The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 5 of 1997

 

Sherief Ramsaran Appellant

v.

Essau Hoodan Respondent

 

FROM

 

THE COURT OF APPEAL OF TRINIDAD

AND TOBAGO

 

---------------

REASONS FOR DECISION OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL,

OF THE 22nd July 1997, Delivered the

7th October 1997

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Present at the hearing:-

Lord Goff of Chieveley

Lord Slynn of Hadley

Lord Clyde

Lord Hutton

Sir Brian Neill

  ·[Delivered by Lord Slynn of Hadley]

 

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1. On 6th November 1987 Mr. Ramsaran ("the appellant") was a passenger in a Mazda motor car PAF3237 driven by Kenneth Baboolal when a collision occurred with another car (a Holden PR6533) driven by Mr. Hoodan ("the respondent").  The appellant began proceedings in the High Court of Trinidad and Tobago alleging negligence against both drivers.  He claimed that he suffered lacerations to his face but more particularly to his eyes which had led to complete loss of vision in the right eye and significant reduction of vision in the left eye.

 

2. Judgment in default of defence was entered against Mr. Baboolal and the trial proceeded against the respondent on 15th and 25th March 1991.  On the latter date the trial judge ordered  that  there  be  judgment  for  the  appellant with damages to be assessed and he gave his reasons on 19th May 1992.  By judgment dated 8th February 1996 the Court of Appeal set aside that order and dismissed the appellant's claim against the respondent with costs there and before the trial judge.  Leave to appeal to the Privy Council was granted by the Court of Appeal on 30th September 1996.  At the conclusion of the hearing their Lordships dismissed the appeal with costs, their reasons to be given later.

 

3. The appellant's case was that the car in which he was a passenger ("the appellant's car") was travelling along the main road from Arima to Sangre Grande, the Valencia Stretch.  The respondent drove out of a side road, Williams Trace, into the main road and hit the appellant's car; damage was caused to the right front fender and the right front door of the respondent's car.  The appellant's car was not going too fast and had not overtaken another car, nor did it leave the main road.

 

4. The respondent's case was that he had driven along Williams Trace with the intention of turning right towards Arima but that he was obliged to stop at the intersection and to wait for something like five minutes because of the very heavy traffic in both directions on the main road.  A jeep driven by Mr. Hakim Ali pulled up to the left and to the rear of the respondent's car; the driver gave evidence that he too had to wait two to three minutes before he could turn right into the main road.  Both the respondent and Mr. Ali gave evidence that the appellant's car came very fast along the main road and turned left into Williams Trace.  The impact occurred on Williams Trace, the respondent's car not having turned into Valencia Road.  Damage was caused to the left front of the Mazda car and to the right front fender and right front door of the Holden.  The impact threw the respondent's car against the jeep causing damage to its right side.

 

5. A police officer, Ashton Farrell, gave evidence that when he arrived at the scene he saw the three vehicles on Williams Trace.  The appellant's car was facing towards the right, the left front of the Mazda was on the right front of the respondent's car.

 

6. The learned trial judge recorded that the two litigants adhered to their respective allegations and were unshaken in cross-examination.   He  found  that  the  respondent's evidence and that of the police officer differed as to whether the respondent spent the night of the accident in hospital, whether the respondent went to the scene of the accident and pointed out where it occurred and whether the officer took a statement from the respondent on the same evening.  He said that he took into consideration:-

"That I had seen and heard the Defendant and his witnesses testified. [sic] I had formed an unfavourable impression about the Defendant and a most unfavourable impression of the Constable.  The witness Ali was of little assistance to the Court with respect to the resolution of the said deadlock."

 

He concluded:-

"Combined the inconsistencies found in the evidence of the Defendant and his witnesses, the impression that I had formed of the Defendant and his witnesses, together with the weighing of the whole of the evidence of both parties, on a balance of probabilities, I accepted the Plaintiff's view of the evidence, and entered judgment for the Plaintiff."

 

7. In the Court of Appeal M. de la Bastide C.J., with whom the other Justices of Appeal agreed, said:-

"... it is very well established that a Court of Appeal will only with great reluctance and in special circumstances interfere with the findings of a trial judge on issues of fact."

 

but that where the trial judge:-

"had failed to weigh in the balance matters of substantive evidence which bear on the question of whether a particular witness was or was not telling the truth, then the Court of Appeal will substitute its own decision for that of the trial judge, even on an issue of fact."

 

8. The learned Chief Justice cited the opinion of their Lordships' Board in Attorney General and Victor Cockburn v. Samlal (1987) 36 W.I.R. 382 where Lord Ackner referred to the importance of carrying out a balancing operation between the credibility of a witness and other matters.

 

 

9. In this case the Court of Appeal formed the clear view that, since it was not suggested by the appellant at the trial that the jeep had crossed into the main road in the same way as the respondent's car, the damage could not have occurred to the jeep in the way described by the appellant.  It was only on the respondent's version of the facts, that both his car and the jeep were standing in Williams Trace when the appellant's car hit them, that the damage could have been caused to the jeep.  Moreover the judge did not say that he formed an unfavourable impression of Mr. Ali, the driver of the jeep, as he did of the respondent and the police officer.  He found his evidence of "little assistance ... with respect to the resolution of the deadlock".  That, the Court of Appeal found, was an error on the judge's part since he had left out of account in the balancing operation "a very compelling piece of what may be described as real evidence".  The Court of Appeal found, in the absence of evidence from the driver of the car in which the appellant was travelling and of the car following that car, that the evidence of the appellant, as passenger and not as driver, and who only saw the respondent's car at a very late stage should not have prevailed over this "real evidence".

 

10. In their Lordships' opinion this was a case in which, exceptionally, the Court of Appeal were well entitled to overrule the decision of the trial judge.  The damage to the jeep, as the Chief Justice said, could be explained if the accident occurred as the respondent said; no explanation was given as to how, and the trial judge did not consider how, the damage could have occurred to the jeep on the appellant's account of the accident.  In this regard it is quite impossible to dismiss Mr. Ali's evidence as being of little assistance to resolve the deadlock between the conflicting, and unshaken, accounts given by the appellant and by the respondent.  It was a crucial part of the evidence, ignored by the judge, or if not ignored, rejected without any explanation when explanation was clearly required.  No explanation has been suggested.

 

11. Moreover, even if the trial judge reacted unfavourably to the police officer it seems clear that his evidence that the vehicles were on Williams Trace when he arrived at the scene is consistent with Mr. Ali's evidence and there was no suggestion that the vehicles had been removed after the collision.

 

 

12. If the collision had occurred on the main road as the appellant contended, with heavy traffic in both directions, signs of the collision (e.g broken glass) would have been expected at the point of impact and at the very least the traffic in one or both directions would have been halted.  A long line of waiting cars would quickly have built up.  There was no evidence that either of these occurred.  The absence of such evidence strongly supports the contention that the accident happened on the side road at the junction with the main road.  The judge in his judgment did not consider this matter at all.

 

13. Accordingly, and though with considerable sympathy for the appellant who suffered serious injury to his eyes, their Lordships consider that no error of law by the Court of Appeal has been shown.  On the contrary they were fully entitled to come to the conclusion they reached since the trial judge had arrived at a view of the facts which could not reasonably be entertained.  It was accordingly their duty "if they think that the only reasonable conclusion on the facts found is inconsistent with the determination come to, to say so, without more ado" (Edwards v. Bairstow [1956] AC 14, 39 per Lord Radcliffe).

 

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