Jason Renn v Shirlenay Beal

JurisdictionTrinidad & Tobago
JudgeMadame Justice Karen Reid
Judgment Date22 January 2024
Neutral CitationTT 2024 HC 25
Docket NumberClaim No. CV2012-04980
CourtHigh Court (Trinidad and Tobago)
BETWEEN
Jason Renn
Claimant
and
Shirlenay Beal
First Defendant
Capital Insurance Limited
Second Defendant
BEFORE

THE HONOURABLE Madame Justice Karen Reid

Claim No. CV2012-04980

IN THE HIGH COURT OF JUSTICE

SUB REGISTRY, SAN FERNANDO

Appearances:

Claimant: Mr. Rennie Gosine with Ms. Rena Ramlogan

First Defendant: Ms. Lea Allison Jacob

Second Defendant: not appearing and unrepresented

Introduction
1

By Claim Form filed on 6 December, 2012, the Claimant instituted proceedings against the First and Second Defendants for damages for personal injuries and consequential loss arising out of a motor vehicle collision that occurred on 12 February, 2012 along Golconda, Union Hall, San Fernando (“the accident”). The Claimant was the driver of motor vehicle registration number PAY 2872 (owned by his brother, Troy Renn) whilst the First Defendant was the owner of motor vehicle registration number PCB 8276. The Claimant's nephew, Daniel Beal, was the driver of the First Defendant's vehicle at the time the accident.

2

The Second Defendant is the First Defendant's insurers. However, the claim was discontinued against the Second Defendant by Notice filed on May 1, 2013.

3

The trial was held on 8 May, 2023 at the conclusion of which the parties were directed to file their closing submissions with authorities. To date the First Defendant has filed no submissions, while the Claimant filed submissions some six months out of time. The matter now stands for decision.

The Claimant's Case
4

The Claimant case is essentially as follows:

  • i. He was driving in an easterly direction along Golconda, Union Hall, when the First Defendant's servant/agent negligently drove the First Defendant's vehicle such that it came around a bend, skidded on the roadway and into the path of, and colliding into, the Claimant's vehicle. Further, at the time of the impact, the roadway was wet and he had slowed his vehicle to a standstill. 1

  • ii. As a result of the collision, the Claimant sustained severe personal injuries which were supported by medical records 2 as follows:

    • i. Severe basal fracture of the neck and the right femur;

    • ii. Laceration to his right lower face;

    • iii. Injury to his right lower limb;

    • iv. Deformity and swelling over his right thigh with decreased range of movement;

    • v. Sever comminuted fracture of the midshaft of the right femur;

    • vi. Fracture of his right patella;

    • vii. Complete subtaloid dislocation of his right foot;

    • viii. Numbness over his right hallux and second toe;

    • ix. Medial scar over the right ankle measuring 13.4 cm;

    • x. 2.2 cm scar over his medial right tibia.

  • iii. The Claimant claimed, by way of special damages, loss of earnings and medical and other expenses.

The First Defendant's Case
5

By way of defence, the First Defendant contended that:

  • i. Her nephew, Daniel Beal (“Daniel”), borrowed her vehicle to go to purchase a tank of gas in order to finish cooking lunch that day. However, at the time of the accident he was on a frolic of his own since he used the vehicle to go to Princes Town to pick up his girlfriend without her consent. In the circumstances, Daniel was not her servant and/or agent at the time the accident occurred.

  • ii. In any event, the Claimant was contributorily negligent in that he was driving too fast for the rainy conditions that day and was unable to bring his vehicle to a stop in time to avoid the accident. She bases this averment on a conversation she had with the Claimant when

    she visited him at the San Fernando General Hospital after the accident in which he allegedly told her that he was unable to stop his vehicle in time to avoid the collision because he had been late for church and was rushing.
Issues:
6

The issues to be determined in this case are:

  • i. Whether Daniel Beal was driving with the consent and authority of the first Defendant and if so, did he act as the First Defendant's agent?

  • ii. Whether Daniel Beal negligently drove the First Defendant's vehicle and is therefore liable for the accident?

  • iii. Whether the Claimant was contributorily negligent at the time of the accident?

  • iv. If liability has been established, the quantum of damages to be awarded to the Claimant.

Issue 1: Whether Daniel Beal was driving with the consent and authority of the First Defendant and if so, did he act as the First Defendant's agent.
7

The issue as to whether the First Defendant is liable to compensate the Claimant at all in this case turns on whether Daniel was the servant and/or agent of the First Defendant at the time the accident occurred.

8

Regarding agency in cases such as the present, the Board in Rambarran v Gurrucharran (1970) 1 W.L.R 556, stated the following at page 751-752 and 753 of the judgment:

Where no more is known of the facts than that at the time of an accident the car was owned but not driven by A, it can be said that A's ownership affords some evidence that it was being driven by his servant or agent; but when the facts bearing on the question of service or agency are sufficiently known, then the problem must be decided on the totality of the evidence.

In Hewitt v Bonvin a motor car driven by the son of Mr. Bonvin was involved in an accident and a passenger in the car was killed as a result. The administrator of the deceased sued Mr. Bonvin senior for damages. Owing to a previous accident Mr. Bonvin senior had told both his sons that they were never to drive his car without his permission. He did, however, authorize his wife to give such permission, and on this occasion she gave it to the son concerned who wished to take home two girlfriends whom neither the father nor the mother knew. Lewis J held that in the circumstances the son, John Bonvin, was driving the car as the servant or agent of his father, and gave judgment against the father. This was reversed in the Court of Appeal. It was there held: 1. That if the plaintiff were to make Mr. Bonvin senior liable he must establish that the son was driving the car at the time as the servant or agent of the father. 2. That this cannot be established by mere proof that the son was driving a vehicle which at the time was the property of his father, although in the absence of any further explanation that might be some evidence of the proposition. 3. The evidence in the case showed no more than that the son was lent the father's car, and the father had no interest or concern in what the son was doing. 4. The fact that the son drove with the consent of the father (given through the mother) did not of itself establish service or agency. 5. Ultimately the question of service or agency is always one of fact.

After considering the English cases of Barnard v Sully and Hewitt v Bonvin and certain New Zealand and Australian cases dealing with the same problem, the Court of Appeal stated the principles which it deduced therefrom thus: 1. The onus of proof of agency rests on the party who alleges it. 2. An inference can be drawn from ownership that the driver was the servant or agent of the owner, or in other words, that this fact is some evidence fit to go to a jury. This inference may be drawn in the absence of all other evidence bearing on the issue, or if such other evidence as there is fails to counterbalance it. 3. It must be established by the plaintiff, if he is to make the owner liable, that the driver was driving the car as the servant or agent of the owner and not merely for the driver's own benefit and on his own concerns . It is also interesting to observe that Hutchinson J, one of the majority who gave judgment for Mr Rowe, remarked in the course of his judgment that the fact that his wife had the right to use the car whenever she pleased went a long way to destroy any presumption of agency on her part. In coming to their conclusion the New Zealand Court of Appeal cited certain Australian decisions, where the like approach to similar problems has been adopted.

In the present case it is clear that any inference, based solely on the appellant's ownership of the car, that Leslie was driving as the appellant's servant or agent on the day of the accident would be displaced by the appellant's own evidence, provided it were accepted by the trial judge, which it was. Leslie had a general permission to use the car. Accordingly it is impossible to assert, merely because the appellant owned the car, that Leslie was not using it for his own purposes as he was entitled to do. The occasion was not one of those specified by the appellant as being an occasion when, for one of the appellant's own purposes, a son would drive it for him. He was ignorant of the fact that the son had taken the car out that day; and he did not hear of the accident until a fortnight after it happened. In the face of this evidence the respondent clearly did not establish that Leslie was driving as the appellant's servant or agent. He had to overcome the evidence of the appellant which raised a strong inference to the contrary. The burden of doing this remained on the respondent and the trial judge held that he had failed to discharge it. His conclusion on this point was one of fact and he had ample evidence to support it.”

9

The Court of Appeal in Vaughn Williams v Farzan Rahim Civil Appeal No. 220 of 2009, considered the above authority and stated as follows at paragraph 15 of the judgment:

Rambarran v Gurrucharran clearly establishes that ownership of a motor vehicle is prima facie evidence that a driver of that motor vehicle is the servant or agent of the owner. In these circumstances agency is an inference based on the fact of ownership. However this inference can be rebutted by the owner. Rambarran v Gurrucharran makes the point that an owner “could not, except at his peril, leave the court without any other knowledge than that the car belonged to him”. That is to say, if an owner chose not to or failed to repel the inference of agency arising out of...

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