Edrick Greene v Ferosa Sookdeo and Others
|Lord Brown of Eaton-under-Heywood
|14 July 2009
| UKPC 31
|Appeal No 64 of 2008
|14 July 2009
 UKPC 31
Present at the hearing:-
Lord Brown of Eaton-under-Heywood
Sir Jonathan Parker
[Delivered by Lord Brown of Eaton-under-Heywood]
About 6 am in the morning on 23 May 2002 a calamitous accident occurred on the Valencia stretch of the Sangre Grande-Port of Spain Eastern Main Road in Trinidad. A ten ton Nissan dump truck ("the truck") being driven eastwards by Errol Hassanali ("the truck driver") collided with a maxi-taxi ("the taxi") being driven westwards by Ian Charles ("the taxi driver") causing it devastating damage. The truck weighed 22,400lbs, some seven times the weight of the taxi. There were eleven passengers in the taxi including the appellant, Edrick Greene, many of them seriously injured in the collision, one of whom later died of his injuries.
In March 2004 Mr Greene duly brought an action claiming damages for personal injuries and consequential loss against the owner of the taxi (the first respondent), the truck driver (the third respondent) and (as is said to be the practice in Trinidad and Tobago) their respective insurers (the second and fourth respondents). The claim alleged negligence against both drivers (the taxi owner being, of course, vicariously liable for any negligence on the part of his driver). It was agreed that liability should be determined as a preliminary issue in the action and it was agreed also that this determination would govern the claims of all those who had been injured in the collision.
On 29 April 2005, having heard evidence and submissions on a number of earlier dates, Tiwary-Reddy J gave an oral decision holding the truck driver 75% to blame for the collision, the taxi driver 25% to blame. Some fifteen months later, on 18 July 2006, the learned judge gave written reasons for her decision. The taxi owner and her insurers appealed against the finding of blame on the taxi driver's part and on 31 January 2008 the Court of Appeal (Warner, John and Weekes JJA) allowed their appeal, holding the truck driver to be wholly liable for the collision. Mr Greene now appeals to the Board by leave of the Court of Appeal.
On the face of things it should not matter to Mr Greene one way or the other which of the two drivers was to blame for this accident or in what proportion. Alas, however, it matters greatly. The truck driver's insurers have proved to be insolvent and, unless Mr Greene's appeal succeeds, none of the injured passengers (nor the deceased passenger's dependants) will recover any damages in respect of their claims. If, of course, the taxi driver is held to blame in any degree, they will recover in full from the owner's insurers.
With those introductory paragraphs their Lordships turn in a little more detail to the circumstances of this accident and the evidence given with regard to it.
The Valencia stretch is a long, straight length of single-carriageway road, asphalt-surfaced to a width of 5.8m (some 19 feet) and bordered (at any rate on the southern, westbound, side) by a flat verge (or shoulder) some 108 feet wide. The road is subject to a 50 mph speed limit. West of the point of collision the road inclines upwards for westbound traffic (the taxi's direction of travel) to a crest some hundred yards ahead. (Westbound drivers are warned of the approaching crest by a "Danger Ahead" traffic sign although in the event this formed no part of the danger facing the taxi driver here.) As the vehicles approached the point of collision the truck was travelling downhill, the taxi moving towards the uphill gradient. It was raining and the road surface was wet.
As the truck approached, it passed another vehicle or vehicles parked or stationary on its nearside and, in doing so, moved across the centre line of the road and into the westbound lane. Had this been a controlled overtaking it seems plain that, whilst inevitably it involved the truck's movement directly into the path of the oncoming taxi, the taxi would have passed safely by. The taxi driver, having seen the truck moving into his lane, "tipped" his brakes and drove onto his nearside verge (not, it would appear from the photographs, an uncommon event). Tragically, however, the truck's manoeuvre was far from controlled. Rather the truck went into an uncontrollable skid which took it diagonally across the westbound carriageway and into violent collision with the taxi actually on the southern verge. The initial point of impact occurred some two or three feet onto the verge and was between the front nearside of the truck (which suffered comparatively little superficial damage although its nearside front wheel and suspension were moved back two feet) and the front of the taxi towards its offside. Because, however, of the truck's angle of approach (diagonally from the taxi's front offside), the impact tore across the front nearside of the taxi causing massive damage on that side.
After the accident an expert accident investigator (Mr Cupid) found both front tyres of the truck to be smooth. As he then stated in his report:
"The downward wet slope, coupled with smooth tyres would have presented difficulty for [the truck] to steer and slow down. Hydroplaning is a phenomenon that exists when depth of tyre grooves is insufficient to hold the layer of water across the tyre width, thereby diminishing the tyre/road surface interface. In other words, the tyre is floating in water. Additionally, the brake shoes could have been wet, making braking less effective. This phenomenon is known as 'Brake Fade'. It was reported that another vehicle stopped in front of the truck. It may well be that [the] truck driver in an attempt to slow down or stop behind that vehicle, discovered that braking was ineffective, at which time he swerved to the right to avoid hitting the parked vehicle."
Mr Cupid was later to say in evidence (record pp165-166):
"This was a ten-ton truck. When the road is wet a good tyre would hold the water in the thread grooves. If the grooves are too shallow the tyre becomes like a boat. The water is not squeezed out through the grooves but rather the interface between the road and the tyre is lost so that the tyres are riding on the water. The result is that in an emergency situation it would be difficult if evasive action is required through steering for the driver to steer/control the vehicle. Having regard to the state of the road and of the front tyres I cannot tell you what would be a safe speed in those circumstances. Certainly a speed of 50mph or 80 kph would be too fast in an emergency...
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