Gunness v Ramdeo
| Jurisdiction | Trinidad & Tobago |
| Judge | Marcus, J. |
| Judgment Date | 06 June 2001 |
| Neutral Citation | TT 2001 HC 84 |
| Docket Number | H.C.A. No. S-1606 of 1995 |
| Court | High Court (Trinidad and Tobago) |
| Date | 06 June 2001 |
High Court
Marcus, J.
H.C.A. No. S-1606 of 1995
Ms. S. Indarsingh for the plaintiff.
Mr. Ernest Koylass for the defendant.
Negligence - Motor vehicle accident — Plaintiff claimed damages for injuries suffered as a result of defendant's negligent driving of a motor vehicle — Defendant sought to rely on plea of contributory negligence — Whether contributory negligence needed to be specifically pleaded — Fookes v. Slaytor [1979] 1 All E.R. 137 considered — Whether granting of amendment to defence prejudicial to plaintiff — Court found defendant negligent and plaintiff contributorily negligent to the extent of 20% — Judgment for plaintiff accordingly — Matter referred to Master in Chambers for assessment of damages.
On 22nd December, 1995 the plaintiff instituted these proceedings against the defendant for the negligent driving of motor vehicle registration number PAU 8061 along the Siparia Erin Road, Duncan Village, on the 7th June, 1992, resulting in injuries and financial loss to the plaintiff.
The plaintiffs case is that while he was a passenger in motor vehicle PAU 8061 driven by the defendant, the vehicle ran off the road and crashed into a wall along the said road. The particulars of negligence as pleaded by the plaintiff include the following:
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(c) Failing to see the said wall in sufficient time or at all to avoid colliding with it or at all;
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(d) Driving too fast in the circumstances and/or without due care and attention;
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(f) Failing to have any or any adequate regard for the prevailing weather conditions;
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(g) Running off the said road and there colliding with the said wall;
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(h) Driving the said vehicle along the said road without paying any or any sufficient regard to the wet slippery condition of the said road;
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(i) Causing or permitting the said vehicle to skid and failing to take any or any adequate measures to correct the skidding of the said vehicle and allowing same to collide with the said wall.
The defence, on the other hand, which was filed and served on the 1st February, 1996 allege, in its material particulars, the following:
“5. Further or alternatively, the matters complained of were caused wholly or in part by the negligence of the driver of a motor vehicle travelling in the opposite direction, whose name and identity are unknown to the defendant, in the driving, management and/or control of the said vehicle, the number of which is also unknown to the defendant.”
Of the particulars given in support of this plea, the following is the most material:
“(c) Driving with the headlights of the said vehicle on full beam, at a time when it was unsafe and/or dangerous to do so and/or failing to dip the said headlights and/or to take all necessary steps to ensure that that the defendant's vision was not blinded.”
Paragraph 3 of the defence alleged that the correct date was 8th and not 7th June, but nothing was made of this divergence of dates at the trial. The Reply of the plaintiff, denying that the accident was caused by the driver of the other vehicle allegedly travelling in the opposite direction, was filed and delivered on the 12th day of February, 1996.
On 9th May, 2001, a notice of intention to seek leave at the trial to amend the defence was filed and served. The proposed amendment omitted the original plea that “the defendant in an effort to avoid a collision with the said unknown vehicle was forced to steer his vehicle” and substituted therefore the plea that the defendant “slowed down and moved (to the left) so as to stop”
Attorneys agreed that the court try the issue of liability only and refer the assessment of damages, if arising, to the Master.
The only ‘viva voce’ evidence adduced at the trial was that of the plaintiff. The plaintiff called no supporting witness and the defendant did not attend the hearing, nor was any evidence called on his behalf.
The plaintiff gave his evidence, which was quite clear and precise save in one respect, in an impressive manner. In that one respect he said in examination-in-chief that: “The car driven by the defendant skidded off the road and crashed into a wall.”
Later on in cross-examination, however, he said: “There was no skidding before hitting the wall.”
In answer to the Court, he proffered the following explanation:
“Mr. Koylass' question was perplexing to me. I did not hear any application of brakes at the time the car veered off the road. By saying that there was no skidding I meant that there was no application of brakes. When I answered Mr. Koylass' question and said that the car skidded and ran into the wall I meant that the car veered into the wall.”
By these latter answers, the court understood the plaintiff to be saying that there was no skidding necessitating a sudden application of brakes (which sometimes produces a screeching sound). By skidding in his first answer he meant that the car veered off the road into the wall.
A notable feature of the instant case is that attorney for the defendant, during his final submissions indicated to the court that he was not challenging the evidence of the plaintiff. Indeed, he was inviting the court to believe it.
In the final analysis this Court accepts the evidence of the plaintiff as to the events as they occurred during the afternoon and evening hours of 7th June, 1992. The facts as found by the court are contained in the plaintiffs narrative below and as otherwise indicated.
Quite early in his cross-examination of the plaintiff, Attorney-at Law for the defendant focused on the activities of the plaintiff and defendant between the hours they came together on the 7th June, 1992. The plaintiffs narrative ran thus:
The plaintiff and the defendant, who lived nearby, were friends. On the day of the accident the defendant collected the plaintiff at the latter's home at about 5.00 p.m. and they went to visit friends. They then moved from the friends to a pool hall where they played pool. During the pool session the plaintiff, the defendant and the friends were all drinking beers. That was not the first occasion of consumption of beers that day by the plaintiff and the defendant. They had begun to drink beers at their friends' home during the two-hour period they had spent there that afternoon.
The plaintiff and the defendant were drinking beers constantly from 7.00 to 10.00 p.m.
After the pool hall, the defendant drove himself and the plaintiff to the home of other friends, but they did not consume any beers there. They talked with these friends for about one and a half hours and then they left (Debe) for San Fernando “to lime.” At that time they had no particular destination in San Fernando and no particular purpose other than to lime.
On the way between Debe and San Fernando the defendant was driving at “a fast pace.” (In examination-in-chief he had earlier said that the defendant was driving at about 100 kilometres per hour during this journey). The plaintiff continued:
“On the way through the cane lands Ramdeo was driving at a fast pace. I did not speak to him about it. The pace was not the same as when he picked me up at 5.00 o'clock. It was not at the same pace… The thought did cross my mind that something could have happened from the way he was driving. I did not share my thought with him… Although I felt it was his vehicle and did not say anything, I realised I could have been injured. I still did not tell him anything. I realised I was putting my own life at risk. There was nothing to prevent me asking to be let out of the car. I took the risk of travelling in the vehicle to San Fernando.”
The plaintiff gave his estimate of the number of bends along the said road as 7 or 8 and that approaching a bend is a recipe for danger and damage from accidents by cars turning over or running off the road. He also accepted that the rate of speed increased the potential for such danger and damage; and that in spite of all this he said nothing to the defendant.
At this stage of the plaintiffs evidence, Ms. Indarsingh objected to the line of questioning on the ground of relevance. Mr. Koylass accepted that there was no plea in the defence relating to his line of questioning. He stated, however, that he wished to apply to amend the defence to allege contributory negligence on the part of the plaintiff.
Mr. Koylass relied on the following authorities to support his contention that the evidence of the plaintiff given in cross-examination supported the plea of contributory negligence:
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(ii) Buckingham v. Desouza (1978) Unreported
He further submitted that no injustice will enure to the plaintiff as a result of the amendment and that the entirety of the material evidence in this regard came from the plaintiff almost voluntarily. He conceded that all costs up to the date of the application for the amendment resulting from the raising of the new plea of contributory negligence would be for the defendant's account.
As an alternative to his application to amend, attorney for the defendant submitted that he was entitled to rely on the plea of contributory negligence without it being specifically pleaded. He stated that he was relying on the Supreme Court Practice (1993) Order 18, rule 8, more, particularly the learning at 18/8/1 and 18/8/12.
The court did not find support for this proposition in the learning cited. Indeed at 18/8/4 and 18/8/17 of the said work will be found statements to the effect that “Contributory negligence must be specifically pleaded…” and “Contributory negligence should be specially pleaded.” (These statements have been repeated at 18/8/5 and 18/8/12 of the 1997 Edition).
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