BETWEEN
AND
VICTORIA
COUNTY COUNCIL AND THE
ATTORNEY
GENERAL OF TRINIDAD AND TOBAGO
RESPONDENTS
Panel:
R. Hamel-Smith, J.A.
J.
Permanand, J.A.
L.
Jones, J.A.
Appearances:
Mr. S. Parsad for the appellant
Ms. L. Noel for the respondent
Dated:
March 12, 2001
Delivered
by R. Hamel-Smith, J.A.
This is a claim by the appellant in negligence against the Victoria County Council. Briefly, the facts are that on the 18th of May 1989, the plaintiff's agent was driving his motor lorry, TAE 978 along the Cumuto South Trace Road. As he proceeded over the Cumuto bridge it collapsed and the motor lorry fell into the river below. As a result, the plaintiff suffered loss and damage.
In the Statement of Claim, in addition to alleging misfeasance on the part of the Council for failure to repair the bridge properly, it was alleged that the defendant had failed to take any adequate measures to warn persons using that road of the danger presented by the bridge. It was this latter issue upon which the outcome of the case eventually turned.
The defence was rather lengthy and contained evidence rather than facts. What is relevant is that the Council admitted that the bridge was in a state of disrepair but that it had carried out repairs to it between January and March. Rotten planks were replaced with new ones. It was discovered however that the runners below the planks were in a state of decay. This was not obvious to persons using the bridge. It was for this reason that the defendant took the decision to close off the bridge to vehicular traffic. It placed a "Road Closed" sign at the junction of the Cumuto Trace Road and Hamilton Road which junction was some 600 yards north of the bridge. This sign, it alleged, was to warn vehicular traffic that the road was closed because of the dangerous condition of the bridge. In the pleading the sign was described as "Road Closed" and full particulars of its size and letter colouring were given. In fact the particulars were as full as were conceivably possible for the ordinary competent pleader.
At the trial there was evidence from Mathura Bissessar for the plaintiff
that he lived just south of the bridge and that he was never aware that the
bridge was a danger to vehicles. In fact it would be a reasonable inference to
draw from his evidence having seen the new planks placed on the bridge between
January and May and the fact that the bridge itself was never closed off that
the bridge was passable. There would have been nothing to warn him that the
runners below were defective.
Bissessar owned a vehicle and the evidence was that he had crossed the bridge with it two or three times a day. In fact, the plaintiff's lorry had been hired by Bissessar to drop materials at his house. It was in the course of dropping a third load of gravel at his house, having traversed the bridge four times before, when the bridge collapsed and the lorry fell into the river. Bissessar said that there was no sign to warn motorists that the bridge was closed to traffic and he never saw any sign as alleged by the Council. That sign was north of his house (and bridge) and then some 600 yards away. It was not in issue that the bridge could not be seen from where the sign had been placed.
It was also the case of the Council that the bridge was open to pedestrian traffic. This is probably the reason why no barrier was placed across the bridge itself. It also admitted that it had not provided any alternative route while the bridge was closed as it was required to do under the relevant legislation.
The driver of the lorry alleged that he did not see any sign on the road as he approached the Bridge and that he had crossed the bridge that day with nothing to indicate that it was dangerous.
Mr.
Heru who was called by the defendant testified that when the decision was taken
to close the bridge he directed that one of the defendant's "road
closed" signs to be put up before the bridge. He in fact saw the sign after
it was erected. He then claimed that the sign read "Road Closed Danger
Bridge Ahead."
That
was contrary to the pleading but the trial judge allowed the evidence. Mr.
Ramnarine was next called but he said that on the day of the accident he saw a
"Road Closed" sign. He made no mention that the sign said, "Road
Closed Danger Bridge Ahead."
The Trial Judge having heard all the evidence, accepted that the council had placed a sign at the Junction, 600 feet before the bridge. He also accepted that the sign read "Road Closed, Dangerous Bridge Ahead." He held that that was sufficient and adequate notice or warning to motorists that they should not use that bridge. On that basis he dismissed the plaintiff's claim.
Mr.
Parsad for the appellant argued that given the pleadings and the evidence as a
whole the Judge was wrong to accept Heru's evidence in respect of the wording of
the sign. That finding was one of fact and generally an appellate
tribunal would not lightly interfere with such a finding. It may do so however
if the finding is not supported by the evidence or so unreasonable that it could
not be allowed to stand.
I
find it difficult to dislodge the judge's finding that there was a sign some 600
yards from the bridge. I find it equally difficult to uphold his finding with
respect to the wording of the sign.
I think the trial judge failed to have regard for the meticulous way in which the defence described the sign. The particulars were so complete that any reasonably competent attorney would not have considered it necessary to seek any further particulars of the sign. The pleader had distinctly stated that a "Road Closed " sign had been erected and proceeded to describe in detail the size and colouring of the lettering. It would be reasonable to assume that had such a request been made at the time the Council's attorney would have referred him to the pleading'. At least on the pleading therefore it seems that the case for the defendant was that a sign saying "Road closed" had been erected.
In
the course of the cross-examination of the witnesses for the plaintiff it was
put to them that they had failed to see the "Road Closed" sign. It was
never put otherwise or as Mr. Heru suggested. When the Council's case was
opened, however, Mr. Heru in giving evidence in-chief, said that he had given
instructions that a "Road Closed" sign be erected at the corner of
Hamilton Trace. He said : "I gave the
instructions to my consultant Foreman. The instructions were to place one of
our "Road Closed" signs
at the corner of Hamilton Trace and Cumuto Trace."
This would have conveyed the distinct impression that it was one of their
regular "Road Closed" signs that had been used. In the ordinary use of
language, a "Road Closed" sign would not be expected to include the
words "Dangerous Bridge
Ahead". It was only later in
his evidence that he extended the wording of the sign to include the words
“Dangerous Bridge Ahead.” I would think that was a serious breach of the
pleading itself and inconsistent with what had been specifically put to the
plaintiff's witnesses.
While
no objection was made at the time, counsel did cross-examine Mr. Heru, putting
to him that the sign never contained those additional words. Ironically, when
Mr. Ramnarine gave evidence for the defendant, no mention was made of the
additional words. The sign, as far as he was concerned, simply was a "Road
Closed" sign. At least he was consistent with the pleading and
cross-examination of the plaintiff's witnesses.
I
think that on a balance, the Judge should have held the defendant to its
pleading, given the particularity resorted to and the evidence itself, and
found, if anything at all, that the sign was simply a sign that said
"Road Closed." It
was unfair to the plaintiff that the defendant could be allowed some seven years
after the pleading was delivered to extend the wording of the sign contrary to
its pleading and to what was put to him in cross-examination. The sign as
pleaded was consistent with the instructions Heru said he had given to use one
of their regular “road closed” signs and Ramnarine's evidence.
It
seems to me that the trial judge failed to fully analysed the evidence and the
pleadings before finding that the sign was otherwise than what had been pleaded.
I would therefore reverse the trial Judge's finding of fact and hold that
the sign simply stated "Road Closed."
That
is not the end of the case because the Council maintained and the judge agreed
that there was a sign that closed the road to traffic. The Trial Judge obviously
dismissed the claim on the basis that the sign in its 'extended' form, was
adequate. One could not find fault with that finding. He did not have to
consider the facts with a sign in the original form. He made no finding on this
and it is up to this court to make such a finding, drawing the necessary
inferences from the evidence. The issue for resolution therefore would be
whether a simple "Road Closed" sign placed where it was, was adequate
for the specific purpose.
Attorney
for the Council did submit that the word 'bridge' is really an extension of a
'road' under the Highway's Act Ch 48:01 sec 2(1) and once the road was closed
that included the bridge. By section 39(1) she argued that whenever a highway
became dangerous or any works or repairs were being carried out the authority
may direct that vehicular traffic on the highway shall cease or that the highway
be closed. Accordingly, having erected a Road Closed sign it had discharged its
duty.
I
do not accept that the statutory duty in this case is complied with by the
simple erection of the 'Road Closed' sign. One could argue by extension that a
notice to that effect in the Gazette only was sufficient notice to the public.
The danger still existed and more so when the council allowed pedestrian traffic
to use the bridge without any warning sign on the bridge itself. The sign had to
bear some relationship to the danger, given the peculiar circumstances of this
case.
Mr.
Ramnarine, who himself is an engineer with the Council, did admit in
cross-examination that as an engineer, he would have placed the sign closer to
the bridge so that "people could see it."
I take that to mean 'see the
obvious danger and realize it was the bridge that was the danger to motorist.’
He further conceded: "I would
take into account if the sign was too far away that people could join the road
and go towards the bridge and place themselves in danger." By this he
obviously meant that it was possible to miss the sign depending from the
direction one was coming and still not be aware of the real danger.
The
concession, to my mind, was an admission on his part that (i) the sign itself
was not in a proper place and (ii) that the real danger lay with the bridge and
not the road per se. The interpretation and application of the Act is not in
doubt. The Council may close the road and vehicular traffic must cease using
that road. If someone uses the road then he does it at his own risk. That is
probably true and if the sign actually stated "Road Closed - Dangerous
Bridge ahead" the measures might have been adequate. But, the limited sign
put up ignores the special facts of this case. The bridge had recently been
repaired and from all appearances it was in a state of good repair. Pedestrians
were allowed to traverse it and Bissessar himself drove his vehicle over it
daily. To the villagers living just beyond the bridge there was nothing to
suggest that the bridge was inherently dangerous. No one was told not to
use it and pedestrians were in fact encouraged to do so in any event. More so,
the Council did not provide an alternative route.
Since the real danger lay with the bridge, the Council had a duty to road users to close it, either by erecting a barrier across it or placing a "Bridge Closed" sign immediately in front of it. That would have addressed the real danger. To submit that closing the road a quarter mile away satisfied the statutory requirements was to ignore the real danger that had to be guarded against. By placing the sign so far away, it failed to take into account that a motorist could miss the sign and with nothing to indicate the real danger ahead, proceed over the bridge.
In
those circumstances, on a balance of probabilities, the trial Judge should have
found that the sign, inadequate as it was, was placed too far away from the real
danger and, in spite of the sign, the Council was negligent in not taking the
simple precaution of closing the bridge itself to vehicular traffic.
This does not mean that the plaintiff's driver was free of all blame. For whatever reason he did not heed the sign that was obviously there. It may be that he was not keeping a proper lookout at the time. He did not in his own interest take reasonable care for himself and therefore contributed by this want of care to his own injury. He must therefore accept some blame for the loss that occurred and I would think that in terms of percentages, that blame should be put at 25%. The Council will therefore be liable for 75% of the appellant's loss. The Council will pay 75% of the appellant's costs both here and in the court below. Unless the parties can agree the special damages, the matter will be referred to a Master for assessment. If damages are awarded, the costs there will be apportioned the same way.
R.
Hamel-Smith
Justice of Appeal
J.
Permanand
Justice of Appeal
L.
Jones
Justice of Appeal
| Home |