Rago v. Ragoonath (Trinidad and Tobago) [2003] UKPC 29 (10 April 2003)
ADVANCE COPY

	Privy Council Appeal No. 58 of 2001

Martin Rago	Appellant
	v.
Indra Ragoonath	Respondent

	FROM

THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO
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	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 10th April 2003
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	Present at the hearing:-
			Lord Hoffmann
Lord Hope of Craighead
Lord Hobhouse of Woodborough
Lord Scott of Foscote
Lord Walker of Gestingthorpe
		  	[Delivered by Lord Walker of Gestingthorpe]
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1. 	On 13 February 1986, at about 3.15 pm, there was a road traffic accident at the intersection of Rousseau Street and Cross Street in Sangre Grande.  Rousseau Street runs north-south and Cross Street runs east-west.  The appellant was driving his Hino truck (a substantial vehicle about eight feet wide and eight feet high) along Cross Street, heading east.  He may have been driving home, as he lived in Cross Street, to the east of the intersection. Mr Norace Dass was driving a Mazda car (the property of his “common law” wife, the respondent) along Rousseau Street, heading north. He was going to pick up his son from the Hindu school in Rousseau Street, some way north of the intersection.  It was a dry, clear afternoon.

2. 	The intersection was uncontrolled, that is to say there was no notice or road marking giving a driver on one street priority over a driver on the other street.  In Trinidad the rule is that at an uncontrolled crossing whichever vehicle enters the intersection first has right of way.

3. 	The vehicles were in collision at the intersection.  The two drivers’ accounts of the reasons for the collision, given at trial more than ten years later, were strikingly different.  But there was little dispute about its outcome.  The appellant’s truck ended up stationary, still facing east, at or about the eastern edge of the intersection.  The right-hand side of its front bumper was twisted so that it pointed forward from the vehicle but otherwise the truck was undamaged.

4. 	The car ended up in the yard of the property at the north-east corner of the intersection.  This property was a garage belonging to Mr Rasheed Mohammed.  Mr Mohammed was a friend of the appellant and was (apart from Mr Dass and the appellant) the only witness who gave evidence at the trial.  Before coming to rest the car span round and hit a tree.  (The witnesses did not agree as to the sequence of these events).  It also crossed a drainage ditch at the edge of Mr Mohammed’s property. (Mr Dass’s evidence was that the car ended up hanging over the ditch).

5. 	The car was extensively damaged, but it was not a write-off. The repairs cost a little over $10,000 in materials and labour, and the parts which had to be replaced included the left front door, the left rear door, the rear bumper, and the left-hand tail lamp assembly.  The summary at the end of the report by loss adjusters acting for the respondent’s insurers stated:
“This vehicle sustained a heavy impact to the right [which appears to be an unaccountable error for ‘left’] broadside as can be seen in the attached photograph [not in the record]. Irreparable damage was done to the components listed [these include those mentioned above, and many other smaller parts].  The impact must have caused the vehicle to strike another object on the right and front.”

6. 	Neither driver sustained any significant injury, although Mr Dass was understandably shaken.  According to his evidence he climbed out of the passenger window on his own.  The evidence of the appellant and Mr Mohammed was that they assisted Mr Dass to get out of the car.
7. 	The police were informed of the accident and attended the scene shortly afterwards.  They made some measurements (which may be the source of the measurements on a claim investigator’s report which, like the loss adjuster’s report, was admitted in evidence by consent).  Neither driver was prosecuted.

8. 	The appellant’s evidence was that he did not claim on his insurance because the cost of repairs to his front bumper ($500) was less than the amount of the excess on his policy.  But on 31 May 1988 the respondent commenced proceedings against him, claiming special damages of nearly $12,000.  The appellant then counterclaimed for $950.  Each side relied on particulars of negligence in standard form.

9. 	The trial before Bereaux J began with a day’s hearing on 8 December 1997.  There were further hearings on 17 December 1997 and 12 January 1998, when the judge dismissed the claim and gave judgment for the appellant on the counterclaim.  On 30 October 1998 the judge gave full written reasons for his judgment.

10. 	The issue which the judge had to decide was, as he observed at an early stage in his judgment, entirely one of fact.  It was not possible that each side was telling the truth.  Mr Dass, the only witness for the respondent, said that he came to a complete stop at the intersection, because it was uncontrolled and because there were school children crossing the road.  His evidence about the collision (as recorded in the judge’s notes) was as follows:
“I waited a few seconds until I got a break from the flow of children.  While I was waiting there I saw [the appellant’s truck] approaching from the left at the intersection.  When I got the break from the flow of children I proceeded slowly across the intersection.  I proceeded slowly because there were school children about, who were unpredictable and who might attempt to pass.  The truck was about 150 feet away approaching the intersection.  Looking left along the intersection I could see about 300 feet – 400 feet.  I was travelling at about 5 m.p.h.  I was proceeding very slowly. As I was proceeding across, I felt an impact on the left of my vehicle.  The car spun around and was thrown across a drain and into a yard on the right side of the road.  The impact was to the rear of my vehicle on the left side.”

11. 	The appellant’s evidence gave a very different account:
“Yes, something happened as I reached the intersection at Cross and Rousseau Streets.  I stopped.  I watched left and right and left again and I started proceeding in the intersection very slowly.  I observed no motor-vehicle whatsoever.  As I was proceeding slowly on reaching about midway on the intersection I saw a flash like – I observed it was a vehicle.  I came to stop immediately.  This vehicle hit the front portion of my right side bumper.  The bumper turned outwards in front of truck.  The vehicle ran into a yard on my left side, spun around in the yard, facing back in the direction in which it came.”

12. 	The appellant’s evidence was supported by that of Mr Mohammed.  He was not at his garage property, but working in a small garden diagonally across the intersection from the garage – that is, at the south-west corner of the intersection.  This was his evidence:
“I was in the garden cleaning around a Caraille patch.  That is when I saw the Defendant.  When I saw him he was at the intersection.  When I saw him, he was seated in his truck, which was at a standstill at the intersection.  I remember the registration. No the truck. [T]AF 2529. He stayed approximately 55 seconds almost a minute – there were children crossing while proceeding approximately to 8 feet across the intersection.  I saw this white mazda 626 PAL 2064, Driver of the motor car was driving approximately 30-35 m.p.h.  He hit the right front bumper of the truck – TAF 2529.  The left front fender of the Mazda 626, the whole left side hit the bumper and the car ran off the road.  When it ran off the road, it bounced down a Croton tree about 5-7 feet tall.  It had some thick branches.  The car spin, hit the tree the direction it was coming from.  I left my garden and ran to the Driver’s (of the car) rescue.”

13. 	In his judgment the judge carried out his duty of assessing the oral evidence which he had heard.  He said of Mr Dass (in fact he said “the plaintiff” but this was obviously a slip) that his demeanour under cross-examination was anything but convincing, especially when the appellant’s version of events was put to him.

14. 	The judge formed a wholly different view of the appellant and Mr Mohammed.  He stated that the appellant was subjected to rigorous cross-examination, but that:
“The longer the cross-examination went on, the more truthful he appeared.  His answers were given with a lucidity and vividness of recall.”

The judge specifically rejected the suggestion that the appellant and Mr Mohammed had got together to concoct a false story.  He accepted the appellant’s explanation of why he did not inform his insurers of the accident, and did not tell them that Mr Mohammed was available as an eye-witness.  The judge said of Mr Mohammed:
“Mr Mohammed is a simple, unsophisticated and unpretentious man. Although somewhat exuberant and excitable, that exuberance was a function of his personality, rather than any manifestation of untruthfulness or chicanery, and did not detract from his evidence, which in so far as it related to the accident, never varied despite spirited challenge from Mr Persad.”

15. 	The judge accepted the evidence of the appellant and Mr Mohammed, not only because he regarded them as witnesses of truth, but also because their evidence was more consistent with the undisputed facts, in particular the positions in which the two vehicles came to rest and the damage to the vehicles.  If the truck had hit the rear of the car at anything like the speed alleged by the respondent, the car would have sustained worse damage (and its driver might have been severely injured).  The damage to the vehicles was much more consistent with the car having scraped its left side along the truck’s bumper (while the damage to the front and right side of the car confirmed the evidence, given by Mr Mohammed alone, about the impact with the croton tree).  The distance covered by the car before it came to rest (as compared with the truck’s very short stopping distance) was consistent with the appellant’s version of events but inconsistent with the respondent’s version.

16. 	The judge concluded that Mr Dass was entirely at fault.  His judgment was clear, careful and thorough.  It is therefore a matter of some surprise that on 18 December 2000 the Court of Appeal (de la Bastide CJ, Permanand and Jones JJA) unanimously allowed an appeal from the judge’s order, substituting an order that the respondent should recover two-thirds of agreed damages of $10,740, and that the appellant should recover one-third of his counterclaim for $950.  The appellant now appeals from that order. The respondent has not appeared on the appeal.
17. 	It is unnecessary for their Lordships to refer to the very well known authorities cautioning appellate tribunals against interfering with findings of primary fact made by a trial judge who has had the advantage of seeing and hearing the witnesses.  The Court of Appeal must have had those principles well in mind, and de la Bastide CJ (which whom the other members of the court agreed) made at least a passing reference to them in his judgment.  How then did the Court of Appeal reach the conclusion that it should overrule the clear findings of fact made by Bereaux J?

18. 	The judgment of de la Bastide CJ put forward three main reasons.  First, the judge was criticised for treating his acceptance of the evidence of the appellant and Mr Mohammed as determinative of liability.  Second, the damage to the car (strongly suggesting that it was hit from the side by the front of the truck) was an indication that it was ahead of the truck in crossing the intersection.  Third (and as a development of the first point) the appellant must have been negligent, if for no other reason, in failing to observe the car until a moment before the collision.

19. 	Their Lordships cannot accept that these points provide a sufficient basis for overturning the judge’s careful assessment of the oral evidence.  This is not a case where the trial judge can be shown to have wasted his advantage in seeing and hearing the witnesses, or to have overlooked or misunderstood some important item of evidence.  He was faced with two totally conflicting versions of the facts, and he had to decide which witnesses were telling the truth.  He did so, relying not only on their demeanour but also on largely undisputed facts as to the damage to the vehicles and their positions after the accident.  Subject to what is said below about contributory negligence, the acceptance of the evidence of the appellant and Mr Mohammed was for practical purposes determinative of the case.

20. 	In their Lordships’ view the Court of Appeal was wrong to suppose that the damage to the vehicles supported the respondent’s case rather than the appellant’s.  The judge’s inferences on these matters (summarised in para 15 above) are to be preferred.  As Mr Stancliffe pointed out in his excellent written and oral submissions, the Court of Appeal (in drawing an inference from the car being hit broadside-on) must have been accepting or assuming that the two vehicles entered the intersection at approximately equal speeds. But one thing that all the witnesses agreed on was that one vehicle was going much faster than the other.
21. 	Although contributory negligence was an issue on the pleadings it was not really an issue at trial.  The Court of Appeal attached too much importance to the appellant’s ready acceptance (in chief and in a short passage of cross-examination) that he did not see the car until just before the collision.  Once he had decided that it was safe to move off across the intersection he may well have been more concerned about the school children who were in the vicinity.  There was no proper evidential basis for the Court of Appeal to substitute its own findings of negligence and contributory negligence against the appellant.

22. 	Their Lordships will therefore allow the appeal with costs (before the Board and in the Court of Appeal) and restore the order of Bereaux J.