THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV2010-01117 Between CRISTAL ROBERTS ISAIAH JABARI EMANUEL ROBERTS (BY HIS NEXT OF KIN AND NEXT FRIEND RONALD ROBERTS) First Claimant Second Claimant And DR. SAMANTHA BHAGAN MEDCORP LIMITED First Defendant Second Defendant Before the Honourable Mr. Justice R. Rahim Appearances: Dr. M. Powers Q.C. and Mr. L. Murphy instructed by Mr. R. Williams for the Claimant Mr. J. Walker instructed by Ms. D. Thompson for the First Defendant Mr. R. Martineau S.C. and Mr. I. Benjamin and Mr. S Wong instructed by Ms. A. Achong- Low for the Second Defendant
Decision on application for an interim payment 1. Before the court is an application of the 17 th June 2014 by the Second Claimant for interim payment in the sum of $10,000,000.00 United States Dollars (USD), pursuant to Parts 17.4 and 17.5 of the Civil Proceedings Rules 1998 (hereinafter referred to as the CPR ). This application subsists only against the First Defendant, the Second Claimant having discontinued the application against the Second Defendant by way of notice of the 4 th December 2014. For several reasons, including that of other applications made from time to time by the parties and in particular an application pursuant to Part 33 CPR to lead expert evidence which was heard and determined, this application was only heard in December 2014. In support of the application the Second Claimant swore to and filed two affidavits, one of 17 th June 2014 and the other of the 9 th December 2014, both sworn by Instructing Attorney at Law. The First Defendant swore to and filed one affidavit of the 23 rd June 2014. This affidavit was deposed to by Ms. Cherie Gopie, Attorney-at-law. The Second Defendant swore to and filed two affidavits of Ms. A. Achong-Low, of the 26 th June 2014 and 11 th December 2014 respectively. Background 2. The First Claimant, Cristal Roberts, became a patient of the First Defendant, Dr. Samantha Bhagan in April/ May 2006 when Mrs. Roberts was about 36 weeks and 2 days pregnant with her first child. Dr. Bhagan practiced out of the Good Health Medical Centre. Mrs. Roberts pregnancy was previously managed by two other doctors who also practiced out of Good Health. Dr. Bhagan saw and treated Mrs. Roberts from the aforementioned date until the birth of the Second Claimant. It was agreed between the parties that the delivery would take place at St. Clair Medical Centre. Medcorp Ltd, the Second Defendant, is the owner of St. Clair Medical Centre. 3. On the 3 rd of June 2006, Mrs. Roberts gave birth to her son, Isaiah Roberts, the Second Claimant. Various complications arose as Mrs. Roberts went into labour, which resulted in Dr. Bhagan ultimately deciding to use forceps to deliver Isaiah. Isaiah was born with his umbilical cord wrapped around his neck. He was unresponsive at birth, and was eventually resuscitated about ten minutes after delivery. 2
4. Isaiah has been diagnosed with cerebral palsy along with other various disabilities. He has undergone various procedures and methods of treatment throughout his childhood, and continues to undergo them. While the Second Claimant has had some local treatment, the parents of the Second Claimant take him almost exclusively to the United States to be treated, and are in fact about to relocate there. 5. The claim was filed on the 24 th March 2010 and an Order was made by consent of the parties and with the approval of the court on the 21 st of January 2013, in respect of liability, consequent to which the court stayed proceedings pursuant to the terms set out in a settlement agreement made among the parties. The Defendants by that order agreed that they were liable for 90% of the damages that would be awarded to the Claimants. The Defendants also made a voluntary interim payment to the Claimants. 6. Part 17.4 CPR outlines the general procedure for the application of interim payments, and Part 17.5 identifies the conditions and matters that must be satisfied and considered in granting or dismissing the application. Part 17.4(4) sets out that; (4) The evidence must (a) state the claimant s assessment of the amount of damages or other monetary judgment that is likely to be awarded; (b) set out the grounds of the application; (c) exhibit any documentary evidence relied on by the claimant in support of the application; 7. So that the Second Claimant accordingly in this application, has set out the grounds of the application, the likely award of damages and has attached an extensive number of reports of expert evidence. The voluminous nature of the expert evidence in this case is unique due to the nature of the injury that is cerebral palsy. 3
Conditions to be satisfied- Part 17.5 Admission of liability 8. Part 17.5(1) authorises the court to make an order for interim payment once any one of certain conditions outlined in the section are satisfied. The condition outlined in Part 17.5(1)(a) enables the court to make such an order if the defendant has admitted liability to pay damages. In this case, as set out by the Second Claimant at paragraph 2 of his Notice of Application, the Defendants have admitted liability to pay damages in the amount of 90% of the claim. The court is therefore empowered to use its discretion to determine whether an application for interim payment should be granted. Insurance, means and resources of the Defendant 9. Part 17.5(2) prescribes that in a claim for personal injuries, the court may make an order for interim payment only if the defendant is insured in relation to the claim, is a public authority, or has means and resources that enable him to make the payment. It is the Claimant s evidence at paragraph six of the affidavit of the 17 th June 2014, that the First Defendant is insured. There is no evidence to the contrary emanating from the First Defendant. Her affidavit filed in opposition is silent on the issue. The court is therefore satisfied on the evidence that the First Defendant is insured. 10. The Claimant s withdrawal of the application for interim payment against the Second Defendant appeared to have been in response to the Second Defendant s evidence that it did not possess the means nor resources to make a one off payment of $10 million USD. The Second Defendant has however made submissions and provided authorities in relation to the application, having regard to the fact that the Second Defendant (according to it), has an interest in the outcome of the application by way of Part 17.6(2)(c) which reads; 17.6(2) The court may in particular 4
(c) order a defendant to reimburse, either in whole or in part, another defendant who has made an interim payment. 11. However, it is the court s view that the Second Defendant may be found liable to the First Defendant by way of indemnity and/ or contribution in relation to the interim payment ordered only in the case where the First Defendant has either made a claim against the Second Defendant or that part of the claim as relates to the interim payment has been discontinued. See Part 17.6(3) CPR. This is not here the case. There is no potential liability on the Second Defendant in respect of an order for interim payment made against the First Defendant according to Part 17 of the CPR. 12. However, be that as it may, it cannot be said that a Defendant who will ultimately be responsible for the payment of damages either in whole or in part, should have no say in relation to an application for an interim payment which involves a determination of the court as to what amounts to a reasonable proportion of the likely amount of final judgment. To deprive the Second Defendant of the opportunity to be heard on the application in those circumstances would be unfair. This is particularly so in a case such as this where the damages awarded are likely to be within the upper tier of the substantial damages category. As a consequence the court will consider the evidence filed and submissions made by the Second Defendant in determining this application. Whether the application against two or more defendants satisfies the criteria of the court 13. Part 17.5(3)(a) CPR states that in a claim for damages for personal injuries, where there are two or more defendants, the court must be satisfied that the claimant would obtain judgment for substantial damages against at least one of the defendants, even if a determination as to which defendant is liable has yet to be made. Further, Part 17.5(3)(b) CPR states that the court must be satisfied of the criteria set out in Part 17.5(2) in relation to each of the defendants (the defendant being insured in respect of 5
the claim, being a public authority, or being a person with sufficient means and resources to make the interim payment). 14. In relation to 17.5(3)(a), it is clear that the damages recoverable in this claim are likely to be substantial. Counsel for the Claimant submitted that the value of the claim is likely to be $40,036,830.28 US, less 10% pursuant to the Defendants contractual acceptance of 90% liability. Attorney for the First Defendant has also made submissions as relate to the value of the claim. In that regard, the issue of the value of the claim shall be dealt with later on in this decision. It is however, quite a reasonable proposition that by any view of the evidence, that the damages in this case having regard to all the circumstances of the case, are likely to be substantial. So that the criteria at 17.5(3)(a) has been fulfilled in the court s view. 15. The First Defendant has however submitted that the application cannot succeed against her as the evidence shows that one of the two Defendants is not a person whose means and resources are such as to enable him to make the interim payment under CPR 17.5(2)(c). (See paragraph 15 of Achong-Low s affidavit of 26 th June 2014). Counsel for the First Defendant relied on the authority of Schott Kem Ltd v Bentley and Others [1991] 1 QB 61. In that case Neill LJ, after giving a general outline of the requirements for making an interim payment application, observed at page 73 that an order for interim payment cannot be made against one or other of two defendants on the ground that the court is satisfied that the plaintiff will succeed against one or other of them. According to the First Defendant, if the court is left unsatisfied as to the ability of either defendant to pay pursuant to the order then the court cannot order that one defendant make an interim payment only. 16. The Claimant responded to this submission by stating that the Defendants are not joined by the hip but are jointly and severally liable. As such, the Claimant would be able to pursue the matter against any one Defendant that meets the criteria. 6
17. In the court s view, there is a marked difference between being satisfied as to whether a claimant will succeed against a particular defendant and being satisfied as to the ability of either defendant to pay. They are entirely two different criteria. The criteria set out at Part 17.5(3)(b) appears to be, that in case where there is more than one Defendant, the criteria set out at Part 17.5(2)(c), (namely that the court must be satisfied that the Defendant is a person whose means and resources are such as to enable him to make the interim payment will), must be satisfied in relation to the particular defendant against whom it is proposed to make the order. This is particularly so in this case since the liability of each defendant is joint and several. In a case such as this, where the First Defendant is severally liable to compensate the Second Claimant, the means and resources of the Second Defendant bears no relevance to the application for an interim payment. The court must however be satisfied that the First Defendant is a person whose means and resources are such as to enable her to make the said payment. 18. Part 25.7 of the UK CPR reads as follows; 25.7 Interim payments conditions to be satisfied and matters to be taken into account. (1) The court may only make an order for an interim payment where any of the following conditions are satisfied (a) the defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant; (b) the claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money (other than costs) to be assessed; (c) it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order 7
for an interim payment whether or not that defendant is the only defendant or one of a number of defendants to the claim; (d) the following conditions are satisfied other order is also sought); and (i) the claimant is seeking an order for possession of land (whether or not any (ii) the court is satisfied that, if the case went to trial, the defendant would be held liable (even if the claim for possession fails) to pay the claimant a sum of money for the defendant's occupation and use of the land while the claim for possession was pending; or 19. Thus in so far as the provisions of part 25.7(1)(a) to (d) of the UK rules are concerned, there is marked similarity between those rules and our CPR. However, when treating with the issue of multiple defendants, the UK rules are somewhat different to those found at part 17.5(3) of the TT CPR; (e) in a claim in which there are two or more defendants and the order is sought against any one or more of those defendants, the following conditions are satisfied (i) the court is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against at least one of the defendants (but the court cannot determine which); and (ii) all the defendant's are either (a) a defendant that is insured in respect of the claim; (b) a defendant whose liability will be met by an insurer under Section 151 of the Road Traffic Act 1988 or an insurer acting under the Motor Insurers Bureau Agreement or the Motor Insurers Bureau where it is acting itself, or (c) a defendant that is a public body. Patently absent from the rule is the requirement that the court be satisfied that the defendant is a person whose means and resources are such as to enable him to make the interim payment as set out by 17.5(2)(c) of the TT CPR. So that the UK CPR makes it 8
clear that the court must be satisfied that the defendant against whom the order is sought to be made falls into the category of those set out at 25.7(1)(e)(ii), although the rule uses the words all the defendants are either. In so doing, the UK rule appears to this court to be acknowledging that the court ought not to be concerned with the ability of any other defendant to pay (through the Insurer), but should be satisfied that the particular defendant against whom the order is sought is insured. In this court s view however, the underlying principle in relation to the requirement for the defendant to be insured is the same as the underlying principle set out in the TT CPR, namely that the court be satisfied that an order is being made against a defendant who can pay whether by his own means (TT) or through his insured (UK). 20. In Berry v Ashtead Plant Hire Co Ltd [2011] EWCA Civ 130, the Claimant was employed by the first defendant, a haulage company. The employer was contracted to deliver accommodation units to the site of an outdoor music festival, which was being promoted and organised by the second defendant. The third defendant supplied the accommodation units. The claimant later joined a fourth defendant, the health and safety advisor and manager of the site for the second defendant. All defendants were insured with the exception of the second defendant. The claimant was the driver of a lorry mounted with a crane that was sent by the employer to deliver the units. While unloading the units at the festival site, the claimant was electrocuted, as either the crane or the unit made contact with a live power line that was overhead. The claimant s brain was severely damaged, he became immobile and unable to communicate, and was placed in a residential neuro-rehabilitation centre due to a need for twenty-four hour care. As the Claimant could not recall the incident, it was uncertain as to how the incident occurred, resulting in a delay in the trial. The claimant by way of his litigation friend, his wife, applied for an interim payment of $350,000.00 against the first, third and fourth defendants to pay for the 24 hour care. The first defendant had already made an interim payment to the claimant of $100,000.00. Longmore LJ in delivering the decision of Their Lordships opined: 9
[9] Mr. Oliver Campbell submitted that, on the face of it, the rule envisaged that, even if the court were satisfied that one or other of two Defendants would be held liable, an interim payment could only be obtained in a case where all the Defendants were insured. The fact that the application was made against two Defendants who were themselves insured did not make any difference to that position. That is certainly a possible construction of the rule but it is difficult to see any rational basis for preventing an interim payment in those circumstances if the court is quite satisfied that one or other of two Defendants against whom the application for interim payment is being made is insured and will be held liable. The fact that there may be another Defendant who is not insured has nothing to do with the matter. (10) in a case where there is truly no doubt but that either Star Autos or Ashtead will be held to be liable (which is a pre-condition of the rule in any event) it would be unreal to require a Claimant to discontinue just because he had also sued an uninsured Defendant against whom he was not seeking any order for interim payment. 21. However, it is significant that the Learned Judge went on to add that even under the relevant provisions of the old RSC in the UK (provisions similar to TT CPR 17.5(2)(c)), the position in relation to an application for interim payment was that the court need only be satisfied in relation to the defendant who is before it on the application. His Lordship stated at paragraph 13 as follows; [13] One is not supposed to refer to the old RSC for assistance on construction but it is at least of interest to observe how the requirement for insurance was expressed, before there was any ability to obtain an interim payment in a case of what I may call alternate liability. It was RSC Ord 29 r 11 and provided: (1) If, on the hearing of an application under rule 10 in an action for damages, the court is satisfied a) That the Defendant against whom the order is sought (in this paragraph referred to as 'the Respondent') has admitted liability for the Plaintiff's damages, or b) That the Plaintiff has obtained judgment against the Respondent for damages to be assessed; or c) that, if the action proceeded to trial, the Plaintiff would obtain judgment for substantial damages against the Respondent or, where there are two or more Defendants, against any of them, 10
the court may, if it thinks fit and subject to paragraph (2), order the Respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the Plaintiff after taking into account any relevant contributory negligence and any set-off, cross-claim or counter-claim on which the Respondent may be entitled to rely. (2) No order shall be made under paragraph (1), in an action for personal injuries if it appears to the court that the Defendant is not a person falling within one of the following categories, namely a) a person who is insured in respect of the Plaintiff's claim or whose liability will be met by an insurer under section 151 of the Road Traffic Act 1988 or an insurer concerned under the Motor Insurers' Bureau agreement: b) a public authority; or c) a person whose means and resources are such as to enable him to make the interim payment. Here it is clear that the requirement of insurance applies to the person against whom the application for interim payment is being made. This has now been relaxed so as to require insurance to exist only in the case of alternate liability but it is difficult to believe that the framers of the rule, while relaxing that requirement, intended to refuse relief if it was the case that a Defendant, who was not being asked to make an interim payment at all, happened to be uninsured. 22. The court is of the opinion that the reasoning in Berry is sound and good law, even if the Learned Judge s comments on the RSC are considered to be obiter dicta. The underlying intent of rule TT CPR 17.5(2)(c) is the same. It could not reasonably have been the intention of the rule that an application for an interim payment be refused simply because one of the defendants who is not before the court on the application does not have the means and resources to make such payment. In this case this is particularly applicable as the liability of the First Defendant is both joint and several. The court therefore cannot agree with the submissions of the First Defendant in this regard and finds that the application does not and cannot fail by virtue of the evidence of the Second Defendant that it does not have the means or resources to make an interim payment. 11
Anticipated value of the claim 23. The First Defendant submitted that the value of the claim has been grossly overstated by the Claimant; that there ought to be a forensic examination of the evidence of the expenses so that the court could determine whether the expenses were reasonable. It is submitted that so to do would be to conduct a mini trial, an exercise that the law does not empower the judge to embark upon. Further, the First Defendant submits that in any event, the assessment of damages are set to proceed in a few months time and it would therefore be a waste of the court s resources to embark on this exercise so close to the assessment. 24. Attorneys for the Claimant submitted that they anticipate the value of the claim to be $40,036,830.28 USD, less 10%. The anticipated quantum of damages put forward by the Claimant was therefore calculated to be $35,000,000.00 USD. That what is reasonable lies between two thirds and three quarters of the damages likely to be awarded. The Claimant has annexed to his affidavit a chronology showing the amount of time that he spent receiving care in the USA, and a schedule of past and future losses ( the schedule ) calculated up to June 2014, which was in turn supported by expert evidence. The Claimant proposes to rely on at least thirteen experts whose reports as to the health, needs and expectations of the Claimant have been filed. These experts have displayed specialty in and testified with reference to the following areas: a. Actuarial science disclosure on the discount rate and lump sum damages calculation b. Economic issues- real average earnings (in the United States) c. Nursing care- past, present and future care needs of the Claimant d. Life care planning- physician recommended medical treatment and procedures for the remaining duration of the Claimant s life (primarily with reference to the cerebral palsy diagnosis) e. Life expectancy computation of years expected to live as a result of damage suffered 12
f. Neurodevelopmental paediatrics- an overall condition and prognosis report (on education, employment, independent living skills, medical needs, relationships, capacity and life expectancy) g. Paediatrics an overall condition and prognosis report h. Speech and language therapy- impact on language comprehension, expression and communication i. Assistive technology- use of technology to aid in education and communication j. Physiotherapy- opinion on effective treatment and equipment to aid in minimising physical disabilities k. Occupational therapy- rehabilitation needs to aid in developing work and daily living skills. l. Educational psychology a report on present educational capacity, education goals, and future educational psychological needs m. Accommodation report on present living requirements and proposal for optimum future living arrangements n. Compensation and benefits assessment report on measure of damages in relation to impact on salary and employment o. Architecture and construction estimate of costs for specially outfitted residence p. Psychiatry psychological impact (on the First Claimant). 25. The schedule summarised the content and findings of the expert evidence as listed above. With regards to the Second Claimant s physical injuries, the schedule noted that Isaiah was diagnosed with several physical impairments from birth, and has cerebral palsy along with other physical, psychological and intellectual ailments. The schedule showed the results of calculations of Isaiah s past losses, and displayed a long list of past expenses for care ($325,117.72 US), medical ($61,584.56 US), travel, transport, housing and accommodation ($154,348.59 US), therapy, aids, aides and equipment ($61,223.72 US), miscellaneous expenditure ($31,244.83 US) and interest on the above ($125,143.79 US). The Claimant s anticipated assessment of damages for past losses amounted in total to $758,783.21 US. 13
26. The schedule then set out Isaiah s future losses, which consisted of expenses calculated for future care and attention (A multiplier of 98.10 resulting in a claim for $26,269,265.70 US), future medical care ($418,191.60 US), future loss of income ($4,107,711.73 US), appropriate accommodation (either $875,224.26 or $1,139,196.78 US for constructing a suitable addition to an already purchased house in the USA, or $2,637,506.28 US for continued rental of suitable property, the rental option being the preferred choice of the Claimant) therapy, aids, aides and equipment ($577,102.06 US), physiotherapy ($785,669.30 US), speech therapy ($743,006.11 US), occupational therapy ($2,954,709.90 US), specialist education and training ($403,222.07 US), financial and investment advice (claimed providing full compensation for the Second Claimant) and receivership costs (to be provided and evidenced in the formal Schedule). The Claimant also claimed general damages in the sum of $275,000.00 US, and interest on said sum of $106,662.33 US. Whether the value of the claim is excessive 27. Counsel for the Defendants submitted that the Claimant s submission of anticipated damages far exceeded the actual value of the claim. Paragraph 11 of the affidavit of Cherie Gopie, filed by the First Defendant, refers to the estimated claim value of $35,000,000.00 US (keeping in mind the Defendants liability to 90% of the overall claim) as being a gross over-estimate. Counsel further maintained in paragraph 12 that the valuations relied upon by the Claimant were not agreed to by the Defendants, and that accordingly the First Defendant would submit their own expert evidence in order to challenge the values calculated in the Claimant s schedule. 28. The Second Defendant also argued that the value of the claim put forward by the Claimant was misleading. Achong Low at paragraph 21 of her second affidavit testified that the Claimant claimed costs for which the Defendants should not be held liable. These costs were outlined in the documentation providing evidence of special damages in bundles marked A and submitted by the Claimant with the interim payment application. Achong Low testified that these receipts and other such documentation included bills for items irrelevant and unnecessary to the claim, such as: 14
fast food meals, donuts, basic toiletries and groceries that are not medically necessary, flights between Trinidad and the USA for multiple family members, new furniture and household items, and expenses purportedly associated with this litigation such as breakfast for experts. Counsel for the Second Defendant averred in paragraph 24 of their submissions that the documentation provided by the Claimant did not sufficiently prove that the sums recorded as being spent on the bills were truly spent on the Claimant s behalf, in that they did not meet the basic requirements of specific proof of damages. Counsel also submitted the case of Shearman v Folland [1950] 2 KB 43, in which it was held that living expenses that are incurred in the ordinary way of life cannot be claimed as damages, as such expenses would have been incurred regardless of injury. 29. Counsel for the Claimant agreed that Shearman v Folland (supra) held the cost of sustenance to be deducted to an extent. They submitted however that if the expenses reasonably incurred because of treatment, in this case from the Second Claimant and his family going to the USA for treatment, and their having meals there, such cost would be recoverable. Counsel also submitted that the receipts for such payments were admissible pursuant to the Evidence Act of Trinidad and Tobago, cap 7:02, s39 (admissibility of certain records in civil proceedings). 30. The court agrees that several living expenses claimed by the Claimant appear at first to be outside the realm of reasonable expenses that a court would ordinarily allow. A proper determination of whether those expenses are allowable would involve crossexamination in relation to each item, a luxury which cannot at this stage be afforded. Further, as correctly set out by the Second Claimant, the issue in this case appears to be whether the expenses incurred for care in the USA are reasonable expenses. This will of course have to be considered in the context of whether the particular head of care is available within this jurisdiction and at what cost. Some of the reports filed by the Claimants demonstrate that in some cases adequate care appears to be unavailable locally. The challenge for the court will be that of making a determination after crossexamination and submissions, as to which of those claims should be allowed because there simply is no suitable alternative in existence locally. In that regard, it may well be 15
the case that as it stands on the application, the Claimant s claim is excessive, but this is not an issue that this court can determine at this stage without hearing the evidence which is to be led on the part of all parties on each issue. This is a case in which almost all of the expert evidence on the part of the Claimants is facing active challenge; so much so that the Defendants have all proffered their own expert evidence on almost every discipline in relation to the future care of the Second Defendant. It is in these highly contentious circumstances that this court is being asked to determine what the likely amount of the final judgment. Interest 31. Counsel for the Second Defendant also claimed that the Claimants improperly calculated interest from the time of birth, for which there is no evidence of expenses or losses so incurred (see paragraph 25 of the Second Defendant s submissions). Claims for future loss 32. It was further submitted on behalf of the Second Defendant that no claims should be made for future loss. Counsel relied on at paragraphs 43 and 45 of the case Cobham Hire Services Limited v Benjamin Eeles (By His Mother and Litigation Friend Julie Eeles) [2009] EWCA Civ 204 wherein Lady Justice Smith gave a commentary on the appropriateness of future loss in interim payment applications. Lady Justice Smith opined that in order for judges to begin the process of assessing the interim payment, they must first remove heads of future loss as those would be best dealt with by periodical payment orders, which would allow the court to account for the change in the value of money, circumstances and the like in the future (see paragraph 5). 33. The Second Claimant submitted in response to this however that the periodical payment orders are not provided for in the legislation of this jurisdiction. 16
34. Lady Justice Smith further opined in Cobham that the assessment would be best calculated solely with special damages to date and damages for pain, suffering, loss of amenity, with appropriate interest, though accommodation is in practice now included. 35. At paragraph 45, Lady Justice Smith observed that future loss can be included in a court s assessment of likely final damages when the judge can be confident that a larger capital sum than that covered by general and special damages, interest and accommodation costs alone would be awarded at the final assessment. 36. This court is of the view, that the future loss is likely to be substantial, having regard to the age of the Second Defendant, his life expectancy, the nature of the injury, the availability of care locally, or non-availability of care locally and that the damages to be awarded for future loss will certainly exceed the sum covered by general and special damages, interest and other reasonable associated costs. The weight of the claim for damages in a case such as this lies in the future and this is a factor that this court must consider should there be a determination of the likely damages to be awarded on final determination. 37. In relation to the distinction which the Learned Queens Counsel makes between the Trinidad case and the UK case in that regard, namely, that there does not exist a provision for periodical payments in this jurisdiction, the court is agrees that the distinction may account for the difference in the approach of the two courts, suffice it to say that the test to be applied in this jurisdiction in relation to an application for an interim payment remains clear. Future loss is an integral part of any claim for personal injury where applicable and so must be considered unless either statute or common law dictates otherwise, which is not here the case. Discount rates and multipliers 38. The First Defendant took issue with the Claimant s use of the discount rate from Simon v Helmot [2012] UKPC 5, which produced large multipliers from negative discount rates. The First Defendant argued that Helmot applied to another jurisdiction, and that the discount rate used in this case is dramatically different to the conventional discount 17
rate used in Trinidad. The First Defendant accordingly relied upon comparative law expert evidence to provide the court with not only the traditional discount rate used in Trinidad, but other methods that could and should be used to calculate the discount rate instead of the method submitted by the Claimant. The witness for the First Defendant further stated that even if the Helmot methodology were to be accepted by the courts, their expert evidence produced significantly higher discount rates, which in turn led to significantly lower multipliers in contradiction to the multiplier calculated by the Claimant. 39. The First Defendant filed a counter-schedule on the 7 th October 2014, which submitted that the court should use the lesser rate between Trinidad and the USA, that the Claimant s needs for Occupational and speech therapy would end in 5 or 6 years, that the maximum multipliers to be used are 16.88 for USA and 19.27 for Trinidad and that the Kacy Turner multiplier and community living option should be used as they were the less expensive options. 40. Counsel for the Claimant maintained however that the assessment is based on the option most likely to be used by the Claimant, once it is deemed reasonable, and not on which is the least expensive option. The court agrees with this reasoning and would add that what is reasonable is to be reckoned with regard to which exists in this jurisdiction. Further, for the court to take the extra ordinary step of refusing to apply the discount rate which applies to this jurisdiction would require full argument and justification. This is an issue which cannot be decided by this court at this stage of the proceedings. 41. In relation to the future losses of the Claimant, Achong Low in her second affidavit made reference in paragraph 23 to a schedule that she prepared and annexed to her affidavit, outlining the expert evidence that the Second Defendant intended to rely on, with their recommended costs for services. Achong Low in paragraphs 24 to 27 then detailed her use of the conventional multiplier-multiplicand method and various discount rates to calculate what the Second Defendant would posit as a reasonable value of the claim. Achong Low testified that a multiplier of 15 would result in the total award for future costs being approximately $5,668,500.00 TT, and a multiplier of 20 (usually the 18
highest multiplier awarded in the jurisdiction) being approximately $7,558,000.00 TT. Achong Low further calculated that the award with a 4% discount rate would total $9,200,000.00 TT, and a 3% discount rate would total $10,700,000.00 TT. It is on the basis of the expert evidence and these calculations that Achong Low thus testified and counsel for the Secondary Defendant argued against the Claimant s application for interim payment, stating that it amounted to far more than a reasonable proportion of the likely final judgment to be made by the court. 42. Counsel for the Second Defendant also noted that the unconventional multipliers were not pleaded in the re-amended statement of case of the Second Claimant. Counsel also submitted that in keeping with the conservative approach of assessing damages, which will be discussed at greater length below, the court should accordingly prefer the more conventional multiplier. 43. Counsel for the Claimant submitted at the interim application hearing that the issue of whether the conventional or actuarial multiplier should be used should and could not be determined before the trial in light of the detailed and complex factual and legal evidence, as well as considerations for whether awards for future losses should be made, whether UK principles could be followed alongside local jurisprudence, and whether such issue is one of policy or law. This court agrees entirely with this submission. It is not the duty of this court to decide such an issue at this stage as the issue is yet to be fully argued. 44. Counsel for the Claimant submitted that should the court choose the actuarial multiplier, the court would then have to consider two issues. The issues themselves would have to be determined at trial. The judge should however still consider the two, outlined as follows: a. The lifetime expectancy of the Claimant. The figure is based on expert evidence from the Claimant, (the court noticing that the life expectancy of the Claimant is nearly 8 years shorter in Trinidad than it is in the US) and 19
b. The appropriate level of the investment risk carried by a Claimant when a lump sum is awarded. Inflation and interest must be considered in settling upon a discount rate. The Claimant submitted that the Defendants would support the riskier option, but the Claimant maintained that the Defendants should be the one to bear any risk, should it be so necessary. 45. The Claimant submitted that the court must nonetheless take a view so as to determine a sum that the Claimant would recover at the final assessment. Counsel stated that the court should still do the best it can with what it has. The court would have to make its deliberations on the basis of the current evidence before it, including those still in dispute between parties, with no cross-examination. The court also agrees with one aspect of this submission, bearing in mind the present state of the claim, namely that the court must do the best with what it has at that stage. That however, is not to say that the court must take a view in relation to the multiplier which ought to be applied on final assessment. In that regard the court notes that there remains outstanding, at the date of writing, the weighty issue as to whether, the amendments to the claim, which were permitted by this court, will eventually form part of the case. These amendments are of much weight as they relate to the ability of the Second Defendant to defence the case for care in the USA, in the context of that which is reasonable by reference to local care. Further, some of the issues yet to be determined by this court on a full hearing are as follows. Relocation/ Accommodation 46. The First Defendant challenged the Second Claimant s estimate of damages submitting that it was unreasonable and inappropriate for the Claimant to pursue his claim on the basis of the relocation of the family to the USA. The First Defendant averred that the sole reason for the Claimant s relocation was to receive care and treatment in the USA, pointing out that the Claimant s entire family was born in and are citizens of Trinidad. Of course, a determination in relation to this issue is at the end of the day dependant on the reasonableness of care in the USA if equal care is available in this jurisdiction. The 20
other factors to be considered in the interest of the Second Defendant will be the impact if any of frequent travel to the USA for care should the court find that care for certain matters in the USA is reasonable while others are not. In such a case, it may well mean that serious consideration ought to be given to a move to the USA having regard to the impact on the health of the Second Claimant and the proportion of care reasonably available in Trinidad and Tobago as opposed to the USA. But these are matters which require in-depth expert evidence and mature consideration. In short these are matters for a trial on damages which this application is not. Treatment/ therapy 47. There remains strong contention between the parties as regards the quantity of treatments and therapies listed within the schedule of the Claimants. Opposing parties argue that the treatments and therapies are unreasonable and unnecessary. In this regard the parties have sought to lead their own expert witnesses. The First Defendant relies on the expert report of Neil Thomas, Consultant Neurologist, who stated that in his professional opinion the amount of external therapy sessions, x-rays and scanning listed in the Claimant s schedule was unnecessary, that the value of some therapies was questionable, and that the value of the US conductive education was no greater than that of the traditional therapy treatments available for more cost effective prices in Trinidad. Again this is an issue which can only be determined at trial. Value and necessity for care from the mother 48. The cost of a caregiver is also a source of contention. At paragraph 13 of the first Achong Low affidavit the First Defendant argues that it was not reasonable for the First Claimant to leave her job in order to take care of the Second Claimant, her son. Counsel for the Second Defendant stated at paragraph 22 of their submissions that should compensation for a caregiver be calculated, it should be based on, at most, a commercial rate, which according to the witness statements of caregivers Indra Singh and Sharon Thavenot average from $3000TT to $4000 TT per month. The resolution of this issue is similarly inextricably linked with the issue as to what aspects of care and treatment in the 21
USA are reasonable and whether a move to the USA is therefore reasonable. It is in that context that the caretaker s cost will have to be assessed. Reasonable proportion of final judgment 49. Part 17.5(4) of the CPR stipulates that the interim payment must be a reasonable proportion of the likely amount of the final judgment. The Second Claimant seeks $10,000,000.00 US which counsel submits would not be more than a reasonable proportion in relation to the anticipated quantum of damages, which has been estimated by the Claimant to be $35,000,000.00 US. 50. The First Defendant, submits in reply that the quantum of damages for the final judgment will be far lower than the sum anticipated by the Claimant, so that the value of the interim payment applied for by the Claimant is consequently far greater than a reasonable proportion of the final judgment and could even exceed the total value of the eventual judgment. The Second Defendant also submits that on order for the sum of $10,000,000.00 US could create a significant risk of overpayment. 51. However, in what one could argue amounts to an exceptional occasion of agreement between the parties in this case, all parties appear to agree that a reasonable proportion lies somewhere between 2/3 (60%) and 70% of the final assessment. The First Claimant has suggested 60% and it appears that the Second Defendant has accepted the dicta of the Hon. Mr. Justice Langley at paragraphs 18 to 20 in the case of Spillman v Bradfield Riding Centre [2007] EWHC 89 QB (relied on by the Second Claimant), that 70% is a reasonable proportion. The standard of proof 52. Counsel for the Second Defendant at paragraph 9 of his submissions submitted that in respect of an interim payment, the standard of proof lies at the higher end of the civil 22
standard, and relied on the observations of the Learned Chief Justice Archie at page 44, lines 9-13 of the case of Caryn Sobers v Pricesmart Trinidad Limited and Another [26 th March 2012] Civ App No. 55 of 2012. 53. Counsel for the Claimant submitted in reply that in the HM Revenue and Customs v The GKN Group[2012] EWCA Civ 57, (GKN case), the court reinforced that the standard of proof in interim payment proceedings, child care proceedings, and any other civil proceeding is the same civil standard of a balance of probabilities. The court acknowledged that since the ruling in Re H & Others (Minors) [1996] 1 AC 563, it has been properly established that there is only one civil standard of proof, which is to be strictly adhered to so as to diminish uncertainty and confusion as to what burden is placed upon the parties. 54. The court is of the view that these cases adequately set out the applicable standard. In the Sobers case, it is not that the Learned Chief Justice was saying that a higher standard is applicable to applications for interim payments. It is clear that His Lordship was saying that the same civil standard was applicable. In any event, the facts of the Sobers case are easily disguisable from the present case as in that case the court was concerned with standard to be applied by the court in determining whether it is satisfied that the Claimant would succeed at trial. No such issue arises here as both Defendants have admitted liability. Obligation to show need under Part 23.13 CPR (Minors) 55. Counsel for both Defendants submitted that no evidence was produced by the Second Claimant to demonstrate the manner in which the payment is to benefit the minor and thereby also establish that there is a need for funds. The Second Defendant claimed that the application for interim payment did not satisfy the conditions under Part 23.13 CPR, which governs the control of money recovered or paid into court for the benefit of a minor. Part 23.13 is intended to protect the minor from risks of misuse and abuse of funds that ought to be applied to his benefit. 23
56. The Second Defendant also submitted that when an interim payment application is made in reference to a minor, it is confined to sums needed for his/ her expense and maintenance. The authority relied on was RSC Order 80, the predecessor to CPR Part 23. Counsel for the Defendants therefore submitted that as the Claimant refused to shed light on the intended use of the interim payment. 57. The Second Claimant submitted in response that Part 23.13 only becomes applicable when an interim payment is ordered, as the provision does not carry any effect until money is recovered. As such, it is only a relevant consideration when the payment is actually ordered. Counsel then reminded the court that when the settlement agreement was made, the Claimants acquiesced willingly to the directions that the court gave in relation to transfer of monies by bank account and the like. 58. To put it quite simply, the court agrees with the submissions of the Second Claimant in that regard as it makes good sense. Should an order for interim payment in fact be made, the court would then hear from the parties before suitable orders in relation to the manner in which the money is held and invested for the benefit of the minor are made. Those orders may in fact be guided by several considerations one of which may be the quantum awarded and the immediate needs of the minor along with suitable investments instruments available. Those are issues which can be subsequently treated with and do not derogate from the court s decision as to whether or not an interim payment should be made. Common law obligation to disclose need 59. Counsel for the Claimant maintained throughout that there was no legal obligation on their part to state the needs and/ or reasons of the Claimant in making the application. As Lady Justice Smith said at paragraph 44 of Cobham Hire Services Limited v Benjamin Eeles (By His Mother and Litigation Friend Julie Eeles) [2009] EWCA Civ 204, 24
the judge need have no regard as to what the claimant intends to do with the money. If he is of full age and capacity, he may spend it as he will; if not, expenditure will be controlled by the Court of Protection. 60. The Defendants relied on the case of Stringman (A Minor) v McArdle [1994] 1 WLR 1653 in support of their submission that the court should be presented with sufficient evidence as to the Claimant s intentions with the interim payment should they be awarded with it. Counsel for the Claimant submits however that the case in fact serves to bolster the argument of the Claimant. In so submitting, Learned Queens Counsel identified the statement of Stuart-Smith LJ at page 1657, paragraph F, wherein His Lordship stated: It should be noted that the plaintiff does not have to demonstrate any particular need over and above the general need that a plantiff has to be paid his or her damages as soon as reasonably may be done. 61. In this regard the court observes that Butler-Sloss LJ makes the observation at page 1656, paragraph C that: To object on the ground that the money is to be applied for the wrong purpose or is to be applied for too extravagant a purpose seems to me to go outside what one would expect the normal objections of counsel for the defendant to make. 62. The Defendants also relied on the authority of Tinsley v Sarkar [2004] EWCA Civ 1098 in support of their argument that the expenditure planned by the Claimant for the interim payment is a relevant consideration that must be shared with the court. Counsel for the Claimant replied that the facts in Tinsley enabled such details to be relevant in that instance, as the outcome of the plans set for the payment (an experiment) could have had the outcome of causing the defendant to be made further liable and indebted to the Claimant. In that instance, without the facts, the defendant may have been prejudiced in the final assessment. The court agrees that this case is distinguishable on that basis and is therefore of no assistance to the Defendants in that regard. 25