Sainchand v Deonarine
| Jurisdiction | Guyana |
| Judge | George, C. J.,Fung-a-Fatt, J.A.,Luckhoo, J.A. |
| Judgment Date | 28 June 1985 |
| Neutral Citation | GY 1985 CA 6 |
| Docket Number | No. 61 of 1983 |
| Court | Court of Appeal (Guyana) |
| Date | 28 June 1985 |
Court of Appeal
George, C.; Luckhoo, J.A.; Fung-a-Fatt, J.A
No. 61 of 1983
E. A. Luckhoo for the appellant.
R. A. McKay, S.C. and D. C. Jagan for the respondent.
Damages - Personal injury — Appeal against decision of High Court judge granting damages for negligent driving to the respondent — Appellant conceded his negligence but contended that there was full accord and satisfaction with respect to the respondent's personal injuries and attendant losses as the respondent had accepted payment from his insurance company — Respondent had claimed undue influence — Actions of insurers in having the respondent sign the claim did amount to undue influence and their actions offend against conscience — Appeal dismissed and judgment of Court below varied to read $36,235.00 instead of $14,000.
This appeal raises quite interesting legal issues. It arises out of the decision of a judge of the High Court in favour of the respondent in an action for damages for negligent driving by the appellant. The appellant conceded his negligence but contended that as regards the respondent's personal injuries and the attendant losses there was full accord and satisfaction. More particularly he pleaded that the respondent had accepted a sum of $5,000.00 (five thousand dollars) from his insurance company, the Guyana and Trinidad Mutual Fire Insurance Co. Ltd (G.T.M.) as full compensation and had given them a complete discharge. The respondent in his reply pleaded inter alia that the discharge “was obtained in unfair circumstances, or alternatively by undue influence or pressure of the “appellant(s) insurers”. No particulars were given in support of these several contentions but the evidence in support was led without objection.
But perhaps I should commence by relating those facts which the trial judge believed and accepted to be true and which in so far as they go have not been challenged before us. The accident occurred on the 6th March, 1978, on the Ruimzight Public Road, West Coast, Demerara, and involved a tractor which was owned and driven by the respondent and a motor-car that was owned and driven by the appellant. As a result of this accident the respondent suffered personal injuries and his tractor was damaged. He was admitted a patient in the Georgetown Hospital in a semi-comatose state and bleeding from his right ear. He regained full consciousness some six days later, and X-rays were made of his head. He was discharged on the 28th March but in August he became unconscious after dismounting from a tractor and was hospitalised for two weeks. Then in January, 1979, he had a further period of hospitalisation for seven days after he had fallen down whilst playing a game of dominoes. On both these occasions his head was further X-rayed. He has since been attending regularly at the hospital's out-patients' clinic for treatment and was still under medical care whilst the trial was going on. He is now deaf in his right ear and claimed to be suffering from dizziness, headaches, an impaired sense of balance, noises in the head and a partial loss of his sense of taste and smell. He also said that vision in his right eye has been adversely affected but the trial judge did not accept this portion of his evidence. The defendant did not himself give evidence and the only witnesses to testify on his behalf were three employees of G.T.M.
It turned out that both vehicles were insured with the G.T.M. but the policies of insurance only covered third party risks. Originally the respondent had had a comprehensive policy but this was changed by the G.T.M. to one covering only third-party risks in December, 1977.
On the day after his discharge from the hospital on the 28th March an employee of the G.T.M., George Young, visited him at his home. Young reminded him that he had not returned the claim form which from the company's records, had been sent to him. The respondent replied by explaining that he had been hospitalised since the date of the accident and had only been discharged the previous day.
On the 6th April, Young returned to the respondent's home accompanied by two other employees of G.T.M., one a mechanic and the other a photographer. The respondent was not present. The party inspected the damaged tractor which was in the respondent's yard and made notes and took photographs. Three days later the respondent took the claim form to the heads office of the G.T.M. There, in the presence of George Young he signed his name and dated the document. Young also took the opportunity to take a statement from him as to the manner in which the accident occurred.
On either the 20th or 21st April by which time the G.T.M. had in their possession a medical certificate concerning his injuries, the respondent was again seen at the insurance company's head office. He was accompanied by two women. This time he was referred to the Assistant Claims Manager who in turn contacted the General Manager. The latter of offered the respondent a sum of $3,500.00 (three thousand five hundred dollars) in full settlement for the personal injuries suffered by him. The respondent refused this offer but the General Manager repeated it and the respondent promised to consider it and return. On the 26th April he returned accompanied by his wife, father and sister-in-law. The General Manager increased his offer to a $5,000.00 (five thousand dollars) and the respondent again responded that he would think it over. He and his family left and he returned the following day this time accompanied only by his wife and sister-in-law. He intimated his acceptance of the offer and a discharge was prepared. The discharge was in the form of a printed document in which were inserted detailed particulars such as the names of the persons concerned and the amount agreed upon. These particulars ware inserted by Young on the instructions of the supervisor of the claims department. One of the members of the family asked whether the discharge was intended to be in satisfaction for both personal injuries and damages to the tractor. Young replied that it was only in respect of the former. He then gave the discharge to the respondent who in turn handed it to his sister-in-law. She appeared to read it and then said it is all right. She returned it to the respondent who signed it and cancelled the revenue stamp that had been affixed. Young then made a note of the particulars of the respondent's identification card, and a cheque was prepared and was handed to the respondent. The discharge reads as follows:
“Received from the Guyana and Trinidad Mutual Fire Insurance Company Ltd the sum of five thousand dollars in full settlement, satisfaction and discharge of any and all claims, demands, actions, suits, or causes of every description and of all loss, damages, costs, charges and expenses already suffered or which may hereafter be suffered or incurred by me as a result of an accident at Ruimzight Public Road, W.C.D., involving myself whilst driving 8668 and HZ 9789 driven and owned by Sainchand of Middlesex, Canal No. 2, West Bank Demerara who is insured with the abovementioned company under motor insurance policy No. M 78243 on the 6. 3.1978 and I hereby discharge Sainchand from any further liability in respect of the premises and I hereby acknowledge that this payment has been made to me by the company under reservation of any defence that the company or the assured may have in respect of any other claims that may arise as a result of the said occurrence and without any admission of liability on their part.
Witnesses:
Bhanmattie Narine
G. Young
Deonnarine
I.D. Card No.001658
Issued 27.2.28 in the name of Deonarine”
Although the discharge is comprehensive enough to include both damages for the respondent's personal injuries as well as to his tractor (including consequential loss of use) the parties are ad idem that its scope did not extend beyond the former.
As I have earlier observed the trial judge preferred and did accept the evidence of employees of the insurance company in preference to the respondent's evidence. But none of the company's employees explained how the company came to get possession of a medical certificate concerning the respondent's injuries. Accordingly the trial judge made no finding of fact in this regard. The uncontradicted evidence of the respondent on that issue was that one of four men who had visited him soon after his discharge from hospital had returned to him on the 2nd April and told him that the company had decided to settle the matter. On being asked the reason for this decision his reply was that the company were the respondent's insurers. This person then requested of the respondent that he obtain and take to their office a medical certificate as to his physical injuries. It was as a result of this request, the respondent said, that he went to the hospital the following day where he received the medical certificate which he took to the company. But none of those witnesses who gave evidence on behalf of the appellant, including the insurance company's assistant claims manager, appeared to have seen it. The assistant claims manager when shown the certificate in Court stated that he could not remember having ever seen it before. He however recognised certain pencilled notes on it which appeared to be in the handwriting of the company's general manager. It would be useful to set out the contents of the certificate which was admitted in evidence by consent. It is dated the 3rd April, 1978, and reads as follows:
“Medical Report on Mr. Deonarine, 40 years, of “B” Crane, West Coast, Demerara.
Clinical Resume.
This patient was admitted to the Georgetown Public hospital on the 6th March, 1978, at 9.55 p.m. to Ward A2, allegedly following a vehicular accident, in a semi-conscious condition. He had sustained abrasions to the head and face with...
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