Mohammed v Kissoon

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Hassanali, J.A.,Braithwaite, J.A.
• Judgment Date: 09 December 1982
• Neutral Citation: TT 1982 CA 31
• Docket Number: Civil Appeal No. 29 of 1979
• Date: 09 December 1982

Court of Appeal

Kelsick, C.J. (Ag), Hassanali, J.A.; Braithwaite, J.A.

Civil Appeal No. 29 of 1979

Mohammed

and

Kissoon

Appearances:

S. Marcus for the appellant

L. Sanguinette for the respondent

Damages - Personal injury — injuries to his chest and lumbar region.

Tort - Contributory Negligence

Hassanali, J.A.

1 This action arose out of an accident involving two taxis HN 4879 and HR 5572 owned respectively by the appellant and the respondent. The accident occurred at about 10.30 a.m. on Ash Wednesday, the 7th March, 1973 while the respondent was driving his taxi on the eastern side of what is referred to in this cake as “the triangle” in Princes Town. The appellant sued the respondent in negligence for damage to his taxi and for personal injuries which he sustained as a result of the accident.

The trial judge found the respondent liable in negligence but also:

• (i) found the appellant guilty of contributory negligence; and he apportioned blame as one third to the appellant and two thirds to the respondent.

• (ii) assessed the special damages i.e. cost of repairs to the appellant's car at $350.00 and loss of use of that car for 5 days at $15.00 per day - a total $425.00; and general damages at $21,000.00 of which $8,000.00 was for “loss of earning capacity;”

• (ii) ordered the respondent to pay: the special and general damages in the proportion of blame attached to him, interest on $6,000.00 of the general damage at the rate of 6% per annum as from the date of the service of the writ; interest on $283.22 of the special damage at the rate of 3% per annum as from the date of the accident; and the appellant's costs to be taxed.

2 No evidence was led on behalf of the respondent at the trial; and he has not cross-appealed.

The substantial grounds of appeal argued are:

• (1) the trial judge erred in holding the appellant guilty of contributory negligence;

• (2) the trial judge erred in failing to make an award of special damages to the appellant for loss of earnings from the date of the accident to the date of trial; and

• (3) the award of general damages was inordinately low.

The undisputed evidence in the case was:

3 Part of the eastern side of the triangle (i.e. Cacique Street) nearest to the curb wall was at all material times used as a taxi stand, such that taxis facing south, the direction in which traffic flows - a one way street - on that side of the triangle.

4 On the 7th March, 1973 at about 10.00 a.m. the appellant's taxi was parked in that stand immediately next to and north of the respondent(s. While the appellant was leaning against the right rear door of his taxi and facing west the respondent “pulled out” of the stand(. While driving past the appellant's taxi towards the main road (the south side of “the triangle”) the respondent, “suddenly pulled back” his taxi towards and alongside the appellant's taxi thus squeezing the appellant against the side of his vehicle and “rolling” him along its right side and towards its right front, causing physical injury to the appellant and damage to his taxi along its right side from the rear fender to the (right) front.

5 The learned judge's reasons for his conclusion that the appellant was guilty of contributory negligence appear in the following extract from his judgment:

“It was Ash Wednesday, 7th March, 1973 around 10.30 a.m. and traffic was heavy at the triangle … It was the p1aintiff who chose the dangerous position of the right side of the vehicle in the path of traffic moving from north to south and, put himself in peril. I accept the contention of the defendant that the plaintiff would have suffered no injuries had he not been negligent …

“I am satisfied that the plaintiff failed to take adequate care for his own safety and that his failure to take care was a contributory cause of the accident. Had the plaintiff stood on the left side of the vehicle, in front of it, or behind it the accident would not have occurred. Indeed when cross examined the plaintiff admitted this. Standing where he did he put himself in the path of vehicles travelling north to south on Cacique Street.”

6 The learned judge correctly identified the relevant principle that a plaintiff would be guilty of contributory negligence if it is shown that he failed to take reasonable care for his own safety and that such failure was a contributory cause of the accident. With respect however he erred in his conclusion that the appellant was in the instant case guilty of contributory negligence. And he so erred because he misapprehended the facts on which he based that conclusion.

7 The evidence did not show that “the traffic was heavy” around the triangle “at the time of the accident.” Notwithstanding P.C. Richardson's opinion that the triangle is the busiest part of Princes Town and that “Ash Wednesday would be a busy day” the uncontroverted evidence was that there was only “a little traffic” at the time of the accident. And indeed there was no evidence of any traffic west of the respondent's car at the time he “pulled back” on the appellant's car.

8 Unfortunately the learned judge's misapprehension of the facts seems to have led him to the finding that the appellant had “[chosen] the dangerous position on the right side of the vehicle and put himself in peril.” The evidence does not support the finding “standing where he did (the appellant) put himself in the path of the vehicle …” The evidence was that at all material times the appellant was leaning against his car (a common practice among taxi drivers) and not standing as it were, in the open roadway; and that there was available road space of over 20 feet for the safe passage of the respondent's taxi west of the appellant's taxi and of the appellant as the former “pulled out” from its parked position.

9 The accident resulted from the respondent's suddenly pulling back his taxi on to the appellant(s. The sudden “pulling back” remained unexplained, although this act constituted the negligence of which the respondent was found guilty. The evidence does not suggest, and the learned judge does not find, that the explanation lay in the volume or the nature of the traffic at the relevant time, which the learned judge erroneously found to be “heavy.”

10 It is a well established principle that an appellate court will not lightly differ from a trial judge on a finding of fact but a distinction is to be drawn, between the perception of facts and the evaluation of facts. And as was pointed out in Benmax v. Austin Motor Company Ltd. [1955] 1 All E.R. 326, when there is no question of credibility of witnesses but the sole question is the proper inference to be drawn from specific facts an appellate court is in as good a position to evaluate the evidence as the trial judge and should form its own independent opinion though it will give weight to the opinion of the trial judge.

11 It is not disputed that the onus lay on the respondent herein of proving contributory negligence against the appellant. As has already been noted, there was road space of over 20 feet to the west of the appellant's taxi. The appellant was at all times in full view of the respondent as the real evidence confirms. The first half of the respondent's taxi had already gone past the appellant's when the respondent pulled back(on to the; appellant thus squeezing the appellant against and rolling him forward along, the right side of his taxi.

12 Section 29 of the Supreme Court of Judicature Act, 1962 so far as is relevant here reads:

“29(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage …

(2) Where damages are recoverable by any person by virtue of the foregoing subsection, subject to such reduction as is therein, mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been at fault.”

13 As has already been noted, the learned judge's error in his perception of the facts led to his erroneous finding that the appellant was guilty of contributory negligence, and, accordingly to the learned judge's apportionment of blame between the parties.

14 However, even on his finding of facts, it seems to me that his apportionment of blame based thereon ought not to beg allowed to stand.

15 The very - and unusually - low percentage of blame assigned to the appellant suggests that in the learned judge's opinion the extent of the appellant's negligence was minimal; and I feel impelled to the view that the learned judge was not mindful that to constitute contributory negligence it must have “ materially” contributed to the personal injury or to the damage to his taxi of which the appellant complained. Accordingly I think this court will in any event be justified in re-assessing the apportionment because of what I consider the substantial misjudgment of the factual basis therefor. See Charlesworth on Negligence 6th edn. para. 1207. In the result I would absolve the appellant of any responsibility for the damage.

16 The respondent has failed to discharge the onus upon him of proving contributory negligence. In my judgment the appellant was not guilty of contributory negligence because his conduct did not amount to negligence materially contributing to his personal injury or to the damage to his taxi. See Charlesworth ibid para. 1181 et seq. In the circumstances of this case it is both immaterial and irrelevant that the appellant testified that in fact had he “stood on the left side of the vehicle, in front of it or behind it, the accident would not have...