IN THE HIGH COURT OF JUSTICE BETWEEN HYACINTH VALERE CULLEY AND KRISHNA GAJADHAR

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO Claim No CV IN THE HIGH COURT OF JUSTICE BETWEEN HYACINTH VALERE CULLEY AND KRISHNA GAJADHAR GOODWILL GENERAL INSURANCE COMPANY LIMITED (In Compulsory Liquidation) ************************************ Before: Master Alexander Claimant Defendant Co-Defendant Appearances: For the Claimant: For the Defendant: Mr Abdel Ashraph h/f Mr Mahendranath Dhaniram Mr Hansraj Bhola DECISION I. INTRODUCTION 1. The claimant is an Unemployed Relief Program worker who was working along the Three Roads Savannah in Freeport on 9 th May, 2006 when the defendant s vehicle, registration number PAP 3639, collided with her. At the time of the accident, the claimant was 48 years and it is her claim that she has sustained personal injuries, loss and damage. 2. On 5 th February, 2007 the claimant commenced action, by claim form and statement of case, seeking damages arising out of the defendant s negligence. On 10 th October, 2007 judgment in default of defence was entered against the defendant. By notice dated 18 th March, 2009 the claimant discontinued this action against the co-defendant. 3. The assessment of damages was heard on 14 th October, Page 1 of 11

2 II. EVIDENCE ON ASSESSMENT: The claimant s evidence consisted of her witness statement filed on 20 th December, There were also several medical reports in support of her claim for damages, annexed to her statement of case and/or witness statement including: Medical reports of Dr K C Ragbir dated 17/5/06, 6/6/06, 8/8/06, 7/02/09; and Medical report of Dr Lionel Myers dated 4/10/06. The defendant, having failed to deliver a defence, forfeited his right to participate at the assessment and was not permitted to lead any evidence. 4. The Medical Evidence: According to the medical reports of Dr K C Ragbir relied on by the claimant, which were annexed to the claimant s statement of case and witness statement, the claimant sustained the following personal injuries: pains in lumbar spine; pains in left iliac fosse; pains in left hip; pains in Achilles tendon; pains in left arm; muscular swelling of posterior aspect of thigh; muscle spasms; dysfunctional uterine bleeding; swelling and tenderness of knee joint; difficulty raising leg off the ground on walking; and nervous reactions. The claimant was given an orthopaedic referral by Dr K C Ragbir on 7 th February, According to the medical report of Dr Lionel Mayers, the claimant was treated twice at his clinic (on 14/9/06 and 4/10/06) for lower back pains with acupuncture massage, with back strengthening formulae. Page 2 of 11

3 5. Continuing Effects of Injuries: In her witness statement, the claimant gave evidence that her injuries have and continue to immensely impact on the quality of life she now enjoys. It has affected all aspects of her life, denying her the ability: to do the work she previously did; to engage in sexual activities; to maintain her marital relationship; and to partake in social and sporting activities. It is also her evidence that as a result of her injuries, she now has her period twice a month. She also involuntarily urinates on herself from time to time. IV. APPLICATION OF THE LAW ON GENERAL DAMAGES: 6. In assessing the quantum of general damages, the court was guided by the approach of Wooding CJ in Cornilliac v St Louis 1 and considered: 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. 7. Nature and extent of the injuries sustained The evidence points to the claimant having received injuries to her lumbar spine, left iliac fosse, left hip, left Achilles tendon and left arm. As a result, she experiences muscle spasms and hip pains on standing and walking and nervous reactions. She also has experienced the onset of dysfunctional uterine bleeding. There was swelling and tenderness of the knee joint and muscular swelling of the posterior aspect of the thigh. The nerves in her left leg were damaged, hence the swelling. The claimant experiences difficulty raising her leg off the ground on walking and it is her evidence that 1 Cornilliac v St Louis (1965) 7 WIR 491. Page 3 of 11

4 she can no longer do too much walking. examination. There were, however, no evident fractures on 8. Pain and suffering endured The claimant s evidence is that she has been subjected to excruciating pain and discomfort as a result of her injuries. The pain commenced on impact and continues to date. In her witness statement, she stated that when she returned home from the hospital on the day of the accident, she started experiencing tremendous pain. She described this pain thus, I had a fever. I felt a severe burning sensation in my leg, my back pained and my muscles were moving involuntarily causing my hands and legs to tremble.... I couldn t sleep because of the pain. I took more tablets... I kept dozing off and waking up again because of pain I was experiencing. Three days after the accident, it is her evidence that she began experiencing abnormal vaginal bleeding, a burning sensation, muscle spasms and severe pain preventing her from sleeping, despite medication. It is also her evidence that even climbing onto a bed at the doctor s office posed a problem because of the severity of the pains being experienced. The claimant s attorney asked the court to note that since the accident, she can no longer remove weeds from her plants because it is too painful an activity. She experiences great difficulty to put on her underwear because bending is very painful. She also gave evidence that she was forced to walk with the assistance of a walking stick for about two months after the accident and still experiences sharp pains throughout her legs to date. It is also her evidence that she can no longer wear high heel shoes. In addition, doing household chores is very painful and she now relies on friends and family to help her. I accept the evidence that the claimant s pain and suffering would have initially been unbearable. Whilst, according to her evidence, she still experiences sharp pains, there is no evidence that speaks to whether this threshold would have been reduced overtime or not. Nevertheless, I accept that the claimant continues to suffer pains in her legs and that this would be a continuing source of discomfort and challenge for her. Page 4 of 11

5 9. Loss of amenities suffered It is her evidence that prior to the accident she enjoyed playing football and casual sports with her 14 year old son and tending to her plants. Now she is unable to participate in either activity. She also stated in her witness statement that her husband left her because she could no longer engage in sexual activities with him. It is also a challenge for her to do household chores or engage in activities that involve bending. This court accepts the evidence of the witness, which was unchallenged, as to the loss of amenities suffered, particularly her challenges in participating in recreational and household activities and in performing the ordinary, everyday human functions. To my mind, the fact that she now involuntarily urinates on herself from time to time would also have a negative impact on her social life. However, the regularity, frequency and severity of this were not elaborated on in her evidence. 10. Nature and gravity of the resulting physical disability Attorney for the claimant has submitted that the nature and gravity of the resulting physical disability from the injuries can be seen in the continued experiences of muscle spasms, nervous reactions, dysfunctional uterine bleeding, swelling of the knee joint and muscular swelling of the posterior aspect of the thigh. I also take note that this claimant is forced to endure a painful menstrual period now for twice a month and has bladder control challenges. Notwithstanding the above, it is noted that the claimant no longer has to walk with the assistance of a walking stick and that some of her injuries have healed. She is still suffering from pains, muscle spasms and swelling, and is unable to take long walks, which have impacted her quality of life. I, therefore, accept her evidence that she continues to be challenged by the effects of her injuries. 11. Extent to which pecuniary prospects have been materially affected In her witness statement, the claimant s evidence is that she is no longer able to work for the Family Planning of Trinidad and Tobago Outreach Program (which she did prior to the accident) because it requires a lot of walking and this is painful. It is also her evidence that she is unable to Page 5 of 11

6 work as a labourer in the Unemployment Relief Program because of the pains being experienced. At the Unemployment Relief Program, she was earning $ per fortnight. There is no evidence given as regards loss of income ensuing from her being unable to work for the Family Planning of Trinidad and Tobago Outreach Program. It is, therefore, assumed that this work was voluntary. V. CASES ON GENERAL DAMAGES: 12. The court was referred to the following authorities by the claimant s attorney: Harbackan v Samlal 2 where Master Best (as he then was) on 13 th October, 1989 awarded the sum of $6, to a plaintiff for multiple bruises to the right hip region, contusion to the chest wall and sterna area, tenderness over the right ribs, whiplash injury to the neck and minor concussion. This sum when adjusted to December, 2010 was $24, Ramsden v Bheen 3 where Master Paray-Durity on 9 th July, 1992 awarded the sum of $40, to a plaintiff who has sustained knee, ankle joint and shin bone injuries. This sum when adjusted to December 2010 was $123, Damian Moreno v Anthony Brusco & ors 4 where Rampersad J on 7 th October, 2009 awarded the sum of $35, for cerebral concussion, cervical muscular spasm, facial lacerations, post concussion syndrome, thoracic spine strain, pain in the upper back and neck region. Gillian Roxanne Isaac v Shaun Solomon & or 5 where des Vignes J on 17 th December, 2009 awarded to a claimant the sum of $40, for spasms to the neck, shoulders and lower back, asymmetric lower back spasms that caused her to become twisted, objective cervical muscle spasm, cervical spine tenderness on the lower spinous processes, and reduced lumbar spine flexion. 2 Harbackan v Samlal HCA S-182 of Ramsden v Bheen HCA S-1433 of Damian Moreno v Anthony Brusco & ors HCA 3130 of Gillian Roxanne Isaac v Shaun Solomon & or CV Page 6 of 11

7 13. Apart from the above cases, I also considered: Browne v Hunte 6 where the sum of $3, was awarded for a twisted spine affecting various parts and vaginal bleeding. Updated to December, 2010 this amounts to $88, Mohammed v Maharaj 7 where the sum of $14, was awarded for a blow to the lower back leading to unstable lumbo-sacral spine and continuing back pain. Adjusted to December, 2010 this amounts to $94, In determining the quantum of damages in this matter, I considered: i. the injuries sustained by the claimant; ii. the pain and suffering endured; iii. the evidence before the court; iv. the age of the authorities; v. the adjustments required to accommodate the declining value of the dollar; and vi. that past cases serve only as a guide Whilst I was mindful of the criticisms of the Privy Council in Peter Seepersad s case on the use of comparative awards, I followed the existing practice of comparison and adjustments, bearing in mind that this approach is not flawless and that each case must be assessed on its own peculiar facts. Thus, both the similarities and the distinguishing features of comparative cases were taken into account. 16. Several other general principles on damages were contemplated. These included the principle that damages are assessed once and for all so any court charged with the responsibility of an assessment must seek to arrive at a global sum that approximates as nearly as possible full compensation for injuries suffered. In this regard, the case of Elease John (an infant) v John Solomon 9 provided useful guidance. 6 Browne v Hunte HCA S-807 of Mohammed v Maharaj HCA 1262 of Per Wooding CJ in Aziz Ahamad v Raghubar (1976) 12 page Elease John (an infant) v John Solomon HCA 919 of 1979 Page 7 of 11

8 17. In addition, I took note of the views expressed by Pemberton J that, [G]eneral damages, being incapable of specific calculation, can never be subjected to any arithmetical deduction. Instead a Court has the duty of arriving at a global figure, based on a holistic assessment of all the circumstances of the case and bearing in mind the awards granted for similar injuries. 10 It was also borne in mind that damages should be full and adequate as stated in Fair v London and North Western Rly Co 11. VII. SPECIAL DAMAGES: 18. 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 In her statement of case, the claimant claimed special damages in the global sum of $3, Travelling She claimed the sum of $1, for transportation to seek medical attention. This claim was substantiated by the requisite documentary evidence in the form of two receipts dated 19 th June, 2006 and 25 th June, This claim is, therefore, allowed. Medical Services The claimant claimed the sum of $1, for medical services, which was supported by receipts. This claim is, therefore, allowed in its entirety. X-ray Cost The sum of $ was claimed for cost of an x-ray. This claim also was substantiated by documentary evidence so is allowed. Physiotherapy The sum of $ was claimed for cost of physiotherapy and was substantiated by documentary evidence. This claim is allowed. 10 Elva Dick-Nicholas v Jayson Hernandez & Capital Insurance Co. (unreported) pg 5, para Fair v London and North Western Rly Co (1869) 18 WR 66, 21 LT 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, Page 8 of 11

9 Medication Cost The claimant claims the sum of $ as cost for medication. This sum is allowed. Police Report The sum of $50.00 was claimed for a police report. No receipt was provided to substantiate this claim. It is the usual fee charged and in the view of this court, reasonable and fair to allow this claim. This sum is, therefore, allowed. LOSS OF EARNINGS 20. There is no claim for loss of income ensuing from the claimant s inability to work for the Family Planning of Trinidad and Tobago Outreach Program. With respect to her job with the Unemployment Relief Program, however, the claimant stated in her witness statement, I walked with a walking stick for about 2 months after the accident. I am no longer in the Unemployment Relief Programme. It is submitted by her attorney that following the accident, she could no longer work for a period of five years and has sustained loss of earnings in the sum of $84, as follows: $ per fortnight $ x 2 = $1, per month $1, x 12 = $16,800.00/per annum $16, x 5 = (09/05/06 15/07/07/11) = $84, Is the claimant entitled to receive damages for loss of earnings? In her statement of case, it was stated that the claimant was unable to work. There was no head of claim for loss of earnings in her pleadings. It is the claimant s duty to set out the case to be met by the defendant from up front. In so doing, she is required to use pleadings not only to mark out the boundaries of the case but to identify the issues and extent of the dispute between the parties Charmaine Bernard v Seebalack, PC No 0033 of page 7. Page 9 of 11

10 22. In Charmaine Bernard v Seebalack 14 the Privy Council stated that, a detailed witness statement or a list of documents cannot be used as a substitute for a short statement of all the facts relied on by the claimant... where general damages are claimed, the statement of case should identify all the heads of loss that are being claimed. The defendant is entitled to be put on guard as to the compensation being claimed and not have it sprung on him. In the instant case, he should have been put on notice that there will be a claim made for loss of earnings, especially as this claim is capable of substantially exact calculation 15. According to the Privy Council it is the plaintiff 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... This alleged loss of earnings not having been pleaded and/or claimed in the statement of case and no amendment of the statement of case sought, it is doubtful that such a claim can be made at the stage at which it was tabled. 23. Moreover, I note that there was no documentary or other evidence produced with respect to her salary, entitlements or other benefits as a labourer attached to the Unemployment Relief Program. There was also no evidence provided to this court that she would have continued in this program, uninterrupted, for five years. In the view of this court, the Unemployment Relief Program provides an avenue for temporary relief to the unemployed. I have no evidence before me as to the claimant s status in this program. Further, I do not subscribe to the view that as the evidence is unchallenged the rules of pleadings and evidence can be flouted with impunity and that I am bound to award whatever sum is claimed, whether substantiated by the requisite proof or not. 24. I am of the view that the claimant has failed to provide any evidential basis to support her claim as to loss of earnings, and that it cannot be maintained. To my mind, the claimant could have furnished the requisite proof to substantiate this claim, especially as it is the responsibility of she who alleges to prove her losses. There being no evidence before this court on this limb and no sufficient reason provided for this failure to supply the necessary proof of loss of earnings by the claimant, this aspect of her claim is refused. 14 Charmaine Bernard v Seebalack, PC No 0033 of page Ibid, page 8 Page 10 of 11

11 VIII. INTEREST: 25. According to Lord Denning, MR in Jefford v Gee, [A] claim for interest is not itself a cause of action. It is no part of the debt or damages claimed but something apart on its own. It is more like an award of costs than anything else. It is an added benefit awarded to a plaintiff when he wins a case Generally, interest is given for being kept out of money which ought to have been paid, not as compensation for the damages done. As a rule, interest is also within the discretion of the court 17 as stated in section 25 of the Supreme Court of Judicature Act. This was confirmed by Jones J in Samantha Fawziyyah Hosein v Central Equipment Rentals, Carlyle Davis and Trinre Given the above, I have decided to award a pro-rated interest rate on the damages sought, in light of the continuing state of flux in the judicial award of interest. IX. CONCLUSION 28. It is thus the order of this court that the defendant do pay to the claimant (i) General damages in the sum of seventy thousand dollars ($70,000.00) with interest at the rate of 9% per annum from 5 th February, 2007 to 20 th January, (ii) Special damages in the sum of three thousand five hundred and twenty five dollars ($3,525.00) with interest at the rate of 6% p.a. from 9 th May, 2006 to 20 th January, (iii) Costs on the prescribed basis in the sum of $18, (iv) Stay of execution of 28 days. Dated 20 th January, 2012 Martha Alexander Master of the High Court (Ag) Judicial Research Assistant: Ms Kimberly Romany 16 Jefford v Gee [1970] 2 WLR 702 per Lord Denning MR at 709 G. 17 Sandra Juman v PC Abbot #11999 and the AG of T&T HCA No S-490 of Fawziyyah Hosein, CA Page 11 of 11