the republic of trinidad and tobago in the high court...

of 41

THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CLAIM NO. CV 2014 – 00496

Between

PEGGY-ANN RILEY-GILL

[Administratrix of the Estate of KAFIYA JOY GILL, Deceased]

Claimant

And

EDWARD MARK LEE WEN

First Defendant

DAVID BALKISSOON

Second Defendant

MARITIME GENERAL INSURANCE COMPANY LIMITED

Co-Defendant

CLAIM NO. CV 2014 – 00497

Between

DESIREE WADDLE

[Administratrix of the Estates of KHERTIMA EMLEE TAYLOR, Deceased, and

KHADIJA EVANA SASHA TAYLOR, Deceased]

Claimant

And

EDWARD MARK LEE WEN

First Defendant

of 41

DAVID BALKISSOON

Second Defendant


Co-Defendant

CLAIM NO. CV 2014 – 00690

Between


Claimant

And

EDWARD MARK LEE WEN

Defendant

PEGGY-ANN RILEY-GILL

[Administratrix of the Estate of KAFIYA JOY GILL, Deceased]

DESIREE WADDLE

[Administratrix of the Estates of KHERTIMA EMLEE TAYLOR, Deceased,

and KHADIJA EVANA SASHA TAYLOR, Deceased]

Co-Defendants

BEFORE THE HONOURABLE MR. JUSTICE A. DES VIGNES

Appearances in CV 2014-00496 and CV 2014-00497:

Mr. Lennox D. Sanguinette instructed by Mr. Pheerangee for the Claimant

Mr. Ernest H. Koylass, S.C. and Ms. Debbie Roopchand for the First and Second Defendant

Mr. Ronnie Persad instructed by Ms. Nalini Jaggernauth for the Co-Defendant

Appearances in CV 2014-00690:

Mr. Ronnie Persad instructed by Ms. Nalini Jaggernauth for the Claimant

of 41

Mr. Ernest H. Koylass, S.C. and Ms. Debbie Roopchand for the Defendant

Mr. Lennox D. Sanguinette instructed by Mr. Pheerangee for the Co-Defendants

JUDGMENT

INTRODUCTION

1. Without fear of contradiction, I am certain that Sunday 9th June 2013 will remain embedded in

the minds of the Claimants and the Second Defendant as one of the saddest day in their lives.

It is the day when the Claimants’ daughters, Kafiya Gill, Khertima Taylor and Khadija Taylor,

on their way home from an enjoyable evening at a night club with their friends, lost their lives

in a horrendous accident along the San Fernando Bypass.

2. Kafiya, Khertima and Khadija were passengers in the back seat of motor vehicle registration

number PCL 6804 (hereinafter referred to as “the vehicle”) owned by Edward Mark Lee Wen

but driven by David Balkissoon. While driving along the San Fernando Bypass, Mr. Balkissoon

lost control of the vehicle and collided with a bridge causing the vehicle to become wedged

between the stanchions of the bridge in a vertical position. Kafiya, Khertima and Khadija were

thrown from the vehicle and they sustained severe personal injuries from which they did not

recover.

3. As a consequence of the accident, their mothers have brought CV 2014-00496 and CV 2014-

00497 (hereinafter collectively referred to as “the negligence actions”) claiming damages from

the Defendants and the Co-Defendant for the negligent driving of the Second Defendant.

4. By CV 2014-00690, (hereinafter referred to as “the avoidance action”) the Co-Defendant seeks

to avoid liability to indemnify the Defendants under the policy of insurance issued to the First

Defendant on the grounds of material non-disclosure and/or misrepresentation with respect to

the previous accident history of the Second Defendant.

The Negligence Actions

The Claims

5. The Claimant in CV 2014-00496 (hereinafter referred to as “Riley-Gill”) is the lawful mother,

next of kin and Administratrix of the Estate of Kafiya Joy Gill, deceased (hereinafter referred

of 41

to as “Kafiya”). The Claimant in CV 2014-00497 (hereinafter referred to as “Waddle”) is the

lawful mother, next of kin and Administratrix of the Estates of Khertima Emlee Taylor,

deceased, and Khadija Evana Sasha Taylor, deceased (hereinafter referred to as “Khertima” and

“Khadija”).

6. Riley-Gill and Waddle instituted proceedings against the First Defendant (hereinafter referred

to as “Lee Wen”), the Second Defendant (hereinafter referred to as “Balkissoon”) and the

CoDefendant (hereinafter referred to as “Maritime’) on 7th February, 2014, claiming damages

for the loss of expectation of life and consequential loss caused by the negligent driving,

management and/or control of the vehicle by Balkissoon.

7. Riley-Gill and Waddle alleged that:

a. On 9th June, 2013, Kafiya, Khertima and Khadija were backseat passengers in the vehicle

which at the material time was owned by Lee Wen, driven by Balkissoon and insured by

Maritime;

b. Due to the negligence of Balkissoon in the driving, management and/or control of the

vehicle, while proceeding in a Northerly direction along the San Fernando Bypass in the

vicinity of Cross Crossing Interchange, he lost control of same and caused and/or permitted

it to collide with a metal bridge and land on its front bumper in a vertical position;

c. As a result of the collision, Kafiya, Khertima and Khadija were thrown out of the vehicle

and sustained personal injuries which resulted in their deaths;

d. The collision was caused and/or contributed to by the negligence of Balkissoon, who, at the

material time, was the servant and/or agent of Lee Wen; and

e. On behalf of and as the beneficiaries of the estates of Kafiya, Khertima and Khadija, they

have suffered loss and damages and are entitled to special damages as well as damages

pursuant to the Supreme Court of Judicature Act, Chapter 4:01 and the Compensation for

Injuries Act, Chapter 8:05. They are also entitled to interest, costs and a declaration that

Maritime is liable to indemnify Balkissoon and Lee Wen in respect any award made against

them.

of 41

8. As to the particulars of negligence, they alleged that:1

“11. The collision was caused and/or contributed to by the negligence of the Second named

Defendant, the servant and/or agent of the First named Defendant in the driving,

management and/or control of motor vehicle number PCL 6804.

PARTICULARS OF NEGLIGENCE OF THE SECOND DEFENDANT, THE

SERVANT AND/OR AGENT OF THE FIRST DEFENDANT IN THE DRIVING

MANAGEMENT AND/OR CONTROL OF MOTOR VEHICLE PCL 6804.

a. Drove motor vehicle PCL 6804 at an excessive rate of speed in the circumstances along

the said interchange;

b. Drove the said motor vehicle recklessly and without due care and attention;

c. Caused and/or permitted the said motor vehicle to violently collide with the arched

bridge at the said Interchange and land on its front bumper;

d. Failed to steer or maintain a proper course;

e. Failed to take any or any special care whilst driving on the said roadway;

f. Failed to slow down, to swerve or in any other way so as to manage and/or control the

said motor vehicle as to avoid same from colliding with the arched/said bridge;

g. Failed to use reasonable care, skill and safety for the safety of the deceased during

her/their period of carriage in motor vehicle PCL 6804;

h. Drove in such a manner that was not showing the care which ought to have been shown

to the deceased and in such a way as would reasonably avoid the accident.”

9. Further, they alleged that, where necessary, they would rely on the principle of res ipsa

loquitur.

The Defences

1 Statements of Case of Riley-Gill and Waddle filed on 7th February, 2014 at para. 11.

of 41

Lee Wen’s Defence

10. On 22nd May, 2014, Lee Wen filed Defences in the negligence actions in which he

admitted that the collision occurred whilst the vehicle was being driven by Balkissoon

who was an authorized driver under the policy of insurance issued to him by Maritime.

However, he denied that Balkissoon was his servant and/or agent and averred that

Balkissoon was driving the vehicle for his own interest and concern.

11. Lee Wen neither denied nor admitted that Balkissoon drove or managed the vehicle

negligently and/or lost control of same and put Riley-Gill and Waddle to strict proof in

respect of the alleged losses suffered.

Balkissoon’s Defence

12. On 23rd May, 2014, Balkissoon filed Defences in the negligence actions in which he admitted

that the collision occurred whilst the vehicle was being driven by him. However, he denied that

at the material time he was the servant and/or agent of Lee Wen as the vehicle was in his use

and custody for his own business and purposes.

13. Further, Balkissoon denied that he drove the vehicle negligently. He alleged that the accident

occurred as follows:

i. At the material time, he was driving along the San Fernando Bypass at less than 70 km/hr.

In continuing straight and not entering upon the overpass, he reduced his speed to

approximately 50 km/hr., continuously slowing; ii. In negotiating the curve and being upon

the area of the roadway which accommodates traffic from the overpass, a vehicle veered over

to his lane giving him no opportunity by time or space but to try to apply brakes and veer away

from it; iii. In the agony of the moment, when he attempted to avoid a certain collision with

the unknown vehicle, he lost control of the vehicle; iv. His next recall was being in his vehicle

in a vertical position on its front bumper between the bridges on the bypass;

v. But for the unknown vehicle exiting the overpass and veering unto his lane the accident

would not have occurred.

of 41

Maritime’s Defence

14. On 14th March, 2014, Maritime filed Defences in the negligence actions in which it put Riley

Gill and Waddle to strict proof that the 28-days’ Notice had been given, as required under the

Motor Vehicles Insurance (Third Party Risks) Act, Chapter 48:51 (hereinafter called “the

Act”).

15. Further, Maritime averred that it was entitled to avoid the policy issued to Lee Wen on the basis

that it was obtained through non-disclosure or misrepresentation of a material fact. As to the

particulars of the collision and negligence, Maritime neither admitted nor denied the allegations

but put Riley-Gill and Waddle to strict proof in respect of their alleged losses.

The Avoidance Action

The Claim

16. By Amended Claim Form and Statement of case filed on 18th November, 2014, Maritime

alleged that it provided motor insurance coverage to Lee Wen via Policy of Insurance No. PCP-

518-490-000 (hereinafter referred to as “the policy”) and Certificate of Insurance No. 365588,

effective 4th February, 2009.

17. Further, the policy was issued to Lee Wen based on its risk assessment which considered the

information provided and/or facts represented and/or disclosed by him in respect, inter alia, his

accident history and the age of potential drivers of the vehicle. Lee Wen indicated that the

vehicle would not be driven by anyone under the age of 25 or whose licence was in force for

less than 2 years and that in the preceding 4 years neither he nor any contemplated driver had

been involved in any accidents.

18. After subsequent renewals, on or about 3rd April, 2013, Lee Wen sought to add Balkissoon, who

was 20 years old at the time, as a named driver of the vehicle under the policy and informed

Maritime that Balkissoon had no prior accidents. Based on this information, Maritime extended

the policy to cover Balkissoon.

19. Maritime sought to avoid liability to indemnify Lee Wen and Balkissoon for any damages

awarded in the negligence actions as it discovered that Balkissoon was involved in three (3)

of 41

accidents prior to the said extension of coverage which Lee Wen failed to disclose and thereby

misrepresented a material fact.

20. As a consequence, Maritime sought a declaration that it is entitled to avoid the policy, pursuant

to Section 10(3) of the Act or, in the alternative, on the basis that the policy was obtained

through Lee Wen’s non-disclosure or misrepresentation of a material fact. Maritime also sought

an order as to costs against Lee Wen, Riley-Gill and Waddle.

The Defences

Lee Wen-No Defence

21. Lee Wen failed to file a Defence in the avoidance action and an application for default judgment

was filed by Maritime on 28th May, 2014.

Riley-Gill and Waddle’s Defence

22. By Defence filed on 22nd January, 2015, Riley-Gill and Waddle averred that Maritime was

aware that Balkissoon was 20 years old at the material time and was not entitled to avoid liability

under the Act, whether on the basis of non-disclosure or inducement by Lee Wen.

ISSUES

23. The following issues arise for determination in the negligence actions and the avoidance action:

a. Was Balkissoon negligent in the driving of the vehicle on the date of the accident?

b. Was Balkissoon a servant and/or agent of Lee Wen at the material time?

c. Are Lee Wen and/or Balkissoon liable to the Claimants in the negligence action?

d. Is Maritime entitled to avoid liability to indemnify Lee Wen and/or Balkissoon on the

grounds of material non-disclosure and/or misrepresentation?

e. Are the Claimants in the negligence actions entitled to the reliefs sought against Lee Wen

and/or Balkissoon and/or Maritime? If so, in what amount?

DISPOSITION

24. For the reasons hereinafter set out, I have come to the following conclusions on these

issues:

of 41

a. Balkissoon was negligent in the driving of the vehicle on the date of the accident;

b. Balkissoon was not the servant and/or agent of Lee Wen at the material time;

c. Lee Wen is not liable for the negligent driving of the vehicle by Balkissoon but

Balkissoon is liable to the Claimants;

d. Maritime is entitled to avoid liability to indemnify Balkissoon for the award of

damages made against him.

e. Riley-Gill and Waddle are entitled to the following awards of damages against

Balkissoon:

• Riley-Gill - $20,000.00 for loss of expectation of life, $170,000.00 for the

lost years together with interest of 2.5% per annum, and $750.00 as a

nominal award for special damages together with interest of 2.5% per

annum.

• Waddle - $40,000.00 for loss of expectation of life, $340,000.00 for the lost

years together with interest of 2.5% per annum, and $1,250.00 as a nominal

award for special damages together with interest of 2.5% per annum.

ISSUE A: BALKISSOON WAS NEGLIGENT

Law

25. According to Halsbury’s Laws of England:2

“62. The burden of proof in a claim for damages for negligence rests primarily on the

claimant, who, to maintain the action, must show that he was injured by a negligent act or

omission for which the defendant is in law responsible. This involves the proof of some duty

owed by the defendant to the claimant, some breach of that duty, and an injury to the

claimant between which and the breach of duty a causal connection must be established…

Where the evidence relating to negligence is particularly within the control of the defendant,

little affirmative evidence may be required from the claimant to establish a prima facie case

which it will then be for the defendant to rebut.

2 Negligence, Volume 78 (2010) at paras 62-63.

of 41

63. It is for the claimant to prove on the balance of probabilities facts from which the proper

inference is that the injury complained of was the result of the defendant's negligence…”

26. As to the doctrine of res ipsa loquitur, Halsbury’s Laws of England3 goes on to state that:

“64. Under the doctrine res ipsa loquitur a claimant establishes a prima facie case of

negligence where (1) it is not possible for him to prove precisely what was the relevant act

or omission which set in train the events leading to the accident; and (2) on the evidence

as it stands at the relevant time it is more likely than not that the effective cause of the

accident was some act or omission of the defendant or of someone for whom the defendant

is responsible, which act or omission constitutes a failure to take proper care for the

claimant's safety…

65. The maxim res ipsa loquitur applies only where the causes of the accident are unknown

but the inference of negligence is clear from the nature of the accident. If the causes are

sufficiently known the case ceases to be one where the facts speak for themselves and the

court has to determine whether or not, from the known facts, negligence is to be inferred.

Where the defendant does give evidence relating to the possible cause of the damage and

level of precaution taken, the court may still conclude that the evidence provides an

insufficient explanation to displace the doctrine.”

27. As to the general duty of care to passengers Halsbury’s Laws of England4 states:

“42. The actual degree of care required of a carrier of passengers depends upon the

circumstances of each case… The driver of a vehicle owes a duty not only to his passengers,

but also to pedestrians and other traffic, to drive with reasonable care for their safety;

when an accident appears imminent he is justified if he takes action to avoid the immediate

and probably greater degree of danger, though at the risk of injuring his passengers, and

the standard by which his conduct is judged is that of the action which a driver of ordinary

sense and prudence would have taken in the circumstances…

45. Negligence must be proved by the party who alleges it, but where proof is given that

something which was under the control of the defendant or his employees has caused

3 Negligence, Volume 78 (2010) at paras 64-65. 4 Carriage and Carriers, Volume 7 (2015) at para 42.

of 41

damage, which would not have happened in the ordinary course of things if proper care

and skill had been used, the doctrine of res ipsa loquitur applies, and there is evidence of

negligence. Thus there is evidence of negligence if two trains come into collision, or if a

train leaves the rails or drives into the buffers, or if a vehicle overturns, stops suddenly,

loses a wheel, mounts the footpath, collides with a permanent structure on the footpath or

crosses the central reservation, or if a tyre bursts, or if an aircraft crashes on take-off. In

such cases, the happening of the accident is not conclusive, but only prima facie proof of

negligence, so that if the defendant calls no evidence there will be nothing to rebut the

inference of negligence and the claimant will be entitled to judgment. The defendant may

rebut the inference of negligence by giving evidence as to what actually did happen and

leave the claimant to prove negligence on his part. Even where the explanation for the

accident is not known, the defendant carrier may rebut the presumption by showing that

the accident is one which may reasonably have arisen from a cause for which he is not

responsible or if he satisfies the court that he took all reasonable care. The presumption

will have no application where it is shown that the accident was due to the wilful act of a

stranger, or to a cause beyond the control of the carrier, and which he could not have been

reasonably expected to foresee.”[emphases mine].

28. Where a defendant raises as a defence that the actions were taken in an emergency situation

or in the agony of the moment, the standard that is required is the objective standard of care

in negligence. As stated in Clerk and Lindsell on Torts (18th Ed.):

“All that is necessary in such a circumstance is that the conduct should not have been

unreasonable, taking the exigencies of the particular situation into account….”

29. This test was approved and applied by the Privy Council in Greene v. Sookdeo and others.5

Evidence

Riley-Gill and Waddle’s Evidence

30. In their witness statements, Riley-Gill and Waddle did not lead any direct evidence as to the

circumstances of the accident or the manner in which Balkissoon drove. However, at the trial,

5 [2009] UKPC 31

of 41

the parties agreed that the negligence actions should proceed on the admitted fact that after the

accident the vehicle was in a vertical position in between the bridges.

31. In my opinion, notwithstanding the fact that the Claimants did not lead any direct evidence in

support of the particulars of negligence pleaded in their Statements of Case, they are entitled

to rely on the doctrine of res ipsa loquitur. The undisputed facts are that Balkissoon was

driving the vehicle in a northerly direction along the San Fernando Bypass in the right lane

when the vehicle ran off the highway and became lodged in a vertical position between the

metal bridges as shown in photograph “CE 9”. It is also not in dispute that as a consequence

of this accident, Kadija, Khertima and Khadija sustained severe injuries from which they died.

On the basis of these undisputed facts, I consider that, on a balance of probabilities, the proper

inference to be drawn is that the effective cause of the accident was some act or omission of

Balkissoon which constituted a failure on his part to take proper care for the safety of the

passengers in his vehicle. Therefore, I am satisfied that there is reasonable evidence of

negligence on the part of Balkissoon and I proceed to consider the evidence of Balkissoon and

his witness, Teenisha Precious Garcia, to determine whether the accident happened without

any negligence on his part.

Balkissoon’s evidence

32. In his witness statement, Balkissoon gave the following evidence with respect to the accident:

i. He reduced his speed to around 50 km/hr. as he entered the single lane which continued

under the Cross Crossing Interchange and connected to the San Fernando Bypass. He

continuously reduced his speed towards manoeuvring the curve along that lane before

straightening and beginning to accelerate; ii. When he got to the point where vehicles

from the overpass of the Interchange using the feeder lane merge unto the Bypass, a

vehicle from the feeder lane suddenly appeared and unto his path on his lane; iii. He

did not have sight of this vehicle before its sudden and unexpected appearance in his

path; iv. Due to the speed at which the vehicle was driving and its sudden appearance

unto his lane, he had no other option to avoid a certain collision than to apply the brakes

of his vehicle and attempt to steer away from it;

of 41

v. In such circumstances, he lost control of his vehicle. He next became aware of himself

in the vehicle which was stuck in a vertical position facing downwards between the

two bridges;

vi. Due to his panic and desperate attempt in the heat of the moment to avoid a collision

with the vehicle, there was no time to take note of the type of vehicle or its registration

number.

33. Under cross-examination, however, Balkissoon gave the following evidence:

i. Before he entered the bend, his speed was 70 km/hr and he reduced his speed to around

40-50 km/hr. As he got into the bend his speed was about 50 km/hr. When he saw the

car on his left coming to hit his car, he attempted to mash his brakes and his speed at

that moment was 40-50 km/hr.

ii. Although he initially stated that he could not see anything coming from above on the

feeder lane and insisted that the first time he could see a vehicle was when the feeder

lane merges into the bypass, when shown photograph “CE 6”, he accepted that given

the length of the feeder lane, it was possible to see a vehicle with its lights on at night

travelling along the feeder lane towards the highway before it descends onto the

Bypass; iii. He pointed out and placed a mark on photograph “CE 2” to identify the

spot where he first saw the vehicle. (This mark is at a point where the feeder lane is at the

ground level of the highway and beyond where the white lines for the right lane and the feeder

lane connect.) He also said that he did not see the vehicle at all coming down the feeder lane

at any time before the point that he marked when it had reached the ground level of the

highway and entered the highway Further, he stated that it is only at the end of the railing that

a person would first see a car coming along the feeder lane and that when he made the left

turn on the bend, he did not look to his left since he was focused on his lane and he did not

look in the direction of the feeder lane to see the other vehicle until the last minute. However,

he later admitted that he saw the lights of the vehicle coming down the feeder lane in its own

lane and that he first saw the vehicle through his left passenger window and, when he saw its

lights, the vehicle was on his left side and not in front of him in his path; iv. He admitted that

the unknown vehicle never came into his path ahead of him or behind him. He believed the

vehicle was coming from the side to enter his lane and ram his vehicle on the left and this

of 41

caused him to feel danger. For that reason, he took evasive action by pulling away. However,

the vehicle never came into his lane and he only thought it was going to do so;

v. When he saw the vehicle coming, he did not sound his horn; vi. He was not sure if he

mashed his brakes but maybe in his panic he mashed the accelerator instead; vii. He admitted

that his vehicle was overloaded in the back seat and that the overloading may have had an

aspect to play in his control of the vehicle; and viii. With respect to the speed of the vehicle,

Balkissoon stated that he was driving at 70 km/hr. before he entered the bend. This is

approximately 43 miles/hr. He then reduced his speed to 40-50 km/hr. which is equivalent to

approximately 25 to 31 miles/hr.

34. Teenisha Precious Garcia, another passenger in the vehicle on the morning of the accident,

gave evidence on Balkissoon’s behalf. In her Witness Statement, she stated as follows:

“6. As the second Defendant entered the single lane that continues under the Cross

Crossing Interchange I felt the Mazda slow down with a continuing reduction in its speed

as it drove closer to under the interchange and beyond.

7. From my position in the back seat of the Mazda sitting forward I had a clear view

of the road ahead of us and I recall the road being clear of any vehicles.

8. As we approached the point where the feeder lane from the over-pass joins the

bypass, a car from the feeder lane suddenly appeared and drove abruptly unto our path.

Prior to being in our path I did not see the car which came from the feeder lane…

9. … At no time prior to this while the vehicle was being driven along the single lane

and unto the bypass did the vehicle ever skid or were brakes suddenly applied to the vehicle

causing it to skid or did I feel any brakes suddenly applied to the vehicle so as to cause it

to skid or to leave any tyre impression along the roadway.”

35. Under cross-examination, Ms. Garcia gave the following evidence with respect to the collision:

“When he straightened up there were no vehicles in front of him in his lane. When I first

saw the vehicle it was not in the feeder lane. It was on the main road on the left lane. It was

not directly in front of us but it seemed that if we did not stop we would collide. That means

of 41

it would have been ahead. I did not see the vehicle in the feeder lane. It was on the bypass.

It was approaching the right lane at an angle. It got into my lane. He did not mash brakes.

He pulled the car to the right. I saw him pull the steering wheel to the right. I shut my eyes.

I cannot say if I felt a bump from the embankment. All I can say is that when I saw him pull

to the right I shut my eyes.”

Analysis and Findings

36. I propose to examine the evidence led by Balkissoon and his witness under the following broad

headings:

a) The speed at which Balkissoon was driving the vehicle;

b) His observation of a vehicle coming from the feeder lane; and

c) His conduct as a consequence of the presence of this vehicle.

Speed

37. The question that arises here is whether I believe that at approximately 3.30 to 4.00 a.m. on a

Sunday morning Balkissoon was travelling as slowly as he said he was. For the reasons

hereinafter set out, I do not.

38. In my opinion, it is more probable that Balkissoon was travelling at a speed substantially in

excess of the speed limit of 50 km/hr. when he drove along the highway after leaving the night

club. He had five persons in his vehicle to transport to their homes, namely Kafiya to

Pleasantville, Khertima and Khadija to Marabella, Teenisha Garcia to Marabella and

Akenathon to Point a Pierre. At that hour on a Sunday morning, traffic on the Solomon

Hochoy Highway would have been light and I do not believe that Balkissoon drove along the

highway at such moderate speeds. Further, although he may have reduced his speed as he

approached the sharp left bend, I believe that Balkissoon was still travelling at an excessive

speed above the speed limit and too fast for the road conditions that he encountered.

Observation of vehicle in feeder lane

39. Initially, Balkissoon contended that he could not see anything coming from above on the

feeder lane and that it is only at the end of the railing that a person would first see a car coming

along the feeder lane. Under cross-examination, however, Balkissoon admitted that it was

of 41

possible to see a vehicle with its lights on at night travelling along the feeder lane towards the

highway before it descends onto the bypass. Further, he admitted that he saw the lights of the

vehicle coming down the feeder lane in its own lane. The effect of these admissions is they

contradict his testimony that a vehicle from the feeder suddenly appeared and unto his path

on his lane and that he had no sight of the vehicle before its sudden and unexpected appearance

in his path. Accordingly, I believe, and so find, that Balkissoon saw the vehicle coming down

feeder lane in its own lane and not when the vehicle had already entered onto the highway.

40. More than once in his witness statement, Balkissoon stated that the vehicle from the feeder

lane appeared in his path. This evidence was advanced to justify why he had no other option

but to apply his brakes and attempt to steer away from it. However, under cross-examination,

he admitted that that vehicle never came into his path ahead of him or behind him and that he

only thought it was going to do so. This admission also contradicted the testimony of his

witness, Ms. Garcia, who gave evidence that “a car from the feeder lane suddenly appeared

and drove abruptly unto our path” and that “it got into my lane”. Therefore, based on this

evidence, I believe, and so find, that the vehicle drove from the feeder lane into the highway

in its own lane and did not at any time drive into the path of Balkissoon’s vehicle.

Balkissoon’s conduct

41. In his Defence and in his witness statement, Balkissoon sought to contend that the vehicle from

the feeder lane veered over to his lane and that, in the agony of the moment, he attempted to

avoid a certain collision with that vehicle by taking evasive action. In my evaluation of the

evidence of Balkissoon and of his witness, therefore, I must first be satisfied that he was

confronted with an emergency situation and that, in such a circumstance, his conduct was not

unreasonable, taking the exigencies of the particular situation into account. 6

42. In my opinion, having regard to my earlier findings that Balkissoon saw the vehicle coming

down the feeder lane in its own lane and not when the vehicle had already entered onto the

highway and that the vehicle drove from the feeder lane into the highway in its own lane and

did not at any time drive into the path of Balkissoon’s vehicle, I do not accept that Balkissoon

was confronted with an emergency situation. Having seen the vehicle in the feeder lane before

6 Greene v. Sookdeo (ibid)

of 41

it entered the highway, Balkissoon had the opportunity to reduce his speed, apply his brakes,

sound his horn and take such measures as would have enabled him to continue to drive safely

in his proper lane and thereby avoid taking the drastic evasive action that he did. Unfortunately,

he failed to take advantage of that opportunity.

43. Further, taking into account the particular exigencies of the situation, I am of the opinion that

Balkissoon’s conduct was not reasonable. According to his evidence in his witness statement,

he had no other option to avoid a certain collision than to apply the brakes of the vehicle and

attempt to steer away from him and in the circumstances he lost control of the vehicle. Under

cross-examination, however, he said that he pulled away from the vehicle because he feared

that it was going to ram his vehicle even though the vehicle was in its own separate lane and

not in his lane. Further, he said that in his panic he may have stepped on the accelerator and not

the brakes and his witness, Ms. Garcia stated that he did not mash his brakes.

44. On the totality of the evidence, therefore, I am of the opinion that it is as a result of the fast rate

of speed that he was driving, Balkissoon found himself in a situation where, although he

observed the vehicle coming from the feeder lane into the highway, he failed to take reasonable

precautionary measures so as to ensure that he safely negotiated the bend in the highway, such

as reducing his speed sufficiently as he proceeded into the left bend or sounding his horn. As a

consequence, he became fearful that the vehicle coming from the feeder lane would collide

with his vehicle and he was unable to assess that so long as the vehicle remained in its proper

lane, which it did, there was in fact no risk of the two vehicles colliding. Further, as a result of

his misjudgement of the direction of the vehicle and of the situation with which he was

confronted, he reacted in panic and pulled violently away to his right without applying his

brakes. In my opinion, this response was both unnecessary and unreasonable because the

vehicle was not in his path or lane. As a consequence of such action which revealed a lack of

skill on his part and a lack of reasonable care for the safety of his passengers, he mounted the

median and proceeded at a fast rate of speed to collide with the bridge and landed on the front

bumper between the two arches of the bridge.

45. In the circumstances, I find that Balkissoon’s explanation of the circumstances of the accident

has failed to satisfy me that it occurred without any negligence on his part. On the contrary, his

of 41

evidence clearly demonstrates that he drove the vehicle in a negligent manner on the night of

the accident and that his negligence resulted in the deaths of Kafiya, Khertima and Khadija.

ISSUE B: BALKISSOON WAS NOT THE SERVANT AND/OR AGENT OF LEE WEN

AT

THE MATERIAL TIME

Law

46. In Barnard v Sully7 the Court of Appeal ruled that in an action for negligence, where the

Claimant has proved that damage has been caused by the Defendant’s vehicle, the fact of

ownership of the vehicle is prima facie evidence that at the material time, it was being driven

by the owner or by his servant or agent. Scrutton L.J. stated that:8

“… the more usual fact was that a motor-car was driven by the owner or servant or agent

of the owner, and therefore the fact of ownership was some evidence fit to go to the jury

that at the material time the motor-car was being driven by the owner of it or by his servant

or agent. But it was evidence which was liable to be rebutted by proof of actual facts.”

47. Barnard (supra) was applied in the Privy Council decision in Rambarran v Gurrucharran

where it was stated that:9

“… ownership of a motor vehicle (which at the time of an accident is being driven by

another for his own purposes and without the knowledge of the owner) is prima facie

evidence that the driver was the agent or servant of the owner and that the owner is

therefore liable for the negligence of the driver, that inference may be displaced by

evidence that the driver had the general permission of the owner to use the vehicle for his

own purposes, the question of service or agency on the part of the driver being ultimately

a question of fact”

48. These two authorities were applied locally in Saunders v Des Vignes & Ors.10 Therein

Mendonca JA. stated that:

7 (1931) 47 Times Law Reports 557. 8 Ibid at p. 558. 9 [1970] 1 All ER 749. 10 CA No. 138 of 2006 at para. 18.

of 41

“For the Appellant to succeed therefore it must be established that the person who was

driving the vehicle was doing so as the First Respondent’s servant or agent and not merely

for his own benefit and concern. The only evidence to suggest that the vehicle was being

driven by the First Respondent’s servant or agent is that she owned the vehicle. In the

absence of other evidence an inference may be drawn from the fact of ownership of the

vehicle that at the material time it was being driven by the owner’s servant or agent….The

inference may however be rebutted by establishing that at the material time the vehicle was

not being driven for any purpose of the owner…”

49. In Singh and Others v Ansola11 Mendonca JA. also stated that:

“29. Apart from the master servant relationship, the owner may be liable on the principle

of agency. As Lord Pearson noted in Morgans v Launchbury and Others [1972] 2 All ER

606,613:

“If the car is being driven by a servant of the owner in the course of the employment or by an agent

of the owner in the course of the agency, the owner is responsible for negligence in the driving.” In that

case it was held that to establish the existence of an agency relationship it was necessary

to show that the driver was using the car at the owner’s request, express or implied, or on

his instructions, and was doing so in the performance of a task or duty delegated to him by

the owner.” [emphasis mine].

50. As to the concept of agency, Halsbury’s Laws of England12 states that:

“1. The terms 'agency' and 'agent' have in popular use a number of different meanings, but

in law the word 'agency' is used to connote the relation which exists where one person has

an authority or capacity to create legal relations between a person occupying the position

of principal and third parties.

The relation of agency arises whenever one person, called the 'agent', has authority to act

on behalf of another, called the 'principal', and consents so to act. Whether that relation

exists in any situation depends not on the precise terminology employed by the parties to

11 Civ. App. No. 169 of 2008 and Civ App. No. 121 of 2008 at para. 29 12 Volume 1 (2008)

of 41

describe their relationship, but on the true nature of the agreement or the exact

circumstances of the relationship between the alleged principal and agent…

2. In addition to describing a person employed to create contractual relations between two

parties, the word 'agent' is used in at least two other senses. Thus it is often used in business

in a non-legal sense to refer to a distributor, … The word 'agent' is also frequently used to

describe the position of a person who is employed by another to perform duties often of a

technical or professional nature which he discharges as that other's alter ego and not

merely as an intermediary between the principal and the third party. Thus a solicitor may

be his client's agent for the purpose of instituting or continuing legal proceedings on his

behalf. Similarly where a person other than a servant is permitted by the owner of a vehicle

to drive it for the owner's purposes, the driver will be the owner's agent for the purpose of

making the owner vicariously liable for the driver's negligence in driving.”

51. Halsbury’s Laws of England12 states as follows in respect of an authorized driver:

“697. A motor policy often contains a provision extending the insurance cover, usually

against third party risks only, to any person driving the insured car on the order or with

the permission of the insured, the permitted driver being treated as though he were the

insured. Such a provision is required if the insured is in the habit of causing or permitting

his car to be driven by another person because if the insured, in the absence of such a

provision, causes or permits his car to be so driven, and the other person does not himself

hold an insurance policy covering him while driving the car, the insured will not only be

guilty of an offence but will also be responsible for injuries, within the scope of compulsory

insurance, caused by the use of the car, the uninsured use being a breach of statutory duty

by the insured who has caused or permitted it...

698. A permitted driver is not directly a party to the original contract of insurance, and on

ordinary common law principles of contract law he cannot have any right to proceed

against the insurers on the policy unless it is possible to show that the insured, when making

the contract, intended to act as agent or trustee of the permitted driver. Frequently this is

not possible because the particular permitted driver was not, at that time, in contemplation

12 Volume 60 (2011)

of 41

at all. It is, however, laid down by statute that if insurers issue a motor policy covering

compulsorily insurable risks, they are liable to indemnify any persons or classes of persons

specified in the policy in respect of any liability which the policy purports to cover in the

case of those persons or classes of persons. The permitted driver, accordingly, has a direct

right of action within the ambit of this provision against the insurers. In effect he becomes

a party to the contract of insurance, but he must take the contract as he finds it; he cannot

excuse a breach of a condition by pleading that he was unaware of its terms or existence.”

Evidence

Riley-Gill and Waddle’s Evidence

52. In their respective Statements of Case13, Riley-Gill and Waddle alleged that at the material

time Balkissoon was the servant and/or agent of Lee Wen. However, they did not lead any

evidence in support of this contention.

Lee Wen’s Evidence

53. In Lee Wen’s Defence, he contended that, although he was the owner of the vehicle, at the

material time Balkissoon was not his servant and/or agent.

54. In his Witness Statement,14 Lee Wen stated that although he was the registered owner of the

vehicle, he had surrendered same to Balkissoon, his nephew, as an act of family generosity

since May 2013, for his own use. He further stated that the vehicle was kept by Balkissoon at

his home and under his custody, care and control for his own purposes and not those of Lee

Wen. He stated that, towards granting exclusive use of the vehicle to Balkissoon, he applied to

Maritime to have his name included as an authorised driver and his name was duly included.

He also stated that Balkissoon was responsible for the vehicle’s maintenance, repair and all

other expenditure as to its use.

55. Lee Wen was not cross-examined and accordingly his evidence remained unchallenged.

13 At para. 10. 14 Witness Statement of Lee Wen filed on 13th March, 2015.

of 41

Balkissoon’s Evidence

56. In Balkissoon’s Defence, he also contended that at the material time he was not the servant

and/or agent of Lee Wen.

57. In his Witness Statement15 Balkissoon corroborated Lee Wen’s evidence in respect of the use

of the vehicle. He stated that he used the vehicle on his own behalf and for his own interest and

not on any business or concern of Lee Wen.

58. Balkissoon was not challenged on this evidence during cross-examination.


59. Having considered the evidence adduced on this issue as well as the law, I am of the opinion

that at the material time Balkissoon was not the servant and/or agent of Lee Wen. Riley-Gill

and Waddle did not lead any evidence in support of their allegations and Lee Wen or

Balkissoon were not cross-examined or challenged on this aspect of their evidence.

Accordingly, I accept the unchallenged evidence of Lee Wen and Balkissoon that, at the

material time, Balkissoon was not the servant and/or agent of Lee Wen as the vehicle was being

used by Balkissoon solely for his own concern and benefit. This rebuts the prima facie

presumption that the driver was a servant and/or agent of the owner.

60. I have also noted that at page 2 of his submissions filed on 16th June, 2016, Counsel for Riley-

Gill and Waddle appears to have accepted that Balkissoon was not the servant and/or agent of

Lee Wen since he submitted that paragraphs 3-5 of Balkissoon’s Witness Statement make it

clear that Lee Wen is not liable.

ISSUE C: LEE WEN IS NOT LIABLE FOR THE NEGLIGENT DRIVING OF THE

VEHICLE BY BALKISSOON BUT BALKISSOON IS LIABLE TO THE CLAIMANTS

61. In the light of my earlier findings that Balkissoon was negligent in the driving of the vehicle

and that, at the material time, he was not the servant and/or agent of Lee Wen, the determination

of this issue is straightforward.

15 Witness Statement of Balkissoon filed on 13th March, 2015 at paras. 3 and 5.

of 41

62. Riley-Gill and Waddle alleged that Lee Wen is liable because Balkissoon was his servant

and/or agent. Since I have found against them on that issue, I also find that Lee Wen cannot be

held liable for the negligence of Balkissoon.

63. In respect of the liability of Balkissoon for his negligent driving, Senior Counsel submitted that

Riley-Gill and Waddle are not entitled to succeed against Balkissoon on the basis of their

pleadings which alleged that Balkissoon drove the vehicle as servant and/or agent of Lee Wen

and did not allege that he did so as a principal in his own right. Accordingly, he submitted that

if the Court finds that Balkissoon was not the servant and/or agent of Lee Wen, he cannot be

held liable.

64. I respectfully disagree with this submission. In both Statements of Case in the negligence

actions, it was alleged that Balkissoon, “the servant and/or agent of the First Defendant so

negligently drove managed and/or controlled motor vehicle registration number PCL 6804

that he lost control of same and caused and/or permitted motor vehicle PCL 6804 to collide

with the metal bridge at the said interchange and land on its front bumper in a vertical

position….”

65. It is my understanding of this pleading that the Claimants were making two distinct allegations:

i. Balkissoon was negligent in his driving and management of the vehicle; and

ii. At the material time, he was the servant and/or agent of Lee Wen.

66. The fact that Riley-Gill and Waddle have not been able to establish that Balkissoon was the

servant or agent of Lee Wen impacts on their ability to succeed in their claim against Lee Wen.

However, this does not detract from their claim that Balkissoon should be held liable for his

negligent driving. I have already found that Balkissoon was negligent in his driving of the

vehicle and, in my opinion, he should be held personally liable for such negligent driving.

ISSUE D: MARITIME IS ENTITLED TO AVOID LIABILITY TO INDEMNIFY

BALKISSOON FOR AN AWARD OF DAMAGES MADE AGAINST HIM.

Law

67. The relevant sections of the Act provide as follows:

of 41

“4. (7) Notwithstanding anything in any written law, rule of law or the Common Law, a

person issuing a policy of insurance under this section shall be liable to indemnify the

person insured or persons driving or using the vehicle or licensed trailer with the consent

of the person insured specified in the policy in respect of any liability which the policy

purports to cover in the case of those persons…

10. (1) If, after a certificate of insurance has been delivered under section 4(8) to the person

by whom a policy has been effected, judgment in respect of any such liability as is required

to be covered by a policy under section 4(1)(b) (being a liability covered by the terms of

the policy) is obtained against any person insured by the policy, then, notwithstanding that

the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy,

the insurer shall, subject to the provisions of this section, pay to the persons entitled to the

benefit of the judgment any sum payable thereunder in respect of the liability, in addition

to any amount payable in respect of costs and any sum payable in respect of interest on

that sum by virtue of any written law relating to interest on judgments…

10. (3) No sum shall be payable by an insurer under the foregoing provisions of this section,

if, in an action commenced before, or within three months after, the commencement of the

proceedings in which the judgment was given, he has obtained a declaration that, apart

from any provision contained in the policy, he is entitled to avoid it on the ground that it

was obtained by the non-disclosure of a material fact, or by a representation of fact which

was false in some material particular, or, if he has avoided the policy on that ground, that

he was entitled to do so apart from any provision contained in it.

However, an insurer who has obtained such a declaration in an action shall not thereby

become entitled to the benefit of this subsection as respects any judgment obtained in

proceedings commenced before the commencement of that action, unless before or within

seven days after the commencement of that action he has given notice thereof to the person

who is the plaintiff in the said proceedings specifying the non-disclosure or false

representation on which he proposes to rely, and any person to whom notice of such an

action is so given shall be entitled, if he thinks fit, to be made a party thereto.

(5) In this section the expression “material” means of such a nature as to influence the

judgment of a prudent insurer in determining whether he will take the risk, and, if so, at

of 41

what premium and on what conditions; and the expression “liability covered by the terms

of the policy” means a liability which is covered by the policy or which would be so covered

but for the fact that the insurer is entitled to avoid or cancel, or has avoided or cancelled,

the policy…

10A. (3) Where the insurer is joined as a co-defendant under this section, or is required to

pay to any person entitled to the benefit of a judgment under section 10, he shall be liable

to satisfy the judgment that may be obtained against the insured in addition to all costs and

interest payable in respect of such judgment and any other costs for which the insured may

be made liable.” [all emphases mine].

68. The leading authority on the duty of disclosure is the House of Lords decision in Pan Atlantic

Insurance Co Ltd v Pine Top Insurance Co Ltd.16 In applying the reasoning of the Pan

Atlantic case, Warner JA, stated as follows in Hosein and Bache v Gulf Insurance

Limited:17

“… the House of Lords held that the test of materiality was whether the relevant

circumstances would have had an effect on the mind of a prudent insurer in weighing up

the risk and not whether it would have had a decisive effect to accept the risk. In order to

be entitled to avoid a contract of insurance or reinsurance, an insurer or reinsurer must

prove on a balance of probabilities that he was induced to enter into the contract by a

material non-disclosure or by a material misrepresentation. The test of inducement is a

subjective one.

9. The House of Lords in Pan Atlantic unanimously agreed that even though actual

inducement was not expressly stipulated in section 18 (2) of the Marine Insurance Act 1906

(which is equivalent to section 10 (5) of the Act), there is to be implied a qualification that

a material misrepresentation will not entitle the underwriter to avoid the policy unless the

misrepresentation induced the making of the contract using ‘induced’ in the sense in which

it is used in the general law of the contract. (per Lord Mustill).”

16 (1995) AC 1 501 17 Civ App. No. 95 of 2004/ Civ App. No. 105 of 2004 at paras. 8-9.

of 41

Evidence

Maritime’s Evidence

69. In its Statement of Case, Maritime alleged that Lee Wen had misrepresented or failed to

disclose a material fact which they relied upon to extend insurance coverage to Balkissoon and

as a result they were entitled to avoid the policy.

Baliram Sawh

70. At paragraph 21 of his Witness Statement, Mr. Sawh, General Manager - Maritime stated that

in the assessment of risk, whether or not the proposed insured and specified or named drivers

of a vehicle have an accident history during the preceding 3-4 years is a critical consideration

and also features in the calculation of premiums and the establishment of terms and conditions.

In relation to Maritime’s coverage of the vehicle, Mr. Sawh indicated that by proposal form

dated 4th February, 2009, Lee Wen made a proposal for motor insurance coverage which said

form expressly sensitized and/or informed and/or notified Lee Wen that the questions in it

provided information to enable Maritime to assess the risk in accepting coverage of the vehicle.

71. Mr. Sawh indicated that, based on the information provided by Lee Wen, Maritime issued the

policy effective 4th February, 2009. In relation to the issue at hand, Mr. Sawh stated, inter alia:

“34. The Files show that on 03rd April, 2013, during the last period of coverage, the

Defendant sought to add David Balkissoon as a specified or named driver of PCL 6804

under the Policy and extend coverage to him…

36. In the case of young and/or inexperienced drivers, accident history is critical in the

assessment of risk and the calculation of the premium, if accepted.

37. As such, in order to calculate the premium and to properly assess the further risk

which it would be assuming in extending motor insurance coverage for PCL 6804 to David

Balkissoon [the further risk], he being a driver who was then 20 years, additional specific

information was required from the Defendant on the accident history of David Balkissoon,

namely, whether, he had been involved in any motor vehicle accidents whilst driving

within the preceding 3 or 4 years. He would have been required to have filled out an

under-aged driver request…

of 41

41. The under-aged driver request had put the Defendant on enquiry as to the accident

history of David Balkissoon.

42. The under-aged driver request shows that in response to the specific question posed

and/or information sought on the accident history of David Balkissoon, the Defendant

responded “Nil”. In so doing, the Defendant represented to Maritime that David

Balkissoon had not been involved in any motor vehicular accidents prior to 03rd April,

2013 whilst in driving or at all.

43. The under-aged driver request did not disclose that David Balkissoon had been

involved in motor vehicle accidents prior to 03rd April, 2013 whilst driving or at all…

49. Subsequent to the occurrence of the subject collision, it was discovered by Maritime

that the representation on the under-aged driver request that David Balkissoon had had

no prior accidents was untrue or false in fact and that David Balkissoon had been involved

in motor vehicular accidents prior to 03rd April, 2013 whilst he was driving. These were

as follows:

a. Accident on 07th March, 2011… involving vehicle PCL 8973 being driven by David

Balkissoon… This accident was reported to the Police.

b. Accident on 21st May, 2011… involving vehicle PCA 4078 being driven by David

Balkissoon… This accident was reported to the Police.

c. Accident on 05th March, 2013… involving vehicle PCA 4078 being driven by David

Balkissoon... This accident was reported to the Police.”

David Lee-A-Ping

72. In his Witness Statement, Mr. Lee-A-Ping stated that he has in excess of 30 years’ experience

in the area of underwriting and was approached by Maritime to provide an expert opinion on

the underwriting of young drivers with adverse accident history. He stated that in the instant

matter, the “Nil” response on the request form with respect to the accident history of Balkissoon

would have induced Maritime to have accepted the already higher risks associated with young

drivers. In his estimation, had the prior accidents been disclosed, the underwriter would have

had the opportunity to more correctly evaluate the further increased risk and act in accordance

of 41

with that evaluation by either declining Balkissoon or accepting him at terms and conditions

commensurate with the risk.

Stephen Smith

73. In his Witness Statement, Mr. Smith gave evidence in relation to Maritime’s retention of

Insurance Investigations Services Limited (IISL) to conduct investigations on the accident

history of Balkissoon, in specific relation to police records which showed his involvement in

two accidents dating 7th March, 2011 and 21st May, 2011. He stated that in his capacity as

Operations Manager he appointed Lenus Samaroo to conduct the said investigations.

Subsequent to these investigations, Mr. Samaroo provided him with two Investigation Reports

(annexed to his Witness Statement as “SS1” and “SS2”) which reflected and confirmed that

Balkissoon had been involved in two prior accidents on the aforementioned dates.

Lenus Samaroo

74. In his Witness Statement, Mr. Samaroo stated that he was an Insurance Investigator in the

employ of IISL and pursuant to instructions from Mr. Smith he conducted investigations into

the accident history of Balkissoon and located specific police records which showed his

involvement in two accidents dated 7th March, 2011 and 21st May, 2011. He stated that he

viewed the police reports in respect of these two accidents and extracted the relevant

information and prepared and submitted reports to Mr. Smith based on same. He stated that:

“13. I visited the San Fernando Police Station where I located a report of the First

Accident on the computer database…which indicated that David Balkissoon was the

driver of PCL 8973 and as well the informant to the Police of the occurrence of the First

Accident…

14. … I also located a report of the second Accident on the computer database… which

indicated that David Balkissoon … was the driver of PCA 4078 and as well one of the

informants to the Police of the occurrence of the Second Accident…”

Vernon Hanslal

75. In his Witness Statement, Mr. Hanslal gave evidence in relation to Maritime’s retention of

Exponential Investigation Services Limited (Exponential) to conduct investigations on the

accident history of Balkissoon in specific relation to police records which showed his

of 41

involvement in an accident dated 5th March, 2012. He stated that, in his capacity as Managing

Director, he conducted the investigation himself. He stated that he viewed the police report in

respect of this accident and extracted the relevant information and prepared and submitted a

report to Maritime based on same. He stated that:

“11. I visited the Chaguanas Police Station where I located a report of the accident on

the computer database … The driver of PCA 4078 was recorded as being David

Balkissoon…”

Lee Wen—No evidence

76. As stated earlier, Lee Wen failed to file a Defence to this action and led no evidence at the trial

in respect of same.

Riley-Gill and Waddle—No evidence

77. In their Defence Riley-Gill and Waddle submitted a bare denial in respect of Maritime’s

entitlement to avoid the policy and led no evidence in support of their Defences.


78. Having earlier determined that Balkissoon was not the servant and/or agent of Lee Wen and

that Lee Wen is not liable to Riley-Gill and Waddle, Maritime is not liable to indemnify Lee

Wen.

79. In respect of Balkissoon, who was a named authorised driver of the vehicle, I am of the opinion

that although Maritime is prima facie liable to indemnify him pursuant to Section 4(7) of the

Act, Maritime is entitled to avoid liability under the policy. My reasons are outlined hereunder:

i. Having considered the evidence of Mr. Samaroo and Mr. Hanslal in respect of the previous

accident history of Balkissoon, I am of the opinion that the “Nil” response of

Lee Wen in respect of same amounted to a non-disclosure and/or misrepresentation;

ii. Further, I am of the view that a prudent insurer would have considered Lee Wen’s

misrepresentation and/or non-disclosure to be material. To my mind, any prudent insurer

would be influenced by the previous accident history of a potential “authorized driver” in

their determination of whether to undertake the associated risk of such a decision. Implicit

in such a consideration would also be what conditions and at what cost would coverage

of 41

be extended, if at all. At paragraph 36 of his Witness Statement Mr. Sawh spoke to this

objective element. He said:

“36. In the case of young and/or inexperienced drivers, accident history is critical

in the assessment of risk and the calculation of the premium, if accepted.” Further,

Mr. Lee-A-Ping in his Witness Statement said:

“21. Factors which are relevant and which are considered by underwriters when

making a determination of whether or not to accept the risk associated with young

drivers include:

…. c. Accident history of the young driver…

Such factors are relevant and are considered by the underwriter because they

impact on risk and may increase the already higher than standard risk associated

with young drivers. Further, such factors are relevant to determining the rate of

premium if the risk is accepted.”

iii. In Alleyne v Colonial Fire and General Insurance Company Limited and Agostini

Insurance Brokers Limited18 the Court of Appeal examined whether the inability to see

properly was a material circumstance which should have been disclosed. In determining its

materiality, Mendonca JA. upheld the Trial Judge’s ruling that such a circumstance was so

obviously material that no evidence was required as to its materiality. So too in the instant

matter, I am of the view that the fact that a potential insured was involved in three (3) previous

accidents was so obviously material that Maritime need not have provided evidence of

materiality in all the circumstances of this case; and iv. In respect of the issue as to whether

Maritime proved that the misrepresentation induced them to extend coverage to Balkissoon

by including him as an authorized driver of the vehicle, I am of the opinion that the evidence

of Mr. Sawh once again provided a complete answer. He specifically stated that based on the

information provided to Maritime by Lee Wen in respect of Balkissoon’s previous accident

history, coverage was extended and so done at a premium commensurate with same. At

paragraph 47 of his Witness Statement, he stated “I say that Maritime had been induced by

18 Civ. App. No. 58 of 2004

of 41

the representation on the under-aged driver request that David Balkissoon had had no prior

accidents to exercise its discretion in the Defendant’s favour and to accept the further risk

upon the Defendant’s payment of an additional premium which did not take any prior

accidents into account.”

ISSUE E: THE CLAIMANTS ARE ENTITLED TO RELIEFS SOUGHT AGAINST

BALKISSOON

Law – Loss of Expectation of Life and Loss of Earnings for the Lost Years

80. By virtue of Section 27 of the Supreme Court of Judicature Act, the estate of a deceased

can claim damages for the loss of expectation of life and loss of earning for the lost years.

Damages are also awarded for pain and suffering and special damages, where applicable.

Loss of Expectation of Life

81. In respect of loss of expectation of life a conventional sum is awarded which signifies that loss

was in fact suffered by virtue of the death of the deceased. On the authority of Tota-Maharaj

v Autocenter Limited and Others (HCA No. 46 of 2003) the standard sum awarded by the

courts in this jurisdiction is $20,000.00.

The Lost Years

82. In respect of Loss of Earnings for the Lost Years, an award is made to compensate the estate

for the portion of the earnings of the deceased lost as a consequence of the untimely death of

the deceased. This is calculated by application of the Multiplier/Multiplicand method. In

instances where there are evidential difficulties with respect to the likely earnings of a deceased

which make the calculation of the requisite Multiplier/Multiplicand approach futile, a lumpsum

award can be justified: Samlal v Adodha and Others, HCA S-1297 of 2003 and Blamire v

South Cumbria Health Authority (1993) 2 PIQR Q1.

Law – Special Damages

83. It is trite law that special damages are to be specifically pleaded and proved. In Rampersad v

Willies Ice-cream Ltd19 Archie JA (as he then was) stated that:

19 Civ App 20 of 2002

of 41

“The rule is that the plaintiff must prove his loss. The correct approach is as stated by Lord

Goddard C.J in Bonham Carter v Hyde Park Hotel [1948] 64 Law Times 177:

“Plaintiffs must understand that if they bring actions for damages, it is for them to prove

their damage, it is not enough to write down the particulars, so to speak, throw

them at the head of the court saying ‘this is what I have lost, I ask you to give me

these damages. They have to prove it.”

84. However, a Claimant who pleads special damages without producing documentary evidence

in support of same is not completely shut out as the court has a discretion to make an award

where the evidence is unchallenged. As Mendonca JA put it in Great Northern Insurance

Company Limited v Ansola:20

“[97] ...it seems clear that the absence of evidence to support a plaintiff’s viva voce evidence of

special damage is not necessarily conclusive against him. While the absence of supporting

evidence is a factor to be considered by the trial Judge, he can support the plaintiff’s claim

on the basis of viva voce evidence only. This is particularly so where the evidence is

unchallenged and which, but for supporting evidence, the Judge was prepared to accept.

Indeed in such cases, the Court should be slow to reject the unchallenged evidence simply

and only on the basis of the absence of supporting evidence. There should be some other

cogent reason.” (emphasis mine).

Evidence

Riley-Gill

85. By way of her Statement of Case, Riley-Gill sought damages for the loss of expectation of life

of Kafiya as well as consequential loss caused by negligence. In the Schedule of Loss annexed

to her Statement of Case she claimed $20,000.00 for the Loss of Expectation of Life of Kafiya.

She further claimed damages for the loss of earnings for Kafiya’s lost years.

20 Civ App 169 of 2008

of 41

86. She listed special damages amounting to $38,850.00 for the following expenses:

i. 40 days prayers;

ii. travelling expenses;

iii. installation of tombstone

iv. grocery items for wake;

v. Kafiya’s clothing, shoes and accessories (at funeral); and

vi. items lost on the day of the accident (phone, money, jewellery, clothing and shoes).

87. While this Claimant annexed a Schedule of Loss to her Statement of Case, her Witness

Statement did not annex any such particulars. Further, in her Witness Statement she stated that

she did not keep any of the receipts for groceries purchased for the wake. She also indicated

that while she rented chairs and the services of a taxi, she received tents and a portable toilet

from the Mayor and the State paid for the other funeral expenses such as the grave stone.

88. With respect to Kafiya’s earnings, Riley-Gill stated that at the time of her death she was

employed with the South West Regional Health Authority (SWRHA) earning a monthly salary

of $5,300.00. She also indicated that Kafiya had 8 CXC passes, had completed a psychology

course at the University of the West Indies (UWI) and had been accepted to study nursing at

the SWRHA. She also stated that the Kafiya wanted to become a psychologist or a psychiatric

nurse.

89. Under cross-examination, Riley-Gill admitted that she had failed to provide any evidence of

any monies she spent in relation to her daughter’s death. Further, she admitted that Kafiya had

just started working as a clerk at the SWRHA on a temporary basis and her alleged monthly

salary of $5,300.00 was not supported by the payslip annexed to the Statement of Case. She

stated that Kafiya was enrolled at the UWI, Open Campus to study three subjects but only

passed one. At time of the accident, she was not attending any school of learning and was now

going off into employment. Other than her academic qualifications, she did not bring any

evidence that Kafiya could get into university and successfully obtain a degree.

of 41

Waddle

90. By way of her Statement of Case, Waddle sought damages for the loss of expectation of life of

Khertima and Khadija as well as consequential loss caused by negligence. In the Schedule of

Loss annexed to her Statement of Case she claimed damages for loss of earnings for their lost

years.

91. She listed special damages amounting to $44,854.00 each for the following expenses:

i. 40 days prayers (tables, chairs and tents);

ii. funeral dressings;

iii. installation of tomb stones;

iv. grocery items for wake; and

v. items lost on the day of the accident (phones, money, jewellery, clothing and shoes).

92. While the aforementioned Schedule of Loss was annexed to her pleadings, this Claimant’s

Witness Statement did not contain or annex any such particulars. Further, she stated that she

did not keep any of the receipts for groceries purchased for the wake. She also indicated that

the tables, chairs and tents were provided by the Area Councillor and the State paid for the

other funeral expenses of Khertima and Khadija.

93. Waddle stated that at the time of their deaths, Khertima and Khadija were Form 6 students. She

also indicated that they both attained 8 CXC passes and had completed Unit 1 of their CAPE

Examinations. She stated that Khertima wanted to become an Accountant or a High School

Accounts Teacher while Khadija wanted to become a University Lecturer in English.

94. Under cross-examination, Waddle admitted that she made no record of anything that was

purchased or the cost thereof and had no receipts in respect of same. She also stated that neither

Khertima nor Khadija were employed at the material time. She admitted that while Khertima’s

CXC results were superior to Khadija’s, her Unit 1 CAPE results were not as good. In respect

of Khadija, she had obtained grades 4’s and 5’s in Unit 1 of CAPE exams.

of 41


95. It is to be noted that in the course of the trial, Counsel indicated that he was no longer pursuing

dependency claims on behalf of Riley-Gill and Waddle under the Compensation for Injuries

Act.

96. Further, it was agreed between the parties that based on the circumstances of Kafiya, Khertima

and Khadija in these actions (Kafiya being temporarily employed at time of death and

Khertima and Khadija being students at time of death), the only practicable means by which

an assessment of the Loss of Earnings for the Lost Years can be made is by adopting a lump

sum approach rather than the traditional Multiplier/Multiplicand method.

97. In respect of the reliefs sought against Balkissoon, I am of the opinion that Riley-Gill and

Waddle are entitled to the reliefs set out hereunder.

CV2014-00496 – Riley-Gill Claim


98. I award the sum of $20,000.00 for the loss of expectation of life. This is the conventional award

made in respect of this head of damages.21

The Lost Years

99. Having considered the submissions of the parties in respect of the approach to be adopted by

the Court in circumstances like the instant case, I am minded to award a lump sum award

under this head of damages.

100. By way of written submissions, Senior Counsel, Mr. Koylass, submitted that a sum not

exceeding $100,000.00 was an appropriate and fair assessment of damages taking into

consideration the paucity of evidence, the present economic climate and the known difficulties

in securing a job even for qualified professionals.

101. Counsel for Maritime, Mr. Persad also submitted that an award of $100,000.00 should be

awarded for the lost years, having regard to Kafiya’s age at the time of her death, her limited

21 Tota-Maharaj (supra)

of 41

accomplishments and the dearth of the evidence on salient aspects of the calculation as well as

the extensive discrediting of Riley-Gill’s testimony.

102. Counsel for Riley-Gill, Mr. Sanguinette submitted that the Court must take into

consideration that Kafiya had a good academic record and was working for approximately 34

months. He submitted that when inflation is taken into consideration since the award of

$175,000.00 in Samlal (supra), the sum of $400,000.00 should be awarded to Kafiya for the

lost years.

103. Having considered the aforementioned submissions, I am minded to award the sum of

$170,000.00. In Samlal (supra), which is comparable to the case at bar, the deceased therein

was 22 year old unemployed student. He attained 6 CXC and had also completed 2 years of

High School abroad. Further, at the time of his death was enrolled in a 2-year Diploma

programme at the School of Business and Computer Science; however, he was repeating Year

1. His estate was awarded a lump sum of $175,000.00 under this limb and Master Alexander

reasoned that based on the paucity of evidence a departure from the traditional

multiplier/multiplicand approach was justified. In arriving at this award in 2012, she stated that

the Court bore in mind the age of the deceased at the time of his death (22), the fact that he had

never worked before as well as the limited evidence that he was pursuing tertiary education.

There was no evidence as to his intention to complete his studies or to earn a degree or his

likely earnings.

104. Applying the reasoning of Master Alexander in Samlal (supra) I am of the view that an

award of $170,000.00 is reasonable in the circumstances as, at the time of her death, Kafiya

was 19 years of age and only temporarily employed. While she successfully obtained CXC

passes and one Advanced level subject and was recently accepted to study nursing, this does

not mean that she had yet embarked on tertiary level studies or that she would have successfully

qualified as a Psychiatric Nurse or Psychologist. Further, there is no evidence to support her

likely earnings in those professions or that she would have become permanently employed at

the SWRHA. To my mind, therefore, there are far too many imponderables as to Kafiya’s

career prospects and what she would have earned over the course of her working life: Blamire

(supra).

of 41

105. Accordingly, in my view this award is an appropriate sum, taking into account Kafiya’s

circumstances at the time of her death as well as the deficiency of evidence juxtaposed with

the future uncertainties and vicissitudes of life. Further, bearing in mind the discretionary

nature of interest I am minded to award interest on the lump sum at a rate of 2.5% per annum,

from the date of service of the Claim Form and Statement of Case to the date of the judgment

herein.22

Special Damages

106. Mr. Koylass and Mr. Persad both submitted that there was no evidence to support the claim

for special damages. Mr. Persad further submitted that by virtue of Riley-Gill’s testimony

under cross-examination her evidence as to loss was discredited. Mr. Persad however

submitted that nominal damages in the amount of $500.00 should be made for grocery items.

107. Mr. Sanguinette submitted that once the Court accepted that a wake and other personal items

of Kafiya were destroyed, it had the discretion to make a reasonable award, save and except

in relation to the tomb stone. He relied on Great Northern (supra). He submitted that 50%

of the total loss outlined in the schedule should be awarded along with 4% interest from the

date of the accident.

108. Having considered the submissions of the parties as well as the law and evidence adduced,

I am of the opinion that Riley-Gill is not entitled to an award of special damages based on

the amount claimed in her schedule of loss. In the first instance, there is no supporting

evidence upon which this Court can rely to justify an award of the amount claimed. In

addition, on the evidence, it was indicated that the State bore the cost of the funeral and

Riley-Gill was also assisted with items used at the wake. It is to be noted that the case of

Great Northern (supra) may be distinguished from the instant matter as in this matter, the

evidence of Riley-Gill was challenged.

109. To my min,d all that can be awarded to Riley-Gill under the head of special damages is

nominal damages as I can appreciate that grocery items would have been purchased for the

22 Jefford v Gee [1970] 1 AER 1202.

of 41

wake. Accordingly, I award special damages in the sum of $750.00 together with interest at

a rate of 2.5%,23 per annum from the date of the accident, 9th June, 2013 to the date of the

judgment herein.25

CV2014-00497 – Waddle Claim


110. I award the sum of $20,000.00 each for Khertima and Khadija for the loss of expectation of

life. This is the standard award made in respect of this head of damages.24

The Lost Years

111. As stated earlier, having considered the submissions of the parties in respect of the approach

to be adopted by the Court in these circumstances, I am prepared to award a lump sum award

under this head of damages.

112. By way of written submissions, Mr. Koylass, SC submitted that a sum not exceeding

$100,000.00 was an appropriate and fair assessment of damages taking into consideration the

paucity of evidence, the present economic climate and the known difficulties in securing a job

even for qualified professionals. Further, neither Khertima nor Khadija worked or had yet

completed high school and no evidence was given in relation to their potential, abilities or

future prospects.

113. Mr. Persad submitted that a similar award of $80,000.00 each should be awarded for the lost

years, having regard to their ages at the time of their death, their limited accomplishments and

the dearth of the evidence on salient aspects of the calculation.

114. Mr. Sanguinette applied the same reasoning as in Riley-Gill and submitted that as Khertima

and Khadija were still pursuing Caribbean Advanced Proficiency Examinations (CAPE), they

would attract a slightly lower award than Riley-Gill. Accordingly, he submitted the sum of

$300,000.00 each should be awarded.

115. Having considered the aforementioned submissions as to an appropriate lump sum award to

Waddle for the loss of earnings for the lost years of Khertima and Khadija, I consider the sum

23 Section 2 of the Remedies of Creditors (Amendment) Act, 2016, Act No. 8 of 2016. 25

Jefford (supra) 24 Tota-Maharaj (supra)

of 41

of $150,000.00 each to be an appropriate award. Applying the reasoning of Master Alexander

in Samlal (supra), I am of the view that this sum is reasonable in the circumstances as, at the

time of their deaths, they were 18 years of age, full time secondary school students and had

never been employed. While they successfully obtained CXC passes, they were enrolled in

their 2nd Year of CAPE. As in the case of Riley-Gill, in these circumstances, there are far too

many imponderables as to Khertima and Khadija’s career prospects and what they would have

earned over the course of their working life. Further, I am of the view that interest should be

awarded on the lump sum at a rate of 2.5% per annum from the date of service of the Claim

Form and Statement of Case to the date of the judgment herein.

Special Damages

116. As in the case of Riley-Gill, Mr. Koylass, SC and Mr. Persad both submitted that there was

no evidence to support the claim for special damages. Mr. Persad went on to submit that by

virtue of Waddle’s testimony under cross-examination her evidence as to loss was discredited.

Mr. Persad however submitted that nominal damages in the amount of $500.00 should be made

for grocery items.

117. Mr. Sanguinette applied the same reasoning as in Riley-Gill and submitted that, save and

except in relation to the tomb stone, Waddle should be awarded 50% of the total loss outlined

in the schedule with 4% interest from the date of the accident, which amounted to $18,000.00

for each.

118. Having considered the submissions of the parties as well as the law and evidence adduced,

I am of the opinion that Waddle is also not entitled to an award of special damages based on

the amount claimed in her schedule of loss. In the first instance, there is no supporting evidence

upon which this Court can rely to justify such an award. In addition, on the evidence provided,

it was stated that the State bore the cost of the funeral and Waddle was also assisted with items

used at the wake. As stated above, the case of Great Northern (supra) may be distinguished

from the instant matter since in this matter the evidence of Waddle was challenged.

119. Accordingly, I am prepared to make an award of nominal damages in respect of the

Waddle’s claim for special damages as I can appreciate that grocery items would have been

purchased for the wake. Accordingly, I award special damages in the sum of $1,250.00 together

of 41

with interest at a rate of 2.5%, from 9th June, 2013, the date of the accident, to the date of the

judgment herein.

ORDER

120. In respect of CV 2014-00496, I hereby order that:

i. The Claimant’s claim against the First Defendant is dismissed;

ii. The Second Defendant do pay to the Claimant the sum of $20,000.00 representing

damages for the loss of expectation of life; iii. The Second Defendant do pay to the

Claimant the sum of $170,000.00, representing damages for the lost years together with

interest at a rate of 2.5% per annum, from the date of service of the Claim Form and

Statement of Case to the date of the judgment herein; iv. The Second Defendant do pay

to the Claimant the sum of $750.00 representing a nominal award for special damages

together with interest at a rate of 2.5% per annum, from 9th June, 2013 to the date of the

judgment herein; and

v. The Claimant’s claim against the Co-Defendant is dismissed.

121. In respect of CV 2014-00497, I hereby order that:

i. The Claimant’s claim against the First Defendant is dismissed;

ii. The Second Defendant do pay to the Claimant the sum of $40,000.00, representing

damages for the loss of expectation of life; iii. The Second Defendant do pay to the

Claimant the sum of $3000,000.00, representing damages for the lost years, with interest

at a rate of 2.5% per annum, from the date of service of the Claim Form and Statement of

Case to the date of the judgment herein; iv. The Second Defendant do pay to the Claimant

the sum of $1,250.00 representing a nominal award for special damages, together with

interest at a rate of 2.5% per annum, from 9th June, 2013 to the date of the judgment

herein; and

v. The Claimant’s claim against the Co-Defendant is dismissed.

122. In respect of CV 2014-00690:

i. I hereby declare that the Claimant is entitled to avoid Policy of Insurance No.

PCP518-490-000 under the provisions of the Motor Vehicle Insurance (Third Party

of 41

Risks) Act, Chap. 48:51;

COSTS

123. In light of the Orders made herein and the costs budget order made on 22nd April 2016 in

the avoidance action, I will now invite the parties to address me on the appropriate Orders

for costs in these matters.

Dated 14th October, 2016

………………………….

André des Vignes

Judge

the republic of trinidad and tobago in the high court...

Documents