Sookraj v Patadeen
| Jurisdiction | Trinidad & Tobago |
| Judge | Maharaj, J. |
| Judgment Date | 23 June 1994 |
| Neutral Citation | TT 1994 HC 70 |
| Docket Number | No. 1202 of 1983 |
| Court | High Court (Trinidad and Tobago) |
| Date | 23 June 1994 |
High Court
Maharaj, J.
No. 1202 of 1983
Mr. Peter Rajkumar for the plaintiff,
Mr. Dave Persad for the defendant.
Tort - Negligence — Road Traffic Act — Liability
Before the start of the case the parties' Attorneys agreed on the special damage in the sum of $9,094. 00 but subject to the decision of the Court on the question of liability.
By notice dated 30 th May 1994 the defence sought the court's leave to amend the particulars of negligence. The notice was obviously filed at a late stage.
The plaintiff's Attorney objected to the amendment sought and relied on the following cases:
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(a) Ketteman and others v Hansel Properties Ltd and others [1987] 2 W.L.R. pp. 339, 340 letters “H” to “C”.
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(b) Waghorn v George Wimpey & Co. Ltd. [1970] 1 All E.R. at pg. 474
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(c) The Supreme Court Practice Vol. ( 1) 1991 at p.369 0.20/5/8/12.
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(d) King v George (1875) 1 Ch. D. at pg. 57
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(e) Hipgrave v Case (1885) 28 Ch. D. at pg. 361.
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(f) E.M. Bowden's Patents Syndicate Ltd. v Herbert Smith & Co. [1904] 2 Ch. D. at pg. 92 on the question of costs.
In essence the plaintiff submitted that as the amendment could have been foreseen by the defence and should have been made long ago and not on the morning of the trial.
The defence Attorney relied heavily on the affidavit of the defendant dated the 14 th day of May 1985, and filed on the 24 th thereof. This affidavit was used by the defence to set aside a default judgment entered by the plaintiff.
In Paragraph 10 of the affidavit above the defendant alleged that the plaintiff's motorcar swerved onto the defendant's lane thereby colliding with the defendant's vehicle.
I considered the following cases:
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(a) Baptiste v Supersad and Montrose 12 W.I.R. and the learning of Wooding C.J., at p.144 letters “B” to “C” thereof.
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(b) Halsbury's Laws of England, Vol. 36 4 th edit, paragraph 71 at pg. 56 and the learning set out in the said paragraph.
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(c) G.L. Baker Ltd. v Medway Building and Supplies Ltd [1958] 3 All E.R. 540.
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(d) C.A. Trinidad and Tobago Nos.25 and 26 of 1971 between Sir Henry Pierre and H.G.M. Walker and Co. Ltd. and the learning of Phillips J.A., at pp.10 and 11 thereof and in particular the learning in Cropper v Smith (1884) 26 C.D. 700 at p. 710 as cited by our learned Justice of Appeal in Sir Henry Pierre's judgment.
I allowed the amendment sought and ordered that the defendant do pay the plaintiff's costs of, caused and thrown away by reason of the amendment. See:
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(a) Re Trufort Trafford v Blanc N. Metropolitan Tramway Co. [1886] 16 Q.B.D. 558.
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(b) Cave v Crew (1893) 62 L.J. C.L. 530.
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(c) E M Bowden's case above.
He was the driver of motorcar PZ 728 (a Datsun 120–Y), which was owned by his father, the plaintiff, in this action. I shall hereinafter refer to Amarnath Balliram as “the son”.
On the 6 th day of February 1981, the son was driving PZ–728 along the Princess Margaret Highway (hereinafter called “the Highway” in a northerly direction. The son had four other persons in the car with him at the time of the accident. They were journeying to Port of-Spain in order to take up their respective work. The speed of PZ–728 was about 3 to 5 M.P.H. as vehicles travelling in front of him were moving slowly. The state of the traffic was dead slow. This was because there was a pile up of traffic flowing northwards.
Upon reaching about 300 to 400 feet south of the Caroni Bridge the defendant, who was driving PZ–8977 in a southerly direction along the highway, came on to the son's side and collided with him.
The plaintiff's vehicle at the time of the accident was occupying about 6 to 8 inches from the white line in the centre of the highway and on the western side thereof. As I understood it the plaintiff's vehicle was on it's left or correct side of the highway.
According to the son, the accident occurred at about 7.30 a.m. or thereabouts. It was not in dispute by the parties or the witnesses that the accident occurred at or about or around the time the son was alleging. Further, it appeared that it was also not an issue that the accident occurred south of the Caroni bridge and about 300 to 400 feet or thereabouts therefrom.
The Son said: “This vehicle, PZ–8977, came across on my lift side, hitting my right front fender, hooking it and pulling me across the road on his side, unhooked my car and continued to travel and rubbing my broad side, and hitting another vehicle at the back of my vehicle.”
By consent and marked “A.B.1” in a bundle was an exhibit, which was admitted into evidence. This exhibit clearly showed that not only the right front sand right broad side of PZ–728 were damaged but also the grille, the radiator the bonnet (sic), the front stone shield, the battery, the dash board, the fan-blade, the right chassis (sic, the drag link, the brakes master cylinder (sic, one brake line, one right track rod, one regulator, one coil, the right front floor, two engine mountain rubbers etc.
It was not in dispute that PZ–728 did receive substantial damage.
The son testified that the police came on the scene. That the point of impact was 6 to 8 inches from the white line on the western side of the highway. There was mud on the road at the point of impact.
According to the son the defendant's car ended up on the right side of the road about 20 or 30 feet after the accident occurred.
The court understood the plaintiff to be saying that the defendant ended up after the accident on the western side of the highway. That is on its incorrect side.
The cross-examination of the son revealed that PZ–728 prior to the accident was about 6 to 8 inches on its correct side of the white line. This was so as the son testified that about 500 feet further north of PZ–728 there was a big truck. The son was curious to see what was causing the slow moving traffic. He said that he did not normally drive so close to the white line.
He agreed that it was a working day and the slow traffic was a normal occurrence. He agreed that at times there may be an accident and traffic would have to filter, that is overtake the stalled vehicle. He denied that he was overtaking the vehicle in front, thereby going to the incorrect or eastern side of the road. He testified that he was unable to filter because traffic was coming in the opposite direction. He denied he came out suddenly from behind the car he was travelling or the front vehicle and went to the incorrect side thereby colliding with the defendant's vehicle.
He denied that he admitted to the investigating police officer or that he told this officer that the accident occurred in the middle of the road.
He held on to his version that he pointed out the point of the accident 6 to 8 inches from the white line, and on his western side of the highway.
The son agreed that the car in front of PZ–728 was about 6 to 8 feet away and that the defendant's vehicle did not collide with that front vehicle.
The son said that he knew that there were several vehicles to the rear but could not tell how many. He was unable to say the distance the car immediately at the rear of his was.
After the defendant's vehicle hooked and unhooked and damped the broad side of the plaintiff's vehicle, PZ–8977 continued and collided with Maharaj's car, which was at the rear of the plaintiff's vehicle damaging same. The defendant's vehicle after colliding with the plaintiff's vehicle travelled for about 30 to 40 feet. It appears that after the collision with the plaintiff's vehicle the defendant's vehicle then went on and collided with Maharaj's car and landed up on the right side of the road. This emerged in cross-examination and in chief.
The evidence revealed, in so far as the son was concerned, that the defendant's vehicle travelled a distance of about 20 to 30 feet after colliding with the second car.
The son admitted that he did not actually see PZ–8977 colliding with Maharaj's car; but after the accident he saw Maharaj's car damaged. Maharaj's car was damaged on its right side. He could not specify the damage to this third car; but this latter car had more than a scrape.
The cross-examination of the son revealed that 6 to 8 inches west of the white line and at the point of impact he saw mud, rust, paint and broken glass and this debris was scattered roughly 6 to 8 inches on the son's side of the highway.
It was not in dispute that apart from the son there were four other persons in PZ–728 and one passenger or rider in PZ–8977 apart from the defendant.
She is the sister of Amarnath Balliram (the son). According to her testimony she was sitting at the right rear seat in PZ–728 when the accident occurred. That is, immediately behind the driver thereof (the son).
Traffic on the north bound highway were moving dead slow at about 5 m.p.h. Traffic flowing south or in the San Fernando...
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