between sharmila 2019-01-30آ  cv 2017-01813 between sharmila koonjoo claimant and ricky koonjoo...

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  • Page 1 of 18

    THE REPUBLIC OF TRINIDAD AND TOBAGO

    IN THE HIGH COURT OF JUSTICE

    CV 2017-01813

    BETWEEN

    SHARMILA KOONJOO

    Claimant

    AND

    RICKY KOONJOO

    First Defendant

    GOSINE ENTERPRISE LIMITED

    Second Defendant

    GUARDIAN GENERAL INSURANCE LIMITED

    Third Defendant

    Appearances:

    Mr. Dale Scobie for the Claimant

    No appearance for the 1st Defendant

    Ms. Ashley Roopchansingh holding for Mr. Roger Kawalsingh for the 2nd and 3rd Defendants

    JUDGMENT

    INTRODUCTION

    1. On the 21st May, 2014 at or about 10:30 pm the Claimant observed the First Defendant in the

    driver’s seat of 10 wheel truck with vehicle registration number TCD 1054, parked in the vicinity

    of Shivan Drive, Sangre Chiquito. The Claimant approached the said vehicle in which the First

  • Page 2 of 18

    Defendant remained seated in the driver’s seat, came up to the front of the said vehicle and began

    shouting and arguing with the First Defendant asking him to come out of the vehicle. The First

    Defendant remained seated in the vehicle along with a female occupant, not being an employee

    of the 2nd Defendant. The vehicle was stationary and the engine was running.

    2. In apparent response to the claimant’s remonstrations, the 1st Defendant drove off with the said

    vehicle and in doing so, collided with the Claimant. This caused the Claimant to fall and the right

    rear tire of the said vehicle - driven by the First Defendant, owned by the 2nd Defendant and

    insured by the 3rd Defendant - rolled over the Claimant.

    3. The 1st Defendant had a duty of care to the Claimant in the manner in which he so drove,

    controlled and maneuvered the vehicle – a 10 wheel truck. The 1st Defendant breached that duty

    of care and by that breach caused injury and damage to the Claimant. The accident and injuries

    sustained by the Claimant were caused by the negligence of the First Defendant as the driver of

    the vehicle. The Claimant contends that the 1st Defendant was also driving as the servant and/or

    agent of or with the express or implied permission of the Second Defendant and/or Third

    Defendant.

    4. The 1st Defendant has not entered an appearance or defence to the claim. A request for default

    judgment over the counter was made in relation to him. To date that request has not been dealt

    with. Instead, the trial proceeded against all the Defendants and judgment rendered against the

    1st Defendant. The 1st Defendant did not appear at trial. The 2nd and 3rd Defendants appeared at

    trial to defend against the claim. The 1st Defendant at the time of the trial, was still an employee

    of the 2nd Defendant.

    5. The claim against the 2nd Defendant who is also the 1st Defendant’s employer and owner of the

    vehicle, is for vicarious liability of the 2nd Defendant for the resultant damages caused by the 1st

    Defendant on the basis of they having given the 1st Defendant permission, express or implied, to

    use the vehicle – a 10 wheel truck - after working hours would necessarily anticipate private

    activities including carrying a passenger or engaging in a private and leisure activity for purposes

    other than in the pursuance of the trade or business of the employer/2nd Defendant. This is the

    Claimant’s allegation notwithstanding that the 3rd Defendant/insurer, maintains that the

    insurance coverage on the 2nd Defendant’s vehicle excludes liability of the insurer/3rd Defendant

  • Page 3 of 18

    to indemnify claims arising out of the use of the 2nd Defendant’s/insured vehicle, for purposes

    other than in connection with the 2nd Defendants/insured’s business or trade. The second

    Defendant is a general contractor that specializes in heavy equipment rental and the supply and

    delivery of aggregate.

    6. There is no dispute that the 1st Defendant was an authorized driver or that the activity the 1st

    Defendant was engaged in at the time of the accident and as a consequence the use to which the

    vehicle was put, was not in connection with the 2nd Defendant/insured, business or trade.

    7. The 3rd Defendant and insurer of the 2nd Defendant’s vehicle driven by the 1st Defendant, is joined

    as a party by operation of law – the Motor Vehicles Insurance (Third-Party Risks) Act Chap.

    48:51(the “Act”) – as liable to indemnify the 2nd Defendants vicarious/agency liability in relation

    to a successful claim for damages by the Claimant against the driver of the insured vehicle i.e. the

    1st Defendant.

    8. The 3rd Defendant says that the ‘Commercial Motor vehicle policy’ documents (including the

    ‘proposal/declaration of the 2nd Defendant’), and Certificate of Insurance do not provide coverage

    for the use of the vehicle for purposes other than in connection with the 2nd Defendants trade or

    business. The Claimant contends that notwithstanding the provisions of the policy, the said Act

    (Chap. 48:51) does not permit the 3rd defendant to avoid liability to indemnify the 2nd defendant

    against the 1st defendant’s liability for the damages incurred when driving the vehicle insured for

    the 2nd Defendant by the said 3rd Defendant, for purposes other than the trade or business of the

    2nd Defendant. Counsel for the claimant cites section 4(7) of the Act and the Privy Council Appeal

    No 0062 of 2011 The Presidential Insurance Company Limited (Appellants) v Resha St. Hill

    (Respondent) as a ‘useful discussion of the broader limits of Section 4(7) of the Motor Vehicles

    Insurance (Third-Party Risks) Act’. Added to this section the court adds the consideration of

    section 12A of the said Act.

    9. Evidence was taken from the Claimant, a representative of the 2nd Defendant and two witnesses

    for the 3rd Defendant. Brief written submissions have been taken from the parties in relation to

    the law on the ‘agency’ between the 1st and 2nd Defendants; and the application of the law on the

    insurance coverage(re: indemnification) between the 3rd and 2nd Defendant. The written

    submissions of the claimant appear to vary somewhat from the pleaded case and evidential thrust

  • Page 4 of 18

    of the claimant that the 1st defendant was the servant and/or agent of the 2nd defendant at the

    material time. The court has regard to the Claimant/Sharmila Koonjoo’s pleadings and the

    evidence above all else, and including the submissions.

    10. ISSUES

    (i) Whether the Contract of insurance limits (at all) the use of the insured vehicle to being in

    connection with the 2nd Defendant’s trade or business;

    (ii) Whether at the time of the accident the 1st Defendant was engaged in private activities

    other than the business of the 2nd Defendant;

    (iii) Whether at the time of the accident the 1st Defendant was acting as the agent of the 2nd

    Defendant;

    (iv) Whether the Insurance Act dictates that the circumstance of this case be deemed covered

    by a contract of insurance and;

    (v) Whether the Act supersedes the ‘Limitation As To Use’ provisions (or any other for that

    matter) of the Insurance Policy.

    THE EVIDENCE

    11. The evidence in relation to how and where the accident took place is not refutable really. The 1st

    Defendant did not defend the claim against him, neither did he give evidence as a witness for any

    of the other parties. The only admissible evidence of the accident and what led up to it, is that

    given by the sole eye witness in the trial as it were, the Claimant, Sharmila Koonjoo1. There is

    nothing internally inconsistent or implausible about her account of the events. Given the standard

    of proof required of the Claimant, I accept her evidence of the accident as more probable than

    not. The evidence suggests that the 1st Defendant drove, controlled and maneuvered his vehicle

    in such a manner so as to have culpably collided with and run over the Claimant thereby causing

    1 The adjuster/’expert’ Otis Aguilera’s report reference and incorporation of the hand written accident statements

    of the 1st Defendant carries no weight for the purpose of establishing the truth of what it says.

  • Page 5 of 18

    the injury, loss and Damage she testified to2. Although there is a specter of contributory

    negligence, the evidence simply does not go sufficiently far to elevate this specter to that of proof

    of contributory negligence.

    12. The evidence in relation to the 1st Defendant’s permitted use and actual use of the vehicle – a 10

    wheel truck - is disputed by the 2nd and 3rd Defendant. What is the evidence? Sharmila Koonjoo

    testified that she was the resident wife of the 1st Defendant. She testified that for years living in

    the same house as man and wife, after work and with the permission and knowledge of the 2nd

    Defendant, the 1st Defendant kept the 2nd Defendant’s vehicle at their home and on the road in

    front of the home. He would leave for work the following day, each day, around 5 a.m., in the said