Supersad v Ragoonanan
| Jurisdiction | Trinidad & Tobago |
| Judge | Maharaj, J. |
| Judgment Date | 25 October 1990 |
| Neutral Citation | TT 1990 HC 155 |
| Docket Number | 681 of 1981 |
| Court | High Court (Trinidad and Tobago) |
| Date | 25 October 1990 |
High Court
Maharaj, J.
681 of 1981
Mr. E.K. Roopnarine for plaintiff.
Mr. C.P.A. Maharaj for defendants.
Tort - Negligence — Traffic accident — Liability — Quantum of damages.
The plaintiff by his Writ dated 1st May, 1981, filed these proceedings and grounded his claim in negligence against the first named defendant as owner of motor vehicle PO–1300 and against the second named defendant as the driver of the said vehicle and the servant or agent of the first defendant.
The accident with the first named defendant's vehicle and the plaintiff's pick-up registration number TAC–5974 occurred on 13th of November, 1980.
The plaintiff's version, by his statement of claim, is that on the above day, he was driving his motor pick-up along Rivulet Road, Couva, and came to a stand-still when the second named defendant in the capacity aforesaid, so negligently drove or managed the aforesaid motor car along the said road in the same direction on the left hand side of the plaintiff's said motor vehicle, that he collided with the plaintiff's motor vehicle, causing extensive damage thereto, loss and expenses to the plaintiff.
The plaintiff's attorney sought an amendment to read “particulars of negligence” instead of “special damages” and this was granted by the court without objection. The particulars of negligence were pleaded by the plaintiff as follows,
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(a) Drove too fast.
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(b) Drove on the wrong or improper side of the road.
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(c) Overtaking and or attempted to overtake on the wrong side of the road.
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(d) Drove in such a. course and or in such a manner that he did not or alternatively could not avoid the said collision.
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(e) Failed to stop and or slow down and or to so manoeuvre his said motor vehicle as to avoid the said collision.
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(f) Drove unto the plaintiff's motor vehicle whilst it was at a standstill.
The plaintiff, by his pleading also relied on the doctrine of res ipsa loquitur.
The particulars of the plaintiff's special damage will be dealt with infra.
The defendants by their defence in essence deny that the second named defendant was guilty of the alleged negligence and in the alternative raised contributory negligence in the plaintiff, in that the plaintiff stopped to allow motor vehicle PO–1300 to overtake him in safety, and whilst being so overtaken, the plaintiff suddenly and without warning, continued to reverse and in so doing suddenly swerved into, and collided with motor vehicle PC–1300.
The particulars of negligence alleged by the defendants were:
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(a) Reversing motor vehicle TAC 5974 on the said road at a time when and in a manner which was dangerous so to do.
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(b) Failing to keep any or any proper look-out or to have any or any sufficient regard for other traffic on the said road.
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(c) Failing to have or to keep any or any proper control of motor vehicle TAC 5974, as amended by consent.
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(d) Failed to allow motor vehicle PO–1300 to overtake him in safety before continuing to reverse his motor vehicle.
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(e) Failed to step, to slow down, to swerve or in any other way so to manage or control the said motor vehicle as to avoid the said collision.
A reply and defence to counterclaim dated 21 st day December, 1981 was served by the plaintiff and formed part of the plaintiff's pleadings.
On the 5th of October 1990, the court requested both the plaintiff's and the defendant's attorneys whether they can agree on a plan in respect of the roadway, the directions in which the vehicles were travelling and the possible point of impact where the accident occurred and a plan was drawn on a blackboard so as to facilitate the court's understanding of the several roadways and where the accident took place. Both attorneys agreed on the plan, save and except, the plaintiff's attorney was saying that Sevilla Road was obliquely opposite to the road on the north where as the defendant's attorney was saying that the Sevilla Road was directly opposite. This plan as agreed (drawn infra) was admitted and marked exhibit “X”.
The plaintiff gave his evidence inter alia that he was driving his Datsun pick-up around 9pm in a westerly direction along Rivulet Road. That he had company with him, namely, three other persons, in the pick-up and that he was going to Couva. He stopped at the branch road to the north which takes him to Couva, but on the Rivulet Road. That he was more to the centre of the Rivulet Road waiting to turn right, into the branch road. It was agreed that the Northern branch Road has no name. The plaintiff further gave evidence that the first named defendant's vehicle overtook him on his left side damaging the left front of his vehicle i.e. his left front fender. The damage to the first named defendant's vehicle, according to the plaintiff consisted namely the right ide right front fender and door, the right back door up to the rear fender, and up to the defendant's rear bumper. That is, along the right side of the first named defendant's vehicle.
That after the collision, the plaintiff's vehicle shifted a little but remained almost in the same spot while the first named defendant's vehicle was on the Rivulet Road in front of the plaintiff's vehicle.
That both drivers went to the police station with both vehicles and because of the lateness of the hour the police did not come on the scene of the accident. Further the plaintiff's and the first named defendant's vehicles were both insured with presidential insurance Company.
The gist of the cross-examination of the plaintiff and the case for the defence, was that the plaintiff had crossed the four roads junction, travelled east to west along Rivulet Road and had travelled a, hundred feet west of the Road junction and had stopped on the northern side thereof. He had done this so that the second named defendant could pass in safety; and that while PO–1300 was travelling west along the Rivulet Road, the plaintiff reversed his pick-up from the northern to the southern side thereof and collided with the: second named defendant about ten feet west of the Sevilla Road, but along the Rivulet Road. That in so doing the plaintiff's vehicle collided with PO–1300 on the southern side thereof. PO–1300 went off the toad and back onto the road thereby causing damage to the right front fender, and right broad side of the said motor vehicle. The plaintiff denied the defendant's version and stuck to his version of the case. The defence put to the plaintiff that where the accident occurred along the Rivulet Road is straight for about 1/2 a mile East to West and west to East. That is, 1/4 mile on both sides of the junction. The plaintiff agreed. The plaintiff further agreed that there was no street lights in the area where the accident occurred or at all. The plaintiff agreed that he had three other persons with him in the pick-up, one female and two males and not two females as suggested. He denied that all the persons were sitting inside the pick-up. He said that a guy was sitting outside on the tray of the pick-up. He was giving him a drop. He picked up the guy at the flyover in Couva. He said, that Shawn Ramjattan his neighbour, was with him in the van. The other two passengers, a girl and the gentleman were outside on the pick-up and were really unknown passengers. He did not know their names. He believed he picked up the girl at Grand Couva. The plaintiff was unable to remember whether there were white lines in the middle of the road.
On the 9 th October 1990, attorney for the plaintiff requested that the plaintiff be recalled to give further evidence. He cited the case of Mack and Mack v. Lennox Persad HC Judgment No.458 of 1977 a decision of Edoo, J., (as he then was), given on the 26th July, 1983. Attorney for the defendant did not object as the plaintiff had not yet closed his case.
The gist of the plaintiff's evidence was that on the morning next after the accident, i.e. the 14th February, 1980, he had taken a picture of the damage to his pick-up with an instamatic camera. Defence attorney objected to the photograph being put in evidence and referred to O. 38, r.5 of the Rules of the Supreme Court of Trinidad and Tobago, 1975. Another objection was that the plaintiff was not the maker of the documents, the plaintiff's attorney referred to special circumstances in which the photograph was obtained and found at the plaintiff's business premises while the case was going on. Apart from the special circumstances the court was of the view that the photograph was taken and developed by the plaintiff automatically and it was direct evidence, that is, a document made by the plaintiff himself and a document that would greatly assist the court in its findings and admitted this document and marked “DS 1”.
This photograph supported the plaintiff's case that damage was done to the left front fender of the pick-up.
Allan Houlass, a claims clerk with Presidential Insurance Company supported the plaintiff's claim that he (the plaintiff) paid to his insurers $1,000.00 in respect of the excess on the plaintiff's insurance policy. The admission of a receipt marked exhibit “y” for identification was objected to by defence attorney.
The claims clerk above had control and custody of his company's records and claims file and matters filed in Court. Despite vigorous objection by the defendant and in particular that Mr. Houlass was not employed with the insurers at the time of the accident, the receipt for $1,000.00 was admitted in evidence and marked “A.H. 1”. I shall deal with this item of special damage infra. During the course of the trial defence attorney expressed the view that this item of special damage could not be claimed by the plaintiff.
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