WATCHE v. FORBES
saCitation: TT 2003 CA 58
Title: WATCHE v. FORBES
Country: Trinidad and Tobago
Court: Court of Appeal
Suit No.: Magisterial Appeal No. 281 of 2003
Judge(s): Hamel-Smith, J.A.; Nelson, J.A.
Date: December 15, 2003
Subject: Practice and procedure
Subsubject: Compensation – Magistrate’s court – Appellant charged with offence of driving without due care and attention contrary to s.77(3) of the Summary Courts Act – Appellant made to pay compensation to respondent – Whether the compensation ordered by the magistrate was excessive – Court should refrain from making compensation orders – Victim should pursue his civil remedies – Orders for compensation quashed.
Mr. P. Godson-Phillip for the appellant.
Mr. R. Boodoosingh and Mr. R. Ramgoolam for the respondent.
HAMEL-SMITH, J.A.: This appeal raises an important issue: the power of a magistrate to order a defendant to pay compensation pursuant to section 77(3) of the Summary Courts Act, Ch. 4:20 (“the Act”).
The appellant was charged with the offence of driving motor vehicle PAS 3229 on the Eastern Main Road on July 7, 2001 without due care and attention, contrary to section (end of page 1) 72 of the Motor Vehicles and Road Traffic Act, Chap. 48:50. He pleaded not guilty but was convicted by the learned magistrate. He was fined $1,000.00 or in default 3 months imprisonment with hard labour. He was also ordered to pay compensation to (i) Ian Nash in the sum of $12,000.00 and (ii) Hollis Kent in the sum of $7,000.00. In default he would serve 6 weeks simple imprisonment. He was allowed 2 months in which to pay the penalties and compensation. He was further disqualified from being the holder of a driver’s permit for a period of three years.
He lodged an appeal against conviction but at the hearing of the appeal he withdrew that appeal and sought leave to appeal against sentence. Leave was granted and counsel contended on his behalf that the magistrate was wrong to award compensation to the virtual complainant and his witness because she did not have the material evidence upon which she could properly determine what was reasonable compensation in the circumstances of this case. He also contended that the disqualification imposed was unnecessary and/or excessive.
Section 77(3) of the Act states as follows:
“Subject to section 70, in every case where an order is made against the defendant, the Court may, in addition to the penalty or sentence of imprisonment, if any, imposed on the defendant, order him to pay to the complainant such costs, and also, subject to the provisions of any written law in that behalf to pay to the complainant or any other person such compensation as to the Court may seem just and reasonable; and such compensation shall be enforceable as a civil debt. This section shall not affect the procedure of the Court under any written law making express provision with respect to such compensation.”
Section 70, as far as it is relevant, provides that the Court shall take into account the means of the defendant before fixing any fine or other amount in addition to the fine. It is clear therefore that the imposition of any compensation must have some bearing on the means of the person against whom the order is to be made.
Accordingly, two issues arise for consideration. The first is whether the magistrate had any evidence of the defendant’s means and if there was such evidence, whether the compensation ordered was excessive.
As to the first issue, there was no evidence whatsoever pertaining to the means of the appellant. In the first place, there was no indication from the virtual complainant or his witness that either of them intended seeking an order for compensation from the appellant in the event that he was convicted. If he magistrate intended to do so nonetheless, it was incumbent upon her to enquire as to the means of the appellant, particularly in circumstances where he was ‘required to pay the compensation within two months. No evidence was led as to his means and the magistrate failed to make any enquiries in this regard. In those circumstances the order for compensation should not be allowed to stand. (end of page 2)
In any event, there was not a scintilla of evidence upon which the magistrate could have arrived at what ought to be a just and reasonable sum. The magistrate appears to have taken into account the nature of the offence and the injuries suffered in arriving at the quantum of the fine and compensation. The record discloses two medical reports. The first indicates that the virtual complainant suffered pain and moderate swelling to his upper jaw with a dislocation of two teeth and some pain and mild swelling to his right hand. The other shows that the witness suffered superficial abrasions to his forehead and soft tissue injury to his right hip. The medical services were provided at the hospital and there is nothing to suggest that there were any expenses involved. The injuries themselves were not serious injuries and, without more, did not warrant, by any standards, such a high award.
The provisions of the Act do not appear to be restrictive in any way but it seems to us that the machinery set out in the section for the payment of compensation is to provide a quick and simple way for dealing with a claim in simple cases where no great amount is at stake. Over the years, particularly in trespass cases or matters involving malicious damage where there is an element of criminality and where the question of insurance cover is generally absent, magistrates have awarded compensation to complainants where they have established some loss as a result of the commission of the offence. Generally, the loss is proved in the ordinary way, thereby permitting the magistrate the opportunity of arriving at a fair award after taking into account the means of the defendant. Since it is a matter of discretion however, the Court should hesitate to embark on any complicated investigation and leave the party to pursue his civil remedy. This, of course, is not to suggest that an order cannot be made where there is a civil remedy but the power is more usefully exercised in those simple straightforward cases rather than those that involve a complicated investigation.
Accordingly, we are of the view that in cases of this kind the Court should refrain from making a compensation order, leaving the victim to pursue his civil remedies. The magistrate seems to have overlooked the fact that the civil remedy for claiming damages still exists and the law requires mandatory insurance for all motor vehicles on the road. As was quite evident from the evidence of the appellant, he was covered by a comprehensive motor policy that would have taken care of any claim for damages, personal or otherwise. Further, unlike a plea of guilt, a finding of guilt by a magistrate to a charge of careless driving is not binding on a civil Court in an action in negligence for the same accident. In these circumstances, it is more prudent that the question of compensation be left to a civil Court for determination.
As regards the disqualification for a period of three years, we note that the section does not carry a mandatory disqualification on a first conviction for careless driving. Provision is made, however, for disqualification where there is a second conviction and for a period not less than a month. It is a matter of discretion therefore on the part of the magistrate whether to impose a period of disqualification or not, depending on the extent of the carelessness involved. The record of appeal does not disclose any previous convictions for any traffic offence on the part of the appellant and it seems that the (end of page 3) magistrate did not enquire as to his antecedents before making the disqualification order. We do take note however of the degree of carelessness on the part of the appellant in causing the collision and agree with the magistrate that it warranted a term of disqualification. We think however that a period of three years was in the circumstances of the case somewhat excessive. We would vary the term of disqualification therefore to one of six months.
Accordingly, the fines imposed will stand and the appellant will be disqualified from obtaining or holding a driving permit for a period of six months from today. The orders for compensation are quashed.
Dated December 15, 2003. (end of page 4)