Bynoe et Al v Howard

• Jurisdiction: Barbados
• Judge: Douglas, C.J.,Williams, J.,Worrell, J.
• Judgment Date: 12 September 1975
• Neutral Citation: BB 1975 CA 5
• Docket Number: No. 6 of 1974
• Court: Court of Appeal (Barbados)
• Date: 12 September 1975

Court of Appeal

Douglas, C.J.; Williams, J.; Worrell, J. (Ag.)

No. 6 of 1974

Bynoe et al

and

Howard

Appearances:

Mr. J. S. B. Dear, QC, Dr. R. Cheltenham and Miss B. Miller for appellants

Mr. H. B. St. John, QC and Mr. L. Whitehead for the respondent.

Negligence - Traffic Accident — Liability.

Facts: An appeal against the decision of the High Court that plaintiff was liable in negligence for a traffic accident — There was a conflict between the testimony of witnesses and between that given by witnesses and the opinion of expert witnesses — Whether the opinion evidence was admissible — Whether the trial judge drew the proper inferences from the evidence — Whether a substantial wrong a miscarriage of justice was occasioned within Regulation 18(2) (a) of Federal Supreme Court Regulations, 1958 — Whether the appellate court had power to review the decision.

Held: That when the sole question was the proper inference to be drawn from specific facts, the appellant court could evaluate the evidence — That the judge's findings were supported by the evidence and so did not misdirect himself.

JUDGMENT:

1 On the 12 ^th of January, 1973 at about 10:30 pm the respondent was driving his motor car M. 6962 on Tudor Bridge Road — a major road — and turned to his right across the carriageway, into Fairfield Road. At about the same time Robert Bynoe was approaching the junction of the Tudor Bridge Road and Fairfield Road from the opposite direction on the motor cycle M-1780. On the pillion was Elaine Thompson, one of the appellants herein.

2 At the junction there was an accident in which Robert Bynoe was unfortunately killed and the Appellant Elaine Thompson injured. An action was filed by the widow and administratrix of the estate of Robert Bynoe and by his other dependents under the Fatal Accidents Act, 1883 and under the Law Reform (Miscellaneous Provisions) Act, 1963. The appellant Elaine Thompson instituted her own proceedings for damages for personal injuries and by an order of the High Court the two actions were consolidated.

3 Reference to the pleadings show that in each action the statement of claim alleged that the deceased Robert Bynoe was riding his motor cycle along Tudor Bridge Road, when there was a collision between the motor cycle and the respondent's motor car, and that the said collision was caused by the negligence of the respondent. The usual particulars of negligence were pleaded — including driving form a major road onto a minor road when it was unsafe to do so and without regard for traffic on the major road.

4 The defence was that there was no collision between the vehicles either as alleged or at all; an that the matters complained of were caused wholly or partly by the negligence of the deceased, the particulars being — that he collided with a kerb wall of the road and/ or the guard wall of a house; that he rode too fast; that he failed to exercise proper skill in the control of the motor cycle; that he failed to keep any proper look out or to observe the direction in which the said motor cycle was travelling; that he failed to apply his brakes in time or at all.

5 From the record the evidence of the appellant Thompson is that she begged a lift from the deceased and that on her way along the Tudor Bridge Road she saw a car coming towards her. She says — “The car struck the front of the motor bike. I can [sic] say what part of the car struck the motor bike. I cannot say if it was the wheel of which part of the car. I remember telling the coroner that the front bumper of the car struck the front wheel of the motor cycle. The car turned across the front of the motor cycle”.

6 The witness Randolph Smith, giving evidence on behalf of the appellants says that the respondent's car was travelling at 20 mile per hour when it turned into Fairfield Road and that the motor cycle was coming up to the junction on its left and proper side at about 30 to 40 miles per hour. He says at page 33 of the record — “I heard and saw when the motor cycle struck the car. I can't say if it was a loud crahs beside this. I was not in a position to see clearly what happened. The car was between me and the motor cycle which prevented me from seeing exactly what happened. I would say that the motor car swing across the road and the motor cycle crashed into it.” Later in his evidence the witness states that he did not see the motor cycle strike either the kerb wall or any part of the guard wall.

7 On this point, the respondent's evidence is that he turned into Fairfield Road that when he did so he did not see any traffic ahead of him on the Tudor Bridge Road. He says that after he had entered Fairfield Road he heard the sound of an impact and on walking back to the main road saw a man who was seriously hurt and heard the sound of a motor cycle engine. His passenger Sybil Boyce gave evidence to the same effect.

8 The appellants called other evidence. They called Mr. Sandiford the motor vehicle examiner at the Ministry of Communication and Works. He examined both vehicles. He stated in his evidence in chief — “I saw no visible marks of damage on the car… It is possible that there could have been a collision between car and motor cycle without there being any signs of damage on the motor car but not probable. The damage to the motor cycle was such that if it had come into contact with the car one must have seen some damage to the car… It is my opinion that the motor cycle come into contact with the guard wall.” The witness also deposes...