THE REPUBLIC OF TRINIDAD AND TOBAGO CV2009-01317 IN THE HIGH COURT OF JUSTICE BETWEEN KERWYN WILLIAMS Claimant AND TUNAPUNA/PIARCO REGIONAL CORPORATION Defendant ************************************* Before: Master Alexander Appearances: Mr Dale Scobie for the Claimant DECISION I. INTRODUCTION 1. This matter involves a claim for compensation for personal injuries sustained by the claimant on 25 th December, 2005 when he fell into a manhole. At the time of the accident, the claimant was 75 years old. He was crossing the Eastern Main Road in the vicinity of Harrinauth Street, El Dorado when he allegedly stepped onto a manhole cover and fell inside sustaining injuries. He filed his claim form and statement of case on 15 th April, 2009 seeking compensation from the defendant who has the responsibility for the maintenance and management of streets, highways and roads within the Tunapuna/Piarco area. Judgment in default of defence was entered on 3 rd December, 2009 against the defendant. 1
II. EVIDENCE ON ASSESSMENT: 2. The claimant s evidence consisted of his witness statement filed on 7 th June, 2011 and the medical report dated 10 th January, 2006 of Dr Anil Prasad, Medical Officer of the Accidental and Emergency Department, North Central Regional Health Authority. The defendant, having failed to deliver a defence, forfeited its right to take part in the assessment or to lead any evidence. The Medical Evidence: 3. According to the medical report of Dr Anil Prasad, which was annexed to the claimant s witness statement, the claimant sustained a fracture of the 8 th rib. He also presented on the date of the accident with severe pains and tenderness on the left side of the lower rib. He was prescribed pain relievers and discharged on the same day. It is clear from the only medical report made available that the injuries were not extensive or major. III. GENERAL DAMAGES: 4. To determine the compensation payable to the instant claimant for his particular injuries, I resorted to the approach of Wooding CJ in Cornilliac v St Louis 1 : i. The nature and extent of the injuries sustained; ii. The nature and gravity of the resulting physical disability; iii. The pain and suffering which had to be endured; iv. The loss of amenities suffered; v. The extent to which the plaintiff s pecuniary prospects have been materially affected. Nature and extent of the injuries sustained 5. The nature and extent of the claimant s injuries are gleaned from the only medical report provided as well as his evidence. Arising from his fall into a manhole, the claimant sustained a fractured 8 th rib; with severe pains and tenderness on the left side of his lower rib. In his witness statement, he gave evidence that the fall into the manhole has caused him to endure 1 Cornilliac v St Louis (1965) 7 WIR 491. 2
intense pains and has changed his life. In his statement of case, reference is made to post traumatic stress and recurring intermittent pains in the back. Counsel for the claimant has submitted that a fractured 8 th rib cannot be classified as a major and extensive injury. This is accepted. Pain and suffering endured 6. Both the medical report and the evidence of the claimant referred to his pain and suffering, arising from the fall into the manhole. His evidence is that despite his advanced age, he was in excellent health prior to the accident. In the post-accident period, he found himself suffering with continuous pains for at least 6 months after the fall. He described his pain as excruciating and resulting in his mobility being restricted in order to minimize the pain. Following this initial 6 month period, he stated that the pains were, more intermittent and less severe. It is also his evidence that to date he still suffers with pains whenever he bends to his left side. 7. I accept the evidence of this claimant s pain and suffering. He did not come across as attempting to embellish his pain and suffering for the assessing court but as a witness of truth. It is clear that his pain and suffering in the initial 6 month period following his fall into the manhole would have been intense, excruciating and unbearable. I also accept that after that 6 month period, the intensity of his pains was reduced, but that to date he still experiences pains on bending to his left side. Loss of amenities suffered 8. As a result of his injuries, the claimant has given evidence that his movements have been drastically curtailed. Pre-accident, despite his advanced age, he was vibrant, physically fit; and kept a rigid exercise regime, I walked regularly around the Arima Velodrome with my wife at least five days per week about three laps per day. I enjoyed excellent health. I enjoyed attending church at Trincity three times per week and walked from the Main road to the church. I also went to market on Saturdays. [emphasis mine] It is clear from his evidence that he was an active and physically fit man, whose age did not restrict his mobility. At the age of 73 until the fall, he earned an income of $5,900.00 per month managing and operating his own car parts business called Tunapuna Auto Spares, which he purchased on 13 th September, 2003 from its previous 3
owners. He was 73 years when he made this purchase and was running a successful enterprise when the incident occurred. 9. It is his evidence that following his fall into the manhole and the resultant injury, he lost his social life as, any activity requiring any exertion or any trunk movement had to be seriously curtailed to avoid excruciating pains. He states that whilst the pains over time became less intense and intermittent, he was still unable to engage in any lifting or vigorous physical activity. Consequently, he was unable to continue his walking and exercise until recently. It is his evidence that he now engages in mild exercise and walking. 10. I accept the claimant s evidence as to his continuing challenges from his injuries, and his difficulties in engaging in social activities and his favourite exercise of walking. Counsel for the claimant has asked the court to have regard to the fact that the claimant previously engaged in daily walks but this is now effectively, a thing of the past. He seldom walks anymore due to the discomfort of any vigorous activity. This submission is accepted. Nature and gravity of the resulting physical disability 11. The fall into the manhole has continued to gravely impact on the quality of life he now enjoys. He now has intermittent pains when engaging in the ordinary day to day activities of living cannot lift heavy items; is unable to bend to his left side without pain; is no longer capable of exercising as he was accustomed to do. It has prevented him also from operating his business because of the inability to lift heavy objects. This is the ambit of the resulting disability faced by the claimant following this incident. Extent to which pecuniary prospects have been materially affected 12. The claimant is no longer able to run his own business. He states in his witness statement thus, I was unable to conduct my business and thus lost this source of income completely. He blames this squarely on the debilitating effects of the injury he received from falling into the manhole. He states further, I am in very good health apart from the physical injuries which I sustained. I have not been able to lift heavy articles as I used to before, so this made it impossible for me to resume my business. I was 75 years of age at the time of the accident. I am now 80 years of age and were it not for my physical injuries I could have been still engaged in my business. 4
13. Counsel for the claimant has submitted that notwithstanding his advanced years, he was in excellent health prior to the accident, earning a net income of $5,900 monthly. At the age of 80, he is still in relatively good health but both his pecuniary prospects and future earnings have been greatly impacted. This submission is accepted. IV. AUTHORITIES 14. Counsel for the claimant referred the court to several cases to assist in the exercise of assessing damages in the instant matter including: Albert v Bridgemohan 2 where Hassanali J in 1973 for a fracture of the 9 th rib; injury to testicle; pains for 2 months and continuing intermittent made an award of $5,500.00; as adjusted to December, 2010 to $152,113.00. These injuries are more severe than those in the instant case. Gouraille v George 3 where the Court of Appeal in 1973 for a fracture of the left 5 th rib with severe pain for 2 months made an award in the sum of $2,000.00; as adjusted to December, 2010 to $55,314.00. Bayo v Sammy 4 where Master Gopeesingh in 1987 for fractured ribs; punctured lung; injury to arms and neck made an award of $25,000.00; as adjusted to December, 2010 to $111,933.00. These injuries are more severe than those of the instant claimant. 15. Apart from the authorities cited above, I also considered some more recent cases: Toll v Hercules and Hercules 5 where Master Best in 1989 made an award of $30,000.00 for a fractured right clavicle and ribs; embedded glass; as adjusted to December, 2010 to $110,892.00. 2 Albert v Bridgemohan HCA S-2438 of 1970 3 Gouraille v George CA 77 of 1970 4 Bayo v Sammy HCA 341 of 1981 5 Toll v Hercules and Hercules HCA1044 of 1988 5
Bedeshi v AG 6 where Master Sobion in 2008 made an award of $90,000.00 for 2 fractured ribs; fractured mandible; spine L5/S1 with residual pain and future surgery; as adjusted to December, 2010 to $103,431.00. Hosten v Ganesh and Prabhoo 7 where Master Paray-Durity in 1992 made an award of $6,000.00 for a fractured rib and vertebrae; sexual activity affected; as adjusted to December, 2010 to $18,347.00. Osborne v Singh 8 where Master Gopeesingh in 1987 made an award of $16,000.00 for injury to the chest; fractures of the right 4 th to 10 th ribs; trauma to abdominal wall; residual disabilities; as adjusted to December, 2010 to $71,637.00. V. ADDITIONAL CONSIDERATIONS 16. The authorities (supra) are critical for assessing damages as this is a comparative exercise. In making the adjustments with these cases to accommodate the claimant s injuries, I bore in mind the peculiar nature of the facts at hand and that past cases serve only as a guide. 9 Apart from his injuries, I also considered the evidence before me; and the fact that the authorities supplied by the claimant are dated. In this regard, I was also mindful that use of comparative awards is not a seamless approach. See the Privy Council warning in Peter Seepersad s case. Further, I was conscious always that compensation for personal injuries is a singular award. The claimant is entitled to receive compensation that would be full and adequate, after conducting a holistic assessment of all the circumstances of his case, as observed by Pemberton J in Elva Dick- Nicholas v Jayson Hernandez. 10 Whilst this is not a road to riches opportunity, a claimant must be compensated fully for his injuries and the pain and suffering he would have suffered. In this regard it is instructive to note the words of Kangaloo JA in Thomas v Ford and Ors 11 6 Bedeshi v AG HCA S-505 of 1999 7 Hosten v Ganesh and Prabhoo HCA 1661 of 1989 8 Osborne v Singh HCA S-752 of 1977 9 Per Wooding CJ in Aziz Ahamad v Raghubar (1976) 12 WIR @ page 357 10 Elva Dick-Nicholas v Jayson Hernandez & Capital Insurance Co. (unreported) CV2001-01035 at page 5, para. 14. 11 Thomas v Ford and Ors Civ App 25 of 2007 at page 28 per Kangaloo JA 6
that, far too often sight is lost of two fundamental principles: first, that a personal injury claim must never be viewed as a road to riches and secondly, that a claimant is entitled to fair, not perfect compensation. 17. Having meticulously considered the cases cited above as against the peculiar circumstances of the claimant, I formed the view that an award in the region of $80,000.00 would be fair and reasonable for his pain and suffering and loss of amenities. VI. SPECIAL DAMAGES: 18. It is trite law that special damages must be specifically claimed and proven. This includes all out-of-pocket expenses and loss of earnings down to the date of assessment. This was confirmed in Grant v Motilal Moonan Limited and Rampersad 12 to wit that, a party claiming damages must prove its case, and to justify an award of these damages he must satisfy the Court both as to the fact of damage and its amount. This is understandable as such damages are capable of substantially exact calculation, unlike general damages which need not be specifically pleaded. 19. In the instant case, there is a marked absence of any claim for special damages save and except loss of earnings. The instant claimant has not claimed compensation for medical expenses and/or purchase of medications or for transportation or any of the usual expenses claimed in these matters. There is also no documentary evidence tendered with respect to any claim for special damages. I will now look at his claim for loss of earnings. Loss of Earnings as a self employed businessman 20. For loss of earnings as a car parts salesman, he claimed the sum of $70,800.00 per annum, on the basis of a monthly net income of $5,900.00. Counsel submitted that the approach to be used is the multiplier by multiplicand approach. He referred the court to the claimant s age and suggested a multiplier of 3. 21. It is to be noted that there was no claim for loss of earnings in the claimant s statement of case. The first mention of a possibility of there being a claim for loss of earnings came in the witness 12 Grant v. Motilal Moonan Limited and Rampersad Civ. App. No. 162 of 1985 per Bernard CJ, at pg 5, 7
statement when, for the first time, the claimant mentioned that he had sustained such a loss. Subsequently, this claim was fleshed out in his submissions. In support of same, he has annexed to his witness statement a certificate of registration of his business. I accept that the evidence is unchallenged and that it is not in dispute that the claimant owned and operated his own business. He has, however, not provided any documentary evidence of his earnings in the form of bank statements or otherwise. In addition, is it acceptable to make a claim for loss of earnings via a witness statement and submissions? The shifted culture of litigation under the Civil Proceedings Rules 1998, as amended mandates that claimants set out their cases from upfront in their pleadings. This means that the claim for loss of earnings should have been set out in his statement of case. It cannot be introduced at the end of the assessment, and certainly not through the submissions of the claimant. Counsel has submitted that since the evidence was unchallenged, this claim should be allowed. I do not accept this submission of counsel. 22. Like any other claim for special damages, loss of earnings is a claim that is capable of substantially exact calculation. Why was this claim for loss of earnings not pleaded in his statement of case? In his witness statement, he gave evidence as to the impact of his injuries on his earning capacity and that it in fact effectively rendered him incapable of earning his preaccident income. I therefore formed the view that the claimant has failed to satisfy his duty to set out the case to be met by the defendant from up front and as he is required to do. In Charmaine Bernard v Seebalack 13 the Privy Council stated that it is the claimant s, undoubted obligation to plead and particularise any item of damage which represents out-of-pocket expenses or loss of earnings, incurred prior to the trial, and which is capable of substantially exact calculation. There can be at this stage no acceptable excuse for this defect in his pleadings. Whether the evidence is unchallenged or not a defendant is entitled to be put on notice as to the compensation being claimed against it. 23. On an evaluation of the pleadings and evidence before me, I am of the opinion that the claimant having failed adequately to plead and prove his alleged loss of earnings is not entitled to this award. Apart from a registration certificate for his business, I note that he has not produced any evidence of his income and expenses; and of monthly sales and expenditure with respect to his car parts business. I am constrained, therefore, to deny compensation for this 13 Charmaine Bernard v Seebalack, PC No 0033 of 2009 @ page 7. 8
alleged loss on the basis that it was not pleaded nor was this claim for damages proven by way of any proper documentation. This claim is thus disallowed. VII. CONCLUSION 24. It is thus the order of this court that the defendant do pay to the claimant (i) General damages in the sum of $80,000.00 with interest at the rate of 9% per annum from 15 th April, 2009 to 28 th February, 2012. (ii) Costs on the prescribed basis in the sum of $20,000.00. (iii) Stay of execution of 28 days. Dated 28 th February, 2012 Martha Alexander Master of the High Court (Ag) Judicial Research Assistant: Ms Kimberly Romany 9