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Brian Saunders and Ors.rtf

VIEWS: 20 PAGES: 15

  • pg 1
									TRINIDAD AND TOBAGO


                      IN THE HIGH COURT OF JUSTICE


CV 2005-00371

                                 BETWEEN

                            BRIAN SAUNDERS
                                                                  PLAINTIFF
                                    AND

                           NELLIE DES VIGNES
                           T/A DE VEES RENTAL
                                                        FIRST DEFENDANT
                           ROYAL CARIBBEAN
                      INSURANCE COMPANY LIMITED
                                            SECOND DEFENDANT



BEFORE THE HONOURABLE MADAM JUSTICE JUDITH JONES

Appearances:
Mr. Roopnarine for Plaintiff
Mr. Persad for First and Second Defendant



                              JUDGMENT

This action was instituted as a result of a collision that occurred on the 26th

December 2001 involving three motor vehicles registration numbers PAR 3186;

PAP 5943 and RBJ 1802. Two related matters have been filed both of which have

also been docketed to me. By consent, in an effort to save time and pursuant to

my case management powers, it was ordered that the parties in the other two

related actions, CV 2005-00369 and CV 2005-00370 be bound by the court’s

findings in this action.


                                                                   Page 1 of 15
The First Defendant is the owner of the RBJ 1802 (hereinafter called “the rented

vehicle”); the Second Defendant, the insurers of the rented vehicle, and the Third

Defendant, the renter.



This action was originally commenced against the First and Second Defendants.

On the 14th January 2004 leave was granted for the Third Defendant to be joined

as a party. On the 4th October 2005 judgment in default of appearance was entered

for the Plaintiff against the Third Defendant.



By their defence the First and Second Defendants deny that the rented vehicle was

driven by their servant and/or agent and allege that at the time of the collision the

rented car was being driven by an unauthorised driver, it having been stolen.



It is not in dispute that:

    (i)     the accident was as a result of the negligent driving of the rented

            vehicle;

    (ii)    the rented vehicle was the subject of a rental agreement the terms of

            which provide that the Third Defendant be the only authorised driver;

            and

    (iii)   indemnity under the insurance policy only arises in respect of

            authorised drivers.




                                                                        Page 2 of 15
The only issue of fact to be determined therefore was that raised by the First and

Second Defendants that is, whether at the time of the accident the rented vehicle

had been stolen.



The onus of proof of this issue being on the First and Second Defendants they

were required to lead their evidence first.




Evidence in these matters was ordered to be by way of witness statements. On

behalf of the First and Second Defendants witness statements were filed by:

    (i)     the First Defendant;

    (ii)    Dianne Thomas, her daughter and

    (iii)   Neil Adams, Police Sergeant.

On behalf of the Plaintiff witness statements were filed by the Plaintiff and the

Plaintiffs in the other actions.



By an application made at the hearing, leave was sought to adduce a further

statement of the Plaintiff. I refused to grant leave on the grounds that:

    (i)     the statement annexed a copy of a statement purportedly made by a

            witness to the accident who had not filed a witness statement in the

            action that statement, in my opinion, could not be put into evidence in

            that manner.




                                                                            Page 3 of 15
   (ii)    the statement of Brian Saunders contained certain facts which had

           been the subject of an earlier application by the plaintiff on the 26 th

           April 2006. That application was for leave to adduce evidence by way

           of a supplemental witness statement which application I had refused

           since they were not facts which had arisen or became relevant or

           known after the service of his witness statements; and

   (iii)   the other facts contained in the supplemental statement were

           inadmissible by reason of being hearsay and no application or attempt

           had been made pursuant to Part 30 of the Civil Proceedings Rules

           1998 as amended (“the CPR”) to have such evidence admitted. Neither

           was sufficient notice given to the other side so the requisite counter

           notice could have been served on the maker of the out of court

           statement if their attendance in court was required.



By notices filed and served on the 30th June 2006 the First and Second Defendants

sought the leave of the court to adduce in evidence certain out of court statements

namely:

   (i)     an oral statement made by the Third Defendant to the First Defendant

           and /or Dianne Thomas on or about the 25th –26th December 2001;

   (ii)    an oral statement made by the Third Defendant to Neal Adams on or

           about the 26th December 2001; and

   (iii)   a written statement given by Sherwin Thomas to Insurance

           Investigators Services Limited dated the 27th April 2002.




                                                                       Page 4 of 15
The Plaintiffs on the 6th July 2006 filed a notice indicating their objection to the

use of the said statements. After hearing arguments I reserved my decision with

respect to this application.



After considering the application and the provisions of the CPR and The

Evidence Act Chap 7:02 (“the Act”) leave is granted for the Defendant to

adduce the statements into evidence for the following reasons:

Section 37 (1) of the Act provides that a statement made whether orally or in a

document or otherwise, by any person shall subject to the section and to the rules

of court be admissible as evidence of any fact stated therein of which oral

evidence by him would be admissible.



It cannot be disputed that the statements would have been admissible by way of

the oral evidence of the Third Defendant and Sherwin Thomas.



Part 30 of the CPR deals with the admissibility of hearsay evidence.



Part 30.2 provides that a party who wishes to give hearsay evidence admissible

only by virtue of sections 37, 39 or 40 of the Evidence Act must serve a hearsay

notice on every other party no later than the time by which the witness statements

are to be served or if no such statements no less than 42 days before the hearing

unless the court gives permission.




                                                                       Page 5 of 15
Part 30.8 allows the Court to dispense with the requirement of the service of such

notice.



Part 30.3 (1) sets out what the notice is to contain on an application pursuant to

section 37 of the Act and in particular states that if the party giving the notice

does not intend to call any person of whom details are contained in the notice and

claims that any of the reasons set out in Part 30.6 applies the notice must say so

and the reasons relied on.



It is not in dispute that the notices were not filed within the time prescribed by the

CPR. In the instant case Attorney for the First and Second Defendants submits

that the notices could not have been served within the time limited by the Rules

since it was only on the 26th April 2006, some four months after the service of the

witness statements, upon Attorney for the Plaintiffs withdrawing a concession

made on the 7th December2005 that the need for such evidence became apparent.

Further, he submits, the reason why such notices were not filed earlier was as a

result of his extended illness. He further submits that the Plaintiffs are not

prejudiced by the late filing since at all material times they had notice of the

evidence now sought to be adduced, facts that have not been disputed by the

Plaintiff’s Attorney.



I am of the view that it is appropriate to give these Defendants permission to

extend the time for the service of the notices. In my opinion, the Plaintiffs have




                                                                        Page 6 of 15
not been prejudiced by the late service since the statements made by the Third

Defendant were contained in the witness statements served on the Plaintiffs’

Attorneys since December 2005 and were the subject of a series of objections as

to their admissibility made by the Plaintiff’s Attorney on the 26th April 2005 and

the statement of Sherwin Thomas had been given to the Plaintiffs’ Attorneys as

early as 26th April 2006.



With respect to the statements made by the Third Defendant the contents of the

notices comply with Part 30.5 of the CPR and in particular, in compliance with

Part 30.6, state that the reason that the Third Defendant is not called as a witness

is because he is overseas.



With respect to the statement made by Sherwin Thomas while the notice does not

state the reason why he is not called as a witness the rules only to require that this

be done where the person is not called because any of the reasons referred in Part

30.6 apply.



Part 30.7 deals with the service of a counter-notice and states that a person on

whom a hearsay notice has been served may serve a counter notice requiring the

server of the notice to call any person named in the counter notice as a witness.

Part 30.7(4) provides that no counter-notice may be served where there is a

statement in the hearsay notice that one of the reasons in rule 30.6 applies.




                                                                        Page 7 of 15
Where a counter notice is served however no statement made by any person

named in the counter-notice shall be admissible unless the server of the hearsay

notice calls the person named or applies to the court for directions. Part 30.7 (6)

(a) and (b).



A counter- notice is therefore only required where the person on whom the

hearsay notice has been served requires a person, who shall be named in the

counter notice, to be called as a witness.



It is conceded by the Plaintiffs’ Attorney that the counter notice does not comply

with Part 30.7 of the CPR. In particular the counter-notice does not require any

person to be produced to give evidence.



Section 43(3) of the Act specifically provides that “Rules of Court may not confer

on the Court a discretion to exclude such a statement where the requirements of

the rules affecting its admissibility has been complied with.



In my opinion, the conjoint effect of sections 37 and 43 (3) of the Act and Part

30 of the CPR is that once the person seeking to adduce the hearsay evidence

complies with the rules such evidence is admissible subject to the court ordering

the production of any witness as required by any counter notice served.




                                                                      Page 8 of 15
In the circumstances, leave is granted to the First and Second Defendants to

adduce into evidence the oral statements made by the Third Defendant as

requested by the notices dated the 30th June 2006 and the written statement of

Sherwin Thomas dated the 27th April 2002. In admitting this evidence I bear in

mind the provisions of section 43 of the Act that in estimating the weight to be

attached to this evidence regard must be had to “all the circumstances from which

any inference can reasonably be drawn as to the accuracy or otherwise of the

statement and, in particular….. to the question of whether the statement was made

contemporaneously with the occurrence or existence of the facts stated, and to the

question whether or not the maker of the statement had any incentive to conceal

or misrepresent the facts.”



At the end of the day, despite the filing of his witness statements the Plaintiff

made a no case submission and when put on election elected not to call any

evidence. The only evidence placed before the court therefore is that of the First

and Second Defendants and an extract of the Police Station Diary of the

Scarborough Police Station for the period 24th to 26th December 2001 which was

put into evidence by consent.



The evidence, by way of witness statements of the First Defendant and her

daughter Dianne Thomas with respect to the theft of the rented car is consistent

and is to the effect that on the 26th December 2001 at around 2.30 am as a result

of a telephone call and a visit to the scene by Dianne Thomas the First Defendant




                                                                     Page 9 of 15
was advised that the rented car had been involved in an accident with two other

vehicles but that the driver could not be located. At 5.00 am they went to Trinity

Resort where the Third Defendant was staying and found him asleep. He was

informed about the accident. He expressed surprise and stated that he had last

seen the rented vehicle the night before at around 9 pm when he parked it on the

compound of the resort. According to them he advised them that he had not given

the rented vehicle to anyone to drive nor had he given anyone permission to use it

and that it had been stolen from him.



The three of them then went to the Scarborough Police Station where a report was

made to Constable Adams. They both state that in their presence and hearing the

Third Defendant repeated to the police constable what he had told them earlier

when informed of the accident. According to them the Third Defendant left

Tobago about 5 days later and to their knowledge has not returned. They both

describe the Third Defendant as a “white” man with dark blonde hair, styled in a

short crew cut who was less than 6 feet tall, and weighed about 170 lbs.

According to them he spoke with a foreign accident.



Under cross-examination, the evidence of both witnesses was consistent with their

witness statements save as to the time. They both state under cross examination

that they went to Trinity Resort at about 7:00 to 7.30 am and arrived at the

Scarborough Police Station at about 8.30 to 8.45 am.




                                                                    Page 10 of 15
Under cross-examination Dianne Thomas confirmed that the Trinity Resort is also

called Classic Resort and is located in Crown Point and there is a police station at

Crown Point.



The evidence of the Police Officer, Neil Adams, made in his witness statement,

confirms the evidence of the Third Defendant and Dianne Thomas with respect to

the physical description of the Third Defendant and the report of the theft made

by the First Defendant and the Third Defendant. According to the Police Officer,

the Third Defendant, seemed very upset at the time. In his witness statement the

Police officer states that he made inquiries but was unable to gain any useful

information as to who drove the vehicle that night. He referred both Defendants to

the Scarborough Criminal Investigations Department for continued inquiries.

Under cross-examination he stated that he made enquiries after the report was

made. He states that his enquiries did not take him to the Trinity Resort and that

they ended after he directed the two defendants to the CID office upstairs.



Insofar as it is relevant to the issue to be determined, the station diary reveals that

a report was made by the First and Third Defendant as to the theft of the rented

vehicle. The report in the station diary confirms what was stated by the First

Defendant save that it states that the Third Defendant says that he was awoken at

around 7.30 am by a telephone call from the First Defendant. There is, however,

some discrepancy as to the time of the making of the report, according to the

station diary the First and Third Defendants made the report at “12 MD” and left




                                                                        Page 11 of 15
the Station at “12.20 pm”. The Police Officer confirms that the closest Police

Station to the resort would have been the Crown Point Police Station.



According to the statement of Sherwin Thomas made some 4 months after the

accident he was a passenger in PAP 5943. He states that the driver of the rented

vehicle was a “dougla looking like a rastaman”. According to him he again saw

him at the Scarborough Hospital seeking medical attention. He tried to contact the

police on his cellular phone to no avail. In the statement he states that he later

went to Trinidad on “the Beauport” on the 11th January 2002 and again “saw the

Rastaman on the said boat who had fled the accident scene on the 26th December

2001. I again tried to contact the Police via 999 but had no help. I could not hold

him because of my injuries, what I saw briefly of the man he is a fair skin Dougla

Rasta about 5’9’’ tall and in his late twenties or early thirties.”



With respect to the evidence the Plaintiff submits that the burden of proof is on

the First and Second Defendants to establish that the vehicle was in fact stolen.

According to the Plaintiff there is no evidence upon which this court can come to

the conclusion that the vehicle was stolen. He submits that what little evidence

that there is discredited by the fact that the report was made to the Scarborough

and not the Crown Point Police Station and the failure of the Police to do proper

enquiries.




                                                                      Page 12 of 15
I do not accept the submission of the Plaintiff. The issue here is not whether the

report was made to the correct station or not, or whether the Police investigation

was thorough or complete, but rather, whether I believe on a balance of

probabilities that the rented vehicle was stolen as claimed by the Third Defendant.

It cannot be disputed that at the end of the day the outcome of this issue depends

on the weight to be placed on the hearsay evidence adduced, to my mind the

discrepancies in the evidence as to time are de minimus. In assessing the weight

to be placed on the hearsay evidence I must specifically take into consideration

the injunctions contained in section 43 of the Act and in particular bear in mind

the fact the statements attributed to the Third Defendant by the First Defendant

and her daughter are to the benefit of the First Defendant. I must also bear in mind

that it was open to the Plaintiff to produce the witness Sherwin Thomas to deny

that he made such a statement or to give any explanation in the Plaintiff’s favour.

The evidence led by these Defendants has not been contradicted in any manner.



In assessing the weight to be placed on the evidence on the whole, in my opinion

regard must be had to the evidence of the Police Officer and the statement

attributed to Sherwin Thomas.



The Police Officer confirms that a report of the theft was made by the Third

Defendant and the First Defendant. I accept that evidence.




                                                                     Page 13 of 15
Of even more importance is the evidence of Sherwin Thomas a passenger in the

motor vehicle registration number PAP 5943. From his evidence, if accepted, it is

clear that the third defendant could not have been the driver of the vehicle at the

time.



I accept the evidence contained in the statement of Sherwin Thomas to the effect

that at the time of the accident the rented vehicle was being driven by a “dougla

looking like a rastaman”. I accept the evidence of the First Defendant and her

witnesses as to the description of the Third Defendant. In those circumstances, I

find that at the time of the collision the rented vehicle was not being driven by the

Third Defendant. That said, I accept the evidence of the First Defendant and her

witnesses and on a balance of probability I find that the rented vehicle was at the

time of the collision the subject of a theft.



In the circumstances, I find that at the time of the accident the rented vehicle was

not being driven by a servant and/or agent of the First Defendant or an authorised

driver under the insurance policy.




                                                                      Page 14 of 15
The Plaintiff further submits that in any event the fact that there is a judgment in

default registered against the Third Defendant means that this Court must accept

that the Third Defendant was the driver of the rented vehicle. In support of this

submission the Plaintiff relies on HCA No. 1115 of 2000 Kent Hector and

Indranie Bhagoutie and Reinsurance Company of Trinidad and Tobago Ltd.

Without commenting in detail on the said case it is only necessary to state that the

case is distinguishable from the instant case in that in this case the default

judgment is a procedural judgment, what is commonly referred to as an over the

counter judgement whereas in the case cited there was a judgment on the merits, a

trial albeit in the absence of the defendants who did not appear. In my opinion no

estoppel can arise in these circumstances.



In the circumstances the Plaintiff’s case is dismissed.



Dated this 17th day of October 2006



………………………………..
Judith A. D. Jones
Judge




                                                                     Page 15 of 15

								
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