Thompson's injuries and death was wholly caused by her negligently and carelessly crossing the highway without paying attention to oncoming traffic, specifically the motor truck driven by the 1st Defendant.”

11 As already stated, there never was...