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THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
(SUB-REGISTRY, SAN FERNANDO)
Claim No. CV 2013-02152
BETWEEN
SHELDON NECKLES
Claimant
And
MONICA FORRESTER
otherwise MONICA JOSEPHINE FORRESTER
(The Legal Personal Representative of the Estate of MERVYN PETER FORRESTER
otherwise MERVYN P FORRESTER Deceased)
1st Defendant
MERVYN PETER FORRESTER
2nd Defendant
THE NEW INDIA ASSURANCE COMPANY (TRINIDAD AND TOBAGO) LIMITED
3rd Defendant
Claim No. CV 2013-02296
BETWEEN
KATHY ZANIFAR ALI
Claimant
And
MONICA FORRESTER
otherwise MONICA JOSEPHINE FORRESTER
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(The Legal Personal Representative of the Estate of MERVYN PETER FORRESTER
otherwise MERVYN P FORRESTER Deceased)
1st Defendant
MERVYN PETER FORRESTER
2nd Defendant
THE NEW INDIA ASSURANCE COMPANY (TRINIDAD AND TOBAGO) LIMITED
Co- Defendant
BEFORE THE HONOURABLE MR. JUSTICE A. DES VIGNES
Appearances in CV 2013-02152 and CV 2013-02296:
Mr. Earle Martin James for the Claimant
Mr. Everard Davidson for the First Defendant
Mr. Vijai Deonarine instructed by Mr. Sham Sahadeo for the Co-Defendant
JUDGMENT
INTRODUCTION
The Claimants
1. The Claimant in CV 2013-02152 (hereinafter referred to as “Neckles”) and the Claimant in
CV 2013-02296 (hereinafter referred to as “Ali”), instituted proceedings against the Second
Defendant and the Co-Defendant on 17th May, 2013 and 23rd May, 2013 respectively, claiming
damages for personal injuries, loss and damage sustained as a result of the negligent driving
by the Second Defendant of motor vehicle PCR 1576 on 30th May 2011.
2. Neckles and Ali allege that:
i. On 30th May, 2011 they were passengers in motor vehicle PCR 1576, which was being
driven by the Second Defendant and which was insured by the Co-Defendant;
ii. Due to the negligence of the Second Defendant in the driving, management and/or
control of PCR 1576, while proceeding along the South Trunk Road, South Oropouche
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in the vicinity of Inland Offshore Limited, he lost control thereof and ended up in a
drain;
iii. As a consequence of the negligence of the Second Defendant, the Claimants sustained
personal injuries, loss and damage;
iv. They are entitled to damages, interest thereon and costs as well as a declaration that
the Co-Defendant is liable to indemnify the Second Defendant in respect of any
judgment awarded against him.
The First Defendant
3. The First Defendant is the legal personal representative of Mervyn Peter Forrester otherwise
called Mervyn P. Forrester, deceased (hereinafter referred to as “the Deceased”) who was at
all material times the owner of PCR 1576. She was joined as a Defendant in both claims by
the filing of Re-Amended Statements of Case on 4th December, 2013. In her Defences filed on
4th April, 2014 the First Defendant denied that the Second Defendant was the servant and/or
agent and/or licensee of the Deceased or that he was driving PCR 1576 with his consent and
approval. While she could neither confirm nor deny the details of the accident, the particulars
of negligence or the Claimants’ injuries, she denied that Neckles and Ali were entitled to the
reliefs sought.
The Second Defendant
4. The Second Defendant entered appearances through Attorneys-at-Law, Messrs. Giwar &
Deonarine but failed to file any Defences to the claims of Neckles and Ali. As a consequence,
judgments in default of defence were entered against him. The judgment in the Ali claim was
entered on 12th August, 2013 and the judgment in the Neckles claim was entered on 26th
September, 2013.
The Co-Defendant
5. On the 5th July 2013, the Co-Defendant filed Defences to the Statements of Case in both
actions, in which it admitted the particulars of the accident but not the particulars of negligence.
The Co-Defendant also contended that, if there was in fact negligence in the driving and/or
management and/or control of PCR 1576, it was because the Second Defendant was driving
whilst under the influence of alcohol. In support of this contention, the Co-Defendant stated
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that it intended to rely on a written statement of the Second Defendant dated 10th January, 2012
in which he admitted to consuming alcoholic beverages. Further and/or in the alternative, the
Co-Defendant relied on the doctrine of res ipsa loquitur.
6. The Co-Defendant also contended that the Claimants were guilty of contributory negligence
as they knew or should have known that the Second Defendant was intoxicated and they
implicitly discharged the liability associated with the negligence of the Second Defendant. The
Co-Defendant alleged the following particulars of negligence against Neckles and Ali:1
a. The Claimant embarked upon a journey intending at all relevant times to allow himself
(herself) to be carried in a vehicle driven by Mervyn Peter Forrester, who he (she)
knew or should have known was intoxicated at the material time;
b. The Claimant allowed himself (herself) to be carried in the said vehicle being driven
by the driver, Mervyn Forrester, as aforesaid when he (she) knew or ought to have
known that it was unsafe to do by reason of the inherent danger of riding in vehicle
driven by an intoxicated driver;
c. The Claimant failed to ensure his (her) own safety by failing to properly secure and
fasten the seat belt unto himself (herself);
d. The Claimant failed and/or refused to have any or any sufficient regard for his (her)
own safety.
7. Further, the Co-Defendant contended that the Claimants accepted the risk of injury and that
the Co-Defendant was entitled to rely on the defence of volenti non fit injuria.
8. The Co-Defendant also denied that it was liable to indemnify the Defendants in respect of any
liability for the accident or to satisfy any judgement in relation thereto based on the breach of
the intoxication clause of the policy of insurance issued to the Deceased on 20th October, 2010.
The said intoxication clause provided as follows:2
“The Insurer shall not be liable to make any payment in respect of any accident, loss,
danger or liability caused or arising whilst the Motor Vehicle in connection with which
Insurance or Indemnity is granted herein is being driven by the Insured (or any person
1 Co-Defendant’s Defences both filed on 5th July, 2014 at paras 12(a) – (d). 2 Co-Defendant’s Defences both filed on 5th July, 2014 at para 13.
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who is the Insured’s employ or any person driving on his order and with his permission)
whilst under the influence of or whilst his efficiency as a driver is impaired by intoxicating
liquor or drugs.”
9. The Co-Defendant also denied that Neckles and Ali are entitled to the reliefs sought and put
them to strict proof in relation to the injuries sustained and the damage and loss claimed.
ISSUES
10. Since the parties agreed and the Court directed that the trial of both claims will be conducted
with respect to liability only the following issues arise for determination at this stage:
a. Was the Second Defendant negligent in driving PCR 1576?
b. Was the Second Defendant driving PCR 1576 with the consent and/or approval and/or
order of the Deceased?
c. Can the Claimants or the Co-Defendant rely the doctrine of res ipsa loquitur?
d. Can the Co-Defendant avoid liability to Neckles and Ali based on:
i. a breach of the intoxication clause by the Second Defendant of the insurance
policy;
ii. the defence of contributory negligence; and/or
iii. the defence of volenti non fit injuria?
e. Is the Co-Defendant liable to indemnify the First Defendant and/or the Second
Defendant?
f. Are Neckles and Ali entitled to judgments on liability against the First Defendant and
the Co-Defendant?
EVIDENCE AT TRIAL
The Claimants
11. By orders dated 4th April, 2014, I ordered, inter alia, that Witness Statements on liability in
both claims were to be filed and exchanged on or before 13th June, 2014, in default of which
no evidence was to be led from any Witness failing to do so. Neither Neckles nor Ali complied
with this Order. Therefore, no evidence was adduced on their behalf at the trial.
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The First Defendant
12. The First Defendant filed Witness Statements in her name on 12th June, 2014. However, at the
trial, Counsel for the First Defendant elected not to call the First Defendant as a witness.
Accordingly, the First Defendant did not give any evidence at the trial in support of her
Defences.
The Second Defendant
13. As earlier stated, judgments in default of defences were entered against the Second Defendant
in the Ali claim on 12th August 2013 and in the Neckles claim on the 26th September 2013.
Accordingly, the Second Defendant did not give any evidence at the trial.
The Co-Defendant
14. In support of its Defences, the Co-Defendant called Sita Seudath, its Branch Supervisor and
Curt Sealey, a private investigator employed with Exponential Investigation Services as
witnesses and their witness statements were tendered into evidence. Ms. Seudath was cross-
examined on her witness statement but Mr. Sealey was not.
Court Exhibits
15. At the trial, this Court admitted into evidence the statement of the Second Defendant dated 10th
January, 2012 which was annexed to the Defences of the Co-Defendant and this was tendered
and marked “CE1”. A typed version of “CE1” was tendered and marked “CE2”
ISSUE 1: WAS THE SECOND DEFENDANT NEGLIGENT IN DRIVING PCR 1576?
16. Neckles and Ali filed their Claim Forms and Statements of Case on 17th May, 2013 and 28th
May, 2013 respectively against the Second Defendant and the Co-Defendant. Both Statements
of Case alleged, inter alia, that:3
“8. On or about the 30th May, 2011 at or around 12:45 a.m. the Claimant was at all
material times a backseat passenger seated in Motor Vehicle Registration Number PCR
1576, which was proceeding along the South Trunk Road, South Oropouche in the vicinity
of Inland Offshore Limited. The said Motor Vehicle Registration Number PCR 1576 was
3 Statement of Case of Neckles and Ali filed on 17th May, 2013 and 28th May, 2013 respectively at paras. 8-9.
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at all material times being driven by the Defendant herein. The Defendant herein lost
control of the said Motor Vehicle Registration Number PCR 1576 on reaching the vicinity
of Inland Offshore Limited and as a consequence thereof ended up in a drain causing
damage to the entire aforesaid vehicle and resultant injuries and physical damage and loss
to the Claimant herein…
9. The said incident was caused as a result of the negligence of the Defendant herein in the
driving, management and or control of Motor Vehicle Registration Number PCR 1576,
which negligence resulted in physical injuries loss and damage to the Claimant herein.
PARTICULARS OF NEGLIGENCE OF THE DEFENDANT
a. Driving his Motor Vehicle Registration Number PCR 1576 without due care and
attention and/or without reasonable consideration for the occupants of the said Motor
Vehicle Registration Number PCR 1576 and/or road users of the roadway;
b. Failure to properly steer and manoeuvre or in any other way so to manage or control
Motor Vehicle Registration Number PCR 1576.
c. Failure to keep a proper lookout or to have any proper regard for possible impedance
or obstacles in the roadway and or other vehicles on the roadway.
d. Failure to stop or slow down or swerve in any other direction or way so as to manage
Motor Registration Number PCR 1576 in a manner so as to avoid the accident.
e. Failure to drive in a manner which could have allowed him to stop in a timely manner
thus preventing injuries to the Claimant.
f. Driving too fast in the circumstances.
g. Driving without due care and attention.”
17. On 5th June, 2013, the Second Defendant was personally served with the aforementioned
claims by Mr. Collin Ramdhanie, Process Server, who left same at his feet based on his refusal
to accept the documents.4 On 20th June, 2013 and 21st June, 2013, appearances were entered
4 Affidavits of Service filed on 14th June, 2013, in respect of both claims.
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on behalf of the Second Defendant and the Co-Defendant in respect of the Neckles and Ali
claims respectively by Messrs. Girwar & Deonarine, Attorneys-at-Law.
18. On 5th July, 2013 the Co-Defendant filed its Defences. In both Defences the Co-Defendant
stated as follows:5
“7. The Co-Defendant admit to paragraph 8 of the Claimant’s Statement of Case save that
the Defendant was one name Mervyn Peter Forrester and not Mervyn Peter @ Junior
Forrester as stated therein.
8. The Co-Defendant admits the particulars of the accident, but not the particulars of
negligence as set out in paragraph 9 therein…”
19. However, Defences were not filed on behalf of the Second Defendant by his Attorneys-at-Law.
20. On 12th July, 2013 Neckles and Ali filed Amended Claim Forms and Amended Statements of
Case. By virtue of the amendments made therein, both Statements of Case now alleged, inter
alia, that PCR 1576 was at the material time being driven by the Second Defendant:6
“8. …with the consent and or approval and or order of a certain MERVYN FORRESTER,
the father of the Defendant who also resided at the aforementioned address and who was
the owner and the insured of the aforementioned motor vehicle but who is now recently
deceased.”
21. As a consequence, Neckles and Ali claimed against the Second Defendant “damages for
personal injuries sustained together with consequential loss and damages suffered as result of
the negligence of the Defendant as the driver and owner in the driving, management and/or
control of motor vehicle registration number PCR 1576 ….on or around the 30th day of May
2011 the defendant at material times being a licensee of and driving with the consent and
approval of his father a certain Mervyn Forrester….”
22. On 19th July, 2013, the Second Defendant’s Attorneys-at-Law, Messrs. Girwar & Deonarine
applied to this Court to be removed from the record as acting for the Second Defendant. This
application was supported by the Affidavit of Ms. Karuna Radha Ramsaran, Attorney-at-Law.
This Court granted the application by order dated 11th October, 2013.
5 Defences of the Co-Defendant both filed on 5th July, 2013 at paras. 7-8. 6 Amended Statements of Case both filed on 12th July, 2013 at para. 8.
Page 9 of 26
23. As a consequence of the Second Defendant’s failure to file Defences to the claims of Neckles
and Ali, default judgments were entered against him in the Ali claim on 12th August, 2013 and
in the Neckles claim on 26th September, 2013.
24. On 12th August, 2013 the judgment in default of defence in the Ali Claim was entered against
the Second Defendant in the following terms:7
“Dated 25 July 2013
Entered 12 August 2013
To: Mervyn Peter Forrester
You have not replied to the claimant’s claim form and statement of case served on you on
21 June 2013 by filing a defence and the time for doing so had expired.
IT IS THEREFORE ORDERED that judgment in default of defence be and is hereby
entered against you for payment of an amount to be decided by the court for damages,
interest and costs.”
25. On 26th September, 2013 judgment in default of defence in the Neckles’ Claim was entered
against the Defendant in the following terms:8
“Dated 25 July 2013
Entered 26 September 2013
To: Mervyn Peter Forrester
You have not replied to the claimant’s claim form and statement of case served on you on
12 July 2013 by filing a defence and the time for doing so had expired.
IT IS THEREFORE ORDERED that judgment in default of defence be and is hereby
entered against you for payment of an amount to be decided by the court for damages,
interest and costs.”
7 CV 2013-02296 – Judgment for the Claimant in default of defence against the Defendant filed 13th September,
2013. 8 CV 2013-02152 – Judgment for the Claimant in default of defence against the Defendant filed 10th October, 2013.
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Submissions
26. At the trial of these claims, Counsel for the Co-Defendant submitted that:
a. The Co-Defendant did not admit to negligence as alleged by Neckles and Ali and
therefore is not bound by the default judgments entered against the Second Defendant:
Saunders v Des Vignes & Ors (CA No. 138 of 2006);
b. Both Claimants had the evidential burden to prove damage and this was compulsory;
c. The Co-Defendant does not have to prove that negligence did not cause the accident.
Instead, the Co-Defendant has to show that there was an explanation that the accident
occurred without negligence. The Second Defendant, in his statement marked “CE 1”
stated that he applied brakes when he was confronted with vehicles stopping in front
of him: The Kite (1933) Probate Division 154 at p. 170; and
d. The Court has heard nothing at all about the accident since both Claimants failed to
lead any evidence. Strong inferences ought to be drawn against both Claimants since
they had evidence available to them but failed to lead any evidence. If the Court is
satisfied that there is a scintilla of evidence that the Second Defendant was not
negligent, the Court ought to consider the inferences of witnesses not being called:
Benham v Kythria Investments Ltd. (2003) EWCA Civ 1794 at para. 28 and Tesheira
v Gulf View Medical Centre Ltd & Roopchand (CV 2009-02051 at para16).
27. Counsel for the First Defendant submitted that there was no case for the First Defendant to
answer as she could neither confirm nor deny the allegations and the case against her should
be dismissed.
28. Counsel for both Claimants submitted that:
a. The default judgments entered against the Second Defendant could be relied upon to
establish liability as against the First Defendant and the Co-Defendant.
b. The Claimants could succeed without proving damage: New India Assurance v Bailey
HCA. S-1224/2005/CV-2006-02217. Having established negligence against the
Second Defendant, the Co-Defendant is obliged to indemnify the Defendants under the
Section 10 (1) of the Motor Vehicles (Third Party Insurance) Act.
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c. The Court should not draw adverse inferences against the Claimants because they did
not give evidence as this was a trial on liability and they had already obtained default
judgments against the Second Defendant; and
d. There was no issue raised between the Claimants and the First Defendant.
Analysis and Findings
29. According to Halsbury’s Laws of England,9 “as the law stands, a default judgment creates
cause of action estoppel in just the same way as a judgment after trial because it finally
disposes of the cause of action, but such estoppel is confined strictly to the precise cause of
action upon which default judgment was given.”
30. The Co-Defendant relied on the authority of Saunders (supra) to support its contention that it
is not bound by the default judgments entered against the Second Defendant. In Saunders
(supra) the Court of Appeal considered, inter alia, the issue of whether an insurer (the Second
Respondent) was liable where default judgment was obtained against the alleged driver of the
vehicle (The Third Respondent). The Appellant submitted that the default judgment obtained
against the Third Respondent estopped the Second Respondent from raising as a defence to the
claim that the Third Respondent was not driving the vehicle. In delivering the judgment of the
Court of Appeal, Mendonca JA. stated as follows:
“22. In our judgment this submission is without any merit. We say so for the following
reasons. First, while a default judgment can of course give rise to an estoppel, the
defendant is only estopped from setting up a defence which is necessarily and with
complete precision decided by the judgment (see New Brunswick Railway Company v
British and French Trust Corporation [1939] AC 14 and CA#101 of 2002 and Sorzano
and Anor. v. The Attorney General and Anor.). In order to ascertain what the default
judgment has determined it must be carefully scrutinized “with extreme particularity for
the purpose of ascertaining the bare essence of what it must necessarily have decided (see
Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] 1 ALL ER 300,306). To determine
what the judgment decided regard must be had to the judgment itself and to the pleadings
in the action.”
9 Volume 12A (2015) at para. 1614.
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31. Upon scrutiny of the default judgment, Mendonca JA. went on to state that:
“23…. The judgment therefore decided that the accident occurred as a consequence of the
negligence of the Third Respondent or that of his servant or agent. It does not with complete
precision decide that the driver of the First Respondent’s vehicle was the Third
Respondent. The Second Respondent therefore cannot be estopped from denying that the
vehicle was driven by the Third Respondent.
24. Secondly in this case as the judgment is a judgment in personam, it prevents a defendant
against whom the judgment has been obtained from setting up a defence which is
necessarily and with complete precision decided by the judgement obtained against him. It
cannot prevent a defendant against whom there has been no determination of the issue
from raising it as a defence even where the defendant against whom judgment has been
obtained is a defendant in the same proceedings. It is ludicrous to suggest that the Second
Respondent is completely shut out before it has had the opportunity to advance its defence
at the trial from litigating its liability under the policy issued by it because of the judgment
obtained against the Third Respondent.
25. … a default judgment obtained by reason of the default of one defendant cannot bind
the other defendant where the issue between the plaintiff and the defendant has not been
decided. The judgment against the Third Respondent is conclusive of the matters decided
by it between the Appellant and the Third Respondent, not the other defendants in the
action.”
32. Adopting the approach of Mendonca JA. in Saunders (supra), it is clear that the default
judgments obtained by the Claimants must be scrutinized in an effort to ascertain what has
been decided therein and the extent of any estoppel that may exist prohibiting the raising of a
particular defence. The default judgments as recited above state that based on the failure of the
Second Defendant to file Defences to their claims, the Claimants were granted judgment for
the payment of an amount to be decided by the court for damages, interest and costs. As seen
at paragraphs 8 and 9 of the Claimants’ Statements of Case, the essence of their claims is that
the Second Defendant was negligent in driving PCR 1576 which caused injury, loss and
damage to them.
Page 13 of 26
33. In my opinion, the default judgments entered on behalf of both Claimants have decided with
complete precision that the Second Defendant was negligent in his driving of PCR 1576 on
30th May 2011, which resulted in both Claimants sustaining injuries, loss and damage. While
the law is that a default judgment obtained as against one defendant cannot bind another where
the issue between them has not been decided, these matters are distinguishable from the facts
in Saunders (supra) since in that matter there was not a precise allegation that the Third
Respondent was the driver. In the circumstances, it was open to the Second Respondent to
argue that he was not the driver. However, in these matters, there has been a precise allegation
made against the Second Defendant and the judgments entered in default of defence against
him establish that he was negligent in his driving of PCR 1576 on 30th May 2011.
34. In the circumstances, I am of the opinion that the default judgments entered against the Second
Defendant created a cause of action estoppel against the Co-Defendant and the Co-Defendant
is estopped from setting up a defence that the Second Defendant was not negligent.
35. Further, I reject the submission of Counsel for the Co-Defendant that both Claimants had the
evidential burden to prove damage. Having already determined that the default judgments
determined the issue of negligence against the Second Defendant, the Claimants are no longer
required to prove this element of the tort of negligence.
36. It must be noted, however, that Counsel for the Claimants relied on the authority New India
Assurance (supra) to support his contention that damage need not be proved before deciding
upon liability. In my opinion, his reliance on this authority is misconceived as it was the issue
of damages as opposed to damage that the trial judge ruled could be considered after
judgement was given. Therein, Rajnauth-Lee J. (as she then was) stated:
“Accordingly, in the judgment of the Court, in the circumstances where the Claimant had
obtained judgments against the First Defendant, the Insured, and the Second Defendant,
the driver, which judgments had not been set aside, the Claimant had the benefit of a
judgment pursuant to section 10(1) of the Act. Nothing in section 10(1) suggested that
damages had to be assessed before a judgment could be entered against the Third
Defendant, the Insurer.”
37. Counsel for the Co-Defendant invited me to draw adverse inferences against the Claimants by
reason of their failure to file Witness Statements in support of their case and to lead any
Page 14 of 26
evidence at the trial. I am not prepared to do so since this was a trial on the issue of liability
only and I have already found that the default judgments entered against the Second Defendant
decided with complete precision that the Second Defendant was negligent in his driving of
PCR 1576 on 30th May 2011. In the circumstances, I am of the opinion that it would not be
appropriate to draw adverse inferences against the Claimants as a consequence of their failure
to lead any evidence at the trial.
ISSUE 2: WAS THE SECOND DEFENDANT DRIVING PCR 1576 WITH THE
CONSENT AND/OR APPROVAL AND/OR ORDER OF THE DECEASED?
Law
38. In Barnard v Sully10 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:11
“… 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.”
39. Barnard (supra) was applied in the Privy Council decision in Rambarran v Gurrucharran
which stated that:12
“… 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”
10 (1931) 47 Times Law Reports 557. 11 Ibid at p. 558. 12 [1970] 1 All ER 749.
Page 15 of 26
40. These two authorities were applied locally in Saunders (supra). Therein Mendonca JA. stated
that:13
“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…”
Evidence
41. By virtue of the pleadings of the Claimants, the First Defendant and the Co-Defendant, it is
not in dispute that at the material time the Deceased was the owner of PCR 1576. The
Claimants alleged in their Re-Amended Statements of Case that the Second Defendant drove
PCR 1576 with the consent and/or approval and/or order of the Deceased. The First Defendant
denied this allegation in her Defences but led no evidence in support of this denial. The
witnesses for the Co-Defendant did not lead any evidence to prove that the Second Defendant
was driving PCR 1576 without the consent and/or approval of the Deceased.
Submissions
42. Counsel for the Co-Defendant submitted that based on the First Defendant’s non-admission in
respect of this issue of consent and/or approval there were live issues between the Claimants
and the First Defendant.
43. Counsel for the First Defendant submitted that there was no issue between the Claimants and
the First Defendant.
44. Counsel for the Claimants submitted that the default judgments established that the Second
Defendant was driving PCR 1576 with consent and/or approval of the Deceased and was
therefore an agent and/licensee of the Deceased. Counsel also submitted the Second Defendant
had authority to drive and, as such, liability to the Claimants attaches to the insured and the
13 Saunders (supra) at para. 18.
Page 16 of 26
insurer and the insured and the driver are coterminous because the owner gave the driver
permission.
Analysis and Findings
45. Having considered the authorities on this issue, I am of the opinion that ownership of PCR1576
by the Deceased is prima facie evidence that the Second Defendant was his servant or agent at
the time when he drove PCR 1576 negligently. Further, the evidence led by the Co-Defendant
has failed to rebut this presumption or operated so as to displace it. Notably, although the First
Defendant in her Defence denied that the Second Defendant was authorized to drive PCR 1576,
she led no evidence at the trial to support this denial. Accordingly, I find that the Second
Defendant was at the material time driving PCR 1576 with the consent and/or approval and/or
order of the Deceased.
ISSUE 3: CAN THE CLAIMANT OR THE CO-DEFENDANT RELY ON THE
DOCTRINE OF RES IPSA LOQUITUR?
Law
46. Halsbury’s Laws of England14 summarises the law with respect to the doctrine of res ipsa
loquitur as follows:
“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.
14 Negligence, Volume 78 (2010) at paras 64-65.
Page 17 of 26
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.”
Evidence
47. Neckles and Ali pleaded their reliance on the doctrine of res ipsa loquitur in the following
terms:15
“10. As far as may be necessary the Claimant will rely on the doctrine of Res Ipsa
Loquitur.”
48. The Co-Defendant also pleaded that it intended to rely on the same doctrine as follows:
“10. The Co-Defendant would further and/or alternatively rely on the doctrine of res ipsa
loquitur as regards the circumstances of the accident, namely that at the point where the
accident occurred the road was straight, well lit and with no hazardous conditions.”
49. However, the Claimants led no evidence at the trial and none of the Co-Defendant’s witnesses
led evidence in support of its Defence.
Submissions
50. At the trial, Counsel for the Co-Defendant submitted that the presumption of res ipsa loquitur
was rebutted and neutralized. He further submitted that whether or not it applied, based on the
evidence and the inferences to be drawn, the Claimants’ case should be dismissed.
51. Counsel for the Claimants submitted that the particulars of negligence are set out in the
Statements of Case and it was not open to the Co-Defendant to rely on the doctrine of res ipsa
loquitur.
Analysis and Findings
52. Although the Claimants and the Co-Defendant pleaded reliance on the doctrine of res ipsa
loquitur, there was no evidence led by either the Claimants or the Co-Defendant to support
those pleas. In any event, having already established that negligence was proved and
determined, this principle does not apply. The pleaded particulars of negligence as against the
Second Defendant appearing at paragraph 16 herein illustrate the cause of the accident and
displaces the principle of res ipsa loquitur.
15 The Claimants’ Re-Amended Statements of Case both filed on 4th December, 2013 at paras 10(sic).
Page 18 of 26
ISSUE 4: CAN THE CO-DEFENDANT AVOID LIABILITY TO THE CLAIMANTS
BASED ON:
I. A BREACH OF THE INTOXICATION CLAUSE OF THE
INSURANCE POLICY;
II. THE DEFENCE OF CONTRIBUTORY NEGLIGENCE; AND/OR
III. THE DEFENCE OF VOLENTI NON FIT INJURIA?
Law – Avoiding Liability
53. Section 10A of the Act provides that:
“10A. (1) Where a plaintiff brings an action under section 10 against any person by whom
a policy has been effected and who has had issued to him a certificate of insurance under
section 4(8) in respect of such liability as is required to be covered by a policy under
section 4(1)(b) then, even though—
(a) liability as between the plaintiff and the insured has not yet been determined; or
(b) the insurer may be entitled to avoid or cancel or may have avoided or cancelled the
policy, the plaintiff may, subject to the provisions of this section, join the insurer as a
co-defendant in the action.
(2) Where an insurer is joined as a co-defendant under subsection (1), the insurer may,
raise any defence that he may be entitled to under the policy of insurance or otherwise.”
Intoxication Clause
Law
54. MacGillivray on Insurance Law16 states that:
“Motor vehicles polices may contain clauses exempting liability for injury sustained by the
assured while under the influence of drugs or intoxicating liquor. The question is whether
the drugs or liquor disturb the quiet, calm, intelligent exercise of the faculties.”
55. In Louden v British Merchants Insurance Co. Ltd17 the court examined the effect of an
insurance policy with an intoxication clause as in the instant matters. Lawton J. held that:
16 (1997) 9th Edition at para. 29-85. 17 (1961) QBD 798.
Page 19 of 26
“the words “whilst under the influence of … intoxicating liquor” connoted a disturbance
to the intelligent exercise of the faculties; that “whilst” had a temporal meaning and did
not introduce into the provision any requirement of a causal connection between the bodily
injury sustained and the state of being under the influence of intoxicating liquor.”
56. In ruling that the driver was under the influence of intoxicating liquor within the meaning of
the exemption clause of the policy and, as a result, the insurers were not liable under the policy,
Lawton J. stated as follows:18
“the issue for decision is whether the defendants have proved that the deceased sustained
the bodily injury which resulted in his death whilst he was under such influence of
intoxicating liquor as disturbed the quiet, calm, intelligent exercise of the faculties. In my
judgment they have. I am satisfied on the medical evidence that when the deceased
sustained the bodily injury …, his blood alcohol then being at least 268 milligrams per 100
millilitres, …his brain had been so affected by the alcohol he had consumed as to cause
him to lose control of his faculties…”
Evidence
57. In its Defences, the Co-Defendant alleged that if the Second Defendant was negligent in the
driving and/or management and/or control of PCR 1576, he was driving under the influence of
alcohol and relied on the statement of the Second Defendant dated 10th January, 2012 in
support of this (“CE 1”). The relevant excerpt from “CE 1” stated as follows:
“We all had a good time at the wedding and consumed alcoholic beverages. I knew I had
to drive so I did not over drink…”
58. The Co-Defendant also denied that it was liable to indemnify the Defendants in respect of any
liability for the accident or to satisfy any judgment in relation thereto based on the breach of
the intoxication clause of the Policy of Insurance issued to the Deceased on 20th October, 2010.
59. At paragraph 5 of her Witness Statement, Sita Seudath gave evidence that the following
intoxication clause was included in the Policy of Insurance in respect of PCR 1576:19
18 Ibid at p. 802 19 Para. 5 of Witness Statement of Sita Seudath filed on 13th June, 2014.
Page 20 of 26
“The Insurer shall not be liable to make any payment in respect of any accident, loss,
danger or liability caused or arising whilst the Motor Vehicle in connection with which
Insurance or Indemnity is granted herein is being driven by the Insured (or any person
who is the Insured’s employ or any person driving on his order and with his permission)
whilst under the influence of or whilst his efficiency as a driver is impaired by intoxicating
liquor or drugs.”
Submissions
60. Counsel for the Co-Defendant submitted that it was entitled to rely on the intoxication clause.
He relied on the authorities of National Farmers’ Union Mutual Insurance Society Limited v
Dawson [1941] King’s Bench Division 424 at p.429 and Louden v British Merchants Insurance
Co. Ltd [1961] QBD 798 at p. 801.
61. Counsel for the Claimants submitted that the burden of proof lay upon the Co-Defendant to
prove that the intoxication clause applied to the Second Defendant. He submitted that there
was no evidence from any of the Witnesses in this regard.
Analysis and Findings
62. The Co-Defendant relied solely on the candid admission of the Second Defendant in his
Statement that he had consumed alcoholic beverages at the wedding but failed to lead any other
evidence to prove that his “quiet, calm, intelligent exercise of the faculties” were disturbed or
that his efficiency as a driver was impaired. In my opinion, the fact that the Second Defendant
consumed alcoholic beverages at a wedding, without more, does not support an inference that
he was under the influence of or that his efficiency as a driver was impaired by intoxicating
liquor. In the circumstances, the Co-Defendant failed to prove that at the time of the accident
the Second Defendant was driving PCR 1576 whilst under the influence of or whilst his
efficiency as a driver was impaired by intoxicating liquor.
63. Accordingly, I find that the Co-Defendant is not entitled to avoid liability to the Claimants
based on a breach of the intoxication clause in the policy of insurance.
Page 21 of 26
Contributory Negligence and Volenti Non Fit Injuria
Law
64. As to contributory negligence, Halsbury’s Laws of England20 states that:
“76. In order to establish contributory negligence the defendant has to prove that the
claimant's negligence was a cause of the harm which he has suffered in consequence of the
defendant's negligence. The question is not who had the last opportunity of avoiding the
mischief but whose act caused the harm. The question must be dealt with broadly and upon
common sense principles. Where a clear line can be drawn, the subsequent negligence is
the only one to be considered; however, there are cases in which the two acts come so
closely together, and the second act of negligence is so much mixed up with the state of
things brought about by the first act, that the person secondly negligent might invoke the
prior negligence as being part of the cause of the damage so as to make it a case of
apportionment. The test is whether in the ordinary plain common sense the claimant
contributed to the damage.
77. The existence of contributory negligence does not depend on any duty owed by the
claimant to the defendant and all that is necessary to establish a plea of contributory
negligence is for the defendant to prove that the claimant did not in his own interest take
reasonable care of himself and contributed by this want of care to his own injury.
78. The standard of care in contributory negligence is what is reasonable in the
circumstances, and this usually corresponds to the standard of care in negligence. The
standard of care depends upon foreseeability. Just as actionable negligence requires the
foreseeability of harm to others, so contributory negligence requires the foreseeability of
harm to oneself. A person is guilty of contributory negligence if he ought reasonably to
have foreseen that, if he did not act as a reasonably prudent person, he might hurt himself.
A claimant must take into account the possibility of others being careless. As with
negligence, the standard of care is objective in that the claimant is assumed to be of normal
intelligence and skill in the circumstances...
20 Negligence, Volume 78 (2010) at paras 76-80.
Page 22 of 26
79. In a very large number of claims arising out of road accidents, issues of contributory
negligence arise. Although the question is essentially whether the claimant has taken
reasonable care for his own safety in the circumstances, certain principles have emerged.
It may be contributory negligence for … a passenger to take a lift with a driver knowing
him to be drunk and incapable of driving with due care.
80. Knowledge by the claimant of an existing danger or of the defendant's negligence may
be an important element in determining whether or not he has been guilty of contributory
negligence. The question is not whether the claimant realised the danger but whether the
facts which he knew would have caused a reasonable person in his position to realise the
danger. It is a question of fact in each case whether the knowledge of the claimant in the
particular circumstances made it so unreasonable for him to do what he did as to constitute
contributory negligence…”
65. In respect of the defence of volenti non fit injuria, Halsbury’s Laws of England21 states that:
“69. Where a claimant relies on the breach of a duty to take care owed by the defendant to
him, it is a good defence that the claimant consented to that breach of duty, or, knowing of
it, voluntarily incurred the whole risk entailed by it. In such a case the defence of
assumption of risk, traditionally expressed in the maxim volenti non fit injuria, applies.
This defence is to be distinguished from the plea of contributory negligence, for a claimant
may have voluntarily exposed himself to the risk of being injured while himself exercising
the utmost care for his own safety; and, conversely, while knowledge of the risk may show
contributory negligence, it does not prove voluntary assumption of risk.
70. In order to establish the defence, the claimant must be shown not only to have perceived
the existence of danger but also to have appreciated it fully and voluntarily accepted the
risk. The question whether the claimant's acceptance of the risk was voluntary is generally
one of fact, and the answer to it may be inferred from his conduct in the circumstances.
The inference of acceptance is more readily to be drawn in cases where it is proved that
the claimant knew of the danger and comprehended it, for example where the danger was
apparent or proper warning was given of it and where there is nothing to show that he was
21 Negligence, Volume 78 (2010) at paras 69-70.
Page 23 of 26
obliged to incur it, than in cases where he had knowledge that there was danger but not
full comprehension of its extent, or where, while taking an ordinary and reasonable course,
he had no adequate opportunity of electing whether he would accept the risk. Thus a
passenger who travels in a car does not necessarily accept the risk of negligent driving
even though he knows that the driver is under the influence of alcohol or is a learner...”
Evidence
66. The Co-Defendant alleged in its Defences that if the Second Defendant was negligent in the
driving and/or management and/or control of PCR 1576, the Claimants accepted the risk of
injury and implicitly discharged any liability arising based on the principle of volenti non fit
injuria and/or contributory negligence. The particulars of negligence relied on by the Co-
Defendant as against both Claimants were as follows:22
“12. The Co-Defendant would contend that such injury, loss and damage as the Claimant
may prove (none being admitted) was contributed to by his (her) own negligence.
PARTICULARS OF NEGLIGENCE OF THE CLAIMANT
The Claimant was negligent in that:
(a) The Claimant embarked upon a journey intending at all relevant times to allow himself
(herself) to be carried in a vehicle driven by Mervyn Peter Forrester, who he (she)
knew or should have known was intoxicated at the material time;
(b) The Claimant allowed himself (herself) to be carried in the said vehicle being driven
by the driver, Mervyn Forrester as aforesaid when he (she) knew or ought to have
known that it was unsafe to do so by reason of the inherent danger of riding in vehicle
driven by an intoxicated driver;
(c) The Claimant failed to ensure his (her) own safety by failing to properly secure and
fasten the seatbelt unto himself (herself);
(d) The Claimant failed and/or refused to have any to any sufficient regard for his (her)
own safety.”
22 Defences of the Co-Defendant both filed on 5th July, 2013 at paras. 12(a) - (d).
Page 24 of 26
Submissions
67. Counsel for the Co-Defendant submitted that it did not appear on the face of the Second
Defendant’s statement marked “CE 1” that the passengers were aware that the driver was
intoxicated and this would affect the issue for contributory negligence but that the court should
consider the inferences to be drawn. He further submitted that in respect of the issue of volenti
non fit injuria, it was more difficult. In respect of these defences, Counsel relied on the
authorities of Morris v Murray and Another [1984 M. No. 870 at 15 C – D], Owens v Brimmell
[1974 O. No. 1078 at p. 866 H], Boothe v White [2003] EWCA Civ 1708 at para. 20 and Pitts
v Hunt and Another [1991] 1 QB 24 at p. 49 B- C.
68. Counsel for the Claimants submitted that the onus lay on the Co-Defendant to prove
contributory negligence and this burden was not discharged as the witnesses for the Co-
Defendant failed to give any evidence to prove same. Counsel also submitted that there was
nothing in the Second Defendant’s statement that illustrated that the Claimants knew there was
something injurious that was likely to occur if they travelled in PCR 1576 driven by the Second
Defendant. Accordingly, there was no evidence of contributory negligence or volenti non fit
injuria.
Analysis and Findings
69. Having examined the evidence before me, I am of the opinion that the Co-Defendant is not
entitled to succeed on the defences of contributory negligence and volenti non fit injuria. While
I accept that the authorities relied on by Counsel for the Co-Defendant in support of his
contentions on this issue represent an accurate reflection of the law, I am of the view that the
evidential hurdle has not been surmounted.
70. In respect of contributory negligence, the Co-Defendant has failed to prove that the Claimants
knew or reasonably ought to have known that the Second Defendant was intoxicated at the
material time or was incapable of driving with due care. The Co-Defendant’s witnesses have
not given evidence in support of the particulars of contributory negligence pleaded against
Neckles and Ali.
71. In respect of the defence of volenti non fit injuria, the Co-Defendant has not established on the
evidence that the Claimants knew of the risk or danger or appreciated it fully and voluntarily
Page 25 of 26
accepted the risk. In any event, having already determined that the Co-Defendant has failed to
prove that the Second Defendant was intoxicated, these defences must fail.
ISSUE 5: IS THE CO-DEFENDANT LIABLE TO INDEMNIFY THE FIRST
DEFENDANT AND THE SECOND DEFENDANT FOR THE SECOND
DEFENDANT’S NEGLIGENCE?
Law
72. The Motor Vehicle Insurance (Third-Party Risks) Act (hereinafter referred to as “the Act”)
provides that:
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.
Evidence
Sita Seudath
73. At paragraphs 3 and 4 of the Witness Statement of Sita Seudath, she stated that a policy of
insurance (Policy Number SFM/79/3307) was taken out by the Deceased for PCR 1576 on 9th
October, 2010. In addition to this, a Certificate of Insurance (Certificate No. 114707) dated
26th July, 2010 was also issued to the Deceased in respect of PCR 1576.
74. Under cross-examination, Ms. Seudath also confirmed that at the time of the accident PCR
1576 was insured by the Co-Defendant under a fully comprehensive policy.
Analysis and Findings
75. It is not in dispute that at the material time motor vehicle PCR 1576 was insured by the
Deceased with the Co-Defendant. By virtue of clause 5(b) of the Certificate of Insurance which
was annexed as S.S.1 to the Witness Statement of Sita Seudath, any person driving PCR 1576
Page 26 of 26
on the order or with the permission of the Deceased is classified as entitled to drive under the
said policy.
76. Having already determined that at the material time, the Second Defendant drove PCR 1576
with the consent and/or approval and/or order of the Deceased, I am of the opinion that the Co-
Defendant is liable to indemnify the First Defendant and the Second Defendant for the Second
Defendant’s negligence, pursuant to Section 10(1) of the Act.
ISSUE 6: ARE THE CLAIMANTS ENTITLED TO JUDGMENTS ON LIABILITY
AGAINST THE FIRST DEFENDANT AND THE CO-DEFENDANT?
77. Having already determined that:
a. the Second Defendant was negligent (based on the default judgments entered against
the Second Defendant in favour of both Claimants) and drove PCR 1576 at the material
time with the consent and/or approval and/or order of the Deceased;
b. the Co-Defendant is not entitled to avoid liability to both Claimants based on a breach
of the intoxication clause in the policy of insurance, their contributory negligence
and/or the defence of volenti non fit injuria; and
c. the Co-Defendant is liable to indemnify the First Defendant as its insured and the
Second Defendant, as the authorised driver of the Deceased’s vehicle
I find that the Claimants are entitled to the reliefs sought.
ORDER
78. In the premises, I hereby order that judgment be entered for Neckles and Ali in their respective
claims against the First Defendant and the Co-Defendant for damages, interest and costs to be
assessed by a Master in Chambers.
Dated this 30th day of June, 2016
................................................
Andre des Vignes
Judge
