IN THE HIGH COURT OF JUSTICE BETWEEN KESTON KIRK AND CARIBBEAN AIRLINES LIMITED BETWEEN NATHALIE DUNCAN-MONDESIR AND CARIBBEAN AIRLINES LIMITED

Transcription

1 IN THE REPUBLIC OF TRINIDAD AND TOBAGO Claim No. CV IN THE HIGH COURT OF JUSTICE BETWEEN Claim No. CV Claim No. CV Appearances For the Claimant: For the Defendant: KESTON KIRK AND CARIBBEAN AIRLINES LIMITED BETWEEN NATHALIE DUNCAN-MONDESIR AND CARIBBEAN AIRLINES LIMITED BETWEEN DEONATH SINGH AND CARIBBEAN AIRLINES LIMITED Mr. Thompson Mr. Nanga Instructed by Ms. Bissessar Claimant Defendant Claimant Defendant Claimant Defendant Date of Delivery: 13 th January 2016 JUDGEMENT -1-

2 THE CLAIM [1] These actions were commenced by 3 separate Claim Forms and Statements of Case filed on 6 th February, The Statements of Case were subsequently amended on 20 th May, [2] The Defendant filed its Defences in these matters on 23 rd March, By Order of the Honourable Justice Delzin (as he then was) these matters were consolidated. On the basis that liability was not in issue, the matter proceeded to the assessment of damages. [3] The Claimants claim against the Defendant is for damages for personal injuries and consequential losses caused by the negligence of the Defendant, its servants or agents. The Claimants all claim that on 17 th day of November 2008 they were passengers in an aircraft owned and operated by the Defendant. Whilst they were seated in this aircraft at Piarco International Airport the cabin was suddenly depressurized. As a result they sustained injury their ears with resultant pain, suffering, loss and damage. [4] Although the cases were consolidated for the purpose of these assessments I will deal with each Claimant individually. [5] All the Claimants submitted that the damages to be awarded in these cases fell to be assessed under the Montreal Convention which provides that damages are at large in negligence claims. They assert that these claims do -2-

3 not fall under the Warsaw Convention which limit claims for loss arising from negligence. The Defendant, on the other hand, argued that not only did those claims fall under the Warsaw Convention which limited damages arising out of the Defendant s negligence to the sum of 125,000 francs but that this Court had already determined this issue. In light of the decision that I have arrived at in those matters it did not become necessary to determine this issue since the awards in these claims fell below the minimum award provided for under the Warsaw Convention. KESTON KIRK The Evidence Witness Statement of Keston Kirk [6] This Claimant filed a witness statement on 31 st January 2011 in which he testified that when the cabin became depressurized he began having breathing problems. The aircraft was evacuated shortly afterward and upon disembarkation he began to experience severe pain in both ears. He stated further that he visited Dr. Ali on the said day and the latter referred him to Dr. Solaiman Juman, an otolaryngologist. He asserted that the pain in his ears persisted and this caused him to seek treatment from Dr. Aziz, a consultant otolaryngologist. Despite this further treatment his pain and discomfort continued and as a result he visited one Dr. Austin Trinidade, an Ear Nose and Throat specialist on 7 th day of August Dr. Trinidade -3-

4 examined him and issued a medical report also dated 7 th August In that report Dr. Trinidade indicated that an audiogram was conducted on this Claimant which revealed a 30 decibel hearing loss in the right ear but that the left ear was normal. The doctor opined that the Claimant was probably suffering from baro trauma which should resolve. [7] The Claimant testified that he continued to suffer pain and discomfort despite treatment from the above mentioned doctors. Consequently on 10 th July 2009 he sought further medical attention from one Dr. Wendell Dwarika, an otolaryngologist. On the 11 th day July 2009 Dr. Dwarika prepared a written medical report for the Claimant in which he opined that the Claimant had suffered a bilateral moderately severe hearing loss of all frequencies and that the Claimant s hearing impairment was fifty two percent in both ears and irreversible. He recommended the use of a hearing aid for Mr. Kirk. For the purposes of this assessment Mr. Kirk relied upon the medical evidence of Dr. Austin Trinidade and Dr. Dwarika. [8] This Claimant, a 30 year old police officer, testified that the injury has adversely affected him in the performance of his duties. He claimed that he continues to suffer severe pain and discomfort in both ears he cannot hear properly, he is very sensitive to noise and that his pain is aggravated by noise. This witness also asserted that before the incident which led to his injury on 17 th November 2008 he had had no hearing problems. He also submitted a claim for special damages as follows: i. Medical expenses - $1,

5 ii. Travelling expenses - $ The Claimant was not cross examined. Dr. Trinidade [9] Dr. Austin Trinidade testified before me on 16 th November He was cross examined by Mr. Nanga on the basis of his medical report filed herein on 29 th June In answer to Mr. Nanga he testified that a hearing loss of 30 decibel is a mild hearing loss 1. He also testified that when he opined that the Claimant suffered a baro trauma which should resolve he meant that the hearing will return to an acceptable level. He was not aware of what the Claimant s previous hearing was like. It was his view that the Claimant s hearing may not return to zero which is considered normal hearing 2. Dr. Dwarika [10] The other medical evidence relied upon by the Claimant was that of Dr. Wendell Dwarika. He filed a witness summary on the 31 st January 2011 in which he repeated the contents of his medical report referred to above. This witness was also cross-examined by Mr. Nanga on behalf of the Defendants. 1 Transcript of the 16 th November 2013, page 6 2 Transcript of the 16 th November 2013, page 6-5-

6 [11] Dr. Dwarika testified that he conducted an audiogram on the Claimant on 10 th July At this time the hearing loss in his right ear was 55 decibels. In response to a question from Counsel he stated that it would be highly unlikely that a patient could have sustained hearing loss of 55 decibels on 10 th July 2009 and a finding a 30 decibel hearing loss could be made on 7 th August It was his view that this discrepancy could arise if there was a problem with the machine used to conduct the audiogram or if the patient was not totally honest. He also explained that a patient can cheat on the test 3. [12] Dr. Dwarika further testified that he recommended a hearing aid to Mr. Kirk which would have assisted him by amplifying sound in both ears. He further stated that he would be surprised if on the 10 th July 2009 there was no hearing loss in the left ear 4. As to the cause of the bilateral moderately severe hearing loss of all frequencies the doctor opined that there are many causes such as trauma, tumors, a congenital condition or drug use 5. Significantly, Dr. Dwarika stated that the medical report does not identify the cause of the loss of hearing in this case because it would not be possible to do so 6. 3 Transcript of the 16 th November 2013, page 13 4 Transcript of the 16 th November 2013, page 14 5 Transcript of the 16 th November 2013, page 14 6 Transcript of the 16 th November 2013, page 15-6-

7 [13] In re-examination Mr. Thompson and the witness had the following exchange: Q: In your professional opinion such an incident an aircraft becoming depressurized could have caused that injury to the ear? A: Depressurization of the ear can cause some degree of Eustachian Tube damage and it may cause a mild drop in the hearing but usually it would be temporary. He clarified that he was referring to depressurization in an aircraft. SUBMISSIONS ON BEHALF OF THE CLAIMANT [14] This Claimant submitted that the Court ought to accept the medical evidence adduced on his behalf, particularly the evidence of Dr. Dwarika, that Mr. Kirk s injury was serious and his hearing impairment was fifty two percent in both ears. Counsel for the Claimant acknowledged that expert evidence can be accepted or rejected by the tribunal of fact; he, however, urged the court to accept Dr. Dwarika s medical evidence as stated above. [15] In his submissions in reply filed on 21 st February 2014 the Claimant submitted that the issue of liability was not relevant on an assessment of damages. He further argued that the Court should not take into account -7-

8 the evidence of Dr. Dwarika relating to causation (that it was unlikely that the depressurization of the cabin could have caused the Claimant s hearing impairment and that depressurization would usually cause a mild temporary drop in hearing). He submitted that the Defendant having admitted liability, this issue was no longer before the court. The only remaining issue in these circumstances was the quantum of damages due to the Claimant. He contended that the Defendant s admission of liability was unconditional. They filed no defence on the issue of contributory negligence. In these circumstances the Court ought to disregard any submissions of the Defendant on the issue of liability. SUBMISSIONS ON BEHALF OF THE DEFENDANT [16] The Defendant submitted that in assessing the quantum of damages payable to the Claimant the Court must take into account all questions relating to the quantification of such damages including the question of causation in relation to the particular heads of loss claimed by the Claimant. [17] The Defendant further submitted that whilst Kirk was not cross-examined the onus was upon him to prove his loss in relation to his claim for special damages. The Claimant having failed to annex any receipts in support of his claim for medical expenses and transportation expenses, the Defendant submitted that the Court should make no award under this head. [18] Counsel for the Defendant urged this Court to have regard to the evidence of Doctors Trinidade and Dwarika who testified in this matter. He -8-

9 contended that based on Dr. Trinidade s evidence that there was mild hearing loss of 30 decibels in the right ear only which he expected to resolve; the Claimant s injury was therefore a minor one and should be assessed as such. He drew the Court s attention to Dr. Dwarika s evidence that it was unlikely that depressurization would have caused this Claimant s hearing loss; that it was possible for a patient to be dishonest during the test thereby affecting the outcome; and that it was highly unlikely that a patient could have such differing results (the reports of Dr. Trinidade and Dr. Dwarika). He suggested that although the Claimant complained of severe pain, this is not supported by the medical evidence. It is also noteworthy that the Claimant sought no further medical attention. ANALYSIS & CONCLUSION [19] The first issue that I must determine from the evidence before me is whether I could properly have regard to the issue of liability on the assessment of damages. Both sides relied upon the case of Lunnun v Singh and others 7. In this case the Claimant Mr. Lunnun owned a property adjacent to the Defendants sikh temple. He brought an action against the Defendants claiming injunctive relief and damages in respect of an alleged leakage of water and sewage onto his property from a cracked pipe in the temple buildings. A judgement in default was entered against the Defendants. On the hearing of the assessment of damages, the judge ruled on a preliminary point of law that the Defendants could not argue that any damage to the Plaintiff s cellar caused by water leakage was from 7 Times Law Reports 1999 page

10 a source other than the Defendants sewer, nor could the Defendants assert, in particular, that there were other sources of water damage. On appeal the Court of Appeal held that on an assessment of damages any point going to quantification of damage could be raised by the Defendant provided it was not inconsistent with any issue settled by the judgement on liability. Lord Justice Gibson delivering the judgement of the court opined 8 : The causative effect of a Defendant s acts or omissions must at least establish the Defendant s liability for those acts or omissions, but the Defendant could still argue on assessment that those acts or omissions were not causative of the particular loss Just as a Defendant in a personal injury action could challenge particular heads of damage, so it was open to the Defendants here to challenge particular heads of damage as caused by water from its cracked sewer pipes. The principle was that on an assessment of damages any point going to quantification of damage could be raised by the Defendant provided that it was not inconsistent with any issue settled by the judgement. [20] The authors of Blackstone s Civil Practice 9 state: A default judgement on liability for an amount to be decided by the Court is conclusive on liability in respect of all matters pleaded. But all questions going to quantification of the damage remain open. Any point may be raised by the Defendant at the assessment of damages provided it 8 Page paragraph 20.6, paragraph

11 is consistent with the judgement on liability. Thus it is not open to the Defendant to say that its acts or omissions had not caused any damage, but it could say that its acts or omissions had not caused certain individual items of damage. [21] It is clear from the learning that whilst a Defendant cannot raise the issue of liability at large after he has admitted liability or judgement has been taken up against him, he is entitled to raise causation in relation to the particular heads of loss claimed by the Claimant. One of the heads of loss in this claim is damages for injury, pain and suffering as a result of the depressurization of the cabin in one of the Defendant s aircraft. The Defendant admitted that the Claimant suffered pain and discomfort in the ear but denied that he experienced any breathing difficulty. It fell to the Claimant to prove that the injury, pain and suffering for which he claimed were as a result of the incident that he described on 17 th November I note also that it was the Claimant s attorney in re-examination who raised the issue as to whether the Claimant s injury was as a result of the depressurization of the cabin. Having regard to the authorities above I hold that I can take into account the evidence of causation in this case in determining whether the Defendant had caused certain items of damage as a result of its negligence. [22] As noted above, Dr. Trinidade diagnosed the Claimant as suffering from baro trauma which involved a temporary hearing loss of 30 decibels in his right ear and no hearing loss in his left ear. He described this hearing loss as mild. Although Dr. Dwarika found hearing loss of fifty two percent in -11-

12 both ears which he categorized as severe, I had regard to all of this evidence in this case. Significantly, he testified that it would be highly unlikely within the period of a month for the Claimant s audiogram to show a difference of approximately twenty five decibels of hearing loss in the right ear and a total of fifty five decibels in the left ear. It was in this context that Dr. Dwarika revealed that it was a possible for a patient to cheat during the examination by falsifying his responses to the questions asked of him during the audiogram to produce this disparity in results. The doctor also opined that it would be impossible for him to identify the cause of the hearing loss that he found when he conducted an audiogram on the Claimant. Indeed he went on to state that bilateral hearing loss on all frequencies can be caused by a number of factors including trauma, congenital, tumors and drug use. I also have regard to his evidence that it is unlikely that depressurization in an aircraft can cause the injury and hearing loss that he found when he examined the Claimant. He went on to clarify that depressurization can cause Eustachian Tube damage which is a mild temporary drop in hearing. [23] Dr. Dwarika s evidence, as a whole, casts doubt on the Claimant s claim of significant hearing loss resulting from depressurization whilst seated in one of the Defendant s aircraft. Both Dr. Dwarika and Dr. Trinidade appear to agree that the hearing loss resulting from depressurization in a cabin would be mild and temporary. I therefore came to the conclusion that the doctors evidence as a whole casts doubt on the Claimant s claim of significant hearing loss as a result of depressurization. -12-

13 [24] Having regard to all of the medical evidence in this case I conclude on a balance of probability that the Claimant suffered mild reversible hearing loss as a result of the depressurization of the aircraft owned by the Defendant. I accept Dr. Dwarika s evidence that it is unlikely that a patient could experience such a difference in hearing loss over a short period of time as revealed in the evidence in this case. I therefore accept Dr. Trinidade s evidence that the Claimant suffered a mild reversible hearing loss caused by baro trauma. I am of the view that this Claimant suffered a minor injury and should be compensated accordingly. The cases relied upon by the Claimant in support of an award are cases where the Claimant suffered far more serious injury than that sustained by this Claimant. Having come to the conclusion that this is a relatively minor injury which should have resolved, I therefore award him the sum of $35, as general damages. [25] With respect to his claim for special damages no receipts have been annexed in relation to his claim for transportation. However, I do note from the evidence that he visited several doctors in Trinidad and adduced their evidence in support of his case. This Claimant lives in Tobago. I therefore award him the sum of $ for transportation. In his Amended Statement of Case this Claimant sought $1, for medical expenses; again no receipts were attached. I consider this to be a reasonable sum and so I award him this figure for medical expenses. [26] I therefore order that the Defendant pay to the Claimant: i. General damages in the sum of $35, with interest at the rate of six percent from 6 th February 2009 to 13 th January 2016, -13-

14 ii. iii. Special damages in the sum of $3, with interest at the rate of three percent from 17 th November 2008 to the date of judgement, 13 th January 2016, Each party to bear their own costs. ANGELA WHIGHT Evidence Witness Statement of Angela Whight substituted by Nathalie Duncan-Mondesir [27] This Claimant, like the other two in these cases, filed a claim against the Defendant seeking damages, interest and costs as a result of injury that she sustained whilst a passenger in the Defendant s aircraft on 17 th November 2008 when the cabin of said aircraft suddenly depressurized. [28] This Claimant died on the 8 th January 2012 and was substituted by her daughter Nathalie Duncan-Mondesir on 27 th February [29] This Claimant s witness statement was filed on the 31 st January She testified that when the cabin of the Defendant s aircraft became depressurized she began experiencing breathing problems and severe pain in her ears. There was an emergency evacuation of the aircraft and the Claimant continued to experience pain in her ears after disembarkation. [30] She attended Dr. Ali on the said day and was referred to a Dr. Solaiman Juman, an otolaryngologist, whom she visited 20 th November After -14-

15 her visit to Dr. Juman the Claimant continued to experience pain in her ears and sought medical attention from Dr. Wendell Dwarika also an otolaryngologist on the 5 th December She continued to experience pain and discomfort and visited Dr. Dwarika again on the 11 th July 2009 for further medical attention and advice. [31] The Claimant testified that as a direct result of the injury she continued to suffer severe pain and discomfort in her ears. She asserted that as a result she could not hear properly and that prior to 7 th November 2008 she had had no hearing problem. [32] She also denied that the Defendant s liability is limited to 125,000 French francs under the Warsaw Convention. She argued that her claim for damages for personal injury falls under the Montreal Convention where liability for negligence is excepted. Accordingly, the witness testified that damages are at large. [33] Medical evidence consisted of two medical reports from Dr. Dwarika dated 5 th December 2008 and 11 th July Dr. Dwarika also gave two witness summaries in respect of this witness. Both were filed on 31 st January Dr. Dwarika [34] In his witness summary Dr. Dwarika testified that he attended the Claimant on 26 th November 2008 at his office. She reported that while sitting in an aircraft at Piarco International Airport she experienced -15-

16 significant pain in her ears. He testified that he examined her and diagnosed Eustachian Tube dysfunction. He also found her to be suffering from facial pain caused by sinus congestion. He recommended that she use a nasal spray for her congestion. He also stated that her medical problem would improve over the course of a few weeks. He prepared a medical report dated 5 th December In that report he outlined that upon examination her ear canal and tympanic membrane were normal. A screening test done for hearing proved satisfactory. [35] In the second summary also filed on 31 st January 2011 Dr. Dwarika testified that he saw the patient on 10 th July 2009 subsequent to her earlier visit for review. She complained that her hearing was still reduced in both ears but there was no associated tinnitus or vertigo. This Claimant also complained of headaches on the right side of her head. On examination the ear canal and tympanic membranes were again normal. An audiogram revealed a bilateral low frequency hearing loss. A tympanogram revealed normal middle ear pressure. [36] Dr. Dwarika opined that based on the level of hearing loss the percentage of hearing impairment for both ears was approximately twenty eight percent and this is irreversible. This Claimant was advised to take measures to protect her hearing such as avoiding exposure to loud noises -16-

17 Cross examination of Dr. Dwarika by Mr. Nanga [37] In answer to Counsel, Dr. Dwarika stated that he saw this witness about ten days after the incident. She complained of pain behind the eye 10, however she did not complain of pain in the ear just that it was blocked 11. There was no hearing loss at this time. The screening test performed on the Claimant was not a detailed hearing assessment; it is basically used as a screener to determine if one needs to go on to a more detailed assessment. He asserted that Eustachian Tube dysfunction had nothing to do with the incident on the 17 th November Dr. Dwarika found nothing seriously wrong with the Claimant on this visit 12. [38] With respect to the report dated 11 th July 2009 the doctor testified that it was difficult to say what would have caused the low frequency bilateral hearing loss that he had diagnosed the witness to be suffering from. In answer to counsel he indicated that he would hesitate to say that Eustachian Tube dysfunction could cause that type of hearing loss because he had conducted a tympanogram on the patient which showed that the Eustachian Tube was functioning normally. He therefore opined that it was unlikely that the Eustachian Tube dysfunction could have caused the bilateral low frequency hearing loss. In answer to Mr. Thompson in reexamination Dr. Dwarika stated that on the second examination he conducted on this Claimant he found that she had a mild to moderate low tone hearing loss. 10 Transcript of the 16 th November 2013, page 22, Transcript of the 16 th November 2013, page Transcript of the 16 th November 2013, page

18 SUBMISSIONS ON BEHALF OF THE CLAIMANT [39] Mr. Thompson again submitted that the evidence elicited from Dr. Dwarika on the issue of causation was inadmissible since the Defendant had already admitted liability. He relied upon the same authority Lunnun v Singh and others in support of his contention. Counsel submitted in the alternative that if causation was relevant the court ought to take into account the evidence of Dr. Aziz on behalf of the other Claimant Deodath Singh since all the Claimants suffered injury in the same circumstances and at the same time. [40] Counsel submitted further that while expert evidence may be accepted or rejected by the tribunal of fact, the court ought in these circumstances to accept Dr. Dwarika s evidence that the Claimant suffered hearing loss of twenty eight percent in both ears. [41] On the issue of damages to be awarded this Claimant, Counsel relied upon several personal injury cases where the Claimants suffered injury that was far more serious than that suffered by this Claimant. Counsel acknowledged that he could find no case in this jurisdiction on all fours with that of the Claimant. However, he urged this Court to rely upon the authority of Sudan v Carter and Jardine Thom 13 where the Claimant suffered a twenty five percent hearing loss as a result of a perforated ear drum and displacement of bones in the inner ear and was awarded the sum of $120, (updated at December 2010). He submitted in the 13 HCA No of

19 round that the Claimant Angela Whight should be awarded a sum in the range of $190, to $225, for pain, suffering and loss of amenities. He claimed special damages in the sum of $3, which included the cost of Dr. Dwarika s attendance in court. SUBMISSIONS ON BEHALF OF THE DEFENDANT [42] The Defendant repeated his submission on the issue of causation. The Defendant admitted that when the pressurization occurred some passengers began experiencing pain and discomfort in the ear but there were no complaints of breathing difficulty. They further submitted that if this Claimant continued to experience pain, the Defendant will maintain that it is as a result of Eustachian Tube dysfunction as diagnosed by Dr. Dwarika and not as a result of the Defendant s negligence. He argued, following Lunnun supra, that while the Defendant is liable for some damage it is for the Claimant to prove the extent of those damages. In this regard the issue of causation remains live at the assessment. He argued that Dr. Aziz gave no evidence on behalf of Ms. Whight he did not examine her and therefore his evidence cannot be taken into account with respect to this Claimant. In any event he argued that Dr. Aziz s evidence is not relevant to any of the claims in this matter. Mr. Nanga invited the court to have regard to the medical evidence of Dr. Juman annexed to the witness statement of the Claimant. -19-

20 [43] Mr. Nanga on behalf of the Defendant further submitted that Dr. Dwarika could not say what caused the hearing loss of twenty eight percent in this Claimant. He argued that there is no evidence that the Claimant s hearing loss and headaches to the right side of her head were linked to the incident. He also contended that the evidence does not support that Ms. Whight suffered severe pain since there is no evidence that she continued to seek medical attention which would have been the case if she had been experiencing severe pain. He submitted in the round that there was no permanent injury suffered by this Claimant - that she would only have suffered some discomfort which would have resolved. The Defendant argued that this was a minor injury in respect of which the Court should only award $10, in general damages. Counsel submitted further that having regard to the sum of damages which should be awarded the issue as to whether the provisions of the Warsaw Convention applied was not a live one. [44] With respect to special damages it was pointed out by the Defendant that no receipts were attached in support of the Claimant s claim for medical expenses of $2, and transportation costs of $ He also highlighted that the Claimant had pleaded a figure of $ for medical expenses which was increased to $2, without explanation. He submitted that if the court was minded to award a sum for medical expenses and transportation costs it should be limited to the figure pleaded in the Claim Form and Statement of Case. -20-

21 ANALYSIS & CONCLUSION [45] The issue as to whether the Defendant could raise causation with respect to the quantification of damages was also raised in this claim. I already ruled in the Keston Kirk claim that the Defendant can raise the issue of causation once it was not in conflict with his admission of liability. The Defendant, in admitting liability in this case, limited the admission to the fact that the Claimant would have suffered some discomfort and pain. In my view the Defendant is entitled to raise the issue of causation with respect to every head of damage raised by the Claimant. I am therefore entitled to assess the medical evidence in order to determine whether the Defendant s negligence caused the particular injury in respect of which the Claimant seeks damages. [46] The Defendant admitted that when the pressurization occurred some passengers began experiencing pain and discomfort in the ear but there were no complaints of breathing difficulty. They further submitted that if this Claimant continued to experience pain, the Defendant will maintain that it is as a result of Eustachian Tube dysfunction as diagnosed by Dr. Dwarika and not as a result of the Defendant s negligence. [47] This Claimant seeks compensation for hearing loss of twenty eight percent in both ears as diagnosed by Dr. Dwarika on her second visit to him some eight months after the incident. The claim for loss of amenities, pain and suffering relative to this injury must be linked to the Defendant s negligence on the 17 th November However, I have regard to the evidence of Dr. Dwarika who testified that it was difficult to say what -21-

22 would have caused the low frequency hearing loss. He also testified that it was unlikely that Eustachian Tube dysfunction which he had diagnosed on his earlier examination of her on 26 th November 2008 had had anything to do with the incident of 17 th November He also noted that when this Claimant first visited him in November 2008 she did not complain of pain in the ears, just that her ears were blocked. [48] Having regard to the evidence of Dr. Dwarika I have come to the conclusion that the Claimant has not established on a balance of probabilities that any hearing loss that she may have suffered was as a result of the depressurization of the aircraft belonging to the Defendant. I find that she did suffer some discomfort after the depressurization but on the evidence I do not accept that she suffered severe pain. [49] It should be pointed out that no application was made to have Dr. Juman treated as an expert witness in this case nor was he called to testify. I did not determine this case on the basis of Dr. Juman s evidence to which I attached no weight. [50] In the circumstances I consider this to be a minor injury suffered by the Claimant and accordingly I award her the sum of $35, as general damages. The Claimant has adduced no evidence in proof of her claim of special damages, however, I note that she lived in Tobago and would have had to travel to Trinidad to see Dr. Dwarika. She would have incurred transportation costs and medical expenses. -22-

23 [51] I therefore order that the Defendant pay to the Claimant: i. General damages in the sum of $35, with interest at the rate of six percent from 6 th February 2009 to 13 th January 2016, ii. iii. Special damages in the sum of $1, with interest at the rate of 3% from 17 th November 2008 to the 13 th January 2016, Each party to bear their own costs. DEODATH SINGH Evidence Witness Statement of Deodath Singh [52] This Claimant like the other two filed a claim in negligence arising out of the same incident on 17 th November He too was a passenger in an aircraft belonging to the Defendant whose cabin suddenly depressurized. The Defendant in his case also admitted liability but only admitted that this Claimant suffered some pain and discomfort as a result of the depressurization of the aircraft aforesaid. [53] This Claimant filed a witness statement on 31 st January He testified therein that he was a taxi driver and on 17 th November 2008 he was seated as a passenger on an aircraft owned by the Defendant bound for Tobago when the cabin of the said aircraft suddenly depressurized. At the time the other two Claimants in this matter, Keston Kirk and Angela Whight, were also seated in the said aircraft. Mr. Singh stated that upon the aircraft becoming depressurized he immediately experienced breathing problems -23-

24 and severe pain in his ears which continued after he disembarked from the said aircraft. [54] He too visited the office of one Dr. Ali who referred him to Dr. Solaiman Juman, an otolaryngologist. He saw Dr. Juman on 20 th November 2008 and Dr. Juman gave him a medical report. Dr. Juman also filed a witness summary in this case on 26 th January In his witness summary Dr. Juman testified that he treated the Claimant for ear stuffiness and discomfort. He diagnosed the Claimant as suffering from a baro trauma from which he expected the Claimant to recover fully. [55] The Claimant testified that he continued to experience persistent pain in his ears and sought medical attention from Dr. Mirza Ashraph, an otolaryngologist, on 4 th February 2009 (who also diagnosed the Claimant as suffering from a baro trauma from which he expected the Claimant to make a full recovery). [56] This Claimant further testified that as a result of continued pain in his ear he saw a consultant otolaryngologist, Dr. M. A. Aziz on 5 th May 2009 who examined him and submitted a medical report. This doctor was issued a witness summons and he attended court. He gave evidence and was crossexamined. [57] This Claimant testified that since the date of the incident he has experienced pain and discomfort in both ears. He alleged that he is sensitive to noise and that this hearing impairment affected him adversely in that he cannot hear properly to this day and is unable to ply his taxi. He -24-

25 also stated that prior to the incident in November 2008 he did not have any hearing problems. [58] He claimed by way of special damages the sum of $2, for medical expenses and the sum of $ a day from 18 th November 2008 to 31 st January 2011 amounting to $117, for loss of earnings. Dr. Mirza Ashraph [59] Dr. Mirza Asraph filed a witness summary with a medical report attached on behalf of this Claimant. He testified to having seen and examined Mr. Singh on 4 th February Upon examination he found the Claimant s audiogram and tympanogram were within normal limits. He testified that Mr. Singh presented a history of allegedly suffering with baro trauma. His opinion was that Mr. Singh s complaint would resolve upon his compliance with prescribed medications. [60] This doctor was not called upon by the Claimant nor was he crossexamined. Mr. Thompson for the Claimant submitted that he did not intend to rely on the evidence of this witness since he had not signed his witness summary. He further submitted that in the circumstances the Court could not rely on his evidence. [61] Dr. M. A. Aziz filed a witness summary on behalf of the Claimant on 31 st January 2011 which was signed by the Claimant s attorney and not Dr. Aziz. Attached to this witness summary was his medical report. Dr. Aziz testified that he attended Mr. Singh on 5 th May 2009 at his office. Mr. Singh -25-

26 complained of hearing difficulty in both ears upon a sudden change in cabin pressure in an aircraft in which he was seated on 17 th November [62] Upon examination he found that there was a forty five percent hearing defect in his left ear and thirty five percent hearing defect in his right ear. A medical report dated 20 th October 2011 was attached to Dr. Aziz s witness summary. In that report Dr. Aziz noted that there was no change in hearing from tests conducted on 5 th May He considered that this hearing impairment was permanent. [63] In his medical report dated 5 th May 2009 Dr. Aziz reported the Claimant s history as that of decompression in an aircraft cabin and a high pitched sound. An audiometry test showed forty five percent hearing loss in the left ear and thirty five percent in the right ear. He advised medication. A witness summons was issued for this witness and he gave evidence and was cross-examined on 20 th November Dr. Aziz [64] Dr. Aziz attended court on 20 th November 2013 and was cross examined. He testified that he is a retired Ear Nose and Throat consultant having served in the public service for twenty nine years. -26-

27 [65] In examination in Chief 14 he testified that hearing tests using an audiometer are subjective. He testified that he found a forty five percent loss in the left ear and thirty five percent loss in the right ear when he examined the Claimant on 5 th May During his later examination of the Claimant on 20 th October 2011 he conducted further tests and found that there was no change in the readings. [66] In cross-examination this witness testified that he prescribed medication for the Claimant which he refused 15. He explained that an audiometer is an audiogram. He stated that he would not be surprised to know that in February 2009 this Claimant was seen by Dr. Ashraph and his audiogram and tympanogram were normal. He later stated that he found this a bit strange 16. [67] During the cross-examination the following exchange took place between Mr. Nanga and Dr. Aziz: Q: Dr. Aziz do you know what caused this patient s complaints? A: From the history that he gave me there was a sudden decompression and I supposed the aircraft was at the tarmac and there was a severe blast and what he described was that the door was about to open and they got an effect of that. There was a blast with a high sound, a screeching sound. 14 Transcript 20 th November 2013 page 7 15 Transcript 20 th November 2013 page 9 16 Transcript 20 th November 2013 page

28 Q: So was it a high screeching sound? A: Yes Q: That is what was described to you? A: With the blast effect. 17 Q: So he described to you a blast and a high screeching sound. Would you say that what you found in May 2009 was consistent with that? A: Yes I think it was because I saw him 6 months after. Q: Can there be any other explanation for the hearing loss that you discovered in May 2009? A: Well the both ears are involved and it fits in with this acute acoustic trauma that he complained that he suffered 6 months ago. Q: Could there be any other explanation for the hearing loss. A: There are several explanations: blast of gun or something exploding but that would be in one ear. Q: Anything else? What else could account for this type of hearing loss in both ears? 17 Transcript 20 th November 2013 page

29 A: You will get that in someone who is working in an industry where the decibel is very high over 95 to 100db. Noise induced hearing and this comes under that. Q: And independent of that high pitched noise that he complained of had it not been for that high pitched noise would his hearing been affected? A: The hearing would not have been affected. Q: So you believe it was the high pitched noise that cause the hearing loss A: High pitch with the blast. You see noise and sound go together and the sound creates the pressure effect. This is why you have the sonic boom because of the low heavy wave and the force preceding it. You also have the high pitch sound that causes damage to the what we call the hair cells in the cochlea. Q: If the hearing loss was as a result of what occurred in November of 2008 would that hearing loss be felt immediately or would it take some time to manifest itself? A: You get it sometime immediately. Q: If it is in February 2009 his audiogram was found to be normal but in May 2009 this is what you found would it -29-

30 be correct to say that it is unlikely that the event in November of 2008 caused his hearing loss? A: I think so. [68] This doctor was asked whether anything could have assisted the patient with respect to the hearing loss which this doctor diagnosed. He indicated that the Claimant was advised to avoid noisy surroundings and to take vitamins to perk up the nerve endings. He went on to explain that with a loss of thirty five decibels of hearing one would not need a hearing aid but would be able to hear 18. He clarified that the patient having suffered a thirty five percent in the right ear he would not have needed a hearing aid for that ear. However, he would need a hearing aid for the right ear which suffered a forty five percent hearing loss 19. [69] In answer to Mr. Thompson in re-examination the witness opined that the Claimant would have suffered some disability since at thirty five decibel hearing loss does affect hearing and speech 20. [70] The Defendant elected not to call Dr. Juman in respect of whom a witness summary had been filed. 18 Transcript 20 th November 2013 Page Transcript 20 th November 2013 Page Transcript 20 th November 2013 Page

31 SUBMISSIONS ON BEHALF OF THE CLAIMANT [71] The Claimant submitted that the Court ought to accept Dr. Aziz s assessment on the Claimant s hearing impairment of forty five percent in his left ear and thirty five percent in this right. He acknowledged that Dr. Aziz based his findings on the tests that he conducted as well as the history the Claimant gave him of being seated in an aircraft and experiencing severe depressurization and a blast. [72] Mr. Thompson submitted however that the court ought not to take into consideration any evidence relative to causation of the injury since the Defendant had already admitted liability and the sole issue before this court is that of the quantum of damages to be awarded the Claimant, the Defendant having admitted liability. (The evidence of causation in this case related to the testimony of Dr. Aziz that he based his findings in part upon the history of the Claimant that he was subjected to sudden decompression and a blast coupled with a high pitched screeching sound while in the Defendant s aircraft). [73] It was also argued on behalf of this Claimant that it was not open to counsel to cross-examine Dr. Aziz on Dr. Ashraph s medical report since that report had not been admitted into evidence. He further stated that the Claimant neither relied upon the witness summary nor the medical report of Dr. Ashraph. [74] On the issue of damages the Claimant submitted that the finding of Dr. Aziz amounted to a severe injury to the Claimant and an award of -31-

32 damages should be made on that basis. He relied upon several authorities in which awards for serious injury to the ear were made and submitted in the round that the court should award the Claimant the sum of $275, for pain, suffering and loss of amenities. He claimed special damages as follows: a) Loss of earnings - $117, b) Medical expenses - $7, [75] It was also this Claimant s argument this his claim for damages was not limited under the Warsaw Convention but was at large. SUBMISSIONS ON BEHALF OF THE DEFENDANT [76] The Defendant submitted that this Claimant had pleaded that his injury 21 was caused by depressurization of the aircraft s cabin. There was no pleading about a blast and a high screeching sound. The Defendant admitted liability on the basis of the Claimant s pleading and not otherwise. Counsel also asked the Court to take into account the fact that even in his witness statement this Claimant did not attest to there being a blast and high screeching sound at the time of the depressurization. He went on to state that had a blast and high screeching sound been pleaded the Defendant s conduct and preparation of the trial would have been affected in that whilst they would have accepted depressurization they would have denied the presence of a high screeching sound and the blast; they therefore would not have accepted liability. 21 Paragraph 5 of the Amended Statement of Case filed 20 May

33 [77] Counsel submitted that the medical evidence shows that it was the blast and high screeching sound which caused the Claimant s injury and not the depressurization; accordingly the court could not determine that depressurization caused the Claimant s loss. The cause of the Claimant s injury, he submitted, could not be attributed to the negligence of the Defendant. [78] The Defendant relied upon the medical report of Dr. Juman in submitting that the Claimant did not suffer any major injury as a result of the incident. [79] With respect to special damages, Mr. Nanga submitted that it was incumbent on the Claimant to prove his loss of earnings as a taxi driver and his medical expenses; the Claimant having failed to annex any receipts, no award for special damages should be given him. The Defendant further submitted that on the basis of the evidence the Claimant s injury was caused by a blast and high screeching sound which was not related to the incident giving rise to the claim as pleaded. He therefore argued that medical expenses were not payable. [80] He contended that even Dr. Aziz did not say that the Claimant was unable to drive or earn an income as a taxi driver. Indeed his evidence was that a hearing aid would assist the Claimant in his day to day functions. It was further argued by the Defendant that the Claimant s claim of severe pain was not supported by the evidence; even if such pain did exist it is not attributable to depressurization of the Defendant s aircraft but to a blast and a high screeching sound. -33-

34 ANALYSIS & CONCLUSION [81] As before, I hold that the Defendant is entitled to raise the issue of causation with respect to the heads of damage claimed by the Claimant. As such, the evidence of Dr. Aziz as to the cause of injury and hearing impairment that he found in this Claimant is relevant and admissible. I have come to the conclusion that Dr. Aziz s finding of a forty five percent hearing loss in the Claimant s left ear and thirty five percent in his right ear is not attributable to the depressurization which the Claimant was subjected to in the Defendant s aircraft. It is the clear evidence of this doctor upon whose evidence the Claimant relies in support of his case that this injury was caused by the high pitch sound and blast which the Claimant alleged that he heard on 27 th November [82] Additionally, this claim of a high screeching sound and blast did not form part of the pleaded case of this Claimant. As such the Defendant would not have had an opportunity when determining whether to admit liability to assess this claim. It would be unfair to allow this Claimant to raise for the first time at the hearing of the assessment these new bases of his claim without the Defendant having had an opportunity to treat with them. [83] In the circumstances I am of the view that this Claimant having experienced depressurization would have had some discomfort in his ear but certainly not the severe injury that he claimed. I note that the Defendant admitted liability for some pain and discomfort experienced by the Claimant upon the depressurization of the cabin. I consider that -34-

35 discomfort to have been minor and temporary and I therefore make an award of damages on that basis. [84] I also take into account this doctor s evidence that the tests for hearing are subjective; as a doctor he relies upon the responses of the patient which form the basis of his assessment 22. I am also of the view that this Claimant was not honest when he was administered the audiogram neither was he honest in his account to Dr. Aziz of the incident giving rise to his claim. [85] I therefore award this Claimant: i. General damages in the sum of $35,000.00, interest at the rate of 6% from 6 th February 2009 to 13 th January 2016 ii. Special damages in the sum of $2, iii. iv. Loss of earnings in the sum of $ a day for fourteen days in the sum of $4,200.00, interest at the rate of 3% from 17 th November 2008 to 13 th January 2016 on the sum of $6, Each party to bear their own costs. Joan Charles Judge 22 Transcript of 20 th November 2013, Page 7-35-