Adogwa v Balkaran et Al

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Bereaux, J.A,Jamadar, J.A.
• Judgment Date: 22 June 2012
• Neutral Citation: TT 2012 CA 9
• Docket Number: Civil Appeal 103 of 2009
• Date: 22 June 2012

Court of Appeal

Mendonca, J.A.; Jamadar, J.A.; Bereaux, J.A.

Civil Appeal 103 of 2009

Adogwa

and

Balkaran et al

Appearances:

Mrs. P. Hadad-Maraj appeared on behalf of the appellant

Mr. R. Ramoutar appeared on behalf of Patricia Joseph, Jason Joseph and Motor One Insurance Company Limited.

Civil practice and procedure - Default judgment — Striking out of claim.

Bereaux, J.A

I agree with the judgment of Mendonca J.A. and have nothing to add.

N. Bereaux,

Justice of Appeal

1 Mendonça, J.A.: This is an appeal from the decision of the judge made at a case management conference striking out the appellant's claim against the respondents on the basis that the default judgment obtained against the fifth and sixth defendants (John Noreiga and Jerry Manette) in default of appearance precluded the appellant from proceeding against the respondents.

2 The appellant's claim was for damages for personal injuries suffered by him as a result of a motor vehicular collision. In the statement of case as originally filed, the appellant claimed that at all material times he was a passenger in motor vehicle registration number TAO 2292 when it was involved in a collision with motor vehicle registration number HBE 6212 at the intersection of the Mausica Road and the Priority Bus Route as a consequence of which he suffered serious personal injuries. He claimed that the collision was caused either by the negligence of the driver of HBE 6212 “or alternatively” the driver of TAO 2292. Consequently the appellant joined as defendants in the claim the owner and driver of each of the vehicles and their insurers. They are the respondents to this appeal.

3 The claim was defended. The driver and the owner of HBE 6212 filed and served a joint defence. In it they denied liability and claimed that the collision occurred as a result of the negligence of the driver of TAO 2292. The insurer of HBE 6212 served a separate defence in which it denied any allegation of negligence in the statement of case and averred, inter alia, that its liability as insurer was limited to “the statutory minimum” as provided for in the Motor Vehicles Insurance (Third-Party Risks) Act.

4 The owner, driver and insurer of TAO 2292 delivered a joint defence. They admitted the collision but denied any negligence. They further averred that there was another vehicle involved in the accident namely, HBU 2096, which at the time was driven by Jerry Manette. They alleged that the collision was caused wholly or in part by Jerry Manette as the driver of that vehicle.

5 Subsequent to service of the defence of the owner, driver and insurer TAO 2292, the appellant obtained leave to add Jerry Mannette as a defendant. By a later application the appellant applied for and obtained permission to add as another defendant John Noreiga, who he alleged to be the owner of the vehicle driven by Jerry Mannette, and to amend his statement of case (I shall hereafter refer to John Noreiga and Jerry Mannette together as the added defendants). In the amended statement of case the vehicle driven by Jerry Manette was inadvertently referred to as PBT 9390. For convenience, however, I shall refer to the vehicle by its correct registration number, HBU 2096.

6 By the amended claim form and statement of case the appellant alleged that the collision was caused by the negligence of the driver of TAO 2292, “or alternatively” the negligence of the driver of HBE 6212 “or alternatively” by the negligence of the driver of HBU 2096. The appellant therefore claimed damages for personal injuries against the owners and drivers of the said vehicles and in the case of the insurers of TAO 2292 and HBE 6212 the appellant sought a declaration that they were liable to indemnify their insured in respect of any judgment obtained against them. In the case of the added defendants, it appears that they were uninsured.

7 The added defendants were served with the amended claim form and statement of case but failed to enter an appearance and on December 4th, 2008 the appellant obtained judgment against them in default of appearance with damages to be assessed and costs.

8 On January 30th, 2009 a case management conference was held. At the conference attorney-at-law appearing for the appellant was asked what course he proposed to adopt given that a default judgment was obtained against the added defendants. He indicated that he wished to keep all other defendants (the respondents to this appeal) in the proceedings while he considered his client's position. The case management conference was adjourned to March 27th, 2009.

9 On the adjourned date attorney-at-law for the appellant indicated that he wished to proceed against the other defendants. Counsel for the owner, driver and insurer of TAO 2292 however submitted that it was not necessary to have his clients remain in the matter because the default judgment obtained against the added defendants made them fully liable to the appellant. On that basis, he submitted, the claim should be struck out against his clients. The judge accepted this submission. In his written reasons the judge stated simply that he was “persuaded” by the submission and struck out the claim against the owner, driver and insurer of TAO 2292 and on the same basis also struck out the claim against the owner, driver and insurer of HBE 6212.

10 The appellant now appeals. Counsel for the appellant submitted that the judge was wrong to strike out the claim against the respondents. She argued that the appellant's claim against the respondents and the added defendants constituted, as against the owner and driver of each vehicle, separate acts of negligence. There were therefore three separate torts, each actionable and a judgment in respect of one could not be an answer to the other. Therefore the entry of the judgment against the driver and the owner of one of the vehicles involved in the collision could not be a bar to a claim against the other parties. Further, counsel submitted that where a claim could only be in the alternative against one or the other two defendants, the entry of a judgment of one defendant would be a bar to proceedings against the other since the liability of one defendant would be inconsistent or incompatible with the liability of the other. That was however not this case as this is not a case where the liability could only be in the alternative. Alternatively, counsel submitted that the default judgment would only be a bar to the appellant proceeding with the claim against the other parties if the appellant had unequivocally elected to proceed against the added defendants to the exclusion of the other parties. In this case however there was no such election.

11 The driver, owner and insurer of HBE 6212, namely the First defendant/respondent, the Second defendant/respondent and the First co-defendant/despondent, were not represented on the appeal. The other respondents being the driver, owner and insurer of TAO 2292 were represented by counsel. He submitted that the case management judge was correct to strike out claim against the respondents. He agreed that the appellant's pleaded case was one of alternative liability of the respondents or the added defendants. It was not concurrent, or joint or contributory. The default judgment obtained against the added defendants was final as to the issue of liability. The appellant therefore chose to and obtained final and unequivocal judgment on the issue of liability against the added defendants. Accordingly the appellant cannot now seek to pursue any claim as to liability for the accident against the other parties.

12 The issue in this appeal, therefore, is whether in the circumstances of this case, the appellant having obtained judgment against the added defendants can proceed against the respondents.

13 The appellant's claim, as I have mentioned above, is based in the tort of negligence. The appellant has alleged that the collision was caused either by the negligence of the driver of TAO 2292 or alternatively by the negligence of the driver of HBE 6212 or alternatively by the negligence of the driver of HBU 2096. The appellant has therefore claimed against the respondents in the alternative and not as he might have done, that the collision occurred by reason of the negligence of all of them.

14 In Rukhmin Balgobin v. South West Regional Health Authority [2012] UKPC11 a similar question arose. In that case the claimant, who was a medical technician and ambulance driver, was injured when she lifted a heavy patient on a stretcher. She sued the South West Regional Health Authority (SWRHA) contending that the SWRHA was her employer. Her claim was based in breach of contract and negligence. The SWRHA served a defence denying liability in which it alleged that the claimant's employer was TriStar Latin America Limited (TriStar). As a consequence the claimant sought and obtained leave to join TriStar as a defendant. TriStar did not enter an appearance to the writ, and the claimant obtained judgment against it in default of appearance with damages to be assessed.

15 The trial judge found that the claimant's employer was the SWRHA and that it had contributed to the occurrence of the injuries of the claimant to the extent of 80%. The SWRHA however argued that the evidence could not support a finding of joint employment and that the default judgment already entered was therefore conclusive on the issue and amounted to an election by the claimant that precluded her from pursuing her claim against the SWRHA. In response counsel for the claimant applied to withdraw the judgment it had entered against Tri Star. The judge decided that this amounted to an application to discontinue and gave permission to the claimant to withdraw the default judgment and to discontinue the claim against TriStar. Judgment was entered in favour of the claimant against SWRHA for 80% of the damages...