REPUBLIC OF TRINIDAD AND TOBAGO Claim No. CV 2014-00133 IN THE HIGH COURT OF JUSTICE BETWEEN PRIME EQUIPMENT RENTALS LIMITED Claimant AND ANAND SINGH Defendant AND THE NEW INDIA ASSURANCE COMPANY (TRINIDAD & TOBAGO) LIMITED Co-Defendant BEFORE THE HONOURABLE MADAM JUSTICE JUDITH JONES Appearances: Mr. K. Mc Quilkin instructed by Mr. R. Mungroo for the Claimant. Mr. V. Deonarine for the Defendant and the Co-Defendant. RULING 1. As a result of a collision between a motor vehicle owned by the Claimant, Prime Equipment Rentals Limited, and a motor vehicle owned by the Defendant, Anand Singh, and insured with the Co-Defendant, New India Assurance Company the driver of the Claimant s vehicle, an employee of the Claimant, died. By this action, founded in negligence, the Claimant seeks to recover from Singh damages in the sum of $196,045.45. The damages comprise expenses incurred by the Claimant to satisfy workmen s compensation payments with respect to the deceased employee ( the deceased ) in the sum of $199,897.45. The Co-Defendant is joined to the action as Page 1 of 11
Singh s insurers pursuant to section 10 A of the Motor Vehicles (Third-Party Risks) Act 1. 2. Singh and the Co-Defendant (collectively referred to as the Defendants ) do not deny that Singh s motor vehicle was at the time being driven by his servant or agent but deny negligence and further aver that the statement of case discloses no cause of action against them. 3. By agreement the parties determined that the following questions of law were to be answered by way of preliminary issue: 1. Whether the Claimant's case as pleaded discloses a cause of action; 2. Whether the Co-Defendant is liable under the Motor Vehicle Insurance (Third-Party Risks) Act and/or under any policy of insurance issued or at all to cover the loss allegedly incurred by the Claimant; 3. whether the Defendant owes the Claimant any duty of care in negligence and, if so, whether the damages claimed are to remote. The answers to these questions will determine the issues of law between them. 4. According to the Claimant the case as pleaded is an ordinary run of the mill running down action brought by the owner of one vehicle against the owner of another vehicle for damages suffered as a result of the negligence of its servant and/or 1 Chap. 48:51 Page 2 of 11
agent in the driving of its motor vehicle. 5. The Defendants submit that the Claimant s cause of action is in reality founded on an indemnity pursuant to section 15 (b) of the Workmen s Compensation Act 2 ( the Act ) rather than negligence at common law. Their short point is that the case as pleaded rests solely on the common law relief of negligence rather than a claim pursuant to the Act and that this is fatal to the claim. 6. As I understand the Defendants submission it is that since the only damage claimed is the recovery of monies expended under the Act and since this is in reality a claim pursuant to a remedy created by statute these sums are not recoverable under a common law claim in damages and can only be recovered from Singh by an action brought pursuant to section 15 of the Act. In other words the relief sought by the Claimant is not a relief available to it under a claim for damages for negligence but rather only available as a claim for indemnity under the Act. Other than insist that there is a cause of action in negligence against Singh I have not received much assistance from the Claimant in this regard. 7. The Act provides for the payment of compensation to workmen for personal injuries, including death, caused by accident arising out of and in the course of his or her employment 3. The scheme is compulsory. Compensation under the Act is calculated by reference to the type of injury; the monthly earnings of the workman and the existence of dependents. 4 2 Chap. 88:05 3 section 4 of the Act. 4 Section 5 of the Act. Page 3 of 11
8. Section 15 of the Act provides that: Where the injury for which compensation is payable under the Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect of such injury: (a) the workman may, subject to section 4(4), take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for such compensation; and (b) if the workman has recovered compensation under this Act, the person by whom the compensation was paid, and any person who has been called on to pay indemnity under section 14 shall be entitled to be indemnified by the person so liable to pay damages, and all questions as to the right to and amount of any such indemnity shall, in default of agreement, be settled by action or, by consent of the parties, by a Commissioner. 9. In this regard therefore it is clear that the section permits the employer to be indemnified with respect to money paid in workmen s compensation from the person liable to pay damages with respect to the workman s injury and to recover same by action if necessary. 10. In order to claim the indemnity provided by the Act however there must be established: (a) a legal liability in that person to pay damages with respect to the Page 4 of 11
injury exists; (b) that the Claimant is liable under the Act to the payment of compensation with respect to that employee and (c) that such compensation has been paid with respect to that employee. There is no doubt that the Claimant has a cause of action against the Defendant pursuant to the Act the success of which is dependent on it proving negligence on the part of the Defendant. 11. Given the stance taken by the Claimant it would seem to me that the first question to be considered is the last question posed by the parties, that is, whether the Defendant owes the Claimant any duty of care in negligence and, if so, whether the damages claimed are to remote. Unfortunately, despite the fact that the questions for my determination were framed by the parties, neither party has specifically addressed me on this question. The Defendant relies on his submission with respect to the cause of action being in reality one for an indemnity rather than negligence and the Claimant merely maintains that it has a cause of action in negligence. 12. I accept the Claimant s submission that there exists a cause of action in negligence against Singh. It cannot be disputed that, as the owner of the vehicle in which the deceased was driving, the Claimant has a cause of action against Singh in negligence and a fortiori the Co-Defendant pursuant to section 10A of the Motor Vehicles Insurance (Third-Party) Risks Act 5 ( the Third-Party Risks Act ) for damages incurred by it as a result of the negligence of Singh s servant and/or agent in the driving of the motor vehicle. In this regard therefore it is clear that Singh as the owner of the other vehicle owes a duty of care to the Claimant. 5 Chap.48:51 Page 5 of 11
13. The real question is the extent of that duty of care. As pleaded the only damage claimed by the Claimant in this case is not property damage with respect to his vehicle but rather the recovery of money paid to satisfy compensation under the Act. Does this duty of care extend to the type of damage claimed in the action or is the damage claimed too remote. In my opinion it is too remote. 14. A robust and sensible approach to this very important area of the study of remoteness will more often than not produce, I think, a instinctive feeling that the event or act being weighed in the balance is too remote to sound in damages for the plaintiff. 6 Scrutton LJ in The San Onofre put it another way: the question whether damage is sufficiently direct consequence of negligence to be recoverable, or is too remote, is rather a question of first impression. 7 15. Instinct, first impression or not at the end of the day this is a question of law for my determination. The question here is whether the damage complained of arose directly as a result of Singh s breach of duty in the use of the motor vehicle on a public road or as a result of the Claimant s statutory responsibility to the deceased as an employer. If the damage complained of is as a direct consequence of Singh s breach of duty then it is not too remote and therefore recoverable. If however it is as a result of an intervening cause, namely the Claimant s statutory responsibility as an employer, then it is too remote. 6 Watkins LJ in Lamb v Camden London Borough Council: [1981]QB625 at page 647 7 [1922] P 243 at page 253. Page 6 of 11
16. While ultimately the damage suffered by the Claimant arose out of the death of his employee I am satisfied that it is not a direct consequence of the accident but rather was incurred as a result of the Claimant s responsibility as an employer to provide for the payment of compensation to workmen for injuries suffered in the course of their employment 8. The Claimant s liability for workman s compensation payments occurs not from the collision but from the statutory requirement that he pay compensation for injury to his employees. In this regard the Claimant seeks to recover money paid, not as owner of the vehicle, but in his capacity as employer. It would seem to me that the requirement that the Claimant pay compensation under the Act is an independent cause intervening between the negligence and the loss incurred by the Claimant and sought to be recovered from the Defendants. 17. If I look at the claim another way, as a claim for pure economic loss, which it is, I arrive at the same conclusion. The Claimant s claim does not arise as a natural consequence of any property loss suffered by the Claimant as a result of the accident. It does not arise from any damage caused to its motor vehicle. Nor can it be said that the Claimant as an employer or at all has any property in the deceased. The claim arises solely from the injury suffered by the deceased for which the Claimant was by statute required to provide compensation. By this claim therefore the Claimant in fact seeks not damages for property loss but rather the recovery of pecuniary losses that do not in any way touch or concern any property loss suffered by it. 18. Save in cases coming within the Hedley Byrne & Co. Ltd v Heller & Partners Ltd 9 situation pure economic loss, that is pecuniary claims that are not the 8 The long title to the Act 9 [1964] A.C. 465 Page 7 of 11
direct or immediate consequence of physical damage, are regarded as too remote to be recoverable as damages. 10 19. In a case coming out of the Supreme Court of Canada 11 on similar facts as the instant case it was held that the Appellant, the Crown, could not recover money which it was made to pay to its injured servant pursuant to an act which required it to pay compensation to any employee who sustained personal injury arising out of or in the course of employment. The Crown s case, as is Claimant s here, was framed in negligence. In that case it was determined that the money sought to be recovered was not the proximate and direct result of the act of which complaint was made and was too remote to be recoverable. 20. Kerwin J. voiced this opinion: In the present case, if the plaintiff s property had suffered damage as a result of the negligence of the respondent s employees the plaintiff would undoubtedly have a good cause of action but Christian 12 was not the property of the plaintiff. The payment by the plaintiff in accordance with the Government Compensation Act is not a direct consequence of the particular interest which is affected but it too remote. 13 21. I agree with the reasoning of Kerwin J. In the instant case while the Claimant did suffer some property damage, namely to his vehicle, the damage 10 SCM Ltd v WJ Whittall [1971] 1QB 337 see in particular the judgment of Denning MR at pages 344 letter E to 345 letter D. 11 The King v Canadian Pacific Ry Co. [1947] SCR 185. 12 The injured employee 13 at page 190. Page 8 of 11
claimed in this action is not damage with respect to that property. The claim is purely for money expended by him as the employer of the deceased. 22. In the circumstances I am of the opinion that while there is a cause of action in negligence vested in the Claimant by virtue of the collision that cause of action is in respect to damage suffered by the Claimant in his capacity as owner of the vehicle. The action seeks the recovery of monies paid pursuant to the Claimant s responsibility under the Act. This is not in my view recoverable in an action for negligence since the expense was not incurred as a direct consequence of the negligence of Singh and is too remote. It is therefore open to me to strike out the claim 14 as disclosing no grounds for bringing an action seeking the return of money paid pursuant to a liability to pay workman s compensation. 23. In response to a question posed by me as to whether the words further and/or other relief could assist the Claimant if I determined that there was no cause of action the Defendants submit, rather ingeniously, that it is not open to the Court to apply these words to save the claim in circumstances where the Claimant does not consider that there is such a need. More fundamentally the Defendants submit that the words further and/or other relief only allow additional relief of the same type as claimed to be granted. A claim for an indemnity under the Act is not the same type of relief as a claim for damages for negligence. In any event, they submit, relief under the Act is not supported by the case as pleaded. Simply put no facts have been pleaded to prove (b) above. Nor has the Claimant placed before the Court any facts relevant to the computation of the workmen s compensation if payable. 14 The definition of statement of case in the Part 2 of the CPR includes a claim Page 9 of 11
24. I accept that latter submission. It accords with the statement of the law made after a review of the relevant authorities by Neuberger J in Kirin-Amgen v Transkaryotic Therapies (No 3): In summary it appears to me that where there is a claim for further or other relief, then, unless the claimant obtains permission to amend a particulars of claim to broaden the relief claimed, the position is as follows. Firstly, relief would not normally be accorded in respect to a claim of a type which is not pleaded. Secondly, relief will not be accorded which is inconsistent with the relief specifically claimed, but that does not, of course, preclude alternative relief being granted, for instance, damages or declaration in lieu of an injunction, or damages in lieu of specific performance. Thirdly, relief will not be granted if not supported by the allegations in the pleaded case. Fourthly, relief will not be accorded, save in very unusual circumstances, if the defendant reasonably claims that the claim for it takes him by surprise. 15 25. For the purpose of the arguments before me I have not treated with the claim for investigation fees. The statement of case does not particularise to what investigation these fees relate. As pleaded they can be considered pure economic loss. In any event a claim for $3,852.00 has no place in the High Court. 26. Since in my opinion there is no valid claim before it would seem to me that in these circumstances there is no need for me to treat with the other questions 15 [2002]IP&T 331 at 339 g-j. Page 10 of 11
posed for my determination. However it would seem to me that since the answers to the questions posed follow from the positions taken by me for completeness I propose to briefly answer these questions. I am satisfied that the Claimant s case as pleaded does not disclose a cause of action which would entitle him to the relief sought. 27. Similarly the simple answer to the question whether the Co-Defendant is liable under the Motor Vehicle Insurance (Third-Party Risks) Act and/or under any policy of insurance issued or at all to cover the loss allegedly incurred by the Claimant is no. The loss incurred by the Claimant is not as a result of the damage to his property caused or arising out of the use of Singh s motor vehicle but rather it is loss caused by virtue of the employment of the deceased by the Claimant. This therefore is not a loss required to be covered by Motor Vehicle Insurance (Third- Party Risks) Act. 28. Accordingly all three questions are answered in favor of the Defendants. Dated this 20 th day of May, 2015. Judith Jones Judge Page 11 of 11