The Judicial Committee of the Privy Council Decisions

Greene v. Sookdeo & Ors (Trinidad & Tobago) [2009] UKPC 31 (14 July 2009)

Privy Council Appeal No 64 of 2008

Edrick Greene Appellant

v.

(1) Ferosa Sookdeo

(2) Beacon Insurance Company Limited

(3) Errol Hassanali

(4) Goodwill General Insurance Company Limited Respondent

FROM

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 14^th July 2009

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Present at the hearing:-

Lord Brown of Eaton-under-Heywood

Lord Mance

Sir Jonathan Parker

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[Delivered by Lord Brown of Eaton-under-Heywood]

1. About 6 am in the morning on 23 May 2002 a calamitous accident occurred on the Valencia stretch of the Sangre Grande-Port of Spain Eastern Main Road in Trinidad. A ten ton Nissan dump truck ("the truck") being driven eastwards by Errol Hassanali ("the truck driver") collided with a maxi-taxi ("the taxi") being driven westwards by Ian Charles ("the taxi driver") causing it devastating damage. The truck weighed 22,400lbs, some seven times the weight of the taxi. There were eleven passengers in the taxi including the appellant, Edrick Greene, many of them seriously injured in the collision, one of whom later died of his injuries.
2. In March 2004 Mr Greene duly brought an action claiming damages for personal injuries and consequential loss against the owner of the taxi (the first respondent), the truck driver (the third respondent) and (as is said to be the practice in Trinidad and Tobago) their respective insurers (the second and fourth respondents). The claim alleged negligence against both drivers (the taxi owner being, of course, vicariously liable for any negligence on the part of his driver). It was agreed that liability should be determined as a preliminary issue in the action and it was agreed also that this determination would govern the claims of all those who had been injured in the collision.
3. On 29 April 2005, having heard evidence and submissions on a number of earlier dates, Tiwary-Reddy J gave an oral decision holding the truck driver 75% to blame for the collision, the taxi driver 25% to blame. Some fifteen months later, on 18 July 2006, the learned judge gave written reasons for her decision. The taxi owner and her insurers appealed against the finding of blame on the taxi driver's part and on 31 January 2008 the Court of Appeal (Warner, John and Weekes JJA) allowed their appeal, holding the truck driver to be wholly liable for the collision. Mr Greene now appeals to the Board by leave of the Court of Appeal.
4. On the face of things it should not matter to Mr Greene one way or the other which of the two drivers was to blame for this accident or in what proportion. Alas, however, it matters greatly. The truck driver's insurers have proved to be insolvent and, unless Mr Greene's appeal succeeds, none of the injured passengers (nor the deceased passenger's dependants) will recover any damages in respect of their claims. If, of course, the taxi driver is held to blame in any degree, they will recover in full from the owner's insurers.
5. With those introductory paragraphs their Lordships turn in a little more detail to the circumstances of this accident and the evidence given with regard to it.
6. The Valencia stretch is a long, straight length of single-carriageway road, asphalt-surfaced to a width of 5.8m (some 19 feet) and bordered (at any rate on the southern, westbound, side) by a flat verge (or shoulder) some 108 feet wide. The road is subject to a 50 mph speed limit. West of the point of collision the road inclines upwards for westbound traffic (the taxi's direction of travel) to a crest some hundred yards ahead. (Westbound drivers are warned of the approaching crest by a "Danger Ahead" traffic sign although in the event this formed no part of the danger facing the taxi driver here.) As the vehicles approached the point of collision the truck was travelling downhill, the taxi moving towards the uphill gradient. It was raining and the road surface was wet.
7. As the truck approached, it passed another vehicle or vehicles parked or stationary on its nearside and, in doing so, moved across the centre line of the road and into the westbound lane. Had this been a controlled overtaking it seems plain that, whilst inevitably it involved the truck's movement directly into the path of the oncoming taxi, the taxi would have passed safely by. The taxi driver, having seen the truck moving into his lane, "tipped" his brakes and drove onto his nearside verge (not, it would appear from the photographs, an uncommon event). Tragically, however, the truck's manoeuvre was far from controlled. Rather the truck went into an uncontrollable skid which took it diagonally across the westbound carriageway and into violent collision with the taxi actually on the southern verge. The initial point of impact occurred some two or three feet onto the verge and was between the front nearside of the truck (which suffered comparatively little superficial damage although its nearside front wheel and suspension were moved back two feet) and the front of the taxi towards its offside. Because, however, of the truck's angle of approach (diagonally from the taxi's front offside), the impact tore across the front nearside of the taxi causing massive damage on that side.
8. After the accident an expert accident investigator (Mr Cupid) found both front tyres of the truck to be smooth. As he then stated in his report:

"The downward wet slope, coupled with smooth tyres would have presented difficulty for [the truck] to steer and slow down. Hydroplaning is a phenomenon that exists when depth of tyre grooves is insufficient to hold the layer of water across the tyre width, thereby diminishing the tyre/road surface interface. In other words, the tyre is floating in water. Additionally, the brake shoes could have been wet, making braking less effective. This phenomenon is known as 'Brake Fade'. It was reported that another vehicle stopped in front of the truck. It may well be that [the] truck driver in an attempt to slow down or stop behind that vehicle, discovered that braking was ineffective, at which time he swerved to the right to avoid hitting the parked vehicle."

9. Mr Cupid was later to say in evidence (record pp165-166):

"This was a ten-ton truck. When the road is wet a good tyre would hold the water in the thread grooves. If the grooves are too shallow the tyre becomes like a boat. The water is not squeezed out through the grooves but rather the interface between the road and the tyre is lost so that the tyres are riding on the water. The result is that in an emergency situation it would be difficult if evasive action is required through steering for the driver to steer/control the vehicle. Having regard to the state of the road and of the front tyres I cannot tell you what would be a safe speed in those circumstances. Certainly a speed of 50mph or 80 kph would be too fast in an emergency situation."

10. Four witnesses only gave evidence before the judge: Mr Greene (the plaintiff), Mr Charles (the taxi driver), Mr Applewhite (a passenger in the taxi, sitting next to the driver) and Mr Cupid (the expert). Under the heading " FINDINGS", the judge concluded (at para 51):

"Having reviewed the evidence, especially the evidence of the expert, Carl Cupid which this Court accepted, it made the following findings:

1. The plaintiff was asleep at the time of the collision. Accordingly this Court rejected his testimony as to how the collision occurred.

2. [The truck] with defective front tyres was overtaking several vehicles while going down-hill on a wet road at an excessive speed, in the region of 100 kph in the early morning, when it skidded into the path of the [maxi-taxi] which was itself being driven at a speed of approximately 80 kph immediately before the collision, which speed was also excessive in the circumstances.

3. The point of impact was 1-4 feet off the southern shoulder of the Eastern Main Road, which was only 10.8 feet wide. Therefore on impact the maxi could not have been pushed 40 feet further south on the shoulder.

4. The collision was caused by the negligence of the drivers of both vehicles:

a) The driver of the truck was driving at an excessive speed on a wet road with defective tyres and overtook when it was unsafe;

b) The driver of the maxi was driving too fast in the circumstances and not keeping a proper look-out."

Sub-paragraph 1 of those findings needs no comment. Sub-paragraph 3 refers to a post-accident police sketch plan and, although somewhat puzzling, seems of little importance. The first part of sub-paragraph 2 and sub-paragraph 4 (a)—which summarise the indisputable negligence on the part of the truck driver (who chose not to give evidence)—need no comment. There is, however, a need to look further into the judgment for the background to the findings (in sub-paragraph 4(b) and at the end of sub-paragraph 2) as to the taxi driver (a) "driving too fast" ("approximately 80 kph immediately before the collision") and (b) "not keeping a proper lookout".

11. As to the evidence regarding the taxi driver's speed, his own evidence was that whilst initially he was driving at 80kph, just prior to the impact he was doing only about 10 kph. Mr Applewhite too said that earlier (before he fell asleep) he had noticed from the speedometer that the taxi was not exceeding 80 kph and that he awoke just before the collision to hear the driver say "Oh God" at which point "[the maxi] was not travelling at a fast rate, it was slowing down". The judge, however, "placed greater reliance on [the taxi driver's] statement given [to the police] 10 days after the accident when the collision was fresher in his mind" (para 37) at which time as summarised (at para 44) "[he] said that when he first saw the truck starting to overtake and occupying his lane he simply tipped his brakes, pulled to the left and continued driving on the shoulder. He did not consider that the overtaking truck posed any immediate danger. It was only when the truck started skidding towards him that [he] felt any danger".
12. The other evidence which the judge clearly took to support her conclusion that the taxi had been doing "approximately 80kph immediately before the collision" was what Mr Cupid said as to the position of the truck's left front wheel and suspension after the collision. In paragraph 45 of the judgment she said:

"[S]ince the force of the impact pushed the left front wheel of the truck with its suspension two feet back, it was unlikely that the maxi was almost at a standstill immediately before the impact."

The difficulty with that, however, was that there was in fact no basis in Mr Cupid's evidence for any conclusion as to the taxi's speed at impact: the weight and speed of the truck itself could just as well have accounted for its wheel and suspension being pushed back in the collision.

13. The one other aspect of the trial judge's judgment which should be mentioned is her response to the taxi driver's submission that he had had to act "in the agony of the moment". "In order to rely on this principle", said the judge at paragraph 44, "[the taxi driver] had to establish that he had neither the time nor space to avoid the collision or minimise the damage."
14. Their Lordships turn to John JA's judgment in the Court of Appeal, varying the judge's order and holding the truck driver to be wholly liable for the accident. First to be observed is the Court of Appeal's clearly correct self-direction (at para 24) as to the restraint to be shown by an Appeal Court in a case of this nature:

"The role of an appellate court in reviewing a trial judge's findings of facts is severely limited. The court will not interfere simply because it takes a different view of the evidence. The responsibility for finding the facts and drawing inferences from them is for the trial judge who enjoys the distinct advantage of hearing and seeing the witnesses. The trial judge's finding is not to be disturbed unless it can be demonstrated that it is affected by material inconsistencies and inaccuracies or that he or she may have failed to appreciate the weight or bearing of the circumstances admitted or proved [or is] otherwise [shown] to be plainly wrong."

Next should be noted the Court of Appeal's view (para 26) "that the evidence does not support the judge's finding that the maxi driver was travelling at a speed of 80kph and that that speed was excessive."

15. Finally their Lordships must set out certain core passages containing the Court of Appeal's conclusions upon the case:

"21. We are of the view that the evidence of Cupid in particular . . . primarily pointed to the truck driver and the condition of tyres on the truck. Of significance also is Cupid's overall analysis that the truck crossed the path of the maxi and there was a collision between them. Therefore, we feel that the evidence showed clearly that the truck driver placed himself in a dangerous position when he crossed into the maxi's lane. He knew the risk to which he subjected himself and other road users generally when he crossed into the opposite lane. The evidence revealed that prior to the collision there were three vehicles parked in the truck driver's lane. The truck driver ought to have stopped behind those three vehicles and waited for the maxi driver to pass him before crossing into the maxi's lane. However the truck driver declined to do so and therefore he was the author of his own misfortune.

25. . . . We find that the collision occurred whilst [the taxi driver] was responding to an emergency situation created by the manner in which [the truck driver] drove the motor truck. When such a situation occurs it should be remembered that the standard that is required is the objective standard of care in negligence. The conduct of a party acting in an emergency situation is stated in Clerk and Lindsell on Torts, 18^th ed. at paragraph 7-166:

'All that is necessary in such a circumstance is that the conduct should not have been unreasonable, taking the exigencies of the particular situation into account. Thus in Ng Chun Pui v Lee Chuen Tat, the Privy Council held that the driver of a coach, who had braked, swerved and skidded when another car had cut in front of him without warning, had acted reasonably in the emergency.'

23. We feel that based on all the evidence the maxi driver's options to avoid the collision were severely limited since the truck was considerably larger than the maxi and the truck driver assumed a dangerous position when he occupied the maxi's lane rather than wait for it to pass the three vehicles parked before proceeding further. We do not feel that the maxi driver would have been in any position to prevent a collision and on the actual findings which the judge made, she did not state what, in her view were the actions or omissions that made the maxi driver negligent. She also failed to state what duty he breached and what acts or omissions caused the resulting damage. It was not sufficient for the judge simply to enumerate her findings as she did."

16. On behalf of Mr Greene (indeed, as explained, on behalf of all the injured passengers) Sir Fenton Ramsahoye urges the Board to reinstate the trial judge's findings of negligence against the taxi driver, submitting that there was indeed evidence available to the judge capable of explaining and supporting them. Try as they might, however, their Lordships cannot find it. There was no evidence at all to suggest that 80 kph was too fast a speed generally for the Eastern Main Road on the morning in question. That was the stipulated speed limit for the road and, presumably, it was set with the possibilities of rain and darkness in mind. Mr Cupid's evidence that "certainly a speed of 50 mph or 80 kph would be too fast in an emergency situation" had to be understood in the context of a heavy lorry being driven on a wet road with bald tyres; it was in no way a basis for criticism of the taxi's speed up to the point where the truck began to move into its carriageway. Nor does it seem to the Board possible on the evidence to criticise the taxi driver for initially, when first seeing the truck moving into his carriageway, just "tipping" his brakes and driving onto his nearside verge. Had the truck not been in an uncontrollable diagonal skid, there would have been no possible danger in this manoeuvre. And once it was evident that the truck was actually sliding right across the entire road surface and towards its southern shoulder, the taxi driver was obviously facing an acute emergency and with virtually no time to react.
17. The judge was wrong (at para 44) to say that in the agony of the moment the burden lay on the taxi driver "to establish that he had neither the time nor space to avoid the collision or minimise the damage". Rather, as the Court of Appeal correctly noted by reference to Clerk and Lindsell, "All that is necessary in such a circumstance is that the conduct should not have been unreasonable, taking the exigencies of the particular situation into account." All that the taxi driver could at that stage do was brake further (as Mr Applewhite confirmed he did) and, as he said, attempt (albeit, alas, with wholly insufficient time) to steer back onto the carriageway in the hope of leaving the truck on his nearside.
18. There was in truth no evidence here of the taxi being driven too fast or of its driver failing to keep a proper lookout. Rather the plain reality of this case is that the truck was in such a condition and being driven in such a way as to create a sudden appalling danger which no oncoming traffic could reasonably have been expected either to foresee or escape. This accident was the inevitable result of a truck with bald tyres being driven substantially in excess of the speed limit downhill on a wet road overtaking stationary vehicles on its nearside so as not merely to intrude substantially onto the oncoming carriageway but in fact to take it into an uncontrollable slide across the entire road and into collision with an approaching vehicle actually on the opposite verge.
19. Their Lordships are in no doubt that the sole blame for this accident lies, as the Court of Appeal held, with the truck driver. There was simply no evidence capable of sustaining a finding of negligence in any respect against the taxi driver. In the result the appeal must be dismissed with costs.