IN THE HIGH COURT OF JUSTICE BETWEEN AND MOTOR ONE INSURANCE COMPANY LIMITED DECISION

Transcription

1 IN THE REPUBLIC OF TRINIDAD AND TOBAGO CLAIM NO CV IN THE HIGH COURT OF JUSTICE BETWEEN ST. LEO HENRY Claimant AND ORLANDO ADJODHASINGH AARON ADJODHASINGH MOTOR ONE INSURANCE COMPANY LIMITED First Defendant Second Defendant Third Defendant ****************************************** Before: Master Alexander Appearances: For the Claimant: Mrs Natasha Baiju-Patrick For the Defendants: Mrs Indra Lutchman-Ramdial DECISION 1. The claimant in this matter ( St. Leo ) was only 22 years old when he suffered severe injuries in an accident that left him a paraplegic. The accident occurred on 10 th May, 2011 when motor vehicle registration number PAH 3030 was being driven negligently, and in what would appear to have been at a fast rate of speed, by the second defendant ( Aaron ). At the material time, the car was proceeding in an easterly direction along Clarke Road, in the vicinity of Petrotrin, Penal, in the island of Trinidad. On navigating a corner, a tyre blew and Aaron lost control, causing the car to run off the road and crash into a tree. St. Leo was sitting in the front passenger seat when his head made contact with the door post and, simultaneously, his neck was jolted. It is not in dispute that St. Leo remains paralyzed from the chest down, unable to take care of himself and wheelchair bound for the rest of his life. In fact, he was given a disability award of 100% permanent partial disability. Page 1 of 15

2 2. At the time of the accident, the car, which was owned by the first defendant ( Orlando ), was covered by an insurance policy from the third defendant ( Motor One ). Under this policy, there is a statutory limit of $1,000, payable to any one person out of any single event and $2,000, for any one accident 1, and the court was directed to have regard to this in making its award. Given the nature of the injuries sustained by St. Leo, it was, therefore, not surprising that Motor One would seek to place any award of damages within these strict confines. In fact, while admitting the severity of the injuries and that St. Leo will be dependent on others to take care of him for the rest of his life, counsel for Motor One, Mrs Lutchman-Ramdial, sought to squeeze the damages payable into the strict confines of the policy limit. This court was cognizant of the statutory limit by which Motor One was bound. The terms of the policy were clear that there is a limit on the amount any single injured person in an accident can recover directly from the insurer In the conduct of this assessment, it was the responsibility of this court to ensure that compensation for the injuries sustained was justly awarded. In this regard, this court was mindful that compensation for personal injuries is never perfect but regard must be had to it being a singular award, as St. Leo does not have any opportunity to return to claim for continuing losses. This being the case, it was incumbent on this court to ensure that the quantum awarded to compensate St. Leo was fair, adequate and reasonable in all the circumstances of the case. I now turn to assessing his damages. The injuries 4. St. Leo has suffered multiple severe injuries. These injuries have been distilled in two separate medical reports which St. Leo has submitted as part of his case. The first report dated 14 th November, 2012 was prepared by Dr Osagie Igbinoba from the Neurosurgery Unit of the Port of Spain General Hospital. The second report dated 21 st January, 2013 was under the hand of Dr Rasheed Adam of Surgi-Med Clinic. The injuries of St. Leo, as extracted from the above two medical reports, were: comminuted fracture of the C5 vertebra with spinal cord compression; C7 paraplegia motor and sensory; C5 subluxation; no movements distally in upper 1 See section 4(2) as amended by Act No 38 of See Suttle v Simmons (1989) 2 Lloyd s Law Report 227 (from Bermuda) or (1989) 37 WIR 133. The Privy Council in several cases has maintained that insurers are liable for no more than such liability as is required to be covered and that no liability is required to be covered in excess of the amount prescribed by the relevant statute. See Goberdhan v Caribbean Insurance Company Limited UKPC 25 (21 st May, 1998) Page 2 of 15

3 limbs; complete loss of power in both lower limbs; complete loss of sensation from the chest down to the left feet; swelling and laceration to the head; bed sores and urinary tract infection. 5. The medical report of Dr Adam noted that x-rays and a CT scan revealed that St. Leo had sustained fractures to his neck and spine. On 19 th May, 2011, St. Leo underwent C5 corpectomy, right iliac grafting and fusion surgery with plate and screws or what is called anterior cervical fusion. Subsequently, he commenced physiotherapy but never regained power in the lower limbs. He also had surgery for pressure ulcers and suffered with pain in the neck, hips, elbow, knee and ankle. Dr Adam stated that he has normal bowel movements and an urosheath for urine collection. He was diagnosed as having C7 paraplegia, so was totally disabled and medically unfit to work in any capacity. In this regard, Dr Adam assessed St. Leo with a 100% permanent partial disability. The evidence 6. The gravity of the injuries sustained by St. Leo and his continuing disabilities are not in dispute - he is a C7 paraplegic. St. Leo averred that after the impact, he was in intense and unbearable pain, which was aggravated by the sight of blood everywhere. He felt fear that he might die on the spot. Almost four years after the accident, St. Leo has continued to experience pain. Despite receiving physiotherapy, his medical condition has not improved. He averred that these sessions were painful and left him drained and exhausted. He was also in excruciating and agonizing pain throughout his stay at hospital, where he remained immobilized, on a special mattress. His post-surgery experience was exceedingly painful. Medication did not erase the pain but provided only a temporary ease, with the pain returning once the painkillers wore off. He also has had to contend with chronic neck pain, bedsores, ulcers on various parts of his body and a wasting away of his muscles; with the bedsores being so bad that he required surgery to treat them. He has lost control of his bowel movements so uses pampers and an urosheath. His continuing emotional trauma and pain were seen in his evidence of embarrassment on being cleaned by female nurses, particularly on the open hospital ward - an experience he sought to block out: every time I had to be helped to relieve myself I closed my eyes and turned away from the nurses in shame. His evidence is that even being transported to and from the hospital was painful, uncomfortable and depressing. It is clear that St. Leo is expected to endure this level of psychological turmoil and distress for the rest of his life. Page 3 of 15

4 7. St. Leo s evidence of the emotional and psychological anguish and pain are graphically captured in his words thus: There was nothing more the doctors could do for me. I was destined to remain a vegetable for the rest of my life. I felt totally useless and helpless. I worried about who would take care of me for the rest of my life. I did not want to be a burden to anyone. I would be better off dead. Words cannot describe how struck with grief and how broken my spirit was. I underwent physiotherapy to see if there would be any improvement in my medical condition. The therapy did not work. Nothing that was done worked. My condition remained the same. I was confined to bed. I needed assistance to do everything even to relieve myself. I was in constant pain all over my body. I got into a state of depression thinking that I am so young and this is the quality of life I would have until I died. I cried a lot during this period and still do. No words could adequately describe my feelings of despair at that time and now. My life is over. This accident has forever changed my life. I am no longer able to play sports, physical activity, play with my child, have sex or even work to earn a living to support myself. Each day I have to live with a degree of pain, disability and the knowledge that I am a vegetable and will be so until I die. As I get older things will get worse. I never had any physical impairment or problem before this accident and the injuries I suffered with. I face a life filled with doom and gloom. 8. St. Leo is prevented from participating in any activity requiring mobility of the body, including sports, which he previously enjoyed. His chronicle of playing basketball in the evenings and nights after work in the community where he lives and how he can no longer do so or play any other sport is accepted. Also accepted is his narrative of how he used to spend his weekends taking his son on outings and that his injuries have effectively denied him of having a satisfying relationship with his son. Discussion 9. It is uncontested that the injuries sustained by St. Leo are tragic and permanently life altering. Any quantum awarded by this court would not reverse the damage done to him or return him to the position that he was in prior to the accident. St. Leo has effectively captured in evidence Page 4 of 15

5 his pain and suffering as well as his huge loss of amenities. It is accepted that given his injuries, his enjoyment of life has been wiped out. In these circumstances, St. Leo is entitled to recover damages for the injuries and losses he suffered as a result of the accident. 10. The bedrock for assessing the compensation payable to St. Leo is the decision of Cornilliac v St Louis 3. The evidence has already been outlined against the backdrop of these well-known principles and there is no need to repeat them. His damages for the tortious wrong committed against him would take the form of a one time, lump sum award of money 4. Given the severity of his injuries and that he is now and will remain a vegetable for the rest of his life, I am convinced that no amount of money can compensate this 26 year old man for his suffering and the erosion of his quality of life. Nevertheless, the mandate of this court is to convert his pain and suffering and loss of amenities into a monetary sum, bearing in mind that while he may not be perfectly compensated, he should be given an award that will, at the very least, return him to the position he would have been in before the perpetration of the wrongful act. It is accepted that he will never walk again neither will he be able to earn a living to take care of his family in the same manner as he was doing before the accident nor participate in the normal activities of life that involve mobility. His evidence seems to point to his belief that his life has effectively come to an end on the basis that its quality has been obliterated. His evidence also points to a continuing worry, distress and despair over how, in going forward, he will receive the ongoing care for the rest of his life. One can only imagine the emotional and psychological trauma and suffering that he continues to go through as he ponders these issues. To my mind, returning him to his pre-accident position would not be in terms of mobility but his compensation should at least secure him the care he requires. It was considered, therefore, that as he would require 24 hour nursing care, his compensation should be such that he is placed in the pre-accident position of being able to meet this and other needs. 11. In actions for personal injuries, damages recoverable are usually in the form of special or general. Three cases were supplied by Mrs Baiju-Patrick, counsel for St. Leo, to assist with arriving at a figure for general damages. The first was Christopher v Rampersad 5 where a 15 year old plaintiff suffered injuries described as tetraplegia/quadriplegia. On 16 th July, Cornilliac v St Louis (1965) 7 WIR Mc Gregor on Damages 17 th edition paragraph page 3 5 Keron Christopher v Clarence Rampersad & anor HCA No S1063 of 1996 Page 5 of 15

6 Wendell Kangaloo J (as he then was) awarded $890, as general damages, $600, as loss of earnings, $480, as future care, and $549, for future medical supplies. The sum awarded as general damages when updated to January, 2013 (RPI being 208.5) is equivalent to $1,964, Of note is that the court in that case was also addressed by counsel on the issue of the statutory limit faced by insurance companies, which at that time was $500, Commenting on whether the plaintiff may be able to recover his full judgment or not, Kangaloo J stated, it would mean that for the very tragic injuries he suffered the Plaintiff is left largely uncompensated. He went on to state that though the sum awarded may appear to be high, in that court s view, it represents, as far as money can, reasonable compensation for the type of injuries suffered, and that the bar for awards for injuries of the type in this case can reasonably be placed as high as it has been. 12. Secondly, Mrs Baiju-Patrick suggested the case of Ramcharan v Lutchmansingh 6 where a plaintiff suffered with stable paraplegia caused by compression of L1, paralysis of both legs, loss of bladder control and deterioration of the kidney, urinary tract and heart. On 30 th July, 1991 Seepaul M awarded the sum of $410, for pain and suffering and loss of amenities. This sum when updated to December, 2010 amounts to $1,350, Thirdly, was the case of Aziz Ahamad Limited v Raghubar 7 where for paraplegia, the Court of Appeal on 20 th June, 1967 awarded the sum of $32, for pain and suffering and loss of amenities; as updated to December, 2010 to $1,221, On the other hand, Mrs Lutchman-Ramdial referred this court to five cases, the first of which was Damien Walker v Krishemdat Ramkhallawan 8 where for paraplegia, burst fractures of the 6 th and 7 th thoracic vertebrae and loss of all motor and sensory functions from T6/T7 and below, an award was made on 25 th October, 1999 by Jamadar J in the sum of $250, (by consent); as updated to December, 2010 to $515, Another case was Richard-Jemmott Willis v Arjoon Henry 9 where on 3 rd July, 1989 Crane J awarded the sum of $200, for paraplegia, fractured spine, amputation of leg and urinary 6 Ramcharan v Lutchmansingh HCA S-731 of Aziz Ahamad Limited v Raghubar CA 60 of Damien Walker v Krishemdat Ramkhallawan HCA 1544 of Richard-Jemmott Willis v Arjoon Henry S 1542 of 1983 Page 6 of 15

7 problems as updated to December, 2010 to $757, In Singh v Mohammed 10, des Iles J on 29 th November, 1979 awarded the sum of $50, for cut spinal cord, permanent paralysis from the waist down and incontinence; as updated to December, 2010 to $544, Also recommended for consideration was Matadeen v Coosal s Quarry Limited et al 11 where a plaintiff sustained brain damage that led to a dramatic change in his personality. His physical condition worsened with the passage of time and in stages he became progressively disabled. He presented initially with multiple injuries including cuts on the nose, chest and knee, breathing and memory problems, difficulty concentrating, headaches, dizziness, narrowing of the lumbar disc, broken ribs, jaw injury, broken tooth, loose teeth, inability to have sex and depression. He had difficulty holding his neck up and his head sagged to the side. Subsequently, he was found to have motor neurone damage or disease that was linked to the spinal cord injury sustained in the accident. The plaintiff was described as having difficulty walking and as walking like a drunk man, with complete loss of balance. He was also unable to digest solid foods. He was ascribed a 100% disability which was linked to his neurological problems and it was stated that he would never recover. On 25 th February, 1987 Mustapha Ibrahim J awarded the sum of $150, for general damages; as adjusted to December, 2010 to $705, The injuries in Matadeen were not as severe as in the present case as that plaintiff could still drive a car unaided and move around, though with difficulty. 16. Yet another case suggested was Goberdhan v Sampath 12 where on 31 st January, 1989, for severe closed head injuries where the plaintiff was left in a persistent vegetative state with spasticity in all limbs, Best M awarded $175,000.00; as adjusted to December, 2010 to $683, Relying on the 3 cases she presented, Mrs Baiju-Patrick submitted that a reasonable sum for general damages would be $2,000, She argued that the injuries suffered by St. Leo were virtually the same as the claimants in the cases cited by her and that this court ought to bear in mind the effects of inflation; that his damages were being assessed in 2015 and that the award is once and for all. On the other hand, Mrs Lutchman-Ramdial, relying on the cases she 10 Singh v Mohammed HCA 1363 of Matadeen v Coosal s Quarry Limited et al HCA 4229B of Goberdhan v Sampath HCA 1210 of 1978 Page 7 of 15

8 presented, as well as the statutory limit of the policy, suggested that an award of $500, would be appropriate to compensate St. Leo for his injuries. She argued further that the cases submitted by Mrs Baiju-Patrick all contained more severe injuries than St. Leo s. This latter argument is rejected outright as specious, inaccurate and baseless. This court having accepted the uncontested medical evidence that St. Leo suffered multiple injuries that left him as a paraplegic and totally disabled, Mrs Lutchman-Ramdial s attempt to suggest that he is not as disabled as claimed rings deceptively hollow and is disregarded. 18. In making the award to St. Leo, serious consideration was given to the case of Christopher which was recommended as a bar for future awards for injuries of this type (tetraplegia/quadriplegia). In this regard, I noted that the injuries suffered by St. Leo were devastating and of near similarity with the catastrophic injuries sustained by the plaintiff in Christopher. The plaintiff in Christopher, however, was younger, and about to sit his CXC Ordinary Level examinations, so was on the brink of employment when he met with the accident. It left him unable to move his arms and legs, without movement below the neck level, no sensation below his nipples and dependent on others to feed him and take care of his personal hygiene. His sight and speech were not affected, though he did not hear as well, and he had his mental faculties so was fully conscious of what had happened to him. In comparison, St. Leo has suffered a similar fate, albeit he has some limited mobility in his upper arms, and in that regard, his injuries may be seen as slightly less extreme. Further, St. Leo had already commenced working and was the father of a young child, so was more advanced in his life when the accident occurred than the plaintiff in Christopher. For these reasons, I was minded to consider an award below the threshold set in Christopher. In so doing, I was mindful that the accident has snatched away St. Leo s life as he knew it and that the incalculable mental anguish and physical pain that he is left with cannot be erased by monetary compensation. 19. Having considered all the circumstances of this case including: the injuries sustained; the devastating physical and psychological impact; the evidence of pain and suffering and loss of amenities; that St. Leo will never again be able to lead a quality life but, by his injuries, has been relegated to a wheelchair and is in need of round the clock care for the rest of his life, I find it reasonable and fair to award him the sum of $1,100, for his pain and suffering and loss of Page 8 of 15

9 amenities. In so doing, I have also considered that this award is being made in 2015, it is a singular award and the effects of inflation. Special damages 20. It is trite law that special damages must be pleaded and proved and consist of out of pocket expenses and loss of earnings incurred up to the date of trial. St. Leo has pleaded special damages of $394, as follows: Modification of home for wheelchair - $ 75, Medical report - $ Homecare from to date and $ per week - $126, Loss of earnings (pre-trial) from per week - $191, Modification of home for wheelchair 21. St. Leo averred that as he was paraplegic, his home has to be modified to give him access by wheelchair in the sum of $75, This was supported by a handwritten note dated 27 th August, 2013 signed by Mr Simour Fraser. There was no challenge to this evidence at the assessment; however, in her submissions, Mrs Lutchman-Ramdial raised the issue of the lack of documentary evidence in the form of bills or receipts to show the purchases of materials from a hardware or plumbing store. Mrs Lutchman-Ramdial pointed out that this claim is one that is required to be proved strictly 13 and, that St. Leo has even failed to call Mr Simour Fraser as a witness in support of this claim. Issue was also taken with the fact that the handwritten note carried a date that was 1½ years after the accident. It was submitted that only half of the sum claimed ($37,950.00) should be awarded to St. Leo to cover this expense. 22. This court examined the handwritten note and found it consisted of a long list of materials required at an estimated cost of $55, and a labour cost of $20, It is clear that this note is not a receipt or bill or estimate of materials from a hardware or plumbing store. It is also clear that the reduced sum suggested by Mrs Lutchman-Ramdial would cover the labour 13 Grant v Motilal Moonan Ltd (1988) 43 WIR 372 per Bernard CJ Page 9 of 15

10 cost but would be insufficient to defray the estimated cost of materials. To my mind, there was a clear need for this expense, if his home were not wheelchair ready prior to the accident. To my mind further, St. Leo s claim that he needed to make adjustments to his home to accommodate his changed physical condition and so allow him access by wheelchair is only reasonable. It is a claim that is linked directly to and flows from the injuries caused by the wrongful act of the defendants. In the circumstances, this court considered that his viva voce evidence can be accepted in proof of this, together with the estimate of the labour and material cost. I was prepared to allow the expense as reasonable and fair. He is allowed the sum of $75, for modification of his home. Medical report 23. St. Leo has averred that he spent $ for a medical report and the defendants have accepted this as reasonable. He is awarded the sum of $ for this report. Home care 24. It is pleaded that home care was required from 9 th August, 2011 and continuing at $ per week. St. Leo was at the Rehabilitation Unit, St. James until August, 2011 from when this claim commenced. His evidence is that his sister ( Monique ) was paid $ per week and Shanice Beckles ( Shanice ) was paid $ per week to render home care. The money to pay for his care at home came from his disability benefit and from his mother s wages as a domestic worker. Mrs Baiju-Patrick submitted that he is entitled to home care in the sum of $1, from 9 th August, 2011 to date of trial and continuing. This claim, however, does not line up with the evidence. According to Shanice, she started to take care of St. Leo from 15 th February, 2013 and continues so to do from Monday to Friday in the evenings from 2 pm to 7 pm at a weekly salary of $ She testified further that St. Leo s mother would take over his care from 7 pm onwards until 7 am when Monique would relieve her. Monique also gave evidence to wit that she had to give up her job of taking care of the elderly to take care of St. Leo full time. She shares this responsibility with her mother and Shanice. She averred that she is paid $ per week for her services, which starts at 7 am and ends at 2 pm. 25. Opposing this claim, Mrs Lutchman-Ramdial submitted that it should not be granted in full. Instead, she submitted that he should be allowed to recoup only $ per week for 3 years Page 10 of 15

11 (that is 2012, 2013 and 2014 pre-trial). She grounds her submission on the unclear state of the evidence as to when he actually was discharged from the St. James Rehabilitation Unit, as he was re-admitted on several occasions. She was adamant that there was no particular evidence as to the period of time he spent in the St. James Rehabilitation Unit, on the occasions when he was readmitted, and when he would not have needed home care. 26. I accepted that the evidence could have lent itself to some greater level of clarity than that which obtained. However, I was not prepared to accept Mrs Lutchman-Ramdial s argument that St. Leo s award for home care should be slashed by less than half because he was occasionally readmitted for care at the St. James Rehabilitation Unit and the time he spent there was uncertain. It is to be noted that St. Leo can recover for care by relatives whether same is gratuitous or not and in the face of medical evidence that he is totally incapacitated and wheelchair bound, any such claim must be considered necessary and appropriate. In this regard also, I noted that St. Leo did not make any claim for night care rendered by his mother but sought to recover only the sums paid to Monique, and to Shanice, both of whom rendered care to him during the daytime from 7 am to 7 pm combined. What occurred after 7 pm was not factored into this claim. There was also no evidence as to his care during the weekend, as Shanice s evidence is that she works only on weekdays. Given that he was in need of round the clock care, including on weekends, it is my view that his claim was reasonable. I adjust it only by allowing the home care award in full from 9 th August, 2011 to the date of trial for sums paid to Monique at $ per week. Shanice s evidence is that she commenced working with St. Leo from 15 th February, 2013 so, in my view, there can be no claim to recoup for the period preceding this date. Further, the claim with respect to Shanice was not part of his pleaded case and no amendment was sought to reflect same. In any event, the evidence was not objected to and went in unchallenged. The sums paid to Shanice from 15 th February, 2013 are allowed to be recovered at the rate of $ per week until trial. This is reflected as follows: Home care from at $ per week = $131, Home care from at $ per week = $ 88, TOTAL HOMECARE = $219, Page 11 of 15

12 Personal items, special bed and mattress 27. St. Leo gave evidence of purchasing several items for his personal use including a commode, adult pampers, and a BP monitor at the cost of $1, He provided a receipt from AA Laquis for these purchases. It was noted that this receipt was not in the name of St. Leo or any recognizable party but was sold to Friends of the Port of Spain General Hospital. It was uncertain also whether this claim was abandoned as neither counsel addressed same. Given the state of the evidence, although these items were considered critical necessities for someone in St. Leo s condition, the document provided could not be relied on and there was no further evidence or information provided to allow this claim to be properly assessed. He also gave evidence of having to buy a special bed and mattress at a cost of $16, These items were not pleaded. I was constrained to disallow this claim as it was one that clearly could have been pleaded, particularized and supported by some form of documentary evidence. Further, I have no medical evidence that spoke to this need. This claim was not allowed. Travelling 28. St. Leo gave evidence of having to hire a vehicle that would accommodate his wheelchair, to take him to and from the hospital. It is a cost he would have to bear for the rest of his life. He testified that the current rate is $ per day and that an approximate amount of $1, would be reasonable for transportation to the hospital and other places. It was unclear whether this sum of $1, was a monthly or yearly claim. Further, this claim for travelling was not part of his pleaded case. To my mind, it is not an unreasonable claim in the circumstances, given his injuries and the clear evidence that he continues to suffer with bedsores that may require him on occasions to return to the hospital. St. Leo, however, has presented neither evidence as to how frequently he is required to visit the hospital nor called supportive independent evidence of the provision of transportation service. He sought to cure the defect in his pleadings by introducing the evidence in his witness statement, without even any attempt to provide the documentary proof or a proper platform in terms of frequency of this need to enable the court to justify any award hereunder. Given St. Leo s failure to plead and prove this claim, and its speculative nature, as well as the uncertainty in calculating this loss, I am constrained to disallow this belated claim for lack of pleading and proof. Page 12 of 15

13 Loss of earnings 29. St. Leo is seeking to recoup pre-trial loss of earnings from 10 th May, 2011 to 15 th December, 2014 at $1, per week. He averred that he earned that salary working as a Floorman/Derrickman with Altech Services Limited. He had attended the Siparia Senior Comprehensive School, where he did the National Craftsman Examination in Welding and so is qualified to do labouring and/or manual work. Since the accident, he could no longer work as his job involves strenuous physical activities. He has attached 2 letters dated 11 th January, 2014 and 25 th April, 2014 both issued from Altech Services Limited under the hand of its General Manager, Mr Ralph Weston, which confirmed that St. Leo worked with that company from 11 th January, 2011 until 9 th May, 2011 for which period he was paid an average weekly wage of $1, Mr Ralph Weston gave oral evidence at the assessment, which was unchallenged. St. Leo is allowed to recover loss of earnings up to 15 th December, 2014 or the date of trial less 35% for illnesses, holidays, statutory dues and other contingencies of life as follows: From 10 th May, 2011 to 15 th December, 2014 $1, x 3 years 7 months and 5 days = $266, Less 35% for contingencies & taxes = $93, LOE = $173, Loss of Future Earnings 30. St. Leo is totally incapacitated and so unable to work for the rest of his life. His evidence as to his pre-accident employment and salary of $1, per week went in unchallenged. The traditional method of assessing this loss on the basis of a multiplier/multiplicand was employed to determine his award. St. Leo was born on 20 th February, 1989 so was 22 years when the accident happened. He averred that he has no formal education or training that would have equipped him for any job in academia and, in fact, is only capable of doing manual or labouring jobs. Mrs Baiju-Patrick suggested that a multiplier of 20 be used and referenced Seepersad v Persad 14 where the Privy Council applied a multiplier of 16 in the case of a 40 year old. On the other hand, Mrs Lutchman-Ramdial suggested that he be awarded a multiplier of 16 and that the figure be discounted by 50% for contingencies of life. She provided no platform for this submission save to suggest that as a young man he would have likely gone on to get married 14 Peter Seepersad v Theophilus Persad & Capital Insurance Limited [2004] UKPC 19 Page 13 of 15

14 and have a family of his own. Her submissions are not accepted as valid or grounded on any recognizable legal principle by which this court can be guided. Having considered the circumstances of this case and the case law on such awards, I considered it appropriate to award a multiplier of 18. The multiplier is determined from the date of trial and is based on the number of years that St. Leo s disability is likely to last. His life expectancy has not been medically advanced as being shortened by his injuries so is likely to be at least 70 years. He was 25 years as at the date of assessment and a welder so may have worked until 60 years, leaving him with a working life of 35 years. It is trite law that the number of working years left must be reduced to reflect the vicissitudes of life, the vagaries of employment and the fact that he is receiving this award as a lump sum. From any award will be deducted 35% for contingencies of life such as illnesses, holidays and statutory dues. Using a multiplicand of $74, per annum and a multiplier of 18 years, his post-trial loss is worked out as follows: $74, x 18 $1,334, Less 35% $467, TOTAL LOFE = $867, Future homecare 31. Given the nature of the injuries sustained and the uncontested fact that this disability will be life long, it is clear that St. Leo will be in need of ongoing homecare for the remainder of his life. Mrs Lutchman-Ramdial fixes this sum as $338, without giving any rationale or proper foundation for this quantum. On the other hand, Mrs Baiju-Patrick suggested the use of a minimum wage of $15.00 an hour for 24 hours a day, 7 days per week, with a multiplier of 20, to arrive at an award of $2,628, She rests her submissions on the case of Octon Bernard v Nigel Orr 15 where when considering this head, the court looked at the commercial rate and so accepted the minimum wage. 32. It is only reasonable that an award be made for future homecare. This award was made using the rate of $1, per week as pleaded ($85, per annum) and a multiplier of 18 which amounts to $1,544, Octon Bernard v Nigel Orr HCA No 3278 of 1999 Page 14 of 15

15 Future cost of wheelchairs 33. St. Leo averred that he would need a motorized wheelchair for the rest of his life given the limited use of his arms. It was submitted that in his lifetime, he would need 10 such wheelchairs, as each has a lifespan of 5 years, with the cost of 1 wheelchair being $5, However, this item was not pleaded and there was no independent evidence provided of the lifespan, cost and quantity of such wheelchairs required in St. Leo s lifetime as averred. Considering that St. Leo is permanently wheelchair bound, with limited power and range of motion in his upper limbs, it would be difficult for him to propel himself using a manual wheelchair. His failure to plead, particularize and to provide the supporting evidence meant that the court could not properly treat with this evidence. It behoves me to reiterate at this point that the requirement for pleading special damages is mandatory and the fact of St. Leo s severe injuries is not an excuse for circumventing the law. No award is made hereunder to defray this cost. Order 34. It is ordered that the defendants do pay to the claimant (St. Leo) the following: i. General damages for pain and suffering and loss of amenities in the sum of $1,100, with interest at the rate of 9% per annum from 13 th December, 2013 to 29 th May, 2015; ii. Special damages in the sum of $469, with interest at the rate of 6% per annum from 10 th May, 2011 to 29 th May, 2015; iii. Future homecare in the sum of $1,544,400.00; iv. Loss of future earnings in the sum of $867,578.40; v. Costs on the prescribed basis in the sum of $117, vi. Stay of execution 42 days. It is also ordered that the interim payment of $150, made on 24 th June, 2014 be deducted from the above award. Dated 29 th May, 2015 Martha Alexander Master Page 15 of 15