Caribbean Packaging Industries v Gabriel
| Jurisdiction | Trinidad & Tobago |
| Judge | Best, J. |
| Judgment Date | 25 May 1990 |
| Neutral Citation | TT 1990 HC 87 |
| Docket Number | S 247 of 1989 |
| Court | High Court (Trinidad and Tobago) |
| Date | 25 May 1990 |
High Court
Best, M.
S 247 of 1989
Mr. P. Jamadar for the plaintiff.
Mr. O. Jenvy for the defendant.
Damages - Damage to car which was involved in a motor traffic accident — Assessment.
On 22 nd November 1986, there was a motor vehicular accident in the car park of the Queen's Beach Hotel, Mayaro. A Datsun 280C Registration Number PAO-6476. This assessment arose out of the above situation.
The Statement of Claim filed herein lists the particulars of special damage thus:
“To repair PAO-2236 (parts and labour)
$6,173.73
Loss of use for eight (8) days at $100.00 per day
800.00
Certified Copy
10.00
$6,983.73
The following items of special damage were agreed:
Labour
$1,660.00
Certified copy
10.00
Costs of right door
1,650.00
Additionally, the plaintiff had abandoned its claim for loss of use.
The first witness for the plaintiff was Stanley Clarke. He testified in chief that he was the driver of the plaintiff's vehicle on the relevant date, and that he had not witnessed the accident. However, upon being informed of same he inspected the vehicle and found: “…the right front and back doors were damaged. The right rear and front fenders were scratched. The bumper on the right side that cover around the right front fender was damaged. The strips (moulding) on the doors and the sides of the car were damaged.”
He continued that the plaintiff expended certain sums on parts and labour for the changed unit, and that those sums were refunded by the plaintiff's insurers — N E M (West Indies) Insurance Limited. In cross-examination the witness indicated that the damage he had outlined earlier had been pointed out to him by the defendant. Then followed a rigorous cross-examination of this witness as to the minute details of the parts of the said unit that were damaged, at the end of which I formed the opinion that Mr. Clarke's view of the damage done to the said unit was unassailed.
The next witness for the plaintiff was Richard McComie, an employee of N E M (West Indies) Insurance Limited. This witness gave his occupation as Assistant Motor Claim Adjuster. Mr. McComie testified that he had inspected the damaged unit on 25 th November, 1986 and observed that there was damage to the right side of the said unit.
Strenuous objection to this witness's evidence was made by counsel for the defendant, and this is a convenient time to deal with same.
The Insurance Act Chapter 6 of 1980 at section 28 Part III reads, inter alia:
No person in respect of any class of insurance business, carry on business as …. and adjuster …. unless he is registered under this part.
A person who contravenes the provisions of this section is guilty of an offence and is liable on summary conviction to fine not exceeding ten thousand dollars or to imprisonment for twelve months or both such fine and imprisonment.”
Thus, it seems that Parliament in its wisdom, has regulated the business, as in the case of, motor insurance coverage as it relates to adjusting, and has imposed certain statutory restrictions on persons by whom the profession of motor vehicle adjusting may be exercised.
The court's outlook on behaviour that contravenes such restrictions have been encapsulated by Lord Ellenborough, C.J. in Langton v. Hughes (1813) M & S at page 596: “What is done is contravention of the provisions of an Act of Parliament cannot be made the subject of an action.”
So we have the paradigm of Young v. Buckles [1952] 1 K.B. 220 where it fell to be determined whether a claim for professional charges by an Architect/Surveyor whose action were apparently caught by the mischief of the Defence General Provisions U.K.1939 could be sustained.
However the problem that confronts this Court is not contractual but rather evidential — should this Court preside over and accept the evidence of a witness whose admitted norms of behaviour seemingly have been forbidden by Parliament?
The words of Cohen, L.J., to me, give an insight into the stronghold of section 28: “Whenever the legislature prescribes a duty a penalty for the breach of it, it must be assumed that the duty is prescribed in the interest of the community or some part of it.” — Woolfe v. Wexler [1951] 1 All E.R. at page 642.”
From Mr. McCombie's job description and work actually done I am safely hold that he was an In-House Adjuster. Was he then carrying on the business of an adjuster at the critical moment? Was the net of section 28 meant for the In-House-Adjuster the entrepreneur or both? The key to this problem, I believe, lies within the breast of the phrase “…. carry on business….”
In Graham v. Lewis (1888) 22 Q.B.D. 1 (C.A.) at page 5 Fry, L.J. stated:
“I think the expression ‘carry on business’ is not ordinarily used in the sense of a person being busy or doing business merely. A butler employed to look after his master's plate and perform the other duties of his occupation may be a very busy man, but he could not be said to be carrying on business. A man who busies himself about science, the volunteer movement or politics, though he may have a great deal of business to transact in respect of these matters does not carry on business. I think that the expression has a narrower meaning that of doing business or having business to do. In my opinion it imports that the person has control and direction with respect to the business carried on for some pecuniary gain.”
The above was extrapolated from Vol. 1 (A-C) of Words and Phrases Legally defined (2 nd Edition), and a perusal of all the other definitions indicate that the ingredients essential to show that one was carrying on business are...
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