Adisa Govia v Kevin Williams
| Jurisdiction | Trinidad & Tobago |
| Judge | P.A. Rajkumar JA |
| Judgment Date | 30 June 2021 |
| Neutral Citation | TT 2021 CA 25 |
| Docket Number | Civil Appeal: CA P338/2016 |
| Court | Court of Appeal (Trinidad and Tobago) |
IN THE COURT OF APPEAL
P. Rajkumar JA
R. Boodoosingh JA
J. C. Aboud JA
Civil Appeal: CA P338/2016
Civil Claim: CV2012-00062
Mr. Anand Singh instructed by Mrs. Natasha Baiju-Patrick for the Appellant
Mr. Jerome Maxime instructed by Mr. Jonathan Rattan for the Third Respondent
I have read the judgment of the Honourable Boodoosingh JA. I agree with it and have appended some observations on the application of the law relating to illegality which had assumed significance in the court below.
Peter A Rajkumar
Justice of Appeal
I have read the judgments of my learned brothers P. A. Rajkumar JA and R. Boodoosingh JA. I agree with them and have nothing to add.
James C. Aboud
Justice of Appeal
The appellant, Adisa Govia (Mr Govia), appeals the decision of the trial judge, who dismissed the appellant's claim for personal injuries suffered in a vehicular accident. At the time of the accident he was a front seat passenger in a vehicle driven by the second respondent Kayode Kirk (Mr Kirk). Mr Govia pleaded he sustained injuries as a result of the negligence of Mr Kirk. The third respondent, New India Assurance Company (T&T) Limited (New India), insurer of the vehicle driven by Mr. Kirk, pleaded that Mr Kirk did not have the permission of the owner of the vehicle, the first respondent Mr Kevin Williams, to use the vehicle in the manner it was used on the day of the accident, and therefore declined to accept liability under the policy of insurance.
New India contended that Mr Kirk had received restricted permission to use the vehicle from Kevin William's brother, Mr Bernard Williams who had the vehicle in his possession with the permission of Mr Kevin Williams. New India asserted that Mr Kirk's restricted permission from Mr Bernard Williams was to use the vehicle to attend a class reunion at Movie Towne in Port of Spain between the hours of 6:00 pm and 11:00 pm on 2 May 2010. However, Mr Kirk used the vehicle to transport a friend to Siparia. The accident occurred in San Fernando at around 12:30 a.m. on 3 May 2010. Both of these locations are a considerable distance away from Port of Spain and in a different direction.
The trial judge found that permission given by the insured was exceeded by Mr Kirk. The trial judge also found that Mr Govia was not wearing his seatbelt at the time of the accident and ruled that this was in breach of section 43 C of the Motor Vehicles and Road Traffic Chap. 48:50 (MVRT Act). The court concluded that this constituted an illegality sufficient to debar Mr Govia's claim for damages and dismissed his claim.
Two issues were raised on this appeal. These were:
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a. Whether the trial judge was wrong in finding that the insured's permission was exceeded by the driver of the car.
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b. Whether the trial judge was wrong in deciding that the insurance coverage was removed from the injured passenger by his failure to have his seatbelt fastened while he was a front seat passenger.
In summary, this is what the pleadings were. Mr Kevin Williams gave permission to Mr Bernard Williams to use the vehicle for private and pleasure purposes. He also gave him permission or authority to allow other persons to use the vehicle for private and pleasure purposes. Bernard Williams then gave permission to Mr Kirk, a relative, to use the vehicle on the night of the incident. The pleaded terms of that permission given by Mr Bernard Williams to Mr Kirk were more limited, and were for a journey to Movie Towne, Port of Spain to attend a class reunion within a five hour window, 6 pm to 11 pm. New India contends that the permission given by Mr Bernard Williams was exceeded by Mr Kirk, who was therefore not driving with the permission of the policyholder.
The trial judge addressed this issue at paragraph 13 of the judgment as follows:
“In his pleadings, KW [Kevin Williams] sought to set up an implied permission Defence. To me, this was abandoned in his Witness Statement, where he categorically stated that at all material times, KK [Mr Kirk] was not his servant or agent, and that he loaned his brother (sic) the car for specific purposes of attending a class reunion at Movie Towne between the hours of 6pm and 11pm. This he confirmed vehemently under cross examination, and reiterated that his vehicle was to be used for no other purpose. He was adamant that the permission was given to attend the class reunion in Movie Towne between 6pm and 11pm.”
In order to fully examine the judge's findings, it is necessary to identify the pleaded cases and the evidence led on this issue.
At paragraph 4 of the Amended Statement of Case, Mr Govia pleaded that by a policy of insurance, New India agreed to insure Kevin Williams in respect of any liability arising out of the use of motor vehicle PCE 6544. At paragraph 7, Mr Govia also detailed the day and place that the accident occurred. Mr Kirk was named as servant and/or agent of Kevin Williams and/or an authorized driver of Kevin Williams's vehicle which was being driven with Kevin Williams's “permission and/or consent.” Mr Kirk lost control of the vehicle which flipped over on the road several times and Mr Govia was ejected from the vehicle. Paragraph 7 of the re-amended statement of case stated:
“On or about the 3 rd day of May, 2010, while the claimant was a lawful passenger in motor vehicle PCE – 6544 which was being driven south along the Uriah Butler Highway, at a fast rate of speed, in the Island of Trinidad by Kayode Kirk, the servant and / or agent of the First Named Defendant and / or authorized driver of the First Named Defendant's vehicle driving with the First Named Defendant's permission and / or consent so negligently drove and / or managed and / or controlled motor vehicle PCE – 6544 south along the Uriah Butler Highway that his tyre blew out causing him to lost (sic) control of the said motor vehicle thereby permitting the same to skid and flip over on the road several times ejecting the Claimant from the said motor vehicle in consequence whereof the Claimant has suffered personal injuries, loss and damage.”
Kevin Williams responded as follows at paragraphs 4.1 and 4.2 of his Defence:
“In answer to paragraph 7 of the Statement of Case this Defendant admits so much as alleged that one Kayode Kirk was the driver of the said motor vehicle on the said date but specifically denies that the said Kayode Kirk was his servant and or agent at the material time and or at any time or at all and says that he gave his brother Bernard Williams a general permission to use the said vehicle for his private and pleasure purposes and further allowed his said brother to give any other person permission to drive the said motor vehicle for their private and pleasure purposes only. The said Kayode Kirk would have had the Defendant's implied permission at all material time. (Emphasis supplied)
The said Kayode Kirk was given permission by my said brother to use the said vehicle for his private and pleasure (sic) to attend a class reunion at Movie Town Port of Spain between the hours of 6:00pm to 11:00 pm and for no or any other purpose.”
New India pleaded that there was a policy of insurance in effect but the terms of the policy included a Limitation of Use clause as well as the Class of Persons entitled to drive the vehicle. The clauses provided:
5) Persons or Classes of persons entitled to drive:
(a) The Policyholder;
(b) Any other person who is driving on the Policyholder's order or with his/her permission….
6) LIMITATIONS
Use only for social, domestic and pleasure purposes and for the Policyholder's business.
THIS POLICY DOES NOT COVER:
(1) Use for hire or reward, racing competitions, rallies or trials the carriage of goods other than samples in connection with any trade or business or use for any purpose in connection with the Motor Trade.
New India contended that Mr Kirk drove the vehicle without the permission of the owner in breach of clause 5 of the policy. Additionally, New India was not obliged to pay the appellant pursuant to section 10(1) of the Motor Vehicle Insurance (Third Party Risks) Chapter 48:51 (MVI). This section provides:
“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.”
Additionally, New India contended that section 12(A) of the said Act is of no assistance to the appellant as the vehicle was used without the knowledge or permission of Kevin Williams. This section provides:
“12A. Where a certificate of insurance has been delivered under section 4(8) to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured by the policy as regards liability in respect of the death of or bodily injury to persons being carried in or upon the motor vehicle at the time of the occurrence of the event out of which the claims arise by reference to whether or not those persons are carried gratuitously or belong to any particular...
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