TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE …

TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Cv. No: 2010/0078

BETWEEN

MISTER BIG STUFF AUTO RENTALS LTD AND

SHERWIN LOPEZ

CLAIMANT DEFENDANT

BEFORE THE HONOURABLE MADAME JUSTICE DEAN-ARMORER

APPEARANCES Mr. Raphael, Attorney-at-Law for the Claimant. Mr. Moses, Attorney-at-Law for the Defendant.

JUDGMENT Introduction 1. In this action, the claimant seeks to recover damage for breach of a contract for the rental

of a motor vehicle. In the course of this judgment, the Court considered whether the claimant, as beneficial owner of the motor vehicle, lacked locus standi to institute the proceedings. The Court also considered the appropriate measure of damages due to the claimant. Procedural History 2. On the 21st May, 2010, the claimant instituted these proceedings seeking orders that the following payments be made by the defendant:

"1. The sum of one hundred and seventy-two thousand, three hundred and seventy-five dollars ($172,375.00)

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2. Interest on the said sum." 3. The defendant filed his defence on the 2nd December, 2010, together with a counterclaim

for damages for misrepresentation and/or deceit. On the 7th January, 2011, the claimant filed its reply and defence to counterclaim. Evidence 4. The Court heard the evidence of two (2) witnesses for the claimant, that is to say, Leroy Serries and Ezekiel Joseph, who testified in obedience to a witness summons. The Court also heard the evidence of the defendant himself as well as investigator, Ian Gilbert, both testifying in support of the defence. Facts 5. The claimant, Mister Big Stuff Auto Rentals Ltd was, at all material times, a limited liability company, engaged in the rental of motor vehicles. At all material times, the claimant's managing director was Mr. Leroy Serries. According to the uncontroverted evidence of Mr. Serries, Mister Big Stuff Auto Rental Ltd was part of a holding company, designated LR&J Investments Limited. 6. It was the claimant's case, supported by the evidence of Mr. Serries, that in 2009, the claimant had been the beneficial owner of a blue Corolla, which carried the registration number, PCK 4583 ("PCK 4538"). The registration card in respect of PCK 4583 was tendered into evidence and marked "L.S.8". This document shows ownership of PCK 4583 to be held by LR&J Investments Limited. Mr. Serries testified however, that the claimant, Mister Big Stuff Auto Rentals Ltd is the beneficial owner of PCK 4583.

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7. On the 15th April, 2009, the defendant signed an agreement with the claimant for the rental of PCK 4583. The terms of the agreement were contained in a standard form, intituled "Mister Big Stuff Auto Rentals Ltd Auto Rental Agreement"

8. On the front of the Auto Rental Agreement, the defendant inscribed his name and contact information as well as information as to the issue and expiry date of his driver's permit. The defendant also inscribed information concerning PCK 4583 including the respective dates when the vehicle was taken and when it was due to be returned as well as the daily rate of rental agreed at three hundred and seventy-five dollars ($375.00).

9. Overleaf, one finds the terms of the auto rental agreement. Of significance, is the first substantive term, under the heading "Who shall drive the car". "WHO SHALL DRIVE THE CAR ? The car shall be driven by the lessee or additional lessee who signs Page 1 of this agreement, both of whom shall be 25 years of age or over and both of whom shall at the time of rental be in possession of a valid driver's permit. No other person shall drive the car unless duly authorized by the lessor. The contract shall be in breach should any unauthorized person be driving the car."

10. Another term of the agreement provided: "DAMAGES TO CAR ? Lessee if at fault shall be liable for damages to vehicle. Liability not to exceed $10,000.00. Lessee shall immediately report any accident to the Law Enforcement agency having jurisdiction at the place of such accident and to lessor, and shall present any notices or other papers of any kind received regarding any claims or other legal proceedings of any kind relating to or involving the vehicle. Further lessee shall co-operate fully with

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lessor or its investigators in defending the same. The lessee shall not without written consent of the owner give or allow to be given any instruction for repairing of the vehicle (s) or for the replacement of parts rendered necessary to such accidents." 11. According to the agreement, the Lessor was Mister Big Stuff Auto Rentals Ltd and the Lessee as the party leasing or renting the vehicle, was the defendant. 12. The defendant contends that prior to signing the agreement, he indicated to Mr. Serries that PCK 4583 was being rented for his brother. The defendant admits however, that his brother never visited the claimant for the purpose of either signing the agreement or producing his driver's licence. 13. On 19th April, 2009, PCK 4583 was being driven by Earl Francisco Lopez, brother of the defendant. PCK 4583 collided with two (2) other vehicles and was damaged. The relevant report of the Maloney Police Post was attached to the witness statement of Mr. Serries and marked "L.S. 2". 14. The police report revealed that the accident involved three (3) motor vehicles: PAW 2008 and TCD 8370, and PCK 4583. According to the report no information had been provided by the driver of PCK 4583, suggesting that Mr. Earl Francisco Lopez had not accompanied the other drivers to the police station. 15. The resulting damage was investigated by COLFIRE, with whom PCK 4583 had been insured. COLFIRE accepted the recommendation of Motor Vehicle Adjuster, Ezekiel Joseph and treated the damage as a total loss. COLFIRE calculated the loss as one hundred and twenty-three thousand, nine hundred dollars ($123,900.00) and offered the claimant the sum of sixty-eight thousand dollars ($68,000.00) together with the salvaged vehicle,

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worth fifty-five thousand dollars ($55,000.00). COLFIRE required the claimant to present a valid driver's permit by the defendant's brother, Earl Francisco Lopez. The permit was never produced. 16. Accordingly, COLFIRE did not honour the claim and the claimant proceeded to repair the vehicle at its own cost. The claimant produced copies of two (2) receipts from Aranguez Auto Body Works for the sums of fifteen thousand dollars ($15,000.00) and eight thousand dollars ($8,000.00) respectively. The first receipt was dated the 20th October, 2009 and the second was dated the 12th December, 2009. The repairs which were done on both occasions were the same: "straightening the front and rear fender". 17. The defendant contended that he had requested and had obtained the permission of Mr. Serries to have his brother drive the vehicle. This was denied by the claimant. In resolving this issue of fact, it was my view that it fell to the defendant to prove his allegation that he had obtained the claimant's permission to have his brother drive the vehicle. The Court heard the evidence of the defendant as to a conversation with Mr. Serries. Mr. Serries denied that this conversation took place. The defendant failed to put this aspect of his case to Mr. Serries and has therefore failed to establish his allegations. 18. The defendant elicited the assistance of Ian Gilbert, who deposed that he was an investigator attached to Insurance Investigations Services Ltd. Mr. Gilbert interviewed Anand Ramlochan of Aranguez Auto Body Works, where PCK 4583 was being repaired. The defendant annexed to the witness summary of Mr. Gilbert, a virtually illegible handwritten statement of Anand Ramlochan. He sought to prove that PCK 4583 had not been severely damaged. The garage owner took no oath and did not submit to crossexamination. The attempt by Mr. Gilbert to introduce the unsworn statement of Mr.

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