Court name
Supreme Court of Turks and Caicos Islands
Case number
CL 22 of 2019

Everton Alexander v Damien Tape (CL 22 of 2019) [2022] TCASC 10 (06 May 2022);

Media neutral citation
[2022] TCASC 10
Case summary:

The Plaintiff pleaded that whilst cycling in Blue Hills, Providenciales, he was struck by a white Ford F150 truck, that was being driven by the Defendant. The Plaintiff said that he was thrown from his bicycle and suffered injury, loss, and damage. The Defendant denied that he caused the accident and asserted that he was “elsewhere on the island of Providenciales when the alleged accident happened if it happened at all.”

Headnote and holding:

The weight of the evidence on a balance of probabilities was simply against the Defendant being involved in the accident with the Plaintiff. The Court accepted the evidence of the Defendant and his Witnesses on his whereabouts at the time of the accident. The Plaintiff ’s case was therefore dismissed.

Coram
Simons QC, J

 

 

 

IN THE SUPREME COURT                                                                      

TURKS AND CAICOS ISLANDS

BETWEEN:

CL-22/2019

 

EVERTON ALEXANDER

Plaintiff

v.

 

DAMIEN TAPE

Defendant

 

________________________________

JUDGMENT

_________________________________

                                                                         

Before:                                           The Hon. Mr. Justice Carlos W. Simons OBE QC

 

Appearances:                              Dr. Finbar Grant of Grant & Associates for the Plaintiff

                                                          Mr Jahmal Missick of Bay Court for the Defendant

 

Hearing Dates:                            9 February 2022 and 3 March 2022 

Venue:                                            Court No. 5, Graceway Plaza, Providenciales

 

Date to be Delivered:               Friday, 6 May 2022 at 4:00 pm

 

Brief Facts

  1. The Plaintiff pleads that on 5 January 2018 whilst cycling in the vicinity of Glamour Girl Salon in Blue Hills, Providenciales he was struck by a white Ford F150 truck, Registration Number TC 10524 that was being driven by the Defendant. The Plaintiff  says that he was thrown from his bicycle and suffered injury, loss, and damage as pleaded. He prays against the Defendant general and special damages, interest, and costs.

 

  1. It is pleaded in the Statement of Claim that the vehicle in question was owned by Inter-Health Canada, the Defendant’s employer at the time and indeed Inter-Health Canada was initially joined as second Defendant in the action but had been removed by the time of the trial. The pleaded ownership of the vehicle is consistent with the evidence.

 

  1. In his defence the Defendant denies that he caused the accident, or the loss and damage alleged by the Plaintiff. He puts the Plaintiff  to strict proof as to the matters pleaded and asserts that in any event he was “elsewhere on the island of Providenciales when the alleged accident happened if it happened at all.”

The Evidence for the Plaintiff

  1. The Plaintiff ’s evidence derives from his Witness Statement and his viva voce evidence at the trial. Police Officer Kelly Louima also made a Witness Statement and gave evidence for the Plaintiff .

 

  1. The Plaintiff said that at about 8:00 pm on 5 January 2018 he had just finished work and was on his way home riding his bicycle when in the vicinity of Glamour Girl Salon he suddenly received a violent blow to the back and was thrown from the bicycle to the road surface. He said that lying on the ground he recognized the Defendant who exited a Ford F150 pickup truck under which his bicycle lay, “mashed up.” The Defendant he says, helped him up and said he would take him home. He also picked up the bicycle and placed it in the truck.

 

  1. The Plaintiff wanted to go to the hospital, but the Defendant insisted on taking him home, which is where he went. He did not visit the hospital until a few days later where he was admitted and spent four days. Whilst there, he saw the Defendant and had a conversation with him, but the Defendant denied the accident and he, the Plaintiff, called the Police and then reported the accident.

 

  1. A Police Officer came to the hospital, took the Plaintiff ’s Statement, and asked the Defendant to show him the truck he was driving. The Defendant took the Police to the truck, and the Officer noticed that there was a dent on the front.  He asked the Defendant to explain it and the Defendant could not. The Officer took pictures of the dent and those pictures we produced to the Court. I shall return to them presently.

 

  1. Officer Louima’s Witness Statement and his viva voce evidence was essentially a recitation of what he was told by the Plaintiff at the hospital some days after the event. Officer Louima did not attend at the scene of the accident and so his evidence is helpful only as regards the dents in the vehicle that he noticed and took pictures of. He also said that under questioning, the Defendant did not have an explanation for the dents in the vehicle and that the Defendant did not tell him that he, the Defendant was at his restaurant at the time of the accident, and he did not name anyone who could verify his whereabouts at the time of the accident.

The Evidence for the Defendant

  1. In his own Witness Statement, and consistent with his defence as filed, and in his viva voce evidence the Defendant is/was adamant that at the time of the alleged accident he was at his restaurant at Dennis Yard in Five Cays. The restaurant specialized in seafoods and Friday night fish-fry night and the busiest of the week. It usually started around 3:00 pm and finished around 11:00 pm.

 

  1. The day before the date of the Plaintiff ’s alleged accident, 4 January the Defendant says he had bought 280 lbs. of fish and 30 lbs. of conch which and his partner in the business Ricardo Forbes began cleaning and seasoning for the next day’s fish-fry. He was employed by Inter-Health Canada at the Hospital and was off from work on Friday but on call. He went to the restaurant around 3:00 pm to get everything ready in preparation for the night’s fish-fry as people would begin arriving around 4:00 pm It was a busy night and he had to clean more fish to keep up with the demand He was assisted in the night’s operation by Mr. Forbes.

 

  1. The restaurant closed around 12:00 pm and he did not leave the premises to go anywhere until well after that time. He said it was around 6:30 pm that he learned from Mr. Forbes, who had just heard it himself that the Defendant had been a road traffic accident. He had known the Defendant for some years, and they attended the same church. He considered him a friend.

 

  1. When the Plaintiff approached him some days later with the accusation that he (the Defendant) had knocked him down he (the Defendant) explained to the Plaintiff that the Plaintiff was mistaken – it could not have been him (the Defendant) as he (the Defendant) had been working at his restaurant all afternoon and night on the day in question.

 

  1. The Defendant’s evidence (alibi defence) is corroborated by Ricardo Forbes, his business partner in the restaurant. Mr. Forbes confirmed the Friday nights fish-fry and its popularity, the purchase of the seafood the previous day, the cleaning and the need to clean more fish to keep up with the demand. He said that at no point did the Defendant leave the restaurant until after the 12:00 pm closure. He learned of the accident via a phone call from one Michael Forbes around 6:30 pm and presumably told the Defendant. He said emphatically there is no way the Defendant could have been involved as they had been at restaurant all night and the Defendant did not leave.

 

  1. Mr. Chuck Misick also gave evidence for the Defendant. He said he was at the restaurant from around 5:00 pm until around 11:30 pm, except for a few minutes shortly after his initial arrival, and that the Defendant never left the premises. Mr. Misick was also employed by Inter-Health Canada at the time, and he confirmed that the markings on the Ford F150 truck had been made by his then Manager, one Kirt. He specifically remembered Kirt running into the gate by the hospital as he was offloading garbage that he had brought from home.

 

Discussion, Resolution and Decision

  1. It is for the Plaintiff in a civil matter to prove his case on a balance of probabilities and in my judgment the Plaintiff has not met this standard. The Defendant’s alibi defence is corroborated by two credible Witnesses who gave compelling evidence of the Defendant’s whereabouts at the time of the alleged accident, including a habitual attendance at a particular location, namely the Defendant’s restaurant on a Friday night.

 

  1. In addition, Mr. Misick was able to explain exactly how the markings came to be on the vehicle, and his explanation is consistent with the Defendant’s viva voce evidence when he said he told Officer Louima that the dents were there prior to his having possession of the vehicle.

 

  1. The Defendant admits that he did not offer the Police a full explanation of his whereabouts, but he was under no duty to do so and that should not be held against him. He also said in his viva voce evidence that he mis-spoke when he had said that he left the restaurant around 3:00 pm and returned around 4:00 pm. In any event the Plaintiff ’s evidence is that the accident occurred around 8:00 pm.

 

  1. Against these Witnesses and this evidence for the Defendant, the Court must weigh the evidence of the Plaintiff alone that it was the Defendant who collided with him and caused his injuries. In my judgment, the weight of the evidence on a balance of probabilities is simply against the Defendant being involved in the accident with the Plaintiff and I accept the evidence of the Defendant and his Witnesses on his whereabouts at the time of the accident. The Plaintiff ’s case is therefore dismissed.

Costs

  1. The Defendant shall have his costs of the action.

 

  1. The Court is most grateful for Counsels’ assistance and courtesies.

 

 

The Hon. Mr. Justice Carlos W. Simons OBE QC

Judge of The Supreme Court

6 May 2022