IN THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CLAIM NO CV BETWEEN. FLORIDA SPANN Claimant AND

Transcription

1 IN THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CLAIM NO CV BETWEEN FLORIDA SPANN Claimant AND ROOPLAL BALKISSOON First Defendant AVION BALKISSOON Second Defendant THE NEW INDIA ASSURANCE COMPANY (T&T) LIMITED Third Defendant ********************************************* Before: Master Alexander Appearances: For the Claimant: Mr Rennie Gosine For the Defendants: Ms Deedra Ramnanan Maharaj DECISION 1. On 18 th May, 2009 the claimant, Florida Spann (hereinafter Florida ) was a passenger in motor vehicle registration number TAW 9557 which was proceeding along the Solomon Hochoy Highway, in the island of Trinidad and Tobago when a collision occurred with PBM Florida sustained injuries from that accident and sought compensation by this action. Page 1 of 9

2 General damages 2. General damages are damages presumed by law to ensue from the wrong done by the defendant, as the direct, natural and likely outcome of it. 1 As it is a loss to the claimant that cannot be specifically quantified, namely past and future non-financial loss and future pecuniary loss, in assessing it the principles set out in Cornilliac v St Louis 2 are applied. 3. In the medical report of Dr Anil Ali, dated 22 nd September, 2009 (hereinafter the 1 st Ali s report ) Florida was diagnosed with the following injuries: Grade III open fracture right medial and lateral tibial plateaus; Framed right patella, 20 x 5 cm laceration to proximal tibia; Grade II open fracture left tibial plateau 12 x 3 cm laceration; Laceration to dorsum left hand. An above knee plaster was applied and Florida was admitted to the Ward for management. She underwent bilateral open and internal fixation of both tibial plateaus and right patella using peri-articular plates and screws. She also had a screw fixation of the right patella augmented with cerclage wires. Synthetic bone graft was used. 4. As to any resulting physical disability, the 1 st Ali s report stated, her recovery was stormy, requiring prolonged anticoagulation therapy and frequent dressings. Her wounds eventually settled. Then, in a second report dated 13 th April, 2010 ( the 2 nd Ali s report ) it was stated: Her post operative recovery was complicated by superficial infection and wound dehiscence on the right side. She was high risk for venous thrombo embolism and was therefore on continuous subcutaneous heparin therapy. She was eventually discharged on the 19/06/2009 to be followed as an outpatient. Her fractures went on to unite and eventually weight bearing began in December When seen today all wounds were healed. She was mobilizing with a walking frame. It is clear that whilst initially her injuries presented challenges which were stormy her wounds eventually settled, the fractures united, she was weight bearing by December, Mario s Pizzeria Ltd v Hardeo Ramjit CA 146 of Cornilliac v St Louis (1965) 7 WIR 491 Page 2 of 9

3 and mobilizing with a walking frame by April, There was clearly no untoward resulting disability. 5. Florida s injuries, which included both her limbs being broken, would have led to her suffering excruciating pain, especially during the initial stages. She states in her evidence in chief, "As I opened my eyes I saw a nurse cutting my clothes off of me. I was confused and scared. The nurse was sponging blood of (sic) my face and my hands. I then tried to move and I realized that I could not move my legs. The pain then hit me. I felt pain throughout my whole body. I started to bawl and cry from the pain and the fear." 6. She described her pain as constant while at hospital and of having to undergo the humiliating experience of getting injections in her stomach to prevent blood clots. As she underwent surgery, her pain would have lessened to some degree but it is her evidence that following discharge, she still endured excruciating pain and being wheelchair bound, it was difficult to get around, I could not even use crutches to move on my own because of the injuries to my legs and the casts. The only times I would leave the house would be for visits to the doctor or hospital. This was a very depressing time for me as I am normally an independent person. The 2 nd Ali s report indicated that her post operative recovery was complicated by an infection and this would have been painful, with an even more painful recovery process. She had to use a walking frame, which made movement uncomfortable. She has claimed that her pains continue to date and does not go away. It is accepted that this is so and it is pain that may continue for the rest of her life, but its intensity would not have been at the same level when the accident happened so is manageable with medication. 7. The 2 nd Ali s report indicated that at that time, Florida was unable to work and that her total disability will continue for the next year. This is an approximate recovery period of 2 years. Florida is self-employed in the business of selling preserves. She has given evidence of having hired help in the person of her niece for 3 months. Counsel for the defendants submitted that she should have mitigated her loss. Page 3 of 9

4 Case law 8. Both counsel have suggested cases on quantum as follows: Johnson Ansola v Ramnarine Singh, Ganesh Roopnarine and the Great Northern Insurance Co Ltd 3 where a 46 year old plaintiff who was a passenger in a vehicle sustained a severe comminuted compound fracture of the right lower tibia and fibula, a right talar dislocation and a right shoulder dislocation. There was a diminished range of motion of his right ankle and he complained of severe pain in the right ankle and pain in the right tibia and fibula. He was unable to stand for long periods and had to use a stick to move around because of his injuries. Operation of the right ankle was advised as a requirement to correct these problems and relieve pain. Permanent partial disability was assessed at 30% which could be reduced by 10% if surgery is performed. He was awarded general damages for pain and suffering and loss of amenities of $150, (as adjusted to May, 2010 to $178,247.42) and for future surgery $60, which was unchanged on appeal. Marvin Raymond Lyons v Sherlon Caseman and ors 4 where the claimant suffered multiple injuries including posterior dislocated hip; compound comminuted fracture of the right tibia; compound fracture of medial left malleolus; comminuted fracture of the right acetabulum; and soft tissue chest injury. Consequent on these injuries, he led evidence that he suffered with pains in the right hip; right leg; left ankle on walking; stiffness in the right hip; diminished external rotation and abduction by 10 0 in the right hip and diminution in the dorsi flexion by 10 0 of the left ankle. He underwent several surgical procedures. His right leg was strapped to weights and his left ankle was placed in a back slab. There was infection in the shin area for which he was prescribed antibiotics and a further surgery took place on the ankle. He was awarded $180, in general damages in September, Nyeem Mohammed and Natalia Mohammed v Sarju Singh 5 delivered on 29 th June, 2012 where the first claimant sustained comminuted segmental tibia and fibula displaced fracture, patella tendon fracture and fifth metatarsal fracture to the left lower limb; and displaced patella fracture with patella tendon rupture and ACL rupture to the right lower limb. He also 3 Johnson Ansola v Ramnarine Singh, Ganesh Roopnarine and the Great Northern Insurance Co Ltd HCA No 3487 of Marvin Raymond Lyons v Sherlon Caseman and ors CV Nyeem Mohammed and Natalia Mohammed v Sarju Singh CV Page 4 of 9

5 suffered an extensive Grade III B open fracture dislocation of the foot and ankle injury with missing tarsal bones. He also suffered injury to his chest, rib fractures and pulmonary consolidation. He had amputations of the right great toe and first metatarsal bone; multiple pre-operative blood transfusions and was still using a walking stick at the assessment. He was awarded $225, as general damages. Henry Belford v Khamerajie Dass and ors 6 delivered on 16 th April, 2014 where the claimant suffered a comminuted fracture left tibial plateau Schatzer V, fracture dislocation of left shoulder, dislocation of right shoulder (anterior), multiple abrasions to his forearms and hands, loss of consciousness, shortening of leg and a right pulmonary embolism. He was awarded $150, for general damages. 9. In my view, the injuries sustained by Florida, which included both legs being broken and where she underwent bilateral surgery, insertion of plates and screws and a synthetic bone graft were indeed severe. She may not have suffered a shortening of the leg as in Belford supra but was unable to walk for an extensive period. I considered her injuries to be graver than the claimant in Ansola supra and as such she was deserving of a bigger award. In my view, her injuries, pain and discomfort were comparable to that of Marvin Lyons supra but were of lesser severity and not as wide-ranging as the claimant in Nyeem Mohammed supra. I, therefore, concluded that any award to Florida should range between $180, and $225, bearing in mind the usual principles on assessments and that these figures should be adjusted upward to Bearing in mind the pain and suffering of Florida, I considered that an award of $200, would more than meet the justice of the case. 6 Henry Belford v Khamerajie Dass and ors CV Page 5 of 9

6 Special damages 10. It is trite law that special damages must be pleaded, particularized and strictly proved 7. The following items of special damages have been agreed: Medical expenses $ Domestic expenses $ 4, Cost of wheel chair $ 3, Cost of building toilet $ 1, Transportation $ 1, Total $11, Loss of earnings 11. In the instant case, a claim was made for loss of earnings from 18 th May, 2009 to present or $10, per month, in the global sum of $240, This is a claim, capable of substantially exact calculation and which should be pleaded in fairness to the defendant. The general principle holds that a statement of case should identify all the heads of losses that are being claimed 8. A claimant appearing before an assessing master is also duty bound to come prepared to prove the losses sustained. In the instant case, Florida has not annexed any documentary evidence in support of this particular claim save and except an income statement. It is accepted that she is self-employed so could not produce a job letter or pay slip. She, however, has not provided a bank statement or evidence of income tax and/or other statutory payments, even though her business was registered. She has given evidence of dealing with suppliers from whom she would buy her preservatives and foreign snacks and that they would provide her with invoices and bills. She also admitted under cross examination to depositing her profits with the bank but that she did not bring any bank statement as proof of her earnings. Given that it is trite law that a claimant ought to plead and prove these damages, her failure to properly do so is frown upon. A claimant cannot just make a claim and throw figures at a court and expect to be given what has been asked for. She is required to prove her claim. She has annexed an 7 Grant v Motilal Moonan Ltd. (1988) 43 WIR 372 per Bernard CJ and reaffirmed in Rampersad v Willies Ice-Cream Ltd Civil App 20 of Charmaine Bernard v Seebalack, PC No 0033 of page 7 Page 6 of 9

7 income statement for the year ended April, 2009, the maker has not indicated what information he took into account in preparing the said statement or his methodology for arriving at his conclusion. The said accountant was not called as a witness notwithstanding the substantial claim being made for loss of earnings. 12. Further, under cross examination, she admitted that her niece would help her in the business, whenever she had to leave to purchase goods or run errands. After the accident, the niece continued running the stall in her absence for 3 months until the expiration of her lease. Counsel for the defendants has asked the court to accept that it is the expiration of the lease and not the injury that has caused Florida to cease running the stall at the market. Counsel also pointed out the contradiction in the evidence of Florida and the investigator/mr King (the defendants witness) as to her mother assisting with the running of this stall. Florida s evidence is that her mother did not assist her with the running of her business during her recovery process whilst the investigator/mr King testified that he was 'told' that her mother assisted with the stall during that period. In this regard, the court was invited to treat the issue of loss of earnings as a moot point on the basis that Florida s niece and mother continued running the business in her absence, in which case she has mitigated her loss fully. It was submitted further that with her niece running the business, there is no evidence of any reduction of Florida s income. 13. Whilst the submission of counsel for the defendants was an interesting spin on the evidence, I could not accept it as inviolable or conclusive; especially given the investigator/mr King s evidence was not direct evidence of what he had witnessed. On the other hand, the evidence provided by Florida as to loss of earnings included in the main her viva voce evidence and an income statement for the year ended April, 2009, whose maker was not available for questioning. She also provided medical evidence (see the 2 nd Ali s report) which concluded that she was unable to work and that her disability will likely continue for the next year. Her counsel has submitted that despite her evidence in chief that she was unable to work for about 2 years, she has in fact not worked since the date of the accident and accordingly should be compensated. I accepted that Florida was a self-employed vendor. She has estimated her salary as $10, per month and the April, 2009 income statement showed her profit as Page 7 of 9

8 $161, per year. Her counsel has submitted that based on the evidence, she is entitled to loss of income from the date of the accident to the assessment (60 months) in the sum of $600, Based on the evidence, I was not convinced that Florida has satisfactorily proved she has suffered loss of earnings to the extent as claimed. I bear in mind that this was a stall selling preservatives and that the evidence pointed to her niece continuing to run the business. I rejected counsel for the defendants submission that this should be taken to mean that Florida has fully mitigated her loss. I do not have the evidence before me to lead me to so conclusively conclude. I have no evidence as to the earnings from this stall under the sole management, care and operation of the niece and if for instance, she worked the same hours as Florida. What is clear on the evidence is that Florida got into this accident on 18 th May, 2009 and by the 2 nd Ali s report dated 13 th April, 2010 was still described as being unable to work and that her total disability would most likely continue for the next year. I have no further report on this issue so I take my guidance there from. In so doing, I was cognizant of the fact that her monthly earnings were an estimate but that to an extent was backed up by the income statement. This provided limited evidential basis. I also considered that if her stall was being run by her niece, she may have still been in receipt of some profits there from but I have no evidence of that. Whilst I was not happy with the level of proof of this loss, this is not a case where she has not provided any form of evidence. Given the thinness of the evidence, I am prepared to allow her loss of earnings for a 2 year period with a 25% deduction for holiday, illness, taxation and other contingencies of life as follows: $10,000 x 24 = $240, Less 25% $ 60, $180, Future loss of income 15. Counsel for Florida in his submissions conceded that future loss was not expressly pleaded. He sought, however, to advance that what was pleaded was continuous loss of earnings and argued that this applies also to the date after the assessment. This argument is rejected as sophistry and a blatant attempt by counsel to get around the failure to properly plead a head of Page 8 of 9

9 loss that by law is required to be pleaded. It is insufficient to claim that a serious injury was sustained, which has impaired Florida s ability to work to date without more. The medical evidence must be clear that this loss is continuing post assessment or certify her permanently unfit to work. What obtained in the instant case was a clear statement by the doctor that this loss was limited to at least 2 years and I am not prepared to make any award outside of this period without the necessary evidence in support of it being before me. The standard of evidence required for an award under this head not having been met, this claim is denied. Order 16. It is ordered that the defendants and co-defendant do pay to Florida (the claimant): i. General damages in the sum of $200, with interest at the rate of 8% per annum from 12 th January, 2011 to 9 th October, 2014; ii. Special damages in the sum of $191, with interest at the rate of 6% per annum from18 th May, 2009 to 9 th October, 2014; iii. Costs as assessed in the sum of $39, iv. Stay of execution of 28 days. Dated 9 th October, 2014 Martha Alexander Master Page 9 of 9