The Judicial Committee of the Privy Council Decisions

Rambharose v. Bovell (Trinidad & Tobago) [2009] UKPC 6 (24 February 2009)

Privy Council Appeal No 30 of 2007

DOREEN RAMBHAROSE Appellant

v.

RICHARD BOVELL Respondent

FROM

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

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REASONS FOR DECISION OF THE LORDS OF THE

 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, OF THE

 15^th December 2008, Delivered the 24^th February 2009

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Present at the hearing:-

Lord Hoffmann

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Lord Neuberger of Abbotsbury

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[Delivered by Lord Scott of Foscote]

1. The issue in this case, a very short one, arises out of an accident suffered by the appellant on 26 May 1993 when the car she was driving along a country road in Trinidad at about 10.30pm was pushed off the road by a herd of bovine animals, described in the Agreed Statement of Facts as "bison" but, their Lordships think, more generally described as cattle. The appellant's car was damaged and she herself, pregnant at the time, sustained physical injuries.
2. About two weeks after the accident the appellant returned to the scene in order, no doubt, to discover to whom she should address her claim for redress. She was directed to the respondent, Mr Bovell. He, it later transpired, was the manager of the farm to which the cattle belonged. The appellant's evidence at trial was that she asked him if he was the owner of the animals and that he replied in the affirmative and said he was responsible for them. This evidence was disputed by the respondent but was accepted by the trial judge, Narine J, who said -

"Having carefully considered the evidence of the Plaintiff and that of the Defendant I accept the Plaintiff's evidence with respect to her dealings with the Defendant and the conversations that they had"

(p.66 of Record)

3. It is clear that either the Plaintiff or solicitors acting for her were given the name of N.E.M.(West Indies) Insurance Ltd ("NEM") as the insurers who would deal with her damages claim. Her claim for the damage to her car was settled on 27 August 1993 by a payment of the agreed sum by NEM to her and by the signing by her of a form of release that had been sent to her solicitors by NEM. The appellant added to the release a few words in manuscript to make clear that the release applied only to the damage to her car and that her personal injuries claim remained outstanding.
4. The personal injuries claim was the subject of a letter before action dated 25 November 1994 sent by the appellant's then solicitor to the respondent. This letter elicited a response dated 11 January 1995 from solicitors acting for NEM. The letter said that they were instructed by NEM "and their insured Cocos Bay Limited" and asked for full particulars of the appellant's claim, together with a medical report, to be sent to them. The letter ended with a request to the appellant's solicitors to

"… hold your hand in this matter to afford us an opportunity to negotiate a reasonable settlement of your client's claim."

5. The reference to "Cocos Bay Limited" in the 11 January 1995 letter may or may not have reminded the appellant's solicitor that the release form sent by NEM and signed by the appellant on 27 August 1993 had been expressed as an agreement with NEM "and Cosoc Bay Limited".
6. Negotiations about the quantum of the appellant's personal injuries claim continued for some time and on 26 March 1997 the appellant issued a specially endorsed Writ, naming the respondent as defendant. The Writ claimed -

"Damages for negligence as a result of an accident on 26 May 1993 involving the Plaintiff's Motor Vehicle … and the Defendant's cattle …".

The limitation period applicable to personal injury negligence actions in Trinidad is four years, which no doubt is the reason why the Writ was issued when it was, but, with negotiations still in progress, the Writ was not served until 23 November 1999.

7. On 29 November 2000 the respondent served a Defence. He pleaded two grounds of defence, first, that the action was statute barred, a defence that was not pursued at trial, and, second, that he was not the owner of the cattle. The appellant then served a Reply, on 1 March 2001, contending, in paragraph 2, that the respondent was estopped from denying that he was the owner of the cattle. Particulars of the grounds on which the estoppel was based were given in eight sub-paragraphs. Their Lordships need refer only to sub-paragraph (a) :

"(a) On several occasions in conversation between the Plaintiff and the Defendant he admitted that he was the owner of and/or responsible for the said cattle".

The appellant's reliance on the alleged representation was pleaded in paragraph 3 of the Reply :

"As a result of the above matters the Plaintiff brought these proceedings against the Defendant solely and not the Defendant and Cocos Bay Limited."

8. Both the appellant's specially endorsed Writ and the respondent's Defence were amended. The specially endorsed Writ was turned into an ordinary Writ and was accompanied by an Amended Statement of Claim dated 8 March 2004. Paragraph 2 of this pleading said that -

"On 26 May 1993 and at all material times the Defendant was the lawful owner of [the cattle]"

and paragraph 4 gave full particulars of his alleged negligence in failing to keep the cattle off the highway. Paragraph 5 of the new pleading set out particulars of representations the appellant said that the respondent had made to her. These included representations that "he was the lawful owner of the said herd of cattle" and that "he was accepting liability for the said collision …".

9. The respondent's amended Defence, served on 22 March 2004, retained the limitation defence and the denial that the respondent was the owner of the cattle but added a denial of any negligence on the part of the respondent and an allegation of contributory negligence on the part of the appellant. The amended Defence pleaded also the payment by NEM for the damage to her car, a payment which, it was said, was made by NEM as insurers of Cocos Bay Ltd and was not made on behalf of the respondent, and pleaded also the letter of 11 January 1995 which, it was said, had notified the appellant that Cocos Bay Ltd was the correct party that she should have sued. By this time, of course, any action against Cocos Bay Ltd would have been statute barred.
10. The appellant's Reply was left unaltered and on these pleadings the trial before Narine J took place. It was a trial on liability only and, as the judge remarked in the first sentence of his judgment, the facts regarding the accident were largely undisputed. Notwithstanding the amended Defence, no attempt appears to have been made by the respondent's counsel to resist the conclusion that whoever it was who was responsible for the cattle had been guilty of negligence in allowing them to escape on to the highway, nor was any attempt made to establish contributory negligence on the part of the appellant. The only issue to which defence counsel's submissions appear to have been directed were the issues of ownership of the cattle and estoppel by representation. The judge did not regard the reference in the 27 August 1993 release form to "Cosoc Bay Limited" as sufficient to fix the appellant with notice that the respondent was not the owner of the cattle and was not satisfied that the letter of 11 August 1995 addressed to the appellant's then solicitor had ever come to the attention of the appellant's subsequent solicitors who had come on the scene sometime in 1996 or to the attention of the appellant herself. He held that the representations, as alleged by the appellant, had been made by the respondent and that, accordingly, the respondent was estopped from denying that he was the owner of the cattle. He held, therefore, that the appellant had succeeded in establishing liability against the respondent.
11. The respondent appealed to the Court of Appeal and his appeal was allowed. The appeal related solely to the question whether the judge had been right to hold the respondent estopped from denying that he was the owner of the cattle that had escaped on to the highway and caused the accident. No attempt to revive the pleaded denials of negligence or the pleaded allegations of contributory negligence was made. The judgment of the Court of Appeal was given by Mendonca JA, with whom Kangaloo JA and Archie JA expressed agreement. Mendonca JA recorded (in paragraph 3) that when asked by the appellant if he was the owner of the cattle the respondent had replied that he was and that he was responsible for them. He (Mendonca JA) noted (in paragraph 6) that the respondent did not lead any evidence as to the circumstances surrounding the accident, that his defence "related to the issue of ownership of the animals" and that the respondent had stated that "they were owned by Cocos Bay Limited of which he was the manager at the material time."
12. The learned Justice of Appeal paid great attention to the references in the letter of 11 January 1995 and in the release form of 27 August 1993 to Cocos Bay Ltd (although misspelt in the latter document) and regarded these references as casting some doubt on the trial judge's acceptance of the appellant's evidence about the representation made to her by the respondent regarding his ownership of and responsibility for the animals. In their Lordships' respectful opinion, these references, in documents which post-dated by many months the occasion on which the critical representation had been made, do not begin to cast doubt on the judge's critical finding of fact. The respondent was the manager of the farm to which the cattle belonged and their Lordships can imagine nothing more natural than that the manager, when told of the accident caused by animals for which he was responsible, should accept responsibility. However Mendonca JA did, despite the doubts he had expressed, accept the judge's finding that the respondent had told the appellant that he was the owner of and responsible for the animals (see para.24 of his judgment).
13. Mendonca JA went on, however, to accept the submission made by counsel for the respondent that the references in the two documents to Cocos Bay Ltd had superseded that representation and, for that reason, held that the representation had, in effect, become spent and that the respondent's appeal should be allowed and the appellant's action dismissed.
14. It is, in their Lordships' opinion, highly debatable whether the references to Cocos Bay Ltd as the entity insured by NEM was a sufficiently clear statement that Cocos Bay Ltd, not the respondent, was the owner of the cattle so as to render unreasonable any subsequent reliance by the appellant on the respondent's representation that he was the owner, but the concentration on ownership of the cattle misses the point. What is important is not ownership of the cattle but responsibility for the cattle. If Cocos Bay Ltd had provided the respondent with a car for his personal and his business use, and the respondent by negligent driving had caused an accident, Cocos Bay Ltd, the respondent's employer, would have been vicariously liable if the respondent had been using the car for his business purposes but not if the respondent had been going out to dinner with his wife. In both cases, however, the respondent would have been personally liable and could not have escaped personal liability by pointing out that the car belonged to Cocos Bay Ltd. The identity of the owner of the car would be irrelevant.
15. In the present case Cocos Bay Ltd, as owner of the cattle, could only be liable for the damage caused by the accident if some employee's negligence had been responsible for the accident. The respondent had represented to the appellant that he was responsible for the cattle. Since he was the manager of the farm, that representation is not in the least surprising. It constituted an entirely reasonable basis for the appellant to decide to sue him for the damage caused by the cattle. It is beside the point that the appellant, if she had realised that Cocos Bay Ltd was the owner of the cattle, might have sued them also on the ground that they were vicariously liable for their manager's default.
16. The appellant's pleaded Reply sought to hold the respondent estopped not only from denying ownership of the cattle but also from denying responsibility for them. Even assuming that the references to Cocos Bay Ltd in the 27 August 1993 release and the 11 January 1995 letter bar the appellant from relying on the representation as to ownership, they do not touch the representation as to responsibility. It is the representation as to responsibility that, in the absence of any defence to the allegations of negligence, entitles the appellant to hold the respondent liable.
17. A subsidiary point argued on behalf of the respondent was that reliance by the appellant on the representation had not been pleaded or proved. There is nothing in this point. Reliance was pleaded in paragraph 3 of the Reply. Evidence that the respondent was sued because the appellant believed that he was the person responsible for the cattle is supplied by the pleadings.
18. Their Lordships, accordingly, allow this appeal with costs.