Brown v McKenzie


Supreme Court

Cooke, J.

Common Law CL. B141 of 1986


John Graham for the plaintiff.

John Givans for the defendant.

Tort - Damages — Personal injury — The plaintiff claimed damages for negligence and personal injuries — The defendant submitted that the plaintiff was contributorily negligent — Held that the legal burden of proof must be within the legal framework which the parties themselves have already determined — No direct evidence to support the contention that contributory negligence may be inferred — Award for damages for the plaintiff.

Cooke, J.

The plaintiff Dolcie Brown was not to be denied her day in Court. She hobbled into the witness box — and just barely with the aid of a walking stick. She displayed histrionic ability — real or pretended — as she related her account of how defendant's motor car injured — on the 21st of November, 1980 at about 1:30 p.m. Through intermittent bouts of crying related that she was walking along the sidewalk of Strand Street in Montego Bay. When reached a point opposite to the Strand Theatre, she stepped down to cross the roadway it was her intention to cross the road as soon as the passage of motor cars along that road permitted. When she stepped down she was about 12 to 18 inches from the sidewalk. She estimated that about 8 minutes previously she had passed the defendant in his parked motor car with the defendant sitting behind the steering wheel — his head leaning back on the back of the seat with his right hand folded behind his head. His eyes were closed. As she waited to cross the road she was about 4 yards from this motor car. Then the defendant's motor cat collided into her. The immediate impact was to her left buttock which felled her. As she lay prostrate, the defendant's motor car ran over and rested on both her legs. The left rear wheel was resting on her left ankle and the right front wheel pinned her right ankle. Help had to be sought of some men to lift the car off and so release her.


The medical report be Dr. Y. S. Mohan Rao pertaining to the injury to the plaintiff is that “clinically and radiologically it was diagnosed that the patient sustained undisplaced fracture of lower 1/3 rd of right fibula.” The defendant does not deny that his motor car caused injury to the plaintiff. However his account is that he was parked just in front of the Strand Theatre. He describes the roadway as round, in that the surface tilts downward into the sidewalk. He started to move out, he says, from his parked position and as he “pointed” he became aware of an approaching bus. This bus was approaching from his rear, and he stopped. He continued “when I stop, the car ease back down in the tilt. I do not know where she was coming from. When I ease back my left hand back bumper catch her and she drop on the ground. The left wheel could have run over her foot.”


I will now comment on the evidence of the plaintiff. Her description of the manner in which her legs were pinned by the wheels of the car defies the imagination. The medical report makes no mention of any injury to her left ankle indeed to any part of the left side of her body. On her account, it was her left side which would have been nearest to the defendant's motor car at the point of impact.


Further, in her evidence she maintains that because of the accident her left-leg is severely handicapped. Her counsel recognised that her description of how her legs were pinned was “problematic”. However he submitted that the Court should not be unmindful of her age. (She was 52 years old at the time.) Further, even if the Court were to conclude that that aspect of her evidence was implausible, it is uncontested that she suffered a fracture. The circumstances were such that the plaintiff's recollection would be affected by the “unexpected traumatic stressful and an unusually painful event which happened some ten years ago.” I am not moved by this evocative submission. I do not expect confusion to arise as to such a central aspect as to whether her legs were pinned or not. The plaintiff's demeanour did not bring conviction to the mind. Whenever she was asked questions the answers to which she thought would not advance her cause she took a very long time to answer, and when she did was halting and hesitant.


As for the evidence of the defendant, it was given in a straightforward and unadorned fashion. He readily agreed under cross-examination that:

  • (a) he could have used his brakes to prevent the car from running back;

  • (b) he never looked behind him before he went back;

  • (c) that if he had used his rearview mirror he would have seen the approaching bus.


The injury as described in the medical report is consistent with his account and inconsistent with that of the plaintiff. On the totality of the evidence and taking into consideration my impression of the credibility of plaintiff and defendant respectively, it is my view that on the preponderance of probability the version of the defendant is to be accepted. Now how does this conclusion affect my judgment in this action? In this regard I will next deal with the closing submissions of counsel.


Mr. John Givans, counsel for the defendant, having asked the Court to reject the version given by the plaintiff proceeded to argue that a rejection must produce a result adverse to the plaintiff. The authorities, he said, are clear that he who avers must prove and there can never be any variance with this principle. The plaintiff is not entitled to seek or find any aid in what the defendant says. The Court was referred to passages from text books. From Elliott and Phipson — Manual of the Law of Evidence, 12th Edition at p. 93, he called attention to the following passage:


The general rule is that he who asserts must prove, whether the allegation be an affirmative or negative one and not he who denies. The effect of his rule is that the obligation of satisfying the Court on an issue rest, upon the party (plaintiff, prosecutor or defendant) who, in substance, asserts the affirmative of the issue; that is to say, where a given allegation, whether affirmative or negative, forms an essential factor of a party's case, the proof of such an allegation rests on him.


From Best on Evidence, 10th Edition at p. 243, it is written: — And therefore the man who brings another before a judicial tribunal must rely on the strength of his own right and the clearness of his own proof, and not on the want of right, or the weakness of proof in his adversary.


The passage from Cross on Evidence, 4th Edition at p. 83 is in similar general terms: -This means that, as a matter of commonsense, the legal burden of proving all facts essential to their claims normally rests upon the plaintiff in a civil suit or the prosecutor in criminal proceedings.


Mr. Givans also cited Blay v. Pollard and Morris [1930] 1 KB. p. 628 to establish that a Court must find for a party on that party's pleadings and in this action he invited the Court to hold that the truth and the pleadings of the plaintiff were entirely different.


Mr. Graham for the plaintiff stuck to his guns as to the version given by his client. In any event, he submitted, that even though a party does not lead evidence to himself or his witnesses, which the Court accepts to be supportive of the case as pleaded, if other evidence in the case would attach the other party with liability then the only circumstance in which that party could escape liability would be if there was such a radical departure from the case pleaded on the record in that the defendant could not reasonably have perceived that case which was in fact accepted.” For this proposition reliance was placed on the House of Lords decision in John G. Stein & Co. Ltd. v. O'Hanlon [1965] 1 All E.R. p. 547. He argued that a finding by the Court that it was the rear of the motor car rather than the front which collided with the plaintiff would not be in the nature of such a radical departure which should lead to an adverse finding against the plaintiff. Such a finding he said would not in any way have prejudiced the defendant as regards the case to be met.


I now turn to the pleadings. Paragraph 3 of the Statement of Claim states: — On or about the 21st day of November, 1980, along Strand Street, Montego Bay in the parish of Saint James, the defendant so negligently drove, operated and/or controlled the aforesaid motor car that he caused and/or permitted same to collide with the plaintiff.


Particulars of Negligence

  • i) drove at a rate of speed which was excessive in the circumstances;

  • ii) failed to keep any or any proper look out;

  • iii) failed to have any or any sufficient regard for pedestrian using the said road;

  • iv) collided with the...

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