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THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV 2014-00796
BETWEEN
CHANDREKA PERSAD
Claimant
And
YASMIN KHAN
First Defendant
REINSURANCE COMPANY OF TRINIDAD AND TOBAGO
Second Defendant
BEFORE THE HONOURABLE MR. JUSTICE ROBIN N. MOHAMMED
Appearances:
Mr. Shaun Roopnarine and Ms. Summer Sandy for the Claimant
Ms. Raisa Caesar for the First and Second Defendants
____________________________________________________________________________________
JUDGMENT
________________________________________________________________________
INTRODUCTION
1. The Claimant, Chandreka Persad, presented a claim for damages against the First
Defendant and Second Defendant for personal injuries and loss which he alleges were
caused by the negligence of the First Defendant and/or her agent and/or authorized driver
in the driving, management or control of TBR 2420. The First Defendant is the owner of
TBR 2420 and the Second Defendant was her insurer at the time of the collision and both
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defended the Claim. Essentially, there is a dispute of fact concerning liability for the
vehicular collision with the Claimant and Defendants’ version of events being
diametrically opposed. By agreement, the trial proceeded on the basis of liability solely.
FACTS
2. The collision took place on the morning of the 23rd
May, 2013 on the road referred to as
the Naparima Mayaro Road by the Claimant or the Naparima Main Road by the
Defendants. The parties appear to be referring to the same road and so there is no real
dispute on the nomenclature of the road. The First Defendant’s vehicle collided with the
front of the Claimant’s vehicle. It is not disputed that the First Defendant is the owner of
TBR 2420 and that it was at all material times insured by the Second Defendant.
THE CLAIMANT’S PLEADINGS
3. The Claimant filed his Claim Form and Statement of Case on the 7th
March, 2014.
Attached to same are:
A letter dated the 20th
September, 2013 from the Claimant’s attorneys-at-law to
the Second Defendant;
Copies of TTPost receipts;
Report dated 27th
May, 2013 from Totaram Boush Sookoo & Sons detailing costs
of parts and labour;
Copy of a receipt from Rio Claro Police Station for Police Report;
A Police Report from the Eastern Division Rio Claro Police Station dated Friday
21st June, 2013;
Receipt dated 22nd
November, 2013 for medical services in the sum of $1000;
A Medical Report dated the 25th
October, 2013 from Dr. Stephen Ramroop; and
Medical Report dated 23rd
May, 2013.
4. The Claimant pleaded that he was born on the 13th
September, 1951 and lives at No.
3059 Naparima Mayaro Road, Mile End Village, Rio Claro and was on the 23rd
May,
2013 the owner/driver of motor vehicle registration number PBG 7716. On the 23rd
May,
2013 whilst the policy of insurance was in force, the Claimant was the owner/driver of
PBG 7716 which was at a standstill along the Naparima Mayaro Road, Mile End Village,
Rio Claro waiting to merge when the Defendant, her servant and/or agent and/or
authorized driver so negligently drove and/or managed and/or controlled TBR 2420 at too
fast a rate of speed along the said road from the opposite direction that he collided with
the stationary Claimant’s vehicle thereby causing the Claimant severe personal injuries,
damages and loss.
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5. As particulars of negligence, the Claimant pleaded driving too fast in the circumstances,
driving in such a course and/or in such a manner that he did not or alternatively could not
avoid the said collision, failing to stop and/or slow down and/or to so manoeuvre his said
motor vehicle so as to avoid the said collision with the Claimant’s stationary vehicle,
failing to keep any or any proper look-out or to have any sufficient regard for the
Claimant’s motor vehicle on the said roadway, driving without due care and attention and
colliding with the Claimant’s stationary motor vehicle.
6. The Claimant further pleaded that he will rely on the fact that the said accident occurred
as stated as being sufficient evidence of negligence on the part of the First Defendant, her
servant and/or agent and or authorized driver.
7. The Claimant pleaded that as a result of the said collision he suffered damages, personal
injury, loss and expenses and claims general damages for pain and suffering, loss of
amenities, and resulting physical disability. Further the Claimant also pleads Special
Damages.
THE DEFENDANTS’ PLEADINGS
8. One Defence was filed on behalf of both the First and Second Defendant on the 18th
June,
2014. According to the Defence, on the 23rd
May, 2013 the First Defendant authorized
her servant and/or agent, Mr. Jameel Khan, to drive motor vehicle TBR 2420. On the day
in question, Mr. Jameel Khan was travelling West to East along the Naparima Main Road
at about 7:30 a.m. with three other passengers. He observed two vehicles reversing out of
a driveway of a home located off the main road. The first vehicle was PBG 7716 and was
driven by the Claimant.
9. Mr. Jameel Khan observed a truck travelling in the opposite direction towards his
vehicle. The Claimant’s vehicle proceeded to reverse out of the driveway onto the middle
of the main road without heeding the oncoming traffic on both sides of the main road.
There was a slight depression on the left side of the road wherein Mr. Jameel Khan was
travelling on and as a result, he was forced to manoeuvre TBR 2420 slightly in the
middle of the road to avoid the depression. Mr. Jameel Khan attempted to slow down by
applying the brakes. However, he was forced to swerve left to avoid collision with the
oncoming truck that was on the next lane, and in doing so collided with the Claimant’s
vehicle.
10. In the premises, the Defendants deny that the said collision was caused or contributed to
by the negligence of the First Defendant, its servant and/or agent as alleged in the
Statement of Case or at all. In particular, the Defendants deny that the Claimant was at a
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standstill as alleged or at all as the Defendants state that the Claimant was reversing onto
the main road without heeding oncoming traffic. Further and in the alternative, the
Defendants contend that the accident was caused or contributed to by the negligence of
the Claimant.
11. Setting out the particulars of negligence of the Claimant, the Defendants allege that he
was reversing onto a main road without heeding the presence of oncoming traffic in
particular the First Defendant’s vehicle TBR2420, driving too fast, failing to keep a
proper look out for oncoming traffic, failing to steer his vehicle adequately or at all so as
to avoid the collision, failing to take any or any adequate precautions to avoid the
collision.
12. The Defendants deny that they are liable to the Claimant for any damages, personal
injuries, loss and expenses as they deny that the driver of the First Defendant’s vehicle
was negligent as alleged or at all. Further, the Defendants allege that the injuries loss and
damages as alleged in the Statement of Case were wholly caused or in the alternative,
contributed to, by the Claimant’s negligence. In any event the Defendant’s neither admit
nor deny the personal injuries allegedly suffered by the Claimant as they do not know if
same are true. Further, the Defendants put the Claimant to strict proof of the injuries set
out and are unable neither to admit nor deny the conclusions and findings of the medical
reports, though they admit their authenticity.
13. According to the Defendants, they are not liable to the Claimant for special damages and
put the Claimant to strict proof thereof.
14. In the circumstances, the Defendants dispute the Claimant’s Claim and deny that the
Claimant is entitled to any of the relief sought. Further, the Defendants contend that the
Claimant has not alleged any grounds for the award of interest on damages claimed.
EVIDENCE
THE CLAIMANT’S CASE
The Claimant’s Evidence
15. From his witness statement, the facts as alleged by the Claimant are as follows:
On the 23rd
May, 2013 around 7:35 am he was driving PBG 7716. The weather was clear
and he had reversed his vehicle out from his yard into the roadway of the Naparima
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Mayro Road. It was then at a standstill facing West on the right hand side of the road.
There was traffic on the left lane heading in a westerly direction as if towards Rio Claro.
16. He was waiting on the line of traffic to clear so that he could go onto the left side to head
to Rio Claro. He had his indicator on and was at a standstill. Whilst waiting to go onto the
left lane, he noticed a vehicle approaching on the right hand lane coming from the Rio
Claro area. The vehicle was driving at a fast rate of speed. There was still traffic passing
on the left hand lane. He kept asking himself where the driver of the vehicle was going as
there was no way he could have passed between his (the Claimant’s) vehicle and the
truck then passing on the left lane. The approaching vehicle, a pick up van, was too big to
squeeze through. He noticed that the driver of the other vehicle did not seem to be
slowing down and he sounded his horn to raise an alarm but he (the driver) still collided
with the Claimant’s vehicle. The impact pushed his vehicle back about 15 feet.
17. With the violent impact, the Claimant flew forward and hit his chest hard on the steering
wheel. He was in a daze. He could not believe that that accident had just occurred. After
about ten minutes he was able to come out of the vehicle. When he came out of the
vehicle he looked at the vehicle and the entire front right side was damaged (at trial,
during his examination in chief, the Claimant indicated that he meant to refer to the left
side of the vehicle and that the right side was stated in error). He looked at the road and
there were no brake impressions on the road from the pick-up. The driver of the other
vehicle did not come out of his car to speak to him. He did not talk to him. His daughter
took him to the Rio Claro Police Station to make a report. After, he went to the Health
Centre because his chest and neck were hurting.
18. The Claimant says that prior to the collision his vehicle was easily noticeable on the road.
There is no blind corner or anything obstructing the view of the approaching driver as it
is a straight road and there is no depression in the road. He has been living in the same
place since birth and has owned a vehicle since 1970 and has been reversing and coming
out of the said garage every morning. He is well aware of the road, the area and the
traffic. He has never gotten into any accident at that spot.
19. In answer to the Defence, the Claimant says in his witness statement that two vehicles
were not reversing out of his driveway, only his vehicle. His driveway is not wide enough
to accommodate two vehicles. At the time of the accident, he was not reversing out of the
driveway onto the middle of the main road heedless of oncoming traffic on both sides of
the main road. He says that as the pictures clearly show, his vehicle was hit in the right
front not its back or left side. He was waiting to merge when his vehicle got hit in the
front by the pickup. The pickup, as it approached his vehicle, did move to the centre of
the road as it tried to pass to the side of his vehicle but there was never any depression on
the road there. Mr. Jameel Khan did not attempt to slow down but did swerve out of the
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way of the truck as there was not enough space to pass between his vehicle and the truck
and he hit his car instead of the truck.
Cross-examination
20. Prior to commencing cross-examination, the Claimant indicated that he intended to state
that the left side of his car was mashed in and not the right side as was stated in his
witness statement. However, he did not then change the reference at paragraph 7 of his
witness statement which referred to the right side of his car, though he later sought to
assert that this too was an error during cross-examination.
21. Under cross-examination the Claimant indicated that he knows the road in question very
well and that he is accustomed to reversing and driving into that road and in fact, could
do so automatically, but not with his eyes closed as “you must see if anything is coming
and going”. He claimed when reversing to have looked in his side mirrors but he
admitted that no mention was made of such steps being taken in his witness statement.
The Claimant also confirmed that coming from his driveway, the cars on the Mayaro
Road would have the right of way. He maintained that he was already on the right side of
the road at a standstill waiting to go into the left lane when the driver of TBR 2420 came
speeding down the road. Attorney for the Defendants cross-questioned him on his use of
the term standstill, as he had previously indicated in a report to the insurance company
and the ombudsman that he was parked. He indicated that that could have been an error
but he was “at a standstill really”. He also maintained that he had his indicator on
waiting to proceed to the left lane but admitted that he failed to mention this in his
accident report to TRINRE insurance company.
22. The Claimant was questioned in greater detail by attorney for the Defendants as to the
position of his vehicle. He was first asked “so that means you were now, in your story
you are angling your vehicle to get into the left lane?” to which he responded “yes as
long as the traffic clear I could go across.” Attorney for the Defendants then asked
“okay, were you angling your vehicle to get into the left lane?” to which he replied “No
no I couldn’t angle at the point in time because it had a line of traffic and I had to wait
until it clear to go across”. Attorney for the Defendants stated “So you just in the right
lane?” to which he replied “yes well I in the right lane.” Attorney for the Defendants
asked him “making no attempt to get into the left lane?” to which he responded “Yes, as
I say that I make attempt because once is traffic going down you can’t go across.”
Attorney for the Defendants then asked him “So you made an attempt?” to which he
responded “Yes”.
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23. The Claimant was also crossquestioned as to whether, if the left side of his car was hit, it
would be able to show he was reversing out of his driveway and angled the vehicle
towards the left with the back of the vehicle facing East to which he responded “No
m’am”. The Claimant also testified that he wrote down and signed a statement for the
police. When asked whether same was not exhibited, he stated that the police took the
statement when they went to the police station and they have to file their report.
Discussion
24. Insofar as the Claimant indicated that he was already out on the right side of the road
when the accident occurred, his oral evidence is consistent with his witness statement. He
did not waiver in this claim, thereby not waivering in his claim that he was not in the
process of reversing onto the main road at the time of the accident. Attorney for the
Defendants sought to place much significance on the issue of whether the Claimant was
parked or at a standstill, however given that the crux of the Defendants’ case is that the
Claimant suddenly reversed into the path of TBR 2420 causing TBR 2420 to eventually
collide with him, I believe that the pertinent issue of fact to be resolved is the question of
whether the Claimant’s vehicle was stationary (whether at a standstill or parked) or
whether it was in the process of reversing.
25. The Claimant’s evidence is unclear when asked about the angle of the car, for at first he
claims to have been angling to get into the left lane then says he was not as he could not
at that point as he had to wait for the line of traffic to clear before he could go across.
However, the Claimant never waivered in his claim that he was in the right lane.
26. I note that though the Claimant claimed to have taken the precautions of looking in his
rearview mirror and side mirrors when reversing out of his driveway. He made no
mention of these cautionary steps in his witness statement or in his statement to the
insurance company. He also did not mention in his report to TRINRE insurance
company, that he had his indicator on waiting to go into the left lane of traffic. The Police
Report on which the Claimant relies also makes no mention of his indicator being on or
his waiting to go across into the left lane of traffic. The absence of the mention of these
respective cautionary steps in the reports and witness statement, as the case may be,
raises doubt in my mind as to whether they were in fact taken as he claimed.
Mrs. Zorida Persad’s Evidence
27. Mrs. Zorida Persad gave evidence as a witness for the Claimant. Her evidence as gleaned
from her witness statement is as follows:
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She is the wife of the Claimant. On the morning of the 23rd
May, 2010 at about 7:35 am
she was on the porch “seeing” her husband off. She often comes outside to see him drive
out. Just before the accident her husband had reversed his car out of the driveway and
was at a standstill waiting to go onto the left hand lane to head towards the Rio Claro
area. She noticed that her husband’s vehicle had its indicator on. On the left lane she
noticed a truck and other vehicles heading to Rio Claro. She then noticed a pick up van
driving fast on the same lane that her husband’s vehicle was on. The pick-up van moved
into the middle of the road as if to pass and she thought to herself that he would not be
able to fit in the space because of the truck then passing on the left lane and her
husband’s car. The next thing she saw was the pick-up van collided with the front of her
husband’s vehicle. She screamed out when the collision occurred. Her husband’s vehicle
got pushed back. She says that she stood there for a little while in shock and then ran
down the stairs as quickly as she could. She went to her husband and he said he was okay
and that it was just his chest “got lash”. She noticed that on their vehicle the entire front
was damaged and the right side was smashed in. The driver of the other vehicle never
came out of his van and never spoke to them. Her husband went to the Rio Claro Police
Station and Health Centre.
Cross-Examination
28. During cross-examination, Mrs. Persad confirmed that the porch which she referred to is
upstairs of her home. She stated that she could see everything from that angle and stated
further that from that angle, she was seeing the tops of the cars and was still able to see
that her husband’s indicator was on. She stated however that she could not recall which
indicator was on. Mrs. Persad stated that there were no potholes in the road, a road which
she knows very well. She also stated that everytime her husband leaves she comes out to
see him out and that they have been married 39 years. She said that every morning she
would see him out for thirty nine years. It was, she said, her habit.
29. Mrs. Persad said that she has two daughters and they both have cars. She said that the
three cars park under the house as there is space for all three there. She said that they
don’t go “behind” (each other) but “across”. Mrs. Persad further stated that the truck was
coming “real fast”, with “full speed”. She too was asked about her husband’s vehicle and
she at first said he was parked and when cross-questioned on this said he was “on a
standstill waiting to go to Rio Claro”. She said that the engine was on. She was asked by
Attorney for the Defendants whether when she ran downstairs to her husband she ran to
the middle of the road, to which she responded “not in the middle of the road”. When
asked if she saw skid marks in the road, she said that she didn’t look at all as she was
concerned about her husband as she thought he had been injured and so she rushed to
him.
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30. Attorney for the Defendants questioned Mrs. Persad as to whether it was really her
husband who reversed too fast to which she responded “No my husband didn’t reverse as
I told you, my husband already park there before this van was coming up.” When cross-
questioned as to whether her husband was in the middle she responded “No, he wasn’t in
no middle, he was already parked there to get when I mean park he was already on the
road ready to go down to the west.”
31. Mrs. Persad was also asked whether her husband blew the horn when the pick-up van was
coming towards him and she said that he did not as he did not have time to. She too was
asked about her witness statement wherein she said that the right side of the vehicle was
smashed in to which she responded that it was the left side. When asked about the
inconsistency with her witness statement, she said that it was an error and that it was the
left side, though she admitted that when asked before whether her witness statement was
true and correct she said that it was. She said that though she read the witness statement
before she signed it, she did not notice the mistake. She was asked whether if the damage
was done to the right, that would mean that her husband was wrong. She responded “No I
wouldn’t say my husband was wrong in no way.”
32. Mrs. Persad said that she went with her husband to the police station and that the police
did not take a statement from her but took one from her husband. She saw him sign his
name on the paper. She could not however remember seeing Mr. Khan sign “a paper” to
say what was his side of the story. When asked whether she knew if there were other
persons in the vehicle TBR 2420, she said she didn’t see anyone else.
Discussion
33. I observed that in her witness statement, Mrs. Persad referred to the date of the accident
as being the 23rd
May, 2010 and not 2013. However, she was not cross-questioned on
same and it appears that attorneys for both parties did not make an issue of this apparent
error, as I note that Counsel for the Defendants, in her closing oral submissions, made no
mention of this statement which was inconsistent with the date stated by both the
Claimant and the Defendants as the date on which the collision in question took place.
34. Like her husband, Mrs. Persad was questioned on her use of the word “parked”. During
her testimony I note that she used both the words “parked” and “standstill” to describe
her husband’s car. I note that she indicated that the engine was on. I get the impression
that the words were used interchangeably intending to refer to a stationary vehicle- one
that was not moving. Like her husband, she sought to indicate that she intended to refer to
the left side of the vehicle and not the right as being the side that sustained damage and
claimed that a mistake had been made in her witness statement.
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35. Mrs. Persad was unwaivering in her testimony that her husband was already out on the
road, stationary, and not in the process of reversing when his car was hit. She was clear
that when she went to his aid, she did not go to the middle of the road, the middle of the
road being where the Defendants allege his car was at the time of the accident. She was
also adamant that the road in question did not contain any potholes, consistent with her
husband’s claim in his witness statement that there was no depression there as the
Defendants allege.
36. Mrs. Persad stated that she was on the upstairs porch looking down, seeing the tops of
cars and that she could see that her husband’s indicator was on. Now, I do not find the
fact that she was gazing downwards onto the cars inconsistent with the ability to view the
car’s indicator. However, I note that she claimed to be unable to recall which indicator
was on. Bearing in mind the Husband’s failure to make mention that his indicator was on
in his report to the insurance company, a report in which it is reasonable to assume he
would have wished to indicate that he had exercised utmost caution, I am left to conclude
that perhaps the Husband did not have his indicator on as alleged. Attorney for the
Defendant sought to question Mrs. Persad’s ability to come out to view her husband leave
the driveway everyday for over thirty something years. However, couples have their own
nuances and routines and it may well be that she was able to do so. In any event, I do not
find that much turns on this since at no point did Attorney for the Defendants put to Mrs.
Persad or claim as part of the Defendants’ case that she was not present and had not
viewed the accident.
37. During cross-examination, Mrs. Persad said that her husband did not blow his horn, as he
did not have time to do so. Now this is contrary to the husband’s assertion that he in fact
sounded his horn when he noticed the driver of the other vehicle did not seem to be
slowing down. I also bear in mind that he claims to have looked in his mirrors when
reversing and to have had his indicator on when on the roadside. As stated before, I am of
the view that those cautionary steps were not taken and similarly, in light of his wife’s
evidence, suspect that his allegation of having sounded his horn when he saw the vehicle
coming towards him was made to bolster his claim to have reasonably taken all
precautionary measures to presumably avoid an accident.
38. Mrs. Persad stated that she would not say “her husband was wrong in no way”. I took
this statement to mean that she was of the view that her husband was not at all at fault
when it came to the accident.
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THE DEFENDANTS’ CASE
The Defendants’ Evidence
Mr. Jameel Khan’s evidence
39. In his witness statement, Jameel Khan stated as follows:
He is a gardener and proprietor, authorized on behalf of the Defendants to give the
statement with respect to this High Court matter. He said that on the 23rd
May, 2013
around 7:30 am he was on the Naparima Main Road driving TBR 2420. He was going
from West to East towards Moonan Trace. The Claimant’s yard is a short distance away
(about 200 feet) from Moonan Trace. TBR 2420 is owned by his sister, the First
Defendant. She gave him permission to use the van. He was 28 years old at the time of
the accident. The vehicle was insured by TRINRE under Policy Number TTMOG
003731 for the period 18th
March, 2013 to 22nd
October, 2013. Two workers, Jamaal
Khan and Wazi Khan, together with his wife Ria Motoo were in the van with him at the
time of the accident.
40. He said that the Naparima Main Road is straight. Approaching 200 feet before Moonan
Trace, he saw two vehicles reversing out of the Claimant’s (sic). The first vehicle
approaching the road was a silver Nissan Sunny B-13 which turned out to be the
Claimant’s vehicle and the second vehicle was his daughter’s car. The Claimant’s yard is
on the main road and his driveway is about 60 feet from the main road. He said that the
view from the Claimant’s yard to the main road is clear in that there are no walls to block
the view. He could see into the Claimant’s yard from the road.
41. Jameel Khan said that while he was driving along the main road he could see the
Claimant’s vehicle reversing out of his driveway. Whilst he was approaching, he had not
reached the road as yet. He slowed down a little but did not stop since his vehicle was
approaching and the Claimant had to wait till it passed. He also saw a truck driving in the
opposite direction on the other side of the road. The truck was still further from the
Claimant’s home to him, approximately 50 feet away.
42. He said that suddenly and without any warning the Claimant reversed from the yard onto
the major road, across the roadway. Half of the vehicle was on his side of the road and
half was on the truck’s side of the road. He appeared to be entering the lane with the
upcoming truck. He reversed from his driveway very quickly at which point he (Jameel
Khan) was already right in front of the driveway. He said that he tried to swerve to the
lane with the upcoming truck to avoid the Claimant’s vehicle but he could not because
the truck was coming. Additionally, there was a depression in the roadway on the left
side which prevented him from swerving into the other lane. He said that he had no
Page 12 of 22
choice but the swerve back to his side of the road and apply his brakes which caused their
vehicles to collide.
43. Mr. Jameel Khan said that they both came out of the vehicle and he asked his worker,
Jamaal Khan, to take a picture with his phone. After, someone provided paint and they
marked the spot where the accident occurred with a paint marking. He then went to the
Rio Claro Police Station and made a police report. He said that the Claimant asked for “a
paper to get a medical” and left. He said that he asked the police to come and take
measurements and to his knowledge the police never visited the scene of the accident. He
was never contacted by police to revisit the scene of the accident to take measurements.
Further, he said that the police did not take any statement from him. He said that it is not
true that the car was parked. He did not see when a report was written down saying that
the car was parked and he was not able to exchange insurance information with the
Claimant.
44. Mr. Jameel Khan said that when the accident took place, he observed that the damage
was to the front left side of the Claimant’s vehicle, PBG 7716. The damage to his sister’s
vehicle was to the left front bumper, light, grill and fender. Mr. Jameel Khan stated that
the Claimant’s vehicle was not at a standstill at the time of the accident. It was straight
across the middle of the road. He said that he later went to his sister’s insurance company
and informed them of the accident. One of the insurance agents filled out a form based on
the information he gave to her.
Cross-Examination
45. At the outset of his cross-examination, Mr. Jameel Khan was asked whether he had ever
been involved in accidents before to which he responded that he had not. He was again
asked by Attorney for the Claimant whether he had ever been involved in a motor
vehicular accident to which he again said no. Attorney for the Claimant pressed him,
asking whether he was sure to which he replied “yes”. He was then referred to a form
from TRINRE insurance company which he had exhibited to his witness statement. The
said form was filled out after the accident and he admitted that he had given that
statement and signed same. Attorney for the Claimant pointed out to him that the form
said that he was involved in an accident on the 12th
December, 2012, five months before
the accident in question, and further it stated that he was liable. He admitted that the form
in fact stated such, though when asked whether he was accordingly not telling the truth
when he claimed never to have been involved in an accident, he insisted that he was.
46. Under cross-examination, Jameel Khan admitted that he had three passengers in the car-
his wife, who he admitted was seated in the front seat and had a clear view of the road,
Page 13 of 22
and Mr. Wazi Khan and Mr. Jamaal Khan, back seat passengers. He confirmed that only
Mr. Jamaal Khan was a witness in this matter.
47. Jameel Khan claimed that he was driving at about 60 km per hour and that he was able to
see the Claimant’s driveway from about 200 feet away. He said that after he slowed
down, he was going at about 40 km. When cross-questioned, he admitted that at 40 km
per hour it would not have taken much for him to “mash” brakes at that point and that he
would have been able to stop but he did not. When asked about his claim in his witness
statement that the claimant “suddenly and without warning” (reversed from the yard onto
the major road), Jameel Khan replied “Well he was in his driveway, I was proceeding
along the Naparima Mayaro Road, I didn’t expect him to pull out into the road like that.”
Attorney for the Claimant responded “but you say suddenly and without warning and you
told me before that you had him under observation from 200 feet” to which he replied
“yes but he was in his driveway still coming out”. Ms. Sandy then said “but you say
suddenly and without you...” to which Jameel Khan responded “well that is suddenly
because if somebody just pull off on you just so in the middle of the road just so, is
suddenly.” He went on to say that the Claimant was reversing out of the driveway. He
further stated that the Claimant was in the middle of the road and he tried to swerve. He
was pressed as to whether he never tried to stop his vehicle and responded “I applied, no
I didn’t try to stop at the time. When I saw the vehicle coming out of the driveway onto
the road I swerved. I see a truck on the next side so I pull back on my side nah.”
48. Under further cross-examination Mr. Jameel Khan said that there was a depression on the
left hand side of the road and that depression caused him to swerve onto the right hand
side of the road. He admitted however that in the form that he filled out for the insurance
company, on the same day as the accident, when things would have been fresh in his
memory, that he did not say anything about there being a depression in the road. He went
on to say that the depression “have nothing to do with the accident why I swerve to the
right”. He then agreed however that the depression was material and that the existence of
the depression was part of his story. He also admitted that he did not take any pictures of
the road or depression and said that he took pictures of the accident.
49. He was cross-questioned further about his application of the brakes. Counsel for the
Claimant asked him if he said that he had no choice but to swerve back to his side of the
road and apply his brakes and whether that time was the only time he applied his brakes,
to which he responded “yes m’am”. He said he applied his brakes only when he felt he
had no choice. Mr. Jameel Khan maintained that the Claimant was not at a standstill as
yet as he remembered the vehicle moving. He said that he (the Claimant) was coming
straight across the road. Jameel Khan also stated that the truck did not hit the Claimant’s
car.
Page 14 of 22
50. Mr. Jameel Khan was asked why he did not bring his wife as a witness to which he
responded that she had to go to work. He was then asked by the Court why she did not
give a witness statement before to which he responded that he didn’t know why. He was
also asked by this Court whether there was any reason why when he was asked if he had
previously been involved in an accident he stated that he had not and afterwards agreed
that he was involved in an accident, to which he responded that there was no reason. He
also stated that he was not trying to fool the Court.
Discussion
51. At the commencement of his cross-examination, Jameel Khan was repeatedly asked
whether he had been involved in any accident before and he repeatedly stated that he had
not. However, he was then confronted with his own signed statement to the insurance
company wherein he admitted that he had not only been involved in an accident in
December 2012 but was liable for same. When asked about this blatant discrepancy
between his oral evidence and signed statement, Mr. Jameel Khan said that he had no
reason for same. He claimed not to have been attempting to fool the Court but given the
inexplicable inconsistency that arose, this Court can arrive at no other conclusion than he
lied in an attempt to conceal facts which he felt may prejudice his case. His blatant lie in
the face of his own exhibit which contradicts same at the outset poses a credibility issue,
though this is not to say that this Court automatically draws the conclusion that
everything which he thereafter states, without more, must be untrue.
52. Jameel Khan claimed to have been observing the Claimant reversing from about 200 feet
away and claimed to have slowed down. He was asked why then didn’t he stop to which
he responded that he didn’t expect the Claimant to suddenly reverse out of his driveway
into the middle of the road. Accordingly, he is suggesting that the Claimant suddenly
reversed into his path causing him to swerve. He also maintained that the Claimant was
not at a standstill when the accident occurred. This contention thus, is the crux of the
matter, as he claims that the Claimant was moving- reversing, in the middle of the road-
while the Claimant alleges that he was at a standstill on the right side of the road. He
confirmed that his version of the event was that the Claimant was straight across the
middle of the road, on both lanes.
53. With respect to the depression, Mr. Jameel Khan claims that he didn’t mention it in his
report as it had nothing to do “with the accident why he swerved to the right”. The
depression may not have had to do with swerving to the right but I am of the view that
according to his version of events, it certainly had to do with the accident. This is because
it is he who claimed that the depression prevented him from swerving into the “other
Page 15 of 22
lane”. He went on to say he had no choice but to swerve back to his side of the road.
Accordingly, if his version of events is to be believed, the depression would have been a
contributory factor in the accident as it contributed to where he ended up having to place
his car. Eventually, he himself agreed that the depression was material. Curiously, no
mention was made of same in the report and no photos were taken of same which strikes
me as odd. It is more probable than not that someone involved in an accident would wish
to adduce evidence to his insurance company of any external factor which contributed to
the collision.
54. With respect to his application of brakes, Jameel Khan testified that he only did so when
he felt that he had no other choice. He said that he only applied his brakes when he
swerved back to his side of the road. This accordingly would have been at the point at
which the Claimant, as he said, “suddenly and without warning” reversed out of his
driveway and into the middle of the road. He confirmed that at 200 feet when he was
driving at 40 km per hour, he did not apply brakes then. It thus appears that the
application of brakes by Jameel Khan, according to him, occurred right before the
moment of collision. His oral testimony in that regard is consistent with his witness
statement when he states that “I had no choice but to swerve back to my side of the road
and apply my brakes which caused our vehicles to collide”.
55. Jameel Khan stated that there were three other passengers in the car, yet I note that only
one- a backseat passenger- gave evidence. It is more than curious that the front seat
passenger seated next to him, his wife Ria, provided no witness statement in the matter.
Mr. Jameel Khan himself was unable to offer any explanation as to why she did not do
so.
Mr. Jamaal Khan’s evidence
56. Jamaal Khan appeared as a witness for the Defendants. The facts as alleged in his witness
statements are as follows:
He is a gardener and driver and on the morning of the 23rd
May, 2013, he left from
Jameel’s home and was going to the garden. He was transported by Jameel Khan in a
four door grey Mitsubishi van. He was sitting in the back of the vehicle with Wazi Khan.
Rita Khan was in the front seat. The vehicle was about 150 feet away from Moonan
Trace when he noticed a Nissan Sunny with a metallic green paint reversing from
Chandreka Persad’s yard. It was about 40 to 50 feet away from the road. He said that he
felt the Mitsubishi van slow down but Chandreka Persad’s car did not have on any
indicator. Jameel Khan did not stop. At the same time, a truck was heading towards Rio
Claro. The truck was about 120 feet away from Chandreka’s gap.
Page 16 of 22
57. He claimed that the Claimant swung out from the gap in a fast way and the next thing he
saw was that the vehicles collided. The Claimant was in the centre of the road- half of the
car was on the left hand side and half was on the right hand side. He said that they came
out of the vehicle and he took out his Alcatel touch screen phone and took two pictures.
The left front side of each vehicle was damaged. The Claimant’s car was pushed towards
the side that they were driving on. He said that he then walked towards the garden with
Wazi Khan. Jameel Khan informed him that he was going to the Police Station. Jamaal
Khan says that about two days later, he went to “Click” in Rio Claro, a computer place, to
get the pictures printed off his phone. One picture got wiped out by Click by accident but
he was able to get one of the pictures printed by an employee of Click. He said that no
police ever questioned him on the matter. He also said that it was not true that the
Claimant’s car was parked at the time of the accident.
Cross-examination
58. Under cross-examination, Jamaal Khan indicated that Jameel Khan is his employer. He
admitted that his witness statement makes no mention of two cars reversing out of
Chandreka Persad’s yard and further confirmed that had he seen two vehicles reversing
out of the said yard, he would have stated so in his witness statement.
59. He also confirmed that his witness statement makes no mention of the vehicle in which
he was travelling having swerved to the right or swerving to the left. He confirmed that
his witness statement stated that Jameel Khan was driving along the road and he goes
straight into the Claimant’s vehicle. Jamaal Khan was also asked whether at the time that
the Claimant’s vehicle was struck it was moving forward, backward or at a standstill to
which he replied that it was at a standstill.
60. He also confirmed that the Naparima Mayaro Road, in the vicinity where the accident
took place, is straight. Attorney for the Claimant relayed a portion of Mr. Jamaal Khan’s
witness statement to him where he stated that “I notice a Nissan Sunny with a metallic
green paint reversing from Chandreka Persad yard, it was about 40 to 50 feet away from
the road. I felt the Mitsubishi van slow down”. He was then asked whether at the time he
felt the vehicle slow down whether piece of Chandreka’s car was already on the road. He
went on to say that about half of the vehicle was already on the road when he felt the car
in which he was travelling slow down. He was asked about how the brakes felt when it
was slowing down and responded that it was “a gentle brakes”. He confirmed it was
“just a tips of the brakes”. He was again asked whether it was a very gentle slowing
down of the vehicle to which he responded “yes.” Attorney for the Claimant asked him
whether at that point Chandreka Persad’s vehicle was halfway in his yard and half way in
the road to which he replied ‘yes”.
Page 17 of 22
61. He said that he did not produce any pictures of any skid mark or brakes impression
because there were none to take a picture of. He was also asked about the angle of the
Claimant’s car at the time it was hit and he said that it was angled across the white line,
with the front pointing to the Claimant’s gap. He admitted that his witness statement
made no mention of a depression in the road and that he also took no photographs of any
depression in the road. He claimed that he saw Chandreka’s car come out of his yard and
saw it leave its yard and actually reach to where it got hit.
62. When asked whether he also saw Chandreka’s car even before it came out onto the
roadway, whether he saw it when it was in the driveway itself properly, he responded “no
well you didn’t see the vehicle properly in the driveway you know but is when he come
out onto the road”. He was asked whether that was when he saw it to which he responded
“yes”.
63. Attorney for the Claimant cross-questioned Jamaal Khan further, asking him whether at
the time when the Claimant’s vehicle came straight out into the roadway, the vehicle he
was in would have been right up to it, to which he responded “yes”. He confirmed that
the distance would have been about 10 to 12 feet and said that it was at that point when
he felt Jameel Khan “tip” his brakes.
64. Counsel for the Claimant enquired of him whether Jameel Khan ever left his lane to
which he responded no. He pressed further and asked him whether at no time before the
accident Jameel khan left his lane to which he again asserted “no”. Counsel then asked
“he was driving straight in his lane and he crashed straight, when he hit he was in his
lane?” to which he responded “yes”.
65. Attorney for the Claimant then put his case to Jamaal Khan. He suggested to him that the
Claimant’s vehicle was on the right lane waiting to enter the flow of traffic on the other
lane at the time of the collision, to which he responded “yea”. Attorney for the Claimant
pressed him further, asking him “what do you say? What do you say to that? You agree
with that? Wouldn’t you agree with that sir?” to which he responded “yea, yea, yea”.
66. Attorney for the Claimant went on to ask him whether the vehicle driven by Jameel was
on the left lane to which he responded “yes”. He then asked him whether Chandreka’s
car was ahead of him at a standstill to which he responded “yes.” When asked whether
Jameel tried to pass and realized he couldn’t pass, Jamaal Khan said “no”. He was then
asked what Jameel Khan did and he replied that he slowed down, there was only a slight
“tips” on the brakes. He was again asked whether there was a vehicle at a standstill in
front of him, to which Jamaal Khan responded “yes” and he also confirmed that that
vehicle was in the lane in front of him. He was further asked whether Jameel Khan came
Page 18 of 22
to a stop before the vehicles collided to which he responded that he did not and that all he
felt was a slight tips on the brake. He further reiterated that he never felt the vehicle
swing to the left or right and confirmed that as far as he was concerned, Jameel Khan
never swung to the left or the right before the accident.
Discussion
67. Jamaal Khan’s oral testimony was littered with statements which directly contradict
Jameel Khan’s version of events. Central to the Defendants’ case is their allegation that
the Claimant had suddenly and without warning reversed into the middle of the road,
causing the driver, Jameel Khan, to swerve and eventually collide with the Claimant.
Jameel Khan was adamant that the Claimant was not at a standstill at the time. Jamaal
Khan’s oral testimony contradicted this, with him repeatedly saying or confirming that
the Claimant was in fact at a standstill, accordingly corroborating the Claimant’s claim in
that regard.
68. Jameel Khan claimed that he tried to swerve into the lane with the upcoming truck to
avoid the Claimant’s vehicle which suddenly and without warning reversed from the yard
onto the major road across the roadway. His own witness, Jamaal Khan, repeatedly
indicated that he never felt the van swerve and confirmed that at no point did Jameel
Khan swerve to the left or right. He testified that at no time before the accident did
Jameel Khan leave his lane. This is important. Firstly, if a car suddenly and without
warning emerged in front of the pickup van, it is more probable than not that an attempt
to manoeuvre away from same, an instinctive reaction, would have likely been sudden
and sharp. Surely this would have been felt by passengers in the car. Yet Jamaal Khan
says that he never felt any swerving at all. I note that the Claimant’s witness statement
states that the pick up moved to the centre of the road as it tried to pass to the side of his
vehicle. He went on to say that he did not attempt to slow down but did swerve out of the
way of the truck as there was not enough space to pass between his vehicle and the truck
and he hit his car instead of the truck.
69. Then there is the issue of when TBR 2420 allegedly began to slow down. The Claimant
maintains that that vehicle was approaching at a fast speed. Both Jameel and Jamaal
allege that the vehicle in which they were travelling slowed down. However, there is
inconsistency as to when such alleged slow down occurred, with Jameel saying under
cross examination that he was 200 feet away and slowed down a little to about 40 km per
hour. Jamaal Khan however said that he felt the car slow down – with Jameel slightly
tipping his brakes only at about ten to 12 feet from the Claimant’s car. In his witness
statement he claims that he noticed the Nissan Sunny reversing from Chadreka Persad’s
yard and it was about 40-50 feet from the road. He claimed to have felt the Mitsubishi
Page 19 of 22
van slow down. This is a vast difference. Given this inconsistency, I prefer the evidence
of the Claimant over the Khans insofar as he claims that TBR 2420 did not slow down.
70. Further, the impression given is that suddenly and without warning the Claimant reversed
across the major road onto the roadway. Jameel Khan said he was forced to swerve to the
lane with the truck and then swerved back to his side and applied his brakes which caused
the vehicles to collide. If brakes were in fact applied in such circumstances, it is more
likely than not that the brakes would be applied with force as opposed to a gentle
application of same. The Claimant maintained that he observed no skid marks and Jamaal
Khan confirmed that he took no pictures of any skid marks as none existed. In the
circumstances, I do not believe that the Claimant applied any brakes as he claimed.
71. Jamaal Khan also claimed that he observed the whole scenario from the Claimant’s
reversing out of the driveway up until the car was hit. He indicated that he did not see
another car reversing out of the driveway, as Jameel Khan claims to have seen. Both men
are travelling in the same vehicle, presumably viewing the same scenario in front of
them, so it is more than passing strange that Jamaal only saw one car reversing out of the
Claimant’s driveway while Jameel saw two. I note that the Claimant was adamant that
there was no other car reversing out of the driveway and in the circumstances, I accept
that he is telling the truth in that regard.
72. Jamaal Khan also stated that he did not take any pictures of the depression in the road
because he saw none. The Claimant and his wife have both claimed that there was no
depression in the road. Bear in mind that oddly enough, Jameel Khan omitted such a
material part of his story from his report to the insurance company. Taking all of this into
account, I find it more probable than not that there was no depression in the roadway as
Jameel Khan alleged. Rather, I suspect that he concocted same so as to bolster his
account as to why he would have been in the right lane with the oncoming truck- he was
claiming that both the Claimant’s car and the depression were hindrances. Rather, I
suspect that, just as the Claimant alleges, he was coming down on the Claimant’s side,
moved to the middle in an attempt to squeeze past the Claimant and the truck and
misjudged, pulling back sharply and hitting the Claimant.
73. I also note that Jamaal Khan agreed with the essential elements with that of the
Claimant’s case. When Attorney for the Claimant suggested that the Claimant was in the
right lane waiting to enter the other lane at the time of the collision, Jamaal said “yea”
when asked if he agreed.
Page 20 of 22
CONCLUSION
74. Having regard to all of the foregoing, on a balance of probabilities, I prefer the evidence
of the Claimant over that of the Defendants insofar as he claims that he had already
reversed out of his driveway and was at a standstill- stationary- in the right lane at the
time at which TBR 2420 negligently collided with him. I also accept the Claimant’s
evidence that the driver of TBR 2420 was proceeding at a fast speed and tried to squeeze
past him and the truck to no avail, whereby he ended up colliding with the Claimant’s
car. I have had regard to the Defendant’s brazen lie at the outset of his cross-examination
whereby he sought to claim that he had never been involved in an accident though his
own exhibit proved otherwise. Of course, a lie told on one aspect of the evidence by no
means renders the rest of the evidence unbelieveable. However, in this case, the evidence
of one of the Defendants’ witnesses contradicts their main witness’ evidence so glaringly
that it is impossible to ignore or arrive at any conclusion other than the fact that the
driver’s account of events, one on which the Defence is premised, is untrue. Though
Counsel for the Defendants sought to stress that the Claimant failed to take precautionary
steps such as looking in his mirrors, I find that at the time of the accident, he was already
out on the roadway at a standstill as he claimed and so his reversing was not a cause of
the collision. Her submissions in that regard are relevant insofar as I am of the view that
contrary to his claim, the Claimant did not have his indicator on and may well have been
idling on the right side of the road, whether he meant to merge or not, without any signal
on, thereby failing to take precautionary steps on the roadway. I am further of the view
that he also did not sound his horn, even though he saw TBR 2420 approaching him at a
fast speed. To that extent I find that there was 15% contributory negligence on his part.
75. Attorney for the Defendants suggested that the Police Report was essentially one-sided in
favour of the Claimant, no information having been extracted from the Defendants. I
accept this point of view since from the evidence, it appears that the Claimant was the
only person who gave a statement to the police and there is nothing to suggest that they
ever visited the scene of the accident or took statements from the Defendants’ witnesses.
I have attached no weight to this report and same has not impacted upon the conclusions
arrived at by this Court.
76. There was also issue raised by Attorney for the Defendants concerning the Claimant and
his witness, Mrs. Persad, seeking to change their witness statement to claim that damage
was done to the left side of the car as opposed to the right. It certainly was not ideal for
the Claimant, having had ample time before trial to seek to adjust same on the morning
thereof. However, this Court must consider all of the evidence and the photograph
exhibited by Jamaal Khan does in fact appear to show that the front left side of the hood
of the car closest to the camera, presumably the Claimant’s car, was slightly bent.
Page 21 of 22
Provided that the cars had not moved at the time the photograph was taken, the position
of the two cars would indicate that the cars in fact collided on the left side. Jamaal Khan
does not claim to have photographed the cars after they were moved from the position of
the collision and he states that the left front side of each vehicle was damaged, which
would be consistent with the change the Claimant and his witness were seeking to assert.
Accordingly, I accept Jamaal Khan’s evidence in that regard. Further, the estimate from
the Claimant’s straightner, Totaram Sookoo and Sons also detailed damage to the left
apron, fender, left shock and the left articles of the car. The Omega insurance report dated
the 9th
October 2013 stated that “the unit was seen to have received a severe left front
impact, sending the left front wheel backward and causing the front windscreen to be
cracked in the process”. Insofar as the Estimate and Report referred to damage to the left
side of the vehicle, this was not challenged by the Defendants. I am of the view that the
totality of the evidence supports the view that damage was done to the left front side of
the car.
77. Accordingly, in light of all of the evidence, the foregoing analyses and findings, this
Court orders as follows:
ORDER:
(1) It is hereby declared that the First Defendant, her servant and/or agent and/or
authorised driver was eighty-five percent (85%) liable for negligently causing
the collision which occurred between the First Defendant’s vehicle TBR 2420
and the Claimant’s vehicle PBG 7716 on the 23rd
May, 2013 and that the
Claimant was fifteen percent (15%) contributory negligent for the said collision.
(2) Consequently, Judgment be and is hereby entered for the Claimant against the
First Defendant for 85% of the damages for personal injuries and consequential
loss he suffered as a result of the said collision.
(3) It is also herein declared that the Second Defendant as the authorised insurer of
the First Defendant’s vehicle registration number TBR 2420 be and is hereby
liable to indemnify and satisfy the Judgment herein declared and ordered
against the First Defendant pursuant to Section 10A (3) of the Motor Vehicles
Insurance (Third Party Risks) Act Chap. 48:51 in addition to all costs and
interests payable in respect of such Judgment.
Page 22 of 22
(4) Damages to be assessed by a Master in Chambers on a date to be notified by the
Court Office.
(5) Pre-judgment interests to be paid at the rate to be determined by the Master and
that post judgment interests be paid from the date of this judgment at the rate of
12% per annum until the date of payment.
(6) The Defendants do pay to the Claimant 85% of his costs on the prescribed scale
to be quantified at the conclusion of the Assessment of Damages.
Dated this 27th
day of July, 2015
__________________
Robin N. Mohammed
Judge
