TRINIDAD AND TOBAGO

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					TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Civ. App. No. 17 of 2003

BETWEEN

GREAT NORTHERN INSURANCE COMPANY LIMITED APPELLANT AND JOSEPH LEWIS PANEL: W. N. Kangaloo, J.A. I. Archie, J.A. A. Mendonca, J.A. APPEARANCES: Mr. T. Roopnarine for the Appellant Mr. A. Ramroop and Ms. Isaacs for the Respondent DATE DELIVERED: 5th May 2004 RESPONDENT

I agree with the judgment of Mendonca J.A. and have nothing to add. W.N. Kangaloo Justice of Appeal I too agree. I. Archie Justice of Appeal

(EXTEMPORE) JUDGMENT Delivered by A. Mendonca, J.A. 1. On March 6th, 1982, the Respondent was involved in a motor vehicular

collision in which he suffered personal injuries. He was, at that time, a passenger in motor vehicle PU 8086 which was owned and driven by one Frederick Roberts. In High Court action 385 of 1983 (the First Action), the Respondent commenced proceedings against Roberts for damages for the injuries he suffered in the collision which he alleged was caused by Roberts’ negligent driving. 2. The action was tried before Deyalsingh J. on March 17th 1992. The

learned judge gave judgment in favour of the Respondent with damages assessed in sums amounting to $35,527.17, together with interest and costs of the action. Subsequently, in High Court action 164 of 1999 (the Second Action), the Respondent initiated proceedings against the Appellant as insurer under Section 10 of the Motor Vehicles Insurance (Third Party Risks) Act Chap. 48:51 (the Act) claiming inter alia a declaration that the judgment obtained against Roberts in the First Action was in respect of a liability required to be covered under the Act and an order for payment of the assessed damages, interest and costs. The Second Action was tried in February 2003, and the trial judge made the declaration and order sought by the Respondent. The Appellant now appeals from that judgment. 3. At the time of the collision in 1982, the Act did not require a person using

a vehicle on a public road to have in force in relation to him a policy of insurance which covered liability to passengers in the vehicle except in two cases: first in the case of a motor vehicle in which passengers were being carried for hire or reward and secondly in

a case of a motor vehicle in which passengers were being carried by reason of or in pursuance of a contract of employment. These exceptions were contained in Section 4 (2) (b) of the Act. At the trial of the Second Action, it was the Respondent’s contention that at the time of the collision, he was being carried in Roberts’ vehicle by reason of or in pursuance of a contract of employment. 4. Before this Court, the Appellant made two submissions. The first is that

the Respondent’s pleadings in the Second Action were defective. There is nothing in the Statement of Claim to say that at the material time the Respondent was being carried in the vehicle by reason of or in pursuance of the contract of employment so as to bring the Respondent’s case within Section 4 (2) (b) of the Act. 5. The other submission of the Appellant is that even if that submission is

rejected by the Court, the Respondent has not established that his case is within the exception in Section 4 (2) (b) that he was being carried in Roberts’ vehicle at the time of the collision by reason of or in pursuance of a contract of employment. 6. With respect to the Appellant’s first submission, I think it was triggered by

paragraph 3 of the statement of claim. This paragraph is a follows: “On March, 1st1982, during the currency of the policy and while the certificate of insurance was in full force and effect the Plaintiff, while traveling in the course of his employment in motor car PU 8086 along the Naparima Mayaro Road collided with a motor bus and sustained personal injuries whereby he suffered loss and expense by

the negligent driving of Frederick Roberts of the said motor car.” The Appellant seems to contend that the reference to “course of employment” in this paragraph puts the Respondent’s case within Section 4(2) (a) of the Act, and that does not cover the respondent. This provides as follows: “4(2) In the case of death or of bodily injury, a policy of Insurance shall not be required to cover – (a) liability in respect of the death arising out of and in the course of his employment of a person in the employment of a person insured by the policy or of bodily injury sustained by such a person arising out of and in the course of his employment.” 7. This paragraph in the statement of claim certainly does not mention 4 (2) (a), nor

does it plead the ingredients of that Section save for the use of the words, “in the course of employment.” It is, therefore, difficult to see how the Appellant could have

understood the Respondent to be contending that his case is within Section 4(2) (a). His interpretation is even more difficult to accept when it is apparent that that sub-section provides that in the case of death or bodily injury, a policy of insurance shall not be required to cover a liability in respect of death or bodily injury arising out of or in the course of his employment of the person in the employment of the person insured by the policy. 8. What, in essence, the Appellant is contending is that the Respondent’s case is that

he was injured in the course of employment with the insured person and is, therefore, not

covered. If understood in that way, the Respondent would be contending that he is entitled to recover under a policy that does not apply to his circumstances. That could not be the Respondent’s case and the pleading, in our view, cannot be so understood. 9. The statement of claim in paragraph one sets out that the insurance policy was

issued by the Appellant to Roberts and avers that by it, the Appellant agreed to insure Roberts in respect of any liability which might be incurred by him in respect of death or bodily injury being such a liability as was required to be covered by a policy under the Act. The statement of claim goes on to allege at paragraph four that the Respondent brought the First Action, in respect of his personal injuries being a liability that was covered by the terms of the policy. 10. The Respondent’s case therefore, as is to be expected, is that at the time of the

accident, the policy covered Roberts’ liability to him. In the circumstances, while the statement of claim could have been more fully pleaded and was, perhaps, susceptible to a request for particulars, it was, in my view, open to the Respondent within the pleading to argue, as he did, that the policy covered a liability with respect to him as he was being carried at the material time by reason of or in pursuance of the contract of employment. I, therefore, do not accept the Appellant’s first submission. 11. With respect to the second submission of the Appellant, it appears that at the trial

of the Second Action, the trial judge having quite correctly rejected the Appellant’s submission with respect to the applicability of Section 4 (2) (a), went on to give judgment in favour of the Respondent without considering whether he had brought himself within Section 4 (2) (b). The rejection of the Appellant’s argument under 4 (2) (a) did not ipso facto entitle the Respondent to succeed. It was the Respondent’s case at the trial of the

Second Action that he was being carried in Roberts’ vehicle by reason of or in pursuance of a contract of employment within section 4(2) (b) and this was resisted by the Appellant. It was, therefore, incumbent on the trial judge to consider the applicability of Section 4 (2) (b). This was not done and I proceed to do so now. 12. At the trial of the Second Action, the Respondent was the only person to give viva

voce evidence. Roberts, by the time of the trial, was unfortunately deceased but an affidavit sworn by him in relation to an application to set aside an interlocutory judgment obtained in the First Action, and a written statement given by him, were admitted into evidence. 13. On the evidence before the Court, the Respondent at the material time was

employed with Oil Well Contractors Limited as a crane operator. He worked two 24 hour shifts per week with a 48-hour interval between each shift when the respondent did not work. Although he worked a 24-hour shift, he was paid for 30 hours. The additional six hours for which he was paid, according to the Respondent, represented travelling time presumably in traveling to and from work. Roberts was also employed with Oil Well Contractors Limited and worked with the Respondent. The Respondent travelled with Roberts ever since he started to work with Oil Well Contractors Limited. It was on a journey coming from work that the collision giving rise to these proceedings occurred. 14. Counsel for the Respondent submitted that the Respondent was travelling in the

vehicle while in the course of his employment. In those circumstances, it was submitted that he was travelling by reason of or in pursuance of his contract of employment. Even if we accept that the Respondent was in Roberts’ vehicle while in the course of his employment, that does not mean he is being carried in the vehicle by reason of or in

pursuance of a contract of employment.

The two terms, “in the course of the

employment” and “by reason of or in pursuance of a contract of employment” are not coextensive. An employee who was travelling in a vehicle in the course of his employment may also have been carried in the vehicle by reason of or in pursuance of a contract of employment. But it is not necessarily the case that it is so. In the ordinary course, an employee injured in the course of his employment would receive compensation under the Workmen’s Compensation Act Chap. 88:05 if he is a workman within that act. But whether such an employee is within 4(2) (b) necessitates for the purpose of this case a consideration of the term “by reason of or in pursuance of a contract of employment.” 15. Those words have been considered in several authorities. I do not think I need do

more than refer to the case of Tan Keng Hong v. New India Assurance Company Limited (1978) 1 W.L.R. 297. This was an appeal from the Federal Court of Malaysia to the Privy Council. In this case, a government forester whose job it was to inspect lorry loads of logs on their way from the logging areas to the sawmills asked the driver of a lorry belonging to a timber company for a lift. The forester was not on duty at the time and asked for the lift for private reasons unconnected with his employment. The driver agreed to give him the lift because he feared that a refusal might annoy the forester and cause him to create difficulties for the timber company in the future. It was argued on behalf of the driver and the timber company that the forester was given the lift by reason of his contract of employment pursuant to the Malaysian equivalent to Section 4 (2) (b). That argument was rejected. In giving the judgment of the Board, Lord Salmon stated (at page 300) In their Lordships’ view, the words “by reason of a contract of

employment” must be read in conjunction with the words “in pursuance of” and properly construed, mean because the contract of employment expressly or impliedly requires the employee or gives him the right to travel as a passenger in the motor vehicle concerned.” 16. At page 301, he goes on to say: “… whether a passenger is carried by reason of or in pursuance of a contract of employment… depends solely upon the terms of the passenger’s employment.” 17. For the Respondent to succeed therefore he needs to establish that it was a term

of his contract of employment which expressly or impliedly required him or gave him the right to travel as a passenger in Roberts’ vehicle. In this case, there is no direct evidence of any such term of the Respondent’s contract of employment nor any from which it can reasonably be inferred. I think Counsel for the Respondent, recognizing that there was no direct evidence, asked the Court to find that there was an obligation on the part of the Respondent to travel in Roberts’ vehicle on his way to and from work. This conclusion, it is said, can be drawn from Roberts’ written statement in which he stated, inter alia, that it was customary for him to take the Respondent to and from work in his vehicle. I am afraid however that Counsel is reaching much too far. That evidence does not begin to establish that there was a term of the Respondent’s contract of employment requiring or permitting him to travel as a passenger in Roberts’ vehicle. The evidence seems to do no more than describe the usual occurrence that Roberts would take the respondent to and from work.

18.

In the circumstances, therefore, it seems to me that the judgment of the learned

trial judge should be set aside. Now there is a power to order a new trial (See section 40 (1) Supreme Court of Judicature Act Chap. 4:01.) Why I mention this is because of what emanated from Counsel for the Respondent. At one point he seemed to have suggested that relevant evidence as to the terms of the Respondent’s employment might have been excluded pursuant to an objection taken by Appellant’s Counsel which was upheld by the trial Judge. However, on a perusal of the proceedings before the trial Judge, it is clear that this was not the case and that was accepted to be so before this Court by Counsel for the Respondent. In any event there is no cross appeal by the Respondent on the trial judge’s ruling on the objection. 19. In the circumstances, the appeal is therefore allowed and the judgment of the trial

judge is set aside. It is ordered that the Respondent’s claim against the Appellant be dismissed. Counsel for the Appellant has indicated that he is not seeking an order for

costs of the appeal and that the trial judge did not make an order for costs. Accordingly, there shall be no order as to costs.

A. Mendonca Justice of Appeal


				
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