IN THE HIGH COURT OF JUSTICE BETWEEN AND. RAMNARINE SINGH GANESH ROOPNARINE THE GREAT NORTHERN INSURANCE COMPANY LIMITED Defendants

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1 TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE HCA: No.3487/2003 BETWEEN JOHNSON ANSOLA Plaintiff AND RAMNARINE SINGH GANESH ROOPNARINE THE GREAT NORTHERN INSURANCE COMPANY LIMITED Defendants BEFORE THE HONOURABLE MR. JUSTICE PETER A. RAJKUMAR APPEARANCES: Mr. Asaf Hosein for the Plaintiff Mr. Anthony Manwah for the 1 st Defendant Mr. Yaseen Ahmed for the 2 nd Defendant Mr. Edwin Roopnarine for the 3 rd Defendant Judgment Facts On 26 th January 2003, the Plaintiff was a passenger in motor vehicle TAR-6606 driven by the Second Defendant, Ganesh Roopnarine. The First Defendant was the owner of the said motor vehicle. The Co-defendant is the insurer of the said motor vehicle. It is alleged that: (1) The Second Defendant was negligent in his driving, management or operation of the said motor vehicle. (2) He was the servant or agent of the First Defendant at the time of the accident.

2 The Second Defendant has denied being negligent and alleges that the collision was caused solely or in part by an unknown third party who negligently drove, managed or controlled his vehicle in that he negligently overtook another vehicle and came into the path of motor vehicle TAR The Second Defendant, in an attempt to avoid a head-on collision with his vehicle, pulled TAR-6606 pulled to the left causing TAR to go off the roadway and thereby causing the left front wheel of that vehicle to to go into a ditch at the side of the roadway and overturn. The Second Defendant also alleges that he had the express or implied permission of the first Defendant to drive the said TAR-6606 to conduct his personal business. The First Defendant and Co-defendant allege that the Second Defendant was only authorised to drive TAR-6606 to carry out the business of the First Defendant and was not authorised to drive the said TAR-6606 for personal use. ISSUES The issues therefore are: (1) Whether the Second Defendant was negligent. (2) Whether the Second Defendant was the servant and/or agent and/or had permission of the First Defendant to drive TAR-6606 at the time of the collision. (3) Whether the Plaintiff suffered injury, if so the extent thereof and the quantum of compensation payable therefor. Disposition and award I find that the injuries to the Plaintiff were caused by the actions of the Second Defendant in the driving of TAR I make the following award against the defendants. General damages: (a) for pain and suffering and loss of amenities --- $150, (b) Interest thereon at the rate of 12 % per annum from the date of filing of the writ (c) Future loss of earnings $35, x 8 - $285,

3 Special damage: (i) Loss of Earnings - Pre accident loss - $191, (ii) Medication $5,000.00; (iii) Medical report $450.00; (iv) Certified copy and travelling $45.00; (v) Interest on (i) to (iv) above at 6% per annum from January 27 th 2003 to June 30 th 2008 (vi) future medication $13,140.00; (vii)cost of future surgery $60,000.00; Costs The Defendants are to pay the Plaintiff s costs certified fit for Counsel to be taxed in default of agreement. Liberty to Apply Evidence relating to permission to drive Evidence of the Plaintiff According to the Plaintiff, the driver of the vehicle was driving at a reasonable speed. He explained that by reasonable he meant about 60 miles (per hour). He further clarified that the red car (the overtaking vehicle) was about 50 feet away when the driver of that vehicle pulled onto the wrong side of the road. He also explained that to him a reasonable speed would be about 120 kilometres (75 mph). He accepted that he knew the speed limit was 50 mph but that the speed limit for driving on a highway was more than that about 80 to 90 miles. He acknowledged that he did not look at the speedometer but he formed the view that the driver of the truck was travelling in excess of the speed limit. He maintained that he would not characterise the driving of the truck by the driver as speeding: I wouldn t call that speeding. Ramnarine Singh The owner of the truck, Ramnarine Singh, attended and gave evidence concerning the terms of use of the truck. He asserted that he did not know that Ganesh Roopnarine (the driver of the truck) used to use the truck to make groceries. His answer was: 3

4 Not really. I never knew he used to go and make groceries. I knew he used the truck to fill water sometimes. I did not know he used to use the truck to go by his family. He accepted that Ganesh used to keep the truck even on public holidays and that Ganesh would sometimes work on weekends with that truck. He stated that: I told Ganesh he could not do PJ [private jobs], in other words, to make money with it. I knew he used the truck to fill water for himself and his family for his private use and I never stopped him. I knew that he used his truck almost every weekend to fill water. I was never aware he used to make groceries with the truck. He acknowledged making a second statement but claimed that he could not remember if he said in that statement that Ganesh would use the truck for groceries and personal use. The statement was tendered into evidence and marked RS.2. In the statement dated 6 th April 2004, Exhibit RS.2, he stated: I am aware of Ganesh using the vehicle on the weekend when he is not working because of the difficulty in getting transportation. On the day of the accident, I was not aware of Ganesh having to use the truck for his personal use but in any event I would not have objected to it because I trusted him and he was also a very good worker. I am aware of Ganesh using the truck to refill his water tanks and to use the truck to visit family members. He would also use it to make his groceries and any other personal use. This was signed by Ramnarine Singh. He did not deny that he signed it. He attempted to maintain under cross-examination that Ganesh was only supposed to use the truck for work-related purposes. He denied telling Ganesh to say that he had no permission to put men in the truck to do any work. When he was asked in crossexamination by Mr. Ahmed to tell the Court what you know Mr. Ganesh used the truck for, his response was: Sometimes he would tell me he had to fill water. Sometimes I saw him in the grocery. He testified that Ganesh had the truck before the accident for about 2 years. When he was asked Did you stop him from going to the grocery with the truck?, his response was Yes and I stopped him a few times well from going to the grocery with truck. I said he was not supposed to come to the grocery with the truck. He claimed that he never knew that Ganesh used to do anything else, for example, going by friends on weekends. He accepted that he had given Ganesh permission to fill water in the truck for personal use because sometimes 4

5 he would also wash the truck and he had no water home by him. He therefore authorised him to collect water, to fill water on the truck and use some of that water for home use and some of it for washing the truck. When he was asked Would you have a problem if Mr. Ganesh told you I want to go to the grocery and then I will wash the truck?, his answer was No, once he washed the truck., although he claimed he would have a problem with Ganesh visiting his family and then washing the truck. He denied Ganesh telling him he was going to use the truck on the morning of the accident to do casting at his home. He denied giving Ganesh permission to carry three passengers in the cab on the day of the accident, either that day or any other day. He testified the truck was licensed to carry the driver and two passengers and that the tray of the truck was a steel tray and there was no bench in it for people to sit. Ganesh Roopnarine The driver of the truck, Mr. Ganesh Roopnarine, testified. He claimed that he never filled water with that truck. He claimed to have a water connection where he lived and to have had that for a long time. He testified that he did not tell Mr. Singh that he would be using the truck on that day. He did not tell Mr. Singh that he was going to use the truck for casting. He testified further that: If I had a couple of drinks and asked him to use the truck, he (Ramnarine Singh) would have said yes if he had known. If I had more than a couple of drinks he would not have said yes. He was asked: If you told Mr. Singh I need to use the truck to take fellows home having just finished casting, he would have said yes? His answer was: Yes. This witness testified in his witness statement that Mr. Singh told him to take the truck and go to the beach on one occasion. He accepted that he had a wife and two children and therefore that would be overloading the truck. He also accepted that it was true that Mr. Singh never authorised him to put men on that truck. He stated: I asked him [that is Mr. Singh] to use it for groceries if I had to get something somewhere, could I use the truck on the way from home. I wash the truck home by me. Sometimes I would go after and visit family and friends. 5

6 In cross-examination he accepted that he was saying on oath that he was prepared to lie for Mr. Singh. He was asked: If action could only be filed against Mr. Singh, you would be prepared to maintain lies? His answer was: Yes. He also testified that he never told Mr. Singh he put the three passengers in the cab, that he knew he was breaking the law when he put three passengers in the front seat next to him and that he knew he could have been charged for having extra passengers in that vehicle, that Mr. Singh did not know he did that, that Mr. Singh never gave him permission to do that and unknown to Mr. Singh he was carrying unsecured passengers in the tray. I find the testimony of the driver somewhat curious. However, the following can be extracted from that testimony. I find as a question of fact that the driver Ganesh Roopnarine used the truck for the following purposes: (1) Work during the week; (2) Work on weekends, (3) For carrying water including on weekends (4) For doing his groceries including on weekends (5) For getting to and from his home. I find that the owner of the truck knew that Ganesh used to do his groceries with the vehicle and even though he told him repeatedly not to do it, according to his evidence in Court, it is clear he did nothing about this and that it was almost accepted that the driver would use the truck for going to the grocery, whether on his way after work or otherwise. It is also clear that Ganesh Roopnarine used that truck as his own and that the initial permission that he had to use the truck to carry water or to do groceries was subsequently enlarged by Mr. Roopnarine s sense of propriety over the truck. I find that Mr. Ramnarine Singh (the owner of the truck) did not place any effective boundaries on the utilisation of that truck by Ganesh Roopnarine. I find that Mr. Ramnarine Singh did not know that Ganesh planned to use the truck for the casting and neither did he know that Ganesh planned to transport more than two passengers on the day of the accident. The question, therefore, is whether Mr. Ganesh Roopnarine can be considered the agent of Ramnarine Singh at the time of the accident. It is clear he would be if he had 6

7 the general permission or the implied permission or consent to use the truck on the day in question when the Plaintiff was injured. The issue also arises whether he could be considered as the servant of Mr.Singh at the time or was he in law to be considered as being on a frolic of his own. Permission or consent S. 4(7) Motor Vehicle and Road Traffic Act, Ch as amended provides Notwithstanding anything in any written law, rule of law or the Common Law, a person issuing a policy of insurance under this section shall be liable to indemnify the person insured or persons driving or using the vehicle or licensed trailer with the consent of the person insured specified in the policy in respect of any liability which the policy purports to cover in the case of those persons. I find that the driver had the consent of Mr. Ramnarine Singh. It would have been a simple matter to stop Mr. Roopnarine from keeping the truck on weekends if the owner did not consent to his use of the truck for personal business. AGENCY Further the fact of ownership of the truck is prima facie evidence that the truck at the material time was being driven by the owner or by his servant or agent. See the case of Rambarran v Gurrucharan [1970] 1 WLR 556. The inference is rebuttable. I find it has not been rebutted. On his own evidence he authorised Mr. Roopnarine to keep the truck at home on weekends. He knew that Roopnarine used the truck for his personal use. There is also his signed statement RS2 to this effect. Vicarious Liability See Charlesworth on Negligence, 7 th Edition, Chapter 2-112: A master is liable for the negligence of the servant if committed in the course of his employment but is not liable for negligence which is committed outside the scope of his employment. As Lynskey J. has stated: It is well-settled law that a master is liable even for acts which he has not authorised provided that they are so connected with acts that he has authorised that they may rightly be regarded as modes although improper modes of doing them. This is a question of fact. 7

8 See Paragraph under heading Vehicle entrusted to servant to be driven or used : When a master s vehicle is entrusted to the servant to be driven or used in some other way the master is liable if the servant is negligent while using the vehicle either wholly or partly on the master s business or in the latter s interest. Conversely, the master is not liable if the servant is negligent while using it for any other purposes even though the servant has the master s permission to use it for those purposes. According the Charlesworth, in footnote 76 stated: See Launchbury v Morgans [1973] AC 127. In order to fix vicarious liability for the negligence of the driver of a motor car or the owner of a vehicle, it must be shown the driver was using it for the owner s purposes under delegation of a task or duty. The mere permission to use it is insufficient to establish vicarious liability and in Norwood v Naven [1981] RTR 437 CA mere knowledge of its use is not sufficient. Diplock J. said: I think that the true test can best be expressed in these words: was the servant doing something that he was employed to do. If so, however improper the manner in which he was doing it, whether negligent or even fraudulently or contrary to express orders, the master is liable. If, however, the servant is not doing what he was employed to do, the master does not become liable merely because the act of the servant is done with the master s knowledge, acquiescence or permission. It is presumed that the vehicle is being used for the master s purposes if the servant has the authority to use it at all. In this case, the servant Ganesh Roopnarine was doing what he was employed to do, namely, driving of the truck. He was doing it in an improper manner. He was doing it negligently. He was doing it contrary to express orders, namely, not to use the truck save for work and for carrying water and for getting to and from work. While it is clear that Ramnarine Singh did not know that Ganesh Roopnarine was using the truck that weekend and neither did he know that Ganesh Roopnarine was going to be transporting more than two passengers in the truck or that he was going to use it for his own purposes, namely, transporting personnel on his private business, Ramnarine Singh was aware that Roopnarine did not respect any alleged limits on the use of that truck and consented expressly or impliedly to its general use for personal business. 8

9 I find that there is no evidence that there was ever any prohibition on Ganesh using that truck for his own purposes. When he used it to collect water, he did so with the express permission of the owner. When he used it to go to the grocery, he did so with the express permission of the owner. When he used it to go and visit his family, based upon witness statement RS.2, I find that he used the truck with the express or implied permission of the owner. All the evidence is to the effect that Ganesh was permitted to use that truck as his own on weekends, that he was not acting contrary to any permission that he had been granted, express or implied, and that the owner of the truck never put a stop to his use of the truck as he could have if at any point in time he felt that Ganesh had exceeded his permission to use the truck. It is clear, therefore, that the permission Ganesh had to use that truck had mutated into almost a blanket or generalised permission, so much so that Ganesh did not feel that he had the need to ask Ramnarine Singh specifically for the use of his truck on the day of the accident. In fact, the witness statement of 6 th April 2004 makes it clear he had also used it to make his groceries and any other personal use. I expressly find that this reflects the position regarding the use of that truck, namely that Ganesh s use of the truck on the Sunday in question though for personal use, had the express or implied permission or consent of Ramnarine Singh, such as to constitute him the servant or agent of the owner. Negligence I find that the driver of the truck was negligent and caused the accident. The Plaintiff testified that in fact the driver Ganesh Roopnarine was driving at 60 mph. Ganesh Roopnarine himself states that at the time of accident he was coming out of a slight bend with a straight 200 feet in front of him. He could not really recall how far away in front of him was the car that he claims caused the accident. He stated that he could see 200 feet in front of him and everything within 200 feet in front of him. He saw the two cars on their left lane coming up. They were not yet overtaking when he first saw them. He stated that the slight bend that he was coming out of was just before the entrance to Hydro Agri. That entrance was about 50 feet from where he came out of the slight bend and therefore there would have been 150 feet after the Hydro Agri entrance that would have been within his range of vision. He put his speed at 45 to 50 9

10 kph. He admitted, however, that he was talking while going along and that he was watching the person he was talking to sometimes, though not all the times. He claimed that when he saw the red car (that is, the overtaking car) after he saw the vehicles on the other lane, approximately a minute passed after the red vehicle began overtaking. He swerved to the left lane to overtake and he saw the red vehicle in his lane not long, about 45 seconds. Clearly, the witness sense of time was not to be relied upon. He claimed that the white car that was being overtaken was about 20 feet from the Hydro Agri entrance and that the red car was about 15 feet in front of him. He claims, however, that he did not mash brakes but he released the X (accelerator) at the time. He accepted that when he released the X the truck would not reduce its speed immediately to 30 mph. It was a gradual process which would take about 40 seconds. He maintained that he did not mash brakes. When asked why he did not stop the truck, he said he did not realise how far away the red car was. He said as a driver, if he saw a vehicle in his lane, he would tend to slow down. He was asked: You would not attempt to stop? His answer was: It depends on the distance. He said I knew there were unsecured men in the truck. He did not make a decision to pull the truck completely off the road. He made the decision to slow down, pull off the road and allow the car to pass. He claimed that when he saw the vehicle overtaking it was driving fast, and he felt fear for the safety for the men in his vehicle. He could not go right because there was another vehicle to his right. He could not go forward because he might injure them. He could only go left. He did all in his power to avoid the accident. I find that he was negligent because he was clearly travelling at an excessive rate of speed in the circumstances. This has been demonstrated by (a) the evidence of the Plaintiff and (b) the evidence of the driver himself. If he was travelling at 45 to 50 kph, there would have been no difficulty in slowing the vehicle and in fact being able to bring it to a stop. His evidence is not credible insofar as he claims that the red vehicle was 15 feet in front of him, having suddenly pulled in front of him. 10

11 In terms of the period of time that he claims to have had that vehicle within his sight, again the evidence is not believable. At 30 mph a vehicle travels 44 feet per second. If this witness was coming out of a bend and he had 200 feet visibility in front of him, he would have had no more than 5 seconds to have had both the red vehicle and the white vehicle within his contemplation. He would have had significantly less than this time even if the red vehicle were not travelling at an excessive rate of speed but were conforming to the speed limit of 30 mph and he himself were conforming to the speed limit of 30 mph as the combined speeds of those vehicles would be 60 mph or 88 feet per second. Accordingly, he would have had less than 2.5 seconds to have observed this red vehicle or for the red vehicle to have observed him. This can by no means be exact but it demonstrates the order of time frames that could have been expected if this witness were at all credible. I find this witness evidence is unreliable. I find that he did not take sufficient steps to swerve, to slow down, stop or manoeuvre his vehicle to avoid the collision. The fact that the truck overturned is consistent on a balance of probability with the fact that the truck was likely being driven too fast to properly slow it down and take it to the edge of the roadway without having its wheels enter a ditch. Excessive speed and failing to take any adequate manoeuvres are both particulars of negligence that I find proved against this Defendant. The Plaintiff testified that the driver of the truck was careless, that he did not mash his brakes in time. If the driver did mash his brakes in time, he would avoid the accident and not turn over. He said that he did mash his brakes before the accident, but not on time. I find that this is the most likely cause of the accident. Quantum of damage The Plaintiff testified that he was self employed at home before this accident took place. He had his own operation and he had one person working for him. The witness accepted that he could sit in a wheelchair, that he was capable of supervising persons with his eyes as there is nothing wrong with them, and his mouth. He made about $ per week and he had work all the time, right through. The smallest sum that he made for the week was about $ and, depending on how the work ran, he could make up to $1, per week. He paid his worker $ per week 11

12 and he had to pay for electricity about $ when the bill comes in because the tools were electric. Out of that $1,200.00, he would take out about $ for expenses and that would leave him with about $ For the best week, he would carry home about $ and for his worst week he would carry home about $ per week. He was 46 years old at the time of trial. For upholstery, it took about two years of training before he could handle himself, before he could do something on his own. Within the first year he felt able to do upholstery and joinery took a little more than a year before he could go on the machine. He claimed to have pain in the right shoulder still and that since the accident he has done no cupboard work and no joinery. He accepted that he did not try to get any type of training for any type of work since the accident, that the only thing that he tried to do was to go back to do the same work. His family, friends and the church help him out at the moment. Dr. Santana testified to the effect of the Plaintiff s injuries as follows: (1) At the time of the accident, he would have suffered excruciating pain which is why he would have lost consciousness until the day after. (2) The Plaintiff sustained: (i) a right shoulder dislocation; (ii) a severe comminuted compound fracture of the right lower tibia and fibula; (iii) a right talar dislocation. (3) At present he complains of severe pain in the right ankle, numbness in the right ankle and foot. He is not able to walk flat on his right sole. He has pain in the right tibia and fibula and he is unable to stand for long periods. (4) Examination revealed a fixed equinus of 30%. (5) There is a diminished range of motion of the right ankle. (6) X-rays revealed severe post-traumatic osteo-arthritis of the right ankle. (7) He required an operation (arthrodesis) of the right ankle to correct these problems at an estimated cost of $60, (8) He estimated permanent partial disability of 30%. 12

13 He also explained in his witness statement that post-surgery the Plaintiff would have had severe pain at the injured sites which would only be relieved with painkillers and would have to be administered three times a day or when necessary. Now it is expected that he would still suffer pain on a daily basis for which he would have to take painkillers for relief. He testified that because of the injuries the Plaintiff suffered, he would not be able to stand or walk for long periods of time. He is unable to walk flat on his right sole and has to use a walking stick to move around. He opined that he did not think the Plaintiff would ever be able to resume his job as an upholsterer or joiner for the rest of his life, that after the arthrodesis, which would cost approximately $60, and which he recommended to relieve pain, he expected him to suffer severe pain post-surgery which would be relieved by painkillers three times a day and that he would have to use crutches for six months to move around and would need assistance to perform normal daily activities. The Plaintiff may also have to use a walking stick for the rest of his life, even if the surgery performed is successful. He expected that there would be degeneration of the right ankle joint over time with the development of post-traumatic osteo-arthritis. He made it clear that the Plaintiff could not stand for long periods, that even if he had the operation which was being recommended, he would still not be able to stand for long periods. However, the Plaintiff could stand and have movement to a limited extent. He suggested a permanent partial disability of 30% which would be reduced by 10% if the surgery that he recommended to fuse the ankle were performed. The operation of arthrodesis would diminish the pain but the cost of this would be severe limitation of movement of the ankle. In assessing the Plaintiff s damages, I am guided by the principles set in the case of Corneliac v St. Louis [1964] 7 WIR 464, in particular the considerations of: (1) The nature and extent of the injury sustained; (2) The nature and gravity of the resulting physical disability; (3) The pain and suffering which had to be endured; (4) The loss of amenities suffered; and (5) The extent to which the Plaintiff s pecuniary prospects have been affected. 13

14 The Plaintiff s injuries have been appropriately described in the report of Mr. Santana and the level of his pain and suffering has been described. It seems that at the moment the Plaintiff is not suffering severe pain, although he does have some pain, and can expect to have more severe pain for a limited period after further surgery is performed. It is also clear that the Plaintiff s mobility is affected. While he is able to walk with a stick, he cannot stand for long periods. He cannot stoop or squat. It is clear that this would affect the Plaintiff in his ability to personally carry out joinery and upholstery as he used to before the accident. Incapacity I accept that the Plaintiff has been significantly handicapped in the labour market. The Plaintiff is 46 years old. The question of re-training is not practical. The Plaintiff himself said that what he tried to do is go back to the jobs that he knew before (that is, upholstery and joinery) but he was unable to do so. The accident took place in It is now The Plaintiff has been unable to work since that time. I do not find that the Plaintiff has exaggerated his injuries which, in any event, are supported by the medical report of Mr. Santana. Apart from not being able to play sports, the main effect of his injuries is that he is unable to work full time. In fact, the medical evidence suggests that he is unable to perform upholstery and joinery full time also. It was suggested that nothing prevented the Plaintiff from supervising his employees, of which he had one prior to the accident. It was put to him that he could sit in a wheelchair and supervise verbally. As a matter of logic, this appears to be a workable solution. As a matter of practicality, the Court is left in considerable doubt as to whether this could actually occur given the fact that the Plaintiff, although prior to the accident always had work, would under an arrangement where his sole contribution is supervising, be at the mercy of his employees. If his employees left, he would be unable to earn anything whatsoever. I take note that in the current state of the economy, it is extremely difficult to retain staff, especially staff who might acquire skills that they can market themselves. There is absolutely no evidence that the person who worked with Plaintiff is still available to work with him or that the Plaintiff has other persons available to work with him. In fact, it is clear that in the five years that have elapsed, the Plaintiff was not able to work and is living on the kindness of friends, family and the church. 14

15 I do not consider it at all practicable for the Plaintiff to acquire alternative unskilled labour as either a newspaper vendor or a security guard. The physical requirements of being s security guard alone would disqualify him from such a position. Even as a watchman, the effect of this would be severely compromised as pointed out by Mr. Santana. MULTIPLIER At the date of trial, the witness said he was 47 years old. He could have had a working life of at least 18 and possibly more given that he was self employed. At the date of his witness statement, he was 46 years old. At the date of the accident in 2003 he would have been 41 years old. The Plaintiff s attorney proposed a multiplier of 10 for future loss of earnings. I propose to use a multiplier for future loss of 8. I am guided by the Privy Council case Privy Council No. 86 of 2002, Peter Seepersad v Theophilus Persad & Capital Insurance Ltd. delivered on 1 st April In that case the appellant who suffered personal injuries was 37 years old at the date of trial. I note that at paragraph 18 the Privy Council took into account the current discount rate on treasury bills in Trinidad and Tobago as being between 5% and 6% and assessed a multiplier of 16 years in order to provide proper compensation to the appellant taking into account interest rates in Trinidad and Tobago and making some allowance for the contingencies of life. I take into account that in the Seepersad case the multiplier used was 16 for a plaintiff 37 years old at the date of trial. I note also that interest rates in Trinidad and Tobago have been on the increase and are currently in excess of 8%. I consider that the earning capacity of the Plaintiff would not be speculative The multiplier of 16 in the Peter Seepersad case was for future loss of earnings, loss of earnings pre-assessment having been quantified 15

16 I find that the Plaintiff, being of limited education and unable to read or write properly, is significantly impaired in the labour market to the extent of 100%. I find that he has not exaggerated or attempted to exaggerate his net earnings. He stated frankly that for his best week he would carry home about $ per week and for his worst, he would carry home about $ per week. He would make $ when he was relaxing and when he hardly had work. He testified that he did have records for the amount of money he made per month. He had accounting records but he did not have them with him. I find that it is likely that the Plaintiff would have earned $ per week for most weeks of the year. It is probable that he would have taken time off equivalent to a vacation and reduced the amount of work that he produced for a period. In all likelihood, I find that period would be two weeks. I accept his statement of his net earnings of $ per week which is not at all an excessive sum for someone who is performing upholstery and joinery services. I find that he would have earned this sum net for 50 weeks and that he would have earned the sum of $ per week for two weeks. 50 x $35, x $ To these future annual earnings of $35, I apply a multiplier of 8. The pre-assessment loss from 2003 to th January 2003 to June 30 th years 5 months 5 years x $35, $177, weeks x $ $ 14, TOTAL - $191, From 2003 and 2008, 25 th June 2008, on the sum of $191, interest would run thereon at the rate of 6% per annum. FUTURE LOSS OF EARNINGS $ *8 -$285,

17 GENERAL DAMAGES FOR PAIN AND SUFFERING AND LOSS OF AMENITIES I consider the following cases relevant: Wiley, Wiley & Titus v Sorzano (First Plaintiff), High Court Action No. S-733 of 1992, decision of Justice Bharath delivered 25 th March The sum of $50, was awarded in respect of a 48-year-old woman with a comminuted supra-condular fracture of the left femur (requiring a bone graft plate, stymen pin and traction, fracture) of the first metacarpal, 1-inch shortening of leg and restriction of knee flexion. Further surgery was required two years later. The injury left unsightly scarring and wasted left quadricept muscles and caused osteo-arthritis of the knee. Although the injury is not the same as the instant case, I find that the effects of the injury appear to be comparable. The injuries in the Peter Seepersad case were wedge compressions fractures of the L1 and T12 vertebrae, which were healed. The L5 S1 disc was prolapsed leading to continuing pain and incapacity. In that case, the Privy Council declined to interfere with an award of $75, in respect of general damages In the case of Baldor v Prestige Car Rentals, Bankers Insurance & Patrick Alamani, High Court Action No. 442 of 2000, Justice Mendonca in the judgment dated 22 nd November 2000 assessed damages in respect of an 18-year-old female pedestrian who suffered severe knee injuries including a ruptured anterior ligament of the knee, a ruptured posterior ligament of the knee, severe damage to the lateral perineal nerve of the knee and rupture of the medial collateral ligaments of the knee causing complete instability. She had no control over her foot as the result of nerve damage and was unable to bear weight. Nine months after the accident, she underwent four hours of surgery for the repair to the anterior ligament. As a result thereof, the plaintiff was able to bear weight on crutches. Seven months later, she was able to walk but limited to approximately 100 yards. She needed to use crutches or at best a walking stick at all times and had to wear a knee brace. She was unable to sit or stand for any length of time and full weight bearing was difficult. She had significant foot drop and numbness of the dorsum of the foot. She required a foot drop splint at all times and recovery of the lateral perineal nerve was very slow. 17

18 There was major scarring of the knee and likely future scarring after further surgery which was contemplated. Her permanent partial disability was assessed at 40% and three further surgical procedures were required to repair the ligaments and the foot drop. The best outcome contemplated from surgery was that the plaintiff would still be left needing to use a walking stick and she would always be limited in her ambulation, although after surgery she would be able to walk a few hundred yards without significant pain or having to stop to rest. Her permanent partial disability would be reduced but still significant. She suffered severe pain at the time of the accident and severe pain at the time of surgery. It was contemplated that her future surgeries would be equally painful. I find that the effects of this injury also appear to be similar to the effects of the injuries sustained by the instant Plaintiff. At the time of trial, the plaintiff continued to complain of pain and found it painful to climb up and down stairs in her home and she was unable to sit or stand for long periods without experiencing cramp. The brace that she wore also caused her sleep to be disturbed. He awarded general damages of $155, for pain, suffering and loss of amenities. In that case, he awarded a further $16, for loss of pecuniary prospects. The Learned Judge did not consider or accept that the plaintiff would be unable to work other than during the periods of rehabilitation. In that case, the plaintiff had attended secretarial school and had taken computer and other courses, and had been employed as a part time clerical worker at a salary of $ per month. In the instant case, the Plaintiff was not qualified for a sedentary job. He had little or no education. He was not as young as the plaintiff the Baldor case and with his lack of education and his qualification only for occupations which required some degree of flexibility and movement and his exceedingly poor prospects for re-training, I find that he is unlikely to be able to secure meaningful employment and that his handicap on the job market was 100%. I find also the case of Webb v Seereeram Brothers, Civil Appeal No. 130 of 1998 delivered on 1 st June 2001 to be relevant. In that case, the appellant was a Civil Engineer. He sustained a compound fracture, and dislocation of his left ankle. He underwent surgery which involved total wound debridement and external fixation of 18

19 the ankle. There was a second surgical procedure and he was discharged from St. Clair Medical Centre after 25 days. He remained at home for a month and then was re-admitted for a week during which time he had an operation to fuse the ankle. Upon examination in Canada three months later, it was discovered that he had septic arthritis and osteomyelitis with the failure of the previous left ankle arthodysis with malunion. The appellant remained in hospital and had an operation 20 days later and was discharged 15 days thereafter. He testified to severe pain at the time of injury and continuing pain. He was in his 50s at the time of the appeal and it was held that he was not likely to be able to compete in the job market for the type of position he formerly held. General damages were awarded in the sum of $60, with a deduction for contributory negligence. In that case, the appellant was awarded six months loss of earnings. His injuries appear to have been less long lasting in their effect than the injuries in the instant case. I consider also the case of Caribbean Molasses Company Trinidad Ltd v Ganace delivered on 27 th July 1983, Civil Appeal No. 7 of In that case, the respondent was a taxi driver aged 46 at the date of trial. He suffered a compound comminuted fracture of the right tibia and fibula and a fracture of the right femur. Although the injury is different I consider the effects thereof insofar as it relates to the instant Plaintiff. The leg was put in a cast, plaster applied to the fibula and the tibia and femur were treated by traction. A pin was inserted in the tibia. Approximately five weeks after the accident, a rod was inserted in the bones. He had an infection of the wound which subsequently subsided and he had cramps which continued up to the date of trial and was in plaster for over six months. Two years after his accident, the femoral fracture was united but the lower segment rolled out and shortened. It was a perfect uniting, and the tibia and fibula had united in reasonable alignment. The limbs were 3 inches short. The knee movement was restricted from 180 degrees to 160 degrees, normal movement being 180 degrees to 65 degrees. The movement was severely limited. The ankle joint was stiff and could just reach the planta position. He could not drive a motor vehicle and he walked with crutches because of the shortness of his leg. Surgery was recommended to correct the alignment of the leg and to lengthen the leg. The respondent was described as physically incapacitated but 19

20 otherwise mentally and physically fit. The possibility that surgery would be successful in restoring him to normality was regarded as remote and it was not thought unreasonable that the respondent did not seek employment in a field other than taxi driving. The Court of Appeal increased the award for general damages from $40, to $126,000.00, of which $96, represented loss of prospective earnings and $30, damages for pain, suffering and loss of amenities. The decision in this case was delivered 25 years ago. That award, according to Daly s on Damages updated supplement, adjusted to November 2002, is approximately $109, I accept that though this is only an approximation to assessing the purchasing power of the award when it was made and bringing it into line with the purchasing power of money at a later date and that the methodology thereof is yet to be endorsed by the Court of Appeal. Nevertheless I find it is a useful guide inter alia : (1) To provide a sanity check on a contemplated award in relation to matters where the injuries are found to be sufficiently similar to a case under consideration after careful analysis. (2) To obtain the benefit from previously decided cases of the higher Courts where awards of lower Courts have been analysed and reviewed. In the instant case, I find the above cases provide sufficient evidence of a range of awards such that $75, to $160, would not be unreasonable in the instant case. Because the Plaintiff is undergoing further surgery at a cost of $60, which is expected to relieve his pain and reduce his disability to a small extent, I award the sum of $150, as damages for pain, suffering and loss of amenities and the sum of $60, for the cost of further surgery. Conclusion and award General damages: (a) for pain and suffering and loss of amenities --- $150, (b) Interest thereon at the rate of 12 % per annum from the date of filing of the writ 20

21 (c) Future loss of earnings $35, x 8 - $285, Special damage: (i) Loss of Earnings - Pre accident loss - $191, (ii) Medication $5,000.00; (iii) Medical report $450.00; (iv) Certified copy and travelling $45.00; (v) Interest on (i) t o(iv) above at 6% per annum from January 27 th 2003 to June 30 th 2008 (vi) future medication $13,140.00; (vii)cost of future surgery $60,000.00; Costs The Defendants are to pay the Plaintiff s costs certified fit for Counsel to be taxed in default of agreement. Liberty to Apply Dated the 30th day of June 2008 Peter A. Rajkumar Judge 21