IN THE HIGH COURT OF JUSTICE (SUB-REGISTRY, SAN FERNANDO) BETWEEN. And

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE (SUB-REGISTRY, SAN FERNANDO) Claim No. CV BETWEEN SHELDON NECKLES Claimant And MONICA FORRESTER otherwise MONICA JOSEPHINE FORRESTER (The Legal Personal Representative of the Estate of MERVYN PETER FORRESTER otherwise MERVYN P FORRESTER Deceased) MERVYN PETER FORRESTER 1 st Defendant 2 nd Defendant THE NEW INDIA ASSURANCE COMPANY (TRINIDAD AND TOBAGO) LIMITED 3 rd Defendant Claim No. CV BETWEEN KATHY ZANIFAR ALI Claimant And MONICA FORRESTER otherwise MONICA JOSEPHINE FORRESTER Page 1 of 26

2 (The Legal Personal Representative of the Estate of MERVYN PETER FORRESTER otherwise MERVYN P FORRESTER Deceased) MERVYN PETER FORRESTER 1 st Defendant 2 nd Defendant THE NEW INDIA ASSURANCE COMPANY (TRINIDAD AND TOBAGO) LIMITED Co- Defendant BEFORE THE HONOURABLE MR. JUSTICE A. DES VIGNES Appearances in CV and CV : Mr. Earle Martin James for the Claimant Mr. Everard Davidson for the First Defendant Mr. Vijai Deonarine instructed by Mr. Sham Sahadeo for the Co-Defendant JUDGMENT INTRODUCTION The Claimants 1. The Claimant in CV (hereinafter referred to as Neckles ) and the Claimant in CV (hereinafter referred to as Ali ), instituted proceedings against the Second Defendant and the Co-Defendant on 17 th May, 2013 and 23 rd May, 2013 respectively, claiming damages for personal injuries, loss and damage sustained as a result of the negligent driving by the Second Defendant of motor vehicle PCR 1576 on 30 th May Neckles and Ali allege that: i. On 30 th May, 2011 they were passengers in motor vehicle PCR 1576, which was being driven by the Second Defendant and which was insured by the Co-Defendant; ii. Due to the negligence of the Second Defendant in the driving, management and/or control of PCR 1576, while proceeding along the South Trunk Road, South Oropouche Page 2 of 26

3 in the vicinity of Inland Offshore Limited, he lost control thereof and ended up in a drain; iii. iv. As a consequence of the negligence of the Second Defendant, the Claimants sustained personal injuries, loss and damage; They are entitled to damages, interest thereon and costs as well as a declaration that the Co-Defendant is liable to indemnify the Second Defendant in respect of any judgment awarded against him. The First Defendant 3. The First Defendant is the legal personal representative of Mervyn Peter Forrester otherwise called Mervyn P. Forrester, deceased (hereinafter referred to as the Deceased ) who was at all material times the owner of PCR She was joined as a Defendant in both claims by the filing of Re-Amended Statements of Case on 4 th December, In her Defences filed on 4 th April, 2014 the First Defendant denied that the Second Defendant was the servant and/or agent and/or licensee of the Deceased or that he was driving PCR 1576 with his consent and approval. While she could neither confirm nor deny the details of the accident, the particulars of negligence or the Claimants injuries, she denied that Neckles and Ali were entitled to the reliefs sought. The Second Defendant 4. The Second Defendant entered appearances through Attorneys-at-Law, Messrs. Giwar & Deonarine but failed to file any Defences to the claims of Neckles and Ali. As a consequence, judgments in default of defence were entered against him. The judgment in the Ali claim was entered on 12 th August, 2013 and the judgment in the Neckles claim was entered on 26 th September, The Co-Defendant 5. On the 5 th July 2013, the Co-Defendant filed Defences to the Statements of Case in both actions, in which it admitted the particulars of the accident but not the particulars of negligence. The Co-Defendant also contended that, if there was in fact negligence in the driving and/or management and/or control of PCR 1576, it was because the Second Defendant was driving whilst under the influence of alcohol. In support of this contention, the Co-Defendant stated Page 3 of 26

4 that it intended to rely on a written statement of the Second Defendant dated 10 th January, 2012 in which he admitted to consuming alcoholic beverages. Further and/or in the alternative, the Co-Defendant relied on the doctrine of res ipsa loquitur. 6. The Co-Defendant also contended that the Claimants were guilty of contributory negligence as they knew or should have known that the Second Defendant was intoxicated and they implicitly discharged the liability associated with the negligence of the Second Defendant. The Co-Defendant alleged the following particulars of negligence against Neckles and Ali: 1 a. The Claimant embarked upon a journey intending at all relevant times to allow himself (herself) to be carried in a vehicle driven by Mervyn Peter Forrester, who he (she) knew or should have known was intoxicated at the material time; b. The Claimant allowed himself (herself) to be carried in the said vehicle being driven by the driver, Mervyn Forrester, as aforesaid when he (she) knew or ought to have known that it was unsafe to do by reason of the inherent danger of riding in vehicle driven by an intoxicated driver; c. The Claimant failed to ensure his (her) own safety by failing to properly secure and fasten the seat belt unto himself (herself); d. The Claimant failed and/or refused to have any or any sufficient regard for his (her) own safety. 7. Further, the Co-Defendant contended that the Claimants accepted the risk of injury and that the Co-Defendant was entitled to rely on the defence of volenti non fit injuria. 8. The Co-Defendant also denied that it was liable to indemnify the Defendants in respect of any liability for the accident or to satisfy any judgement in relation thereto based on the breach of the intoxication clause of the policy of insurance issued to the Deceased on 20 th October, The said intoxication clause provided as follows: 2 The Insurer shall not be liable to make any payment in respect of any accident, loss, danger or liability caused or arising whilst the Motor Vehicle in connection with which Insurance or Indemnity is granted herein is being driven by the Insured (or any person 1 Co-Defendant s Defences both filed on 5 th July, 2014 at paras 12(a) (d). 2 Co-Defendant s Defences both filed on 5 th July, 2014 at para 13. Page 4 of 26

5 who is the Insured s employ or any person driving on his order and with his permission) whilst under the influence of or whilst his efficiency as a driver is impaired by intoxicating liquor or drugs. 9. The Co-Defendant also denied that Neckles and Ali are entitled to the reliefs sought and put them to strict proof in relation to the injuries sustained and the damage and loss claimed. ISSUES 10. Since the parties agreed and the Court directed that the trial of both claims will be conducted with respect to liability only the following issues arise for determination at this stage: a. Was the Second Defendant negligent in driving PCR 1576? b. Was the Second Defendant driving PCR 1576 with the consent and/or approval and/or order of the Deceased? c. Can the Claimants or the Co-Defendant rely the doctrine of res ipsa loquitur? d. Can the Co-Defendant avoid liability to Neckles and Ali based on: i. a breach of the intoxication clause by the Second Defendant of the insurance policy; ii. the defence of contributory negligence; and/or iii. the defence of volenti non fit injuria? e. Is the Co-Defendant liable to indemnify the First Defendant and/or the Second Defendant? f. Are Neckles and Ali entitled to judgments on liability against the First Defendant and the Co-Defendant? EVIDENCE AT TRIAL The Claimants 11. By orders dated 4 th April, 2014, I ordered, inter alia, that Witness Statements on liability in both claims were to be filed and exchanged on or before 13 th June, 2014, in default of which no evidence was to be led from any Witness failing to do so. Neither Neckles nor Ali complied with this Order. Therefore, no evidence was adduced on their behalf at the trial. Page 5 of 26

6 The First Defendant 12. The First Defendant filed Witness Statements in her name on 12 th June, However, at the trial, Counsel for the First Defendant elected not to call the First Defendant as a witness. Accordingly, the First Defendant did not give any evidence at the trial in support of her Defences. The Second Defendant 13. As earlier stated, judgments in default of defences were entered against the Second Defendant in the Ali claim on 12 th August 2013 and in the Neckles claim on the 26 th September Accordingly, the Second Defendant did not give any evidence at the trial. The Co-Defendant 14. In support of its Defences, the Co-Defendant called Sita Seudath, its Branch Supervisor and Curt Sealey, a private investigator employed with Exponential Investigation Services as witnesses and their witness statements were tendered into evidence. Ms. Seudath was crossexamined on her witness statement but Mr. Sealey was not. Court Exhibits 15. At the trial, this Court admitted into evidence the statement of the Second Defendant dated 10 th January, 2012 which was annexed to the Defences of the Co-Defendant and this was tendered and marked CE1. A typed version of CE1 was tendered and marked CE2 ISSUE 1: WAS THE SECOND DEFENDANT NEGLIGENT IN DRIVING PCR 1576? 16. Neckles and Ali filed their Claim Forms and Statements of Case on 17 th May, 2013 and 28 th May, 2013 respectively against the Second Defendant and the Co-Defendant. Both Statements of Case alleged, inter alia, that: 3 8. On or about the 30 th May, 2011 at or around 12:45 a.m. the Claimant was at all material times a backseat passenger seated in Motor Vehicle Registration Number PCR 1576, which was proceeding along the South Trunk Road, South Oropouche in the vicinity of Inland Offshore Limited. The said Motor Vehicle Registration Number PCR 1576 was 3 Statement of Case of Neckles and Ali filed on 17 th May, 2013 and 28 th May, 2013 respectively at paras Page 6 of 26

7 at all material times being driven by the Defendant herein. The Defendant herein lost control of the said Motor Vehicle Registration Number PCR 1576 on reaching the vicinity of Inland Offshore Limited and as a consequence thereof ended up in a drain causing damage to the entire aforesaid vehicle and resultant injuries and physical damage and loss to the Claimant herein 9. The said incident was caused as a result of the negligence of the Defendant herein in the driving, management and or control of Motor Vehicle Registration Number PCR 1576, which negligence resulted in physical injuries loss and damage to the Claimant herein. PARTICULARS OF NEGLIGENCE OF THE DEFENDANT a. Driving his Motor Vehicle Registration Number PCR 1576 without due care and attention and/or without reasonable consideration for the occupants of the said Motor Vehicle Registration Number PCR 1576 and/or road users of the roadway; b. Failure to properly steer and manoeuvre or in any other way so to manage or control Motor Vehicle Registration Number PCR c. Failure to keep a proper lookout or to have any proper regard for possible impedance or obstacles in the roadway and or other vehicles on the roadway. d. Failure to stop or slow down or swerve in any other direction or way so as to manage Motor Registration Number PCR 1576 in a manner so as to avoid the accident. e. Failure to drive in a manner which could have allowed him to stop in a timely manner thus preventing injuries to the Claimant. f. Driving too fast in the circumstances. g. Driving without due care and attention. 17. On 5 th June, 2013, the Second Defendant was personally served with the aforementioned claims by Mr. Collin Ramdhanie, Process Server, who left same at his feet based on his refusal to accept the documents. 4 On 20 th June, 2013 and 21 st June, 2013, appearances were entered 4 Affidavits of Service filed on 14 th June, 2013, in respect of both claims. Page 7 of 26

8 on behalf of the Second Defendant and the Co-Defendant in respect of the Neckles and Ali claims respectively by Messrs. Girwar & Deonarine, Attorneys-at-Law. 18. On 5 th July, 2013 the Co-Defendant filed its Defences. In both Defences the Co-Defendant stated as follows: 5 7. The Co-Defendant admit to paragraph 8 of the Claimant s Statement of Case save that the Defendant was one name Mervyn Peter Forrester and not Mervyn Junior Forrester as stated therein. 8. The Co-Defendant admits the particulars of the accident, but not the particulars of negligence as set out in paragraph 9 therein 19. However, Defences were not filed on behalf of the Second Defendant by his Attorneys-at-Law. 20. On 12 th July, 2013 Neckles and Ali filed Amended Claim Forms and Amended Statements of Case. By virtue of the amendments made therein, both Statements of Case now alleged, inter alia, that PCR 1576 was at the material time being driven by the Second Defendant: 6 8. with the consent and or approval and or order of a certain MERVYN FORRESTER, the father of the Defendant who also resided at the aforementioned address and who was the owner and the insured of the aforementioned motor vehicle but who is now recently deceased. 21. As a consequence, Neckles and Ali claimed against the Second Defendant damages for personal injuries sustained together with consequential loss and damages suffered as result of the negligence of the Defendant as the driver and owner in the driving, management and/or control of motor vehicle registration number PCR 1576.on or around the 30 th day of May 2011 the defendant at material times being a licensee of and driving with the consent and approval of his father a certain Mervyn Forrester. 22. On 19 th July, 2013, the Second Defendant s Attorneys-at-Law, Messrs. Girwar & Deonarine applied to this Court to be removed from the record as acting for the Second Defendant. This application was supported by the Affidavit of Ms. Karuna Radha Ramsaran, Attorney-at-Law. This Court granted the application by order dated 11 th October, Defences of the Co-Defendant both filed on 5 th July, 2013 at paras Amended Statements of Case both filed on 12 th July, 2013 at para. 8. Page 8 of 26

9 23. As a consequence of the Second Defendant s failure to file Defences to the claims of Neckles and Ali, default judgments were entered against him in the Ali claim on 12 th August, 2013 and in the Neckles claim on 26 th September, On 12 th August, 2013 the judgment in default of defence in the Ali Claim was entered against the Second Defendant in the following terms: 7 Dated 25 July 2013 Entered 12 August 2013 To: Mervyn Peter Forrester You have not replied to the claimant s claim form and statement of case served on you on 21 June 2013 by filing a defence and the time for doing so had expired. IT IS THEREFORE ORDERED that judgment in default of defence be and is hereby entered against you for payment of an amount to be decided by the court for damages, interest and costs. 25. On 26 th September, 2013 judgment in default of defence in the Neckles Claim was entered against the Defendant in the following terms: 8 Dated 25 July 2013 Entered 26 September 2013 To: Mervyn Peter Forrester You have not replied to the claimant s claim form and statement of case served on you on 12 July 2013 by filing a defence and the time for doing so had expired. IT IS THEREFORE ORDERED that judgment in default of defence be and is hereby entered against you for payment of an amount to be decided by the court for damages, interest and costs. 7 CV Judgment for the Claimant in default of defence against the Defendant filed 13 th September, CV Judgment for the Claimant in default of defence against the Defendant filed 10 th October, Page 9 of 26

10 Submissions 26. At the trial of these claims, Counsel for the Co-Defendant submitted that: a. The Co-Defendant did not admit to negligence as alleged by Neckles and Ali and therefore is not bound by the default judgments entered against the Second Defendant: Saunders v Des Vignes & Ors (CA No. 138 of 2006); b. Both Claimants had the evidential burden to prove damage and this was compulsory; c. The Co-Defendant does not have to prove that negligence did not cause the accident. Instead, the Co-Defendant has to show that there was an explanation that the accident occurred without negligence. The Second Defendant, in his statement marked CE 1 stated that he applied brakes when he was confronted with vehicles stopping in front of him: The Kite (1933) Probate Division 154 at p. 170; and d. The Court has heard nothing at all about the accident since both Claimants failed to lead any evidence. Strong inferences ought to be drawn against both Claimants since they had evidence available to them but failed to lead any evidence. If the Court is satisfied that there is a scintilla of evidence that the Second Defendant was not negligent, the Court ought to consider the inferences of witnesses not being called: Benham v Kythria Investments Ltd. (2003) EWCA Civ 1794 at para. 28 and Tesheira v Gulf View Medical Centre Ltd & Roopchand (CV at para16). 27. Counsel for the First Defendant submitted that there was no case for the First Defendant to answer as she could neither confirm nor deny the allegations and the case against her should be dismissed. 28. Counsel for both Claimants submitted that: a. The default judgments entered against the Second Defendant could be relied upon to establish liability as against the First Defendant and the Co-Defendant. b. The Claimants could succeed without proving damage: New India Assurance v Bailey HCA. S-1224/2005/CV Having established negligence against the Second Defendant, the Co-Defendant is obliged to indemnify the Defendants under the Section 10 (1) of the Motor Vehicles (Third Party Insurance) Act. Page 10 of 26

11 c. The Court should not draw adverse inferences against the Claimants because they did not give evidence as this was a trial on liability and they had already obtained default judgments against the Second Defendant; and d. There was no issue raised between the Claimants and the First Defendant. Analysis and Findings 29. According to Halsbury s Laws of England, 9 as the law stands, a default judgment creates cause of action estoppel in just the same way as a judgment after trial because it finally disposes of the cause of action, but such estoppel is confined strictly to the precise cause of action upon which default judgment was given. 30. The Co-Defendant relied on the authority of Saunders (supra) to support its contention that it is not bound by the default judgments entered against the Second Defendant. In Saunders (supra) the Court of Appeal considered, inter alia, the issue of whether an insurer (the Second Respondent) was liable where default judgment was obtained against the alleged driver of the vehicle (The Third Respondent). The Appellant submitted that the default judgment obtained against the Third Respondent estopped the Second Respondent from raising as a defence to the claim that the Third Respondent was not driving the vehicle. In delivering the judgment of the Court of Appeal, Mendonca JA. stated as follows: 22. In our judgment this submission is without any merit. We say so for the following reasons. First, while a default judgment can of course give rise to an estoppel, the defendant is only estopped from setting up a defence which is necessarily and with complete precision decided by the judgment (see New Brunswick Railway Company v British and French Trust Corporation [1939] AC 14 and CA#101 of 2002 and Sorzano and Anor. v. The Attorney General and Anor.). In order to ascertain what the default judgment has determined it must be carefully scrutinized with extreme particularity for the purpose of ascertaining the bare essence of what it must necessarily have decided (see Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] 1 ALL ER 300,306). To determine what the judgment decided regard must be had to the judgment itself and to the pleadings in the action. 9 Volume 12A (2015) at para Page 11 of 26

12 31. Upon scrutiny of the default judgment, Mendonca JA. went on to state that: 23. The judgment therefore decided that the accident occurred as a consequence of the negligence of the Third Respondent or that of his servant or agent. It does not with complete precision decide that the driver of the First Respondent s vehicle was the Third Respondent. The Second Respondent therefore cannot be estopped from denying that the vehicle was driven by the Third Respondent. 24. Secondly in this case as the judgment is a judgment in personam, it prevents a defendant against whom the judgment has been obtained from setting up a defence which is necessarily and with complete precision decided by the judgement obtained against him. It cannot prevent a defendant against whom there has been no determination of the issue from raising it as a defence even where the defendant against whom judgment has been obtained is a defendant in the same proceedings. It is ludicrous to suggest that the Second Respondent is completely shut out before it has had the opportunity to advance its defence at the trial from litigating its liability under the policy issued by it because of the judgment obtained against the Third Respondent. 25. a default judgment obtained by reason of the default of one defendant cannot bind the other defendant where the issue between the plaintiff and the defendant has not been decided. The judgment against the Third Respondent is conclusive of the matters decided by it between the Appellant and the Third Respondent, not the other defendants in the action. 32. Adopting the approach of Mendonca JA. in Saunders (supra), it is clear that the default judgments obtained by the Claimants must be scrutinized in an effort to ascertain what has been decided therein and the extent of any estoppel that may exist prohibiting the raising of a particular defence. The default judgments as recited above state that based on the failure of the Second Defendant to file Defences to their claims, the Claimants were granted judgment for the payment of an amount to be decided by the court for damages, interest and costs. As seen at paragraphs 8 and 9 of the Claimants Statements of Case, the essence of their claims is that the Second Defendant was negligent in driving PCR 1576 which caused injury, loss and damage to them. Page 12 of 26

13 33. In my opinion, the default judgments entered on behalf of both Claimants have decided with complete precision that the Second Defendant was negligent in his driving of PCR 1576 on 30 th May 2011, which resulted in both Claimants sustaining injuries, loss and damage. While the law is that a default judgment obtained as against one defendant cannot bind another where the issue between them has not been decided, these matters are distinguishable from the facts in Saunders (supra) since in that matter there was not a precise allegation that the Third Respondent was the driver. In the circumstances, it was open to the Second Respondent to argue that he was not the driver. However, in these matters, there has been a precise allegation made against the Second Defendant and the judgments entered in default of defence against him establish that he was negligent in his driving of PCR 1576 on 30 th May In the circumstances, I am of the opinion that the default judgments entered against the Second Defendant created a cause of action estoppel against the Co-Defendant and the Co-Defendant is estopped from setting up a defence that the Second Defendant was not negligent. 35. Further, I reject the submission of Counsel for the Co-Defendant that both Claimants had the evidential burden to prove damage. Having already determined that the default judgments determined the issue of negligence against the Second Defendant, the Claimants are no longer required to prove this element of the tort of negligence. 36. It must be noted, however, that Counsel for the Claimants relied on the authority New India Assurance (supra) to support his contention that damage need not be proved before deciding upon liability. In my opinion, his reliance on this authority is misconceived as it was the issue of damages as opposed to damage that the trial judge ruled could be considered after judgement was given. Therein, Rajnauth-Lee J. (as she then was) stated: Accordingly, in the judgment of the Court, in the circumstances where the Claimant had obtained judgments against the First Defendant, the Insured, and the Second Defendant, the driver, which judgments had not been set aside, the Claimant had the benefit of a judgment pursuant to section 10(1) of the Act. Nothing in section 10(1) suggested that damages had to be assessed before a judgment could be entered against the Third Defendant, the Insurer. 37. Counsel for the Co-Defendant invited me to draw adverse inferences against the Claimants by reason of their failure to file Witness Statements in support of their case and to lead any Page 13 of 26

14 evidence at the trial. I am not prepared to do so since this was a trial on the issue of liability only and I have already found that the default judgments entered against the Second Defendant decided with complete precision that the Second Defendant was negligent in his driving of PCR 1576 on 30 th May In the circumstances, I am of the opinion that it would not be appropriate to draw adverse inferences against the Claimants as a consequence of their failure to lead any evidence at the trial. ISSUE 2: WAS THE SECOND DEFENDANT DRIVING PCR 1576 WITH THE CONSENT AND/OR APPROVAL AND/OR ORDER OF THE DECEASED? Law 38. In Barnard v Sully 10 the Court of Appeal ruled that in an action for negligence, where the Claimant has proved that damage has been caused by the Defendant s vehicle, the fact of ownership of the vehicle is prima facie evidence that at the material time, it was being driven by the owner or by his servant or agent. Scrutton L.J. stated that: 11 the more usual fact was that a motor-car was driven by the owner or servant or agent of the owner, and therefore the fact of ownership was some evidence fit to go to the jury that at the material time the motor-car was being driven by the owner of it or by his servant or agent. But it was evidence which was liable to be rebutted by proof of actual facts. 39. Barnard (supra) was applied in the Privy Council decision in Rambarran v Gurrucharran which stated that: 12 ownership of a motor vehicle (which at the time of an accident is being driven by another for his own purposes and without the knowledge of the owner) is prima facie evidence that the driver was the agent or servant of the owner and that the owner is therefore liable for the negligence of the driver, that inference may be displaced by evidence that the driver had the general permission of the owner to use the vehicle for his own purposes, the question of service or agency on the part of the driver being ultimately a question of fact 10 (1931) 47 Times Law Reports Ibid at p [1970] 1 All ER 749. Page 14 of 26

15 40. These two authorities were applied locally in Saunders (supra). Therein Mendonca JA. stated that: 13 For the Appellant to succeed therefore it must be established that the person who was driving the vehicle was doing so as the First Respondent s servant or agent and not merely for his own benefit and concern. The only evidence to suggest that the vehicle was being driven by the First Respondent s servant or agent is that she owned the vehicle. In the absence of other evidence an inference may be drawn from the fact of ownership of the vehicle that at the material time it was being driven by the owner s servant or agent.the inference may however be rebutted by establishing that at the material time the vehicle was not being driven for any purpose of the owner Evidence 41. By virtue of the pleadings of the Claimants, the First Defendant and the Co-Defendant, it is not in dispute that at the material time the Deceased was the owner of PCR The Claimants alleged in their Re-Amended Statements of Case that the Second Defendant drove PCR 1576 with the consent and/or approval and/or order of the Deceased. The First Defendant denied this allegation in her Defences but led no evidence in support of this denial. The witnesses for the Co-Defendant did not lead any evidence to prove that the Second Defendant was driving PCR 1576 without the consent and/or approval of the Deceased. Submissions 42. Counsel for the Co-Defendant submitted that based on the First Defendant s non-admission in respect of this issue of consent and/or approval there were live issues between the Claimants and the First Defendant. 43. Counsel for the First Defendant submitted that there was no issue between the Claimants and the First Defendant. 44. Counsel for the Claimants submitted that the default judgments established that the Second Defendant was driving PCR 1576 with consent and/or approval of the Deceased and was therefore an agent and/licensee of the Deceased. Counsel also submitted the Second Defendant had authority to drive and, as such, liability to the Claimants attaches to the insured and the 13 Saunders (supra) at para. 18. Page 15 of 26

16 insurer and the insured and the driver are coterminous because the owner gave the driver permission. Analysis and Findings 45. Having considered the authorities on this issue, I am of the opinion that ownership of PCR1576 by the Deceased is prima facie evidence that the Second Defendant was his servant or agent at the time when he drove PCR 1576 negligently. Further, the evidence led by the Co-Defendant has failed to rebut this presumption or operated so as to displace it. Notably, although the First Defendant in her Defence denied that the Second Defendant was authorized to drive PCR 1576, she led no evidence at the trial to support this denial. Accordingly, I find that the Second Defendant was at the material time driving PCR 1576 with the consent and/or approval and/or order of the Deceased. ISSUE 3: CAN THE CLAIMANT OR THE CO-DEFENDANT RELY ON THE DOCTRINE OF RES IPSA LOQUITUR? Law 46. Halsbury s Laws of England 14 summarises the law with respect to the doctrine of res ipsa loquitur as follows: 64. Under the doctrine res ipsa loquitur a claimant establishes a prima facie case of negligence where (1) it is not possible for him to prove precisely what was the relevant act or omission which set in train the events leading to the accident; and (2) on the evidence as it stands at the relevant time it is more likely than not that the effective cause of the accident was some act or omission of the defendant or of someone for whom the defendant is responsible, which act or omission constitutes a failure to take proper care for the claimant's safety 65. The maxim res ipsa loquitur applies only where the causes of the accident are unknown but the inference of negligence is clear from the nature of the accident. If the causes are sufficiently known the case ceases to be one where the facts speak for themselves and the court has to determine whether or not, from the known facts, negligence is to be inferred. 14 Negligence, Volume 78 (2010) at paras Page 16 of 26

17 Where the defendant does give evidence relating to the possible cause of the damage and level of precaution taken, the court may still conclude that the evidence provides an insufficient explanation to displace the doctrine. Evidence 47. Neckles and Ali pleaded their reliance on the doctrine of res ipsa loquitur in the following terms: As far as may be necessary the Claimant will rely on the doctrine of Res Ipsa Loquitur. 48. The Co-Defendant also pleaded that it intended to rely on the same doctrine as follows: 10. The Co-Defendant would further and/or alternatively rely on the doctrine of res ipsa loquitur as regards the circumstances of the accident, namely that at the point where the accident occurred the road was straight, well lit and with no hazardous conditions. 49. However, the Claimants led no evidence at the trial and none of the Co-Defendant s witnesses led evidence in support of its Defence. Submissions 50. At the trial, Counsel for the Co-Defendant submitted that the presumption of res ipsa loquitur was rebutted and neutralized. He further submitted that whether or not it applied, based on the evidence and the inferences to be drawn, the Claimants case should be dismissed. 51. Counsel for the Claimants submitted that the particulars of negligence are set out in the Statements of Case and it was not open to the Co-Defendant to rely on the doctrine of res ipsa loquitur. Analysis and Findings 52. Although the Claimants and the Co-Defendant pleaded reliance on the doctrine of res ipsa loquitur, there was no evidence led by either the Claimants or the Co-Defendant to support those pleas. In any event, having already established that negligence was proved and determined, this principle does not apply. The pleaded particulars of negligence as against the Second Defendant appearing at paragraph 16 herein illustrate the cause of the accident and displaces the principle of res ipsa loquitur. 15 The Claimants Re-Amended Statements of Case both filed on 4 th December, 2013 at paras 10(sic). Page 17 of 26

18 ISSUE 4: CAN THE CO-DEFENDANT AVOID LIABILITY TO THE CLAIMANTS BASED ON: I. A BREACH OF THE INTOXICATION CLAUSE OF THE INSURANCE POLICY; II. THE DEFENCE OF CONTRIBUTORY NEGLIGENCE; AND/OR III. THE DEFENCE OF VOLENTI NON FIT INJURIA? Law Avoiding Liability 53. Section 10A of the Act provides that: 10A. (1) Where a plaintiff brings an action under section 10 against any person by whom a policy has been effected and who has had issued to him a certificate of insurance under section 4(8) in respect of such liability as is required to be covered by a policy under section 4(1)(b) then, even though (a) liability as between the plaintiff and the insured has not yet been determined; or (b) the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the plaintiff may, subject to the provisions of this section, join the insurer as a co-defendant in the action. (2) Where an insurer is joined as a co-defendant under subsection (1), the insurer may, raise any defence that he may be entitled to under the policy of insurance or otherwise. Intoxication Clause Law 54. MacGillivray on Insurance Law 16 states that: Motor vehicles polices may contain clauses exempting liability for injury sustained by the assured while under the influence of drugs or intoxicating liquor. The question is whether the drugs or liquor disturb the quiet, calm, intelligent exercise of the faculties. 55. In Louden v British Merchants Insurance Co. Ltd 17 the court examined the effect of an insurance policy with an intoxication clause as in the instant matters. Lawton J. held that: 16 (1997) 9 th Edition at para (1961) QBD 798. Page 18 of 26

19 the words whilst under the influence of intoxicating liquor connoted a disturbance to the intelligent exercise of the faculties; that whilst had a temporal meaning and did not introduce into the provision any requirement of a causal connection between the bodily injury sustained and the state of being under the influence of intoxicating liquor. 56. In ruling that the driver was under the influence of intoxicating liquor within the meaning of the exemption clause of the policy and, as a result, the insurers were not liable under the policy, Lawton J. stated as follows: 18 the issue for decision is whether the defendants have proved that the deceased sustained the bodily injury which resulted in his death whilst he was under such influence of intoxicating liquor as disturbed the quiet, calm, intelligent exercise of the faculties. In my judgment they have. I am satisfied on the medical evidence that when the deceased sustained the bodily injury, his blood alcohol then being at least 268 milligrams per 100 millilitres, his brain had been so affected by the alcohol he had consumed as to cause him to lose control of his faculties Evidence 57. In its Defences, the Co-Defendant alleged that if the Second Defendant was negligent in the driving and/or management and/or control of PCR 1576, he was driving under the influence of alcohol and relied on the statement of the Second Defendant dated 10 th January, 2012 in support of this ( CE 1 ). The relevant excerpt from CE 1 stated as follows: We all had a good time at the wedding and consumed alcoholic beverages. I knew I had to drive so I did not over drink 58. The Co-Defendant also denied that it was liable to indemnify the Defendants in respect of any liability for the accident or to satisfy any judgment in relation thereto based on the breach of the intoxication clause of the Policy of Insurance issued to the Deceased on 20 th October, At paragraph 5 of her Witness Statement, Sita Seudath gave evidence that the following intoxication clause was included in the Policy of Insurance in respect of PCR 1576: Ibid at p Para. 5 of Witness Statement of Sita Seudath filed on 13 th June, Page 19 of 26

20 The Insurer shall not be liable to make any payment in respect of any accident, loss, danger or liability caused or arising whilst the Motor Vehicle in connection with which Insurance or Indemnity is granted herein is being driven by the Insured (or any person who is the Insured s employ or any person driving on his order and with his permission) whilst under the influence of or whilst his efficiency as a driver is impaired by intoxicating liquor or drugs. Submissions 60. Counsel for the Co-Defendant submitted that it was entitled to rely on the intoxication clause. He relied on the authorities of National Farmers Union Mutual Insurance Society Limited v Dawson [1941] King s Bench Division 424 at p.429 and Louden v British Merchants Insurance Co. Ltd [1961] QBD 798 at p Counsel for the Claimants submitted that the burden of proof lay upon the Co-Defendant to prove that the intoxication clause applied to the Second Defendant. He submitted that there was no evidence from any of the Witnesses in this regard. Analysis and Findings 62. The Co-Defendant relied solely on the candid admission of the Second Defendant in his Statement that he had consumed alcoholic beverages at the wedding but failed to lead any other evidence to prove that his quiet, calm, intelligent exercise of the faculties were disturbed or that his efficiency as a driver was impaired. In my opinion, the fact that the Second Defendant consumed alcoholic beverages at a wedding, without more, does not support an inference that he was under the influence of or that his efficiency as a driver was impaired by intoxicating liquor. In the circumstances, the Co-Defendant failed to prove that at the time of the accident the Second Defendant was driving PCR 1576 whilst under the influence of or whilst his efficiency as a driver was impaired by intoxicating liquor. 63. Accordingly, I find that the Co-Defendant is not entitled to avoid liability to the Claimants based on a breach of the intoxication clause in the policy of insurance. Page 20 of 26

21 Contributory Negligence and Volenti Non Fit Injuria Law 64. As to contributory negligence, Halsbury s Laws of England 20 states that: 76. In order to establish contributory negligence the defendant has to prove that the claimant's negligence was a cause of the harm which he has suffered in consequence of the defendant's negligence. The question is not who had the last opportunity of avoiding the mischief but whose act caused the harm. The question must be dealt with broadly and upon common sense principles. Where a clear line can be drawn, the subsequent negligence is the only one to be considered; however, there are cases in which the two acts come so closely together, and the second act of negligence is so much mixed up with the state of things brought about by the first act, that the person secondly negligent might invoke the prior negligence as being part of the cause of the damage so as to make it a case of apportionment. The test is whether in the ordinary plain common sense the claimant contributed to the damage. 77. The existence of contributory negligence does not depend on any duty owed by the claimant to the defendant and all that is necessary to establish a plea of contributory negligence is for the defendant to prove that the claimant did not in his own interest take reasonable care of himself and contributed by this want of care to his own injury. 78. The standard of care in contributory negligence is what is reasonable in the circumstances, and this usually corresponds to the standard of care in negligence. The standard of care depends upon foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonably prudent person, he might hurt himself. A claimant must take into account the possibility of others being careless. As with negligence, the standard of care is objective in that the claimant is assumed to be of normal intelligence and skill in the circumstances Negligence, Volume 78 (2010) at paras Page 21 of 26

22 79. In a very large number of claims arising out of road accidents, issues of contributory negligence arise. Although the question is essentially whether the claimant has taken reasonable care for his own safety in the circumstances, certain principles have emerged. It may be contributory negligence for a passenger to take a lift with a driver knowing him to be drunk and incapable of driving with due care. 80. Knowledge by the claimant of an existing danger or of the defendant's negligence may be an important element in determining whether or not he has been guilty of contributory negligence. The question is not whether the claimant realised the danger but whether the facts which he knew would have caused a reasonable person in his position to realise the danger. It is a question of fact in each case whether the knowledge of the claimant in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence 65. In respect of the defence of volenti non fit injuria, Halsbury s Laws of England 21 states that: 69. Where a claimant relies on the breach of a duty to take care owed by the defendant to him, it is a good defence that the claimant consented to that breach of duty, or, knowing of it, voluntarily incurred the whole risk entailed by it. In such a case the defence of assumption of risk, traditionally expressed in the maxim volenti non fit injuria, applies. This defence is to be distinguished from the plea of contributory negligence, for a claimant may have voluntarily exposed himself to the risk of being injured while himself exercising the utmost care for his own safety; and, conversely, while knowledge of the risk may show contributory negligence, it does not prove voluntary assumption of risk. 70. In order to establish the defence, the claimant must be shown not only to have perceived the existence of danger but also to have appreciated it fully and voluntarily accepted the risk. The question whether the claimant's acceptance of the risk was voluntary is generally one of fact, and the answer to it may be inferred from his conduct in the circumstances. The inference of acceptance is more readily to be drawn in cases where it is proved that the claimant knew of the danger and comprehended it, for example where the danger was apparent or proper warning was given of it and where there is nothing to show that he was 21 Negligence, Volume 78 (2010) at paras Page 22 of 26

23 obliged to incur it, than in cases where he had knowledge that there was danger but not full comprehension of its extent, or where, while taking an ordinary and reasonable course, he had no adequate opportunity of electing whether he would accept the risk. Thus a passenger who travels in a car does not necessarily accept the risk of negligent driving even though he knows that the driver is under the influence of alcohol or is a learner... Evidence 66. The Co-Defendant alleged in its Defences that if the Second Defendant was negligent in the driving and/or management and/or control of PCR 1576, the Claimants accepted the risk of injury and implicitly discharged any liability arising based on the principle of volenti non fit injuria and/or contributory negligence. The particulars of negligence relied on by the Co- Defendant as against both Claimants were as follows: The Co-Defendant would contend that such injury, loss and damage as the Claimant may prove (none being admitted) was contributed to by his (her) own negligence. PARTICULARS OF NEGLIGENCE OF THE CLAIMANT The Claimant was negligent in that: (a) The Claimant embarked upon a journey intending at all relevant times to allow himself (herself) to be carried in a vehicle driven by Mervyn Peter Forrester, who he (she) knew or should have known was intoxicated at the material time; (b) The Claimant allowed himself (herself) to be carried in the said vehicle being driven by the driver, Mervyn Forrester as aforesaid when he (she) knew or ought to have known that it was unsafe to do so by reason of the inherent danger of riding in vehicle driven by an intoxicated driver; (c) The Claimant failed to ensure his (her) own safety by failing to properly secure and fasten the seatbelt unto himself (herself); (d) The Claimant failed and/or refused to have any to any sufficient regard for his (her) own safety. 22 Defences of the Co-Defendant both filed on 5 th July, 2013 at paras. 12(a) - (d). Page 23 of 26

24 Submissions 67. Counsel for the Co-Defendant submitted that it did not appear on the face of the Second Defendant s statement marked CE 1 that the passengers were aware that the driver was intoxicated and this would affect the issue for contributory negligence but that the court should consider the inferences to be drawn. He further submitted that in respect of the issue of volenti non fit injuria, it was more difficult. In respect of these defences, Counsel relied on the authorities of Morris v Murray and Another [1984 M. No. 870 at 15 C D], Owens v Brimmell [1974 O. No at p. 866 H], Boothe v White [2003] EWCA Civ 1708 at para. 20 and Pitts v Hunt and Another [1991] 1 QB 24 at p. 49 B- C. 68. Counsel for the Claimants submitted that the onus lay on the Co-Defendant to prove contributory negligence and this burden was not discharged as the witnesses for the Co- Defendant failed to give any evidence to prove same. Counsel also submitted that there was nothing in the Second Defendant s statement that illustrated that the Claimants knew there was something injurious that was likely to occur if they travelled in PCR 1576 driven by the Second Defendant. Accordingly, there was no evidence of contributory negligence or volenti non fit injuria. Analysis and Findings 69. Having examined the evidence before me, I am of the opinion that the Co-Defendant is not entitled to succeed on the defences of contributory negligence and volenti non fit injuria. While I accept that the authorities relied on by Counsel for the Co-Defendant in support of his contentions on this issue represent an accurate reflection of the law, I am of the view that the evidential hurdle has not been surmounted. 70. In respect of contributory negligence, the Co-Defendant has failed to prove that the Claimants knew or reasonably ought to have known that the Second Defendant was intoxicated at the material time or was incapable of driving with due care. The Co-Defendant s witnesses have not given evidence in support of the particulars of contributory negligence pleaded against Neckles and Ali. 71. In respect of the defence of volenti non fit injuria, the Co-Defendant has not established on the evidence that the Claimants knew of the risk or danger or appreciated it fully and voluntarily Page 24 of 26

25 accepted the risk. In any event, having already determined that the Co-Defendant has failed to prove that the Second Defendant was intoxicated, these defences must fail. ISSUE 5: IS THE CO-DEFENDANT LIABLE TO INDEMNIFY THE FIRST DEFENDANT AND THE SECOND DEFENDANT FOR THE SECOND DEFENDANT S NEGLIGENCE? Law 72. The Motor Vehicle Insurance (Third-Party Risks) Act (hereinafter referred to as the Act ) provides that: 10. (1) If, after a certificate of insurance has been delivered under section 4(8) to the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under section 4(1)(b) (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, in addition to any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any written law relating to interest on judgments. Evidence Sita Seudath 73. At paragraphs 3 and 4 of the Witness Statement of Sita Seudath, she stated that a policy of insurance (Policy Number SFM/79/3307) was taken out by the Deceased for PCR 1576 on 9 th October, In addition to this, a Certificate of Insurance (Certificate No ) dated 26 th July, 2010 was also issued to the Deceased in respect of PCR Under cross-examination, Ms. Seudath also confirmed that at the time of the accident PCR 1576 was insured by the Co-Defendant under a fully comprehensive policy. Analysis and Findings 75. It is not in dispute that at the material time motor vehicle PCR 1576 was insured by the Deceased with the Co-Defendant. By virtue of clause 5(b) of the Certificate of Insurance which was annexed as S.S.1 to the Witness Statement of Sita Seudath, any person driving PCR 1576 Page 25 of 26