University of the West Indies v Selvanayagam
| Jurisdiction | Trinidad & Tobago |
| Judge | Corbin, J.A.,Kelsick, J.A.,Hassanali, J.A. |
| Judgment Date | 31 July 1980 |
| Neutral Citation | TT 1980 CA 38 |
| Docket Number | Civil Appeal No. 8 of 1977 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 31 July 1980 |
Court of Appeal
Corbin, J.A.; Kelsick, J.A.; Hassanali, J.A.
Civil Appeal No. 8 of 1977
S. Wooding, S.C. and R. Martineau for the appellant.
F. Ramsahoye, S.C. and K. Sagar for the respondent.
Damages - Personal injury — Injury to the foot and neck — Quantum.
On 5th August, 1975 the respondent who was engaged as Professor of Chemical Engineering with the appellant sustained injuries when he fell into a trench which had been left open and unguarded by workmen employed by the appellant to carry out construction work on one of its buildings.
On that day the respondent had left his office on the eastern side of the Chemical Engineering Laboratory (“the Chemical Lab.”) at about 11:00 a.m. and walked south along a passageway to the Civil Engineering Laboratory. From there he retraced some of his steps and turned west along another passageway to a workshop in order to speak to one Hinds, the Superintendent of the workshop. Discovering that Hinds was not there, he walked north along yet another passageway parallel to the one an which he had first set off from his office, with the intention of returning to the Chemical Lab, where he had arranged to meet his wife.
At the northern end of that passageway at approximately the point where anyone going from the workshop towards the Chemical Lab, would have to turn east, there was an open trench at the bottom of the framework of a staircase which was being constructed and which was to lead to the floor about fifteen feet above the level of the passageway. There are approximately twelve treaders on those stairs, and the framework formed the enclosure for the steel steps. This work was completed shortly after the accident.
Into this open trench fell the respondent, which he says was entirely the fault of the appellant in leaving the trench open. The appellant admits it was at fault but says the respondent contributed to his own downfall by failing to pay sufficient attention to where he was walking, He suffered injuries described later in this judgment.
The evidence about the depth of the trench was conflicting. The respondent said 2 feet; his witness, Suite said 3 feet; and the appellant's witness, Bruce said 1 foot 6 inches. The judge made no finding. The evidence as to the amount of light and visibility in the passageway was also conflicting, but it was common ground that there were louvres in the wall of the workshop on the western side of the passageway which would admit some light, and an opening at the northern end through which people could pass to go outside. It was through this opening that the respondent intended to go.
In his evidence before the trial judge the respondent said:–
“The passageway light was dull or diffused direct light was completely cut off because of the nature of the structures.. I saw nothing unusual. I looked in the direction of the Chemical Laboratory about 250 to the Fast. As:C was looking in that direction to locate Hinds I suddenly found myself falling into a trench, left foot first…The light in the area was diffused. Corridor was not very dark. I could only see 7 ft. to 10 ft, ahead because of the bad light. If Hinds had been 12 ft. ahead I could have seen a form. I would have recognised Mr. Hinds.”
His witness Suite said:–
“On date of accident area of location of staircase was poorly lit, actual formwork (sic) steel had to be cleaned and changed I saw no signs in corridor indicating work was in progress. There was no guard around the hole… Actual framework had to be changed and steel had to be cleaned steel and formwork (sic) had been lying on the hole some considerable time before the accident. Steel and framework also extended from hole to first floor. There may have been 10 — 15 treaders going up to the first floor. Formwork is boxing and reinforcement- steel is in boxing. There was a double cantilever stairway which might be described in lay language as fish bone type of stairway. Framework boxing did have reinforcement. Main rib came down straight from treader on first floor down to the hole. All that had been there for some considerable time before 5th August, 1975. I would say definitely it was there in the first week of July, 1975. It had been there months before July 1975… When you turn left out of the doorway you could see framework north in corridor. If there were lathes across column north of hole you should have been able to see them.”
On the other hand Percy Bruce, Asst. Dean at the appellant's Faculty of Engineering, who gave evidence on behalf of the appellant, said:–
“Light in the corridor north of tine trench was diffused and satisfactory…light in corridor was not dull and, visibility would certainly not be limited to seven feet…on turning left from the door of the workshop one could see gravel, rubble and lathes at the end of the corridor” (A distance measured by the respondent as 291 feet). “As far as the trench is concerned on turning left out of the workshop door it would ‘tae clearly evident that the trench was there. Walking north the trench would be even more visible.”
It was in that state of the evidence that counsel for the appellant having conceded that the appellant had not shown the respondent the high degree of care required of a master towards a servant, submitted that the respondent had contributed to has injury by failing an his part to exercise proper care. This was rejected by the trial judge who hold that mere inattention on the part of the respondent would not constitute contributory negligence.
He also held that the respondent, faced and confronted with the situation that he was, did not act unreasonably in refusing to have an operation in an effort to minimise the effects of the injury, and he assessed damages on that basis.
On appeal the appellant relied on three grounds:–
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(1) That the learned judge erred in law in deciding that the evidence did not disclose contributory negligence
on the part of the plaintiff.
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(2) That the learned trial judge erred in law in failing to hold that the plaintiff was unjustified (in the circumstances) in refusing to have the operation recommended by Mr. Sam Ghouralal, Specialist Neuro- surgeon.
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(3) That the assessment of the damages roads by the learned trial judge was wrong and/or excessive and should be substantially reduced.
The respondent cross-appealed on the ground that “the award of damages in the High Court of Justice was wholly inadequate and was made on wrong principles. The methods of computation used by the trial judge were also erroneous.”
It is a well recognised principle that an appellate court should not lightly differ from the findings of a trial judge on a question of facts but a distinction must be drawn between the finding of a specific fact and an evaluation of the evidence. A trial judge must first find facts and. then draw proper inferences therefrom. A court of appeal will pay due regard to the advantage which the judge had of seeing and hearing the witnesses, but it is the duty of that court to make its own inferences if the judge has mot drawn proper conclusions from the facts. This principle was very lucidly stated by Viscount Cave L.C. in Mersey Docks & Flatboat Board v. Procter [1923] A.C. at p. 258 thus:
“The procedure on an appeal from a judge sitting without a jury is not governed by the rules applicable to a motion far a new trial after a verdict of a jury. In such a case it is the duty of the Court of Appeal to make up its own mind hat disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into questions but with full liberty to 6raw its own inference from the facts proved or admitted and to decide accordingly.”
Unfortunately, in considering the facts in this case the learned trial judge has omitted to make specific findings fundamental to the issues, and in his judgment has only recited the evidence given by each witness. It is difficult therefore to say which of the witnesses he believed and to what extent. There were unexplained contradictions and differences in the respondents evidence which made his credibility open to question, for example, he said in reference to points shown as a plan of the area which he hack made and which was put in as an exhibit:–
“Building, workshop, store counter, laboratories were all familiar to me …. I had gone to the workshop a few times after I ceased to be Head of Department. After I had ceased to be Head of Department I had never been along a corridor from B to C…I had never been from Y to A… Going from B to C was the shortest way to Y. It was the first time in ten months that I had gone down that corridor….. I was hurrying along. I had known the route when I was Head. I was not hurrying. I was walking in the normal way…. I could not see store counter ahead of me because of diffused light. I looked forward and could see nothing at the end of the corridor.”
There was also conflict between the evidence of the respondent and his witness Suite on the one hand and that given by Bruce the witness called by the appellant an the other.
It was very important in those circumstances for the judge to make a careful assessment of the evidence and to state clearly which witnesses he found to be worthy of belief. He has not done so; in particular he has not made any finding as to the state of the lighting and visibility in the passage, an issue which was vital to the question of contributory negligence. Nor has he made any finding with regard to the difference between the evidence of the respondent and that of Bruce in relation to the place at which they had a conversation sometime prior to the accident about a visit by the respondent to an Amoco offshore drilling rig. Bruce said it was at the site where...
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