Ramessar v Trinidad and Tobago Electricity Board

• Jurisdiction: Trinidad & Tobago
• Court: High Court (Trinidad and Tobago)
• Judge: Rees, J.
• Judgment Date: 06 July 1968
• Neutral Citation: TT 1968 HC 14
• Docket Number: No. 21 of 1959
• Date: 06 July 1968

High Court

Rees, J.

No. 21 of 1959

Ramessar

and

Trinidad and Tobago Electricity Board

Appearances:

W.J. Alexander for plaintiff E. Thorne with him.

Raymond Hamel-Smith for defendant.

Tort - Negligence

Rees, J.

1 This action was commenced by writ dated January 15, 1959, by the plaintiff, a wood-contractor of St. Mary's Village, Moruga, against the Trinidad and Tobago Electricity Commission, a body corporate, and the sole and exclusive authority to generate and supply electrical energy in any part of the country by virtue of the provisions of the Trinidad and Tobago Electricity Commission Ordinance Ch. 37 No. 5. By his statement of claim delivered on March 10, 1966, as amended, the plaintiff claims for loss sustained through the negligence of the Commission and/or its agents or servants in felling trees on the plaintiff's timber ( viz: logs and sleepers) then lying on the ground and covering the same on January 16, 1958, and divers days thereafter on Crown Lands at Edward Trace, Moruga. By its defence delivered on March 223, 1966, the Commission denies negligence, and in para. 7 pleads that if it did cause the alleged trees to be cut down in the forest it did so in the course of the exercise of its powers and of the construction of a main through the said forest for conducting electricity for the working of its undertaking. By para. 8, the Commission relies of the provisions of the Trinidad and Tobago Electricity Ordinance Ch. 9 No. 4 of the Revised Laws of Trinidad and Tobago.

2 It will be convenient to act out in chronological order a summary of the events which give rise to this claim. The plaintiff has been engaged for the past 30 years in extracting timber from Crown's Lands and, in accordance with the practice which obtained in 1957, deposited the sum of $600.00 with the Conservator of Forests towards the purchase of trees from the forest. He granted licences to out balata and mora trees in the Victoria-Mayaro Reserve. License 602 F/1957 dated May 20, 1957 covered the period October 4, 1957, to January 6, 1958, and licences 1271A and 1271B dated October 26, 1957 covered the period November 18, 1957, to February 20, 1958. The royalties and fees for the trees were deducted from the plaintiff's deposit. The trees were duly stamped by the Forest Ranger and under the supervision of Jerome Brathwaite, an employee of the plaintiff, were later out and fashioned into 129 balata sleepers and 75 mora logs. On December 5, 1957, two removal permits 17081 and 17082 were issued to the plaintiff under licences 1271A and 1271B of 1957 respectively, and on the 12th November 1957, another removal permit was issued to the plaintiff under licence 602F of 1957. The logs and sleepers which bore the initials of the plaintiff were left in 29 different spots in an area of about ¹/₂ mile in length and 120 feet in width awaiting removal to San Fernando by the plaintiff.

3 In the same year, 1957, the Commission was preparing to erect lines for the transmission of electrical energy from Moruga and Guayaguayare. For the protection of persons and property by reason of contact with, or the proximity of, the transmission lines it became necessary to clear of all brush and vegetation a 10' wide pathway directly under the intended course of the lines, and to fell all trees standing on each side of the pathway for a distance of 50' – 100'. The Commission invited tenders to carry out the task and the tender of Seegobin Rampersad, a tree-felling contractor, was accepted on November 11, 1957.

4 The Commission advised Rampersad to start cutting immediately (See exhibit S.R.2) and as a consequence ha labourers and axe men who under a foreman set about felling the trees and clearing the pathway. During the operations It Rampersad paid periodical visits to the forest in order to pay his men and see that the work was carried out. One Rostant supervised the work on behalf of the Commission, and would tell Rampersad the direction in which to cut but not how to cut. Rampersad purchased some of the felled trees from the Commission but had to obtain two licences Nos. 572/58 and 140/58 in his own name in order to get the necessary removal permits (J. C.B.2.3.4.) to move the timber to Penal Rock Road. Harold Bissessar and Errol Molino, two are men who were employed with Rampersad during early the part of the year 1958 gave evidence. Bissessar says that while he was felling trees in the clearing he called Rampersad's attention to some logs marked “J.R.” lying on the ground and after a conversation with Rampersad he, Bissessar, continued to fell the trees on top of the logs. He stopped working in February, 1958, Errol Molino says that while he was engaged in squaring logs on a day in January, 1958, which he cannot remember, he saw trees falling on the plaintiff's logs. Forest Ranger Brown says that in 1958 when he visited the forest he saw the butts of some of the plaintiff's logs which he had stamped some time before, covered by several species of large trees, some with branches 12 to 15 feet high in the area cleared for running the high tension lines. Rampersad denies that the trees were felled on anybody's logs but I prefer to accept the evidence of Bissessar, Molino and Brown.

5 On March 20, 1958, the plaintiff's solicitors wrote to the Commission claiming damages, for the loss of 106 mora logs and 62 balata sleepers. The Commission's reply is dated August 21, 1958 and reads as follows:–

“Trinidad and Tobago Electricity Commission

Area Office:

COR. IRVING & SUTTON STREETS

SAN FERNANDO

TRINIDAD, B.W.I.

21st August, 1958.

T.M. Kelshall & Sons,

Ca Harris Promenade,

SAN FERNANDO.

Claim of Jokhan Ramesar

6 I wish to refer to correspondence on the above subject ending with your letter of August 6, 1958. I have now had the matter investigated and. regret to inform you that the results of the investigation do not appear to support the claim of your client.

7 It appears that originally, as a result of tree cutting operations carried out on behalf of the Commission in the Moruga area, 6 logs, and not; 106 logs and 62 sleepers as claimed by your client were covered by trees cut down. Upon receiving the complaint of your client several attempts were made to have your client visit the site with our representative. Your client failed to keep a number of appointments and eventually his foreman visited the site and the trees were removed from the 6 logs as requested by your client's foreman.

8 “I am further informed that the logs in question are some mile and a half in the forest and require to be dragged this distance before they can be loaded on a truck. At this distance, because of the high cost of such transportation, the logs are of little value to the owner. I regret, therefore, that I cannot entertain the claim of your client.

Yours faithfully

J.K. Long

Area Superintendent.”

9 It will be observed that the Commission is clearly making an admission that logs were covered although differing as to the quantity so covered. The name of the foreman referred to in this letter is not mentioned but Rampersad says that the plaintiff's foreman was Boobool. The plaintiff denied this. Having had the advantage of seeing and hearing these witnesses I find as a fact that Boobool was not the plaintiff's foreman during the material time. I entertain no doubt that Seegobin Rampersad and his workmen in the course of their operations felled trees upon and covered the plaintiff's logs and sleepers in such a manner and to such an extent as to render some of them inaccessible to the plaintiff.

10 Those being the facts, as I find them, I turn now to consider the legal position in the case. The material question is: Is the Commission liable for the loss suffered by the plaintiff. Counsel for the Commission has advanced numerous reasons why the plaintiff should not recover in this action, but I think that his contentions are mainly based on three grounds. Firstly, that the action is misconceived because the essential ingredients of the tort of negligence are missing; secondly, that even if the Commission is found to be negligent, “secs. 23 am 77” of the Trinidad and Tobago Electricity Commission Ordinance expressly provide compensation for damage done to any person by reason or in consequence of the exercise of its statutory powers and thirdly, the action is statute barred.

11 It is well established that the essential ingredients of the tort of negligence are (i) the existence of a duty to take care owing to the plaintiff by the defendant, (ii) committing a breach of that duty and (iii) consequential damage. As the Commission is an artificial person created by law it is not capable of acting ‘in propia persona’ but only through its servants and/or agents and as the facts in this case clearly indicate that Rampersad and his workmen were the actors it becomes necessary, at the outset, to ascertain if the Commission is responsible for the acts of Rampersad and his workmen. He had engaged and paid his workers on his own behalf and not as agent for the Commission and this in itself raises a strong presumption that Rampersad was an independent contractor. But he says that he took his orders from Rostant whom he considered his immediate boss. I have no doubt that Rostant paid regular visits to the forest checking up on what work was being done from time to time, pointing out the direction in which the trees should he cut, and supervising the work generally but that he at no time had control over the manner in which Rampersad and his workmen were to execute the work. That being so, I hold that Rampersad, was an independent contractor.

12 Counsel for the Commission submits that an employer is not liable for the negligence of an independent contractor. Generally speaking this is so, but I think that an employer has always been held to be liable for the contractor's negligence in the doing of the very...