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 without insurance is illegal, contrary to the Motor Vehicles Insurance

(Third-Party Risks) Act 1933, as amended:

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.  

Consumer rights: no return, no refund

Q:

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

A:

Sale of Goods Act 1895, as amended:

• *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".

 Unfair Contract Terms Act 1985:

• *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

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”.

 

 

Adoption of children in Trinidad & Tobago

Q:

What is the procedure for adopting a child in Trinidad and Tobago?

A:

The Children’s Authority of Trinidad and Tobago is the only organisation that can legally provide adoption services. Adoptions are open to both nationals and non-nationals [s. 38]; all of which is governed by the Adoption of Children Act 2000, as amended:

s. 9(1) No person other than the Authority shall make arrangements for the adoption of a child.

s. 9 (2) Any other person who attempts to arrange for the adoption of children is liable on summary conviction to a fine of ten thousand dollars or to imprisonment for two years.

 

There are two types of adoptions available in T&T; open and closed.

• Open adoption is where biological parents are active in the adoption process. Names and contact information are shared both ways with the potential adoptive parent, but the level of contact between parties would depend on what the potential adoptive parent(s) is(are) willing to accommodate. This level of contact sometimes continues after the adoption is finalised.
• A closed adoption is where neither the adopter nor the birthparents know each other, nor do they ever meet. Most times no information is shared and is kept sealed by the Court.

 

Step #1

If interested in becoming an adoptive parent, an ‘expression of interest’ should be submitted to the Children’s Authority’s headquarters located at #35A Wrightson Road, Port of Spain, via email at adoption (at) ttchildren.org, or via telephone 627-0748 or 623-7555.

 

Step #2

After ‘expression of interest’ is acknowledged, the applicant will be subjected to a screening process, inclusive of questions pertaining - but not limited- to marital status, date of birth/age, ethnicity, sex, employment, financial status, educational background, physical health, mental health, criminal history, etc. Also explored would be the reason for wanting to become an adoptive parent.

 

This information would guide what type of application best suits the applicant’s situation; whether it’s a single or married couple (the law currently only recognises heterosexual married couples). A single application can be made by both females and males, and does not discriminate against single male applicants.

 

Step #3

Once the preliminary assessment is satisfied, the potential adoptive parent would then undergo a comprehensive psychosocial assessment which includes home visits and background checks on all members of the household. This assessment leads to a comprehensive report prepared to be submitted to the Adoption Committee within the Authority, who would give the approval for the applicant to be a Prospective Adoptive Parent (PAP) and placed on the adoption list. Once approval is granted, the applicant attends mandatory training provided by the Authority, which covers in-depth information on the adoption process, caring for children with special needs, caring for children who were abused, etc.

 

Step #4

After the training, PAPs are then put through the matching process, which is based on the PAP's strengths identified in the previous assessments. The PAPs gives a description of the type of child they require inclusive of age, sex, ethnicity, skin colour, religious backgrounds, types of behaviours PAPs can deal with, etc. The PAP's requirements are then matched with the children who have been freed for adoption by the court [s.15]. If there is a match, the PAP would then be briefed on the child’s history.

Step #5

Once both parties agree, a first interaction experience is done. This is the first time the PAPs would meet the potential adoptee. The adoption process is an extremely emotional one so PAPs are reminded that even though they may have seen pictures of the child, the child has no prior knowledge of the PAPs. The adoptee’s reaction to the PAPs is very uncertain and may go either way. After this first encounter, both parties are debriefed, whereby there are discussions on emotions felt during the session, especially the child’s reaction to the PAP [s. 22].

 

Step #6

Once all parties are satisfied with the process thus far then the PAPs are granted a probationary period by the Adoption Committee. This temporary placement (probationary period) can last up to six (6) months [s. 12(1) and 19(1)], but varies depending on the details of the case. Once the probationary period is successful, an application is then made to the Court endorsed by the Children’s Authority of Trinidad and Tobago. The Court has the final decision on all adoptions. Once the application satisfies the court a final decision is made [s. 18 and 25]. After the adoption is finalised, the Children’s Authority continues to monitor and evaluate the placement to ensure that the placement continues to meet the needs of the child and or children.

 

Coronavirus Layoffs or Retrenchment?

Q:

If I cannot afford to pay salaries as a result of declining revenue because of government restrictions on the operation of my business due to the outbreak of the novel coronavirus (COVID-19) pandemic, should I retrench my employees?

 A:

If you absolutely cannot afford to continue paying employees, I would not recommend a retrenchment if your intention is to temporarily suspend operations until restrictions are lifted.

I’ll begin with my recommendation of a “temporary layoff” and support it with a quote by one of the most respected past presidents of the Industrial Court - His Honour Mr. Addison Masefield Khan - from page 5 of a 1991 TIWU v Consolidated Appliances Limited judgement:

“The practice of a temporary lay-off is well recognised in industrial relations practice. A temporary layoff is a remedy which may be utilised by an employer to obtain relief where circumstances beyond his control warrant its implementation. It is a right which an employer may use only when the circumstances demand it. It must not be abused or be as a result of a whimsical decision. It must be required by the circumstances, which must be beyond the control of the employer and not of his own making.”

Most importantly for an employer suffering from significantly reduced revenue, with a “temporary layoff” there is no legal obligation for an employer to pay employees during the period, however, with retrenchment, severance payments must made to retrenched employees within a certain period.

In addition to that and a few other reasons, I would not recommend retrenchment mainly because it is governed by the Retrenchment and Severance Benefits Act 1985, which means that there are strict legal obligations that must be followed. For example:

Section 4(1) – if five (5) or more employees are being retrenched, each employee, the Minister of Labour and the recognised majority union (if there is one) must be given written notice that includes:

·         Names and position

·         Length of service and current salary

·         Reasons for redundancy

·         Proposed date of termination

·         Criteria used for selection of workers to be retrenched

Section 6 - minimum 45 days’ notice (only for 5 or more)… or payment in lieu of the notice period.

Section 18(3) – employees must be paid for their years of service.

• Employees paid daily, weekly & fortnightly must be paid two (2) weeks’ wages per year for 1 - 4 years’ service and then three (3) weeks’ wages per year for service of 5 years and more
• 
  
• Employees paid monthly must receive 1/2 month’s salary per year for 1 – 4 years’ service and then 3/4 month’s salary per year for service of 5 years and over

Section 22 - stipulates that severance payments must be made no later than thirty (30) days after the last day of the notice period mentioned in section 6.

Section 25(1)(a) - A person who contravenes the provisions of this Act is guilty of an industrial relations offence within the meaning of the Industrial Relations Act and liable—

(a) in the case of an employer, to a fine of ten thousand dollars; 

Now that you have all the information, the choice is yours.