Seepersad v Jhilmit
| Jurisdiction | Trinidad & Tobago |
| Judge | Persad-Maharaj, J. |
| Judgment Date | 31 January 1991 |
| Neutral Citation | TT 1991 HC 36 |
| Docket Number | No. 358 of 1984 |
| Court | High Court (Trinidad and Tobago) |
| Date | 31 January 1991 |
High Court
Persad-Maharaj, J.
No. 358 of 1984
Mr. Ramesh Laurence Mahargj for the plaintiff
Mr. Edwin Roopnarine and Mrs. Kamla P. Bissessar for defendant.
Evidence - Admissibility — Plea of guilty in magistrate's court — Admissibility of evidence of plea in High Court action in negligence.
The plaintiff by his writ of summons dated 14th February, 1984 brought an action in negligence against the defendant, his servant or agent and damages for personal injuries as a result of an accident between motor car PZ 5146 and TS 771 owned by the defendant on the 2nd day of May, 1982 along the Rochard Road, Penal.
On the said 14th day of February, 1984, the plaintiff delivered his statement of claim. The particulars of negligence set out against the defendant are as follows:–
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(a) Drove on the wrong or improper side of the roadway and struck motor vehicle PZ 5146 which was travelling in the opposite direction.
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(b) Failed to keep any or any proper lookout or to have any or any sufficient regard for other users of the said roadway.
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(c) Failed to have or exercise or to maintain any or any adequate control of the said vehicle.
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(d) Failed to stop, slow down, manage or control motor vehicle No. TS 771 as to avoid the said collision.
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(e) Drove too fast in the circumstances.
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(f) Drove without due care and attention.
Amputation of right arm above the right elbow.
Scar 5 cm by 4 cm on the skin of the lateral side of the stump.
| (a) Loss of earnings at $560.00 per week from 2nd May, 1982 and continuing. | |
| (b) Travelling to hospital by parents for 33 days at $16.00 per day | $528.00 |
| (c) Travelling to out-patient clinic for 20 days at $8.00 per day | $160.00 |
| (d) Medicines and toiletries incidental thereto | $500.00 |
| (e) Loss of clothing | $250.00 |
| (f) Medical report | $50.00 |
| (g) Cost of artificial arm | US$45,000.00 |
On the 16th November, 1990 the plaintiff's advocate attorney sought an amendment to (g) above which was granted by the court.
The defendant delivered his defence on the 1st day of March, 1984. The gist of the defence was that the collision was caused solely or was contributed to by the negligence of the driver of motor vehicle PZ 5146.
The particulars of negligence set out in the defence are as follows:–
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(a) Driving at an excessive speed;
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(b) Failing to keep any or any proper lookout or to have any sufficient regard for other traffic, particularly on coming traffic on the said road.
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(c) Failing to heed or observe the presence or approach of the defendant's motor vehicle.
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(d) Driving onto the wrong side or improper side of the road and there colliding with the defendant.
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(e) swerving onto the wrong or improper side of the road into the path of the defendant and there colliding with his vehicle.
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(f) Failing to stop slow down swerve or in any other way so as to manage the said PZ 5146 as to avoid the collision.
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(g) Failing to stop, steer brakes, or otherwise manage and or control the said motor vehicle or to take any or any sufficient or proper measure to avoid colliding with the defendant.
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(h) Driving PZ 5146 in such a course or in such manner that he did not or alternatively could not avoid the collision.
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(i) Driving without due care and attention and or without reasonable consideration for other users of the said road in particular the defendant.
Paragraph (5) of the defence set out “The said injuries, loss special damages and damages are denied.”
By summons dated 3rd October, 1990 the defendant sought the Master's leave to amend his defence. Prior to the 3rd October, 1990 and in particular by Notice dated and filed on the 6th June and 12th June, 1990, the defendant's instructing Attorney had sought leave of the trial court to amend the defence.
On the 13th day of June, 1990, Hamel-Smith, J. granted leave to the defendant to seek leave to amend before a Master in Chambers. It was as a result of this order that the summons to amend as set out the aforesaid was filed.
Master Seepaul on 29th October, 1990 made an order in terms of the summons dated 3rd October, 1990. One of the terms of the said order was that service of the amended Defence on the plaintiff be dispensed with.
The gist of the amended defence as re-delivered on 3rd October, 1990 was as follows:–
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(i) The plaintiff was the driver of motor vehicle PZ 5146 on the said date
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(ii) The plaintiff (as driver) on the date of the accident “with his right elbow extended and resting over the right front window and in pulling away from two children walking on his slide of the road (that is the plaintiff), came over to the defendant's side of the road and collided with the right front tray of the defendant's motor lorry”.
Under the Particulars of negligence of the plaintiff under (e) was added “having pulled away from two children walking on his side of the road”.
A new particular was added under (j) as follows “drove the said vehicle with his right elbow extended and resting on the right front window”.
A reply to the amended defence was re-delivered on the 9th day of November, 1990. In essence, inter alia, the plaintiff denied he was the driver of the car PZ 5146 and set out that it was driven at the material time by Deoraj Gunness.
It was agreed between the plaintiff and the defendant's attorneys that the Rochard Road runs from north to south and a plan of the roadway as agreed upon. A copy is reproduced for ease of reference.
The plaintiff's evidence, inter alia, in a nutshell was that on the 2nd May, 1982 he had accompanied his brother Deoraj Gunness and his brother in law Ramesh Ramjattan from Digity Village Mohess Road, Penal to Ramjattan's sister home who lived in the vicinity of Bunsee Trace and they were on their journey back to Digity Village where the plaintiff lives with his parents.
They were travelling from south to north along the Rochard Road.
That his brother Deoraj was driving motor car registration number PZ 5146 at t4 about 20 to 25 m.p.h. along the said road. That his brother in law, Ramesh was sitting in the front left passenger's seat. That he (the plaintiff) who was also called Seepersad Ganesh, at the time was sitting on the rear seat of the car behind the driver. That is to say, on the right rear. PZ 5146 was a 616 Mazda. “I see a truck coming towards our car….
…. Our car was on the side where vehicles supposed to travel going to Barrackpore, we were going towards Barrackpore. Our vehicle was travelling on the left side. The truck was coming towards the car. I see the driver's side of the truck coming towards the car…. I see the truck. The truck was a good distance (this witness points out the distance and all attorneys agreed to be 40 feet). I thought the truck would pull away from hitting our vehicle, The truck came and hit the car on our side When it hit the car, I bawl out Oh God! My hand. When the truck came and hit the car my hands were in the vehicle, I was sitting down as usual. I did not have my hand outside the vehicle.”
The plaintiff gave evidence that after the collision he did not know what happened afterwards until he catch himself in hospital. That is the San Fernando General Hospital.
Further, the plaintiff said that at the time of the collision PZ 5146 was almost at a standstill position and that half of the car was on the road while the other half wee on the gross on his left side of the road. That is the same lane we were supposed to drive.
Both in evidence in chief and in cross examination he held on to his version as to how the accident occurred and that his brother Deoraj was the driver thereof.
Under cross examination he said the accident occurred around 9.00 and 10.00 a.m. That his rear window glass was up and that it was not raining. That his hands were on his lap. He demonstrated to the court how he had his hands. His left hand was resting on his lap while his right hand was resting on the car seat.
He denied that he was driving the car at the time of the accident or that his right hand was resting while driving on the window of the car. He said that the accident happened suddenly and that he did not expect any accident to take place.
The plaintiff under cross-examination said as a result of the impact of the accident he lost consciousness. He denied that after the accident he told the defendant his name or that he was living at Digity. He denied that the defendant and two other persons assisted him from the car. He denied that one Raj was sitting in the front passenger's sent or that his brother in law Ramesh and his brother Deoraj were not in the car at the material time.
Under cross-examination he said after he came out of the hospital he saw the car at his parents' home. The windscreen was damaged, door post, the back window glass, right rear side was mashed up. He was asked by defence Attorney whether these parts were damaged and his answer was in the positive.
He admitted that there was a white line in the middle of the road but he did not notice whether there were white lines on the sides of the roadway; but he said most likely it had.
He denied that there were two children walking on the car side of the roadway or that he was trying to get away from the two children which caused the car to come over to the truck side of the roadway. He denied the collision occurred on the truck side of the roadway i.e. (That is the eastern side).
He agreed that the roadway was about 16 feet wide and that it was a flat road.
He denied that he had the keys to the car. He denied that they were going to the beach...
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