[2014] UKPC 25

Privy Council Appeal No 0023 of 2013

JUDGMENT

TLM Company Limited (Appellant) v Bedasie and

another (Respondent)

From the Court of Appeal of the Republic of Trinidad

and Tobago
before

Lord Mance
Lord Kerr
Lord Sumption
Lord Reed
Sir David Lloyd Jones

JUDGMENT DELIVERED BY

Sir David Lloyd Jones

ON

29 July 2014

Heard on 26 June 2014

 Appellant Respondent
Hendrickson Senuath

(Instructed by Bankside (Instructed by Messrs

Commercial Ltd) Dipnarine Rampersad and
Co)

Respondent

(Instructed by Girwar and

Deonarine)

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SIR DAVID LLOYD JONES:

1. On 26 November 2005, Ryan Gary Bedasie was driving a motorcycle east along
Guapo Road, Fyzabad, Trinidad and Tobago, in the direction of Siparia. Leah George
was a passenger on the motorcycle. Trevor Bhagwansingh was driving a truck on the
same road in the opposite direction. The two vehicles collided. Ryan Bedasie was killed
in the accident and Leah George was seriously injured.

2. Lisa Bedasie, Ryan Bedasie's widow, brought proceedings against TLM

Company Limited ("TLM"), the owner of the truck, Trevor Bhagwansingh, its driver,
and New India Assurance Company (Trinidad and Tobago) Limited, the insurer of the
truck, alleging that the accident occurred as a result of Mr Bhagwansingh's negligence
in driving onto the wrong side of the road and colliding with the motorcycle in the
eastbound lane. The defendants alleged that the accident occurred as a result of Ryan
Bedasie negligently attempting to overtake a car when it was unsafe to do so and hitting
a hump in the road which threw the motorcycle up into the air and caused it to land on
the right front of the truck which was in its proper lane, the westbound lane.

3. Following a trial, on 17 December 2008 the Hon. Madam Judith Jones delivered
a judgment in which she found that the collision was caused by Trevor Bhagwansingh
driving into the wrong lane and colliding with Ryan Bedasie's motorcycle. Judgment
was entered for the Claimant against the Defendants.

4. TLM appealed to the Court of Appeal of Trinidad and Tobago, where it

attempted to challenge the findings of fact made by the trial judge. On 29 May 2012 the
Court of Appeal (Madam Justice of Appeal Soo Hon, Justice of Appeal Stollmeyer and
Justice of Appeal Smith) unanimously dismissed TLM's appeal. TLM now appeals to
their Lordships' Board seeking to advance the same challenges to the findings of fact of
the trial judge and complaining of the failure of the Court of Appeal to give more
detailed consideration to its submissions.

5. The appellant is faced with the concurrent judgments of two courts on issues
which are pure issues of fact and which are directly related to the final decisions of
those courts. The practice of this Board is to decline to review the evidence for a third
time, unless there are some special circumstances which would justify a departure from
this practice. In Devi v Roy [1946] A.C. 508 the Board reviewed its earlier decisions on
the point and restated its practice. It applies to all of the judicatures whose final tribunal
is the Board. It applies to the concurrent findings of fact of two courts and not to
concurrent findings of the judges who compose such courts. Accordingly a dissent or a
difference in reasons which brings judges to the same finding of fact does not obviate
the practice. The Board continued, at p 521:

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 "That, in order to obviate the practice, there must be some
miscarriage of justice or violation of some principle of law or
procedure. That miscarriage of justice means such a departure
from the rules which permeate all judicial procedure as to make
that which happened not in the proper sense of the word judicial
procedure at all. That the violation of some principle of law or
procedure must be such an erroneous proposition of law that if that
proposition be corrected the finding cannot stand; or it may be the
neglect of some principle of law or procedure, whose application
will have the same effect. The question whether there is evidence
on which the Courts could arrive at their finding is such a question
of law."

The Board went on to state that the question of admissibility of evidence is a proposition
of law, but it must be such as to affect materially the finding; the question of the value
of evidence is not a sufficient reason for departure from the practice. It stated that the
justifications for departure from the practice which it identified were illustrative only
and there may occur cases of such an unusual nature as will constrain the Board to
depart from the practice.

6. The appellant, in his Case, has made no attempt to address these stringent
requirements and has simply sought to advance a multiplicity of detailed complaints
against the findings made by the trial judge. When invited by the Board to identify any
considerations which might take the issues in the present appeal out of the scope of the
practice, Mr Hendrickson Seunath SC drew attention to a number of matters which he
submitted constituted exceptional circumstances. These may be addressed briefly.

7. First, Mr Seunath drew attention to the state of the evidence at trial relating to
the position of the collision in relation to a bridge in the vicinity and whether there was
a hump in the road at the western end of the bridge. He complained that the judge had
failed to make a finding as to the precise position at which the collision occurred and
submitted that the judge failed to give sufficient weight to the drawings of the location
and other evidence supportive of the existence of such a hump in the road. In her
judgment, the judge considered, on the basis of photographs which had been put in
evidence by consent, that the bridge was nothing more than an extension of the roadway
and was marked as a bridge only by the existence of railings on each side. This led her
to observe that it was little wonder that witnesses had difficulty in identifying the
position of the collision by reference to the bridge. She was entitled to conclude that the
precise position of the collision in relation to the bridge did not need to be determined,
in particular in the light of her firm conclusion that the collision took place in the
eastbound lane into which the truck had crossed. Moreover, she found, and was entitled
to find, on the basis of the evidence of the photographs and the evidence of Leah George
that there was no hump but "at most a slight and gradual rise". The evidence of the plans

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to which we were referred does not contradict that and the photographs were not
produced before the Board.

8. Secondly, Mr Seunath complained of the failure of the judge to address in her

judgment the relevance of a piece of bone, alleged to be a part of the thigh bone of the
deceased, allegedly found lodged below the front windscreen of the truck. He submitted
that this evidence demonstrates that the collision occurred in the manner alleged by the
appellant. It is, however, unclear precisely what evidence there was in relation to this
aspect of the case. The respondent's submissions to the Court of Appeal state that this
issue was first raised by counsel for the appellant in submissions at the trial and that it
was not explored in any form of cross examination. In any event, the theory which Mr
Seunath sought to advance is pure speculation. There was no evidence at trial from an
accident reconstruction expert as to whether the presence of a piece of bone was more
likely to be consistent with the appellant's or the respondent's case. The judge was
entitled to attach no weight to this matter and was not required to address it in her
judgment.

9. Thirdly, complaint was made that the judge failed to conclude, on the basis of
the evidence of two witnesses, that the deceased was travelling at high speed and failed
to attach any significance to this matter. The judge did observe that there was "some
suggestion of speed on his part". However, she concluded that this could not have
contributed to the accident because, given the manner in which the collision occurred
and the vast difference in sizes between the two vehicles, the deceased would not have
been in a position to take evasive action. The judge was clearly entitled to conclude that
speed was not a contributory cause.

10. Fourthly, Mr. Seunath complained that the judge's reasons for rejecting the
evidence of Bridgnath Raghoobar, a witness called for the defence, were insufficient.
In fact the reasons given by the judge for her conclusion that he was not a credible
witness were detailed and comprehensive. The judge had the advantage of observing
him give his evidence and considered that neither his manner nor his demeanour
inspired confidence. He gave the impression that he had learned by heart what he had
come to say. In his witness statement he failed to disclose that Trevor Bhagwansingh
and his father were known to him. His explanation for not remaining at the scene of the
accident was considered incredible. These were all proper reasons for rejecting his
evidence.

11. Fifthly, Mr. Seunath complained that the judge failed to take account of the
evidence of the alcohol level in the deceased's blood. In fact the judge ruled this
evidence inadmissible and there has been no appeal against that ruling. This would
explain why it appears that the matter was not canvassed before the trial judge and only
oblique reference was made to it before the Court of Appeal.

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12. Finally, an attempt was made to challenge the finding that the collision occurred
because the truck entered the eastbound lane. Mr. Seunath submitted that of the two
witnesses who gave evidence to that effect, one, Leah George, placed the site of the
collision much further east (particularly by reference to a parked car from behind which
she said the truck had pulled out) than the other, Hesper Ali-Darsoo, who placed it at
the eastern end of the bridge. However, it is perfectly possible for a witness to be
mistaken as to one aspect of his or her evidence while being an accurate witness on
other matters. The judge was entitled to accept the clear evidence of these two witnesses
that the collision was in the eastbound lane which was, moreover, corroborated by the
evidence of the debris recorded in the police report.

13. None of these matters can possibly be considered as falling within the exceptions
to the practice stated in Devi v Roy. There is nothing here to suggest that there had been
any miscarriage of justice or violation of some principle of law or procedure in the sense
in which those terms are used in this context. There was, in each instance, ample
evidence on which the trial judge was entitled to arrive at her findings. Mr. Seunath's
submissions before us amounted to no more than an attempt to question the value of
certain evidence and to reargue issues of fact on which the appellant had lost at trial.
Considered individually or cumulatively, they do not disclose any reason for departing
from the stringent requirements of the Board's practice in this regard. Nor are there any
circumstances of such an unusual nature as could justify a departure from this practice.

14. The Court of Appeal in dismissing the appeal gave very brief reasons for its
decision in the ex tempore judgment of Stollmeyer JA, while reserving the right to
expand on those reasons should the need arise. Given the nature of the appeal and the
grounds relied on by the appellant this was not inappropriate. The Court of Appeal
rightly concentrated on what it considered to be the central issue, namely in which lane
the impact occurred, and concluded that the police report and the evidence of the
claimant's witnesses supported the conclusion that the truck was on the wrong side of
the road at the moment of impact. The Court of Appeal directed itself correctly as to the
applicable test by asking whether the trial judge was plainly wrong in making this
finding (Harracksingh v Attorney General of Trinidad and Tobago [2004] UKPC 3)
and came to a conclusion which was clearly open to it.

15. For these reasons the appeal will be dismissed.

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