THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV 2013-01304 BETWEEN CURT GOMES CLAIMANT AND RANDY LALLA RODDY LALLA DEFENDANTS Before the Honourable Mr Justice Ronnie Boodoosingh Appearances: Mr Robin Ramoutar and Mr Taurean Dassyne for the Claimant Mr Abdel Ashraph instructed by Mr Mahendra Dhaniram for the Defendant Date: 27 January 2015 1. Claim motor vehicle collision. ORAL JUDGMENT 2. The first issue I have had to consider is whether this claim is an abuse of the process of the court having regard to the principle of res judicata or for any other reason. Page 1 of 8
3. There was a claim before in which the Lallas brought a claim against Gomes and Motor One. That claim was compromised. At a CMC, a consent order was entered. Gomes and Motor One agreed to pay the Lallas $15,000.00 as an ex gratia payment. The claim was then dismissed against the Gomes and Motor One. 4. Gomes was represented by the insurance company s lawyers. He did not file a counterclaim himself. 5. I have considered the cases cited by both sides. 6. In particular I have looked carefully at the cases of Henderson v Henderson 1843-60 All ER 378 and Attorney General of Trinidad and Tobago v Trevor Mahabir CV Appeal No. P238 of 2013 delivered on 6 December 2013 per Mendonca JA. 7. In determining whether the claim is an abuse of process the court must look at the overriding objective of the CPR to deal with cases justly and all of the relevant circumstances. The court must undertake a balancing exercise taking account of all the public and private interests and the circumstances of the case. 8. In this regard I have considered that there was no determination on the merits of the previous claim. It was settled at a CMC early on the claim. It was settled on the terms of an ex gratia payment. No liability was found or conceded. There would not have been considerable resources expended in determining the previous claim. A determination of this claim would not lead to an inconsistent finding with the previous claim since that was dismissed on the premise of the payment of an ex gratia payment. It is also clear that the litigation in the previous matter was conducted on behalf of Mr Gomes on the basis of the insurer s right under the contract of insurance to conduct the litigation on behalf of its insured. 9. It is correct that the claim could have been brought in the previous proceedings as a counterclaim and it was not. The claimant s explanation is that the other side had their claim inside. After the matter was concluded the attorney told him not to worry, the claim was finished. When he asked about his damages he was told they were hired only Page 2 of 8
to defend their claim and he will have to speak to the insurers or get another lawyer to handle his claim. That is his explanation, which is not contradicted. 10. What occurred in the previous claim really was not the best approach to the conduct of litigation under the CPR. All relevant claims should ordinarily be brought together. This was a simple running down claim with no complexities. It does not conduce to efficiency and the orderly conduct of litigation that claims are brought after other related claims are dealt with and completed. It sometimes happens that conflicts seem to arise where an insurer takes responsibility over the conduct of litigation. On more than one occasion I have had the experience of seeing the litigation being compromised essentially by the insurer without the interests of its insured being fully considered. The insured s counterclaim ought to have been brought and the case not be seen as simply one to defend. 11. However, it is a different matter to say that it amounts to an abuse of process on any of the grounds raised for the claimant in this case to advance his claim. He has a claim to advance. Through no apparent fault of his, he did not have an opportunity to advance his claim as a counterclaim in the previous matter. Looking at both the public and private interests, the public interest in my view in terms of the management of the civil litigation system is not compromised in this case by allowing the claim to proceed. This is particularly so in the situation where the court had raised the matter early on at the case management stage and attorney at law for the defendant (a different attorney from the present attorney for the defendant) had expressly stated that no legal point was being taken in relation to the claim being brought at this stage. The point was first advanced by the defendant at the trial. 12. I did not think therefore that the claim should be dismissed for abuse of process either in terms of the Henderson rule or otherwise. 13. I turn therefore to the merits of the claim. I note that it is for me to decide the claim at this stage based on what is before me. It is not relevant to deciding the case now that terms of compromise were arrived at previously on the basis of an ex gratia payment. Page 3 of 8
14. The accident took place on the Moruga Main Road on 14 November 2009 around 10:15 pm. The claimant was driving PBL 799 northerly. According to the claimant, there is a bend in the road near the SDA Church. At an S curve, the first defendant was driving PBG 9104 in the opposite direction. The claimant says the first defendant failed to stay on his lane and came onto the claimant s side. He said he pulled to the left but there was a high pavement on the left side so he couldn t pull any further. There was then a bang when the vehicles collided. He said he couldn t do anything more in the time he had to react. 15. The first defendant s version is that he was driving on his side of the road. 16. He noticed the claimant s vehicle coming at a fast rate and he noticed the car when it was two car lengths away. He saw the car swerve onto the wrong and incorrect side of the road and came directly onto his path. He too tried to pull to the left, but was prevented from doing so as a result of a curb at the edge of the road. He was injured and taken by ambulance to the Princes Town Health facility. He went the next morning to make a report to the police but was told by a police officer at the Princes Town Police Station that a report was already made and coded as against him being wrong and they would not therefore take his report. 17. Neither side gave any specific evidence from which the speed of other the vehicle could be gauged but that they both asserted their own speeds, one at 40 km/hour and the other about 50 km/hour. They both assert that the other was driving at a fast rate of speed but don t go further to establish this. 18. As the conditions go, both sides do not agree on the scene. The first defendant says he could see straight ahead for about 45 feet. His lane was broad. He only noticed the claimant s car when it was two car lengths away. It was then the claimant swerved to avoid a depression. Page 4 of 8
19. The claimant called one Markel Collymore who was taking a lift with the claimant. He is a friend. He said there were no depressions in the road. The claimant said it occurred around a corner. 20. The defendant moved away from his witness statement where he said you could see for 45 feet ahead and the road was straight. In his witness statement he suggests you could see a distance ahead. He tended to move away from this in cross examination. 21. The defendant also said there were 3 passengers in his car. None of them came forward to assist him in giving evidence. He knew at least 2 of them by name. He gives no explanation for his failure to call them. 22. The claimant s witness was consistent with his evidence. Another witness who came after the accident, Allister Sutherland, positions the vehicles on the far left of the roadway almost on top of the pavement that runs along the left side of the road on the side Gomes vehicle should have been on. This is consistent with the location of the accident as advanced by the claimant that it occurred on his side of the road and he had to pull to the left but he could not pull further because of the pavement. Mr Sutherland is the claimant s neighbour and would know him well. 23. Notwithstanding that both of the claimant s witnesses appear to be friends, they did come forward to give evidence and the court must treat with them. They can t simply be dismissed because they happen to be friends of the claimant. 24. The police report is also not evidence that can be relied on for the truth of its contents. It is a record of the report and can show consistencies or inconsistencies. But it is of no more value than as a statement of reports made by the persons who made them. 25. Thus the weight of the evidence clearly is on the claimant s side even though the witnesses would know him. As I have said there is no evidence from anyone supporting the defendant s version and there is no good explanation for failing to call any witnesses. There is also evidence from Sutherland that while he did not see the accident he was on the scene shortly after and he and the defendant exchanged words about how it happened Page 5 of 8
with the clear implication that the defendant was being blamed for it. There was no contest of this evidence. 26. The police report was also put into evidence. I accepted the claimant s version that he did not have an input into what was put into the report since he had gone for medical attention. 27. This is a case of hard swearing on both sides with no independent evidence. There are no photographs of the position of the vehicles and no independent measurement taken of the position of the vehicles. 28. Given the support for the claimant s evidence and the inconsistency of the defendant between his cross examination and his witness statement re the scene, I accepted the claimant s case that the defendant came onto the wrong side thereby causing the collision. 29. There was little the claimant could do in those circumstances to avoid the collision. 30. I therefore find the defendant to be wholly liable by crossing onto the claimant s side of the road causing him to pull to the left and go onto the curb. 31. The next issue concerns damages. 32. There was property damage. The claimant got an estimate for repairs from one Waddie s garage where he is connected. 33. The claimant is himself a straightener and he did the work. 34. He has no receipts for a front cut of the vehicle he said he purchased for $10,000.00; he misplaced the receipt for paint he purchased; Mr Waddie did not issue him any receipts for materials used; he rented a car from his cousin at $150.00 per day but he has no receipt. He claimed loss of use for 42 days at $250.00 per day but said in cross examination that it took him about 15 days to repair the vehicle. His loss of use is for Page 6 of 8
$250.00 per day but he could rent a vehicle from his cousin for $150 a day. He said for a job like that he would charge about $15,000.00. He claims $150.00 for obtaining a police report but says in his witness statement it cost him $75.00. 35. While the court is enjoined to look at the claimant before it and make allowances for the fact that some persons will not keep records properly or keep a receipt for everything as intimated in the Ansola case, it is more than odd that the only thing the claimant could provide a receipt for is the wrecker. The claimant also did not seek to call Mr Waddie to substantiate that he had purchased the front cut for his car or the materials cost which he said amounted to over $15,000.00, a not unsubstantial sum. He also claims in his statement of case for loss of use but also for travelling costs when he has not substantiated this. This is an attempt at double recovery. The claimant as a straightener must have appreciated that he had to prove his claim for property damage. The claim has the hallmarks of an exaggerated claim. I do not think any weight should be attached to the estimate provided when the vehicle was actually repaired. 36. The special damages of $500.00 for the wrecker and $75.00 for the police report are proved. I am also prepared to allow some loss of use at $150.00 per day for 10 days which would have been a reasonable time given the property damage and the claimant s own skills. The claimant could have brought a receipt for the materials he said he purchased and for the front cut of the vehicle. Failing that he could have called the garage owner. No proper explanation has been given for his absence. Further he did not even itemise the specific items he used to repair the vehicle. It may well be he used some materials from the garage itself. The cost of the materials and parts used in my view is not proved. 37. The evidence of his labour costs is also deficient, but not entirely so. I accept he worked on the vehicle. He worked on it over a period of time. But he did not give evidence of how he charges. He did not say if it was by the hour or by the nature of the work and how he arrived at the sum of $15,000.00. He repaired it himself. He could have said exactly what he did and how he arrived at the sum. He could have described the process of repair and the stages it took and how long each took. His evidence was therefore not Page 7 of 8
entirely compelling. For this therefore I will allow the sum of $8,000.00 as being reasonable in the absence of more specific evidence. The special damages claim which I have found proven amounts to $10,075.00 in total. 38. Interest on the total sum of $10,075.00 at 3% per annum from date of claim form 28 March 2013 to date of judgment. 39. Prescribed costs in the sum of $3,022.50. Stay of execution of 28 days. Ronnie Boodoosingh Judge Page 8 of 8