Samaroo et Al v Jagdeo
| Jurisdiction | Guyana |
| Judge | R. H Luckhoo, J.A. |
| Judgment Date | 16 December 1982 |
| Neutral Citation | GY 1982 CA 21 |
| Docket Number | No. 3 of 1980 |
| Court | Court of Appeal (Guyana) |
| Date | 16 December 1982 |
Court of Appeal
Luckhoo, J.A.; Gonsalves-Sabola, J.A.; Massiah, J.A
No. 3 of 1980
B. O. Adams, S.C., F. Ramprashad, S.C., with him, for appellants.
R. H. McKay, S.C., D. Jagan with him, for respondent.
Damages - Personal injury — Quantum — Appeal against decision of trial judge awarding damages to respondent as a result of motor vehicular accident which resulted in the death of her husband — Sufficient evidence to prove negligence on the part of appellant — No finding of contributory negligence — Award of damages not excessive and appellants have not demonstrated to the contrary — Appeal dismissed with costs.
The respondent succeeded in her claims for damages against both appellants jointly and severally under the Accidental Deaths and Workmen's Injuries (Compensation) Act, Cap. 99:05, and under the Law Reform (Miscellaneous Provisions) Act, Cap. 6:02, following upon the death of her husband, 47 years old, caused, as she alleged by the negligent driving of a motor-tractor owned by the second-named appellant and driven by the first-named appellant at Burma Road, East Coast, Demerara, on 13 th February, 1975. The order of court fully sets out the quantum and apportionment of awards to the respondent and her children. It is from the judgment of the court that this appeal has been brought.
Four grounds appeal were argued on behalf of the appellants, namely: (1) that there was no proof by the respondent of negligence on the part of Samaroo; (2) alternatively, that the deceased was guilty of contributory negligence; (3) that there was no proof, or no sufficient proof, by the respondent that Samaroo was driving the tractor at the time of the accident as servant or agent of Harricharran; (4) that the award of damages was excessive. Before arguments commenced learned counsel sought leave of the court to have the record of proceedings corrected on the ground that much of the evidence of a material nature given under cross-examination by Mr. Ramprashad of the respondent's sole witness, Satram Rajkumar, on the issue of negligence was not recorded by the trial judge. Learned counsel for the respondent contended in reply that the full evidence given under cross- examination was recorded, and that, at any rate, the proper procedure for correction of the record was not followed. I would rule again the appellants’ application. The correct procedure has not been followed, in fact nothing at all was done on the part of the appellants to have the alleged defective record put right before the appeal was called for hearing. [See The State v. Ricardo Solomon, Cr. App. No. 60 of 1978, The State v. George Alves, Cr. App. No. 35 of 1980.] Where it is shown that the record of proceedings is incomplete and proper steps have been taken to have it corrected this court has the power to determine the appeal upon any other evidence or statement of what occurred before the trial judge as the court may deem sufficient.
The learned, judge has fully recapitulated, in his judgment the evidence adduced on both sides as it affected the issues of negligence and vicarious liability. That can be found at pages 42 to 50 of the record, and I find it unnecessary to restate and to discuss the respective merits of the case for the respondent and that for the appellants. It suffices to give briefly the two versions as to how the incident occurred. Satram Rajkumar, called as a witness for the respondent, said that he and Samaroo were employed on 13 th February, 1975, to work at Harricharran's rice field, and that they did so. Samaroo was the driver of tractor No. 6870, to which was fitted cage wheels that projected at the sides. The tractor pulled a trailer 7 feet wide and 15 feet long. On his way home from work later that day seated on the tractor as it travelled along Burma road in a northerly direction, Rajkumar saw the deceased come out on to the road and ride his bicycle in the same direction on the western side of the road about 4 feet or 5 feet from the western edge. As the tractor was about 10 rods south of the deceased the latter went nearer the western parapet, about 3 feet from it. When the tractor reached the deceased, Rajkumar said something to the driver and then looked back at some of the occupants. He heard the sound of an impact and looked in the direction from which the sound had come. He then saw the cage wheel of the tractor “pick up the bicycle and throw it on to the western parapet. The deceased was also picked up by the cage wheel and thrown at the back of the tractor.”
There was no dispute that the width of Burma road where the accident occurred was about 2 rods, and that there were no other vehicles on the road at the material time. Samaroo's version is set out in his own words in examination-in-chief:
“I saw the deceased Jagdeo Come out of his cow-pen with his bicycle. On the handle he had a hand-bag. He rode off going north in the same direction about 20 rods in front of me. I was travelling about 10 miles per hour and driving in the centre of the road. Jagdeo was riding on, the western side of the road and if he had kept straight course I would have passed him with a space of about five feet between us.
As I got near to him and about to pass him he turned around and overbalanced and his bicycle pedal hooked in the cage wheel. As he overbalanced he made a sudden dash to the eastern side of the road. I cannot say why the deceased dashed to the east. I stopped the tractor about one rod.”
Under cross-examination Samaroo said he was about 3 rods away from the deceased when the latter suddenly ‘dashed’ across to the east; that the deceased was riding about 4 feet from the western edge of the road. He was driving on the western half of the road about 5 feet from the western edge and he said he would have passed about 1 foot away from the deceased if they had both “continued straight”. He further said that the bicycle was facing north-east when the pedal got caught in the cage wheel. The front of the tractor had already passed the deceased when the latter swerved to the east. In re-examination Samaroo said that as he was about to overtake the deceased, the front of the tractor having already passed him, the deceased “dashed to the eastern side and he collided with the cage wheel at the back”.
The learned judge summed up his impressions of the two versions in this way:
“After a careful examination of all the evidence see I accepted and believed the evidence of the witness Satram Rajkumar. He impressed me by the manner in which he gave his evidence that he was speaking the truth.”
“I found … that the first-named defendant failed to keep a proper look-out and drove the said tractor too near the deceased riding on his cycle thereby hitting the deceased with the cage wheel of the tractor.
I did not accept the evidence that the deceased had swerved to the east after the front of the tractor had already passed him.”
With due respect to the careful analysis of the evidence made on behalf of the appellants I find myself unable to agree that there was no sufficient evidence of a positive nature on which the trial judge could reasonably have found in favour of the respondent on the issues of negligence and vicarious liability. So much has already been said and written on the approach that should be taken by an appellate court on grounds of appeal involving questions of fact that I need not refer to the numerous, well-known authorities cited from time to time. Mr. Adams urged that when one excluded completely the version given by Samaroo as to how the accident occurred, the learned judge having rejected his evidence to the effect that the deceased had swerved to the east after the front of the tractor had already passed him (as he travelled north in the same direction with the tractor) and that there was an impact between the bicycle and the sage wheel attached to the tractor, there was nothing left on the state of the evidence to indicate how the impact had taken place, and an inference adverse to the appellants should not have been drawn. It is true that disbelief of a version does not amount to a positive finding of the opposite of what is disbelieved. It was stressed that Rajkumar himself, who was seated on the tractor, was not looking ahead of him at the time the impact occurred between cycle and tractor. The question posed was why should the trial judge have come to the conclusion of no swerving or riding across by the deceased in the path of the tractor when the inference could just as easily have been drawn in support of a finding of swerving in the absence of credible eye-witness account of the actual impact. I need only say on this point that the learned judge drew the inference, which could reasonably have been drawn, from all the surrounding circumstances, that Samaroo “failed to keep a proper look-out and drove the tractor too near the deceased riding on his cycle thereby hitting the deceased with the cage wheel of the tractor.” That inference having been drawn, the burden rested on the appellants to convince this court at it was not one which should be reasonably drawn from the surrounding circumstances. In the discharge of this onus it was not sufficient for the appellants to show that other inferences might have been drawn. They must satisfy us that the inference for which they contended was the only reasonable inference which could be drawn from the evidence. This they have failed to do. I would, therefore, uphold the learned judge's findings on the issue of liability.
The respondent's evidence on the aspect of damages is set out in this way by the trial judge:
“My husband used to plant rice and rear cows. He used to give me $600 to $700 per month. I used to buy food and clothing for myself, children and the deceased. I was not working and the younger children used to go...
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