Powell v Hibbert

• Jurisdiction: Jamaica
• Judge: Duffus, J.
• Judgment Date: 01 January 1963
• Neutral Citation: JM 1963 CA 21
• Docket Number: Civil Appeal No.30 of 1963
• Court: Court of Appeal (Jamaica)
• Date: 01 January 1963

Court of Appeal

Lewis, J.; Duffus, J.; Henriques, J.

Civil Appeal No.30 of 1963

Powell

and

Hibbert

Appearances

Mr.Norman Hill for defendant/appellant

Mr.Leacroft Robinson, Q.C.for plaintiff/respondent.

Tort - Negligence (Contributory)

Duffus, J.

1 The defendant-appellant appeals from the judgment of the learned Resident Magistrate (Ag.) for Clarendon. There was a claim and a counterclaim and each party pleaded, inter alia, the contributory negligence of the outer. The appeal was in respect of one issue only and that was the learned Resident Magistrate's finding that the negligence of the appellant, Powell, was sole cause of a motor vehicle accident which occurred on the 30 ^th August, 1962 at Denbeigh in Clarendon. The facts were simple -

2 The appellant and the respondent were proceeding in their motorcars towards May Pen. The appellant was driving the front car and the respondent was behind. The appellant's case was that he was driving at about 25 m.p.h. along a straight road by the Denbeigh show ground when a police constable, in uniform, who was standing by the side of the road, gave him a signal to stop. The appellant said he thereupon signalled his intention to stop and proceeded to do so. As he stopped the respondent ran into the back of his car.

3 The respondent's case was that he was driving his car at about 30 m.p.h., half-a-chain behind the appellant's car which he had been following for some distance but was now getting closer to, when the appellant made a sudden stop without giving a signal, with the result that he had not enough time to avoid running into the back of the appellant's car. The respondent said that he had not seen the constable.

4 The Constable gave evidence for the appellant stating that he had signalled to the appellant to stop and that the appellant in turn had given a signal that he was stopping. The learned Resident Magistrate, in his reasons for judgment, found as a fact that the Constable had given the appellant a signal to stop but, inferentially, he disbelieved the constable when he said that the appellant had given a signal as he found that the appellant had stopped suddenly without giving any signal. The Resident Magistrate accepted the version of the plaintiff and his witness Wilfred Williamson as to how the accident had occurred and found that the accident was caused by the sole negligence of the appellant. He acquitted the respondent of all negligence.

5 Before us, learned counsel for the appellant conceded that therewas some evidence of negligence by the appellant on his own admission that the nearest he hadseen the respondent was when he was some 6 chains behind, thereby confirming the Resident Magistrate's finding that he was not making proper use of his rearview mirror; nor did the learned counsel challenge the Resident Magistrate's finding of fact that the appellant gave no signal before stopping.

6 He did however challenge the Resident Magistrate's finding that the respondent should be acquitted of all negligence. He based his submissions on two grounds: -

• (1) the evidence of the respondent that he had not seen the constable until after the accident thereby showing his failure to keep a proper look out, and

• (2) the respondent's admission that while driving; at 30 m.p.h. he was only ¹/₂ a chain - a were 33 feet behind the appellant which was too close an interval to provide a margin of safety for an unexpected stop by the vehicle in front, taking into account that the accepted stopping distance with good brakes on a dry surface at 30 m.p.h.was 88 feet, (inclusive of a reaction distance of 44 feet)

7 We find that there is considerable merit in these two...