Foster v Auguste
| Jurisdiction | St Lucia |
| Judge | Lewis, C.J. |
| Judgment Date | 07 September 1971 |
| Neutral Citation | LC 1971 CA 13 |
| Docket Number | Civil Appeal No. 7 of 1970 |
| Court | Court of Appeal (Saint Lucia) |
| Date | 07 September 1971 |
Court of Appeal
Lewis, C.J.; Lewis, J.A.; Louisy, J.A. (Ag.)
Civil Appeal No. 7 of 1970
K. Foster for the appellant.
K. Monplaisir for the respondent.
Damages - Damage to car — Vehicular collision — Quantum
The respondent who was the plaintiff in the court below brought an action against the appellant in which he claimed compensation in respect of damage to his car which was involved in a collision with the appellant's car on February 15, 1968.
In his declaration, the plaintiff/respondent alleged that the collision and consequent damage to his car were caused by negligence of the appellant who, he averred, in his particulars of negligence: (a) was driving too fast; (b) was attempting to overtake another car without ascertaining that the road was clear; and (c) failed so to control his car as to avoid colliding with the plaintiff's/respondent's car, and as a result of such negligence the respondent suffered the damage to which I have referred.
The trial judge awarded the respondent $1, 685.00 special damages and $4,500.00 general damages, a total of $6,185.00. The appellant has appealed against the trial judge's decision.
The facts of the case are contained within a narrow compass. On the day in question, at about 8 o'clock in the morning, the respondent was driving along the public highway towards the Vigie airport. He was traveling at about 30 to 35 miles an hour — a speed, although slightly in excess of the permitted speed limit of 30 miles per hour on that road — the trial judge nevertheless found was not per se evidence of negligence on his party taking into account the existing circumstances in the case and the time of the day at which the collision occurred.
It is not in dispute that the respondent was driving on his correct side of the road and in fact, the trial judge found that he was driving about one foot from the grass verge on his left or correct side.
Immediately beyond this grass verge there is a metal fence which separates the grass verge and public highway from the Vigie Airport and runs around the perimeter of the airport premises. While the respondent was approaching a slight bend in the highway he saw two cars coming towards him from the opposite direction. He estimated their respective speeds to be in the vicinity of about 50 to 60 miles per hour. What happened next he described in the following language:
“They appeared to be chasing. They were on their left side. When I was about 25' to 30' from the two vehicles, I noticed the motor car behind was overtaking the one in front. I slowed down my speed, pulled the car right on the edge of the road almost off the read when the car behind ran straight in my car. I stopped. When the car behind hit the complete right side of my car the said car continued to about 200 yards then burst into the airport fence and landed right into the airport. Mr. Winston Foster (the appellant) was driving that car.”
The respondent's estimate of the distance the appellant's car had travelled after the accident was erroneous, for police corporal Pamphile who arrived on the scene about an hour afterwards and measured the distance between where the appellant's car was found within the airport premises and the agreed point of impact found the distance to be 173 ft. The appellant's car had crashed through the metal fence and had come to rest 3 or 4 feet within the airport area. The corporal found no evidence of brake marks from the appellant's car but in the case of the respondent's there were brake marks 26' 7'' long from the point of impact which indicated that the respondent had attempted to bring his vehicle to a standstill. The corporal found that the left front and rear wheels of the respondent's car were completely off the road and on the grass verge, and this suggests that the respondent had pulled his vehicle as far as possible to the edge of the road as he said in his evidence he had done.
It was suggested to the respondent in cross-examination that he was trying to make his story sound ‘real’ by putting the respondent's car on the right side and that he was in fact laying when he made his statement. It was also suggested to him that he introduced the third car “into the picture so as to support (his) claim.” Both of these suggestions the respondent vigorously denied.
The trial judge experienced no difficulty in coming to the conclusion that there was in fact a third car on the scene. He did so on the evidence of one Hubert Jeffery, a witness who was walking along the road on the side near the metal fence. This witness quite clearly said that he saw two cars leaving the airport coming up behind him and that as he looked back he saw the plaintiff's/respondent's car coming up behind him and as a result he moved nearer to the fence at the side of the road. He further stated:
“The two cars that were coming up were coming up very fast. The defendant's car was behind coming up — behind the other car. As he was about to pass the other car he knock the plaintiff's car. The plaintiff's car stood behind me and the other car went on a goad distance, smash the fence and went into the airport. The plaintiff was driving slowly.”
Now this witness did not pretend to have seen the actual accident. He heard the impact and as he looked back he saw what had happened.
The trial judge accordingly had evidence of an entirely independent nature to justify his finding that the appellant was not speaking the truth when he said that there was not a third car on the scene when the accident occurred, and I am in entire agreement with his finding in this respect.
The question which now falls for decision, is this: If the appellant's and the respondent's car were respectively travelling on their correct sides of the road, as they admittedly were, why should an accident have occurred between them? Vehicles, if properly and carefully driven, do not suddenly veer across the road and crash into other vehicles in the opposite stream of traffic and it is clear that some explanation is due from the appellant to account for this unusual occurrence. To my mind, this is a case where from the extraordinary nature of the events which occurred a prima facie inference may reasonably be drawn that the accident may have been caused by the negligence of the appellant. In this connection, I will refer to and adopt the words of Lord Pearson in Henderson v. Henry E. Jenkins and Sons and another [1969] 3 All E.R. 756 where he dealt with the question of the burden of proof in a case of this sort. The words which I am about to quote are in my opinion appropriate to the circumstances of this case and occur on page 766 of the report. He said this:
“My Lords, in my opinion, the decision in this appeal turns on what is sometimes called ‘the evidential burden of proof’ which is to be distinguished from the formal (or legal or technical) burden of proof. Passages which bear out this distinction will be found in Esso Petroleum Ltd. v. Southport Corpn. per Devlin J. and per Lord Radcliffe in Barkway v. South Wales Transport Co. Ltd.per Lord Porter and per Lord Normand. For the purposes of the present case the distinction can be simply stated in this way. In an action for negligence the plaintiff must allege, and has the burden of proving that the accident was caused by negligence on the part of the defendants. That is the issue throughout the trial, and in giving judgment at the end of the trial, the judge has to decide whether he is satisfied on a balance of probabilities that the accident was caused by negligence on the part of the defendants and if he is not so satisfied, the plaintiff's action falls. The formal burden of proof does not shift. But if in the course of the trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendants, the issue will be decided in the plaintiff's favour unless the defendants by their evidence provide some answer which is adequate to displace the prima facie inference. In this situation, there is said to be an evidential burden of proof resting on the defendants. I have some doubts whether it is strictly correct to use the expression ‘burden of proof’ with this meaning, as there is a risk of it being confused with the formal burden of proof, but it is a familiar and convenient usage.”
This was a case in which there was a plea of a latent defect in the brakes of a motor lorry resulting in a sudden brake failure which caused the death of a pedestrian and certain property damage. But nevertheless, it seems to me that the words which I have just quoted are relevant to the circumstances of this case in so far as they require an explanation of occurrences which are unusual, even though the plea of latent defect in his steering raised by the appellant was afterwards abandoned by him.
In his defence, the appellant denied the particulars of negligence alleged against him. He stated as follows in paragraph 2 of his defence:
“The defendant could not possibly have prevented the accident by the exercise of ordinary care, caution and driver's skill in that:
(1) due to a latent defect the steering wheel was dislodged from its rod, remained in the defendant's hand whilst his car lost control;
(2) The defendant immediately applied brakes, whereby his said car pulled to the right of the road; and
(3) the defendant realizing the urgency at the moment, involving the plaintiff's car which was being driven very fast by the plaintiff, did lay upon the driver's seat to avoid damage to himself;
(4) further or alternatively, the said matters were caused wholly or in part by the plaintiff's negligence.”
The defendant gave the following particulars of the plaintiff's alleged negligence:
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(1) Driving too fast on the Vigie stretch...
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