IN THE HIGH COURT OF JUSTICE BETWEEN NIMROD JOSEPH AND

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO Claim No CV IN THE HIGH COURT OF JUSTICE BETWEEN NIMROD JOSEPH AND Claimant Before: Master Alexander ROY EDWARDS First Defendant PRESIDENTIAL INSURANCE COMPANY LIMITED Second Defendant ************************************ Appearances: For the Claimant: For the Defendants: Ms Stephanie Boodoosingh Mr Shastri V Parsad Jr DECISION I. INTRODUCTION 1. On 5 th June, 2007 the claimant was standing in Squires Scrap Yard, Rivulet Road, Couva when he was struck by motor vehicle registration number PBZ 669 and upon impact was flung allegedly unto the bonnet and windscreen, cracking the windscreen. At the time of the accident he was a driver employed with Briko Air Services (hereinafter Briko ). By claim form and statement of case filed on 13 th February, 2008 he sought compensation for the personal injuries he sustained in that accident. Judgment against the defendants on the issue of liability was entered by Kokaram J on 15 th July, 2009 with damages and costs to be determined by a master. This assessment of damages was conducted pursuant to that judgment. 2. No cross examination took place at the hearing of the assessment, as the defendants elected not to exercise their rights with respect thereto. Page 1 of 18

2 II. EVIDENCE ON ASSESSMENT: 3. In support of his claim for damages, I had recourse to the claimant s statement of case filed on 13 th February, 2008; the claimant s witness statement filed on 1 st December, 2010; the medical report of Dr Ian Persad dated 1 st September, 2007, and attached to the statement of case and witness summary filed on 1 st December, 2010; and the medical report of Dr Terry Ramnath dated 8 th January, 2009, and attached to his witness summary filed on 2 nd December, The Medical Evidence: 4. According to the medical report of Dr Ian Persad, which was annexed to the claimant s statement of case and witness statement, the claimant sustained the following injuries: Fracture right tibia and fibula; Comminuted intra-articular fracture left distal radius; Cerebral concussion; Multiple abrasions to both arms, right thigh and left leg; Multiple facial lacerations and abrasions with loose incisor tooth. 5. The contents of the medical report of Dr Terry Ramnath of the South-West Regional Health Authority dated 8 th January, 2009 are to be noted. It reads in part: [W]hile being reviewed in the clinic the left radius healed well with the cast being removed after 4 weeks. However the right tibia was noted to be healing poorly (delayed/non union); it was therefore decided to operate. On the 23/10/2007 Mr Joseph underwent surgery that is open reduction and internal fixation of the right tibia with an intramedually nail. Since surgery subsequent visits have demonstrated progressive healing of the tibia fracture. When assessed on 11/12/2008 Mr Joseph complained of intermittent pains when standing or walking for prolonged periods. He walked with a pronounced limp with the aid of a walking cane. Range of motion was 0 degrees to 120 degrees at the knee. [emphasis mine] Page 2 of 18

3 IV. GENERAL DAMAGES: 6. The approach of Wooding CJ in Cornilliac v St Louis 1 was applied to assess the general damages in the instant case: i. The nature and extent of the injuries sustained; ii. The nature and gravity of the resulting physical disability; iii. The pain and suffering which had to be endured; iv. The loss of amenities suffered; v. The extent to which the plaintiff s pecuniary prospects have been materially affected. Nature and extent of the injuries sustained 7. Based on the medical evidence, the nature and extent of the claimant s injuries are a right tibia/fibula fracture; a comminuted intra-articular fracture left distal radius; cerebral concussion; multiple abrasions to arms, right thigh and left leg; and multiple facial lacerations and abrasions, with loose incisor tooth. As at the date of the medical report by Dr Ian Pierre, the claimant was also seeing a neurosurgeon for investigation and treatment of his post concussion syndrome. This was 3 months after the accident. His left distal fracture was said to be clinically and radiologically united and he was still experiencing pain and stiffness at the wrist, which was described as being usual after this type of fracture. Dr Pierre further stated that he was likely to develop secondary osteo-arthritic changes at the wrist due to the intra-articular nature of the fracture. Whilst his facial abrasions have all healed, he was reported to still be experiencing difficulty eating solid foods due to the loose incisor tooth and in need of further dental work. He was diagnosed as being significantly incapacitated at the moment and likely to remain so for at least 6 months. A partial disability of 60% was ascribed to him. 8. The claimant was initially treated at the Couva Health Centre before being transferred to the Accident and Emergency Department, San Fernando General Hospital. His forearm was placed in a back slab cast, which he wore for 4 weeks and his right leg in an above knee back slab cast. He was hospitalized for 1 week and underwent surgery to his right leg on 23 rd October, 2007 where a cast was placed and remained on for several months. He used crutches for 2 years. Pain and suffering endured 1 Cornilliac v St Louis (1965) 7 WIR 491. Page 3 of 18

4 9. The claimant s evidence is that on impact, he was flung onto the bonnet and his face was smashed into the windscreen, cracking it. Immediately, he began experiencing pains all over (including his right leg), faintness and dizziness. As a result, he blacked out. It is his evidence also that there was blood flowing all over his body. Because of the pains in his arm, wrist and leg he found himself crying out in pain and scared for his life. According to his evidence in his witness statement, even the ambulance ride was painful. He then spent 2 hours on a stretcher in the corridor at the San Fernando General Hospital, during which time he was in excruciating pain, begging for pain killers and crying out loudly. He described his pain as unbearable, even to the slightest touch. Eventually, he was given some pain killers by the nurses to ease the pain. It is also his evidence that he was placed in a ward from 22 nd October, 2007 to 5 th November, 2007 and for that entire period was in a lot of pain and for which he would receive injections 2 to 3 times a day. On discharge, he gave evidence that he would use painkillers such as panadeine, ibroprofen as well as muscle rubs, vitamins and other supplements to assist with the pains. He claims to be still suffering with pain in his right leg and left arm as at the date of filing the witness statement, which is 1 st December Further, he gave evidence that he has continued to experience pains once he remains seated for too long and cannot lift even light items as his arms and legs hurt from the strain. He also states that he gets pains at night and when it rains and that his leg swells from time to time and cramps occasionally. 10. This claimant has painted a picture of being subjected to excruciating and unbearable pains and discomfort, as a result of his injuries, which is continuing more than 3 years after the accident. On the basis of this, the claimant s attorney has asked the court, in assessing compensation, to note the considerable pain and suffering faced by the claimant. It was submitted that when his right upper thigh was placed in a cast, he wore this for 4 weeks, during which period he could not bend his leg and was unable to use crutches, as his left arm was also in a cast. He had to move around on a stretcher and was in great discomfort. Thus, he needed painkillers frequently to reduce the level of pain. 11. I accept the evidence that the claimant s pain and suffering would initially, upon impact and the weeks/months following, have been intense and unbearable. Overtime the intensity of his pains would have been reduced, as his injuries healed. Consequently, I find it hard to believe that some 3 years after the accident; he is still experiencing such a high intensity and/or degree of pain. There is no credible evidence that speaks to this high threshold of pain continuing unabated and Page 4 of 18

5 unmanageable to date. In fact, I note that there were no receipts, invoices or bills tendered into evidence with respect to purchases of painkillers. Whilst I can accept that the claimant may continue to suffer some pain in his leg and arm, I do not see how this would be so unbearable or at the same level and intensity as when the accident first happened and as this claimant would like this court to believe. I formed the view, therefore, that there is some attempt here to magnify the pain and suffering experienced by this particular claimant for the benefit of the assessing court. Nevertheless, I also recognize that pain is subjective and that each individual s tolerance level is different. Thus, I accept that his continuing pains were intermittent as and/or particularly pronounced when standing or walking for prolonged periods, as outlined in Dr Ramnath s report in January, Loss of amenities suffered 12. As a result of his injuries, the claimant has been unable to walk, run or stand for any prolonged period of time. He used a walking cane for assistance and experienced occasional swelling of both ankles. He gave evidence that prior to the accident, he would go hunting but now, because he is unable to walk for long periods of time, experiences nightly pains and occasional swelling of the legs and cramps, he is unable to participate in this recreational activity or past-time. His injuries have caused him to have a diminished quality of life. It is his evidence also that he once enjoyed cycling in the village but can no longer do so. He is also unable to exercise at this time; play cricket or basket ball with his children or grandchildren; and/or to engage in almost all physical activities. 13. I accept that the claimant would have some continuing challenges from his injuries, particularly when participating in recreational and sporting activities. I find it hard to believe, however, that his injuries have effectively rendered him physically incapable of participating in all physical activities. Whilst his degree/level of participation may have been reduced, I do not see how he is now rendered comatose by his injuries. In this regard I note that he referred to almost all physical activities, which seems to suggest that he is still capable of participating to some level in some activities and has not been rendered a vegetable by his injuries, as in his evidence he seeks to have this court believe. In addition, I accept the unchallenged evidence of the claimant, that he finds it difficult to perform the ordinary, everyday human bodily functions, such as walking and running. He gave evidence of being unable to drive for long periods of time, which suggests Page 5 of 18

6 that he is not totally handicap in this respect but there is no evidence as to the number of hours per day that he is still able to perform the function of driving, which was his pre-accident job. Nature and gravity of the resulting physical disability 14. The claimant gave evidence in his witness statement that the injuries have continued to immensely impact on the quality of life he now enjoys. It has affected all aspects of his life, denying him the ability to drive (for undefined long periods of time ), which was his preaccident job or to maintain a full parental relationship with his children and grandchildren; and/or to partake in sporting activities, particularly his hunting. Some 3 years after the accident, he finds himself still unable to bear full weight on his right foot; has difficulty navigating stairs or inclines and cannot drive for lengthy periods of time. It is also his evidence that pre-accident, he did a second job of welding and fabricating at Hot Rods Welding and Fabricating (hereinafter Hot Rods ). However, his injuries have resulted in him being unable to stand, bend or crouch to do his welding and, since he was required to be on his feet for long hours, he did not return to work. 15. It is thus the claimant s evidence that given the nature and gravity of his resulting physical disability from his injuries, he is now effectively unable to return to the labour market. Counsel for the claimant has submitted that he now uses a walking cane for assistance and experiences occasional swelling of both ankles. I was unsure if, as at the date of the assessment, he was still wholly dependent on this walking aid and the level of such dependency. Nevertheless, I accept his evidence that he continues to be challenged by the effects of his injuries. Extent to which pecuniary prospects have been materially affected 16. The claimant s evidence is that he is no longer able to work as a driver or to do his part time job at Hot Rod s in Springvale, where he worked on weekends and holidays, making burglar proofing gates, windows and roofs. He claims to have done physiotherapy to use his leg for over a year and a half but still was not able to return to any of his pre-accident jobs. His injuries have, therefore, effectively meant that he is now unemployed. I accept that with his injuries he may not be able to earn his pre-accident income but note that there is no medical evidence before me that he is medically unfit to resume his pre-accident job or to do any job whatsoever. Page 6 of 18

7 V. AUTHORITIES 17. The exercise of assessing damages in this jurisdiction is based on a comparative method, whereby similar injuries and the awards they attracted are looked at and adjustments made to accommodate the injuries in the case at hand, bearing in mind the unique nature of the instant facts before the assessing court. Counsel for the claimant asked that the court bear in mind that these cases are only the starting platform and not the brick foundation upon which to set the award on the facts at bar. Counsel for both parties guided the court to the authorities below and suggested as reasonable an award of $180, and $100, respectively: Medford v Gopaul 2 where for a fracture of the left upper tibia and fibula; some residual disability an award was made of $19,000.00; as adjusted to December, 2010 to $129, Thom v Dyaram 3 where for a fracture of the tibia and fibula an award was made in the sum of $4,000.00; as adjusted to December, 2010 to $116, Arjoon v Williams 4 where for a fracture of the radius and ulna an award was made in the sum of $3,500.00; as adjusted to December, 2010 to $93, Eastman v PTSC 5 where for a fracture of the wrist, serious laceration of knee and other lacerations an award was made in the sum of $5,000.00; as adjusted to December, 2010 to $169, Mannie and Sookchan v Ramlogan and Simon (2 nd plaintiff) 6 where Lucky J awarded $7, for a fracture of the right radius and ulna; contusion on the chest wall; a torn right medial collateral ligament; and loss of movement in right forearm and wrist; as adjusted to December, 2010 to $33, Medford v Gopaul HCA S-14 of Thom v Dyaram HCA 153 of Arjoon v Williams HCA 1538 of Eastman v PTSC HCA 1549 of Mannie and Sookchan v Ramlogan and Simon (2 nd plaintiff) HCA No S-1449 of 1981 Page 7 of 18

8 Thackordeen v Hart 7 where des Iles J awarded $ for a fracture radius; as adjusted to December, 2010 to $26, Patrick v PTSC 8 where Cross J awarded $ for a fracture of the right radius; as adjusted to December, 2010 to $14, Phillips and Phillips v Neptune and Edwards (2 nd plaintiff) 9 where Permanand J awarded $15, for a fracture of the right lower tibia and fibula; operation to ankle; as adjusted to December, 2010 to $90, Bacchus and Mohammed v Clearance 10 where Douglin M awarded $20, for a fracture of the right tibia and fibula; fractured right ankle and headaches; as adjusted to December, 2010 to $89, Bobb v Austin 11 where Ibrahim J awarded $13, for fractures of the right tibia, fibula and areas of the shoulder blades; as adjusted to December, 2010 to $88, Ramlal v James 12 where Bourne-Hollands J awarded $5, for fractures of the left tibia, fibula and femur; lacerations of and damage to the right leg; as adjusted to December, 2010 to $85, Lee v Singh 13 where Maharaj J awarded $2, for a fracture of the tibia; good recovery; possibility of osteoarthritis; as adjusted to December, 2010 to $38, Apart from the above cases, I also considered: Laurence Ganga and Or v Marlon Kendall and Ors 14 where Kokaram J awarded $80, to a 16 year old boy for fractures of the left clavicle, left ramus, tibia and fibula; persistent pain; 7 Thackordeen v Hart HCA No 47 of Patrick v PTSC HCA No 140 of Phillips and Phillips v Neptune and Edwards (2 nd plaintiff) HCA No 1577A of Bacchus and Mohammed v Clearance HCA No S-5420 of Bobb v Austin HCA S-104 of Ramlal v James HCA No 1764 of Lee v Singh HCA No S-642 of Laurence Ganga and Or v Marlon Kendall and Ors HCA S-5 of 2003 Page 8 of 18

9 swelling of hip, leg, shoulder and disability to walk. His injuries affected his work, studies and pre-accident sporting activities. Kanhai v Mohammed and Ors where Master Paray-Durity on 27 th June 2008 awarded $250, to a 17 year claimant for fractures of the tibiae and fibulae of both legs, surgeries; legs of different lengths; continuing pain; and scarred leg; as adjusted to December, 2010 to $309, Future pecuniary loss was awarded in the sum of $150, and future surgery in the sum of $45, Boochoon v Gocool 15 where an award of $7, was made for fractures of the tibia and fibula; extensive tissue lacerations and mangled muscle ends; as adjusted to December, 2010 to $286, Ramroop v Burroughs Welcome & Co Ltd 16 where an award of $14, was made for fracture of both legs; 1.25 shortening of left leg; osteo-arthritis; post-concussion headaches and dizziness; touch loss; as adjusted to December, 2010 to $211, Caribbean Molasses Co. (Trinidad) Ltd v Ganness 17 where in 1983 an award was made to a plaintiff/taxi driver in the sum of $30, for fractures of the right fibula, femur and tibia; loss of movement in knee and 3 shortening; as adjusted to December, 2010 to $195, Gill v Hinds 18 where Best J in 1993 awarded $68, for fractures of the femur, tibia and ulna; as adjusted to December, 2010 to $181, Ryan v Williams 19 where Bourne-Hollands J awarded $10, for fractures of the tibia, fibula and femur of the right leg; as adjusted to December, 2010 to $170, Jaikaran v Sadeek 20 where an award of $10, was made for fractures of the right tibia and fibula; as adjusted to December, 2010 to $74, Boochoon v Gocool CA 45 of Ramroop v Burroughs Welcome & Co Ltd HCA 457 of Caribbean Molasses Co. (Trinidad) Ltd v Ganness CA 7 of Gill v Hinds HCA 53 of 1983 Gill v Hinds HCA 53 of Ryan v Williams HCA 1473 of Jaikaran v Sadeek HCA 67 of 1980 Page 9 of 18

10 VI. ADDITIONAL CONSIDERATIONS 19. The authorities (supra) played a critical role in determining the quantum of damages to award to this particular claimant. However, in conducting this exercise, I also considered inter alia the injuries he sustained (fractures, cerebral concussion, multiple abrasions and lacerations); and the pain and suffering he would have endured. I also looked at the evidence before me; the age of the comparative authorities; the adjustments required in accommodating the declining value of the dollar; and that past cases serve only as a guide It was also borne in mind that the Privy Council in Peter Seepersad s case sounded a warning to assessing courts on their use of comparative awards. Thus, although I applied the comparative method in the instant case, I was mindful that this approach is an imperfect one; each claimant s pain and suffering must be viewed through subjective lenses and that the justice of each case mandates that it be assessed on its own unique facts. In so doing, I had regard to both the similarities and differences of the cases cited above, with a view to arriving at a just, reasonable and adequate award for the instant claimant. 21. I also contemplated that when this claimant receives compensation for his injuries, it is a one off award. Further, it was borne in mind that the instant claimant did not by his own actions find himself in this situation; the wrong act was perpetrated on him by the first defendant. He is entitled, therefore, to fair, full and adequate compensation for his injuries and to receive a sum that would approximate as closely as possible complete compensation for the injuries he suffered, based on a holistic assessment of all the circumstances of his case. See Elva Dick-Nicholas v Jayson Hernandez & Capital Insurance Co. 22 He is not entitled to be enriched or overcompensated for his pain and suffering and other non-pecuniary losses. He is only entitled to be compensated fully for his injuries; the pain and suffering he endured; his resulting disabilities; his loss of amenities and any non-economic losses arising from this accident. 22. In Elease John (an infant) v John Solomon 23 Master Gopeesingh outlined several factors that he considered before stating, in awarding the plaintiff damages under this head of her claim I must not 21 Per Wooding CJ in Aziz Ahamad v Raghubar (1976) 12 page Elva Dick-Nicholas v Jayson Hernandez & Capital Insurance Co. (unreported) CV at page 5, para Elease John (an infant) v John Solomon HCA 919 of 1979 Page 10 of 18

11 attempt to award perfect compensation but that damages should be assessed so as to give the plaintiff an amount which was fair compensation in all the circumstances and that damages were an award of a single sum, and though heads of compensation might be regarded separately as aids to reaching a just amount, yet merely to assess amounts under these heads and to award the aggregate of the items so assessed might in such cases as the present, lead to error See: Fletcher v Autocar Transporters Ltd (1968) 1 All ER I also considered that an assessment is not a punitive exercise meant to penalize an errant defendant for daring to perpetrate the negligent act upon his innocent victim. It is also not a channel for enriching or over-compensating a claimant for injuries sustained. In this regard, I noted the words of Kangaloo JA in Thomas v Ford and Ors 24 : The assessment of damages for a personal injuries claim should be a straightforward arithmetical exercise. The guidelines which inform a court s decision in this regard are well known; the point of departure invariably being the seminal Court of Appeal case of Cornilliac v St Louis. However this area of law has generated a vast array of litigation because far too often sight is lost of two fundamental principles: first, that a personal injury claim must never be viewed as a road to riches and secondly, that a claimant is entitled to fair, not perfect compensation. 24. Having examined the cases cited above as well as all the circumstances of this particular case, I have concluded that an award in the region of $160, would be a fair, adequate and reasonable compensation to award this claimant as general damages for his pain and suffering, resulting disability and loss of amenities. VII. SPECIAL DAMAGES: 25. Special damages are monetary losses sustained by a claimant up to the date of trial. The general rule on special damages is that they must be specifically claimed and proven as stated in Mario s Pizzeria Ltd v Hardeo Ramjit. 25 See also Christopher Lucas v Boodram It is worth reiterating at this point that special damages must not only be specifically pleaded. It must also be proved. Thus all out-of pocket expenses; loss of earnings incurred down to the 24 Thomas v Ford and Ors Civ App 25 of 2007 at page 28 per Kangaloo JA 25 Per Kangaloo JA in Mario s Pizzeria Ltd v Hardeo Ramjit CA 146 of See Lord MacNaughten s comments in Stroms Bruks Aktie Bolag v Hutchinson (1905 AC 515, Christopher Lucas v Boodram CA No 10 of 1982 Page 11 of 18

12 date of trial, which are capable of substantially exact calculation must be pleaded and proved. It is unlike general damages which the law implies and which is not required to be specially pleaded. See Grant v. Motilal Moonan Limited and Rampersad Civ. App. No. 162 of 1985 per Bernard CJ, at pg 5, which states that, a party claiming damages must prove its case, and to justify an award of these damages he must satisfy the Court both as to the fact of damage and its amount. In the case of Bonham Carter v. Hyde Park Hotel (1948) 64 T.L.R. 178, which was adopted into the local jurisdiction in the Moonan Case, the learned Chief Justice opined, Plaintiffs must understand that if they bring actions for damages, it is for them to prove their damage; It is not enough to write down the particulars, so to speak, throw them at the head of the Court saying this is what I have lost; I ask you to give me these damages. They have to prove it. See also the case of Jefford v. Gee [1970] 2 Q.B Counsel for the defendants referred the court to the decision of Master Paray-Durity in Sookdaye Babwah v Dennis Harrinanan & Ors 27 which he states should stand as the type of proof; the nature of evidence and pleading required for a claim of special damages to be validly constituted. In that case, the learned master quoted from Bonham Carter (supra): On an evaluation of the evidence in support of item (a) it is the Court s opinion that the Plaintiff has failed to adequately prove the full extent of her alleged loss of earnings. The Plaintiff has not produced any bills or receipts to prove her purchases of material and sale of the manufactured goods, she has also failed to provide the Court with sufficient particularity of the types of bags sold to the business places that she named and the number of bags which were sold. 28. The instant claimant has claimed special damages in the global sum of $189, He supplied documentary proof to substantiate his claim for special damages only in part. In this regard, I note the words of Pemberton J in Elva-Dick Nicholas v Jayson Hernandez and Capital Insurance Limited 28 that, [I]t is clear that the mere enumeration of alleged losses is insufficient proof and the Court would be restrained to deny compensation for items of damage not proven by way of proper documentation, for instance the production of receipts or invoices. Where receipts could reasonably have been obtained and none was furnished in the instant case, I have adopted the approach of Pemberton J and disallowed the claim. 27 Sookdaye Babwah v Dennis Harrinanan & Ors HCA S-136 of Elva-Dick Nicholas v Jayson Hernandez and Capital Insurance Limited CV Page 12 of 18

13 Transportation Expenses 29. In his statement of claim, the sum of $2, and continuing was claimed for transportation. This claim was not substantiated by any documentary evidence and was not mentioned in the submissions filed on his behalf. It was assumed that it was not being pursued. In any event, given the lack of supporting documents in the form of receipt(s), it was not allowed. Medical Expenses 30. In his statement of claim, the sum of $2, was claimed for medical expenses and continuing. Only one receipt dated 5 th September, 2007 issued under the hand of Dr Ian J Persad to counsel for the claimant was before me. I note, however, that this receipt in the sum of $ for medical services also bears the name of the claimant. There were no other receipts or invoices or any other documentary evidence pertaining to purchases of medication or other medical services. This claim is, therefore, allowed in the sum of $ Police Report 31. The sum of $50.00 was claimed for this report and was supported by receipt BB dated October, Counsel for the defendants submitted that the receipt was made out to the claimant s counsel and refers to a vehicle registration number PBF1884, not PBZ 669, which was the vehicle involved in the instant accident. This is accepted. Further, the claimant s submission was silent as to this claim and he is taken to have abandoned it. This claim is, therefore, disallowed. Domestic Expenses 32. The sum of $36, was claimed for cost of domestic assistance for 2 years. This claim was not substantiated by any documentary evidence. Counsel for the claimant has submitted, however, that the evidence was unchallenged so the claim should be allowed in its entirety. Counsel for the defendants has submitted that the court must have regard to the lack of documentary evidence to support this claim; the improbability of the claimant being in a cast for the greater portion of four years and/or needing domestic assistance for this period; and the failure to call any witness to support this claim. The court was also asked to note that the claimant has stated in his witness statement that he paid the sum of $ per month to Cyntra Jankee and that no attempt was made to amplify (or correct) this evidence at the assessment. Page 13 of 18

14 Counsel for the defendants further submitted that the court has no choice, given the claimant s failure to discharge the burden and standard of proof, but to draw adverse inferences from this. The court was referred to the cases of St Louis v Canada 29 ; the local decisions of Ian Sieunarine v DOC s Engineering Works 30 and Mahadeo Sookhai v The Attorney General 31 which outlined the principles on adverse inferences. 33. I note that in his report dated 1 st September, 2007 Dr Ian Persad stated that the claimant is, significantly incapacitated at the moment and is likely to remain in this condition for at least six months. This report was some 3 months after the accident. In his witness statement, the claimant gave evidence that upon being discharged from hospital, he needed help to bathe, change and use the bathroom. At home, he had to stay downstairs (although his bedroom was upstairs) for at least 6 months since he could not ascend the stairs. He described this period as one of inconvenience and distress. He gave evidence further that one Cyntra Jankee took care of him during that period. Why were there then no receipts in evidence as to the payments made to Ms Jankee for her services? Why did he call her as a witness of truth to testify on his behalf? To my mind, the claimant could have furnished the proof to substantiate this claim or at the very least elect to call this person as a witness on his behalf. It was his responsibility to do so given that he alleged he has suffered this particular loss. 34. I have considered the medical report, the injuries and mobility challenges ensuing from same and I accept that the claimant may have required some extent of home care for at least 9 months after the accident. He has just not been able to satisfy me, with the necessary documentation that domestic assistance would have been required for 2 years. Given that this was a loss that could easily have been proved, and the wholly unsatisfactory nature of the evidence, I was therefore constrained to accede to the submissions of counsel for the defendants and to disallow this claim. 35. Claimants who are serious about full recovery for losses sustained in personal injuries cases must come armed with the requisite documentary proof or at the very least sufficient credible evidence to substantiate their pleaded cases. 29 St Louis v Canada (1896) 25 S.C.R Ian Sieunarine v DOC s Engineering Works HCA No 2387 of 2000 per Rajnauth-Lee J 31 Mahadeo Sookhai v The Attorney General of Trinidad and Tobago HCA S-184A of 2003/CV per Moosai J Page 14 of 18

15 Loss of Earnings as a - (a) Driver from 5 th June, 2007 to present (b) Welder (part-time) from 5 th June, 2007 to present 36. For loss of earnings as a driver, he claimed the sum of $2, per month for 4 years 3 months, which amounts to the sum of $127, In support thereof he annexes a job letter from Briko. For loss of earnings as a part-time welder, he claimed the sum of $ per day, which amounts to the sum of $25, In support of his claim, he annexes a job letter from Hot Rods. Counsel has submitted that given that the evidence of the claimant was unchallenged, this claim should be allowed. 37. Is the claimant entitled to receive damages for loss of earnings? Loss of earnings is a claim that is capable of substantially exact calculation. In his statement of case, the claim for loss of earnings was pleaded. In his witness statement, he gave evidence that after the accident, he underwent surgery on 23 rd October, 2007 and remained warded until 5 th November, He also stated that as his leg was not healing properly; his leg had to be placed in a second cast, which was kept on for several months. Thus, with respect to his full-time and part-time jobs, he could not return to work because he could not drive for an extended period and/or stand, bend or crouch to do his welding. It is his evidence that even physiotherapy, which he did for a year and a half, did not help. He had the cast on for 3 months and used a wheelchair and crutches for almost 2 years. 38. Counsel for the defendants submitted that the claimant is not entitled to compensation for any alleged loss of earnings and gave as the grounds for such contention the following: The job letter from Briko states that the claimant s last date of remuneration was 10 th August, 2007 some two months after the accident. Consequently, the only inference to be drawn, in the absence of evidence to the contrary, is that the claimant continued and was able to work during this period. This directly contradicts the claimant s evidence which states that he was not paid since the accident. The job letter from Hot Rods states that the claimant, is employed with the above mentioned company as a welder/fabricator for the past year (2006) and presently. This directly contradicts the claimant s evidence that he was unable to work in this job since the accident. Page 15 of 18

16 This claim for loss of earnings is an exaggerated claim and as there is no evidence of the claimant s actual down-time and the losses incurred, this claim ought to be disallowed. The medical evidence conflicts i.e. the report of Dr Ian Pierre in 2007 presents a more dramatic medical history than that of Dr Ramnath of the San Fernando General Hospital in Based on Dr Ramnath s report, there is no reason why the claimant is unable to seek a job on the labour market. The claimant can work on the open market but is, deliberately malingering in an attempt to increase his claim. 39. I disagree with the submissions of counsel for the defendant that the claimant is not entitled to his claim for loss of earnings. In fact, the job letter from Briko actually states, Mr Joseph last paid date was 10 th August 2007, forthnight ending 3 rd August, From this it is clear that the claimant was paid up until 3 rd August, I have no evidence that this payment was for actual work done by the claimant up to that point or related to outstanding vacation and sick leave. Any loss of earnings to the claimant would be calculated after that period. With respect to his job at Hot Rods, I accept the statement in the job letter as truth but do not read it to mean that the claimant was on active duty. In fact, the witness summary of Roger Ragoonath, the Managing Director, states that the claimant has not returned to work since the accident. 40. I am of the view that the claimant has satisfied his duty to set out the case to be met by the defendant from up front. Further, he has used his pleadings not only to mark out the boundaries of the case but to identify the issues and extent of the dispute between the parties. In Charmaine Bernard v Seebalack 32 the Privy Council stated that it is the claimant s, undoubted obligation to plead and particularise any item of damage which represents out-of-pocket expenses or loss of earnings, incurred prior to the trial, and which is capable of substantially exact calculation. Such damage is commonly referred to as special damage or special damages but is no more than an example of damage which is special in the sense that fairness to the defendant requires that it be pleaded. 41. The defendants are entitled to be put on guard as to the compensation being claimed and not have it sprung on them. In the instant case, they were given notice that a claim was being made for loss of earnings. They have also been supplied with proof in the form of job letters. Evidence has also been tendered as to this loss through the claimant. The defendants have elected not to test his evidence under cross examination. It is my view that the claimant is 32 Charmaine Bernard v Seebalack, PC No 0033 of page 7. Page 16 of 18

17 entitled to his compensation. I am thus prepared to award loss of earnings with respect to his job at Briko from 4 th August, 2007 to the date of assessment and his part-time job at Hot Rods from the date of the accident to the assessment in the sum of $118, and $25, respectively. VIII. LOSS OF FUTURE EARNINGS 42. Counsel for the claimant submitted that the sum of $361, should be awarded to the claimant for loss of future earnings. Counsel provided no explanation as to how he arrived at this sum. There were also no authorities furnished in support of this position. There is no medical evidence before me that the claimant is medically unfit to return to work. The evidence of the claimant is that he has elected not to return to work. 43. Whilst I am minded to accept the claimant s evidence that he is to some extent physically incapacitated, there is a paucity of evidence before me. I note for instance that the probability of surgery being used to successfully restore him to normality was not raised nor was there any evidence before me as to the possibility of him obtaining alternative employment. He simply states in his witness statement that he did not return to work because of the pains being experienced and the difficulties in walking, bending and standing for prolonged periods. There was no evidence as to whether he made attempts subsequently to secure/seek employment in a field other than taxi driving. I also have no evidence as to his education or his qualification only for occupations which required some degree of flexibility and movement. There was also no evidence as to any prospects for re-training. I am, therefore, unable to find conclusively that he is unlikely to be able to secure meaningful employment and that his handicap on the job market was 100%. There is no updated medical report before me that speaks to this. The January, 2009 report from Dr Ramnath states simply that, Since surgery subsequent visits have demonstrated progressive healing of the tibia fracture... When assessed on 11/12/2008 Mr Joseph complained of intermittent pains when standing or walking for prolonged periods. He walked with a pronounced limp with the aid of a walking cane. It is now 3 years later; has there been absolutely no improvement in his medical condition? I find this hard to believe, especially as there is no supporting medical evidence. 44. In the case of Elva Dick-Nicholas v Jayson Hernandez & Or (supra) an award was made for loss of future earnings on the basis of the medical evidence, [I]n accordance with the Smith v Page 17 of 18

18 Manchester 33 principle, Elva has been subject to a Loss of Future Earnings. She was diagnosed as being unfit to return to work in the medical of Dr. Santana dated 22nd November This was exacerbated by the fact that her former employers perceived her as a potential liability and have refused to rehire her. The result is that she is no longer able to earn her pre-accident salary... [emphasis mine] Based on the evidence before me, or lack thereof, I am unable to accept that this claimant s current medical status is that of an absolute handicap on the labour market. Thus, no award was made for loss of future earnings. IX. INTEREST: 45. Interest is separate and apart from any award on damages and is viewed more like an added benefit awarded to a claimant for winning his case. See Jefford v Gee 34 and section 25 of the Supreme Court of Judicature Act. 35 Thus, interest is discretionary and is given for being kept out of money which ought to have been paid, and not as compensation for the damages done. X. CONCLUSION 46. It is thus the order of this court that the defendants do pay to the claimant (i) General damages in the sum of $160, with interest at the rate of 9% per annum from 13 th February, 2008 to 24 th February, (ii) Special damages in the sum of $144, with interest at the rate of 6% per annum from 5 th June, 2007 to 24 th February, (iii) Costs on the prescribed basis in the sum of $51, (iv) Stay of execution of 28 days. Dated 24 th February, 2012 Martha Alexander Master of the High Court (Ag) Judicial Research Assistant: Ms Kimberly Romany 33 Smith v. Manchester City Corporation (1974) 118 S.J Jefford v Gee [1970] 2 WLR 702 per Lord Denning MR at 709 G. 35 Sandra Juman v PC Abbot #11999 and the AG of T&T HCA No S-490 of 2001 Page 18 of 18