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Friday, 29 May 2020

The Illegality Defence


Q:
If I am right in a vehicular accident, but didn’t realise that my insurance policy had lapsed, can I sue the other driver for damages?


A:
Ex turpi causa non oritur actio ("from a dishonorable cause, an action does not arise") is a brocard (legal Latin terminology) that refers to the fact that no action may be founded on illegal or immoral conduct. 


Driving with insurance is illegal, contrary to the Motor Vehicles Insurance
3. (1) Subject to this Act, it shall not be lawful for any person to use, or to cause or permit any other person to use, a motor vehicle or licensed trailer on a public road unless there is in force in relation to the user of the motor vehicle or licensed trailer by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Act.

(2) If a person acts in contravention of this section, he is liable to a fine of seven thousand, five hundred dollars and to imprisonment for two years, and a person convicted of an offence under this section shall (unless the Court for special reasons thinks fit to order otherwise and without prejudice to the power of the Court to order a longer period of disqualification) be disqualified for holding or obtaining a driving permit under the Motor Vehicles and Road Traffic Act for a period of three years from the date of the conviction.

As a result, if the defendant relies on this defence, your claim will be unsuccessful because had you not acted illegally by driving without insurance, the accident would not have occurred.  

Monday, 25 May 2020

Consumer rights: no return, no refund


Q:
Is a "No Refund" or "All Sales Final" store policy legal in Trinidad & Tobago?


A:
  • *Section 15(1) - Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description
  • *Section 16(2) Where the seller sells goods in the course of a business, there is an implied condition that the goods supplied under the contract are of merchantable quality, except:
    • (a) as regards defects specifically drawn to the buyer’s attention before the contract is made; or
    • (b) if the buyer examines the goods before the contract is made, as regards defects which that examination ought to reveal.
  • *Section 20(d)(ii) - A time frame should be given for returns, but if there is none, the customer has a right to return within a "reasonable time".

  • *Section 8(1)(a) - a seller cannot contractually exclude or restrict liability for defective goods, and/or
    • (b) negligence of a person concerned in the manufacture or distribution (e.g., delivery drivers) of the goods


Sunday, 24 May 2020

Presumption of Innocence

Q:

I was charged with a relatively serious offence; can you help me prove my innocence? 

A:

If you’ve only been charged with an offence, it is NOT your job to prove your innocence.

 In early legal times, this rule was expressed as a brocard (a legal principle written in Latin): ei incumbit probatio qui dicit, non qui negat — proof lies on him who asserts, not on him who denies.

 Now, in a contemporary English legal system, the ‘presumption of innocence’ or the fact that a defendant is ‘innocent until proven guilty’ is a legal principle that places the entire burden of establishing guilt beyond a reasonable doubt on the prosecution/state/government.

 If guilt has seemingly been established due to circumstantial evidence like “consciousness of guilt” or direct evidence like CCTV footage, only then will you and your legal team have to dispute what has been presented and “prove your innocence”.