Page 1 of 41 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. 2014-00112 BETWEEN CLINTON LETT Claimant AND SM JALEEL & CO. LTD Defendant/Ancillary Claimant AND TRINIDAD AND TOBAGO ELECTRICITY COMMISSION Ancillary Defendant Before the Honourable Mr. Justice Robin N. Mohammed Date of Delivery: Friday 10 July 2020 Appearances: Mr. Anthony Bullock for Claimant Mr. Ken Sagar instructed by Ms. Natasha K. Baiju-Patrick for the Defendant/Ancillary Claimant Mr. Beresford Charles instructed by Mr. Darill J. Giles for the Ancillary Defendant JUDGMENT I. Introduction [1] This action was commenced by Claim Form and Statement of Case filed on 13 January 2014 against SM Jaleel & Co Ltd, the Defendant, (hereinafter “SM Jaleel”). In short, Clinton Lett, the Claimant, (hereinafter “Mr. Lett”) claimed the sum of $92,000.00 and damages for trespass to property which occurred because of an
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Page 1 of 41
THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
Claim No. 2014-00112
BETWEEN
CLINTON LETT
Claimant
AND
SM JALEEL & CO. LTD
Defendant/Ancillary Claimant
AND
TRINIDAD AND TOBAGO ELECTRICITY COMMISSION
Ancillary Defendant
Before the Honourable Mr. Justice Robin N. Mohammed
Date of Delivery: Friday 10 July 2020
Appearances:
Mr. Anthony Bullock for Claimant
Mr. Ken Sagar instructed by Ms. Natasha K. Baiju-Patrick for the Defendant/Ancillary
Claimant
Mr. Beresford Charles instructed by Mr. Darill J. Giles for the Ancillary Defendant
JUDGMENT
I. Introduction
[1] This action was commenced by Claim Form and Statement of Case filed on 13
January 2014 against SM Jaleel & Co Ltd, the Defendant, (hereinafter “SM Jaleel”).
In short, Clinton Lett, the Claimant, (hereinafter “Mr. Lett”) claimed the sum of
$92,000.00 and damages for trespass to property which occurred because of an
Page 2 of 41
incident on 14 January 2010. On 2 May 2014, SM Jaleel entered its appearance and
therein gave notice of intention to defend the Claim.
[2] SM Jaleel subsequently filed its Defence on 3 June 2014. The Defendant also filed
an Ancillary Claim against Trinidad and Tobago Electricity Commission, the
Ancillary Defendant, (hereinafter “T&TEC) on 2 June 2014. In short, SM Jaleel
claimed against T&TEC, inter alia, indemnity and/or contribution in respect of any
judgment, including costs and interest, that may be obtained against SM Jaleel in
respect of Mr. Lett’s Claim as well as consequential loss and damage arising out of
the incident on 14 January 2010.
[3] Thereafter, Mr. Lett filed an Amended Statement of Case on 8 July 2014 now seeking
a sum of $115,400.00. T&TEC entered its appearance on 8 July 2014 and filed its
Defence to the Ancillary Claim on 25 July 2014.
[4] The first case management conference (CMC) fixed for the 14 October 2014 was
preserved and all directions put on hold on the basis that all parties jointly requested
the opportunity to address their minds to the issue of limitation raised in the Ancillary
Defendant’s Defence, as well as to consider any possibility of an amicable resolution
of the Claim and Ancillary Claim.
[5] The first CMC was adjourned on several occasions to allow parties to advance their
settlement negotiations, which came to an unfruitful end on the 1 April 2015 when
the parties informed the Court that all avenues of reaching an amicable resolution
had been exhausted without success. As well, the limitation point was no longer
pursued. Accordingly, the timetable for the future progress of the Claim and
Ancillary Claim was fixed, the trial being set for the 17 November 2015.
[6] The Claimant filed his own witness statement in support of his case on 15 June
2015. SM Jaleel filed a witness statement of Collin Andall, former employee of SM
Jaleel, on 11 June 2015 and T&TEC filed a witness statement of Jamel Reid, a
Substation Engineer of T&TEC, on 11 June 2015.
[7] On the date fixed for the trial, only the Claimant’s case was completed. The trial
was therefore adjourned part heard to the 20 January 2016 for the
Defendant/Ancillary Claimant to begin its case. However, the trial had to be
adjourned on two further occasions, one on account of the personal predicament of
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the Claimant’s attorney, and the other on the basis that the Defendant’s witness was
involved in a motor vehicular accident on his way to the trial. The trial was
eventually completed on the 23 June 2016 whereupon the Court gave directions for
the filing of closing submissions on specific dates.
[8] The Defendant/Ancillary Claimant and the Ancillary Defendant complied with the
Court’s directions but there was no compliance on behalf of the Claimant. On
enquiries carried out by court staff, it appears that the Claimant’s attorney, Mr.
Bullock, had some issues in locating his file. These issues of misplacing his court
file on the matter were borne out in the affidavit of the Claimant, Mr. Lett, in
support of an application for an extension of time to file his closing submissions
notwithstanding the lapse of time. The extension was granted and the Claimant’s
closing submissions were finally filed on the 25 July 2019.
II. Factual Background
[9] Mr. Lett is the joint owner of a rental residential property situate at Old St. Joseph
Road, Laventille which he leased to nine tenants (hereinafter “the property”). It is
Mr. Lett’s case, that on 14 January 2010, at around 8a.m., a motor vehicle
registration number TCJ 7806 (hereinafter “the truck”), driven by the agent and/or
employee and/or servant of SM Jaleel, along Old St. Joseph Road, Laventille,
negligently collided with the electrical wire running from an electricity pole to the
property, causing damage to the property and loss to Mr. Lett.
[10] Mr. Lett contended that the said collision was caused by the negligence of the servant
and/or agent and/or employee of the Defendant, SM Jaleel; therefore, SM Jaleel is
vicariously liable for loss. Mr. Lett set out the Particulars of Negligence as follows:
a) Driving too fast and/or at a rate of speed that made the vehicle difficult and
impossible to properly control and/or manoeuvre.
b) Failing to apply the vehicle’s brake and/or to apply them in time.
c) Failing to steer and/or control the vehicle so as to avoid the collision.
d) Res ipsa loquitur.
Page 4 of 41
e) Failing to manoeuvre the vehicle at all or quickly enough away from the
electrical wiring.
[11] SM Jaleel’s truck collided with and damaged the electrical wiring, causing damage
to a panel box and an electrical meter box that were connected to the property. As a
result of the damage to these electrical installations, the electrical supply to the
property had to be and was disconnected. The electrical supply could not be, and in
fact was not, reconnected until the property was re-wired.
[12] As a consequence of the property being without electricity, Mr. Lett’s tenants
terminated their tenancies thereby causing loss of rental income in the sum of
$11,700.00 per month to Mr. Lett for a period of eight months. The Particulars of
Loss were set out as follows:
a) Cost of repairing and rewiring the property $21,800.00
b) Loss of rental income for a period of eight months $93,600.00
The total sum claimed by Mr. Lett was $115,400.00.
[13] In response to the Claim, SM Jaleel averred that on 14 January 2010, it allowed
and/or permitted and/or consented to its employee, Collin Andall (hereinafter “Mr.
Andall”), to use and/or drive its truck, which is 11 feet 2 inches high. According to
SM Jaleel, the truck was proceeding in an easterly direction along Old St. Joseph
Road, near Pashley Street, Laventille, when upon passing a parked vehicle on the
left, the truck veered to the right and came into contact with the electrical wire
running from the electricity pole to Mr. Lett’s property. As a result, the electrical
wire began to spark.
[14] SM Jaleel’s case against T&TEC is that the contact with the electrical wire on 14
January 2010 was not caused as a result of any negligence on the part of Mr. Andall,
but because of the negligence of T&TEC, namely, the faulty installation of the
electrical wire from the electricity pole to the property. Consequently, SM Jaleel
further contended that if Mr. Lett suffered loss and damage, it was not caused or
contributed to by the negligence of SM Jaleel’s servant and/or agent, but it was
Page 5 of 41
caused on the part of or contributed to by T&TEC. Therefore, SM Jaleel is not liable
to Mr. Lett.
[15] The Particulars of Negligence on the part of T&TEC were set out as follows:
a) The Ancillary Defendant caused and/or permitted the said electrical wire to be
installed lower than the regulated height of 20 feet from the electrical1 pole
base to point of connection and 17 feet from ground to point of connection to
house pursuant to Chapter 54:72 Section 8 (sic)2.
b) Failing to maintain the regulated height of the said electrical wire so as to
ensure the safe use of the road by the public and/or the Ancillary Claimant.
c) In the alternative, the electrical pole and the height of the installation
constituted a nuisance to road users and was allowed by the Ancillary
Defendant to be such a nuisance. The Ancillary Claimant will contend that
by erecting/installing the said electrical wire on a pole lower than the
regulated height created a source of danger upon the highway, which the
Ancillary Claimant as a member of the public using the highway without
negligence came into contact with the said installation.
[16] T&TEC, in response, contended that the incident, on 14 January 2010, was caused
wholly by the negligence of Mr. Andall, the driver of the truck and being the agent
and/or employee and/or servant of SM Jaleel.
[17] T&TEC averred that the minimum requirement for the installation of electrical wire
from the ground or road level not exceeding 11,000 volts to the conductors is
6.1metres or 19.703feet. Additionally, the minimum requirement for the connections
of electrical wire from the base level to the conductor on residential premises is at
1 “Electrical” pole should more appropriately be referred to as “electricity” pole
2 The proper citation of this provision ought to be Section 8 of the Electricity (Inspection) Act, Chap 54:72
Page 6 of 41
least 3.7metres or 11.59 metres (sic)3 but it varies depending on the height of the
premises.
[18] T&TEC contended that there were no reports or complaints received by the
Troubleshooting Department for that area for that particular period. It is the normal
practice that whenever a report is received, T&TEC would cause an emergency
response team to be dispatched immediately to rectify the situation. However, no
report was received at any time leading up to the incident.
[19] T&TEC further contended that SM Jaleel misinterpreted section 8 of the Act, as it is
not applicable to the Ancillary Claim as pleaded. Furthermore, if there was damage
to Mr. Lett’s property, it was caused wholly by SM Jaleel.
III. Issues
[20] Having reviewed the Un-Agreed Statement of Issues filed by SM Jaleel and
T&TEC, the pleadings, evidence and submissions, I am of the view that the
following are the live issues for determination in this matter:
1. Was the Defendant negligent when it collided with the electrical wire
running from the electricity pole to the Claimant’s house thereby causing
damage to the Claimant’s property and loss to the Claimant?
2. Did the Defendant commit a trespass to the Claimant’s property when it
collided with the electrical wire running from the electrical pole to the
Claimant’s property?
3. Did the Ancillary Defendant’s Defence comply with Part 10.5 of the Civil
Proceedings Rules 1998?
4. Did the Ancillary Defendant fail to install the electrical wire, running from
the electricity pole to the Claimant’s house, in accordance with the statutory
3 This is clearly an error. The reference should be “feet” and not “metres”
Page 7 of 41
requirements? If not, did this failure amount to negligence on the part of the
Ancillary Defendant?
5. Even if installed in accordance with statutory requirements, did the
Ancillary Defendant fail to maintain the regulated height of the electrical
wire so as to ensure the safe use of the road by the public, which includes
the Defendant?
6. Did the electricity pole and the height of the installation of the electrical
wire by the Ancillary Defendant create a nuisance to road users?
7. Is the Ancillary Defendant liable to satisfy any judgment obtained by the
Claimant against the Defendant/Ancillary Claimant?
8. Depending on the answers to the above issues, what is the quantum of
damages recoverable by the Claimant, and from whom?
IV. Law and Analysis
Issue 1: Was the Defendant negligent when it collided with the electrical wire running
from the electricity pole to the Claimant’s house thereby causing damage to the
Claimant’s property and loss to the Claimant?
[21] According to Charlesworth & Percy on Negligence, a finding of negligence requires
proof of (i) a duty of care to the Claimant; (ii) breach of that duty; and (iii) damage
to the Claimant attributable to the breach of the duty by the Defendant4. There must
be a causal connection between the Defendant’s conduct and the damage. Further,
the kind of damage to the Claimant is not so unforeseeable as to be too remote5.
[22] Consequently, to prove a claim in negligence it must first be established that a duty
of care existed between the parties, that is, SM Jaleel and its driver owed a duty of
care to Mr. Lett. The driver of a vehicle on the road owes a duty of care to other road
4 Charlesworth & Percy on Negligence 7th Edition, Chap 1, paragraphs 1-19
5 Clerk & Lindsell on Torts 19th Edition, Chap 8, para 8-04
Page 8 of 41
users, pedestrians and occupiers of premises abutting the highway to drive carefully.
Common Law Series: The Law of Tort. Chapter 13, paragraph 13.53 states as
follows:
“The duty is to take reasonable care to avoid causing damage to
persons, vehicles or property of any kind on or adjoining the road. The
standard of care which road users must exercise is that of the reasonable
road-user. The reasonable driver is not entitled to assume that other
road-users will exercise the appropriate degree of care and if their
conduct is within the realm of foreseeability, they will be liable for
injury.”
[23] In order to fulfil this duty, the Defendant should keep a proper lookout and to
proceed at a rate of speed which was appropriate in the circumstances6. However, it
is a question of fact in each case as to whether the Defendant has observed the
standard of care required of him in the particular circumstances. SM Jaleel’s driver
would be expected to exercise the degree of care and skill that would be expected of
a reasonably competent driver. This duty, in the Court’s opinion, would include
keeping a proper lookout to any obstructions in his path while driving which may
affect any property adjoining the road. In that regard, SM Jaleel’s driver, Mr. Andall,
owed Mr. Lett a duty of care just as he owed a duty of care to other road users.
[24] Having determined that SM Jaleel owed a duty of care to Mr. Lett, there must also
be a breach of that duty followed by damage or injury caused to Mr. Lett as a direct
result of the breach, thereby creating the necessary causal link. However, difficulty
arises with regard to whether there was a breach of that duty owed to Mr. Lett by
SM Jaleel on 14 January 2010.
[25] It is trite law that the burden of proving negligence always rests on the Claimant.
However, where the facts are unknown, the Claimant may be assisted by the maxim
res ipsa loquitur. In this instant case, Mr. Lett has relied on the maxim res ipsa
loquitur in order to prove his case against SM Jaleel.
6 Mendes J in Ramharack v Caroni 1975 Ltd No S723 of 1996 (unreported); Carilaw TT 1998 HC 69
Page 9 of 41
[26] The best known definition of the maxim res ipsa loquitur is propounded by Erle CJ
in Scott v London and St Katherine Docks Co7 as follows:
“There must be reasonable evidence of negligence, but where the thing
is shown to be under the management of the defendant or his servants,
and the accident is such as in the ordinary course of things does not
happen if those who have the management use proper care, it affords
reasonable evidence, in the absence of explanation by the defendant, that
the accident arose from want of care.”
[27] From the well-known authorities of Ng Chun Pui et al v Lee Chuen Tat8,
Henderson v Henry E. Jenkins & Sons9 and Lloyde v West Midlands Gas
Board10, it can be gleaned that the general proposition that the fact a particular
accident occurred may, in the circumstances, establish a prima facie case of
negligence to be answered by the Defendant. However, the burden of proving
negligence still lies on the Claimant throughout.
[28] Lord Griffiths, in the seminal case of Ng Chun Pui (supra), observed that in an
appropriate case, the Claimant establishes a prima facie case by relying on the fact
of an accident (which by its unusual nature raises an inference of negligence), and if
there is no evidence led by the Defendant to rebut the inference of negligence, the
Claimant would have proved his case. If the Defendant, however, does adduce
evidence, that evidence must be evaluated to see if it is still reasonable to draw the
inference of negligence from the mere fact of the accident. However, resort to the
burden of proof is a “poor way to decide a case”. The Court must examine all the
evidence at the end of the case and decide whether on the facts proven an inference
can be drawn that negligence has been established.
7 (1865) 159 ER 665
8 [1988] TRT 298 PC
9 [1970] RTR 70
10 [1971] 1 WLR 749, 755
Page 10 of 41
[29] In Darlington Francois v Well Service Petroleum Company Limited11, Seepersad
J quoted the learned authors of Charlesworth and Percy on Negligence 13th
edition wherein the learned authors summarised the tenets of the maxim res ipsa
loquitur as follows:
“A prima facie case. It has been said that “a prima facie case” should
be the preferred terminology. It means essentially a case which calls for
some answer from the Defendant and will arise upon proof of: (1) the
happening of some unexplained occurrence; (2) which would not have
happened in the ordinary course of things without negligence on the part
of somebody other than the Claimant; and (3) the circumstances point to
the negligence in question being that of the Defendant, rather than that
of any other person.
Rebuttal of negligence. When a prima facie case of negligence against
the Defendant has been established, it is insufficient for the Defendant
merely to say that he had acted carefully, but he can rebut the case by
proving that he was not negligent, even though he cannot prove how the
accident happened.
Negligence need not be disproved. When res ipsa loquitur applies, it is
not strictly necessary for the Defendant to disprove negligence. It is
sufficient for him to neutralise the effect of the presumption, raised by
the res. The Court has to judge, after all the evidence has been put
before it, whether on balance the facts establish that the Claimant has
proved his case, the burden of which remains in the end, as it was at the
beginning, on him to discharge. Where the Claimant establishes a prima
facie case by relying on the fact of an accident and the Defendant
produces no evidence, the inference of negligence is not rebutted. But if
evidence is adduced then it has to be evaluated to see if the inference of
negligence is still one that should be drawn. If the Defendant casts such
doubt upon the Claimant’s account that the inference of negligence is
regarded as unsafe, then the claim will fail.”
11 CV2017-00103
Page 11 of 41
[30] The maxim res ipsa loquitur was also explained by our Court of Appeal in Adriana
Ralph and Lee Ralph v Weathershield Systems Caribbean Limited et al12. Res
ipsa loquitur is but a convenient expression to describe the state of evidence at the
close of a Claimant’s case that there is sufficient evidence to raise an inference of
negligence. Smith JA, at paragraph 4 of the judgment, stated the following:
“The maxim res ipsa loquitur is not a rule of law but merely a latin
maxim to describe the state of evidence from which an inference of
negligence can be drawn. Specifically, it is called into play on the
evidence “AS IT STANDS” at the close of a claimant’s case and not on
the evidence that might have been available before this.
Both parties accept the law as approved in the Privy Council case of Ng.
Chun Pui [1988] UKPC 7 which affirmed the dicta of Megaw LJ in
Lloyde v West Midlands Gas Board [1971] 2 All ER 1240 as follows:
“I doubt whether it is right to describe res ipsa loquitur as a ‘doctrine’. I
think that it is no more than an exotic, although convenient, phrase to
describe what is in essence no more than a common sense approach, not
limited by technical rules to the assessment of the effect of evidence in
certain circumstances. It means that a plaintiff prima facie establishes
negligence where : (i) it is not possible for him to prove precisely what
was the relevant act or omission which set in train the events leading to
the accident; but (ii) on the evidence as it stands at the relevant time it is
more likely than not that the effective cause of the accident was some act
or omission of the defendant or of someone for whom the defendant is
responsible which act or omission constitutes a failure to take proper
care for the plaintiff’s safety. (Emphasis added)
I have used the words ‘evidence as it stands at the relevant time’. I think
that this can most conveniently be taken as being at the close of the
plaintiff’s case. On the assumption that a submission of no case is then
made, would the evidence, as it then stands, enable the plaintiff to
succeed because, although the precise cause of the accident cannot be
established, the proper inference on balance of probability is that that
12 Civil Appeal No. 98 of 2011
Page 12 of 41
cause, whatever it may have been, involved a failure by the defendant to
take due care for the plaintiff’s safety? If so, res ipsa loquitur. If not, the
plaintiff fails. Of course, if the defendant does not make a submission of
no case, the question still falls to be tested by the same criterion, but
evidence for the defendant, given thereafter may rebut the inference. The
res, which previously spoke for itself, may be silenced, or its voice may,
on the whole of the evidence, become too weak or muted.”
[31] As indicated above, the maxim res ipsa loquitur is a useful evidential aid to a
Claimant who is unable to establish how an accident occurred. Therefore, the issue
for consideration is whether there is a sound basis for the application of the maxim
in the circumstances of this case. As gathered from the authorities above, the
applicability of res ipsa loquitur is one, which is applied only where the cause of the
incident is unknown. Where there is direct evidence as to what occurred, there is no
need to rely upon inferences. However, where there is no direct evidence, the maxim
res ipsa loquitur is applicable.
[32] Counsel for SM Jaleel submitted that in dealing with evidence in this case, it must be
noted that the incident occurred between a moving object and a stationary object.
Except for the version of the incident given by its witness, Mr. Andall, there is no
other evidence as to the circumstances of the incident. Counsel also submitted that
the onus of showing that the line was over or below the height of the truck rests with
Mr. Lett and T&TEC but neither Mr. Lett nor T&TEC led any evidence as to
whether there was any inspection of the line or warning or indication relating to the
height of the line.
[33] SM Jaleel contended that the maxim res ipsa loquitur ought not to apply in this case
since the cause of the incident is known. Further, having examined the version of
events given by Mr. Andall, there can be no negligence on his part and his evidence
is the only evidence on which the Court has to make a finding of negligence or no
negligence.
Page 13 of 41
[34] On the submission of res ipsa loquitur, Counsel for Mr. Lett relied on the authorities
of Adriana Ralph and Lee Ralph v Weathershield Systems Caribbean Limited
et al (supra) for the applicability of the maxim as well as Halsbury’s Laws of
England, Volume 78 (2018) paragraphs 64 and 65. Counsel submitted that at the
end of Mr. Lett’s case, it was clear on the evidence that he did not witness the
accident himself and there was no evidence proving precisely what was the relevant
act or omission on the part of SM Jaleel’s driver, which set in train the events
leading to the collision with the electrical wire. He further submitted that there was
adequate evidence at the close of Mr. Lett’s case on which the Court can make
sufficient inferences of fact indicative of a breach of duty of care on the part of Mr.
Andall.
[35] In the matter at bar, Mr. Lett’s evidence-in-chief was that on 14 January 2010, he
was at home in Tunapuna when he received a call from one of his tenants at the
property. He was informed that there was a truck three houses away from the
property with a tangled electrical wire, which was leading to the property. Mr. Lett
spoke to the driver of the truck, Mr. Andall, who told him that the truck had pulled
down the electrical wire leading to the property and he would notify his supervisor
to rectify the situation. Mr. Lett visited the property and saw that the electrical wire
from T&TEC’s electricity pole was damaged. He stated that part of the wire was by
the corner outside of the yard and another part was in the yard. The electrical meter
box that was on the outside of the property was torn off the wall and the panel box
was also damaged. Consequently, there was no electricity in the building at the time.
SM Jaleel did not dispute this damage suffered by Mr. Lett.
[36] During cross-examination by Mr. Sagar, Mr. Lett admitted that he did not witness
the incident on 14 January 2010 at his property13. Counsel referred him to the
“Particulars of Negligence” pleaded in his Amended Statement of Case and asked
whether he could say that those particulars of negligence did in fact occur. His
response was that he could not because he did not witness the incident14.
13 NOE dated 17 November 2015, pg. 6, lines 5-7
14 Ibid, pg. 7, lines 4-31
Page 14 of 41
[37] Nonetheless, Mr. Lett testified that whenever he visited the property, he observed
the electrical wire crossing the street and trucks would pass along the road
frequently without interfering with the electrical wire15. Mr. Lett, however, could not
say whether during his observations that the electrical wire drooped at a certain stage
since he did not pay much attention to the electrical wire until the incident16. During
cross-examination by Mr. Charles, he maintained that over a period of 3 years, he
observed the electrical wire running from the pole to his house and that trucks
passing along the road daily had never caused any damage to his house17.
[38] From Mr. Lett’s evidence, there is no direct evidence on what may have caused the
truck to collide with the electrical wire running from the electricity pole to the
property. Thus, it is apparent that Mr. Lett is unable to prove precisely what was the
relevant act or omission on the part of SM Jaleel that led to the chain of events
leading to the accident. Although driving the truck on the date of the incident was
under the management and control of SM Jaleel’s driver, the incident, which
occurred, the truck pulling down an electrical wire, is not one, which in the ordinary
course of things, happens. Consequently, this incident, in the ordinary course of
things, would not have happened without negligence on the part of someone.
[39] In that regard, the Court is of the view that this matter at bar falls fairly and squarely
within the statement of Erle CJ in Scott v London quoted above in paragraph [25].
This is a case where the Claimant is not himself in a position to give an account of
what occurred and the relevant situation was under the control of the Defendant and
the relevant facts of what the Defendant did or did not do are exclusively within the
direct knowledge of the Defendant. Notwithstanding the fact that Mr. Lett did not
lead any direct evidence in support of the particulars of negligence pleaded in his
Amended Statement of Case, he is entitled to rely on the maxim res ipsa loquitur.
15 Ibid, pg. 7, lines 38-47 to pg. 8, lines 1-15
16 Ibid, pg. 8, lines 20-26
17 Ibid, pg. 33, lines 20-36
Page 15 of 41
[40] The fact that the truck driven by Mr. Andall pulled down an electrical wire running
from an electricity pole to a house raises an inference of negligence on the part of
SM Jaleel. In other words, a truck would not pull down an electrical wire from an
electrical pole if those driving the truck exercised ordinary care. In fact, Mr. Lett
made this observation (that trucks would pass along the road without interfering with
the electrical wire) over a period of 3 years. On a balance of probabilities, the proper
inference to be drawn is that the cause of the accident was due to some act or
omission on the part of the driver, which constituted a failure on his part to take
proper care and keep a proper lookout for any overhead electrical lines. Therefore, I
am satisfied that there is reasonable inference of negligence on the part of SM Jaleel.
[41] Having decided that Mr. Lett has raised an inference of negligence, the Court will
now proceed to consider the evidence of SM Jaleel, to determine whether the
accident happened without any negligence on its part. SM Jaleel would now have to
adduce evidence to rebut this inference of negligence. SM Jaleel’s only witness is
the driver of the truck, Mr. Andall. His evidence-in-chief is that the truck, which was
involved in the incident, is the same truck that he had been driving for a year prior.
He stated that while working, he would drive east along the Old St. Joseph Road,
Laventille, every day for the past year and a half prior to the incident. Mr. Andall
stated that after passing Pashley Street, a car was parked on the left side of the
roadway. He proceeded to overtake on the right side at a speed of 35kmph.
However, upon overtaking, the top back right side of the truck encountered an
electrical wire. He could not stop at the same time because the wire was sparking on
the top of the truck and he had to drive further up the road to stop. It was his
evidence that the truck was 12 feet high and that he did not know the height of the
electrical wire at the time of the incident but he knew that it was lower than the
height of the truck.
[42] During cross-examination by Mr. Bullock, Mr. Andall admitted that he was looking
at the speedometer when he was driving. However, this was not the reason why he
did not see the electrical wire18. Nonetheless, Mr. Andall testified that he did not see
18 NOE dated 23 June 2016, pg. 8, lines 37-46 to pg. 9, lines 1-2
Page 16 of 41
the electrical wire that came into contact with the truck19. He maintained, under
cross-examination by Mr. Charles, that he drove the truck along the road where the
incident took place for a period of 18 months20 and that the electrical wire was never
a hindrance when he passed along that road21. Mr. Andall accepted that when he
passes through certain areas, he would usually consider the height of the lines before
he attempts to drive the truck under those lines22. This was the substance of Mr.
Andall’s evidence on behalf of SM Jaleel.
[43] Mr. Andall’s evidence-in-chief was that at the time of the incident, there was a
salesman present in the truck. However, SM Jaleel did not call the salesman as a
witness. The question thus arises as to whether any adverse inferences can be drawn
from the failure by SM Jaleel to call the salesman as a witness on its behalf. In
Wisniewski v Central Manchester Health Authority23, the English Court of
Appeal held that in certain circumstances a court may be entitled to draw adverse
inferences from the absence or silence of a witness who might be expected to have
material evidence to give on an issue in an action. At p.340 of the Report of the
Wisniewski case, Brooke LJ stated that-
(a) In certain circumstances, a court may be entitled to draw adverse
inferences from the absence or silence of a witness who might be
expected to have material evidence to give on an issue in an action.
(b) If a court is willing to draw such inferences, they may go to
strengthen the evidence adduced on that issue by the other party or
weaken the evidence, if any, adduced by the party who might reasonably
have been expected to call the witness.
(c) There must, however, have been some evidence, however weak,
adduced by the former on the matter in question before the court is
entitled to draw the desired inference; in other words, there must be a
case to answer on that issue.
19 Ibid, pg. 9, lines 7-10
20 Ibid, pg. 11, lines 42-45
21 Ibid, pg. 12, lines 10-12
22 Ibid, pg. 14, lines 4-8
23 (1998) 7 PIQR 323
Page 17 of 41
(d) If the reason for the witness’s absence or silence satisfies the court
then no such adverse inference may be drawn. If, on the other hand,
there is some credible explanation given, even if it is not wholly
satisfactory, the potentially detrimental effect of his/her absence or
silence may be reduced or nullified.”
[44] In the case of Samaroo v Ramsaroop & Ramsaroop24, Rahim J, after examining
the authorities, outlined the test to be considered as follows:
“Thus the Court must be satisfied first that a prima facie case had been
made out on a material issue or that there is a case to answer on that
issue. It is then for the Court to consider whether the proposed witness
may have been expected to give material evidence on that issue. If the
answer is yes, the Court must then have regard to the reason for the
witness’ absence and can then draw adverse inferences due to the
absence of evidence.”
[45] In a case where a Defendant must rebut the inference of negligence, an adverse
inference may be drawn against him from his failure to call a witness who would be
capable of supporting his case that there was no negligence on his part. In the case at
bar, SM Jaleel has not proffered any justifiable or reasonable explanation for its
failure to call the salesman who was present with Mr. Andall at the time of the
incident. In the absence of a reasonable explanation of this witness, the logical
inference to be drawn is that his evidence would not have supported SM Jaleel’s
case.
[46] In the circumstances, I find that SM Jaleel’s explanation of the circumstances of the
incident has failed to satisfy me that it occurred without any negligence on its part.
Mr. Andall’s evidence was that he only saw the wire for the first time when he saw
sparks at the back of the vehicle25. This, therefore, contradicts his evidence-in-chief
that the electrical wire was lower than the height of the truck. If the electrical wire
24 H.C.A. No S-1295 of 2005
25 Ibid, pg. 14, lines 25-30
Page 18 of 41
was lower than the height of his truck, he ought to have seen the electrical wire
while driving the vehicle if he was keeping a proper lookout for any overhead
electrical lines. SM Jaleel has therefore failed to rebut the prima facie case of
negligence made out against it.
[47] In this regard, the Court is of the opinion that SM Jaleel was negligent when its
driver collided with the electrical wire running from the electricity pole to Mr.
Lett’s house thereby causing damage to his property and loss to Mr. Lett.
Issue 2: Did the Defendant commit a trespass to the Claimant’s property when it
collided with the electrical wire running from the electrical pole to the Claimant’s
property?
[48] According to Halsbury’s Laws of England, 5th edition, Volume 97 at paragraph
563, trespass to land is described as follows:
“A person's unlawful presence on land in the possession of another is a
trespass for which a claim may be brought, even though no actual
damage is done. A person trespasses upon land if he wrongfully sets foot
on it, rides or drives over it or takes possession of it, or expels the
person in possession, or pulls down or destroys anything permanently
fixed to it, or wrongfully takes minerals from it, or places or fixes
anything on it or in it, or if he erects or suffers to continue on his own
land anything which invades the airspace of another.”
[49] Possession in the context of trespass to land means any form of possession, so long
as it is exclusive and exercised with the intention to possess26. Consequently, as
trespass is an injury to possession, the proper claimant is the person who was, or
who is deemed to have been, in possession of the land at the time of the trespass.
Actual possession is a question of fact. It consists of two elements: the intention to
possess the land and the exercise of control over it to the exclusion of other
26 Halsbury’s Laws of England, 5th edition, Volume 97 at paragraph 574