IN THE HIGH COURT OF JUSTICE CLICO (TRINIDAD) LIMITED AND ERROL DUBLIN AND VICTOR EDWARDS AND MOTOR AND GENERAL INSURANCE COMPANY LIMITED

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1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CLAIM NO: CV BETWEEN CLICO (TRINIDAD) LIMITED AND ERROL DUBLIN AND VICTOR EDWARDS AND CLAIMANT 1 ST DEFENDANT 2 ND DEFENDANT MOTOR AND GENERAL INSURANCE COMPANY LIMITED 3 RD DEFENDANT Before the Honourable Madame Justice C. Pemberton Appearances: For the Claimant: Mr. R. Nanga instructed by Ms. V. Mohammed For the First, Second and Third Defendants: Mr. L. Sanguinette instructed by Ms. C. Baynes JUDGMENT [1] BACKGROUND On November 3, 2007 Nigel Chinapoo (NC), driver of motor vehicle PBU 6738, was proceeding in a northerly direction at the intersection of Morequito Avenue and the Churchill Roosevelt Highway, Valsayn, when he was involved in an accident with motor vehicle number PBO 9994, owned by the First Defendant, Errol Dublin (ED). The driver of the vehicle at the time of the accident was the Second Defendant, Victor Richards (VR) who was heading in a westerly direction along the Page 1 of 15

2 Churchill Roosevelt Highway. As a result of the collision and damage to chattel, Clico filed an action seeking compensation for damage sustained to its vehicle. Both ED and VR together with the insurer, Motor and General Insurance Company Limited (MGI) filed defences denying liability. In the case of ED and VR they counterclaimed against Clico for damage to their vehicle. [2] PLEADINGS CLICO S PLEADINGS On August 19, 2008 the Claimant, Colonial Life Insurance Company (Trinidad) Limited (Clico), owner of motor vehicle PBU 6738 filed an action inter alia for damages for negligence and consequential relief. Clico alleged as follows: 4. On or about the 3 rd November 2007, the Claimant s motor vehicle was being driven in a Northerly direction at the intersection of Morequito Drive and the Churchill Roosevelt Highway, Valsayn, when the Second Defendant, the servant and/or agent of the First Defendant, so negligently drove, managed and controlled the First Defendant s said motor vehicle in a Westerly direction along the Churchill Roosevelt Highway, that it collided with the Claimant s said motor vehicle. The claim continued by detailing, what I shall refer to as the usual Particulars of Negligence. I shall refer to those which were essential to this case: excessive speed and/or improper rate of speed; failure to keep any proper or sufficient lookout; failure to observe the red traffic lights for vehicles proceeding in a westerly direction along the said highway and against the red traffic lights; and/or entering the said intersection when the lights were showing red; and/or failure to stop, slow down, swerve or in any way drive and manage his said motor vehicle so as to avoid the said collision. [3] As against the ED and VR, Clico claimed damages for negligence and consequential loss. Although Special Damages were pleaded in the body of the Statement of Claim it is not contained as a specific item in the prayer. A matter of pleading one might argue, but for the sake of completeness, it is advised that at least the words, Special Damages should appear in the prayer. Be that as it may, the claim for Special Damages contained the following: Page 2 of 15

3 Pre-accident value $192, Less Salvage $ 85, Constructive total loss $107, Excess $ 6, Adjuster s fee $ Loss of use (21 $ per day) $ 2, Certified copy $ giving a total in the amount of $115, [4] In relation to the MGI, Clico stated that they were the insurers of the vehicle which by their contract fixed them with liability to indemnify the insured against any liability for damage caused by negligence. Clico pleaded that they gave notice to MGI of the claim and received no response from them. They joined them in this action. [5] DEFENDANTS PLEADINGS On October 6, 2008 MGI filed its Defence. On November 7, 2008, ED and VR also filed their Defence and Counterclaim. Both defences were, for the most part mirror images of each other, save in one material particular, that ED filed a counter claim, which I shall address later. In both defences, ED and VR and MGI acknowledged the collision at the place and date stated by Clico but denied liability. They repeat for large measure the Particulars of Negligence in relation to NC, the driver of Clico s car. In addition they plead NC s negligence in that he failed to heed the presence of motor vehicle registration number PBO 9994 which was cautiously proceeding in his correct lane of the said Road. They ask this court to conclude from the facts pleaded that the said collision was caused wholly by the negligence of the Claimant, his agent and/or servant. [6] With respect to the counter claim, ED is claiming Special damages pleaded as follows: Pre-Accident Value of HBC $30, Less Salvage - $10, $20, Loss of use To be supplied 1 Statement of Case. Pg. 3. Filed on Aug. 19, Page 3 of 15

4 Adjuster s Fee Wrecking Fee - 1, TOTAL 21, [7] At the commencement of the trial the parties agreed that in the event that I find in Clico s favour, the amounts claimed for the Adjuster s fee, loss of use and the certified copy would not be contested. Clico agreed to forego the claim for Excess in the sum of $6, As a result, the claim to be contested for special damages was reduced to $109, [8] I shall examine liability then damages if necessary. I must note that there has been no mention made of the issue of contribution to the collision either by Clico or VR and ED and MGI. Mr Sanguinette, Counsel for the Defendants, attempted to amend his pleaded case to introduce this issue at trial. He was stoutly and successfully resisted by Mr Nanga. Should I make such a finding, it would be entirely ex propio muto and my comments en passant. [9] LIABILITY CLAIMANT S EVIDENCE Clico presented four (4) witnesses in support of their claim. Three of the witnesses were cross examined at trial. Since there was the agreement with respect to the Special Damages, there was no need for Mr. Bissoondath Sibransingh to be cross examined. In any event, his evidence spoke to his arrival at the scene of the collision and what he saw at the site, the fact that Clico received a claim which was settled on the basis of constructive total loss in the sum of $100, and the fact that Clico had paid an Excess of $6, to Colfire. [10] NIGEL CHINAPOO NC stated in his witness statement that when he was approaching the intersection between Morequito Avenue and the Churchill Roosevelt Highway, he noticed that the traffic light to cross and to proceed onto the said Highway was red. He stopped in the right lane on the said Morequito Avenue awaiting the said traffic signal to turn green so that he could have proceeded to turn East onto the said Highway. At this time, NC stated, he also observed that the traffic signal facing the traffic on the Westbound lane of the said Highway which was situated to his, was on red. He then Page 4 of 15

5 looked right at the traffic approaching from East to West on the said Westbound lane and observed that the vehicles were quite a distance from the intersection. [11] Prior to moving forward, he observed that the traffic on the eastbound lane of the Highway was already at a full stop having the red light. At the time he had the red light in preparation to move forward on obtaining the green, only about 2 vehicles were visible on the Westbound lane heading to Port of Spain. They were a very far distance from Clico s motor vehicle when he began to move off upon obtaining the green light. Upon obtaining the green light, he observed the traffic on the East and Westbound lane of the Highway for a few seconds, looked left and right, and having ascertained that it was clear, he proceeded North across the said intersection to get onto the Eastbound lane of the said Highway. Suddenly, out of the corner of his eye he saw a white flash, and then felt a tremendous impact on the right broadside of the motor vehicle. NC stated that the impact caused Clico s motor vehicle, which he was driving to spin and it ended facing a westerly direction. He was in tremendous pain as the force of the impact caused the driver s door to cave in and he was pinned to the seat. His wife and children suffered personal injuries. The impact was so severe that the six airbags were deployed. The damage to the vehicle included damage to the driver s door, right front fender, and right passenger door. [12] NC stated that he and his family were taken to a nearby gas station immediately after the accident, where they received assistance from Mr. David Keedal. After the accident, he noticed VR the driver of PBO This motor vehicle ended up in the middle of the westbound lane facing a Northerly direction. It sustained damage to the front. [13] CROSS EXAMINATION NC confirmed the contents of his witness statement and was unshaken. He confirmed that he came to a standstill at the junction of Morequito Avenue and Churchill Roosevelt Highway because his light was on red. He confirmed that his light turned green before he proceeded to cross the intersection. He confirmed that he saw two cars in the distance on the Westbound carriageway and that they were quite a distance. In terms of distance, NC put the two cars closer to Curepe Junction at the time that he was standing at the junction. When the light turned green, he stated that the cars had proceeded mid-distance between the two traffic lights, about 6-7 car lengths Page 5 of 15

6 away from the intersection at which he was standing. NC admitted that he was unable to assist the court in terms of distances in actual feet but he agreed with Counsel that the cars were between feet away from (him) when (the) lights turned to green. He confirmed that the cars were travelling at a fast rate of speed. He reiterated that he checked both to his right and to his left before he proceeded into the junction. He agreed with Counsel that if for some reason the traffic was moving continuously that he would not have gone through, despite the light being green in his favour. He stated again that he checked the westbound lane on two occasions prior to observing his green light and I judged it to be reasonable to proceed after my light turned green and given the distance the vehicles were from the intersection. He informed the court that he was a driver of 20 years experience. NC was adamant that no car passed him in the intersection before he proceeded. He resisted Counsel s suggestion that the second vehicle, the defendant s vehicle travelling about 5-6 car lengths behind as he was about to go through the intersection you came out and the accident happened in a flash. [13] DEFENDANTS EVIDENCE The Defendants presented two witnesses in support of their defence and ED s counterclaim. These witnesses were the driver, VR, and a passenger Mr. Wayne Carrington (WC). VICTOR RICHARDS (VR) VR stated that on the day of the accident, he was driving west along the Churchill Roosevelt Highway and occupied the extreme left lane. He noted that [t]he weather was sunny and the road surface was dry. My visibility was very good and there was nothing obstructing my view. 2 VR stated that when he was approximately twenty (20) feet away from the intersection there were two vehicles ahead of him as he approached his green light. He was travelling about 60 kmph. He stated that as he approached the relevant junction, the lights were in his favour. There was one vehicle ahead of him in his land, approximately two car lengths. He stated that his lights were still on green when he cautiously proceeded through the intersection 3. VR informed the Court that, when he was almost through the intersection vehicle registration number PBU 6738, which was exiting from Morequito Avenue, heading north unto the Churchill Roosevelt Highway, collided into 2 Witness Statement of Victor Richards. Para Filed on Dec. 1, Id. at para. 5. Page 6 of 15

7 the front of his vehicle. He stated that he was only able to apply his brakes and simultaneously shout to his passenger to look out, but had no time to react otherwise. [14] After the collision, his vehicle came to a stop in a northerly direction and vehicle PBU 6738 was facing an easterly direction. After a while, he noticed that the entire front of his vehicle was damaged. He claims that NC was not injured and that he did not see any damage to the vehicle. VR noted that he was taken to the hospital with WC. [15] CROSS EXAMINATION Upon cross examination, VR confirmed that as he approached the intersection that his speed of travel was approximately 60 km/h. VR stated that the first time he observed NC s vehicle was when he came out and stopped in my lane. He did not observe NC at the intersection. He told Mr Nanga that he was travelling on the left lane and the van came out into the middle of the intersection and stopped in his lane. He stated that there were no other vehicles on the road. He confirmed that he did not put that information in his witness statement. He stated that he was twenty (20) feet away when he observed that the vehicle had come onto the road and stopped. Mr. Nanga enquired as to why VR did not switch lanes when he observed the vehicle stopped in his lane. VR stated, I did not have enough time. I applied brakes. 4 VR could not recall where on the van he collided with. He recalled that at the end of the event, he ended up in a northerly direction. He recalled that his vehicle left the left lane and crossed onto the east bound lane. He recalled that the van faced west on the west lane. He corrected his witness statement and said that he now states that the van PBU6738 was facing west. [16] VR denied Mr Nanga s case that as he approached the intersection that his light was on red and that the light showing to NC was green. He relented and admitted that PBU 6738 suffered severe damage. VR informed the Court that he possessed six (6) years driving experience at the time of the collision. 4 Notes of Evidence. Pg. 15. Oct. 5, Page 7 of 15

8 [17] WAYNE CARRINGTON (WC) WC, informed that on the day in question, he was a front seat passenger in PBO 9994 driven by VR. They were heading in a westerly direction along the Churchill Roosevelt Highway. He remembered passing Curepe Junction, but admits that he is not too familiar with the area. They were approaching what he now knows to be the junction with Morequito Avenue. WC recollected that he remembers that there was a car in front of them in their lane and that a car passed them in the centre lane. The light was in their favour so that VR continued driving. WC continued that when they were approximately ten to fifteen feet away from the intersection he noticed a black van at a standstill on the said Morequito Avenue waiting to proceed across the highway. [18] As the car that was in front of them in their lane, crossed the intersection, the van suddenly drove into the intersection and onto their path and then stopped but the two vehicles collided anyway. He remembered that VR shouted to him but the collision happened so quickly. He was badly injured and was unconscious for seven (7) days after the accident. [19] CROSS EXAMINATION On cross examination WC could not remember where the vehicles ended up after the collision. He confirmed that the van was at a standstill at Morequito Avenue junction. He confirmed that VR had the green light. WC estimated that they were approximately15 feet away from the intersection and VR s speed of travel was approximately 100km/h. He agreed with VR s statement that the van came onto the highway and stopped. [20] ANALYSIS SUBMISSIONS DEFENDANTS SUBMISSIONS Mr. Sanguinette accepted that NC had a red light, that he was at a standstill and that he was waiting for a green light. He advanced that when a driver has a red light and he is waiting for it to turn to green, he must make sure that there is no traffic to be involved with. Mr Sanguinette guided me to RADBURN v. KEMP 5, which put the onus of care a driver whose red light just turned green to ensure that there is no oncoming traffic. On the application of that case, he submitted, I 5 RADBURN v. KEMP. [1971] 1 WLR Page 8 of 15

9 should find that NC was 100% liable for the collision. Mr Sanguinette recognised the inconsistency in VC s statement but advised that that should not affect my judgment. In fact WC stated that there was stopping. That is irrelevant since all of the evidence points to a sudden flash accident. [21] CLAIMANT S SUBMISSIONS Mr Nanga opened his account with these words It seems that my learned friend has abandoned his pleaded case because he accepts that we had the green light. Counsel observed that at no time did Mr Sanguinette put to NC that he was crossing a red light. I was asked to note the inconsistencies between VR s witness statement and cross examination. Both of the Defendants witnesses saw the vehicle stop VR said it was twenty (20) feet and WC said it was fifteen (15) feet away. Mr Nanga opines that this was not a split second impact. Further VR admits to applying brakes. Mr Nanga questions whether that account as given by these witnesses could give rise to such an impact. Of relevance would be the evidence of damage and the speed involved. [22] As far as RADBURN is concerned, that case concerns claims addressing contributions. That is not the Defendants pleaded case and is inapplicable. NC s evidence is clear and I am urged to accept it. [23] CONCLUSIONS The CPR is clear. There can be no amendments to the pleaded case at trial, especially if the information is known or could have been known to the parties before and at the very latest at the time of the First Case Management Conference. That is clear and decided. Contribution was not pleaded and never arose before the trial. It cannot be considered now, and as I said at the beginning, not even ex propio motu. RADBURN is therefore of no assistance to the Defendants. I therefore have to examine the facts and evidence and make my findings. [24] NC s evidence was unshaken in cross examination. I observe that Mr Sanguinette did not put to him any questions as to where the cars ended up after the collision. That was important to assist me in my findings. In any event, VR confirmed under cross examination what NC said, that PBU 6738 faced west after impact. I therefore find, in the face of no contradicting evidence that the vehicles ended up as testified to by NC. Page 9 of 15

10 [25] With respect to VR s evidence, his witness statement spoke to events before the collision as when I was almost through the intersection vehicle registration number PBU 6738, which was exiting from Morequito Avenue, heading north collided into the front of my vehicle. It was under cross examination that for the first time the court is informed that PBU 6738 came out and stopped in my lane. He claims that he forgot to put it. VR put his rate of speed at 60 kmph. WC put it at 100kmph. In any event, in the vicinity of traffic lights, either rate of speed in these circumstances was not consistent with taking reasonable care whilst driving or conducting a motor vehicle. [26] In any event, when one looks at the nature and extent of the damage sustained by the two vehicles, PBU6738, being damaged on its right side (damage to the driver s door, right front fender, and right passenger door) and PBO 9994 sustaining damage to its front, NC s account of the collision this much is clear: that VR collided with NC. It is improbable that NC could have collided with VR and VR s vehicle be damaged at the front and NC s at the side; that the severity of the damage sustained by both vehicles is consistent with the fact that VR s vehicle was travelling at a fast rate of speed; that the displacement of the vehicles upon impact is consistent with the fact that VR hit NC and that VR was travelling at a fast rate of speed. Based on all of the above, I therefore prefer NC s account of the collision. [27] I therefore make the following findings: That NC was at a standstill at the junction of Morequito Avenue and the Churchill Roosevelt Highway awaiting the change in his traffic lights which were red; Whilst there, NC observed two vehicles in the distance; Before moving off, NC observed that the traffic on the eastern side of the Highway was at a standstill; Before moving off NC observed the two vehicles but determined that it was safe to proceed once he got the green light in his favour; NC got the green light in his favour and proceeded to cross the intersection; That VR did not slow down as he approached the intersection; Page 10 of 15

11 Upon proceeding north, PBO 9994 driven by VR drove through the intersection and violently collided with his vehicle and caused the damage as pleaded. That VR was solely responsible for the collision. [28] QUANTUM OF DAMAGES CLAIMANT S EVIDENCE BISSOONDATH SIRBRANSINGH Mr. Sirbransingh testified that NC was authorized to drive the motor vehicle registration number PBU 6738 and the vehicle was comprehensively insured by Colonial Fire and General Insurance Company Limited (COLFIRE) 6. He stated that at about 7:00pm on the night of the collision, he visited the scene. Mr. Sirbransingh stated that he observed damage to the right side of the vehicle 7. He stated that he then proceeded to call STAR to tow the Claimant s vehicle. Mr. Sirbransingh noted in his statement that, 6. A claim was submitted by the Claimant to COLFIRE on or about the 7 th day of November, The Claimant was settled on a constructive total basis in the sum of $100, The settlement cheque was made payable by COLFIRE directly to the Claimant for the sum of $87, which excluded the Value Added Tax in the sum of $13, As stated above, he was not cross-examined. [29] CHERISH GARNETT Ms Garnett testified that she is a Claims Recovery Co-ordinator, who dealt with the recovery of the outstanding debt on the vehicle, caused by the accident. Ms. Garnett provided the Court with receipts evidencing the cost of repairs to the vehicle driven by NC. These included inter alia: an estimate for repairs from Diamond Motors for $131,320.82, fees for the Motor Survey Report for $596.85, the claim cheques which settled the claim in the amount of $87, The pre-accident value was stated at $192, However, after deductions for the excess in the amount of $6,160.00, salvage value in 6 Witness Statement of Bissoondath Sibransingh filed on behalf of the Claimant. Para. 2. Filed on Nov. 30, Id. at para. 4. Page 11 of 15

12 the amount of $85, and VAT in the amount of $13,153.04, the amount recovered by the Claimant was $87,686.96, and VAT, paid to the VAT office, in the amount of $13, At trial, Ms. Garnett was sworn in but she was not cross examined. Her evidence is therefore unchallenged and is accepted. [30] JOHN AUDREY Mr Audrey describes himself as a Senior Motor Insurance Claims Adjuster. The relevant part of his evidence was that he took notes of the condition of the vehicle as well as photographs of same and concluded that the motor vehicle was subjected to a severe right broadside impact. 9 Mr. Audrey identified the several components of the Claimant s vehicle which needed to be replaced such as the right head lamp, front bumper, right side bracket on fender, right front fender, shield, indicator lamp, right front door, mirror, ¼ inch glass moulding and several other parts, all to the right side. The bonnet, right side apron and sub-frame, radiator panel, left front fender, right side floor panel, right side fender post and right rear fender, among other parts were those which needed to be repaired 10. Alignment of wheels, vacuuming, re-gassing air conditioning unit, resetting airbags and refinishing were recommended. Mr. Audrey advised that the claim be settled on a constructive total loss basis. Attached to his witness statement was his report and recommendation which stated: PRE AND POST ACCIDENT VALUES It is our opinion that prior to the accident, this vehicle would have been worth in the vicinity of.$192, and in its damaged condition could fetch approximately $75, RECOMMENDATION Given the estimated cost of repairs and pre and post accident values of the vehicle, restoration of the insured unit to its pre accident condition would prove to be an uneconomical undertaking. We therefore recommend should insurer be liable, that this claim be dealt with on a Constructive Total Loss Basis. 8 Witness Statement of Cherish Garnett filed on behalf of the Claimant. Paras Filed on Nov. 30, Id. at para Id. at para. 8. Page 12 of 15

13 [31] CROSS EXAMINATION Mr. Sanguinette questioned the admissibility of Mr. Audrey s evidence as he is not registered as a Claims Adjuster under the INSURANCE ACT, Mr. Sanguinette suggested that this fact disqualified Mr. Audrey from submitting his evidence as expert evidence. Mr. Nanga laid waist Mr Sanguinette s objections on the following grounds: the fact that the Adjuster s Report was annexed to the Statement of Case and there was no pleading against the admissibility of the document; registration as an adjuster is not a precursor to being able to give evidence; no authorities were offered which would disqualify the evidence from being admitted; and the purpose of Mr. Audrey s evidence was to establish the claim for the statement of damages and he is not precluded from giving this evidence based on the INSURANCE ACT. I agree with Mr Nanga s submissions in rebuttal and now examine Mr Audrey s evidence in this matter. [32] That aside, Mr Sanguinette sought to demolish Mr Audrey s evidence. Mr Audrey stated that he examined the vehicle so as to arrive at the figures that he recommended. To my mind, not much turned on the cross examination and Mr Audrey s testimony remained unchallenged in any material way. [33] ANALYSIS Mr Audrey gave enough evidence in his witness statement of his expertise in the area. No evidence was brought to shatter this. I therefore accept that he could testify as he did. Further, nothing was led to counter Mr Audrey s evidence. It remained without contradiction. Ms. Garnett was present on the day of the trial. She was sworn in and was not cross examined in keeping with the agreement arrived at by Counsel at the start of the trial. There is nothing in Mr Audrey s evidence that I can find fault with and I accept it. 11 INSURANCE ACT, Chap 84:01. Sec. 88, 89 and 90. Page 13 of 15

14 [34] CONCLUSIONS In the premises NC s account of the collision is favourable and represents on a balance of probabilities, the true statement of the events of 3 rd November 2007 when PBU 6738 sustained damage as stated in the Claim Form filed 19 th August I find that the driver of PBO 9994 VR solely liable for the collision. I find that damages must be paid by the Defendants to Clico in the sum of $109, together with interest at the rate of 12% per annum from the date of the accident. I order that costs be paid by the Defendants to the Claimant prescribed in the sum of $25, I find that the Defendants have not proved their Counterclaim and I therefore dismiss it. I order that costs be paid to the Claimant on the Counterclaim prescribed in the sum of $11, A. ON LIABILITY AS AGAINST THE FIRST AND SECOND DEFENDANTS IT IS HEREBY ORDERED THAT there be judgment for the Claimant against the First and Second Defendants for damages for negligence together with interest at the rate of 12% per annum and costs as prescribed. AS AGAINST THE THIRD DEFENDANT IT IS NOW DECLARED that pursuant to the provisions of Section 10A of the MOTOR VEHICLES INSURANCE (THIRD PARTY RISKS) AMENDMENT ACT No. 38 of 1996, and by reason of the Policy of Insurance issued by the Third Defendant to the First Defendant in respect of motor vehicle registration number PBO 9994, the Third Defendant be liable to indemnify the First and Second Defendants in respect of the damages, interests and costs awarded to the Claimant. B. ON ASSESSMENT OF DAMAGES IT IS HEREBY ORDERED AS FOLLOWS: 1. That the First and Second Defendants be liable to pay to the Claimant damages assessed in the sum of $109, together with interest and costs as stated hereunder. 2. That pursuant to the Declaration herein the Third Defendant do pay to the Claimant damages assessed in the sum of $109, together with interest at the rate of 12% per annum from the date of the accident to the date of payment. 3. That the Third Defendant do pay the Claimant s costs prescribed in the sum of $25, Page 14 of 15

15 IT IS FURTHER ORDERED AS FOLLOWS: 4. The First and Second Defendants counterclaim filed on November 7, 2008 be and is hereby dismissed with costs as prescribed. 5. That the Third Defendant do pay to the Claimant costs in the sum of $11, Dated this 20 th day of May, /s/ CHARMAINE PEMBERTON HIGH COURT JUDGE Page 15 of 15