REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
BETWEEN
DAVID SOOKOO
AUCHIN SOOKOO APPELLANTS
AND
PANEL:
M.A. de la Bastide, C.J.
J. Permanand, J.A.
L. Jones J.A.
APPEARANCES:
MR. S. ROOPNARINE, MR. D. PERSAD-MAHARAJ appeared on behalf of the APPELLANTS
MS. M. TIWARI, MS. N. ASHRAPH appeared on behalf of the RESPONDENT
DATE DELIVERED:
Friday January 12th , 2001.
On the 7th March, 1989, there was a collision on the Siparia Erin Road between two motor-vehicles: one was owned by the appellants and the other by the respondent.
The respondent brought an action against the appellants in which he claimed damages in respect of the damage done to his car. The first item under particulars of special damage was “total loss settlement, $27,000.” There was also a claim for loss of use and some other incidental expenses.
The appellants counterclaimed for damage to their vehicle although the amount in respect of the item “labour and materials to repair motor vehicle TM 2302” was left blank. There was also a counterclaim for loss of use in the sum of $1,400 and for depreciation in the sum of $1,000.
The learned trial judge held that the accident occurred owing to the negligence of the driver of the appellants’ vehicle and gave judgment for the respondent/plaintiff against them. The judgment was for the sum of $27,300, of which $300 represents the amount awarded for loss of use and $27,000 was in respect of damage to the car which was treated as written off.
The counterclaim was abandoned at the end of the trial in the course of final addresses and by consent the counterclaim was dismissed with no order as to costs. The costs of the Plaintiff’s claim, however, were ordered to be paid by the Appellants. The appeal which is before us is against the award of $27,000 for loss of the car. The ground of appeal is that the quantum of that loss was not adequately proved at the trial and therefore no award should have been made.
I should start by saying that the way in which both counsel and, unfortunately, the Judge, approached the quantification of the damages, seem to have been affected by the notion that this was not a simple running-down action but was what the Judge described as “a subrogation claim brought by the Plaintiff’s insurers to recover monies they have put out in settling the Plaintiff’s claim.”
This is palpably inaccurate. This is not a subrogation claim. This was not a claim by the Plaintiff’s insurers nor was it properly described as a claim based on or arising out of subrogation.
The learned Judge and counsel appear to have confused two separate things: One is the situation in which an insured whose claim has been settled by the insurers is paid by a third party for the same loss for which he has been compensated under his policy of insurance. In such circumstances, the insurers are entitled by way of subrogation to recover from the insured the amount it has paid in settlement of his claim, at least up to the limit recovered from the third party. The other quite different situation (which appears to have existed here) is where an insurer, by virtue of a right conferred on it by the policy of insurance, pursues a claim in the name of its insured to recover from a third party the loss which its insured has suffered. That is not properly a case of subrogation and, for the purposes of claiming and proving damages, is no different from a claim brought by a person whose claim has not been settled by any insurer. The same obligation rests on a Plaintiff, whether or not he has been reimbursed by his insurers, to prove the special damage which he claims .
The only evidence in relation to the claim for damage to the car that was adduced was; (a) evidence given by the Plaintiff/Respondent that he had received from repairers an estimate for the repair of the damage done to his car in the accident, of between $41,000 and $44,000; and (b) evidence which was supported by a receipt tendered and received into the evidence over the objection of counsel for the defendant, that the plaintiff’s insurers had paid the plaintiff the sum of $27,000 on the basis that his car was a constructive total loss, and in addition let him keep the wreck.
Counsel for the Respondent has argued strenuously before us that that evidence justified the award of the sum of $27,000 in relation to the damage to the car. The evidence to which I have referred was except in the case of the receipt, received into evidence without objection by counsel for the Defendants/Appellants. None of that evidence was admissible. In the case of the evidence as to the cost of repairs, this was hearsay evidence to start with, since the plaintiff was reporting what he had been told, either orally or in writing, by the repairer. Moreover assuming that the repairer had given his estimate in writing, this was secondary evidence of a document which was not produced. Thirdly, this was opinion evidence which would only be admissible if it came from an expert whose qualifications had been established to the satisfaction of the Court.
Nonetheless, the evidence was given without objection. It would, however, have been of very limited value. Evidence of what was paid by the insurers was not only inadmissble but irrelevant as ‘res inter alios acta.’
The obvious and proper course for those conducting the Plaintiff’s case to have taken, was first of all to call the repairer to prove the cost of repairing the damage to the car. Secondly, to call someone to establish the pre-accident value of the car. Thirdly, to establish the value of the wreck.
None of these things was done nor was the opportunity taken to use Order 25, Rule 1 A, which can make it unnecessary for a plaintiff to call witnesses to prove special damage in running-down cases by service of the appropriate notice together with bills and receipts. That, too, was not done. In the absence, therefore, of any agreement with the other side on an appropriate figure for the damage to the car, it should have been apparent to counsel for the plaintiff that it would be necessary to call evidence along the lines I have indicated above from the appropriate witnesses. Counsel for the Respondent has submitted that it can be inferred from the amount paid by the insurers that that represented the value of the car less the value of the wreck. She has referred us to three cases, all local. One was a decision of Mr. Justice Edoo in Daniel v. Patrick, Civil Action No. 89 of 1983. In that case, damages were awarded for inter alia the loss of a motor-cycle. In that case evidence was led that the motor cycle had been purchased on a certain date at a price of $10,609. There was no other evidence as to the value of the motor-cycle at the time of the accident. But the learned trial Judge felt able to use his own experience to arrive at a figure of $9,000 as a proper one to award in respect of this item after allowing, as he said, in respect of the period of one year since the bike had been purchased for depreciation of 15 to 16 per cent of its original price. It is common experience that items of special damage are sometimes not proved to the hilt and yet the Court may make an award in respect of them. It is a matter which depends on the circumstances and evidence in each case. The Court has to decide whether on the material before it, it can arrive at some acceptable conclusion as to the amount which it should award. In the case of Daniel, the evidence was deficient but it nonetheless provided the basis for an award to be made.
Another local case which counsel referred to was Ward v. Homer, Civil Action No. 1693 of 1989. This was a decision of Mr. Justice Basdeo Persad Maharaj. In this case, the Judge was again asked to make an award for damages in respect of the damage to a vehicle. It is not altogether clear what the full extent was of the evidence adduced with regard to this item. The Plaintiff, who was the owner of the vehicle, gave evidence of having purchased it about a year before the accident, and on the basis of the purchase price, he put his own value on the vehicle at the time of the accident. There was also evidence of the amount which the Plaintiff was paid by his insurers for the loss of the vehicle. The Judge felt able to make an award in respect of this item. It is to be noted that the amount awarded of $5,000 was considerably less than both the sum of $26,500 which was the amount paid to the plaintiff by his insurers, and the figure of $35,000 which was the value the plaintiff put on the vehicle.
Mr. Justice Basdeo Persad Maharaj indicated that he was relying on the judgment of Mr. Justice Edoo in Daniel v Patrick but he was perhaps somewhat more creative than Mr. Justice Edoo had been in filling the gaps left by the plaintiff’s evidence of value.
The other case to which counsel referred, was Grant v. Motilal Moonan Limited. That was a decision of this Court. In that case, the damages assessed were in relation to furniture and other household items which had been damaged or destroyed. The plaintiff had made a list of the items that were damaged or lost and wrote what was described as a ‘price’ in relation to each item. The Court of Appeal held that that evidence, even without the support of evidence from a qualified valuer, was sufficient to enable an award to be made.
These are the cases on which counsel for the Respondent relies. The sort of evidence which a Court should insist on having before venturing to quantify damages, will vary according to the nature of the item in respect of which the claim is made and the difficulty or ease with which proper evidence of value might be obtained. It would also, depend in part on the value of the individual item. It may not be reasonable to require expert evidence of the value of used household items but where one is dealing with a motor-vehicle which usually has considerable value, and in respect of which there should be no difficulty in securing proper evidence of value, then the Court is entitled to adopt a more stringent approach.
I, accept the correctness of the decision in Grant’s case but that case is clearly distinguishable on the facts from ours. With regard to the other two, which are decisions at first instance, it is not necessary since the facts and the evidence in these were significantly different, to express a concluded view as to their correctness. All I will say is that the decision of Mr. Justice Edoo seems to me more clearly to fall on the right side of the line between an award which the evidence can support and one which it cannot.
One thing is quite clear, however, and it is that in running-down actions, where it is necessary to prove the value of a vehicle it is not sufficient to adduce evidence of what was paid by the insurers to the plaintiff. Such evidence is not even admissible, and if admitted, does not serve as a proper basis for an award.
Similarly, where it is necessary to prove the cost of repairs, this should not be done by oral evidence from a third party of an estimate given by a repairer who is not called as a witness. The Rule to which I have already referred, can be used to obviate the need to call any witness or prove any document.
On the other hand, one would expect that if receipts and bills or estimates are produced, then unless there is some good reason for the other side disputing the figures shown in these documents, they will be accepted and agreed. Failure to act reasonably in this regard should attract some sanction in costs. I would have thought that by now there would be in running-down actions a well-established and well-known routine in relation to proof of special damage, which would reduce the time taken in trying these actions and obviate the need for the time of this Court to be taken up in hearing appeals of this sort.
I fervently hope that the approach which was taken in this case to the proof of special damage, will not be repeated. It could have resulted in the Respondent not recovering proper compensation for his loss. As it is, the loss will be his answers, but the blame for that must rest on the shoulders of those who had the conduct of the case.
For these reasons, I will allow the appeal and set aside the award of $27,000 with interest made in respect of the damage to the Respondent’s vehicle. That leaves him with a judgment for only $300. I think we must also require him to pay the costs of the appeal. I would not disturb, however the order made for costs in the Court below.
JUSTICE PERMANAND: I agree with the judgment just pronounced by the learned President of the Court.
JUSTICE JONES: I also agree.
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