the republic of trinidad and tobago in the high court...

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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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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.

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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

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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

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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”

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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

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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

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[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

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[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

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[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

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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.

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[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

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[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


17 Ibid, pg. 33, lines 20-36

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[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

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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.


20 Ibid, pg. 11, lines 42-45

21 Ibid, pg. 12, lines 10-12


23 (1998) 7 PIQR 323

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(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

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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

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persons27. Accordingly, if land is in the possession of a tenant, it is the tenant and

not the reversioner who can sue in trespass: Wallis v Hands28.

[50] In the case of Joanne Charles-Isidore v Stephanie Claudette and ors, High

Court Action No. CV2012-02477, Jones J (as she then was), at page 7 of her

judgment, stated that-

“The law with respect trespass is clear - it is an injury to a possessory

right. In the circumstances, the proper claimant is the person who was or

is deemed to have been in possession at the time of the trespass. Even an

owner of land subject to a tenancy cannot maintain an action in trespass

since “a mere right of property without possession is not sufficient to

support an action in trespass (Halsbury’s Laws of England, 4th ed

volume 45 page 637, paragraph 1396)”

[51] Having regard to the clear principle of law recited in paragraphs 48-50 above, the

Court agrees with SM Jaleel’s submission that Mr. Lett, as the owner of the rental

residential premises, cannot sustain a claim in trespass to the property. Though Mr.

Lett is the owner of the property, he is in fact renting the property to nine tenants.

Furthermore, at the time of the incident, Mr. Lett was not in actual possession of the

property to maintain an action in trespass but rather his tenants.

[52] In that regard, the Court is of the view that SM Jaleel did not commit a trespass to

Mr. Lett’s property when it collided with the electrical wire running from the

electricity pole to the property.

Issue 3: Did the Ancillary Defendant’s Defence comply with Part 10.5 of the Civil

Proceedings Rules 1998?

[53] From SM Jaleel’s written submissions, counsel failed to acknowledge SM Jaleel’s

claim of negligence and nuisance against T&TEC. Instead, Counsel sought to

27 Halsbury’s Laws of England, 5th edition, Volume 97 at paragraph 575

28 Wallis v Hands [1893] 2 Ch 75

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dispute the validity of T&TEC’s Defence to the Ancillary Claim as filed before the

Court.

[54] Rule 10.5 of the CPR sets out the Defendant’s duty to set out his case if he intends

to defend. It states that-

“1) The Defendant must include in his defence a statement of all the

facts in which he relies to dispute the claim against him.

2) Such statement must be as short as practicable.

3) In his defence the defendant must say—

a) which (if any) allegations in the claim form or statement of case he

admits;

b) which (if any) he denies; and

c) which (if any) he neither admits nor denies, because he does not

know whether they are true, but which he wishes the claimant to

prove.

4) Where the defendant denies any of the allegations in the claim form or

statement of case—

a) he must state his reasons for doing so; and

b) if he intends to provide a different version of events from that given

by the claimant, he must state his own version.

5) If, in relation to any allegation in the claim form or statement of case

the defendant does not—

a) admit or deny it; or

b) put forward a different version of events,

he must state each of his reasons for resisting the allegation.

6) The defendant must identify or annex to the defence any document which

he considers to be necessary to his defence.”

[55] Mendonça JA in the case of M.I.5 Investigations Ltd v Centurion Protective

Agency Ltd29 explained how a Defence should be drafted pursuant to Part 10.5 of

the CPR as follows:

29 Civil Appeal No 244 of 2008

of 41

“In respect of each allegation in a claim form or statement of case

therefore there must be an admission or a denial or a request for a

claimant to prove the allegation. Where there is a denial, it cannot be a

bare denial but it must be accompanied by the defendant’s reasons for

the denial. If the defendant wishes to prove a different version of events

from that given by the claimant, he must state his own version. I would

think that where the defendant sets out a different version of events from

that set out by the claimant that can be a sufficient denial for the

purposes of 10.5 (4) (a) without a specific statement of the reasons for

denying the allegation. Where the defendant does not admit or deny an

allegation or put forward a different version of events, he must state his

reasons for resisting the allegation (see 10.5 (5)). The reasons must be

sufficiently cogent to justify the incurring of costs and the expenditure of

the Court’s resources in having the allegation proved.”

[56] The effect of Part 10.5 of the CPR is adequately summarised in Zuckerman on

Civil Procedure, Principles of Practice, Third Ed at page 301, para 7.27 as

follows:

“The old system of bare denials and "holding defences" was wasteful

and no longer acceptable. Today, the function of the defence is to

provide a comprehensive response to the particulars of claim so that

when the two documents are read together one can learn precisely which

matters are in dispute.”

[57] Counsel for SM Jaleel submitted that the main plank of T&TEC’s defence is that the

accident was caused wholly by the negligence of the driver, Mr. Andall. Counsel

further submitted that no particulars of negligence were pleaded nor was there any

attempt to establish negligence on the part of the driver. Furthermore, no attempt

was made in the Ancillary Defence to answer the allegations of the Ancillary Claim.

Consequently, without pleading what are the particulars of negligence, T&TEC is

precluded from leading evidence of negligence and the allegation of SM Jaleel that

T&TEC was negligent is undisputed. Counsel relied on the case of MI5

Investigations (supra).

of 41

[58] T&TEC, in its Ancillary Defence, averred that the accident was caused wholly by

the negligence of Mr. Andall. T&TEC then sought set to out a different version of

events in response to the Ancillary Claim. T&TEC pleaded the minimum

requirements in law as it relates to the installation of electrical wire from the ground

or road level to the conductors and connections of electrical wire from the base level

to the conductor on residential premises.

[59] T&TEC need not give a specific statement of the reasons for denying the allegation

if they set out a different version of events from that set out by the Claimant: M.I.5

Investigations Ltd v Centurion Protective Agency Ltd (supra). Though the facts

as pleaded by T&TEC are not a specific statement of the reasons for denying the

allegation, T&TEC did set out a different version of events to that of SM Jaleel. The

Court is of the view that this is a sufficient denial for the purposes of Part 10.5(4) of

the CPR.

[60] In that regard, the Court is of the view that T&TEC’s Ancillary Defence complies

with Part 10.5 of the CPR.

[61] SM Jaleel, in its written submissions, did not address the issue of negligence on the

part of T&TEC nor the issue of nuisance created by T&TEC as pleaded in its

Ancillary Claim. Nevertheless, the Court will still proceed to analyse these issues

below.

Issue 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 requirements?

If not, did this failure amount to negligence on the part of the Ancillary Defendant?

[62] As stated above, it is settled law that in order to establish negligence; SM Jaleel is

required to prove that (i) a duty of care existed between the parties; (ii) there was a

breach of that duty by T&TEC; and (iii) the breach resulted in damage or loss

suffered by SM Jaleel. It is undisputed that T&TEC owed SM Jaleel a duty of care.

T&TEC is under a duty to ensure that its supply of electricity is safe and that its

connections between the electrical wires connected to its poles on one end and to the

electrical installations of the house, at the other end, comply with the minimum

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requirements and do not cause any disruptions with road users and/or the public.

However, the issue, which arises, is whether Mr. Andall’s collision with the

electrical wire was caused by a breach of the duty owed by T&TEC to SM Jaleel.

The burden of proof of such breach lies on SM Jaleel.

[63] SM Jaleel must therefore prove that the electrical wire running from the electricity

pole to Mr. Lett’s property was installed lower than the regulated height. In this

regard, SM Jaleel contended that contrary to section 8 of the Electricity

(Inspection) Act, Chap 54:72, T&TEC’s electrical line was installed lower than 20

feet from the electrical pole base to point of connection and 17 feet from the ground

to point of connection to the house. It is necessary therefore to look at Section 8 of

the Act which reads as follows:

“(1) No person shall in the generation, transmission, supply or use of

energy permit any part of his electric supply lines to be connected with

earth except as may be required by rules made under this Act or by any

other law or may be expressly permitted by the Chief Inspector.

(2) In the event of any breach of subsection (1), the Chief Inspector may

by written order require the licensee or owner to break the connection

and may prohibit the use of any electric supply line or works or of any

installation until the order is complied with, and every such order shall

be complied with by the person concerned.

(3) Any licensee or owner who fails to comply with the written order of

the Chief Inspector as mentioned above, or who continues to use the

electric supply line or works or any installation prohibited to be used

while the order remains uncomplied with, is liable to a fine of seven

hundred and fifty dollars and, if the contravention continues, to a further

fine of seventy-five dollars for every day in respect of which it so

continues after the first day.”

[64] It is evident that this provision does not refer to the regulated height of installation of

any electrical wire to any point of connection but rather relates to restriction of

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connection with earth. The Court, therefore, agrees with T&TEC that this provision

is inapplicable to the case at bar.

[65] SM Jaleel sought to establish the breach of duty by calling the driver of the truck,

Mr. Andall, as its only witness. Mr. Andall’s evidence-in-chief was not helpful to

the Court in establishing the height at which the electrical wire was installed on the

date of the incident nor prior to the incident. In fact, he stated that he did not know

the height of the electrical wire at the time of the accident. However, he knew that it

was lower than the height of the truck, which was 12 feet because the top right hand

side of the truck came into contact with the electrical wire. This was the extent of

Mr. Andall’s evidence as it concerns the height of the electrical wire at the time of

the incident.

[66] However, during cross-examination, Mr. Andall testified that he only saw the wire

for the first time when he saw sparks at the back of the vehicle. This contradicts is

his evidence-in-chief that the electrical wire was lower than the height of the truck

which was 12 feet. If in fact the electrical wire were lower than the height of the

truck, Mr Andall would have been able to see the electrical wire before approaching

the area.

[67] On the other hand, Mr. Reid, a Substation Engineer employed by T&TEC, gave

evidence on the minimum requirements as provided for by law. Mr. Reid stated 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 19.703 feet

and the connections of electrical wire from the base level to the conductor on

residential premises is at least 3.7metres or 12feet. However, the connection from

the base level to the conductor on residential premises varies depending on the

height of the premises. During cross-examination, Mr. Charles, counsel for T&TEC,

asked Mr. Reid what law he checked and he replied that he could not recall the name

of the document. However, he later stated that the name of the document was

“Wiring for Light and Power”30.

30 NOE dated 23 June 2016, pg. 44, lines 36-47

of 41

[68] Nevertheless, in cross-examination, Mr. Reid revealed that he only visited the scene

of the incident after he gave his witness statement. In fact, Mr. Reid agreed he was

not familiar with the area before the incident occurred. Accordingly, he could not

assist the Court as to how the electrical wire was running prior to the incident31. Mr.

Reid also could not say what was the height of the electrical wire from the post to

the property nor the height of the wire as it connected to the property32. Mr. Reid

agreed that he would not be able to say whether the electrical wire was drooping or

overburdened with debris to bring it down33. Mr. Reid maintained that he would not

be able to state the height of the connected wire since he was not there34.

Consequently, Mr. Reid’s evidence was also not very helpful in determining at what

height was the electrical wire at the time of the incident.

[69] Mr. Lett was also unable to assist the Court with respect to the actual height of the

electrical wire prior to the incident.

[70] Having failed to cite the relevant law, SM Jaleel has not made known to the Court

the regulated height of installation in order for the Court to ascertain whether

T&TEC breached its duty of care owed to SM Jaleel. Nonetheless, the Court wishes

to highlight that SM Jaleel did not specifically plead the actual height of the

electrical wire at the time of the incident and simply averred that it was installed

lower than the regulated height. Additionally, SM Jaleel, in its written submissions,

did not identify the height of the installation of the electrical wire running from the

electricity pole to Mr. Lett’s property.

[71] Rule 8 of Electricity (Inspection) (Overhead Lines) Rules, a subsidiary legislation

of the Electricity (Inspection) Act, reads as follows:

The height from the ground of any line conductor or earth wire or

auxiliary conductor at any point on the span at a temperature of 122˚F

shall not, except with the consent of the Chief Inspector in consultation

31 Ibid, pg. 30, lines 27-37



34 Ibid, pg. 36, lines 17-20

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with the Chief Technical Officer (Works), be less than the height

appropriate to the voltage and situations as indicated below.

System voltage between

the line conductors

Over

roads

Ft.

Other than over

roads

Ft.

In positions

inaccessible to

vehicular traffic

Ft.

Not exceeding 11,000

volts

20 17 15

Exceeding 11,000 volts

but not exceeding 66,000

volts

- 20 16

Exceeding 66,000 volts

but not exceeding

132,000 volts

22 22 18

Exceeding 132,000 volts 23 23 19

[72] “Wiring for Light and Power” was published by T&TEC, which includes the

requirements, standards and general information regarding a supply of electricity. At

paragraph 8.6, it is stated as follows:

“The overhead service conductors shall be connected to the building at

a minimum height of 3.7 metres above finished grade level, or at such a

greater height as is necessary to maintain a minimum height of 6.1

metres for clearance of the Commission’s overheard service line over

roads.”

[73] SM Jaleel has alleged that T&TEC failed to install the electrical wire running from

the electricity pole to Mr. Lett’s property according to the regulated heights of

installation. Therefore, SM Jaleel has to prove its case to the Court. The burden is on

SM Jaleel to give evidence of the fact that T&TEC failed to comply with installing

of 41

the electrical wire at the regulated heights. There is no evidence before the Court

that the electrical wire running to Mr. Lett’s property was installed lower than the

regulated height. From its evidence, SM Jaleel has failed to satisfy the Court on a

balance of probabilities that T&TEC was negligent when it installed the electrical

wire running from the electricity pole to Mr. Lett’s property. SM Jaleel ought to

have adduced sufficient evidence in establishing its case against T&TEC. The Court

has to rely on proof and not presumptions that the electrical wire was installed lower

than the regulated height because it came into contact with SM Jaleel’s truck.

Issue 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?

[74] Having already determined that T&TEC owed a duty of care to SM Jaleel, again the

onus lies on SM Jaleel to prove that T&TEC breached its duty of care when it failed

to maintain the regulated height of the electrical wire so as to ensure the safe use of

the road by the public and/or SM Jaleel.

[75] Mr. Andall’s evidence was that he had been driving along the Old St. Joseph Road

every day for a year and a half before the incident35 and the electrical wire was never

a hindrance to him36. However, the first time he saw the electrical wire on the date of

the incident was when he saw the sparks at the back of the truck37. Thus, it can be

safely concluded that the electrical wire was not lower than the regulated height

since Mr. Andall was not able to see it while driving on the road that day.

[76] Moreover, as concluded above, SM Jaleel was unable to establish what the regulated

height of installation of the electrical wire ought to be. Similarly, SM Jaleel was

unable to prove to the Court the height of the electrical wire running to Mr. Lett’s

property prior to the incident, or more importantly, on the date of the incident. Mr.

Reid’s evidence was that he would not be able to say what the height of the electrical

35 NOE dated 23 June 2016, pg. 11, lines 42-45

36 Ibid, pg. 12, lines 10-12

37 Ibid, pg. 14, lines 25-30

of 41

wire was prior to the date of the incident nor on the date of the incident because he

only visited the scene after he gave his witness statement.

[77] In this regard, the Court finds that SM Jaleel has failed to satisfy the Court, on a

balance of probabilities, that negligence can be attributed to T&TEC. SM Jaleel was

unable to establish that the electrical wire running from the electricity pole to Mr.

Lett’s property fell below the regulated height and that T&TEC was negligent in

failing to maintain the regulated height.

Issue 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 and/or the Defendant?

[78] The Court of Appeal in Ramsaran & ors v Sandy & anor38 described public

nuisance as follows:

“Public nuisance is a criminal offence, but it may also constitute a civil

action at common law by the Attorney-General either ex officio or ex

relatione. However, a private individual may bring an action in tort for

damages and/or an injunction. Such private individual must show that he

or she suffered substantial damage peculiar to himself, beyond that

suffered by the rest of the public who use the public road: see

Winterbottom v Lord Derby (1867) L.R. 2 Ch. 316. In that case, the

plaintiff could not maintain an action in public nuisance for obstructing

a public way. He suffered no pecuniary damage. The only damage

peculiar to him was being delayed on several occasions in passing along

the way, and being compelled to take an alternative route or remove the

obstruction. The same point is made in Benjamin v Storr (1874) L.R. 9

C.P 400 where Brett J at p. 407 said that the damage to be proved must

be “particular, direct and substantial”.”

[79] According to Clerk & Lindsell on Torts, 21st Edition, a private nuisance may be

and usually is caused by a person doing, on his own land, something, which he is

38 Civil Appeal No. 55 of 2003

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lawfully entitled to do. However, his conduct only becomes a nuisance when the

consequences of his acts are not confined to his own land but extend to the land of

his neighbour by (1) causing an encroachment on his neighbour’s land, when it

closely resembles trespass; (2) causing physical damage to his neighbour’s land or

building or works or vegetation upon it; or (3) unduly interfering with his neighbour

in the comfortable and convenient enjoyment of his land.

[80] SM Jaleel did not identify the type of nuisance in its Ancillary Claim nor in its

written submissions. Nonetheless, the Court is of the view that the type of nuisance

applicable in the matter at bar would be public nuisance. In this regard, the onus lies

on SM Jaleel to prove that T&TEC’s conduct had caused ‘particular damage’ over

and above that suffered by the public.

[81] However, as stated above, SM Jaleel failed to establish that the electrical wire was

installed lower than or fell below the regulated height of installation. Consequently,

the issue of nuisance cannot arise since there is no proof that T&TEC had caused

any inconvenience to the road users.

Issue 7: Is the Ancillary Defendant liable to satisfy any judgment obtained against the

Ancillary Claimant?

[82] Having determined that (i) SM Jaleel’s driver was negligent when he collided with

the electrical wire running from the electricity pole to Mr Lett’s house; (ii)

T&TEC’s Defence to the Ancillary Claim complied with Part 10.5 of the CPR; (iii)

SM Jaleel has failed to establish that T&TEC was negligent when it installed the

electrical wire running from the electricity pole to Mr. Lett’s property; (iv) there is

no proof that T&TEC failed to maintain the said electrical wire at the regulated

height; and (v) there is no evidence that the said electrical wire created a nuisance to

road users, this Court is clear in its view that T&TEC is not liable to indemnify SM

Jaleel for any judgment that may be obtained against it. Consequently, the Ancillary

Claim ought to be dismissed with costs.

of 41

Issue 8: What is the quantum of damages recoverable by the Claimant, and from

whom?

[83] Mr. Lett’s claim is for cost of repairs and rewiring of the property situate at 147 Old

St. Joseph Road, Laventille and loss of rental income consequent on SM Jaleel’s

actions as outlined above. Generally, where property has been damaged, the normal

measure of damages is the amount by which its value has been diminished. In the

case of lands and buildings, the measure would be that which it would take to repair

the property bearing in mind the Latin maxim restitutio in integrum39. The guiding

principle of restitutio in integrum mandates that the sum of money to be paid as

compensation should be such as would put the wronged party in the same position as

he would have been in if he had not sustained the wrong for which he is now being

compensated: Livingstone v Rawyards Coal Co40.

[84] In British Coal Corporation v Gwent County Council41, Glidewell LJ said, “in

action in tort for damage to a building, the reasonable cost of reinstatement and

repair will normally be the proper basis for the assessment of damages.” The cost

of re-instatement is generally preferred provided (a) the claimant has restored, or

intended to and can restore, the land to its previous condition; and (b) the cost of so

doing is not entirely disproportionate or unreasonable: Lodge Holes Colliery Co. v

Wednesbury Corporation42.

[85] Counsel for SM Jaleel submitted that the loss of income is too remote and the onus

lies on Mr. Lett to prove his case, which includes which items of damage he may

properly recover. In respect of onus of proof as it relates to remoteness, Counsel

relied on the authority of Owners of Steamship Singleton Abbey v Owners of

Steamship Paludina43, which stated that the Plaintiff must show that a particular

39 CV2006-02256 Rasheed Ali v Super Industrial Services Limited v The Attorney General of Trinidad

and Tobago

40 (1880) 5 App Cas 25

41 (1995) Times, 18 July, CA

42 [1908] AC 323

43 [1927] AC 16

of 41

item of damage is not too remote before he can recover it. It was therefore contended

that the damage suffered by Mr. Lett was unforeseeable and too remote to be

recoverable; it was different from what was foreseeable and SM Jaleel is not liable

to pay that damage.

[86] Counsel for Mr. Lett, on the other hand, submitted that the sum of $115,400.00 has

been adequately proved since Mr. Lett produced receipts evidencing that he spent

that sum on repairs. Counsel further submitted that no issue arises with respect to

foreseeability since the sum represents what was spent to effect repairs caused by the

physical damage to the property. Counsel contended that as a result of the property

being without electricity for a protracted period because electrical work was being

done, the property could not be rented during that period. It was further contended

that re-wiring of the premises was only necessary because the Claimant was placed

in that position by the physical damage caused to the electrical wires and metre box

leading to the property.

[87] Counsel advanced that loss of income/rental consequent upon damage to a building,

which is being used to generate income, is foreseeable and not too remote. Further,

the particular sum, which Mr. Lett has claimed, is reasonable having regard to the

evidence. Counsel relied on the authority of Rust v Victoria Graving Dock Co44

and Ehmler v Hall45 where the principle that loss of rental income may be

recovered, where a Defendant’s negligence has caused damage to the property was

specified.

[88] It was submitted that in the matter at bar the loss of electricity was as a direct result

of the damage caused to the property by the Defendant’s negligence. Counsel

asserted that the change in the wire colour code had nothing to do with the

Defendant but was the result of statutory regulation. However, it is artificial to

suggest that this renders the damage in the form of loss of rental too remote. As Mr.

Lett used the property to generate rental income, the economic loss in the form of

rental, which Mr. Lett lost because of the time it took to return to a state of affairs

44 (1887) 36 Ch D 113

45 [1993] 1 EGLR 137

of 41

before the physical damage, is in principle recoverable. Counsel relied on the

authority of Network Rail Infrastructure Ltd v Conarken Group Ltd; Network

Rail Infrastructure Ltd v Farrell Transport46.

[89] The Court is mindful that Mr. Lett’s Claim was one that was essentially grounded in

special damages where he pleaded cost of repairs and rewiring of the house in the

sum of $21,800.00 and loss of rental income in the sum of $115,400.00. Thus, Mr.

Lett must provide sufficient evidence of his losses as pleaded. It is clear that to

justify an award of substantial damages, Mr. Lett must satisfy the Court both as to

the fact of the damage and to its amount.

[90] An issue which arose in cross-examination of Mr. Lett by Mr. Sagar, and which the

Court finds necessary to discuss is, whether the rewiring of the house ordered by the

Electrical Inspector and the loss of rental income were connected to the action of

SM Jaleel’s driver.

[91] Mr. Lett’s evidence is that because of the incident, a panel box and electrical meter

box connected to the property were damaged and there was no electricity supply.

Mr. Lett’s electrician gave him a description of what needed to be repaired to get an

electricity supply to the property. However, even though the repairs were done, the

electrician was not able to reconnect the wire to the electricity pole since that was on

T&TEC’s part. It is Mr. Lett’s evidence that he called T&TEC whereupon someone

visited the property and informed him that the property had to be re-inspected and an

inspection certificate presented to T&TEC before the electricity supply could be

reconnected.

[92] However, Mr. Reid, in cross-examination, stated that upon checking the

computerized system where troubleshooting reports are recorded, there was no

report on the system with respect to any incident in that area on 14 January 2010.

The Court notes that Mr. Reid did not attach the record to his witness statement to

reflect this piece of evidence.

46 [2012] 1 All ER (Comm) 692

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[93] Nevertheless, Mr. Lett hired an electrician to do the repairs and he was finished by

20 January 2010. Mr. Lett got an Electrical Inspector to inspect the property.

However, Mr. Lett was informed that there was a new code for electrical

installations and that the building had to be rewired. The inspector gave Mr. Lett a

document titled “New Electrical Colour Code of Trinidad and Tobago” which

states that the Amendment 1 (2007) of the Trinidad and Tobago Electrical Wiring

Code: Part 1: Low Voltage Installations (TTS 171: Part 1: 2002) is mandatory from

1 January 2008. This Amendment specifies the new colour code for the

identification of conductors in electrical installations. The document specified that

work commencing from 1 January 2008 will be required to comply with the new

colour code specified in the Amendment 1 (2007) and the old colours must not be

used.

[94] By the end of January 2010, Mr. Lett informed the tenants that they had to move out

because works to rewire the property had to be undertaken. Mr. Lett was able to get

the property rewired by August 2010. He stated that the property was inspected on

12 August 2010 and it was approved. After inspection of the property, Mr. Lett took

the certificates into T&TEC to apply for reconnection to the property. On 13

September 2010, the electricity supply to the property was reconnected.

[95] Mr. Lett, under cross-examination by Mr. Sagar, did not accept that the pulling

down of the wire by the truck and the rewiring of his property were not connected in

any way47. In response to the question, “so that you would agree with me…that

apart from the repairs that were done to the meter and the panel box, the wiring was

independent of those two repairs that were done?” Mr. Lett replied, “But to their

conclusion it was one repair that needed to be done. I couldn’t get the inspection

passed unless I do one or the other.”48 T&TEC told him that once the wires were

torn from the road, he had to be re-inspected to ensure that electricity could be

reconnected to the compound49.


48 Ibid, pg. 14, lines 22-28


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[96] From the evidence above, it is clear that SM Jaleel’s driver caused the electrical

meter box and the panel box to be damaged resulting in the disconnection of the

electricity supply to the property. However, it was the intervening act of T&TEC

that led to the property being rewired and Mr. Lett being without tenants. The

question, which thus arises, is whether SM Jaleel’s conduct caused Mr. Lett’s losses

and whether SM Jaleel is liable for all of the alleged losses.

[97] Consequently, this raises the issue of causation. According to McGregor on

Damages, 19th Edition at para 8-006, for the determination of whether a

defendant’s wrongful conduct is a cause in fact of the damage to a claimant, the test

is the so-called ‘but for’ test. The defendant’s wrongful conduct is a cause of the

claimant’s harm if such harm would not have occurred without it, ‘but for it’. The

Court is, therefore, of the opinion that the losses of repairs and rewiring and loss of

rental income sustained by Mr. Lett would not have occurred ‘but for’ the conduct of

SM Jaleel’s driver.

[98] The issue of rewiring of the property may be regarded as a lawful intervening act

following SM Jaleel’s act, which does not affect SM Jaleel’s liability. In the case of

HMS London50, the Claimant’s ship was taken into dry docks for repairs of damage

inflicted by the Defendant, and a dock workers’ strike, which was presumed to be

legal in the absence of any evidence to the contrary, delayed the repairs. The

Claimant recovered damages for the loss of the use of his ship during the additional

period of the strike. The Court held that the item, covering the loss of the use of the

vessel during the period of the strike, was properly allowed in accordance with the

principles of the common law. The loss flowed directly, naturally, and in the usual

or ordinary course of things from the proximate cause, namely, the negligence of the

defendants in bringing about a collision with the plaintiffs' vessel, and thereby

rendering it necessary to dry-dock her for the purpose of repair.

[99] In that regard, the Court finds that rewiring of the house and the loss of rental

income for the period while the house was being rewired are losses that flowed

directly, naturally and in the usual or ordinary course of things from the proximate

50 [1914] P. 72

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case. Though Mr. Lett had the electrical meter box and the panel box repaired, and

the property inspected for reconnection, it was revealed that there was a new

electrical code and he had to rewire the property. The negligence of SM Jaleel’s

driver resulted in the re-inspection of Mr. Lett’s property. In that regard, the costs of

repairs and rewiring of the house and the loss of rental income for the period while

the house was being rewired is recoverable and SM Jaleel is liable for these losses.

Mr. Lett has proven the first limb; he now has to prove the amount claimed.

Calculating Cost of Repairs and Rewiring of the House

[100] Mr. Lett has claimed $21,800.00 as cost of repairs and rewiring of the property. Mr.

Lett’s evidence is that the property had to be rewired and he incurred the following

expenses: $12,000.00 for labour, $515.00 for the inspectors, $15,439.26 on materials

and $515.00 for inspection. This, however, amounts to $28,469.26. This amount

contradicts $21,800.00 pleaded in his Amended Statement of Case.

[101] However, during cross-examination by Mr. Sagar, Mr. Lett maintained that when

the truck pulled down the electrical wire, that also caused his electrical metre box

to be torn from the wall which spread to inside because the panel box was behind

the same wall51. Mr. Lett testified that he repaired the panel box and meter box,

which took a matter of 2 weeks or so52. However, he later stated that the actual job

of repairing took about 3 days53. He maintained that when the property was

inspected, he was told that the property had to be rewired because there was a

change in the colour code of the wires54. Mr. Lett, in cross-examination, could not

remember the cost of the actual repairs done to the splitter box, which was

completed by his electrician over the 3-day period55. From this evidence, Mr. Lett

appeared to be inconsistent as to the length of time it took to repair the electrical

meter box and the panel box. Notwithstanding same, this does not affect the losses

incurred in this instant.

51 NOE dated 17 November 2015, pg. 8, lines 41-47 to pg. 9, lines 6



54 Ibid, pg. 10, lines 10-16

55 Ibid, pg. 16, lines 12-25

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[102] Mr. Sagar examined the receipts produced by Mr. Lett during cross-examination.

There were three receipts produced by Mr. Lett for electrical repairs done at the

property, namely (1) Receipt dated 20 January 2010 in the amount of $3,000.00

with a balance payment of $9,000.00; (2) Receipt dated 23 April 2010 in the

amount of $5,000.00 with a balance payment of $4,000.00; and (3) Receipt dated

25 July 2010 in the amount of $4,000.00 paid in full. Mr. Lett accepted in cross-

examination that the total amount of the receipts, $12,000.00, was for the entire

rewiring and repairs to the other parts of the property56. Based on the evidence

before this Court, I accepted the cost of labour for electrical repairs carried out at

the property as $12,000.00.

[103] Though Counsel for SM Jaleel did not examine nor challenge the receipts for

materials produced by Mr. Lett, the Court, nevertheless, examined the receipts

exhibited to his witness statement. There were 21 receipts produced identifying the

materials bought which totalled $12,082.66. However, the Court notes that this

amount is inconsistent with the amount given in Mr. Lett’s witness statement,

$15,439.26. In this regard, I accepted the cost of materials for the electrical repairs

carried out at the property as $12,082.66, which was the proven amount.

[104] Mr. Lett, in his witness statement, stated that he paid $515.00 for the inspector and

$515.00 on inspection. However, the receipts exhibited to his witness statement,

one dated 14 January 2010 in the sum of $65.00 and another dated 16 August 2010

in the sum of $450.00 totalled $515.00. Accordingly, the Court accepts the amount

of $515.00 as the price paid for inspection. The Court is of the opinion that this

amount of $515.00 is a duplication and ought to have been claimed only once.

[105] Consequently, the total amount likely to be awarded to Mr. Lett for the cost of

repairs and rewiring of the property is $24,597.66 ($12,000+$12,082.66+$515).

However, this was not the amount specifically pleaded by Mr. Lett. This amount is

$2,797.66 more than the sum pleaded. Nevertheless, this total sum was derived

from a calculation of the receipts exhibited to his Amended Statement of Case. It is

noted at paragraph 7 thereof that the Claimant pleaded his reliance on the bundle of


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receipts collectively marked as “B” as evidence of his claim for the cost of

repairing and rewiring his premises. Accordingly, the Court will award the sum of

$24,597.66 as the amount proved for the cost of repairing and rewiring the

premises.

Calculating Loss of Rental Income

[106] Mr. Lett further pleaded that as a result of the property being without electricity,

his tenants terminated their tenancies causing a loss of rental income of $11,700.00

per month for a period of eight months, January to September. At paragraph 4 of

Mr. Lett’s statement, he outlined the names of the tenants and monthly rents due as

follows:

− Melissa Rodriguez $1,300.00

− Dominic Uchenna $1,100.00

− Sunday Uchenna $1,000.00

− Tricia Vincent $1,400.00

− Afeisha Carpett $1,500.00

− Tyrone Sample $1,000.00

− Reaker Williams $1,600.00

− Hubert Humphrey $1,100.00

− Nathaniel Thomas $1,800.00

Total: $11,800.00

[107] The Court has examined the tenancies exhibited to the witness statement of Mr.

Lett and the Court accepts $11,800.00 as the monthly rental income of the

property.

[108] Mr. Lett was cross-examined by Mr. Sagar on the length of the works done by the

electrician. He was asked if the electrician worked between the period January to

April and he replied that the work was not done all at once57. Mr. Lett’s evidence

in cross-examination was that during the period January to April, the electrician

worked and was paid. However, he did not work every day. The reason being that,

“Well he work when I got money to buy the materials, I’ll call him in and tell him I

57 Ibid, pg. 18, lines 29-37

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get so and so and he will come”58. Mr. Lett testified that the electrician could have

worked a week or month between January to April59 and a month between April

and July60.

[109] Mr. Lett agreed with Mr. Sagar that the property would have remained vacant all

the rest of the time because he was trying to accumulate money61. He testified that

he spent a total of 2 months working on his property from January to September62.

He accepted and maintained that the repairs and rewiring of the property took 2

months63.

[110] Accordingly, based on the evidence before the Court, the reason why Mr. Lett

remained without tenants for the 8-month period was because of his failure to

accumulate all the monies needed to pay for the repairs and rewiring. The total

length of time to complete works during the 8-month period lasted for 2 months.

Therefore, it can be safely concluded that Mr. Lett’s lack of financial means

prolonged the length of time that the property remained without an electricity

supply and as a consequence, without any tenants.

[111] Whilst Mr. Lett’s impecuniosity was not pleaded or challenged, it should not be

ignored, as it is a factor to be considered within the contextual framework of each

individual case: Hughes v Deonarine64. Nevertheless, the determining factor must

be the question of what is reasonable in all the circumstances. In this regard, the

Court is of the view that it cannot be reasonable for Mr. Lett to claim loss of rental

income for the full 8-month period when actual works lasted only about 2 months,

the extra 6 months duration being a result of his lack of financial means.


59 Ibid, pg. 19, lines 11-27

60 Ibid, pg. 19, lines 30-44

61 Ibid, pg. 19, lines 45-47 to pg. 20, line 1


63 Ibid, pg. 20, lines 40-43

64 HCA S234 of 1998

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[112] Taking all of the circumstances into account, I find that Mr. Lett ought to be

awarded loss of rental income for a period of 3 months. This 3-month period

includes the month of January when he did not take rent from the tenants and the 2

months during January to July throughout which the electrician carried out the

electrical repairs on the property. Accordingly, the loss of rental income is

calculated as ($11,800 x 3) = $35,400.00.

[113] Accordingly, the damages awarded to Mr. Lett are as follows:

• Cost of repairs and rewiring $24,597.66

• Loss of rental income $35,400.00

Total $59,997.66

Claim for interest

[114] The Claimant, in his Claim, Amended Statement of Case and closing submissions,

has claimed interest on any sum awarded but has given no details of (i) the basis of

entitlement; (ii) the rate; and (iii) the period for which it is claimed, as provided for

by Part 8.5(3) of the CPR 1998. Nonetheless, having expressly claimed interest in

the Claim, I am minded to allow interest on the sum to be awarded at the rate of

2.5% per annum as recommended in the Court of Appeal decision in the case of

The Attorney General of Trinidad and Tobago v Fitzroy Brown et al, No. CA

251 of 2012.65 [See also the cases of Larry Baila v AG, CV2015-00249; and

Zalina Karim v Christopher Boodram v Motor One Ins. Co. Ltd CV2016-

00400]. Interest is to be allowed for a “reasonable period” only. In ascertaining

what is a “reasonable period”, I bear in mind that the Claimant’s attorney failed to

file his closing submissions on the date directed, that is, on the 23 September 2016,

and in fact only filed on the 25 July 2019, two months shy of 3 years in default.

From all perspectives, it will not be just for the Defendant to bear the burden of

paying interest for this period. Accordingly, this 3-year period shall be discounted

for the purposes of awarding interest. The reasonable period shall therefore be

calculated from the date of filing of the Claim, i.e. 13 January 2014 to the date of

Judgment, i.e. 10 July 2020, which works out to, roughly, 6 years. When the 3-year

65 Decision of Archie C.J. delivered on 12 October 2015 (see page 18 lines 25 – 32 of the official transcript)

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default period is subtracted, interest shall therefore be awarded for a period of 3

years, which calculates as follows: $59,997.66 × 2.5% × 3 = $4,499.82.

Award of Costs

[115] The Defendant has been unsuccessful in defending the Claim and has also been

unsuccessful in claiming an indemnity and/or contribution from the Ancillary

Defendant. I can find no justification for departing from the general rule relating to

the entitlement to costs provided for by Part 66.6(1) CPR 1998, which states that

the Court must order the unsuccessful party to pay the costs of the successful party.

Consequently, both the Claimant and the Ancillary Defendant will be entitled to

their costs, to be quantified on the prescribed scale of costs: CPR 67.5(1).

[116] In order to quantify costs on the prescribed scale, the “value” of the claim must

first be determined in accordance with Part 67.5(2) CPR 1998. In relation to the

Claimant, the value of the claim will be the amount ordered to be paid by the

Defendant as damages: CPR 67.5(2)(a). However, on the authority of the Privy

Council Appeal in Benoit Leriche v Francis Maurice [2008] UKPC 866 the

“amount ordered to be paid” by the Court for the purposes of determining the

“value” of the Claim, must include the amount ordered as pre-judgment interest.

Effectively, therefore, the value of the claim in relation to the Claimant would be

$59,997.66 + $4,499.82 = $64,497.78. Prescribed costs in accordance with the

Scale of Prescribed Costs at Appendix B of Part 67 CPR 1998 is quantified in the

sum of $16,900.00.

[117] In relation to the Ancillary Defendant, the value of the claim is determined by the

amount claimed by the Ancillary Claimant in the Ancillary Claim: CPR

67.5(2)(b)(i). Whilst the Ancillary Claim did not stipulate an amount, the claim

was for an indemnity against the Ancillary Defendant for any judgment awarded

against the Defendant/Ancillary Claimant. Effectively, therefore, the value of the

Ancillary Claim would be the amount ordered by the Court to be paid to the

Claimant by the Defendant, that is, damages ($59,997.66) + interest ($4,499.82) +

costs ($16,900.00) = $81,397.48. Had the Ancillary Claim been successful,

66 Per Lord Carswell at paragraph 18 of his Judgment

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Ancillary Claimant would have claimed an indemnity for that amount from the

Ancillary Defendant. Prescribed costs must therefore be calculated on $81,397.48,

which in accordance with Appendix B of Part 67 amounts to $20,280.00.

V. Disposition

[118] Given the analyses and findings above, the order of the Court is as follows:

ORDER:

1. Judgment be and is hereby awarded in favour of the Claimant on his Claim

against the Defendant on the issue of liability.

2. The Defendant shall pay to the Claimant damages in the sum of $59,997.66

with interest at the rate of 2.5% per annum for a period of 3 years

calculated in the sum of $4,499.82.

3. The Defendant shall also pay to the Claimant costs of the Claim quantified

on the prescribed scale of costs in the sum of $16, 900.00.

4. The Ancillary Claim filed on 2 June 2014 be and is hereby dismissed.

5. The Defendant/Ancillary Claimant shall pay to the Ancillary Defendant

costs of the Ancillary Claim quantified on the prescribed scale of costs in

the sum of $20,280.00.

6. There shall be a stay of execution of this order for 28 days.

___________________

Robin N. Mohammed

Judge

the republic of trinidad and tobago in the high court...

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