Annurada Laura Basdeo v Herzen Graham
| Jurisdiction | Trinidad & Tobago |
| Judge | Madam Justice Eleanor Donaldson-Honeywell |
| Judgment Date | 07 February 2023 |
| Neutral Citation | TT 2023 HC 37 |
| Docket Number | Claim No. CV2020-02570 |
| Court | High Court (Trinidad and Tobago) |
(Representative Claimant of the Estate of Latchman Rampersad-Basdeo (1st Deceased) and Aarti Sarah Basdeo (2nd Deceased)
(Joined pursuant to Part 19(2) of the Consolidated Civil Proceedings Rules 2016 (as amended)
(Appointed the Administrator Ad Litem of the estate of Daphne Graham (deceased) pursuant to the Order of the Honourable Madam Justice Eleanor Donaldson-Honeywell dated 29the January, 2021)
the Honourable Madam Justice Eleanor Donaldson-Honeywell
Claim No. CV2020-02570
IN THE HIGH COURT OF JUSTICE
(Sub Registry – San Fernando)
Mr. Ted Roopnarine, Attorney-at-Law for the Claimant
Mr. Kolbe Salim, Attorney-at-Law for the First, Second and Ninth Defendants
Ms. Taurean Dassyne, instructed by Ms. Reeyah Chattergoon, Attorneys-at-Law for the Third, Fourth and Fifth Defendants
Mr. Roger Kawalsingh, instructed by Ms. Ashley Roopchansingh, Attorneys-at-law for the Sixth, Seventh and Eighth Defendants
On 18 August 2021, the Claimant filed an Amended Claim form, seeking reliefs for collisions that occurred on 17 August 2018 near the Chaguanas Overpass on the Sir Solomon Hochoy Highway. Accordingly, this judgment only addresses the issue of liability.
The facts and matters which are common ground or unchallenged were succinctly set out by Counsel for the Sixth, Seventh and Eighth Defendants as follows:
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a. The nature and contour of the roadway – save and except for the First Defendant, all other witnesses confirmed the nature and contour of the highway.
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b. The circumstances which existed at the material time, that is, in the immediate vicinity, the highway was poorly lit, dark, and a little wet as it drizzled slightly.
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c. There were three collisions in the early morning of 17 th August 2018 – the first collision between PCD 9406 and PBU 2495, the second collision between PBU 2495 and PCL 7611, and the third collision between PCL 7611 and TDD 4000.
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d. The first collision between PCD 9406 and PBU 2495 resulted in PBU 2495 coming to a standstill partly on the shoulder and partly on the left lane of the highway's northbound lane.
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e. As it relates to the second collision, the Claimant and the Third, Fourth and Fifth Defendants agree that the left front of PCL 7611 then collided with PBU 2495 whilst it was at a standstill partly on the shoulder and partly on the left lane.
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f. The Claimant's expert and the Third, Fourth and Fifth Defendants agree that the impact with the left front of PCL 7611 and PBU 2495 was a severe impact.
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g. According to the Claimant and the Third, Fourth and Fifth Defendants, the second collision between PCL 7611 and PBU 2495 resulted in PBU 2495 coming to a standstill again partly on the shoulder and partly on the left lane of the northbound lane of the highway.
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h. It is the Claimant's pleaded case, the Third Defendant's evidence, the Sixth, Seventh and Eighth Defendants' pleaded case and the 6 th Defendant's evidence that, following the second collision, PCL 7611 came to a standstill diagonally in the middle of the north bound lane of the highway across two lanes.
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i. TDD 4000 then collided with PCL 7611 while the 2 nd Deceased Claimant (Aarti Sarah Basdeo) had alighted from PCL 7611 to check on the 1 st Deceased Claimant (Latchmin Rampersad-Basdeo), who was seated in the front seat passenger side of PCL 7611.
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j. Following the third collision with PCL 7611 and TDD 4000, PCL 7611 came to a standstill facing north on the no crossing zone to the left of the northbound carriageway of the highway by the merging lane, and TDD 4000 came to a standstill on the left lane of the northbound carriageway of the highway facing south.
Did the First, Third, and Sixth Defendants breach a duty of care, thus making them negligent?
If a Defendant is liable, what is the extent of their liability?
The Court must determine liability by assessing which version of events is more likely, based on the evidence of the witnesses. When there is a sharp conflict of evidence, the Court must evaluate the evidence according to the principles outlined in McClaren v Daniel Dickey 1. To do this, it must compare the evidence of the witnesses against:
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i. Contemporaneous documents;
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ii. The pleaded case; and
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iii. The inherent probability or improbability of the opposing claims.
The Court is aware that when assessing witness credibility, demeanour is less important than thoroughly examining their testimony. In Reid v Dowling Charles and Percival Bain 2, the Privy Council stated:
“ Where the wrong impression can be gained by the most experienced of judges if he relies solely on the demeanour of witnesses, it is important for him to check that impression against contemporary documents, where they exist, against the pleaded case and against the inherent probability or improbability of the rival contentions, in the light in particular of facts and matters which are common ground or unchallenged, or disputed only as an afterthought or otherwise in a very unsatisfactory manner. Unless this approach is adopted, there is a real risk that the evidence will not be properly evaluated and the trial judge will in the result have failed to take proper advantage of having seen and heard the witnesses.”
When assessing the credibility of a witness, any deviation from the pleaded cases can cast doubt on their credibility, as stated in The Attorney General of Trinidad and Tobago v Anino Garcia 3.
There are four elements of the tort, namely:
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(i) A duty of care owed by the Defendant to the Claimant;
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(ii) A breach of that duty;
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(iii)Damage suffered by the Claimant;
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(iv) Which is caused by, and is a non-remote consequence of the breach. 4
The Claimant must prove that the Defendants' negligence caused the injuries. This is known as establishing a causal link. As stated in Clough v First Choice Holidays and Flights Ltd 5:
“The Claimant must establish a causal link between the Defendant's negligence and the injuries, or, in other words, that the injuries were a result of the negligence.”
The law concerning a driver's Duty of Care to other road users is outlined in Halsbury's Laws of England Vol 7 (2015) verify:
“The driver of a vehicle owes a duty of care not only to his passengers but also to pedestrians and other traffic, to drive with reasonable care for their safety…When an accident appears imminent, he is justified is he takes action to avoid the immediate and probably greater degree of danger, though at the risk of injuring his passengers, and the standard by which his conduct is judged is that of the action which a driver of ordinary sense and prudence would have taken in the circumstances…”
The driver of a vehicle on the road has a duty of care to other road users and pedestrians. In Angela Mitchell v Leon Brown and others 6, Rahim J stated:
“it is incumbent upon the driver of a vehicle to take all reasonable steps to ensure the safety of other road users and pedestrians.”
“The duty is to take reasonable care to avoid causing damage to persons, vehicles or property of any kind on or adjoining the road. The standard of care which road-users must exercise is that of the reasonable road-user. The reasonable driver is not entitled to assume that other road-users will exercise
the appropriate degree of care, and if their conduct is within the realm of foreseeability they will be liable for injury: Common Law Series: The Law of Tort. Chapter 13, paragraphs 13.53”
The First, Third, and Sixth Defendants were expected to exercise the degree of care and skill of a reasonably competent driver. This duty included observing the legal speed limit, as per Section 62(1) of the Motor Vehicle and Road Traffic Act Chapter 48:50. Moreover, Charlesworth & Percy on Negligence, as quoted by Rahim J in Angela Mitchell v Leon Brown 7, stated:
“Reasonable care in this context connotes the observation of traffic rules and regulations. Failure to comply with these rules and regulations is a matter to be taken into account in deciding whether there was negligence: Charlesworth & Percy on Negligence (supra) Chapter 10, paragraph 10–127.”
The Highway Code of Trinidad and Tobago at paragraph 55 provides:
“When there is a breakdown, get your vehicle off the road if possible and take the requisite steps to indicate its presence and position by lighting or otherwise to other persons using the road. If you cannot remove it off the road take immediate steps to have it removed as near to the left as possible. See Figure (9).”
Breaches of the Highway Code and the duty of care to other road users can make a person liable for negligence. This was aptly stated by Bereaux J (as he then was) in Tyrone Bristol v Leotha Fortune, Anthony Chin & Ricky Johnson 8.
“The second Defendant was also negligent in not providing adequate warning to other users of the highway. In my judgment he had a duty of care so to do given the danger posed by the truck's presence on the highway after the accident.”
Counsel for the Claimant relied on the case of Christopher Cunningham v Debulin Ewan & Ors 9, to support their contention that the Sixth Defendant was driving too fast, and the skid raises the presumption of negligence. The case stated:
“[27] Reference is also made to the Trinidadian case of McAree v Achille (1970) High Court,...
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