Clinton Lett v SM Jaleel & Company Ltd; Trinidad and Tobago Electricity Commission

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice Robin N. Mohammed
• Judgment Date: 10 July 2020
• Neutral Citation: TT 2020 HC 196
• Court: High Court (Trinidad and Tobago)
• Docket Number: Claim No. 2014-00112
• Date: 10 July 2020

IN THE HIGH COURT OF JUSTICE

Before the Honourable Mr. Justice Robin N. Mohammed

Claim No. 2014-00112

Between

Clinton Lett

Claimant

and

SM Jaleel & Co. Ltd

Defendant/Ancillary Claimant

and

Trinidad and Tobago Electricity Commission

Ancillary Defendant

Appearances:

Mr. Anthony Bullock for Claimant

Mr. Ken Sagar instructed by Ms. Natasha K. Baiju-Patrick for the Defendant/Ancillary Claimant

Mr. Beresford Charles instructed by Mr. Darill J. Giles for the Ancillary Defendant

I. Introduction

1 This action was commenced by Claim Form and Statement of Case filed on 13 January 2014 against SM Jaleel & Co Ltd, the Defendant, (hereinafter “SM Jaleel”). In short, Clinton Lett, the Claimant, (hereinafter “Mr. Lett”) claimed the sum of $92,000.00 and damages for trespass to property which occurred because of an incident on 14 January 2010. On 2 May 2014, SM Jaleel entered its appearance and therein gave notice of intention to defend the Claim.

2 SM Jaleel subsequently filed its Defence on 3 June 2014. The Defendant also filed an Ancillary Claim against Trinidad and Tobago Electricity Commission, the Ancillary Defendant, (hereinafter “T&TEC) on 2 June 2014. In short, SM Jaleel claimed against T&TEC, inter alia, indemnity and/or contribution in respect of any judgment, including costs and interest, that may be obtained against SM Jaleel in respect of Mr. Lett's Claim as well as consequential loss and damage arising out of the incident on 14 January 2010.

3 Thereafter, Mr. Lett filed an Amended Statement of Case on 8 July 2014 now seeking a sum of $115,400.00. T&TEC entered its appearance on 8 July 2014 and filed its Defence to the Ancillary Claim on 25 July 2014.

4 The first case management conference (CMC) fixed for the 14 October 2014 was preserved and all directions put on hold on the basis that all parties jointly requested the opportunity to address their minds to the issue of limitation raised in the Ancillary Defendant's Defence, as well as to consider any possibility of an amicable resolution of the Claim and Ancillary Claim.

5 The first CMC was adjourned on several occasions to allow parties to advance their settlement negotiations, which came to an unfruitful end on the 1 April 2015 when the parties informed the Court that all avenues of reaching an amicable resolution had been exhausted without success. As well, the limitation point was no longer pursued. Accordingly, the timetable for the future progress of the Claim and Ancillary Claim was fixed, the trial being set for the 17 November 2015.

6 The Claimant filed his own witness statement in support of his case on 15 June 2015. SM Jaleel filed a witness statement of Collin Andall, former employee of SM Jaleel, on 11 June 2015 and T&TEC filed a witness statement of Jamel Reid, a Substation Engineer of T&TEC, on 11 June 2015.

7 On the date fixed for the trial, only the Claimant's case was completed. The trial was therefore adjourned part heard to the 20 January 2016 for the Defendant/Ancillary Claimant to begin its case. However, the trial had to be adjourned on two further occasions, one on account of the personal predicament of the Claimant's attorney, and the other on the basis that the Defendant's witness was involved in a motor vehicular accident on his way to the trial. The trial was eventually completed on the 23 June 2016 whereupon the Court gave directions for the filing of closing submissions on specific dates.

8 The Defendant/Ancillary Claimant and the Ancillary Defendant complied with the Court's directions but there was no compliance on behalf of the Claimant. On enquiries carried out by court staff, it appears that the Claimant's attorney, Mr. Bullock, had some issues in locating his file. These issues of misplacing his court file on the matter were borne out in the affidavit of the Claimant, Mr. Lett, in support of an application for an extension of time to file his closing submissions notwithstanding the lapse of time. The extension was granted and the Claimant's closing submissions were finally filed on the 25 July 2019.

II. Factual Background

9 Mr. Lett is the joint owner of a rental residential property situate at Old St. Joseph Road, Laventille which he leased to nine tenants (hereinafter “the property”). It is Mr. Lett's case, that on 14 January 2010, at around 8a.m., a motor vehicle registration number TCJ 7806 (hereinafter “the truck”), driven by the agent and/or employee and/or servant of SM Jaleel, along Old St. Joseph Road, Laventille, negligently collided with the electrical wire running from an electricity pole to the property, causing damage to the property and loss to Mr. Lett.

10 Mr. Lett contended that the said collision was caused by the negligence of the servant and/or agent and/or employee of the Defendant, SM Jaleel; therefore, SM Jaleel is vicariously liable for loss. Mr. Lett set out the Particulars of Negligence as follows:

• a) Driving too fast and/or at a rate of speed that made the vehicle difficult and impossible to properly control and/or manoeuvre.

• b) Failing to apply the vehicle's brake and/or to apply them in time.

• c) Failing to steer and/or control the vehicle so as to avoid the collision.

• d) Res ipsa loquitur.

• e) Failing to manoeuvre the vehicle at all or quickly enough away from the electrical wiring.

11 SM Jaleel's truck collided with and damaged the electrical wiring, causing damage to a panel box and an electrical meter box that were connected to the property. As a result of the damage to these electrical installations, the electrical supply to the property had to be and was disconnected. The electrical supply could not be, and in fact was not, reconnected until the property was re-wired.

12 As a consequence of the property being without electricity, Mr. Lett's tenants terminated their tenancies thereby causing loss of rental income in the sum of $11,700.00 per month to Mr. Lett for a period of eight months. The Particulars of Loss were set out as follows:

a) Cost of repairing and rewiring the property	$21,800.00
b) Loss of rental income for a period of eight months	$93,600.00
The total sum claimed by Mr. Lett was	$115,400.00.

13 In response to the Claim, SM Jaleel averred that on 14 January 2010, it allowed and/or permitted and/or consented to its employee, Collin Andall (hereinafter “Mr. Andall”), to use and/or drive its truck, which is 11 feet 2 inches high. According to SM Jaleel, the truck was proceeding in an easterly direction along Old St. Joseph Road, near Pashley Street, Laventille, when upon passing a parked vehicle on the left, the truck veered to the right and came into contact with the electrical wire running from the electricity pole to Mr. Lett's property. As a result, the electrical wire began to spark.

14 SM Jaleel's case against T&TEC is that the contact with the electrical wire on 14 January 2010 was not caused as a result of any negligence on the part of Mr. Andall, but because of the negligence of T&TEC, namely, the faulty installation of the electrical wire from the electricity pole to the property. Consequently, SM Jaleel further contended that if Mr. Lett suffered loss and damage, it was not caused or contributed to by the negligence of SM Jaleel's servant and/or agent, but it was caused on the part of or contributed to by T&TEC. Therefore, SM Jaleel is not liable to Mr. Lett.

15 The Particulars of Negligence on the part of T&TEC were set out as follows:

• a) The Ancillary Defendant caused and/or permitted the said electrical wire to be installed lower than the regulated height of 20 feet from the electrical 1 pole base to point of connection and 17 feet from ground to point of connection to house pursuant to Chapter 54:72 Section 8 (sic) 2.

• b) Failing to maintain the regulated height of the said electrical wire so as to ensure the safe use of the road by the public and/or the Ancillary Claimant.

• c) In the alternative, the electrical pole and the height of the installation constituted a nuisance to road users and was allowed by the Ancillary Defendant to be such a nuisance. The Ancillary Claimant will contend that by erecting/installing the said electrical wire on a pole lower than the regulated height created a source of danger upon the highway, which the Ancillary Claimant as a member of the public using the highway without negligence came into contact with the said installation.

16 T&TEC, in response, contended that the incident, on 14 January 2010, was caused wholly by the negligence of Mr. Andall, the driver of the truck and being the agent and/or employee and/or servant of SM Jaleel.

17 T&TEC averred that the minimum requirement for the installation of electrical wire from the ground or road level not exceeding 11,000 volts to the conductors is 6.1metres or 19.703feet. Additionally, the minimum requirement for the connections of electrical wire from the base level to the conductor on residential premises is at

least 3.7metres or 11.59 metres (sic) 3 but it varies depending on the height of the premises

18 T&TEC contended that there were no reports or complaints received by the Troubleshooting Department for that area for that particular period. It is the normal practice that whenever a report is received, T&TEC would cause an emergency response team to be dispatched immediately to rectify the situation. However, no report was received at any time leading up to the incident.

19 T&TEC further contended that SM Jaleel misinterpreted section 8 of the Act, as it is not applicable to the Ancillary Claim as pleaded. Furthermore, if there was damage to Mr. Lett's property, it was caused wholly by SM Jaleel.

III. Issues

20 Having reviewed the Un-Agreed Statement of Issues filed by SM Jaleel and T&TEC, the pleadings, evidence and submissions, I am of the view that the following are the live issues for determination in this matter:

1. Was the Defendant negligent...