Charles v The Attorney General of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Rajkumar, J. |
| Judgment Date | 25 June 2008 |
| Neutral Citation | TT 2008 HC 160 |
| Docket Number | 2092 of 2002 |
| Court | High Court (Trinidad and Tobago) |
| Date | 25 June 2008 |
High Court
Rajkumar, J.
2092 of 2002
Mr. A. Francis for the plaintiff
Mr. Haran Ramkaramsingh for the defendant
Damages - Negligence — Personal injury — Motor vehicle accident — Policeman driving vehicle assigned to him by Police Service — Whether there was a latent defect in tyre — Defendant failed to satisfy burden of showing that the accident would have occurred despite it having exercised all reasonable due care.
The plaintiff's claim is for damages in respect of injury caused to the plaintiff when he was involved in a motor vehicular accident on 21st June 2001 when a tyre on that vehicle suddenly deflated causing him to lose control of it.
The single issue in this case, therefore, is whether there was a latent defect in the tyre for which the defendant is liable.
I award the sum of $50,000.00 in general damages with interest at the rate of 12% per annum from 20th June 2002 to the date of judgment.
The defendant is to pay the plaintiff's costs certified fit for advocate attorney at law
The plaintiff was a Police Constable and he was driving a vehicle assigned to him by the Police Service. In a statement of claim filed on 20th January 2003, it is pleaded that the right rear tyre of that vehicle was defective and that the tread area of the right rear tyre of the vehicle suddenly and unexpectedly stripped away from the tyre casing and the tyre deflated. The vehicle immediately began somersaulting across the highway.
It is alleged that the defendant was, or its servants or agents were, negligent. Various particulars of negligence were pleaded but, based on the evidence, the following are material:
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(1) Failure to heed or observe that the right rear tyre of motor vehicle PBJ-3813 was defective.
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(2) Failure to warn the plaintiff that the right rear tyre of the said vehicle might be defective;
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(3) Required, caused or permitted the plaintiff to drive motor vehicle PBJ-3813 when at least one of its tyres was defective and the vehicle was therefore in an unsafe condition;
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(4) Failure to take reasonable care to provide an efficient and/or effective system for inspecting and/or maintaining the tyres of motor vehicle PBJ-3813 thereby exposing the plaintiff to unnecessary risk.
By amendment on 16th December 2003, the plaintiff further contended that it would rely upon the doctrine of res ipsa loquitur.
In response, the defendant contended that the right rear tyre was defective due to a latent defect of which the defendant had no knowledge and which could not have been discovered by the exercise of reasonable diligence.
He testifies that around 10:00 AM while proceeding south on the Uriah Butler Highway, he heard a flapping sound coming from the rear of the vehicle. As he glanced in his rear view mirror in an attempt to determine what might be the cause of this unusual noise, the said motor vehicle shut down. It lost power and flipped into the air. The motor vehicle landed on its hood in a bushy area across the highway.
That is the extent of his evidence in his witness statement.
In the case of Henderson v. Henry E. Jenkins & Sons and Evans [1969] 3 WLR 732, the defence of latent defect was considered by the Court. The defendants in that case contended that they had proved that regular inspection of the outer visible part of certain tubes in the braking system was all that ordinary practice required, that they did that and that they were not bound to do more. The House of Lords held that the extent of the inspection which is necessary must in every case depend on whether the owner of the vehicle is or ought to be aware of any facts which would indicate to him that some unusual defect may have developed which would not be disclosed by the normal kind of inspection.
The evidence in this regard comes from the defendant via one Rabindranath Jogie by witness statement filed on 14th May 2008. He testified that he inspected the tyre. The tyre was inflated. The fact that it was inflated meant that the driver would be able to exercise control of the vehicle as the tyre could roll on the road. He testified that the glue and bonding agents holding the thread [sic] to the carcass of the tyre had separated but the strip had not completely come off. This separation is more likely to occur with a re-threaded [sic] tyre than with a brand new tyre. It could still happen with a brand new tyre but it is very rare. If it did, that would be due to a fault in the manufacturing process. The tyre would have to be analysed in a laboratory to pinpoint the exact fault.
That never happened on the evidence in this case.
There is also the evidence of George Newton who in his witness statement (admitted by consent) testified that his inspection revealed that the right rear tyre could have been defective prior to the accident. While the car was in motion, the right rear tyre deflated or there was a blow out. As a direct result of the deflation of the said tyre, the bead (that is, the rigid part of the tyre) which would serve to secure it on the wheel rim cut off the outer layer of the tyre. His view was that the tyres fitted on PBJ-3813 were not the ideal tyres for this type of vehicle (a Ford Taurus). These tyres have a low thread [sic] or thin outer rubber running the surface of the tyre which provides tyre road grip and protects the carcass or the base of the tyre from damage. With low threaded tyres, any deflation in the tyre would cause the bead to cut the outer layer leaving the surface of the tyre exposed and therefore resulting in loss of control of the motor vehicle. George Newton is a Motor Vehicle Inspector I.
Apart from the fact that he differs from Mr. Jogie in testifying that the tyre was deflated, he confirms the plaintiff's case. It is clear from his evidence that in certain circumstances which were foreseeable, that tyre was not ideal for that type of motor vehicle and any deflation in the tyre would cause the bead to cut the outer layer resulting in loss of control of the motor vehicle. It appears that if Mr. Newton had inspected this vehicle before the accident, it would have been apparent to him that the circumstances existed for an accident of the type that actually occurred.
An attempt was made to file an additional witness statement, on a date set for submissions. The Court declined to allow such evidence to be filed after the conclusion of the evidence in the matter and in circumstances where the proposed witness statement was not only not before the Court but had not been served upon plaintiff's attorney.
In the circumstances of this case, therefore at the conclusion of this trial there was no evidence as to the system of maintenance of the vehicle, unlike in the Henderson case. Further
“If a defendant sets out a latent defect as the cause of the accident, then it must also be shown that the accident would have occurred despite all reasonable care on the part of the defendant.”
See Charlesworth on Negligence, 6th Edition at paragraph 278 referring to the decisions in Davey v. New Merton Board Mills [1959] A.C. 604; Pearce v. Round Oak Steel Works [1969] 1 W.L.R. 595; as well as Henderson v. Henry E. Jenkins & Sons [1970] A.C. 282. Bain v. Mohammed (1963) 7 WIR 213 was a case of inevitable accident where the Court of Appeal held that in the case of brake failure the onus was upon the owner of the vehicle to show that it was due to some cause which was inevitable. This is similar to the onus on a party who alleges latent defect.
Also in Charlesworth on Negligence, 10th Edition, paragraph 5-105 under the heading “Latent defect” it is stated:
“Where the explanation advanced is that there was a latent defect in some part of the material concerned, the burden is on the defendant to prove it. A latent defect is one which cannot be detected by reasonable care and skill.
Where it was sought to rely on a latent effect, as the sole cause of an accident, the onus is upon the defendant to establish that fact and to show that the accident had occurred despite their having carried out all proper maintenance.”
See also the decision of the Honourable Justice Stollmeyer in the case of Bowrin...
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