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 Page 1 of 26 (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 Page 2 of 26 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 Page 3 of 26 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. Page 4 of 26 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. Page 5 of 26 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.