IN THE HIGH COURT OF JUSTICE AND

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1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE S of 2003 BETWEEN RAKI RAMPERSAD Plaintiff AND TRINIDAD CONTRACTING LIMITED Defendant Before: Master Margaret Y Mohammed Appearances: Ms. S. Boodoosingh for the Plaintiff Mr. Farees Hosein instructed by Ms A. Orie for the Defendant. DECISION- ASSESSMENT OF DAMAGES 1. On November 22, 2000 the plaintiff was injured during the course of his employment when he attempted to remove some debris from a conveyor belt. He issued proceedings against the defendant under the Rules of the Supreme Court 1975 ( the RSC ) claiming damages, costs and interest. On December 15, 2007 before the Honourable Mr. Justice Shah the parties agreed that the defendant was 85% liable for the accident and the assessment of damages was referred to a Master. 2. The plaintiff claimed special and general damages for the injuries he sustained in his statement of claim. At the hearing of the assessment of damages the plaintiff gave Page 1 of 21

2 evidence and his witness statement filed on February 21, 2011 ( the witness statement ) was tendered into evidence as RR. 3. The plaintiff produced 4 medical reports from: (1) Dr. Francis Mulrain, Consultant Orthopedic Surgeon dated November 20, 2001 ( the first Mulrain report ) (2) Dr Francis Mulrain, dated June 26, 2002 ( the second Mulrain report ) (3) Mr. Neil C. Persad, Trauma and Orthopedic Surgeon dated February 15, 2003 ( the Neil Persad report ) (4) Dr. Ian Persad, Specialist Orthopaedic Surgeon dated December 10, 2007 ( the Ian Persad report ). The defendant produced a medical report of Dr Godfrey Araujo, Orthopaedic Surgeon undated but which stated that the plaintiff was examined on March 2, 2011 and for convenience I will use this as the date of the report ( the Araujo report ). 4. All reports were tendered into evidence by consent. The parties also agreed that the only medical practitioner to give evidence was Dr. Araujo. I will refer extensively to the information contained in all the reports since they captured the medical condition of the plaintiff from the date of the accident until March I will first deal with the claim for special damages. SPECIAL DAMAGES 5. The particulars pleaded in the statement of claim for special damages were : Particulars Amount $ Medical expenses 1,800 and continuing Loss of earnings for 32 months 76,800 and per month Travelling From Aripero Road, Rousillac to Port of Spain to Dr Francis Mulrain Page 2 of 21

3 From Aripero Road, Rousillac to Pointe-a-Pierre to Augustus Long Hospital 12 To Dr Neil C Persad 3 Total Special damages 1, At the end of the hearing both parties agreed the cost of the medical reports in the sum of $ SUBMISSIONS ON SPECIAL DAMAGES 7. The plaintiff submitted that the sum of $12, is claimed for medical expenses since the plaintiff purchased antiseptic solutions every month for the oozing sinues on his left hand, for Motrin tablets which he took to relieve the pain and antibiotics for the discharge from the plaintiff s arm. He relied on Dr Araujo s medical opinion that it was common for antibiotics to be used constantly for such infections. The plaintiff also submitted that the sum of $7, is claimed for travelling expenses which he incurred to visit his doctors and pharmacies in the last 10 ½ years. 8. In response, the defendant submitted that the sums of $2, for travelling and $1, for medical expenses are reasonable in the absence of proof of the sums expended. 9. From their submissions there is agreement with respect to the claim for loss of earnings in the sum of $307, This sum represents the plaintiff s monthly salary of $2, at the time of the accident by a period of 128 months. The defendant also submitted that the sum of $87, paid as Workmen s Compensation to the plaintiff is to be deducted from this award leaving the remaining sum of $219, Page 3 of 21

4 LAW AND ANALYSIS 10. It is settled law that special damages must be pleaded, particularized and be strictly proved 1 and the burden is therefore on the plaintiff to prove his loss. In Bonham v Hyde Park Hotel 2 which was adopted in Grant v Motilal Moonan Bernard CJ had this to say Plaintiffs must understand that if they bring actions for damages, it is for them to prove their damage. It is not enough to write down the particulars, so to speak, throw them at the head of the Court saying this is what I have lost; I ask you to give me these damages. They have to prove it. It therefore follows that the court is restrained from compensating a claimant for any item of special damage if it is not proven by way of proper documentation or compelling corroborating evidence. I will now address each item claimed under special damages. (a) Medical expenses There was no documentary evidence in support of the sum $1, and continuing. In paragraph 20 of the plaintiff s witness statement, he stated that since the accident he has incurred medical expenses in the sum of $12,000.00, the sum of $ for the cost of savlon and $25.00 per bottle. While I have no doubt that the plaintiff has incurred expenses in purchasing tablets, antibiotics and other medication since his accident to present in the absence of any documentary evidence to support the quantum claimed I am constrained to only allow the sum of $1, which was conceded by the defendant. (b) Loss of earnings There is agreement by the parties on the sum to be awarded under this head. In this regard the sum of $307, is allowed. 1 Grant v Motilal Moonan Ltd (1988)43 WIR 372 per Bernard CJ 2 (1948) 64 TLR 178 Page 4 of 21

5 (c) Travelling The plaintiff has claimed a total sum of $ as travelling expenses. He has no documentary evidence to support his claim for all the visits to the various doctors. In this regard, I am minded to award the sum of $2, which was conceded by the defendant. 11. Accordingly, I award the total sum of $311, as special damages. GENERAL DAMAGES 12. Before I address the plaintiff s claim for general damages the words of Kangaloo JA in Munroe Thomas v Malachi Ford and ors 3 are useful to note the assessment of damages for a personal injuries claim should be a straightforward arithmetical exercise. The guidelines which inform a court s decision in this regard are well known; the point of departure invariably being the seminal Court of Appeal case of Cornilliac v St Louis 4. However this area of law has generated a vast array of litigation because far too often sight is lost of two fundamental principles: first, that a personal injury claim must never be viewed as a road to riches and secondly, that a claimant is entitled to fair, not perfect compensation. 13. With these words in my I will now address the factors set out in Cornilliac v St Louis 5 namely: (a)the nature and extent of the injuries sustained; (b)the nature and gravity of the resulting physical disability; (c ) Pain and suffering; (c)loss of amenities; and (d)the extent to which pecuniary prospects were affected. I also note that similar cases are useful guidelines for the possible range of an award of damages 6. I will now examine the evidence under these headings. 3 Civ App 25 of 2007 at page 28 4 (1964) 7 WIR (1964) 7 WIR Aziz Ahamad v Raghubar 12 WIR 352 Page 5 of 21

6 Nature and gravity of the injuries sustained 14. According to the first Mulrain report the plaintiff was admitted to the Augustus Long Hospital ( the hospital ) on November 22, 2000, the day of the accident. His left arm had an extensive crush injury from the shoulder to the elbow with exposure of soft tissue, skin and bone all of which were crushed, caked and covered with mud and oil. X- rays revealed a comminuted fracture of the plaintiff s left humerus. He was taken to the operating theatre and treated as an emergency where his left upper limb was thoroughly cleaned. After cleaning, it was revealed that there was extensive crushing of the muscles, blood vessels, nerves, periosteum, subcutaneous tissue and skin with devitalized tissues. The ulna nerve of the arm was completely severed. Primary repair of the ulna nerve was done, the soft tissues were repaired and the wound was closed. All contaminated tissue were trimmed and removed. The fracture was also stabilized using an external fixator. 15. After the surgery, the plaintiff was placed on intravenous antibiotics and analgesics and he remained at the hospital for a period of 1 week after the accident. Dr. Mulrain who treated the plaintiff on the day of the accident expressed the view that the viability of the patient s left arm was of great concern, so extensive was the injury 7. Nature and gravity of the resulting disability 16. Over the period November 2000 to March 2011 the plaintiff was seen by the aforementioned orthopedic surgeons. The aforesaid reports deal extensively with the effects of the injuries which the plaintiff experienced over the 11 years and I will now deal with this aspect of the evidence. 7 Paragraph 2 of the first Mulrain report Page 6 of 21

7 17. The first Mulrain report stated that subsequent to the plaintiff s first discharge from the hospital he continued to be his outpatient on a regular basis. During this time, the plaintiff developed a mild grade 1 infection of his wound which was treated with relevant antibiotics. Some 2 months after the injury, in February 2001 X-rays revealed that there was early bone healing due to some callus formation at the fracture site. As a result, the external fixator was removed but due to instability at the site it was reattached. In April 2001, the fracture still had not united and as such it was immobilized in an above elbow scotch cast. This cast remained on the plaintiff s arm for almost 9 months. At the end of June 2001 there was still no evidence of healing of the bone. In July 2001 the plaintiff underwent surgery where a bone graft was applied to the site and the fracture was stabilized using compression AO plate and screws. There was another infection which was treated with antibiotics which continued for many weeks. 18. By November 2001, Dr. Mulrain noted that there was improvement in the plaintiff s left hand function but the weakness was marked and the ooze at the fracture site continued As such Dr. Mulrain recommended further surgery to remove the AO plate and screws which he was of the view would eliminate the infection. 19. The second Mulrain report stated that X-rays and clinical examination revealed that the fractured humerus was gradually uniting. Yet Dr. Mulrain s prognosis was guarded and infection was continued to be controlled by intermittent antibiotics. In the second Mulrain report the prognosis for the plaintiff was not positive since Dr. Mulrain did not expect improvement in the plaintiff within the next 6-12 months. 20. Mr. Neil C Persad ( Dr Neil ) saw the plaintiff on February 15, After enquiry and examination of the plaintiff, he noted that the plaintiff had pain in the left arm, forearm and elbow; there was paresthesiae in the left upper limb; total loss of sensation on the inner aspect of his left forearm and hand; the plaintiff was unable to use the left upper limb in any useful way and he complained of chest pains. Page 7 of 21

8 21. The Neil Persad report also noted that there was extensive scarring of the left arm with 3 actively draining sinuses oozing frank sero-purulent discharge. There was also evidence of healed surgical scars. The left elbow had an active range of motion of 50 to 70 degrees and passive range of 30 to 110 degrees with reduced ranges of motion at the left shoulder and left wrist. There was evidence of marked wasting of all muscles of the left upper limb and grip strength on the left hand was less than 30% of that which would be expected. There was also the total loss of sensation on the distribution of the ulnar nerve of the left forearm and hand and reduced sensation on the distribution of the radial nerve. An X-ray of the left arm in February 2003 showed a healed fracture of the humerus with fixation plate and screws in place and bone changes consistent with chronic osteomyelitis. 22. It was Dr. Neil s opinion in February 2003 that the plaintiff required further surgery to remove the fixation plate and screws at the earliest possible time and that even if the chronic osteomyelitis is resolved at some time in the future, the extent of injury to the major nerves of the plaintiff s dominant left upper limb may never permit any useful level of function of the left arm. Dr. Neil put the plaintiff s permanent partial disability of 70% in The plaintiff was also examined by Dr. Ian Persad ( Dr. Ian ) some 4 years after on December 10, Dr. Ian s findings were not significantly different from Dr. Neil s. Dr. Ian reported that the plaintiff complained of chronic pain and loss of function of his left upper limb. He also observed the multiple scars on the plaintiff s right arm from the accident and repeated surgeries and the 3 sinuses anterolaterally on the arm discharging pus. Dr. Ian reported that functionally the plaintiff was unable to make a complete fist on the left hand and could only manage a partial pincer grasp. He noted that the infection in the left arm required urgent attention and the removal of the implants was necessary. He also stated that the success of the surgery for chronic osteomyelitis was difficult to predict and is sometimes used as a last resort. Dr. Ian put the plaintiff s permanent partial disability in 2007 at 80%. Page 8 of 21

9 24. Dr. Godfrey Araujo, Orthopedic Surgeon was the last doctor to examine the plaintiff before the hearing of the assessment of damages. This was done on March 2, 2011 some 11 years after the accident and 3 years after the report by Dr. Ian. Dr Araujo s findings after examination of the plaintiff were set out in the Araujo report and he also gave viva voce evidence explaining his findings to the court. 25. On examination of the plaintiff, Dr. Araujo noted the healed scars to the right face and left forearm. He also observed 3 sinues visible on the left arm with some scarring. The area around the sinues was mildly tender and the plaintiff had full passive range of motion of the elbow and forearm and passive flexion and extension of the wrist. The index and thumb had some minimal pincher-type movement of no great strength. The plaintiff s right grip strength was measured at 102 lbs force and the left grip was 0. This was even after putting his fingers passively around the grip. The pinch strength of the right hand was measured at 16.5 lbs and the left was measured at 0. He explained that the plaintiff s movement of the left arm was limited to the use of his shoulder muscles but not with respect to his arm muscles. In effect the plaintiff could not lift anything and there was no movement of the wrist and only a minor flicker between the thumb and the index finger. 26. After examining the X-rays done on that date, Dr. Araujo assessed the plaintiff as having a healed, slightly varus angulated fracture of the distal left humerus with chronic osteomyelitis and a functional amputation of the left arm. The treatment recommended by Dr. Araujo was amputation of his left upper limb at the above elbow level and replacing it with a prosthetic arm to increase functionality. He explained that there are 2 types of prosthesis namely a mechanical one which would allow the plaintiff to have some movement including claw type movement and a biomechanical prosthesis which would allow individual movement. Page 9 of 21

10 27. To control the infections Dr. Araujo recommended that the plates and screws be taken out as the humerus had healed. However, he noted that this procedure would not result in increased functionality and the chance of his condition persisting is extremely high. He put the plaintiff s permanent partial disability based on the Workmen s Compensation Act at 70 % whole body and at 60% whole body based on the AMA Guides to the Evaluation of Permanent Impairment 6 th Edition (Figure 15-9 page 456). 28. He stated that if the plaintiff is left as he is, he would not be able to do things with both his hands such as eat with a knife and fork but he adapt and eventually will be able to do most things with his right hand which he used to do with his left hand. The plaintiff also ought to be able to drive a modified motor vehicle where everything is fitting on the right side. Medically apart from stress the injury ought not to have any impact on the plaintiff s life expectancy. 29. Under cross-examination, Dr. Araujo indicated that there are 2 places in this jurisdiction which provide prosthesis. He stated that he was not sure of the costs but he believed that it is approximately between $30, $35, for one. He stated that the prosthetic would have to be changed and depending on the model it would have to be maintained and cleaned. He agreed with attorney for the plaintiff that the plaintiff in his present condition is substantially disabled on the labour market. Pain and suffering 30. Much evidence was given by the plaintiff of the pain which he has endured from the date of the accident. When the accident occurred the plaintiff felt severe pain through his left arm. The machine which had trapped his left arm kept dragging him and he began to feel the metal tearing his skin. His face was pulled towards the machine and he began to bleed. He felt weak and dizzy since the pain was too much for him. He saw his blood as large pieces of skin and flesh from his back and face were pulled off and shredded by the machine. He blacked out for a while and when he opened his eyes he Page 10 of 21

11 started to scream since parts of his body were still trapped in the machine. During this time the machine was still running. 31. When the machine was turned off the plaintiff noticed that blood was soaked through his coverall and that he could barely stand the pain which he felt all over his body. He noticed that chunks of flesh had been cut off from his hand and that he remained bleeding and crying in pain for about 30 minutes. 32. At the hospital, as the doctors used a small brush to pull off the pieces of skin and foreign material the plaintiff stated that he began to scream, he saw more blood and a hole in his arm. He passed out since he felt weak. 33. When the plaintiff awoke later that night his face felt sore and painful while he was being prepared for surgery on his hand. During the 9 day stay at the hospital the plaintiff stated he was in constant pain and his face was swollen and bruised. 34. Subsequent to the plaintiff s discharge from the hospital he has continued to experience pain in his left arm, forearm and elbow. As a consequence of this excruciating pain he has used painkillers regularly and various vitamins on a daily basis. The plaintiff s evidence on his pain since the accident to present was unchallenged in crossexamination. Loss of amenities 35. Subsequent to the accident the plaintiff has required assistance to carry out basic activities every day. He has difficulties climbing stairs, changing and putting on clothes since he has lost the use of his left arm and shoulder. As a result of his disability the plaintiff has suffered from severe depression and mood swings and he does not go out in public or socialize since he is embarrassed of the foul odour caused by the yellow liquid which oozes from his left arm. Page 11 of 21

12 36. When his wife and son are not at home to assist him in putting on his clothes he manages on his own, however he cannot button his pants without their assistance. He admitted that he has lived in Aripero village all his life and that the older persons in the village who are aware that he was involved in an accident are sympathetic to him but the younger persons are less sympathetic towards him. 37. He cannot assist with the household chores such as washing dishes, washing clothes, cleaning the house and cutting the grass around the house since the accident. While he is able to feed himself he cannot take out his food. Before the accident he used to hunt manicou and iguanas but he cannot do so after the accident. He does not play football now since he is scared if he falls he would injure himself. He cannot raise or lift any objects and light objects give him great difficulty. He is embarrassed to go to the beach or anywhere where his left arm is exposed. Effect on pecuniary prospects 38. The plaintiff s evidence was his salary was $ per month and he frequently did overtime work for 3 weeks every month and that sometimes his salary would be as much as $ per month. Under cross-examination the plaintiff admitted that at the time of the accident he was only working for the company for about 16 days and that he had not worked any overtime with the company. 39. Under cross-examination the plaintiff admitted that he cannot read or write save and except his name and in 2009 he worked as a watchman for a brief period. In November 2010 he did some jobs cleaning the yards of persons but since he still experienced pain and cramps in his left arm it usually takes him 3 to 4 times longer to get the job done. He also stated that since November 2010 to February 2011 he has not been able to get any work. Due to his limited means of earning a living he relies on financial assistance from his brothers and sisters. Page 12 of 21

13 SUBMISSIONS ON GENERAL DAMAGES 40. With respect to the claim for general damages, the plaintiff s attorney submitted that in light of the age of the plaintiff( he was 25) at the time of the accident, the pain endured from the date of the accident to present, the severity of the injury since the plaintiff s left arm has been rendered useless after the accident and the substantial negative impact which the injury has had on the plaintiff a reasonable sum to award for general damages is $410, In support of this sum he relied on the authorities of Alexander v Monion 8 ; Razac v Ramsingh 9 and Gardener v Coteau 10. He also distinguished the authorities relied on by the defendant on the basis that in the instant case the injuries were more severe. 41. The defendant s attorney submitted that taking into account the nature of the plaintiff s injuries, the uncertainty in the course which the plaintiff may take in the management of his arm, his unwillingness to have the affected arm removed and fitted with a prosthesis a reasonable award for general damages is between a range of $100,000 to $175,000. The defendant relied on the authorities of Dinesh Mohan v Taramattie Jagat and anor 11 ; Mark Rattan v Carlisle Tyre and Rubber (Free Zone) Ltd 12 ; and Carol Lovell v TYE Manufacturing Co Ltd 13. LAW AND ANALYSIS 42. In analyzing the evidence I have considered the following factors in arriving at an award for damages : 8 HCA 1996/73 9 CA 81/71 10 HCA 858/73 11 HCA 104 of HCA 1029/ HCA 1293/1998 Page 13 of 21

14 (a) The nature of the injuries sustained by the plaintiff was serious and that he experienced excruciating pain on the day of the accident. I am also convinced that the plaintiff continued to endure pain during the entire period from the date of the accident until his last examination by Dr. Araujo. All the doctors who examined the plaintiff during this period have noted the plaintiff s complaints of pain. However, I am of the view that this pain has diminished substantially over this said period. (b) It is undisputed that the resulting disability of the plaintiff is his left arm is now non functional. If he chooses to amputate his arm and have a prosthetic arm fitted it may impose functionality. (c) The plaintiff has undergone 4-5 surgeries and has been hospitalized for at least 9 days. The bone has now healed and there is no active infection. If he wishes to reduce if not eliminate the infection or oozing of the yellow liquid from his arm he must undergo another surgery to removed the screws and plates in the left arm. The removal of the screws would not improve the functionality of his left arm. (d) Before the accident the plaintiff led a normal active lifestyle. The continuous oozing of yellow liquid from the plaintiff s arm after the accident, has made him embarrassed. I therefore understand the plaintiff s position in avoiding socializing with persons and I accept that he would have endured some degree of taunting from certain members of his village. (e) While he was left handed prior to the accident he can still adapt and learn to write with his right hand. He still however cannot do activities which require the use of both arms. (f) I also accept that the plaintiff s incapacity with his left arm has restricted his ability to be fully independent where simple tasks such as fastening the buttons of his pants he now requires assistance from his wife or son. This restriction has also Page 14 of 21

15 negatively impacted on his ability to assist with household tasks, play sports such as football and to secure steady employment to provide for his family. (g) I also accept that the plaintiff has made a reasonably good recovery from his injury where his life expectancy is not affected. 43. I note the limitations of the authorities cited by the attorneys and I will now consider them: (a) Alexander v Monian 14. In this case the plaintiff was 35 years old at the time of the accident. He suffered multiple injuries to his right arm including the shoulder and forearm. He had a compound fracture to the midshaft of the right humerus with about 2 ½ inches of bone missing. There were gross lacerations of the lateral aspect of the arm with extensive skin loss and abrasions. The muscles were badly lacerated. He also had a compound fracture at the right elbow involving the joint end and a fracture of the ulna. Intramedullary nail was applied and the right arm later became infected. The plaintiff underwent 4 surgeries. The sum awarded in 1975 was $70, and adjusted to December 2010 was $ 1,240, (b) Razac v Ramsingh 15. In this case the plaintiff was 43 years at the time of the accident. He was a taxi driver who sustained a fracture of the right humerus about the middle, as well as fracture at the right elbow amounting to almost traumatic amputation at the elbow. There were also fractures of the major shaft of the humerus and at the middle shaft of the right ulna as well as proximal ends of phalanges. The sum awarded in 1973 was $23,040 and adjusted to December 2010 was $637, /73 15 CA 81/71 Page 15 of 21

16 (c) Gardener v Couteau 16. In this case the plaintiff was aged 61 at the time of the incident. His right arm was crushed by the tray of a truck. He suffered compound comminuted fractures of the lower end of the right radius and ulna with considerable skin loss. He also fractured the 4 th and 5 th metacarpal heads. Skin grafting was done which was complicated by infection. His right elbow and forearm lost three quarters of their previous function. In 1975 the sum of $24,000.00was awarded and adjusted to December 2010 is $429, (d) Dinesh Mohan v Taramattie Jagat and anor. 17 In this case the plaintiff was 30 years and had suffered a fracture of the proximal shaft of the right humerus, deformity swelling and bleeding from a wound of the upper arm, leg and chest injuries. An award of $175, was made in February 2005 for non-pecuniary loss. (e) Mark Rattan v Carlisle Tyre and Rubber (Free Zone) Ltd. 18. In this case the plaintiff was 28 years and suffered a crushed left hand with the loss of the distal 2 digits of all fingers of the left hand as well as post traumatic stress syndrome for which there was support medical evidence. The plaintiff was declared medically unfit to work. In June 2003 an award of $90, was made for general damages exclusive of pecuniary prospects adjusted to December 2010 was $159, (f) Carol Lovell v TYE Manufacturing Co Ltd. 19. In this case the plaintiff was a female whose age was not disclosed. The injuries suffered were an injured left hand and amputation of her left index, middle and ring fingers. She underwent 4 operations and experienced a lot of pain. She was unable to continue to perform her duties due to the noise level and she was diagnosed as suffering with post traumatic stress 16 HCA 858/73 17 HCA 104/ HCA 1029/ HCA 1293 of 1998 Page 16 of 21

17 syndrome. An undated award of $90, for non-economic loss was made and adjusted to December 2010 was $154, The reservation on the practice of relying on older decisions and using an adjustment formula in arriving at an unlikely award as stated by the Privy Council in Seepersad v Persad 20 is highlighted in the very high sums in the earlier decisions. Having regard to my assessment of the plaintiff s evidence, the aforesaid awards for similar injuries and bearing in mind inflationary trends, I am of the view that a reasonable range for the injuries sustained by the plaintiff is between $ 200, to $ 250, and that a sum of $ 230, to be a fair award for damages for non-economic loss. 45. The plaintiff admitted in cross-examination that he had received the sum of $87, as workmen s compensation. The law requires that this sum is to be deducted from $230, leaving a final award of $142, Loss of pecuniary prospects 46. The plaintiff submitted that the circumstances of this action are not appropriate for an award of a lump sum under this head for the following reasons: (a) The defendant has admitted that the income of the plaintiff as a labourer was $2, per month. (b) The plaintiff s life expectancy has not been affected by the injury which was confirmed by Dr. Araujo. (c) The plaintiff has not been able to resume work although he has made efforts to obtain employment. (d) The plaintiff has only been trained as a labourer and he is unable to read and write. (e) A multiplier/multiplicand approach is appropriate with a multiplier of 18 a multiplicand of $21, ($1, per month with a reduction of 25% of the 20 (2004) 64 WIR 378 (PC) Page 17 of 21

18 salary). A total of $388, the plaintiff submits is reasonable in the circumstances. 47. On the other hand the defendant submitted that I should make a lump sum award of $50, using the approach suggested by Kangaloo JA in Munroe Thomas v Malachi Forde and ors 21 for the following reasons : (a) The permanent partial disability assessment by the doctors of the plaintiff does not assist the court in determining whether the plaintiff can or cannot work again. (b) The plaintiff has failed to adduce evidence that he has lost all earning capacity. (c) The plaintiff had only worked for the defendant for 16 days as an unskilled labourer and had it not been for the accident the plaintiff s future with the defendant was uncertain. (d) It is speculative for the court to conclude that the plaintiff would have continued to work for the defendant and as such the court is unable to make an award using the multiplier /multiplicand method. (e) The medical evidence did not exclude the possibility of the plaintiff obtaining employment in the future. The plaintiff failed to adduce evidence from those whom he sought employment of his difficulties. 48. In the instant case, it is undisputed that the plaintiff was not employed at the date of the hearing of the assessment. An award for loss of future earnings can be made if the plaintiff demonstrates that there is a continuing loss of earnings which is attributable to the accident 22. Where there are evidential uncertainties which prevent a court from using the multiplier/multiplicand method to assess damages for loss of future earnings the courts have disregarded this conventional approach and arrived at a lump sum 21 Civ App 25/2007 at paragraphs Civ Appeal 25/2007 Munroe Thomas v Malachi Forde and ors. Page 18 of 21

19 figure to compensate the plaintiff for his future loss of earnings (Blamire v South Cumbria Health Authority) In order to prove loss of pecuniary prospects the plaintiff has to show that the injury was of such a nature that it rendered him incapable of performing his duties as a labourer, or any other form of work whatsoever. If it rendered him incapable of performing as a labourer but did not prevent him from doing other work, it was necessary to show that in order to mitigate his loss. In discharging this onus, the medical evidence as to the nature of the injury and the residual effect that the injury may have had on the plaintiff s ability to work is critical I find that an award using the multiplier/multiplicand method is appropriate for the following reasons: (a) While the medical evidence did not exclude the possibility of the plaintiff obtaining employment in the future it is also clear that the plaintiff is now seriously disadvantaged in the labour market since he has lost the use of his left arm. (b) The result of the plaintiff s injury is that the plaintiff can no longer earn his preaccident salary. (c) The medical evidence is also that the injury will not impact on the life expectancy of the plaintiff. (d) The defendant has admitted that the plaintiff s salary as a labourer was $2, per month at the date of the accident. Given the training and educational limitations of the plaintiff his options of future employment are very limited. 51. Both parties agreed that the plaintiff s monthly salary as a labourer at the time of the accident was $2, and that after the accident he was not able to continue working in this capacity with the defendant. The defendant failed to produce any evidence to 23 (1993)P.I.Q.R.Q1,C.A 24 CV A 110/2001 Seudath Parahoo v SM Jaleel & Co Ltd, Hamel-Smith JA at para. 8 Page 19 of 21

20 persuade me that the plaintiff was a temporary worker with the defendant. In this regard, on balance of probabilities I am constrained to accept the plaintiff s evidence that when he was employed by the defendant as a labourer he was of the view that it was on a permanent basis. In the circumstances, taking into account taxation, holidays and imponderable of illness I would give a multiplicand of $1, per month or $18, per annum. The plaintiff is about 35 years old. In Seepersad v Persad 25 the appellant was 40 years old as at the date of the appeal and the Privy Council determined an appropriate multiplier of 16. In the instant case I would use a multiplier of 17 given the plaintiff s age. Applying the multiplier to the multiplicand, the amount I would allow for loss of future earnings is $306, Future Costs 52. The plaintiff has submitted that in light of the medical evidence of Dr. Araujo who suggested that the plaintiff has the option of amputating his upper left arm and replacing it with a prosthetic limb which would improve appearance but not functionality that an award be made to facilitate this. In response the defendant submitted that the plaintiff did not give evidence that he wanted to pursue amputation of replacement with a prosthetic and therefore no award should be made. 53. The cost of future care ought to have been pleaded by the plaintiff as general damages. This was not done. In any event, the plaintiff failed to convince me in his oral testimony that he was interested with amputating his left arm and indeed he expressed some reservation to Dr. Araujo when this option was explained to him. In this regard, I am not prepared to make any award for this claim. 25 (2004) 64 WIR 378 Page 20 of 21

21 INTEREST 54. The plaintiff s attorney did not make any submissions on the rates of interest to be awarded. On the other hand the attorney for the defendant submitted that the rate of interest to be awarded on Special damages should be 3% per annum from the date of the accident to the date of judgment and 6% per annum from the date of the filing of the writ of summons to the date of judgment. 55. The award of interest on damages is discretionary pursuant to section 25 of the Supreme Court of Judicature Act Chap 4:01. In the absence of any evidence being led as to the appropriate rate of interest a reasonable rate of interest for the award of special damages is 3% per annum from the date of the injury i.e. November 22, 2000 to September 27, 2011 and General damages is 6% per annum from July 24, 2003 to September 27, ORDER 56. Special damages is awarded to the plaintiff in the sum of $ 311, with interest at the rate of 3% per annum from November 22, 2000 to September 27, General damages is awarded to the plaintiff in the sum of $ 230, with interest at the rate of 6% per annum from 6% per annum from July 24, 2003 to September 27, 2011.The sum of $87, paid as Workmen s Compensation to the plaintiff is to be deducted from the award for general damages. 58. Loss of future earnings in the sum of $ 306, with no interest. 59. The defendant to pay the plaintiff costs to be taxed certified fit for Counsel 60. By consent a stay of execution of 28 days. Dated this 27 th September, Margaret Y Mohammed Master (Ag) Page 21 of 21